Termination of Parental Rights of Woman Who Suffered from Situational Anxiety Disorder Rejected

Richmond Dep't of Soc. Servs. v. Enriquez, No. 1650-03-2 (Va. Ct. App. July 13, 2004)

The Virginia Court of Appeals refused to terminate a woman's parental rights after concluding that there was sufficient evidence to establish that the woman had made substantial efforts to remedy the conditions that led to the placement of her son in foster care.  The court cited the woman's attendance at recommended programs and services, her independently obtaining one-on-one sessions with the director of community violence services, and her participation in individual counseling, even after an initial ruling terminated her parental rights....

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

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

Sufficient Facts Alleged Regarding Suicide of Detainee to Permit "Deliberate Indifference" Lawsuit Targeting Jail Staff to Continue

Short v. McEathron, No. Civ.A.5:04 CV 00043, 2004 WL 2475561 (W.D. Va. 2004)

Suicides and suicide attempts by jail and prison inmates with a mental disorder are unfortunately not a rare event.  Following an inmate suicide, a lawsuit may be filed that asserts that correctional officials did not take adequate steps to prevent the suicide.  The United States Supreme Court in Farmer v. Brennan, 511 U.S. 825, 848 (1994), established that a prison official may be held liable under federal law if the official "knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it."  Such a complaint is widely referred to as a "deliberate indifference" claim...

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

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

Physician at Virginia Mental Health Facility Ordered Reinstated

Horner v. Dep't Mental Health, 597 S.E.2d 202 (Va. 2004)

Ending a long-standing employment dispute at Western State Hospital, the Virginia Supreme Court ordered the reinstatement of a physician who had worked for six years as an internist at the state-run facility.  The physician had been fired on May 15, 2001.  He claimed he was fired for complaining publicly about the quality of psychiatric care at the hospital, while the state asserted he was fired for failure to follow a supervisor's instructions and for violating state policy regarding the disclosure of personnel records...

Found in DMHL Volume 24 Issue 1

Downward Departure in Sentencing Under Federal Sentencing Guidelines for Defendant with Diminished Mental Capacity Prohibited When Possibility Exists That Defendant May Discontinue Medication

United States v. Riggs, 370 F.3d 382 (4th Cir. 2004)

Under the federal sentencing guidelines as they currently exist, a federal judge can reduce a sentence below the applicable guideline range "if the defendant committed the offense while suffering from a significantly reduced mental capacity."   However, this reduction may not occur if (1) the reduced mental capacity was caused by the voluntary use of drugs or other intoxicants, (2) "the facts and circumstances of the defendant's offense indicate a need to protect the public because the offense involved actual violence," or (3) the defendant's criminal history indicates a need to incarcerate the defendant to protect the public...

Found in DMHL Volume 24 Issue 1

Paraphiliac Pedophile's Acceptance of Responsibility for the Sexual Exploitation of Children Is Grounds for Sentence Reduction

United States v. Kise, 369 F.3d 766 (4th Cir. 2004 )

The future of the federal sentencing guidelines is somewhat in doubt following the U.S. Supreme Court's recent ruling in Blakely v. Washington, 124 S. Ct. 2531 (2004).  Under the guidelines as they currently exist, however, a trial judge in the federal system is to consider a number of factors in deciding whether to enhance or reduce a convicted defendant's sentence.  The Fourth Circuit Court of Appeals held that a defendant who admitted to and attempted to remedy his mental disorder should be granted a sentence reduction...

Found in DMHL Volume 24 Issue 1

All Defendants Sentenced to Death Entitled to Have a Jury Determine Non-Frivolous Claims That They Are Mentally Retarded

Burns v. Warden of Sussex I State Prison, 597 S.E.2d 195 (Va. 2004)

In response to the U.S. Supreme Court ruling in Atkins v. Virginia (2002) that bans sentencing a mentally retarded individual to death, the Virginia General Assembly in 2003 established procedures for determining mental retardation in capital murder trials.  This legislation established separate procedures for defendants whose trials occurred after the effective date of this legislation (i.e., new trials) and for defendants whose trials had previously been concluded.  For new trials, it is clear that this legislation allows a jury to decide whether a capital murder defendant is mentally retarded.  For defendants whose trials were completed prior to the effective date of the legislation, it was unclear whether those who raise a non-frivolous claim are entitled to have a jury decide the issue...

Found in DMHL Volume 24 Issue 1

A Pair of Judicial Rulings Order Forcible Treatment of Non-Dangerous Criminal Defendants to Restore Competence to Stand Trial

United States v. Evans, No. 102CR00136, 104M00014, 2004 WL 533473 (W.D. Va. Mar. 18, 2004)

In December of 2003, a federal district court in Virginia denied a request to forcibly medicate a criminal defendant to restore him to competence to stand trial.  United States v. Evans, 293 F. Supp. 668 (W.D. Va. 2003). The court concluded that the government's interest in having the defendant treated over his objection was not sufficiently strong to outweigh the defendant's right to refuse such treatment.  This case was noteworthy in that it was one of the first applications of the U.S. Supreme Court's decision in Se// v. United States, 539 U.S. 166 (2003), which permits, under certain circumstances, the medication over objection of criminal defendants even when the defendant is not a danger to self or others...

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

Ruling That Dismissed Substantive Due Process Challenge to Sex Offender Registration and Notification Law Not Disturbed

Doe v. Tandeske, 361 F.3d 594 (9th Cir. 2004), cert. denied, 125 S. Ct. 56 (2004)

Every state requires that various convicted sex offenders register with a state entity, typically a law enforcement agency, upon the completion of their prison term. This information is generally made available to the community by some means, which in many states, including Virginia, involves posting the information on an Internet website...

Found in DMHL Volume 24 Issue 1

Missouri Court Rules Individual Need Not Be Competent Before a Sexually Violent Predator Commitment Hearing Can Be Held; Supreme Court Declines Review

Missouri v. Kinder, 129 S.W.3d 5 (Mo. Ct. App. 2003), cert. denied, 125 S. Ct. 480 (2004)

Many states in recent years have enacted laws that permit convicted sexual offenders to be civilly committed as a sexually violent predator upon the completion of their criminal sentence.  It is well established that a criminal defendant must be competent to stand trial before the defendant can be convicted...

Found in DMHL Volume 24 Issue 1

Low IQ Score a Relevant Mitigating Factor at Capital Sentencing, Even If It Is Not Directly Connected to the Crime and No Other Evidence of Impairment Is Presented

Tennard v. Dretke, 124 S. Ct. 2562 (2004)

In Penry v. Lynaugh, 492 U.S. 302 (1989), the U.S. Supreme Court established that a defendant's mental retardation is a potential mitigating factor at capital sentencing.  Under Texas law, however, a finding of mental retardation was limited to where there is subaverage general intellectual functioning, concurrent deficits in adaptive behavior, and onset during the early development period...

Found in DMHL Volume 24 Issue 1

Andrea Yates Found Not Guilty by Reason of Insanity After Retrial

Yates Is Not Guilty by Reason of Insanity, WASH. POST, July 27, 2006, at A03; Rick Casey,  Yates Jury Wiser than Hired Guns, Hous. CHRON., Aug. 2, 2006

At roughly the same time that the United States Supreme Court was issuing its ruling in Clark v. Arizona, 126 S. Ct. 2709 (2006), that states can limit the scope of their insanity defense, a Texas jury returned a verdict that Andrea Yates was not guilty by reason of insanity for drowning her young children in their bathtub at home five years ago. Texas, like Arizona, employs an insanity defense that is limited to what the Supreme Court refers to as the moral incapacity test (i.e., that as a result of mental illness, the defendant did not know right from wrong)...

Found in DMHL Volume 25 Issue 2

Parent May Be Denied Access to Child's Mental Health Records During Divorce and Custody Proceedings

In re Berg, 886 A.2d 980 (N.H. 2005)

Children may be receiving mental health services while their parents are in the process of becoming divorced.  During a custody dispute, a parent may seek to gain access to a child's mental health records in an effort to establish through the discussions between the child and the child's therapist that the other parent has engaged in inappropriate conduct. Although parents generally have a right to access the mental health records of their children, the New Hampshire Supreme Court ruled that this right is significantly limited when asserted in connection with divorce proceedings and custody disputes...

Found in DMHL Volume 25 Issue 2

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