Categories: Delaware Court Opinions

AIZUPITIS v. ATKINS, 1278-VCN (Del.Ch. 1-27-2010)

Aizupitis v. Atkins, et al.

C.A. No. 1278-VCN.Court of Chancery of Delaware.Date Submitted: December 3, 2009.
January 27, 2010.

Mr. Varis R. Aizupitis, c/o Delaware Psychiatric Center, New Castle, DE, Via First Class Mail.

Ronald W. Hartnett, Jr., Esquire, Reger Rizzo Darnall, LLP, Wilmington, DE.

Michael J. Logullo, Esquire, Shelsby Leoni, P.A., Stanton, DE.

Gary W. Alderson, Esquire, Elzufon, Austin, Reardon, Tarlov Mondell, P.A., Wilmington, DE, Via LexisNexis File Serve.

Kevin R. Slattery, Esquire, Department of Justice, Wilmington, DE.

Phillip Raskin, M.D., Hospital Medical Director, c/o Delaware Psychiatric Center, New Castle, DE, Via First Class Mail.

JOHN W. NOBLE, Vice Chancellor

Dear Mr. Aizupitis, Dr. Raskin, and Counsel:

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Plaintiff Varis Aizupitis, a patient at the Delaware Psychiatric Center (“DPC”), has asked the Court for access to certain clinical records pursuant to the Mental Health Patient’s Bill of Rights (the “Bill of Rights”);[1] such access has been denied by Aizupitis’s treating psychiatrists. On October 28, 2009, this Court dismissed Aizupitis’s complaint for failure to state a claim under Court of Chancery Rule 12(b)(6) and for lack of subject matter jurisdiction under Court of Chancery Rule 12(b)(1).[2] The Court held that, because the psychiatrists had determined that permitting Aizupitis to review his clinical records would be seriously detrimental to his treatment plan, their denial was lawful under the Bill of Rights.[3] It concluded that the Bill of Rights provides the patient with the alternative of third-party review — an opportunity which Aizupitis did not pursue and an opportunity which was not denied to him. Aizupitis also brought claims

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against several of the named defendants for censure and damages; the Court, however, declined to exercise jurisdiction over these claims, finding instead that an adequate remedy for each claim could be had elsewhere.

This letter addresses Aizupitis’s Motion for Reconsideration filed on November 20, 2009. In his motion, Aizupitis lists ten issues that have “troubled” him regarding the October Opinion. Motions for reargument or reconsideration are governed by Court of Chancery Rule 59(f). The standard on such a motion is whether “the Court has misapprehended a material fact or rule of law.”[4]
Furthermore, the misapprehension or misapplication “must be such that outcome of the decision would be affected.”[5] In addition, because Aizupitis is a self-represented litigant, the Court has held and will continue to hold his pleadings to a somewhat less rigorous standard by focusing more on the substance of his filings than on any informal defects.[6]

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Several of the issues Aizupitis raises are mere grievances against the Court of Chancery specifically and against the State of Delaware generally.[7] Aizupitis’s general criticisms of the Court of Chancery and the State of Delaware do not involve contentions that the Court misunderstood a material fact or misapplied the law and will therefore not be addressed in this letter opinion.

Aizupitis does, however, present several specific arguments that the Court misunderstood both the legal and factual basis for his complaint. Aizupitis’s first claim deserving consideration arises from a letter he filed with the Court in October 2008 in which he explained that a treating psychiatrist, Dr. Galucci, had given him access to review treatment notes from the fall of that year. Aizupitis argues that Dr. Galucci’s determination constituted a waiver of any medical

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objections and thus mooted the earlier record access denials by Drs. Foster and Zwil, and that the Court failed to consider this fact.[8]

It does not follow that Dr. Galucci’s decision to allow Aizupitis to review several of his more current records “moots” Drs. Zwil and Foster’s prior denial of his older records after they determined that such access would be seriously detrimental to his treatment. The access decisions of his previous treating psychiatrists control, under the Bill of Rights, his access to those specific records.[9]
In addition, these earlier denials have been more recently affirmed by DPC Hospital Director, Dr. Abdullah. Attached to Aizupitis’s October 2008 letter is a note from Dr. Abdullah, which denies Aizupitis’s continued request for the archived notes, specifically citing “concerns brought to [Dr. Abdullah’s] attention

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by the treatment team.”[10] The Court has therefore misapprehended no material fact concerning the validity of Drs. Zwil and Foster’s earlier determinations, which were valid at the time they were made and continue to stand.

Aizupitis further contends that the Court failed to address his argument that the DPC has inappropriately withheld his medical records on a wholesale, instead of a specific, record-by-record basis. Although the statute does indeed provide for the denial only of “specific” records, this provision does not necessarily imply that the entire record may not be denied if done pursuant to an appropriate clinical determination. Requiring the treating psychiatrist to turn over some records despite his or her professional judgment would defeat the statute, which defers to the discretion of the mental health professionals charged with the patient’s care. Furthermore, Aizupitis’s subsequent submissions to the Court demonstrate that his

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entire record has in fact not been kept from him, as he has been allowed access to his more recent treatment notes.[11]

Aizupitis also suggests that the Court wrongly assumed he was ever represented by Daniel Atkins or any attorney for that matter, and he claims that the Court mistook his statutory right to review his treatment notes for the rights of his attorneys to do the same.[12] Based upon Aizupitis’s own submissions, it was not unreasonable for the Court to conclude that he was receiving some legal assistance from Daniel Atkins or another representative of Community Legal Aid Society, Inc. In fact, Aizupitis’s censure claims against Atkins admit some representation even as they criticize counsel’s quality.[13] Of greater importance, however, is that

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such representation, whether or not it ever existed, materially did not factor into the Court’s ultimate disposition. The Court merely pointed out one of several mechanisms by which a third party may review Aizupitis’s clinical records to highlight how § 5161 provides alternate means of review when the patient is lawfully denied access to his or her records.[14]

Aizupitis further argues that the Court should have, “sua sponte,” provided the funds for him to hire an independent mental health professional to review his treatment notes, and he suggests that the Court has accused him of perjury “in his claims of indigency.”[15]
Aizupitis’s latter claim is without merit; the Court has no

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opinion regarding Aizupitis’s apparent indigency and has assumed his claims of indigency to be true. Whether he is or is not indigent, however, is irrelevant as Aizupitis cites no law in support of his argument that the Court of Chancery should hire him an independent mental health professional.[16] Certainly nothing in the Bill of Rights confers the authority upon this Court.

Lastly, Aizupitis claims that the Court erred in finding that he had waived his claims against Ms. Stachowsky, whom he considers to be the “primary defendant” in this matter, and that he instead intended to dismiss his claims against Dr. Foster.[17] The underlying facts of this case have been in constant evolution as several of the named defendants have left their employment at DPC and have since been replaced. It was often unclear from Aizupitis’s pleadings and the subsequent documents he submitted to the Court whether he intended to dismiss a named

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defendant based upon these changed circumstances. For these very reasons, the Court resolved Aizupitis’s claims entirely on deficient pleading or jurisdictional grounds.[18]

Aizupitis has failed to show that the Court misapprehended a material fact or point of law. For this reason, as well as the untimeliness of his filing, his motion for reconsideration is denied.

IT IS SO ORDERED.

[1] 16 Del. C. §§ 5161, 5162.

[2] Aizupitis v. Atkins, 2009 WL 3589530 (Del. Ch. Oct. 28, 2009) (the “October Opinion”).

[3] The Mental Health Patient’s Bill of Rights reads in part:

[N]o clinical records maintained with respect to patients shall be public records . . . [or] . . . released to any person . . . except in conformity with existing law and as follows: [t]o patients . . . except that access to specific records may be refused when a clinical determination is made and documented in the patient’s individualized treatment plan that such access would be seriously detrimental to the patient’s health or treatment progress.

16 Del. C. § 5161(b)(13) (emphasis added).

[4] Cole v. Kershaw, 2000 WL 1336724, at *3 (Del. Ch. Sept. 5, 2000) (quoting Miles Inc. v. Cookson Am. Inc., 677 A.2d 505, 506 (Del. Ch. 1995)).

[5] Bernstein v. Tractmanager, 953 A.2d 1003, 1014 (Del. Ch. 2007).

[6] Aizupitis, 2009 WL 3589530, at *1 n. 2 (quotin Sloan v. Segal, 2008 WL 81513, at *7 (Del. Ch. Jan. 3, 2008)). For this reason, the Court will overlook Court of Chancery Rule 59(f)’s requirement that motions for reargument be filed within five days after filing of the Court’s opinion or receipt of the Court’s decision. Although Aizupitis filed his motion more than twenty days after the October Opinion was entered, it is not clear when he received the Court’s decision. More importantly, his motion raises a few issues that merit discussion.

[7] Aizupitis believes that his case is trivial in the eyes of the Court of Chancery, which he claims deals “primarily with millionaires and cases involving headline-grabbing corporate news.” As a related point, he assumes that the Court spent only a short amount of time working on his case. He also argues that, in Delaware, “it’s who you know, it’s not what you know”; he implies that this maxim rendered his legal arguments irrelevant.

[8] Aizupitis argues that he should have used stronger language to describe how baseless he believed were the psychiatrists’ earlier determinations; he stated that “the Court’s reliance on the Plaintiff’s putative demurral is puzzling, given that the psychiatric claim of harmfulness was made moot by Dr. Galucci’s later decision.” See Pl.’s Letter with Attachments, dated October 8, 2008.

[9] In addition, and as stated in the October Opinion, the Bill of Rights does not provide for judicial scrutiny of the psychiatrists’ determinations. It only requires that such decisions be made and documented in the patient’s record. Aizupitis has claimed all along that Drs. Zwil and Foster’s determinations were without merit; these decisions, however, are not subject to review by the Court so long as they have actually and professionally been made. The statute instead provides for third-party review of the patient’s records in the event the patient desires access to his or her notes despite a psychiatric determination otherwise.

[10] See Pl.’s Letter with Attachments dated October 8, 2008. Dr. Abdullah also based his decision, in part, on the fact that the Department of Correction retains exclusive jurisdiction over Aizupitis with respect to matters involving his security. 11 Del. C. § 408(b). Many of the records Aizupitis asked to see pertained to reported disputes or altercations with hospital staff or other patients. Def. Foster’s Mot. to Dismiss, Ex. B. Thus, one can understand why Aizupitis’s treating psychiatrists might have been concerned about whether his access to those records would have exacerbated his paranoia or even created a potential security risk.

[11] The Court recognizes that this is not a case without some concern, and that the rights owed to those placed within the State’s institutions should not be taken lightly. While DPC made the proper documentation to justify its record denial to Aizupitis, it could have done more to flesh out why it believed denial of access was appropriate, both in its responses to Aizupitis as well as those made to the Court. Even though it is not generally for the Court to second-guess clinical decisions, such as whether to allow a patient access to his mental health records, care must be taken to avoid using denial of access as a reflexive and unthinking default option of convenience.

[12] Aizupitis asks whether the “Court imagine[s] that every pinko lawyer represents every freak-on-a-leash defendant” and questions why “the lawyer should ask for access to treatment notes, since the law guarantees the patient that right.” (emphasis in original).

[13] The same can be said for Aizupitis’s prior defense counsel. Although Aizupitis admonishes his former attorney for what he believes was dishonest and inadequate representation, there is no question that Aizupitis was represented by counsel at some point, and that such counsel could have reviewed (and perhaps did review) his treatment notes.

[14] The Court also raised this issue to suggest the benefits of counsel in a general sense. Many of Aizupitis’s submissions involved contentions and factual allegations that simply were not relevant to his case. Additionally, Aizupitis’s status as criminally mentally ill places him under the dual jurisdiction of both the DPC and the Department of Correction (“DOC”). See supra note 10. Aizupitis never sued or attempted to join DOC as an interested party, but if he had, its involvement may have been helpful to address how the respective duties and powers of DPC and DOC interrelate. Indeed, no person committed to the DOC has access to the records listed in 11 Del. C. § 4322. The Defendants, however, have not suggested that the records which Aizupitis has sought fall within the scope of that section.

[15] Aizupitis requested that the Court appoint an expert witness — a bioethicist — ostensibly for the purpose of helping him contest the DPC’s policies. It should be noted that Aizupitis not once requested the appointment of an independent mental health professional to review his clinical records, nor did he request review of his medical records by one of the third parties listed in § 5161. It is quite obvious from the pleadings that Aizupitis requests only personal review of his treatment notes, which helps to explain his overall frustration. The Bill of Rights provides alternate means of third-party record review in the event the patient is denied personal access to these documents; although Aizupitis remains highly skeptical that any of these third-parties could provide him meaningful assistance, he has never alleged that he attempted to obtain such third-party review and was subsequently denied.

[16] Cf. Walls v. Cooper, 604 A.2d 419, 1991 WL 247806, at *5 (Del. Nov. 8, 1991) (TABLE) (“The courts of Delaware do not appoint experts to testify for either party in civil actions, and no funds are available for such appointments.”).

[17] As a final note, Aizupitis also requests that the Court include “failure to state a claim means N.I.H.” when drafting the next edition of Title 10 of the Delaware Code. This complaint, however, is one for the General Assembly.

[18] See Aizupitis, 2009 WL 3589530, at *2 n. 19 (“The Court need not determine whether [Aizupitis] actually intended to dismiss Ms. Stachowsky because, as will be seen later, she will be dismissed as a defendant in this proceeding under Court of Chancery Rule 12(b)(1). The same holds true for Dr. Foster and Dr. Raskin whom Aizupitis also mentioned dismissing.”).

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