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

Jury Verdicts Split on Medical Malpractice Claims of Negligent Administration of Pain­ Relief Medicine by Psychiatrists

Estate of Feury v. Member (Spotsylvania Co. Circ. Ct. 2004)

The family of a woman who died of an overdose of a strong pain-relief medicine given to her by a psychiatrist was awarded $1.4 million by a Virginia jury. The woman, who suffered from menstrual cramping and endometriosis, obtained four Fentanyl patches from the psychiatrist, allegedly without proper instructions, warning, medical exam, or a prescription. At the time she obtained the patches, the woman was an administrative clerk at the psychiatrist's clinic and in the process of obtaining a divorce from him. The woman was apparently unaware of the strength and potency of Fentanyl, a Schedule II drug, and applied all four patches simultaneously plus a heating pad, which increased the circulation of the medication. Criminal charges were subsequently brought against the psychiatrist and he was found guilty of prescribing a Schedule II narcotic without a written prescription...

Found in DMHL Volume 24 Issue 1

Physician Employed as a "Physician Extender" by a State Psychiatric Facility Is Not Protected by Sovereign Immunity and Thus May Be Sued for Malpractice

McCloskey v. Kane, 604 S.E.2d 59 (Va. 2004)

Unless waived, the state is protected by the doctrine of sovereign immunity from malpractice claims. Employees of the state may be similarly protected. In Virginia, the greater the control of an employee's actions by the Commonwealth, the greater the likelihood of immunity. However, state­ employed physicians may not be entitled to this immunity because they must exercise their professional skill and judgment when treating patients and thus tend not to be subject to the control and direction of others. James v. Jane, 282 S.E.2d 864 (Va. 1980)...

Found in DMHL Volume 24 Issue 1

Employee Who Was Sexually Assaulted at a Correctional Facility for Inmates with Psychiatric Problems Can Only Turn to Workers' Compensation for Recovery

Gilbert v. Commonwealth,  No. 03-199 (Va. Cir. Ct. June 3, 2004)

In general, when employees are injured in the course of work, they must turn to a state-run workers' compensation plan for recovery. These plans are intended to ensure compensation in a quick and reliable manner and do not require employees to show that the employer was at fault in connection with the injury. At the same time, the worker's compensation plan also places limitations on the size of the damages that can be recovered...

Found in DMHL Volume 24 Issue 1

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

Elwood v. Morin, No. 02- 56077, 2004 WL 26713 (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. The U.S. Supreme Court declined to review a ruling by the Ninth Circuit that affirmed the dismissal of a lawsuit that alleged that a therapist had participated in a conspiracy to deprive a mother of the custody of her children...

Found in DMHL Volume 24 Issue 1

Arkansas Court Finds That Nursing Home Negligence and Malpractice Warrants Significant Compensatory and Punitive Damages; Supreme Court Declines Review

Advocat, Inc. vs. Sauer, 111 S.W.3d 346 (Ark. 2003), cert. denied, 124 S. Ct. 532 (U.S. 2003)

 

A nursing home resident in Arkansas suffering from Alzheimer's  Disease died from severe malnutrition and dehydration.  There was considerable evidence that the resident did not receive proper care and suffered considerably; that the misconduct involved repeated actions; that the facility, part of a large chain of assisted living facilities, was short-staffed to maximize profits and this practice continued even after complaints by staff members, patients, and family members; and that efforts were made to conceal deficiencies, including bringing in extra employees on state-inspection days...

Found in DMHL Volume 24 Issue 1

Hospital and Physician Liable Under EMTALA for Transferring Suicidal and Intoxicated Patient to Jail for Protective Custody

Carlisle v. Frisbie Mem'I Hosp., 888 A.2d 405 (N.H. 2005)

A recently completed national survey of hospitals found that 55% of all hospital admissions  (excluding  pregnancy  and childbirth)  in 2003 entered the hospital  through the hospital's emergency  department, a total of 16 million patients.  The fifth most­ often given reason for admission was mental health and substance abuse disorders  (5.8% or nearly 1,000,000 patients, with 387,500 patients admitted for the treatment of mood disorders).   Anne Elixhauser & Pamela Owens, Reasons for Being Admitted to the Hospital  Through the Emergency  Department, 2003, Healthcare Cost and Utilization Project (H·CUP) (Feb. 2006), http://www.hcup­ us.ahrq.gov/reports/statbriefs.jsp...

Found in DMHL Volume 25 Issue 2

Security Company Can Be Held Liable for Patient's Attack on Physician, but Public Entity that Designed or Maintained the Conditions Within the Facility Can Not

Facility Liability:
Ursua v. Alameda County Med. Ctr., No. C 04-3006 BZ, 2005 WL 3002175 (N.D. Cal. Oct. 27, 2005)

County Liability:
Ursua v. Alameda County Med. Ctr., No. C 04-3006 BZ, 2005 WL 3002175 (N.D. Cal. Nov. 8, 2005)

Security Agency Liability:
Ursua v. Alameda County Med. Ctr., No. C 04-3006 BZ (N.D. Cal. Nov. 9, 2005)

Although incidents of violence are relatively infrequent in facilities that provide housing to individuals with mental illness, protecting the safety of residents and staff is a continuing concern.  After a physician was killed by a patient who had been admitted and held pursuant to California law for a seventy-two­ hour evaluation as a person who is dangerous or gravely disabled as the result of a mental disorder, family members of the physician sued the facility where the attack occurred, the County responsible for the facility, and the privately owned entity that had contracted to provide security services at the facility...

Found in DMHL Volume 25 Issue 2

Mental Illness Can Serve as a Basis for Discharging Student Loans

Reynolds v. Pa. Higher Educ. Assistance Agency, 425 F.3d 526 (8th Cir. 2005)

Under federal bankruptcy law, an individual can be excused from repaying student loans if the debt "will impose an undue hardship on the debtor."  Ordinarily, the focus is on whether repaying the debt will not prevent a minimal standard of living after factoring in the individual's current and future financial resources and expenses.  The Eighth Circuit of the U.S. Court of Appeals ruled that the impact of the individual's mental health should also be taken into account when (1) the individual's mental health affects her past, current, and future earnings and (2) when the stress of the debt is likely to affect the individual's mental health adversely, causing an even greater decline in her earnings...

Found in DMHL Volume 25 Issue 2

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

Mental Health Provider Engaged in an "Inappropriate and Extraprofessional Relationship" with a Client Can Not Be Sued for Alienating the Client's Affections for a Spouse

Doe v. Swelling, 620 S.E.2d 750 (Va. 2005)

When a mental health provider has become sexually involved with a client, the client may have a claim for malpractice.  If this relationship results in discord between the client and the client's spouse, including divorce, the spouse may assert a similar right to sue the therapist...

Found in DMHL Volume 25 Issue 2

Monetary Damages Can Be Recovered from a State Under the ADA When Disability Discrimination Also Violates the Constitution

United States v. Georgia, 126 S. Ct. 877 (2006)

Title II of the Americans with Disabilities Act of 1990 (ADA) places limits on the ability of public entities, including states, to exclude or deny benefits to an individual with a mental or physical disability.  Although Title II authorizes private citizens to file lawsuits seeking to recover monetary damages from public entities that violate the ADA, the Eleventh Amendment of the federal Constitution recognizes the sovereign immunity of the states and generally provides them with immunity from such suits...

Found in DMHL Volume 25 Issue 2

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

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

Administering the MMPI to Prospective Employees Violates the ADA

Karraker v. Rent-A­ Center, Inc., 411 F.3d 831 (7th Cir. 2005)

Concerned that individuals with disabilities often face barriers to joining the workforce based on unfounded stereotypes and prejudice, Congress in enacting the Americans With Disabilities Act of 1990 (ADA) limited the ability of employers to use "medical examinations" as a condition of employment. The ADA prohibits the use of pre-employment medical tests, the use of medical tests for existing employees that lack job-relatedness and business necessity, and the use of medical tests that screen out (or tend to screen out) people with disabilities.  An Illinois employer asked prospective employees 502 questions from the Minnesota Multiphasic Personality Inventory (MMPI) as part of a battery of tests.  The employer claimed that the MMPI simply measured potentially relevant personality traits and thus was not a prohibited medical exam...

Found in DMHL Volume 25 Issue 1

Commonwealth Pays $85,000 After Resident at Geriatric-Psychiatric Facility Attacks Another Resident; Greater Number of Violent Attacks on Geriatric Residents in General Linked to Increase in Lawsuits

Fink, Ex'r Estate of Sarah Ann Lipscomb v. Commonwealth, Med-ma/ Death Settles for $85,000 Prior to Trial, 19 VA. LAW. WKLY. 1204 (Apr. 25, 2005)

A medical malpractice claim brought against the Commonwealth  of Virginia following the death of a resident at a state-operated geriatric/psychiatric  facility was settled prior to trial for $85,000.  Two days after being admitted, the resident was attacked by another resident, suffered a cerebral hematoma from being knocked down, and died a week later of complications from her injuries.  Family members in their lawsuit alleged the Commonwealth failed to provide a safe environment and inadequately supervised the aggressive resident, especially in light of evidence that staff knew or should have known about the aggressive resident's threatening behavior and violent tendencies. Depositions revealed facility staff were aware of previous acts of violence by the aggressive resident and the facility had the ability to separate and restrict aggressive residents from coming into unsupervised contact with other residents.  Fink, Ex'r Estate of Sarah Ann Lipscomb v. Commonwealth, Med-ma/ Death Settles for $85,000 Prior to Trial, 19 VA. LAW. WKLY. 1204 (Apr. 25, 2005)...

Found in DMHL Volume 25 Issue 1

Statute of Limitations Held to Bar Personal Injury Suit Against Catholic Diocese Based on 25-Year-Old Recovered Memories of Sexual Abuse

Mcconville v. Rhoads, No. L04-422, 2005 WL 1463850 (Va. Cir. Ct. June 8, 2005)

A man who alleged that he recently recovered memories of sexual abuse some twenty-five years earlier by a nun who taught at his Catholic school had his lawsuit against the Catholic Diocese of Richmond dismissed because the claim was barred by the Virginia statute of limitations on filing personal injury claims.  In Virginia, a lawsuit to recover for personal injuries generally must be filed within two years from the time the harm occurred, although if the injured person is a minor the two-year period does not begin to run until the person reaches the age of eighteen...

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

High Court of New York Affirms Dismissal of Complaint Focused on Sexual Relationship Occurring During Pastoral Counseling; Ruling Not Disturbed

Wende C. v. United Methodist Church, 827 N.E.2d 265 (N.Y. 2005), cert. denied, 126 S. Ct. 346 (2005)

A married couple obtained individual counseling services from their church pastor. In the course of this counseling, the wife and the pastor developed a sexual relationship that lasted several months.  After the husband discovered the affair, the couple filed a suit against the pastor and the church for sexual battery (for unwanted touching) and for clergy malpractice stemming from a breach of fiduciary duties.  Because the pastor was not licensed as a professional counselor, a complaint could not be filed with a licensing body.  The New York Court of Appeals ruled that the lawsuit could not be pursued...

Found in DMHL Volume 25 Issue 1

Coverage Denied Under Homeowner's Insurance Policy Because Acts That Resulted from Mental Illness Considered "Intentional" Acts; Ruling Not Disturbed

Hastings Mut. Ins. Co. v. Rundell, No. 238549, 2003 WL 21508515 (Mich. Ct. App. July 1, 2003), cert. denied, 126 S. Ct. 372 (2005)

For no apparent reason, a married couple's son shot a woman outside a health care facility.  They and their son, who lived with them, were sued by the shooting victim.  They attempted to rely on their homeowners' insurance policy to cover damages that might be awarded to the shooting victim.  The insurance company responded that the policy did not apply because it specifically excluded intentional acts from coverage.  The family argued the policy did apply because their son suffered from schizophrenia at the time and their son's actions were not intentional...

Found in DMHL Volume 25 Issue 1