Archives – March, 2015

CHOOSING A FORENSIC PSYCHIATRIC EXPERT— The Difference Between Treating Clinicians and Forensic Psychiatric Experts

 by Mark I Levy, an ALM Listing Expert

Forensic psychiatry is a medical subspe­cialty of psychiatry. Its focus is the inter­face between the law and behavioral medicine. Like the law, forensic psychiatry is divided into various sections. Accord­ing to the American Board of Psychiatry and Neurology (ABPN): Forensic psychiatry is a subspecialty that involves a psychiatric focus on interrelationships with civil, criminal and administrative law, evaluation and specialized treatment of individuals involved with the legal system, incarcerated in jails, prisons, and forensic psychiatry hospitals.

Like all medical specialty boards, the ABPN offers subspe­cialty board certification in this field. However, in order to qualify even to take this subspecialty board examina­tion, a candidate must have completed a four-year resi­dency in psychiatry, been examined and attained board certification by the ABPN in psychiatry, and undergone a rigorous one-year, full-time postresidency fellowship in law and psychiatry.

There currently are thirty-three forensic psychiatric train­ing programs in the United States that are accredited by the Accreditation Council for Graduate Medical Educa­tion (ACGME). Accredited programs have demonstrated that they meet the standards for forensic psychiatry train­ing programs established for departments of psychiatry by the ACGME. Graduates of these one-year full-time fellowships then are eligible to take the board examina­tion offered by the ABPN. Passing the exam provides the candidate with the additional “Certification in the Sub­specialty of Forensic Psychiatry.”

At this time, fewer than two thousand of the approxi­mately thirty-five thousand board-certified or eligible psychiatrists within the United States are also board certi­fied in forensic psychiatry.

Nevertheless, many psychiatrists who are neither foren­sically trained nor board certified in forensic psychiatry continue to offer themselves to attorneys as forensic psy­chiatric “experts.” Too often, such untrained “experts” do not have a clear understanding of the significant role dis­tinctions between functioning as treating clinicians and as independent forensic psychiatric experts. Therefore, all too easily they may unwittingly slip into the clinician’s role of advocate, as if their relationship to the forensic examinee is identical to the relationship they may have with a patient whom they are treating. As a result, it is crucial that any trial attorney intending to retain a forensic psychiatric expert understand the important differences between clinical psychiatrists and trained, board-certified, independent forensic psychiatric experts.

The Distinction between Treating Clinicians and Independent Forensic Psychiatric Experts—The Problem of Wearing Two Hats

Too often, a plaintiff’s treating clinician is retained by plaintiff’s counsel to serve as the plaintiff’s so-called fo­rensic psychiatric independent expert and to offer opin­ions that will be cross-examined at deposition and trial. Although this usually is done in order to avoid the cost of retaining a genuinely independent expert, it is a strategic error that may end up winning the battle and losing the war. Here’s why. Despite the fact that most experienced forensic psychiatric experts also treat patients clinically, trained experts understand that they should never com­bine and confuse these two distinct roles.

Not only does such role confusion cause ethical and in­terpersonal conflicts within the therapeutic relationship, it also leaves so-called expert opinions offered by the plaintiff’s treating psychiatrist highly vulnerable to cross-examination. This is why: The roles of treating clinician and forensic psychiatric expert differ markedly in mission, method, and ethical duty.

 The Mission

Like all treating physicians, the psychiatrist who is functioning as a treating clinician accepts his or her mission as being the alle­viation of (emotional) suf­fering, regardless of its cause.

 The Method

The method of the treating clinician is to rely almost ex­clusively on the patient’s subjective account of his or her experience. For example, when a psychiatrist treats symp­toms of depression and anxiety in an adult patient who reports that his father beat him as a child, the treating psychiatrist or psychologist accepts that as a factual state­ment of the patient’s subjective reality. The treating clini­cian does not attempt to determine the objective accuracy of this self-reported statement by, for example, corrobo­rating the claimed abuse by interviewing family members or reviewing old medical records or by any other means.

In addition, there is an implicit treatment contract be­tween clinicians and their patients that the patient is seek­ing treatment from the doctor to alleviate suffering, not to bolster a damages claim in litigation.

Furthermore, with rare exceptions, treating clinicians gen­erally do not obtain psychological testing of their patients, except under several specific infrequent circumstances. These would include situations where there is diagnos­tic uncertainty and making a timely, accurate diagnosis is critical to treatment decisions, or when a child or adult is being evaluated for learning difficulties, or when a patient appears to be cognitively impaired from trauma or a de­generative brain disease, diagnoses that require objective refinement and confirmation.

 The Ethical Duty

Under the Hippocratic oath, the ethical duty of a treating psychiatrist, as it is with all physi­cians, is to act in the best interest of the patient and “above all do no harm (primum non nocere).” Conse­quently, treating physicians are inclined to accommodate the wishes of their patients un­less they believe that doing so would be harmful to their patients. Therefore, when a patient claims to be disabled from employment due to an acutely distressing event, most treating physicians are prone to accede to their patient’s wishes and authorize leave from work unless there are clear factors causing the physician to be more skeptical than usual.

Similarly, when treating clinicians are asked to testify on behalf of their patients, they appropriately function as ad­vocates for whatever they believe is in their patient’s best interest. They do not approach such testimony with the same professional skepticism exhibited by a forensic ex­pert. Furthermore, they have usually relied entirely upon their patient’s self-report to support their diagnoses. Thus, the diagnostic, treatment, and prognostic opinions that may be offered to the trier of fact do not necessarily reflect evidence-based, objective truth.

For example, in more complex employment matters, a patient may report that he or she has been discriminated against by an employer or retaliated against for “whistle-blowing.” When the patient subsequently is terminated, he or she alleges that it was “wrongful,” characterizing any subjective dysphoria as “severe and ongoing emotional distress” allegedly caused by the employer. Although this may be a perfectly true conclusion, to stand, it must be supported by objective evidence substantiating both the suffering and the causation, not simply the assumption that because B follows A, A caused B. However, more often than not, the treating clinician accepts as valid the patient’s characterization of his or her workplace experience and the unsubstantiated “facts” offered to support that conclusion, frequently also accepting presumed motivations of coworkers and employers as reported to them by their patient.

In stark contrast, the mission of the forensic psychiatric expert is to determine as accurately as possible what is objectively true about the plaintiff’s or criminal defendant’s diagnosis from a skeptical point of view. In addition, the forensic psychiatric expert vigorously seeks objective data relevant to determination of diagnosis, treatment, prognosis, and causation. The gold bullion standard for the opinions of a forensic psychiatric expert is the ballistics expert who can opine with reasonable scientific probability that a particular bullet was fired by a particular weapon, or was not, albeit recognizing that determining what is objectively true in behavioral science is far more complex and nuanced than in ballistic science. Nevertheless, this remains the goal for any competent forensic psychiatric expert.

The method of forensic psychiatric analysis is to review all possibly relevant behavioral data. This includes all medical and legal records from time periods both prior and subsequent to the events giving rise to the litigation or criminal prosecution, collateral information from deposition transcripts, other testimony and declarations of key witnesses and from psychological or neurocognitive test data. At Forensic Psychiatric Associates Medical Corporation (fpamed), it is standard practice to obtain psychological testing administered, interpreted, and reported by an experienced and well-trained forensic psychologist in all civil (and some criminal) matters.

Neuropsychologists measure aspects of neurocognitive and psychological functioning through the use of a variety of standardized, valid, and reliable tests. The data yielded by the tests makes possible a statistical comparison of the individual’s functioning to that of other individuals of similar age and educational levels.

The test battery can provide evidence of abnormal functioning that may be the result of injury or disease or that may be related to personality traits and psychiatric disorders. In addition, an assessment is made about the manner in which the individual responds to test questions. This provides a quantitative measure of the magnitude of atypical responses, the degree of effort made by the examinee, as well as the likelihood of the feigning of psychological symptoms or neurocognitive functioning.

Test data is analyzed statistically to compare the ways in which an individual’s pattern of test findings is similar or dissimilar to those of other persons who have suffered comparable injuries, disabilities, or diagnoses. Neurocognitive and psychological testing provides solid, scientific evidence that can be used to form evidence-based opinions about the likely veracity of the plaintiff’s claims regarding loss of cognitive functioning and emotional distress, as well as the plaintiff’s fitness to function at work, at home, or in legal proceedings.

In addition, the forensic psychiatrist conducts an in-depth interview of the plaintiff or criminal defendant. This interview, which requires a minimum of several hours, permits the forensic expert to hear the examinee’s subjective view of events leading up to the legal action firsthand. The interview supplements other data already gathered from the careful and detailed review of medical and legal records, as well as in the psychological test data. Thus, the examinee’s subjective narrative is assessed within a much larger context of clinical evidence than is generally available to the treating psychiatrist.

Finally, the ethical duty of the forensic psychiatric expert is only to the trier of fact. He or she should not be an advocate for either side in a civil or criminal dispute. His or her opinions must be evidence-based, which is the modern standard for best medical practices. It should specifically be understood that the only duty owed by the forensic expert to the retaining attorney is a commitment to professionalism and honesty and a fiduciary agreement regarding payment for expert services. Furthermore, at the time that the expert is retained, she or he should explain, preferably in writing, that after applying the current best principles of scientific data analysis, the expert may reach conclusions that may or may not be supportive of the attorney’s theory of the case.

Psychological testing is regarded as essential to our ability to reach accurate, independent, and evidence-based psychiatric diagnoses. However, just as one would want an experienced radiologist or neuroradiologist to administer and interpret a brain MRI, so is it with psychologists and neuropsychologists. In order to obtain meaningful interpretation of psychological test data for medical legal purposes, it is critical not only that the psychologist or neuropsychologist be well trained and experienced but also that they understand the unique parameters that apply to forensic questions.

When seeking a forensic psychiatric opinion about the behavioral symptoms of a plaintiff or criminal defendant, no matter how clearly and explicitly you formulate the specific questions that you would like your expert to address, whom you retain to assist you with these issues can be of critical importance to the outcome of your case.

Mark I. Levy is an assistant clinical pro­fessor of psychiatry at the UCSF School of Medicine. A Distinguished Life Fel­low of the American Psychiatric Associ­ation (DLFAPA), he is the founder and medical director of fpamed, a Bay Area firm of board-certified forensic psychia­trists and forensic neuropsychologists.

Dr. Sarah Hall also contributed to this article. Hall, a foren-sic adult and pediatric neuropsychologist and member of fpamed, has taught courses and seminars on various top­ics in neuropsychological assessment to attorneys, graduate students, school psychologists and parent groups and main­tains a private clinical neuropsychological consulting prac-tice in Corte Madera, California.

Leave a Comment March 12, 2015

The Benighted Expert: Professional Literature in Court

Originally published for:  New York Law Journal

By: Timothy M. Tippins

From questions of property values in equitable distribution litigation to the psychological issues in custody cases, the domestic relations courts are awash in expertise, both real and contrived. It falls to the trial advocate to present the information that the court needs so that it can distinguish reliable testimony from the ersatz expertise that too often slithers into the courtroom.

One long-entrenched method of doing so is impeachment by treatise1 which consists of confronting the witness with published writings of respected figures in the field that contradict the expert’s testimony in some respect. Perhaps because this technique has been around for so long it tends to eclipse the broader importance of professional literature in measuring both the admissibility of and the weight to be accorded to an expert’s testimony. This article will examine the central position that professional literature occupies in the psychology expert’s world and its crucial evidentiary role in providing the very basis underlying expert opinions.

Impeachment by Treatise

The impeachment by treatise rule allows the cross-examiner to confront the expert witness with writings of other experts that purportedly contradict the position of the expert on the stand. Before being allowed to do so, however, the cross-examiner must first lay the required foundation by extracting from the witness a concession that either (1) the expert relied upon the work at hand or (2) the texts at hand are “recognized by the profession as standard authorities.”2 This foundational requirement, of course, empowers the witness to frustrate the cross-examination simply by refusing to concede that the writing is authoritative.

This power can be and is abused. Experts at times tender absurd denials of the standing of a respected work to evade proper exploration of their positions. Indeed, books written to assist the expert through the courtroom thicket sometimes suggest that the expert should rarely if ever concede the authoritative status of any text.3 Taken literally this would be equivalent to an evidence professor denying that Wigmore on Evidence is an authority in the field.

Some experts follow this course of action to a fault. One “expert” in infectious disease apotheosized this artifice when he testified “that he did not consider any books or articles in the field of infectious diseases ‘authoritative.’”4 Absorb that statement for a moment. It is tantamount to proclaiming, “I don’t hold with no book-learnin’.” It demands, of course, the next question: If not from the authoritative literature of the field, then from what source did this expert acquire his or her expertise?

Very recently a decision was reported wherein an expert, when asked from what source he derived the methodology that provided the underlying basis of his opinion, answered: from “my head.”5 Leaving aside for the moment the possibility that he was confused as to which anatomical hollow was the true cradle of his expertise, the question such an answer irresistibly invites is how the expert knowledge arrived in his cranial cavity in the first place.

The Basis of Expertise

To appreciate fully the incongruity of such flippant answers, one must consider them in the context of established evidence doctrine. Except in those relatively rare instances where the expert is testifying entirely on the basis of his or her own research, the expertise which he or she purports to bring to court necessarily depends upon the professional literature of the field. Recognition of this fundamental point is precisely why the law tolerates a hearsay basis with respect to the expert’s knowledge of the field. As the celebrated John Henry Wigmore wrote a century ago:

It would be absurd to deny judicial standing to such knowledge, because all scientific data must be handed down from generation to generation by hearsay, and each student can hope to test only a trifling fraction of scientific truth by personal experience.6

Thus, if the expert’s contention that there are no authoritative writings in his field were true, it would be time for him to depart the courtroom without another word spoken.

While some species of expertise can be acquired by experience alone, e.g., an antiques dealer who testifies to value based on decades of first-hand market transactions, others depend upon formal education, degrees, board certifications and the like. Psychology falls into this latter category.

A Scientific Discipline

Psychology defines itself as a scientific discipline. Every Psychology 101 textbook will contain a statement such as: “Psychology is the science of behavior and mental processes.”7 Consequently, to qualify as an expert in psychology one is required to have adequate formal credentials in this scientific field and, once so qualified, is expected to base his conclusions on the scientific knowledge of that discipline. That the expert must predicate his conclusions on the collective knowledge of his discipline is axiomatic. It was acknowledged by the U.S. Supreme Court in its landmark decision in Daubert v. Merrill Dow Pharmaceuticals.

Unlike an ordinary witness, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. Presumably, this relaxation of the usual requirement of firsthand knowledge…is premised on an assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his discipline.8

Reliance upon the collective knowledge of the discipline, i.e., the professional literature, is the sine qua non of expert opinion formulation. It is precisely this that distinguishes an admissible expert opinion from an inadmissible personal opinion. This most fundamental of principles is recognized within the field of forensic psychology:

The defining attributes of an expert opinion relate…to the procedures that were employed in formulating the opinion and the body of knowledge that forms the foundation upon which those procedures were developed. If the accumulated knowledge of the expert’s field was not utilized, the opinion expressed is not an expert opinion. It is a personal opinion, albeit one being expressed by an expert.9

Given that most custody evaluators do not conduct their own research they must necessarily rely upon the studies of others as reported in the professional literature. Therefore, it is against this professional knowledge base that the validity of their testimony must be measured. If the witness has based an opinion on neither first-hand research nor the professional literature of the discipline, the opinion ought to be rejected.

Suppose, for example, that a custody evaluator observes that one of the parents exhibited behaviors “A,” “B” and “C” and from these data-points concludes that the parent suffers from depression. The initial crucial question is whether that conclusion is supported by the empirical research reported in the professional literature.10 If only some idiosyncratically crafted paradigm of the individual witness supports his conclusion, what is at hand is an inadmissible personal opinion, not an expert conclusion. Such idiosyncratic assumptions or methodologies, not having been tested in the field and lacking general acceptance, should not even survive a Frye11 challenge. Even if the threshold issue of admissibility is ignored such an opinion ought to be given no weight.

The critical question, therefore, is to what extent are the expert’s conclusions supported by the literature? Perhaps even more fundamentally, to what extent is the witness even familiar with the published writings of the field? The trial lawyer will likely find these lines of inquiry fruitful. Reported research suggests that relatively few experts consider the literature in their practices. In one study, 27 percent of clinicians interviewed stated that “no empirical study had affected their work” and not a single “psychologist was able to identify a specific study or a specific instance of research use.”12 Given psychology’s self-declared status as a science, such a cavalier disregard of the expert knowledge base is nothing short of astonishing.

Custody Evaluators

The professional literature occupies a central position in the proper conduct of a custody assessment. The ethical and practice standards of the mental health profession require custody evaluators to keep current with and to use scientific knowledge in carrying out their forensic assignments.

The American Psychological Association’s (APA) Ethical Principles and Code of Conduct state:

Psychologists’ work is based upon established scientific and professional knowledge of the discipline.13

The APA Guidelines for Child Custody Evaluations state:

Although psychologists take care to acquire sufficient knowledge, skill, experience, training, and education prior to conducting a child custody evaluation, this acquisition is never complete. An evolving and up-to-date understanding of child and family development, child and family psychopathology, the impact of relationship dissolution on children, and the specialized child custody literature is critical to sustaining competent practice in this area.14

Likewise the Association of Family and Conciliation Courts’ Model Standards of Practice for Child Custody Evaluation instruct that:

A child custody evaluator shall have specialized knowledge and training in topics related to child custody work and shall keep abreast of the ever evolving research in the field.15

Clearly, the profession itself recognizes that the scientific literature is the touchstone for the formulation of psychological conclusions. Thus, to properly assess the expert’s conclusions, one must look to the published writings. Significantly, what is not there is as important as that which is because the burden rests upon the expert to offer up the empirical research that reflects general acceptance in the scientific community of the principles or methods upon which each inference rests.16 Such burden placement is consistent with scientific practice:

A basic tenet of science is that the burden of proof always falls squarely on the claimant, not the critic. Consequently, it is up to the proponents of these techniques to demonstrate that they work, not up to the critics of these techniques to demonstrate the converse.17

In other words if the evaluator searches the professional library and, like Mother Hubbard, finds the cupboard bare, then he or she should not opine at all on the particular issue. To disregard the absence of scientific knowledge or to ignore contrary research runs afoul of the ethical and practice standards of the profession and results in the presentation of shoddy, unreliable work-product.

Conclusion

The professional literature of the expert’s discipline must be the anchor of his or her opinions. When expert witnesses deny the respected status of all or virtually all existing literature, such denials raise critical questions as to intellectual integrity of their conclusions. Accordingly, it behooves attorneys to master the literature of that expert’s discipline and be positioned to use it in court both through cross-examination and by presenting expert rebuttal testimony establishing the true status of the texts in question.

Endnotes:

1. People v. Feldman, 299 N.Y. 153, 85 N.E.2d 913 (1949); see also, Hastings v. Chrysler Corp., 273 A.D. 292, 294, 77 N.Y.S.2d 524 (1st Dept. 1948); Ithier v. Solomon, 59 A.D.2d 935, 399 N.Y.S.2d 450 (2d Dept. 1977); Mark v. Colgate, 53 A.D.2d 884, 385 N.Y.S.2d 621 (2d Dept. 1976).

2. People v. Feldman, 299 N.Y. 153, 85 N.E.2d 913 (1949); see also, Hastings v. Chrysler Corp., 273 A.D. 292, 294, 77 N.Y.S.2d 524 (1st Dept. 1948); Ithier v. Solomon, 59 A.D.2d 935, 399 N.Y.S.2d 450 (2d Dept. 1977); Mark v. Colgate, 53 A.D.2d 884, 385 N.Y.S.2d 621 (2d Dept. 1976).

3. Brodsky, S.L., Hendricson, S., “Testifying in Court: Guidelines and Maxims for the Expert Witness,” pp. 119-123 (APA, 1991).

4. Lipschitz v. Stein,10 A.D.3d 634, 636, 781 N.Y.S.2d 773 (1st Dept. 2004) [italics added].

5. Toomey v. MillerCoors, — F.Supp.3d —, 2015 WL 667508 (E.D.N.Y.), NYLJ Feb. 27, 2015.

6. John Henry Wigmore, Greenleaf on Evidence,(16th Ed. Rev.), §430(l), p. 529 (The Lawbook Exchange, 2001).

7. Morris, C.G., Maisto, A.A., “Psychology: An Introduction,” (Prentice Hall, 2002), p. 4 (Italics added)

8. 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (Italics added); This is a fundamental evidentiary principle concerning expert testimony and is not dependent upon whether one is a Daubert jurisdiction.

9. Martindale, D.M., “Cross-examining Mental Health Experts In Child Custody Litigation,” The Journal of Psychiatry & Law, 29/Winter 2001, 483-511

10. Even assuming that the diagnostic conclusion is supported by research the next critical inquiry is whether there is research demonstrating that there is a nexus between the diagnosis and the question of parenting capacity. Without such a nexus, the diagnosis is not relevant.

11. Frye v. United States, 54 App.D.C. 46, 47, 293 F. 1013, 1014 (1923).

12. Cohen, L.H., Sargent, M.M., Sechrest, L.B., “Use of Psychotherapy Research by Professional Psychologists,” American Psychologist, February 1986 Vol. 41, No. 2, 198-206 (1996).

13. Ethical Principles Of Psychologists And Code Of Conduct, §2.04, American Psychological Association, (2002).

14. Guidelines for Child Custody Evaluations in Family Law Proceedings, §4, American Psychologist, December 2010.

15. Model Standards of Practice for Child Custody Evaluation , §1.1, Family Court Review, Vol. 45 No. 1, January 2007 pp. 70–91.

16. People v. Wesley, 83 N.Y.2d 417, 442, 633 N.E.2d 451, 611 N.Y.S.2d 97 (1994); see also, People v. Angelo, 88 N.Y.2d 217, 666 N.E.2d 1333, 644 N.Y.S.2d 460 (1996).

17. Lilienfeld, Lynn & Lohr, “Science and Pseudoscience in Clinical Psychology,” Guilford Press, 2003, p. 3.
Original Source: http://www.newyorklawjournal.com/id=1202719630250/The-Benighted-Expert-Professional-Literature-in-Court#ixzz3TcrbI78D

Leave a Comment March 6, 2015


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