Potential for ECT Lawsuits Opens Up in California

     Electroconvulsive therapy device manufacturers like Thymatron do include a written warning with their equipment about the risk of permanent memory loss or permanent brain damage from its use. Their warning also includes the risk of severe cardiac problems.

     If such risks are acknowledged by the manufacturers to be real, and there are patients who have suffered these damages, why aren’t the manufacturers or the ECT prescribing doctors sued more often for causing permanent brain damage or memory loss?

     It is because legally in America the manufacturers of the ECT devices, which are prescribed for patients by psychiatrists and doctors, are protected by the “learned intermediary rule” from having to disclose these risks directly to patients. Instead, the manufacturers only need inform physicians of these risks. Therefore they cannot be sued by patients who have been damaged by ECT.

     Consequently, there have been few lawsuits altogether from ECT patients and even fewer successful ones.

     A 1971 Cornell Law School report noted that during the five-year period from 1964 to 1968, fractures of the vertebrae, one hip fracture, cardiac arrhythmia, slight burns, and sudden death had occurred during ECT sessions. Not one lawsuit was discharged during those years, but a few out of court settlements may have occurred but not been reported.

     Another review was done on 1,700 psychiatric malpractice claims filed from 1984 to 1990. Only 22 of those cases involved electroconvulsive therapy. Four of those cases had complaints that noted damaging side effects or complications from ECT or the inappropriateness of the prescription for ECT in the first place by the psychiatrist. No lawsuit resulted in awarding any damages.

     Another analysis of claims against psychiatrists associated with the American Psychiatric Association’s insurance program found that between 1972 and 1983, patients prevailed in 7 of only 17 ECT cases, and those were through settlements made beforehand out of court, not through any jury trial judgments.

     In 2006 one lawsuit over ECT was also settled out of court in South Carolina by a 55 year old woman who had lost all memory of the previous thirty years of her life after receiving ECT. She alleged that her psychiatrist had been negligent in not informing the doctor who administered the therapy about her previous memory problems. She then received ECT daily for 10 consecutive days. She ended up settling for a mere $18,000, rather than risk losing the case in a jury trial.

     More recently, a 2018 class-action suit in California against manufacturers for failing to report adverse events to the FDA was settled out of court on the eve of the trial. In 2021 ECT device manufacturer MECTA filed for bankruptcy to escape litigation before an ECT damage suit against them could go to trial.

     Because ECT is such an unregulated industry – the FDA refuses to rule on it because it is the “practice of medicine – there are virtually no delivery standards that exist which can be proven in court to have been violated.

     ECT litigation is therefore a long sad history of patients who merited compensation for their memory loss, cognitive impairment, or cardiac problems from ECT, but who have been denied any real legal recourse for their suffering.

     In 2024, however, the California Supreme court ruled that a patient can sue the manufacturer when their doctor has not been adequately warned by the manufacturer of these risks, and the doctor has therefore not passed those risks on to the patient as part of applying informed consent law. If the doctor does not know, the patient does not know, and that’s the fault of the manufacturer, not the doctor.

     Therefore, in California the manufacturer can now be sued if they have been negligent in informing the doctor of the dangers from receiving ECT from one of their devices.

     Just one state, just one law, but it is a start.