Medical malpractice; exacerbation of pre-existing mental health conditions

Summers v. Syptak, 801 S.E.2d 422 (Va. 2017)

The Virginia Supreme Court rules that in a claim by a patient that crude, offensive and sexually oriented remarks to the patient by the physician aggravated symptoms of the patient’s pre-existing multiple mental health and medical conditions, the plaintiff’s failure to designate an expert to testify that the physician’s conduct was the proximate cause of the harm experienced by the patient required dismissal under Virginia’s medical malpractice statute.

Found in DMHL Volume 36, Issue 3

Ineffective assistance of counsel

United States v. Laureys, 866 F.3d 432 (D.C. Cir. 2017)

D.C. Circuit reverses defendant’s conviction for attempted sex crime involving a minor due to defense counsel’s failure to properly consider mental health expert findings regarding defendant’s mental condition, with the result that defense counsel wrongly pursued his own unsupported theory and neglected expert evidence regarding defendant’s capacity to form the requisite criminal intent.

Found in DMHL Volume 36, Issue 3

Competency to be executed

Panetti v. Davis, 863 F.3d 366 (5th Cir. 2017)

Fifth Circuit finds petitioner who was convicted of murder and sentenced to death has a due process right to a hearing and funds for counsel and mental health experts to pursue a claim that he is not competent to be executed due to his serious mental illness.

Found in DMHL Volume 36, Issue 3

Involuntary medication to restore competency to stand trial; due process

Washington v. Lyons, 2017 WL 2438687 (Wash. Ct. App. June 6, 2017)

Washington State Court of Appeals holds that a defendant has a due process right to obtain and present expert testimony on whether the findings required under Sell for involuntary medication to restore competency to stand trial have been proven by the state.

Found in DMHL Volume 36, Issue 2

Mental Health Experts, Jury Instructions, Not Guilty by Reason of Insanity

Commonwealth v. Piantedosi, 87 N.E.3d 549 (Mass. 2017)

Massachusetts Supreme Judicial Court upheld a conviction of first-degree murder because the judge correctly excluded expert testimony about a hearsay conversation not admitted into evidence, the Commonwealth’s expert witness testimony was proper, and the judge accurately instructed the jury with the appropriate model instructions at the time of the trial.

Found in DMHL Volume 37, Issue 1

Expert Testimony Based on Grisso Protocol Excluded Under Daubert and Confession of Fourteen-Year-Old Defendant Admitted

State v. Griffin, 831 A.2d 252 (2003)

The Appellate Court of Connecticut ruled a trial court properly excluded expert testimony regarding the nature of a juvenile's confession and concluded the juvenile had knowingly, intelligently, and voluntarily waived his privilege against self-incrimination.  The defendant, convicted of manslaughter, had been fourteen years of age at the time of the crime.  He attempted to suppress his confession at trial based on the testimony of a clinical psychologist...

Found in DMHL Volume 23 Issue 1

Virginia Capital Defendant Not Provided Ineffective Assistance of Counsel Just Because Defendant's Mental Health Expert Misdiagnosed Defendant

Bailey v. True, No. CR02-511 (E.D. Va. Apr. 15, 2003); 17(51) Virginia Lawyers Weekly 1288 (May 26, 2003)

The U.S. District Court for the Eastern District of Virginia refused to overturn the capital conviction of a defendant because of the purported ineffective assistance of counsel in presenting mental health evidence as a mitigating factor in the penalty phase of the trial.  The defendant's claim was characterized as being that his mental health expert had misdiagnosed him as having a personality disorder when he should have been diagnosed as having a bipolar disorder...

Found in DMHL Volume 23 Issue 1

Ake Independent Mental Health Expert Requirement Not Met by Appointment of a Mental Health Professional from Court's Psychiatric Center

Powell v. Collins, 332 F.3d 376 (6th Cir. 2003)

The Sixth Circuit ruled a defendant convicted of murder and sentenced to death had been denied his right to psychological assistance and effective assistance of counsel during the sentencing phase of his trial and remanded the case for a new penalty proceeding.  Prior to trial the judge ordered an evaluation of the defendant by a clinical psychologist from the court's psychiatric center.  Defendant's counsel requested that a mental health expert be appointed to assist counsel in understanding the reports generated. This request was rejected.  The defendant was subsequently found guilty by a jury.   Counsel then moved to hire a neuropsychiatrist to assist counsel at the mitigation phase.  In response the court engaged the psychologist who had conducted a pretrial competency evaluation but refused to grant a continuance of the sentencing hearing to allow for additional testing even though the  psychologist admitted she was not equipped to conduct the necessary testing for this phase of the case.  At the sentencing hearing, the psychologist stated she was not given sufficient time to conduct an appropriate investigation and tests and was not "equipped" to conduct the necessary neuropsychological testing for this phase of the case....

Found in DMHL Volume 23 Issue 1

Fallacious Forensic Expert Testimony Basis for Vacating Conviction

Drake v. Portuondo, 321 F.3d 338 (2d Cir. 2003)

The Second Circuit vacated a murder conviction that relied heavily on expert testimony when the expert's qualifications were "largely perjured" and the testimony described a syndrome "referenced nowhere but in a true-crime paperback."  The crime involved the shooting of a young couple in a parked car in an isolated area near a junk­ yard.  Because there was no apparent motive for the shooting, the prosecutor called at the last minute a putative expert who testified about  a sexual  dysfunction  syndrome­ "picquerism"-that  could  explain these  events. The Second Circuit ruled the defendant should be given an opportunity to show the prosecution was aware or should have been aware that the witness' testimony was perjured.  The court noted the prosecutor made no independent inquiry into the witness' background, relied entirely on the recom­ mendation of a dentist in exploring whether to call the witness as an expert on aberrant psychology, intended the testimony to bolster what it thought to be a significant weakness in its case, and opposed defendant's request for a continuance when defense counsel protested he could find no psychologist who had so much as heard of picquerism...

Found in DMHL Volume 23 Issue 1

Yates' Conviction Reversed for State's Use of False Testimony by Mental Health Expert Concerning "Law & Order" Episode

Yates v. State, No. 01-02-00462-CR, 2005 WL 20416 (Tex. Ct. App. Jan. 6, 2005)

The Court of Appeals of Texas reversed the capital murder conviction of Andrea Yates obtained in connection with the drowning deaths of her young children in a bathtub in their home. At trial, Yates asserted an insanity defense and four psychiatrists and a psychologist testified that, as a result of her mental illness, Yates did not know right from wrong...

Found in DMHL Volume 24 Issue 2

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

Out-of-State Physician Can Provide Expert Testimony About Virginia Standard of Care

Christian v. Surgical Specialists, 596 S.E.2d 522 (Va. 2004)

The Virginia Supreme Court reversed a trial court decision to exclude an out-of-state physician from providing expert testimony regarding the Virginia standard of care in a medical malpractice case.  The trial court had ruled that the New York physician, although familiar with the national standard of care, was not sufficiently familiar with the Virginia standard of care and thus was not qualified to testify as an expert witness under § 8.01-581.20 of the Virginia Code...

Found in DMHL Volume 24 Issue 1

Court-Appointed Mental Health Evaluator Owes a Limited Duty of Care to the Person Being Examined

Harris v. Kreutzer, 624 S.E.2d 24 (Va. 2006)

A health care provider typically owes a duty of care to an individual with whom a professional relationship has been established, including a duty to exercise reasonable care in diagnosing and treating the individual.   Mental health professionals, however, are also often asked to provide court-ordered evaluations of litigants in civil proceedings or criminal defendants.  The Virginia Supreme Court has indicated that mental health professionals in this context also owe a duty of care to these individuals, albeit a limited duty, and that they may be liable for damages if that duty is breached...

Found in DMHL Volume 25 Issue 2

Supreme Court Upholds Arizona's Ability to (1) Limit the Scope of the Insanity Defense and (2) Preclude the Use of Mental Health Expert Testimony in Conjunction with a Mens Rea Determination

Clark v. Arizona, 126 S. Ct. 2709 (2006)

In its recently completed term that began October 3, 2005, and ended June 29, 2006, the United States Supreme Court decided sixty-nine cases with a signed opinion.  After an unprecedented eleven years without a change in its membership, these opinions were closely watched to see whether the Court's direction would change with the addition of Chief Justice John G. Roberts, Jr., and Samuel A. Alito, Jr.  For many mental health professionals, the case of greatest interest, Clark v. Arizona, was issued on the final day of the term...

Found in DMHL Volume 25 Issue 2

NY’s High Court Rules Testimony by Prosecutor's Forensic Psychiatrist Recounting 3rd-Party Statements Where 3rd Parties Aren’t Available for Cross-Exam Violates Fed Constitution and Isn’t Admissible

People v. Goldstein, 2005 N.Y. Slip Op. 09654, 2005 WL 3477726 (N.Y. Dec. 20, 2005).

In recent years forensic evaluators have been encouraged to expand the information on which they rely beyond their examination of the defendant and the clinical record to include third-party data from sources such as family and acquaintances of the defendant.  A ruling by the high court of New York has placed limits in that state on testimony based on this practice and raised issues that may reverberate in other states...

Found in DMHL Volume 25 Issue 1

Wife Was Competent to Execute a Settlement Agreement Even Though Treating Psychiatrist Testified That When He Saw Her Four Days Later She Was in "Acute Stage" of Bipolar Affective Disorder

Arey v. Arey, No. 0801-05-3, 2005 WL 2205646 (Va. Ct. App. Sept. 13, 2005)

To be binding, both parties to a contractual agreement must be mentally competent. Under Virginia law, each party is presumed to be competent and a party later seeking to establish incompetence has a "heavy burden" to show by clear and convincing evidence that the person "lacked the capacity to understand the nature and consequences" of the transaction.  A failure to exercise good judgment or to make wise decisions will not establish a party's incompetence...

Found in DMHL Volume 25 Issue 1

Children's Therapist Can Not Testify at Divorce Proceedings About Mother's Behavior

Schwartz v. Schwartz, 616 S.E.2d 59 (Va. Ct. App. 2005)

A court presiding over divorce proceedings in Virginia must consider the "mental condition of each parent" in making custody or visitation arrangements.  At the same time, as in most states, statements made to a licensed mental health care provider by a client are privileged (i.e., the provider cannot testify regarding any information obtained while examining or treating a client without the client's permission).  Formerly, this privilege was often disregarded during custody or visitation proceedings because the client was considered to have placed his or her mental condition at issue in these proceedings. However, a new law (VA. CODE § 20-124.3:1) was passed that limits the admissibility of mental health records in these proceedings.

Found in DMHL Volume 25 Issue 1

Lay Testimony to Support an Insanity Defense Permitted Only When Accompanied by Expert Testimony; Testimony by Licensed Clinical Social Worker Excluded

White v. Common­ wealth, 616 S.E.2d 49 (Va. Ct. App. 2005)

The challenge faced by the defendant at trial was that the court-appointed evaluator had determined that, although the defendant experienced psychotic symptoms (including hearing voices that he believed to be from God) at the time of the offense, the defendant's cocaine use had initiated and exacerbated these symptoms and thus the defendant was not legally insane at the time of the crime. In response, the defendant sought to introduce the testimony of a licensed clinical social worker who worked at the jail where the defendant was held and who saw the defendant two weeks after the offense and ten times over the next six months. Because the symptoms continued during incarceration when the defendant had no access to illicit drugs, the social worker was prepared to testify that the psychotic symptoms were unrelated to drug use...

Found in DMHL Volume 25 Issue 1

US Supreme Court Declines to Hear Missouri Supreme Court Finding of Ineffective Counsel for Failure to Call Mental Health Expert

Missouri v. Vaca, 314 SW3d 331, (Mo. 2010), pet. for cert. denied February 22, 2011

The United States Supreme has refused to hear the State of Missouri’s request for review of the Missouri Supreme Court’s determination that defense counsel was ineffective at the penalty phase of the trial for failure to present mental health evidence for no strategic reason. The defendant had been charged with a series of armed robberies. Defense counsel had obtained a mental health evaluation that revealed the defendant was schizophrenic and evidence indicated he had suffered from this condition most of his life. The prosecutor was successful in excluding the defendant’s mental health evidence during the guilt phase of the trial. During deliberations, the jury sent questions back to the judge asking among other things whether there had been any evaluation of the defendant’s mental condition. Knowing the defendant suffered from mental illness and that the jury had questions regarding his mental state, defense counsel failed to call a mental health expert as a witness during the penalty phase of the trial. The Court held that while a defense attorney has flexibility to make strategic decisions about whether to introduce mental health evidence, the evidence revealed that the defense counsel did not even think about it. Missouri had just changed its law to provide for bifurcated guilt and penalty phase trials in noncapital cases and this was defense counsel’s first such trial. The Court thus held that a new sentencing hearing was required.

Found in DMHL Volume 30 Issue 4

Tennessee Supreme Court Rules Experts Can Testify to Reflect Capital Defendant’s Actual Cognitive Abilities in Addition to Consideration of IQ Scores

Coleman v. State, 2011 Tenn. LEXIS 319 (April 11, 2011)

The Tennessee Supreme Court has held that under Tennessee law a defendant can present expert testimony to show that his test scores do not accurately reflect his actual cognitive abilities for purposes of raising a defense of intellectual disability to a sentence of death. The defendant in this case had been convicted of first degree murder and sentenced to death over 30 years ago. Following the decision in Atkins v. Virginia, 536 U.S. 304 (2001), prohibiting imposition of the death penalty for persons with mental retardation, the inmate filed a habeas petition alleging that he suffered from an intellectual disability. The evidence presented at his habeas hearing indicated, among other things, that his mother had an intellectual disability and history of mental illness, that his home was violent, chaotic and overcrowded, that his mother drank, engaged in prostitution and abused him, and that his father had spent most of his life in prison and had little-to-no involvement in his life. The petitioner had failed 1st, 2nd, 3rd and 7th grade and was only “socially promoted” to higher grade levels, and that he was teased by his fellow classmates. He was lonely and stigmatized as a child and intellectually and socially behind his peers. He was viewed as “dull” by police officers with whom he had many encounters as a juvenile.

Even though eight other state statutes limit the assessment of intellectual disability to scores on IQ tests, the Tennessee Supreme Court found that Tennessee law does not limit the evidence to test scores. The Tennessee statute requires a “functional” intelligence quotient of 70 or below, not just a test score of 70 or below. The Court therefore concluded that its General Assembly wanted courts to make fact-intensive and complex decisions with assistance from experts in the field because “functional” IQ cannot limited to raw IQ scores. Trial courts may therefore receive and consider any relevant and admissible evidence as to whether the defendant’s IQ is 70 or below. It noted that under the Flynn effect recognized by mental health experts, IQ test scores tend to increase over time. Clinical judgment is therefore important in diagnosing and assessing intellectual disability in borderline cases, especially since the standard of error measurement is generally 3-5 points. The Court therefore remanded the case to the trial court to consider expert testimony in determining the petitioner’s functional IQ.

Found in DMHL Volume 30 Issue 5