Well, good morning, everyone. We will get started on time, reward all of you who woke up bright and early to be here. I'm very impressed with your energy and your enthusiasm about learning about the Committee on Judicial Actions work. My name is Reena Kapoor. I'm the chair of the Committee on Judicial Action. My day job is I'm associate professor of psychiatry at Yale University in Connecticut. And I'm joined today by two of our longest running CJA members. So that is Maya Prabhu, who is an associate professor at Yale as well, and Margarita Abizadeau, who's an assistant professor at UMass Medical School. So we're happy to be here with you this morning and talk a little bit about what CJA has done in the past year. So we don't have any relevant financial disclosures. And I thought I'd just start with a little bit of an introduction about what is CJA. I'm assuming if people came to an 8 AM presentation on the fourth day of a conference that you maybe have some idea what you're getting into. But just in case, the Committee on Judicial Action is a standing subcommittee of the APA's psychiatry Council on Psychiatry and the Law. And it has existed since 1974. APA was active in joining amicus briefs even before that, going back to the 1950s and 60s. But there wasn't really like a systemized way to review the cases, decide what APA was going to participate in until the committee became a standalone committee in 1974. And then along the way, it became a subcommittee of the Council on Psychiatry and Law. And the whole point of CJA, its charge, is to make recommendations to the APA Board of Trustees about which appellate cases that APA should participate in as amicus, or whether we should support a district branch in participating in a case. So there's two things. Like the APA itself participates, and then we also provide some financial support to the Connecticut Psychiatric Society or its equivalent in taking on state litigation as well. So how does CJA work in practice? Well, the APA is usually approached by attorneys, like one party or another in a case, sometimes by other potential groups who are considering being amici in a case, or by a district branch and said, could you consider participating in this case that we think is important to the practice of psychiatry? So then what happens is we'll have a discussion among the CJA members and our legal consultant, Aaron Panner, who's been with the group for, I guess, almost 15 years now. And these are the considerations, usually, is, is the case at an appellate level? Just as a resource consideration, the APA doesn't typically get involved in district court or trial court proceedings, though every once in a while we do. And then there's questions about, like, how have we handled similar issues in the past? Does the APA have a position statement regarding the issue in question? Like, CJA is not necessarily looking to make new APA policy. We're just looking to advocate on behalf of positions that the organization, generally speaking, has already taken. We look at what the other major medical and mental health organizations are doing. So a lot of times we partner with ACAP, with the AMA, sometimes with ACOG, the gynecologists, and then with the other APA, the Psychological Association. And then we look at what the implications of joining a particular case are. And by that, I mean, like, if we say that we are against, you know, conversion therapy in one legal case, then what happens? Like, does that set a precedent for, we're saying it's OK for the courts to regulate psychotherapy in a broader sense, you know? So we try to be very careful about looking at downstream implications as well. We'll review the draft of the proposed brief, ideally with a week or two's notice. But sometimes the lawyers, like everyone, do things at the last minute. And we have about 24 or 48 hours to review the actual draft of the brief. We make a recommendation to the Council on Psychiatry and Law, and then the actual recommendation goes to the Board of Trustees through the APA's General Council. And ultimately, it's the Board of Trustees that gets to make the decision about whether APA participates in any case or not. Over the years, it's been a wide variety of different issues that the CJA and the APA have participated in. Everything from, you know, standards approved for civil commitment, to the insanity defense, to patient therapist privilege. So really, like, a lot of different kinds of cases. If you're interested, all of the amicus briefs since 1962 are on APA's website. For the past year or so, you've had to be a member to look at them and put in your login information. But they are there. And they're publicly filed documents, so you can share them with other people, should you so desire. I'll note that the work of the committee has been really different in the last five years or so than it had been in the 30 years prior to that, just in terms of the volume of cases that we were looking at. So since, you know, 2017, there was a steady uptick in the number of cases that APA joined. And that has to do with, I guess my best understanding is that there were, during the Trump administration, a lot of medical organizations were joining together around filing briefs in what a lot of people would consider, like, political issues. So things like the COVID vaccine mandates, access to abortion, access to gender-affirming care, immigration issues. So all of that accounted for a lot of that increase that you see between 2017 and 2022. And then it's really kind of died down as the pandemic has. The last six months have not been as busy at all. But when we look at 2022 and this first five months or so of 2023, we have participated in lots of different kinds of issues. So the three that we're going to talk about today are ECT access, liability for third-party harm, and the gender-affirming care cases. But I would note that we've also been actively participating in WIT, which some of you would know is probably the most important case for the practice of general psychiatry that has come through the courts in a long time. Has to do with what standards that private insurance companies can use when approving or denying mental health care, particularly around substance use disorders and intensive outpatient or partial programs. So that's a case that has been winding its way through the courts. The only reason we're not going to highlight it this year is just we talked about it last year, and right now it's at a stage where we're just waiting to see whether a petition to rehear the case with a full panel of the Ninth Circuit Court of Appeals is going to be successful or not. So we're in a little bit of a holding pattern there, but still very important to the APA. And then this is just a little list of the gender-affirming care cases that we've participated in, and then the access to abortion cases. There were a lot more the previous year, but then the Dobbs decision kind of put a halt to that for a little while, while the advocates re-figure out a different advocacy strategy. So with that, I'll give you... This is the outline for what we're going to do today. We'll probably have about 15 or 20 minutes on each of these cases. So Dr Prabhu will start us off with Himes v. Somatics, and then Dr Abhishek Dao will talk about gender-affirming care, and then I'll come back and tell you about Donardo v. Kohler. So I will then turn things over to Maya. Good morning, everyone. Or should I say, good morning, fellow legal eagles. Appreciate your coming this early. We have a lot of time for questions and so on. I have to say I'm always very curious to know who joins this panel presentation of the CJA. And if Reena would forgive me, I'm curious to know, are other people in the audience, are any of you lawyers, or particularly interested in psychiatric law or involved with litigation in any way? Or is it an audience of mostly practitioners? Any lawyers? Would you admit to being a lawyer? All right. Well, thank you. That also helps us sort of think about how we present the information in the cases. I'm sure that you'll have questions after, and I'd love to hear about your interest in legal cases and what brings you here this morning. So I'm going to do a presentation of the case of Himes v. Somatics, which takes place in the California courts. It's a tort case. So it's actually a case that concerns a group of patients who brought concerns against an ECT manufacturer. And it's what is known as a tort case, and in particular, a failure to warn case, in which the plaintiffs allege a series of harms that had the manufacturer of the ECT machines, the Somatics LLC, had properly warned and issued warnings to physicians that either the physicians would not have made the recommendation for ECT or the plaintiffs themselves would not have agreed to ECT. As Reena commented a few minutes earlier, it is somewhat unusual for the committee to sort of weigh in at the district level or even sometimes at the state level. But after some consideration, we thought it would be reasonable to weigh in with the amicus brief, and I'll tell you about the contents about that in a moment for two reasons. One, obviously, ECT is of self-evident relevance to the practice of psychiatry. Second, the California state courts are amongst the most influential state courts in the country. And so there is concerns that what is now at the California Supreme Court level would issue a ruling that would unnecessarily complicate the use of ECT or issue a ruling that would have implications for causation, which would make, as I said, ECT use complicated within the state of California, which could have some precedential value outside the state of California as well. So, in this case, the amicus brief did not actually take sides with either the party, either the patient plaintiffs or the ECT manufacturing company, but was sort of... The goal of the brief was to provide accurate information about the risks and benefits of ECT to correct some of the somewhat inflammatory language in the plaintiff's complaints about how ECT is administered and to make sure that the California Supreme Court had an accurate representation of how ECT is used, recommended and actually administered to individuals. So, apologies for what's going to be a few text-heavy slides, but I wanted to share the flavour of the plaintiff's concerns, which were issued in the complaint, with you. So, plaintiffs consisted of a number of patients, including Ms. Himes and Ms. Benjamin, who argued that they'd experienced a number of harms as a result of ECT treatment. So, if you look at the original complaint filed at the district level, the language includes language like this. Plaintiffs and members of the punitive class are individuals suffering from various degrees of physiological, psychological and emotional trauma, including but not limited to skin burns, permanent brain damage, severe permanent cognitive and memory impairment, broken teeth, prolonged seizures, myocardial infarction, ruptured bowels, acute androclonic brain syndrome, complete neurological collapse and sometimes death, secondary to ECT shock treatment. The complaint goes on to argue that the manufacturer of the ECT machines had, on multiple occasions over decades, failed to provide information to the FDA about the full range of harms and injuries that patients who used ECT could experience, and then grossly understated the incidence of death resulting from ECT. The complaint also argued that despite having this information, the manufacturer continued to market ECT in a misbranded way, and that ECT is fundamentally flawed, and that it's the defendant's conduct, the manufacturer's failure to provide adequate warnings to the physicians that resulted in the harm to the plaintiffs. In the complaint, the plaintiffs also argue that ECT really does not provide that much benefit. It, quote, the mechanism of action by which ECT yields any alleged benefits to patients remains unascertained, unknown. Testing over the years has not shown any conclusive benefit to receiving ECT shock treatment past a brief bout of mania in the short term, but the risks remain. So there were four years before the case was finally heard, and you can imagine the depositions that were taken, both of the plaintiffs and their physicians, who would have been subpoenaed to provide information about how they came to conclusions about whether to recommend something. By the way, I'll note that we don't have a lot of information about the specific conditions of the plaintiffs. I believe some of that was sealed because of the sensitive nature. But after four years, the district court issued a ruling that was actually in favour of the ECT manufacturer, and it did so on summary judgment. The plaintiffs appealed, and at the district level, they actually argued... Sorry, at the appellate level, they actually argued that, fundamentally, had somatics given them adequate warnings about the risks, had the manufacturer issued adequate warnings to the physicians, that physicians either would have not made a similar recommendation or that patients... And the standard for the patients here would be a reasonable, prudent individual. So it's an objective standard, not these particular plaintiffs. But an objectively prudent patient would not have agreed to take ECT treatment. So it's interesting, at the appellate level, the court actually split. In the case of one plaintiff, the court found that, again, affirmed its decision in favour of the manufacturers, saying that, in fact, there was no indication that a different level of warning would have affected the outcome. In that case, that particular patient's physician sort of conceded that he, in fact, never read the manufacturer's warnings, wouldn't have read any data or literature from the manufacturer, and it wouldn't have changed his recommendation. Maybe not the best sort of admission, it had been a malpractice case, but in this case, what the physician was essentially saying was that the manufacturer's statements were not particularly relevant to what I would have recommended. So in that case, the district-level decision was affirmed. But in the case of the second plaintiff, the appellate court concluded that, in fact, yes, even though the physician did acknowledge reading the material from the manufacturer, and even if there had been stronger or more stringent warnings issued, the recommendation for ECT would have been the same. But in this case, in the second plaintiff's case, the appellate court concluded that, yes, a jury might have found that a prudent, reasonable, objective patient might have declined ECT, given more stringent warnings. However, the case is a tort case, and it implicates what is known as the learned intermediary doctrine. The learned intermediary are all of us. It's the physicians in the middle who are the ones who get the warnings from the manufacturer and then make a recommendation to patients. We don't need to go into this particular doctrine at length, but in short answer, there's an open question in California law about, in such a manufacturing case, where there's a concern about failure to warn, what is the standard for causation where a learned intermediary is involved? In short, the legal question that is relevant, is an open question, is, is the plaintiff required to show that stronger warnings would have changed the doctor's conduct in prescribing the product? The word prescribing is used, even though, obviously, in this case, prescribing is not how we think of recommending ECT. Or is the standard of causation all that the plaintiff needs to show is that the doctor would have communicated those stronger warnings to the patient and a reasonable patient would have declined the treatment after receiving them? So, it's a torts case, this is a causation standard, it's an open question in California court. And so, actually, the appellate court referred it to the Supreme Court, which is where we weighed in. And, by the way, that little photo in the bottom there, is you can actually see, you can go online, if you Google the case, the hearings at the appellate level are online. There are Zoom hearings, and so, if you wanted, you can actually watch the three appellate judges sort of grapple with this question and take oral argument from the counsel on both sides. In the APA brief, as I said, the brief did not take sides with any of the parties, but attempted to provide sort of neutral and objective information or data-driven information about ECT treatment. And there are four main arguments that the APA brief included. One, it provided scientific evidence dating back to the 1940s that ECT can be an effective treatment, particularly when other treatments fail, and it marshaled data and studies on this point. Second, it made the point that a clinician's decision to recommend ECT is always based on a risk-benefit analysis specific to the patient. And the risk-benefit analysis is not just related to non-treatment, but relative to other available treatments, including medications and perhaps what might have been recommended or trialled already. So, it sort of attempted to address the concerns in the complaint or the illusions in the complaint that there was not a true risk-benefit analysis being made. Three, the brief made the point that, ethically and legally, clinicians must obtain informed consent, that they're trained to respect patient autonomy and the principle of informed consent, and ultimately, the decision to pursue ECT is made by the patient or the patient's decision-maker, if that's the case, and not simply imposed on a patient, because there was some hint in the complaint that this was coercive and forced on patients. And lastly, I think maybe the most valuable piece of the brief is to attempt to correct the portrayal of ECT in the complaints as being cruel or inhumane and inconsistent with modern ECT practice. In some of the documents, there are suggestions that ECT is applied when the patient is not under anesthesia and voltages are placed directly to the patient's head, sort of an outdated and possibly sort of a pop culture portrayal of ECT. By the way, one of the other considerations when we think about how to respond or whether to file a brief is that we also look at position statements by the APA and make sure that any positions we take in a brief are consistent with position statements. And in 2015, the APA did issue a position statement on ECT, which is consistent with what was argued or put forth in the brief, and the position statement is rather short, but it states that ECT is a safe and effective evidence-based medical treatment when administered by properly qualified psychiatrists for appropriately selected patients. And just as a public service announcement, if all of you are also now thinking about how you get, how you provide information to your patients, I'll note that there is an entire section on the APA website with info for patients, and this is also consistent with the information in the brief. So the current status of the case is that we're waiting to hear what the California Supreme Court says. It now has discretion to accept the question as written, restated, or to deny the request. Here's some background information, which didn't go directly as to whether we would weigh in on the brief, as I said, after consideration, we thought this was a significant enough issue on its face, but there's some interesting background facts, too. Some of you may be aware that there's, in fact, only two manufacturers of ECT machines in the U.S. The manufacturing company in this case was one of them, but the second one, MECTA, had actually filed for bankruptcy in 2021, and it argued that meritless litigation, and a lot of litigation, up to 20 lawsuits filed against it as part of a concerted effort to bankrupt the company, was one of the reasons why it could not obtain liability insurance, and so you can see that there are policy implications and practice implications if there is now only a single manufacturer of ECT machines in the U.S., and another point which the APA did not investigate, nor did I, was that at one point, the counsel for the company alleged that the counsel for the plaintiffs, in fact, had ties to Scientology and had been involved in other efforts in litigation to oppose ECT and other psychiatric interventions and practices. So again, just some interesting background facts, always an interesting reminder that there can be quite strategic efforts to target psychiatric practices and interventions, but as I said, just on the facts of the case and the arguments that were raised in the case, we concluded that it was appropriate to file a brief that provided what we thought was a neutral and objective set of facts and evidence-based data about the risks and benefits of ECT. So we look forward to hearing what the California Supreme Court does, and I look forward to your questions. Thank you so much. Thank you. Well, good morning. I'm gonna be covering a bunch of cases relating to gender-affirming care, but first, just this is a simple kind of overview on what the lay of the land is today. This is from April, 2023. About, so the states in red are the states that have banned gender-affirming care. Mind you that there are a lot of cases in courts that are, for now, putting a hold on the execution of those bills and those legislations. In orange are the states that are considering bans, and so there are over 60 bills across multiple states that are now either in the Senate or in the House and being considered, and then in green are the states that either have not tried to issue any bans or that already have protections for transgender individuals. So a few updates from 2023, even though this is not comprehensive. Mississippi, Utah, South Dakota, Iowa, and Tennessee in 2023 passed legislation to ban gender-affirming care for youth. Iowa just issued it last Thursday, just before our conference. And then in Florida, they passed a Senate Bill 254 that prohibits entities from using state funds to cover gender-affirming care. They made it a felony to provide gender-affirming care to youth. And there's a third point, which I'm gonna cover in the last case that I go over today, about certain requirements before people get to transition even on their state IDs. In Idaho, they also passed a bill that gender-affirming care under the age of 18 would be punishable by law with up to 10 years in prison, considering it a state felony. It should take effect in 2024, unless anything happens legally between then and now, now and then. So these are the cases that I'm gonna cover. And you can see some of the states that they're issued from. And they cover different aspects of how gender-affirming care is being either challenged by certain legislations and how it's being responded to by the plaintiffs and the courts. Starting with Brent V. Rutledge in Arkansas, that was the first case ever that kind of started the series of cases afterwards. And I'm gonna go over the details of them. But the approaches to every state ban has been kind of different. Some of them kind of piggybacking on each other and being inspired by what other states have done. So I'm not gonna go over a lot of details of the amici's that we go into. I just wanted to provide an overview that in the case of gender-affirming care, the APA has not led any of the amici's. We have been asked to join. Typically it has been the American Academy of Pediatrics that have led those. And we as APA would provide some input, some education in terms of the mental health implications. And this is all based on what the position statement, what the position of the APA is on this matter. So starting with Brent V. Rutledge, going back to April 2021, the Arkansas lawmakers passed the legislation, Save Adolescents from Experimentation. And this was over the governor's veto. And they said that gender-affirming care for minors under 18 was prohibited. And that included all types of medical care, starting with puberty blockers to hormone treatment and gender-affirming surgery. Also they prevented providers from referring for care or providing care, threatening licensing, disciplinary actions with aborts, and prohibited the use of public funds, such as Medicaid to cover for this care. They also allowed private insurances to refuse covering for gender-affirming care. So four families joined by two physicians and later the Department of Justice issued a statement of support, all filed a case in court basically claiming that the law constitutes illegal sex discrimination, that it violates the parents' autonomy to decide what's best for their children, and it violates the parents' and the physicians' rights for free speech. So initially the district court denied the state's motion to dismiss the case and issued a decision that sided with the plaintiffs. And the Arkansas state appealed it to the Eighth Circuit. And we were then asked to join in on the amicus brief. I'm gonna go over it in a little bit. But there were amicis that were filed on two sides. And in addition to the medical organizations, even the states have been kind of split into siding either with the plaintiffs or with the state of Arkansas. The Eighth Circuit upheld the injunction by the district court enforcing the law pending the actual trial. And the federal court refused to rehear it when the state requested it. So for now the case is still pending. In the district court it hasn't really progressed further than this. So the amicus that we joined in on, and I'm gonna go over a little of the details of it because it provides a general overview and a sense of what are the other amicis that we were asked to join in on with the general concepts being the same, just kind of worded differently. Basically stating that simply being transgender implies no impairment in judgment, stability, reliability, or general social or vocational capabilities. And transgender identities are simply a variation of a human identity. Only a subset of transgender individuals have gender dysphoria. And the widely accepted view in the general community would support gender affirming care based on scientific studies that have been conducted, that it is not a theoretical approach to the situation, and that not providing gender affirming care would actually put transgender individuals at risk, both their health and their mental health, in terms of the repercussions on how they're gonna conduct their life, also having worse depression, anxiety, and suicidal ideations. They, these are kind of the titles of the first three sections that I thought were relevant that detail basically gender affirming care begins with a robust mental health assessment, which is required before any further medical intervention is provided. So mental health assessments throughout the process are required before getting anyone into treatment and then moving them between phases of treatment, particularly going from pre-pubertal individuals to adolescents and then to adults, with the guidelines recommend only non-physical intervention for pre-pubertal children, including mental health care and support from the family. But for adolescents, if this is not enough, and mental health assessment says that the person is still suffering from the gender dysphoria and the associated depression, anxiety, and distress, and they would still qualify, then we would support affording them puberty blockers at a first step to give them the time to decide whether they still wanna go through this gender transition or whether they just wanna revert back to their gender, to their sex assigned at birth. And later on, there would be another assessment, and if that assessment also says that after the puberty blockers, the person still wants to transition, then this amicus is in support of providing cross-hormone treatment, which means that an individual who is assigned male at birth would be able to get female hormones to transition and vice versa. And in this case in particular, even though as Dr. Kapoor mentioned, the APA typically does not get involved until appellate cases. In this particular case, because it was kind of a first of its kind, we were involved at the district level, and then there were, with the appeals, there were different amicus that were filed on both ends, and we were then involved in the appellate level, and this is the summary brief from the appellate level. So a few days after the Arkansas lawmakers passed the legislation back in 2021, Governor Abbott in Texas issued a directive basically authorizing the Department of Families and Protective Services to investigate any reports of gender-affirming care and considering it as child abuse. So this resulted in Child Protective Services investigating and prosecuting parents. And that was basically also threatening them to remove the children from their care, and that's the first case of its kind. I know of different bills across the country that are also trying to put gender-affirming care akin to child abuse. They threatened penalties for healthcare providers who are facilitating or providing this care, and created mandated reporters of anyone within the healthcare system or in schools who know of parents and families or other providers who are facilitating gender-affirming care for their youth to be mandated reporters to the states. So families who have been investigated, and the first family that was investigated, actually the mother worked for DFPS. So they were joined by other families and filed a suit joined by a psychologist and even the Department of Justice joined, and basically also alleging that this was unconstitutional along with other points that they tried to make that are specific to Texas. The state court ruled in favor of the plaintiffs and stopped the government from enforcing the directive. While the case is pending, the state appealed and the third court of appeals upheld the district court's decision. And then the state appealed again and it made it to the Texas Supreme Court, and here the Supreme Court issued a modified injunction basically stating that the court of appeals did not have the authority to take this ban on applying the directive from the named plaintiffs to kind of generalize it across the state. So it upheld the decision that particularly the individuals named in the lawsuit would be protected from the ban from the governor, but not other individuals in the state. So there was a separate lawsuit that was filed by PFLAG, the Friends and Family of Gays and Lesbians, it's an organization that is nationwide that works with LGBTQI individuals. So they filed a similar lawsuit within Texas along the same lines, just basically covering everybody else in the state. And the two cases are kind of progressing in parallel right now. It's still on appeal in the third court of appeals. In Alabama, the twist on what the state also promulgated in its ban is basically making any attempt to provide gender-affirming care a felony. And as I had mentioned earlier, that there are other states who are also issuing such legislations and laws, but that was the first one of its kind and also threatening a decade in prison for parents who provide gender-affirming care for their children. The district court, at the district court level, the court is still siding with the plaintiffs, but that was particular to the puberty blockers and the hormone therapy. So the state's ban was on any type of gender-affirming care. The court specified that it would prevent the state from enforcing the law in terms, as it comes to puberty blockers and hormone therapy, but not in terms of surgical treatment. So that is still not allowed at this stage right now. And basically, that was on the grounds that the same concept, that it violates the parent's fundamental right to autonomy. It was unconstitutional sex discrimination in access to services, and that the plaintiffs are likely to suffer irreparable damages if the law was not blocked, both physical and psychological. And just to note that the sex discrimination in terms of access to services is basically because the puberty blockers are legally being provided to adolescents and pubescent, prepubescent individuals to prevent, to treat precocious puberty. So that is not a problem, but if the indication to provide puberty blockers is for gender-affirming care to prepare for this, this is where the contention starts. The state appealed to the 11th Circuit, contending that the transitioning is neither deeply rooted nor implicit in the concept of ordered liberty, and that the restricted access to gender-affirming care, they wanted it to also be extended to adults. This is all still pending. As of now, the amicis have been filed last year in August, and there's no further progress on the case. Switching gears a little bit, the next three cases I'm gonna discuss are very similar in that they address the state's refusing to cover, by the state funds, any gender-affirming care for individuals. Starting in North Carolina, Cato v. Falwell. And also, a side note, that typically the ACLU has been involved, at least in the last three cases that I mentioned. Lambda Legal is another legal organization that has been involved in some of these cases, particularly this type of cases. And in the North Carolina insurance plan, the state insurance plan, there is a statement that provides a blanket exclusion to any treatment that is leading to, or in connection with, sex change or modification. And this is what the plaintiffs based their case on, that this was discriminatory. And it was also discriminatory, basically, on the basis of sex and transgender status in violation of the Equal Protection Clause and the Affordable Care Act. So, we also joined on a brief in this case, without repeating everything, but just a quote from it. The international consensus among healthcare professionals regarding treatment for gender dysphoria is to assist the patient to live in accordance with the patient's gender identity, alleviating the distress and impairment otherwise. So, in June 2022, the court issued findings that were in favor of the plaintiffs, and the judge had left out the issue regarding the Affordable Care Act, but then followed up with an update, an amendment on the decision in December, also siding with the plaintiffs, basically stating the exclusion of treatment by the North Carolina state plan violates the Equal Protection Clause of the 14th Amendment and Title VII of the Civil Rights Act, and that it must cover any medically necessary services for gender dysphoria, and it prevented the state from enforcing this exclusion going forward. Again, there's been an appeal, and along to the 11th Circuit, in April there were, sometime in January, the court heard the oral arguments, but did not make a decision. There was an additional case, a separate case, actually, Fain v. Crouch from West Virginia, that contends the same, pretty much the same, it's just in a different state, and they also, the state appealed to the 11th Circuit around the same time. So in April 2023, the court, having these two cases at the table, Sua Sponte decided that they're going to just have a rehearing of both cases en banc, because both the judges on the appellate cases, they were two sets of judges hearing each of the cases, and each were siding with a different party, and I read a news article kind of covering those cases, interestingly, going over who the judges were in each of the panels, and who's conservative and who's Democrat, and who was appointed by who, that sort of kind of gave an insight into how the court is formed, and how the court is going to decide with the plaintiffs or with the state. And in Florida, actually as of yesterday, there was a, the hearing ended at the district court level. Again, the state doesn't wanna cover gender-affirming care, the parties filed a suit, and the hearing happened in the last two weeks, yesterday concluded the hearing, but as of now, we're still waiting to hear on what the general decision is going to be from the district court, and I anticipate that in either case, whether siding with the plaintiffs or the state, there will be appeals, so more to come on that one as well. And the last case, Corbett v. Taylor, the additional element to it, going back to Alabama, so because there are individuals who, transgender individuals who wanted to change identity and gender on the sex, on the identification forms, the state of Alabama issued a policy that for anyone to be able to do that, they had to have gender reassignment surgery. And that would mean potentially sterilizing individuals who are gonna undergo these surgeries, there are others who just don't want, are not ready to make that transition, others who want to but are financially unable to kind of pursue those steps, so it's basically putting a lot of obstacles for individuals who want to have an identity form that matches their gender identity. And that has been debated in the district court that ruled in favor of the plaintiffs, stating that the Alabama's refusal to issue accurate driver's licenses was impermissible sex discrimination and violated the federal constitution. We joined on an amicus supporting on this case and it is being appealed to the 11th Circuit, the case is still pending, there are no updates as of today, as of this morning. So this is briefly to kind of mention two position statements by the APA, one on discrimination against transgender and gender diverse individuals, and the second one on treatment of transgender and gender diverse youth. Basically any joining that the APA does on such amicis is based on these position statements that we have, as Dr. Kapoor mentioned earlier, there's a lot of thinking about the implications of joining and not joining and the wording of any amendments, additions, or edits that we suggest, always trying to stay in line with what the position of the APA is. Thank you. Thank you. Thank you, Margarita, that was a lot of sort of dense legal stuff, but hopefully you guys get the idea that different states around the country are taking different tactics in their legislation to make it overall just difficult for children and families, particularly adolescents, to pursue gender-affirming care, and in some cases sort of penalizing or criminalizing the conduct of the physicians who are prescribing that care. And so we don't really know, as Margarita had said, a lot of these cases are still pending either at the trial court level or at the appellate court level, but sometimes when the appellate courts in different parts of the country end up deciding differently, then that's an indication for if it gets appealed to the Supreme Court, then the Supreme Court to actually hear that case. So that could happen down the road, we're just not there yet. Okay, so we're gonna switch gears entirely and talk about something else. Okay, so the last case that we're gonna talk about is DiNardo v. Kohler, and this is a case out of Pennsylvania State Courts, and I'll just give you a little bit of an introduction to it. I don't know if any of you guys are the kind of people who watch true crime documentaries. So this, the Lost Boys of Bucks County is, I haven't seen it, but it was a series on A&E, one of these investigation discovery true crime series. And the facts, I thought this little video would just sort of give you an introduction to the facts of the case. So hopefully this will play. We begin with the breaking news, the gruesome discovery and word coming in now of a confession. Just moments ago, we learned the man under arrest has now confessed after four young men vanished just days ago outside Philadelphia. The FBI and investigators on the scene discovering the bodies with help from cadaver dogs who detected the bodies buried some 12 feet below. ABC's Eva Pilgrim is on the scene in Bucks County, Pennsylvania with the discovery and how they got this confession. Tonight, the person of interest's stunning confession in the murders of four men missing since last week. He confessed to his participation or commission in the murders of four young men. 20-year-old Cosmo DiNardo admitting to the crime just hours after police announced that the body of 19-year-old Dean Finacaro and other remains were found on his family's farm in a makeshift grave. We had cadaver dogs, and I don't understand the science behind it, but those dogs could smell these poor boys 12 1⁄2 feet below the ground. Investigators had been digging at the 90-acre site outside Philadelphia for days. Authorities piecing together a timeline linking DiNardo to the disappearances of Finacaro, 21-year-old Thomas Mio, 22-year-old Mark Sturgis, and 19-year-old Jimmy Patrick. They say around 4 p.m., Sturgis went to meet Mio. Four hours later, license plate readers spot Mio's car and DiNardo's truck within feet of each other. The next day, both Mio and Sturgis failed to show up to work. One day later, detectives say they found Mio's car in this garage on the family's property with Mio's life-saving diabetes medication still inside. The news comes as new images surface of Cosmo DiNardo pointing a pistol. The photo's posted by DiNardo in a group chat where he told acquaintances he wasn't worried that Dean Finacaro, one of the four missing men, had turned up. And Eva joins us tonight live from Bucks County, Pennsylvania. Eva, you're hearing how they got that confession today? That's right, David. DiNardo making a deal, telling the DA where to find all the bodies under the promise that he wouldn't face the death penalty. His lawyer telling us DiNardo felt deep remorse and was very emotional. But tonight, still no motive in this case, David. Eva Pilgrim, leading us off. Okay, so that clip is from July of 2017 from ABC News. And this was, it's a case that now in 2023 sort of feels like precursor to all that stuff with the Murdoch family that happened, that made the news. But there are some very similar facts in it just a few years earlier. So this young man, Cosmo DiNardo, he's the one that they were referring to had confessed to these killings. And he was, this is all in Bucks County, Pennsylvania, outside of Philadelphia. And he's a 20-year-old young man, the son from a wealthy family. They had a construction business, were very successful in the area, building homes. He had had prior contacts with police but hadn't been arrested for anything. And then as you heard, he had confessed to killing these four men in July of 2017. The actual, some of the details are that he had said that he had lured them to his family's farm by trying to sell, saying that he was gonna sell them marijuana. He shot three of them. And then like the, when he ran out of bullets, he ran over the fourth one with a backhoe on the farm. And then buried them. One of them was also burned as well, and disposed of those bodies on his family's farm. And so the facts were pretty gruesome. And this was, as you can see, a pretty big case in the news at the time. Just looking at the timeline, the young men, they went missing, the first one on July 5th of 2017, and then the other three on July 27th, sorry, 7th of 2017. So then three days later, while they're just sort of searching for these missing boys, then Cosmo DiNardo was arrested on unrelated charges related to weapons. But then he was let out on bond after his family had posted his $1 million bail. But then two days after that, he is arrested for trying to sell one of the victims' cars. Thomas Mio, the young man who had had insulin in his car, and they sort of figured out that, okay, he may be implicated. They arrested him, and then the following day, he confessed in exchange for the death penalty being taken off the table. Then he had a cousin as well who was involved in helping with the three of the murders. So that young man was also charged. And then it took almost a year before the formalities of the case. Mr. DiNardo pleaded guilty, and he was sentenced to life without the possibility of parole. His cousin, Sean Kratz, actually took his case to trial and ultimately was found guilty and sentenced to life without parole as well in 2019. So this is all fascinating. What does this have to do with psychiatry? You may be wondering. Well, there is something that has to do with psychiatry. So the case, if you may recall, is called DiNardo v. Kohler. So I haven't told you who Kohler is. So Kohler is Dr. Kohler, who's a psychiatrist at UPenn. And it turns out that Mr. DiNardo was in psychiatric treatment with a psychiatrist, Dr. Kohler, at UPenn. And so then what happened in his psychiatric history is something that I, as a clinician, as a practitioner, you kind of empathize with, is that his patient did something horrific and in the midst of being in treatment with him in outpatient care. So these facts, by the way, are what is alleged in Mr. DiNardo's malpractice suit against Dr. Kohler. So you need to sort of take that as it's like one side of the story. We don't have publicly available information that tells the other side of the story. So I just want you to be mindful of that. But that Mr. DiNardo had been in treatment with Dr. Kohler since sometime in 2016 and that he had been diagnosed with bipolar disorder, with psychotic features, some places it says schizoaffective, some places schizophrenia. I'm sure you've all encountered charts like that where there's some agreement about affective and psychotic symptoms, but the exact diagnosis differs. And then in December of 2016, about seven months before the homicides had happened, Mr. DiNardo was involuntarily hospitalized. He had attacked his father in the middle of the night. He had made some threats about wanting to harm other family members. And so that had resulted in his involuntary hospitalization. He was put on medication and then discharged from there back into Dr. Kohler's care at UPenn. And then over the next seven months or so, like seemed to be stable. And for reasons that aren't stated in the documentation that's publicly available, like he was gradually kind of tapered off the medications lithium and Invega. And the last appointment with Dr. Kohler happened on July 6th, 2017, which was the day in between these two sets of homicides. And that was when his medications were stopped altogether. So what happens next will probably not surprise you, either of these things. First is that sometime between December 2017 and March of 2018, the victims' families, so those four young men who were killed, their estates, their families brought wrongful death suits against Mr. DiNardo and his family. So his mother was his power of attorney. They were suing the family for wrongful death. And then in turn, Mr. DiNardo's mother, Sandra DiNardo, acting on his behalf, filed a malpractice suit against Dr. Kohler, UPenn Hospital and the University of Pennsylvania, alleging that it was the doctor's gross negligence that had led Mr. DiNardo to commit the homicides. And they were asking for two things, essentially damages, like money for the kind of pain and suffering of knowing that he had committed these acts, being incarcerated, like those kind of damages, but also indemnification from the victim's suits. So they wanted to not have to pay out the money for these wrongful death suits because they were saying it was Dr. Kohler's fault that this had happened in the first place. So they were asking to be indemnified from the victim's suits. And so in the trial court, the defendants moved for dismissal of the malpractice suit, saying that in Pennsylvania law, there's this thing called the No Felony Conviction Recovery Rule that barred Mr. DiNardo from recovering damages in this malpractice suit. So what that means is like the No Felony Conviction Recovery Rule comes from this other case, Holt v. Navarro in Pennsylvania, but it's essentially the idea that a person should not be able to benefit or profit from his own wrongdoing. So this comes from sort of decades prior of, for example, like a Charles Manson becoming a very famous serial killer, selling rights to the story, making a lot of money, that kind of thing. So Pennsylvania is trying to bar that. And so what Dr. Kohler and Hugh Penn are arguing is that allowing Mr. DiNardo to collect on this malpractice claim would be profiting from his crime. And then in turn, what Mr. DiNardo is saying, like, no, no, no, we're not profiting, we're just recovering losses. So that should be allowed. So it's a little bit of a semantic how do you see it, but that's the crux of this case. So what happened to the trial court, and this is now fast-forwarding to July of 2020, is that the trial court, the motion to dismiss from U Penn and Dr. Kohler, the trial court had overruled in part and sustained in part. So they had said that yes, they agree that this no felony conviction recovery rule applies in the case, but they also thought that there was enough question about negligence on the part of the defendants to allow the suit to not just be totally dismissed outright. So that was sort of, I guess, a partial win for U Penn and Dr. Kohler, but then the next step is to appeal to the Superior Court of Pennsylvania, which they did. So now we're in January of 2022 when the Superior Court of Pennsylvania then issues this decision that, in fact, is more favorable to U Penn and Dr. Kohler. They say that we think that the no felony conviction recovery rule does actually preclude Mr. DiNardo from recovering damages in this malpractice suit, and also that the trial court should have dismissed it entirely because of that. So that's what the sort of intermediate appellate court decided, and then that was appealed by Mr. DiNardo to the Pennsylvania Supreme Court. So this was July of last year, and then this is the question that was certified that the Supreme Court of Pennsylvania was going to answer is, does the no felony conviction recovery rule preclude the award of civil damages in a case where DiNardo would be compensated for alleged medical malpractice relating to the crimes for which he pleaded guilty? So what happened then is that there was a request made essentially through the board of trustees of the APA by U Penn and the psychiatrists who were working there, and their lawyers saying like, we're concerned about what the implications of this are for psychiatric practice if the Supreme Court of Pennsylvania decides that actually you can sue your psychiatrist for negligence in cases where you then yourself went on to do something that was a crime. And so they contacted the APA and asked like, would the APA consider writing an amicus brief? So we had talked about this out as a committee on judicial action last September, I guess, of 2022, and ultimately decided like, yeah, we did think this was an important enough issue that we wanted to just brief the court on what the implications for psychiatric practice might be. Like even though, you know, there's part of you that's probably thinking like, what do we know about the no felony conviction rule or this is very sort of like legal minutia, what we wanted the court to know was how this might impact psychiatric practice. So we filed a brief in November of last year in support of the medical defendants, Dr. Kohler and U Penn, and we were joined by the district branch, the Pennsylvania Psychiatric Society as well. And this is just a little bit of a flavor, but I can apologize for these sort of text heavy slides, but to excerpt the brief, the purpose of the brief is to stress that allowing the plaintiff's indemnification claim to go forward would expose the defendant healthcare providers to potentially enormous liability in wrongful death lawsuits stemming from the crimes committed by Mr. DiNardo, and imposing such potential liability would conflict with the court's prior rulings, which sharply limited the circumstances under which a mental health care provider owes a duty to a third party. So that's kind of like, we wanted to remind the court that there's very narrow circumstances in which psychiatrists are responsible for harm that comes to third parties that's done by their patients as a kind of like setting the frame. And then we also wanted to tell them that if you think about downstream, what's gonna happen if psychiatrists know that they're potentially liable for harm that comes from crimes committed by their patients? Well, it's gonna make you less likely to wanna treat patients who might commit crimes, which is already, quite frankly, a pretty hard population of people to get cared for. And so ultimately, like what the court might be doing is making it harder for people who are high risk of committing violence, but also have psychiatric problems to get care for those problems, and then potentially even exacerbating their risk of violence down the road, rather than containing it. So that is the crux of the APA's brief in that case. And we are also still waiting for a decision in this case. So apologize for the sort of like lack of conclusion in any of these, but we're waiting for the courts and they sort of take their time. So that actually leaves us with plenty of time for questions. I just wanna say before we end, a quick thank you to all of our committee members who are listed there, as well as to our APA staff. The APA has, they're very good at hiring staff for the Council on Psychiatry and Law and the Committee on Judicial Action, as well as our two legal consultants who actually write the text of the briefs and provide them to us for review. And I also know that we didn't provide our slides that are in the app for you accessible there. So if anybody wants them, just email us, be happy to provide those slides as well. So thank you very much and happy to take questions. Thank you. Thanks. All right. Hi, I'm Dr. Renee Bayer and I work on an inpatient mental health unit and I'm the medical director at St. Joe's in Ann Arbor, Michigan. And I have a question for our second speaker and thank you to all of you for presenting this. It was really interesting for me. So for our second speaker, my question is, I'm gonna couch this before I ask the question, with, I went to medical school, of the 60 cadavers, there were three bodies that had either both sets of parts, genital parts or differences in their genitalia. And I have a very different opinion on gender affirming care for patients that are over the age of 18 versus under the age of 18. And I was challenged recently by a patient, transgender, female to male, who was really profoundly sexually abused by two generations and within her own family at the age of like between eight years old and 14. This is not surprising to anyone here in this room. And his words, no surprise that he wanted to just rip all of his genitals off and away from his body after something so profound, and did. And was on testosterone at the time of admission. We did some, had really a remarkable connection and had good trauma sessions while hospitalized. And this patient expressed some deep regret about the gender surgery and really only was processing what happened to him, you know, at the age of 28 in a very different way than one would do at the age of under 18. And expressed regret for the opportunity to try himself to have children. So, you know, I'm just trying to present some of the consequences of these actions on someone who may not, you know, I know that when I refer people to the University of Michigan to begin the process for gender affirming care, that they require one year of psychodynamic psychotherapy before anything is considered. But I also appreciate that, you know, someone who is 13 or 14 is gonna be processing that trauma very differently when their brain has been fully myelinated and when they are 28, 38. And we know that many of our patients aren't even able to admit what happened to them until they're in their midlife crisis. So, now here's the question. So, I wanted to first say that I, you know, I'm not, I wanna recognize the need for gender affirming care. I also wanna recognize the medical reality for that and also the medical reality of where kids' brains are compared to middle-aged adulthood and beyond. My question for you specifically now is, how do we decide as a group, I'm a member of the APA, that we, you know, are standing unanimously to support all gender affirming care under the age of 18? I don't know that we would all agree on that and I wonder, you know, how does that work? I've never, you know, I'm getting to a point now where I definitely wanna be more involved in a number of different levels, but how do we decide that as a group in the APA? And, you know, you showed the slide that showed. Yeah. Okay. No, I think we get the gist of the question is sort of how do we acknowledge the complexity of what's happening in individual patients? How do you reach consensus as an organization, you know, and decide then what position the APA takes in the legal arena? You know, I don't know if Margarita, you wanna take a stab? Well, I'm sorry to disappoint if my answer is not gonna be kinda categorical and final, but I guess it just mimics what's going on in this whole area right now that the research is evolving and that as we know more about it, the APA is kind of tracking this and, you know, that's why we're being very mindful about how and when we're getting involved in the sense that if, let's say, tomorrow there's a paper that is kinda reflecting on very solid research that counters, you know, one or all aspects of gender affirming care, the APA is probably gonna have to reconsider, but in terms of what's going on right now, what the evidence is right now, this is where it stands and I don't know that it's always going to reflect everybody's opinion because it is a controversial topic and individuals have shades of opinions on a spectrum, not to say that we are just split in two camps. So the organization as a whole tries to capture what the medical evidence says, but may not necessarily echo what individuals' opinions are. Can I just sort of add a comment about process, which is, I think the theme across multiple briefs is about making sure that medical professionals or medical organizations are determining practice guidelines and making evidence-based decisions rather than having interventions or parameters around interventions being determined by legislation or by policymakers who may have any number of set of concerns or agendas. I think, I mean, even separate from this particular issue, the theme across multiple briefs that I've been involved with has been trying to move the decision-making, the locus for decision back to the medical organizations and the dyad between patient and physician, not having policymakers be the ones who determine the parameters and scope of care and practice. And yes, I think the language in the briefs tends to sort of rely on evidence-driven care or data or practice guidelines. And third, I think Rena commented on this as well, we also make decisions about when it's appropriate to sort of ally with other professional organizations. We have certainly, we always try to give consideration to, is this a brief that the APA or psychiatrists have an interest in? Is it relevant to the practice of psychiatry? Are there mental health implications? So we're not simply trying to sign on to a brief that might have advocacy, a particular advocacy interest or position just for the sake of being seen as an advocacy organization. So we're always thinking about what is the relevance to psychiatry, right? And I wanna leave time for these gentlemen's questions. So I'll just add one thing, which is like we're very careful to dial back language that sometimes is put in by the lawyers drafting the briefs that overstates the degree to which there's consensus within the medical professions about how to handle adolescence and gender-affirming care. And even in the two years that we've been involved with these cases, some of those consensus or the guidelines have shifted and we wanna be able to acknowledge that this is an evolving area of science and of recommendations so that we're not saying we know absolutely how this is supposed to be done. What we do know is that it's best decided between children, their families and doctors, not between in the state legislature, I guess is what we're trying to convey. So sorry. Well, that's all right. Actually, I wanted to thank the previous commenter and the responses, that was very thoughtful. My question is much more simple. In the DiNardo case, I understand that the rationale for protection from the indemnification piece, but you didn't actually say, was there any position taken simply about suing for damages? Because it seemed to me that whether the plaintiff is in prison or not, that's still a pretty good med mal case. So I was just wondering if there was any comment about that. Yeah, I mean, the rest of the brief does sort of, like it advocates that the whole thing should be dismissed, that they shouldn't be able to recover any kind of damages. I sort of lifted a quote about indemnification, but it's broader than that. And I take no position on whether this is should or shouldn't be a successful malpractice suit. It's a very interesting set of facts, but we've only heard one side of it. But yes, sir. Hi, I'm Matt Majeski. I work for a teaching hospital in New York City, and I do a lot of ECT. And I wanna thank you for your advocacy on behalf of the procedure. I'll just make a comment about consent in patients with ECT that they've often come through multiple trials of medication. They may be catatonic. And really, although ECT is a procedure that requires written informed consent, patients are deeply ambivalent, paralyzed with ambivalence, or catatonic, can't speak or move. And so it really requires a measure of paternalism on the part of the psychiatrist to bring them forward to a procedure that can be life-saving. And I was thinking as I was reading the plaintiff's complaint that it sounds like a lot of the anti-psychiatry ECT garbage that you'll see in a Scientology museum or on the internet if you Google ECT. Thank you. Thanks. You may be interested in reading the amicus brief. I actually don't remember if it's up on the APA website yet, but it should be by the end of the year. And if it's not, I will check. So you can read the language, which does actually provide a useful summary for clinicians about the data, the risks and benefits of ECT and outcomes. And yes, obviously, individuals who've had bad experiences with ECT have very strong feelings about their experiences of ECT. So I certainly don't want to minimize the plaintiff's experiences, but it does underscore, I think, the value of the APA providing information that provides a hopefully more balanced or what we would argue would be a more balanced perspective on the benefits of ECT. If I can just sort of add one more comment, go back to the earlier question about the gender-affirming care cases. There's one aspect of when we choose to weigh in as well that also came up last year with a set of reproductive health cases, which says there are a number of legislative efforts that provide, that would create disciplinary licensing or criminal penalties for physicians for making recommendations or taking steps that might otherwise be in accordance with best practice guidelines or professional organization guidelines. And I think that was evident in some of the cases that were presented around gender-affirming care. And we do tend to make note of those cases and perhaps weigh in. Again, going back to the idea that the APA stands that there really ought to be psychiatrists or physicians who are making decisions about what's appropriate for the patient in accordance with professionally determined or professional organization determined best practices and not be able to practice the best medicine or the most appropriate medicine without fear of retaliation in criminal courts and licensing and DCF investigations. It's just about the process and the level of action that we're going to be taking as we go forward. Thank you. Yeah, and I'll just repeat that briefly because I don't think the mic, and there are people listening online, I guess, but she was just explaining that there is a process through the APA assembly where position statements are vetted, reviewed, and ultimately, like, approved by a geographically and specialty diverse group of individuals before they become a position of the APA. It's the board of trustees, I think. Yes, and then, right, and then there's process after that is that it doesn't, it's not just the assembly. It goes to the joint reference committee and then to the board of trustees, and I'm going to get the details wrong, but yes, there's a whole internal process. I also just wanted to ask one question of the group about the ECT cases because, you know, I've just been curious that the crux of that is, like, the patient's saying, had the manufacturer of the ECT equipment given a stronger warning about the potential side effects related to memory and other things, like, the physician's behavior would have changed in terms of, like, recommending the procedure, and I'm just very curious to anyone who practices, like, have you ever read the manufacturer's warnings, like, or, like, taken that as the piece of information that's crucial? No. Thank you. But actually, that was my question, or not, like, my, going forward, the, I do ECT, but I don't do ECT anymore because of just staffing issues, and the thing that I found really interesting is the bankruptcy because I didn't pay attention to that or didn't know that. The other reason I don't do ECT is because our ECT machine doesn't exist anymore. The hospital refused to buy a new one because it cost too much, and so I'm wondering if we need to address that monopoly that is now there because you're going to make ECT a lot more difficult to assess. Yeah, I mean, I think it has been a really targeted campaign to sort of, like, the two companies are smaller kind of family businesses, and so can't support the cost of constant litigation, and so I'm sure their pricing of the equipment probably rises in conjunction with that, but you're right, that it's, I think that's what, well, word on the street is that's what Scientology is going for, is to put people out of business through litigation costs. I'll just say that the, we use the thymotron mecta, I'm sorry, the thymotron device at my hospital, and when you buy the machine, there's a manual that comes with it that's a very valuable resource on all aspects of ECT. I think it was co-written by, you know, scholars in the field of ECT, and, but ECT has been around for 80 years, it's the most effective treatment for depression that we have, and its risks and benefits are well known, and always, you know, spelled out to any patient who's considering the procedure. Yeah, I think that's what we were trying to convey to the court, you know, whereas the other, the party's briefs were sort of really picturing One Flew Over the Cuckoo's Nest, and, you know, like, there's a literal citation to that movie in their brief. So, any other questions or comments people wanted to make before we end? All right, thank you very much. We really appreciate your time and attention.

Committee on Judicial Action

American Psychiatric Association

Reena Kapoor

Maya Prabhu

Margarita Abizadeau

amicus curiae

Himes v. Somatics

gender-affirming care

DiNardo v. Kohler

psychiatry

legal cases

medical malpractice