Bradley v. Ray (1995)

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ploads/2011/06/legalbrief.jpg” alt=”” width=”91″ height=”108″ />Bradley v. Ray (1995)

Court of Appeals of Missouri, Western District

904 S.W.2d 302

Nature of Case

Whether psychologists in Missouri have a duty to warn.

Facts of Case

Kelly Pope, a minor child, was allegedly sexually abused by her step-father, Lester Pope, from 1980-1989. Kelly was allegedly abused from the time she was four years old until she was 13 years old. Kelly’s’ mother, Nancy Kopin, became aware of the abuse and allegedly arranged for Lester Pope to receive psychological services from psychologists at a private practice in Columbia, Missouri. Dr. Ray and Dr. Strnad were psychologists who met with Mr. Pope in 1988 for counseling, but counseling was terminated shortly thereafter.

The psychologists were allegedly aware that Mr. Pope was abusing Kelly, but did not report the abuse to any law enforcement authorities. In a suit filed on Kelly’s behalf, it was alleged that the psychologists were aware of the abuse and should have reported the abuse as required by the Child Abuse Reporting Act. It is alleged that Kelly continued to be abused, due to their failure to report the abuse. The plaintiff stated a claim on the following grounds: 1) aiding and abetting an intentional child abuse tort, 2) common law negligence for failing to warn appropriate officials, 3) a private cause of action and negligence per se based on the violation of the Child Abuse Reporting Act, and 4) prima facie tort. The plaintiff argued that Dr. Strnad’s widow, Donna Strnad as a defendant ad litem was prejudicial.

 

The Circuit Court of Boone County dismissed the plaintiff’s complaint against the psychologists, for failure to state a claim, and based on the absence of a duty owed to Kelly. The plaintiff appealed the order of dismissal.

Issues

Did the psychologists in Missouri have a common law duty to warn readily identifiable victims of the violent intentions of a psychotherapist’s patient?

Holding

 

The court affirmed the dismissal of all allegations, with the exception of the count alleging common law negligence for failure to warn. The court reversed and remanded the dismissal, stating that the defendants had a duty to warn appropriate authorities of the possible risk of future harm. The court recognized the “right to sue only for failure to warn of specific risks of future harm to readily identifiable victims.” The court said that a duty of action only exists if the parties are in a “special relationship,” and explained that a “private person has no duty to protect another from deliberate criminal attacks by a third person.” The court also recognized that the “touchstone for the creation of a duty is foreseeability.” The court held that the defendants should have reasonably foreseen that their patient posed a threat of serious harm to Kelly. The state of Missouri adopted Tarasoff, and imposed the duty to warn in their holding:

Specifically, we hold that when a psychologist or other healthcare professional knows or pursuant to the standards of his profession should have known that a patient presents a serious danger of future violence to a readily identifiable victim the psychologist has a duty under Missouri common law to warn the intended victim or communicate the existence of such danger to those likely to warn the victim including notifying appropriate enforcement authorities.

Rationale

The Court concluded that “the social consensus of Missouri favors protection against the kind of injury alleged to have been suffered in this case. The State of Missouri joined this battle against abuse by enacting the Child Abuse Reporting Act which requires individuals, such as the defendants in this case, to report child abuse to the Division of Family Services.” The Court determined that the defendants were already under “legal obligation; to warn the Department of Family Services of the suspected abuse, and further stated, “the duty that we recognize today thus does not impose any additional obligation to that which is already imposed on defendants under Missouri law. Indeed the duty we recognize today is far narrower than is section 210.115, which requires reporting of all past or suspected future child abuse.”

Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)

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legalbrief.jpg” alt=”” width=”91″ height=”108″ />Daubert v. Merrell Dow Pharmaceuticals, Inc.

United States Supreme Court

509 U.S. 579 (1993)

Nature of Case

Federal standard for admitting expert testimony.

 

Facts of Case

Two minors and their guardians brought suit against Merrell Dow Pharmaceuticals in a California state court alleging that their antinausea medication, Bendectin, caused serious birth defects when ingested by pregnant women. The suit was removed, on diversity grounds, to the United States District Court for the Southern District of California.

Experts for the plaintiffs presented data that had not been published or subjected to peer review and their opinions rested on the reanalysis of previously published data.

The United States District Court for the Southern District of California granted the defendant’s motion for summary judgment on the grounds that the petitioners’ expert opinions were inadmissible, because the reanalysis was unreliable due to it being unpublished and evidence was only admissible under the Federal Rules if it was sufficiently established to have gained general acceptance in the field. On appeal to the United States Court of Appeals for the Ninth Circuit, the district court’s summary judgment for the defendant was affirmed. The plaintiffs petitioned for writ of certiorari and the United States Supreme Court granted the petition.

 

Issue

Did the district court and the United States Court of Appeals for the Ninth Circuit err in excluding the petitioners’ expert testimony by incorrectly requiring the testimony to meet Frye’s general acceptance standard?

 

Holding

In a unanimous decision, the United States Supreme Court held that the Federal Rules of Evidence, not Frye, provide the standard for admitting expert scientific testimony in a federal trial. According to the Court’s decision, general acceptance in the field is not a prerequisite for admissibility of scientific testimony or evidence, so long as the standards of reliability and relevance under the Federal Rules were met. The Federal Rules assign the judge the task of identifying whether the basis for the expert’s testimony is scientifically valid and can be properly applied to the facts at issue. In assessing whether the underlying reasoning is valid and relevant, the judge, acting as gatekeeper, may consider the following:

  1. Whether the theory or technique in question can be (and has been) tested.
  2. Whether it has been subjected to peer review and publication.
  3. Whether the known or potential error rate is acceptable.
  4. Whether it has attracted widespread acceptance within a relevant scientific community.

The Court vacated the appellate court’s affirmance of summary judgment in favor of the defendant and remanded the case for further proceedings.

Rationale

The Federal Rules of Evidence, adopted in 1975, superseded the general acceptance common law standard from the 1923 D.C. Circuit Court’s decision in Frye v. United States. While general acceptance can be considered, it is not required. The application of the Federal Rules was to allow judges more flexibility and broader discretion in the admissibility of testimony and to allow for the inclusion of novel evidence that may be scientifically valid and reliable, but not yet generally accepted in the field.

Hedlund v. Orange County (1983)

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/06/legalbrief.jpg” alt=”” width=”91″ height=”108″ />Hedlund v. Orange County (1983)

Supreme Court of California

34 Cal. 3d 695

Nature of Case

Whether the duty to warn/protect extends to a foreseeable and identifiable bystander who has a close relationship to the potential victim.

Facts of Case

LaNita Wilson and Stephen Wilson (no relation) were involved in therapy. Stephen informed the psychologists of his intent to harm LaNita. On April 9, 1979, Stephen used a shotgun and shot and wounded LaNita. She threw herself over her son, Darryl, who was seated next to her, and while she was wounded, he was not physically injured. LaNita and Darryl filed suit against two psychologists in November 1980, for professional negligence, due to their failure to warn her of the threats made against her and the danger posed to her by Stephen. The complaint also alleged that the duty of care owed to LaNita extended to her minor child, Darryl, who allegedly suffered emotional injuries as a result of witnessing the attack. Darryl argued that it was foreseeable that if Stephen’s threats were carried out, that he posed a risk to bystanders, particularly those in a close relationship to LaNita, and when they failed to take action to protect LaNita, the duty which extended to him was breached. He did not allege that the psychologists had the specific duty to warn or protect him, but rather when they failed to protect LaNita, they breached the duty which extended to him.

 

The two psychologists filed a demurrer to the two counts, but it was overruled by the trial court. The two psychologists then petitioned the California Supreme Court for a writ of mandate, in order to compel the trial court to vacate their decision to overrule their demurrer. They based their writ of mandate on two arguments. First, they argued LaNita’s claim was barred by a one-year statute of limitations for personal injury actions, and secondly, that Darryl’s claim failed to state a cause of action. The psychologists argued that recognizing dangerousness is an aspect of their professional duties, and negligent failure to diagnose or predict this behavior would be considered professional negligence; however, they further argued that injury which results from failure to warn a third party is ordinary negligence.

Issues

Is failure to warn a third party considered professional negligence? Is there an extension of the duty to warn/protect to a foreseeable bystander who has a close relationship with a potential victim?

 

Holding

The court denied the petition for a writ of mandate. The court determined that a therapists’ failure to warn a potential victim of a threat made by a patient constitutes professional negligence. The court also held that the duty “owed to the woman extended to her minor child, since the risk of harm to him was foreseeable as a matter of law and since he was identifiable as a person who might be injured if the patient attacked the woman.”

Rationale

The Court concluded “the duty to diagnose or recognize a danger posed by a patient and the duty to take appropriate steps to protect a potential victim are not separate or severable, but together constitute the duty giving rise to a cause of action based on failure to warn.”

Dissent

Justice Mosk argued that the majority should not have mused about whether psychologists should have known of the threatened violence, because in this case they had actual knowledge of threats. It was concluded that knowing of these threats and failing to warn is not malpractice, but negligence, and agreed with the petitioners that the statute of limitations should have been one year, and the mandate should have been granted. The justice further contended “the majority opinion unfortunately perpetuates the myth that psychiatrists and psychologists inherently possess powers of clairvoyance to predict violence.”

Amicus Brief

Following the Supreme Court of California’s decision, the petitioners requested rehearing of the case, and the amicus brief filed by the APA urged the court to rehear the case in light of social science evidence. Additionally, the APA contended that “the Court’s failure to clarify the limits of its opinion leaves open the possibility that therapists will be held liable to an infinite class of persons who are post hoc denominated as foreseeable bystanders and are not themselves victims of a patient’s violence, and that those therapists will be required to take unspecified steps to satisfy their duty of due care to those persons.”

Heller v. Doe (1993)

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legalbrief.jpg” alt=”” width=”91″ height=”108″ />Heller v. Doe (1993)

United States Supreme Court

509 U.S. 312

Nature of Case

Whether it is unconstitutional, according to the Equal Protection Clause, of the 14th Amendment to have differing involuntary commitment criteria for the mentally retarded and mentally ill.

Facts of Case

In 1982 an action was filed on behalf of mentally retarded individuals who were civilly committed to Kentucky institutions. They alleged that their Constitutional rights were violated because they were not provided certain procedural protections under Kentucky statute. Kentucky amended its statute numerous times, but each revision was attacked by the group. In 1990, Kentucky’s revised statute included that the burden of proof for civilly committing someone on the basis of mental illness was beyond a reasonable doubt, and it was a clear and convincing burden for those with mental retardation. Additionally, guardians and immediate family members were allowed to participate as if they were parties in the commitment cases for the mentally retarded, but this was not allowed for those with mental illness.

The District Court granted a partial summary judgment in favor of the group of committed patients, stating that the differences in the burden of proof for the two groups violated the 14th Amendment Equal Protection Clause, because the distinction was not rational. The court also determined that the participation by guardians and family members also violated the equal protection and due process clauses under the 14th Amendment. The United States Court of Appeals for the Sixth Circuit affirmed.

The United States Supreme Court then heard the case to evaluate whether the Kentucky statute was unconstitutional based on the 14th Amendment’s equal protection and due process.

Issue

Did the United States Court of Appeals for the Sixth Circuit err in affirming the district court’s judgment, which determined the Kentucky civil commitment statute was unconstitutional because it violated equal protection and due process?

 

Holding

In an opinion by Justice Kennedy, the Court reversed the decision of the appellate court, and found the Kentucky statute did not violate equal protection or due process rights of the mentally retarded.

Rationale

The Court concluded that mental retardation is a developmental disability which is diagnosed early on in life and is a permanent condition; therefore, there is more evidence of the existence of disorder, and it is more easily and accurately diagnosed. They argued mental illness manifests later in life and can have a fluctuating course; therefore, it is more difficult to diagnose. Additionally, the Court stated that treatments for the mentally regarded are, on average, less intrusive than those for the mentally ill. Because of these differences, the Court concluded it was rational to have a higher burden of proof for the civil commitment of the mentally ill as compared to the mentally retarded. The Court also concluded that the guardians and parents ability to act as parties in the cases of the mentally retarded would be helpful because they could offer valuable insights, which would not be the case with the mentally ill.

Dissent

O’Connor dissented in part, arguing that the varying standards of proof were irrational, but allowing guardians to participate in the proceedings had rational merit.

Souter, Blackmun, and Stevens said there was no rational justification for the difference in burden of proof, nor was there justification for the involvement of family members for one group and not the other.

Indiana v. Edwards (2008)

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ploads/2011/06/legalbrief.jpg” alt=”” width=”91″ height=”108″ />

Indiana v. Edwards (2008)

United States Supreme Court

554 U.S. 164

Nature of Case

Whether it is unconstitutional, according to 6th and 14th amendments, for a state to impose counsel on a defendant who is competent to stand trial and requests self-representation (i.e. can a state adopt a higher standard of competency for pro se defendants?).

Facts of Case

In July 1999, Amhad Edwards attempted to steal a pair of shoes from an Indiana department store, he shot at a security guard, and he wounded a bystander. He was charged with attempted murder, battery with a deadly weapon, criminal recklessness, and theft. He was diagnosed with schizophrenia, was found incompetent to stand trial, and was committed to a state hospital. When he was ultimately found competent to stand trial, he requested to represent himself due to differing opinions with his defense counsel about the defense he wished to pursue. The trial judge said he was competent to stand trial but not competent to defend himself. Counsel was imposed and the defendant was found guilty. Edwards appealed on the grounds that his Constitutional rights were violated. The appellate court agreed with Edwards and granted him a new trial. On appeal, the Indiana Supreme Court affirmed the appellate court decision. Indiana petitioned the United States Supreme Court to hear the case and the Court granted cert.

Issue

If a defendant is found competent to stand trial, is the trial court required, according to the Constitution, to allow the defendant to represent himself at trial?

Holding

In a 7 to 2 decision, the Court vacated the decision of the Indiana Supreme Court. In an opinion delivered by Justice Breyer, the Court found that “the United States Constitution does not forbid the State from insisting that respondent proceed to trial with counsel.” The opinion further stated, “the Constitution permits states to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.”

The Court did not outline a specific standard regarding what was required to be found competent for self-representation. Indiana had requested a specific standard requiring the defendant to be coherent in his communication with the court or jury, but the Court declined to use that standard. The Court stated that “the trial judge will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant.” The Court also refused to vacate their decision in Faretta as requested by Indiana.

Rationale

The Court concluded that the right to self-representation is not absolute. They cited that a single competency standard would be problematic, because a mental illness is not a unitary construct, and the magnitude with which it impacts a defendant’s competence related abilities can change over time. They stated that allowing a defendant to represent himself, when he does not have the mental capacity to do so “undercuts the most basic Constitutional right to a fair trial. The government’s interest in ensuring integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.” They determined that prior cases, such as Dusky, Godinez, and Faretta did not answer the question concerning right to self-representation that was presented in this case. Their opinion was that the Dusky and Drope cases presumed the defendant would be represented by an attorney and the Faretta case did not consider mental competency for self-representation. In Godinez, the Court solely looked at the defendant’s competence to waive his right to counsel and not his competence to represent himself, because the defendant only wanted to change his plea to guilty, he did not want to go to trial.

Dissenting opinion

Justice Scalia, joined by Justice Thomas dissented on the grounds that the “Constitution does not permit a State to substitute its own perception of fairness for the defendant’s right to make his own case before the jury – a specific right long understood as essential to a fair trial.” The Justices were of the opinion that if the defendant was competent to stand trial and could waive his rights to counsel knowingly and voluntarily, then the defendant had “a constitutional right to conduct his own defense.”

Filed Under: Legal Briefs, Professional Info Tagged With: ,

McIntosh v. Milano (1979)

June 28, 2011 By Comments

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clinicalforensicpsychology.org/wp-content/uploads/2011/06/legalbrief.jpg” alt=”” width=”91″ height=”108″ />McIntosh v. Milano (1979)

Superior Court of New Jersey

403 A. 2d 500

Nature of Case

Whether a therapist in New Jersey has a duty to warn or protect an intended or potential victim, from a therapy patient.

Facts of Case

The defendant, Michael Milano, M.D. was a board-certified psychiatrist, and was a licensed practitioner in New Jersey. His patient, Lee Morgenstein, was 15 years old in 1973, and was seen by Dr. Milano for two years. Morgenstein allegedly had a relationship with his next-door neighbor, Kimberly McIntosh, who was 20 years old in 1973. Following the dissolution of the alleged relationship, Morgenstein became jealous of her new dating relationships, and fired a B.B. gun at either her or her boyfriend’s car.

During a therapy session, Morgenstein divulged to Dr. Milano that he carried a knife and showed this to his psychiatrist, and said he used it to scare people away. He also endorsed thoughts about hoping McIntosh would “suffer,” and was upset he did not have contact with her any longer. He mentioned that he was not in possession of her new phone number, since she moved out of her parents’ residence. According to Dr. Milano, Morgenstein never made any explicit threats to harm or kill McIntosh; however, he endorsed fantasies of violence and retaliation. Additionally, Morgenstein had a problem with substance abuse, and had abused Seconal in the past. Dr. Milano had prescribed Morgenstein Seconal, but had told him to only take the medication on school nights, when he was having trouble sleeping. On July 8, 1975, Morgenstein stole a prescription form from Dr. Milano and tried to have it filled for Seconal at a pharmacy, but was unsuccessful. He then left the pharmacy, and was very upset. He went to his home, obtained a pistol he had hidden, waited for McIntosh to visit her parents, took her to a local park, and fatally shot her in the back. It is unknown if she went to the park with Morgenstein willingly, or if she was forced to go there at gun-point.

During Morgenstein’s criminal case, Dr. Milano testified about his client’s substance abuse history and violent fantasies. The McIntosh family later brought a wrongful death suit against Milano for his failure to contact the family and warn them of the danger of his patient to Miss McIntosh. They said he had a “duty to warn Kimberly McIntosh, her parents or appropriate authorities that Morgenstein posed a physical threat or danger to decedent,” and asserted he breached that duty. Milano argued that no duty existed in the state of New Jersey, and the court should neither create one, nor allow one, such as the Tarasoff II, to be asserted. He argued the duty was “unworkable,” due to predictions of dangerousness being unreliable, and further asserted breaking confidentiality could interfere with effective treatment, it could deter therapists from treating violent patients, and would result in increased commitments of patients. The defendant, Milano, sought summary judgment.

 

Issues

Did the psychiatrist have a duty to warn or protect the third-party victim from his patient? Do factual questions remain, or can summary judgment be granted?

 

Holding

The Court held that “a psychiatrist or therapist may have a duty to take whatever steps are reasonably necessary to protect an intended or potential victim of his patient when he determines, or should determine, in the appropriate factual setting and in accordance with the standards of his profession….that the patient is or may present a probability of danger to that person.” The court denied summary judgment in favor of the defendant, and decided factual questions remained concerning whether the psychiatrist breached the appropriate duty. The court stated that the case should be presented to a jury to decide, based on expert testimony, whether the duty was in fact breached.

Rationale

The Court concluded that even though some therapists may not accept potentially dangerous clients into their therapy practice, because of the duties imposed, the court still believed this was preferable to leaving the victims without “any remedy whatsoever.” Further, the court did not agree that the duties would result in increased civil commitments, simply because the therapist would not want to risk civil lawsuits. Therefore, the court decided that a jury could review the case and make a determination concerning breach of duty.

Filed Under: Legal Briefs, Professional Info Tagged With: ,