3 JAN SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA BARBARA. lo ) CaseNo.:

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1 FILED 'mmo. co..t_c_o.m 3 JAN e SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA BARBARA lo ) CaeNo.: ATZE AKKERMAN and ELIZABETH ) 11 ) STATEMENT OF DECISION ON Plaintiff, ) SUBMITTED ISSUES 12 VS. ) 13 ) JOSEPH JOHNSON, SANTA BARBARA ) COTTAGE HOSPITAL, et. al. ) I Defendant / ) 1, / 17.) i A twenty-five day jury trial in the above-entitled action concluded with a pecial verdict 19 that contained finding that both defendant Joeph Johnon, M.D., and Santa Barbara Cottage 20 Hopital hid been negligent, repectively, in obtaining informed conent and performing the 21 informed conent review of plaintiff, Atze Akkerman, before he underwent eleetxo-eonvulive 22 therapy (BCT), but that neither defendant' negligence wa a ubtantial factor in cauing 23 A court trial wa then conducted on plaintiff' remaining claim for violation 24 ffcalifomia Buine and Profeion Code Section and The matter wa 2 ubmitted and then re-ubmitted at the trial court' requet following Judge de Bellefeuille' 2_ lengthy illne in the fall of The court now render it deciion a follow. /// SCatement of Deciion - 1

2 1 The Court fmcl in favor of plaintiff on both remaining claim. An injunction hall iue 2 forthwith prohibiting the furtherconduct of ECT at Santa Barbara Cottage Hopital until the 3 defendant ubmit proof of correction in it protocol for the informed conent proce and 4 informed conent review conitent with the Court' deciion herein. Plaintiff' requet for 5 retitution i denied, for failure to how that plaintiff uffered any out of pocket lo a a reult 6 of defendant' wrongdoing, and failure to etablih that any other ECT patient treated during the 7 ame time period ufered an out of pocket lo. Damage are not available for uch claim Plaintiff hall recover their cot a prevailing partie. FACTS 11 Begimaing in 1999, plaintiff Atze Akkerman underwent a erie of electro-convulive 12 treatment for evere depreion at Santa Barbara Cottage Hopital under the uperviion of hi 13 treating phyician, Dr. Joeph Johnon. The evidence revealed that at the time of Mr. Akkerman' treatment, both Dr. Johnon end Cottage Hopital were utilizing an out-dated and i incomplete informed conent form not authorized under the governing proviion of Welfare and i ection 53.2 through Though the California State Depa_iient of 17 promulgated and dieminated a new informed conent form in 1998, and ent it i to the hopital, Darey Keep, the hopital employee in charge of tracking uch information, 19 tetified that the hopital never received it. It wa not perhap until a late a May 2004, long 20 Akkermen filed thi uit, that the hopital began to ue the 1998 form, and only a a 21 of thi uit. The hopital wa not diligent in puruing updated information from the 22 Department of Mental Health and, to thi day, doe not have in place any meaningful and 23 trutworthy procedure for doing o. 24 The form ued by Dr. Johnon did not contain within it the fact (included in the r a that he hould have ued) that ECT could caue irreverible, permanent memory lo, or that unilateral hock caue le memory lo than the bilateral hock plaintiffwould receive, or that there i a diviion of opinion a to the efficacy of ECT or how it work. Statement of Deciion - 2

3 1 The Welfare and Intitution Code alo require that a patient contemplating ECT mut 2 undergo an informed conent review proce with a board certified or board eligible pychiatrit 3 or neurologit before receiving ECT. The uncontroverted evidence at trial revealed that the 4 hopital' deignated doctor for thi proce wa neither board eligible or certified during hi entire tenure at the hopital. Dr. Carlo Sluzki admitted in hi tetimony that he had conducted hundred of thee informed conent review, igning a document under penalty ofperjury on 7 each and every occaion that he wa certified or eligible, which i fale. Dr. Shizki purported to conduct the informed conent review for Mr. Akkerman prior to hi firt ECT treatment, but had 9 no independent recollection of the event. lo n Indeed, there wa coniderable confuion and uncertainty about how and when Mr. 12 Akke_i_an received the informed conent review flour Dr. Sluzki prior to th adminitration of 13 the therapy. Itmay have happened when Mr. Akkerman wa being wheeled into the operating theatre. It may have happened after the treatment wa adminitered. It may not have happened 1 at all. One thing alone i clear: the chao and diorganization urrounding thi procedure doe no 16 meet the minimal tandard contemplated by the Welfare and Intitution Code to protect the 17 right of r, ental health patient who mut decide whether to have ECT. i The hopital argue that it cannot be held reponible for it failure to provide the fight 19 conent form, for the language of the tatute peak of the treating phyician' duty to do o. 20 Thi argument i diingenuou, for the phyician and the hopital act in concert to provide the 21 ervice to &e patient. The hopital provide the forum and equipment. It own policy manual 22 include intruction on tocking conent form and providing them to the doctor with privilege 2_ It the hopital. Here the hopital undertook a duty and cannot pa the buck California' unfair competition law i a broad tatute that prohibit any unlawful, unfair, or fraudulent buine act or practice and unfair, deceptive, untrue or mileading advertiing. The court of California have narrowly contrued advertiing to include one-on-one repreentation. Statement of Deciion - 3

4 1 The Court find thatthe written repreentation in the informed conent review form igned 2 by Dr. Sln_ki contitute an advertiement within the meaning orb & P Code Section The Court further find that the defendant Cottage Hopital knew the repreentation of Dr. 4 Sluzki wern fale, and yet allowed him to engage in the deception at hand. The Court doe not agree with the Hopital that thi wa "merely a technicality", a Dr. Shizki i an accomplihed 6 phyician who happened to receive hi medical training abroad in Argentina, a country that doe 7 not hare reciprocity of benefit with American doctor. The fact remain that under California a law, Dr. Sluzki wa not qualified to det_l,fine Mr. Akkerman' capacity to intelligently and 9 comprehenively conent to ECT. It i not up to Cottage Hopital to determine that the law doe 10 not apply to it employee. 11 The Court alo find that Dr. Johnon' ue of an incomplete and erroneou conent form _2 likewie foil within the purview of 17200' weeping conumer protection. Hi failure to i _6 follow the dictate of the Welfare and Intitution Code contituted an unfair buine practice. It i not neceary for plaintiffto prove that he wa harmed by the practice. To how that he w_ deceived i ufficient for an advere finding. _7 The defendant alo dipute one of plaintiff' major contention- that ECT i a dangerou _a modality that merit the cloe crutiny of the law. Defene witnee decribed it a "afe and 1 effective". Dr. Erickon, Dr. Sluzki' ucceor at the Hopital, denied knowing that there wa 20 any coni4erable controvery in the medical community about ECT' value in t_eating mental 2_ Yet Dr. Johnon himelf admitted in hi tetimony that no one undertand how ECT 22 vork to oombat mental illne. It remain a mytery to the medical profeion. 23 ECT ha been utilized for many year, and ome thing are undertood about it- the 24 which are enumerated in the Welfare and Intitution Code. Section 2 i3.2 rramdate that the information required for a true informed conent hall include, in a 29 clear and explicit manner, a dicuion with the patient of memory lo (including it irreveribility) and that there exit a diviion of opinion a to the efficacy of the propoed Statement of Deciion - 4

5 1 treatment, why and how it work and it commonly known rik and ide effect. The 2 Akkerman did not receive thi vital information from either Dr. Johnon or Dr. Sluzki x2 13 i In the econd phae of the trial the plaintiff introduced a urvey conducted under the aupice ofm_re v. Cali_forniaState Board of Account_cg (1992) 2 Cal 4th999, which the corot admitted over defeme objectiom The urvey' purpoe wa to determine what it i that people undcr_nd about the information provided by way of written conent form (informed conent) a well a verbal information given by the phyician in conjunction with the written information he or he provide relative to propoed pychlatric health treatment. The reult were intr_tive and not urpriing. 49% of thoe polled wihed, fu_t and foremo._t, to be advied of the potential rik and poible ide effect of a treatment. 42% were concerned ainu the pecifia of the treatment and it effectivene. A whopping 78% aid they accept a accurate the repreentation of their pychiatrit concerning the effectivene of treatment option; 76 % accepted the doctor' repreentation of the afety of the procedure. 70% of the re_nden_ aid that their deciion to receive the treatment would be affected bythe econd opinion of the chief pychiatrit of the hopital regarding whether to have ECT. Thee reult undercore the high regard patient extend to doctor and the compelling need for full diclo_are of all known rik by the doctor to the patient, regardle oft he doctor'peronal opinion on the ubject. 20 The urvey went on to ak repondent to interpret key phrae taken flom the actual 2x conent f_m utilized by Dr. Johnon in hi initial informed conent proce with Mr. Akkerman. 22 In regard m the critical iue of memory lo the following tatement from the form wa 23 analyzed: 24 "Th/ treatment could have the following ide effect and rik: memory lo lating from an 25 hour or o after each treatment to potty loe lating for everal month or year following erie of treatment" a Statement of Deciion - 5

6 z 56% ofrepondent agreedtha thetatement definitely orverylikelyincludedthepoibility of 2 memory lou, but 62% believed it tobe temporaryrather than permanent. Only 22% read it a uggeting permanent memory lo. The conent form ued by Dr. Johnon wa decidedly 4 mileading inthicritical regard. 7 9 i0 ii _2 _3 The Courtfindfurther thathehopital hanotcuredthedefectinitytemufficient to avoidtheimpoition oftheinjunctive relief requeted by plaintiff. DarcyKeep tate inher declaration tha thehopital inow uingthecorrect conentform,andhainplacea ytemfor communicatingwiththcmentalhealthrightadvocateandthedepartmentofmentalhealthto make uretha thehopital iincompliancewiththelaw.curiouly, theconentformcurrently inuebythehopital wa notappendedtoherdeclaration. Further, theytemhedecribe i exactlytheameone thatfailedin1998.sheclaimtobe thegatekeeper ofinformation forthe hopital, butcannotexplainwhy,forthelatixyearheremployerhanotkeptabreat Of critical cb geinthemandateofthelaw governingtheueofect. z i Furthermore, the Court i not convinced that Dr. Erickon ha put in place an informed conent review procedure that thoroughly complie with the dictate of the Welfare and 17 Intitntiotm Code, pm-ticuiarly in light of hi lack of experience in adminitering ECT and hi i lack of knowledge of the law' requirement. He admitted in hi tetimony that he had never 19 roadthe Code until called upon to participate in thi cae a a witne. The Court lack 20 confidence in the hopital' ability to elf-police. There appear to be a lzong likelihood that th, 2z harmfulpractice attheheartofthiuitwillcontinueunlethecourtiuetheinjunction a 22 requeted. 23 TI-IRREFORE thecourtdeclare thatsantabarbaracottagehopitalviolated Buine 24 andprofemioncode Section17200and17500from1998toMay 2004.An injunction ian 2 appropriate remedy,fortheharm complainedofhanotceaedandthereia ignificant rikthal ithallcontinuewithouton-goingcourtuperviion andintervention. Statement'of Deciion - 6

7 I SantaBarbaraCottageHopitalienjoinedfromengaginginthediemination ofinaccurate, 2 unlawfuland/ordeceptive information toitmentalhealthpatient who areconidering ECT. 3 The hopital hall not permit an unauthorized peron to perform the required inform conent 4 review,andmutbc incompliancewithwelfareandintitution Code Section53.2and inproperlyverifying thatpatient havereceivedalloftheinformation underthelaw 6 contituting trueinformedconentpriortoreceiving ECT SantaBarbaraCottageHopitalhallimmediatelyceaeprovidingECT topatient, and advieitre'tending phyician thathehopital halotherightoperformuchtreatment. io Shouldthehopital wihtore-intitute thepractice ofprovidingect, itmutprovideto 11 thicourttilefollowing itmn: 12 I.A copyofthecurrentconentformpropoedforueby treating phyician who wihto i utilizethehopital toperformect. 2. A writtenplanforon-goingcommuincation withthedepartmentofmentaihealthand 16 thepatient' right' advocateofficeinregardtoon-goingchangeinthelaw A writmnprotocolon informedconentreviewforect tob utilized by theboardcertified i oreligible pychiatrit orneurologit who conductaidreview.thiprotocolmutincludethe 19 ameinfonmation rikfactor athemodelconentformandalocontaina checklit 2O regarding thefactor tobc includedinthedoctor' determination ofa patient' capacitytogive conent. 23. January 2, Judge of the Superior Court Statement of Deciion - 7

8 . i ii i, ii ul ii i i=l,u ii, I I - SUPERIOR COURT OF CA.JI=ORNIA, COUNTY OF SANTA BARBARA 1 STREET ADDRESS:1100 Anacepa Street eulqm}o_ ooum _fcauforn_ MAILINGADDRESS: GXTUNII_OI=SANTA,AI_A CITYANDZIPCODE: BRANCHNAME: Safari Santa Barbara-Anecapa Barbara, California Diviion JAN _;._ " U' Caption: Atze Akkerman v Joeph Johnon i ay _YiClJ CI.IRICS CERTIFICATE OF MNLING i, CASENUMBER: / I certify that I am not a party of thi action and that a true copy of the foregoing wa mailed firt cla, potage DE V prepaid in a Sealed erwelop! addreaead a hown, and that the mailing of the foiegoing and execu/don of thi celtificate octgurredat Santa Barbara, Ca6fomia, o,_ (date) 01/05/2005. P S Todd Thompon Patdcle K Ramay ; i CA... Horvitz & Levy Bauer, Herd, Clinkenbear_& Ramay VenturaBlvd18th FI 925 De La VineSt FIN Encino,CA 936 PO Box21007 Santa Barbara,CA J... MarkB Connely LaurenM Yamamoto ' pry... Bonne,Bridge,Mueller,O'Keefe& Nichol RebackMcAndrew& Kjar ATT 1035 Peach StSte RoecranAve Ste Sen LuiObipo,CA 9341_1-00 ManhattanBeach,CA 906 C_.--_ KendrickL Moxon ST.., Moxon& Kobrin 3055 WilhireBird Ste 90"l Lo Angele,CA ' V Gary M. Blair, Executive Office' By _ eputy,,, ii, Clark' Certificate of Mailing

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