Liability for the Psychiatrist Expert Witness

In Levine v. Wiss and Co. (31), the court allowed a lawsuit to be brought against a court-appointed expert, an accountant, for alleged substandard performance. The accountant argued that he was entitled to witness immunity and that he was not liable for any negligence in the performance of his professional duties on behalf of the parties. The court concluded that as an accountant, the defendant had a duty to “exercise reasonable care in preparing reports, verifying underlying data, and examining the methods employed in arriving at financial statements” (31).

Although this case did not involve a psychiatrist witness, it is possible to see how the principles elucidated by the court might apply to a psychiatrist who is retained to do an evaluation and arrive at a diagnosis and treatment recommendations in a forensic case. If the diagnosis is not arrived at by practices consistent with the standards of care, it is certainly conceivable that a psychiatrist expert witness might also be liable.

In Mattco Forge Inc. v. Arthur Young & Co. (18), the court of appeals allowed a claim of negligence against an accounting firm retained as an expert witness in legal proceedings. The complaint against the accounting firm alleged professional malpractice as well as fraudulent representation of its employees’ expertise. For example, the allegation was that the accounting firm’s brochure had fraudulently represented the firm’s litigation support personnel as having special training in California procedures. The complaint further alleged that an inexperienced certified public accountant was used by the accounting firm and that he had no training or experience in litigation services.

The trial court dismissed the lawsuit against the accounting firm on the grounds of expert witness immunity. The California Court of Appeals reversed the dismissal.

Although Mattco did not involve psychiatrist expert witnesses, it is relevant to psychiatrists because it allowed a retaining party to sue expert witnesses with the allegations that they had misrepresented their expertise and that their work was below the standards of practice. The retaining party claimed to have lost its lawsuit as a result of the alleged actions of the expert. It is certainly conceivable that this same principle could be used to bring a case against psychiatrist expert witnesses who misrepresent their forensic experience or whose performance as experts is alleged to be substandard.

In Murphy v. A.A. Matthews (19), the Missouri Supreme Court held that witness immunity does not bar lawsuits against professional expert witnesses for alleged negligence in reaching opinions. The complaint was against engineers who had been retained as experts and alleged that the engineers’ incompetence and carelessness had led to an inability by the plaintiff to obtain appropriate compensation in the legal action. The primary defense against the allegations was that witness immunity protected the engineers from liability. The trial court dismissed the case on the basis of the witness immunity doctrine, and the Missouri Supreme Court reversed the dismissal.

The Missouri Supreme Court opined that witness immunity should be limited in scope. The court held that witness immunity should continue to be limited to defamation or to retaliatory cases against adverse witnesses. The court felt that the imposition of liability would encourage experts to be careful and accurate. It opined that since professional experts are subject to negligence liability in their other work, it is not out of line to expect that services related to litigation should be treated in a similar manner.

The Murphy court also discredited the notion that expanding witness liability would result in difficulty in retaining experts by stating, “There is no reason to believe that professionals will abandon the area of litigation support merely because they will be held to the same standard of care applicable to their other areas of practice” (19). Responding to the criticism that expert witness liability may result in a never-ending cycle of litigation, the Murphy court acknowledged that withholding immunity would lengthen the litigation process for yet one more lawsuit. Despite this concern, the court reasoned that an increase in the number of trials was already allowed for trial attorneys who allegedly commit malpractice and indicated that experts should receive consistent treatment.

In the view of the court, experts act as advisors and advocates, as opposed to being objective and independent witnesses. The court stated that the engineering firm charged a hefty fee to provide expert services to assist the claim of the plaintiff. By charging this fee and voluntarily agreeing to provide services, it assumed the duty of care of a professional; therefore, witness immunity did not bar the lawsuit from being heard by the court.

In this case, as in Mattco, we can see the evolution of thinking regarding expert witness immunity. The Murphy court supported the right of aggrieved parties to bring a lawsuit against a witness that they retained if they feel that the services of that witness were performed negligently. This right could also be extended to parties who retain psychiatrist expert witnesses. For example, a psychiatrist who undertakes expert witness work without receiving adequate training in how to do this type of work and who does not understand the standards of practice for forensic evaluations, report writing, and testimony might be subject to a claim that the psychiatrist expert witness performed his work negligently and was responsible for any unfavorable judgment.

In Pettus v. Cole et al. (32), the court ruled that two psychiatrists violated the California Confidentiality of Medical Information Act when they disclosed to an employer details of psychiatric disability evaluations they had performed on behalf of the employer. Rather than negligence, this case involved allegations of inappropriate disclosure based on specific statutory confidentiality requirements. The case also redefined the physician-patient relationship as including the relationship between evaluator and evaluee.

Mr. Pettus requested time off from work because of disabling stress. His employer’s short-term disability policy required that he undergo a medical examination that would be arranged and paid for by the employer. Two psychiatrists evaluated Mr. Pettus and submitted detailed reports to the employer, including statements that Mr. Pettus’s condition might be linked to an alcohol abuse problem. As a result of these evaluations, Mr. Pettus’s employer required him to receive alcohol treatment as a condition of continued employment. Mr. Pettus was terminated when he refused to enter an alcohol treatment program. He complained that he never authorized the doctors to disclose the full contents of their evaluations to his employer. Neither psychiatrist had obtained a written authorization for disclosure of all the information.

The California Confidentiality of Medical Information Act has a specific provision that was the basis of this lawsuit. This subsection states that when an employer requests and pays for employment-related health care services, the “provider of health care” may not disclose the medical cause of functional limitations. It states that the information disclosed should only include the functional limitations of the patient that may entitle the patient to leave work or to limit the patient’s fitness to perform employment. The California Confidentiality of Medical Information Act states that a “provider of health care” may not disclose medical information without a written authorization from the patient.

The psychiatrists claimed that there was no physician-patient relationship, and therefore, they had no obligation of confidentiality. The court of appeals found that professional services were performed, and therefore, there was a relationship with a duty of confidentiality. The court of appeals held that the information released to the employer was far more than the employer needed to have to accomplish its legitimate objective. The psychiatrists were not being sued for malpractice. They were being sued for a breach of the duty of confidentiality, as specified in the California Confidentiality of Medical Information Act.

The psychiatrists were subsequently involved in a prolonged lawsuit over the next several years that included another review by the court of appeals. The case was finally resolved in November 2000. The court affirmed that the psychiatrists had violated the statute but had not caused the plaintiff any damage.

This case demonstrates that psychiatrists need to know statutory and legal requirements in their jurisdictions if they plan on undertaking forensic work. These requirements are generally not taught in medical school or in residencies.

In Dalton v. Miller (33), the court ruled that a psychiatrist could be sued for alleged misconduct of a forensic examination. The facts of the case are as follows: The plaintiff, Patricia Dalton, sued her insurance company for refusing to renew her health insurance policy. Since she alleged resulting emotional distress, the insurer requested an independent psychiatric examination of the plaintiff to determine her emotional and psychological condition. Dr. Miller examined the plaintiff, prepared a written report, and testified in a videotaped deposition. The insurance company settled the claim. The plaintiff then sued the psychiatrist for his conduct during the examination and for alleged discrepancies between his written report to the insurer and his videotaped deposition testimony. The trial court dismissed the claim against the psychiatrist, reasoning that the defendant, Dr. Miller, was entitled to immunity for his activities conducted pursuant to the psychiatric evaluation. The court of appeals upheld the portion of the trial court’s decision that said that witness immunity protected the statements of the physician witness in his report and deposition. However, the court of appeals reversed another part of the lower court’s decision. It stated that the case could proceed on the issue of whether the psychiatrist’s conduct during his examination caused the plaintiff harm. The plaintiff claimed that the psychiatrist’s questions were overly intrusive and that he forced her to take psychological tests. With this issue, the case against the psychiatrist was allowed to proceed.

This case demonstrates how physicians can be sued for their conduct during an examination even if they are immune from claims of negligent testimony. This is an area of potential liability for psychiatrists to be aware of if they choose to undertake forensic evaluations.

A psychiatrist was asked by an employer to perform a “fitness-to-duty” evaluation of an employee. The concern was that the employee often misconstrued actions or conversations to be about himself when they were not. There was also concern about potential violence by the employee. The psychiatrist did an evaluation and diagnosed the employee as having a paranoid personality. Subsequently, the employee was suspended; he brought a lawsuit against the psychiatrist. The employee retained an “expert witness” who wrote a report discrediting the basis of the diagnosis. This “expert” stated that the diagnosis of paranoid personality was inaccurate and opined that the employee’s thoughts of conspiracy were related to cultural ideas rather than to a psychiatric diagnosis. The employee represented himself in this lawsuit against the psychiatrist. Possibly partially because the courts give great leeway to pro se plaintiffs (i.e., those who represent themselves), the court refused to dismiss several of the allegations against the psychiatrist and allowed the lawsuit to proceed. Causes of action included the allegation that the psychiatrist fabricated the diagnosis to please the employer and that the diagnosis was without merit. Thus, the psychiatrist was put in the position of needing to retain a malpractice attorney to hire experts (including myself) to determine whether or not the diagnosis of paranoid personality was reasonable. These causes of action were eventually dismissed after several years of aggravation and stress for the psychiatrist/defendant.

A psychiatrist was asked to evaluate a disability claim brought by a 45-year-old man with recurrent depression. She interviewed the man and wrote a report stating that his complaints were consistent with a major depressive disorder and supported his claim of disability. Subsequent to the writing of the report, the man’s insurance company showed the psychiatrist a surveillance videotape that it had made of this businessman. The videotape showed that after leaving the psychiatrist’s office, the man was laughing and conversing with an acquaintance as he went shopping in the neighborhood. This was in contrast to what the man had reported to the psychiatrist. He had told the psychiatrist that he was barely able to move and could not engage in pleasurable activities. On the basis of this brief surveillance videotape, the psychiatrist wrote a supplemental report in which she stated that she was changing her diagnosis to “malingering.” As a result of this supplemental report, the man’s disability claim was denied. He brought a lawsuit against the evaluating psychiatrist, and three causes of action were set forth: defamation, intentional infliction of emotional distress, and conspiracy. The psychiatrist’s attorney requested a consultation to determine whether the psychiatrist’s diagnosis of malingering was reached within the standards of practice for forensic psychiatrists. The attorney tried to have the defamation cause of action dismissed on the basis of the fact that psychiatrists have a qualified privilege related to their opinions; however, the court allowed this cause of action to proceed in its demurrer. This case is currently in litigation.