There’s an interesting article on Harvard Law Petrie-Flom Center’s blog titled Daubert as a Problem for Psychiatrists. It was written by Alex Stein and is dated September 19. [Thanks to Dustin Salzedo for drawing my attention to this in a comment on an earlier post.]
The article deals with the legal rules governing the admission of expert testimony. Apparently there are two different sets of rules in this area, known respectively as Frye and Daubert.
Under the Frye rules, expert testimony can be admitted only if its validity is generally recognized and accepted by the “relevant community of experts.”
Under the Daubert rules, testimony can be admitted if it is scientifically grounded and can be explained to a jury, even though it may still be controversial.
The importance of the distinction was highlighted in a recent United States District Court case – Patteson v Malloy. In this case, Kay Patteson, plaintiff, had filed suit against her psychiatrist, John Maloney, MD, on the grounds that the Seroquel he prescribed her for insomnia had caused tardive dyskinesia. Seroquel is a second-generation neuroleptic. Tardive dyskinesia is an irreversible movement disorder involving disability and disfiguring involuntary movements.
When the second-generation neuroleptics first came on the market, it was claimed that they didn’t cause tardive dyskinesia, but the spuriousness of this claim was quickly recognized. I certainly wasn’t aware that there was any residual controversy or doubt on this matter, but apparently there is – at least as far as Dr. Maloney is concerned.
In the court case, Dr. Maloney’s lawyers sought to have all testimony linking Seroquel to tardive dyskinesia excluded on the grounds that Ms. Patteson’s expert testimony was unreliable. To support this position, Dr. Maloney produced his own expert whose study showed no link between Seroquel and Ms. Patteson’s tardive dyskinesia. Dr. Maloney also contended that his expert’s study was sounder than the plaintiff’s.
Dr. Maloney, according to court documents, has contended that “…no scientific methodology has attributed Seroquel to causing tardive dyskinesia.” He has also indicated that the study his expert witness will present is a “…– a clinical trial conducted by AstraZeneca…” (the manufacturer and marketer of Seroquel). Dr. Maloney’s expert witness is Thor W. Rak, MD.
I can find no information on the Internet about Dr. Rak. Nor have I been able to identify the particular AstraZeneca trial.
On September 16, 2013, the judge ruled that the scientific evidence linking Seroquel to tardive dyskinesia is solid enough to be presented to a jury. The judge also allowed testimony on differential diagnosis to be admitted. This involves systematically ruling out other possible causes of the tardive dyskinesia, leaving only Seroquel as the remaining causative agent.
It is unlikely that these rulings would have been made under the Frye rules.
Back to Alex Stein’s article.
“The consequent liability risk for psychiatrists is obvious, given the frequency of tardive dyskinesia among psychiatric patients. Antipsychotic drug prescriptions follow the trial and error method. This method involves patient-specific observations, tradeoffs and adjustments that rely on the psychiatrist’s intuition. There are no hard-and-fast rules and protocols similar to those that provide legal ‘safe harbors’ for other doctors…As a result, plaintiffs’ experts would often be able to second-guess the psychiatrist’s drug prescription and plausibly describe it as negligent.”
Dr. Stein goes on to point out that the increased liability risk for psychiatrists will now apply in state and federal courts that use the Daubert rules. Dr. Stein points out that psychiatrists, before prescribing neuroleptics, can protect themselves from this liability by having their clients sign an informed consent document that explains the risk of tardive dyskinesia.
It is a general theme of this website that psychiatric drugs are not medications in any proper sense of the word. Rather, they are neurotoxic chemicals with a wide range of negative effects.
One of these effects, that in my opinion is particularly devastating, is tardive dyskinesia. If you’re not familiar with this condition, you can see some video footage here. If you do a Google search, you will find more videos. It has been known for decades that neuroleptic drugs (i.e. the class of drugs used to “treat” the so-called psychotic disorders) cause tardive dyskinesia. As mentioned earlier, this includes the second-generation neuroleptics.
I have always been troubled by the ease with which psychiatrists prescribe these products and the vehemence with which they defend these practices. In recent decades, I have been frankly appalled by the fact that psychiatry has been systematically expanding the range of problems for which they prescribe these drugs, even to the point of administering them to toddlers to control temper tantrums, and elderly dementia patients to control agitation and aggression.
These expansions have attracted a good measure of criticism, which psychiatry routinely ignores, though in very recent months there have been some indications of retreat. (See the APA’s news release List of Common Uses of Psychiatric Medications to Question.)
But of its own accord, psychiatry seldom takes note of the damage that it does. With the easing of the rules on evidence admission, it may be that successful malpractice suits will prevail where considerations of “do no harm” have failed.