Naughton v. Bevilacqua

• Decision Date: 18 September 1978
• Docket Number: Civ. A. No. 77-0313.
• Citation: 458 F. Supp. 610
• Parties: James P. NAUGHTON, Individually and as guardian ad litem of Timothy Naughton, Timothy Naughton, Plaintiffs, v. Dr. Joseph BEVILACQUA, Director of the Department of Mental Health, Retardation and Hospitals of the State of Rhode Island and Dr. Gerald John Bannash, State of Rhode Island, Defendants.
• Court: U.S. District Court — District of Rhode Island

458 F. Supp. 610

James P. NAUGHTON, Individually and as guardian ad litem of Timothy Naughton, Timothy Naughton, Plaintiffs, v. Dr. Joseph BEVILACQUA, Director of the Department of Mental Health, Retardation and Hospitals of the State of Rhode Island and Dr. Gerald John Bannash, State of Rhode Island, Defendants.

Civ. A. No. 77-0313.

United States District Court, D. Rhode Island.

September 18, 1978.

COPYRIGHT MATERIAL OMITTED

George M. Prescott, Lincoln, R. I., for plaintiffs.

Forest Avila, Sp. Asst. Atty. Gen., Dennis J. Roberts, II, Providence, R. I., for defendants.

OPINION AND ORDER

PETTINE, Chief Judge.

Plaintiffs Timothy Naughton and his father bring this action against Dr. Joseph Bevilacqua, Director of the Department of Mental Health, Retardation and Hospitals ("MHRH") for the State of Rhode Island, against Dr. Gerald Bannash, a physician employed by MHRH, and against the State of Rhode Island, as their employer, for permanent injunctive relief and damages. Defendants' motion for summary judgment is before the Court for final decision following further briefs and limited discovery permitted by the Court's orders of July 26 and June 5, 1978.

Plaintiff Timothy Naughton, now aged twenty, has been diagnosed as moderately mentally retarded and suffering from childhood schizophrenia. In 1972, he was voluntarily committed to the Rhode Island Institute of Mental Health ("IMH") operated by MHRH, where he presently resides in the Multihandicapped Unit.

This litigation arises from injuries Timothy suffered allegedly in reaction to medication prescribed and administered by defendant Bannash on May 20, 1977. The medication, Prolixin, belongs to the family of major tranquilizers known as phenothiazines that are commonly prescribed to control psychotic symptoms afflicting the mentally ill. According to the Complaint, in reaction to Prolixin on May 20, Timothy suffered convulsive spasms and hemorrhaging.

On a number of previous occasions, it is alleged, Timothy has suffered serious adverse reactions to other phenothiazines. Timothy's sensitivity to phenothiazines was noted several times in the permanent case record, and, according to the Second Amended Complaint, communicated to the staff of IMH by Timothy's parents. The record at the nurse's station on the floor where Timothy resides indicated only his sensitivity to Haldol, another tranquilizer in the phenothiazine family.

Following the May 20 incident, Dr. John Karkalas, Chief of Psychiatric Services at IMH, ordered that a warning notice of Timothy's sensitivity to phenothiazines be placed on all records, including at the nurses' station. In addition, no tranquilizing medication was to be prescribed without prior notice and approval by Dr. Karkalas' office.

I. Cause of Action

Plaintiffs bring this action pursuant to 42 U.S.C. sec. 1983 to permanently enjoin and recover damages for alleged violations of rights secured by the Constitution and by the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. sec. 6001 et seq. (1975) ("Act"). Jurisdiction is premised upon 28 U.S.C. secs. 1331, 1343. In essence, plaintiffs make two distinct constitutional claims — a right to treatment and a right to "a basically humane and safe living environment". Harper v. Cserr, 544 F.2d 1121, 1124 (1st Cir. 1976). Plaintiffs also claim a violation of a statutory right to "appropriate treatment" secured by the Act, 42 U.S.C. sec. 6010, and remedied through either an implied cause of action or sec. 1983.

The Court's June 5, 1978 opinion and order attempted to articulate the substantive parameters of both the statutory claim and the constitutional right to a humane environment. Based on congressional intent in the former and decisional precedent in this Circuit in the latter, Harper v. Cserr, 544 F.2d 1121, this Court excluded actions that were tantamount to negligent malpractice, at least on the individual rather than class-based, institution-wide level. On the constitutional side, to "cross the line from tort to a sec. 1983 case stating a claim under the eighth amendment or possibly even the due process clause of the fourteenth", plaintiffs must establish "a sufficient combination of helplessness on the part of the patient, and wanton callousness on the part of those caring for her . . .." Harper v. Cserr, 544 F.2d at 1124. This Court reserved judgment on the constitutional claim to permit discovery of the medical records. On the statutory side, the thrust of the factual allegations indicated only a negligent failure to test for Timothy's special sensitivity to Prolixin, in light of his allergy to other phenothiazines, and prescribe accordingly. So viewed, these facts did not implicate Timothy's "right to appropriate treatment, services and habilitation", 42 U.S.C. sec. 6010(1), which "should be designed to maximize the developmental potential of the person and should be provided in the setting that is least restrictive of the person's personal liberty". 42 U.S.C. sec. 6010(2). Nor did these facts come within the statutory prohibition of "excessive use of chemical restraints on such persons and the use of such restraints as punishment or as a substitute for a habilitation program or in quantities that interfere with services, treatment or habilitation for such persons", 42 U.S.C. sec. 6010(3). The only reason emerging from the First-Amended Complaint that rendered prescription of Prolixin inappropriate or excessive was Timothy's special sensitivity to phenothiazines. The Court did not reach either the issue of whether these rights were judicially enforceable through a private cause of action or whether the particular defendants could be sued.

A. Statutory Claim

Based on further allegations and more refined legal and medical discussion, however, the Court finds that plaintiffs have alleged facts which, if proved, would constitute a violation of the statutory "right to appropriate treatment" and "habilitation". The Court does not alter its initial reasoning that if Timothy's injuries were caused simply by, for example, a negligent failure to test Timothy's sensitivity to Prolixin, or a negligent failure to check or update the relevant medical records, no statutory right has been violated. A tort action in state court for malpractice remains a perfectly adequate remedy. However, plaintiffs now suggest that Timothy's reactions, although severe, are not properly characterized as an atypical allergy but rather are well-known side-effects of Prolixin. If the drug was administered fully aware of the particular and general dangers to Timothy but in a calculated effort to control his behavior without any habilitative purpose, the statutory concern that developmentally disabled persons receive only "appropriate" treatment would be indeed implicated.

The statutory language and legislative history support the Court's conclusion that the statutory right of the developmentally disabled individual protects only against treatment that is unnecessarily restrictive or without habilitative purpose, and not against merely negligent treatment. The Report of the Senate Committee on Labor and Public Welfare signalled the new vision and direction the Act intended in treatment of the mentally retarded or "developmentally disabled".¹ Past attitudes toward the developmentally disabled had resulted in curtailment of human and legal rights. The Act displaces these attitudes — that these persons were "sub-human organisms lacking in sensitivity", that they were a "threat" to society, that they were "eternal children" or "diseased" — with the recognition that the developmentally disabled have potential for growth and learning. S.Rep. No. 94-160, 94th Cong. 1st Sess. 27-28 (May 22, 1975). Consistent with this new model, the statute calls for habilitation plans that are geared toward developing the individual's potential to its maximum in the most normal or least restrictive environment feasible. The legislation emphasizes deinstitutionalization or alternative programs that permit residence in the community. In sum, institutional care, where absolutely necessary, must be habilitative rather than merely custodial. The Senate version of the legislation also detailed standards of care and treatment and compliance mechanisms to assure the quality of programs receiving federal funds. However, the version ultimately adopted expressly eliminated the Senate's detailed quality standards, leaving the Secretary of Health, Education and Welfare to further study and report to Congress on the proper standards. The Conference Committee did, however, firmly adopt the Senate's "bill of rights" which secures the "right to receive appropriate treatment for the conditions for which they are institutionalized". H. Conf. Rep. No. 94-473, 94th Cong. 1st Sess. 42; 1975 U.S.Code Cong. & Admin. News, pp. 919, 961.

Consistent with the legislation's primary focus on the nature of the treatment and not the quality, an isolated incident of negligent treatment, addressing the quality of care toward that individual, is not within the statute's concern. "Appropriate" is not synonymous with "non-negligent" or "adequate". But where that treatment is not inadvertent but reflects a decision to control or simply maintain rather than to "maximize the developmental potential", 42 U.S.C. sec. 6010(2), with the concomitant unnecessary restriction on physical or psychic liberty, the core guarantees of the Act's bill of rights are violated. For example, Congress' concern reaches a mentally retarded child who is housed with and treated as the mentally ill, a mildly retarded child who can function with proper training in a non-institutional setting but who is housed with and treated as the most profoundly retarded, or a retarded child who is so sedated as to impede all functioning merely as a convenient means of controlling troublesome behavior. Timothy's case is not as clear-cut as these examples because of the significant,...