By way of introduction, Barry S. Pollack is a former federal prosecutor, and the longest-serving board member of the Massachusetts Society for the Prevention of Cruelty to Children. As an attorney, he has represented a number of families in cases involving Boston Children’s Hospital. On May 29, 2014, the law firm of Pollack Solomon Duffy LLP filed a lawsuit in Federal court against the Massachusetts Department of Children and Families stemming from its practice of limiting parental choices and access to second medical opinions.
The Civil Complaint alleges that the Massachusetts Department of Children and Families has violated, and continues to violate the fundamental rights of parents to choose which healthcare providers will examine and treat their children, in violation of the Due Process Clause of the Fourteenth Amendment. The Complaint charges that:
DCF has unconstitutionally expanded the concept of “medical child abuse,” without sufficient and justifiable standards, to intrude on sincere, vigilant and loving efforts by parents who face competing diagnoses and different views on the medical condition of their children.
According to the Complaint, the Mother and Father received multiple diagnoses for their now 13-year-old daughter.1
They received an assessment of Pediatric Autoimmune Neuropsychiatric Disorder Associated with Streptococcal Infection – also known as PANDAS – from qualified providers. What would you suppose happened to the child presenting at Boston Children’s Hospital with a working diagnosis of a rare disease? The Complaint explains that at the inpatient psychiatric unit at Children’s Hospital Boston known as “Bader 5,”
providers initially maintained a diagnosis of an undifferentiated somatoform disorder. DCF has interfered with and improperly chilled the efforts of the Mother and Father to obtain laity and the most appropriate cure for their daughter.
Despite prior diagnoses of physical causes for her condition, after the Daughter went to Children’s Hospital Boston, certain healthcare providers associated with Bader 5 almost immediately concluded that the Daughter suffered from an undifferentiated somatic disorder rather than a physical cause that other healthcare professionals believed still called for medial treatment. In or about June 2012, these Bader 5 healthcare providers threatened the Mother and Father with the loss of parental rights if they did not abandon their treatment in favor of inpatient psychiatric treatment. The hasty diagnosis and threats by the Bader 5 healthcare providers prevented the Mother, Father and Daughter from seeking an additional medical opinion at the time.
The Complaint continues on to say that by labeling parents as engaging in medical child abuse, or doctor shopping, the Bader 5 healthcare providers “have enlisted DCF to prevent further medical opinions that can challenge the viewpoints of Bader 5′s providers.”
The Daughter’s condition deteriorated significantly, the Complaint asserts. At times, the young girl was “forcefully restrained by staff at Bader 5, blocked from the outside world, and deprived of time outside for a substantial time period.”
While Justina Pelletier is not the Plaintiff in this lawsuit, her case is described in the Complaint as being illustrative of the nature of the problem:
DCF’s actions against the Mother and Father are part of its pattern of unconstitutional activity against parents. For example, in a recent high-profile case, also at the behest of Bader 5 providers, DCF stripped Connecticut parents of custody over their young daughter, placing the girl into Bader 5 inpatient treatment inconsistent with the medical opinions of the girl’s regular treating physician at Tuft’s Medial Center. In that case, Bader 5 providers made an almost immediate diagnosis of somatoform disorder contrary to a long-term diagnosis of mitochondrial disorder. Essentially DCF blindly followed Bader 5′s recommendations when initiating proceedings against the Connecticut parents. In other cases, Bader 5 and DCF have taken actions that collectively resulted in inpatient commitment at Bader 5 when healthcare providers elsewhere had reached opinions that the children at issue suffered conditions potentially of likely stemming from physical causes.
Any hospital can make a mistake. While it is not the subject of this lawsuit, prior to the girl’s admission into Children’s Hospital, Massachusetts General Hospital made rather a big one by administering 100 times the proper dosage of a particular medication, while also dosing the young girl up with Ativan, to which she had a delayed allergic reaction. Incredibly, while at MGH, some providers suggested shock therapy as a potential cure for her subsequent deterioration after the overdose and allergic reaction, however they failed to reach a consensus around that modality of treatment after the parents expressed reservations about it.
At least the parents had some measure of influence over their child’s treatment while at MGH. At Boston Children’s Hospital, they had none whatsoever.
In June 2012, the parents attended a meeting with the expectation of discussing a discharge plan for their Daughter. At this meeting, according to the Complaint, “one of the hospital providers informed the Mother and Father that the hospital had obtained a court order to place their Daughter in Bader 5 for purely inpatient psychiatric treatment. The hospital providers threatened to use DCF to remove custody longer term from the Mother and Father if they did not consent to the inpatient treatment at Bader 5.”
The Complaint notes that the meeting was conducted in a manner that was intimidating to the parents. Significantly, there were “three guards stationed in the hallway outside the meeting.”
This is not the first mention of guards being stationed in the hallways of the hospital while children were placed in Bader 5. Indeed, attorney Beth Maloney has spoken of her encounters with guards stationed in the hallways, and of one occasion during which a guard escorted her in an elevator. So, too, did the Pelletier family speak of guards seemingly coming out of nowhere when their Daughter Justina was “intercepted” (for lack of a better term) by Bader 5 staffers.
On December 21, 2013, Barry Pollack wrote a letter to Cheryl Bartlett, Commissioner of the Massachusetts Department of Public Health, demanding an investigation into Bader 5. In that letter, Pollack mentioned several key players by name, leaving many to wonder – myself included – what their precise role in these matters may be.
Specifically, his letter explained: “As reported in the growing number of cases in which allegations are becoming public, Bader 5 healthcare providers, including Gary Gosselin and Colleen Ryan, along with an in-house counsel named Ellen Rothstein, appear to favor hasty accusations of medical child abuse or the like against parents who challenge them.”
Gosselin’s hands-on role in the case on hand, according to the Complaint, was that against the backdrop of the Mother and Father potentially losing custody of their Daughter,
in a discussion with the Father, Dr. Gary Gosselin of Bader 5 stated in substance and in part that Bader 5 providers as a group had decided that the Daughter needed to be in Bader 5 and, if the Mother or Father did not sign a form admitting the Daughter into the unit, the group would continue with further steps.
The Father correctly understood at the time that Dr. Gosselin was threatening the Mother’s and Father’s custody rights over their daughter.
The Complaint details how the young girl deteriorated over the course of her stay, without the benefit of occupational, speech or physical therapy. She was allegedly locked away in a padded room for extended periods of time, and at one point a relative observed “an excessively large group of hospital staff forcibly restrain the Daughter with undue force, leaving substantial bruises on her face.”
The Complaint continues on to assert that: “In numerous cases involving diagnoses of PANDAS, mitochondrial disorder, Lyme disease and other matters, Bader 5 providers have used DCF to impose the Bader 5 providers’ treatment plan on the patient instead of allowing parents to weigh opinions and choose among various qualified healthcare providers.”
This is not a chapter adapted from Solzhenitsyn’s The Gulag Archipelago, although it may bear some similarities. Rather, this is another brief look behind the scenes at an ivy-league-affiliated medical institution with a sterling reputation based right here in the United States.
The lawsuit does not seek a financial reward. Rather the parents seek declaratory relief in the form of the Court declaring that the policies and procedures of DCF and Boston Children’s Hospital’s Bader 5 staffers are unconstitutional, and are otherwise illegal. The Plaintiff seeks only reasonable attorney fees under 42 USC Section 1988, and any other remedy that the Court would deem just and proper.
1. This should come as no surprise, as the Shire Rare Disease Impact Report found that it takes, on average, more than seven years for a patient with a rare disease in the United States to receive a proper diagnosis. Along the way, a patient typically visits up to eight physicians, and in some cases more than that. See Shire plc, “Rare Disease Impact Report: Insights from Patients and the Medical Community,” April 9, 2013. See also Lauren Limb, Stephan Nutt, and Alan Sen, “Experiences of Rare Diseases: An Insight from Patients and Families,” (Rare Disease UK, December 2010).