Side Effects: A Prosecutor, a Whistleblower, and a Bestselling Antidepressant on Trial

by Alison Bass

  DRIVING INTO BOSTON the next morning for the second day of his deposition, Teicher wondered just how coincidental Bev's job opportunity really was. But now, sitting at the polished cherry conference table as his deposition dragged into its thirteenth hour, he was too busy concentrating on not saying the wrong thing to think about the prospect of his ex-wife and children moving to Indianapolis. Gussack's next question brought him up short.

  "Sir, you mentioned yesterday you have been sued for malpractice. Is that correct?" Gussack asked.

  "Yes," Teicher replied, feeling a prickle of unease.

  "On one occasion, the malpractice suit was brought by patient number six in your case series. Is that correct?"

  Teicher's mouth felt dry. Patient number 6, a private patient of his during the 1980s, had been hospitalized numerous times with borderline personality disorder and a serious substance-abuse problem. From what this patient herself had told him, Teicher also suspected that as a child, she had been drugged and sexually abused by her father.

  Teicher had included this patient as the sixth case in his now-famous Prozac case study. It was a mistake he soon came to regret. A few years later, she sued Teicher for malpractice, alleging that he'd had sex with her on numerous occasions. She also wrote to the Massachusetts Board of Registration in Medicine, prompting an investigation. The board decided her allegations had no merit and closed the complaint against Teicher in 1993. But some months later, an investigative series in the Boston Globe (which I was not involved in) accused the state board of being too lax in disciplining doctors; the newspaper article included the allegations against Teicher as one example. Shortly afterward, the medical board felt compelled to reopen its investigation of the complaint against Teicher, and the case was still pending. Andrew Greenwald, Greer's attorney, had warned Teicher that Lilly's attorneys might bring up the complaint during his deposition. And now here it was.

  As Teicher gathered himself to reply to Gussack's question, Greenwald spoke up.

  "Objection!"

  The two attorneys sparred for several minutes, leaving Teicher to wonder if this was when things got rocky.

  Finally Gussack continued: "Now, patient number 6 was a patient of yours for what, six years?"

  Teicher looked at Greenwald, who nodded. They had discussed what Teicher should say if the defense attorney started asking about patient number 6.

  "I'm happy to discuss what's here in the case study [from the Prozac paper], what's here in these notes," Teicher said. "My attorney, Mr. William Daley, has instructed me not to discuss any details of the [board of medicine] case" Daley, who couldn't attend the deposition, said it was too risky to discuss patient 6 in much detail because Teicher's board complaint was still under review.

  Gussack was having none of it. She continued to press Teicher for details that were not part of the 1990 case study he'd written up for the American Journal of Psychiatry. And Teicher continued to respond that he couldn't talk about it. Every now and then, the Lilly attorney would slip in a question that Teicher could answer because it pertained to his case study notes about patient number 6. But then she would interject a question that he didn't remember from the case study, and Teicher would frantically scan the notes in front of him before telling her he couldn't discuss it.

  At one point, Gussack threatened to go in front of the judge and seek an order compelling Teicher to answer her questions. "And I am going to ask that [Teicher] be compelled at his own expense, paying for my costs incurred in returning for these questions," she added.

  Greenwald took issue with this, concluding, "That is, I think, a kind of unfair threat."

  Gussack smoothly replied that she was not threatening, simply stating her intent. She continued asking Teicher questions he couldn't answer, and as he repeated, "I am unwilling to answer that," again and again, he wondered how long this cat-and-mouse game would go on. It was after 5 p.m. and he had a pounding headache. But the Lilly attorney was far from finished.

  "Now, Doctor, it is true, isn't it, that in the course of the malpractice suit ... patient number 6 alleges that you had sexual relations with her starting in the fall of 1984. Correct?"

  "I am unwilling to answer that."

  "And she further testified, sir, didn't she, that you had sexual relations with her at the Battle Green Hotel. Correct?"

  "I am unwilling to answer that."

  "Doctor, are you denying those allegations?"

  Greenwald interjected, "This is an unfair question. The man has said on advice of counsel he is not going to discuss anything except what's in the papers that he has produced"

  But the Lilly attorney would not let it go.

  "It is true, isn't it, that ... patient number 6 in this lawsuit testified that sexual relations occurred between you on multiple times. Correct?"

  In one dim corner of his brain, Teicher realized that Gussack was trying to wear him down. Her questions were like Chinese water torture. He felt like shouting, Enough, I'll say anything you want, just stop! But he couldn't; that was precisely what she wanted him to do.

  "She testified, didn't she, sir, that on three or four occasions she had sexual relations with you at your home. Correct?"

  "Unwilling to answer on the advice of counsel."

  "Doctor, you are aware, aren't you, that patient number 6 has alleged that she engaged in oral sex, intercourse, and anal intercourse with you on a number of occasions?"

  "I am unwilling to answer on the advice of counsel."

  "I still have my continuing objections, right?" Greenwald interjected.

  "Sir, is it accurate that considering the office visits patient number 6 had with you between 1984 and 1990, some sixty-five to seventy percent of those visits you engaged in sexual relations with patient number 6?"

  Drip, drip, drip: Teicher thought he might go out of his mind. He wanted nothing more than to set the record straight. But if he answered Gussack, even to deny his former patient's allegations, he knew it would make the whole subject admissible in court. In his response to the state board of medicine's complaint, Teicher had acknowledged that he signed birthday cards to this patient, "Love, Marty," and had given her a $3.50 pair of earrings as a birthday present, all to keep her spirits up and show her that he cared. He also acknowledged that he had allowed her to come to his home once when she was in crisis. Teicher would later admit that he made "some serious errors of judgment" in a misguided attempt to keep a suicidal patient alive. But he said he did not have sexual relations with her.

  WHILE THERE is no way to know for sure what happened between Marty Teicher and his patient, a close reading of the medical board's documents indicates that Teicher is telling the truth. At the time Teicher's patient filed her complaint with the Massachusetts Board of Medicine in the early 1990s, the state agency was under a lot of pressure from the local media to discipline doctors charged with sexual misconduct. And many of these cases were indeed heinous, with the same doctor taking advantage of multiple female patients in a twisted exercise of power and lust.

  The complaint against Teicher, however, seems more akin to another highly publicized case in which a female psychiatrist, Margaret Bean-Bayog, stood accused of having sex with a young male patient of hers. Paul Lozano, a bright but tormented young man, had come from a humble Mexican American family in Texas and had gone on to Harvard Medical School, where he killed himself while under Dr. Bean-Bayog's care. His family sued Bean-Bayog for wrongful death in 1992. From covering that story and reading hundreds of pages of medical notes and records, it became apparent to me that Lozano had been sexually abused as a young child and was deeply troubled long before he met Margaret Bean-Bayog. While Bean-Bayog may have become overly involved on an emotional level with Lozano, there is no evidence that she had sexual relations with him. Similarly, there is no evidence that Teicher had sex with his patient.

  As a young psychiatrist out to make a name for himself, Martin Teicher was a risk taker, someone who cared deeply about his patients, too deeply so
metimes. He may have overstepped the proper boundaries of psychiatric conduct, the rules that discourage therapists from socializing with their patients and giving them gifts. But Teicher did so for the same reason Bean-Bayog had-to try to keep a deeply troubled, suicidal patient alive.

  So where did the allegations of sexual misconduct come from? you might ask. In the case of Teicher's former patient, they may have grown out of a process that occurs in psychotherapy, known as transference. In transference, patients commonly transfer the mixed-up feelings of anger, desire, hatred, and love that they have felt for important family figures to their therapist. Teicher's patient may have confounded her father with her psychiatrist in remembering the sexual abuse she had suffered as a child. Patients rarely make up allegations of sexual misconduct, but it sometimes happens. And when it does, it is most likely to occur in patients who, like Teicher's patient, are extremely troubled and have developed borderline personality disorder or multiple personalities to cope with unforgivable childhood trauma. There may also have been financial incentives involved. As the medical board documents reveal, Teicher's former patient and her husband, a carpenter, were in severe financial straits during this period and thus perfect targets for personal injury attorneys who make a handsome living from suing physicians for malpractice. Andrew Meyer, the lawyer who represented both the Lozano family and Teicher's patient, was a controversial figure in Boston media circles at the time. In 1992, Meyer was sued by another physician, an obstetrician, for defamation, libel, and malicious prosecution in connection with his handling of two malpractice suits against her. The physician accused Meyer of libeling her in a letter he sent to her employer, a medical school in Hawaii, after she refused to settle either of his malpractice suits against her. (One of the lawsuits was dismissed as "frivolous" by a Massachusetts Superior Court judge, and the other resulted in a mistrial.) There are some who say that Meyer's handling of the wrongful death suit against Bean-Bayog was also questionable. In garnering publicity for the case, Meyer provided reporters with selectively chosen salacious passages from the psychiatrist's own notes that made it appear as though she had had sex with Lozano. In August 1992, Bean-Bayog resigned her medical license rather than face what was rapidly becoming a media circus (reporters from magazines like People and Vanity Fair were planning to descend on Boston for the hearing, and the board had already agreed to allow television cameras and move the hearing from a small room in its downtown Boston offices to a huge auditorium nearby). Margaret Bean-Bayog never recovered from the ordeal and died of leukemia in 2006.

  Teicher later acknowledged that the publicity surrounding BeanBayog's case weighed heavily in the decision to settle his own malpractice suit a few years later. But her sad fate was hardly uppermost in his mind that afternoon in October 1996, as Nina Gussack pounded him with questions about his own conduct. Teicher was simply trying to keep to the script he and his attorney had decided upon. Yet it bothered him enormously that he couldn't respond to Gussack's assault. He couldn't explain that his former patient had spun an ever bigger castle of lies out of air.

  At some point, Teicher realized that Gussack probably understood this. But she kept attacking him, each question a battering ram against his weakening sense of dignity and self-respect. In a haze, he heard Greenwald saying, "Nina, I think this is really at this point getting kind of oppressive and harassing. I understand you want to put questions on the record, but you've been doing this for over an hour. . ."

  But she wouldn't stop. Teicher was reduced to muttering, "Unwilling to answer." Finally, at 6:22 p.m., Gussack asked for a two-minute break to see if she had any other questions for him. When they came back, Gussack asked a few more general queries about borderline personality disorder and the effects of Prozac on the brain, and then she announced she was suspending the deposition and intended to go before Judge Penn to seek an order to compel Teicher to answer questions about the board of medicine case. As it turned out, that third round of questioning would never take place, but it didn't matter. By the time Martin Teicher walked out of the downtown law office that evening, one of the preeminent experts on SSRIs in the United States had sworn that he would never testify in a civil suit again.

  he morning of July 1, 2004, Rose Firestein dragged herself to work. Could it have been only yesterday that her boss, Tom Conway, had issued his ultimatum to GlaxoSmithKline? It seemed to Firestein as if it had been an eternity since Conway had walked out on the drug company's attorneys, his stunned colleagues having no choice but to follow suit. Firestein had not slept much that night. Lying awake under a blanket of humid air, her thoughts kept circling back to the same question: had Conway thrown away their one chance of settling with Glaxo? Even Shirley Stark, a staunch loyalist who had worked with Conway for years, confided that she too feared that their boss's brinkmanship might backfire.

  Firestein certainly understood Conway's motives for abruptly ending the talks. But she feared that GlaxoSmithKline might now decide to fight fire with fire. At the very least, its attorneys might file to remove the case to federal court. And once it was in federal court, all bets were off. Not only were federal judges not as familiar with New York's inclusive statute on consumer fraud, but they might also be more likely to object to a state attorney general's delving into issues of drug safety. After all, that was an area long considered the turf of the federal Food and Drug Administration.

  Having being involved in several large class action suits against state agencies, Firestein knew that the practice of medicine, which included the dispensing of drug prescriptions, was regulated by the states and was thus under each state attorney general's purview. But a federal judge might not so readily grasp that. And once the case was removed to federal court, it could be bundled together with similar actions in other states. New York's prosecutors would lose all control over it, as they had on other cases removed to federal court. In addition, such bundled cases tended to take forever. The last thing Firestein wanted was a long-drawn-out battle with GlaxoSmithKline in federal court.

  AN EARLY RISER, Firestein was usually the first to arrive in the consumer bureau, by seven or eight at the latest. Stark would come in soon after. Tom Conway, who commuted by train to Manhattan from Albany two or three times a week, would lope in a little after nine. By then, the secretaries and summer law interns Conway called them the "kids"-had shown up.

  This morning, Stark was already there. Her office was two doors down, and shortly after Firestein settled down at her desk, Stark popped her head into her colleague's office.

  "Any word from Wick?" Stark asked.

  With his Brahmin background, the lead defense attorney for GlaxoSmithKline hailed from a world far removed from Firestein and her Brooklyn walk-up. But she had worked with Wick before on the average wholesale pricing case and found him to be a genuinely nice guy, the kind of adversary who would not twist anything you said privately into grist for a legal attack. After twenty years of battling bureaucratic and corporate malfeasance in numerous states, Firestein knew Wick's sense of honor to be a rare attribute indeed.

  She shook her head. "Nothing yet"

  "Darn," Stark said, and retreated back into her office.

  Two hours later, Tom Conway called from Albany. Tall, with a prominent nose, a generous mouth, and crisp white hair, Conway had been with the AG's office for eighteen years. That made him and Stark, who had been there twenty years, "career" attorneys, as opposed to the newcomers brought in by Spitzer when he entered office in 1999. But Spitzer had been good to Conway-the new AG had promoted him to bureau chief of the twenty-attorney consumer bureau shortly after his arrival-and Conway admired his boss's derring-do. Spitzer may have started out as the scion of a wealthy New York real estate developer, but the Harvard Law School graduate had substantially expanded the mandate of the attorney general's office to take on corporate behemoths in the name of the little guy. To longtime public servants like Conway and Stark, it was clear that although Spitzer may have come to the AG's office by a different
route, their leader had gone into law for much the same reasons they had.

  Like Rose Firestein, Conway and Stark had both landed at 120 Broadway after stints with the Legal Aid Society of New York. During Firestein's interview for the job, Conway asked Firestein about her work for Legal Aid, and Firestein mentioned her part in the mammoth lawsuit against New York City and its Department of Social Services. Legal Aid had prevailed in the Doe case-at least for the moment. The judge hearing the case had issued a contempt order, holding the city's Social Services Department liable for huge fines until it improved conditions in its field offices and did a better job of providing permanent placements for the foster children in its custody. From the vantage point of hindsight, however, Firestein wasn't sure that Doe had really succeeded in improving the lives of New York City's abandoned children. The needs of New York's poor were so vast, their problems so insurmountable, that Firestein felt that she and all the other overworked attorneys for Legal Aid who came before and after her were like that little Dutch boy holding his finger in the dike in a vain attempt to hold back the deluge.

  Conway, however, had seemed impressed. Firestein left 120 Broadway the day of her interview thinking she might just have an inside track on the job. She was right.

  Now a bona fide member of Spitzer's team, Firestein liked to refer to herself and the two other Legal Aid alumni on the third floor as "professional do-gooders "" She was only half-joking. Conway and Stark, she felt, were genuinely caring people. Shirley Stark would give you the shirt off her back if she thought it would help. And despite his sometimes brusque tone, Conway had an uncanny knack for knowing when to break the ice with a funny story or a joke. When he laughed, his grin stretched wide across his face, wrinkling up the sides of his eyes. True, the head of the consumer protection bureau could be a hard sell at times. He was a stickler for legal facts and seemed to delight in the Socratic method of debate. Nothing escaped his notice, no detail or nuance was too small to be pounced upon. Yet once Conway bought into your legal argument, he was a rock of support.