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The Expert Witness in Psychiatric Malpractice Cases
Seminar Number: SM0516
Director: Phillip Resnick, M.D.
Date: Monday, May 18, 2015
Time: 1:00:00 PM - 5:00:00 PM
Location: City Hall
Sheraton Centre Toronto Hotel
AMERICAN PSYCHIATRIC ASSOCIATION
th
168 ANNUAL MEETING
psychiatry.org/annualmeeting
Toronto, Canada ·May16-20,2015
AGENDA
AMERICAN PSYCHIATRIC ASSOCIATION
th
168 ANNUAL MEETING
psychiatry.org/annualmeeting
Toronto, Canada ·May16-20,2015
The Expert Witness in Psychiatric Malpractice Cases
Time Schedule
15 minutes
Contact with referring attorney
20 minutes
Data Collection
45 minutes
Case Analysis
15 minutes
Questions and Answers
20 minutes
Report Writing
15 minutes
Coffee break
60 minutes
Malpractice Report-Writing Exercise
30 minutes
Discovery Depositions
20 minutes
Question and Answers; Evaluations
OUTLINE
AMERICAN PSYCHIATRIC ASSOCIATION
th
168 ANNUAL MEETING
psychiatry.org/annualmeeting
Toronto, Canada ·May16-20,2015
1
The Expert Witness in Psychiatric Malpractice Cases
Phillip J. Resnick, M.D.
Phillip.resnick@case.edu
I.
II.
Why become an expert in malpractice cases?
A.
Advantages of doing malpractice cases
B.
Disadvantages
Chronology of a Malpractice case
A.
The initial complaint in a malpractice case will be
broadly worded to allow maximum discovery.
B.
For an inpatient suicide, there are likely to be
multiple defendants.
Although you may be employed by the attorney for the
defendant doctor, the attorney may seek an opinion on
whether you believe the hospital staff fell below the
standard of care in addition to the defendant doctor.
C.
Interrogatories of parties and witnesses.
D.
Discovery depositions in malpractice cases involve
three phases.
1.
Depositions of the parties, the treating health
care professionals, and fact witnesses.
2.
Depositions of the various standard of care
experts.
3.
Depositions of the causation experts and damage
experts.
III. Selection of Experts
A.
Plaintiff's attorneys are less particular in selecting
experts.
Many psychiatrists will not do plaintiff's
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malpractice cases in their own city or even their
own state.
IV.
B.
Defense attorneys have a wider choice.
C.
Advantages and disadvantages of forensic expertise in
malpractice cases.
D.
Attorneys may ultimately choose only two out of three
experts who are viewed as effective testifiers and
have the least conflict in their assessment
of the case.
Initial contact by the attorney
A.
Consultation vs. expert witness role
B.
Some states require 50 or 75 percent of the expert's
time be spent in practice and teaching to be allowed to
testify on standard of care in malpractice cases.
C.
Reveal any potential conflict of interest immediately
when the attorney calls you about a case.
D.
Refer out cases you are not qualified to do, such
as complex psychopharmacology.
E.
The attorney may run a summary of the facts by you on
the phone to see how you react before selecting you to
review the records.
The attorney may put a spin on the case to get you to
think about the case from his vantage point.
Ask about the allegations on the other side.
Never rely on attorney statements in forming
opinions.
F.
You may be contacted early in the case.
You will have only the medical records and
sometimes a copy of the complaint.
If working with plaintiff's counsel, you will be
asked to identify deviations from the standard of
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care.
If you are working for the defense, the attorney
may seek help in identifying critical areas to
help them prepare for discovery depositions.
You may be contacted later in the case after the
discovery depositions of the parties are done.
At this point, the attorneys are looking for
potential testifying experts.
G.
You may be "practicing medicine" in a different state
without a license by giving testimony.
You want to clear this with the referring
attorney.
H.
V.
Always get a retainer from plaintiff's attorneys.
Principles of data gathering in malpractice cases.
A.
Insist on reviewing all records.
Never rely on deposition summaries.
B.
If a doctor's handwriting is illegible, request that
the attorney have the doctor dictate typed notes of the
handwritten items.
C.
In reviewing records, always check the date of
dictation on the discharge summary to see if it was
done after the bad outcome, such as a suicide.
Suggest that the attorney seek nursing manuals or
hospital policies and procedures regarding relevant
issues such as suicide precaution levels.
D.
E.
Sometimes you may be tempted to talk directly with a
defendant doctor if you are employed by his defense
attorney.
Attorneys will usually discourage this because any
information you learn will be discoverable by the
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other side if you are listed as an expert witness.
VI.
Malpractice Case Analysis
A.
A common pitfall is using the incorrect standard of
care.
1.
The standard of care varies from jurisdiction to
jurisdiction.
2.
Average practioner standard B A clinician is
required to exercise, in both diagnosis and
treatment, that reasonable degree of knowledge and
skill which is ordinarily possessed and exercised
by other members of his profession in similar
circumstances.
3.
Reasonably prudent practitioner standard B A
physician could be held liable if a plaintiff
proves that the physician failed to provide
reasonable and prudent care in light of all of the
circumstances, even though the physician did, in
fact, adhere to the customary practice of the
average physician in the field.
Eg: Degree of data gathering in suicide risk
assessment.
More than half the states have now moved away from
the average practitioner standard to the
reasonably prudent practitioner standard.
4.
Standards of care can include ordinary negligence,
gross negligence, and the professional judgment
standard.
Gross negligence in Pennsylvania requires
more egregiously deviant conduct than
ordinary carelessness, inadvertence, laxity,
or indifference. Gross negligence requires
that the behavior of the defendant must be
flagrant, grossly deviating from the ordinary
standard of care (Albright v. Abington
Hospital 696 A. 1159 (1997).
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5.
Professional judgment rule - In Ohio, the court in
assessing liability for failure to prevent
violence will examine the "good faith,
independence, and thoroughness" of the decision
(Littleton v. Good Samaritan Hospital, 1988).
6
A common error for psychiatrists who have recently
completed high quality academic residencies is to
mistakenly use a "standard of excellence."
7.
You may not use as the proper standard of
care, the standard by which you individually would
practice in similar circumstances.
8.
There is a distinction between error of fact
and error of judgment.
Failure to obtain relevant data, such as
prior records or laboratory tests, which
contribute to an improper diagnosis would be
an error in fact.
Errors in judgment are not actionable when
the physician has acted in good faith and has
exercised requisite care in obtaining
necessary information and arriving at a
diagnosis and treatment of the patient's
condition.
B.
The expert must begin from the perspective of the
defendant psychiatrist at the time of the potential
deviation from the standard of care.
1.
You can only hold the defendant psychiatrist
to the standard of what he did know or should
have known at the time.
2.
You can only hold the defendant psychiatrist to
the standard of prescribing information in the PDR
of the year in which the alleged malpractice
occurred, not current prescribing standards.
3.
There is great temptation because of all of the
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records available by the time of the lawsuit to
consciously or unconsciously use information which
was not available to the defendant doctor in
formulating an opinion.
4.
Hindsight bias
The hindsight bias is most likely to interfere
with an expert's assessment of causation where
forseeability is at issue.
In retrospect, everything becomes foreseeable and
even improbable consequences can seem reasonable.
5.
C.
Confirmation bias - The tendency to pay more
attention to evidence that supports what you
already believe.
Components of Negligence
The four D's of negligence:
1.
There must be a duty.
2.
There must be dereliction or breach of duty.
3.
The breach of duty must be a direct cause of
the damage.
4.
There must be actual damages that result from
the breach of duty.
Ordinarily the expert will be asked to address only
deviations and direct causation.
D.
Critical Points in the Analysis
1.
As a plaintiff's expert, you must identify the
critical points in the case.
These are acts of omission or commission at a
specific time.
2.
For each act, you must determine if it fell below
the standard of care.
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3.
You must then determine if each deviation from the
standard of care was causally related to the
damages.
4.
Suicide case analysis
a.
b.
The two critical areas are:
1.
The forseeability of suicide
potential.
2.
Precautions taken to prevent the
suicide once the risk was
acknowledged.
In identifying an act of omission such as
failure to order suicide precautions on a
particular date, identify all the evidence
showing the patient was at an unacceptably
high risk of suicide at that time.
Include objective data such as patterns
of eating, sleeping, and affect;
The psychiatrist should not have relied
on only the patient's disavowal of
suicidality.
c.
Do not say that a suicide was foreseeable.
Instead state that the risk of suicide was
such that no prudent psychiatrist would fail
to use a higher level of suicide precautions.
E.
d.
Recognize that the duty to keep patients in
the least restrictive alternative should be
balanced against the risk of suicide.
e.
Recognize that in outpatient suicide cases,
there is a downside to admitting a person to
the hospital.
Proximate Cause
1.
Proximate cause generally includes two factors:
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a.
Cause-in-fact.
Cause-in-fact refers to whether "but for" the
psychiatrist's act, the injury would not have
occurred.
A substantial cause, not the cause.
b.
Foreseeability
That event which, in the natural sequence
unaltered by an intervening event, is a
substantial factor in bringing about the
injury, and without which, that injury would
not have occurred.
2.
Absence of proximate cause may be due to an
intervening event.
3.
In assessing the relevance of failure to seek
prior records, you must show proximate cause B
that is, that the records would have made a
difference in the treatment.
4.
Absence of documentation alone may be a deviation
from the standard of care, but it is only
infrequently the proximate cause of damages.
If a doctor alleges something was done but was not
documented, prepare two alternative opinions.
You should not be the judge of the defendant
doctor's credibility.
F.
Plaintiff's attorneys would prefer that you identify
one to three critical deviations rather than find 20
errors, because it makes you look like you are
unreasonably critical.
G.
You may initially believe you can support the
plaintiff's case, but later data may cause you
uncertainty.
Do not hesitate to notify the attorney and
withdraw from the case.
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VII. Malpractice Reports
A.
The attorney may want no report and may simply make you
available for a discovery deposition.
B.
Preparation of the report
1.
Organize the report chronologically from different
portions of a hospital chart.
Eg: Integrate nurses' notes, doctors'
progress notes, and OT notes.
2.
Have clear attribution of the sources of all data.
3.
Your opinions should be stated with reasonable
medical certainty.
4.
Use separate sections for your criticisms of
different defendants, such as the treating
psychiatrist, a nurse, and an "E.R." physician.
5.
Do not use dramatic language suggesting you are
outraged by the level of care that was given.
Simply state that it deviated from the
standard of care and why.
C.
6.
Do not speculate in your report.
7.
Try to avoid preparing preliminary reports.
Components of a plaintiff's malpractice report.
1.
Sources of information.
2.
Summary of the facts.
3.
Identification of each deviation from the
standard of care.
4.
Detailed evidence for why each act is a
deviation.
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D.
5.
Statement of the causal relationship between
each deviation and the damages.
6.
Evidence supporting your opinion of each
causal relationship.
Components of a defense expert malpractice report
1.
Sources of information.
2.
Summary of the facts.
3.
List of all deviations alleged by each of
plaintiff's experts.
4.
Evidence for why each criticism is not valid
or concession on the validity of some.
5.
Opinion on whether each alleged deviation is
causally related to damages.
6.
Evidence supporting your opinion on each
causation issue.
Report writing exercise.
VIII.
A.
See page 32 of your handout.
Discovery depositions of experts in malpractice cases.
Nature of a discovery deposition
1.
Distinction between trial and discovery
depositions.
2.
Meaning of objections.
3.
Discovery depositions are critical since 90% of
the malpractice cases settle.
4.
Your effectiveness will be sized up and become a
factor in settlement negotiations.
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B.
Preparation for expert witness depositions
1.
Bring your complete set of records to the
discovery deposition.
Your complete file may be examined including
your ledger for billing thus far.
2.
Review your file in detail in advance.
3.
What can you remove from your file?
4.
You must be careful about notes of any initial
impressions which have changed with additional
data.
5.
Even marginal notes and underlining of records and
depositions may be made an exhibit.
6.
You must keep a record of all of your testimony
and depositions for federal cases for four years.
Attorneys want to see your list of prior cases to
see if they can find a similar one in which you
testified for the other side in order to impeach
you with your prior testimony.
7.
Always have a pre-deposition conference with your
employing attorney.
8.
Check with the attorney to see if the case is
expected to settle and you should convey your
opinions completely.
Otherwise, only answer the precise questions
that are asked and volunteer nothing.
9.
C.
Know the facts cold.
Predictable deposition questions.
1.
You are likely to be asked about your percent of
plaintiff vs. defense malpractice evaluations and
testimony.
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2.
You may be asked about percent of your income from
forensic work relative to total income.
3.
You are likely to be asked about any of your
patients who completed suicide.
4.
Malpractice defense experts may be asked how they
would evaluate or treat a similar patient in their
own practice.
Although it is not the standard of care, it
may look that way to the jury.
D.
E.
Conduct during discovery deposition
1.
Volunteer nothing.
2.
Losing your temper is the single worst thing you
can do.
3.
Don't acknowledge books or journals as
authoritative.
4.
Nothing is off the record.
5.
Do not emphasize your forensic experience in a
malpractice case.
6.
Don't attempt humor in a deposition.
7.
Do not go beyond the question by overstating.
Settlement considerations
1.
Sides of a story
Your side
Their side
Actual truth
What a trier of fact might conclude
2.
Assessment of the defendant doctor's demeanor as
caring vs. arrogant.
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IX.
3.
Assessment of the ability of the experts.
4.
Assessment of the strength of the attorneys.
5.
Attitude of the particular judge.
6.
Nature of the local jury pool.
7.
Math formula in which the percent likelihood of a
plaintiff's verdict is multiplied by the likely
damages to determine the settlement.
Summary of Common Pitfalls
A.
B.
C.
Case Analysis Errors
1.
Using the incorrect standard of care.
2.
Failure to use the defendant psychiatrist's
perspective.
3.
Failure to identify critical points for
deviations.
4.
Failure to address proximate cause for each
deviation.
5.
Viewing absence of documentation as causing
damages.
6.
Identifying an excessive number of deviations.
7.
Having a hindsight bias
Errors in Reports
1.
Lack of attribution.
2.
Crediting one version of events over another.
3.
Speculation.
Deposition Errors
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1.
Lack of preparation.
2.
Volunteering information.
3.
Acknowledging books as authoritative.
4.
Failure to read your own deposition just before
your court testimony.
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The Psychiatric Expert in Malpractice Litigation
Self Assessment Questions
1.
The most difficult standard of care for plaintiff to prove
is
a.
b.
c.
d.
2.
Settlement considerations include all of the following
EXCEPT:
a.
b.
c.
d.
e.
3.
Defendant doctor’s demeanor
Defendant doctor’s malpractice history
Ability of the experts
Attitude of the assigned judge
Nature of the jury pool
Data available to the malpractice expert witness routinely
includes all of the following EXCEPT
a.
b.
c.
d.
4.
Ordinary negligence
Gross negligence
Deliberate indifference
Professional judgment rule
Personal interview with the defendant doctor
Copy of the complaint
Deposition of defendant doctor
Medical chart of the plaintiff
The components of negligence include all of the following
EXCEPT:
a.
b.
c.
d.
e.
Duty
Dereliction of duty
Deleterious conduct
Direct causation
Damages
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5.
Common errors in analyzing a malpractice case include all of
the following EXCEPT:
a.
b.
c.
d.
e.
6.
A defense malpractice report includes the following items
EXCEPT:
a.
b.
c.
d.
e.
7.
Sources of information
Summary of the facts
Evidence refuting alleged deviations identified in
plaintiff’s experts’ reports
New criticisms of the defendant doctor’s
conduct
Opinion on whether plaintiff’s experts alleged
deviations caused damages
The attorney’s goals in a discovery deposition include all
the following EXCEPT
a.
b.
c.
d.
8.
Identifying only a single deviation from the standard
of care
Using the incorrect standard of care
Failure to address proximate cause for each deviation
Having a hindsight bias
Failure to use the defendant doctor’s perspective in
one’s analysis
Size up the expert
Intimidate the expert
Gather ammunition for cross exam
Learn the expert’s opinions and reasoning
In a discovery deposition, the expert should not do the
following EXCEPT:
a.
b.
c.
d.
e.
Volunteer anything
Lose your temper
Attempt to be humorous
Acknowledge books as authoritative
Answer a question if an objection is made
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The Psychiatric Expert in Malpractice Litigation
Answers to Self Assessment Questions
1.
c
2.
b
3.
a
4.
c
5.
a
6.
d
7.
b
8.
e
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References
1.
Appelbaum, P.S.: Law and Psychiatry Reforming Malpractice:
Prospects for Change, Psychiatr Serv, 62:6-8, 2011.
The
2.
Friend, A.: "Keeping Criticism at Bay: Suggestions for
Forensic Psychiatric Experts," J Am Acad Psychiatry Law,
31:406-12, 2003.
3.
Gutheil, T.G.: The Psychiatrist as Expert Witness, Washington
DC: American Psychiatric Pub., 2009.
4.
Knoll, J. and Gerbasi, J.: “Psychiatric Malpractice Case
Analysis: Striving for Objectivity,” J Am Acad Psychiatry Law,
34:215-23, 2006.
5.
Knoll, J.L., Resnick, P.J.: Deposition Dos and Don'ts: How
To Answer 8 Tricky Questions, Current Psychiatry, 7:25-40,
2008.
6.
Knoll, J.L.: "Inpatient Suicide: Identifying Vulnerability in
the Hospital Setting," Psychiatric Times, 30:(6)36, 2013.
7.
Meyer, D., Simon, R.: "Psychiatric Malpractice and the
Standard of Care," in Textbook of Forensic Psychiatry,
Edited by Simon R. and Gold L., Washington DC: American
Psychiatric Press, Inc., pp. 185-203, 2004.
8.
Mossman, D.: "Respondeat Superior: What are your
responsibilities?" Malpractice Rx, Current Psychiatry,
12(6)36-39, June 2013.
9.
Oren, D.A.and Santopietro, J.: "Psychiatrist Liability and
Treatment Planning in Outpatient Clinic Services:
Commentary," Community Mental Health Journal, 49(1)47-49, 2013.
10.
Reid, W.H. and Simpson, S.: “How Lawyers View Psychiatric
Experts,” J Psychiatr Pract, 18(6):444-7, 2012.
11.
Resnick, P.J. and Soliman, S.: "Planning, Writing, and
Editing Forensic Psychiatric Reports," International Journal
of Law and Psychiatry, 35:412-417, 2012.
12.
Scott, C.L. and Resnick, P.J.: "Patient Suicide and
Litigation" in Textbook of Suicide Assessment and
Management, Simon, R.I. and Hales, R.E. (Eds), p. 527-544,
American Psychiatric Publishing, Inc., Washington D.C.,
2006.
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APPENDIX I
SUGGESTIONS FOR EXPERT WITNESSES IN DEPOSITIONS
1.
The goal of the discovery rules is to promote free and open exchange of information between the parties and to
prevent surprise and delay.
2.
Attorneys may obtain discovery regarding any matter, not privileged, which is relevant.
The information sought need not be admissible at the trial if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.
3.
In a discovery deposition, the questioning may have three phases: the open ended question phase; the clarification phase;
and, the closing off and pinning down phase.
The attorney may weave back and forth among these three phases.
4.
Attorneys may argue that many aspects of your private life are relevant, such as criminal history, because it is relevant to
your credibility as a witness or to some bias you may have. Thus, you may feel as if you are being subjected to a strip
search.
5.
Since depositions influence the settlement value of a case by giving opposing counsel a chance to assess the impression
you will make upon a jury, you should wear appropriate clothing.
6.
In a discovery deposition in a malpractice case, the deposing lawyer may be attempting to affect the likelihood and
amount of a settlement in addition to preparing for trial.
Plaintiff's attorneys are more likely to be attempting to show the weakness of the expert for the purpose of
affecting a settlement.
Defense attorneys are more likely to be focusing on preparation for trial.
7.
In a discovery deposition, you are usually required to bring all your notes with you.
Notes of an interview with a subject may not be modified or discarded.
If your notes reflect any earlier opinions, you would be well advised to discard the notes that do not reflect your
current thinking about the case.
8.
The most common error that experts make in discovery depositions is failure to have complete mastery of the facts.
9.
Do not let the informality of a deposition cause you to be off guard in giving your answers.
Attorneys are taught to look for an opportunity before the informal deposition begins to show that they are
human and not particularly to be feared.
Discussions with the opposing attorney without your counsel are not appropriate.
10.
The opposing attorney may try in a discovery deposition to draw you into a conversational mode.
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This may be done through questioning your background or through questioning on relatively unimportant
introductory matters.
This should not cause you to let down your guard.
11.
Always ask your lawyer in advance what documents you should bring to the deposition. He may suggest that you remove
letters from him that are considered his "work product."
12.
Your job during a discovery deposition is to give the shortest correct answer to each question.
Answers may include: yes; no; I don't understand the question; I don't know; I don't remember; I'd like to take a
break.
Avoid long narrative answers.
13.
Listen carefully to the exact question.
Do not answer a question until you understand it.
14.
Answer only the question which is asked.
Your job is not to try and fix the examining attorney's questions by saying such things as, "Well if what you
mean is..."
15.
You are expected to answer all questions, except for privileged or harrassment/annoyance/embarrassment questions.
16.
Be well rested. A tired witness is a careless witness.
17.
In a full day deposition, the greatest likelihood of making mistakes begins about 4:00 p.m.
Fatigue makes it more difficult to concentrate.
Some attorneys reserve especially important questions for the 4:00 p.m. time period in the hope the witness will
be less guarded in his response.
If you have traveled to a different time zone, the likelihood of mistakes may begin even earlier.
18.
You must concentrate on the proceedings at all times while testifying. Do not relax and become inattentive.
19.
In reviewing your qualifications in a deposition, the deposing attorney may ask what a particular piece of education or
honor has to do with the specific opinion formed in this particular case.
This allows a discounting of various credentials at trial.
20.
Some attorneys go right to the substantive area of questioning in a deposition so you have less time to adjust to the
attorney's game plan.
21.
Do not give non-verbal answers, such as nodding your head because the court reporter can only take down verbal
responses.
22.
Do not volunteer guesses, opinions, or rumors. If you do not know an answer, say "I don't know." If you cannot
remember, say so. If you are not sure, qualify your answer by saying "approximately" or "to the best of my
recollection." You are required to tell the truth, not to speculate.
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23.
Do not say "no" if the true answer is "I do not recall."
If asked the question "Have you seen this document before?" the true answer is likely to be "not that I recall,"
rather than "no."
24.
Avoid adjectives and superlatives such as never and always.
25.
Be careful with questions involving times, amounts, degrees, and the like. If you make any type of estimate, be sure to
state that it is an estimate.
26.
If an objection is made by your counsel, stop speaking immediately. If you are instructed not to answer the question,
do not answer it.
27.
Do not volunteer information of any kind. If you are asked if you have a certain file, you need not answer with the
words, "No, Mr. Smith has that file." A simple, "No" would have been sufficient.
28.
When you are deposed, you are under no obligation to become a teacher. Do not begin volunteering information about a
subject to help the opposing attorney understand an issue.
29.
Remember that at trial, a portion of the deposition may be taken out of context and used to impeach you or offered into
evidence. Try to answer each question so that the reader understands your testimony without reference to an explanation
provided earlier in the deposition.
30.
Admit that no learned treatise or article is authoritative, unless you are willing to admit that every statement made in the
article should legally set the standard of care required in a malpractice case.
31.
Remember that opposing counsel will be evaluating you constantly; he will be assessing how you will impress a jury.
32.
If opposing counsel cuts you off in the middle of an important explanation, you should state that you have not finished
your answer. This will at least alert your counsel to amplify your answer during cross-examination.
33.
You should not let the other attorney put words in your mouth. Do not adopt the other attorney's summary of the
testimony if it is incorrect.
34.
Do not accept as true any proposition put to you in a leading question unless you have carefully considered the truth of
the proposition.
35.
If you are asked questions about a document, be certain that you are familiar with the document and take the opportunity
to read it. Be certain that the document states what the lawyer says it does.
36.
You may be asked what information you conveyed to counsel. If uncertain about matters of privilege, you may request a
recess to discuss the issue with counsel.
37.
Be consistent when a lawyer asks the same question many different ways.
38.
Avoid phrases like "to tell you the truth" or "to be honest."
39.
If you are asked a compound question, advise the attorney that two questions have been asked and you would like to have
them separated.
40.
You may be asked catch-all questions, such as, "Tell me everything you can about...?" Keep your answer accurate and
truthful, but be as brief as possible.
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41.
Be careful of questions such as, "Are these all the documents you have reviewed? or "Have you told me everything you
know?" Qualify your answer in case you remember something between deposition and trial. Don't let yourself be held to
specific lists of factors, reasons, etc. Leave open possibility of other factors being present.
42.
Don't be overly technical. If you understand the question, give a full, fair, and honest answer. On the other hand, if the
opposing lawyer fails to ask the right question, you need not supply information not requested.
43.
If you are asked a hypothetical question which includes an impossible premise, decline to answer the question.
44.
Do not speculate.
You should follow this advice. However, in reality there is no rule against seeking the witness's speculation in a
deposition, so long as that speculation is reasonably calculated to lead to the production of relevant information.
45.
Do not be influenced by the opposing attorney's personality.
46.
If you realize that you gave an incorrect answer earlier, take time to correct it during the deposition.
47.
Keep alert throughout. Avoid becoming complacent or over-confident.
48.
You have a right not to be made uncomfortable. You may request changes in the temperature of the room, a drink of
water, or a break.
49.
Be accurate in everything you say.
The best way to cause the jury to disbelieve all your testimony is to make an inaccurate, exaggerated,
unfounded, or false statement. This is true of minor matters as well as major matters.
50.
When you are asked what documents you reviewed in formulating your opinion, you should indicate all of them.
However, if you are asked what documents you reviewed in preparation for the deposition, you may reply that
documents shown to you by the attorney may be privileged if you did not base your opinion upon them.
51.
You should not be tempted to leave "wiggle" room suggesting that you may perform additional tests or evaluations.
If you do not perform them, the cross-examiner can make it appear that you did not do a complete evaluation.
52.
Since you as an expert witness are not a party to the lawsuit, you ordinarily are not protected by attorney-client privilege.
This means that you may be asked what the opposing attorney told you in the pre-deposition conference.
If a videotape was used to practice the deposition, such videotaped rehearsals may be discoverable.
53.
The deposing attorney is likely to say, "If I ever ask a question that you don't understand, would you please be sure to tell
me so I can rephrase it?"
A good answer is "I will certainly tell you if I realize at the time I don't understand a question."
54.
Attorneys at depositions object and battle over objections, 517% more, by actual count, that it is actually necessary to
represent their clients properly (Malone and Hoffman, 1996).
55.
Common objections during depositions will include:
Pjr.3654A- 5/26/2015
23
Vague question
Ambiguous question
Unintelligible question
Complex or confusing question
Compound question
Misleading question
Unfair characterization
Misstating prior testimony
Argumentative question
Question calls for legal conclusion
Asked and answered
Question calls for an opinion beyond the expert's qualifications
Leading question
Objection to hearsay
56.
An attorney may instruct you to not answer only when necessary to preserve a privilege, to enforce a limitation on
evidence directed by the court, or to seek an order limiting the deposition because it is being conducted in bad faith, or in
such a manner as to unreasonably annoy, embarrass or oppress the deponent.
When declining to answer a question, you should say that you will not answer the question upon advice of
counsel.
57.
When you correct a mistake made by a court reporter in the written deposition, you may also make substantive changes in
form and substance as long as you give your reasons for doing so.
If substantial changes are made, you may be subject to further examination.
58.
Attorneys set up impeachments for trial at a discovery deposition, but do not execute them.
Attempted impeachments in the discovery deposition are reserved for the purpose of provoking settlement or
dissuading an expert from testifying.
59.
Attorneys will use discovery depositions at trial and phrase questions with some of the precise wording from the
deposition.
It is not uncommon for witness's trial testimony to change, not because of an intent to deceive, but because
memories fade.
Nonetheless, these deviations in the hands of a skillful attorney can be used in a way to discredit your integrity
and honesty.
Pjr.3654A- 5/26/2015
24
Thus, you must review your discovery deposition carefully, just before trial testimony.
Otherwise, you risk being impeached because of not recollecting how you phrased certain answers.
60.
Attorneys may use a discovery deposition as the means for accomplishing a "phantom" impeachment.
"Phantom" impeachment means that no actual impeachment occurs, but the witness answers truthfully because
he thinks impeachment is possible.
This tactic works if the attorney convinces the witness at trial that the cross-examiner has absolute mastery of the
facts in the deposition.
After a number of impeachments, the witness will be much less willing to fight over testimony.
At that point, the skillful attorney may be able to force the witness to tell the truth by making apparent use of the
deposition, even though the deposition did not contain testimony on the point in question.
61.
Near the end of the deposition, when the other attorney attempts to freeze your testimony by asking, "Is this all?" You
should say "To the best of my recollection."
62.
It is usually best not to waive your signature on the deposition.
63.
In the event you are unavailable for trial, your discovery deposition may be used to replace your live testimony.
64.
"Preservation depositions" or "depositions de bene esse" are depositions taken specifically because it is anticipated the
witness will not be available at the time of trial.
These depositions are usually videotaped, because reading them into the record is likely to be boring and
difficult for the jury to follow.
In a preservation deposition, you should answer questions as you would at a trial because the jury will hear you
directly.
Reference
Malone, D.M. and Hoffman, P.T.: The Effective Deposition: Techniques and Strategies that Work, National Institute for Trial
Advocacy, 1996.
Pjr.3654A- 5/26/2015
25
APPENDIX II
Plaintiff's Malpractice Partial Opinion Example
RE: Joe Johnson
Dear Mr. Attorney:
Pursuant to your request I reviewed a number of records for the purpose of offering an opinion
about whether the staff at St. Elsewhere Hospital fell below the standard of care in their treatment
of Mr. Michael Johnson. Mr. Johnson suffered paralysis from a broken neck in St. Elsewhere on
July 20,2002 when he rammed his head into a safety window in his hospital room.
Opinion: It is my opinion with reasonable medical certainty that Alice Doe, R.N. fell below the
standard of care when she prematurely dismissed the two security guards who brought Mr.
Johnson to the psychiatric ward. She released the security guards without reading the emergency
room records that accompanied Mr. Johnson to the unit and before assessing whether Mr.
Johnson would sign a voluntary consent form to remain on the psychiatric unit. The following
evidence supports the opinion that Ms. Doe should not have dismissed the security guards at that
time in the absence of applying physical restraints to Mr. Johnson:
1.
Ms. Doe knew that Mr. Johnson was a big man with no shirt and that he was sweating.
2.
Ms. Doe knew that only three female clinical staff were on duty on the unit.
3.
Ms. Doe knew that Mr. Johnson was agitated with some "acting out" in the emergency
room.
4.
Ms. Doe knew that Mr. Johnson was hallucinating.
5.
Ms. Doe knew that Mr. Johnson was escorted to the unit with security. "He was moaning
quietly." One security guard "was holding one arm up by his head," according to Ms.
Doe.
6.
Ms. Doe knew that Mr. Johnson was "recently agitated and was unpredictable."
7.
If Ms. Doe had read Mr. Johnson=s emergency room record, she would have also learned:
Pjr.3654A- 5/26/2015
26
A.
Mr. Johnson rammed his head into his sister=s patio door three times.
B.
Mr. Johnson attempted to slam his head into a sink in the emergency room.
C.
Mr. Johnson refused to allow his vital signs to be
D.
Mr. Johnson had occasional brief episodes in which he would thrash his head
back and forth about on the cart in the emergency room.
E.
Security officers were present in the emergency room throughout Mr. Johnson=s
stay to protect him.
taken in the emergency room.
It is my opinion that the failure of Ms. Doe to take protective steps by retaining the
security guards or placing Mr. Johnson in physical restraints led directly to Mr. Johnson=s neck
injury and quadriplegia. The following evidence supports this opinion:
1.
Mr. Johnson cooperated with police officers at his sister=s home after striking his head
into the patio door and on the floor.
2.
Mr. Johnson=s agitated self-destructive behavior was adequately controlled in the
emergency room by the presence of two uniformed security guards.
3.
When Mr. Johnson foreseeably became agitated on the psychiatric unit, Ms. Doe and the
other nurses concluded that they lacked sufficient staff to intervene to protect the patient
from self harm. Ms. Doe indicated that several persons were necessary to safely
intervene with a large, agitated man. Sufficient staff were not available when Mr.
Johnson became agitated and broke his neck.
In summary, it is my opinion with reasonable medical certainty that Ms. Doe deviated
from the standard of care in failing to take steps to protect Mr. Johnson from self harm. He was a
foreseeable risk of serious self harm because of recently striking his head on a patio door three
times and his attempt to strike his head on the emergency room sink. Ms. Doe=s failure to take
the protective steps of retaining the security guards or using physical restraints directly led to Mr.
Johnson=s quadriplegia.
Sincerely yours,
Pjr.3654A- 5/26/2015
27
APPENDIX III
Malpractice Defense Partial Opinion Example
Dear Mr. Attorney:
At your request I reviewed a number of records for the purpose of evaluating whether Dr.
Mott and the employees of Northwest Counseling Services fell below the standard of care in
their treatment of Joe Smith from July 26, 1995 through September 1, 1999. Mr. Smith, age 32,
committed suicide by carbon monoxide on September 2, 1999. He had no blood alcohol level.
Dr. Jones, plaintiff's expert states, AMr. Smith should have been civilly committed. He
was at high risk of committing suicide, ultimately the way he died. There is also more than
ample evidence to suggest that his fear of being incarcerated in an adult jail or prison facility was
a major factor that contributed to Mr. Smith=s death.... Adult jail and prison facilities are totally
inappropriate places for mentally ill individuals.@
Opinion: It is my opinion with reasonable medical certainty that Mr.Smith was not eligible for
involuntary hospitalization as an alternative to incarceration on September 1, 1999. The
following evidence supports this opinion:
A.
To be civilly committed, Pennsylvania law required that a person must be severely
mentally disabled. AA person is severely mentally disabled when, as a result of
mental illness, his capacity to exercise self control, judgment, and discretion in the
conduct of his affairs and social relations, or to care for his own personal needs is
so lessened that he poses a clear and present danger of harm to others or to
himself.@
AClear and present danger to others shall be shown by establishing that within the
past 30 days the person has inflicted or attempted to inflict serious bodily harm on
another and there is reasonable probability that such conduct will be repeated...@
AClear and present danger to himself shall be shown by establishing that within
the past 30 days..., the person has attempted suicide and that there is a reasonable
probability of suicide unless adequate treatment is afforded under this act. For the
purpose of this subsection, a clear and present danger may be demonstrated by the
proof that the person has made threats to commit suicide and has committed acts
Pjr.3654A- 5/26/2015
28
which are in furtherance of the threat to commit suicide...@
B.
Mr. Smith did not meet criteria for civil commitment based on suicidality because
he had not made a suicide attempt within the past 30 days and he had not
threatened to commit suicide and committed acts which were in furtherance of the
threat to commit suicide.
C.
Mr. Smith also did not meet criteria for civil commitment because there was not a
reasonable probability of suicide unless he was committed.
It is my opinion with reasonable medical certainty that Mr. Smith=s suicide was not
foreseeable by the treatment staff at Northwest Counseling Services or Dr. Mott before Mr.
Smith killed himself in September 1999. The following reasons support this opinion:
A.
Suicide is very difficult to accurately predict in any individual case.
B.
Mr. Smith=s suicide was not foreseeable to his mother or his wife, Jennie, before
the evening of September 1, 1999. Mr. Smith=s last contact with Northwest
Counseling Services staff was on the morning of September 1, 1999.
C.
Mr. Smith had the strong protective factor against suicide of being a custodial
parent of two young children. In fact, on August 13, 1999 after Mr. Smith
expressed transitory suicidal thoughts, he specifically said, ADon=t worry, I
won=t do anything. I have too much to live for@ (referring to his son).
D.
Mr. Smith explicitly denied suicidality to Northwest Counseling Services
personnel on 8/27/99 and 8/30/99.
E.
On August 27, 1999, Mr. Smith explicitly denied any suicidal thoughts or
intention to Dr. Mott. He was noted to be eating and sleeping well. In addition,
he said to Dr. Mott that he Ashould be counting his blessings and he should learn
from his mistakes and perhaps when he gets out of jail he may be able to put his
life back together.@ This comment suggests a future orientation.
F.
The fact that Mr. Smith came to Northwest Counseling Services offices on
September 1, 1999 to pick up a letter to take to his sentencing hearing on
September 2, 1999 suggests that he had not decided to commit suicide before
September 1, 1999. That was the last time any staff from Northwest Counseling
Services saw Mr. Smith.
G.
On September 1, 1999, Mr. Smith told M. Lockwood that he was Acalm and ready
for whatever happens.@
Pjr.3654A- 5/26/2015
29
H.
On 8/9/99, Mr. Smith stated that he would personally be able to tolerate jail. His
concerns were about finances for his family while he was incarcerated.
Committing suicide would not solve his family=s financial problems.
I.
Although Mr. Smith expressed feelings of pessimism on August 26, 1999, he
accepted reassurance from his peers.
J.
Although Mr. Smith had a history of serious alcohol abuse, he was not abusing
alcohol in the month before he committed suicide.
K.
Although Mr. Smith had a history of periodic noncompliance with psychiatric
medications in the past, he was compliant with his medications in the month
before he committed suicide.
L.
Although Mr. Smith did show evidence of depression in late August 1999, his
depression did not include any psychotic features.
M.
Although Mr. Smith expressed concern about his 3 month sentence in jail, he had
successfully tolerated longer periods of incarceration in the past.
N.
It was difficult to foresee Mr. Smith=s suicidality since Mr. Smith did not
volunteer suicidal feelings to any counselor the final week of his life. Mr. Smith
had twice previously told Mr. Rodick when he felt passively suicidal (7/15/99 and
8/13/99).
Pjr.3654A- 5/26/2015
30
APPENDIX IV
Behaviors that Increase Risk of Lawsuits
The staff at PRMS, manager of the APA-endorsed Psychiatrists' Professional Liability Insurance
Program, has developed the following list of behaviors or actions that tend to increase a
psychiatrist's risk of being sued.
Reference: Psychiatric News, 3/2/07
!
Documenting only the first suicidal risk assessment done on a patient and failing to
document ongoing monitoring and evaluation of suicidality.
!
Allowing a patient with suicidal behaviors to be lost to follow-up.
!
Neglecting to document the clinical basis for ordering a change in the level of patient
supervision and/or level of care for a patient with suicidal behaviors.
!
Not responding at all (even appropriately within professional standards) to family
members who call with concerns about a patient with suicidal behaviors because there is
no authorization from the patient to release treatment information to family members.
!
Failing to evaluate the safety of the environment for a patient with suicidal behaviors, for
example, accessibility of firearms and other weapons.
!
Failing to warn a third party (or take alternative appropriate steps) when a dangerous
patient has identified the party as a potential victim, as allowed or required by law.
!
Thinking that the other clinician in collaborative treatment (shared or split treatment)
relationship will know what patient information is important to discuss with the
psychiatrist and when to call without ever having had an agreement or discussion about
these expectations with the other clinician.
!
Prescribing lithium without conducting regular tests of lithium and electrolyte levels.
!
Prescribing psychotropic medications without going through the informed-consent
process (and documenting it), especially when prescribing off-label for children.
!
Failing to document what medications have been ordered, the basis for prescribing the
medications, and changes to medications.
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31
!
Sending a patient's overdue bill straight to collections without reviewing the chart and
speaking to the patient about it.
!
Assuming that the patient will be grateful and therefore not sue for providing care that
falls below the standard of care, because the psychiatrist believes he or she is helping by
providing at least minimal care since the patient cannot sufficiently pay for services.
!
Allowing patients to pay for services by doing personal tasks such as mowing the
clinician's lawn, washing his or her car, painting the house, and babysitting.
!
Failing to conduct a thorough neurological evaluation on a patient who presents with
decreased level of consciousness or an altered mental state or who falls during
hospitalization.
!
Ignoring steps in the clinician-patient termination process.
!
Summarily terminating treatment with a patient who is in crisis (for example, a patient
assessed to be a danger to self or others), believing this will decrease potential
malpractice risk in the event of an adverse clinical outcome.
!
Assuming that clinical rationale and professional judgment, which are the basis for the
patient's treatment plan, do not need to be documented in the patient record.
!
Ignoring a subpoena to provide patient records or to testify because of uncertainty about
the proper response; or, conversely, releasing the patient's record immediately after being
subpoenaed.
!
Deciding not to establish a record for a patient who has very sensitive issues to discuss in
treatment.
!
Altering a patient records after an adverse event.
!
Becoming involved in a sexual relationship with a patient.
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32
Appendix V
Malpractice Opinion Writing Exercise
Brief summary of the facts: Mr. Alex Neck was transported by the police to St. Elsewhere
Hospital emergency room on 6/4/98 at 10:15 p.m. due to suicidal statements he made to his wife.
The emergency room doctor noted “He is medically cleared to be evaluated by psychiatry and
they will decide on disposition.” A blood alcohol level of 11:30 p.m. was 0.324 (70mmol/L).
Dr. Joan Smith, a PG-3 psychiatry resident, recorded that Mr. Neck had had ten drinks.
Dr. Smith noted that Mr. Neck said he was told by his wife to leave after an argument. His wife
told him that he would not see his kids because he was drunk. Mr. Neck said, “I might as well be
dead.” The patient told his wife he would be found hanging from a tree in the back yard. His
wife called the police.
Mr. Neck denied suicidal intent to Dr. Smith. Later he said, “Life is cheap.” He had
slurred speech and alcohol on his breath. Dr. Smith noted that Mr. Neck’s wife in a phone call
said her husband is “abusive, alcoholic, and she does not want him to return.” His wife thought
he needed treatment for his alcoholism.
Mr. Neck denied impaired sleep, appetite disturbance, and decreased concentration. Dr.
Smith made a diagnosis of alcohol abuse and arranged for Mr. Neck to stay with a friend that
night and referred him to outpatient VA alcohol treatment. Mr. Neck was discharged from the
emergency room 6/5/98 at 1:30 a.m. He was found hanging in his garage at 7:30 a.m. on 6/5/98.
Mrs. Alice Neck, the decedent’s wife, said in her deposition that she told Dr. Smith, “I
thought Alex was serious about his threats and that he needed treatment and that they should at
least hold him overnight until he was sober.” Dr. Smith testified in her deposition that she did
not hear such a remark from Mrs. Neck.
Please write a brief opinion about whether Dr. Smith deviated from the reasonable
medical practitioner standard of care and if so, whether it had a causal relationship to the suicide
of Alex Neck. In formulating your opinion please identify the specific act of omission or
commission which deviated from the standard of care. Specify the evidence for why it was a
deviation. If you opine that Dr. Smith did not fall below the standard of care, state why it was
within the standard of care to discharge Mr. Neck from the emergency room at 1:30 a.m.
Pjr.3654A- 5/26/2015
SLIDES
AMERICAN PSYCHIATRIC ASSOCIATION
th
168 ANNUAL MEETING
psychiatry.org/annualmeeting
Toronto, Canada ·May16-20,2015
The Expert Witness in
Psychiatric Malpractice Cases
Phillip J. Resnick, M.D.
Professor of Psychiatry
Case Western Reserve University
Disclosure
I have no significant financial
relationship with the
manufacturer of any product or
service I intend to discuss.
Phillip J. Resnick, M.D.
Malpractice Case
Experience
•
•
•
•
None
1 – 5 cases
6 – 50 cases
Over 50 cases
1
Psychiatric Malpractice Claims
• Increase with male gender
• Decrease with board certification
• Claims less frequent than other
specialties
• Amounts highest for sex and suicide
Reich, J.H. and Maldonado, J.: Empirical Findings on Legal Difficulties Among
Practicing Psychiatrists, Annals of Clinical Psychiatry, 23:297-307, 2011.
Malpractice Payments and Adverse Actions
Number of reports
Malpractice Payments
Adverse Actions
National Data Practitioner Bank
State Board Discipline
• Psychiatrists have more than
other specialties
• Substance abuse
• Sex with patients
• Increase with length in practice
Reich, J.H. and Maldonado, J.: Empirical Findings on Legal Difficulties Among
Practicing Psychiatrists, Annals of Clinical Psychiatry, 23:297-307, 2011.
2
Overview
•
•
•
•
•
Initial contact with attorney
Data collection
Case analysis
Report writing
Discovery depositions
Initial Contact by
Attorney
• Consultation vs. expert
witness
• Practice requirement
• Attorney spin on case
Data Gathering
• Insist on receiving all records
• Seek typed copy of illegible
records
• Note date of dictation on
discharge summaries
• Seek hospital policies
3
Dictation Date
RA/cb
DD: 3/24/04
DT: 3/25/04
By 3502
EMR Audit Trails
•
•
•
•
Who accessed the record
Date, time and length on line
Creation of note or editing
Use of copy forward
Standards of Care
• Ordinary negligence
• Gross negligence
• Professional judgment standard
• Average practitioner standard
• Reasonably prudent practitioner
4
Average Practitioner Standard
A clinician is required to exercise,
in both diagnosis and treatment,
that reasonable degree of
knowledge and skill which is
ordinarily exercised by other
members of his profession in
similar circumstances.
Reasonably Prudent Practitioner
A physician could be held liable if
he failed to provide reasonable and
prudent care in light of all the
circumstances, even though the
physician did adhere to the
customary practice of the average
physician.
Gross Negligence
In Pennsylvania, requires
more egregiously deviate
conduct than ordinary
carelessness, inadvertence,
laxity, or indifference. The
behavior must be flagrant….
5
Ohio Professional
Judgment Rule
The court in assessing liability
for failure to prevent violence
will examine the "good faith,
independence, and
thoroughness" of the decision.
Defendant Psychiatrist
Perspective
• What he knew or should have
known at the time
• State of psychiatric knowledge
• Hindsight bias
Hindsight Bias
The tendency to see events
that have already occurred as
being more predictable than
they were before they took
place.
Hoffrage, U. and Pohl, R.: Hindsight Bias: Champlain, New
York, Psychology Press (2003).
6
Confirmation Bias
The tendency to pay more
attention to evidence that
supports what you already
believe.
Components of
Negligence
• There must be a duty.
• There must be dereliction or
breach of duty.
• The breach of duty must be a
direct cause of damages.
• There must be actual damages.
Malpractice Case Analysis
• Identify critical points
• Acts of omission or commission
• Deviation from the standard of
care
• Causation of damages for each act
7
Suicide Case Analysis
• Risk of suicide, not the act of
suicide, was foreseeable
• Least restrictive setting duty
• Disadvantages of hospitalization
Proximate Cause
• Cause in fact
• Foreseeable
Foreseeability
That event which, in the
natural sequence unaltered
by an intervening event, is a
substantial factor in bringing
about the injury...
8
Malpractice Case
Analysis
• Absent documentation
• Limit criticisms
• Feel free to withdraw
• Develop a philosophy
Malpractice Reports
• Organize chronologically
integrating chart notes
• Clear attribution of sources
• State opinions with
reasonable medical certainty
Malpractice Reports
• Use separate sections for
criticisms of each defendant
• Avoid dramatic language
• Do not speculate
• Avoid preliminary reports
9
Plaintiff Malpractice
Report
• Sources of information
• Summary of facts
• List each deviation with evidence for
why it is a deviation
• Evidence for causal relationship
between each deviation and damages
Defense Malpractice
Report
• Sources of information
• Summary of facts
• List of all deviations alleged by
plaintiff's experts
• Evidence why criticisms are not valid
• Evidence supporting opinion on
causation for each deviation
Report Writing Exercise
• Specify act of deviation
• Give evidence why below
standard of care
• Address causation of damages
10
Discovery Depositions
•
•
•
•
Differ from trial depositions
Meaning of objections
Of critical importance
Attorney sizes up expert
Preparation for
Deposition
•
•
•
•
Bring all records
Review file in advance
Be aware of initial notes
Be aware of marginal notes
Preparation for
Deposition
• List of prior testimony – 4 years
• Have pre-deposition conference
• Clarify expectation of settlement
• Know the facts cold
11
Expected Deposition
Questions
• Percent plaintiff vs. defendant
• Percent of income from
forensic work
• Suicides in expert's practice
Conduct in Depositions
• Volunteer nothing
• Don't lose your temper
• Do not acknowledge articles
as authoritative
• Nothing is off the record
Conduct in Depositions
• Do not emphasize forensic
experience
• Do not attempt humor
• Do not go beyond the question
by overstating your opinion
12
Most Credible
Expert who mostly sees patients
82%
Expert who mostly teaches
7%
Expert who mostly testifies in trials 5%
Expert who mostly writes books
1%
Boccaccini M.T. and Brodsky S.L.: Believability of Expert and Lay Witnesses: Implications for Trial Consultation,
Professional Psychology: Research and Practice, 33:384-388, 2002.
Settlement
Considerations
•
•
•
•
•
Defendant doctor's demeanor
Ability of the experts
Quality of attorneys
Attitude of the judge
Local jury pool
Sides of a Story
1.
2.
3.
4.
Your side
Their side
Actual truth
What a trier of fact might
conclude
13
Settlement
Considerations
•
•
•
•
•
Defendant doctor's demeanor
Ability of the experts
Quality of attorneys
Attitude of the judge
Local jury pool
Settlement Formula
The percent likelihood
of a plaintiff's verdict is
multiplied by the likely
damages.
Common Analysis Errors
• Use of incorrect standard
• Failure to assess from
defendant's perspective
• Failure to identify critical points
• Failure to address proximate
cause on each deviation
14
Common Analysis Errors
• Viewing absence of documentation
as causing damages
• Identifying an excessive number of
deviations
• Having a hindsight bias
Common Deposition Errors
• Lack of preparation
• Volunteering information
• Acknowledging books/articles
as authoritative
• Failure to read own deposition
just before court testimony
Common Errors in Reports
• Lack of attribution
• Crediting one version of
events over another
• Engaging in speculation
15
Every report is a self
portrait of the person
who wrote it.
16
BACKGROUND
AMERICAN PSYCHIATRIC ASSOCIATION
th
168 ANNUAL MEETING
psychiatry.org/annualmeeting
Toronto, Canada ·May16-20,2015
R E G U L A R
A R T I C L E
Psychiatric Malpractice Case Analysis:
Striving For Objectivity
James Knoll, MD, and Joan Gerbasi, JD, MD
Forensic psychiatrists, acting as expert witnesses, must be able to perform objective analyses of psychiatric
malpractice cases. Accurate malpractice case analysis requires careful attention to relevant legal concepts and
consideration of potential biasing influences. If forensic psychiatrists are to avoid a reliance on “experts policing
experts,” individual forensic psychiatrists must be fully prepared to police themselves by recognizing and avoiding
certain errors in malpractice case analysis. Any effort to improve objectivity must include a clear understanding of
the confounding variables. In this article, the authors discuss some potential impediments to objective analysis of
malpractice cases such as the use of the wrong standard, causation, hindsight bias, and contributory negligence.
J Am Acad Psychiatry Law 34:215–23, 2006
Shortly after his last session with Dr. Liptzin, patient
Wendall Williamson elected to stop taking his antipsychotic medication. Eight months later, his persecutory delusions returned in full force. Williamson
then took to the streets of Chapel Hill, North Carolina, with an M-1 rifle. He was able to kill two strangers and wound a police officer before being shot by
police.1 In consideration of his persecutory delusions, a jury found him Not Guilty by Reason of
Insanity for the shootings, and he was committed to
a state hospital.
While in the confines of the state hospital, Williamson decided to sue Dr. Liptzin, alleging that it
was Dr. Liptzin’s negligent care that caused the tragedy. Williamson’s attorney hired psychiatric experts
who testified to several alleged flaws in Dr. Liptzin’s
treatment. In 1997, a jury found against Dr. Liptzin
and awarded Williamson $500,000. Several years
later, the North Carolina Court of Appeals reversed
in favor of Dr. Liptzin, holding that the psychiatrist’s
“alleged negligence was not the proximate cause of
plaintiff’s injuries.”2
After Williamson v. Liptzin3 came to the attention
of the psychiatric community, one scholar noted a
shift among forensic psychiatrists toward emphasizing procedure over substance in their analyses of malDr. Knoll is Director of Forensic Psychiatry and Assistant Professor of
Psychiatry, Dartmouth Medical School, Hanover, NH. Dr. Gerbasi is
in private practice in Davis, CA. Address correspondence to: James
Knoll, MD, New Hampshire Department of Corrections, Division of
Forensic and Medical Services, 105 Pleasant Street, 4th Floor, Concord, NH 03302. E-mail: jknoll4@earthlink.net
practice cases. Yet other than anecdotal experience,
there are no data to use in analyzing this trend. The
case and its implications for expert witnesses led to
ardent discussion among psychiatrists. One theme
seemed to have emerged strongly: Are forensic psychiatrists approaching malpractice cases competently
and objectively? The question seems to be a timely
one, given that expert witness liability is now a prominent concern. Both the medical profession and the
courts have raised questions concerning “irresponsible” testimony, and the need for professional organizations to “police” expert testimony.4 This recent
trend has resulted in an increased scrutiny of medical
expert testimony by medical associations, whose intent is to sanction physicians who provide irresponsible testimony.5
The intent of this article is not to analyze expert
testimony in Liptzin. Instead, it seeks to use the controversy of the case’s aftermath as an impetus for
improving malpractice case analysis. It is not uncommon for malpractice case analyses to be rather complex and fraught with confusing circumstances that
may be subject to personal bias. Even the most wellintended expert may be thwarted by subjectivity and
cognitive illusions. The path toward objectivity must
be cleared of such obstacles.
Forensic psychiatrists are crucial to both the plaintiff’s and the defendant’s cases. A skilled forensic psychiatrist can provide a thorough analysis of the case
that will be helpful in establishing or refuting each of
the four elements of negligence: (1) duty of care, (2)
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Objectivity in Psychiatric Malpractice Case Analysis
deviation from the standard of care, (3) damage to
the patient as a (4) direct result of the deviation from
the standard of care. At least in theory, the special
knowledge and training possessed by forensic psychiatrists should involve a higher degree of accurate and
well-reasoned analysis. The purpose of this article is
to discuss some of the potential pitfalls that forensic
experts may encounter when analyzing malpractice
cases and to consider ways to avoid error.
Using the Wrong Standard
Even among forensic psychiatrists, there may be
considerable confusion about what standard of care
to use when analyzing a psychiatric malpractice case.
Indeed, Stone3 has pointed out that “the standard of
care in psychiatric treatment, which is the central
question in malpractice cases, is by no means the
‘natural’ province of the subspecialty of forensic psychiatrists” (Ref. 3, p 452). In an effort to seek current
guidance from the literature, we performed a literature search on Medline with the search terms “medical malpractice” and “standard of care.” The search
resulted in 171 citations, with only two being directly relevant to forensic psychiatrists. One of these
two references notes that the applicable standard in
medical malpractice cases appears to be in the process
of shifting and developing.6 Confusion about the
appropriate standard may lead the forensic expert to
apply the wrong standard in certain circumstances.
For this reason, it is critical to begin the analysis of a
case with as clear an understanding of the prevailing
standard as possible.
To clarify the concept of medical negligence, it is
helpful to distinguish it from ordinary negligence. In
ordinary negligence cases, a breach of duty is established by offering proof that the defendant did not
use “reasonable care under the circumstances, that
which an ordinarily prudent person would exercise in
similar circumstances.”7 Establishing this standard
does not require expert testimony, as a jury can determine on its own what an “ordinarily prudent person” would do. In contrast, medical negligence is
traditionally defined as “that degree of skill and
learning that is ordinarily possessed and exercised by
members of that profession in good standing.”8 This
standard emphasizes the physician’s responsibility to
take steps to ensure reasonable training and skills and
to practice in a manner that is consistent with others
in the field. This standard is also known as the “average practitioner” or “customary practice” standard.
216
While standards of medical negligence are generally
national in origin, some jurisdictions may apply a
local or regional standard.9
The standard of care in malpractice cases usually
cannot be proven without the testimony of an expert
witness. The expert testifies as to the relevant standard, which is generally established by professionals
in the field, learned treatises and statutes. This practice allows physicians to set their own standards for
liability and, in effect, to police themselves. Several
reasons for this special distinction have been offered,
including the notion that peer review, professional
boards, and organizations within the medical profession are already compelling doctors to practice safely
and competently. However, as public faith in medicine has declined, the customary deference to physicians has begun to wane. This may be reflected in the
move away from the “average practitioner” standard,
and toward a “reasonably prudent practitioner”
standard.10
Under the reasonably-prudent-practitioner standard, a physician can be held liable if a plaintiff
proves that the physician failed to provide reasonable
and prudent care in light of all the circumstances,
even though the physician did, in fact, adhere to the
customary practice of the average physician in the
field. Consider a case in which a psychiatrist treats his
patients with a new antipsychotic drug that has some
risk of causing fatal arrhythmias in some patients
with a history of heart disease. Prudent evaluation
would include a review of the patient’s cardiac history, along with an ECG and blood work. Suppose,
however, that the customary practice in busy community clinics is to forgo a routine ECG, and evaluate risk based on patients’ histories, accompanied by
a review of any available medical records. If a patient
in the community clinic died from a fatal arrhythmia
after taking the medication and her family sued, the
psychiatrist could be liable under the reasonablyprudent-physician standard, yet not under the average-practitioner standard.
According to one analysis of published malpractice cases and statutes, the average-practitioner standard is no longer clearly the majority rule.11 In more
than half the states, either through an explicit statutory change or through case law, malpractice law has
moved away from a customary-practice standard,
and toward a reasonably-prudent-physician standard. Note that the reasonably-prudent-physician
standard still requires expert testimony to educate
The Journal of the American Academy of Psychiatry and the Law
Knoll and Gerbasi
the jury about appropriate practice. However, the
experts do not de facto decide the standard as they do
under the average-practitioner standard. Rather, it is
the jury who ultimately determines the standard,
based on their interpretation of what was reasonably
prudent under the circumstances. Expert testimony
about general custom would be relevant evidence of
due care, but it would not be conclusive and could be
overcome by expert testimony that the general custom itself is negligent.
In effect, juries will continue to “stand in the shoes
of the physician but only to hold the defendant to the
standard of care expected of a person with special
skills, not to immunize physicians who follow the
pack” (Ref. 11, p 163). Because the standard has
changed in many jurisdictions, either by legislature
or through case law, it is important to consult with
the retaining attorney to clarify what standard is the
prevailing one in the relevant jurisdiction before beginning the review of a malpractice case. In particular, experts should review the specific case law or
statutory language that is determinative of the standard of care in the jurisdiction where the case
occurred.12
When clarity surrounding the appropriate standard is lacking, experts may mistakenly apply a “standard of excellence,” instead of a standard of average
or reasonably prudent care. The use of an unreasonably high standard may be seen among experts who
work primarily in an academic setting, or among
those who have recently completed their training.
Routine exposure to cutting-edge research, new
treatment algorithms, and excellence in mental
health care may have the effect of raising the expert’s
personal standards of care. In addition, trained forensic psychiatrists, who tend to be hypervigilant to risk
and procedure, may mistake the standard of care for
what they would have done in the same circumstances. The use of an unreasonably high standard
may also occur when expert witnesses testify outside
their area of expertise and thus have little understanding of how the average, reasonable psychiatrist
in that area would practice.13
The use of an inappropriately high standard may
also stem from a cognitive illusion called “egocentric
bias.” Egocentric bias is a well-researched psychological phenomenon in which people overestimate their
own abilities and make self-serving judgments.14 For
example, people routinely estimate that they are
above average in a variety of desirable characteristics,
such as driving or having a successful marriage.15,16
The expert who approaches a malpractice case with
an exaggerated, unrealistic view of her own practice
has an increased likelihood of performing an unreasonable or overly critical analysis. Therefore, forensic
experts should not use their personal abilities and
standards as a measuring stick for the standard of
care.
The following case illustrates the error of using the
wrong standard when analyzing a psychiatric malpractice case.
Case A
A patient was admitted to a psychiatric unit for
treatment of acute psychosis. In addition, the patient
had a history of diabetes insipidus, caused by neurosurgical trauma to the pituitary gland that occurred
years earlier when a brain tumor was removed. As a
result, the patient required daily doses of the hormone vasopressin to prevent dehydration. The attending psychiatrist had requested an endocrine consultation and carried out all of the consultant’s
recommendations. One week after the patient’s admission, the hospital pharmacy ran out of vasopressin. Neither the pharmacy nor the nursing staff reported this to the attending psychiatrist. The patient
quickly became dehydrated during the evening shift
and died.
Plaintiff’s expert, Dr. A., was an academic neuropsychiatrist who specialized in the area of neuroendocrine disorders. Dr. A. opined that the attending
psychiatrist deviated from the standard of care by
failing to educate hospital staff about diabetes insipidus, the action of antidiuretic hormone, and the
mechanics of fluid and electrolyte balance. Dr. A.
believed that if the attending psychiatrist had properly educated the hospital staff, they would have understood the seriousness of the medication shortage.
Dr. A. concluded that once the staff had been armed
with an adequate knowledge of the disease process, a
timely response preventing the patient’s dehydration
would have been likely.
In this example, the expert applied a standard of
excellence, as opposed to a standard of average or
reasonably prudent care. Dr. A. believed that the
defendant doctor should have personally ensured all
hospital staff’s knowledge of the neuroendocrine disorder. Dr. A.’s expertise in neuroendocrine disorders
raised her own personal standards, leading her to
have unrealistic expectations of the defendant doc-
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tor. Her bias toward a standard of excellence in treating neuropsychiatric illness clouded her analysis, obscuring an objective consideration of causation.
When experts use too high a standard in analyzing a
malpractice case, they are vulnerable to attacks during cross-examination that are designed to expose
bias and idiosyncratic beliefs. This type of error is
best avoided by becoming familiar with the applicable standard (average practitioner or reasonably prudent practitioner), avoiding the use of a standard of
excellence, and remaining sensitive to the effects of
egocentric bias.
In the authors’ experience, disregarding the standard is a less frequent, though not uncommon, variant of using the wrong standard. Experts who may
harbor a biased agenda of “defending” the defendant
doctor are susceptible to this error. The following
case illustrates the error of disregarding the relevant
standard of care.
Case B
Ms. B. drove herself to the emergency room (ER)
of a large metropolitan hospital. She had taken the
day off from her job as a schoolteacher because she
was having difficulty organizing her lesson plans. She
complained to the emergency room psychiatrist on
duty that she felt exhausted and sleep deprived and
was having trouble keeping her mind focused. She
repeatedly expressed concern about her job performance, and asked, “Do you think I am losing my
mind?” She reported that her symptoms had begun
shortly after the death of her father approximately 4
months prior.
On evaluation, Ms. B. denied having any mental
illness before her father’s death. She denied feeling
depressed and said she had never attempted suicide.
The ER psychiatrist’s mental status exam documented that Ms. B. was fully oriented. She was described as “moderately agitated and rather circumstantial.” The ER psychiatrist diagnosed Ms. B.’s
problem as “complicated bereavement” and gave her
a referral to a therapist who specialized in grieving.
Within an hour of her discharge, Ms. B. walked to
the top of the six-floor hospital parking garage and
jumped to her death. The ER psychiatrist’s notes did
not reflect an assessment of risk beyond the statement, “Denied suicidal ideation.”
Ms. B.’s husband brought suit against the psychiatrist and the hospital. The plaintiff’s expert opined
that the ER psychiatrist deviated from the standard
218
of care by failing to perform an adequate suicide risk
assessment, in addition to failing to diagnose and
treat Ms. B’s psychiatric condition properly. The
plaintiff alleged that had Ms. B.’s husband been contacted, the ER psychiatrist would have learned that
over the past two weeks, Ms. B. had twice been rescued by her family after walking into heavy traffic
and had paced erratically through her house during
the night, sleeping little if at all.
The defense expert opined that Ms. B.’s suicide
was not reasonably foreseeable by the ER psychiatrist
and supported his opinion primarily with the ER
psychiatrist’s documentation that Ms. B. had denied
having thoughts of suicide. On direct examination,
the defense expert stressed the inability of psychiatrists to “predict” suicide, as well as the impracticality
of calling family members of every patient admitted
to a busy emergency room. On cross-examination,
he refused to concede that Ms. B’s previous dangerous behavior would be considered a significant risk
factor. He acknowledged having testified as a defense
expert in over two dozen malpractice cases and having never testified as a plaintiff’s expert.
In this case, the defense expert focuses on one
piece of documentation, to the exclusion of the
broader matter of standard of care, which in this case
calls for an adequate suicide risk assessment. While
the standard of care does not require the psychiatrist
to predict suicide, it does require an adequate assessment of suicide risk.17 In essence, the defense expert
disregarded the appropriate standard of care in an
effort to defend the ER psychiatrist. Because the expert’s usual motivation for disregarding the standard
is a biased agenda, his testimony is likely to be vulnerable on cross-examination, and his opinion may
lose credibility with the jury.
Failure to Address Causation
“Proof of negligence in the air, so to speak, will not do.”
—Sir Frederick Pollock18
In approaching any forensic analysis, it is important that the expert connect psychiatric findings to
the pertinent legal issues.19 In cases of psychiatric
malpractice, causation is perhaps the legal issue of
greatest consequence. If forensic psychiatrists are to
make objective and ethical use of their specialized
knowledge, they must be familiar with the concept of
causation. A forensic expert’s neglect of the critical
role of causation may either be deliberate or due to an
The Journal of the American Academy of Psychiatry and the Law
Knoll and Gerbasi
inadequate understanding of the concept. To prove
causation in a negligence action, the plaintiff must
prove that the defendant’s act or omission was not
merely the cause-in-fact of the harm, but the proximate (or legal) cause of the harm. Thus arises a common argument by defendants: that there was no legal
cause linking the deviation from the standard of care
to the plaintiff’s damages. The cause-in-fact (also
known as the “actual cause”) is defined as the cause
without which the event could not have occurred. It
is the necessary antecedent to the injury. The causein-fact is sometimes articulated as the “but for” test:
but for the defendant’s act of negligence, the injury
would not have occurred.20
Even when it is clear that the defendant’s acts or
omissions were the cause-in-fact of the injury, the
plaintiff must prove that the acts or omissions were
the proximate cause of the injury. Proximate cause or
“legal cause” is a less concrete concept than the causein-fact and it constitutes a legal term of art, prone to
considerable misunderstanding. Proximate cause is
defined as “any original event, which in natural unbroken sequence, produces a particular foreseeable
result, without which the result would not have occurred” (Ref. 21, p 17). For the purpose of conceptualizing proximate cause, the legal perspective views
the causes of any given event as extending infinitely
into the past, just as the results of any given event
extend infinitely into the future. For reasons of practicality and societal fairness (the two may be the same
or they may compete), the law must decide upon a
dividing line along the continuum of cause and effect
to come to a dispositive judgment.1,9 Guided by notions of fairness, the law generally holds that a defendant should not be liable for far-reaching and improbable consequences of his or her acts or
omissions.22 Proximate cause, therefore, can be described as a policy determination that a defendant,
even one who has behaved negligently, should not
always be liable for his acts or omissions.
Two important concepts may support a defendant’s claim that her acts or omissions were not the
proximate cause of a plaintiff’s damages: the presence
of an intervening cause and the lack of foreseeability.
Both intervening cause and foreseeability are elusive
and complicated concepts. An intervening cause is an
event that takes effect after the defendant’s negligence, thus breaking the chain of causation. The intervening cause often rapidly precipitates the injury
and may well supersede the defendant’s negligence in
causing the plaintiff’s injury. For example, consider
the case of a psychiatric inpatient with suicidal ideation who is slowly improving with treatment. He
has improved to the point that he no longer has suicidal intent and no longer requires constant observation. During visiting hours one evening, his spouse
unexpectedly takes the opportunity to tell him that
she has decided to leave him. The patient promptly
returns to his room, writes a brief note expressing
anger toward his spouse, and commits suicide by
hanging. In this example, the spouse’s message of
rejection was an intervening cause that rapidly precipitated the suicide. This intervening cause was not
reasonably foreseeable by the patient’s psychiatrist.
Cases involving foreseeability hold that defendants shall be liable only if the consequences of the
act or omission were reasonably foreseeable. The
concept of negligence requiring foreseeability has
long been established, and, in the well known tort
case Palsgraf v. Long Island Railroad,23 it was given
close scrutiny. In this case, a man who was running to
board the defendant’s train seemed as if he was about
to fall. One of the railroad’s employees attempted to
push the man onto the train from behind to prevent
the man from falling. As a result, a package was dislodged from the passenger’s arms. The package contained fireworks (unbeknownst to the employee),
which exploded when they fell. The shock of the
explosion made scales at the other end of the railroad
platform tip over and injure the plaintiff. In this case
of an “unforeseeable plaintiff,” the court held that
negligence must be founded on the foreseeability of
harm and ruled in favor of the Long Island Railroad.
In reviewing malpractice cases, the expert’s analysis does not end with merely addressing deviations
from the standard of care. The expert is then obligated to assess whether the deviations were the cause
of the harm. This includes evaluations of both foreseeability and the presence of intervening causes. Establishing the causal link is a critical element in the
analysis of any malpractice case. Psychiatric experts
are not experts in proximate cause legal analysis.
However, in malpractice cases, it is likely that they
will be asked to opine on whether a deviation from
the standard of care caused the plaintiff’s damages as
a medical matter. Clearly, focusing on causation
would be likely to reduce the expert’s emphasis on
“procedural failings that have little to do” with substantive care, as some have alleged was involved in
Liptzin.3 The rigor involved in an analysis of causa-
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Objectivity in Psychiatric Malpractice Case Analysis
tion necessarily forces the expert’s attention beyond
purely procedural failings, and toward causal deviations, where the essence of substantive care is more
likely to reside.
Failure to consider causation may result in the
expert’s identifying a long list of deviations from the
standard of care. In all likelihood, only a small number of the deviations can be causally connected to the
outcome. Listing an excessive number of failures
without causal connections may signal a plaintifforiented bias or, at the very least, a hasty, “shotgun”
approach to the analysis. Another potential pitfall
resulting from a failure to consider causation involves
the expert’s stressing a lack of documentation by the
defendant doctor. An overly narrow focus on documentation is an example of a procedural failing that is
only rarely causally connected to damages. While the
standard of care requires documentation of important clinical assessments, the absence of documentation may or may not be the proximate cause of the
damages.13 Certainly, the lack of documentation
may weaken the credibility of the defendant who
claims that a critical procedure was done, but not
documented. However, malpractice defense attorneys, familiar with the phrase, “the lack of documentation never harmed anyone,” will be quick to note
that discovery and depositions may later reveal the
lack of documentation to be irrelevant. Unless the
lack of documentation can be causally linked to the
harm, stressing documentation to the exclusion of
causation is likely to raise questions about the objectivity of the analysis.
The following two cases illustrate the importance
of establishing a causal nexus between the deviation
from the standard of care and the alleged damages.
Case C
Mr. C. was admitted to a psychiatric inpatient
unit for depression and suicidal ideation. He was not
started on medication and was discharged 48 hours
later after he refused to answer questions about suicidality. At discharge, an outpatient appointment
with a community doctor was made for the patient.
At Mr. C.’s appointment, his psychiatrist prescribed
an antidepressant. However, the psychiatrist did not
take a complete history, and it was not discovered
that the patient had a strong family history of bipolar
disorder, in addition to a personal history of some
mood cycling. After taking the antidepressant for
several days, Mr. C. became frankly manic and drove
220
his car erratically at high speeds, resulting in a traffic
accident that caused severe head trauma from which
he ultimately died. Mr. C.’s wife sued the hospital
and the outpatient and inpatient doctors. The plaintiff’s expert testified that the hospital was negligent in
failing to assess and treat the patient’s suicidality and
discharging him prematurely from the hospital.
In this case, the expert overlooked the issues of
intervening cause and foreseeability. Even though
the hospital’s treatment of the patient may have been
negligent, the intervening event—prescription of an
antidepressant by the community doctor—was the
likely cause of Mr. C.’s mania. The outpatient doctor’s actions had the effect of breaking the chain of
causation between the hospital’s negligence and the
patient’s death. In addition, it could be argued that
the accident was not foreseeable by the hospital. For
example, the probable consequences of premature
hospital release for a suicidal patient do not include
mania and a traffic accident.
Case D
Mr. D. was a man with depression and chronic,
intermittent suicidal ideas. He was treated for depression as a psychiatric inpatient. At the time of his
discharge, Mr. D. still had some symptoms of depression, but denied suicidal ideas. Upon discharge, Mr.
D.’s psychiatrist scheduled him for a follow-up appointment approximately two months later. One day
after discharge, Mr. D. committed suicide. The
plaintiff’s expert opined that Mr. D.’s psychiatrist fell
below the standard of care by giving such a late follow-up appointment.
In this case, even if a two-month outpatient follow-up appointment is a clear departure from the
relevant standard of care, there can be no liability
unless the expert is willing to testify that failure to
give a follow-up appointment less than 24 hours after
discharge falls below the standard of care. Mr. D.
killed himself the day after discharge, and so, hypothetically, the suicide could only have been prevented
if he had been seen within that brief window of time.
A more plausible deviation may exist in the area of
premature discharge, and more analysis would be
needed to determine whether it could be considered
the proximate cause of Mr. D.’s suicide.
Hindsight Bias
An extremely powerful biasing influence that is
pervasive in analyses of causation is known as the
The Journal of the American Academy of Psychiatry and the Law
Knoll and Gerbasi
“hindsight bias.” The hindsight bias is another wellstudied cognitive illusion, in which people overestimate and exaggerate what could have been predicted
about past events.24 Courts have long recognized this
error in judgment, most notably the Tarasoff Court,
which provided the cautionary warning that,
“. . .proof aided by hindsight, that the therapist
judges wrongly is insufficient to establish negligence.”25 In retrospect, everything becomes “foreseeable,” and even improbable consequences seem reasonable.26 Legal scholars are aware of the hindsight
bias phenomenon and even recommend that defense
lawyers use a “debiasing strategy” in the closing argument.27 However, even when steps are taken to
inform people about the bias, no practical methods
have demonstrated significant success in reducing its
influence.
Exposure to a known outcome causes people to
update their beliefs without even realizing that their
decision-making process has been affected. Indeed,
ignoring a known outcome is an unnatural mental
process, and few decisions in real life require true ex
ante estimates of what care should have been exercised to avoid harm. Nevertheless, forensic experts
are not entirely powerless against this cognitive illusion. There must necessarily be an attempt at mentally suppressing evidence that could not have been
known beforehand by the defendant. The hindsight
bias is most likely to impair forensic experts’ ability to
assess causation where foreseeability is at issue. The
following case illustrates the importance of minimizing the hindsight bias.
Case E
Mr. E. was a man with paranoid schizophrenia
who had been found not guilty by reason of insanity
of murder. After 12 years of inpatient commitment
and 5 years of clinical stability, he was discharged
from a secure forensic hospital to a group home in the
community. After six months of living in the group
home, he wandered away, stopped taking his antipsychotic medication, and began using alcohol. Before
his case manager could track him down, he obtained
access to a public commercial target-shooting range
where he began acting erratically. The police were
dispatched, and Mr. E. was killed in a shoot-out with
police.
Mr. E.’s family brought a lawsuit against the forensic hospital, the group home, and Mr. E.’s outpatient treatment providers. Plaintiff’s expert was par-
ticularly critical of Mr. E.’s release from the forensic
hospital. The expert opined that Mr. E.’s “premature
discharge” played a causal role in his death and that
his history of past violence placed him at high risk of
just such an outcome.
Mr. E.’s past violent act and finding of insanity
provide a powerful biasing influence, especially when
combined with the fact that his release from the forensic hospital ultimately culminated in a tragic outcome. Though detailed analysis may indeed reveal
deficits in such areas as outpatient treatment and
supervision, a claim of premature discharge is dubious, given Mr. E.’s lengthy stay and clinical stability
at the time of discharge.
To minimize hindsight bias, the forensic expert
should use only the defendant doctor’s pre-damages
viewpoint in determining whether the doctor’s actions fell below the standard of care. In a sense, this
exercise requires looking through the defendant doctor’s eyes, considering only data the doctor was aware
of, or should have been aware of. It may be necessary
to obscure purposely or remove the outcome from
scrutiny, focusing only on preceding events. When
the biasing influence of the tragedy is removed from
the analysis, it is reasonable to conclude that there is
no significant evidence to suggest that Mr. E., who
demonstrated clinical stability for five years, was prematurely discharged. Taking such a viewpoint will
reduce the effects of the hindsight bias and help the
forensic expert more clearly examine the defendant
doctor’s compliance with the standard of care.
Contributory Negligence
The doctrines of contributory and comparative
negligence allow courts to take into consideration the
plaintiff’s role in bringing about his own injury or
harm. Under contributory negligence, if a plaintiff
was himself negligent, recovery may be totally
barred. In contrast, comparative negligence allows
courts to offset a plaintiff’s damages to the degree
that he himself was negligent and contributed to the
harm. Comparative negligence is the predominant
doctrine nationwide, but individual state statutes
should be consulted to determine the rule in a given
jurisdiction.
Historically, the doctrines of comparative and
contributory negligence have not been applied to
malpractice actions involving suicide. Courts have
ruled that it is inappropriate to hold patients responsible for suicide when they are under psychiatric care
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Objectivity in Psychiatric Malpractice Case Analysis
for suicidal tendencies. The psychiatrist is said to be
under a duty to “prevent precisely those actions.”28
From this viewpoint, patients are seen as incapable of
taking responsibility for their actions because they
are mentally ill. As stated by the New Jersey Supreme
Court:
The plaintiff’s inability to adequately control her self-damaging
behavior—which indeed was symptomatic of her mental disturbance—was known to the defendants, and the defendants were
under a duty to prevent plaintiff’s self-damaging acts. . . . Because [the defendant’s] duty of care included the prevention of
the kind of self-damaging acts that caused the plaintiff’s injuries,
the plaintiff’s actions and capacity were subsumed within the
defendant’s scope of duty. Thus. . .the defense of contributory
negligence was not available [Ref. 29, pp 166 –7].
More recently, however, several states have ruled
that the plaintiff’s own contributions to the damages
may be considered by the jury.28,30 For example, in
Hobart v. Shin,28 the Illinois Supreme Court ruled
that a jury instruction about contributory negligence
was appropriate in a suicide malpractice case. That
case involved a young woman treated for depression
who took a lethal overdose of medication after registering into a hotel under a fictitious name. The court
held that the issue of contributory negligence should
be considered on a case-by-case basis, quoting a California court:
The issue of contributory negligence of a mentally disturbed
person is a question of fact; unless, of course, the evidence
discloses that the person whose actions are being judged is completely devoid of reason. If he is so mentally ill that he is incapable of being contributorily negligent, he should be entitled to
have the jury so instructed. . . [Ref. 28, p 911].
Defense attorneys, now increasingly aware of the
importance of contributory negligence in psychiatric
malpractice cases, may request that experts attend to
it in their analyses. Alternatively, plaintiff’s experts
may be challenged by defense attorneys on issues
involving the plaintiff’s own contributions to the
damages. Such cases typically involve suicide and require the expert to analyze the plaintiff’s competence
and autonomous decision-making capacity at the
time in question.28 Opinions on this issue are difficult to form for the conscientious, objective expert,
given that the person on whose behalf the suit is filed
is no longer alive to be interviewed. Exhaustive review of records and interviews with family and
friends are likely to be necessary in this regard.
222
Conclusions
By virtue of their special knowledge and training,
forensic psychiatrists should possess greater understanding of the subtleties of medical malpractice
evaluations than their nonforensic psychiatric colleagues. The forensic psychiatrist should be more
adept at focusing on the appropriate legal analysis
and more vigilant for errors that preclude objective
and accurate opinions. The rigor that the forensic
psychiatrist brings to the malpractice case analysis
should constrain examination to causal deviations,
hopefully shifting the focus away from unrelated
medical ritual. If forensic psychiatrists are to avoid a
reliance on experts policing experts, individual forensic psychiatrists must be fully prepared to police
themselves.
The impediments to objective analysis described
herein may be prevented by careful attention to relevant legal concepts, use of the appropriate standards, and vigilant consideration of potential biasing
influences. Opposing experts can be expected to
come to different conclusions in psychiatric malpractice cases for a variety of reasons.13 Nevertheless, it is
the process by which forensic psychiatrists arrive at
their conclusions that provides the greatest opportunity for improving accuracy of case analysis. It is
hoped that this article will clarify essential concepts
and stimulate discussion among forensic psychiatrists, which in turn will serve to improve the accuracy and objectivity of malpractice case analysis.
Acknowledgments
The authors thank Phillip Resnick, MD, Jan Brakel, JD, and
Michael Champion, MD, for their assistance with this article.
References
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AMERICAN PSYCHIATRIC ASSOCIATION
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SELF
ASSESSMENT
AMERICAN PSYCHIATRIC ASSOCIATION
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The Psychiatric Expert in Malpractice Litigation
Self Assessment Questions
1.
The most difficult standard of care for plaintiff to prove
is
a.
b.
c.
d.
2.
Settlement considerations include all of the following
EXCEPT:
a.
b.
c.
d.
e.
3.
Defendant doctor’s demeanor
Defendant doctor’s malpractice history
Ability of the experts
Attitude of the assigned judge
Nature of the jury pool
Data available to the malpractice expert witness routinely
includes all of the following EXCEPT
a.
b.
c.
d.
4.
Ordinary negligence
Gross negligence
Deliberate indifference
Professional judgment rule
Personal interview with the defendant doctor
Copy of the complaint
Deposition of defendant doctor
Medical chart of the plaintiff
The components of negligence include all of the following
EXCEPT:
a.
b.
c.
d.
e.
Duty
Dereliction of duty
Deleterious conduct
Direct causation
Damages
5.
Common errors in analyzing a malpractice case include all
of the following EXCEPT:
a.
b.
c.
d.
e.
6.
A defense malpractice report includes the following items
EXCEPT:
a.
b.
c.
d.
e.
7.
Sources of information
Summary of the facts
Evidence refuting alleged deviations identified in
plaintiff’s experts’ reports
New criticisms of the defendant doctor’s
conduct
Opinion on whether plaintiff’s experts alleged
deviations caused damages
The attorney’s goals in a discovery deposition include all
the following EXCEPT
a.
b.
c.
d.
8.
Identifying only a single deviation from the standard
of care
Using the incorrect standard of care
Failure to address proximate cause for each deviation
Having a hindsight bias
Failure to use the defendant doctor’s perspective in
one’s analysis
Size up the expert
Intimidate the expert
Gather ammunition for cross exam
Learn the expert’s opinions and reasoning
In a discovery deposition, the expert should not do the
following EXCEPT:
a.
b.
c.
d.
e.
Volunteer anything
Lose your temper
Attempt to be humorous
Acknowledge books as authoritative
Answer a question if an objection is made
The Psychiatric Expert in Malpractice Litigation
Answers to Self Assessment Questions
1.
c
2.
b
3.
a
4.
c
5.
a
6.
d
7.
b
8.
e
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