Liability to injured third parties; special relationships; duty of care

Gottschalk v. Pomeroy Development, Inc., 893 N.W.2d 579 (Iowa 2017)

The Iowa Supreme Court holds that the state owed no duty of care to a private facility resident who was sexually abused by another resident who had been discharged by a court from a state violent sex offender program and then ordered by another court into the private facility due to dementia; further, no duty of care was owed to the private facility.

Found in DMHL Volume 36, Issue 2

Exhaustion doctrine—modification when claimant compromised by mental illness

Weiss v. Barribeau, et al., 853 F.3d 873 (7th Cir. 2017)

Seventh Circuit reverses the district court’s grant of summary judgment to prison officials on inmate’s Eighth Amendment claim, on the grounds of inmate’s failure to exhaust administrative remedies, finding that inmate’s capacity to make required timely administrative complaints and appeals was compromised by his mental illness and by the actions of prison officials in response to that illness.

Found in DMHL Volume 36, Issue 2

Administration of psychotropic medication; due process

Johnson v. Tinwalla, 855 F.3d 747 (7th Cir. 2017)

Seventh Circuit reverses summary judgment awarded by the district court to facility physician who prescribed and arranged for dispensing of psychotropic medication over an inmate’s objection, finding that an inmate can pursue claims that his resulting unknowing taking of the medication violated his constitutional due process rights and constituted common law medical battery.

Found in DMHL Volume 36, Issue 2

Off-label Drug Prescriptions

United States ex rel. Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905 (6th Cir. 2017)
Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., 873 F.3d 574 (7th Cir. 2017)

The following two cases both involved off-label drug prescriptions and improper promotion practices.

United States ex rel. Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905 (6th Cir. 2017)

Two former sales representatives of Bristol-Myers Squibb Co. (BMS) filed a qui tam action alleging improper promotion of Abilify. The district court had dismissed the complaint in part and denied the relators’ motion to amend. On review, the Sixth Circuit noted the long chain of causal links the relators alleged “reveals just what an awkward vehicle the [False Claims Act] is for punishing off-label promotion schemes,” but ultimately upheld the lower court’s rulings because the relators could not adequately amend the complaint to meet the requirements of the FCA (such as providing a representative claim). Judge Stranch concurred with one part of the court’s holding but dissented regarding many of its other findings about the relators’ claim sufficiency, noting the importance of combating health care fraud.

Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., 873 F.3d 574 (7th Cir. 2017).

In 2012, Abbott Laboratories pleaded guilty to unlawful promotion and paid $1.6 billion for undercover promotion activities that encouraged off-label use of Depakote. In 2013, two welfare-benefit plans (Payors) filed suit seeking damages under the Racketeer Influenced and Corrupt Organizations (RICO) Act. As relevant here, a district judge dismissed the complaint, ruling that Payors could not hope to show proximate causation as required under RICO. On appeal, Payors claimed that Abbott’s activities directly injured them, but the Seventh Circuit noted that it was “not at all clear that they are the initially injured parties, let alone the sole injured parties.” The court noted that patients suffer most directly and expressed skepticism in Payors’ claimed ability to show damages using statistical and other means to identify how Abbott’s practices led to specific instances of Payors spending money on off-label Depakote prescriptions.

Found in DMHL Volume 37, Issue 1

Attorneys' Fees Available When Executor or Trustee Engages in Undue Influence

In re Trust Created March 31, 1992 (Niles Trust), No. A- 7/8 (N.J. 2003); 71(47) U.S. Law Week 1748-49 (June 10, 2003)

In New Jersey, a wealthy unmarried woman placed her assets in three trusts.  She named as beneficiaries a foundation and her brother, who was two years younger than his sister.  A long-time friend was named as trustee. However, the woman, who had dementia and other medical problems, subsequently replaced the trustee with the son of her brother's recent much younger bride.  The son was also named executor of the woman's will. The trusts and the will were then modified to confer substantial benefits on the sister-in-law, her son, and her son's children.  The sister-in­ law and her son also used the woman's assets to buy luxury items.  The former trustee and the foundation filed suit claiming that the sister-in-law and her son had unduly influenced the woman to change her will and trusts...

Found in DMHL Volume 23 Issue 1

Malpractice Action for Sexual Relationship that Developed Subsequent to Treatment Provided by Psychologist Settled for 225000

18(16) Virginia Lawyers Weekly 389 (Sept. 22, 2003)

A lawsuit in which a woman filed a medical malpractice action against a psychologist from whom she sought treatment for major depression was settled for $225,000 in the Circuit Court of Fairfax County.  The woman alleged she was harmed by an inappropriate
romantic and sexual relationship that developed between them.  Reportedly, as part of the settlement the defendant acknowledged an inappropriate  relationship developed between them subsequent to treatment, that such relationships are forbidden by the regulations governing the practice of clinical psychology in Virginia and the ethical principles of the American Psychological Association, and that such relations are defined as unethical because of the high likelihood of harm to the patient...

Found in DMHL Volume 23 Issue 1

Federal Suit by Virginia Physician Fired by State Mental Health Facility Dismissed

Horner v. Dep't of Mental Health, No. Civ.A. 5:02CV00099, 2003 WL 21391678 (W.D. Va. May 1, 2003); 18(13) Virginia Lawyers Weekly 306 (Sept. 1, 2003)

A lawsuit filed by a physician who was fired by a Virginia state mental health facility was dismissed by the Western District of the U.S. District Court in Virginia.  The physician, who was an internist at Western State Hospital from 1995 until May 2001, claimed he was fired because of his criticisms of the patient care provided at the facility.  In response, the physician initiated a grievance procedure under Virginia state law, see DMHL, v. 22, n. 2, p. 29, and also filed a lawsuit in federal court.  The federal district court concluded it was without jurisdiction to hear this case because the physician's claims were "inextricably intertwined" with the retaliation claims set forth in his grievance and his federal claim did not differ in any substantial part from the essential facts presented in the state proceedings.  While noting his grievance was subject to state appellate review and, ultimately, to review by the United States Supreme Court, the court concluded lower federal courts were not authorized to review it....

Found in DMHL Volume 23 Issue 1

Employee of State Mental Health Care Hospital Can Pursue Lawsuit Claiming She Was Fired in Violation of Her First Amendment Rights for Complaining About Quality of Care in Hospital

Rodgers v. Banks, 344 F.3d 587 (6th Cir. 2003); 12(39) BNA's Health Law Reporter 1500-01 (Oct. 2, 2003)

The Sixth Circuit ruled the director of quality management at a state mental health care hospital who was fired after lodging complaints about the quality of care in the hospital could bring a federal lawsuit alleging she was terminated in violation of her First Amendment right to free speech.  She had complained that the placement of a psychiatrist's office in a patients' unit compromised the patients' privacy, that there was a lack of concern over quality standards, and that restrooms were not adequately kept clean.  The Sixth Circuit determined the focus of these complaints was on patient care, a matter of public concern, and as a result it was necessary to balance the interests of a public employee as a citizen commenting on matters of public concern against the interests of a public employer attempting to efficiently provide public services.  The court found no evidence the complaints either disrupted or threatened to disrupt the efficient functioning of the hospital and management had not established a state interest that outweighed the employee's First Amendment right to call her supervisor's attention to the quality of patient care in the hospital...

Found in DMHL Volume 23 Issue 1

Health Insurer Not Entitled to Recover Subrogation Claims for Deceptive Tobacco Industry Marketing Activities but May Be Able to Recover on Direct Claim

Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris USA Inc., 344 F.3d 211 {2d Cir., 2003); 12(38) BNA's Health Law Reporter 1473-74 (Sept. 25, 2003)

The Second Circuit ruled a health insurer was not entitled to recover over $11.8 million on subrogation claims associated with treating the tobacco-related illnesses of the individuals it insured. The insurer argued the tobacco companies engaged in a scheme to distort public knowledge of the risks of smoking and this behavior resulted in the insurer paying increased costs for medical services provided to subscribers with smoking-related medical conditions. The court determined the insurer failed to adequately define the identities and claims of those individuals whose rights it was asserting and thus this claim must be dismissed...

Found in DMHL Volume 23 Issue 1

ADA Suit Against Government for Failure to Reasonably Accommodate Disabled Persons Does Not Require Showing that Persons Without Disability Treated Better

Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003); 71(49) U.S. Law Week 1780-81 (June 24, 2003)

The Second Circuit held that individuals with a disability who claim the government has failed to reasonably accommodate their disability as required under Title II of the Americans with Disabilities Act (ADA) do not have to show that the government treated individuals who are not disabled better (i.e., that there was a "disparate impact"). The case was filed by HIV-infected individuals who allege New York City violated the ADA by not providing them with adequate access to public social service benefits such as food stamps, welfare benefits, and Medicaid coverage. The city responded there was no ADA violation because the plaintiffs received the same­ albeit difficult to obtain-access to services as persons without disabilities...

Found in DMHL Volume 23 Issue 1

Ruling that Civil Rights Claim Can Be Pursued Against Police Officer for Failure to Inform Jail Officials Inmate on Verge of Attempti ng Suicide Not Disturbed

Cavalieri v. Shepard, 321 F.3d 616 (7th Cir. 2003), cert. denied, Shepard v. Cavalieri, 124 S. Ct. 531 (2003)

The Supreme Court declined to review a ruling of the Seventh Circuit that the mother of a jail inmate was entitled to pursue a civil rights claim against a police officer for his alleged failure to inform jail officials that her son was on the verge of trying to commit suicide.  The Seventh Circuit rejected the officer's argument that his duty to inform ended when the pretrial detainee was transferred from municipal to county custody....

Found in DMHL Volume 23 Issue 1

Employment Contract Intended to Limit Psychologist's Ability to Compete with a Group Practice After Employment Relationship Ends Is Not Enforceable

Comprehensive Psychology Sys. v. Prince, 867 A.2d 1187 (N.J. Super. Ct. App. Div. 2005)

When mental health professionals join a group practice, their employment contract may include a restrictive covenant that is intended to limit their ability to compete with the group practice for a period of time should the employment relationship end. In New Jersey, a corporation providing neuropsychological services to clients sued one of its former employees, a licensed psychologist, to enforce a restrictive covenant in their employment contract. The restrictive covenant stated that after the termination of employment the psychologist could not practice his profession within ten miles of the corporation's facility and not solicit any of the corporation's patients for two years...

Found in DMHL Volume 24 Issue 2

Army Veteran Can Pursue a Claim for Alleged Failure to Tell Him He Had Been Diagnosed as Having Schizophrenia

Thomas v. Principi, 394 F.3d 970 (D.C. Cir. 2005)

A U.S. Army veteran claimed the Department of Veterans Affairs (VA) was aware that a physician had diagnosed him as having schizophrenia during an examination, but that the VA failed to inform him of this diagnosis for eight years and thus should be held liable for the damages he incurred as a result. A trial court dismissed the lawsuit after concluding that federal law dictates that all questions regarding the awarding of veterans' benefits are to be decided by the Secretary for Veterans Affairs...

Found in DMHL Volume 24 Issue 2

Employer Provided Reasonable Accommodation to Call Center Employee Who Has a Bipolar Disorder; ADA Claim Rejected

Rush v. Verizon Virginia, Inc., 7:04CV00093, 2004 WL 2900654 (W.D. Va. Dec. 9, 2004)

The Americans with Disabilities Act (ADA) generally prohibits an employer from discriminating against an employee because of the employee's disability.  In addition, an employer must grant a requested accommodation for the disability if the accommodation is reasonable and would allow the employee to perform the essential functions of the position...

Found in DMHL Volume 24 Issue 2

Suit Dismissed Against Therapist for Alleged Role in Conspiracy to Deny Child Custody to Mother; Ruling Not Disturbed

Elwood v. Morin, 84 Fed. Appx. 964 (9th Cir. 2004), cert. denied 125 S. Ct. 271 (2004)

Child custody disputes are frequently bitterly contested.  Mental health professionals may be asked to play a pivotal role by formulating and submitting a report regarding who should be assigned custody. A disappointed party may subsequently file a lawsuit alleging improper behavior by the mental health professional in reaching his or her opinion...

Found in DMHL Volume 24 Issue 2

Dismissal of Lawsuit Asserting Licensure Testing Procedure for Professionals Violated ADA for Failing to Reasonably Accommodate Examinees Mental Disability Reversed, Remanded for Further Consideration

Feaster v. Florida, 846 So. 2d 1238 (Fla. Dist. Ct. App. 2003), vacated & remanded for further consideration in light of Tennessee v. Lane (2005)

Many professionals, including physicians, nurses, psychologists, social workers, and attorneys, are required to be licensed in the state in which they desire to provide services. Title II of the Americans with Disabilities Act (ADA) prohibits states from discriminating on the basis of a disability in providing access to their services, programs, or activities...

Found in DMHL Volume 24 Issue 2

Teacher Claimed Constitutional Rights Violated When Arresting Police Officers Failed to Adequately Question Credibility of Special Needs Student Who Asserted Teacher Sexually Fondled Him

Forest v. Pawtucket Police Dep't, 377 F.3d 52 (1st Cir. 2004)

In Rhode Island, a high school special education teacher was arrested for the alleged sexual assault of a 15-year-old male student during class. On the day of the purported incident, the student had gone to the principal's office and claimed that the teacher had touched him in a sexual manner during class. That evening the student and his mother went to the local police department and filed a complaint against the teacher. Police officers interviewed and reinterviewed the student and his mother, as well as the school principal, who confirmed that the student had come to his office with his complaint...

Found in DMHL Volume 24 Issue 2

Mental Health Care Provider Not Liable for Negligent Hiring of Employee Who Later Raped Patient at Residential Treatment Facility

Munroe v. Universal Health Servs., Inc., 596 S.E.2d 604 (Ga. 2004)

In part because relatively low wages are typically offered, it can be a challenge to find qualified staff to provide care to individuals with a mental disorder. When a staff member abuses these individuals, the question may arise whether the employer can be liable for having hired the person in the first place....

Found in DMHL Volume 24 Issue 1

Mentally Disabled Son Can Recover Damages for Wrongful Death of His Father, Even Though He Believes His Father Is Still Alive

Knowles v. Superior Court of San Diego County, 13 Cal. Rptr. 3d 700 (Ct. App. 2004)

A California man died four days after a surgical procedure.  The man's family asserted that the death was the result of professional medical negligence during the surgery and filed a wrongful death action. One of the man's sons is mentally disabled due to a head injury and as a result believes his father is still alive.  Nevertheless, through his guardian ad litem, this son joined in the lawsuit.  In response, the defendant argued that because this son believed his father was alive, he had suffered no damages from his father's death and thus was not entitled to pursue this claim...

Found in DMHL Volume 24 Issue 1

Psychotherapist Alerted by a Patient's Immediate Family of a Threat by the Patient Can Be Held Liable for Failing to Warn the Patient's Victim; Expert Testimony Not Required to Establish Liability

Ewing v. Northridge Hosp. Med. Ctr., 16 Cal. Rptr. 3d 591 (Cal. Ct. App. 2004)

Tarasoff v. Regents of Univ. of California, 551 P.2d 334 (1976), the first judicial opinion to rule that a psychotherapist may have a legal duty to take reasonable steps to protect a third party who has been threatened by the psychotherapist's  patient, reverberated across the country.  A number of states, including California and Virginia, enacted legislation to specify more clearly when this duty arises...

Found in DMHL Volume 24 Issue 1