In 2006, members of Westboro Baptist Church picketed the funeral of Albert Snyder’s son — a marine who was killed in Iraq — bearing signs that read “God hates you” and “Thank God for dead soldiers.”  Snyder sued Westboro and initially won a $10 million jury verdict against the church.  But when the United State Supreme Court overturned that verdict on First Amendment grounds, Westboro added insult to injury by seeking to force Mr. Snyder — the victim of the church’s outrageous behavior — to pay Westboro $100,000.  Because Westboro had prevailed in the litigation, it was entitled to have Snyder pay many of its court costs.

I was reminded of Westboro Baptist Church when reading about the legal tactics employed by attorneys for the University of Minnesota and Duke University in a pair of recent lawsuits.
In the Minnesota case, the plaintiff was Mary Weiss, the mother of Dan Markingson, a patient who committed suicide while enrolled in a clinical trial of antipsychotic drugs.  As University of Minnesota bioethicist Carl Elliott has described, Markingson – who had been deemed incompetent to make decisions regarding his own treatment – was effectively given a choice between being involuntarily committed or enrolling in the clinical trial:

…Dan was transferred to Fairview University Medical Center, a teaching hospital for the University of Minnesota Academic Health Center. He was treated by Dr. Stephen C. Olson, an associate professor in the university’s psychiatry department, who prescribed Dan Risperdal (risperidone), an antipsychotic drug often prescribed for patients with schizophrenia or bipolar disorder. (In Minnesota, doctors are allowed to give antipsychotic drugs to mentally incompetent patients without their consent for up to 14 days, but only to prevent serious, immediate physical harm to the patient or others.) Olson believed Dan was psychotic and dangerous, and lacked the ability to make decisions regarding his treatment; on November 14 he signed a document that recommended Dan be committed involuntarily to a state mental institution, noting that he “lacks the capacity to make decisions regarding such treatment.” Three days later, a clinical psychologist also recommended involuntary commitment, reiterating that Dan had threatened to slit his mother’s throat.

In Minnesota, patients who have been involuntarily committed are given another option: a “stay of commitment.” Patients can avoid being confined to a mental institution as long as they agree to comply with the treatment program laid out by their psychiatrist. On November 20, Olson asked for a stay of commitment. The court granted the stay for six months, stipulating that Dan had to follow the recommendations of his treatment team. Olson, however, did not simply recommend standard medical treatment. Instead, he proposed that Dan take part in an industry-funded study of antipsychotic drugs. The university’s study coordinator, Jean Kenney, had Dan sign a consent form when Mary wasn’t present, and on November 21, he was enrolled in the study.

Over the ensuing months, Ms. Weiss was alarmed by what she viewed as her son’s deteriorating mental condition.  She made several efforts to have her son removed from the trial, but was rebuffed by University of Minnesota physicians involved in the study.  In her final plea, Weiss left a voicemail for the study’s coordinator asking, “Do we have to wait until he kills himself or someone else before anyone does anything?”  Shortly thereafter, Markingson stabbed himself to death with a box cutter.

Mary Faith Marshall, a bioethicist at the University of Minnesota, has argued that “when a research subject dies in one of your studies, the public and the private message should be, We are really sorry about this and we are going to do whatever we can do to make sure this never happens again.”  The University chose a different course, instead focusing its efforts on disclaiming responsibility and avoiding liability for Dan’s death.  When Weiss sued the University and others involved with the clinical trial, the University argued that it was statutorily immune from her claims.  A state court judge agreed, dismissing Weiss’ claims against the University on the basis of immunity from suit.

Then the University of Minnesota had its Westboro moment.  It sought to force Ms. Weiss – the mother of the man who killed himself while enrolled in the University’s study – to pay the University $57,000 in court costs.

At Duke, in 2004 doctors and nurses at Duke University hospitals complained for more than a month that the surgical instruments they were using felt greasy.  Duke doctors operated on several thousand patients during this period, only to later learn that the instruments had been “washed” with hydraulic fluid from the hospitals’ elevators.  Last year the Durham News reported that:

. . . even though some patients were eventually ruled out as having been operated on with the tainted surgical tools, the court filings state, the university did not notify them they were clear until earlier this year – five years after the situation came to light.

In the intervening years, some patients sued.  Ronald Buchanan’s lawsuit was dismissed earlier this year when Duke provided evidence he wasn’t exposed, and now Duke is suing him to recover legal expenses.

Buchanan is fighting that battle on grounds that Duke led him to believe he had been exposed to the fluid for five years and “now seeks to punish him further by taxing him with the defense costs in this litigation,” according to the documents.

(See also: http://abclocal.go.com/wtvd/story?section=news/local&id=7803522)

Although prevailing parties often are entitled to have opposing parties pay many of their litigation costs, the fact that a litigation tactic is legal, or even routine, does not make it ethical – as Westboro Baptist Church amply demonstrated.  In these cases, the universities’ legal tactics create the appearance that they are using the bill of costs as a strategy to silence former patients.  Minnesota’s General Counsel, Mark Rotenberg, has helpfully explained that “[s]ubsequently, when the parties determined that there would be no further court proceedings, the University voluntarily withdrew its claim to recover its costs before any award was made by the court.”  Translation: the University used its bill of costs as a threat to force Mary Weiss to forgo an appeal of the trial court’s decision.  In the Duke case, seeking costs against a former patient – who was allegedly led to believe he had been operated on with contaminated instruments – sends a clear message to others who believe they may have been harmed by the University’s hospitals: pursuing legal remedies against the University will cost you dearly.

Of course, universities can’t simply roll over and pay every claim filed by patients.  When a former patient’s claims are frivolous, it may be appropriate for a university to seek to recover its court costs.  But when patients and research participants raise serious and legitimate concerns about the hospitals and research centers in whom they have entrusted their medical care, it’s wrong to use the same bare-knuckled tactics that are common in corporate litigation.  This is doubly true in the context of universities, whose obligations are not to shareholders but to their communities and to society at large.  When faced with serious claims of harm, university health centers’ top priority should be to ensure the protection of patients and research participants – not to minimize the universities’ litigation risks by silencing their accusers.

Matt Lamkin
Twitter: @lawbioethics