Prison Sentences Issued for Illegally Selling Prescription Drugs Over the Internet

United States v. Gorman, No. 01-CR-1632 (S.D. Fla. sentencing Sept. 04, 2003); 12(37) BNA's Health Law Reporter 1418-19 (Sept. 18, 2003)

A South Florida woman and her son were sentenced to federal prison for selling prescription pain killers over the Internet without a physician's review or a prescription. The woman received a prison term of thirty­ seven months, while her son received a term of twenty-four months. Operating out of their home, the pair purportedly earned more than $1.2 million in gross revenues in slightly more than one year...

Found in DMHL Volume 23 Issue 1

Expert Testimony Based on Grisso Protocol Excluded Under Daubert and Confession of Fourteen-Year-Old Defendant Admitted

State v. Griffin, 831 A.2d 252 (2003)

The Appellate Court of Connecticut ruled a trial court properly excluded expert testimony regarding the nature of a juvenile's confession and concluded the juvenile had knowingly, intelligently, and voluntarily waived his privilege against self-incrimination.  The defendant, convicted of manslaughter, had been fourteen years of age at the time of the crime.  He attempted to suppress his confession at trial based on the testimony of a clinical psychologist...

Found in DMHL Volume 23 Issue 1

Connecticut Supreme Court Applies Sell to Determination of Whether Defendant Can Be Forcibly Treated to Restore Competence

State v. Jacobs, 828 A.2d 587 (Conn. 2003)

The Supreme Court of Connecticut has issued one of the first appellate opinions applying the U.S. Supreme Court's decision in Sell v. United States (2003) to a determination of whether involuntary medication can be authorized to render a defendant competent to stand trial.  The defendant was charged with breach of the peace, simple trespass, assault of a peace officer, carrying a dangerous weapon, and interference with an officer, which carried a combined maximum punishment of 14 years.  Subsequent to the defendant being found incompetent to stand trial, the trial court ordered treatment with psychotropic medication to restore the defendant's competence to stand trial.  The defendant appealed, claiming forced medication would violate his constitutional rights under the first amendment (i.e., his right to free speech or the right to free thought and communication), sixth amendment (i.e., his right to a fair trial), and fourteenth amendment (i.e., his interest in privacy or liberty).  The state argued this question was limited to whether the defendant's fourteenth amendment rights were infringed...

Found in DMHL Volume 23 Issue 1

Psychotherapist-Patient Privilege in California Protects Psychotherapy Records from Disclosure Even When Therapy Only Commenced Because It Was a Condition of Probation

Story v. Superior Court, 135 Cal. Rptr. 2d 532 (2003); 72(2) U.S. Law Week 1032 (July. 15, 2003)

A California Court of Appeal held that California's psychotherapist-patient  privilege may be asserted to block the release of a criminal defendant's  psychotherapy  records even though those records pertain to therapy into which the defendant entered only because it was made a condition of probation. After the defendant was charged with murder during the course of a rape and burglary, the state sought a court order to release the defendant's psychotherapy records.  In a case of first impression in California, the court ruled the defendant was a "patient" for purpose of this privilege regardless of why he entered treatment and was therefore entitled to raise this privilege in blocking the state's request for records...

Found in DMHL Volume 23 Issue 1

Statutory Immunity for Mental Health Detention Decisions Does Not Extend to Accidents Occurring During Detention

Jacobs v. Grossmont Hosp., 133 Cal. Rptr. 2d 9 (Cal. Ct. App. 2003)

In California, an individual can be detained for 72 hours ("72-hour hold") in a designated facility for treatment and evaluation if the person is determined to be, as a result of mental disorder, a danger to self or others or gravely disabled. California has also established that individuals authorized to detain a person for a 72-hour hold cannot be held liable for exercising this authority. The California Court of Appeals, Fourth District, has held that this immunity from liability is limited to the decision to detain and does not extend to accidents that may occur in the course of the detention....

Found in DMHL Volume 23 Issue 1

Malpractice Action for Sexual Relationship that Developed Subsequent to Treatment Provided by Psychologist Settled for 225000

18(16) Virginia Lawyers Weekly 389 (Sept. 22, 2003)

A lawsuit in which a woman filed a medical malpractice action against a psychologist from whom she sought treatment for major depression was settled for $225,000 in the Circuit Court of Fairfax County.  The woman alleged she was harmed by an inappropriate
romantic and sexual relationship that developed between them.  Reportedly, as part of the settlement the defendant acknowledged an inappropriate  relationship developed between them subsequent to treatment, that such relationships are forbidden by the regulations governing the practice of clinical psychology in Virginia and the ethical principles of the American Psychological Association, and that such relations are defined as unethical because of the high likelihood of harm to the patient...

Found in DMHL Volume 23 Issue 1

Child Testimony Via Closed-Circuit Testimony Upheld

Johnson v. Commonwealth, 580 S.E.2d 486 (Va. Ct. App. 2003); 17(51) Virginia Lawyers Weekly 1290 (May 26, 2003)

The Virginia Court of Appeal upheld a Virginia statute that allows victims of child sexual abuse to offer trial testimony via closed-circuit television.  In rejecting the defendant's Sixth Amendment challenge, the court noted the statute appropriately required a "case-specific" showing of necessity and that it met the requirements established by the U.S. Supreme Court in Maryland v. Craig (1990) when it required the trial court to find that the child is unavailable to testify in open court in the presence of the defendant because the child refuses to testify, the child is unable to communicate, or there is a substantial likelihood that the child will suffer severe emotional trauma if the child testifies.  The court added the statute actually went beyond the requirements in Craig because it provided for two-way closed-circuit television as opposed to the one-way closed-circuit testimony upheld in Craig....

Found in DMHL Volume 23 Issue 1

Sexual Assault Conviction Reversed Because Prosecutor Told Jury that Commonly Known Children Don't Report Sexual Assaults Right Away

Smith v. Commonwealth, 580 S.E.2d 481 (Va. Ct. App. 2003); 17(51) Virginia Lawyers Weekly 1291 (May 26, 2003)

The Virginia Court of Appeals overturned a sexual assault conviction because the trial court failed to specifically direct the jury to disregard a statement made by the prosecutor during jury selection that "it's commonly known that children don't report sexual assaults right away, if at all."  The court noted in this case the credibility of the victims was vital to the Commonwealth's case because only the victims' testimony proved defendant was the perpetrator of these assaults.
Furthermore, a major factor affecting their credibility was their delay in reporting the assaults to an adult...

Found in DMHL Volume 23 Issue 1

Sanctions for Alleged Sexual Harassment of Medical Students and Social Worker by Psychiatrist Set Aside

Goad v. Virginia Bd. of Med., 580 S.E.2d 494 (Va. Ct. App. 2003); 17(51) Virginia Lawyers Weekly 1291 (May 26, 2003)

The Virginia Court of Appeals reversed the sanctions imposed and set aside a finding by the Board of Medicine that a psychiatrist was guilty of unprofessional conduct because of purported sexual harassment by the psychiatrist....

Found in DMHL Volume 23 Issue 1

Conviction of Mentally Retarded Defendant of Malicious Wounding for Injuries Suffered by Infant from "Shaken Baby Syndrome" Upheld

Funk v. Commonwealth, No. 1821- 02-4, 2003 WL 21524686 (Va. Ct. App. July 8, 2003); 18(8) Virginia Lawyers Weekly 185-86 (July 28, 2003)

Although the defendant was mentally retarded with an IQ of 65 and his lawyer argued he did not understand the fragility of his six-week-old son, the Virginia Court of Appeals ruled the defendant was properly convicted of malicious wounding for the permanent injuries suffered by the child from "shaken baby syndrome." The court noted these injuries left the child severely retarded, the child was under the sole care of the defendant, and he eventually admitted he shook the victim three times and may have been too rough.  The court determined the jury could reasonably infer from the violence necessary to cause such severe and extensive injury that the defendant intended that which resulted...

Found in DMHL Volume 23 Issue 1

Parental Rights Terminated When Mother Refused to Acknowledge Parental Deficiencies and Thwarted Counseling Efforts to Remedy Deficiencies

Hansberry v. Charlottesville Dep't of Soc. Servs., No. 0117- 03-2, 2003 WL 21391022 (Va. Ct. App. June 17, 2003); 18(6) Virginia Lawyers Weekly 136 (July 14, 2003)

The Virginia Court of Appeals held that a mother's parental rights were appropriately terminated when evidence was presented the mother refused to acknowledge that any deficiencies in her parental abilities existed and she appeared to thwart attempts to provide her with mental health and counseling services designed to remediate her lack of parenting and supervisory skills. A clinical psychologist who evaluated the mother's emotional and cognitive functioning testified (1) that her cognitive functioning fell in the "borderline range," (2) that although persons functioning within this range can learn new skills, their inability to apply this learning to new situations was unlikely to change, (3) that the mother tended to be emotionally reactive, hostile, and oppositional, particularly when under stress and this accounted for her difficulty in making use of the assistance other people might provider her, and (4) that her tendency to deny problems and externalize blame, among other things, made it unlikely she would be able to adequately identify and respond to her children's needs....

Found in DMHL Volume 23 Issue 1

Federal Suit by Virginia Physician Fired by State Mental Health Facility Dismissed

Horner v. Dep't of Mental Health, No. Civ.A. 5:02CV00099, 2003 WL 21391678 (W.D. Va. May 1, 2003); 18(13) Virginia Lawyers Weekly 306 (Sept. 1, 2003)

A lawsuit filed by a physician who was fired by a Virginia state mental health facility was dismissed by the Western District of the U.S. District Court in Virginia.  The physician, who was an internist at Western State Hospital from 1995 until May 2001, claimed he was fired because of his criticisms of the patient care provided at the facility.  In response, the physician initiated a grievance procedure under Virginia state law, see DMHL, v. 22, n. 2, p. 29, and also filed a lawsuit in federal court.  The federal district court concluded it was without jurisdiction to hear this case because the physician's claims were "inextricably intertwined" with the retaliation claims set forth in his grievance and his federal claim did not differ in any substantial part from the essential facts presented in the state proceedings.  While noting his grievance was subject to state appellate review and, ultimately, to review by the United States Supreme Court, the court concluded lower federal courts were not authorized to review it....

Found in DMHL Volume 23 Issue 1

Virginia Capital Defendant Not Provided Ineffective Assistance of Counsel Just Because Defendant's Mental Health Expert Misdiagnosed Defendant

Bailey v. True, No. CR02-511 (E.D. Va. Apr. 15, 2003); 17(51) Virginia Lawyers Weekly 1288 (May 26, 2003)

The U.S. District Court for the Eastern District of Virginia refused to overturn the capital conviction of a defendant because of the purported ineffective assistance of counsel in presenting mental health evidence as a mitigating factor in the penalty phase of the trial.  The defendant's claim was characterized as being that his mental health expert had misdiagnosed him as having a personality disorder when he should have been diagnosed as having a bipolar disorder...

Found in DMHL Volume 23 Issue 1

Mental Health Facility that Closes May Have to Give Employees 60-Days Notice

Michigan AFSCME Council 25 v. Aurora Healthcare, Inc., 256 F. Supp. 2d 713 (E.D. Mich. 2003); 12(19) BNA's Health Law Reporter 737 (May 8, 2003)

The federal Worker Adjustment  and Retraining Notification Act (WARN) has been applied to the rapid closure of a mental health care facility near Detroit.  WARN requires that workers be given 60 days notice of a mass layoff unless closure followed "unforeseeable circumstances,"  which includes the "unexpected termination of a major contract." The facility provided inpatient, outpatient, and partial hospitalization care for individuals with mental illnesses.  The majority of its patient load came from referrals from the Community Mental Health Agency of the county in which it was located. On Dec. 19, 2001, the agency announced it would no longer refer patients to the facility, it would not renew its contract with the facility effective Dec. 31, 2001, and the facility should make  arrangements to transfer all of its referral patients to other medical providers by Jan. 31, 2002.  Faced with the loss of this business, virtually the entire facility workforce, which consisted of several hundred employees, was laid off. Layoffs began in late December 2001....

Found in DMHL Volume 23 Issue 1

Residents of Community Program Entitled to Written Notice but Not Formal Hearing Prior to Discharge if They Pose Imminent Threat to Other Residents

Cotton v. Alexian Bros. Bonaventure House, No. 02 C 7969, 02 C 8437, 2003 WL 22110501 (N.D. Ill. Sept. 9, 2003)

Two residents of a supportive residence that provides a transitional living program for people with HIV/AIDS were asked to leave because of "inappropriate  behavior" but without a written explanation of the reason they were asked to leave.  The residence received federal funds through the Housing Opportunities for People with AIDS Act (HOPWA).   Both residents had threatened fellow  residents....

Found in DMHL Volume 23 Issue 1

California Tax on Cigarettes to Fund Anti­ Tobacco Ads Upheld

R. J. Reynolds Tobacco Co. v. Banta, 272 F. Supp. 2d 1085 (E.D. Cal. 2003); 72(4) U.S. Law Week 1060-61 (Aug. 5, 2003)

A California law that directed a state agency to develop a media program to discourage tobacco use with funding provided by a surtax on wholesale cigarette sales was upheld by the U.S. District Court for the Eastern District of California.  California voters in 1988 enacted a 25¢ per pack surtax with the revenue placed in a limited-use fund, a portion of which is used for the media campaign. Various tobacco companies challenged the law, asserting that the state annually spends $25 million on anti-smoking ads and the surtax compels them to fund speech with which they disagree...

Found in DMHL Volume 23 Issue 1

Oklahoma May Violate the ADA by Imposing a Five-Prescription Per Month Cap on Medicaid Recipients Receiving Services at Home

Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir. 2003); 72(4) U.S. Law Week 1056 (Aug. 5, 2003)

Oklahoma may be violating the Americans with Disabilities Act (ADA) by imposing a five­ prescription per month cap on Medicaid recipients who receive their state-funded services at home rather than in a nursing facility.  Oklahoma, as part of an optional federal Medicaid waiver program in which it participates, allows individuals who meet the level of care required for institutionalization in a nursing facility to live at home and receive state-funded medical care.  Until September 2002, participants were entitled to an unlimited number of state-paid medically necessary prescriptions.  At that point, responding to a budgetary shortfall, the cap was put into operation, although patients in nursing facilities continued to receive unlimited prescriptions.  The state anticipated that capping the number of prescriptions available would save the state $3.2 million...

Found in DMHL Volume 23 Issue 1

Compulsory Arbitration Agreement Negated by Mental Incapacity

Spahr v. Secco, 330 F.3d 1266 (10th Cir. 2003); 71(48) U.S. Law Week 1763-64 (June 17, 2003)

An investor filed a lawsuit against his brokerage firm and alleged the firm was negligent in allowing the broker with whom he dealt to handle his account because she was "legendary" in the brokerage community for convincing elderly men to loan her money in exchange for sex.  The brokerage firm responded that the investor's investment account agreement contained an arbitration clause covering all related disputes and asserted that as a result the claim must be resolved by an arbitrator and not a court.  In reply, the investor alleged that he was incapable of managing his financial affairs because he has dementia and Alzheimer's disease and thus the account agreement and its arbitration clause were unenforceable...

Found in DMHL Volume 23 Issue 1

ADA Expands Range of Individuals that May Be Entitled to Medicaid Funded Home and Community Based Health Care

Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003)

The Ninth Circuit joins many other courts that have grappled with the scope of the Americans with Disabilities Act (ADA) and its impact on Medicaid waiver programs.  The state of Washington participates in the federal Medicaid program that provides federal financial assistance to states that choose to reimburse certain costs of medical treatment for needy persons.  Participation by states in this program generally is optional but a state receiving Medicaid funds must comply with the requirements of the Medicaid Act.  An exception to this rule is the Medicaid waiver program under which certain Medicaid requirements can be waived for innovative or experimental state health care programs.  The programs encouraged by the waiver program include increased provision of home and community based health care to Medicaid recipients who would otherwise only qualify for nursing home care....

Found in DMHL Volume 23 Issue 1

Psychiatrist as HMO Team Leader May Be "Treating Source" Whose Opinion Is Entitled to Greater Weight in Social Security Disability Determination Even Though Psychiatrist Has Minimal Patient Contact

Benton v. Barnhart, 331 F.3d 1030 (9th Cir. 2003); 71(49) U.S. Law Week 1790 (June 24, 2003)

The Ninth Circuit held that the lead psychiatrist on a patient's managed care treatment team may be considered a "treating" source whose opinions are entitled to greater weight in Social Security disability proceedings even though the psychiatrist has minimal contact with the patient and most of the direct patient contact is provided by others on the managed care treatment team...

Found in DMHL Volume 23 Issue 1