ISSUE PRESENTED FOR REVIEW
Whether the Negligent Misconduct of Defendant Dr. Everett Echols was a Proximate Cause of the Death of Plaintiff's Decedent Todd Husted. In Connection with this, Amici Address the Proper Standard of Care and Provide Information to the Court Thereon.
HISTORY OF THE CASE
Amici incorporate, by reference, the statement describing the history of the case contained in the brief filed on August 7, 1995 by the Plaintiff/Appellant, June Husted.
INTERESTS OF THE AMICI
The National Alliance for the Mentally Ill ("NAMI") is a national, grassroots advocacy organization of families of people with severe mental illnesses and people with severe mental illnesses themselves. Comprised of 140,000 members, with more than 1,000 local affiliates in every state, NAMI's goals are to educate the public about severe mental illnesses as treatable brain disorders and to advocate for the advancement of treatment and services for people with these disorders. An important part of NAMI's mission is to advocate in behalf of people with severe mental illnesses involved with criminal justice systems. In this capacity, NAMI, along with Public Citizen's Health Research Group, published a report in 1992 entitled Criminalization of the Seriously Mentally Ill: The Abuse of Jails as Mental Hospitals. This report highlighted treatment needs and other problems experienced by people with severe mental illnesses in jails. Additionally, in 1995, NAMI published a Guide to Mental Illness and the Criminal Justice System: A Systems Guide for Families and Consumers.
The Tennessee Alliance for the Mentally Ill (TAMI) is a chartered state affiliate of the National Alliance for the Mentally Ill. TAMI is comprised of 2,000 members, with 33 affiliates dispersed throughout the state of Tennessee. TAMI also operates a staffed state office which is located in Knoxville. TAMI has long been an active force in conducting public education activities and in advocating for better treatment, services and supports for people with severe mental illnesses in Tennessee. Like NAMI, TAMI is actively involved in advocating for better treatment of people with severe mental illnesses who are in criminal justice facilities or who are involved with criminal justice systems.
STATEMENT OF THE CASE
In addition to the facts which follow, amici incorporate, by reference, the detailed statement of facts submitted by Plaintiff/Appellant June Husted in her brief filed with this Court on August 7, 1995.
This is an appeal from the judgement of Davidson County Circuit Court, no.89C -2247, in which the Court granted a Directed Verdict to Defendant Dr. Echols on the sole ground that Plaintiff had failed to prove that Dr. Echols' negligence was a proximate cause of the suicide death of her mentally ill son.
Todd Husted, the son of Plaintiff June Husted, had a long history of severe mental illness, with numerous psychotic episodes usually occurring when he stopped taking his medication, including suicide attempts and instances of self-mutilation. In May, 1988, Mr. Husted, responding to "voices in his head" drove east out of California. He abandoned his car in Middle Tennessee and was arrested on May 30, 1988 by the Nashville Police Department and charged with larceny of auto and malicious mischief.
Upon learning of her son's arrest, Plaintiff contacted personnel at the jail clinic and related her son's history, including his history of suicide attempts. She also advised the staff about medications he had taken in the past. She subsequently sent comprehensive medical records to the jail, including records of past hospitalizations.
On May 31, 1988, Mr. Husted was examined by Defendant Dr. Echols who diagnosed him as suffering from schizophrenia, undifferentiated type, and prescribed a regimen of psychotropic medications including Lithium Carbonate, Prolixin, Amoxipen and Cogentin. Dr. Echols also ordered a blood sample to be taken from Mr. Husted, but this was apparently never conducted. Over the next two weeks, Todd Husted's condition did not improve and, in fact, may have worsened. This is not surprising, given the distinct possibility that he was not taking his medication during this period. However, Dr. Echols was apparently never aware of this, as he conducted no followup visits or evaluations after his initial assessment of Mr. Husted. He also never personally reviewed the extensive medical records sent by Plaintiff June Husted which would have clearly revealed Todd Husted's suicidal tendencies. Instead, on June 14, 1988, two weeks after his initial evaluation and prescription of medications, Dr. Echols re-prescribed the same medications in the same dosages as he had previously prescribed on May 31. When asked what he based his decision to renew the prescriptions on, Dr. Echols responded that a worker at the jail who he could not identify had told him that Todd seemed to be "settling in ok." On June 19, 1995, Plaintiff received a call from her son in which he complained about the "voices" in his head and spoke of a failed suicide attempt the night before. Alarmed, she called the jail early the next morning to communicate that her son was deteriorating, appeared acutely suicidal and that he needed immediate medical attention. She called the jail several additional times that morning but he was never seen by the defendant or any other psychiatrist or mental health professional acting in behalf of the defendant. At 12:55 p.m. on that day, a correctional officer discovered that Todd Husted had hung himself. A subsequently autopsy revealed that there was no Lithium in Todd Husted's blood at the time of death, indicating that he had not taken this medication for at least the few days preceding his suicide.
Amici are submitting this brief to assist the Court in ascertaining the standard of care which exists for psychiatrists providing treatment to people with schizophrenia and other severe mental illnesses in jails.
BRIEF AND ARGUMENT
I. SCHIZOPHRENIA IS A SEVERE BRAIN DISORDER WHICH CAN BE SUCCESSFULLY TREATED IN MOST CASES:
Todd Husted was diagnosed by Defendant Dr. Echols as suffering from "schizophrenia, undifferentiated type". Schizophrenia is a severe disorder of the brain which afflicts 1.8 million Americans, approximately 1% of all American adults age 18 or over. E.F. Torrey, Surviving Schizophrenia 7 (Third Edition, 1995). Schizophrenia is a chronic illness with lifelong patterns of exacerbation and remission. W. Mendel, Treating Schizophrenia 2 (1989). Schizophrenia typically produces major disabilities in thinking, feeling and behavior. Id. People suffering from schizophrenia may frequently experience hallucinations (visual or auditory) and paranoid delusions. These individuals may also appear to be disconnected from reality, significantly impaired in the ability to participate in conversations or in interactions with others. NAMI Medical Information Series, Schizophrenia (1994).
Schizophrenia is not caused by socio-economic deprivation, parental abuse, or other environmental factors. Nor is it caused by drug abuse or other behaviors of a "discretionary" nature. There is today virtually no doubt within the scientific community that schizophrenia is a disorder that is rooted in the complex biochemistry of the brain. Torrey, Surviving Schizophrenia, supra, also, I. Gottesman, Schizophrenia Genesis: The Origins of Madness (1991). In short, schizophrenia is a brain disorder, just as Alzheimers disease and Parkinsons Disease are brain disorders. Moreover, schizophrenia should be viewed as a disease affecting the human body, just as heart disease, cancer and diabetes are viewed as diseases affecting the human body.
Although the impact of untreated schizophrenia can be devastating on the individual and his/her family, the disorder can be successfully treated in many cases. Neuroleptic medications are the cornerstone of treatment for schizophrenia. The emergence of new drugs such as Clozaril and Risperidol have yielded remarkable results for many people who were previously relegated to lives of misery in the back wards of hospitals. In fact, a report released in 1994 revealed that schizophrenia can be successfully treated through medication and psychosocial supports in 60% of all cases, a figure which compares favorably with the 41% success rate achieved through treatment of heart disease with angioplasty. National Advisory Mental Health Council, Health Care Reform for Americans with Severe Mental Illnesses 24 (1994).
II. INDIVIDUALS WITH SEVERE MENTAL ILLNESSES SUCH AS SCHIZOPHRENIA ARE DISPROPORTIONATELY REPRESENTED IN JAILS IN AMERICA:
A 1990 study of inmates in the Cook County (Illinos) jail revealed that prevalence rates of schizophrenia and major affective disorders (i.e. manic-depressive illness and major depression) are two to three times higher than those of the general population.
L. Teplin, Mental Disorder in an Urban Jail: Final report, (National Institute of Mental Health, Contract # RO1MH32884, 1990).
Although this study was limited to a large urban jail setting (Chicago), a 1992 report issued by the National Alliance for the Mentally Ill (NAMI) and Public Citizen's Health Research Group revealed that 7.2% of all jail inmates nationally suffer from schizophrenia or major affective disorders. National Alliance for the Mentally Ill and Public Citizen's Health Research Group, Criminalizing the Seriously Mentally Ill: The Abuse of Jails as Mental Hospitals 14-15 (1992). This represents nearly three times the proportion of people with these disorders in general society. The NAMI/Public Citizen report further revealed that many people with severe mental illnesses in jails have been charged with misdemeanors or minor felonies. The four most common offenses cited by jails for arresting people with severe mental illnesses were assault and/or battery (listed by 40.5 of jails), theft (30.2%), disorderly conduct (29.4%) and drug and alcohol-related crimes (29.0%). Many of the respondents acknowledged that the offenses which people were arrested were little more than manifestations of the arrestee's mental illness. For example, disorderly conduct was clarified by many respondents to mean nuisance crimes, such as "urinating in public", "vagrancy" or "acting strange". (Attached as Addendum I). Even more disturbing, 28.9% of the jails which responded admitted that they sometimes detain people with severe mental illnesses who have no criminal charges against them at all. (Emphasis added). This included 30.3% of all of the responding jails located in Tennessee. (Attached as Addendum II). This trend was particularly notable with smaller/rural jails. The implication of this finding was the realization that a significant number of the jails appear to be "holding facilities" for people with severe mental illnesses who are in psychiatric crisis but have not committed any crimes.
The survey conducted by NAMI and Public Citizen also revealed the extent to which jails are frustrated by the overwhelming numbers of people with severe mental illnesses they are currently housing. Many respondents expressed their belief that "most of these people shouldn't even have to be here." Moreover, many respondents indicated that the circumstances of being jailed, coupled with lack of appropriate treatment, resulted in a worsening of the symptoms experienced by individuals with severe mental illnesses in these settings. Id. at 62-64. This, according to respondents, led to serious administrative problems for jails and also impacted adversely on the ability of these systems to resolve these cases in orderly, efficient and cost-effective manners.
III. THE STANDARD OF CARE REQUIRED OF A PHYSICIAN WHO TREATS PATIENTS IN CORRECTIONAL FACILITIES IS THE SAME AS THAT OF THE AVERAGE, COMPETENT PHYSICIAN IN THE COMMUNITY:
The common law duty of care required of a physician providing medical services in jails and prisons is the same as that required of a physician providing medical services in the community. This duty of care is not diminished or mitigated by an individual's status as a convicted or accused criminal.
This premise was recently articulated by an Illinois Appellate Court, Moss v. Miller, 254 Ill. App. 3d 174, 625 N.E.2d 1044 (Ill. App. 4 Dist., 1993). (Attached as Addendum III). In this case, a former inmate filed medical malpractice actions against prison officials and an optometrist for failure to provide appropriate treatment. On appeal, the Court addressed the issue of the standard of care required of a medical practitioner providing medical services in correctional settings. "If it has not already been recognized, we now hold that those practicing the medical arts in the penitentiary are held to the same standard of care as those practicing in the communities of our State. To hold otherwise would be to abandon reason and common sense." Id. at 1051.
In Shea v. Spokane, 17 Wn. App. 236, 562 P. 2d 264 (1977), an appellate Court in Washington State similarly addressed the issue of the standard of care required of a physician providing medical services in jail. (Attached as Addendum IV). In this case too, the Court held that the standard of care required of a physician in a jail setting is that of the average, competent physician. "Here, the jail physician, a general practitioner, is required to exercise the same standard of care of the average, competent doctor, and this is the class to which he belongs." Id. at 246.
The National Commission on Correctional Health Care (NCCHC), the recognized authority in the development of national mental healthcare standards for jails, explicitly states in its standards manual that it is not acceptable to compromise the quality of healthcare services to prisoners in jail settings. "Decisions and actions regarding the health care services provided to inmates are the sole responsibility of qualified health care personnel and are not compromised for security reasons." National Commission on Correctional Health Care, Standards for Health Services in Jails, 3 (1992). (Attached as Addendum V).
The American Psychiatric Association, the influential professional association of psychiatrists in the United States, also expressly states that psychiatrists treating patients in correctional settings must provide the same standard of care to those patients as is provided to patients in the community. "The fundamental policy goal should be to provide the same level of mental health services to patients in the criminal justice process that are available in the community." American Psychiatric Association, "Psychiatric Services in Jails and Prisons" 5 (Task Force Report 29, 1989). (Attached as Addendum VI).
Recognition that health and mental health care providers in jails must meet the same standards as apply to their colleagues in the community is further implicit in the standard on "credentialing" developed by the NCCHC. The policy reads as follows:
"Written policy and defined procedures require, and actual practice evidences, that state licensure, certification, or registration requirements and restrictions apply to health care personnel who provide services to inmates. Verification of current credentials is on file at a ready accessible location."
National Commission on Correctional Health Care, Standards for Health Services in Jails, Id. at 23. (Attached as Addendum VII).
Finally, while the unpredictable, often chaotic circumstances of the jail or prison may create special difficulties in providing treatment, these circumstances do not lessen the standard of care required of a physician treating prisoners in correctional facilities. In Moss v. Miller, supra, the Court stated its recognition that "constraints necessarily exist in correctional institutions which may well have a negative effect on the ability to deliver medical services. ... The medical arts practitioner should not be held liable for injuries resulting from these constraints. However, those types of constraints, while interfering with proper medical care, do not lessen the standards required of the medical art practitioner." Id. at 1051.
IV. IN THIS CASE, DR. ECHOLS' FAILURE TO RESPOND TO TODD HUSTED'S DETERIORATING PSYCHIATRIC CONDITION WHILE IN THE NASHVILLE METRO JAIL RAISES SERIOUS QUESTIONS ABOUT WHETHER HE COMPLIED WITH MINIMALLY ACCEPTABLE PROFESSIONAL STANDARDS:
Amici believe that the circumstances of this case raise serious questions about whether Dr. Echol's treatment of Todd Husted while in the metro jail complied with minimally acceptable professional standards. These questions revolve specifically around two concerns.
First, was Dr. Echols failure to review the materials submitted by June Husted, including the extensive records of past hospitalizations, a breach of his duty to provide minimally adequate care to Todd Husted?
Dr. Echols has acknowledged that had he seen June Husted's letter of June 3, 1988, and the psychiatric records of Todd Husted showing the history of severe psychiatric illness, he, Dr. Echols, would have re-evaluated Todd Husted and if necessary placed him on suicide precautions. There is disagreement between June Husted and Dr. Echols about whether they spoke by telephone at the time of his (Dr. Echols') first and only face to face contact with Todd Husted. There is, however, no disagreement that Dr. Echols never reviewed the extensive records submitted by June Husted, nor did he ever respond to subsequent calls she placed to the clinic, including calls to express alarm about Todd's deteriorating condition. Nor is there any disagreement that Dr. Echols relied exclusively on his initial evaluation of Todd Husted and information provided by Mr. Husted, whom Dr. Echols described as "disoriented to year, place", "uncooperative", "evasive" and "a poor historian". Exhibit # 75, Medical Record Transcription of report dictated by Dr. Echols, 5-31-88, attached as addendum to Brief of Defendant/Appellee.
Second, was the virtual lack of followup by Dr. Echols after his initial evaluation of Todd Husted a breach of his duty to provide minimally adequate care to Mr. Husted?
After his evaluation of Todd Husted on May 31, 1988, Dr. Echols prescribed a regimen of medications, including Lithium, Prolixin, Cogentin and Amoxapin. He further ordered a Laboratory Exam within seven (7) days to evaluate, inter alia, Mr. Husted's Lithium level.
It appears that Dr. Echols had no further personal contacts with Mr. Husted from that date (May 31,, 1988) until Mr. Husted was found dead after hanging himself on June 20, 1988. As noted in the statement of facts, supra, p. 2, Dr. Echols re-prescribed the same medications, in the same dosages, on June 14, 1988, without ever examining Mr. Husted, or apparently speaking to anyone with specific experience in the treatment and evaluation of people with severe mental illnesses. Additionally, Dr. Echols never followed up on his order for monitoring of lithium levels. If he had, he would have discovered that the blood tests were never conducted. Finally, Dr. Echols never responded to repeated phone calls from June Husted, who was becoming increasingly concerned about the deteriorating status of her son's condition. On the day that Mr. Husted took his life, June Husted, a trained clinical psychologist with extensive experience in treating people with severe mental illnesses, recognized that he was in acute crisis. However, she was never able to reach Dr. Echols, who had left word that he would not be at work that day, and there apparently had been no arrangements made for backup coverage at the jail.
The National Commission on Correctional Health Care has developed specific standards for treatment of inmates with "special needs" in jail settings. The definition of inmates with special needs includes "inmates with special mental health needs", who are defined as including "self-mutilators, the aggressive mentally ill, suicidal inmates, sex offenders and substance abusers." Standards for Health Services in Jails, supra, at 62. The Commission's standards further require that for each special need patient, "there is a written, individual treatment plan, developed by a physician or another qualified health practitioner. The plan includes instructions about diet, exercise, adaptation to the correctional environment, medication, the type and frequency of diagnostic testing, and the frequency of follow-up for medical evaluation and adjustment of treatment modality." (Emphasis added). Id.. (Attached as Addendum VIII).
The Commission's standards also include specific procedures for suicide prevention, which include "procedures for monitoring an inmate who has been identified as potentially suicidal," and "procedures for communication between health care and correctional personnel regarding the status of an inmate, ... to provide clear and current information." Id., 65-66. (Attached as Addendum IX).
Amici assert that the failure of Dr. Husted to identify Todd Husted as suicidal was due to his lack of followup in this case, coupled with his failure to review the extensive past records provided and his failure to return the repeated calls placed to him by Plaintiff/Appellant June Husted.
The tragic death of Todd Husted, an individual suffering from schizophrenia, a severe brain disorder, could have been prevented with appropriate psychiatric treatment during his incarceration in the Nashville Metro Jail. For the reasons stated above, amici respectfully submits that the judgement dismissing Defendant Dr. Echols on Directed Verdict be reversed and that this matter be remanded for trial.
Ronald S. Honberg N. Sue Van Sant Palmer
Maryland Bar No. 143-46-4747 Farris, Warfield and Kanaday
National Alliance for the Mentally Ill 424 Church St., 18th Floor
200 North Glebe Road, Suite 1015 Sun Trust Center
Arlington, VA 22203-3754 Nashville, TN 37219
Maryland Bar No. 143-46-4747 Tennessee Bar No. 014437
Certificate of Service
I hereby certify that a true and exact copy of the foregoing has been hand delivered to Larry Levine and Jill Hanson, 210 Third Avenue North, P.O. Box 190683, Nashville Tennessee, 37219-0683 and to Joseph Johnston, P.O. Box 120874, Nashville, Tennessee 37212 on this the day of October, 1995.
N. Sue Van Zant Palmer
LIST OF ADDENDA
Addendum I and Addendum II: Two tables from report of the National Alliance for the Mentally Ill and Public Citizen's Health Research Group, Criminalizing the Seriously Mentally Ill: The Abuse of Jails as Mental Hospitals, (1992)
Table 2.2: "Percentage of Jails Holding Mentally Ill Without Criminal Charges, By State.
Table 2.3: "Offenses listed as one of three most common for arresting the seriously mentally ill."
Addendum III: Moss v. Miller, 254 Ill.App.3d 174, 625 N.E. 2d 1044 (1993) - The opinion published in the Northeast Reporter is included because the published opinion from the Illinois Reporter was not yet available.
Addendum IV: Shea v. Spokane, 17 Wn. App. 236, 562 P.2d. 264 (1977).
Addendum V: National Commission on Correctional Health Care, Standards for Health
Services in Jails (1992) - Standard J-01 entitled "Responsible Health Authority."
Addendum VI: American Psychiatric Association, Psychiatric Services in Jails and Prisons (1989) - Section entitled "The Quality of Care."
Addendum VII: National Commission on Correctional Health care, Standards for Health Services in Jails (1992) - Standard J-17 entitled "Credentialing."
Addendum VIII: Id., Standard J-50 entitled "Special Needs Treatment Plans."
Addendum IX: Id., Standard J-54, entitled "Suicide Prevention."