When is a forensic opinion needed from a physician specialist, psychiatrist or psychologist?

Typical Cases and the Factors that Drive Expert Witness Retention

These examples speak to medicine and psychology, demonstrated with cases involving mental health/emotional distress claims. Forensic Psychiatrists and Psychologists are the primary examiners in the latter.

Whatever your specialty, there is something here applicable to you.

Order of Operations

Trigger.  An allegation is made in a lawsuit claiming a triggering event like a car crash, slip and fall, or in the case of medical malpractice, perhaps therapist malfeasance, surgical error, diagnostic error, treatment error, or breach of the standard of care.

The trigger leads to filing a lawsuit. Plaintiff alleges something happened, it is someone in particular’s fault and the plaintiff is suffering as a result.

An insurance company might be the defendant if insurance coverage will pay the bill. A business might be the defendant if it is alleged they did not properly provide a safe environment, such as in slip and fall cases, or workplace cases. A person is usually one of the defendants because lawsuits are filed against any and all who are conceivably held responsible. E.g. a driver, the driver’s insurer, the driver’s employer if they were driving while at work, and the employer’s insurer.

Allegations and Claims

When is someone like you needed?

Example: A claim is made for damages (recompense) for pain and suffering or emotional distress. This might call for an expert witness in Forensic Psychiatry, Forensic Psychology, and/or Pain Medicine.

A combination of medical experts might be needed when multiple medical conditions are impacted, like the diabetes/depression scenario described below.

Causation

Damages experts might be asked to opine about causation and fault. Fault is really a liability issue and is decided by the courts. If the jury is persuaded by a plausible explanation of the injury and its cause, they are asked to assign fault and award damages.

Outline of the legal questions:

• Did someone do something wrong and what was it, i.e. the tort? You aren’t expected to understand tort law or even know if there was wrongdoing. You weren’t there and might not think it’s your call. That would be inaccurate.
• Was someone hurt as a result?
• Causation opinions are the result of logic, reason, and technical knowledge.  E.g., we can use a timeline of health before, during, and after a triggering event. E.g. a healthy person visits a store. Something heavy falls on them and they are rushed to the hospital with a broken leg. They are later released from the hospital and spend months in a cast. It is likely the broken leg was related to the item falling on them. The medical records will confirm if the leg was ever broken previously or immediately before something fell on them at the store. If it was not, it is more likely than not that the triggering event caused the injury.
• Whose fault is it? If the judge or jury decides it is the defendant’s fault:
• What does it cost for the plaintiff to be restored to their pre-injury level of health, or is that even possible?

The role of a medical expert witness is to

(1) Examine and determine if there is an injury.

(2) Ascertain if it was pre-existing or unrelated to the triggering event. Might the injury have made another injury worse? If so, remuneration might be greater.

Scenario 1: a person with depression is under control with a medication regimen. A wound from an accident has (it is alleged) changed the efficacy of the medication or altered the condition for the worse.

Scenario 2: An internist or endocrinologist could address if a wound from a physical accident would be harder to treat and have a more expensive and dire outcome in a person with diabetes. If the wound has healed by the time the expert witness conducts the examination, their findings are unlikely “the wound isn’t healing” or “the wound will be hard to treat.”

Damages

(4) What is the degree of injury, treatment plan, prognosis, and likely cost.

Appropriate Specialty

Pain and Suffering / Emotional Distress. Pain and Suffering is manifested psychologically, perhaps in the form of clinical Depression or Anxiety.

Pre-Existing Condition. An existing condition escalates after a traumatic experience.

Application Example: An injury led to, or exacerbated, a mental health condition and/or a different medical condition, especially if psychological stress negatively impacts the body’s recovery or response to stress.

Malingering. Malingering (lying for secondary gain) is suspected in the presentation of a mental condition or mental defense (incompetent to stand trial, for example).

Medical Malpractice and Standard of Care

Medical expert witnesses report these are the cases for which they are most often approached.

Attorneys don’t always know the specialty of the expert witness in such a case. It might seem obvious to them that they should retain an expert in the same field as the doctor who alleged to be responsible for the medical malpractice. But a broad shared specialty could be insufficient.

A cardiologist might not be the appropriate expert if the case revolves around heart surgery. A psychologist who conducted research about domestic abuse might not be the appropriate expert in a domestic abuse case.

An excellent article “Expert Witness” (Ronquillo, Robertson, et al.) in StatPearls describes the medical expert’s role, obligations and excellent sample of cases, especially medical malpractice cases.

There are thousands of variations on cases. These, however, describe the most common type of scenario addressed by a Psych Expert Witness.

Damages

Two Damages Scenarios: “Hurt” can be financial in probate cases where, for example, a brain injury changed the testator’s competency. In a surgical error case, if multiple high-risk surgeries are needed to repair the injury, the stakes are higher and the best-qualified expert witness is crucial.

Factors that Call for an Expert Witness

For Attorneys and Psych Experts. Here’s how you know an expert witness is needed:

Word watch:

• Emotional distress
• Intentional infliction of pain and suffering
• Intentional tort
• Mental competency, incapacity, psychiatric disability
• Mentally unfit
• Psychiatric damages
• Competency
• Capacity

Examples:

“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.”

“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 am the victim here. I have to protect myself.”

Emotional Distress

Emotional Distress is a common catch-all in litigation.

Emotional Distress is not “proven.” Instead, it is assessed and described by a qualified forensic expert in the appropriate field.

The DSM5TR is large enough to make the point.

The Attorney Making a Diagnosis: Armchair Psychologist

All parties need to be on the alert for armchair psychologists, some of whom are licensed to practice law but not medicine. Just about everyone feels qualified to speculate about the reasons for another person’s struggle. It’s America’s past-time.

The armchair diagnosis can open the conversation and drive the attorney’s search process even if it is inaccurate.

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 to make an accurate assessment, including a diagnosis free of speculation.

Attorneys notoriously characterize – define – the plaintiff’s injuries when they first call an expert. Obviously, they don’t see it as diagnostic.

Similarly, when a patient comes to you and begins “I have heartburn”, you, as a physician, do not assume it is heartburn. But the statement leads you into a conversation about the “heartburn” symptoms. E.g., maybe it is GERD or maybe it is angina.

PTSD is a notorious armchair diagnosis.

PTSD has come to mean, in popular parlance, anything that is especially unpleasant or stressful. In reality, PTSD is diagnosed only after a rigorous exam and 8 different symptom criteria are described in the DSM5TR.

Experts Replace Lay Diagnoses with Medical Diagnoses

The expert witness must move the attorney out of the armchair and into the real world of scientific, medical and psychological knowledge.

Investigation as a Scientist

You explain your credibly-informed diagnosis by relying on, generally, examination including an IME, review of records, interviews, and a thorough report of your conclusions and how you arrived at them.

Communicating the Science

This is the value of a qualified expert witness. Translating technical knowledge is the basis of expert testimony.

A “Fact Expert” addresses a condition or treatment in a general fashion such as describing for the jury what is cancer and how is cancer usually treated.

Unlike a Fact Expert, an examining expert conducts the thorough investigation described above and their findings must meet specific legal thresholds such as  reasonable medical probability.

Once your assessment is complete, testimony at deposition is the next step. You are speaking to an attorney. Testimony at trial is different in that you are describing your findings to a Judge or Jury. Testimony at trial is unusual because most cases settle before trial.

Withstanding Scrutiny

Assume opposing counsel will try and discredit you. The armchair can open the conversation and drive the attorney’s search process but it is not particularly relevant. Check out AAPL Practice Guidelines for the Forensic Assessment).

The Specialist’s Specialist: Teaming with Other Experts

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 and interpret the results.²
• Neurologist, especially important if brain damage is an issue and the imaging and background that lead to findings.
• 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 a condition that is complicating the evaluation such co-occurring injuries, or preexisting condition.

An Off-the-Record Role: Opposing Counsel’s Expert

The attorney will need to know why and how another expert reached conclusions, and if their methods meet the Daubert standard and are well-reasoned. Ultimatley, they want to know the weaknesses of another expert so they can discredit them in trial or cast doubt on that person’s conclusions. They might decide to hire their own expert witness if they are convinced that a different voice should weigh-in.

They would retain an expert either as an officially disclosed and testifying expert witness, or as a private consultant who is not expected to testify.

That person can help determine if another expert’s findings are reasonable and the person’s qualifications suitable to the question posed to them.

Sometimes you will agree and sometimes you won’t.

Medical Records Review by the Appropriate Expert: Word of Warning

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. E.g., a psychologist reported his interpretation of radiology films. He was proud he accurately delved into medicine. Though his interpretation might be true, it is not something he is licensed to do. He would be easily discredited or even disqualified.

This goes on a permanent record and, even if the disqualification is thrown out by the judge, can be a negative mark–if you don’t explain the reasons to any retaining attorney.

Psychiatry vs. Psychology vs. Doctor vs. NP vs. ….

Psychiatry and psychology are sometimes used interchangeably or inaccurately.

There is less confusion about other specialties, though the degree of training or significance of Board-Certification is not always clear to attorneys.

Expect to spend your first or second conversation with the attorney to be about the nature of their case and if you are the correct specialist given the preliminary features, symptoms, injuries and facts as they are described to you.

The Role of an Expert Witness is To Be an Educator

Educating attorneys about what you are skilled and licensed to do is a priority. Educating attorneys, judges and juries is what every expert witness is asked to do.