Did your psychiatrist fail to warn you of the possibility of developing repetitive and disfiguring involuntary facial or body movements before prescribing you an antipsychotic drug?

If you answered “yes” and you are experiencing such movements, you may have the basis for a lawsuit.

Psychiatrists are required (as are all health care practitioners) to ensure that patients fully understand the potential effects of any drug they prescribe—the bad effects as well as any good ones.  When failure to do so results in harm to a patient, it may be grounds for legal action. 

Tardive dyskinesia (TD) is a movement disorder caused by prolonged use of antipsychotic drugs (such as Haldol, Risperdal and others).  The word “tardive” means “delayed” or “late developing” and refers to the observation that this disorder begins, not right away, but after months or years of being on a drug or drugs in this class.  The word ”dyskinesia” means “abnormal movements.”

TD is characterized by involuntary movements including:

• lip smacking
• blinking
• raising eyebrows
• tongue twitching and protrusion
• puffing of cheeks
• puckering of lips
• toe tapping
• jerking or rhythmic repetitive motions of the fingers, hands, arms, legs, and/or torso

Sometimes these are barely noticeable to an outside observer.  Sometimes the disorder is severe and disabling.

While the condition has been known in some cases to stop with the cessation of the drug¹, it has also been known to commence with cessation of the drug.  The symptoms are otherwise irreversible; there is no known cure.

The risk of TD appears to be greater in elderly patients on high doses of the drugs, especially females.²

Types of antipsychotics

Antipsychotic drugs fall into two classes: “typical” and “atypical.”

Typicals are those that were introduced as far back as the early 1950s and include Haldol, Prolixin, Stelazine and Thorazine.

Atypicals were introduced in the early 1990s and include Abilify, Geodon, Risperdal, Seroquel and Zyprexa.  They are called “atypical” because they are chemically different from the earlier (“typical”) kind.

TD statistics

The U.S. Food and Drug Administration (FDA) receives hundreds of TD and TD-related adverse event reports every year for antipsychotics.  For instance, between 2004 and 2006, the FDA received 204 complaints on Abilify and 104 on Geodon.³ The drug adverse event reports that the FDA receives represent as little as one percent of all such adverse events.⁴ Thus, the actual number of TD-related events could be in the thousands.

Legal remedy

A patient who develops TD can sue the treating psychiatrist for malpractice on one or more points:

• Battery or Negligence, for prescribing the drug without any consent (battery) or prescribing it without obtaining the patient’s full informed consent, i.e., failure to ensure that the patient fully understood potential side effects, including the incidence of TD (negligence).  Physicians are required to ensure that patients understand benefits and liabilities of 1) a proposed treatment; 2) any alternative treatments and 3) no treatment.
• Negligence, for the psychiatrist’s inappropriate assessment, incomplete medical or psychiatric history, deficient medical examination, failure to perform laboratory examination or misdiagnosis.  Negligent malpractice liability can also be based on lack of indication for the drug; failure to monitor and care for side effects, excessive duration of treatment and dosage or failure to consult with another physician.
• Patients who have been committed to state hospitals may have a claim for violation of their Civil Rights under the 8th and 14th Amendments to the Constitution.  Under the Civil Rights Act, the allegation would be that the treating psychiatrist relying on the authority of state law, deprived a patient of his constitutional rights by providing psychiatric assessment and treatment to the patient and failed to obtain appropriate consent to administer antipsychotic drugs.
• A patient who develops TD after antipsychotic treatment in prison or a state mental institution can also file a federal Civil Rights action on the basis that the psychiatrist was “deliberately indifferent” to the patient’s condition.

Cases

There is considerable case law on the books to support TD-related malpractice actions.  Patients routinely prevail in such cases:

Gatling v. Perna: The patient alleged her treating psychiatrist did not obtain her informed consent in 1980 for a five-year course of antipsychotics, failed to refer her to a neurologist after she developed TD and concealed his malpractice by reassuring her that her TD was not due to the drug.  Though the trial court dismissed the case due to expiration of the statute of limitations, the Texas Court of Appeals reversed the decision and sent the case back, critical of the notion that the psychiatrist may have fraudulently concealed the patient’s true condition with his reassurances—circumstances which would have kept the statute from expiring.⁵

Hedin v. United States: This 1985 case involved a veteran who was prescribed Thorazine for four years for alcohol abuse in a Veterans Administration hospital.  The prescribing doctor noted the patient had developed TD and admitted his negligence in prescribing excessive amounts of the drug without proper supervision.  A jury awarded the patient $2,200,000.⁶

Accardo v. Cenac: In March 1997, a Louisiana jury awarded homemaker Lou Accardo $675,000 in damages against psychiatrist Louis Cenac, who prescribed her the antipsychotic Prolixin for six years, resulting in TD.  Cenac’s defense, that Accardo was not compliant with treatment, was undermined by the fact that his file on Accardo contained billing records for monthly injections of the drug but no corresponding clinical progress notes, hence failure to monitor Accardo’s condition.  Accardo also alleged Cenac did not properly diagnose her and did not obtain her informed consent for the drug.⁷

Weaver v. Myers: On October 15, 2001, a Rhode Island jury found in favor of a 26-year-old mildly retarded young man whose mother contended that her son’s psychiatrist had, without her consent, put him on an antipsychotic. He subsequently suffered TD, which the psychiatrist recognized but he neither informed the mother nor removed the man from the drug (he prescribed an additional drug to counter the effects). The jury determined that the psychiatrist was negligent and awarded the plaintiff the sum of $1,500,000 plus interest.⁸

Hamel v. Jaffe: In mid-June 2002, a Hampden (Massachusetts) Superior Court found psychiatrist Kenneth Jaffe negligent in the care and treatment of Joan Hamel, to whom he prescribed the antipsychotic Mellaril for several years, which caused her to develop TD.  Hamel’s lawsuit stated that she was never informed of the potential risks associated with use of the drug and that Jaffe did not monitor her while she was on the drug. The jury awarded her $500,000 in damages.⁹

Jones v. Margolis: In November 2005, a Virginia woman was awarded $1.6 million against her physician.  The patient had been on the typical antipsychotic Triavil starting in 1982 and took it until her prescribing physician died in 1997.  Her new doctor continued her on the same regimen and in 2003 she developed TD.  The basis of her suit was misdiagnosis, failure to monitor and failure to obtain full informed consent.¹⁰

Conclusion

If you are suffering from disfiguring involuntary movements and are taking or have taken a prescribed antipsychotic drug, you may have the basis for a malpractice lawsuit.  A personal injury attorney or law firm can review your case and make this determination.

For more information, please contact Steve Wagner, Director of Litigation, Citizens Commission on Human Rights, at swagner@cchr.org

¹ Spivey v. U.S. and Dept. of the Navy, 912 F. 2d 80 (United States Court of Appeals for the Fourth Circuit 1990).

² Physicians Desk Reference, Edition 52, 1998, pg. 1512-13, 1999

³ Decoded FDA MedWatch database for 2004-2006, as posted at http://www.cchrint.org.

⁴ “Psychiatric Drugs: Chemical Warfare on Humans—interview with Robert Whitaker,” International Center for the Study of Psychiatry and Psychology, October 14, 2005.

⁵ Gatling v. Perna, 788 S.W. 2d 44 (Court of Appeals of Texas, 1990).

⁶ Hedin v. U.S., Number 5-83 CIV 3 (D. Minn) (1985).

⁷ Accardo v. Cenac, Case No. 350, 125 Div. “F,” March 16, 1997, as published by Verdicts, Settlements and Tactics, July 1997.

⁸ New England Jury Verdict Review & Analysis, Weaver vs. Myers, case #98-2687,October 15, 2001; April 2002.

⁹ “Jury awards woman $500,000 in lawsuit,” Union News (Springfield, MA), June 26, 2002.

¹⁰ “Tappahannock woman awarded $1.6 million for medical malpractice,” Virginia Lawyers Weekly, November 28, 2005.

Medical board charges California psychiatrist Patricia J. Stamm with negligence, incompetence

On September 21, 2009, the Medical Board of California charged psychiatrist Patricia Jane Stamm with Gross Negligence, Repeated Negligent Acts, Incompetence and Excessive Prescribing in her treatment of a 54-year-old woman with a lengthy psychiatric history, who had been on opioid medications for a prolonged period due to an injury and subsequent surgeries.

Stamm, in her treatment of the patient, failed to take a good faith history; failed to perform an appropriate physical examination; failed to obtain a Department of Justice Controlled Substance Utilization Review and Evaluation System (C.U.R.E.S.) report or document the patient’s informed consent prior to prescribing opioid pain medications to the patient, despite learning at the initial examination that the patient had a history of opiate addiction; failed to coordinate care with the patient’s other psychiatrist who was concurrently prescribing to the patient; failed to adequately document justification for the continued prescribing of opioid medications; inadequately and inappropriately terminated care of the patient via a written letter and prescribing the patient an entire month’s supply of oxycodone (which the patient had been abusing) at once.

SOURCE:

Accusation in the Matter of the Accusation Against Patricia Janes Stamm, M.D., Physicians and Surgeon’s certificate no.  G-40384, Case no. 12-2006-179244, Medical Board of California, Department of Consumer Affairs, September 21, 2009.

Psychiatrist William Lee Newton surrenders California license; placed on probation by Oregon Medical Board

On November 3, 2009, psychiatrist William Lee Newton surrendered his license to the Medical Board of California.  This followed disciplinary action taken upon Newton in the state of Oregon in 2006 following a patient successfully suing Newton for malpractice.

At that time, Newton agreed to withdraw from the practice of medicine pending completion of an Oregon Board of Medical Examiners’ investigation into his competency to practice medicine.

In November 2007, the Oregon Board issued a final order which determined that Newton failed to adhere to the standard of practice in his treatment of several patients. Specifically, the document states that Newton treated a patient’s narcotic dependency and prescribed without a proper evaluation; he accepted controlled substances (OxyContin) from the patient which he used to treat his own back pain; he engaged in boundary violations with the patient and failed to maintain adequate records.

With another patient, he prescribed without an adequate evaluation and failed to keep adequate medical records.

With a third patient, he breached professional boundaries.

Newton prescribed pain medications to several patients without a physical examination and his medical records were deficient for a number of patients.

The Oregon Board placed Newton on 10 years probation and restricted his practice to administrative medicine or medical management for in-patient care in a hospital or institutional setting.

SOURCE:

Stipulated Surrender of License In the Matter of The Accusation Against William Lee Newton, M.D., Physician’s & Surgeon’s license certificate No.  C34415, Case No. 16-2006-175115, Medical Board of California, Department of Consumer Affairs, November 3, 2009.

Washington counselor Barbara Allen’s license suspended following conviction for identity theft

On August 3, 2009, the Washington Department of Health (DOH) indefinitely suspended registered counselor Barbara J. Allen for unprofessional conduct.

In April 2009, the DOH charged Allen, noting that though her counseling registration expired on September 11, 2007, she worked as a bookkeeper and care provider for a vulnerable adult between 2003 and 2006 and served as the client’s durable power of attorney, which gave her access to the client’s funds.

During this time, Allen opened up a credit card account in the client’s name and had the bill sent to her own address.  She used the credit card for her own personal benefit.

In July 2008, Allen was convicted of Second Degree Identity Theft and Forgery (both felonies), based on her financial exploitation of the above-referenced client.

The DOH served Allen with a statement of charges in April 2009, to which she failed to respond and thus, by default was suspended.

She will be required to pay a $5,000 fine prior to requesting reinstatement of her counseling registration.

SOURCE:

Findings of Fact, Conclusions of Law and Final Order of Default in the Matter of Barbara J. Allen, registration no. RC00051196, case no. M2009-281, Washington State Department of Health, August 3, 2009.

Washington state places psychiatrist Doane Rising on probation for sex with patient

On August 5, 2009 the Washington Department of Health (DOH) placed psychiatrist Doane Rising on at least three years probation for reasons of unprofessional conduct.

According to the DOH’s document, in winter 1998, Rising began treating a 38-year-old male patient, whose goal was to “extend socially as a person capable of intimate relations with women.”

In November 2002, Rising experienced “transference feelings” toward the patient but failed to transfer the patient’s care to another therapist.

In February 2003, Rising visited the patient at home when he failed to answer his phone for a therapy session (due to an incapacitating injury which rendered him unable to travel) and kissed and embraced the patient.  Still, she failed to transfer his care to another provider.

Within two weeks, she engaged in sexual intercourse with the patient and still neglected to transfer his care to another provider.

In addition to probation and practice monitoring, Rising is bound by other DOH-imposed conditions, including payment of a $10,000 fine.

SOURCE:

Stipulated Findings of Fact, Conclusions of Law and Agreed Order, in the matter of Doane M. Rising, M.D., license no. MD00034275, case no. M2008-118739, Washington Department of Health Medical Quality Assurance Commission, August 19, 2009.

Psychologist Graeme Ronald Schubert, suspended for unethical conduct

On October 2, 2009 Australian psychologist Graeme Schubert was briefly suspended by the Psychologists Tribunal of New South Wales, which found him guilty of “unsatisfactory professional conduct.”  In reading the Tribunal documents, there are places where one can’t help but wonder, “who is the patient here?”

The Tribunal reprimanded and suspended Schubert as the result of an investigation of Schubert’s treatment of a female patient (referred to in the official documents as “Client A”) between February 2004 and August 2005.   The investigation was motivated by the former patient, who allegedly attempted suicide following her treatment with Schubert and who lodged a complaint against him with the Psychologist Registration Board of New South Wales.

Among other things, according to the Tribunal’s document, Schubert failed to observe proper professional boundaries in relation to the patient, in the following way:

• Sometime during the early part of the therapy in 2004, Schubert told Client A that he had very strong sexual feelings for her.

• In late March or April 2004 whilst Client A was discussing being raped as a child, Schubert asked Client A to hold eye contact and breathe with him. Client A attempted to do this and felt exposed and vulnerable. He told Client A to wake up and get real and go home and that he felt sorry for her “poor bugger of a husband” because he probably wondered what the hell was going on.

• Sometime in 2005 Client A again raised the subject of the treatment which involved eye contact and breathing. Client A told Schubert that she was psychologically traumatised by this session. He said, “sit in the f***ing chair. The f***ing therapy has gone out of the f***ing window.”

• On one occasion, after listening to CDs and reading books that Schubert had lent her, Client A telephoned him at home and asked if she could visit him. Schubert replied “you only want to come out here for a f*** don’t you?”

• Schubert told Client A that he had an obsession with sex. He told her that there were many times he went home from their sessions ‘wet in his pants.’

• In or about July 2005 Schubert went into therapy sessions with Client A and cried. The psychologist told Client A that he was no longer seeing his girlfriend. During these sessions he would talk to Client A about getting desperate for sex and that he needed a woman.

• Schubert allowed Client A to kiss him on the face a number of times during therapy sessions.

• During the course of the therapy sessions Schubert would hug, caress or touch Client A. The psychologist would allow Client A to hug, caress or touch him.

• During a therapy session in 2004 Schubert told Client A that he had feelings for her. He told her he had a very, very deep love and affection for her.

• Schubert inappropriately disclosed to Client A that he and his ex-wife had been in marriage counselling and that when this marriage fell to pieces he went to his brother’s house and fell in the door crying; he also admitted he went through a stage when he was unsure about his sexuality and that his oldest son was homosexual.

• He told Client A that he ended up in a really bad depression for two years and was suicidal when he broke off with a lady he was seeing when he was 23 years old.

• In a therapy session in June or July 2005, Schubert told Client A about his relationship with his then girlfriend (now wife)–that he could not handle being controlled by her and that she was “special” but “had a lot of stuff covering it.” He also said that his girlfriend wanted to control him and that she had betrayed his trust. He said that he was the father of her little boy.

• Speaking to Client A about his mother, in particular that his mother had never picked him up when he was little and that she used to leave him to cry.

In addition to the reprimand and suspension, Schubert must comply with a number of conditions, including routine, Board-approved monitoring of his practice.

SOURCE:

Health Care Complaints Commission v. Schubert [2009] NSWPST 6 (2 October 2009), Matter Number: PST 002/2009 PS 0045947, Inquiry under Section 109.

State charges psychiatrist Frederick B. Davis with unprofessional conduct, alleged to have kissed a patient

On July 9, 2009, the Washington Department of Heath (DOH) charged psychiatrist Frederick B. Davis with unprofessional conduct.

According to the allegations listed in the DOH’s document, Davis treated a patient for anxiety and depression from January 2005 through December 2008.  The treatment included psychotherapy two to three times a week plus medication management.  During the last year of treatment Davis,  would sit close to the patient on the sofa in his office, hug her, kiss her on the cheek, and tell her how much he loved beautiful women.  During a session on or about December 21, 2008, Davis, who states on his website, “My commitment ultimately, is to self understanding and deeper insight into the needs of the greater community,” kissed the patient on the mouth.

The patient left treatment with Davis after that incident.

Davis’ patient charting was also found to be substandard.  Despite seeing the patient frequently for almost four years, his chart contained progress notes for only two sessions. The chart also includes limited prescribing records and no record of the medications that David prescribed the patient during the course of treatment nor the effects/side effects of the medications.

Medical board refuses to license Gregory Villabona, psychiatrist with history of sexual offenses and allegations

On July 28, 2009, the Maryland Board of Physicians denied psychiatrist Gregory N. Villabona a license, citing that Villabona “was disciplined in Delaware for acts that would be grounds for disciplinary action in Maryland, that is, immoral and unprofessional conduct in the practice of medicine.”

Villabona pleaded guilty to September 20, 2002 in Queen Anne’s County County (Maryland) to one count of third-degree sexual offense, a felony, and one count of fourth-degree sexual offense, a misdemeanor.  Twenty-eight additional counts were dropped in a plea agreement.

These charges were originated by two women, now in their 30s, who alleged Villabona had molested them in 1978 and 1983, when they were each 11 years old.

The Maryland State Police began investigating Villabona in 2001, after two women made the sexual misconduct allegations.  A third witness came forward while the investigation was under way.  The charges that were ultimately lodged against him included rape, attempted rape and assault.

Villabona, who faced as much as 11 years in prison, was sentenced November 25, 2002 to five years supervised probation before judgment.

Relative to his plea of guilty, the Delaware Board of Medical Practice sanctioned Villabona September 22, 2003 for unprofessional conduct, ordering him placed on five years supervised probation, to run concurrent with the probation before judgment imposed in the criminal case (he appealed the Board’s ruling but on April 28, 2004 the Superior Court upheld the decision.)

The Board acknowledged that the crimes for which he pleaded guilty  occurred before he was a licensed physician and were not committed on patients but that they nonetheless constituted “dishonorable or unethical conduct.”

On March 17, 2006, while still on probation, Villabona lost a civil lawsuit to a former patient who charged that he had sex with her.  A Delaware Superior Court jury awarded the former patient $200,000.  According to the lawsuit, the patient, who was 22 when she went to Villabona, had sought  treatment in 2002 for depression stemming from sexual abuse she suffered from ages 4 to 12.  After several visits, Villabona took her to a bar, where he bought her several rounds of drinks, although he knew she was on antidepressants (which he had prescribed), which are not supposed to be mixed with alcohol.  Afterward, Villabona drove the woman back to his office and had sex with her in the vehicle.

On June 3, 2008 the Delaware Medical Board restricted and limited Villabona to “providing treatment to male patients only over the age of 18 years.”  This order is to be in effect until June 2015.  He had initially been placed on three years’ probation by the Board in June 2007 for failure to comply with an earlier Board order.

– – – – –

SOURCES:

Sanctions July 2009, Maryland Board of Physicians monthly board actions report, as posted on board’s website: http://www.mbp.state.md.us/forms/jul09sanctions.pdf

Consent Agreement in Re: Gregory N. Villabona, Before the Delaware Board of Medical Practice, Case No. 10-35-06, filed July 3, 2008.

“Doctor on probation loses sex suit,” News Journal, March 25, 2006.

“Psychiatrist disciplined by medical practice board,” Dover Post, May 19, 2004

“Dover psychiatrist loses appeal,” Delaware State News, May 12, 2004.

“Doctor is given probation,” New Journal, November 26, 2002,

Entry on Gregory N. Villabona, M.D., State of Delaware Medical Board license actions, as posted on board’s website: http://dpr.delaware.gov/boards/medicalpractice/documents/dispaction.pdf

Psychologist Neil R. Shirreff convicted of assaulting female driver; lied to police

On October 1, 2009, Minnesota psychologist Neil Shirreff pleaded guilty to disorderly conduct, relative to a June 8^th incident in which he punched a woman in the face during an incident of road rage.

According to reports, Sherriff became angry when the woman cut him off on the street.  When both cars reached a stoplight, he walked up to her vehicle and hit her through her open window.

Before he was arrested, Shirreff was reported as denying to police that he’d hit the woman.  Rather, he said that he was scared of her because “there was something wrong with her.”  He said she was crying when she passed him and that after he checked on her, she screamed at him and followed his car.

Witnesses however told police that they had seen Shirreff attack the driver.

Shirreff then confessed.

As part of the plea deal, Sherriff was required to pay fines of $335, as well as the victim’s dental bills for injuries from being hit in the face.

Psychologist Howard Weinberg gets maximum prison sentence for possession of child pornography

On September 22, 2009, Iowa psychologist Howard Weinberg was sentenced to 10 years prison for possession of child pornography.  He will be on 10 years supervised release following his incarceration.

Weinberg was arrested in April 2008, the day after he took his computer to a local computer repair business.  Employees there contacted the Iowa City Police after suspected child pornography was found on the computer’s hard drive.  After obtaining a search warrant, police seized numerous computers, hard drives, flash storage units and other digital equipment from Weinberg’s home.

At sentencing, the government (possession of child pornography is a federal offense) entered into evidence numerous images and the text of a series of online chats involving Weinberg and possible minors in which child pornographic images were exchanged.

Despite the defense’s argument about Weinberg’s progress in therapy since his arrest as a mitigating factor in his sentencing, District Court Judge John A. Jarvey was not moved.  Noting the victims’ ages, the number of images, the fact that the images depicted the bondage and torture of children and, ultimately, the need protect the public, Jarvey handed down the maximum sentence.