Forensic Psychiatrists Alerted To Growing Liability Risks

Forensic psychiatrists serving as expert witnesses have traditionally been sheltered from legal liability for the content of their testimony. In recent years, however, those safeguards have begun to erode, and it has become more likely that forensic psychiatrists could themselves be the target of lawsuits.

But being aware of the risks will help forensic psychiatrists steer clear of the liability minefield, said Renee Binder, M.D., at the October annual meeting of the American Academy of Psychiatry and the Law (AAPL) in Newport Beach, Calif.

Binder, chair of the APA Commission on Judicial Action and a former president of AAPL, indicated that strategies to avoid being sued are a particularly timely topic in light of the increase in the number of psychiatrists who decide to offer themselves to the courts as expert witnesses. In fact, she noted, AAPL’s membership has increased by about 46 percent since 1992 as more psychiatrists have decided to supplement their clinical practices with forensic work.

While the concept of providing immunity to witnesses extends back more than five centuries, with its roots in English common law, in recent years several factors have combined to erode the safeguards that protected expert witnesses from suits in both state and federal courts, Binder said.

One key reason for the crumbing of the immunity concept has been the “proliferation of experts,” she pointed out, and not just psychiatric or other medical experts. Juries have concluded and the media have spotlighted the lack of impartiality that many of these experts convey in their testimony.

“Too many such witnesses have obviously been for sale to the highest bidder,” opening up a potential for perjury charges, she suggested. “In fact, many lawyers frankly admit that they do not want any semblance of impartiality in their expert witnesses.”

A backlash has now developed that often tars all expert witnesses, no matter how scrupulous, with the brush of bias.

In addition, some lawmakers and judicial experts have concluded that two deterrents to biased or even dishonest expert testimony built into the system—perjury charges and cross-examination of the witnesses—are not effective.

Regarding cross-examination as a way to expose biased expert testimony, Binder cited a Louisiana court that said it “seldom is of adequate value when thrust against the broadside of the litigation expert who can so gracefully stiff-arm his unprepared cross-examiner.”

Another factor in the push to hold forensic psychiatrists legally accountable for their testimony is the growing incidence of attorneys being sued for malpractice. Some courts have ruled that an expert’s consulting role in a legal case should be viewed akin to that of an attorney, which further shrinks traditional immunity protections and opens the door to negligence lawsuits against expert witnesses.

“Attorneys are given guidelines to protect themselves from malpractice liability,” Binder noted, and it’s critical that psychiatrists abide by similar guidelines.

She also found reasons for the eroding testimony safeguards in the intent of tort law, one goal of which is to compensate injured parties when a loss of some kind can be attributed to actions of other parties. “Courts are beginning to decide that granting immunity to expert witnesses is actually counterproductive to this goal and unfair to the injured party,” she said. “The argument is that expert witnesses might be harming a plaintiff or defendant by negligent performance and that they should assume responsibility for this harm.”

The specter of sanctions against forensic and other expert witnesses is not limited to the courts now that a federal appeals court has ruled that professional societies have the right to discipline their members for delivering improper testimony if they have an ethics code that covers this type of activity, she warned.

“The most comprehensive guideline for ethical conduct by forensic psychiatrists” is the one developed by AAPL, she said. AAPL members must also be members of APA or the American Academy of Child and Adolescent Psychiatry (AACAP). Thus, when AAPL receives reports of unethical or unprofessional conduct by its members, it refers the complainant to the appropriate APA district branch or AACAP ethics committee, which can take disciplinary action if the charges are found to be accurate.

Forensic psychiatrists may also be disciplined by state medical licensing boards, Binder pointed out. “The AMA’s House of Delegates passed a resolution in the late 1990s stating that the provision of expert testimony is the practice of medicine,” she pointed out.

Binder offered several principles and guidelines to reduce the chances that forensic expert witnesses will fall into the legal liability trap.

Critically important—though perhaps obvious—is that psychiatrists receive training about the way to conduct forensic evaluations before they undertake these activities.

“Clinical evaluations and reports differ from forensic ones,” she said, and psychiatrists need to understand relevant legal issues in each case, civil and criminal procedures, how to interact with evaluees and attorneys, how to give court testimony, and how to write reports.

In addition, before they leap into the forensic arena, “psychiatrists need to be certain that they have the time to meet court deadlines and requirements,” Binder stressed. “Forensic psychiatry work can be inflexible, such as when reports need to be submitted by a discovery deadline or when a psychiatrist is called to appear in court or give a deposition.”

She also described several “risk-management techniques” similar to those attorneys use. These include

• not specifying a likely result or advertising how your services will achieve that result,

• arranging fees and expense reimbursements at the start of any consultation,

• maintaining strict records that include audiotapes or videotapes,

• keeping attorneys informed of your expert opinions as they develop, and

• not taking cases that require ability and expertise beyond that which you possess.

Finally, Binder advised, “Be absolutely sure your malpractice coverage will cover your defense if you are sued as an expert witness.”

It is crucial in minimizing liability risk that psychiatrists who add forensic work to their practice “understand the risk of liability and get training in how to do this specialized type of work,” she told Psychiatric News. “They need to know the rules of the legal system and how they differ from the rules of the medical system.”

A version of Binder’s presentation appears in the NovemberAmerican Journal of Psychiatry,which is posted on the Web at http://ajp.psychiatryonline.org/cgi/content/full/159/11/1819. ▪