Psychologists face liability for solitary confinement of teen offenders

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August 8, 2013

Psychologists face liability for solitary confinement of teen offenders 

Steven M. Sellers

Two minors who were subjected to months of solitary confinement in New Jersey juvenile detention centers may pursue negligence claims against their psychologists, a federal judge has ruled. The judge held that a New Jersey tort “reform” law requiring an affidavit of merit as a precondition for a professional negligence claim did not apply to psychologists.

A federal judge ruled that two minors who were subjected to months of solitary confinement and surveillance in New Jersey juvenile detention centers may pursue negligence claims against their psychologists. Denying a motion to dismiss the claims, the judge ruled that a New Jersey tort “reform” law requiring an affidavit of merit as a precondition for a professional negligence claim did not apply to psychologists. (Troy D. and O’Neill S. v. Mickens, No. 1:10-cv-02902 (D.N.J. June 20, 2013).)

Troy and O’Neill, who were 15 and 16, were arrested for crimes and adjudicated as delinquents by a New Jersey judge. In 2009, they were committed to the custody of the state’s Juvenile Justice Commission (JJC) and confined in state juvenile detention facilities. Troy was confined for 225 days, and he was held in isolation for at least 178 of them. O’Neill was confined in isolation for about 50 days. According to their complaints, the plaintiffs were held in a seven-foot-by-seven-foot room with a concrete bed slab, toilet, sink, and mattress. They were allegedly deprived of educational materials, mental health treatment, medical treatment, and interaction with their peers.

Claiming violations of the New Jersey constitution, the state civil rights act, and common law negligence, the plaintiffs filed a federal §1983 action against the JJC, the state corrections department, and health care professionals, including six psychologists involved in the detention. The psychologists moved to dismiss the negligence claims under a state law that requires “in any action for damages for personal injuries, wrongful death, or property damage resulting from an alleged act of malpractice or negligence” that the plaintiff submit “an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill, or knowledge exercised or exhibited” by the defendant fell outside professional standards. The plaintiffs filed an affidavit of merit for a defendant physician, but none for any of the psychologists.

Judge Joseph Arenas, describing the conditions in which the boys were held and parsing the list of occupations governed by the New Jersey affidavit of merit statute, denied the defendants’ motion to dismiss. He cited state court interpretations of the law in acknowledging that the law’s purpose “is to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be indentified at an early stage of litigation.”  The fatal flaw in the motion, he held, was that psychologists are not among the 15 professional occupations listed in the statute. Arenas added that New Jersey courts had interpreted the law as “exclusive to those licensed professionals listed in the statute.”

The Juvenile Law Center, based in Philadelphia, represented the plaintiffs as cocounsel. Staff attorney Jessica Feierman said she was pleased that Arenas permitted the negligence claims to proceed. “The juvenile justice system is designed to help vulnerable youth develop the skills they need to succeed,” said Feierman. “We allege that, instead, both boys were held in isolation in bare concrete cells with nothing to fill their days—no education, reading materials, paper, pens, activities, or therapy. The case is about holding both the juvenile justice and mental health providers responsible for this abysmal treatment, and striking down as unconstitutional all regulations that permitted it.” 

Two Philadelphia attorneys who represented plaintiffs in the “kids for cash” litigation, in which two Pennsylvania judges received kickbacks for diverting juvenile offenders to for-profit detention centers, said the decision is important both procedurally and substantively.

David Senoff said the ruling “will surely have large ripple effects on claims against psychologists, particularly those rendering care in a detention setting. Now, those providers will be subject to negligence claims without the need for a plaintiff to go out and expend the unnecessary cost of having an expert review the case at an early stage. This is particularly true here, where if the facts are to be believed, it is one of the most horrific cases of juvenile detention and psychological neglect I have ever encountered.”

Adrianne Walvoord-Webb called the ruling a “unique combination of the application of a procedural rule of law while introducing an unconscionable set of facts regarding children in detention.” She noted that Arenas did not have to reach the substantive allegations to decide the affidavit of merit issue, and she credited the court for describing “the horrific conditions of the seven-by-seven cells the kids were forced to endure for months on end.”

Walvoord-Webb added that the opinion brings attention to a greater problem—the growing number of young people being held in solitary confinement.  “For a system that lauds rehabilitation and long-term behavioral changes, lengthy solitary confinement should not have a place in juvenile detention without strict regulation and transparency through public scrutiny,” she said.


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