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When Therapists Aren't Experts

Expert Witness: Stephen M. Raffle, M.D. & Associates
The therapist as expert witness: reasons the treating psychotherapist should not be the expert witness.

In civil cases where emotional distress is alleged, it often occurs that the plaintiff's attorney designates the treater as his expert. Usually the argument is that the therapist has spent many more hours with the plaintiff than the defense expert and therefore "knows" the plaintiff better. The treater often agrees with this reasoning.

I believe a number of fallacies exist in this conclusion:

If the patient is conniving, then the therapist is being duped into undertaking a sham therapy.

If the patient believes the therapist is going to be his expert witness, then consciously or unconsciously the patient will withhold information detrimental to his case and over-emphasize facts favorable to it.

Therapists undertake therapy with the implicit understanding that the relationship is private and privileged under almost all circumstances. This enables the patient to divulge embarrassing or damaging information which he wouldn't want revealed. After the fact, how can the patient give an informed consent when he doesn't know what personal information will be divulged.

Once the therapist is perceived as an advocate, I believe the therapist's impartiality and non-judgmental attitude is replaced with the perception of approval and advocacy. A therapeutic boundary is crossed. Therapy is damaged. Being an expert witness for one's patient does not further the therapy. The Hippocratic Oath "above all do no harm" is disregarded.

Setting these reasons to the side, is the assumption true that, on the one hand, a comprehensive structured forensic psychiatric exam including a review of all records and relevant depositions, expert reports and psychological testing, less reliable than, on the other hand, a psychotherapy which is defined by the patient's transference, unstructured free association therapeutic process, and non-judgmental therapeutic attitude of the therapist and where the therapeutic task is to help the patient understand emotional conflicts and resolve them? It is not far-fetched to imagine the therapist-expert developing opinions during discovery which might be damaging to the therapeutic process. He can't withdraw because doing so also damages the therapy, he shouldn't lie because that damages his therapeutic impartiality, and he becomes the patient's advocate in the patient's mind which also introduces a non-therapeutic parameter into the therapy.

sychotherapy does not involve weighing all of the clinical facts and rendering an opinion with a reasonable medical probability. It doesn't involve being an impartial evaluator who has no vested interest in the outcome of the case. Psychotherapy does not achieve goals by the psychotherapist assuming a skeptical mind set in the context of a lawsuit, specifically in order to weigh a plaintiff's statements with other facts and reconcile the conflicted information in that legal context. Undertaking a real, impartial forensic psychiatry evaluation is not therapeutic. The content of therapy is part of the basis of an expert opinion but there is much more to the evaluative process which is beyond the scope of therapy. Once the therapist crosses the line to expert, he can't go back. The bell cannot be unrung.

ABOUT THE AUTHOR: Stephen M. Raffle, M.D.
Dr. Raffle is a Board-Certified Forensic Psychiatrist who has practiced clinical and forensic psychiatry for more than thirty years. He has presented his expert medical opinion in more than 5,000 cases in Federal and State jurisdictions and to employers and insurers nationwide. In addition to his clinical and forensic practice, Dr. Raffle has been Assistant Clinical Professor of Psychiatry at UC San Francisco Medical School for more than twenty-five years and for eleven years has taught attorneys at San Francisco’s Hastings Law School Post-Graduate Program on Trial and Appellate Advocacy in the cross-examination of expert witnesses.

Copyright Stephen M. Raffle, M.D. & 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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