When is a forensic psychiatrist or psychologist’s opinion needed?
By Beryl Vaughan
Here’s the gist: an allegation is made in a lawsuit claiming a triggering event caused, led to, or exacerbated a mental health condition. Drawing on my observations, I’ve found familiar themes. As a legal question, I defer you to an attorney. Here are some tips:
Word watch: emotional distress, unintentional or intentional emotional distress, pain and suffering, intentional tort, mental competency, incapacity, psychiatric disability, mentally unfit, psychiatric damages.
“Ever since the motor vehicle accident I’ve been depressed.”
“Watching the accident was horrifying. Now I’m scared all the time, afraid to go out. I think I have PTSD.”
“Because of the accident, I’ve had a lot of surgery. I’m in pain all the time. Nothing helps. I can’t cope.”
“Medication and therapy successfully controlled my Bipolar Disorder for years. Ever since this happened, it’s much worse and my medication isn’t making any difference. The whole thing is wrecking my life.”
“Mom rewrote her will 10 days before she died. The nurse said she didn’t even know what day it was. We wanted to visit her in the hospital but [litigant] always turned us away and said she was too tired to talk.” [NB: The psychiatrist, a licensed physician, is qualified to consider medical records about a range of health conditions, and treatment history.]”
“Really? Do you think it was a bad decision? I don’t think I did anything risky. It isn’t my fault these things happen to me.”
“No matter how nice I am, people just treat me badly. I know they are talking about me behind my back. I feel victimized. I have to protect myself.”
Emotional Distress is a common catch-all in litigation. It is not “proven,” it is assessed and described by a forensic expert qualified to render an expert opinion. Not every forensic psychiatrist or psychologist is skilled and experienced to address the nuances of every claim. The DSM5 is large enough to make the point. (Attorneys, if you aren’t familiar with the DSM5 you should look it up. It is the “bible” of diagnosis.)
All parties need to be on the alert for armchair psychologists, some of whom have a license to practice law. Just about everyone feels qualified to speculate about the reasons for another person’s struggle. It’s America’s new past time.
Attorneys: if you are settling into that armchair, it means there’s a red flag. You will have to act on it to best represent your client. You need a forensic expert in psychiatry or psychology qualified to make an accurate assessment, including a diagnosis free of speculation.
A forensic expert witness of any kind conducts an assessment with best-practices backed up by training and credentials–the opposite of the “armchair.” Further, the forensic expert is trained to render a forensic opinion to specific legal thresholds, varying venue to venue. An attorney needs an expert whose methods and opinions can withstand scrutiny, which we can assume opposing counsel will provide. (Check out more at “Readworthy” and specifically AAPL Practice Guidelines for the Forensic Assessment).
The specialist’s specialist
As the primary point of contact with an attorney, if you see the need for adjunct specialists, speak up. Explain to the attorney why it’s important to include these specialists:
Neuropsychologist, to conduct neuropsychological testing.
Neurologist, especially important if brain damage is an issue.
Psychologist, if you are a psychiatrist.
Psychiatrist, if you are a psychologist.
Psychopharmacologist when drug interactions are important, both prescribed and illicit.
Doctor that treats complication conditions, such as a cardiologist or internist.
Opposing counsel’s expert.
We’re back to that Rosetta Stone. The attorney will need to know why and what methods meet the Daubert standard. This is especially true of the expert acquiring scientifically sound data, such as the neuropsychologist’s measurements and skilled interpretation of results.
When the only existing information resides in medical records, don’t get caught in a common trap: rendering an opinion about a medical condition out of your area of expertise. For example, as a physician, a psychiatrist is qualified to interpret medical records that a psychologist is not. A psychologist I know wanted to let attorneys know he could read radiology films which, though it might be true, is not something he is licensed to do.
Psychiatry and psychology are sometimes used interchangeably by attorneys. Educating attorneys about what you are skilled and licensed to do is a priority for you.