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Subpoenad

Discussion in 'Psychiatry' started by sunlioness, Jun 12, 2012.

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  1. sunlioness

    sunlioness Psychiatrist

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    Have any of you ever been subpoenad? I just got called to testify on behalf of a patient I only just met and evaluated a week ago subsequent to an acute inpatient hospitalization. The patient's ex took the events surrounding the hospitalization as ammo in a protracted custody battle and now my patient has lost visitation. I'm apparently being asked to speak to the fact that the patient poses no danger to their kids. I doubt that my patient does, but I've never seem them with their kids and have only just met them. I can't even speak to treatment compliance yet because it hasn't even been a week.

    Anyone ever in a similar situation? Any words of wisdom? I've never been to court for anything but commitment hearings and I never used to like those either. I'm a bit freaked out.
  2. Chimed

    Chimed

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    No I haven't...But that just sucks. I know people that have had to do that. My impression is they rarely help either way and are just wastes of time for everyone involved. Sorry you have to go in. :(
  3. fiatslug

    fiatslug Senior Member

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    I'm sure Whopper will have some great advice. I did get a subpoena in a similar situation--an adult pt I had treated who was petitioning DHS to get custody of his son back (his 11 mo old son was taken from him after he went to the ER for SI, b/c he owned a gun at the time--and was mired in the system in foster care for MONTHS). They subpoena'd every doc that saw him in our system--the ER doc, the inpatient psych attending, and me, who treated him in Partial Hosp. We all showed up and they sent everyone else home but me :scared:. They had the records. I spoke at length with our hospital attorneys ahead of time and he advised me on what & what not to say. Essentially they just had me validate aspects of my notes, and speak more broadly on depression and treatment. They did NOT ask me if I thought "X" was a fit parent, and (even though I'm a child psychiatrist) I would have deferred to answer this question, as I never observed the pt interacting with his children. It was on the whole a much less anxiety-provoking experience than I feared it would be--Sam Waterson didn't come out and rip me a new one :laugh:.

    I do have a colleague who had a very similar situation to yours and she was supoenaed in a custody dispute b/w parents--that was far more confrontational.

    Do you have hospital counsel you can talk to?
  4. sunlioness

    sunlioness Psychiatrist

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    I'm calling her (the hospital attorney) now and just left a message on her voicemail. I've been getting conflicting advice from everyone here. I figure I'll go with what she says. Really hoping to get out of it because quite honestly I don't think what I'm able to say based on meeting this person once is worth anyone's money, time or aggravation.
    Last edited: Jun 12, 2012
  5. nitemagi

    nitemagi Senior Member

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    I agree, start with the attorney. You may also want to let whoever is subpoenaeing you know that your testimony might NOT be favorable for their case.
  6. notdeadyet

    notdeadyet Still in California Moderator

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    I have no advice, but just wanted to echo my condolences, sunlioness. Sounds like a rough situation....
  7. whopper

    whopper Former jolly good fellow

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    I've been a few hundred times.

    I hate saying this becuase this is something where you might not feel comfortable telling a judge to do.

    You treated this patient right? Here's the problem. You did not do a child custody evaluation.

    And you know what? You're not supposed to give the court an opinion on such things unless you did the evaluation.

    If you did the evaluation, this would pay tremendous amounts of money. Most forensic mental health evaluators will not touch custody evaluations with a ten foot pole because no matter what you'll have one very unhappy person come after you possibly with a lawsuit.

    Only answer within your box. Do you know if this person is a danger to her kids? I'd say I cannot answer that question. I figure you discharged this person right? Then I'd answer something to the effect of "I did not believe the person was a danger to anyone at the time of discharge due to mental illness but I don't know how she is now and my treatment responsibility ends after discharge. One could be a danger for reasons outside of mental illness, and I don't know what's gone on with her after discharge. This is a question I cannot answer and I recommend the Court have do a forensic evaluation because my clinical evaluation of the patient was not for the purposes that may satisfy this Court."

    A problem here for you Sunlioness is Court is a game and without the legal training you don't know the rules of play. I'd feel very comfortable telling the judge or lawyers I'm not supposed to do this or that and it'd get me out of the situation quite nicely.
    Last edited: Jun 12, 2012
  8. sunlioness

    sunlioness Psychiatrist

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    I don't even know how to do a child custody evaluation. All I can really comment on is treatment, I think. More even recommended treatment as I can't really comment on response, compliance, anything. I've had one session with this person.

    I have both a call and an email in to our hospital attorney. Hopefully she'll get back to me soon. And she did as I was typing this. She's going to call the attorney who filed the subpoena and get back to me.
  9. whopper

    whopper Former jolly good fellow

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    What I suspect is going on is the Court doesn't even understand that the professional standard is for you not to give an evaluation on her fitness to be a parent or the safety of the children. They just figure you were her doctor and they're grasping for straws.

    If you want to talk about this on the phone PM me your phone number.

    Not the first time I knew the law better than a judge. Being a forensic psychiatrist gives us better knowledge of mental health law than most lawyers and judges because we have to memorize them while they have a generalist knowledge of the law, kind of like how a psychiatric nurse knows psychiatry better than a surgeon. I can't tell you the number of times a judge asked me to do something that was actually illegal and I had to cite to them the Supreme Court case saying so. It's not a comfortable position to be in because you could be considered in contempt of court. Then the problem becomes that in Court, I cannot interpret the law, the judge has to do so, then I see the judge make decisions in clear violation of prior Supreme Court cases but given my role, I cannot say anything because the judge has the final say.

    Reminds me of being a resident in that sense.
    Last edited: Jun 12, 2012
  10. Apollyon

    Apollyon Screw the GST Lifetime Donor

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    I am EM, and I bolded your phrase for a reason. I went to court last year and was certified as an expert in a shooting case (guy shot his wife in the head - grazed her). I told the court what I knew and didn't know, and that was the easiest thing. Whopper is a GREAT resource for this, but, if you say that you are not trained to do custody evaluations, have never done one, and it is not part of your skill set as an expert in psychiatry, that will clearly state for the court and the jury about where are your lines.

    Just remember that lawyers are scumbags - remember that book from 20 years ago by Sanford Brown, "Getting Into Medical School"? In it, he said, "Just think of the mail as a conspiracy against you". If you just paint all lawyers as hired guns of whomever is paying their bill, and assume they're out to get you, that will keep you on your toes. For the lawyers, it's all just a game (seriously) - they seriously don't give a damn that someone's kid is being taken away, or livelihood, or freedom.
  11. sunlioness

    sunlioness Psychiatrist

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    I talked to our attorney and told her I didn't want to do this and didn't feel I'd be helping my patient any even if I did. Especially given that I was told to bill $600/hr for this service, I think I'd probably be hurting my patient far more than helping them. She has a call in to the attorney who subpoenad me and she's going to tell him these things. She agreed that I couldn't call and talk to him directly (which is what I wanted to do) because we don't have a release on file. She is going to tell him this, too. We shall see.

    Whopper, I might take you up on that depending on how things shake out tomorrow.

    I really appreciate all of your help and support. :)

    And Apollyon, my mom's husband, a lawyer, is in 100% agreement with you on the quality of character of most lawyers. I know some who aren't, but I fear they might be a minority as much as I dislike stereotyping anybody.
  12. Apollyon

    Apollyon Screw the GST Lifetime Donor

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    "99% of lawyers make all the rest of them look bad."

    [​IMG]

    I distill it down to the most base when the attorneys assert that they will "zealously" prosecute your case (whatever it is), but, the moment the money runs out, the attorney is GONE. That, in the lowest level, they're like prostitutes. Screw you until the money is gone, then they're gone, too. Get nickel and dimed for emails and phone calls and whatever else. People say they think lawyers are scumbags until they need one. No, when I need one, I STILL think they're scumbags and POSs, but, when you need a scumbag, you want the scummiest, meanest, dirtiest, nastiest one you can get, because it's a case of "bigger is better", and, if my lawyer (like a dog in a dogfight) can kick your lawyer's ass, I win.
  13. billypilgrim37

    billypilgrim37 Unstuck in Time

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    Most of my wife's work is helping people get on foodstamps and trying to keep landlords from screwing people out of section 8 housing.

    I think they're going to pay her in peanut butter and jelly sandwiches instead of money.
  14. Apollyon

    Apollyon Screw the GST Lifetime Donor

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    Without derailing too much (actually, it's more like going onto a siding), what does your wife say about her law school classmates? We do uncompensated charity care as a matter of course, and it is part and parcel of what we do as doctors. But a pro bono case for a law firm? Begrudgingly dragging their feet, only doing it out of professional peer pressure and state or professional society requirements. And, unlike doctors, where, arguably, everyone is on the same high level (or, the more you pay doesn't make one doc better than another), the opposite is true of attorneys. Why is public defender like a back alley abortionist? Because, for both, it's the only job they can get. And, after seeing the PD in court, the one thing I know is, if you ever have to go to trial, do NOT get the PD - unless you want to go to jail. Do whatever you have to, in order to get a shyster.

    99% and all that.
  15. sunlioness

    sunlioness Psychiatrist

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    One of my best friends is a law student now and she's hoping to do similar type work. There are some good ones, for sure. :)
  16. whopper

    whopper Former jolly good fellow

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    Since you treated this patient you already have a treatment relationship with her. A forensic evaluation should be done by a neutral evaluator with no treatment relationship.

    Just answer the questions you can answer.

    How did she do on the unit when you had her? Okay this you can answer.

    How is she doing now? That you can't answer. If they ask you to do a mental status examination or anything on her during court you can answer, "with all respect, it is a violation of professional guidelines to do a professional examination under these circumstances since I already had a treatment relationship with her and if ordered to do so, I will have to bill the court. The court cannot order someone to do work for them for free. Heck even the state appointed lawyers get paid. They get paid crap, but they get paid. They can't make you do anything that's new work unless are contracted by the court, or either lawyer.

    What's her situation like with her children--you can't answer this.

    Heck, if you want to be a real pain in the ass to the Court and I'd consider playing this game to tick them off for ordering you to court when they shouldn't have, with any specific question they ask you, you could say that since you can't answer without getting permission from her, you could say "I can't answer this question until I tell my former patient what my answer will be. I will have to break from testifying. All information from our treatment relationship can only be released with her permission." The patient may have released you to say what happened, but you can be a big pain in the ass and say you don't know what her reaction will be to the question since you never rehearsed your answer with her, so for that reason you need to break and talk to her and her lawyer.

    I've seen this happen, where a Court doesn't know our professional guidelines or even the laws about this. E.g. I've seen a judge order a doctor to answer things that were privacy-protected even though it was illegal or put the doctor in contempt of court. If they ask you something you're not supposed to answer, say something to the effect of, "this is in violation of professional guidelines, ethics, and even from what I was told the law."
    Last edited: Jun 12, 2012
  17. Leukocyte

    Leukocyte Senior Member

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    This is EXACTLY why I hate clinical medicine....depositions, subpoenas, courts, lawyers, malpractice lawsuits....all of this makes clinical medicine very "yuky".

    I had to go through this ordeal when I was a resident in Family Medicine. I had to give a deposition as a witness, and then I received a subpoena to appear in court as a witness. The experience that I went through scared me for life, and made me hate clinical medicine in all its shapes and forms. It did result in me having a PTSD....whenever I see a form or paper that is attached/stapled to a BLUE platform on its back, I freakout and remember the ordeal that I went through.

    Psychiatrists might be the least likely of all physicians to get sued, but it does not mean that they are immune from lawyer annoyances.
  18. psych md jd

    psych md jd

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    I agree with Whopper. Since you are/did provide treatment to this patient, your duty is to this patient and you have a duty to "Do No Harm." You are being called as a "percipient" witness to relate what you saw, heard, observed, diagnosed, etc. However, depending on your state laws you may also be able to give an opinion on diagnosis, prognosis, causation, and standard of care.

    An opinion of dangerousness in a custody case, however, requires an "expert" opinion and a careful assessment of risk factors and history which are usually beyond the scope of the treating provider.

    You may be able to give an opinion on imminent dangerousness, but I would not opine further other than to say that an independent forensic evaluation is in order.
  19. sunlioness

    sunlioness Psychiatrist

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    I actually didn't follow the patient in the unit. My colleague did. I saw them once as a consult on the medical floor after the event that prompted the psych admission and once at the end of last week for an initial outpatient evaluation. I have the inpatient notes though.
  20. whopper

    whopper Former jolly good fellow

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    --------------------------------------------------------------------------------
    What likely happened was the lawyer doesn't know how this works and asked to subpeona you. The judge didn't now the lawyer didn't know what he was doing and allowed it.

    Now it leads to you having to show up, waiting about 1-2 hours before you're called in, then they realize you shouldn't have been there in the first place, and they let you go. During the entire fiasco you get about 3 hours of your time wasted. More if the courthouse is far away.

    If you do private forensic work, you can bill the second you leave home so if they make you wait, fine. You just pocketed a few hundred dollars for playing tetris on your cellphone.

    I'd call this lawyer and tell ask him to clarify why he wants you there and if they want you to do any work for the court in terms of new evaluations it's not your responsibility nor within your expertise to do so. That should hopefully get you out of this. Trust me on child custody evaluations, even top people in the field don't want to touch these with a ten foot pole. The court can't order you to do one unless the judge breaks the law (and I've seen this happen but it's rare), and makes you do one. While I've seen judges make inappropriate decisions, I have never seen one yet that made a doctor do an evaluation against the doctor's will.

    Having seen the patient on consult even further narrows down the box because now your only responsibility was to answer the question asked by the primary care doctor.
    Last edited: Jun 13, 2012
  21. sunlioness

    sunlioness Psychiatrist

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    So the latest is that the hearing has been continued, but no new date set yet. The patient's atty is going to encourage the patient to come in and sign a release so that I can talk to him directly. (This is all via the hospital attorney). The question he wants answered though is whether the patient would be dangerous around their kids by virtue of having made a suicide attempt.

    My sense is that a suicide attempt doesn't make someone dangerous around their kids per se, but whether this specific person is dangerous around their kids at all isn't something I'm qualified to comment on because of all the stuff we've been talking about. But is even saying the first piece something I should say? I don't have any data on that. It's just more of a sense. I mean we don't routinely report patients who attempted suicide and have kids to protective services just by virtue of the attempt.

    Anyway hopefully I'll have a release soon and can talk to this guy directly. Thanks again for all your help.
  22. whopper

    whopper Former jolly good fellow

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    Tell the court that the best person qualified to make this assessment is a forensic psychiatrist with no treatment relationship. If you did not have to answer this question on consult, you have no responsibility to answer this to the court. Even if you dealt with this question during consult, that was then, this is now, and you'd have to get current data to make this assessment and doing so would be inappropriate since your treatment relationship ended with her.

    Better to address this before you actually have to show up so your time isn't wasted. If you are an APA member, you may be able to get the local chapter to explain this to the court to show that a professional society upholds this opinion.
  23. sunlioness

    sunlioness Psychiatrist

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    I saw the patient on consult and then they established with me as an outpatient when they were discharged. In neither instance was I asked to comment on this, but I still do have an ongoing treatment relationship, though one of very short duration. Nevertheless, I think your point still holds. I'm still not trained in making these assessments. I'll discuss it with the attorney when I'm allowed to talk to him. I am an APA member and one of my colleagues here is very active in the APA. I'll try to ask him about it.
  24. sunlioness

    sunlioness Psychiatrist

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    Just when you think it couldn't get any more obnoxious, family members in tears start calling and making demands.

    Calgon, take me away!
  25. fiatslug

    fiatslug Senior Member

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    Arrgh! Horrible! I'm sorry you're being sucked into such an uncomfortable situation.
  26. sunlioness

    sunlioness Psychiatrist

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    Thank you. I just keep reminding myself about the concert I'm going to in the Big City this weekend. Gotta keep my eyes on the prize. Hopefully this will be mostly resolved by then.
  27. sunlioness

    sunlioness Psychiatrist

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    Random somewhat unrelated question (there aren't updates on this situation yet -- still no release) ...

    I get how as the treating provider it could undermine the therapeutic alliance to be the one deciding on suitability for custody, even if I had the appropriate training. That makes total sense to me. How is this any different than being called upon to complete disability paperwork and assess return to work? I had a patient nearly in tears because I suggested they might want to think about going back to work. They're functioning fine at home. I point this out and they say they can't possibly go back because work is just too stressful. We talk about possible career change to something less stressful, but I think bottom line is the patient just really doesn't want to work, has some social anxiety and gets anxious thinking about it. And you know? I feel the same way some days, but I'm not filing a disability claim. And I don't like being put in this position as it feels like I'm either filling out paperwork that I think is a load of crap or I'm damaging the treatment alliance by telling people that they're not the only one who doesn't like their job. And I don't recall explicitly being trained in what counts as legitimate grounds for disability in mental health either. I mean sometimes it's very obvious. And sometimes it's really not.

    Anyway just some thoughts as I'm sitting here with disability paperwork.
    Last edited: Jun 14, 2012
  28. benjee

    benjee Member

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    Hi everyone,
    does anyone know the website where I find out the professional guidelines for psychiatrist ? Because I was assigned ( not by court) to evaluate someone (problem with legal system -- current sex offender) for mood or any psychiatric illness and I don't have any experience in this population . I was only able to eval the mood or psychotic part, but not others . I am trying to see if I can refuse to eval this type of population since I don't have any training in this aspect ( pathology and treatment ) in sex offenders. I don't even have forensic training either.
    Also, any advcie is welcome. thanks

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