Update on legal issues associated with tardive dyskinesia

Journal of Clinical Psychiatry

Volumn 61, Issue SUPPL. 4, 2000, Pages 45-57

  Slovenko, Ralph ^a  

^a WAYNE STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

AMANTADINE; BENZATROPINE MESILATE; CARBAMAZEPINE; CHLORPROMAZINE; CLOZAPINE; DIPHENHYDRAMINE; HALOPERIDOL; LOXAPINE SUCCINATE; NEUROLEPTIC AGENT; NORTRIPTYLINE; PERPHENAZINE; PROCYCLIDINE; RISPERIDONE; SILDENAFIL; THIORIDAZINE; TIOTIXENE; TRIFLUOPERAZINE; TRIHEXYPHENIDYL; VALPROATE SEMISODIUM;

ARTICLE; DRUG MANUFACTURE; HUMAN; LAW; LEGAL ASPECT; MEDICAL LIABILITY; PATIENT RIGHT; PRIORITY JOURNAL; RISK BENEFIT ANALYSIS; STANDARD; TARDIVE DYSKINESIA;

ANTIPSYCHOTIC AGENTS; COMMITMENT OF MENTALLY ILL; DELIVERY OF HEALTH CARE; DRUG INDUSTRY; DUTY TO WARN; DYSKINESIA, DRUG-INDUCED; EXPERT TESTIMONY; FORENSIC PSYCHIATRY; HUMANS; INFORMED CONSENT; LEGISLATION, DRUG; MENTAL COMPETENCY; PRODUCT LABELING; PSYCHOTIC DISORDERS; UNITED STATES;

EID: 0034104341     PISSN: 01606689     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (92)

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2. Neugeboren J. Meanwhile, back on the ward.... Am Scholar 1994;63:337. It is not a unique story. See also Wyden P. Conquering Schizophrenia. New York, NY: Knopf; 1998
3. Lince v Monson, 363 Mich 135, 108 NW2d 845 (1961); see Slovenko R. Malpractice in psychotherapy: an overview. Psychiatr Clin North Am 1999;22:1
4. Bowman v Songer, 820 P2d 1110 (Colo 1991); Thompson v Carter, 518 So2d 609 (Miss 1987). In Morlino v Medical Center of Ocean County, 706 A2d 721 (NJ 1998), the court held that the PDR does not alone establish the standard of care, although the jury may consider portions of the PDR. when supported by expert testimony, in determining the standard.
5. Schonecker M. En eigentumliches Syndrom im oralen Bereich bei Megaphen Applikation. Nerventarzi 1957;28:35. Noted in: Crane GE. Persistent dyskinesia. Br J Psychiatry 1973;122:395
6. Schonecker M. En eigentumliches Syndrom im oralen Bereich bei Megaphen Applikation. Nerventarzi 1957;28:35. Noted in: Crane GE. Persistent dyskinesia. Br J Psychiatry 1973;122:395
7. See, eg, Crane GE. The prevention of tardive dyskinesia. Am J Psychiatry 1977;134:756
8. Steinmann M. The catch-22 of antipsychotic drugs. New York Times Sunday Magazine. March 18, 1979:114
9. Tardive Dyskinesia/Diagnosis and Management. East Hanover, NJ: Sandoz; 1978
10. Baker B. Expect a flood of tardive dyskinesia malpractice suits. Clin Psychiatry News. Jan 1984:3
11. See, eg, Appelbaum PS, Schaffner K, Meisel A. Responsibility and compensation for tardive dyskinesia. Am J Psychiatry 1985;142:806. Crane GE. Clinical psychopharmacology in its 20th year. Science 1973;181:124
12. See, eg, Appelbaum PS, Schaffner K, Meisel A. Responsibility and compensation for tardive dyskinesia. Am J Psychiatry 1985;142:806. Crane GE. Clinical psychopharmacology in its 20th year. Science 1973;181:124
13. Casey DE. Clinical aspects of tardive dyskinesia. Presented at the Cleveland VA Medical Center; Nov 16, 1979
14. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. Washington. DC: American Psychiatric Association; 1994:679-680, 747-749
15. Zwillich T. Anxiety builds over jump in liability for prescribing errors. Clin Psychiatry News. Feb 1999:1
16. Crane GE. Tardive dyskinesia in patients treated with major neuroleptics: a review of the literature. Am J Psychiatry 1968;124(suppl):40
17. Kobayaski RM. Drug therapy of tardive dyskinesia. N Engl J Med 1977; 296:257
18. See, eg, Accardo v Cenac, 722 So2d 302 (La App 1998); Rosenbloom v Goldberg, No. 29798, Suffolk Cty Super Ct (Mass 1984); Urbani v Yale University School of Medicine, No. 85-46EBB (D Conn 1986); Hedin v United States, No. 583-3 (D Minn 1984); Snider v Harding Hosp. No. 84-CV-06-3582, Franklin CirCt (Md 1980)
19. In Faigenbaum v Oakland Medical Center, 143 Mich App 303, 373 NW2d 161 (1985), aff'd. Hyde v University of Michigan Board of Regents, 426 Mich 223, 393 NW2d 847 (1986), the patient manifested classic tardive dyskinesia (TD) symptoms following neuroleptic medication. Misreading her symptoms, the physician advised the patient to seek medical care for what he thought were signs of Huntington's chorea, an inherited disease. According to the court, neuroleptic treatment was poorly monitored. In addition, the diagnosis of TD was missed by several psychiatrists and a consulting neurologist, leading to a continuation of neuroleptic treatment amid severe dyskinetic movements. A psychiatrist testified at trial that the patient suffered from "one of the worst cases of TD I've ever seen." The patient was awarded a million dollars, which plus interest amounted to nearly a million and a half. (The attorney for the patient was Geoffrey Fieger, later associated with Dr. Jack Kevorkian.) Subsequently, the malpractice claim against the hospital was reversed on the grounds of governmental immunity. The patient's TD symptoms disappeared, but she had her judgment against the physicians. Another oft-cited case invoked Timothy Clites, a mentally retarded individual who was confined in 1963 in a state hospital. By 1970, his behavior had become aggressive, and he was given several neuroleptic medications. By 1975, he was diagnosed as suffering from TD. allegedly caused by the long-term use of ieuroleptics. The Iowa Court of Appeals held that the state violated "industry standards" of reasonable care, specifically by using polypharmacy, by failure to obtain consultation, by lack of drug holidays, and by use of neuroleptics to control his behavior. Clites v Iowa, 322 NW2d 917 (Iowa App 1982)
20. See Slovenko R. Introduction. In: Simon RI. Clinical Psychiatry and the Law. 2nd ed. Washington, DC: American Psychiatric Press; 1992:xxi-xxx
21. Tardive Dyskinesia: A Task Force Report of the American Psychiatric Association. Washington, DC: American Psychiatric Association; 1992: 250-251
22. King JH. In search of a standard of care for the medical profession: the "accepted practice" formula. Vand L Rev 1975;28:1213
23. "Roughly 40 percent of schizophrenics on drugs for many years develop tardive dyskinesia." Clark M. Drugs and psychiatry: a new era. Newsweek. Nov 12, 1979:98
24. Alexopoulos GS. Lack of complaints in schizophrenics with tardive dyskinesia. J Nerv Ment Dis 1979;167:125
25. Washington v Harper 494 US 210,230 (1990)
26. United States v Brandon, 158 F3d 947,954 (6th Cir 1998)
27. Kline NS, On the rarity of "irreversible" oral dyskinesia following phenothiazines. Am J Psychiatry 1968;124:48. Turek IS. Drug induced dyskinesia: reality or myth? Dis Nerv Syst 1975;36:397
28. Kline NS, On the rarity of "irreversible" oral dyskinesia following phenothiazines. Am J Psychiatry 1968;124:48. Turek IS. Drug induced dyskinesia: reality or myth? Dis Nerv Syst 1975;36:397
29. Pies R. Assessing the value of atypical antipsychotics and enhancing their risk/benefit ratio. Adv Psychiatr Med (suppl to Psychiatr Times). Feb 1999: 1-4
30. In the case of In the Matter of Nancy Reinhold, 1991 WL 42601 (Minn App 1991), the Minnesota Court of Appeals noted, "Clozaril does not cause or worsen tardive dyskinesia.... We encourage the use of this medication as long as it is medically appropriate."
31. Truman v Thomas, 27 Cal 3d 285, 611 P2d 902, 165 Cal Rptr 308 (1980)
32. McEvoy v Group Health Co-op, 570 NW2d 397 (Wis 1997)
33. In re Len P. 1999 WL. 42067 (Ill App 1999)
34. Ehrensing RH. Tardive dyskinesia. Arch Intern Med 1978;138:1261
35. Ayd FJ. Ethical and legal dilemmas posted by tardive dyskinesia. Int Drug Ther Newsletter 1977;12:29
36. Clyne KE, Juhl RP. Tardive dyskinesia. J Maine Med Assoc 1976;67:129
37. See Ehrensing RH, note 30.
38. See, eg, Ayd FJ. Prevention of recurrence (maintenance therapy). In: DiMascio A, Shader RI, eds. Clinical Handbook of Psychopharmacology. New York, NY: Science House, 1970:297-310. Crane GE. Prevention and management of tardive dyskinesia. Am J Psychiatry 1972;129:126
39. See, eg, Ayd FJ. Prevention of recurrence (maintenance therapy). In: DiMascio A, Shader RI, eds. Clinical Handbook of Psychopharmacology. New York, NY: Science House, 1970:297-310. Crane GE. Prevention and management of tardive dyskinesia. Am J Psychiatry 1972;129:126
40. Drug-free periods have, paradoxically perhaps, been implicated as a factor that increases the risk for tardive dyskinesia. In: Tardive Dyskinesia: A Task Force Report of the American Psychiatric Association. Washington. DC: American Psychiatric Association; 1992. See also Jeste DV, Potkin SG, Sinha S, et al. Tardive dyskinesia: reversible and persistent. Arch Gen Psychiatry 1979;36:585
41. Drug-free periods have, paradoxically perhaps, been implicated as a factor that increases the risk for tardive dyskinesia. In: Tardive Dyskinesia: A Task Force Report of the American Psychiatric Association. Washington. DC: American Psychiatric Association; 1992. See also Jeste DV, Potkin SG, Sinha S, et al. Tardive dyskinesia: reversible and persistent. Arch Gen Psychiatry 1979;36:585
42. West JC. The legal implications of medical practice guidelines. J Health Hosp Law 1994;27:97
43. On how strictly the physician must follow the instructions, Dr. James L. Goddard, then Commissioner of the U. S. Food and Drug Administration, said: "In the routine practice of medicine, it is judicious for a physician to follow the labeling directions, which generally provide for individualization of drug dosage. However, as licensed practitioner, he is not precluded from using a commercially available drug in a manner which his knowledge and experience indicate to him is in the best interest of his patient.... Physicians are sometimes sued for their use of any drugs on patients, even when the directions have been followed. We would anticipate more difficulty in defending a civil suit, where labeling instructions are not followed. Certainly informed patient consent would be a factor in a nonapproved use, since such use would be investigational." Quoted in Appleton WS. Legal Problems in Psychiatric Drug Prescription. Am J Psychiatry 1968;124:174
44. Trent CL, Muhl WP, Professional liability insurance and the American psychiatrist. Am J Psychiatry 1975;132:1312
45. Texas Revised Civil Statutes, Ann, art 4590i. sec 6.02 (West Supp 1999)
46. Cobbs v Grant, 502 P2d 1 (Cal 1972)
47. The Texas Court of Appeals in Tajchman v Giller, 938 SW2d 95 (Tex App 1996) and Galvin v Downey, 933 SW2d 316 (Tex. App 1996) incorporates the discussion about informed consent from Barclay v Campbell. 704 SW2d 8,10 (Tex 1986) (which appears to be the leading TD case on informed consent) to explain what constitutes an inherent risk that is material enough to require disclosure. See also Headley v Hanneken, No. ST81-151, Marion Cty Super Ct (Ohio 1984)
48. Sovner R, DiMascio A, Berkowitz D, et al. Tardive dyskinesia and informed consent. Psychosomatics 1978;19:172
49. Bernstein JG. Handbook of Drug Therapy in Psychiatry. 3rd ed. St. Louis, Mo: Mosby: 1995:28
50. See Ayd FJ, note 32. At least one case, however, has been reported of a patient who developed TD only one month after his first exposure to neuroleptic drug treatment. Chouinard G, Jones BD. Early onset of tardive dyskinesia: case report. Am J Psychiatry 1979;136:1323
51. See Ayd FJ, note 32. At least one case, however, has been reported of a patient who developed TD only one month after his first exposure to neuroleptic drug treatment. Chouinard G, Jones BD. Early onset of tardive dyskinesia: case report. Am J Psychiatry 1979;136:1323
52. Kornfeld DS, Doctor's dilemma: what truth for which patient at what time? [letter] New York Times, May 16, 1978:34. "For the record - and to protect himself - the physician has to recite the worst possibilities. But ... in some circumstances, an artful ambiguity allows hope: in others, temporary denial is helpful." Lazarus RS, Goleman D. Positive denial: the case for not facing reality. Psychol Today Nov 1979:44
53. Kornfeld DS, Doctor's dilemma: what truth for which patient at what time? [letter] New York Times, May 16, 1978:34. "For the record - and to protect himself - the physician has to recite the worst possibilities. But ... in some circumstances, an artful ambiguity allows hope: in others, temporary denial is helpful." Lazarus RS, Goleman D. Positive denial: the case for not facing reality. Psychol Today Nov 1979:44
54. Alton WG. Malpractice. Boston, Mass: Little, Brown; 1977
55. In a Louisiana case, a 62-year-old woman diagnosed as schizophrenic sued the State of Louisiana for failure to obtain informed consent for the administration of neuroleptic medication. She suffered TD. The court noted that a written consent to hospitalization, which was an adequate consent to the use of antipsychotic medication, was signed by the patient. The court found that the patient's daughter provided informed consent to the continued use of the medication. Frazier v Dept of Health & Human Resources, 500 So2d 858 (La 1986). Consent from a near relative, when the patient is incompetent, is considered sufficient in the administration of electroshock. Wilson v Lehman. 379 SW2d 478 (Ky 1964): Lester v Aetna Cas & Surety Co, 240 F2d 676 (5th Cir 1957), cert denied, 354 US 923 (1957) (spousal consent)
56. The hazard of over-information may be illustrated by case law on consumer contracts. In Jones v Goodyear Tire & Rubber Co, 442 F Supp 1157 (ED La 1977). the court found "it is practically impossible to read the form from beginning to end without getting lost."
57. Roth LH, Meisel A, Lidz CW. Tests of competency to consent to treatment. Am J Psychiatry 1977;134:279. Meisel A. The "exceptions" to the informed consent doctrine: striking a balance between competing values in medical decision-making. Wis L Rev 1979:413
58. Roth LH, Meisel A, Lidz CW. Tests of competency to consent to treatment. Am J Psychiatry 1977;134:279. Meisel A. The "exceptions" to the informed consent doctrine: striking a balance between competing values in medical decision-making. Wis L Rev 1979:413
59. Two cases - Rogers v Okin, 457 US 291 (1982), and Rennie v Klein, 462 F Supp 1131 (N NJ 1978), 476 F Supp 1294 (D NJ 1979), aff'd in part, 653 F2d 836 (3d Cir 1981), vacated and remanded, 458 US 1119 (1982), on remand, 700 F2d 266 (3d Cir 1983) - were the prototypes for "right to refuse" litigation during the 1970s and 1980s. The trial court in Rogers noted that recent studies had "suggest[ed] that tardive dyskinesia is more widespread in mental patients than previously [thought]" and cited psychiatric research estimating that 50% or more of chronic patients, and over 40% of outpatients treated with medications developed TD. The judge characterized anti-psychotic medication as "mind-altering" and treatment as "involuntary mind control." 478 F Supp 1342 at 1360, 1367 (D Mass 1979). The trial judge in Rennie castigated the hospitals for ignoring TD and for badly mishandling other side effects. 476 F Supp 1294, 1300. Nationwide, in subsequent litigation, most jurisdictions have recognized a nominal right to refuse, but have allowed the hospital director or other hospital officials to override the patient's refusal. That was the outcome in New Jersey, where Rennie was litigated. A few other jurisdictions require that hospitals respect a patient refusal absent a judicial adjudication of the patient's incompetence or a judicial assessment of the reasons for and against compelling medication. That was the outcome in Massachusetts, where Rogers was litigated. See Appelbaum PS. Almost a Revolution. New York, NY: Oxford University Press: 1994. Gelman S. The law and psychiatry wars, 1960-1960. Calif West L Rev 1997:34:153
60. Two cases - Rogers v Okin, 457 US 291 (1982), and Rennie v Klein, 462 F Supp 1131 (N NJ 1978), 476 F Supp 1294 (D NJ 1979), aff'd in part, 653 F2d 836 (3d Cir 1981), vacated and remanded, 458 US 1119 (1982), on remand, 700 F2d 266 (3d Cir 1983) - were the prototypes for "right to refuse" litigation during the 1970s and 1980s. The trial court in Rogers noted that recent studies had "suggest[ed] that tardive dyskinesia is more widespread in mental patients than previously [thought]" and cited psychiatric research estimating that 50% or more of chronic patients, and over 40% of outpatients treated with medications developed TD. The judge characterized anti-psychotic medication as "mind-altering" and treatment as "involuntary mind control." 478 F Supp 1342 at 1360, 1367 (D Mass 1979). The trial judge in Rennie castigated the hospitals for ignoring TD and for badly mishandling other side effects. 476 F Supp 1294, 1300. Nationwide, in subsequent litigation, most jurisdictions have recognized a nominal right to refuse, but have allowed the hospital director or other hospital officials to override the patient's refusal. That was the outcome in New Jersey, where Rennie was litigated. A few other jurisdictions require that hospitals respect a patient refusal absent a judicial adjudication of the patient's incompetence or a judicial assessment of the reasons for and against compelling medication. That was the outcome in Massachusetts, where Rogers was litigated. See Appelbaum PS. Almost a Revolution. New York, NY: Oxford University Press: 1994. Gelman S. The law and psychiatry wars, 1960-1960. Calif West L Rev 1997:34:153
61. The Minnesota Supreme Court in Price v Shepard, 239 NW2d 905 (Minn 1976), said: "We cannot draw a clear line between the more intrusive forms of treatment requiring a procedural hearing and those which do not. Certainly this procedure is not intended to apply to the use of mild tranquilizers or those therapies requiring the cooperation of the patient. On the other hand, given current medical practice, this procedure must be followed where psychosurgery or electroshock therapy is proposed."
62. In re Paul Fussa, No. 46912 (Minn Prob Ct 1976)
63. In re Guardianship of Roe, 383 Mass 415, 421 NE2d 40 (1981); Harper v State of Washington, 110 Wash2d 873, 759 P2d 358 (1988)
64. Herewith a synopsis of some recent decisions. In a North Dakota case, the court noted the patient's reactions to haloperidol and risperidone. About haloperidol the patient said, "It is a vicious drug that makes people want to slide along the floor." About risperidone the patient said, "It seemed to round out that high speed thing I was working on" and it brought "me down to that old business sense." The doctor reported that risperidone "probably has a much less chance of causing tardive dyskinesia." The court concluded that risperidone is least restrictive and haloperidol could be administered only if the patient refuses risperidone. Shannon J v RAJ, 554 NW2d 809 (ND 1996) In an Illinois case, the appellate court reversed an order allowing involuntarily administered psychotropic drugs. The court classified both haloperidol and risperidone as drugs with serious side effects. The patient argued that there was extensive evidence before the trial court as to the possible serious side effects of both haloperidol and risperidone, and further noted that psychotropic medication is less effective where the recipient of the medication does not agree to accept the medication. The doctor testified, however, that the benefits of the medication would substantially out-weigh any possible negative effects of the medication. The appellate court ruled that because the patient offered rational reasons for refusing the medication, the hospital was not permitted to involuntarily administer the drugs. In re Brad Israel, 664 NE2d 1032 (111 App 1996) In a Minnesota case, the medical records of the patient indicated that clozapine was the most effective treatment. The patient asked to be given fluphenazine, but because he had shown signs of TD that request was refused. The patient was given haloperidol and intermittent clozapine, but his condition again deteriorated. The hospital wanted to give 900 mg of clozapine and 100 mg of haloperidol. The caregivers testified that clozapine is best for treatment "while avoiding the risks of tardive dyskinesia." The appellate court affirmed the order to administer clozapine, 900 mg, and haloperidol, 100 mg. In the Matter of Richard Martin, 527 NW2d 170 (Minn App 1995) In a Tennessee case, the court ordered the discharge of an insanity acquittee and established a mandatory outpatient program for him. The individual was committed in 1981. and there was no significant improvement until 1992 when he was put on clozapine treatment, which had become available. The court noted the report of the case managers that "clozapine requires weekly monitoring and blood tests of a patient." State of Tennessee v Martin, 1996 WL 687028 (Tenn Crim App 1996) In another Minnesota case, the issue was whether the individual who had been committed to a security hospital as mentally ill and dangerous should be treated with the typical neuroleptic loxapine that he was then receiving or with clozapine. Medical opinion on the issue differed. One psychiatrist believed loxapine was a better choice - unlike clozapine, he said, loxapine can be administered by long-acting injections, which might prevent dangerous behavior after his release. In contrast, 2 other medical examiners favored clozapine. They concluded that the individual had TD and believed use of loxapine was therefore not appropriate. The trial court, after hearing the testimony, left the decision to the discretion of the medical professionals, and the order was affirmed on appeal. In re Stewart, 1991 WL 126637 (Minn App 1991)
65. In a Minnesota case, the experts testified that clozapine was necessary to treat the patient's illness and that other neuroleptics, including haloperidol, were not effective. The court noted, "If he refuses to take clozapine voluntarily, the only alternative means of administration is by nasogastric tube." In the Matter of Richard Martin, 527 NW2d 170 (Minn App 1995). See also In re Len P. 1999 WL 42067 (Ill App 1999); In the Matter of Nancy Reinhold, 1991 WL 42601 (Minn App 1991)
66. Pinals DA, Buckley PF. Novel antipsychotic agents and their implications for forensic psychiatry. J Am Acad Psychiatry Law 1999;27:7
67. Viser v Taylor, 756 F Supp 501 (D Kan 1990)
68. Services covered by a state Medicaid plan must be sufficient in amount, duration, and scope to reasonably achieve its purpose. 42 CFR §440.230(b). A state Medicaid agency may not arbitrarily deny or reduce the amount, duration, or scope of a required service to an otherwise eligible recipient solely because of the diagnosis, type of illness, or condition. 42 CFR §440.230(c)
69. See Metzner JL. An introduction to correctional psychiatry. J Am Acad Psychiatry Law 1998;26:107. The American Psychiatric Association has published guidelines for psychiatric services in jails and prisons in Psychiatric Services in Jails and Prisons. Washington, DC: American Psychiatric Association; 1989. Task Force Report No. 29.
70. Washington v Harper, 494 US 210, 232 (1990)
71. Riggins v Nevada, 504 US 127 at 135 (1992). Many other cases dealing with due process and the issue of forcing involuntarily committed mental patients or prisoners to take psychotropic drugs mention TD as the most serious of the side effects of neuroleptic drugs. A list of cases after 1990 in this class includes: TD v New York State Office of Mental Health, 650 NYS2d 173 (1996); Enis v Wisconsin Dept of Health, 962 F Supp 1192 (WD Wis 1996); Shannon J v RAJ, 554 NW2d 809 (ND 1996); Hightower v Olmsted, 959 F Supp 1549 (ND Ga 1996); In Interest of CW, 552 NW2d 382 (ND 1996); In re Conservatorship of Foster, 547 NW2d 81 (Minn 1996); Guardianship of Boyle, 674 A2d 912 (Me 1996); In re Israel, 664 NE2d 1032 (Ill App 1996); State v Garcia, 669 A2d 573 (Conn 1996); In Matter of Rauenhorst, 1995 WL 673385 (Minn App 1995); In re Schapp, 654 NE2d 1084 (Ill App 1995); In Interest of SJ, 528 NW2d 367 (ND 1995); Matter of Martin, 527 NW2d 170 (Minn App 1995); State v Adams, 888 P2d 1207 (Wash App 1995); In re CE, 641 NE2d 345 (Ill 1994): Sullivan v Flanigan, 8 F3d 591 (7th Cir 1993); Woodland v Angus, 820 F Supp 1497 (D Utah 1993); Donaldson v District Court for City of Denver, 847 P2d 632 (Colo 1993); State v Perry, 610 So2d 746 (La 1992); Felce v Fieder, 974 F2d 1484 (7th Cir 1992); Guardianship of Roe, 583 NE2d 1282 (Mass 1992); Maul v Constan, 928 F2d 784 (7th Cir 1991); Williams v Wilzack, 573 A2d 809 (Md 1990); Matter of Schauer, 450 NW2d 194 (Minn App 1990). See Winick BJ. The Right to Refuse Mental Health Treatment. Washington, DC: American Psychological Association; 1997
72. Cohen F. The Mentally Disordered Inmate and the Law. Kingston, NJ: Civic Research Institute; 1999. California has the most extensive statutory limits on forced treatment of mental patients and mentally ill prisoners. Cal Penal Code §§ 2670-2680 (West 1995); Keyhea v Rushen, 223 Cal Rptr. 746 (Ct App 1986)
73. See Torrey EF. Jails and prisons - America's new mental hospitals [editorial]. Am J Public Health 1995;85:1611
74. Egan T. The war on crack retreats, still taking prisoners. New York Times. Feb 28, 1999:1
75. Estelle v Gamble, 429 US 97 (1976)
76. Farmer v Brennan, 511 US 825 (1994)
77. See Madrid v Gomez, 889 F Supp 1146 (ND Cal 1995); Casey v Lewis, 834 F Supp 1477 (D Ariz 1993); Coleman v Wilson, 912 F Supp 1282 (ED Cal 1995); Lightfoot v Walker, 486 F Supp 504 (SD Ill 1980); see also Cohen F. Liability for custodial suicide: the information base requirements. Jail Suicide Update 1992;4:1
78. Zander TK. Prolixin decanoate: a review of the research. Mental Disability Law Reporter. July-Aug 1977:37-42
79. In Talley v Portland Residence, 582 NW2d 590 (Minn App 1998), the plaintiff, a disabled, mentally retarded adult, was given the medication that allegedly caused his TD before he had a conservator. Thus, the claim was not barred by statute of limitations. In a Texas case, the patient was given neuroleptic drugs between 1980 and 1985 without being informed of possible side effects. The patient developed TD. The psychiatrist relied solely on the statute of limitations as a defense. It was found that the psychiatrist fraudulently concealed the patient's condition even after a neurologist opined to the patient that she may have developed TD. The patient's conversation with the neurologist did not set the statute of limitations running. The court could not fault a psychologically disturbed patient for relying on her psychiatrist over a neurologist seen on merely one occasion. The claim was not barred by the statute of limitations. Gatling v Perna, 788 SW2d 44 (Tex App 1990)
80. In Adkins v Tafel, 871 SW2d 289 (Tex App 1994), the patient, given haloperidol that allegedly caused TD, sued 2 physicians and a pharmacist; the suit against one of the physicians and the pharmacist was barred by the statute of limitations. The physician who obtained summary judgment had given the patient haloperidol for 13 years but was found not culpable of fraudulent concealment as he believed that the patient's tremors were a result of a car crash and not a drug side effect. The patient's family learned of the connection between haloperidol and TD from the Phil Donahue show. See also De Witt v United States, 593 F2d 276 (7th Cir 1979); Leary v Rupp, 280 NW2d 466 (Mich App 1979); Ohler v Tacoma General Hospital, 598 P2d 1358 (Wash 1979); Willis v United States, 879 F Supp 889 (CD Ill 1994); De Witt v United States, 593 F2d 276 (7th Cir 1979); Leary v Rupp, 280 NW2d 466 (Mich App 1979); Ohler v Tacoma General Hospital, 598 P2d 1358 (Wash 1979)
81. "When the injury might, with equal probability, have resulted from the acts of others as well as from the acts of defendant, proof of facts, other than that of injury, from which defendant's negligence can be inferred, must be made before the questions can be submitted to the jury. Otherwise, the verdict would be foundec on mere speculation. ... An inference of negligence based on an inferred fact of which there is neither evidence nor predominating probability cannot be safely made." Olson v St. Joseph's Hospital, 281 NW2d 704 (Minn 1979)
82. DSM-IV, pp 678-679
83. In Accardo v Cenac, 722 So2d 302 (La App 1998), the Louisiana Court of Appeals stated: "The evidence overwhelmingly established that the mental disorder of schizophrenia does not cause any of the symptoms resulting from abnormal movements. The record firmly established that the uncontrollable twisting, writhing, flailing, contorting, contracting, grimacing, etc. displayed by [the patient] are all components of the neurological disease and have nothing to da with her schizophrenia."
84. Allen v United States, 588 F Supp 247, 416 (D Utah 1984), reversed on unrelated grounds, 8:6 F2d 1417 (10th Gr 1987), cert denied, 484 US 1004 (1988)
85. Tisdale v Johnson, 177 Ga App 487, 339 SE2d 764 (1986)
86. In Marzolf v Gilgoce, 933 F Supp 1021 (D Kansas 1996), the patient who was given phenoth: azine class drugs for over 14 years was held to have a cause of action against the physician who prescribed the drug for the final 6 months of the long drug-taking period. The early prescription "primed" the patient for the later complications. The final doses, rather than the prior 131/2 years, may be deemed the cause-in-law of the patient's TD. Summary judgment for the physician was denied as the facts created a question for the jury.
87. Rosenbaum AH. Tardive dyskinesia: relationship with a primary affective disorder. Dis Nerv Syst 1977;38:423
88. Altrocchi PH. Spontaneous oral-facial dyskinesias. Arch Neurol 1973;26: 506
89. Casey DE. Managing tardive dyskinesia. J Clin Psychiatry 1978;39:748
90. Carlin v Superior Court (Upjohn Co), 56 Cal Rptr2d 162 (1996)
91. American Law Institute. Restatement of Torts §402A
92. Terzian TV. Direct-to-consumer prescription drug advertising. Am J Law Med 1999;25:149