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A Philadelphia trial judge properly tossed a psychiatrist’s report out of a medical malpractice case because his methodologies weren’t only extrapolations but “a biased guess,” the Pennsylvania Superior Court ruled last week. In an unpublished opinion, a three-judge panel of the court affirmed Common Pleas Judge Jacqueline F. Allen’s decision to preclude the testimony of Peter R. Breggin, a psychiatrist who opined about the possible permanent effects of taking benzodiazepines. Benzodiazepines are a class of drugs including Valium, Xanax and Ativan that are used as anti-anxiety agents and sedatives. After a Frye hearing, Allen concluded last year that Breggin’s methodologies appeared to be “nothing more than a few anecdotal references and a cursory review of several studies tangentially related to” the alleged medical basis of Vinitski v. Adler. Without Breggin, plaintiffs Simon and Miriam Vinitski lacked an expert to support their case, and Allen granted the defendants’ motion for summary judgment. Estimating the long-term effects of taking benzodiazepines, Breggin had extrapolated from studies of the short-term effects of the drug use, saying the combination of Valium with other like medications increases their toxicity and caused the plaintiff’s permanent brain damage, according to the opinion. Breggin, of Ithaca, N.Y., is the author of “Your Drug May Be Your Problem: How and Why to Stop Taking Psychiatric Medications.” He’s presented his findings and conclusions about the safety of psychiatric medications, shock therapy and other therapies at myriad conferences and universities. He’s also written “Toxic Psychiatry: Why Therapy, Empathy and Love Must Replace the Drug” and “Talking Back to Prozac: What Doctors Won’t Tell You About Today’s Most Controversial Drug.” Kevin H. Wright, counsel for one of the defendants in Vinitski, said Breggin’s expert report was “the exact type of opinion that the Frye rule was created to prevent.” Wright of Kevin H. Wright & Associates represented psychiatrist Herbert Adler. The U.S. Supreme Court in Frye v. United States ruled that novel scientific evidence is admissible in court only upon a showing that the methodology has gained general acceptance in the relevant medical community. The Frye standard permits experts to extrapolate only when the medical inquiry is new or the opportunities to examine a cause-and-effect relationship have been limited. The plaintiffs, represented by Gerald B. Baldino Jr. and Francis J. Curran Jr. of Curran & Rassias, argued on appeal that Breggin’s extrapolations were permitted under a 2003 Superior Court opinion, Trach v. Fellin. Trach involved a pharmacy that mistakenly filled the plaintiff’s antibiotic prescription with the antidepressant Doxepin, which the plaintiff took in what ended up being a massive overdose. He developed open-angle glaucoma. The plaintiff wanted to present the testimony of an expert who would testify at trial that the glaucoma was caused by the overdose. No studies had shown that Doxepin could cause open-angle glaucoma, but the Physician’s Desk Reference manual noted that, “even in recommended doses,” the drug could cause closed-angle glaucoma, according to the opinion. The Trach court ruled that extrapolation on this basis was permissible. But the Vinitski panel called Baldino and Curran’s appeal “a far cry from Trach.” “Here, Dr. Breggin wishes to start at the principle that Valium causes short-term and acute dementia and arrive, somehow, at the conclusion that long-term Valium use causes permanent frontal lobe brain damage,” the court wrote. “Yet, this is not logical; one cannot just view the temporary effects a drug has on the brain and then leap to the conclusion that these temporary effects become permanent and, indeed much worse, with repeated exposures. This is not extrapolation, it is merely a biased guess.” The panel also affirmed Allen’s decision to strike a different expert medical report and an additional three reports that were submitted late. The panel said that even if the report of Charles Nemeroff were admitted, it wouldn’t have pushed the plaintiffs over the summary judgment hurdle because Nemeroff “could not determine whether the drugs [the defendants] prescribed caused or contributed to Mr. Vinitski’s cognitive decline.” And the Superior Court agreed with Allen’s conclusion that Robert Perkel, a family doctor and the other defendant in the case, would have been prejudiced were the court to admit a late report that attacked his standard of care. Prejudice was “expressly found” by Allen, and it seemed there would have been no ability to cure the prejudice without delaying the trial date for a fourth time, the court noted. The disadvantage to another postponement is that “such a remedy would only backlog our court even more,” the court wrote, citing a 2004 Superior Court decision, Kurian v. Anisman. Perkel’s attorney, Deborah M. Knight of Goldfein & Joseph, said, the ruling “really shows that trial courts have to control their calendars.” Vinitski is a former medical physicist at the Jefferson Medical College. He and his wife sued Adler and Perkel for malpractice in 2001, alleging that the combination of medication — Xanax, Prozac, Valium, Tofranil and Depakote — the doctors prescribed and Vinitski used intermittently over 10 years to treat anxiety and depression caused brain atrophy and irreversible brain damage, according to court documents. Vinitski’s lawyers, Baldino and Curran, did not return calls for comment. Judges Susan Peikes Gantman, Jack A. Panella and Senior Judge Olszewski constituted the panel, which issued the unpublished ruling April 22.

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