Ninth Circuit Refuses to Recognize "Dangerous Patient" Exception to Federal Psychotherapist-Patient Privilege

United States v. Chase, 340 F.3d 978 (9th Cir. 2003); 72(9) U.S. Law Week  1145-46 (Sept. 16, 2003)

The Ninth Circuit of the U.S. Court of Appeals ruled that although therapists have a duty to warn authorities about patients' threats to inflict serious harm on others, this does not mean therapists may testify in subsequent federal court proceedings about these statements.  In this case, the defendant suggested during therapy sessions that he might injure FBI agents and other individuals. The psychotherapist alerted law enforcement personnel and, after the psychotherapist testified at trial about the defendant's threats, the defendant was convicted of threatening to murder federal agents....

Found in DMHL Volume 23 Issue 1

HMOs Cannot Recover from Tobacco Industry Costs of Treating Members' Smoking-Related Illnesses

Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753 (8th Cir. 2003); 12(38) BNA's Health Law Reporter  1472-73 (Sept. 25, 2003)

The Eighth Circuit ruled health maintenance organizations (HMOs) cannot recover from tobacco companies the costs of treating its subscribers' tobacco-related illnesses. Four Minnesota HMOs had sued several tobacco manufacturers and associated groups, alleging the tobacco industry conspired to mislead the public and the health care industry regarding the addictive effects of tobacco use and that the HMOs suffered indirect injury because they were required to assume the medical costs their members sustained as a result of their tobacco use. The court determined the HMOs failed to provide adequate evidence of the damage they suffered in paying for smoking-related illnesses because their expert witness presented only a "speculative" calculation of the costs they incurred....

Found in DMHL Volume 23 Issue 1

Ban on Selling "Graphically Violent" Videos to Minors Unconstitutional

Interactive Digital Software Ass'n v. St. Louis County, 329 F.3d 954 (8th Cir. 2003); 71(48) U.S. Law Week 1771 (June 17, 2003)

The Eighth Circuit ruled that a county ordinance that banned making "graphically violent" video games available to minors violates the First Amendment.  The county had argued that the ban was necessary to prevent psychological harm to youth and to aid parents in protecting their children's well being.  The court determined that video games are speech entitled to full First Amendment  protection and therefore the restrictions on this speech had to satisfy "strict scrutiny."  The court concluded the first rationale offered by the county for this restriction was insufficiently documented and the second rationale was inadequate....

Found in DMHL Volume 23 Issue 1

Fired Employee Entitled to FMLA Leave if Change in Behavior Sufficient to Notify Reasonable Employer that Employee Mentally Unable to Work or Give Notice of Need for FMLA Leave

Byrne v. Avon Products Inc., 328 F.3d 379 (7th Cir. 2003); 71(44) U.S. Law Week 1708-09 (May 20, 2003)

The Seventh Circuit ruled an employee should have been given leave under the Family and Medical Leave Act (FMLA) rather than being fired if a change in the employee's behavior was sufficient to notify a reasonable employer that the employee (1) had a serious health condition or (2) was mentally unable to work or give notice of his or her need for FMLA leave. Under FMLA, advance notice of the need for leave is required unless it is not "feasible."  In this case an employee was fired for sleeping on the job during the two weeks preceding a period of hospitalization for depression. After two months of treatment the employee was ready to return to work but the employer refused to take him back...

Found in DMHL Volume 23 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

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

Fourth Circuit Rejects Argument Capital Defendant Received Ineffective Assistance of Counsel on Voluntary Intoxication and Insanity Defenses and Alford Plea

Reid v. True, 349 F.3d 788 (4th Cir., 2003)

The Fourth Circuit rejected a Virginia capital defendant's argument he received ineffective assistance of counsel because counsel allegedly failed to adequately investigate and advise the defendant on a voluntary intoxication defense, an insanity defense, and entering an Alford plea. The defendant, who claimed to have no memory of the crime, was convicted pursuant to his Alford plea of murdering an 80-year-old woman. Under an Alford plea, a defendant pleads guilty even though he is unwilling or unable to admit his participation in the crime....

Found in DMHL Volume 23 Issue 1

Juvenile Adjudications Can Count as "Prior Conviction" and Enhance Sentencing Under Federal Law

United States v. Jones, 332 F.3d 688 (3d Cir. 2003); 72(1) U.S. Law Week 1003-04 (July 8, 2003)

The Third Circuit ruled a juvenile adjudication can count as a "prior conviction" for purposes of enhancing sentencing under federal law if the adjudication was based on a proceeding that included the privilege against self­ incrimination and rights to notice, counsel, confrontation, and proof beyond a reasonable doubt.  The court determined the absence of a right to a jury trial in the juvenile proceeding was not dispositive because a bench trial provided sufficient reliability to the outcome. In so ruling, the court agreed with the Eighth Circuit but disagreed with the Ninth...

Found in DMHL Volume 23 Issue 1

Internet Sites Can Include Home Addresses of Sex Offenders

A.A. v. State, 341 F.3d 206 (3d Cir. 2003); 72(8) U.S. Law Week 1120-21 (Sept. 9, 2003)

The Third Circuit ruled a sex offender's constitutional privacy rights were not violated by an amendment to New Jersey's Megan's Law that makes convicted sex offenders' home addresses available to the public on the Internet.  Prior to the amendment, home addresses were only available to residents of the counties where the offenders lived...

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

Health Insurer Not Entitled to Recover Subrogation Claims for Deceptive Tobacco Industry Marketing Activities but May Be Able to Recover on Direct Claim

Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris USA Inc., 344 F.3d 211 {2d Cir., 2003); 12(38) BNA's Health Law Reporter 1473-74 (Sept. 25, 2003)

The Second Circuit ruled a health insurer was not entitled to recover over $11.8 million on subrogation claims associated with treating the tobacco-related illnesses of the individuals it insured. The insurer argued the tobacco companies engaged in a scheme to distort public knowledge of the risks of smoking and this behavior resulted in the insurer paying increased costs for medical services provided to subscribers with smoking-related medical conditions. The court determined the insurer failed to adequately define the identities and claims of those individuals whose rights it was asserting and thus this claim must be dismissed...

Found in DMHL Volume 23 Issue 1

Mandatory Public School Health Education Classes Upheld

Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003); 71(50) U.S. Law Week 1805-06 (July 1, 2003)

The Second Circuit ruled parents do not have a fundamental right to object to a requirement that their children attend health education classes at their public school.  A father objected to his child's required attendance at a Connecticut seventh grade health education class covering alcohol, drugs, tobacco, family life, and AIDS education.  The father asserted he was exercising his rights and those of his son in pursuing home schooling concerning "health, morals, ethical and personal behavior."  The child was excused from the family life and AIDS education portions of the class but not the rest of the curriculum.  The father filed suit claiming that this requirement violated his due process and free exercise of religion rights. The Second Circuit determined a parent does not have a fundamental right to tell a public school what his or her child will and will not be taught. As a result, the state need only establish a rational basis for its mandatory curriculum. Because the father did not dispute that mandatory attendance at health classes is reasonably related to the legitimate state interest in promoting child health and welfare, the court rejected the father's objection....

Found in DMHL Volume 23 Issue 1

Juvenile Curfew Ordinance Found Unconstitutional

Ramos v. Town of Vernon, 331 F.3d 315 (2d Cir. 2003); 71(48) U.S. Law Week 1772-73 (June 17, 2003)

The Second Circuit struck down the juvenile curfew ordinance of a town in Connecticut. The ordinance made it unlawful for any person under 18 to be in any public place between 11 p.m. and 5 a.m. Sunday through Thursday, or between midnight and 5 a.m. on Friday and Saturday nights.  Allowed exceptions included juveniles accompanied by an adult or juveniles engaged in employment.  The curfew had three stated goals: protecting minors from harm at night, protecting the general population from nighttime juvenile crime, and promoting responsible parenting. The court determined the ordinance infringed "a minor's right to move about freely when not prohibited from doing so by his or her parents" and that it should receive "intermediate scrutiny" under the 14th Amendment's equal protection clause.  This in turn required that the town show a "direct, substantial relationship" between the factual premises of the curfew and its restrictions.  The Second Circuit concluded there was insufficient evidence juveniles commit or are victims of nocturnal street crimes to justify the
ordinance...

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

ADA Suit Against Government for Failure to Reasonably Accommodate Disabled Persons Does Not Require Showing that Persons Without Disability Treated Better

Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003); 71(49) U.S. Law Week 1780-81 (June 24, 2003)

The Second Circuit held that individuals with a disability who claim the government has failed to reasonably accommodate their disability as required under Title II of the Americans with Disabilities Act (ADA) do not have to show that the government treated individuals who are not disabled better (i.e., that there was a "disparate impact"). The case was filed by HIV-infected individuals who allege New York City violated the ADA by not providing them with adequate access to public social service benefits such as food stamps, welfare benefits, and Medicaid coverage. The city responded there was no ADA violation because the plaintiffs received the same­ albeit difficult to obtain-access to services as persons without disabilities...

Found in DMHL Volume 23 Issue 1

Law Struck Down that Established Means to Override Advance Directives and Involuntarily Medicate Individuals Civilly Committed or Imprisoned

Hargrave v. Vermont, 340 F.3d 27 (2d Cir. 2003)

The Second Circuit struck down a Vermont law that allowed the state to involuntarily medicate individuals who had been civilly committed or judged  mentally ill while imprisoned, notwithstanding a pre-existing durable power of attorney (DPOA) for health care to the contrary.  The Second Circuit ruled that such a law discriminated against individuals with a mental disability in violation of the Americans with Disabilities Act....

Found in DMHL Volume 23 Issue 1

Ruling that School System's Response to Student's Behavioral Difficulties Was Adequate Under IDEA Not Disturbed

CJN v. Minneapolis Public Schools, 323 F.3d 630 (8th Cir. 2003), cert. denied sub nom., Nygren v. Minneapolis Public Schools, 124 S. Ct. 478 (2003)

The Supreme Court declined to review a ruling of the Eighth Circuit that a school district provided an eleven-year-old boy with a long history of mental illness the free appropriate public education required by the Individuals with Disabilities Education Act (IDEA).  As a result, the Eighth Circuit rejected his mother's effort to obtain reimbursement for the tuition of a private school in which she placed him after the use of physical restraint and "time-outs" increased during the preceding year....

Found in DMHL Volume 23 Issue 1

Ruling Upholding HIPAA Not Disturbed

South Carolina Med. Ass'n v. Thompson, 327 F.3d 346 (4th Cir. 2003), cert. denied, 124 S. Ct. 464 (2003)

The Supreme Court declined to review a ruling by the Fourth Circuit that upheld the constitutionality of the Health Insurance Portability and Accountability Act (HIPAA) and regulations promulgated pursuant to it.  The South Carolina Medical Association had challenged the statute and its regulations as transferring too much legislative authority in the medical privacy arena to the Department of Health and Human Services...

Found in DMHL Volume 23 Issue 1

Ruling that Fired Employee Entitled to FMLA Leave if Change in Behavior Sufficient to Notify Reasonable Employer that Mentally Unable to Work Not Disturbed

Byrne v. Avon Products Inc., 328 F.3d 379 (7th Cir. 2003), cert. denied, Avon Products Inc. v. Byrne, 124 S. Ct. 327 (2003)

The Supreme Court declined to review a ruling by the Seventh Circuit that an employee should have been given leave under the Family and Medical Leave Act (FMLA) rather than being fired if a change in the employee's behavior was sufficient to notify a reasonable employer that the employee (1) had a serious health condition or (2) was mentally unable to work or give notice of his or her need for FMLA leave.  Under FMLA, advance notice of the need for leave is required unless it is not "feasible."  In this case an employee was fired for sleeping on the job during the two weeks preceding a period of hospitalization for depression.  The Seventh Circuit concluded the employee could take to a jury his claim that his firing violated FMLA...

Found in DMHL Volume 23 Issue 1

Ruling that Physician Can Be Excluded from Federal Health Programs for Factors Not in Place at Time of Misconduct Not Disturbed

Patel v. Thompson, 319 F.3d 1317 (11th Cir. 2003), cert. denied, 123 S. Ct. 2652 (2003)

The Supreme Court declined to review a ruling by the Eleventh Circuit that upheld a decision by the Department of Health and Human Services (HHS) to exclude for ten years from all federal health programs a physician who pleaded nolo contendere to a charge of sexual battery of a patient.  The Eleventh Circuit ruled HHS could rely on two aggravating factors in excluding the physician beyond the five-year period provided by statute, even though those factors were added after the occurrence of the physician's conduct.  HHS was permitted to consider that the doctor engaged in a non-consensual sexual act and that his medical license was revoked as a result of the conduct because the regulations adding these factors were intended to protect federal medical program recipients.  Thus, their retroactive application was permissible because they were remedial rather than punitive....

Found in DMHL Volume 23 Issue 1