Mental Health Providers, Privilege

Bradley v. Eighth Judicial Dist. Court of Nev., 405 P.3d 668 (Nev. 2017)

The Supreme Court of Nevada ruled that psychologist-patient privilege applied and was not waived where counseling records concerned only treatment and no substantial part was shared with anyone, treatment was not substantively at issue in any claim or defense, and neither state law, due process, nor the right to confrontation required disclosure.

Found in DMHL Volume 37, Issue 1

Civil Commitment, Rights Waiver

Matter of S.M., 403 P.3d 324 (Mont. 2017)

The Supreme Court of Montana upheld a statute preventing defendants from being able to waive their right to counsel in civil commitment proceedings, finding it does not violate the Sixth or Fourteenth Amendments to the Constitution.

Found in DMHL Volume 37, Issue 1

Intellectual Disability, Death penalty

State v. Russell, 238 So.3d 1105 (Miss. 2017)

The Supreme Court of Mississippi found that the trial court was incorrect in denying a State motion to evaluate a defendant on his claim of intellectual disability when considering the death penalty because testing completed for a previous charge was insufficient for State expert to form opinion.

Found in DMHL Volume 37, Issue 1

Mental Health Experts, Jury Instructions, Not Guilty by Reason of Insanity

Commonwealth v. Piantedosi, 87 N.E.3d 549 (Mass. 2017)

Massachusetts Supreme Judicial Court upheld a conviction of first-degree murder because the judge correctly excluded expert testimony about a hearsay conversation not admitted into evidence, the Commonwealth’s expert witness testimony was proper, and the judge accurately instructed the jury with the appropriate model instructions at the time of the trial.

Found in DMHL Volume 37, Issue 1

Death Penalty, Ineffective Assistance, Intellectual Disability

State v. Morrison, 236 So.3d 204 (Fla. 2017)

The Supreme Court of Florida denied a new evidentiary hearing for intellectual disability, granted a new penalty phase where counsel was ineffective in its penalty phase investigation, and withheld a new guilt phase because counsel was not ineffective in its guilt phase investigation.

Found in DMHL Volume 37, Issue 1

Death Penalty, Ineffective Assistance

Ellerbee v. State, 232 So.3d 909 (Fla. 2017)

The Supreme Court of Florida vacated a death sentence and granted a new penalty phase to the defendant because his counsel did not provide effective assistance at trial and the non-unanimous jury verdict regarding the sentence may have violated the Sixth Amendment.

Found in DMHL Volume 37, Issue 1

Competence to Stand Trial, Prosecutor

Jackson v. Superior Court, 406 P.3d 782 (Cal. 2017)

The Supreme Court of California found that the prosecution was permitted to dismiss prior charges and refile identical charges where the defendant had been committed for the duration of the statutory period while being evaluated for competence to stand trial; provided, however, that if found still incompetent to stand trial, the defendant could not be re-committed for another statutory period.

Found in DMHL Volume 37, Issue 1

Off-label Drug Prescriptions

United States ex rel. Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905 (6th Cir. 2017)
Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., 873 F.3d 574 (7th Cir. 2017)

The following two cases both involved off-label drug prescriptions and improper promotion practices.

United States ex rel. Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905 (6th Cir. 2017)

Two former sales representatives of Bristol-Myers Squibb Co. (BMS) filed a qui tam action alleging improper promotion of Abilify. The district court had dismissed the complaint in part and denied the relators’ motion to amend. On review, the Sixth Circuit noted the long chain of causal links the relators alleged “reveals just what an awkward vehicle the [False Claims Act] is for punishing off-label promotion schemes,” but ultimately upheld the lower court’s rulings because the relators could not adequately amend the complaint to meet the requirements of the FCA (such as providing a representative claim). Judge Stranch concurred with one part of the court’s holding but dissented regarding many of its other findings about the relators’ claim sufficiency, noting the importance of combating health care fraud.

Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., 873 F.3d 574 (7th Cir. 2017).

In 2012, Abbott Laboratories pleaded guilty to unlawful promotion and paid $1.6 billion for undercover promotion activities that encouraged off-label use of Depakote. In 2013, two welfare-benefit plans (Payors) filed suit seeking damages under the Racketeer Influenced and Corrupt Organizations (RICO) Act. As relevant here, a district judge dismissed the complaint, ruling that Payors could not hope to show proximate causation as required under RICO. On appeal, Payors claimed that Abbott’s activities directly injured them, but the Seventh Circuit noted that it was “not at all clear that they are the initially injured parties, let alone the sole injured parties.” The court noted that patients suffer most directly and expressed skepticism in Payors’ claimed ability to show damages using statistical and other means to identify how Abbott’s practices led to specific instances of Payors spending money on off-label Depakote prescriptions.

Found in DMHL Volume 37, Issue 1

Mental Health, Sentencing

United States v. Carlin, 712 F. App’x 365, (5th Cir. 2017); United States v. Stephens, 699 F. App'x 343 (5th Cir. 2017)
United States v. Wesberry, 709 F. App’x 895 (10th Cir. 2017)

The following three cases each involved defendant challenges to the imposition of mental health treatment as part of their sentencing. The cases are presented here in brief because of their relatively similar, short opinions that do not present notable fact patterns or developments in jurisprudence.

United States v. Carlin, 712 F. App’x 365, (5th Cir. 2017); United States v. Stephens, 699 F. App'x 343 (5th Cir. 2017).

Both Carlin and Stephens essentially concerned a misstatement of a condition of sentencing. In both cases, the court ordered that the defendant “participate in a mentalhealth program as deemed necessary and approved by the probation officer,” thus impermissibly delegating sentencing authority to the probation officer. In both cases, the Fifth Circuit affirmed a modified sentence that imposed mental health treatment, with details of the treatment to be supervised by the probation officer.

United States v. Wesberry, 709 F. App’x 895 (10th Cir. 2017).

In Wesberry, the defendant challenged the imposition of mental health treatment as part of his sentence under the U.S. Sentencing Guidelines, arguing that the condition was unreasonable because it bore no relation to the goals of the guidelines. The Tenth Circuit reviewed his claim for plain error because he had not challenged the condition in district court. The court found that there was no “well-settled” law supporting his challenge, thus there was no clear error to be found in the lower court’s sentencing decision. In addition, the court noted that the Guidelines’ policy statement recommends requiring participation in a mental health program if a court has reason, based on particularized findings, to believe the defendant is in need of psychological or psychiatric treatment; the court noted the district court’s reliance on presentence reports documenting Wesberry’s diagnoses and medications as meeting the requirement of particularized findings.

Found in DMHL Volume 37, Issue 1

Qualified Immunity, Law Enforcement, Excessive Force

Isayeva v. Sacramento Sheriff's Dep't, 872 F.3d 938 (9th Cir. 2017)

Ninth Circuit held that (1) disputation about the reasonableness of deputy’s actions did not preclude granting qualified immunity, and (2) deputy was entitled to qualified immunity for the tasing and fatal shooting of the decedent because the decedent held no clearly established right not to be shot in circumstances in which he was larger than two officers, was not incapacitated by the taser, and was “winning” in hand-to-hand combat with the officers.

Found in DMHL Volume 37, Issue 1

Qualified Immunity, Excessive Force, Law Enforcement

Frederick v. Motsinger, 873 F.3d 641 (8th Cir. 2017)

Eighth Circuit held that deploying a Taser against a person in a public area who was refusing law enforcement commands to drop a knife did not violate a clearly established right and the officers were eligible for qualified immunity.

Found in DMHL Volume 37, Issue 1

Qualified Immunity, Duty of Care, Jails and Prisons

Bays v. Montmorency Cty., 874 F.3d 264 (6th Cir. 2017)

Sixth Circuit ruled that there is a clearly established Fourteenth Amendment right to sufficient treatment for a serious medical problem and upheld a district court’s denial of qualified immunity to a jail nurse where there was evidence that the nurse acted with deliberate indifference to an inmate’s serious mental illness.

Found in DMHL Volume 37, Issue 1

Death Penalty, Ineffective Assistance, Intellectual Disability

Reeves v. Alabama, 138 S. Ct. 22 (2017)

The Supreme Court of the United States denied certiorari to hear a case involving ineffective assistance of counsel based on not obtaining psychological evaluation for intellectual disability. Of relevance here is the opinion of the dissenting Justices, who found that the Alabama Court of Criminal Appeals incorrectly imposed a rule requiring trial counsel to testify in order for a petitioner to succeed on a federal constitutional ineffective-assistance-of-counsel claim.

Found in DMHL Volume 37, Issue 1

Hospital Not Liable for Disappearance of Mentally Ill Daughter Even Though Mother Only Left Her Alone for 45-Minute Meeting with Counselor Because Nurse Promised to Look After Daughter

Nash v. Sisters of Providence, No. 28295-0-11, 2003 WL 21791593 (Wash. Ct. App. Aug. 5, 2003); 12(33) BNA's Health Law Reporter 1278 (Aug. 14, 2003)

A Washington Court of Appeals ruled that a hospital could not be held liable for the promise made to a mother by a nurse to look after her mentally ill 15-year-old daughter while the mother conferred with a counselor. The family's physician had arranged for the daughter to be evaluated at the hospital after he concluded the daughter showed symptoms similar to the manic phase of a manic­ depressive disorder.  The mother took her daughter to the hospital's emergency room where the hospital's notes indicated the daughter was acting "manic and paranoid," had a six-month history of depression and mania, and her status was "urgent."  The hospital's crisis services counselor asked to meet privately with the mother.  When the mother said she did not want to leave her daughter alone in an examination room, the counselor asked a nurse from the nurses' station across the hallway to watch the daughter.  The nurse explained she could watch the room from a video monitor. Finding this acceptable, the mother left to meet with the counselor in another room. When they returned 45 minutes later, the daughter was gone. The nurse said she had left her station to administer an l.V. to another patient. The parents have not seen their daughter since then...

Found in DMHL Volume 23 Issue 1

Attorneys' Fees Available When Executor or Trustee Engages in Undue Influence

In re Trust Created March 31, 1992 (Niles Trust), No. A- 7/8 (N.J. 2003); 71(47) U.S. Law Week 1748-49 (June 10, 2003)

In New Jersey, a wealthy unmarried woman placed her assets in three trusts.  She named as beneficiaries a foundation and her brother, who was two years younger than his sister.  A long-time friend was named as trustee. However, the woman, who had dementia and other medical problems, subsequently replaced the trustee with the son of her brother's recent much younger bride.  The son was also named executor of the woman's will. The trusts and the will were then modified to confer substantial benefits on the sister-in-law, her son, and her son's children.  The sister-in­ law and her son also used the woman's assets to buy luxury items.  The former trustee and the foundation filed suit claiming that the sister-in-law and her son had unduly influenced the woman to change her will and trusts...

Found in DMHL Volume 23 Issue 1

Missouri Woman Confined as Sexual Predator Ordered Released

In re Cofel, 117 S.W.3d 116 (Mo. Ct. App. 2003)

The only woman ever confined in Missouri under that state's violent sexual predator law, and one of the few in the nation, has been released. The 27-year-old woman, Angela Coffel, was sentenced in 1995 to a five-year term after being convicted of two counts of sodomy for placing the penises of two brothers, ages 11 and 14, in her mouth during a game of "Truth or Dare." Coffel, 18-years­ old and HIV-positive at the time of the crime, has a family history that includes significant physical and emotional abuse, has a below­ normal IQ, and contracted HIV at the age of 17. At the completion of her sentence, she was committed indefinitely to the Missouri Sexual Offender Treatment Center after a judge ruled she was likely to assault someone again.  No one committed under the Missouri sexual predator law (enacted in 1998) to this center has ever been judged safe for release. The center currently houses 75 individuals, roughly half of which have been committed under this law and the other half are awaiting court determinations...

Found in DMHL Volume 23 Issue 1

Missouri Supreme Court Bans Execution of Juvenile Offenders

State ex rel. Simmons v. Roper, 112 S.W.3d 397 (Mo. 2003); 72(9) U.S. Law Week 1143-44 (Sept. 16, 2003)

The Missouri Supreme Court ruled that the execution of defendants who were juveniles when they committed their offense is barred by the Eighth Amendment's prohibition of cruel and unusual punishment.  Applying the analysis used by the U.S. Supreme Court in Atkins v. Virginia (2002), the court concluded that evolving standards of decency have similarly led to a national consensus opposing juvenile executions.  The court asserted that if the U.S. Supreme Court were to review its decision from 14 years ago in Stanford v. Kentucky (1989), it would rule that "evolving standards of decency" mandate that the execution of 16- and 17-year-old offenders be found unconstitutional...

Found in DMHL Volume 23 Issue 1

Iowa Grandparent Visitation Statute Struck Down

In re Howard, No. 07/02-0211 (Iowa May 7, 2003); 71(44) U.S. Law Week 1712 (May 20, 2003)

The Iowa Supreme Court ruled that an Iowa law that allowed grandparents to seek visitation with their divorced children's children violated that state's constitution.  Under the law, visitation could be ordered if visitation was in the best interests of the child and the grandparent had established a substantial relationship with the child prior to the filing of the divorce petition.  The court ruled that there must be a presumption that a fit parent acts in the child's best interest, a presumption that is not diminished by the fact that the marriage is no longer intact.  Furthermore, there must be a showing that the absence of this visitation harms the child, not merely that such visitation is in the child's best interest...

Found in DMHL Volume 23 Issue 1

Florida Medicaid Recipients Entitled to Notification of Reasons for Denial of Prescription Drug Coverage and Steps They Can Take to Appeal Denial

Hernandez v. Medows,  No. 02-20964-Civ-Gold/Simonton (S.D. Fla. order 5/21/03); 12(24) BNA's Health Law Reporter 925-26 (June 12, 2003)

Under a settlement agreement approved by a federal judge, Florida Medicaid recipients who are denied prescription drug coverage will be notified in writing of the reason for the rejection and what steps they can take to appeal the decision. In addition, the Florida agency responsible for these determinations, the Agency for Health Care Administration (AHCA), agreed to provide the services of an ombudsman office to assist in resolving claim reimbursement problems.  The agreement also provides for emergency coverage if a pharmacist believes failure to receive a drug could result in a serious health threatening situation.  In addition, the AHCA agreed to pay for brand name drugs if a physician asserts they are medically necessary...

Found in DMHL Volume 23 Issue 1

De Facto Therapist-Patient Relationship Necessary for Medical Malpractice Claim May Have Existed When Psychologist Gave Employee Advice on Family Problems

Thayer v. OrRico, 792 N.E.2d 919 (Ind. Ct. App. 2003)

An Indiana appeals court ruled a therapist­ patient relationship may have existed between a psychologist and a woman who worked as an employee in the clinic of which the psychologist was half-owner. During her employment, the woman sought advice about problems she was having with her marriage and her children from the psychologist and from her co-workers. After a number of years at the clinic, the woman and the psychologist began a sexual relationship, which continued for approximately one year. At that time, both the employment and sexual relationships were ended.  The woman and her husband sued the psychologist for malpractice, claiming in part that the psychologist had mishandled the transference phenomenon that had arisen. The trial court dismissed the lawsuit after determining that no therapist-patient relationship existed between the woman and the psychologist because the psychologist had merely counseled the woman as his employee and friend...

Found in DMHL Volume 23 Issue 1