Case Law Developments

In each issue of the Law Reporter, the "Case Law Developments" section contains summaries of over 300 state and federal court decisions, organized by 22 subject matter topics in 3 categories (civil mental disability law, criminal mental disability law, disability discrimination law-federal and state).

Selected Developments from January / February 2008 Issue

Civil Mental Disability Law

Third-Party Liability; Physician; Duty to Warn

The Massachusetts Supreme Court ruled that a physician owed a duty of care to a third party, who died after being struck by the physician’s patient, where it was foreseeable that the failure to warn of the side effects of the patient’s medications could cause a car accident, and remanded for a jury determination as to whether the physician breached that duty. Coombes v. Florio, 877 N.E.2d 567 (Mass. Sup. Jud. Ct. 2007).

Kevin Coombes died when he was stuck by a car driven by David Sacca, who was under the care of Dr. Roland Florio. Coombes’s estate sued Florio for negligence, claiming the accident was caused by side effects of the medication Florio prescribed, which caused Sacca to lose control of the car. The trial court granted Florio summary judgment, finding that Florio owed no duty of care to anyone other than his patient.
The state High Court reversed. A doctor’s duty of reasonable care, owed to a patient, includes the duty to provide appropriate warnings about side effects when prescribing drugs. Cottam v. CVS Pharmacy, 764 N.E.2d 814 (Mass. Sup. Jud. Ct. 2002). When the side effects in question include drowsiness, dizziness, fainting, or other effects that could diminish a patient’s mental capacity, this warning serves to protect the patient from, for example, foreseeable risk of a car accident caused by driving while under the influence of the medication. In such a case, it is clear that the foreseeable risk of injury is not limited to the patient.

In similar cases outside the medical context, when the foreseeable risk is one of an impaired driver causing a car accident, this court has extended a duty of reasonable care to all those involved in such a foreseeable accident, including other motorists, bicyclists, and pedestrians. See Michnik-Zilberman v. Gordon’s Liquor, Inc., 453 N.E.2d 430 (Mass. Sup. Jud. Ct. 1983). The court has also held that a duty can exist even when the unreasonably dangerous condition involves the foreseeable criminal or negligent conduct of an intermediary. For example, in Michnik-Zilberman, a liquor store negligently sold beer to a minor, who drove his car while intoxicated and killed a bicyclist. In that case, the court concluded that one of the more foreseeable risks of serving alcohol to minors is that the minor may drive and cause harm to third persons while intoxicated. Thus, the actions of the minor purchaser and the death of the bicyclist were a foreseeable consequence of the store’s negligence. Id.

Relying on these principles, this court concluded that a physician owes a duty of reasonable care to everyone foreseeably put at risk by his failure to warn of the side effects of his treatment of a patient. Other jurisdictions have imposed a duty on doctors in similar circumstances. See McKenzie v. Hawaii Permanente Med. Group, 47 P.3d 1209 (Haw. Sup. Ct. 2002). Also, public policy favors such a duty. The costs of imposing a duty owed to individuals other than the patient are limited because existing tort law already imposes on a doctor a duty to warn a patient of the adverse side effects of medication, and the benefits of such warnings are significant.

Here, Florio owed a duty to all those foreseeably put at risk by his failure to warn, including Coombes. The medications Florio prescribed—which included Oxycodone, Prednisone, Flomax, and Paxil—had known potential side effects including dizziness, drowsiness, and altered consciousness, symptoms that were likely to impair a driver. Sacca’s age of 75 also increased the likelihood and potential severity of any side effects. However, the determination of whether Florio committed a breach of his duty when prescribing the drugs to Sacca without a warning is for a jury.

Criminal Mental Disability Law

Confession; Group Therapy; Self-Incrimination

The Ninth Circuit ruled that, despite a confidentiality agreement, a capital defendant’s confession to a psychiatrist following a group therapy session during his pretrial detention in a psychiatric facility was voluntary within the meaning of the Fifth Amendment, and, thus, was properly admitted at his second trial. Beaty v. Schriro, 509 F.3d 994 (9th Cir. 2007).
Donald Edward Beaty was convicted of the murder and sexual assault of a 13-year-old girl. While at a psychiatric facility, he attended group therapy sessions focused on interpersonal relationships, led by psychiatrist Dr. George O’Connor and assisted by Lily Epler, an intern and graduate student. At the first group meeting, all participants signed an Interpersonal Relationships Group Contract, which specified that all group communications were confidential. After a second group meeting, Beaty confessed to Dr. O’Connor that he did not mean to kill the victim, but had merely intended to muffle her mouth. Shortly thereafter, Beaty was transferred back to jail for his trial. After Beaty’s trial resulted in a hung jury and the second trial began, the prosecution became aware of the conversation between Dr. O’Connor and Beaty. At first, Dr. O’Connor refused to testify, but did so under court order. The jury found Beaty guilty of murder and sexual assault. The judge conducted a sentencing hearing without a jury, found one aggravating factor and no mitigating factors, and sentenced Beaty to death. After state remedies proved unsuccessful, Beaty filed a federal habeas petition, which was denied.

The Ninth Circuit granted Beaty a certificate of appealability on his claim that his statements to Dr. O’Connor were involuntary under the Fifth Amendment and, thus, should be suppressed. Finding the record incomplete, the appeals court remanded for a hearing to determine whether Beaty’s belief that his statements to Dr. O’Connor was confidential was reasonable given the circumstances. 303 F.3d 975 (9th Cir. 2002), 27 MPDLR 418. The district court found Beaty’s belief unreasonable and deemed the statements voluntary and, thus, admissible.
The Ninth Circuit affirmed. This court has ruled that a statement is voluntary when it is the product of a rational intellect and free will. See, e.g., United States v. Leon Guerrero, 847 F.2d 1363, 1365 (9th Cir. 1988). The test for determining voluntariness is whether, under the totality of the circumstances, the suspect’s will was overborne by a physical or psychological coercion. Id. at 1366 (citing Haynes v. Washington, 373 U.S. 503, 513-14 (1963)). A crucial element to an involuntary statement is police overreaching. Colorado v. Connally, 479 U.S. 157, 163 (1986).

Beaty’s statements to Dr. O’Connor could be deemed voluntary so as to be covered by the Fifth Amendment’s privilege against self-incrimination. The district court had found that, even if the contract could be viewed as a limited coercive promise designed to elicit incriminating information, it did not overcome Beaty’s will. By its plain language the contract specifically applied to group communications, and not to communications outside the context of the co-members of the treatment group.

Even if Beaty’s belief in the confidentiality of the contract could theoretically be deemed reasonable, the appeals court determined that the surrounding circumstances of the statements show that Beaty’s belief in the contract’s application to his statements could not be reasonable. Beaty testified that he approached Dr. O’Connor on his own and waited in line to see him before making any statements. Dr. O’Connor did not question Beaty. His statements were spontaneous. Also, Beaty was not ordered by a court to cooperate in the group therapy sessions, nor was any treatment outcome contingent upon any admissions to criminal activity. Cf. United States v. D.F., 63 F.3d 671, 673 (7th Cir. 1995). Significantly, psychiatrists Potts, Garcia-Bunuel, and O’Connor testified that the group therapy process was focused on interpersonal relations and not on the defendants’ criminal charges. In fact, inmates were advised not to discuss their crimes within the group. Additionally, the treatment team never advised Beaty that his statements were completely confidential. Consequently, the court concluded that any promise of confidentiality inherent in the contract was not sufficiently coercive or far-reaching to effect Beaty’s will against self-incrimination.

Further, Beaty’s statements were not coerced by fellow group members. In any event, the group members were not state actors. For a confession to be involuntary, it first must have been elicited by a state actor. Connelly, 479 U.S. at 164. A group member had brought up Beaty’s criminal charges, not Dr. O’Connor or Lily Epler. This prompted Beaty’s unburdening to Dr. O’Connor after the group session. Nor was Beaty forced to participate in the group. His return to jail was not related to his decision not to rejoin the group but instead to the timing of his trial.

Disability Discrimination Law

Medical School; Title III; LD; Accommodation; Qualified

The D.C. Circuit vacated and remanded a federal district court’s ruling that a medical school student, who claimed that her dismissal violated the Americans with Disabilities Act (ADA), 42 U.S.C. §§12181-189, was not substantially limited in the major life activity of learning. The comparison group for measuring whether the former medical student was substantially limited was an average person in general population; refusal to accommodate her at time of her request was unreasonable; and she was otherwise qualified for medical school. Singh v. George Washington Univ. Sch. of Med. & Health, 503 F.3d 1097 (D.C. Cir. 2007).

Carolyn Singh enrolled in the George Washington University School of Medicine and Health’s (GW) decelerated program, which allows medical students to complete the first-year curriculum in two years. From the fall semesters of 2000-02, Singh failed one course and did poorly in another. In 2002, a medical school evaluation committee (MSEC) recommended her dismissal. In February 2003, a psychologist reported that Singh had dyslexia, a mild processing speed disorder, and a phonological disorder, and recommended double time on exams and access to lecture notes, tutors, and a laptop. Singh sent the Dean the report and asked to remain in school with accommodations. On March 5, the Dean informed Singh that he had accepted the MSEC recommendation to dismiss her. Singh sued under Title III. After a bench trial, the court held that Singh’s reading difficulties did not substantially limit her in the major life activity of learning or taking multiple choice tests and, thus, did not have an ADA disability. 439 F. Supp. 2d 8 (D.D.C. 2006), 30 MPDLR 833.

The D.C. Circuit found that the district court chose the wrong comparison group by which to measure Singh’s substantial limitation—not other persons of comparable age and educational background. The proper standard was whether Singh’s limitation was substantial as compared to the average person in the general population. In Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002), 26 MPDLR 73, the U.S. Supreme Court required that an impairment “prevent or severely restrict the individual from doing activities that are central to most people’s daily lives.” This language “suggests a comparison to the general population, rather than to persons of elite ability or unusual experience.” See 29 C.F.R. §1630.2(j)(1)(i)-(ii); Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), 23 MPDLR 510; Albertson’s Inc. v. Kirkingburg, 527 U.S. 555 (1999), 23 MPDLR 511; Wong v. Regents of University of Cal.,410 F.3d 1052 (9th Cir. 2005), 28 MPDLR 929.

Second, the district court erred in its analysis of the term “major life activity.” Singh had claimed that she was substantially limited in the major life activity of learning, but the district court, citing the grades and test scores raised by Singh and GW, “reduced” the activity of learning to the activity of test-taking. However, test-taking, by itself, is not a major life activity. A plaintiff’s limitation has to be substantial in the context of the major life activity as a whole, not a subclass of a major life activity. See Toyota.

hird, the appeals court found Singh’s request for reasonable modifications was timely. GW argued that the request was untimely because Singh had not notified the school of her diagnosis or disability until the faculty committee had already recommended her dismissal. “But Singh is not challenging GW’s actions prior to notice. She challenges GW’s actions after she informed the Dean of her diagnosis and requested modifications. . . . Thus, we need not address the case of the plaintiff who, once ousted on terms applicable to a non-disabled person, knocks on the door anew to seek reinstatement under the ADA.” GW also argued that Singh failed to request any real accommodations, that further accommodations would not have been of any use, that reasonable accommodations had already been advanced, and that the requested accommodations were unreasonable under the circumstances. “None of these circumstances is found here. In particular, GW points to no major commitment of resources that would be wasted as a result of its having to consider Singh’s accommodation claim at the time she raised it.”

Fourth, although GW had argued as an alternative ground for affirmance that Singh was not “otherwise qualified,” the appeals court did not address this issue since the district court had granted summary judgment for Singh on it.

Fifth, the district court, in its discussion of impairment, made equivocal findings as to whether Singh had “an impairment of some sort,” i.e., if she had a learning disability or a depression. The district court also failed to state important factual findings; intermixed legal standards of an impairment with those of substantial limitation; and failed to give credit to Singh’s primary evidence of impairment, the diagnosis of her doctor.

Finally, the district court did not consider Singh’s evidence of substantial limitation, particularly her poor performance on multiple-choice tests and that her worsening performance as she progressed into more competitive environments. The district court also mischaracterized Singh’s expert testimony because the expert had refused to compare Singh’s test scores or her innate abilities with her performance on medical course work.

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