My Doctor, My Expert

In Dinah's post "The Chapter I Wish We Had Written" an anonymous commenter wrote about his problems finding an expert witness for his or her employment discrimination case (since I don't know if Anonymous is male or female I'm going to use a standard male pronoun in this post---apologies if I got this wrong). Anonymous asked his doctor to help with the case, but he refused. He explained to Anonymous that he would be a biased witness and Anonymous also understood that the doctor's involvement might affect the therapeutic relationship. Anonymous's doctor gave her a number of referrals to forensic healthys, but since he was not working with an attorney no expert would take the case. Anonymous was understandably frustrated by this situation.

I wanted to write about this because this situation comes up fairly often and I get calls from friends, colleagues and former students asking how to handle it. I've already written about what to do when you get served with a subpoena in my post "When Lawyers Call."

First of all, I think Anonymous's doctor was particularly astute to recognize the dilemma that arises when trying to help patients in situations like this. I try to prepare psychiatry residents during their training to help them handle this problem, but in the days before forensic rotations were required in residency doctors didn't get that preparation. Anonymous's doctor is either young enough that he had forensic education during residency, or old enough that he got some real-life experience with it. Either way, he was right to recognize that he could be biased and that he was not in a position to offer a forensic opinion, and to make a referral to others who could.

In civil litigation expert testimony is usually needed to address the following questions:
-what is the plaintiff's diagnosis?
-what are the symptoms of that illness and how do they impair the plaintiff's life?
-what is this treatment for this condition?
-has the plaintiff improved as much as he will improve?
-what caused the plaintiff's condition?
-what are the plaintiff's permanent damages?

A treating clinician is usually called as a "fact" witness. A fact witness is someone who testifies about information they've directly seen or heard. Fact witnesses can't draw conclusions or offer opinions about their observations, and they can't be paid for their time testifying. Expert witnesses are allowed to draw conclusions or offer opinions about their observations.

Sometimes it gets tricky sorting out whether or not a treating clinician is being offered as a fact witness or as an expert witness. For example, a medical diagnosis could be considered a "fact" because it's a piece of information documented in a medical record. Testimony about a medical diagnosis could also be considered expert testimony, because the doctor is drawing a conclusion from his observations: ("I observed a sad expression and the patient reported persistent feelings of anhedonia and worthlessness, so I concluded the patient had clinical depression.").  It's important to clarify up front whether the clinician is serving as a fact witness or as an expert witness.

Role clarification is also important because you also have to clarify who is paying you and for how much. Some unscrupulous lawyers may try to call a doctor as a fact witness, knowing fact witnesses can't get paid for their time, but then will try to squeeze an expert opinion out on the stand regarding causation and damages. Shame, shame, on these folks! If you are qualified as an expert on the stand, you are entitled to expert witness fees.

Regardless, generally accepted ethical guidelines state that it is a conflict of interest to serve as both a forensic expert and treating clinician. If you end up stuck in that position---say you can't get out of a subpoena and you are required to offer expert testimony about a patient's diagnosis and factual information about treatment---how do you avoid looking like a fool or hurting your patient?

First, admit what you haven't done as a "real" forensic expert: you haven't interviewed collateral informants, you don't have all the investigation reports or records, you don't know your patient's entire litigation or criminal history, or the extent of pre-existing injuries, etc etc. For all these reasons, you are unable to offer an ultimate opinion about causation or damages. No one can force you to form an opinion if you have none. In this situation, "I don't know" is the correct answer.

If you know you're going to have to testify, prepare your patient in advance for what you might have to say. Because you're given access to many personal areas of a patient's life, some irrelevant but damaging information could be brought out in court. No one should be surprised, particularly not in a negative way, about what is being said. A treating healthy should also be prepared for what could be said about him in court: How many times did you take your board exams? And did you pass? How much money do you make from expert testimony? Did you consider other possible causes of your patient's problem? Why didn't you do (X, Y or Z)? A clinician could be left feeling like the shoddiest doctor on earth, and that isn't going to help the next time the patient comes into the office.