by Shain Neumeier
The medical malpractice case over the use of electric shock and restraints on Andre McCollins at the Judge Rotenberg Center in 2002 went to the jury on Monday, 23 April. Even without any further witness testimony, however, the jury was only able to deliberate for 30 minutes, as the rest of the day was taken up by the remainder of the defendants’ case, both parties’ closing arguments, and the judge’s providing the jury with instructions for deciding the outcome of the case.
At the end of their case, the defendants read excerpts from two documents into the record. The first thing they read to the jury was part of JRC’s training manual, which detailed the processes for obtaining authorization to use more than ten shocks, and then more than thirty shocks, on a student in one day. Namely, it established a requirement for clinical approval to go beyond these limits. It also mentioned that the recording sheet that staff used to keep track of student behaviors listed the number of shocks that staff were allowed to use on a particular student. The second excerpt they read to the jury was part of a 2008 deposition of Dr. Anthony Joseph, who worked at JRC. This part of the questioning pertained to the contraindication form that had come up numerous times throughout the trial. Dr. Joseph had testified that Dr. Robert Von Heyn, one of defendants in the case, or another clinician would have witnessed the psychiatrist’s signing off on the contraindication form. He also said that this process was not done concurrent with or as part of the development of a student’s treatment plan. Finally, after a brief sidebar discussion with the judge, the defense attorneys were able to admit JRC’s articles of incorporation into evidence. With this, the defendants rested.
Immediately after this, out of the presence of the jury, the defense attorneys made a motion for a directed verdict, (Or rather, said that it was renewing, though it is unclear as to when it had made the first attempt) asking Judge Dortch-Okara to rule in their favor without allowing the case to go to the jury. David O’Connor, attorney for JRC founder and former Executive Director Matthew Israel and current Executive Director Dr. Von Heyn, as well as JRC itself, argued that the two individual defendants who he represented did not have Andre as a student or patient, and thus owed him no duty of care. He went on to say that neither defendant had been involved in providing Cheryl McCollins, Andre’s mother, with information about treatment at JRC in the process of her deciding whether to admit Andre to the program, and thus the informed consent claim against them should fail for the same reason. In supporting the motion for a directed verdict, Edward Hinchey, attorney for the third individual defendant, Dr. James Riley, pointed out that the plaintiff expert Dr. Marc Whaley had agreed that the use of the restraint board had been reasonable. He also said that Dr. Riley had not known about any of the GED applications Andre had received while on the restraint board. Benjamin Novotny, counsel for the plaintiff, refuted Mr. O’Connor’s arguments, and pointed out that Mr. Hinchey was factually wrong on both issues – as he remembered it, Dr. Whaley had in fact said that putting Andre on the restraint board had been a terrible idea, and Dr. Riley had testified to witnessing Andre being shocked twice once he was on it. The judge denied the defendants’ motion.
The judge and lawyers went on to discuss the instructions that the former would give to the jury, as well as the questionnaire that the jury would fill out specifying who, if anyone, was liable, and for how much. The judge sustained Mr. Hinchey’s objection to the way Mr. Novotny had requested the issue of damages to be framed in the jury questionnaire after a short discussion on the matter.
The debate over jury instructions was significantly longer. It began with Judge Dortch-Okara telling Mr. Novotny that she was unlikely to use the exact language he suggested. Mr. Hinchey followed up on this with several objections on how Mr. Novotny had worded the proposed instructions, saying that he “would prefer more neutral language.” He asked that, rather than following the plaintiff’s version of the instructions, the judge rely on model jury instructions or the language that the defense had proposed. The judge struck out several of Mr. Novotny’s proposed instructions in response to these objections. Dr. Hinchey insisted that the jury instructions make it clear that Dr. Riley could not be held responsible for alleged violations of informed consent. This request was reflected in the judge’s final version of the instructions.
For his part, Mr. Novotny objected to the language of causation that the defense had included in their proposed instructions, as well as to that regarding Andre’s absence from the trial. Despite Mr. Hinchey insisting that there was “no reason” that Andre couldn’t have come to testify himself, the judge refused to provide the jury with what she referred to as a “missing witness” instruction. She also sustained an objection by Mr. Novotny to a part of the defendants’ proposed instructions that said that a treatment’s failure to effect a cure was not by itself medical malpractice, because there was no cure or expectation thereof at issue in this case. There was also discussion over instructions that pointed out that Dr. Israel was not himself responsible for the actions of other JRC staff, in light of his testimony that he was in fact legally responsible for everything that happened at the facility. After some explanation by the defendants, the judge agreed that Dr. Israel could not be held vicariously liable for the actions of others, and said that this fact would be included in the final versions of the jury instructions.
The parties debated over the defendants’ proposal that the jury instructions contain language to the effect that the case was only about the events of 25 October 2002, and not about JRC’s treatment program as a whole. Mr. Novotny argued that the trial was, in fact, about the treatments used at JRC in general. While Judge Dortch-Okara agreed to specify the time frame for the events that the jury should be focusing on in making their decision, she refused to use the entirety of the defendant’s proposed langage, saying “I can’t limit [the jury] to that extent.”
Lastly, before closing arguments began, the court heard both sides on whether Mr. O’Connor should be allowed to use some of the judge’s own words earlier in the case as part of his own closing. Mr. Novotny argued that the court itself should not be brought in to make his case look bad. The judge agreed, saying that she did not want her words to be misused in order to smear the plaintiff.
Mr. Hinchey gave the first closing argument, on behalf of Dr. Riley. He opened by thanking the jury for their time and attention, saying that the case was very important to Ms. McCollins, but that it was also very important to all the people from JRC who were parties to or had come to observe the trial. From there, he immediately framed the case as being about what happened to Andre on 25 October 2002 in particular. According to him, even Dr. Whaley – “the ‘expert,’ and I’ll put that in quotes” – didn’t disagree with JRC’s use of restraints and electric shock on Andre that day.
He went on to reiterate what had been said about Andre himself throughout the trial. Specifically, he said that there had been “two Andres,” one charming and sociable and the other unpredictable and aggressive, and that this “complex nature of Andre” had led, among other things, to the boy being hospitalized three times by the age of ten and diagnosed with a pervasive developmental disorder. To illustrate Andre’s aggressive nature, Mr. Hinchey reminded the jury of the fact that Andre had been restrained at JRC for his behavior 20 times before, and also of JRC direct care worker Casey McAuley’s testimony on the previous Friday that Andre had bit her and broken three of her fingers.
The JRC, Mr. Hinchey said, had tried to “help [Andre] become that vision of himself that Dr. Israel talked about” during his testimony. The program had afforded him with an individualized treatment plan, consisting of both aversives and rewards to improve his behavior and give him a chance to be more independent. Furthermore, JRC’s staff had cared for him, and in fact had visited him in the hospital after he left. Mr. Hinchey concluded this part of his argument by saying that the witnesses for JRC in the trial, many of whom had worked with Andre, were the “true face of JRC.”
As for Dr. Riley’s part in this, he told the jury that Riley had been on the video footage, and thus had been involved in what had happened, for a mere twenty minutes. When he came in after Andre had received ten shocks, Dr. Riley had gathered information from staff, and briefly from Andre, and had observed Andre being shocked and admonished for his behavior twice. He brought in the restraint board, according to Hinchey, because he noticed that Andre was stressed out by being physically restrained by staff. This decision, the attorney said, was one that even Dr. Whaley couldn’t disagree with. Hinchey went on to describe how Dr. Riley watched Andre as he was put on the board, initially struggling but then seeming to calm down after being shocked. Dr. Riley then asked other JRC staff to keep him informed if there were any further issues, and asked another doctor to call him later about Andre’s condition. Finally, he wrote a note before leaving, mentioning that there had been 11 GED applications that day, and that the problems Andre was experiencing may have been related to his mother’s refusal to follow the treatment plan on his last home visit. (It is unclear whether Hinchey misspoke here or rather if the twelfth GED application that Riley knew of was actually not mentioned in the note.) The standard of care for the purposes of the lawsuit, he reminded the jury, was what a reasonably prudent psychologist would do under the circumstances. The evidence that Dr. Riley had met this standard was, in his words, “overwhelming.”
As far as the alleged contraindication for the use of combination aversives was concerned, Mr. Hinchey said that this was the fault of Dr. Von Heyn, who had simply failed to have the psychiatrist initial that part. Thus, it was nothing more than “sloppy work.” Andre’s treatment plan, on the other hand, had included combination aversives, and there had been no witnesses in the case who had testified as to how or why they would’ve been contraindicated for him.
Dr. Riley characterized what happened after the incident as Andre “[having] a reaction” that necessitated him being restrained for aggressive behaviors, and that had caused him to become withdrawn at other times. However, he referred to the testimony of defense expert witness Carol Ball, who had said that Andre had suffered no permanent injury as a result of what had happened at JRC – and, as the attorney pointed out, had reviewed all of the records before coming to a conclusion, in contrast to Dr. Whaley, who had not. Andre’s hospitalizations after the incident, he said, were nothing out of the ordinary, and since then, Andre had made progress. The fact that Mr. Novotny had even pointed out that Andre, with the help of his mother, had made improvements was proof, he argued, that Andre had experienced no lasting harm.
Towards the end of the closing argument, the attorney returned to Ms. McAuley’s testimony, especially her description of Andre as being “Hulk-like” when he tensed up. “She was the facts of this case,” he told them, “She was the reality of what was going on on October 25th.” As he framed it, the choice of how she and others at JRC could have responded to Andre’s behaviors was between medication and a behavioral program that included aversives. He asked the jury to consider the complexity of the issues, as “[i]t is difficult to have a child like Andre [and] difficult to design treatment.” He ended by reminding the jury that reasonableness was the standard to be used in determining liability, and that Dr. Riley had, in fact, been reasonable in making treatment decisions in dealing with Andre.
“First impressions can be powerful, but we need to be patient,” began Mr. O’Connor in his closing argument. The evidence that the plaintiffs had presented to the jury as part of their case had, he said, been presented out of context. For instance, he brought up the piece of the video footage that Mr. Novotny had shown in his opening statement, in which Andre was shown screaming while restrained. In that part of the footage, said the lawyer, Andre wasn’t actually screaming in response to being shocked, but rather in response to other noises in the area, such as GEDs being tested elsewhere or cell phones going off.
JRC, he reminded the jury, had a “zero rejection policy,” and its student population, including Andre, was “very behaviorally and cognitively challenged.” Before using aversives on Andre, they had monitored him for a year, and his behavior hadn’t changed. The antipsychotic that he was on, Risperdal – which, Mr. O’Connor reminded the jury, was one Dr. Whaley used in his treatment, implying that this had informed the expert’s testimony – had been ineffective in addressing this behavior, which the attorney described as aggressive, health-dangerous, verbally inappropriate and socially disruptive. He, like Mr. Hinchey, mentioned Andre’s attack on Ms. McAuley by way of example.
He then contrasted Dr. Whaley’s testimony with that of Dr. Lloyd Price, the defendants’ other expert witness. Dr. Price, he said, had looked at all of the available evidence, whereas Dr. Whaley had not. Dr. Whaley had, in fact fast-forwarded through more than half of the video footage, and had only gone back to rewatch the rest of it and correct his testimony after being called on it. Thus, the latter’s opinion that JRC’s actions constituted a gross neglect of duty had been based on incomplete information. “Who’s delinquent in their duty before this court?” Mr. O’Connor asked the jury.
He further discussed the nature of the population that JRC works with, asking the jury to “[g]ive some deference to these clinicians” who worked at the program. He admitted that events shown on the video were unsettling, but he insisted that the methods staff had used that day were necessary in dealing with the type of people JRC takes on – namely, “people that are not in the general public very often – and for very good reason.” These people, he said, were very different from the patients that Mr. Whaley worked with in his practice. With regards to the treatment JRC provided to this population, he admitted that “Do no harm” was a core principle of the medical profession, but asserted that this had to be balanced against the idea of “No pain, no gain.”
Dr. Whaley, Mr. O’Connor said, would have had JRC ship Andre off to a psychiatric facility. As it was, Andre had been heavily medicated – chemically restrained, in fact – at Children’s Hospital Boston once he was transferred there. In fact, Mr. O’Connor said, his catatonia may have been a result of the medications, or the psychosis he had been experiencing around that time, rather than fear. As far as Andre’s fear was concerned, the attorney informed the jury that Andre had been just as afraid in the hospital as he had at JRC, thrashing around in his bed in the same way he had while on the restraint board on the day of the incident. He characterized Andre’s condition in the hospital as “up and down, back and forth,” and said that this was a usual state of affairs for him, implying that it could not be attributed to what had happened at JRC. At times, according to the hospital records, Andre had asked about his mother, and had talked about things he enjoyed such as the band Destiny’s Child, and by the time he had left the hospital, he had returned to baseline. It was unclear, Mr. O’Connor said, as to what damage was actually caused by the incident at JRC.
Focusing on the roles of his individual clients, he said that neither Dr. Israel nor Dr. Von Heyn had been Andre’s doctor, and had not participated in drafting his court-approved treatment plan. Furthermore, they had had no part in obtaining or recognizing the withdrawal of Ms. McCollins’ consent for the use of aversives in treating him. As far as the contraindication form mentioned earlier was concerned, it was “secretarial,” and Von Dr. Heyn hadn’t necessarily known what was on it.
Dr. Von Heyn, Mr. O’Connor reminded the jury, had checked on Andre after hearing screaming coming from the classroom, even though Andre was not his patient and he had no obligation to get involved. At the time, he simply observed what was going on. Both then and when he later returned, according his attorney, he wasn’t callous about any of what happened, and in fact asked Andre if he was hungry or wanted water. The only reason that the attempts to take Andre off the restraint board while Dr. Von Heyn was there, he said, was because of Andre’s own reaction to this, namely his struggling. He framed Mr. Novotny’s statement earlier in the case, that by the time Dr. Von Heyn got involved “the harm was done,” in such a way so as to suggest that Dr. Von Heyn had not actually caused any of the harm himself. In fact, he pointed out, Dr. Von Heyn removed tense-ups from the list of target behaviors for which Andre was allowed to be shocked that day… even though the shocks were apparently succeeding in calming Andre. It was at this point that Dr. Von Heyn went to get help from Dr. Israel, who, upon observing the situation, realized that the treatment wasn’t working and prohibited staff from shocking Andre any more that day. “Was it perfect?” The attorney asked rhetorically. “That’s not the issue.”
On the subject of what had happened after the incident, Mr. O’Connor said that, as far as his clients had known, Andre was getting medical attention from nurses on staff. In fact, Andre was checked on by multiple people, who, at least as of the day of the incident, had told both Dr. Israel and Dr. Von Heyn that Andre was not dehydrated. In any case, the treatment Andre received at the hospital had not been all that different from that which he had received at JRC over the weekend. Furthermore, Dr. Israel was “not really a clinician,” and medical issues were “not [part of] the role” that he or Dr. Von Heyn served. He asked the jury instead to focus on the mission of JRC, which was namely getting kids off chemical restraint.
Like Mr. Hinchey, Mr. O’Connor returned to the subject of Ms. McAuley towards the end of his argument, asking the jury to think about her, and other members of staff, putting their hands on Andre that day even though he had been violent to them in the past. He assured the jury that he did not say this in order to impugn Andre, but instead to remind them that the general public doesn’t have to deal with the challenges that behavior like his poses in the way that JRC staff does. He characterized Dr. Israel in particular as an idealist seeking to treat society’s most troubled people. Ms. McCollins, he said, had turned Andre over to Dr. Israel and JRC specifically because she didn’t understand and felt uncomfortable with Andre’s behavior. He reminded the jury to look at the evidence in context, namely in the context of a facility staffed by people who did not look away and ignore people with the most severe behavioral problems, but instead sought to address their needs when no one else would. “Care,” he finished, “that’s what they do.”
In beginning his closing argument, Mr. Novotny began by describing what had happened on 25 October 2002 – namely, a child with developmental disabilities had been restrained and repeatedly shocked for being scared and tensing up. “Where is the reason in that?” he asked the jury. That day, he told them, “Andre McCollins was a harm, a danger, to no one,” and yet the staff had shocked him, and even laughed as they did so. He asked the jury what kind of treatment these shocks were anyways, when none of them succeeded in addressing Andre’s behavior. He went onto describe how, after the incident, Andre had been “shacked, tied up, in restraints” for days afterwards,” when JRC could have instead provided him with actual treatment.
He shifted to a more general attack on JRC and its methods. Dr. Israel, he said, “has been operating on the fringe of medical treatment for decades,” beginning with his failed attempts at establishing a utopian community. As for electric skin shock, Novotny reminded the jury that it was used nowhere else outside of JRC, because it was well-known that it doesn’t work, just as it had not worked for Andre. “Ask yourself,” he said, “Is this reasonable to do to anyone? Much less a child with special needs?” He reiterated that Andre, in particular, had been shocked for screaming and for being afraid, and asked the jury who wouldn’t scream under such conditions. In responding to Mr. O’Connor’s request that the jury give deference to JRC’s clinicians, he told them, “We saw what happens when they’re given deference… this is not a time for deference.”
Mr. Novotny shifted focus onto Andre, saying that the plaintiff could not help his behavior, and that he “deserves to be treated humanely, with dignity and respect… but he wasn’t.” Andre wasn’t the violent monster that the defense made him out to be, his attorney argued. He was a child. To illustrate this, Mr. Novotny referenced a sentence completion exercise that Andre had done at one point, which included statements such as “Others think I look… happy” and “Mothers understand… their kids.” Additionally, he reminded the jury of testimony earlier in the case that established that Andre had been doing well at the program he had attended before JRC, and the medications had been working for him.
Where JRC was concerned, he said that Andre’s mother “was sold on something very different than what she got.” The promotional video that JRC had used to convince her to send Andre to the program did not show students being shocked. Furthermore, she had not been warned of the side effects of the shocks – namely, abrasions, PTSD, catatonia and regression, all of which Andre had exhibited after the incident on 25 October 2002. Instead, JRC used its anti-medication message to sell her on an aversives-based program, and, Mr. Novotny told the jury, it was using the same message to sell that program to them in the courtroom.
He referred to parts of the record that said that Andre had been doing well at JRC without the use of electric shock. In spite of this, he said, Dr. Riley had planned to develop a treatment plan that included the use of aversives from the very beginning. The resulting plan was boilerplate, one-size-fits-all, and, as Dr. Riley himself had said, a “fixed, standard form.” In particular, Mr. Novotny pointed out, it did not take into consideration Andre’s history of having been sexually abused, which was mentioned in his records, or include measures to make sure that he would not be retraumatized by the use of aversives. In Dr. Riley’s affidavit to the probate court, which it had relied upon in approving the treatment plan, there had been no mention of the good behavior that Andre had been exhibiting around that time.
On the morning of the incident, Andre, according to Mr. Novotny, had not been oppositional when he came into the classroom. Instead, he “sat there, docile… he was minding his own business.” The attorney again asked where the reason was in what JRC staff did to Andre, this time in regards to their shocking and restraining him when he didn’t want to take off his coat. Later, when Andre was on the restraint board, he was quiet, and Mr. Novotny pointed out that at that time, staff could have talked to him and figured out what was going on, but didn’t.
With regards to the three individual defendants in the case, he brought up how Dr. Riley left JRC that afternoon while Andre was still in restraints not to visit another patient, but to go do paperwork instead. The fact that Dr. Riley was there for only 20 minutes, as Mr. Hinchey had said, was exactly the problem, he argued. Furthermore, he suggested that Dr. Israel obviously didn’t consider Andre to be of high enough priority, in that he had stayed uninvolved for most of the day. The absentee Executive Director, according to earlier testimony, in fact knew nothing about Andre. When Mr. Novotny then pointed out that Dr. Israel was not in the courtroom for closing arguments, and suggested that he must have thought that the case was not of high enough priority either, Mr. O’Connor objected, and the judge ordered the jury to disregard the comment. As far as Dr. Von Heyn was concerned, Mr. Novotny insisted that it had not been enough for him to say that Andre was not his patient, and that he should have realized that something unusual was going on the first time he entered the room to see what was happening. “To do something would’ve been reasonable. Doing nothing isn’t,” he told the jury. All in all, Andre McCollins himself had been given three minutes of clinician time during the entirety of the incident. This was, according to Novotny, an error of judgment, and an error in logic.
He went on to say that, at the end of the day, Andre was gone. JRC staff talked to Andre then, and it had helped him, but by that point he had already been damaged. What followed, in Mr. Novotny’s words, was that “[t]hey warehoused him – they drugged him up, restrained him, and left him. Where is the reason in that?” The only reason that Andre had gotten out of JRC and been transferred to a hospital was because his mother, who was horrified by the facility’s treatment of her son, had come to take him there. This treatment, Mr. Novotny said, was what had rendered Andre catatonic – putting him into a constant state of fear.
“O’Connor put Dr. Whaley on trial,” Mr. Novotny said in countering the attacks on his expert witness’s testimony. “Well, he’s not.” Dr. Whaley hadn’t needed to see the whole video upfront to know that “nothing on that video was okay,” he argued, or to see that JRC staff “just kept hammering and hammering and hammering on poor Andre.” He also pointed out the problems, as he saw them, with the defense’s experts. Dr. Ball worked with a different population than that of JRC, and was biased by virtue of having worked with JRC in the past. In addition, the most that she had been able to say in support of Dr. Riley was that he had stood around and observed what was happening. Meanwhile, Dr. Price had attempted to diagnose Andre after only having looked at his medical records, and had said he could tell that Andre hadn’t been scared while being shocked and restrained simply by watching the video. Even Dr. Von Heyn, Mr. Novotny pointed out, had said there was no way to tell if Andre had been scared at the time or not. Novotny gave his own take on Andre’s reaction, saying, “If that’s not scared, I guess that I don’t know what is.”
You can tell a lot about a society, Mr. Novotny said in wrapping up his closing argument, by how it treats its most vulnerable people. He used this as a springboard to ask the jury to send a message to the world, and specifically to the defendants, about what they thought about how Andre was treated at JRC. After walking them through the claims that they had to decide on, he ended by telling them that Andre couldn’t speak for himself and asking them to speak for him by finding the defendants liable for medical malpractice.
Mr. O’Connor and Mr. Hinchey objected to Mr. Novotny’s closing argument, the former on the basis that the informed consent issue should not have even been raised, and the latter to how Mr. Novotny had essentially tried to make this case a referendum on JRC’s program as a whole. On the former issue, Mr. O’Connor asserted that the issue should have been raised earlier in the case than it was, and that Dr. Israel had no duty to the McCollins family in this regard. However, the judge allowed the claim to remain part of the case, as against both Dr. Israel and Dr. Von Heyn. A discussion of Mr. Hinchey’s objection was conducted at sidebar, and resulted in the judge telling the jury that the issue at hand was not the use of electric shock in general, but the treatment provided to Andre on 25 October 2002.
After a break during which the judge drafted the final set of jury instructions, court resumed so that she could deliver them. She first appointed one of the jurors to be the jury foreman. She explained to him that he could ask her questions on behalf of the jury over the course of their deliberations.
In instructing the jury, she informed them that they were the sole and exclusive judge of the facts, and that their role was to apply the law to these facts, exactly as she explained it to them, whether they agreed with it or not. Their decision, she said, could only be based on the facts, not on personal biases or sympathy. They could decide the weight and value of the evidence, both direct and circumstantial, based on their common sense and life experience. They did not have to accept any of it, even that provided by expert witnesses, as true or credible. In evaluating the evidence, they could consider witnesses’ inconsistent statements, bias, motive in testifying, appearance, and demeanor, among other factors. However, statements and rulings by the judge, questions by the attorneys, and opening and closing arguments were not evidence that they were allowed to use in reaching a decision. She explained in detail the claims against the defendants – namely, medical negligence and lack of informed consent – and told the jury that they must decide whether it was more probable than not the allegations against each defendant were true. Finally, she listed the types of damages they could award the plaintiff if they found the defendants liable, and described the way in which they were to calculate the amount.
As the day was nearly at an end by the time the judge finished giving these instructions, the jury had very little time to deliberate. Before leaving for the day, they asked whether JRC as an institution was a defendant or not, as prior documents had stated that it was. The judge said she would answer this question the following day. (I was not able to attend court the next day, so I don’t know what the judge’s decision on this issue was. However, based on court documents and subsequent news reports, it is likely that JRC itself was in fact a defendant.)
After several more hours of jury deliberations the next day, the parties agreed to settle for an undisclosed amount of money, and the judge approved the settlement. Even since their clients signed onto this agreement, the defense attorneys have insisted that JRC and the three individual defendants were not liable, and have defended Andre’s treatment as reasonable. They went so far as to say they were glad that the tape was shown in court, allowing the jury to see that Andre was receiving proper treatment at JRC. Though Ms. McCollins is forbidden by the terms of the settlement to discuss the amount Andre received in damages, she remains vocal in her opposition to JRC, and has said that she intends to continue to fight against its use of aversives through other forms of advocacy.