Tuesday, July 26, 2011

D.C. Corporation Counsel -- Disregard of Medical Ethics and Civil Rights Implications

December 16, 1997
3801 Connecticut Avenue, NW #136
Washington, DC  20008-4530

Charles L. Reischel, Esq.
Deputy Corporation Counsel
Government of the District of Columbia
Washington, DC  20001

RE: Freedman v. D.C. Dept. of Human Rights, D.C. Court of Appeals no. 96-CV-961

Dear Mr. Reischel:

This letter is an elaboration of concerns stated in a previous letter to the Office of Corporation Counsel dated March 19, 1996 and addressed to William J. Earl, Esq., a copy of which is enclosed.

That previous letter transmitted and discussed documentation that raised questions about the genuineness of claims made to the D.C. Department of Human Rights (“DHR”) by my former employer, the law firm of Akin, Gump, Strauss, Hauer & Feld (“Akin Gump”), that were adopted as Finding of Fact no. 6 in DHR’s letter of determination dated June 30, 1993 in the agency proceedings below, Freedman v. Akin, Gump, Hauer & Feld, agency no. 92-087-P(CN).  See record on appeal at page 17.  DHR Finding of Fact no. 6 states, in part: “Respondent [Akin Gump] also sought outside professional guidance because of the emotional and psychological nature of Complainant’s allegations and his coworkers' responses. . . .   Dr. Gertrude R. Ticho [a psychiatrist] identified Complainant’s behavior, putting a negative meaning to virtually every event as ‘ideas of reference’ 1/ and cautioned that individuals in similar circumstances may become violent.”

Even assuming that the claims of Akin Gump managers are genuine and DHR Finding of Fact no. 6 is accurate, there is a concern that representations by Dr. Ticho that my complaint of harassment to the employer was attributable to a psychiatric symptom that might be associated with risk of violent behavior may constitute a violation of the ethical principles of psychiatry promulgated by the American Psychiatric Association (APA).  See Section 7, annotation 3 of The Principles of Medical Ethics (With Annotations Especially Applicable to Psychiatry) (“Principles”) (1995 edition) at 9, which reads, in part: “it is unethical for a psychiatrist to offer a professional opinion about [a] specific individual unless he/she has conducted an examination and has been granted proper authorization for such a statement.”  The APA’s Ethics Committee “cautions against drawing clinical conclusions based upon information gleaned outside the clinical setting.”  Opinions of the Ethics Committee on the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry (1995 edition) (“Opinions”) at 568.   I was not personally examined by Dr. Ticho, and the record so indicates.  See record at 62 and 122-123.  Akin Gump does not allege, and DHR did not find, that Dr. Ticho based her professional opinion upon a review of my medical records, which would be ethically acceptable per Section 7, Annotation 3 of the Principles. Opinions at 57.

A professional opinion made by a psychiatrist about a specific individual without benefit of a personal examination, or not based upon a review of medical records or other unbiased or complete 2/ information, is deemed inherently unreliable by the APA, as evidenced by the above-referenced annotations and opinions of the APA’s Ethics Committee.  Further, under case law in some jurisdictions the publication of such a professional opinion may, in certain circumstances, be deemed defamatory, regardless of the opinion’s seeming reliability or authenticity.  See e.g. Goldwater v. Ginzburg, 261 F.Supp. 784 (S.D.N.Y. 1966), affirmed 397 U.S. 1049 (1970).

The Office of Corporation Counsel is respectfully advised that the repetition by an agency of the District Government of a psychiatric opinion that would be considered inherently unreliable per the APA’s principles of ethics, that attributes my perceptions of my work environment to a psychiatric symptom associated with a risk of violent conduct, such as contained in DHR Finding of Fact no. 6, in Freedman v. Akin, Gump, Hauer & Feld, agency no. 92-087-P(CN), may constitute an actionable libel committed by a state agency, and additionally, therefore may constitute a violation of my civil rights under the laws and constitution of the United States.  Cf.  Paul v. Davis, 424 U.S. 693 (1976); Bishop v. Wood, 426 U.S. 341 (1976); and Board of Regents v. Roth, 408 U.S. 564 (1972).

Sincerely,

Gary Freedman

cc: Federal Bureau of Investigation, Office of General Counsel
     Michael C. Rogers, Office of City Administrator
___________________________________

1/ The term “ideas of reference” employed in Finding of fact no. 6 is a psychiatric term of art, which is defined as “the assumption by a patient that the words and actions of others refer to himself or the projection of the causes of his own imaginary difficulties upon someone else; called also delusion of reference." Dorland’s Medical Dictionary at 814 (27th ed. 1988).  “Ideas of reference are prominent in the severe (psychotic) mental disorders."   Noll, R. The Encyclopedia of Schizophrenia & The Psychotic Disorders at 169 (New York Facts on File, 1992).  Ironically, Akin Gump’s own expert, Gertrude R. Ticho, M.D., has peer-reviewed the published work of a nationally-recognized expert in studies in creativity, Albert Rothenberg, M.D., who has found that creative persons may be “unusually sensitive to implicit messages” and may be more perceptive than their non-creative peers.  See Rothenberg, A. Creativity and Madness at 12 (Baltimore The Johns Hopkins University Press, 1990); Rothenberg, A. “Janusian Thinking and Creativity.” In The Psychoanalytic Study of Society, vol. 7: 1-30 at 3.  Gertrude R. Ticho, M.D., contributing editor. (New Haven: Yale University Press, 1976).  See also record on appeal at 500: Letter dated November 28, 1989 from Albert Rothenberg, M.D. to Gary Freedman.  Whether my perceptions of my work environment at Akin Gump might be accurately termed “ideas of reference” (a paranoid psychiatric symptom that may be associated with a risk of violent conduct) or, alternatively, the result of unusual sensitivity to implicit messages, or “perceptiveness,” consistent with the published work peer-reviewed by Akin Gump’s own expert, is a question of psychiatric differential diagnosis that properly requires personal examination by a qualified psychiatrist in accordance with the APA’s so-called Goldwater Rule.

2/ According to the Superior Court of the District of Columbia any allegations regarding the adequacy of Akin Gump’s investigation cannot negate the credibility of Akin Gump’s asserted reasons for the termination, which were deemed by the court to be nondiscriminatory.  Freedman v. D.C. Dept. of Human Rights at 4-5 (D.C. Superior Court no. MPA-95-14) (final order filed June 10, 1996 (name of judge redacted).  While even an inadequate investigation might pass muster for Title VII purposes, there remains a question as to whether Akin Gump’s investigation--even if conducted in good faith--was sufficiently thorough so as to permit a psychiatrist to make a reasoned judgment, consistent with the APA’s principles of ethics, about my mental state and potential for violence, thereby rendering a professional psychiatric opinion based solely on information gleaned from that investigation non-defamatory.  See Opinions at 57 (a psychiatrist, acting in the capacity of consultant, may base a professional opinion upon a review of reports and information gathered about an individual [provided proper authorization has been granted for such a psychiatric review]).

1 comment:

Gary Freedman said...

The District's brief was filed with the D.C. Court of Appeals on July 25, 1997. The Brief defended DHR's finding of fact no. 6 regarding Akin Gump's determinaton, resulting from an ex parte consultation with a psychiatrist (Dr. Ticho), that my harassment complaint was the product of "ideas of reference" that might be associated with a risk of violence.

The District's defense was made with full knowledge of the APA's ethical precepts prohibiting such psychiatric consults, with full knowledge that DHR finding of fact no. 6 was defamatory, and that DHR finding of fact no. 6 might form the basis of a civil rights violation (in the event my liberty interests were impaired).