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Shin Family Lawyer Subpoenas Students

By Keith J. Winstein

STAFF REPORTER

At least three current or former MIT students, including former section editors of The Tech, have been subpoenaed to be deposed in the lawsuit against MIT filed by the parents of Elizabeth H. Shin ’02.

David A. DeLuca, who represents the Shin family, has subpoenaed at least three MIT students to testify under oath. Deluca confirmed that he had subpoenaed James Paris ’03, a Random Hall resident named in the complaint as having alerted MIT authorities of Shin’s suicidal nature on several occasions.

DeLuca also confirmed the issuance of subpoenas to former section editors of The Tech. However, he declined to name those who were subpoenaed.

DeLuca explained the latter subpoenas by saying that he hoped to benefit from the information the editors had collected after researching Shin’s death.

“I am looking for as much information as I can get. I understand the suicide has been of great concern to The Tech,” DeLuca said.

While questioning journalists under oath regarding unpublished information obtained in the course of reporting could have possible First Amendment implications, DeLuca said that the students would be able to decline to answer questions about information they believe to be privileged.

State limits tort claims to $20,000

The Shins’ case initially appears similar to a 1993 Rhode Island lawsuit, Klein v. Solomon. In that case, Susan Klein, the mother of a Brown University student, sued her son’s school-recommended psychologist for negligent treatment following his suicide.

Under the doctrine of “respondeat superior,” which means “let the master answer” for the malfeasance of its employees, Klein also sought to hold Brown responsible. Although the Rhode Island Supreme Court found this argument to be valid, the jury in this case did not find any fault on the part of either Brown University or the psychologist.

Unlike the Klein case, the Shins are not suing MIT for medical malpractice. They are, however, claiming malpractice against five MIT doctors individually. This is because of a 1971 Massachusetts law which limits “tort claims” against educational and charitable institutions to $20,000, DeLuca said. The term “tort” refers to a civil injury, such as medical malpractice, for which a person harmed can seek damages in court.

Instead of suing MIT directly for the alleged malpractice of its employees, the Shins are asserting four non-tort causes of action against MIT. Three of these causes of action allege that MIT violated expressed or implied contracts with the Shins to provide “appropriate medical diagnoses and treatment,” to “act in loco parentis,” and “to provide necessary and reasonable educational, medical, security, and emergency services” to their daughter.

The fourth count alleges that MIT, as “an institution engaged in trade or commerce,” was guilty of “an unfair and deceptive business practice” in failing to “provide adequate and coordinated mental health care” as well as “to maintain the fire suppression system in Random Hall ... [and] by allowing the use of candles and other incendiary devices in Random Hall.”

“I understand that the complaint is rather broad, and it has to be,” DeLuca said. “It’s our obligation to bring all claims that are arguable.”

Experts questions Shins’ claims

DeLuca said the $20,000 limit on tort claims is “what necessitates the bringing of those claims in [breach of contract] form.”

DeLuca argued that MIT promised to provide “the very best educational opportunity” including medical services, and that since “she didn’t get that ... she lost the benefit of the bargain.”

However, several legal experts were skeptical of this attempt to describe MIT’s alleged wrongdoing as a breach of contract and consumer fraud.

A source close to MIT said it is not uncommon for Massachusetts plaintiffs to try to turn negligence claims into contract claims in order to circumvent the $20,000 limit.

Jerry Meek, a Dallas, Texas attorney whose firm specializes in representing plaintiffs in medical malpractices involving suicides, described the lawsuit as a “very difficult case” for the Shins to win.

Meek said, “Generally speaking, whenever anyone has tried to use a claim like this [as a contract claim] the court has called it what it was.”

Suit partially based on fraud law

The Shins’ “unfair and deceptive business practice” claims are asserted under the Massachusetts consumer fraud statute known as Section 93A.

The precedent set by the 1993 Massachusetts case, Hyppolite v. City of Boston, appears to make it difficult for the Shins to maintain their claims. In that case, a plaintiff attempted to assert a medical malpractice claim under the same law against the Boston City Hospital.

The court found that the hospital was not interacting with its patients in a “business context,” and that the City of Boston was thus not engaged in “trade or commerce.”

An attorney unrelated to the case who specializes in healthcare liability said that even if the Shins are able to convince a judge that their claims against MIT are properly contract-related and thus not restrained by the $20,000 limit, they will not be able to get their claimed $27.7 million in actual damages from MIT.

Remedies in breach-of-contract cases are generally limited to the actual value of the contract, which in this case would be Shin’s tuition, the attorney said, speaking on condition of anonymity.

In each of the claims made against MIT, MIT’s doctors, Elizabeth Shin’s former housemaster, MIT administrators and campus police officers, it will be the jury’s responsibility to hear the facts of the case and then decide the amount of monetary damages to award, said a source close to MIT.

Malpractice claims seem valid

Experts generally agreed that the Shins’ malpractice claims against MIT’s doctors sound considerably stronger than their claims against MIT.

Meek criticized MIT Staff Psychiatrist Anthony Van Neil’s alleged behavior. The complaint alleges that Van Neil “decided that he had no need to meet or evaluate Ms. Shin in person,” after speaking to Shin over the telephone two days before her suicide.

According to Meek, a psychiatrist “would have to meet with the person,” because “it’s incredibly difficult to do an assessment of the patient over the telephone.” Meek said a claim of malpractice, however, would depend on Van Neil’s diagnosis of Shin, something not found in the complaint.

Hearing that Shin had been recommended to a program of “Dialectic Behavior Therapy,” Meek said that treatment is “really only used for [a diagnosis of] borderline personality disorder.”

Patients with this disorder, Meek said, “very often engage in low-risk suicide attempts in an effort to gain attention.”

Shin asked MIT not to tell parents

The Shins assert that MIT never informed them of Elizabeth’s declining mental health because of an over-reliance on confidentiality.

According to DeLuca, the Shins were never advised that they could ask Elizabeth to sign a confidentiality waiver that would have allowed them to become more involved in their daughter’s medical treatment.

As to the whether this was legally relevant, Meek said, “I don’t think there’s any duty at all for the mental health providers to inform the parents that the plaintiff can sign a release.”

MIT has countered that Elizabeth specifically demanded that doctors not involve her parents.

“The difficulty in this case is that [Elizabeth] clearly didn’t want her parents involved -- that was one of her specific concerns,” Robert M. Randolph, the senior associate dean for students, told The Boston Globe six weeks after the suicide.

“The question we have been reviewing is whether we should specifically counter the wishes of individuals,” Randolph added.

Randolph recently confirmed that Elizabeth’s reluctance to involve her parents in her treatment was “clearly known to a lot of people.”

“I think we’re confident that the situation as it was was handled well,” Randolph said. “The tragedy was that the outcome was unacceptable.”

Medical records quoted in Globe

It is unclear how Shin’s medical records from McLean Hospital and MIT Mental Health Services were obtained by The Boston Globe.

In a Jan. 25, 2001 story by Patrick Healy, published three days before the Shins’ lawsuit was filed, the Globe cited McLean “hospital records” which indicated that Shin had spent a week at the psychiatric and mental health hospital after having “failed physics the previous fall.”

This article also appears to be the first published disclosure that Shin had had mental health issues prior to attending MIT, saying she had “told doctors” that “she had cut her wrists superficially after earning an incomplete grade” in high school.

The story attributes to “one MIT mental health record” that Shin threatened to commit suicide in the spring of 1999 “following a breakup with a boyfriend.” The article also directly quotes “an MIT Mental Health Services memo on March 21, 2000.”

DeLuca said that he is in possession of these records, but he insisted that he did not reveal their contents to the Globe. He says he did send them to MIT’s attorney in the case, Jeffrey Swope of the law firm Palmer & Dodge “in the interests of full disclosure.”

Swope said, “We are not making general substantive comments since the matter is in litigation.”

Healy, the author of the Globe article, said that “McLean asked as well” how he obtained the records.

DeLuca said that Shin’s reported mental health issues in high school were not relevant to the case. “It’s really beside the point. I’m sure that a lot of students come to MIT with bumps and bruises, and it’s the responsibility of the service to respond to the whole person, regardless,” DeLuca said.

DeLuca said the Shins believed a civil case was an appropriate forum for their complaints, since an attempt to involve the District Attorney or a malpractice complaint before the state medical board “would be overreaching at this point.”

MIT has three weeks from the complaint’s filing date on Jan. 28 to file a paragraph-by-paragraph answer, which will likely consist only of “admit” or “deny” for most paragraphs, according to sources close to the Institute.

If the parties do not reach a settlement, the case may not go to trial until early 2005 or later, according to DeLuca, citing standing rules of the Massachusetts Trial Courts which put medical malpractice lawsuits on a three-year schedule.

Qian Wang contributed to the reporting of this story.