Legal counsel, risk managers, counseling centers, and student mental health advocates at colleges in Ithaca and across the nation will be monitoring a new lawsuit that asserts that the University of Pennsylvania’s failure to provide “any meaningful help, support and safety net” led to the suicide of 21-year-old business school student Ao “Olivia” Kong. The lawsuit seeks to hold Penn’s trustees accountable for “reckless disregard” in failing to follow best practices for suicide prevention, contending that the university “had a duty to ensure her safety and wellbeing and protect her from harm.” In asserting the university’s negligence, the lawsuit says “Penn didn’t just fail her, it killed her.”

Ao “Olivia” Kong (Source: Feldman Shepherd)

In the spring of 2016, according to the lawsuit filed on April 10 in Philadelphia County’s Court of Common Pleas, Kong became despondent while struggling with an academic overload and symptoms of anxiety, depression, insomnia, and anorexia during the second semester of her junior year. The 3.3 GPA student feared that she might fail a course, and jeopardize her financial aid as well as an upcoming paid summer internship with Bank of America, the lawsuit says.

Born in China, Kong had immigrated to the United States at age 9 with her parents and became one of the top students in the Philadelphia public school system. She placed first in national math contests and city science fairs; played violin in the school orchestra; was a member of the drama club, varsity tennis squad, and newspaper editorial board; and volunteered in community service organizations. She won early admission to Penn’s prestigious Wharton School, Class of 2017; Wharton is ranked as the No. 1 undergraduate business school in the United States, with annual tuition and fees of $53,534.

Kong was struck and killed by a SEPTA train in West Philadelphia in the early morning of Monday April 11, 2016. The lawsuit brought by her parents contends that in seeking help amidst a mental health crisis from the university’s Counseling and Psychological Services (CAPS), Student Health Center, and the Wharton School, Kong communicated that she was suicidal to Penn professionals on at least nine occasions between April 7 and April 9.

According to the lawsuit, Kong’s suicidal thoughts were expressed directly or indirectly to a CAPS psychiatrist on four occasions; a CAPS clinician; a CAPS social worker; a Wharton academic advisor; and on a CAPS intake form and a school petition for a course withdrawal.

The four-count lawsuit, which alleges negligence, wanton and willful misconduct, reckless disregard, and includes a wrongful death claim and a survival action, reads as a scathing indictment of Penn’s academic pressures and mental health policies and practices as well as of its institutional mindset. It labels the suicides at Penn a “worsening epidemic,” stating that Kong had been the tenth Penn student to die by suicide in three years, and another four have taken their own lives in the two years since then.

“So long as Penn refuses to adequately address the academic and personal stresses underlying these suicides, and take appropriate measures to protect its students from the harms associated with those stresses, it willfully and recklessly exposes its students to an extraordinarily high risk of suicide,” the lawsuit says.

It goes on: “Similarly, Penn’s abject failure to hire competent and qualified professionals to assist its students in managing their stress and/or enact and implement policies designed to ensure the safety, physical and mental wellbeing of its students, constitutes a reckless disregard and callous indifference to the safety, health and wellbeing of its students.”

The lawsuit alleges Penn’s repeated failures to follow best practices related to suicide prevention, including:

— Failure to provide outreach and support programs and to formulate, implement, and enforce policies, practices, and guidelines that comply with current professional standards and nationally established criteria and/or best practices “to reduce academic stress and the risk of suicide”;

—Failure to formulate, implement, and enforce policies, practices, and guidelines to address the warning signs of suicide in students-in-crisis, including those suffering from academic stress; and to assess and treat students with suicide ideation;

—Failure to hire, retain, and ensure that the persons overseeing, supervising, administering, and providing psychological services are aware of and/or comply with best practices for suicide prevention;

—Failure to waive patient confidentiality to inform parents when a student was in imminent danger of suicide;

—Failure to dedicate sufficient resources to reduce the risk of, and prevent, suicides.

The lawsuit slates Penn for other failures, including:

——Failure to formulate, implement, and enforce policies, practices, and guidelines to assess and treat students-in-crisis, including those suffering from academic stress;

—Failure to ensure that information about Penn’s mental health resources is easily accessible to people providing the services and to its students;

—Failure to hire, retain, and ensure that the persons overseeing, supervising, administering, and providing psychological services are aware of Penn’s programs and resources for students-in-crisis;

—Failure to provide adequate procedures for late withdrawal from courses; taking leaves of absence; reducing unmanageable course loads; managing student distress caused by unmanageable course loads; and receiving tutoring services.

Academic Stress and Anxiety

The lawsuit says that Kong was afraid of failing a course, and was frustrated by hurdles in the way of dropping it and by her inability to get academic tutoring. She first reported academic stress, anxiety, lack of sleep, and inability to concentrate during a visit to the Student Health Center on March 30, according to the lawsuit. The attending physician attributed Kong’s signs and symptoms to an upper respiratory infection and fever, and failed to address her academic stress and anxiety or refer her to any university resources for students experiencing such conditions, the lawsuit says.

A week later, after her physical and mental health deteriorated, the lawsuit goes on, Kong placed a call in a state of distress to the after-hours CAPS number at around 1:30 a.m. on April 7. She reportedly told the on-call psychiatrist that she was anxious and afraid of failing a class, unable to sleep, and had experienced a panic attack, feelings of self-hatred, and suicidal thoughts. The lawsuit alleges that the psychiatrist dismissed Kong’s academic fears as “run of the mill” for undergraduates and discussed how CAPS could assist her in dropping the course during regular business hours.

According to the lawsuit, later that day she went to CAPS and conveyed her academic anxiety and current suicidal thoughts on the intake form as well as to a social worker—with whom she also shared her feelings of depression and shame and idea of taking an overdose of sleeping pills as the method of killing herself. The social worker concluded that Kong had no actual intention or means of taking her own life, the lawsuit says. It adds that the social worker scheduled Kong for a follow-up CAPS appointment four days later at 3 p.m. on April 11—by then, Kong had died as the result of blunt force trauma.

Still later on April 7, Kong met with a Wharton advisor, mentioned her past suicide ideation, and filed a petition for late withdrawal from an upper-level course. She explained that she was “struggling with the class and it is causing me to become depressed. I have not been able to sleep for the past week.” She concluded the petition by stating she has “thoughts of suicide.”

According to the lawsuit, after the Wharton advisor alerted CAPS about her meeting with Kong, the CAPS social worker sent Kong an email reminding her of her CAPS appointment the following Monday afternoon April 11; she also said that in the meantime Kong had the options of visiting or calling CAPS during regular business hours, contacting the CAPS after-hours clinician, or calling a national suicide hotline 24/7.

On Saturday evening April 9, after a Penn graduate assistant alerted CAPS of his concern about Kong, the CAPS psychiatrist reportedly spoke with her again by phone for about an hour. She had gone to spend part of the weekend at home with her parents, who were concerned about her welfare but were unaware of her expressed intention to kill herself.

According to the lawsuit, Kong told the psychiatrist of her frustration and hopelessness with Wharton’s “roadblocks” to dropping a class and exploring a leave of absence. “After telling him that ‘people aren’t listening to me,’” the lawsuit alleges, “Olivia said that she planned to return to campus the next day and kill herself.”

Kong and the psychiatrist also discussed the possibility of an inpatient psychiatric admission, which Kong was told was an option “if no other plan can work,” the lawsuit says. When Kong inquired about the expense of an emergency room visit, the lawsuit alleges, the psychiatrist remarked that “the cost of [an emergency room] is likely less than [the] cost of funeral arrangements.”

According to the lawsuit, the psychiatrist advised Kong to speak with her parents and said he would contact Wharton about her academic situation; and said if she could not make it emotionally until her Monday appointment with CAPS, she had the options of calling CAPS, dialing 911, or to “get herself to the ER.”

The lawsuit faults Penn professionals for failing due to ignorance or incompetence to refer Kong to multiple available mental health services and programs; failing to develop a treatment plan for Kong’s suicide ideation, provide psychotherapy and medication, or refer her to a local hospital or emergency room; failing to notify Kong’s parents that she was at imminent risk of self-harm, or to arrange for somebody to stay with Kong until she obtained medical help; failing to alert the police of her intention to take her own life; failing to relieve Kong of severe academic stress; failing to ensure that she was capable of handling a heavy course load.

“The failure of these multiple professionals,” the lawsuit argues, “to take adequate and proper precautions or preventative measures to adequately treat Olivia and protect her from harm during a period when they knew her articulated suicidal thoughts and plans or in the exercise of due care should have known that she was suicidal and that she was incapable of maintaining proper perspective and making sound decisions regarding her health, safety and wellbeing was the proximate cause of her suicide.”

Standards and Practices

The lawsuit does not specifically identify a source for its reference to professional standards and nationally established best practices. However, one prominent example is the 2012 National Strategy for Suicide Prevention, released by the U.S. Surgeon General, which describes goals to “promote suicide prevention as a core component of healthcare services” and to “promote and implement effective clinical and professional practices for assessing and treating those at risk for suicidal behaviors.” The strategy is meant to guide suicide prevention actions in the United States throughout the decade.

In February 2016, The Joint Commission, a body that accredits healthcare programs in the United States, issued recommendations to improve the treatment of individuals with suicide ideation. The commission urged all healthcare organizations “to develop clinical environment readiness by identifying, developing and integrating comprehensive behavioral health, primary care and community resources to assure continuity of care for individuals at risk for suicide.”

Furthermore, the commission said, “it’s imperative for healthcare providers in all settings to better detect suicide ideation in patients, and to take appropriate steps for their safety and/or refer these patients to an appropriate provider for screening, risk assessment, and treatment.”

Many experts point to the Zero Suicide Model of the Suicide Prevention Resource Center (SPRC) as a prime example of best practices; it holds that “suicide deaths for individuals under care within health and behavioral health systems are preventable.”

The question of whether universities and college counseling centers have a legal “duty of care” to prevent suicide is currently evolving. A strong legal precedent has yet to be established, due in part to the fact that many lawsuits alleging university negligence in suicide cases are settled before they reach court.

Guidance issued by SPRC notes that in successful medical malpractice lawsuits, the plaintiff proves a breach of duty of care by showing that the defendant’s act or omission fell below the standard of care and increased the risk of harm to the plaintiff. The core of a suicide case, SPRC says, is whether the suicide was “foreseeable”—that there was a reasonable anticipation that some harm or injury is likely to result from certain acts or omissions.

The Jed Foundation, with which Penn maintains a mental health review partnership, argues that “ultimately, litigation risk can be substantially reduced by following some simple advice—use good professional judgment; develop a comprehensive suicide/violence prevention program; follow written and/or unwritten policies and protocols; ensure that available mental health services are in keeping with professional codes of ethics and standards of practice.”

The Kong lawsuit also takes Penn administrators to task for the way in which they announced Kong’s death. Initially, the lawsuit says, President Amy Gutmann informed the campus community of a student death without identifying the student or the manner of death. The same day, Penn representatives allegedly told Kong’s parents as well as Wharton undergraduates that her death was an “accident.”

“Responsibility for Their Own Wellbeing”

Kong’s death occurred just a year after a high-profile Penn task force issued a report praising Penn for its “impressive” and “wide array” of mental health resources, peer-education and support groups, and singling out CAPS for providing “excellent services to a wide range of students.” The report said that the “unwavering commitment” of staff and faculty to ensuring mental health support for students was “very impressive” and “clearly evident.”

Rather, the report said, the problem was the pressures engendered by the perception among Penn students that “one has to be perfect” in every academic, co-curricular, and social endeavor. That perception can lead to stress and distress, compounded in some cases by the endemic use or misuse of alcohol or other drugs, lack of sleep, and improper nutrition, the report said.

The report emphasized that “stress is a normal part of life,” that “campuses across the country” face mental health challenges, and that college students are not statistically at a higher risk for suicide. At Penn, the report stated, “students (undergraduate, graduate, and professional) are expected to take responsibility for their own wellbeing.”

The report recognized that “during times of stress or distress, it is challenging to maintain one’s perspective and to make sound decisions about whether and to whom to turn for help.” Therefore, the report explained, “Penn has a strong and committed network of individuals and of offices that can either provide direct assistance or ensure that students are appropriately referred.”

Gutmann and Provost Vincent Price convened the task force in February 2014 shortly after two student suicides, and charged it with examining student mental health challenges; reviewing Penn’s programs, policies, and practices for addressing the challenges; and making recommendations for improvement.

The task force said there were “opportunities to further strengthen the university’s efforts” and made recommendations in four main areas: 1) communicating to students about the importance of mental health and wellbeing to their academic success; 2) making information about Penn’s mental health and wellness resources more accessible; 3) educating and training faculty, staff, students, and parents about mental health and in responding to students who need help; and 4) “optimizing” the resources the university devotes to psychological counseling.

The report cited “the limits” on the resources Penn provides to CAPS and made no recommendation to increase funding; instead, the report said that CAPS should communicate to students—as well as to staff, faculty, and students who refer students to CAPS—that CAPS is only designed to provide short-term care and make referrals to other care providers.

The Kong lawsuit, arguing that Penn failed to provide and/or dedicate sufficient resources to implement and enforce current professional standards and nationally established best practices for reducing academic stress and the risk of suicide, challenges the task force’s claim of funding limitations. “Given Penn’s $12 billion endowment, there were (and are) sufficient resources to address its continued failure to ensure the safety of its students, but for inexplicable reasons, it has failed (and continues) to do so,” the lawsuit says.

The lawsuit takes issue with the task force for “shockingly” placing “the responsibility for its students’ health and wellbeing not on the professionals associated with those offices and programs but on the students themselves” and for concluding “that the problem did not lie with those programs and resources but in persuading students to use them.” The lawsuit says “the ultimate irony” is that Kong “not only sought help from all of the resources available to her, but she also specifically communicated her suicidal thoughts and plans, all to no avail.”

Nevertheless, the lawsuit adds, the task force report established that “Penn was clearly aware that the highly competitive academic stresses it placed upon its students not only increased their risk of developing depression and anxiety but decreased their ability to maintain proper perspective and make sounds decisions about their safety, health and wellbeing thereby increasing their risk of committing suicide.”

The lawsuit blames Penn for failing to ensure that the members of the task force were “qualified” or that its findings and conclusions complied with current professional standards and nationally established best practices to reduce academic stress and the risk of suicide. The lawsuit accuses Penn of failing to ensure that “the entire Penn community” was aware of and complied with the findings, recommendations, and conclusions of the task force.

The lawsuit criticizes Penn for excluding students from the task force reviewing the university’s mental health policies and practices; the 10 task force members were all Penn senior administrators and academic officers, including five vice presidents and vice provosts, and a number of current and former deans and department chairs.

In response to the Kong lawsuit, a university spokesperson told local media that Penn does not comment on pending litigation.

After Kong’s suicide, Penn reconvened the mental health task force in 2016 but did not release a new report. According to the Daily Pennsylvanian, “the University’s task force concluded after Kong’s 2016 death that Penn’s wide array of ongoing mental health initiatives are sufficient to address the issue.” Penn’s student newspaper quoted task force co-chair Rebecca Bushnell, a former dean of arts and sciences, saying: “The task force completed its work at the end of the summer of 2016, so we have nothing new to say.”

[If you or someone you know feels the need to speak with a mental health professional, you can contact the National Suicide Prevention Lifeline at 1-800-273-8255 or contact the Crisis Text Line by texting HOME to 741-741.]