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Recovered Memory Lawsuit Sparks Litigation

by Michael Jonathan Grinfeld.

Psychiatric Times December 1999 Vol. XVI Issue 12

In a stunning move made to avoid a trial, an October 1997 settlement totaling $10.75 million ended one of the most controversial and widely publicized lawsuits ever brought against a psychiatrist by a former patient who later retracted memories of recovered abuse. Patty Burgus and other family members had sued Bennett G. Braun, M.D., an internationally renowned expert in the field of dissociative identity disorder, and the prestigious Rush-Presbyterian-St. Luke's Hospital in Chicago, among others. The suit claimed that bizarre recollections of satanic ritual abuse and other trauma, which were recovered during the course of psychiatric treatment, were false and the result of negligent care over a six-year period.

But in what may become yet another trend in recovered memory litigation, Braun has decided to fight back. In June, a 22-page complaint filed on his behalf in a Cook County, Ill., circuit court claimed that Braun's defense lawyers, the insurance companies and their claims managers settled the Burgus litigation without his consent, even though it was "totally defensible as to Dr. Braun."

The problem is not with the legal system, but with insurers, Braun said in an interview with Psychiatric Times. Describing his involvement in the Burgus case as a "horrible experience," Braun added, "The insurers did what they believed was in their best interests, no matter what the policy said. They didn't do what was in my best interest, and the policy calls for them to do that."

Braun believes bringing this suit is a way for him to finally get the opportunity to defend himself. When this case goes to trial, he will have to prove that he would have been exonerated if the defendants had not settled the case against his wishes, as he now alleges. Of the total settlement sum paid to Burgus, Braun's share amounted to $4.75 million, all of it covered by Braun's insurers, according to the complaint.

"I think psychiatry as a whole is under assault and [suits by retractors] are only the first wave. It's going to spread to other diagnoses," said Braun, who added that eating disorders and self-mutilation might also become targets.

According to the complaint, Stuart A. Ringel, a partner at Chicago's Bollinger, Ruberry & Garvey, breached his fiduciary duties to Braun, and malpracticed the defense of the Burgus case when he participated in settling the lawsuits despite Braun's refusal to consent. In addition, Braun charged that the lawyer, who was appointed as his defense counsel by the insurers over his objections, didn't properly investigate the facts or adequately prepare Braun's defense, and failed to retain expert witnesses and raise statute of limitations defenses.

When reached for comment, Ringel's defense attorney, Dick Schultz, declined to discuss the case. Nevertheless, sources close to the litigation have said Ringel is a well-respected attorney who will deny he did anything wrong. Braun alleged his insurers and claims managers, including several that were part of the American Psychiatric Association-sponsored professional liability program, settled the Burgus matter without his permission in order to protect their own financial interests. Accusing them of breach of contract, bad faith and consumer fraud, Braun is seeking more than $20 million in compensatory and punitive damages.

Over the past decade, psychiatry and the other mental health professions have failed to reach consensus on critical issues regarding repressed memories. As a result, the courts have become the battleground for opposing views, with new litigation trends popping up with dizzying frequency. In the early years, criminal prosecutions and civil actions pitted victims against alleged perpetrators. Then family members, claiming _they were falsely accused, began to sue _therapists. Before long, former patients-_"retractors"-targeted practitioners, some obtaining stunning verdicts and settlements. Braun's entry into this arena could be a harbinger of other, similar lawsuits.

In a speech at the APA meeting this May, Alan W. Scheflin, J.D., one of the co-authors of Memory, Trauma Treatment, and the Law and a recipient of this year's Manfred S. Guttmacher Award, warned psychiatrists to be on guard. "Insurance companies are urging their defense lawyers to not put on a vigorous defense because they intend to settle the cases later and they don't want to run up the bills," he said. "I won't defend the logic of that proposition, but I have now documented in five different states, insurance companies are requiring [defense] lawyers to not give experts to therapists who are being sued as a way of training therapists for their deposition."

According to Howard Brinton, Braun's attorney, it's even worse than Scheflin thinks. Brinton said he is aware of 73 other psychiatrists and mental health care _practitioners who have been targeted by retractors' attorneys. These therapists may begin suits of their own to force insurers to become more aggressive in defending lawsuits by former patients.

When a physician retains the right to consent to settlements in malpractice cases brought against them, Brinton said, a host of legal obligations are imposed on both the insurers and the defense counsel they appoint. He intends to prove that, despite promises by the insurers, Braun's interests were totally ignored.

"The APA advertises the consent clause as a plus for their program," Brinton said. "You get the right to have this and there is no hammer clause. This means they don't say if you won't agree that you're unreasonable, that you're going to have to go to arbitration, or that you're going to be responsible. The APA takes great pride in advertising that it doesn't treat their doctors that way."

In addition to losing his practice, academic appointments and earnings, Braun agreed to a two-year suspension of his medical license in an October settlement with the Department of Professional Regulation of the State of Illinois. He will also have to pay a $5,000 fine and stay on probation for a minimum of five years at the end of his suspension, during which he promised not to treat patients with dissociative identity disorder. In the stipulation, Braun and the Department of Professional Regulation agreed that all negligence pertaining to this complaint and nine others listed are resolved.

Robert Kopka, an attorney defending the insurers and risk managers who are associated with the APA program, denies that anyone has breached any obligations owed to Braun. The defense will argue, in part, that Braun never had the right to consent or, if he did, that he withheld it unreasonably. In addition, Kopka is unaware of any trend developing among psychiatrists who have been sued by former patients, saying the Braun case is the only one that has surfaced thus far claiming wrongdoing on the part of insurers and defense attorneys.

Kopka also scoffed at claims that insurance companies are panicking and that the rich settlements they are negotiating are helping to foment litigation.

"That's nonsense," he said. "The insurance companies don't throw money around, and it's not easy to get an insurance company to settle cases."

With regard to the Burgus lawsuit, Kopka said the insurance companies spent millions of dollars to settle the case, even though it would have cost far less to continue defending it through trial. "The reason it did settle was because there was a substantial body of evidence which continued to grow, which was persuasive, and which would have resulted in a very severe verdict against Dr. Braun, probably exceeding his policy limits," said Kopka.

As for the APA's professional liability program, Kopka said it is run by professionals who are experts in psychiatric malpractice cases. He said that psychiatrists involved in the program should not be concerned that cases will not be defended aggressively.

Meanwhile, Braun, 59, is rebuilding his life, most likely in a field outside of medicine. In retrospect, he said he should have kept better notes of his treatment of Burgus, and he urged doctors who still work in the memories field to be thorough and to record actual quotes from patients.

He is concerned that the plaintiffs' lawyers are inappropriately applying an exacting "products liability standard" to medicine, even though it is as much an art as it is a science. "If they get away with this," he said, "it will destroy medicine eventually, not just psychiatry."

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