Did your psychiatrist fail to warn you of the possibility of developing repetitive and disfiguring involuntary facial or body movements before prescribing you an antipsychotic drug?

If you answered “yes” and you are experiencing such movements, you may have the basis for a lawsuit.

Psychiatrists are required (as are all health care practitioners) to ensure that patients fully understand the potential effects of any drug they prescribe—the bad effects as well as any good ones.  When failure to do so results in harm to a patient, it may be grounds for legal action. 

Tardive dyskinesia (TD) is a movement disorder caused by prolonged use of antipsychotic drugs (such as Haldol, Risperdal and others).  The word “tardive” means “delayed” or “late developing” and refers to the observation that this disorder begins, not right away, but after months or years of being on a drug or drugs in this class.  The word ”dyskinesia” means "abnormal movements."

TD is characterized by involuntary movements including:

  • lip smacking
  • blinking
  • raising eyebrows
  • tongue twitching and protrusion
  • puffing of cheeks
  • puckering of lips
  • toe tapping
  • jerking or rhythmic repetitive motions of the fingers, hands, arms, legs, and/or torso

Sometimes these are barely noticeable to an outside observer.  Sometimes the disorder is severe and disabling.

While the condition has been known in some cases to stop with the cessation of the drug1, it has also been known to commence with cessation of the drug.  The symptoms are otherwise irreversible; there is no known cure.

The risk of TD appears to be greater in elderly patients on high doses of the drugs, especially females.2

Types of antipsychotics

Antipsychotic drugs fall into two classes: “typical” and “atypical.”

Typicals are those that were introduced as far back as the early 1950s and include Haldol, Prolixin, Stelazine and Thorazine.

Atypicals were introduced in the early 1990s and include Abilify, Geodon, Risperdal, Seroquel and Zyprexa.  They are called “atypical” because they are chemically different from the earlier (“typical”) kind.

TD statistics

The U.S. Food and Drug Administration (FDA) receives hundreds of TD and TD-related adverse event reports every year for antipsychotics.  For instance, between 2004 and 2006, the FDA received 204 complaints on Abilify and 104 on Geodon.3  The drug adverse event reports that the FDA receives represent as little as one percent of all such adverse events.4  Thus, the actual number of TD-related events could be in the thousands.

Legal remedy

A patient who develops TD can sue the treating psychiatrist for malpractice on one or more points:

  • Battery or Negligence, for prescribing the drug without any consent (battery) or prescribing it without obtaining the patient’s full informed consent, i.e., failure to ensure that the patient fully understood potential side effects, including the incidence of TD (negligence).  Physicians are required to ensure that patients understand benefits and liabilities of 1) a proposed treatment; 2) any alternative treatments and 3) no treatment.

  • Negligence, for the psychiatrist’s inappropriate assessment, incomplete medical or psychiatric history, deficient medical examination, failure to perform laboratory examination or misdiagnosis.  Negligent malpractice liability can also be based on lack of indication for the drug; failure to monitor and care for side effects, excessive duration of treatment and dosage or failure to consult with another physician.

  • Patients who have been committed to state hospitals may have a claim for violation of their Civil Rights under the 8th and 14th Amendments to the Constitution.  Under the Civil Rights Act, the allegation would be that the treating psychiatrist relying on the authority of state law, deprived a patient of his constitutional rights by providing psychiatric assessment and treatment to the patient and failed to obtain appropriate consent to administer antipsychotic drugs.

  • A patient who develops TD after antipsychotic treatment in prison or a state mental institution can also file a federal Civil Rights action on the basis that the psychiatrist was “deliberately indifferent” to the patient’s condition.

Cases

There is considerable case law on the books to support TD-related malpractice actions.  Patients routinely prevail in such cases:

Gatling v. Perna: The patient alleged her treating psychiatrist did not obtain her informed consent in 1980 for a five-year course of antipsychotics, failed to refer her to a neurologist after she developed TD and concealed his malpractice by reassuring her that her TD was not due to the drug.  Though the trial court dismissed the case due to expiration of the statute of limitations, the Texas Court of Appeals reversed the decision and sent the case back, critical of the notion that the psychiatrist may have fraudulently concealed the patient’s true condition with his reassurances—circumstances which would have kept the statute from expiring.5

Hedin v. United States: This 1985 case involved a veteran who was prescribed Thorazine for four years for alcohol abuse in a Veterans Administration hospital.  The prescribing doctor noted the patient had developed TD and admitted his negligence in prescribing excessive amounts of the drug without proper supervision.  A jury awarded the patient $2,200,000.6

Accardo v. Cenac: In March 1997, a Louisiana jury awarded homemaker Lou Accardo $675,000 in damages against psychiatrist Louis Cenac, who prescribed her the antipsychotic Prolixin for six years, resulting in TD.  Cenac’s defense, that Accardo was not compliant with treatment, was undermined by the fact that his file on Accardo contained billing records for monthly injections of the drug but no corresponding clinical progress notes, hence failure to monitor Accardo’s condition.  Accardo also alleged Cenac did not properly diagnose her and did not obtain her informed consent for the drug.7

Weaver v. Myers: On October 15, 2001, a Rhode Island jury found in favor of a 26-year-old mildly retarded young man whose mother contended that her son’s psychiatrist had, without her consent, put him on an antipsychotic. He subsequently suffered TD, which the psychiatrist recognized but he neither informed the mother nor removed the man from the drug (he prescribed an additional drug to counter the effects). The jury determined that the psychiatrist was negligent and awarded the plaintiff the sum of $1,500,000 plus interest.8

Hamel v. Jaffe: In mid-June 2002, a Hampden (Massachusetts) Superior Court found psychiatrist Kenneth Jaffe negligent in the care and treatment of Joan Hamel, to whom he prescribed the antipsychotic Mellaril for several years, which caused her to develop TD.  Hamel's lawsuit stated that she was never informed of the potential risks associated with use of the drug and that Jaffe did not monitor her while she was on the drug. The jury awarded her $500,000 in damages.9

Jones v. Margolis: In November 2005, a Virginia woman was awarded $1.6 million against her physician.  The patient had been on the typical antipsychotic Triavil starting in 1982 and took it until her prescribing physician died in 1997.  Her new doctor continued her on the same regimen and in 2003 she developed TD.  The basis of her suit was misdiagnosis, failure to monitor and failure to obtain full informed consent.10

Conclusion

If you are suffering from disfiguring involuntary movements and are taking or have taken a prescribed antipsychotic drug, you may have the basis for a malpractice lawsuit.  A personal injury attorney or law firm can review your case and make this determination.

For more information, please contact Steve Wagner, Director of Litigation, Citizens Commission on Human Rights, at swagner@cchr.org

1 Spivey v. U.S. and Dept. of the Navy, 912 F. 2d 80 (United States Court of Appeals for the Fourth Circuit 1990).

2 Physicians Desk Reference, Edition 52, 1998, pg. 1512-13, 1999

3 Decoded FDA MedWatch database for 2004-2006, as posted at http://www.cchrint.org.

4 “Psychiatric Drugs: Chemical Warfare on Humans—interview with Robert Whitaker,” International Center for the Study of Psychiatry and Psychology, October 14, 2005.

5 Gatling v. Perna, 788 S.W. 2d 44 (Court of Appeals of Texas, 1990).

6 Hedin v. U.S., Number 5-83 CIV 3 (D. Minn) (1985).

7 Accardo v. Cenac, Case No. 350, 125 Div. “F,” March 16, 1997, as published by Verdicts, Settlements and Tactics, July 1997.

8 New England Jury Verdict Review & Analysis, Weaver vs. Myers, case #98-2687,October 15, 2001; April 2002.

9 "Jury awards woman $500,000 in lawsuit,” Union News (Springfield, MA), June 26, 2002.

10 “Tappahannock woman awarded $1.6 million for medical malpractice,” Virginia Lawyers Weekly, November 28, 2005.


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