Thursday, June 27, 2007
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C.A. Rejects Class Action Against Shock Device Maker
By a MetNews Staff Writer
A man claiming he suffered memory loss after undergoing electro-convulsive treatment cannot bring a class action on behalf of other psychiatric patients in the state who have been treated using the same device, this district’s Court of Appeal ruled yesterday.
Ventura Superior Court Judge Steven Hintz correctly denied Atze Akkerman’s class certification motion in his suit against ECT machine manufacturer Mecta Corporation, Inc., Div. Six said.
Akkerman had sought to expand his deceptive advertising lawsuit into a class action against Mecta on behalf of “all members of the public who have received shock treatment in California from MECTA devices after September of 1997.”
Div. Six agreed with Hintz that the proposed class was too broad and amorphous to be approved.
The suit stems from psychiatric treatment Akkerman received in 1999, when he was suffering from severe depression.
Upon the recommendation of his psychiatrist at the time, Dr. Joseph Johnson, Akkerman underwent ECT treatments to alleviate his disorder. The treatment, administered at Santa Barbara Cottage Hospital using a Mecta machine, involved Johnson attaching electrodes to Akkerman’s head and inducing jolts of electricity to pass between them.
As a result of the treatment, Akkerman allegedly suffered permanent memory loss and impaired cognitive functioning.
In addition to his Ventura Superior Court action, Akkerman sued the hospital in Santa Barbara Superior Court and Mecta in federal court.
In the Santa Barbara action alleging fraud and medical malpractice, Akkerman claimed the hospital gave him patient consent forms that were outdated, incomplete, and did not adequately advise them that ECT treatments could cause irreversible, permanent memory loss. Akkerman sought restitution damages as well as an injunction barring the hospital from using misleading consent forms for patients seeking ECT.
A jury found the hospital and Johnson were negligent but did not cause injury to Akkerman. The trial judge issued an injunction against Mecta but denied restitution damages.
The injunction order was reversed on appeal on the basis that Akkerman had not shown an “injury in fact,” as required by Proposition 64 of plaintiffs seeking injunctions under the Unfair Competition Law. The case was remanded to the trial court for a new determination on standing.
In the federal suit against Mecta, Akkerman sought damages for the injuries he allegedly suffered as a result of his 1999 ECT treatments. Asserting causes of action for strict liability and breach of warranty, Akkerman claimed the company misled the public by minimizing or not disclosing the risks of ECT.
A jury found against him, and he appealed the judgment to the Ninth U.S. Circuit Court of Appeals.
Akkerman’s Ventura Superior Court action alleged that Mecta violated the Unfair Competition Law by stating, in a book to patients and health care providers, that studies showed no permanent memory loss or impairment after ECT. This statement was “false and deceptive,” he claimed.
In moving for class certification, he sought monetary restitution for the class for the cost of ECT treatments paid by class members, insurers and public agencies.
Hintz concluded Akkerman’s class definition was overbroad.
Writing for Div. Six, Presiding Justice Arthur Gilbert said the judge’s conclusion was reasonable.
“…Akkerman did not show how he could easily identify those who were deceived or distinguish between those patients and 1) patients who relied in whole or in part on their doctor’s advice, or 2) those who relied on state mandated ECT patient informed consent forms which disclose the risks,” he explained.
“[H]is class definition is so broad that it includes patients who were properly advised pf the risks and those who relied on state approved consent forms.”
In addition, the justice said, Akkerman did not adequately define those who were entitled to restitution or the entities from which the class could seek relief.
“The homonym ‘suit’ can mean a legal action or apparel,” Gilbert wrote. “Though quite dissimilar, the two share one important attribute in class actions. One size does not fit all.”
Justices Kenneth R. Yegan and Paul H. Coffee concurred in the opinion.
The case is Akkerman v. MECTA Corporation, Inc., 07 S.O.S. 4123.
Copyright 2007, Metropolitan News Company