COMPLAINT – CIVIL ACTION

1. Plaintiff Patricia Weathers (“Mrs. Weathers”), is the parent and natural guardian of minor plaintiff, Michael Mozer (“Michael”) and at all times relevant hereto both plaintiffs resided at P. O. Box 1084, Millbrook, NY 12545.
   
2. Defendant Millbrook Central School District (“Millbrook”) is a municipal school district located at P. O. Box AA, Millbrook, New York 12545.
   
3. Defendant Elaine Zucci, Ph.D., (“Dr. Zucci”) is the former licensed school psychologist in the Millbrook Central School District.
   
4. Defendant Lynne Liptay, M.D., (“Dr. Liptay”) is a licensed pediatrician believed to be employed by New York Pediatric and Adolescent Associates, P.C., 104 Fulton Avenue, Poughkeepsie, New York 12603.
   
5. Defendant Julia Speicher, M.D. (“Dr. Speicher”) is a licensed psychiatrist with an address at Astor Counseling Services, 230 North Road, Poughkeepsie, NY 19601.
   
6. Defendant Linda Beyer is the former Director of Pupil Personnel Services in the Millbrook Central School District.
   
7. Defendant Fred Merz is Principal of Millbrook Central Elementary School at Alden Place.
   
8. Michael Mozer was born on June 6, 1990 to parents Patricia Weathers and Don Mozer.
   
9. On or about June 6, 1997, Michael’s first grade teacher, Mrs. Sally Knapp, believing Michael had learning and behavioral problems, filled out an “ADD-H: Comprehensive Teacher's Rating Scale (ACTeRS profile)” in accordance with the policies and practices of Millbrook. The results of this survey were sent to Dr. Liptay for analysis.
   
10. Millbrook’s Committee on Special Education (CSE) thereafter learned but did not inform Michael’s parents of the results of his “Freedom from Distractibility Index,” which demonstrated that Michael’s “power of attention and concentration are well developed.”
    
11. Millbrook’s CSE also ignored the possibility that Michael’s demonstrated deficiency in visual-motor integration may have affected his ability to concentrate during school.
    
12. Dr. Liptay, using only the results of the ACTeRS profile, diagnosed Michael as suffering from Attention Deficit Hyperactivity Disorder (ADHD) and prescribed methylphenidate hydrochloride (“Ritalin”) at a dosage of 5 mg (one pill), to be taken once in the morning and once at lunch time.
    
13. Neither Michael nor Mrs. Weathers gave voluntary informed consent to the drugging of this first grader.
    
14. Michael began taking Ritalin on June 9, 1997 and continued taking it for two weeks until the completion of first grade. Per Dr. Liptay’s recommendations, Michael did not take the medication over summer vacation.
    
15. On August 21, 1997, just before Michael was to enter second grade, Dr. Liptay lowered his dosage to one 5 mg pill in the morning and a 2.5 mg (half) pill at lunchtime; this was based in part on information Dr. Liptay received that Michael was having trouble sleeping because of the Ritalin.
    
16. On December 9, 1997, due to Michael’s reported difficulty in school, especially during the morning hours, Dr. Liptay doubled his morning dosage to 10mg (two pills); the lunchtime dosage remained the same.
    
17. During second grade (1997-1998), Michael suffered adverse effects from the Ritalin including anxious behavior (“over-worrying”), loss of appetite, and trouble falling asleep.
    
18. Dr. Liptay maintained the same dosage (10mg/2.5mg) until May, but did not require Michael to take the medication on the weekends.
    
19. . On May 28, 1998, Mrs. Weathers advised Dr. Liptay of a meeting with Michael’s teacher, in which she was told that her son had trouble focusing and was repeatedly “off-track” during class.
    
20. Dr. Liptay thereafter increased Michael’s morning dosage to 15mg and his lunchtime dosage to 5mg.
    
21. Michael continued taking four pills a day until that summer vacation when he went off medication as usual.
    
22. Before going into third grade, Dr. Litpay decreased Michael’s prescription to 15mg in the morning and 2.5mg at lunchtime.
    
23. . At some time during the beginning of third grade, Michael began showing signs of severe anxiety. His social abilities, which according to the survey administered by Michael’s first grade teacher, were normal for a boy his age, had deteriorated significantly; he was observed avoiding social interaction by standing by himself in the school’s playground. He exhibited other signs of anxious behavior as well, such as chewing and over-worrying. When Mrs. Weathers approached Michael’s teacher and the school psychologist, each downplayed the implications of this behavior and advised that Michael’s schoolwork had improved. Mrs. Weathers then told them that social interaction was as equally important to her as was his “[ability] to sit for them and do his work.”
    
24. On November 3, 1998, Dr. Liptay switched Michael to Dextrostat Dextroamphetamine Sulfate, (“Dexedrine”), at a prescribed dose of 5mg in the morning and 5mg at lunchtime.
    
25. In a letter dated March 29, 1999, to Empire Pharmacy Management from Mrs. Weathers, Dr. Liptay advised that, in September, 1998, “a child psychiatry evaluation was done [on Michael] and it was recommended that his medication be changed to Dexedrine.”
    
26. In fact, there was no complete psychiatric evaluation performed during that time and the switch in medicines from Ritalin to Dexedrine was solely Dr. Liptay’s decision.
    
27. During the summer of 1999, Michael took the medication only when he saw his tutor every other Tuesday.
    
28. Michael continued to take Dexedrine as fourth grade commenced, at a dose of 5mg in the morning and 5mg at lunch.
    
29. Soon thereafter, after Mrs. Weathers advised Dr. Liptay of Michael’s extreme fatigue, decrease in appetite, and anxiety, Dr. Liptay decreased the dose to 2.5mg, for both morning and lunch. Michael, however, still suffered from anxiety, in the form of constant chewing, and insomnia, as a result of the medication prescribed by Dr. Liptay.
    
30. Upon Dr. Elaine Zucci’s suggestion, Mrs. Weathers took Michael to Dr. Jullian Speicher on October 4, 1999.
    
31. Dr. Speicher met with them for approximately forty-five minutes.
    
32. After briefly questioning both Michael and his mother, Dr. Speicher diagnosed Michael with social anxiety disorder, and she recommended the use of Paroxetine Hydrochloride (“Paxil”) for treatment.
    
33. Dr. Speicher knew or should have known that Paxil had not been approved for use in children, and the effects on children had not been studied, particularly when used in combination with Dexedrine (now at 2.5mg/dose).
    
34. Michael’s first week of Paxil and Dexedrine started October 5, 1999. He immediately began to experience extreme insomnia (keeping him awake until two in the morning), frequent temper tantrums, signs of frenzied and anxious behavior, and consistent arguing over unimportant issues.
    
35. On October 21, 1999, following an argument with his mother over homework, Michael jumped out of his bedroom window, took his bicycle and rode for over ten miles across the Taconic State Parkway to the house of his biological father, Don Mozer.
    
36. Paxil was discontinued on October 29,1999.
    
37. On November 5, 1999, Mrs. Weathers met with Michael’s principal, Fred Merz to discuss a drawing that Michael did while at school (while on Dexedrine and Paxil), in which he drew a picture of “girl killing babies [his words]” after he was asked to draw a picture after reading a description of Pippi Longstocking.
    
38. On November 30, 1999, Michael had an episode of violent, uncontrollable rage, ending with an emotional breakdown. He described a bad voice in his head telling him to say bad words.
    
39. On December 3, 1999, Michael was observed banging his head against the table several times without stopping. When asked by his teacher why he was doing this, Michael described voices in his head telling him to do bad things. Dr. Speicher offered the Weather’s three options on how to proceed with Michael: hospitalization; adding the prescription of Risperdal (another medication used to treat schizophrenia and other cases of extreme psychosis); or do nothing and take Michael immediately to the hospital if another episode occurs.
    
40. On December 6, 1999, in a meeting with Michael’s parents, Dr. Zucci and Mr. Merz advised that Michael should stay with Dr. Speicher until the appropriate medication was found that would help Michael. Dr. Zucci then represented that hospitalization was perhaps the best thing that they could do.
    
41. During that same meeting, Dr. Zucci and Mr. Merz advised that Michael continue on medication.
    
42. On December 15, 1999, Michael’s teachers, the principal, and Dr. Zucci, again recommended that Michael continue with Dr. Speicher and the medication. Mrs. Weathers assured them that she would contact Dr. Speicher.
    
43. When Mrs. Weathers spoke to Dr. Speicher later that night, Dr. Speicher repeated her call for hospitalization so that various and numerous medications could be tested on Michael without the threat of him having an episode during school.
    
44. On December 16, 1999, Mrs. Weathers took Michael off medication, believing that he had suffered severe and debilitating emotional damage as a result of the drugs and the negligent and reckless advice and actions of the defendants.
    
45. In a brief meeting with Dr. Zucci on the same day, Dr. Zucci again recommended Michael be hospitalized, stating without documentation that Michael may have “bi-polar” disorder because of his severe reaction to Dexedrine and Paxil.
    
46. On January 4, 2000, at a meeting attended by Mrs. Weathers, Michael’s grandmother Pat Mozer, Dr. Zucci, Fred Merz, Mrs. Robin, and Mrs. Tucker, Mr. Merz advised Mrs. Weathers that, in terms of rehabilitation, “We [the school and the staff, including teachers and social workers] have nothing more to offer Michael,” stating also that “a different placement was probably the best solution for Michael.”
    
47. Left with no option, Mrs. Weathers requested a homebound program to be put in place for Michael.
    
48. During that same meeting, Dr. Zucci contacted the director of the B.O.C.E.S. program, a program for children with severe mental challenges, and arranged a meeting with her and Mrs. Weathers for January 7, 2000.
    
49. On January 5, 2000, Mr. Merz proceeded to tell Mrs. Weathers that she would have to get a note from her pediatrician if she desired to have homebound instruction. In a conversation with Dr. Litpay that evening, Dr. Litpay agreed to call the school the next day on behalf of the Weathers.
    
50. On January 7, 2000, Mrs. Weathers and Michael’s grandmother, accompanied by Dr. Zucci, visited the B.O.C.E.S. program at the Hyde Park facility. They both decided that this particular program was not appropriate for Michael because the other students in the program had disabilities vastly different than Michael’s.
    
51. On January 12, 2000, Michael’s parents received a letter from Mr. Merz informing them that homebound instruction was approved and that the School District was going to provide the services.
    
52. On January 24, 2000, Michael began his first official homebound day with tutor Michael Kondor.
    
53. On January 28, 2000, Linda Beyer called Mrs. Weathers and informed her that she was stopping homebound instruction because Mr. Merz told her that the doctor’s note indicated psychiatric reasons for his absence and psychiatric reasons did not constitute medical reasons.
    
54. Millbrook’s own guidelines required it to provide homebound instruction for students who were unable to attend school due to emotional problems.
    
55. On February 8, 2000, Mrs. Weathers received another phone call from Linda Beyer, who was trying to have Mrs. Weathers join Linda Beyer and other school officials on the phone via tele-conference. Mrs. Weathers stated to Ms. Beyer that she had postponed this meeting via certified mail until all evaluations were complete. Ms. Beyer then threatened Mrs. Weathers by saying she would call Child Protective Services (CPS) on her and her husband.
    
56. That same day, Ms. Beyer called CPS, charging the parents with neglecting Michael’s medical and educational needs.
    
57. On February 9, CPS visited the Weathers’ residence and the lead investigator, Mr. Ronald Orlando, stated that Mrs. Weathers was keeping her son out of school illegally and that she and her husband, Roman Weathers, were neglecting Michael’s medical needs by refusing hospitalization and medication. Mrs. Weathers then produced a document by Dr. Debra Klinger-Rosenfield, who had evaluated Michael and had said that hospitalization was unnecessary in Michael’s case, and that Michael was not a danger to himself or to others. Upon receiving this evidence, the CPS representative left Michael in the custody of the Weathers.
    
58. In the report dated February 10, 2000, CPS informed the parents that they were running a full investigation based on the charges waged by the school.
    
59. On February 28, 2000, Michael began attending Duane Lake Academy, a private school as well as continuing to receive homeschool instruction.
    
60. In a letter dated February 10, 2000, Linda Beyer stated that a psychiatric evaluation must be done by February 22 or an impartial hearing would commence to compel the evaluation to be completed.
    
61. On March 17 and 18, 2000, Dr. Peter Breggin performed a psychiatric evaluation on Michael. Though the psychiatrist described him as “bright, sociable, and verbal,” he recognized Michael’s “[history of] severe mental disturbance and hallucinations,” as well as the occurrence of facial and bodily tics. Dr. Breggin attributed the psychotic disorder that Michael suffered through as one induced by Paxil. Dr. Breggin recommended that Michael attend a school with a smaller class size and a more individualized educational system, so that Michael could feel comfortable in a classroom setting.
    
62. Michael is now off medication and is receiving homebound instruction. His behavior and learning abilities appear to be normal, though Michael is still in need of continuing support from health and education professionals because of adverse reactions to the medications he was compelled to take because of the willful, negligent, and reckless actions of the defendants.
    

    COUNT I –Negligence
    Plaintiff v. Dr. Zucci, Beyer, Merz and Millbrook

63. . Plaintiff incorporates by reference all other paragraphs of this complaint as if fully set forth herein.
    
64. Defendants were negligent and/or reckless in demanding that Mrs. Weathers have her minor child Michael Mozer medicated by Dr. Speicher, without making independent investigation of the hazards attendant hereto, and while making representations of their competency to supervise the treatment of minor child Michael Mozer.
    
65. As a direct and proximate result of the negligence of Dr. Zucci, Beyer, Merz, and Millbrook, Michael Mozer suffered pain, discomfort, and extreme emotional damage.

    WHEREFORE, plaintiff demands judgment against defendants in an amount in excess of $75,000.00, plus interest and costs of suit and brings this action to recover same.

    COUNT II – Medical Malpractice
    Plaintiff v. Drs. Liptay, Speicher and Zucci

66. Plaintiff incorporates by reference all other paragraphs of this complaint as if fully set forth herein.
    
67. Defendants, Drs. Liptay, Specher and Zucci and each of them respectively, jointly and severally, by and through their separate and respective agents, servants, workmen, representatives, physicians, nurses, staff, contractors, medical personnel, medical assistants and employees were careless, negligent and reckless in
    1. failing to properly diagnose minor Plaintiff's condition;
       
    2. failing to properly and adequately evaluate minor plaintiff's condition;
       
    3. failing to perform proper and adequate testing for minor plaintiff's condition;
       
    4. failing to properly and adequately treat minor plaintiff's condition;
       
    5. failing to properly and adequately care for minor plaintiff's condition;
       
    6. failing to properly monitor minor plaintiff's medication and the dosages and amounts thereof for minor plaintiff's condition;
       
    7. failing to provide and afford proper and careful medical care and treatment to plaintiff's ward;
       
    8. failing to perform proper and careful medical practices and procedures upon minor plaintiff in accordance with the standards prevailing in the community in which defendants practiced at the time;
       
    9. failing to properly care for minor plaintiff's condition under all of the circumstances;
       
    10. caring for minor plaintiff in a negligent and improper manner;
        
    11. failing to properly monitor minor plaintiff's condition during the course of treatment performed by defendants;
        
    12. failing to inform Mrs. Weathers regarding the risks of treating minor plaintiff with methylphenidate and/or Dexedrine so as to afford Mrs. Weathers with the opportunity to make an informed decision on whether to prescribe the aforementioned medications;
        
    13. failing to inform Mrs. Weathers of the fact that the use of stimulant medication in children has been known to cause sever physical and physological impairments, including the injury occurred upon minor plaintiff, Michael Mozer;
        
    14. prescribing Paxil to minor plaintiff without the informed consent of Mrs. Weathers and without the approval from the FDA to prescribe Paxil for children such as minor plaintiff;
        
    15. failing to inform plaintiff that Paxil was not approved for treatment in children at the time the drug was prescribed for minor plaintiff;
        
    16. failing to inform the plaintiff regarding the fact that anti-psychotic drugs such as Paxil had been known to cause severe physical and psychological impairments including the injury occurred upon minor plaintiff, Michael Mozer.
        
    17. failing to properly and timely observe, discover, diagnose, treat and care for minor plaintiff's condition;
        
    18. failing to conform to the standard of care and treatment prevailing in the medical community in which defendants practiced at the time in administering medical care and treatment to minor plaintiff; and
        
    19. failing to exercise reasonable care under all of the circumstances, in accordance with the accepted practices and procedures in the medical community in which defendants practiced.

68. As a direct and proximate result of the carelessness, negligence, gross negligence and recklessness of defendants, as aforesaid, and each of them respectively, jointly and severally, by and through their separate and respective agents, servants, workmen, representatives, physicians, nurses, staff, contractors, medical personnel and employees, minor plaintiff, Michael Mozer, was caused to sustain serious, permanent and disabling personal and psychological injuries the full extent of which have yet to be determined; he has in the past been and may in the future continue to require medical care and treatment; he has in the past been and may in the future continue to be compelled to expend monies and incur obligations for his medical care, custodial care, maintenance and medical treatment; he has in the past suffered and may in the future continue to suffer agonizing aches, pains, mental anguish and emotional distress.

    WHEREFORE, plaintiff demands judgment against defendants in an amount in excess of $75,000.00, plus interest and costs of suit and brings this action to recover same.

    COUNT III – Violation of Constitutional Rights per 42 USC § 1983
    Plaintiff v. Millbrook, Dr. Zucci, Beyer and Merz

69. Plaintiff incorporates by reference all other paragraphs of this complaint as if fully set forth herein.
    
70. The actions of Millbrook, Dr. Zucci, Beyer, and Merz, taken under color of state law, resulted in the deprivation of the Constitutional rights of minor child Michael Mozer to personal liberty and bodily integrity without due process of law.
    
71. As a direct and proximate result of the actions of Millbrook, Dr. Zucci, Beyer, and Merz, Michael Mozer suffered pain, discomfort, and extreme emotional damage.

    WHEREFORE, plaintiff demands judgment against defendants in an amount in excess of $75,000.00, plus interest and costs of suit and brings this action to recover same.

    COUNT IV – Lack of Informed Consent
    Plaintiff v. All Defendants

72. Plaintiff incorporates by reference all other paragraphs of this complaint as if fully set forth herein.
    
73. Defendants recklessly and/or negligently medicated Michael Mozer without the informed consent of Michael or his mother.
    
74. The lack of informed consent includes, but is not limited to:
    1. failing to disclose to Mrs. Weathers the theoretical aspects of an ADHD diagnosis;
       
    2. failing to inform Mrs. Weathers that there is no scientific confirmation to ADHD as a “disease” that requires medication;
       
    3. failing to inform Mrs. Weathers of the subjective nature of an ADHD diagnosis;
       
    4. failing to inform Mrs. Weathers what reasonable alternatives were available and what the probable outcome would be in the absence of any treatment;
       
    5. failing to provide any kind of adequate behavioral treatment while medicating Michael;
       
    6. recommending to Mrs. Weathers that medical treatment was in Michael’s best therapeutic interest;
       
    7. failing to comprehend Michael’s regression as a product of his medication as opposed to an indication for stronger doses; and
       
    8. failing to offer a choice on whether to drug Michael without fear of reprisal.
75. As a direct and proximate result of the negligence of Millbrook, Dr. Zucci, Beyer, and Merz, Michael Mozer suffered pain, discomfort, and extreme emotional damage.
    
    WHEREFORE, plaintiff demands judgment against defendants in an amount in excess of $75,000.00, plus interest and costs of suit and brings this action to recover same.