subpoena to appear in court..questions

[vistaril]

I know this topic has been asked before, but every situation is a little different it seems.

Here is the background(being sure to be vague and not include overly specific info):

-I got a subpoena to testify in a court(lets say a court involving something like dhr, cps, child welfare, etc).
-I saw the pt one time, about a year ago. I haven't seen the patient since then. The therapist at the clinic(a clinic I know longer work) saw the patient twice total(one time after me). basically she just didn't follow up and that was that and we discharged her from clinic.
-she was a poor historian of course, but she was bizarre. I put psychotic d/o NOS. At the time I didn't have any records and just a convoluted story. We've since initially gotten some records to complete the picture a little bit, but not a lot as she dropped out of treatment.
-The subpoena form states issued at the request of the plaintiff/state
-I very vaguely remember the patient, as it's an intake I did once a year ago and pt didn't follow up. My note is pretty detailed and well done.

So even though I realize this is about as bread and butter as it gets in terms of this kind of stuff, I've got a lot of questions because I've never really been involved with this before.

1) Any way to get out of this? Spending a day(or even a few hours) in a courthouse is really not something I can do the day in question. I mean I *can* do it(I doubt it meets undue hardship or whatever), but it would be costly to me. Do you think If I emailed them and told them the above they would just let us send our record?

2) What can I say anyways? Can we even send the records? we don't have any release on file from the patient to release info to court. Or does the subpoena override that? what are the privacy/hippa issues here?

3) I've read a little about types of psych witnesses. I have no forensic training and am a general psychiatrist. Would I be a fact witness here, an expert witness, or a hybrid witness? If they want me as an expert witness, can I decline? If they want me as a fact witness, can I just tell them all I will do is read my note and nothing else and that would be of no use? If they want me as a hybrid witness, can I just tell them to f off?

thanks in advance

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[PikminOC]

He's baaaaaaaaaaacccck!

 

[vistaril]

He's baaaaaaaaaaacccck!

huh...who are you? I still browse this forum from time to time. Lets keep it on topic- if you have anything useful to add feel free to do so.

update- just read it again and it appears it isn't even a real subpoena because in one part of the form it says "contact the above attorney to be placed on call to testify". That means that one of the attorneys involved in this case is asking me to come. The only reason I have to come is by judges order right? Not some attorney for one of the sides asking me to come and calling it an order/subpoena?

 

[hamstergang]

Can you call your malpractice insurance company and speak to a lawyer for free before ignoring or responding to this letter? Are these the kinds of questions they'd answer?

 

[SomeDoc]

I know this topic has been asked before, but every situation is a little different it seems.

Here is the background(being sure to be vague and not include overly specific info):

-I got a subpoena to testify in a court(lets say a court involving something like dhr, cps, child welfare, etc).
-I saw the pt one time, about a year ago. I haven't seen the patient since then. The therapist at the clinic(a clinic I know longer work) saw the patient twice total(one time after me). basically she just didn't follow up and that was that and we discharged her from clinic.
-she was a poor historian of course, but she was bizarre. At the time I didn't have any records and just a convoluted story. We've since initially gotten some records to complete the picture a little bit, but not a lot as she dropped out of treatment.
-The subpoena form states issued at the request of the plaintiff/state
-I very vaguely remember the patient, as it's an intake I did once a year ago and pt didn't follow up. My note is pretty detailed and well done.

So even though I realize this is about as bread and butter as it gets in terms of this kind of stuff, I've got a lot of questions because I've never really been involved with this before.

1) Any way to get out of this? Spending a day(or even a few hours) in a courthouse is really not something I can do the day in question. I mean I *can* do it(I doubt it meets undue hardship or whatever), but it would be costly to me. Do you think If I emailed them and told them the above they would just let us send our record?

2) What can I say anyways? Can we even send the records? we don't have any release on file from the patient to release info to court. Or does the subpoena override that? what are the privacy/hippa issues here?

3) I've read a little about types of psych witnesses. I have no forensic training and am a general psychiatrist. Would I be a fact witness here, an expert witness, or a hybrid witness? If they want me as an expert witness, can I decline? If they want me as a fact witness, can I just tell them all I will do is read my note and nothing else and that would be of no use? If they want me as a hybrid witness, can I just tell them to f off?

thanks in advance

I would contact the clerk of the relevant court, and inquire first to determine if it is a valid subpoena that has been issued by the court. If it is an actual subpoena, and not a request from an attorney which "looks" like it is a subpoena on paper, and if you are ok with forwarding the individual's information, I would only consider sending the records addressed directly to the judge, who will then decide who to disseminate the records to (prosecution/plaintiff or defense, or both). It seems that you are mainly being asked to testify as a factual witness, although you may be asked to provide your professional opinion based on your treatment of the patient. Also, I would edit and remove any diagnoses on your post in abundance of caution.

 

[smalltownpsych]

When I am subpoenaed by an attorney to testify in something like this and they want me to appear, we charge them. You have to respond to a subpoena, but the response can be that you will not provide the records. If so, then the court would have to rule on it. The advice of contacting an attorney is wise. Also, the patient is generally the holder of the privilege so if they want the records released that is their call, but it sounds like the state wants the records so I would think that they would need to get a court order before I would hand over the records. This is not legal advice just talking about what I would be thinking about. Again, consult an attorney.

 

[vistaril]

Can you call your malpractice insurance company and speak to a lawyer for free before ignoring or responding to this letter? Are these the kinds of questions they'd answer?

yeah I should, but maybe malpractice companies secretly keep a record of those types of informal inquiries? Im certainly not going to spend one cent of my own money to handle this garbage, but I need to make sure I won't get in trouble if I just tell them to f off without doing it right.

 

[vistaril]

I would contact the clerk of the relevant court, and inquire first to determine if it is a valid subpoena that has been issued by the court. If it is an actual subpoena, and not a request from an attorney which "looks" like it is a subpoena on paper, and if you are ok with forwarding the individual's information, I would only consider sending the records addressed directly to the judge, who will then decide who to disseminate the records to (prosecution/plaintiff or defense, or both). It seems that you are mainly being asked to testify as a factual witness, although you may be asked to provide your professional opinion based on your treatment of the patient. Also, I would edit and remove any diagnoses on your post in abundance of caution.

Im wondering about the actual subpoena part? Can lawyers just subpoena people without the judges consent? I guess so. So it looks like the proper thing to do is formally respond to the subpoena by saying "hell no" and then wait to see if the judge does a court order. I need to figure out how to formally respond. call, email, fax, etc

And Im definitely NOT ok sending any information about this patient to anyone. Unless there is a court order saying I have to. The patient has signed no release for me to send anything to anyone, and this is someone I saw once a year ago.

 

[vistaril]

When I am subpoenaed by an attorney to testify in something like this and they want me to appear, we charge them. QUOTE]

im not interested in making any money off this....I just don't want to show up for any reasonable amount of money. If Im court ordered(which Im pretty sure I wont be) my understanding is that I can still refuse to be any sort of hybrid witness and be a strictly fact witness. I don't really even care if I am court ordered to send the records.....fine by me. Won't cost me a dime and probably best for all involved. I just don't want to be court ordered to have to appear.

 

[heyjack70]

If you have a legal department where you were working at the time I would contact them, like a retained counsel or something. If not I would consider contacting the malpractice carrier and asking for their advice; they are interested in preventing lawsuits and will probably help you with some guidance.

If you don't want to do this, I would contact the attorney and ask for details of the request. It sounds like the state may want your testimony saying the patient is psychotic as grounds to remove the child from the home. If this is the case, invariably they will want your opinion, which means you are being called as an expert witness. They may say they just want you to be a fact witness, but that is probably a lie so they don't have to pay you, then when you are testifying they will ask for your opinion and you will either have to give it for free or set a boundary in court about being a fact witness etc. which will probably not make anyone happy because it's wasting their time, and the judge may try to compel you to testify as an expert anyways without any money. Or even if in that moment the lawyer agrees to pay you as an expert witness, good luck collecting any of that money after you've testified. Anyways, I would firmly state to the requester that you are being called as an expert witness even if they try to say you will just be a fact witness, then tell them you charge $535/hour for all the time you put into the case, including record review, travel, report writing, testifying etc, and that you need to be paid upfront, and that if testifying you charge a full 8 hour day of court, plus travel etc, and you need to be paid at minimum 4 weeks before the hearing and if it is cancelled or rescheduled with less than 4 weeks notice they get no refund and will have to pay you again for the rescheduled appearance. And if they are willing to pay for all of that, you may decide to do it because it's a lot of money. But they will probably find some reason they don't need your testimony.

You will also want the requester's email address so after the phone call you can email them a summary of what was discussed so their is an actual record somewhere and they can't later tell the judge you ignored the subpoena/request.

 

[psych md jd]

I know this topic has been asked before, but every situation is a little different it seems.

Here is the background(being sure to be vague and not include overly specific info):

-I got a subpoena to testify in a court(lets say a court involving something like dhr, cps, child welfare, etc).
-I saw the pt one time, about a year ago. I haven't seen the patient since then. The therapist at the clinic(a clinic I know longer work) saw the patient twice total(one time after me). basically she just didn't follow up and that was that and we discharged her from clinic.
-she was a poor historian of course, but she was bizarre. I put psychotic d/o NOS. At the time I didn't have any records and just a convoluted story. We've since initially gotten some records to complete the picture a little bit, but not a lot as she dropped out of treatment.
-The subpoena form states issued at the request of the plaintiff/state
-I very vaguely remember the patient, as it's an intake I did once a year ago and pt didn't follow up. My note is pretty detailed and well done.

So even though I realize this is about as bread and butter as it gets in terms of this kind of stuff, I've got a lot of questions because I've never really been involved with this before.

1) Any way to get out of this? Spending a day(or even a few hours) in a courthouse is really not something I can do the day in question. I mean I *can* do it(I doubt it meets undue hardship or whatever), but it would be costly to me. Do you think If I emailed them and told them the above they would just let us send our record?

2) What can I say anyways? Can we even send the records? we don't have any release on file from the patient to release info to court. Or does the subpoena override that? what are the privacy/hippa issues here?

3) I've read a little about types of psych witnesses. I have no forensic training and am a general psychiatrist. Would I be a fact witness here, an expert witness, or a hybrid witness? If they want me as an expert witness, can I decline? If they want me as a fact witness, can I just tell them all I will do is read my note and nothing else and that would be of no use? If they want me as a hybrid witness, can I just tell them to f off? Hybrid. You will testify as to the facts and as an expert as to the diagnosis, prognosis and treatment. Records can be entered into evidence by themselves, but someone [the witness] has to explain them to the court. True experts don't treat the patient.

thanks in advance

huh...who are you? I still browse this forum from time to time. Lets keep it on topic- if you have anything useful to add feel free to do so.

update- just read it again and it appears it isn't even a real subpoena because in one part of the form it says "contact the above attorney to be placed on call to testify". That means that one of the attorneys involved in this case is asking me to come. The only reason I have to come is by judges order right? Not some attorney for one of the sides asking me to come and calling it an order/subpoena?

Attorneys can issue subpoenas. You will testify as to what you wrote. Records are subpoenaed by a subpoena duces tecum. After being qualified, you should ask the court if the patient has waived the psychotherapist patient privilege. Most likely, the patient-litigant exception will apply. You can be held in contempt if you do not show up for court. Being placed on call means that there is no fixed time for you to show up. The attorney may call an hour or so in advance of when to be there to testify. It could also mean you may not need to testify at all. You are a hybrid witness. You will testify as to the facts and as an expert as to the diagnosis, prognosis and treatment. Records can be entered into evidence by themselves, but someone [the witness] has to explain them to the court.

I would contact the clerk of the relevant court, and inquire first to determine if it is a valid subpoena that has been issued by the court. If it is an actual subpoena, and not a request from an attorney which "looks" like it is a subpoena on paper, and if you are ok with forwarding the individual's information, I would only consider sending the records addressed directly to the judge, who will then decide who to disseminate the records to (prosecution/plaintiff or defense, or both). It seems that you are mainly being asked to testify as a factual witness, although you may be asked to provide your professional opinion based on your treatment of the patient. Also, I would edit and remove any diagnoses on your post in abundance of caution.

See above. If it looks like a subpoena and walks like a subpoena...

Im wondering about the actual subpoena part? Can lawyers just subpoena people without the judges consent? I guess so. So it looks like the proper thing to do is formally respond to the subpoena by saying "hell no" and then wait to see if the judge does a court order. I need to figure out how to formally respond. call, email, fax, etc

And Im definitely NOT ok sending any information about this patient to anyone. Unless there is a court order saying I have to. The patient has signed no release for me to send anything to anyone, and this is someone I saw once a year ago.

Asked and answered? The judge won't issue a court order, he will send the sheriff to bring you in. I have seen this happen. The doctor got tired of waiting and went back to his office. He was later brought back to court, in some shiny bracelets, wearing his white coat.

If you have a legal department where you were working at the time I would contact them, like a retained counsel or something. If not I would consider contacting the malpractice carrier and asking for their advice; they are interested in preventing lawsuits and will probably help you with some guidance.

If you don't want to do this, I would contact the attorney and ask for details of the request. It sounds like the state may want your testimony saying the patient is psychotic as grounds to remove the child from the home. If this is the case, invariably they will want your opinion, which means you are being called as an expert witness. They may say they just want you to be a fact witness, but that is probably a lie so they don't have to pay you, then when you are testifying they will ask for your opinion and you will either have to give it for free or set a boundary in court about being a fact witness etc. which will probably not make anyone happy because it's wasting their time, and the judge may try to compel you to testify as an expert anyways without any money. Or even if in that moment the lawyer agrees to pay you as an expert witness, good luck collecting any of that money after you've testified. Anyways, I would firmly state to the requester that you are being called as an expert witness even if they try to say you will just be a fact witness, then tell them you charge $535/hour for all the time you put into the case, including record review, travel, report writing, testifying etc, and that you need to be paid upfront, and that if testifying you charge a full 8 hour day of court, plus travel etc, and you need to be paid at minimum 4 weeks before the hearing and if it is cancelled or rescheduled with less than 4 weeks notice they get no refund and will have to pay you again for the rescheduled appearance. And if they are willing to pay for all of that, you may decide to do it because it's a lot of money. But they will probably find some reason they don't need your testimony.

You will also want the requester's email address so after the phone call you can email them a summary of what was discussed so their is an actual record somewhere and they can't later tell the judge you ignored the subpoena/request.

[True]Experts have no treatment relationship with the subject, that is how they can "do harm" [give a negative opinion]. As the treating psychiatrist, you will usually be entitled to a witness fee and mileage. Sometimes the DA will comp a hotel room.

Appearing in court is often inconvenient and time consuming, but it is part of being a psychiatrist. Be thankful you are only a witness and not a defendant. To paraphrase Prof. Kingsfield, go and fill the courtroom with your intelligence.

 

[heyjack70]

I agree a treating doctor should not be their patient's expert witness, but the intention behind this subpoena is almost certainly to get the treating doctor to provide an opinion for the court. You can try to remain a fact witness but there will be pressure to explain your diagnosis, the wording/vocabulary in the report, symptoms leading to your diagnosis, prognosis, etc etc. You need to think, is my answer to this question based on my years of training and experience as a psychiatrist? If the answer is yes, you are not a fact witness.

How is a fact witness going to be any use to the lawyer beyond stating they did write the report in question? They can't be really. The fact witness can say they saw the person and verify what they wrote in the report, but as soon as questions about "what is psychosis", or "can you define 'tangential thought process'" or " how much do patient's stabilize on antipsychotics" come up you are smack dab in expert witness land. Better to cut this off at the pass by pricing yourself above what the lawyer is willing to pay. The way this should work is they don't even need the treating doctor. The lawyer should hire an independent expert to review the records and write their own report, then they can explain all of these things to the court. But the lawyer, if they're working for the government, probably does not have the money for that, or doesn't want to pay an expert what it's going to cost to get them to do this work for them. So they are trying to get you to do it for free.

 

[PikminOC]

huh...who are you? I still browse this forum from time to time. Lets keep it on topic- if you have anything useful to add feel free to do so.

update- just read it again and it appears it isn't even a real subpoena because in one part of the form it says "contact the above attorney to be placed on call to testify". That means that one of the attorneys involved in this case is asking me to come. The only reason I have to come is by judges order right? Not some attorney for one of the sides asking me to come and calling it an order/subpoena?

 

[PikminOC]

Be thankful you are only a witness and not a defendant. To paraphrase Prof. Kingsfield, go and fill the courtroom with your intelligence.

 

[psych md jd]

I agree a treating doctor should not be their patient's expert witness, but the intention behind this subpoena is almost certainly to get the treating doctor to provide an opinion for the court. You can try to remain a fact witness but there will be pressure to explain your diagnosis, the wording/vocabulary in the report, symptoms leading to your diagnosis, prognosis, etc etc. You need to think, is my answer to this question based on my years of training and experience as a psychiatrist? If the answer is yes, you are not a fact witness.

How is a fact witness going to be any use to the lawyer beyond stating they did write the report in question? They can't be really. The fact witness can say they saw the person and verify what they wrote in the report, but as soon as questions about "what is psychosis", or "can you define 'tangential thought process'" or " how much do patient's stabilize on antipsychotics" come up you are smack dab in expert witness land. Better to cut this off at the pass by pricing yourself above what the lawyer is willing to pay. The way this should work is they don't even need the treating doctor. The lawyer should hire an independent expert to review the records and write their own report, then they can explain all of these things to the court. But the lawyer, if they're working for the government, probably does not have the money for that, or doesn't want to pay an expert what it's going to cost to get them to do this work for them. So they are trying to get you to do it for free.

Having been called as a treating psychiatrist and in other cases as an expert witness, I think some concepts are being lost in translation. All experts are not created equal.

You are correct in that the treating physician will give the facts and explain the diagnosis, prognosis and explanations. This does indeed call into play expert testimony, but of a limited type that is different from the testimony of an expert who did not treat the patient. For instance, in a medical malpractice case, the defendant, the treating physician explains what happened, what his treatment and prognosis was etc. The expert witness [non-treating physician] is called to review what the physician did, the diagnosis and prognosis, etc., but he/she can go beyond that and define the standard of care, in other words what should have been done, and is also allowed to answer hypothetical questions.

Here, it sounds like the OP is being called to explain the situation, what was diagnosed etc. [as a fact witness] and explain his diagnosis, prognosis etc. [as an expert witness], both parts constituting what is called the "hybrid" witness. But he is not appearing solely as an expert witness. [Perhaps the former should be an expert witness and the latter an Expert witness? Or a low level expert and high level expert? Or is it simpler to avoid "hybrid" and just stay with fact and expert?]

[AAPL guidelines frown upon being the treating psychiatrist and expert witness in the same case. But I imagine there are instances where geography and availability permit no other choice.]

The treating physician is usually called because he/she has first hand, or percipient knowledge of the situation.

So, generally:

• If you treated the patient, and are compelled to appear b/c of a subpoena, you are a "hybrid" witness-you can testify as to the facts and provide some limited expert testimony. You generally can't charge for your appearance because the subpoena legally forces you to appear, but jurisdictions may vary. I can get a $35 witness fee and mileage.
• If you never treated the patient, but instead reviewed the records and evaluated the patient and are compelled to appear b/c you have been retained under contract, you are an Expert witness-you can talk about national standards, opine freely, and answer hypothetical questions. You can charge the big bucks for your appearance.

 

[heyjack70]

So a hybrid witness can provide fact and expert testimony. I think the crux of the issue for vistaril is he doesn't want to do it. I still think the best bet is to declare yourself an expert and demand to be paid so much the attorney doesn't want you. If the attorney pushes forward to force you in as a hybrid witness for free, the next step is to imply your testimony will only hurt their case and hopefully they will release the subpoena.

 

[psych md jd]

So a hybrid witness can provide fact and expert testimony. I think the crux of the issue for vistaril is he doesn't want to do it. I still think the best bet is to declare yourself an expert and demand to be paid so much the attorney doesn't want you. If the attorney pushes forward to force you in as a hybrid witness for free, the next step is to imply your testimony will only hurt their case and hopefully they will release the subpoena.

Generally, the witness does not dictate to the court his status, nor make demands of the court. The attorney does not have to pay you, he/she just needs to issue a subpoena. The OP will be testifying about what he wrote/thought. If he is going to "sabotage" the case to get out of the subpoena, the opposing attorney may well call him as their witness. And, don't forget your ethical responsibilities. As the treating psychiatrist, you have a duty to advocate for your patient. Do no harm also applies on the witness stand.

 

[PistolPete]

Very interesting thread. Thank you especially to psych md jd for providing such a detailed answer. I've never heard of the hybrid witness, so this thread has been enlightening.

Vistaril, good luck in your case.

 

[heyjack70]

Generally, the witness does not dictate to the court his status, nor make demands of the court. The attorney does not have to pay you, he/she just needs to issue a subpoena. The OP will be testifying about what he wrote/thought. If he is going to "sabotage" the case to get out of the subpoena, the opposing attorney may well call him as their witness. And, don't forget your ethical responsibilities. As the treating psychiatrist, you have a duty to advocate for your patient. Do no harm also applies on the witness stand.

To be honest, the more I think about this hybrid witness concept the more it sounds like something a bunch of lawyers thought up to not pay doctors for their time and expertise. I'm not advocating that vistaril dictate to the court what type of witness he is; I'm just saying the practice/field of law is inexact and you could definitely make your case to the requesting attorney that you are a fact witness and need to be paid for your time. I disagree about having an ongoing obligation to advocate for a patient in their court hearing, especially a patient seen once, 1 year prior, who is no longer paying me for my time. In addition, if called by the attorney opposing the patient you may not be advocating for the patient at all, and may in fact be doing them harm by showing up in court.

It would be nice if the concept of "hybrid witness" was actually defined in statute; do you have any resources to justify this concept?

 

[heyjack70]

Looking into this issue a bit more I found this article http://www.law360.com/articles/106126/treating-physician-v-expert-witness which supports my position about expert testimony starting once opinion enters the room. One example in the article mentions a fact witness doctor being able to testify that a lipid test was elevated, but it would become expert testimony if the doctor opined on why the test was elevated. Where you draw that line is blurry. And even though AAPL advises against being your own patient's expert witness, I think being called in cases like vistaril's will undoubtedly shift into this type of expert opinion because just reading back the chart is really pretty useless.

 

[psych md jd]

The "hybrid" concept was "thought up" by judges to clarify a Rule of Civil Procedure in Federal courts regarding the requirement of written reports:

http://apps.americanbar.org/litigat...12-1112-hybrid-witnesses-federal-rule-26.html

Paying a fact witness for their time would be a great idea. How practical would that be? Are you going to pay all fact witnesses or only certain ones?

I don't think the line is blurry. A physician having first hand knowledge of the facts and specialized medical knowledge is a part fact and part expert witness-hence the term "hybrid" witness. But the "hybrid" witness is not an expert witness nor becomes one by providing expert testimony. Expert witnesses have no first hand knowledge of the facts and are retained [after the fact] in preparation for litigation. They review the records and conduct evaluations to support their opinions or refute the opinions of the opposing expert. Because of the rules of evidence, expert witnesses have different duties and obligations.

I would say that as the treating psychiatrist, the OP should have first hand knowledge of the facts and the subpoena indicates to me that he was not retained by counsel in preparation for litigation. Reading the chart into evidence would be useless. He will likely be explaining what the terms mean, how he arrived at the diagnosis etc.

As for ongoing obligations, some courts/states have already ruled a person's privacy rights survive their death. I follow the "once a patient, always a patient approach ." That way, boundaries, legal, and ethical obligations are consistent for all patients.

In addition, if called by the attorney opposing the patient you may not be advocating for the patient at all, and may in fact be doing them harm by showing up in court.

It seems to me that no matter what side calls you as a witness, a skillful, thoughtful psychiatrist can maintain his/her ethical and legal responsibilities. I have seen many psychiatrists who testify appear unencumbered by the thought process.


"That's all I have to say about that."

 

[heyjack70]

The "hybrid" concept was "thought up" by judges to clarify a Rule of Civil Procedure in Federal courts regarding the requirement of written reports:

http://apps.americanbar.org/litigat...12-1112-hybrid-witnesses-federal-rule-26.html

Paying a fact witness for their time would be a great idea. How practical would that be? Are you going to pay all fact witnesses or only certain ones?

I don't think the line is blurry. A physician having first hand knowledge of the facts and specialized medical knowledge is a part fact and part expert witness-hence the term "hybrid" witness. But the "hybrid" witness is not an expert witness nor becomes one by providing expert testimony. Expert witnesses have no first hand knowledge of the facts and are retained [after the fact] in preparation for litigation. They review the records and conduct evaluations to support their opinions or refute the opinions of the opposing expert. Because of the rules of evidence, expert witnesses have different duties and obligations.

I would say that as the treating psychiatrist, the OP should have first hand knowledge of the facts and the subpoena indicates to me that he was not retained by counsel in preparation for litigation. Reading the chart into evidence would be useless. He will likely be explaining what the terms mean, how he arrived at the diagnosis etc.

As for ongoing obligations, some courts/states have already ruled a person's privacy rights survive their death. I follow the "once a patient, always a patient approach ." That way, boundaries, legal, and ethical obligations are consistent for all patients.



It seems to me that no matter what side calls you as a witness, a skillful, thoughtful psychiatrist can maintain his/her ethical and legal responsibilities. I have seen many psychiatrists who testify appear unencumbered by the thought process.

The bolded part sounds like expert witness territory to me. If you read the article I posted it's drawing into question hybrid witnesses as non-experts and arguing they are a loop hold to dodge the daubert evidence standard. If your testimony has to satisfy daubert, I don't care how you try to rationalize the treating doctor as a non expert, if the court is holding your testimony to that standard you're an expert. I don't think it's as cut and dry as you present it.

And the obvious question is "why don't hybrid witnesses deserve compensation." They're hybrid, fact + expert, so why is the expert piece not worthy of being paid? I think it's because lawyers are cheap.

And this:

As for ongoing obligations, some courts/states have already ruled a person's privacy rights survive their death.

I'm not sure how privacy after death applies in this discussion about whether a treating doctor is an expert or not.

 

[psych md jd]

I think you are overgeneralizing what is in that article and taking it out of context:

Causation is a fundamental element for proving a product liability claim. In most states, expert testimony is required for the plaintiff to prove that the product was a medical cause of the alleged injury...

One such recurring strategy is to characterize treating physicians who intend to offer a causation opinion as “fact” rather than “expert” witnesses...

The court saw through this tactic and held that Dr. Shoemaker’s testimony had to meet the requirements of Frye, regardless of whether he was classified as a treating physician or an expert witness, because he was offering a scientific opinion on causation...

Thus, in Daubert jurisdictions, it is well established that a treating physician who intends to testify to a reasonable degree of medical certainty that a particular agent or event caused plaintiff’s injury must meet the reliability requirements established in Daubert...

Depending on the law in your jurisdiction, there may be an open question as to whether the court will apply the standards for admissibility of expert testimony to a treating physician who offers a medical causation opinion...

Thus, in Daubert jurisdictions, it is well established that a treating physician who intends to testify to a reasonable degree of medical certainty that a particular agent or event caused plaintiff’s injury must meet the reliability requirements established in Daubert.

Because these holdings focus on the nature of the testimony rather than the label of the witness, it is not surprising that federal courts generally subject causation testimony offered by treating physicians to the same scrutiny as those offered by retained expert witnesses...​

The key words throughout that article are causation and methodology vis-a-vis an expert's opinion.

Even the example you cite about about lipids involved causation:

But when that witness goes a step further and opines on the cause of those elevated lipid levels, she has stepped into the realm of expert testimony because she is drawing on her “scientific, technical or other specialized knowledge” to reach that conclusion.
​

The subject of that article was the admissibility of testimony, specifically scientific evidence, not what legally distinguishes a fact vs. expert witness, the limitations of testimony of the two, the procedural requirements etc. That article argues that since an expert's opinion is subject to Daubert scrutiny, a "hybrid" witness giving the same testimony should also be subject to Daubert. Logically, there is some merit to that. [If you look at Frye, the standard preceding Daubert, the issue there was whether a test, the measurement of blood pressure, was admissible to show the witness was telling the truth. The focus was on the admissibilty of that scientific evidence.] Your argument that since a hybrid witness is giving expert testimony, the witness is then an expert witness is severely flawed because that would make all hybrid witnesses into expert witnesses, in essence making the OP, and for that matter, you and I, on par with the likes of Resnick, Scott, Ash, Zonana, Dietz, Weinstock, et al. If your argument is followed, it would upend rules of evidence and civil procedure that have been in use for centuries.

As Gutheil and Bursztajn wrote in the AAPL journal (J Am Acad Psychiatry Law 33:2:150-152 (June 2005)):

Daubert v. Merrell Dow Pharmaceuticals and its successors, so-called progeny, General Electric v. Joiner and Kumho Tire v. Carmichael, theoretically represented attempts by the judiciary, among other goals, to raise the level of expert testimony available to the legal system and to decrease the perceived problem of “junk science” testimony—a problem that was expected to increase as the complexity and specialization of science also increased. Junk science could be generally defined as scientific testimony based on idiosyncratic, invalid, or unreliable science, in which the methodologies used are not generally accepted by the relevant scientific community.​

Causation, methodology, and admissibility of scientific evidence are probably far removed from the OP's situation. I don't think the OP is going to be giving any causation opinions or proffering "junk science" testimony, but rather what he saw, observed, his diagnosis and rationale.

You said you disagree about having an ongoing obligation to advocate for a patient in their court hearing, especially a patient seen once, 1 year prior, who is no longer paying you for your time. That privacy rights survive the decedent was meant to show some obligations and duties never extinguish.

 

[psych md jd]

Here's something else to keep in mind:

The fact or hybrid witness may spend 1 or 2 hours on the stand relating the facts, diagnosis and prognosis.

For the expert witness, it may be 1 or 2 days, mostly being grilled during cross-examination and being asked to cite and describe the articles, studies, and sources forming the basis of your opinion. The goal being to discredit you any way possible.

Are you sure you want to be an expert witness?

 

[heyjack70]

Here's something else to keep in mind:

The fact or hybrid witness may spend 1 or 2 hours on the stand relating the facts, diagnosis and prognosis.

For the expert witness, it may be 1 or 2 days, mostly being grilled during cross-examination and being asked to cite and describe the articles, studies, and sources forming the basis of your opinion. The goal being to discredit you any way possible.

Are you sure you want to be an expert witness?

The point of being an expert is to try and get out of going at all. But if you have to go at least you'll get paid. My point is that even if called as a "fact" or hybrid witness the attorneys really want your opinion on symptoms and diagnosis. If that's all in the medical record it can stand on its own; but likely they want to question you further to explain beyond the report and provide more information based on your experience and training as a doctor, which IMO is what an expert witness is; someone with specialized knowledge to help inform the court. This isn't someone who is testifying about who ran a red light. If they want the doc to testify about the patient arriving in clinic, taking meds, or other basic facts that is fine, but once it shifts into diagnosis and conclusions the doctor has made based on symptoms, exam, labs, etc...that's expert witness territory. Or hybrid witness territory, and should be compensated.

Ultimately, they can force you to testify, but they can't force you to give effective testimony. I think something you assumed earlier was that I was advocating "sabotaging" testimony, or frankly lying, but you certainly would not want to do that or need to do that. You could just be a horribly ineffective witness by being vague and unclear.

The real point of my post is the lawyer wants you to provide some type of expert opinion on something, even if they say you are a fact witness. We don't know the facts of this case, but assuming it's the state contacting you for testimony about child protective services, they probably want you to support a diagnosis of psychotic disorder and then explain, or at least imply, why someone with this diagnosis should not be taking care of children. If they want to ask about the patient's hallucinations and delusions, fine, you can read from the report. But that's not going to make their case. They will need you to go a step further and explain, or at least imply, why the patient is too sick to keep their kids. Or they will need another expert to come in, which they probably don't have because they have no money for expert witnesses in a CPS case, and they will want you to provide that expert opinion for free.

Maybe what Vistaril needs to do is call the attorney and ask them if they have another expert to provide an opinion based on the substance of his report. The attorney will most likely not have an expert to do that, at which point vistaril should discuss what type of testimony will be needed and start exploring what type of case the attorney is trying to put together. Once vistaril realizes he is going to be asked about symptoms to justify taking the patient's kids away he should advocate for himself to be an expert and get paid for his time.

 

[psych md jd]

The point of being an expert is to try and get out of going at all. But if you have to go at least you'll get paid.

I'm speechless.

Actually, I'm amazed at your illogical tour de force.

 

[heyjack70]

I'm speechless.

What a worthless reply. Do you practice clinical psychiatry or just do expert witness work? I edited the above extensively.

 

[heyjack70]

.

Actually, I'm amazed at your illogical tour de force.

Personal attacks are for the lazy MDJD

 

[psych md jd]

Actually, I do both. As well as supervise forensic fellows and write articles on witnesses and testimony for aapl and other journals.

 

[notdeadyet]

psych md jd's opinions appear to be on point. I'm not really seeing the confusion between witness and expert.

If you have a direct clinical relationship with the patient, you are a witness. You can be asked questions about your treatment and your impressions of the case. They can ask you to opine.

If you do not have a clinical relationship with the patient, you can be brought in as an expert witness. And therefore name your price and see if you have any takers.

I find it interesting that in medicine we somehow expect to receive big compensation when we're asked to act as witnesses in legal cases. If someone is in an automobile accident of some kind, the mechanic who worked on the car once may be called in to act as a witness. And he ain't going to ask if he can charge his hourly fee while he's in court. We ain't so special just because of the MD.

 

[heyjack70]

Actually, I do both. As well as supervise forensic fellows and write articles on witnesses and testimony for aapl and other journals.

When is the last time you went to court as a fact witness for one of your patients?

 

[heyjack70]

psych md jd's opinions appear to be on point. I'm not really seeing the confusion between witness and expert.

If you have a direct clinical relationship with the patient, you are a witness. You can be asked questions about your treatment and your impressions of the case. They can ask you to opine.

If you do not have a clinical relationship with the patient, you can be brought in as an expert witness. And therefore name your price and see if you have any takers.

I find it interesting that in medicine we somehow expect to receive big compensation when we're asked to act as witnesses in legal cases. If someone is in an automobile accident of some kind, the mechanic who worked on the car once may be called in to act as a witness. And he ain't going to ask if he can charge his hourly fee while he's in court. We ain't so special just because of the MD.

I would expect the be charged by the mechanic.

 

[psych md jd]

When is the last time you went to court as a fact witness for one of your patients?

Last month.

 

[NotAProgDirector]

An interesting discussion. Two questions:

1. Although the atty involved may want you to be hybrid and act as a (partial) expert, can you simply answer questions like that with "I'm not an expert in that area and can't voice an opinion for the court?". So, they could ask you: "Did this patient have hallucinations when you saw them" and you would answer yes or no. But if they ask "Should patient with hallucinations care for young children?", you state you're not an expert? In the (thankfully) few times I've been involved with the legal system, that's what I've done.

2. I am surprised that the atty is subpoena'ing you to court, and not to a depo first. Most would want to know what your answers to questions are likely to be, prior to asking them. Plus a depo usually has much wider latitude to explore questions that might be ruled irrelevant in court. Is this a cost issue? If you get depo'ed, then ? does the lawyer need to pay you for your time for that?

 

[PikminOC]

An interesting discussion. Two questions:

1. Although the atty involved may want you to be hybrid and act as a (partial) expert, can you simply answer questions like that with "I'm not an expert in that area and can't voice an opinion for the court?". So, they could ask you: "Did this patient have hallucinations when you saw them" and you would answer yes or no. But if they ask "Should patient with hallucinations care for young children?", you state you're not an expert? In the (thankfully) few times I've been involved with the legal system, that's what I've done.

2. I am surprised that the atty is subpoena'ing you to court, and not to a depo first. Most would want to know what your answers to questions are likely to be, prior to asking them. Plus a depo usually has much wider latitude to explore questions that might be ruled irrelevant in court. Is this a cost issue? If you get depo'ed, then ? does the lawyer need to pay you for your time for that?

Depo's cost mucho dinero. Court is free and judge can compel answers..

 

[honsano]

Hybrid Witness is an interesting concept. Kind of sad I just finished a Forensic Fellowship and never heard if it! jokes aside, it sounds like a hybrid is still pretty much a fact. An attorney may ask you to opine on points here and there but I imagine any board certified psychiatrist should be able to provide similar reasonable answers.

Jack it sounds like you worry about the abuse of power by attorneys to turn treating psychiatrists into unpaid hybrids but make us carry the onerous burden of being an expert as well . That won't happen because the opposition will get an expert to make you (not you per se but vist in this setting) look foolish or they'll call your treatment relationship into question hindering you from providing an unbiased opinion or whayever they need to discredit you. The last thing an attorney wants is surprises in court so I doubt they'd push the boundary very far on an unsuspecting witness who is already a bit nervous. However as you point out they want you to be there to do more than just read your notes. Play doctor for a day in a suit. Feels nice getting the better of a JD.

Really cool discussion btw ppl

 

[milesed]

I never go to court unless it's a Subpoena ad Ducems or a court order. We do call to explain this to avoid angering the judge. If they really want me, we quote them an obscene hourly rate that will be charged for each day we may possibly be there. I haven't been in years.

 

[psych md jd]

I never go to court unless it's a Subpoena ad Ducems or a court order. We do call to explain this to avoid angering the judge. If they really want me, we quote them an obscene hourly rate that will be charged for each day we may possibly be there. I haven't been in years.

Was that in a civil or criminal matter?

Were you the treating physician?

 

[Therapist4Chnge]

I never go to court unless it's a Subpoena ad Ducems or a court order. We do call to explain this to avoid angering the judge. If they really want me, we quote them an obscene hourly rate that will be charged for each day we may possibly be there. I haven't been in years.

I have found the above to be effective. I still get dragged into cases a handful of times per year (as a fact witness), but I get multiple calls/requests a week…so my fee schedule, high retainer, and strict scheduling and cancellation policy scares off most inquiries. Frankly, I think the fees I charge are fair for the extra liability and hassle of dealing with lawyers. I actually don't mind the combativeness that sometimes comes with a cross or particularly aggressive lawyer(s) deposing me, though the paperwork and disruption to my practice causes my staff a lot of grief.

 

[milesed]

Was that in a civil or criminal matter?

Were you the treating physician?

It is often child custody cases for kids I have treated. Sometimes it is a patient who has been arrested for (take your pic of anything you've seen on COPS) and they want me to give them a way out. This type of work is best left to someone with real training in forensics and/or child psyc. Every case I see is from only one side of the case. I have never met the other side in custody battles and that makes me completely biased. There are ALWAYS two very different sides to the story and the truth is usually somewhere near the middle.

The only case I went to court for free was when an adult I was seeing for depression and with mental ******ation was raped repeatedly by a transit driver. The family sued the transit company for not doing adequate background checks on the perp (previous sexual assault conviction). They won.

 

[psych md jd]

Fate steps in.

During lunch, I get a subpoena from a DA to testify in a few days.

C'est la vie pour un psychiatre légiste

 

[Therapist4Chnge]

It is often child custody cases….

There is not enough $$ in the world for me to deal with a child custody case. I actually have a question in the legal section of my intake asking specifically about child custody matters so I can screen the person out.

 

[MLT2MT2DO]

I have found the above to be effective. I still get dragged into cases a handful of times per year (as a fact witness), but I get multiple calls/requests a week…so my fee schedule, high retainer, and strict scheduling and cancellation policy scares off most inquiries. Frankly, I think the fees I charge are fair for the extra liability and hassle of dealing with lawyers. I actually don't mind the combativeness that sometimes comes with a cross or particularly aggressive lawyer(s) deposing me, though the paperwork and disruption to my practice causes my staff a lot of grief.

This is a common practice I've witnessed. One doc actually only charged the fees he would be missing out on from being away from his practice, which seems more than resonible to me.

I struggle to follow the thought process of pro-bono because they're your patient and you do what's best for your patient. If you have a patient that can't make his rent one month do you cover that as well?

 

[vistaril]

lots of interesting responses. It seems like there is still some gray area here though(as evident by the number of posters with different takes on the rules)

Update: I called them up the lawyer on the form and told him I would not be cooperating as it was something I don't care to do(compensated or not).

 

[TexasPhysician]

When I'm asked to be a fact/hybrid witness, I explain to the attorney that I'd gladly provide the records with the patient's consent, but I am not interested in testifying. Usually they ask to pay me. I explain that payment is for expert witnesses, and as I am the treating physician, I can not also ethically be the expert in this case. I explain that I would politely read my progress note to answer questions and only answer factually from the note. I explain that I'm not sure this will be helpful, but I'll gladly provide the names of other psychiatrists which could be used as an expert to strengthen their case. This has gotten me out of testifying.

If you have an interest in forensic work, you could also mention being interested in expert witness work on future case where you are not the clinician as well.

 

[Shikima]

There is not enough $$ in the world for me to deal with a child custody case. I actually have a question in the legal section of my intake asking specifically about child custody matters so I can screen the person out.

Would you be comfortable in sharing your intake process and forms?

 

[PistolPete]

Would you be comfortable in sharing your intake process and forms?

Seconded, please and thanks!

 

[vistaril]

Asked and answered? The judge won't issue a court order, he will send the sheriff to bring you in. I have seen this happen. The doctor got tired of waiting and went back to his office. He was later brought back to court, in some shiny bracelets, wearing his white coat.
QUOTE]

huh? The judge *will* issue a court order telling me I have to be there right? How the heck am I supposed to know when to be there if they don't? If the order states be there at 8 on Tuesday and I don't get called until 330, Im ok with that. I have no intention to leave as the person in your example did, and I have no intention to disobey a court order. My impression, from what Im reading though, is that an attorneys subpoena and court order from a judge are not the same thing. I've responded already to the subpoena stating I will not break patient confidentiality as the pt is REFUSING permission for me to speak about them. If this attorney asks for and receives a court order from the judge, I do intend to comply with that. I certainly don't expect to be taken to the court in handcuffs in me complying with the court order.

What am I missing here?

 

[vistaril]

update- the attorney has informed me that if I don't arrange something with him he will get a court order and it will essentially be much more difficult for me(in terms of my schedule I guess?). The patient is not going to give us permission to release the records(this angle is a non starter).

The financial end of things is not important to me. They aren't going to compensate me(beyond like 50 dollars for trouble) regardless of whether it's voluntary testimony or not. As psych jd says, you cant just dictate what type of witness you are and expect to be paid. And if court ordered well then of course Im not going to get paid. Me telling the attorney I want 1200 dollars or whatever or I'm not going to do it would get the same response as the angle Im pitching now(that I don't want to violate confidentiality) would get- "fine, we'll make you". In this capacity it's pretty clear they want me to serve as a fact witness and explain some basic principles with the facts(like for example whether its likely drug use could make untreated psychosis worse..thats not this case). HeyJack does seem to have a point that I could offer very little in the way of being useful, but this can be pretty dicey as well(I don't want to be a dick). In this particular case, however, I really wont be very useful just because I know so little about the patient or the case.

Its not that I don't want to have to take off work(and lose $$) to do this. Sure, Im not thrilled about it, but that's life I guess. My problem with it is that I respect patient-clinician confidentiality. I don't feel I should have to break my patient's confidentiality(apart from acute safety concerns, which aren't present here) just because some lawyer on one of the sides wants me to. And yes, I'm also pissed because I know so little about this patient, this case, etc and can provide such little useless info either way.

Basically, when I tell my patients in a VOLUNTARY OUTPATIENT CLINIC "this is confidential", I want that to actually mean something. I want to be able to tell me patients that the ONLY way I will break their confidentiality is when acute harm issues are at work or I am court ordered to do so. Perhaps this attorney subpoena is pretty much the same thing as a court order.....that's kind of my original question. If that's the case, that's pretty sad because the indications behind the subpoena given the circumstances are pretty piss poor.

Basically, if a judge wants to make a poor decision(imo) and say "yeah, this is such important stuff that Im going to court order it and throw confidentiality out", that's their decision and takes me off the hook. I can legitimately tell my patient(in my head) "hey, I tried to keep things confidential". But Im not going to do it unless I absolutely have to.

Any more thoughts with this new development?

 

[vistaril]

When I'm asked to be a fact/hybrid witness, I explain to the attorney that I'd gladly provide the records with the patient's consent, but I am not interested in testifying. Usually they ask to pay me. I explain that payment is for expert witnesses, and as I am the treating physician, I can not also ethically be the expert in this case. I explain that I would politely read my progress note to answer questions and only answer factually from the note. I explain that I'm not sure this will be helpful, but I'll gladly provide the names of other psychiatrists which could be used as an expert to strengthen their case. This has gotten me out of testifying.

If you have an interest in forensic work, you could also mention being interested in expert witness work on future case where you are not the clinician as well.

but what about when the patient doesn't consent? that's my situation here. What do you do then?