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

Eighth Amendment/Conditions of Confinement/Deliberate Indifference

Rasho v. Elyea, No. 14-1902, 2017 U.S. App. LEXIS 3976 (7th Cir. Mar. 7, 2017)

Eighth Amendment/Conditions of Confinement/Deliberate Indifference: Seventh Circuit reverses grant of summary judgment to contract psychiatrists in state prison system where inmate with serious mental illness alleges that psychiatrists effected his transfer out of a special mental health treatment unit in retaliation for the inmate’s grievances against staff, resulting in denial of effective treatment.

Found in DMHL Volume 36, Issue 1

Qualified Immunity, Duty of Care, Jails and Prisons

Bays v. Montmorency Cty., 874 F.3d 264 (6th Cir. 2017)

Sixth Circuit ruled that there is a clearly established Fourteenth Amendment right to sufficient treatment for a serious medical problem and upheld a district court’s denial of qualified immunity to a jail nurse where there was evidence that the nurse acted with deliberate indifference to an inmate’s serious mental illness.

Found in DMHL Volume 37, 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

HMOs Not Required to Disclose Financial Incentives Used to Encourage Health Care Providers to Ration Care Except Under Limited Circumstances

Horvath v. Keystone Health Plan, 333 F.3d 450 (3d Cir. 2003); 72(4) U.S. Law Week 2063 (Aug. 5, 2003)

Disagreeing with the Eighth Circuit, the Third Circuit held that a health maintenance organization (HMO) does not breach its fiduciary duties under the Employee Retirement Income Security Act (ERISA) when it fails to disclose the financial incentives it provides to health care providers to ration care unless (1) a member of the HMO requests such information, (2) circumstances have put the HMO on notice that its members require such information to avoid making bad decisions regarding their health care coverage, or (3) an HMO patient was harmed as a result of not having such information disclosed to them...

Found in DMHL Volume 23 Issue 1

Ruling Striking Down Federal Policy to Revoke Prescription Privileges for Recommending Medical Marijuana Not Disturbed

Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), cert. denied, Walters v. Conant, 124 S. Ct. 387 (2003)

The Supreme Court declined to review of ruling of the Ninth Circuit that held that a federal policy that threatened to revoke a physician's authority to prescribe controlled substances if the physician recommended the use of medical marijuana to a patient violated the First Amendment...

Found in DMHL Volume 23 Issue 1

Virginia School Board's Offer of Educational Placement That Employs the TEACCH Method Found to Be Inadequate for Young Boy Diagnosed as Severely Autistic

County Sch. Bd. v. Z.P., 399 F.3d 298 (4th Cir. 2005)

Under the federal Individuals with Disabilities Education Act (IDEA), all states receiving federal funds for education are required to provide disabled schoolchildren with a "free appropriate public education" (FAPE). To meet this requirement, educational instruction must be specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction. However, states are not required to provide the best possible education.  The adequacy of a program offered by a school system to meet the FAPE requirement is oftentimes the subject of litigation...

Found in DMHL Volume 24 Issue 2

Conviction of Legal Guardian for Felonious Neglect of the Medical Treatment of an Incapacitated Person Upheld

Correll v. Commonwealth, 607 S.E.2d 119 (Va. 2005)

The Virginia Supreme Court upheld the conviction of a woman for violating a statutory provision that makes it a felony for any "responsible person" to abuse or neglect an incapacitated person when that abuse or neglect results in serious bodily injury or disease to the incapacitated adult. VA. CODE § 18.2-369.  This provision defines "neglect" as the "knowing and willful failure" to provide treatment, care, goods, or services that results in injury to the health or endangers the safety of the incapacitated adult.  The court relied on the definition of "willful" as applied to a parallel criminal statute governing child abuse and neglect and determined that it "contemplates an intentional, purposeful act or omission in the care of an incapacitated adult by one responsible for that adult's care."...

Found in DMHL Volume 24 Issue 2

Privatization by Puerto Rico of Prison Inmates' Medical and Mental Health Services Upheld for the Time Being; Ruling Not Disturbed

Feliciano v. Rullan, 378 F.3d 42 (1st Cir. 2004)

Since the 1970s, class action lawsuits have been brought against many states challenging the medical and mental health care provided in their correctional systems.  In part because many of these lawsuits deeply enmeshed the federal courts in the supervision of prisons and jails for an extended period of time, Congress enacted the Prison Litigation Reform Act (PLRA) in 1996 to curb the involvement of the federal courts in day-to-day prison  management...

Found in DMHL Volume 24 Issue 2

Medicaid-Eligible Adults Who Are Mentally Retarded Can Sue State for Failure to Provide Community-Based Intermediate Care Facilities

Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004)

The Medicaid Act furnishes funds to the states to help them provide medical assistance to eligible low-income individuals.  Although states are not required to participate in such programs, if they accept federal funding they must comply with the Medicaid Act and related federal regulations...

Found in DMHL Volume 24 Issue 1

A Court Can Not Impose Care and Discharge Obligations on a Hospital Beyond the Period of Time for Which the Individual Was Involuntarily Committed

Inova Health Sys. v. Grandis, 603 S.E.2d 876 (Va. 2004)

An individual was involuntarily committed to a Virginia hospital for a period of 180 days and discharged by the hospital about two-and-a­ half months later.  A circuit court judge that affirmed the individual's initial commitment subsequently held a number of hearings and entered various orders relating to the individual's involuntary commitment, including an order that the hospital had an obligation to care for the individual and to advise the local county department of human development if it chose to discharge the patient.  This order was entered over 10 months after the circuit court affirmed the commitment and over 11 months after the initial commitment order...

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

Lawsuit Can Continue that Alleges Inadequate Mental Health Care Contributed to Suicide of Inmate in Virginia Maximum Security Prison

Simmons v. Johnson, No. 7:05 CV 00053, 2005 WL 2671537 (W.D. Va. Oct. 20, 2005)

The United States Supreme Court, in Estelle v. Gamble, 429 U.S. 97 (1976), established that the Eighth Amendment is violated when prison officials are deliberately indifferent to an inmate's serious illness or injury.  This ruling has been widely interpreted to encompass an inmate's serious mental health needs as well.  When an inmate commits suicide, a lawsuit may be filed that asserts that the inmate's constitutional rights were violated because prison officials failed to provide the requisite adequate mental health services despite knowing of the inmate's mental health needs, and the absence of these services contributed to the inmate's suicide...

Found in DMHL Volume 25 Issue 2

Officials at Designated Hospital That Refused to Admit Emergency Detainee Can Be Held in Contempt, but Permitted to Refuse Admission if Hospital Lacks Adequate Space or Staff

In re Contempt of Wabash Valley Hosp., Inc., 827 N.E.2d 50 (Ind. Ct. App. 2005)

In a case characterized as exemplifying "a national trend," the Indiana Court of Appeals held that a trial court has the authority to determine that hospital officials violated the law when they refused to admit a man deemed mentally ill and dangerous and judicially  committed for a seventy-two-hour emergency detention.   However, the appellate court vacated a contempt order and ordered a rehearing because the trial judge failed to give hospital officials an opportunity to explain their decision to deny admission...

Found in DMHL Volume 25 Issue 1

Misrepresentations by Insurance Plan of Availability of Mental Health Benefits Can Not Serve as Basis for Consumer's Claim of Common-Law Fraud

Va. Acad. of Clinical Psychologists v. Group Hospitalization & Med. Servs., Inc., 878 A.2d 1226 (D.C. 2005)

Individuals contemplating enrollment in a behavioral managed care plan are typically provided a description of available mental health services.  When these services are not forthcoming following enrollment, they may file a legal claim against the administrators of the plans that asserts that the advertisements  and materials they were provided were misleading and thus fraudulent...

Found in DMHL Volume 25 Issue 1

States Can Limit the Number of Individuals with a Developmental Disability Participating in a Community Placement Medicaid Waiver Program Without Violating the ADA

Arc of Wash. State Inc. v. Braddock, 403 F.3d 641 (9th Cir. 2005)

The federal Medicaid Act furnishes funds to the states to help them provide care to eligible low-income persons.  Although states are not required to participate, if they accept this federal funding, which all fifty states do, they must comply with federal requirements and regulations.  Washington, like many states under the Medicaid waiver program, provides a variety of non-institutional care options for qualified persons with a developmental disability who desire to live at home or independently.   Medicaid, and in turn the State of Washington, limits the availability of these services to a given number of individuals (9,977 when this lawsuit was commenced) to control the program's costs, which are jointly paid by the federal and state governments. Because all available slots are full and because openings generally occur only when a person who is currently receiving home or community-based services dies or becomes ineligible for services (which occurs relatively infrequently), extended delays may occur before a qualified individual is able to obtain these services...

Found in DMHL Volume 25 Issue 1

Sovereign Immunity Bars ADA Suit Against a State for Failing to Fund Community­ Based Services Through Medicaid

Bill M. v. Neb. Dep't of Health & Human Servs. Fin. & Support, 408 F.3d 1096 (8th Cir. 2005)

In many states there is a shortage of community placements and services for individuals with a developmental disability, even though these states created an entitlement to these community programs under their Medicaid program. Because the absence of community programs may necessitate that such individuals be institutionalized, various lawsuits asserting these individuals' legal rights are being violated have been brought against states and state officials....

Found in DMHL Volume 25 Issue 1

Burden Placed on Parents to Show School District's Planned Services Will Not Provide the "Appropriate" Education to Which Children with Disabilities Are Entitled

Schaffer v. Weast, 126 S. Ct. 528 (2005)

A frequently litigated mental health question involves disputes over the nature of services owed children with disabilities by school systems under the federal Individuals with Disabilities Education Act (IDEA).  There are nearly seven million students in the country who receive special education services under the IDEA.  This law, which dates from 1970, requires school districts to provide a "free appropriate public education" and to work with parents to develop an individualized education program (IEP) for each student with a disability.  When parents and school officials cannot agree, an "impartial due process hearing," typically before an administrative law judge (ALJ), must be held...

Found in DMHL Volume 25 Issue 1

Tennessee Dismisses EMTALA Complaint in Suicide Case

Burd ex rel. Burd v. Lebannon HMA, Inc., 2010 U.S.Dist. LEXIS 124696 (M.D. Tenn. Nov. 23, 2010)

A United States District Court in Tennessee dismissed this lawsuit brought by the executor of Joshua Ashley Burd against Lebanon HMA, Inc. under the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C § 1395dd. Burd was initially brought to the emergency room after attempting suicide by hanging himself. Finding him to have high “suicide lethality” and testing positive for cocaine and opiates, Burd was committed to Middle Tennessee Mental Health Institute, a state mental health facility. A psychiatrist at the facility found him not to be a suicide risk and did not admit him. A police officer checking on his condition at home later that evening found an outstanding arrest warrant and learned that Burd had consumed two bottles of vodka. Believing he was a suicide risk, the officer returned Burd to the emergency room. Emergency room staff assessed him and determined he was suffering from acute situational anxiety, not an emergency medical condition, and discharged him. Burd was found dead the next morning from hanging. The trial court dismissed the EMTALA claim finding that the plaintiff had presented no proof of improper motive on behalf of emergency room staff. It found that there was no evidence that the decedent would have been assessed differently had he had health insurance. The court also found that if hospital staff does not have actual knowledge that an emergency medical condition exists, EMTALA does not apply. Any allegations related to medical malpractice must be decided in state court under state malpractice law.

Found in DMHL Volume 30 Issue 2

Class Action Filed Alleging Texas Violates ADA in Failing to Provide Communitybased Services

Steward v. Perry, No. 5:10-cv-01025 (W.D. Tex.)

Six named individuals residing in nursing facilities in Texas, the Arc of Texas, and the Coalition of Texans with Disabilities filed suit in December 2010 against the Governor, the Executive Commissioner of Health and Human Services and the Commissioner of the Department of Aging and Disability Services alleging that Texas is violating the Americans with Disabilities Act, § 504 of the Rehabilitation Act, Title XIX of the Social Security Act and the Nursing Home Reform Amendments.

The plaintiffs are alleging that each of the named individuals with a combination of intellectual disabilities and other conditions, such as cerebral palsy, epilepsy, or head injury, all qualify for community-based services and supports and are seeking class action certification for the 4500 others in Texas nursing facilities and the thousands more at risk of institutionalization. They are alleging that 45,756 individuals are on Texas’ waiting list for Home and Community-Based Services Waiver with Texas ranking 49th out of the 50 states in providing community-based care. They further allege that Texas has failed to provide PASARR Level II screenings to the plaintiffs or to provide “specialized services” required by Medicaid. Ironically, the plaintiffs argue that individuals residing in Texas’ 13 state-operated supported living centers under DOJ consent decree receive active treatment and better services than they do, noting that their scope of specialized services is limited to physical, occupational and speech therapy. The plaintiffs Arc and Coalition of Texans with Disabilities are suing on their own behalf and on behalf of their members.

The defendants filed a Motion to Dismiss on March 8, 2011 arguing, among other things, that the plaintiffs lack standing to bring this action, that a portion of their complaint is time barred and that the Acts they allege the defendants are violating convey no private right of action upon the plaintiffs.

Found in DMHL Volume 30 Issue 3