Testifying on a Forensic Matter as a General Psychiatrist...Bad Idea?

[hippopotamusoath]

For the sake of confidentiality, I will keep this vague. I have a patient who allegedly committed a crime. They are currently locked up awaiting trial. The prosecution retained a forensic psychiatrist who opined on this patient's mental health in a way that I disagree with, and limits their access to certain treatments while incarcerated.

The patient has retained a defense attorney, who is asking me to give testimony about the patient's diagnosis.

I'm a general psychiatrist, I have no specific training in forensic psychiatry apart from what I learned in residency. My sense is that the defense should hire their own forensic psychiatrist for this opposing opinion.

On the other hand, this isn't a specialized forensic matter like an NGRI plea, it's just a question of what the diagnosis is, and I believe I can reasonably weigh in on that.

Can anyone tell me what they do in these situations? If you have forensic training, even better. Thank you for the input.

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[splik]

It is considered unethical to serve as an expert witness for your own patients. Even if you were forensically trained, it would still be unethical and inappropriate to get involved. I specifically have in my practice policies that even though I am a forensic psychiatrist, I decline to get involved in criminal or civil litigation for my own patients because professional ethics prohibits it in most circumstances. The defense attorney can request their own evaluation, or else have pretrial services or the court order a psychiatric examination. You can provide your records or provide collateral to any mental health clinicians your patient works with while incarcerated to try to coordinate care. That said, the attorney could issue a subpoena and have you testify as a fact (percipient) witness if there is a trial. you probably won't get paid except ordinary witness fees, or if you do, it will be minimal and it would probably be more of a headache, but it would be perfectly acceptable to testify under those circumstances.

 

[hippopotamusoath]

It is considered unethical to serve as an expert witness for your own patients. Even if you were forensically trained, it would still be unethical and inappropriate to get involved. I specifically have in my practice policies that even though I am a forensic psychiatrist, I decline to get involved in criminal or civil litigation for my own patients because professional ethics prohibits it in most circumstances. The defense attorney can request their own evaluation, or else have pretrial services or the court order a psychiatric examination. You can provide your records or provide collateral to any mental health clinicians your patient works with while incarcerated to try to coordinate care. That said, the attorney could issue a subpoena and have you testify as a fact (percipient) witness if there is a trial. you probably won't get paid except ordinary witness fees, or if you do, it will be minimal and it would probably be more of a headache, but it would be perfectly acceptable to testify under those circumstances.

Thank you for your response. Incredibly helpful.

 

[WisNeuro]

It certainly sounds like the defense is planning on calling you as a treating witness with the purpose of getting expert opinions out of you. I would be pretty careful here. In these cases, I am pretty clear that I will stick to testimony about what is in my notes/reports and if they try to get me to opine about other things, I'll simply answer with, "I have not formed an opinion about that" each and every time.

 

[hippopotamusoath]

Thank you for the response. Like you say, I'd prefer to stay out out of this entirely, but if I am subpoenaed I will try to stick to the facts as documented. I have a healthy respect for forensics as a complicated and separate body of knowledge, and I don't know enough about it to even anticipate the pitfalls. I appreciate your suggestion of essentially sticking to my documentation and avoiding speculation or commentary outside of what I directly observed.

 

[PsyDr]

A fact witness can only offer facts, not opinions. An expert witness can offer opinions. Opinions have to be created in specific ways. The attorney can get you to slip up, and offer an opinion. Then opposing counsel can get your opinion dismissed. You do not want a record of your opinion being dismissed.

 

[forchinet121]

It is considered unethical to serve as an expert witness for your own patients. Even if you were forensically trained, it would still be unethical and inappropriate to get involved. I specifically have in my practice policies that even though I am a forensic psychiatrist, I decline to get involved in criminal or civil litigation for my own patients because professional ethics prohibits it in most circumstances. The defense attorney can request their own evaluation, or else have pretrial services or the court order a psychiatric examination. You can provide your records or provide collateral to any mental health clinicians your patient works with while incarcerated to try to coordinate care. That said, the attorney could issue a subpoena and have you testify as a fact (percipient) witness if there is a trial. you probably won't get paid except ordinary witness fees, or if you do, it will be minimal and it would probably be more of a headache, but it would be perfectly acceptable to testify under those circumstances.

How can you get out of having to testify as a fact witness?

 

[splik]

How can you get out of having to testify as a fact witness?

The short answer is that if called as a fact witness in a case you have a legal obligation to appear. The vast majority of cases never make it to trial so it is not that common for psychiatrist to have to appear in court as a fact witness. The longer answer is it depends on the jurisdiction and the type of case.

In criminal cases, if you fail to appear you can expect that the police will come and find you. You may be held in contempt of court and face fines or jail time. A friend of mine failed to appear in court and the police turned up at work and their home to locate them. It was a big deal.


That said, even though you are required to appear (in either civil or criminal context), you are not necessarily required to answer any questions. Some people take confidentiality seriously and you may argue that your testimony is protected by psychotherapist-patient privilege, with SCOTUS affirmed is a kind of privilege in Jaffe v Redmond. But it is the patient's right to waive this privilege, not yours, so if they want you to testify, you cannot claim that this information is privileged.
If civil cases, this depends on the jurisdiction. I'm in California, and here you are allowed to request your fees for lost income before appearing. I recommend charging a lot for this. This information should be in your practice policies or good faith estimates provided to patients. Explain that any costs of appearing at deposition or trial may be passed on to the patient. You can request the cost of a half or full day up front. This may have the effect of discouraging attorneys who are looking for cheap/free expert testimony from calling you. In addition, if you do not wish to testify or believe your testimony would be unhelpful, it would be best to discuss this in advance. Remember to request compensation in advance of the deposition or trial, or else you may never be compensated. Not all jurisdictions allow you to recover your earnings. In those cases, you will be limited to ordinary witness fees.

 

[WisNeuro]

The short answer is that if called as a fact witness in a case you have a legal obligation to appear. The vast majority of cases never make it to trial so it is not that common for psychiatrist to have to appear in court as a fact witness. The longer answer is it depends on the jurisdiction and the type of case.

In criminal cases, if you fail to appear you can expect that the police will come and find you. You may be held in contempt of court and face fines or jail time. A friend of mine failed to appear in court and the police turned up at work and their home to locate them. It was a big deal.


That said, even though you are required to appear (in either civil or criminal context), you are not necessarily required to answer any questions. Some people take confidentiality seriously and you may argue that your testimony is protected by psychotherapist-patient privilege, with SCOTUS affirmed is a kind of privilege in Jaffe v Redmond. But it is the patient's right to waive this privilege, not yours, so if they want you to testify, you cannot claim that this information is privileged.
If civil cases, this depends on the jurisdiction. I'm in California, and here you are allowed to request your fees for lost income before appearing. I recommend charging a lot for this. This information should be in your practice policies or good faith estimates provided to patients. Explain that any costs of appearing at deposition or trial may be passed on to the patient. You can request the cost of a half or full day up front. This may have the effect of discouraging attorneys who are looking for cheap/free expert testimony from calling you. In addition, if you do not wish to testify or believe your testimony would be unhelpful, it would be best to discuss this in advance. Remember to request compensation in advance of the deposition or trial, or else you may never be compensated. Not all jurisdictions allow you to recover your earnings. In those cases, you will be limited to ordinary witness fees.

I had this happen at one point when being called as a fact witness, lawyer for the former patient did not want to prepay for my time spent in preparation or the depo. I just informed that I would do no prep work without that payment. So, unless they wanted me to show up and say, "This evaluation was X years ago and I do not recall the details of the evaluation off the top of my head" for every question asked then we should come to an agreement beforehand. Had a check within a few days after that.

 

[PsyDr]

How can you get out of having to testify as a fact witness?

Legally, you don't. Pragmatically, you call up the attorney and explain to him that you are ONLY going to be a fact witness, and any attempts to solicit an opinion will be interpreted on record as theft of services.

You bring the medical notes. Every time they ask you a question, you slowly read through the notes, and state, "there is nothing in the records about that.". When they ask about your opinion, you state, "I am neither being called upon nor paid as an expert witness. Could you rephrase the question so no one could misinterpret the question to be an attempt to get professional services without payment? I'm sure you would not want that.". If they push, you say, "I have no professional opinion on the matter that would meet Daubert criteria"

 

[psych md jd]

Being asked to give testimony about your patient's diagnosis is certainly fair game.

The scope of your testimony would be limited to the history you obtained, your exam, your diagnosis and prognosis, your review of records, and interpretation of test results, etc.

You may have to "opine" or explain the DSM criteria you used to make your diagnosis, the difference between bipolar I vs II, or psychosis vs schizophrenia vs schizoaffective etc., and explaining what lab results indicate.

Those types of topics and questions, however, do not put you in the "expert witness" realm.

First, to be an expert, you have to be qualified in both the medical and legal sense. You need the resume, titles, publications, research etc., (the knowledge beyond the ken) and then, in court, you need to be offered as an expert, your qualifications examined and cross examined, and then be accepted as an expert by the court. Expert witnesses do not have a treatment relationship with the patient and are not bound by "Do no harm."

From what you have described, you are testifying as the treating provider.

Are you entitled to a fee? Maybe, depends on the jurisdiction (witness fees, mileage, but YMMV).

Jaffee and Daubert apply in federal courts. State laws regarding privilege and admissibility of expert testimony may be different.

 

[PsyDr]

Being asked to give testimony about your patient's diagnosis is certainly fair game.

The scope of your testimony would be limited to the history you obtained, your exam, your diagnosis and prognosis, your review of records, and interpretation of test results, etc.

You may have to "opine" or explain the DSM criteria you used to make your diagnosis, the difference between bipolar I vs II, or psychosis vs schizophrenia vs schizoaffective etc., and explaining what lab results indicate.

Those types of topics and questions, however, do not put you in the "expert witness" realm.

First, to be an expert, you have to be qualified in both the medical and legal sense. You need the resume, titles, publications, research etc., (the knowledge beyond the ken) and then, in court, you need to be offered as an expert, your qualifications examined and cross examined, and then be accepted as an expert by the court. Expert witnesses do not have a treatment relationship with the patient and are not bound by "Do no harm."

From what you have described, you are testifying as the treating provider.

Are you entitled to a fee? Maybe, depends on the jurisdiction (witness fees, mileage, but YMMV).

Jaffee and Daubert apply in federal courts. State laws regarding privilege and admissibility of expert testimony may be different.

Come on.

1) Or they could avoid the vetting process, and just stipulate as to whether you're an expert, to save time and effort.

2) Because the legal requirement for expert is having more subject knowledge than the average person, if you have an MD you're an expert. There is ZERO need for publications. A guy who worked the line in a tire factory was qualified as an expert in the Ford rollover case. A guy who smoked hella weed was also federally qualified as an expert under FRE 702.

 

[WisNeuro]

Yeah, I've been across from a lot of "experts" both MDs and PhDs that have zero publication history, or anything else for that matter to distinguish them from any general provider.

 

[whopper]

Please tell me the defense attorney knows the difference between a fact-witness vs an expert-witness and they know what they're asking you to do.

This is already set as to what should happen. If you're a fact-witness you do your thing if subpoenaed. You only answer fact based stuff.

If they want you to be an expert witness you say no cause you're the treating doctor and tell them to get someone else.

 

[whopper]

I've been in plenty of courts where the other court officers didn't know what they were supposed to do. I get they don't understand the medical stuff but they didn't even understand the legal stuff.

e.g. I was asked by the judge to do an NGRI defense on a defendant who didn't have the capacity for trial. I told him this was not appropriate and he didn't understand nor did he seem to have the attention span to want to understand.

E.g. Every single sex offender I've ever seen placed on Depot-Provera wasn't asked if they wanted it, understood what it was, what it was supposed to do, or the risks of taking it. They were told they're either going to take it or they're never getting out of prison. That clearly violates already established principles of duress and medical choice. The judges who do this don't care or seem to understand why this is an issue. If doctors involved in this don't care. If you bring up this is not right you're the lone complainer. So you complain and everyone in the state government system more or less tells you they don't care.

I love forensic psychiatry. A problem I've encountered, however, is it's really not going on for real in many legal systems.

 

[whopper]

If you're a fact-witness you do your thing if subpoenaed. You only answer fact based stuff.

I should clarify. As a fact witness you only answer what you've seen and done yourself. "Did you prescribe this medication?" "Yes."

You don't answer any expert witness stuff. If asked you're asked expert witness stuff, e.g. "in your expert opinion do you believe that the use of this medication made the defendant irritated" you answer you're not an expert-witness.

If the court asks you to be an expert-witness you say you won't do it. Being an expert-witness is something you're supposed to get paid to do. It's considered work. A court can't make you to do it no more than they can order someone to clean out the parking lot without pay.

 

[TexasPhysician]

I have an attorney. When I get a subpoena to testify as a fact witness, my attorney calls the attorney that requested me and explains how me showing up could damage the therapeutic relationship, and the ways that my testimony could negatively affect the case. The result is that I’ve never testified as a fact witness. Paying this attorney saves me $ over missing clinic.

Attorneys and judges often have no idea what they are doing. I’ve sat with attorneys on strategy and helped advise them on how to use a psychiatrist.

I’ve seen judges’ rulings get overturned because they don’t have the authority to determine certain things. They are too busy to know what they are even allowed to do.

 

[WisNeuro]

I have an attorney. When I get a subpoena to testify as a fact witness, my attorney calls the attorney that requested me and explains how me showing up could damage the therapeutic relationship, and the ways that my testimony could negatively affect the case. The result is that I’ve never testified as a fact witness. Paying this attorney saves me $ over missing clinic.

Attorneys and judges often have no idea what they are doing. I’ve sat with attorneys on strategy and helped advise them on how to use a psychiatrist.

I’ve seen judges’ rulings get overturned because they don’t have the authority to determine certain things. They are too busy to know what they are even allowed to do.

Does your state preclude you from charging your full cash rate for prep and depo time or those? I haven't minded going to depo as my full cash clinical rate is conveniently the same as my forensic rate. So, it's actually more money than my insurance patients. Although I am very up front with them that I understand the difference between fact and expert and if they try to get me to answer expert questions as a fact witness, it will be a very frustrating experience for them.

 

[forchinet121]

I should clarify. As a fact witness you only answer what you've seen and done yourself. "Did you prescribe this medication?" "Yes."

You don't answer any expert witness stuff. If asked you're asked expert witness stuff, e.g. "in your expert opinion do you believe that the use of this medication made the defendant irritated" you answer you're not an expert-witness.

If the court asks you to be an expert-witness you say you won't do it. Being an expert-witness is something you're supposed to get paid to do. It's considered work. A court can't make you to do it no more than they can order someone to clean out the parking lot without pay.

It’s confusing though your question, “do you believe this medication made the patient irritated?” How can you answer “I’m not an expert witness” when as the treating provider you know the side effects and know the med could have made him irritated, the lawyer will say “do you know the side effects of the drug you prescribe?” “Is irritability a side effect?” Etc

 

[WisNeuro]

It’s confusing though your question, “do you believe this medication made the patient irritated?” How can you answer “I’m not an expert witness” when as the treating provider you know the side effects and know the med could have made him irritated, the lawyer will say “do you know the side effects of the drug you prescribe?” “Is irritability a side effect?” Etc

Stick to what you have documented in your notes and answer " I have not formed an opinion" or "I am not an expert witness" for other queries.

 

[forchinet121]

Stick to what you have documented in your notes and answer " I have not formed an opinion" or "I am not an expert witness" for other queries.

How do you answer “do you know the side effects of the drug you prescribed?” “Is irritability a side effect?”

 

[WisNeuro]

How do you answer “do you know the side effects of the drug you prescribed?” “Is irritability a side effect?”

"Yes" and "In a certain percentage of patients, that is a possible side effect."

 

[calvnandhobbs68]

Stick to what you have documented in your notes and answer " I have not formed an opinion" or "I am not an expert witness" for other queries.

Yeah my perception has been that I can basically just tell whatever attorney that’s trying to get me to testify as a fact witness that all my statements are in the medical record, they already have my notes for this patient (or the patient is welcome to sign a release for notes if they don’t have them) and I will reading off my notes in court for any testimony pertaining to evaluation and treatment of this patient if they try to get me to testify. Not sure if this is the correct perception of this though or not.

How do you answer “do you know the side effects of the drug you prescribed?” “Is irritability a side effect?”

Yeah as above, if I haven’t already documented that I think the medication made the patient irritable, I wouldn’t opine on whether I think it could have caused irritability that I was never told about or documented.

 

[WisNeuro]

Yeah my perception has been that I can basically just tell whatever attorney that’s trying to get me to testify as a fact witness that all my statements are in the medical record, they already have my notes for this patient (or the patient is welcome to sign a release for notes if they don’t have them) and I will reading off my notes in court for any testimony pertaining to evaluation and treatment of this patient if they try to get me to testify. Not sure if this is the correct perception of this though or not.



Yeah as above, if I haven’t already documented that I think the medication made the patient irritable, I wouldn’t opine on whether I think it could have caused irritability that I was never told about or documented.

Pretty much. This is easier for me as I am usually doing a comprehensive eval at one point in time. So, they may ask me about the patient now, when I have not seen them in a few years. So I can simply answer to the effect of "at the time of my report (read from report)" and that I cannot make any statements about the patient's current status as I have not recently evaluated them.

 

[PsyDr]

How do you answer “do you know the side effects of the drug you prescribed?” “Is irritability a side effect?”

"I do not have the FDA insert, which lists the known side effects, memorized."
"I do not recall if that is a federally recognized side effect."

"Yes" and "In a certain percentage of patients, that is a possible side effect."

Don't answer that way. It's a trap. If you say "yes", they will pull out the FDA insert and start asking you questions to make you look incompetent. "Dr. X, is this a side effect, is this, what about this? You said no here. That's not what the manufacturer says. Do you even bother to read the insert? Are you playing Dr. Frankenstein on my poor client? If your experiments caused him to be irritable, couldn't that cause him to commit this crime? It's your fault!"

1) Lead your sentence with a way to hedge. The hedge ALWAYS goes in the front of the sentence, and the sentence is always compound. This prevents you from getting cut off, and forced into a position you don't believe. A good example of this is when Bush changed his sentence "Fool me twice,... never get fooled again.". I don't believe he was a fool. I believe he didn't want to have a sound bite taken out of context, saying "shame on me". In this case, you can add something like, "While the standard of care is to be generally familiar with the side effects I see in clinical practice, I am do not have the FDA approved side effects memorized..". The word "while" makes the sentence hard to stop. You've just eliminated accusations of malpractice too.

2) "While I am aware of some reports of irritability as a potential side effects, I am unsure as to whether this is a scientifically validated side effect of that medication.". This does three things. First, by referencing the absence of "scientifically validated" ends any attempts to make this an expert opinion. Second, it allows you to show that you are competent. Third, because it is basically hearsay, it makes the courts to decide if they want to accept that report or not.

3) Putting it together, I'd answer it something like, "While the community standard of care is to be generally familiar with the side effects of the medications I prescribed, I do not have the FDA insert memorized. While there have been some reports of irritability as a potential side effect, I am unaware of any studies showing irritability is a scientifically validated side effect of this medication.".

 

[TexasPhysician]

Does your state preclude you from charging your full cash rate for prep and depo time or those? I haven't minded going to depo as my full cash clinical rate is conveniently the same as my forensic rate. So, it's actually more money than my insurance patients. Although I am very up front with them that I understand the difference between fact and expert and if they try to get me to answer expert questions as a fact witness, it will be a very frustrating experience for them.

My state considers being paid for fact witness work unethical and can result in medical board penalties.

 

[WisNeuro]

My state considers being paid for fact witness work unethical and can result in medical board penalties.

Even in personal injury cases? If we get called into a state court for a matter there is a set rate, but we have no stipulations on being called in personal injury work.

 

[PsyDr]

My state considers being paid for fact witness work unethical and can result in medical board penalties.

There's no reason to be paid, because it's not a professional service. Expert witness work is a professional service.

The person who sees the murder doesn't get paid to say, "The defendant shot the guy".

It's why you should never give an expert opinion without getting paid.

 

[WisNeuro]

There's no reason to be paid, because it's not a professional service. Expert witness work is a professional service.

The person who sees the murder doesn't get paid to say, "The defendant shot the guy".

It's why you should never give an expert opinion without getting paid.

In a criminal trial, I agree. In a personal injury matter, they are simply wasting your time, as they can just enter your report/notes in the record.

 

[PsyDr]

In a criminal trial, I agree. In a personal injury matter, they are simply wasting your time, as they can just enter your report/notes in the record.

They are counting on being able to trick you into giving opinions. That saves them from having to pay for an expert witness. It's a low risk, high reward gambit for them.

 

[WisNeuro]

They are counting on being able to trick you into giving opinions. That saves them from having to pay for an expert witness. It's a low risk, high reward gambit for them.

I agree, I'm just making sure that it accounts for the time/money I have to take out of my regular working schedule, if I can.

 

[PsyDr]

I agree, I'm just making sure that it accounts for the time/money I have to take out of my regular working schedule, if I can.

There is a difference between not getting income because you missed work, and someone getting your professional services for free.

 

[WisNeuro]

There is a difference between not getting income because you missed work, and someone getting your professional services for free.

I agree, I do not allow the latter unless I am working somewhere pro bono. And the former only happens when I choose it or a patient cancels.

 

[whopper]

It's why you should never give an expert opinion without getting paid.

Also if you give expert witness testimony you could be held liable for malpractice. This is different than medical practice malpractice. E.g. some insurances only cover you for malpractice for seeing patients and not forensic expert witness work.

Another answer you can give if asked to be a fact witness and they pull and expert witness question is "I was called to be a fact witness. Not an expert witness. I have not reviewed the case as an expert witness, so I should not answer because I have not prepared to testify as an expert witness which is a very different set of guidelines."

Even if the judge asks for you to answer (and if they do so they are an idiot cause the difference between a fact vs expert witness is BASIC law and the judge is violating the law in doing so) you could still even pull that strategy. "Being an expert witness requires that I review the data under a different context and disseminate this data in a manner that could take hours to even weeks. I still cannot answer."

Then as I mentioned above, if the same court asks you to be an expert witness, and you are the treating doctor, refuse saying it's a breach of professional ethics to do both.

As I mentioned above I've seen several lawyers and judges not know the difference between a fact vs expert witness or not seemingly care. As bad as it is, I see several physicians who don't know WTF they're doing.

While I was a fellow I had the luxury of working with courts where the judges and lawyers were at least on top of this type of issue. In several rural courts I've seen judges not seemingly know several basic foundations of the law.

 

[allantois]

Also if you give expert witness testimony you could be held liable for malpractice. This is different than medical practice malpractice. E.g. some insurances only cover you for malpractice for seeing patients and not forensic expert witness work.

Another answer you can give if asked to be a fact witness and they pull and expert witness question is "I was called to be a fact witness. Not an expert witness. I have not reviewed the case as an expert witness, so I should not answer because I have not prepared to testify as an expert witness which is a very different set of guidelines."

Even if the judge asks for you to answer (and if they do so they are an idiot cause the difference between a fact vs expert witness is BASIC law and the judge is violating the law in doing so) you could still even pull that strategy. "Being an expert witness requires that I review the data under a different context and disseminate this data in a manner that could take hours to even weeks. I still cannot answer."

Then as I mentioned above, if the same court asks you to be an expert witness, and you are the treating doctor, refuse saying it's a breach of professional ethics to do both.

As I mentioned above I've seen several lawyers and judges not know the difference between a fact vs expert witness or not seemingly care. As bad as it is, I see several physicians who don't know WTF they're doing.

While I was a fellow I had the luxury of working with courts where the judges and lawyers were at least on top of this type of issue. In several rural courts I've seen judges not seemingly know several basic foundations of the law.

I am not surprised.. you don't even have to be a lawyer to be a judge in many jurisdictions