Practice Development for Medical Expert Witnesses
Beryl Vaughan, Consultant
Email email@example.com or Call (415) 302-9589
When is a forensic opinion needed from a physician specialist, psychiatrist or psychologist?
By Beryl Vaughan
Typical Cases: Examples requiring a Forensic Psychiatrist or Psychologist’s Findings
These examples speak to mental health. Any medical condition may be relevant in a lawsuit. Whatever your specialty, there is something here for you.
Trigger. An allegation is made in a lawsuit claiming a triggering event caused, led to, or exacerbated a mental health condition.
Damages: 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.
Malingering. Malingering (lying for secondary gain) is suspected in the presentation of a mental condition or mental defense (incompetent to stand trial, for example).
There are thousands of variations on cases. These, however, describe the most common type of scenario addressed by a Psych Expert Witness.
For Attorneys and Psych Experts:
- Emotional distress
- Intentional infliction of 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 am the victim here. 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. (For attorneys: The DSM5 is the diagnostic guide for mental disorders relied upon by Psychiatrists and Psychologists.)
The Attorney Making a Diagnosis: Armchair Psychologist
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.
Forensic Assessment Best Practices
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 jurisdiction to jurisdiction. An attorney needs an expert whose methods and opinions can withstand scrutiny, which we can assume opposing counsel will provide. (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.
- 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 complicating conditions, such as a cardiologist or internist.
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. A Forensic Psychiatrist, Psychologist or any forensic mental health specialist in the same field can assess the weaknesses and strengths of an opposing counsel’s expert report. The forensic doctor most familiar with the same specialty can advise an attorney about the credentials and reliability of another expert’s testimony or written expression of opinions.
Daubert or Frye (as the case may be) is especially important to consider when a neuropsychologist’s opinions, after psychological testing, addresses questions like validity scales, reliability of some tests over others. The language used by doctors is not the language of jurors. A Neuropsychologist with forensic and testimony experience understands how best to explain the results of testing–or the weaknesses in tests used and opinions in the report of another Neuropsychologist.
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. 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 vs. Psychology
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.