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Turner Letter to Board of Regents Nov 19 2013

Turner Letter to Board of Regents Nov 19 2013

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Published by MarkingsonCase
Leigh Turner writes again to Board of Regents responding to letter from General Counsel William Donohue, dated November 19 2013
Leigh Turner writes again to Board of Regents responding to letter from General Counsel William Donohue, dated November 19 2013

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Published by: MarkingsonCase on Nov 20, 2013
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11/20/2013

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 November 19, 2013 Richard B. Beeson Chair of the Board University of Minnesota Board of Regents 600 McNamara Alumni Center 200 Oak Street S.E. Minneapolis, MN 55455
Re: The Office of the General Counsel Must Not Investigate Allegations of Research Misconduct
Dear Mr. Beeson: On November 11, 2013, I alerted you and other regents to possible new instances of psychiatric research misconduct at the University of Minnesota. In just the last week, two more individuals have reported they were mistreated while they were psychiatry patients under the care of University researchers. One of these individuals was featured in last weekend’s Fox9 KMSP investigative report into the death of Dan Markingson. Here is comment left by a former psychiatry patient who viewed Jeff Baillon’s report: I was just horrified after viewing the news program last evening airing on the Fox channel in the Twin Cities, MN. I could have been Dan Markingson or the other person that  preferred to be anonymous, as I had a very similar experience with Dr. Olson and Riverside hospital. I too was recruited for a drug study and the pressure to consent was enormous, and being extremely vulnerable at the time just added to the anxiety. Fortunately, I was able to arrange my discharge with help from my family and sought and received treatment elsewhere. I was visited everyday in my hospital room by a study staff coordinator, sometimes twice a day, and at least once everyday was pressured by Dr. Olson to enroll. I was not the only patient being harassed in this manner. This abuse has to be investigated. Such statements prompt many questions concerning how patients are being recruited into  psychiatric clinical trials at the University of Minnesota. Rather than respond to my letter or assign this task to someone capable of conducting a legitimate inquiry I instead received a reply from the University’s general counsel. But the general counsel has a fundamental conflict-of-interest. The Office of the General Counsel exists “to ensure the best  possible litigation outcomes” and “minimize legal problems” for the University. Its mission is “to represent the University in adversarial forums zealously” and “to protect the University’s legal
 
2 interests in all transactions.” When you refer to the general counsel complaints concerning possible research misconduct you direct them to someone employed to advocate for the university rather than to a body responsible for promoting justice, fairness, and truth regardless of whether the university’s interests are maximized. When cases go to trial the Office of the General Counsel litigates with the objective of having juries side with the University. To avoid going to trial, the Office of the General Counsel, or the outside legal counsel it retains, sometimes settles with plaintiffs. The goal when settling lawsuits is to do everything possible to reduce the cost to the University. Lawyers in the Office of the General Counsel take pride in the “savings” they generate for the University. This mindset is understandable given the adversarial role the Office of the General Counsel plays in representing the University’s interests. However, what is best for the University often is not what is best for Minnesotans claiming that they are victims of wrongdoing. What is striking about the University of Minnesota is the routine manner in which allegations of research misconduct are routed straight to the general counsel. When Mike Howard wrote to the Board of Regents and filed complaints against Stephen Olson and Charles Schulz, his complaints were “investigated” and dismissed by the University’s former general counsel, Mark Rotenberg. When Professor Elliott and I along with six other faculty members urged members of the Board of Regents to investigate the death of Dan Markingson, Mark Rotenberg briefed the Board and then wrote a dismissive reply to our request. When Professor Elliott filed a complaint with the University’s Research Integrity Officer and requested that she not contact lawyers in the Office of General Counsel, she ignored his plea and forwarded his complaint to a lawyer in the Office of General Counsel. Mark Rotenberg then dismissed Elliott’s request. When I contacted President Kaler and urged him to support an independent investigation of Markingson’s death, President Kaler refused to support such an investigation and then forwarded my request to Mark Rotenberg’s replacement, William Donohue. Likewise, when Professor Lemmens and over 170 academics wrote to the Faculty Senate and called for an independent inquiry into Markingson’s suicide the respondent was the general counsel. When I wrote to you and reported possible instances of  psychiatric research misconduct I received a response from the general counsel. Given the manner in which all requests to investigate the death of Dan Markingson and allegations of research misconduct are funneled to the general counsel, it is obvious that this University is refusing to conduct fair and legitimate investigations of possible instances of research misconduct. Instead, it is forwarding such complaints to a highly partisan employee. Members of the Board of Regents, President Kaler, and additional senior administrators then claim that the general counsel’s “investigations” are somehow definitive even though they consist of little more than superficial appeals to authority. For example, on numerous occasions the general counsel has claimed that the University was “properly evaluated” by the Food and Drug Administration. He never acknowledges or addresses significant flaws in the Establishment Inspection Report prepared by the FDA investigator. The General Counsel has also claimed that the University was “investigated” by the Minnesota Board of Medical Practice. This board does not investigate institutions and their research governance structures. Likewise, the University’s previous general counsel claimed that Minnesota’s Attorney General investigated the University. The Attorney General’s Office conducted no such
 
3 investigation. In making such appeals to authority—appeals that are profoundly misleading because they refer to investigations that either did not occur or failed to examine institutional governance of human subjects research—the general counsel functions as an apologist for the University. Mr. Donohue’s function as lead apologist for the University is nowhere more evident than in his account of Dan Markingson’s capacity to provide informed consent to participate in the CAFÉ study. Mr. Donohue insists that Dan Markingson was competent to consent to participation in the CAFÉ study. But the evidence strongly suggests that this is untrue. For example, on November 14, 2003, an Examiner’s Statement in Support of Petition for Commitment prepared by Dr. Stephen Olson, Dan Markingson’s treating psychiatrist, documented that Markingson lacked insight, did not believe he had a mental illness, and “lacks the capacity to make decisions regarding such treatment.” Olson’s statement also noted that Markingson was delusional, had threatened to kill his mother, and believed he was supposed to attend a Satanic cult gathering at which he would be asked to kill others “for the greater good.” Also that same day, the Director of Behavioral Services at Fairview-University Medical Center petitioned to have Markingson committed to a treatment facility. On November 17, 2003 a Pre-Petition Screening Program Report stated that Markingson “is  believed not to have the capacity to make decisions regarding Neuroleptic medications.” It noted that Markingson did not acknowledge a mental illness as the cause of his “bizarre beliefs.” The report also stated, “He has had delusional thinking and beliefs. He allegedly made threats to slit his mother’s throat and he stated he may be asked to kill people as part of a satanic ritual and he stated that he was prepared to do so. He lacks insight to attribute these delusions to a mental illness and receive treatment.” Two days later, on November 19, 2003, James L. Jacobson, PhD, completed an Examiner’s Report. He reported that Markingson suffered from “a substantial Disorder of Thought, Mood, Perception, Orientation, Memory.” In response to the question, “Is there a Gross Impairment of Judgment, Behavior, Capacity to Recognize Reality, Capacity to Reason or Understand?”, Jacobson wrote, “Yes”. On November 20, 2003, the Dakota County District Court determined that Dan Markingson was mentally ill and in need of treatment. The court had him committed to the Anoka Metro Regional Treatment Center. While the commitment was stayed under a series of conditions, there is no indication that the Dakota County District Court understood that the following day Markingson would be asked to consent to participate in a research study instead of being entered into the treatment plan mentioned in the order for stayed commitment. Given repeated findings that Markingson lacked capacity to make informed decisions about his illness and the medications best-suited for his psychiatric condition, combined with the failure of Markingson’s treating physician to inform the court that he sought to enroll him as a consenting subject in a clinical study, there is good reason to argue that an independent investigation of Dan Markingson’s death must include careful scrutiny of his capacity to make health-related decisions  both before and while he was a research subject in the CAFÉ study.

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