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Feds hit with $3.5M Prozac verdict

Federally funded clinic at fault in wrongful death of teen who attempted suicide after being prescribed antidepressant

U.S. District Court Judge Clay D. Land has ordered the federal government to pay nearly $3.5 million to the mother of a 15-year-old girl who attempted suicide and eventually died after a nurse practitioner in a federally funded clinic improperly prescribed the antidepressant Prozac.

The judge’s Nov. 27 decision found in favor of plaintiff Romona L. Floyd, who filed the wrongful death action under the Federal Tort Claims Act as the surviving parent of Jessica Ann Ray.
Floyd’s attorneys—Philip C. Henry, Harvey R. Spiegel and Marla M. Eastwood of Henry Spiegel Milling LLP—successfully argued her case before Land in a three-day bench trial last May.

Bernard Snell and William D. Gifford of the U.S. Attorney’s office in Macon represented the defendant. Gifford said he assisted Snell at trial, and Snell did not respond to requests for comment.

After the presentation of evidence concluded, the judge encouraged the parties to try to resolve the case. They held a mediation in June, but without success. Spiegel said that the Macon office of the U.S. Attorney "offered its full authority, but the Department of Justice in Washington would not approve enough additional funds to settle the case." The parties filed their proposed findings of fact and conclusions of law at the end of June.
Land, a judge in the Middle District of Georgia, issued a 47-page order in the case on the Friday after Thanksgiving. Spiegel said the order was thorough and detailed. "The likelihood is slim for an appeal," said Spiegel. "My expectation is the judgment will be paid."

A spokesman for the Justice Department in Washington also did not respond to a request for comment.
"After careful consideration of the evidence and the applicable law, the court finds that defendant’s agents prescribed Prozac for Jessica Ann Ray when it was not indicated or appropriate," Land’s order states. "The court further finds that as a proximate result of ingesting the Prozac, Jessica Ann Ray hanged herself, which resulted in a devastating brain injury that ultimately caused her death."

The judge placed the blame for Jessica’s death with Myra Bowie, an advanced nurse practitioner at MedLink Georgia Inc., a federally funded community health center in Hartwell. Land said Bowie prescribed Prozac in January 2006 without giving warnings of the associated risk of suicide and without scheduling appropriate follow-up care. Also, Land ruled that the nurse practitioner used a prescription pad pre-signed by Dr. Paul Raber, who also worked for the clinic at the time. The nurse practitioner did not leave the room for a doctor’s approval or signature before handing the patient the prescription, according to Land.

The order noted that both the doctor and the nurse practitioner are "under indictment for violating Georgia law relating to the unauthorized prescribing of medication." Both took the Fifth Amendment during the trial for certain questions regarding their prescriptions.

Their other testimony "was not credible on this issue," Land wrote. "Both Nurse Bowie and Dr. Raber had an incentive not to tell the truth."

MedLink Georgia CEO Steve Smith said he has no response to the order, and that the case predates his employment with the company.

Raber’s criminal defense attorney, Page A. Pate of Pate & Brody, said Land’s order is not likely to affect the criminal proceedings against his client, which are pending in Hart County. A lawyer for Bowie could not be reached.

The case involved dueling experts and dueling Daubert motions attempting to exclude each other’s testimony. Both motions failed.
The judge considered the testimony of psychiatrists Edwin Johnstone, for the plaintiff, and Richard Elliot, for the defense. "Both parties offered expert testimony from highly qualified psychiatrists on the cause of Jessica Ray’s suicide attempt," Land wrote.
In finding for the plaintiff, the judge separated the award into damages for wrongful death and medical expenses for both before and after Jessica Ray, who died three years after her suicide attempt, reached the age of majority. The first figure is $2,781,684.20. The second is $678,208. The total is $3.459 million.

The judge broke down the award in the details of the order. He included: $474,972.20 for medical bills; $9,523 for funeral and burial expenses; and $500,000 for pain and suffering.

"The court finds that Jessica Ray endured significant pain and suffering during the three years and 47 days that she lived after her suicide attempt. She was trapped in her body, completely disabled, yet aware of her surroundings and able to sense pain and discomfort. Placing a monetary value on such pain and suffering is difficult, but the court finds in its enlightened conscience that reasonable compensation for the pain and suffering experienced by Jessica Ray from the date of her attempted suicide to the date of her death is $500,000," Land wrote.

The judge awarded two different figures for Jessica Ray’s life: $1,475,397 for economic value and $1 million for intangible value. "The court finds that Jessica Ray was on track to attend a four-year college and then work until age 65," the order states.
Land described Jessica prior to January 2006, as "a typical teenage girl." He said she had been "a motivated and active child her entire life, getting good grades in school, participating in extracurricular activities, socializing with many friends, and exhibiting a positive zest for life."

After a trip to an emergency room for "nausea, abdominal plain and vomiting." Jessica was treated, released and told to follow up with a private physician, which led to the Jan. 26, 2006, MedLink visit, the order said.

"After Nurse Bowie talked with Jessica Ray and her mother, she wrote prescriptions for anti-nausea medication and for Prozac on a prescription pad that had been pre-signed by Dr. Raber," Land wrote. "In her notes for that visit, Nurse Bowie wrote ‘depression-Prozac.’ Her notes contain nothing to indicate that she conducted any type of clinical evaluation to determine whether Jessica Ray satisfied the criteria for a diagnosis of depression."

Although the nurse testified that she had done an evaluation, Land said he found her testimony "not credible." He said Jessica "lacked significant signs that she was suffering from depression."

Land also said the nurse practitioner ignored the U.S. Food and Drug Administration’s "black-box warning" issued in 2004 about increased risk of "suicidal thinking and behaviors" in children and adolescents from Prozac and other anti-depressants. The warnings also say that patients who are started on such drugs "should be observed closely" for "suicidality or unusual changes in behavior." Furthermore, families and caregivers "should be advised of the need for close observation and communication." The warnings suggest weekly face-to-face contact with patients for the first four weeks after starting the medication. Bowie only asked for a follow-up appointment after a month.

"On Feb. 18, 2006, 23 days after being prescribed Prozac, Jessica Ray hanged herself by securing a belt around her neck and connecting it to the pole that held her clothes in her bedroom closet," Land wrote.
Jessica’s brother and mother discovered her. "They got her down, but she suffered profound brain damage," said Spiegel, the plaintiff’s attorney.

One of the issues in dispute during the bench trial was exactly what led to the suicide attempt. The plaintiff blamed the Prozac. The defendant blamed a breakup with a boyfriend and a fight with her father. On this matter, the judge came down hard on the plaintiff’s side.

"Although she had mood swings related in part to disputes with her family, the court finds no evidence that those mood swings were significant or that they substantially interfered with her daily activities," Land’s order states.
"The court finds it preposterous to suggest that Jessica Ray’s father’s comment that talking to Jessica Ray was ‘like talking to a stop sign’ had anything to do with Jessica Ray’s decision to wrap a belt around her neck and kill herself in such a gruesome and painful manner. The court also finds that the break-up of Jessica Ray’s relationship with her boyfriend days before her suicide attempt was not likely a substantial cause of her attempt. Jessica Ray had dated other boys, and in fact, had been out on a date with someone else the night before her suicide attempt."

The order noted that she was also still communicating with the boyfriend and other friends. Another family stress noted was her parents’ divorce, but the order said that had taken place 10 years earlier and would not have been related to her suicide attempt.
"After the hanging, Jessica Ray was 100 percent disabled," the judge’s order states. "She required constant care, 24 hours a day, seven days a week for the rest of her life." She was "completely dependent" and "confined to her bed and a wheelchair." She could not speak or eat or do anything for herself. "However, Jessica Ray was aware of her surroundings and could sense pain and discomfort. She experienced significant suffering."

Jessica died on April 6, 2009, Land’s order said, "from complications due to her immobility and her devastating brain injury."
The case is Romona L. Floyd v. United States of America, Case No. 3:08-CV-122.

This article was published on December 16, 2010 and was written by Katheryn Hayes Tucker, Staff Reporter at the Fulton County Daily Report.