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Greenberg v. Superior Court of Orange County

April 9, 2009

LAURENCE GREENBERG, PETITIONER,
v.
THE SUPERIOR COURT OF ORANGE COUNTY, RESPONDENT; DENISE SMITH ET AL., REAL PARTIES IN INTEREST.



Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Petition granted. Writ issued. (Super. Ct. No. 06CC11990).

The opinion of the court was delivered by: Ikola, J.

CERTIFIED FOR PUBLICATION

OPINION

In this tragic case, real parties in interest Denise Smith and her son, Brandon Smith, (plaintiffs) sued petitioner Laurence Greenberg, a psychiatrist, for wrongful death due to medical negligence after petitioner‟s patient shot and killed two members of plaintiffs‟ immediate family.*fn1 Brandon also sued petitioner for emotional distress. Petitioner moved for summary judgment, but the trial court denied his motion. Petitioner now seeks a writ of mandate directing the trial court to grant him summary judgment. For the reasons discussed below, we grant the petition and issue the requested writ.

FACTS

William Freund, a neighbor of the Smith family, suffered from Asperger‟s Syndrome, a disorder described by plaintiffs as "a form of autism, which negatively affects an individual‟s social skills," and by petitioner as a condition "characterized by impairment and oddity of social interaction and restricted interest and behavior reminiscent of those seen in autistic disorder[, but without] significant delays . . . in language, cognitive development, or age-appropriate skills."

In June 2001, when Freund was 15 years old, a pediatric neurologist reported Freund was being teased by "bullies at school" and taking out his rage and frustration on his parents by throwing things at them and physically attacking them.*fn2

Brandon was Freund‟s only known friend. To Brandon, Freund "never seemed like the violent type."

Petitioner initially treated Freund for three months in 2002, but Freund "and his family decided to return to their primary physician for psychiatric management." In April 2004, when Freund was almost 18 years old, he returned to petitioner‟s care. Thereafter, petitioner continuously treated Freund and prescribed him various medications.

In April 2005, Freund turned 19 years old. He was a high school graduate, attended ITT Tech college, had a computer-related job, and lived with his parents. On September 2, 2005, he joined an online Aspergers and Autism Community at a website called Wrong Planet.

On September 19, 2005, petitioner prescribed Geodon for Freund because of his "continued difficulties with irritability and moodiness, related to his depressive disorder[,] propensity to anxiety ("paranoid anxiety‟) and obsessive thinking regarding his inability to form close social relationships."

On October 3 and 4, 2005, Freund posted messages at WrongPlanet.net suggesting he wanted to kill himself and had unsuccessfully tried suicide. He stated he had no friends and was too anxious to talk to people, and his father was "onvercontroling" [sic] and "abusive." There is no evidence petitioner or Freund‟s parents knew of these postings.

On October 12, 2005, petitioner told Freund "to stop the Geodon" because the patient "still reported insomnia . . . and complained of dizziness since taking Geodon; [and his] parents related "in and out of reality,‟ irritability and nastiness." That same day, petitioner prescribed a regimen of four medications for Freund: Lexapro, Effexor, Ativan, and Concerta. This was the first time petitioner prescribed Lexapro for Freund. Petitioner had been prescribing him Effexor for a year and a half at that time, Concerta for six months, and Ativan for three months. Freund had a history of not complying with prescribed medication regimens.

On October 15, 2005, Freund applied to buy a shotgun.

Between October 15 and 17, 2005, Freund posted messages at WrongPlanet.net saying he had bought a gun and needed to admit himself to a hospital for counseling and "social skill training." He stated he did not suffer from depression until he started taking psychoactive drugs because his parents thought he needed such medications. He stated he was going to cause a lot of damage with his gun and hoped to hunt and "blast things away." He wrote: "My condition. Well [it‟s] gone from happy and hyper active to not even [being] able to keep my fingers from shaking on the keyboard, And it might have been pushed on what [I‟ve] been doing to my body, but most likely because [I‟ve] been forced to take a concoction [of] pills because my parents [at] the doctor["s] office [will] always deny They do something wrong, [as I try] to point out [they‟re] the problem. They lie to my face about things they said or [did]. . . . [T]hey just can[‟t] control [their] emotions, [and] when it comes up for my healing, they deny it and [I‟m] labeled as a [trouble] maker [and] a bad, illogical person because [a]lmost all the time [I can‟t] convince the doctor because [my] parents start confusing me in order to get out [of] the doctor[‟s] crosshairs." He continued: "My health is [deteriorating] from [a reaction] with this drug called Geodone [sic], [I‟m] not ...


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