Visser v. Taylor

• Decision Date: 10 September 1990
• Docket Number: No. 90-2280-O.,90-2280-O.
• Citation: 756 F. Supp. 501
• Parties: Betty VISSER, Plaintiff, v. Dennis TAYLOR, in his capacity as Secretary of the Kansas Department of Social and Rehabilitation Services, Defendant.
• Court: U.S. District Court — District of Kansas

756 F. Supp. 501

Betty VISSER, Plaintiff, v. Dennis TAYLOR, in his capacity as Secretary of the Kansas Department of Social and Rehabilitation Services, Defendant.

No. 90-2280-O.

United States District Court, D. Kansas.

September 10, 1990.

Joel R. Hayes Jr., Topeka, Kan., Stephen M. Kirschbaum, Kansas City, Kan., for plaintiff.

Reid Stacey, Social & Rehabilitation Services, Office of General Counsel, Topeka, Kan., for defendant.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

This matter comes before the court on the motion of plaintiff Betty Visser (hereinafter "Visser") for a preliminary injunction pursuant to Rule 65(a) of the Federal Rules of Civil Procedure. Plaintiff seeks injunctive and declaratory relief against the Kansas Department of Social and Rehabilitation Services (hereinafter "SRS"). Visser contends that the refusal of defendant to provide the drug clozapine (brand name "Clozaril") to her, as a recipient of the Medicaid Program in Kansas, is in violation of the federal statutes and regulations governing the Medicaid program. Plaintiff seeks a declaratory judgment and an injunction prohibiting SRS from continuing to deny Clozaril to her as a Medicaid recipient. For the reasons stated below, we will grant plaintiff's motion for a preliminary injunction.

I. FINDINGS OF FACT

1. Defendant, Dennis R. Taylor (hereinafter "Taylor"), is a cabinet member of the executive branch of the state of Kansas. He serves as the Secretary of SRS, in an acting capacity, subject to the confirmation of the Kansas Legislature. The Secretary is charged with the statewide supervision and administration of the Kansas Medicaid program. He is responsible for determining the general policies relating to the Kansas Medicaid program, and for adopting rules and regulations governing the program.

2. Plaintiff qualifies for, and is receiving Medicaid benefits through SRS. Visser, a thirty-nine-year-old resident of Lawrence, Kansas, suffers from auditory and visual hallucinations, which have been nearly continuous since she was twenty-one years of age. Her hallucinations, which are of a command variety, are becoming more numerous. Command hallucinations consist of voices that instruct the individual to perform various acts. In addition, she is experiencing more visual intensity with the hallucinations. This is especially dangerous for plaintiff, because many of her hallucinations command her to commit suicide. The likelihood that Visser will act upon the hallucinations is increased by the fact that she has attempted to do so in the past.

3. Visser's primary diagnosis is schizo-affective disorder, depressed type. She is also diagnosed as suffering from hallucination disorder and hemochromatosis. Plaintiff has been treated at the University of Kansas Medical Center (hereinafter "KUMC") by Daniel F. Ward, M.D. (hereinafter "Dr. Ward"). Dr. Ward, a psychiatric resident for the Outpatient Clinic in the Department of Psychiatry, has recommended that plaintiff be treated with Clozaril because her schizophrenia is not being treated effectively by other medications now available. In lieu of Clozaril, Dr. Ward has treated Visser with increasing dosages of Haldol, which has become progressively ineffective and is causing increasingly severe and potentially irreversible side effects, including dystonia, tardive dyskinesia, blurred vision, and loss of muscular control.

4. Plaintiff's schizophrenia is currently resistant to treatment. She has been treated unsuccessfully with a number of drugs, including: stelazine, pimozide, thorazine, navane, inderal, atenol, trazadone, presoline, klonopin, lithium, and reserpine. She is currently being treated with propranolol, amantadine, desyrel, klonopin, tirsilate, and haldol. Plaintiff has received inpatient treatment at St. Joseph Hospital and Westview Medical Center in Wichita, Kansas, on four occasions. She has been hospitalized ten times at KUMC, and one time at North Hills.

5. Visser is losing some of her cognitive function, resulting in a loss of basic memory, and now has trouble tracking conversations. It is not clear whether this is a result of her schizophrenia or a side effect of Haldol. In addition to becoming increasingly ineffective, Haldol is causing plaintiff to suffer from other very serious neurological side effects. Visser is experiencing muscle spasms in her back as a result of dystonia and is now forced to use a walker for support as she walks. Plaintiff falls occasionally and she needs the help of others to climb stairs and get out of a bathtub.

6. Visser's physical and mental state is now deteriorating at an increasing rate. She is experiencing tardive dyskinesia as a result of her consumption of extraordinarily high dosages of Haldol. The following three factors make plaintiff more likely to develop tardive dyskinesia: (a) her long-term use of Haldol; (b) her sex, female; and (c) her diagnosis of schizophrenia. Visser will most likely recover from dystonia and tardive dyskinesia at some point in the future if she stops consuming Haldol. Her withdrawal from Haldol without the use of clozaril would result in an unacceptable increase in the hallucinations which would ultimately lead to institutionalization or suicide.

7. Plaintiff was treated by Elkard Othmar, M.D., Ph.D., (hereinafter "Dr. Othmar"), the medical director at North Hills Hospital (hereinafter "North Hills") in Kansas City, Missouri, and by Manuel P. Pardo, M.D. (hereinafter "Dr. Pardo"), a psychiatrist and professor at KUMC, from November of 1988 to March of 1990. Dr. Pardo as well as Dr. Othmar contribute as consultants to Visser's treatment and both recommend that she receive Clozaril.

8. In the opinion of Doctors Ward, Pardo, and Othmar, Visser's condition will continue to deteriorate and she will be institutionalized within six months to a year if she does not receive Clozaril. Clozaril, according to the doctors, is the only existing drug approved by the FDA which can treat plaintiff's schizophrenia. In clinical studies, Clozaril usage has resulted in a significant improvement in 30% of the cases of treatment resistant schizophrenia when patients were given Clozaril for six weeks. When the drug was administered to patients for six months, there was significant improvement in 60% of the cases involving treatment resistant schizophrenia. Despite requests by Visser's physicians and counsel, the defendant has refused to supply Clozaril to the plaintiff, or any other Medicaid recipients in Kansas. The court finds that Visser is suffering and will continue to suffer irreparable harm unless the defendant is enjoined from refusing to cover Clozaril in the Kansas Medicaid program.

II. CONCLUSIONS OF LAW

1. The court has subject matter jurisdiction over SRS's proposed Medicaid disallowance under 28 U.S.C. § 1331. Section 1331 of Title 28 provides district courts with jurisdiction over actions arising under the Constitution, laws, or treaties of the United States. See, e.g., Woodstock/Kenosha Health Center v. Schweiker, 713 F.2d 285, 288-89 (7th Cir.1983). SRS has not challenged the court's jurisdiction.

2. Venue exists over this action pursuant to 28 U.S.C. § 1391. Plaintiff Visser resides in Lawrence, Kansas, and her claim against the Kansas Department of Social and Rehabilitation Services arose in Kansas. SRS is located in this judicial district and has not challenged venue.

3. Plaintiff's action against SRS is authorized by 28 U.S.C. §§ 2201-02, Rule 57 of the Federal Rules of Civil Procedure, and 42 U.S.C. § 1983, and arises under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. A person who is denied Medicaid benefits is not required to pursue an inadequate administrative procedure before raising federal statutory and regulatory challenges in federal court. Curtis v. Taylor, 648 F.2d 946, 949 (5th Cir.1980).

4. In order to be entitled to a preliminary injunction, a party must demonstrate: (a) that the movant will suffer irreparable injury unless the injunction is issued; (b) that the threatened injury to the movant outweighs whatever damages the proposed injunction may cause the party or parties to be enjoined; (c) that the injunction, if issued, would not be adverse to the public interest; and (d) that there is a substantial likelihood that the movant will eventually prevail on the merits. Tri-State Generation & Transmission Ass'n, Inc. v. Shoshone River Power, Inc., 805 F.2d 351, 355 (10th Cir.1986) (citing Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.1980)).

5. While the burden of proof is upon the movant to establish his or her right to relief, the burden of proof on the merits at the preliminary injunctive stage is considerably less than at trial. See Kenai Oil & Gas Inc. v. Dep't of Interior, 671 F.2d 383, 385 (10th Cir.1982); Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 782 (10th Cir.1964). Where a plaintiff demonstrates the above three requisites including irreparable harm outweighing any potential harm to defendant, the probability of success requirement is satisfied when plaintiff raises questions going to the merits that are so serious, substantially difficult, and doubtful as to make them a fair ground for litigation. Otero Sav. & Loan v. Fed. Reserve Bank, 665 F.2d 275, 278 (10th Cir.1981). For the reasons stated below, we find that plaintiff has met all of the foregoing criteria.

6. The court is persuaded that plaintiff will suffer immediate and irreparable harm in the absence of injunctive relief. Visser suffers from schizophrenia, manifesting itself in suicidal delusions and hallucinations for which there is no effective treatment, other than Clozaril. Dr. Gilbert Honigfeid testified that recent research indicates a 60% response rate in cases of treatment resistant schizophrenia. In the absence of Clozaril, plaintiff must be treated with Haldol which is presently causing...