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The Judge Rotenberg Center on Trial, Part 4

by Shain Neumeier

The defendants’ case in the ongoing medical malpractice trial over the longterm restraint and repeated electric shock of Andre McCollins at the Judge Rotenberg Center began on Friday, 13 April, with the testimony of Dr. James Riley.  Attorney Edward Hinchey, representing Dr. Riley separately from the other defendants in the case (namely, Dr. Matthew Israel, Dr. Robert Von Heyn and the JRC as a whole), conducted the direct examination over the course of the afternoon.

The beginning of the direct examination provided the jury and observers with a sense of who Dr. Riley was and the work he had done for JRC.  He identified himself as a psychologist and current Acting Clinical Director at JRC.  Earlier in life, he served in the Navy as a flight officer, and was on active duty in Vietnam.  His experiences there and serving during the Cold War in general made him “very interested in human behavior,” and when he left the Navy with the rank of Commander, he went on to pursue graduate work in the field of psychology.  The positions he has held since then have included a professorship at the University of Massachusetts and working for the Massachusetts Department of Mental Health as the Chief Psychologist at Bridgewater State Hospital.  As for his role at JRC, while he has worked with the program for many years, he has never been a fulltime employee, and was serving a consultant in 2002, when Andre was there, working Wednesdays and Friday mornings.

He described the treatment philosophy at JRC as one of “radical Skinnerian behaviorism,” and told his attorney and the jury about the various behavioral interventions, including aversives, used there.  This included providing a brief explanation about the legal substituted judgment process used by JRC to get approval to use aversives on individual students, which involves the development of a treatment plan, parental consent, and review by two committees and a probate court.  He also discussed JRC’s positive behavioral program to some degree, calling it “reward heaven.”  The rewards he mentioned ranged from relatively basic things like getting to listen to music or play sports to visiting the facility’s Big Rewards Store, an arcade-like area where children can socialize in relative freedom and use points earned through JRC’s positive behavior program’s token economy to play games and buy toys.  Dr. Riley went on to characterize the population of JRC students at the time Andre was attending (which, he implied, was different from the population that the program works with now) as people with intellectual and other developmental disabilities, who had “very disruptive behavior disorders” that prevented them from leading “normal, productive lives in society.”

In addition to describing JRC itself, Dr. Riley explained some of the tenets of behaviorism in general, specifically the difference between counseling and behavioral psychology, and, within the latter category, between cognitive (or reasoning-based) behavioral therapy and operant (or consequence-based) conditioning.  When asked about whether a psychotic patient could benefit from operant conditioning, specifically the use of aversives, he said that psychosis was not in fact a contraindication for their use, as, without conscious learning being required, a psychotic patient could still benefit from them.   However, as Mr. Hinchey made clear through his questioning of the witness, interruption of consequences in operant conditioning makes treatment take longer with any patient, as the lack of consistency will cause them to learn more slowly.

Where it came to his involvement with Andre, Dr. Riley testified that he had not been the first psychologist at JRC to work with the boy, but rather had taken over from another doctor.  However, he had designed Andre’s treatment plan, relying on records from earlier residential programs and personal observations to identify target behaviors to be addressed through the use of aversives.  When asked by Mr. Hinchey, Dr. Riley named and explained the conditions with which Andre had been diagnosed with upon placement at the JRC – namely, moderate intellectual disability, impulse control disorder, conduct disorder, pervasive developmental disorder, ADHD and psychosis not otherwise specified (NOS).   As for his personal observations about Andre’s behavior and demeanor, he spoke of how there were “two Andres” – the boy could be very “easygoing and relaxed,” or “very aggressive… [he would] talk about dark things.  Stern face.  Frightening guy.”  He went on to describe several instances of Andre’s assaultive behavior against staff, including biting and, at one point, breaking a staff member’s thumb.

Dr. Riley’s testimony continued into the following week, with court resuming on Tuesday the 17th after a state holiday on Monday.  Before it continued that morning, however, there were a couple of motions made outside the presence of the jury by the parties.  One of them concerned the fact that members of JRC staff could be heard laughing in the video footage while Andre was being restrained and shocked.  Defense attorney for the JRC and two of the individual defendants David O’Connor said that they had not expected the laughter to become such a big issue in the case, and wanted to repair the damage it had done by calling an additional witness, one of the people who had actually been there that day, to explain it.  Specifically, if allowed to testify, the witness was expected to say that a technician in the room had made an off-topic joke, and the laughter heard on the tape was not directed at Andre or his situation at all.  According to Mr. O’Connor, “there may be things in a charged environment that make people laugh,” and the jury had not heard the laughter in context.  Plaintiff’s attorney Benjamin Novotny argued against allowing the witness to testify, because it would delay the case and because he had not had the chance to speak with her in a deposition.  He also questioned how the defense team had not realized that the laughter could have come up as an issue, especially since they had had the video footage the entire case and that particular part of it had come up repeatedly in depositions.  The judge took the issue under advisement.  At this point, the defense has stated that they will call a member of staff who present on that day to testify later in the case, and thus it appears that the defendants eventually prevailed on this motion.

In a second motion, Dr. Riley’s attorney made a motion to be able to include in evidence a document that established that, as of June 2002, Andre’s treatment plan had been altered to include “full body tense-ups” as a target behavior for which aversives could be administered.  According to Mr. Hinchey, this behavior was added under the category of “harm to self” and was based on observations of Andre while he was at JRC.  Mr. Novotny argued that this information was being brought up too late, but Hinchey stated that he had had no more idea that the relevant document had existed before this point than had the plaintiff.  In the end, the judge decided that the document could be admitted into evidence.

Upon Dr. Riley’s return to the stand, the discussion once again turned to the subject of psychotropic medication.  Dr. Riley testified that JRC discouraged, and sought to eliminate the use of, psychotropic medication on the students placed at the program, because of the “very severe, irreversible” side effects that they could have.  Specifically, he spoke to how antipsychotics could cause movement disorders, brain damage and death, and were more likely to do so the longer that an individual used them.  Furthermore, they did not guarantee a lack of aggression in patients who took them, as was the case with Andre, who Dr. Riley said was restrained 20 times at JRC while still on Risperdal because of his aggressive behaviors.  As part of Andre’s treatment plan, therefore, Dr. Riley had begun to taper him off the Risperdal, and had added a warning in the notes for staff to be aware of signs of medication withdrawal.

Meanwhile, because of Andre’s aggressive and otherwise targeted behaviors, a court approved JRC’s treatment plan for Andre that included the use of aversives.  According to Dr. Riley, the psychiatrist reviewing the plan had found no contraindications for their use, and the court had had no problem approving it, even with Andre’s diagnosis of psychosis from a prior residential program.  When asked further about this, he elaborated that Andre had not had enough psychotic features for a formal diagnosis, hence the “not otherwise specified” label, and in any case, one can have some psychotic features while still being in touch with reality.

Based on the motion from earlier in the day, Mr. Hinchey and Dr. Riley discussed the fact that the latter could and in fact had added new target behaviors to the treatment plan for the purposes of aversive use.  Specifically, in June of 2002, Dr. Riley had added both “full-body tense ups” and “throw self to the floor” as targeted behaviors under the category of “health dangerous,” or self-injurious, behaviors.  He testified that he had observed Andre engaging in them repeatedly, and had come to the conclusion that there was certainly a possibility that he could hurt himself in doing so.

As for his involvement in the incident on 25 October 2002 itself, he was called in to check on Andre and the situation unfolding once Andre had been shocked ten times.  He had seen Andre two days before, and though they had not interacted, he had thought that Andre had seemed fine enough.  When coming to check on Andre on the 25th, he also did not interact directly with Andre, instead seeking information from his case manager and other direct care staff.  His reason for doing this, he stated, was that he did not want to encourage Andre to engage in further inappropriate behavior by giving him attention, even if it was negative attention.

It was his understanding, from talking with staff, that Andre was being restrained to “maintain safety.”  However, it became clear from his observation that the presence of and restraint by direct care providers was agitating Andre.  His solution to the stress Andre was experiencing and the alleged danger he posed was to “isolate” him by putting him on the four-point restraint board in hopes that he would calm down.  Even though Andre protested vehemently when the restraint board was brought in, in Dr. Riley’s estimation, its use was a success in terms of what staff was attempting to accomplish – he reported that,  when he left that day at the end of his shift, Andre was doing “reasonably well,” his behaviors were decreasing and he was getting relatively few shocks.  Even though, on the video tape, he was still struggling in the restraints, sobbing and repeatedly saying the word no, Dr. Riley’s reading of the situation was that he was at least no longer growling, and he was starting to relax.  This, he said, mirrored past incidents where Andre had calmed down over a span of one to two hours when placed on a four-point mechanical restraint board after being physically restrained by staff.

By the time that Dr. Riley left that day, Andre had received 15 skin shocks.  Dr. Riley defended these shocks as appropriate, as “Andre was continuing to engage in… violent, full-body tense ups,” which he described in terms of their extent and their appearance to an outside observer in order to emphasize the purported need for more shocks.  Based on parts of the video – namely, Andre’s apologizing at one point for tensing up and begging staff not to shock him and his asking staff to untie his shoes while being manually restrained so he would be more comfortable – the witness concluded to a reasonable degree of medical certainty that Andre had been aware of his surroundings and situation and thus able to learn from the use of aversives.

Dr. Riley testified that, before leaving JRC on the day of the incident, he had checked in with a senior member of staff and told him to call if anything went wrong with Andre.  He had heard later that day that Dr. Robert Von Heyn, another defendant in the case, had been handling the situation, but otherwise heard nothing to suggest that things had gone wrong.  It wasn’t till he returned to JRC the following Wednesday, after Andre had already been taken to the hospital, that he learned of everything that had happened.

In his opinion, he had complied with the standard of care, and had in fact “tried as hard as [he] could to understand” Andre’s behaviors.  He had not, he said, been trying to treat psychosis, but had instead been treating disruptive behavioral problems, and the use of aversives was, to his mind, the least restrictive and most beneficial way of doing so – more so than psychiatric drugs, at least.  At the end of his testimony, he stated that he “did everything [he] could” for Andre.

After the direct examination, the court took a break and I had to leave for the day, but cross-examination began and ran for approximately an hour before court adjourned for the day.  The cross examination continued the following day.  However, before the questioning resumed, and before the jury was even brought in, the parties approached the bench to speak with the judge outside of the earshot of cameras and trial observers for approximately 30-45 minutes.  Following this discussion, the jurors were brought in, and the judge instructed them to disregard questions about an “unrelated issue” raised by Mr. Novotny on cross examination the previous day.  The judge characterized these questions as unfair, highly inflammatory, and having the potential to distract, and informed the jury that plaintiff’s counsel had been admonished for his conduct.  Finally, she reminded them that the only potentially negligent conduct at issue on the part of the JRC or any of its employees was the treatment of Andre on 25 October 2002.  According to the reporter from Fox News, the issue raised by Mr. Novotny had to do with student deaths at JRC.

Mr. Novotny’s questioning of Dr. Riley resumed with the attorney asking about records that included observations about Andre made by treatment professionals at other residential programs, with particular emphasis on those from Woods Services, the program which Andre had been attending prior to placement at JRC.  Dr. Riley characterized Andre’s prior treatment as being “without success,” saying that Andre’s behaviors had continued to deteriorate at other programs.  Mr. Novotny countered this by introducing into evidence parts of Andre’s records in which a care provider had written that the Woods Services program had been benefiting him.  These records went on to say that Andre should have been considered for a less restrictive program because of the low incidence of his engaging in dangerous behaviors.

The JRC’s own records from the period before it submitted the treatment plan to the probate court also contradict Dr. Riley’s affidavit.  Specifically, in the approximately four weeks leading up to his drafting and signing this document, entries in the record stated that Andre had had no instances of aggressive behavior since he was put temporarily back on Risperdal, and that he was “stable and doing well.”  There were apparently a number of other stability- and good behavior-related entries that did not get directly quoted from during this period.

Mr. Novotny went on to introduce and discuss a form used at JRC that stated whether, according to a staff psychiatrist who worked with Andre, the use of any aversive procedures was contraindicated for him.  The instructions at the top of the form established that there was no contraindication for a given aversive procedure if the psychiatrist wrote his initials next to where it was listed on the page, and, conversely, that the absence of initials next to a given intervention meant that it was contraindicated.  This form, which was dated 4 April 2002, and which was in effect as of 25 October of that year, revealed that the psychiatrist had approved the use of aversives including restraint, electric shock, restraint helmet, meal restrictions and being sprayed with water on Andre.  However, the psychiatrist had not written his initials in the space next to where combination interventions – which would include using electric shock and a restraint helmet simultaneously on someone who was physically or mechanically restrained – was listed.  When asked, Dr. Riley stated that using an aversive that is contraindicated for a student is against JRC policy.  He stated that he did not know why the psychiatrist had “failed to initial” that part of the form.

On redirect examination by defense attorney Edward Hinchey, Dr. Riley stated that he did not actually know if that particular authorization sheet was in effect as of the date of the incident.  He also mentioned that there were no comments on the sheet explaining why, at this point, the psychiatrist had concluded that combination interventions were contraindicated, and that the psychiatrist had never discussed the change with him.  As far as he was concerned, no one had ever suggested that these procedures were no longer appropriate for Andre.  A brief recross examination by Mr. Novotny later established that the form did not require a psychiatrist to make comments about why a given aversive was contraindicated, stating only that such a contraindication “may” be explained.

In addressing earlier parts of the cross-examination on redirect, he stated that, in drafting Andre’s treatment plan and the affidavit to the probate court, he had not reviewed the records from the Woods program, even though (as established on recross) he had access to them.  With regards to the JRC records for the period leading up to the probate court hearing, he said that, during that time, Andre had had good days, and even good weeks, only to be unpredictably aggressive and self-injurious at other times.  Lastly, he testified that he did not have any information on Andre’s sexual abuse history in the records he used in developing a treatment plan for Andre.  When later asked by Mr. Novotny as to why he had not asked Mrs. McCollins whether Andre had such a history, he said that he had seen no need to do so.

Dr. Riley’s testimony ended with the recross examination, and was followed by testimony by his own expert witness, which will be covered in a subsequent blog post.

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