Expert Medical Witnesses Get Heightened Scrutiny

One suggestion to gain an understanding of relevant legal issues before testifying in either criminal or civil cases is to take an appropriate fellowship or pursue training leading to certification. Education also can clarify the rules on confidentiality.

Psychiatrists need training that is specific to forensic psychiatry, Binder suggested, which goes beyond diagnosing for the clinical setting to presenting expert opinions about diagnosis and treatment that comports with the way the legal system needs such information presented.

Expert witnesses should study state medical boards' standards for expert testimony and the licensing requirements for out-of-state witnesses, Binder emphasized.

The importance of a thorough understanding of state medical board requirements has been highlighted in the ongoing legal wrangling in South Carolina, for example, where the state medical board requires out-of-state clinicians who testify as expert witnesses to get a medical license in that state.

Physicians who plan to testify as medical experts should first understand the positions and policies of their state medical societies and state medical boards. Sanctions by professional organizations may be reportable to the National Practitioner Data Bank and are discoverable in litigation, Merideth said.

Physician groups that have guidelines for members who give expert testimony include APA, the AMA, and the American Academy of Psychiatry and the Law.

Binder also urged psychiatrists to avoid testifying on issues involving clinical situations with which they may be unfamiliar, such as treatment or policies on particular inpatient units.

The experts at the workshop agreed that detailed notes are critical during all aspects of a psychiatrist's involvement in legal proceedings. However, opinions differed on the benefits of audio or video recordings of interviews. Binder said she electronically records all such interactions to avoid accusations that she did something that could harm the person at the center of the case. Merideth countered, however, that records may be used in a follow-up suit against the psychiatric expert witness. The only case interviews he records are sexual-harassment cases involving women.

“Your audiotape will be micro-scrutinized by the opposing counsel,” he stressed.

Clinicians also should obtain written consent-form signatures from the subject of a legal case before releasing any evaluations, Binder said.

Merideth urged clinicians to have their own lawyer help them understand“ unclear legal situations” before they agree to provide expert testimony.

There are also early indicators pointing to cases that clinicians should avoid. Psychiatrists should avoid cases in which the person involved asks in advance for a specific medical opinion, according to Binder.

Another red flag for a legally perilous situation involves cases in which one party contacts the psychiatrist shortly before the trial is set to begin, since this often indicates that other experts have already abandoned a weak case. ▪