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

Time Period File Malpractice Claim Asserting She Was Not Warned Mental Illness Medication Might Cause Birth Defects Begins at Time of Child's Birth, Not When Ultrasound First Showed Birth Defects

Bailey v. Khoury, 891 So. 2d 1268 (La. 2005)

Every jurisdiction  imposes a limit on how long individuals can wait to file a lawsuit that claims they were injured as the result of the malpractice of a health care provider.  This limit, which is typically one or two years in length, generally runs from the time individuals discover they have been injured. If they wait beyond this time, they are generally precluded from pursuing their claim...

Found in DMHL Volume 24 Issue 2

Connecticut Physicians Who Submitted Reports About the Competence of a Psychiatrist to Practice Safely Were Not Entitled to Absolute Immunity

Chadha v. Charlotte Hungerford Hosp., 865 A.2d 1163 (Conn. 2005)

State licensing boards or a corresponding legislatively designated agency typically have the authority to investigate licensed practitioners and to discipline them for unprofessional conduct.  However, these boards and agencies generally have limited resources to engage in routine surveillance of the activities of licensed practitioners and generally do not undertake an investigation unless a report of unprofessional conduct has been filed with them...

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

Mandatory Child Abuse Reporting Requirements in Kansas Do Not Apply to Sex Between Age-Mates When Injury Is Not Suspected

Aid for Women v. Foulston, 327 F. Supp. 2d 1273 (D. Kan. 2004)

Kansas, like all states, mandates that suspected child abuse or neglect, including sexual abuse, be reported to a designated state agency.  Under the relevant Kansas statute, a wide range of professional groups, including mental health professionals, must file a report if there is reason to suspect that a child has been injured as the result of sexual abuse, as well as physical, mental, or emotional abuse or neglect.  A failure to submit a required report is punishable as a misdemeanor...

Found in DMHL Volume 24 Issue 2

Mandatory Disclosure of Sexual History in Conjunction with a Treatment Program for a Convicted Sexual Offender as a Condition of Probation Struck Down

United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005)

The courts continue to wrestle with the nature of the conditions that can be placed on sexual offenders who are permitted to return to the community.  An individual convicted of possessing child pornography after he ordered a child pornography video over the Internet was initially sentenced to five years probation....

Found in DMHL Volume 24 Issue 2

Requiring an Employee to Undergo a Psychological Test as a Condition of Employment Does Not Violate the Fourth Amendment Because Such Tests Do Not Constitute a "Search"

Greenawalt v. Indiana Dep't of Corr., 397 F.3d 587 (7th Cir. 2005)

Psychological examinations are required as a condition of employment in a number of fields. Because the exams may explore relatively private and sensitive matters, various employees have filed lawsuits to exempt them from such requirements.  In Indiana, a research analyst objected when officials with the Indiana Department of Corrections told her that to keep her job she would have to submit to a psychological exam.  The test lasted two hours and was acknowledged to inquire into details of her personal life.  The research analyst filed a federal claim that the test by state officers violated her Fourth Amendment right to be free from unreasonable searches and seizures by the government...

Found in DMHL Volume 24 Issue 2

Peer Review Records Must Be Given to P&A Investigating Possible Incidents of Abuse and Neglect Notwithstanding a State Law That Prohibits Their Disclosure

Conn. Office of Prot. & Advocacy for Persons with Disabilities v. Kirk, 354 F. Supp. 2d 196 (D. Conn. 2005)

Congress enacted in 1986 the Protection and Advocacy for Mentally Ill Individuals Act (PAMll) because of concerns that (1) individuals with a mental illness are vulnerable to abuse, neglect, and serious injury and (2) state systems for monitoring the rights of these individuals varied widely and were frequently inadequate.  To receive federal funds supporting the care of such individuals, states are required to have in place an independent protection and advocacy system (P&A) that investigates reported or likely incidents of abuse and neglect.  PAMll provides the agency with access to "all records of . . . any individual," including "reports prepared by any staff of a facility rendering care and treatment."...

Found in DMHL Volume 24 Issue 2

Pedophilia with a Personality Disorder Sufficient Basis for Involuntary Commitment as a Sexually Violent Predator

Kilgore v. Garris, No. LS-1224-1, 2004 WL 3001162 (Va. Cir. Ct. 2004)

A Virginia Circuit Court judge ruled that an individual fit the definition of a sexually violent predator provided by the Virginia Code and ordered his involuntary confinement.  Under the relevant statute, confinement as a sexually violent predator is limited to an individual who "because of a mental abnormality or personality disorder, finds it difficult to control his predatory behavior which makes him likely to engage in sexually violent acts." VA. CODE § 37.1-70.1...

Found in DMHL Volume 24 Issue 2

Lawsuits Against Law School for Student Shootings Settled

Lawsuits  over Appalachian School of Law Shootings Settled, 19(32) VA. LAW. WKLY. 1 (Jan. 10, 2005)

Four lawsuits brought against the Appalachian School of Law in the wake of the 2002 shooting spree by Peter Odighizuwa, a student who went on a rampage shortly after being asked to withdraw from school due to his poor academic performance, have been settled for $1 million...

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

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

Defendant Facing Capital Punishment Can Argue That "Flynn Effect" and Standard Error of Measurement Should Be Taken Into Account When Determining Whether IQ Score Established He Is Mentally Retarded

Walker v. True, 399 F.3d 315 (4th Cir. 2005)

The U.S. Supreme Court ruled in Atkins v. Virginia (2002) that it is unconstitutional to impose the death penalty on a defendant who is mentally retarded.  However, the Supreme Court left it to the states to define what constitutes mental retardation in this context. Virginia responded by enacting legislation that requires the defendant to establish that the disability originated before the age of 18, that it is characterized by a score two standard deviations below the mean on an approved standardized test, and significant limitations exist in the defendant's adaptive behavior. VA. CODE § 19.2-264.3: 1.1....

Found in DMHL Volume 24 Issue 2

Parental Rights Terminated for Failure to Remedy Mental Health, Substance Abuse, and Domestic Violence Issues that Adversely Affected Ability to Properly Parent Children

Carr v. James City County Div. of Soc. Servs., Nos. 0339-04-1 , 0499-04-1 , 2004 WL 1822374 (Va.
Ct. App. 2004)

It is not unusual for mental illness and substance abuse to figure prominently in a decision to remove a child from the custody of a parent, as well as in a decision to ultimately terminate parental rights. The Virginia Court of Appeals ruled that a mother's failure to remedy issues associated with mental health, substance abuse, and domestic violence that adversely affected her ability to properly parent her children provided a sufficient basis for terminating the mother's parental rights. The court indicated that the focus is not whether steps have been taken to remedy these issues, but what has been achieved as a result of these steps...

Found in DMHL Volume 24 Issue 2

Judge Cannot Compel Medical Exam and Evaluation of Depressed Woman When She Is Capable of Exercising Informed Consent

Cavuoto v. Buchanan County Dep't Soc. Servs., 605 S.E.2d 287 (Va. Ct. App. 2004)

A Virginia law authorizes judicial orders compelling individuals to submit to a medical examination and evaluation (VA. CODE § 37.1- 134.21). A circuit court judge issued such an order for a fifty-one-year-old woman who was suffering from morbid obesity and depression and who had been bedridden for more than two years, following a fire in the house in which she and her husband resided...

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

Virginia Supreme Court Clarifies Scope and Operation of Sexually Violent Predator Commitment Law

Townes v. Commonwealth, 609 S.E.2d 1 (Va. 2005)

Legislation that permits prison inmates to be involuntarily hospitalized as a sexually violent predator (SVP) upon the completion of their prison term has been widely enacted across the country.  Courts asked to review this legislation have generally upheld it.  On the few occasions in which a court has read this legislation in such a way that its scope and impact is narrowed, legislators have tended to respond by enacting additional legislation that clarifies that they intended it to have a broader reach...

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

Grandparent Visitation Order Based on Diagnostic Evaluation of Parent, Children, and Grandparents Upheld; Ruling Not Disturbed

Moriarty v. Bradt, 827 A.2d 203 (N.J. 2003), at http://lawlibrary.rutgers.edu/ courts/supreme/a-145-01.opn.html,  cert. denied, 124 S. Ct. 1408 (2004)

Historically, grandparents had no legal right to petition for court-ordered visitation with their grandchildren.  Today, every state has enacted legislation that authorizes such orders under certain circumstances despite the objection of the children's parents. Although the U.S. Supreme Court in Troxel v. Granville (2000) struck down what it characterized as the "breathtakingly broad" grandparent visitation statute enacted by the State of Washington, it did not find such statutes to be inherently unconstitutional and its deeply splintered opinion provided little guidance to courts reviewing the enactments of other states...

Found in DMHL Volume 24 Issue 2

Ruling that Enhanced Sentence of Psychiatrist and Office Manager for Testifying Falsely at Fraud Trial, Without Jury Having Made This Factual Finding, Reversed, Remanded for Further Consideration

United States v. Mitrione, 357 F.3d 712 (7th Cir. 2004), vacated & remanded for further consideration in light of United States v. Booker (2005).  United States v. Booker, 125 S. Ct. 738 (2005)

Under the Federal Sentencing Guidelines, the sentence authorized by a jury verdict could be enhanced by.the presiding judge at the sentencing hearing if the judge found that additional facts delineated by the guidelines existed. In United States v. Booker (2005), the Supreme Court struck down these guidelines to the extent that they imposed binding requirements on sentencing judges but were based on facts that had not been determined by a jury...

Found in DMHL Volume 24 Issue 2