What is the expert like to work with? Is she "user friendly?" Is he personable? Does she return phone calls or emails in a timely way? Most importantly, does he meet deadlines? Try not to confuse assertiveness with rude behavior. A competent expert may know more than you about a narrow area of the law such as the criteria for involuntary hospitalization. He may have done more medical malpractice cases than you. He may rattle off what records he wants, why he wants them and he won't accept a "no" without good reason. None of us likes to have someone trample on our ego, but remember that a "marshmallow" may make your life easier now but may come back to haunt you at his deposition or on the stand. His assertive-rude behavior could be his way of trying to impress you.
Although experts sometimes promise more than they can deliver, I have
found that some attorneys need to be more realistic about what they can
and should expect from experts. For example, I recently spoke with two
attorneys who did not retain me because they were looking for an expert
in New Jersey who spent most of his time running a clinic for the
evaluation of potentially violent people. Other than a prison, I know of
no such facility. I tried to explain this to them but to no avail.
Tuesday, July 3, 2012
Tuesday, June 26, 2012
How to choose a Forensic Psychiatrist Expert? - Part 3.
How does he like to structure the evaluation? If it is going to take about 8 hours, some experts like to have two separate visits. This alleviates fatigue. If there is "an elephant in the room," the expert has a chance to clarify the problem between visits. For example, I recently evaluated a young woman in a personal injury case. She was not responding to the simplest of questions. Although she alleged pain in the interrogatories, it took 10 minutes to find out where she hurt, along with the quality of the pain and yet, I still did not have a clear understanding of her pain! I wondered if she was a schizophrenic, manic, learning disabled or purposely being evasive. Fortunately, there was a two-week gap between the interviews. In the interim, I received the records from her primary care physician, which covered a span of ten years. These records were filled with notations about her habit of "double talking" and lying to her doctor. I was now able to explain the basis for her lack of clarity. She was being purposely non-responsive to my questions, which allowed me to confront her during the second interview.
Despite the above case, which was done in two parts, my preference is to do the entire evaluation in one sitting. Fatigue works both ways. If I am well rested, I am usually able to remain focused longer than the plaintiff. I find that a fatigued examinee is not able to continue a charade and will eventually contradict themselves or talk in an uncensored way for the first time in the interview.
Most forensic psychiatrists use the criteria of DSM-IV in making their diagnosis. Unfortunately this text is not uniformly authoritative. One controversial area is the diagnosis of Post Traumatic Stress Disorder (PTSD). Most forensic psychiatrists believe that the DSM definition of "trauma," referring to any event that is considered life threatening, is overly inclusive. Another shortcoming is the fact that the other diagnostic criteria are subjective and are usually not seen during the evaluation. A crafty interviewee can easily the DSM-IV criteria and regurgitate them to the doctor. Obviously, there is a tendency to exaggerate because of secondary gain. One of the best ways of countering this is for the expert to know more than the litigant about how the symptoms of PTSD actually present themselves in daily life. For example, if the examinee says that she suffers from “flashbacks”, I ask her for a detailed description of one of her flashbacks or any other symptoms which she is endorsing. This is invariably followed by a loss of confidence and arrogance if there has been symptom magnification. It is disturbing how many professionals accept a litigant’s symptoms as fact. The key point here is that this approach to interviewing is meticulous and requires more time. It probably comes as no surprise that civil defense attorneys are more appreciative of this approach than their adversaries.
Find out how much of the psychiatrist's work has been for the plaintiff versus the defendant. Ideally, she should be doing work for both sides, but she probably has a preference. For example, I have found that I do more cases for the defense. This is based on my belief that plaintiffs should be compensated for genuine psychiatric disorders and not “normal human unhappiness.”
What percentage of his time is spent in doing forensic work versus clinical practice and/or other professional activities? Many attorneys prefer to retain experts who spend a considerable amount of time seeing patients, feeling that they have more credibility. I agree. Patient contact also allows for the continued development of skills in the detailed diagnostic interview, which is the essence of the psychiatric-legal evaluation. There is, of course, a fine group of academicians who limit themselves to forensic work.
Is your prospective expert board certified? In 1995, the American Board of Psychiatry and Neurology officially recognized Forensic Psychiatry as a subspecialty. From 1995 to 1997, a psychiatrist with significant experience in forensics could be designated as having "Added Qualifications in Forensic Psychiatry" based on experience alone and the successful completion of a challenging written examination. Since 1997, a psychiatrist must have completed a least a one-year fellowship in order to sit for the certification examination.
How much experience does she have? There is no magic number, but I would prefer someone with a minimum of ten years experience. I also believe that having some "life" experience makes for a better expert. If she has gone through childbirth, the death of a parent, divorce, a serious medical problem etc., she should have more empathy for the plight of the examinee.
Does he have an academic appointment? If so, is he active in teaching at this time in his career? If your probable expert is a teacher, this gives him more credibility and suggests that he may be more articulate in court than the average psychiatrist who spends more of his time listening to patients rather than talking.
What kind of appearance does she make? Everything else being equal, people who are taller, slimmer, good looking and well dressed have a distinct advantage in our society. Believe it or not, a blue suit and a conservative red tie supposedly convey power in a male expert.
Are his reports comprehensive and free of typos? If possible, try to review one of his reports. Of course, the opinion section is the most important part of the report. It should be well thought out and jargon free. If malingering is an issue in this case, is the expert willing to say it and how does he back up his opinion?
Talk to other attorneys to find out how this expert handles himself at depositions and in the courtroom. I have seen several experts who write superb reports but choke on the witness stand when forced to "think on their feet."
Despite the above case, which was done in two parts, my preference is to do the entire evaluation in one sitting. Fatigue works both ways. If I am well rested, I am usually able to remain focused longer than the plaintiff. I find that a fatigued examinee is not able to continue a charade and will eventually contradict themselves or talk in an uncensored way for the first time in the interview.
Most forensic psychiatrists use the criteria of DSM-IV in making their diagnosis. Unfortunately this text is not uniformly authoritative. One controversial area is the diagnosis of Post Traumatic Stress Disorder (PTSD). Most forensic psychiatrists believe that the DSM definition of "trauma," referring to any event that is considered life threatening, is overly inclusive. Another shortcoming is the fact that the other diagnostic criteria are subjective and are usually not seen during the evaluation. A crafty interviewee can easily the DSM-IV criteria and regurgitate them to the doctor. Obviously, there is a tendency to exaggerate because of secondary gain. One of the best ways of countering this is for the expert to know more than the litigant about how the symptoms of PTSD actually present themselves in daily life. For example, if the examinee says that she suffers from “flashbacks”, I ask her for a detailed description of one of her flashbacks or any other symptoms which she is endorsing. This is invariably followed by a loss of confidence and arrogance if there has been symptom magnification. It is disturbing how many professionals accept a litigant’s symptoms as fact. The key point here is that this approach to interviewing is meticulous and requires more time. It probably comes as no surprise that civil defense attorneys are more appreciative of this approach than their adversaries.
Find out how much of the psychiatrist's work has been for the plaintiff versus the defendant. Ideally, she should be doing work for both sides, but she probably has a preference. For example, I have found that I do more cases for the defense. This is based on my belief that plaintiffs should be compensated for genuine psychiatric disorders and not “normal human unhappiness.”
What percentage of his time is spent in doing forensic work versus clinical practice and/or other professional activities? Many attorneys prefer to retain experts who spend a considerable amount of time seeing patients, feeling that they have more credibility. I agree. Patient contact also allows for the continued development of skills in the detailed diagnostic interview, which is the essence of the psychiatric-legal evaluation. There is, of course, a fine group of academicians who limit themselves to forensic work.
Is your prospective expert board certified? In 1995, the American Board of Psychiatry and Neurology officially recognized Forensic Psychiatry as a subspecialty. From 1995 to 1997, a psychiatrist with significant experience in forensics could be designated as having "Added Qualifications in Forensic Psychiatry" based on experience alone and the successful completion of a challenging written examination. Since 1997, a psychiatrist must have completed a least a one-year fellowship in order to sit for the certification examination.
How much experience does she have? There is no magic number, but I would prefer someone with a minimum of ten years experience. I also believe that having some "life" experience makes for a better expert. If she has gone through childbirth, the death of a parent, divorce, a serious medical problem etc., she should have more empathy for the plight of the examinee.
Does he have an academic appointment? If so, is he active in teaching at this time in his career? If your probable expert is a teacher, this gives him more credibility and suggests that he may be more articulate in court than the average psychiatrist who spends more of his time listening to patients rather than talking.
What kind of appearance does she make? Everything else being equal, people who are taller, slimmer, good looking and well dressed have a distinct advantage in our society. Believe it or not, a blue suit and a conservative red tie supposedly convey power in a male expert.
Are his reports comprehensive and free of typos? If possible, try to review one of his reports. Of course, the opinion section is the most important part of the report. It should be well thought out and jargon free. If malingering is an issue in this case, is the expert willing to say it and how does he back up his opinion?
Talk to other attorneys to find out how this expert handles himself at depositions and in the courtroom. I have seen several experts who write superb reports but choke on the witness stand when forced to "think on their feet."
resource - http://www.rsostowskimd.com
Monday, March 19, 2012
How to choose a Forensic Psychiatrist Expert? - Part 2.
Choose an expert who speaks clearly and simply. Experts, who are dominated by a theoretical orientation, tend to talk in jargon that you may find difficult to understand and which, in turn, the jury will not understand (and may even find irritating or condescending). Experts should speak clearly, simply and, as much as possible, without jargon. They should demonstrate the kind of "common sense" thinking that makes them approachable. When I testify in court, I know that I have done a good job when the jurors feel comfortable enough to ask me questions before I step down from the witness stand.
Here is an example of psychoanalytic jargon in the opinion section of a report that could have been deadly if it had gone unchanged. "In my opinion, Mr. Smith regressed to a pregenital level after he was mugged. He displaced his anger unto his wife and his internal objects." Believe it or not, this is a direct quote from a report I reviewed for a colleague. I sarcastically told him that a jury might think that Mr. Smith was not only mugged but also castrated! The psychiatrist was actually trying to say that "Mr. Smith began to have a change in his personality after he was mugged. He was angry and depressed because he thought that he should have tried to fight off the attackers and he took his anger out on his wife."
In order to give equal time, a psychopharmacologist said that Dr. X. was guilty of malpractice in his treatment of a man from China because the "removal of a methyl group from citalopram is principally dependent on CYP 2C19 AND 3A3/4 since 20% of Asians are deficient in the former." I think that you get the point here and I will not translate it into English!
Request the expert's most recent Curriculum Vitae. Study it carefully. Is he a graduate of an American medical school? If he attended an offshore medical school, the adversary attorney may use this against you. The opposing attorney may try the same strategy if your expert is a D.O. rather than an M.D.
Get the expert's fee schedule. Don't look for a bargain and don’t assume that the most expensive expert is the best. Quality psychiatric expert work is labor intensive. I have found that an Independent Psychiatric Examination is usually more costly than reports by other specialists. I actually do read all of the records sent to me and spend at least 4 hours evaluating a litigant. I am often surprised by other experts who feel that a 2-hour evaluation is adequate to get the job done. Although I do not tape interviews, I do make an effort to get direct quotes from the interviewee. A longer evaluation is usually more helpful in detecting malingering, as well as defensiveness and symptom magnification by the interviewee.
Check to see if the expert's hourly fee is consistent with his training and experience. I have been contacted by attorneys who were in a rage when they got bills from novice experts whose fees were higher than the most respected forensic psychiatrists in the area. Although the attorney should have checked the fee schedule in advance, the overcharging was often predictable and part of a pattern of unethical behavior. I am irritated by the expert who charges for the most miniscule piece of work such as a brief phone call.
Everything else being equal, I would expect a psychiatrist's hourly fee to be higher than that of a psychologist, psychiatric social worker or psychiatric nurse. I discuss this issue in other parts of this web site.
Pay special attention to the expert’s fee schedule if she has associates working for her. This could be a red flag regarding not only the final bill but, but more importantly, the quality of the report. I have seen invoices in which the senior expert and an employee bill for the same work.
Ask about his "no show" and/or late cancellation policy. Where does he prefer to do his evaluations? Will he travel, if needed?
Keep in mind that the final bill is not always the crucial issue. It is possible that the expert is simply working harder on your case. Take a look at her report and see how it compares with the work of other experts that you have retained in the past. I have had senior attorneys say that my final bill is higher, but insignificant because of the favorable settlement that they have been able to negotiate. In a few cases, the insurance company has saved as much as $200,000.
Here is an example of psychoanalytic jargon in the opinion section of a report that could have been deadly if it had gone unchanged. "In my opinion, Mr. Smith regressed to a pregenital level after he was mugged. He displaced his anger unto his wife and his internal objects." Believe it or not, this is a direct quote from a report I reviewed for a colleague. I sarcastically told him that a jury might think that Mr. Smith was not only mugged but also castrated! The psychiatrist was actually trying to say that "Mr. Smith began to have a change in his personality after he was mugged. He was angry and depressed because he thought that he should have tried to fight off the attackers and he took his anger out on his wife."
In order to give equal time, a psychopharmacologist said that Dr. X. was guilty of malpractice in his treatment of a man from China because the "removal of a methyl group from citalopram is principally dependent on CYP 2C19 AND 3A3/4 since 20% of Asians are deficient in the former." I think that you get the point here and I will not translate it into English!
Request the expert's most recent Curriculum Vitae. Study it carefully. Is he a graduate of an American medical school? If he attended an offshore medical school, the adversary attorney may use this against you. The opposing attorney may try the same strategy if your expert is a D.O. rather than an M.D.
Get the expert's fee schedule. Don't look for a bargain and don’t assume that the most expensive expert is the best. Quality psychiatric expert work is labor intensive. I have found that an Independent Psychiatric Examination is usually more costly than reports by other specialists. I actually do read all of the records sent to me and spend at least 4 hours evaluating a litigant. I am often surprised by other experts who feel that a 2-hour evaluation is adequate to get the job done. Although I do not tape interviews, I do make an effort to get direct quotes from the interviewee. A longer evaluation is usually more helpful in detecting malingering, as well as defensiveness and symptom magnification by the interviewee.
Check to see if the expert's hourly fee is consistent with his training and experience. I have been contacted by attorneys who were in a rage when they got bills from novice experts whose fees were higher than the most respected forensic psychiatrists in the area. Although the attorney should have checked the fee schedule in advance, the overcharging was often predictable and part of a pattern of unethical behavior. I am irritated by the expert who charges for the most miniscule piece of work such as a brief phone call.
Everything else being equal, I would expect a psychiatrist's hourly fee to be higher than that of a psychologist, psychiatric social worker or psychiatric nurse. I discuss this issue in other parts of this web site.
Pay special attention to the expert’s fee schedule if she has associates working for her. This could be a red flag regarding not only the final bill but, but more importantly, the quality of the report. I have seen invoices in which the senior expert and an employee bill for the same work.
Ask about his "no show" and/or late cancellation policy. Where does he prefer to do his evaluations? Will he travel, if needed?
Keep in mind that the final bill is not always the crucial issue. It is possible that the expert is simply working harder on your case. Take a look at her report and see how it compares with the work of other experts that you have retained in the past. I have had senior attorneys say that my final bill is higher, but insignificant because of the favorable settlement that they have been able to negotiate. In a few cases, the insurance company has saved as much as $200,000.
source - http://www.rsostowskimd.com
Thursday, March 15, 2012
How to choose a Forensic Psychiatrist Expert? - Part 1.
One of the most daunting and frustrating tasks for an attorney is trying to find the best possible psychiatric expert and then deciding if this doctor is the right choice for the case at hand. Historically psychiatry has been the least understood of the medical specialties. Many attorneys do not even know the difference between a psychiatrist and psychologist, let alone what constitutes a "top notch" forensic psychiatrist! Although one may be a superb clinician or researcher, this is no guarantee of even passable skills in forensic psychiatry. In fact, many renowned psychiatrists confess to intense anxiety at the mere "thought" of being deposed or undergoing cross-examination in court.
To add to this confusion, forensic psychiatrists often have radically different opinions about the same case. Are they "hired guns or quacks?" Rarely. Over the last 30 years, I have reviewed hundreds of reports by forensic psychiatrists, most of whom aspire to be as honest and thoughtful as possible in formulating their opinions. I believe that these seemingly “polar opposite” opinions usually reflect different theoretical orientations and variable clinical skills rather than unethical behavior.
Notwithstanding this confusing state of affairs, the task of finding a psychiatric expert is often delegated to an associate or a paralegal who does an internet search, makes a few phone calls and goes back to the partner with a curriculum vitae, a fee schedule and not much else. However, by asking a few key questions, it is possible for a junior staff member to shine and have a significant impact on the outcome of the case.
Always listen to your "gut reaction" to the prospective expert. Try to determine the basis for your emotional response if it is intense. When we meet someone for the first time, we are picking up a multitude of clues about who this person really is. Some of these clues come from the way the person looks, walks and talks. However, we also pick up information based on our unconscious reactions. Good psychiatrists use this tool all the time. Do not forget that a powerful positive response to a person is just as important as an intense negative response.
As an aside, research has shown that we are more effective in determining if someone is lying to us by listening to them on the phone rather than listening to them in person! It seems as though body language and facial expression is a way of distracting the receiver.
Don’t be afraid to ask a "stupid question." In fact, there is no such thing. For example, I have found that medical students ask better questions than psychiatric residents or even full-fledged psychiatrists. They tend to ask questions that get to the core of a subject, often picking up inconsistencies. Often, the less that you know, the less likely it is that your thinking is contaminated by preconceived ideas or prejudices.
Remember that when you speak to the expert, you are the one who is doing the hiring. If s/he is rude to you now, imagine how s/he will treat you after you retain her! Do not hire this person unless you are a "masochist!"
Although we prefer to avoid the topic, some physicians and attorneys have psychiatric dysfunctions. It comes with the territory. The work is demanding and patients and clients are not always appreciative.
source - http://www.rsostowskimd.com
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