Weird science? Psychotherapy negligence cases gain credibility.

A jury in Tacoma, Washington, returned one of the largest verdicts in history for psychotherapy negligence--a result some plaintiff attorneys cite as evidence that cases that once seemed hopeless may now be winnable.

In January, the jury awarded compensatory damages to Stephen Drummond and his parents. Drummond is an autistic patient whom psychiatrist Donald Dudley treated with drugs and hypnosis in what plaintiff attorneys called a deranged attempt to turn him into a trained killer. Dudley was allegedly planning to build an army of his patients to take over schools, police forces, and hospitals. (Drummond v. Dudley, No. 982080553 (Wash., Pierce County Super. Ct. Jan. 26, 2001).)

R. Christopher Barden of North Salt Lake City, Utah, one of the Drummonds' attorneys and a licensed psychologist, said the case "has much to say to plaintiff attorneys." Barden said, "When I began as a litigator, I was told by many experts that winning psychotherapy negligence cases--where talk therapy was improperly applied and damages were all psychological in nature--was impossible. Only death by suicide or homicide, or drug damage cases, were considered winnable." [See Robert K. Jenner & Bryant Welch, Suicide Watch: Liability for Negligent Psychiatric Care, on page 20 of this issue.]

But many forms of psychotherapy are not supported by credible scientific evidence, Barden said, and plaintiff attorneys are becoming more willing to challenge these therapies. Barden's first trial, in 1995, resulted in a substantial verdict against Minneapolis psychiatrist Diane Humenansky, who allegedly implanted memories of sexual abuse in a patient undergoing "recovered memory" therapy. (Hamanne v. Humenansky, No. C 1955756 (Minn., Ramsey County Dist. Ct. July 31, 1995).)

One of the Drummonds' other attorneys, Lisa Marchese of Seattle, agreed that there is a growing psychotherapy negligence bar. She said the task of protecting patients falls to the civil justice system, given the frequent failure of state licensing entities to ferret out mental health abuses.

What Marchese found most outrageous about the Drummond case was the conduct of Washington's Medical Quality Assurance Commission (MQUAC). Dudley was suspended from the practice of medicine in 1994, when about 30 complaints were pending against him and after he had been diagnosed with bipolar disorder. MQUAC relied on three of the complaints (Drummond's was not among them) to suspend Dudley. One had been highly publicized: Dudley had provided alcohol and firearms to a minor patient while treating him at a hotel, and the two were arrested after the patient threatened hotel employees with a handgun.

Despite this, the suspension order allowed Dudley to regain his license if he met certain conditions, such as undergoing therapy. Marchese said she hopes that because of the Drummond case, "state licensing entities will realize that, while no one wants to take away someone's livelihood, in circumstances like these, they need to act swiftly and surely."

Marchese persuaded the judge to allow Dudley's suspension order into evidence. She called this ruling "critical" because the facts of the case were "too bizarre to be believed." Between 1989 and 1992, Dudley administered dextromethorphan (a synthetic derivative of morphine) to Drummond and injected him with sodium amytal, a powerful and widely discredited sedative that renders patients suggestible. Drummond gradually became comatose and today requires around-the-clock care.

Marchese said that the suspension order "made the truth credible."

Barden said that while psychotherapy negligence cases are winnable, they require a multidisciplinary approach. Since most cases involve complex hearings on the admissibility of scientific evidence, plaintiff attorneys should use "science-intensive litigation," including an expert psychologist or psychiatrist as part of the legal team from the start, "to ensure that the complexities of mental health litigation are properly addressed.

"The mental health system needs an overhaul," Barden said, and the verdict in the Drummond case is "a step in the right direction."