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Treating Clinician v. Independent Forensic Psychiatric Expert: Wearing Two Hats?

Expert Witness: Mark I. Levy M.D., D.L.F.A.P.A. - Forensic Psychiatric Associates
The opinions of a forensic psychiatrist must be firmly grounded in thorough clinical training combined with substantial experience. Nevertheless, the roles of psychiatric clinicians and forensic psychiatric experts are widely disparate.

Not infrequently, psychiatric experts and the attorneys who retain them do not appreciate the significant differences between these two roles. The testifying psychiatrist may wear either the hat of a treating clinician or that of an independent expert, but never both at once. Why is that? The roles of a treating clinician and forensic psychiatric expert differ markedly in their mission, method and ethical duty.

Like all treating physicians, the treating psychiatrist in accordance with the Hippocratic Oath accepts as his or her mission the alleviation of (emotional) suffering, regardless of its cause.

method of the treating clinician is to rely almost exclusively upon the patient’s individual account of his or her subjective experience.

For example, when treating symptoms of depression and anxiety in an adult patient who reports that his father beat him when he was a child, the treating clinician accepts the patient’s report as a factual statement of his subjective reality, without attempting to determine the objective accuracy of the patient’s self-reported memory by, for example, interviewing family members or reviewing old medical records in order to determine the accuracy of the patient’s claim.

Furthermore, there is an implicit treatment contract between doctors and their patients: Patients seek treatment from doctors primarily to alleviate their suffering and facilitate their recovery, not primarily to position themselves for compensation via litigation for alleged injuries. In contrast to patients, however, litigants generally have more complex and nuanced motivations.

With the infrequent exception of when there is a genuine diagnostic uncertainty possibly delaying critical treatment decisions, for example, when a child or adult is being evaluated for learning difficulties, or when a patient appears to be cognitively impaired from head trauma or a degenerative brain disease, treating psychiatrists do not generally request psychological testing of their patients.

Finally, treating psychiatrists, like all physicians, are under an ethical duty in accordance with their Hippocratic Oath to act in what they regard as the best interest of their patient and to ‘‘first do no harm (primum non nocere).’’ Generally, physicians align themselves with their patients’ goals and objectives, as long as they are safe and reasonable. Consequently, treating physicians are inclined to accommodate the wishes of their patients, unless they believe that doing so might harm them.

Attorneys must understand the important differences between the role of a treating psychiatric clinician and an independent, forensic psychiatric expert.

Therefore, when a patient requests a letter excusing him or her from work, or claims to be disabled, perhaps due to having experienced an acutely distressing event, most treating psychiatric physicians are inclined to accede to their patient’s request unless there are specific factors that alert the doctor’s skepticism (such as a pattern of ‘‘drug seeking’’ behavior).

Accordingly, when treating doctors are asked to testify in litigation on their patient’s behalf, they appropriately advocate for whatever they believe to be in their patient’s best interest. Treating doctors generally do not approach testimony on behalf of a patient with the same professional skeptical scrutiny that typically characterizes a forensic psychiatric expert’s opinion.

The primary reason for this advocacy is that treating psychiatrists usually accept and rely upon their patients’ self-reporting of their experience. Thus, the treating doctor’s diagnostic conclusions and prognostic conclusions offered to the trier of fact may unwittingly be colored by the litigating patient’s wishes and selective revelations, without reflecting an evidence-based, objective medical opinion.

For example, it is common for treating doctors to testify inaccurately about causation, simply memorializing what they have been told by their patient. This error is usually unwitting because they simply lack the wide array of data available to the forensic psychiatric expert, which would provide them with a broader perspective on the various options for causation and free them from the confines of ‘‘proximate cause,’’ which is an artificial contrivance of the law.

In fact, most conditions of emotional distress are over-determined, the result of multiple influences along a chain of causation. What is proximate and what is remote is usually in the eye of the beholder. Thus, treating clinicians may uncritically accept their patient’s self-serving reports, including allegations of discrimination, employer retaliation and/or wrongful termination when, more often than not, there are multiple causes for events.

This is simply because the treating doctor usually has no objective means by which to weigh the relevant factors and evaluate the patient’s attributions of causation. Although the patient’s allegations may or may not ultimately be found to be accurate by the trier of fact, the treating psychiatrist usually has insufficient information with which to reach a truly independent judgment about causation.

Indeed, several courts have excluded treating doctors’ testimony as merely reciting the allegation of the alleged victim under the guise of expert opinion. For example, in United States v. Whitted the Eighth Circuit found the doctor’s diagnosis of ‘‘repeated sexual abuse’’ to rest solely on his acceptance of the victim’s account. In United States v. Charley, the 10th Circuit found that a doctor’s conclusion of abuse based on the girls’ allegations was merely vouching for the credibility of the child complainants. And in Viterbo v. Dow Chem. Co., the Fifth Circuit excluded the opinion of a medical expert who (a) sought to attribute the plaintiff’s depression and other ailments to his exposure to a chemical based only on the plaintiff’s statements, and (b) was unaware of a family history of depression and hypertension that could have explained the source of the symptoms.

ABOUT THE AUTHOR: Michael L. Fox, Esq. & Mark I. Levy, M.D.
Dr. Mark Levy, MD, DLFAPA, a Distinguished Life Fellow of the American Psychiatric Association, has been practicing Clinical Psychiatry and Psychoanalysis full time for over 30 years. During the past fifteen years he has devoted a substantial portion of his clinical practice to Forensic Psychiatry, providing independent medical evaluations (IME's) and expert forensic psychiatric opinion and Consultation nationally for plaintiff and defense trial attorneys, major insurance carriers and the courts.

Copyright Mark I. Levy M.D., D.L.F.A.P.A. - Forensic Psychiatric Associates

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.

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