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Rx FOR RISK 2017 | Volume 25 | Issue 1 IS A PRMS PUBLICATION FOR RISK Addressing risk management issues and concerns in the field of psychiatry

Forensic Psychiatry Reading Rx for Risk on a screen? Click on the page numbers below to be taken directly to that section of the newsletter!

Table of Contents

MALPRACTICE LIABILITY FOR FORENSIC ACTIVITIES: LIABILITY IN THE ABSENCE OF A TREATMENT RELATIONSHIP 03

MYTHS & MISCONCEPTIONS: THE TREATING VS. THE FORENSIC ROLE 11

INDEPENDENT EVALUATIONS IN CHILD CUSTODY DISPUTES 13

RISK MANAGEMENT PRACTICAL POINTERS FOR PSYCHIATRIC FORENSIC PRACTICE 15

CASE PRESENTATION: INDEPENDENT MEDICAL EXAMINATION (IME) LIABILITY 19

The content of this newsletter (“Content”) is for informational purposes only. The Content is not intended to be a substitute for professional legal advice or judgment, or for other professional advice. Always seek the advice of your attorney with any questions you may have regarding the Content. Never disregard professional legal advice or delay in seeking it because of the Content.

MALPRACTICE LIABILITY FOR FORENSIC ACTIVITIES: LIABILITY IN THE ABSENCE OF A TREATMENT RELATIONSHIP

Over the past several years, psychiatrists seem to be pursuing forensic work in increasing numbers. Concurrently, or perhaps in response, courts and professional oversight bodies are demonstrating an increasing interest in evaluating and holding physicians accountable for forensic activities. For example, courts have begun to depart from the traditional rule of not imposing liability on physicians for forensic activities and state medical boards, and professional associations have become more active in reviewing forensic activities. While not a major source of liability for psychiatrists, psychiatrists involved in forensics should be aware of this emerging malpractice liability trend.

In order for a plaintiff to win a medical malpractice lawsuit, s/he must prove all four of the following elements: 1) a duty (i.e., the defendant physician owed the plaintiff the duty to meet the standard of care), 2) negligence (i.e., the defendant failed to meet that duty/standard of care), 3) damages (i.e., legal damages), and 4) causation (i.e., the plaintiff’s damages were caused by the defendant’s negligence). Traditionally, courts have held that physicians performing forensic activities cannot be liable for malpractice because there is no physician- patient relationship, but courts are re-examining this issue and, in some cases, have found liability for forensic physicians.

This article is a survey of what courts, medical boards, and professional associations are saying about performing independent medical examinations and providing testimony, the two common forensic practice activities for which liability risk may exist. It is anticipated that this overview, while showing that there is no consistent approach among the states, will provide some risk management guidance to psychiatrists engaged in forensic work. There are other possible causes of actions related to forensic activities (e.g., defamation, invasion of privacy, breach of contract, perjury, battery, and other intentional torts) that will not be addressed here.

LIABILITY FOR PERFORMING AN INDEPENDENT MEDICAL EXAMINATION (“IME”)

When discussing potential professional liability for IMEs, there are at least three issues to consider – the duties owed to the evaluee, immunity for the examining physician, and administrative actions.

Issue 1 – Duty Owed to the Evaluee

Courts seem to agree that the physician’s duty in performing an IME is not the same as the duty owed to the physician’s patients. The courts disagree, however, on what exact duty, if any, the physician does owe to the evaluee. The traditional view - and the current majority view - has been that there is no physician- patient relationship in IMEs, therefore there is no duty owed to the evaluee. However, psychiatrists should not assume that just because there is no physician-patient relationship, that there is no duty owed to the

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evaluee. Courts have begun to approach the issue of duty of care to the evaluee differently, with some courts recognizing a “limited” patient-physician relationship for IME purposes. The Kansas Supreme Court summarized the issue of the physician’s duty of care while performing IMEs by noting the following from the Colorado Supreme Court:

Many courts set forth a ‘general’ rule that in the absence of a physician-patient relationship a physician owes no duty to an examinee. Many of these same courts, however, recognize a duty of care if the examining physician undertakes in some way to act on behalf of the examinee or induces reasonable reliance by the person examined. Some courts conclude that medical malpractice standards govern, and recognize a duty of care simply on the basis of the relationship created by the referral and examination. Others agree but temper this conclusion by expressly limiting the scope of the duty to the functions the physician agrees to undertake. Still others hold that the absence of a physician-patient relationship precludes a malpractice action, with the concomitant broad duty of care, but that an ordinarily negligence action can be maintained in appropriate circumstances. Some of these latter cases are based on the well- recognized principle that a person who assumes to act must act with care.1

As discussed below, cases have indicated the following duties may be expected: the duty not to injure the evaluee, the duty to properly diagnose, and the duty to inform the evaluee of a potentially serious medical condition. This trend of imposing liability without the traditional physician-patient relationship may continue in the future. For a more in-depth analysis of the various state views on the requirement of a physician-patient relationship for liability, see Stanley v. McCarver decided by the Arizona Supreme Court in June 2004. In this case, the majority opinion acknowledged that the requirement of a physician-patient relationship has been “quietly eroding in several jurisdictions,” and held that “the absence of a formal doctor-patient relationship does not necessarily preclude the imposition of a duty of care.”2 There was also a dissenting opinion discussing the contrary case law.

Duty Not to Injure the Evaluee Most courts agree that even if there is no other duty, the examining physician has the duty to avoid physically injuring the evaluee during the examination. This has been true even in those states following the traditional rule that IMEs do not create a physician-patient relationship. Moreover, several courts have indicated that a mental health examiner might be liable to an examinee where the examiner harms the examinee’s mental health during the evaluation.3

It is important to note that courts have not generally found an adverse outcome or loss from the IME physician’s report to be an adequate basis for a lawsuit. As stated by the Michigan Supreme Court, “the IME physician, acting at the behest of a third party, is not liable to the examinee for damages resulting from the conclusions the physician reaches or reports.”4

Duty to Properly Diagnose Some courts impose on IME physicians the duty of reasonable care for the discovery of conditions posing imminent danger to the evaluee’s physical and mental well-being, even in the absence of the traditional physician-patient relationship. As stated by the Montana Supreme Court:

This relationship imposes upon the examining physician a duty to conduct the requested tests and diagnose the results thereof, exercising the level of care consistent with the doctor’s professional training and expertise and to take reasonable steps to make information available timely to the examinee of any finding that poses an imminent danger to the examinee’s physical or mental well-being.5

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And, a New Jersey appellate court in 1996, admitting it was the minority view, stated:

[W]hen an examinee presents himself with specific complaints that are the occasion for the third party reference for the examination, the examining physician owes the examinee the duty of examining and diagnosing the examinee in the same professional manner and with the same professional skill and care as would be employed in examining and diagnosing a ‘traditional’ patient with those complaints.6

Duty to Disclose/ Inform About a Potentially Serious Medical Condition Expanding the IME physician’s duty even further, some courts have required the physician to disclose to the evaluee any serious medical condition discovered in the course of the evaluation. Courts may require this even while holding that no traditional physician-patient relationship exists. Psychiatrists are encouraged to disclose by informing the evaluee directly. In at least one case, this duty to inform was found to be non- delegable, even where the contract with the third party stated that the third party would notify the examinee.7 Accordingly, psychiatrists should ensure all contracts for IMEs allow the evaluating physician to inform the evaluee directly of any serious medical conditions.

In addition to case law, psychiatrists should be aware of AMA Ethics Opinion 1.2.6 Work-Related and Independent Medical Examinations (2016), which, after noting there is a limited physician-patient relationship, states the following:

…In keeping with their core obligations as medical professionals, physicians who practice as industry- employed physicians or independent medical examiners should:

(a) Disclose the nature of the relationship with the employer or the third party and that the physician is acting as an agent of the employer or third party before gathering health information from the patient.

(b) Explain that the physician’s role in this context is to assess the patient’s health or disability independently and objectively. The physician should further explain the differences between this practice and the traditional fiduciary role of a physician.

(d) Inform the patient about important incidental findings the physician discovers during the examination. When appropriate, the physician should suggest the patient seek care from a qualified physician and, if requested, provide reasonable assistance in securing follow-up care.

Also, state medical boards may impose the obligation to disclose. For example, the New Jersey Medical Board, in its regulation 13:35-6.5, requires “that should the examination disclose abnormalities or conditions not known to the examinee, the licensee shall advise the examinee to consult another health care professional for treatment.”

Remember that if the IME physician renders any treatment, (e.g., prescribes medication) then a physician- patient relationship has been established, and the physician will be responsible for meeting all the duties associated with a treatment relationship.

Duty to Maintain Confidentiality Even when no treatment is provided, psychiatrists are still ethically and legally obligated to maintain confidentiality. As indicated in the AMA’s Ethics Opinion 3.2.3Industry-Employed Physicians and Independent Medical Examiners (2016):

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…physicians have a responsibility to protect the confidentiality of patient information. When conducting third party assessments or treating work-related medical conditions, physicians may disclose information to a third party:

(a) With written or documented consent of the individual (or authorized surrogate); or

(b) As required by law, including workers’ compensation law where applicable.

When disclosing information to third parties, physicians should:

(d) Ensure that individually identifying information is removed before releasing aggregate data or statistical health information about the pertinent population.

Part of this duty to maintain confidentiality is to disclose only relevant information. This duty may also be included in state regulations, such as the New Jersey Medical Board’s regulation 13:35-6.5 that states in part “Licensees rendering IME services shall avoid the unnecessary disclosure of diagnoses or personal information which is not pertinent.” Case law may also require that only the minimum necessary information be disclosed.8

The Genetic Information Nondiscrimination Act of 2008 (GINA) is also relevant. Title II of GINA prohibits employers from using genetic information in employment decisions, and defines “genetic information” to include family medical history. Under the regulations, employers must inform medical providers in advance NOT to provide genetic information (including family history) in response to a medical information request. So under GINA, providers are prohibited from releasing family histories to employers or employers’ attorney.

Moreover, confidentiality is addressed in the Practice Guidelines for the Evaluation of Psychiatric Disability from the American Academy of Psychiatry and the Law (AAPL) as follows:

…information that is not relevant to the disability evaluation should be considered confidential. Consent to release information in disability evaluations does not give a psychiatrist carte blanche to reveal all information obtained during the evaluation to anyone who is interested in it.

and

The matter of confidentiality is particularly relevant because of the relationship between fitness for duty examinations and the workplace. For example, it is often unnecessary for fitness for duty reports to describe the evaluee’s background (e.g., family and social histories) except to the extent that such information is directly related to the specific referral question.

For psychiatrists that are covered providers under HIPAA, the Privacy Rule’s requirements apply to all disclosures of protected health information, regardless of the purpose for which the protected health information was created. The type of service rendered and the existence of a physician-patient relationship are irrelevant in determining if the requirements of the Privacy Rule apply. Once a provider meets the regulatory definition of a health care provider subject to HIPAA’s regulations, then that provider must comply with the Privacy Rule’s requirements for all uses and disclosures of protected health information.

To assist covered providers in fulfilling this legal obligation, the Privacy Rule has an exception for IME physicians to the general rule that treatment cannot be conditioned upon the individual signing an authorization for the disclosure of information. IME physicians are expressly allowed to require the evaluee to

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sign an authorization for the release of protected health information to the third party requesting the IME as a condition of performing the IME.9

The possibility of a breach of confidentiality lawsuit against an IME physician was mentioned in a footnote by the Stanley court as follows: “We do not imagine, for example, that if [defendant] … put [plaintiff-evaluee’s] confidential medical information on the internet that the absence of a formal doctor-patient relationship would preclude a lawsuit.”2

One final confidentiality point relates to dangerous evaluees. Remember that safety is an exception to confidentiality and that most states have statutes requiring that physicians warn or otherwise protect third parties from dangerous patients. There is case law that extends this duty to IME physicians.10 11 And, AAPL’s guidelines address this as follows:

An important exception to confidentiality may arise if the evaluee threatens his or her own safety or the safety of others. If an evaluee discloses suicidal ideation or intent or threatens to harm a co-worker, supervisor, or employer, the psychiatrist is ethically and perhaps legally obligated to take appropriate steps to ensure the safety of the evaluee or potential victims.

Issue 2 – Immunity from Liability

Psychiatrists may be under the impression that there is absolute immunity from liability for physicians performing IMEs. Case law has shown that this is not always true. There are two relevant types of immunity – quasi-judicial immunity and witness immunity.

Quasi-judicial immunity

Immunity for persons other than judges when performing judicial activities - protects the evaluator’s (e.g., the psychiatrist’s) performance of judicial activities. Performing evaluations and making recommendations are activities “intimately related and essential to the judicial process of finding facts and rendering decisions” so quasi-judicial immunity may be available for these activities. Treatment, “unlike reports or evaluations and recommendations, is not intimately related and essential to the judicial decision-making process.”12

Witness immunity

Protects only the actual testimony given in a judicial proceeding. Witness immunity will not preclude a complaint based on the physician’s actions in conducting a forensic evaluation and preparing a report.

The case law discussing immunity for IMEs shows that the immunity available to IME physicians varies with the type of IME. There are basically three types of IMEs: 1) those performed for purposes other than litigation (e.g., requested by automobile/workers’ compensation/life insurance carriers, employers, schools, and Social Security), 2) those performed for litigation purposes, and 3) court-ordered evaluations.

IME Physician Retained for Purposes Other Than Litigation

Without activities in the judicial context, there can be no quasi-judicial immunity or witness immunity.

IME Physician Retained by a Party for Litigation Purposes

Most courts find that there is no quasi-judicial immunity for an IME physician’s activities where s/he performs

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the examination at the request of a party, even if the court enters an order authorizing the IME. Quasi-judicial immunity is generally available only where the examiner is retained by and reports directly to the court.

Witness immunity, however, may be available. As long as the examination is performed for litigation, and in anticipation of the examiner testifying regarding the examination, the physician generally has absolute witness immunity. This means that claims that are based on any statements, opinions, or findings that are set forth in any report or in any testimony - whether in deposition or in trial - are generally precluded.

IME Physician Retained by the Court for Evaluation and Recommendations

When the court retains a physician for the evaluation of claims or otherwise, absolute quasi-judicial immunity protects the expert only for activities that are intimately related to the judicial process of finding facts and rendering decisions. However, quasi-judicial immunity is not established merely because a court appointee performed acts within the scope of the court’s order. Rather, immunity is established only where the judicial function is implicated. For example, when an IME physician performs a forensic evaluation of a family pursuant to the court’s request and also provides treatment for the family pursuant to the court’s order, there is no immunity for the treatment actions or for any other actions that are not closely associated with the evaluation and recommendation process.

Many courts in different jurisdictions have held that court-appointed psychiatrists and psychologists in custody matters are entitled to absolute immunity when fulfilling quasi-judicial functions. For example, the Michigan Court of Appeals in 2000 addressed the issue of immunity for a private psychologist ordered by the court to perform an evaluation and provide recommendations to the court in a child custody proceeding and decided there was immunity from a suit alleging negligence in conducting the evaluation. The court noted that “with virtual uniformity, courts in other jurisdictions have granted quasi-judicial immunity to individuals who perform functions analogous to those performed by the defendant in the present case”13 and then reviewed the cases from other jurisdictions. This was consistent with an earlier case where the Utah Supreme Court stated “courts have uniformly held that psychologists appointed by the court to conduct psychological evaluations of parties involved in custody disputes perform a function integral to the judicial process and are therefore immune from suit” and such quasi-judicial immunity means that “even if [the evaluator] was in fact negligent in the way he conducted his court-appointed duties, he is nonetheless entitled to immunity.”14

So, it is clear that immunity generally applies to court-appointed IME physicians. However, psychiatrists need to ensure that they are actually appointed by the court. In one case, the court’s order stating “[f]orensic evaluation will be done” and “counsel to let us know within a week who to engage for a forensic evaluation” was held not to be sufficient to categorize defendant psychiatrist in subsequent malpractice case as a court appointed expert entitled to immunity.15

Issue 3 – Administrative Actions

IME evaluees can always file a complaint with the evaluator’s licensing board. Filing a board complaint can be an appealing option to evaluees and other third parties for several reasons, including that there is no requirement of damages as is the case with lawsuits, there is no statute of limitations/time limit within which the complaint has to be filed, and medical boards generally investigate all complaints received no matter how meritless they appear to be.

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LIABILITY FOR PROVIDING TESTIMONY IN LITIGATION

Psychiatrists can find themselves testifying in two different roles – factual witness or expert witness. Treating psychiatrists usually limit their role to that of a fact witness.

Factual Witness Liability

Because fact witnesses restrict their testimony to what is in the treatment record, the duty of care already exists because of the established physician-patient relationship. In terms of liability related to the actual testimony, whether in a deposition or a court hearing, the main liability exposure involves patient confidentiality. In order to release protected health information in a legal proceeding, psychiatrists need proper authorization – either patient authorization or a court order. Psychiatrists are encouraged to contact their risk manager or personal attorney for guidance.

Expert Witness Liability

Liability exposure for expert witness activities can be divided into three categories – malpractice lawsuits, discipline by the licensing board, and peer review and discipline by professional organizations. There may be National Practitioner Data Bank reports required, as well.

Malpractice Lawsuits As discussed above, most states recognize an immunity from liability for statements made in judicial proceedings. Some courts have declined to follow the general rule and have allowed cases against the expert witness for malpractice. There are states which have imposed liability on “friendly” experts (i.e., experts who are sued by the parties that retained the experts initially) and at least one case which allowed suit against a court-appointed expert.16

Courts would be unlikely to find liability if the expert witness was sued by the opponent, because the expert witness owes no duty to the adversary. As stated in an opinion by the California Attorney General, “When a physician testifies as an expert in a civil proceeding regarding the applicable standard of medical care and whether the defendant has breached that standard, the physician may not, on the basis of his or her testimony, be held liable in a subsequent tort action brought by the adverse party.”17

Of course, as pointed out by the California Attorney General, the expert witness may be subject to professional discipline by a medical board.

Discipline by the Licensing Board

State Law Requirements

Some states have begun regulating by statute the standards for expert witnesses. For example, Kansas Statute 60-3412, states that “in any medical malpractice liability action…no person shall qualify as an expert witness on such issue unless at least 50% of such person’s professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed.”

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Out-of-State Experts

State medical boards may have special requirements for out-of-state expert witnesses, including licensure in the state for forensic activity. If such requirements are not followed, the out-of-state expert could be accused of practicing without a license, which could result in civil and criminal penalties, as well as possibly voiding the malpractice insurance coverage.

The AMA has recommended that temporary licenses be required for out-of-state forensic physicians. By doing so, the expert witness physician will be subject to peer review and discipline.

Federation of State Medical Boards

According to the FSMB, in its Essentials of a Modern Medical and Osteopathic Practice Act [a model law adopted in whole or in part by most states], giving “false, fraudulent or deceptive testimony while serving as an expert witness” constitutes unprofessional conduct.18

North Carolina Medical Board

An example of a medical board disciplining a licensee for expert witness testimony is the North Carolina Medical Board. This board disciplined an out-of-state physician who had an inactive North Carolina license for committing unprofessional conduct by misstating in testimony facts and the appropriate standard of care. The physician sought judicial review of the medical board’s decision to revoke his license; the trial court reversed all but one of the board’s grounds for discipline, and sent the case back to the board. The board then revoked his license for one year. This decision was also appealed by the physician; but it was upheld by the trial court. The physician appealed again; the state Court of Appeals agreed with the physician that there was a good faith basis for his testimony, and ordered the disciplinary charges be dismissed.19

Peer Review and Discipline by Professional Organizations

AMA

Under AMA Policy H-265.933, Peer Review of Medical Expert Witness Testimony (2000), physician expert witness testimony is considered the practice of medicine and all expert witness testimony should be subject to peer review. Additionally, the AMA’s Ethics Opinion 9.7.1, Medical Testimony (2016) first discusses the expectations for all witnesses, including testifying accurately and honestly, and not accepting a contingency fee. Then the opinion addresses treating physicians who testify as fact witnesses for their patients, and then states ethical obligations for expert witness testimony. The opinion concludes with this statement: “Organized medicine, including state and specialty societies and medical licensing boards, has a responsibility to maintain high standards for medical witnesses by assessing claims of false or misleading testimony and issuing disciplinary sanctions as appropriate.”

Specialty Societies

The American Association of Neurological Surgeons is an example of a professional organization that has promulgated ethical policies for expert witnesses and has been very active in disciplining its members for improper expert witness testimony. In fact, AANS suspended the member who was disciplined by the North Carolina Medical Board as discussed above. The organization suspended another member who sued the AANS alleging the suspension was improper; AANS won the case and appeals, and the US Supreme Court declined to hear the case, leaving intact the lower appellate court’s opinion allowing the AANS’ discipline.20 The APA issued in 1996 Resource Document No. 960007 entitled Peer Review of Expert Testimony. See

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Additional Resources below for additional information about psychiatric expert witness guidelines.

State Medical Associations

State medical associations may have programs to review complaints about expert testimony by their members, and may also refer cases to the state medical board for review.

REFERENCES 1. Smith v. Welch, 967 P.2d 727, 735 (Kan. 1998) 2. Stanley v. McCarver, Ariz. Sup. Ct. No. CV-03-0099-PR (2004) 3. E.g., Martinez v. Lewis, 969 P.2d 213, 218 (Col. 1998), Dalton v. Miller, 984 P.2d 666 (Colo. App. 1999), Harris v. Kreutzer, 624 S.E.2d 24 (Va. 2006) 4. Dyer v. Trachtman, 679 N.W.2d 311, 314 (Mich. 2004) 5. Webb v. T.D, 951 P.2d 1008, 1013 (Mont. 1998) 6. Ranier v. Frieman, 682 A.2d 1220, 1224 (N.J. Super. 1996) 7. Reed v. Bojarski, 764 A.2d 433 (N.J. 2001) 8. McGreal 9. 45 CFR § 164.508 (b)(4)(iv) 10. Fredericks 11. Gavin 12. Awai v. Kotin, 872 P.2d 1332, 1336 (Colo. App. 1994) 13. Diehl v. Danuloff, 618 N.W.2d 82, 88 (Mich. App. 2000) 14. Parker v. Dodgion, 971 P.2d 496, 498, 499 (Utah 1998) 15. Politi v. Tyler, 751 A.2d 788, 791 (Vt. 2000) 16. Liability for the Psychiatrist Expert Witness, R. Binder, Am. J. Psychiatry 159:11, 2002 17. CA Attorney General Opinion No. 03-1201 (April 28, 2004) 18. Federation of State Medical Boards, Essentials of a Modern Medical and Osteopathic Practice Act, 2010 [ 19. In re Lustgarten, 629 S.E.2d 886 (NC App. 2006) 20. U.S. Supreme Court Denies Appeal of Physician Discipline Case, AMNews, Feb. 4, 2002

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MYTHS & MISCONCEPTIONS: THE TREATING VS. THE FORENSIC ROLE

Myth: I can effectively provide treatment and forensic services to the same person.

Truth: Acting as both a treater and expert witness, or performing an evaluation for legal purposes, could adversely affect the therapeutic relationship and your objectivity as an expert.

These are two common scenarios in which psychiatrists find themselves:

A psychiatrist has been treating a woman, diagnosed with bipolar disorder, for three years. The patient and her husband are separated and have joint custody of their young son. The patient tells the psychiatrist that her estranged husband provides very little monetary support for the child and goes out of his way to make her life miserable. The psychiatrist thinks the patient is trying very hard to provide a good home for her child, but that sometimes she is barely holding things together. Now, the father wants sole custody, saying the mother is “unstable.” The father has retained a very well-known attorney from a large and influential law firm to represent him. The patient’s attorney has contacted the psychiatrist and asked her to write a report and provide oral testimony at a custody hearing in support of the patient/mother retaining custody of the child. The patient tells the psychiatrist that she cannot afford to pay for an independent medical expert and, “besides, you know better than anyone that it is best for my child to live with me.”

A patient is receiving disability insurance through his employer as a result of an injury at work. The patient started psychiatric treatment about a year after the injury. The psychiatrist and the patient have been working on many issues, including issues related to the injury. Now, the patient is involved in a dispute with the insurance company because the disability payments are being discontinued. He has consulted an attorney about filing a lawsuit against the insurance company. If the patient loses the disability payments, it is unlikely

RISK MANAGEMENT ADVICE

Psychiatrists should be wary when asked for opinions or predictions by third-parties, such as patients’ employers, disability insurance companies, and attorneys. The safest response is for the psychiatrist to discuss the issue with the patient, explaining the limits of their role as a treating psychiatrist and outlining the potential conflicts. A psychiatrist can advise the requesting parties that if they want an opinion or a prediction, then they should obtain an independent medical exam for that specific purpose.

Psychiatrists who practice in small towns or rural areas sometimes find that it is difficult to avoid dual roles; however, they should still make every effort to do so.

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INDEPENDENT EVALUATIONS IN CHILD CUSTODY DISPUTES

Although performing independent evaluations is typically a low-risk area for the child and adolescent psychiatrist, we do occasionally see claims resulting from such work. These cases typically involve common missteps. Accordingly, if you are contemplating entering this area of practice you may want to consider the following observations and suggestions.

1. Treating clinicians are often asked to assume, or are pressured into assuming, the additional role of performing independent evaluations for child custody disputes. If both treatment and evaluation roles are assumed, the clinician will almost certainly be faced with conflicting demands that ultimately impact negatively upon the treatment relationship.

2. Once you determine that there are no conflicts, and agree to perform a custody evaluation, it is important for the side that is retaining you to clearly define your role as evaluator and the type of evaluation being requested. Do not accept an assignment where the retaining party attempts to influence the integrity of the evaluation. For example, if you will be acting on behalf of one party to a custody dispute, you should not profess, at the retaining party’s urging, to be impartial or to be in a position to give an unbiased opinion about the overall custody determination or evaluation.

3. It may be a violation of a state’s licensing laws to perform an examination in a state where one is not licensed to practice. If approached to do such an evaluation, confirm with that state’s physicians’ licensing body that there are not statutory or regulatory proscriptions.

4. The retaining party should supply the information and materials needed to conduct a careful and reasoned assessment. At a minimum, this may consist of prior medical/mental health treatment records (including any hospital admissions), school reports, and psychological raw data, as well as pertinent legal documents. If the retaining party withholds relevant information, consider refusing the assignment. Limited access to information has the potential to adversely affect the quality of the evaluation.

5. Before performing an evaluation and rendering an opinion, ascertain who has the legal authority to consent to the evaluation of the child. The legally authorized party should give written consent for the specific purpose of the evaluation. The legally authorized party should also sign an authorization form prior to the examination that includes permission to disseminate the report to the appropriate parties and to permit your testimony at deposition and/or trial, if required. Note that HIPAA’s Privacy Rule allows providers performing independent evaluations to condition services (i.e., the evaluation) upon receipt of an authorization for the release of protected health information.

6. Clarify who will own or have access to any reports, notes, or records of the evaluation once the assignment is complete. Discuss this with the evaluee (or the legally authorized representative) and document that conversation.

7. Clarify the nature of the relationship with the evaluee (or the legally authorized representative), provide information about the purpose and limits of the evaluation, and document that discussion. You must make it clear that you are not an evaluee’s “treatment provider” but have been retained solely to evaluate and give an opinion.

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8. If the evaluation is court ordered and the evaluee (or legally authorized representative) refuses to participate or cooperate adequately, the report should be prepared advising of the failure to participate. It may not be possible to provide a complete opinion in this instance. In such cases, it may be appropriate to report that limited conclusions or no conclusions were reached due to the failure to cooperate.

9. The written report is a pivotal piece of information in an independent evaluation. When preparing a report include at least the following: • Who requested the examination/evaluation • Reasons for the consultation • Issues you were asked to address or questions you were asked to answer • List all material that has been reviewed as part of the evaluation and opinion, including the evaluees’ records, school reports, legal documents, etc. • Document all elements of the evaluation(s) that are relevant to the issues • Document who was evaluated, interviewed, contacted, telephoned, etc., for the report; include dates when seen/interviewed and the time spent in the session • Identify the clinicians/treating facility responsible for follow-up and treatment (if any) • Prepare a clear, succinct conclusion

10. The data in the report should be comprehensive enough to support the conclusions and recommendations.

11. Remember that testimony in a deposition or in court may take place months after an evaluation. Thus, the final report should be comprehensive enough that relevant information can be conveyed even months after the evaluation is completed.

12. If a deposition is requested, be well-prepared for it. The attorneys will question the report and its conclusions, sometimes quite vigorously. If you are a frequent expert witness in similar cases, the attorneys involved will often have transcripts from testimony in prior cases, and prior testimony can be used to attack your credibility. Consider similar cases and whether testimony in the current case is consistent with testimony in prior cases. If not, be very clear on the distinctions.

13. Expert testimony may be subject to peer review. Accordingly, know and follow the applicable standards governing forensic practice, such as documenting examinations, identifying personal opinions as such, identifying material relied on in reaching conclusions pursuant to the evaluation, etc. Some states have statutory requirements about the necessary qualifications for professionals who give forensic testimony.

14. A mental health provider agreeing to perform an independent evaluation should have the appropriate knowledge, training, and skills before conducting a forensic evaluation. Several professional organizations have published guidelines about conducting child custody evaluations.

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RISK MANAGEMENT PRACTICAL POINTERS FOR PSYCHIATRIC FORENSIC PRACTICE

The most frequent areas of forensic psychiatry practice include: providing an expert psychiatric opinion in a civil trial on behalf of the plaintiff or the defendant, performing independent medical examinations (IMEs), reviewing medical records for insurance companies, performing court-ordered child custody evaluations, and evaluating defendants in criminal cases.

The following forensic psychiatry risk management tips are applicable when a psychiatrist is acting as an independent evaluator or an expert witness in civil, administrative, or criminal proceedings where the primary goal is to evaluate rather than to treat. The evaluation may include an independent medical examination or a review of medical records and other written materials, or both.

ASSIGNMENT

It is very important for the hiring party to clearly define the psychiatrist’s role and the type of evaluation being requested. In criminal cases the forensic evaluation may include an opinion about competency to stand trial or competency to confess. In civil cases the evaluation may include child custody and divorce issues, assessing emotional injury secondary to physical injury, or the applicable psychiatric standard of care. It is preferable that assignments be in writing. However, since the written request may be subject to discovery, many attorneys will send only a cursory retention letter. If necessary get the information needed verbally.

Make certain the hiring party supplies you with the resources needed to conduct a careful and reasoned assessment. At a minimum, ask for the prior medical records including any hospital admissions, previous medical/psychiatric treatment, school reports if appropriate, and psychological raw data when needed. If you are asked to perform an evaluation and the hiring party does not want you to have prior information, you should consider not accepting the assignment because it may adversely affect the quality of the evaluation.

Clarify, upon accepting an assignment, who will own and have access to any reports, notes, or records of the evaluation once the assignment is complete.

Do not accept an assignment where the individual who is retaining you attempts to influence the objectivity of your evaluation. All communication regarding the assignment should occur through the attorney or organization that hired you.

Generally, there is no psychiatrist-patient relationship between the forensic psychiatrist evaluator and the evaluee, however, do not assume that means you cannot be sued or reported to the state medical board. If harm is alleged as a result of an examination, state law may allow you to be sued on the theory of ordinary negligence or medical malpractice. To avoid the appearance that a psychiatrist-patient relationship has been established, do not accept an assignment directly from an evaluee.

In general, the treating psychiatrist should not agree to be an expert or to perform an evaluation for legal purposes. It may adversely affect the therapeutic relationship and objectivity can be questioned. Conflicting obligations increase the risk of clinical, ethical, and even legal problems

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FEES

Do not provide forensic psychiatry services for an attorney who wants you to accept a contingency fee. It could appear to a jury that your objectivity has been compromised at the prospect of financial gain.

If you provide trial or deposition testimony you will be cross-examined about fees. Your fees should be reasonable and in line with the community standard for forensic psychiatry services. Exorbitant fees will compromise your credibility as an objective medical expert.

The Evaluation or Consultation

Performing a forensic examination in a state where you are not licensed to practice may be a violation of the state’s licensing laws. Confirm that you, as an out of state physician not licensed in the state where the evaluation is to take place, can legally perform a forensic examination.

Consider obtaining a license in the state where the evaluation is to take place. Alternatively, consider obtaining a court order for the evaluation or an opinion on the need for a local license from an attorney in the state where the evaluation is to take place.

Clarify your role with the evaluee and document it. The person being examined must clearly understand that you are not his or her “doctor” and that you have been retained solely to evaluate and give an opinion. In nearly all cases you will not continue to follow the person evaluated, and that fact must be made clear to all parties. In rare cases you will be asked to perform a second or follow-up evaluation.

Have the evaluee sign a written consent for the evaluation, regardless of whether or not written consent is legally required.

The evaluee should sign a release, prior to the examination, waiving confidentiality for specific purposes. The release should include permission to disseminate the report to the appropriate parties, to have your deposition taken and provide testimony at trial. The release should be prepared by an attorney familiar with the state law pertaining to psychiatrist-patient privilege and confidentiality in the state where the evaluation is performed. The release should also comply with all federal confidentiality laws, including HIPAA’s Privacy Rule.

If the evaluation is court ordered and the evaluee refuses to participate, prepare your report advising of the failure to participate. It may not be possible for you to provide a diagnostic opinion in this instance, even with review of prior medical records. In such cases you have the option of stating that you reached no conclusions due to the failure to appear.

If the evaluation is conducted on the evaluee while he or she is a patient in the hospital, do not write “orders” in the medical records or give verbal orders to the nurses.

Be certain that you know who has legal authority to consent to the evaluation of a child before performing an evaluation and rendering an opinion about which parent or legal guardian should have custody. Make sure that the legally authorized party gives written consent for a custody evaluation.

REPORT Your written report is often a pivotal piece of information in a forensic case. When preparing a report include

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at least the following: • Identify who requested the examination/evaluation. • Reasons for your consultation. • Issues that you have been asked to address or questions you have been asked to answer. • List all material that has been reviewed as part of your evaluation and opinion, including the parties’ records, medical journals and professional literature. • Document all elements of the examination that are relevant to the issues. • Identify the party responsible for follow-up and treatment. • Prepare a clear, succinct conclusion.

DEPOSITION/TESTIMONY If your deposition is requested, prepare for it. The attorneys will question your conclusions, sometimes quite vigorously. Review the transcribed deposition for accuracy. This task may seem burdensome, but it will avoid some embarrassing moments.

When being deposed, consider similar cases you have consulted on and whether your testimony is consistent with those cases. If not, be very clear on the distinctions. The attorneys will often have transcripts from testimony in prior cases, and your prior testimony can be used to attack your credibility.

Some forensic testimony will involve issues of legal capacity or competency to perform a particular task. When working in the legal setting, the accuracy and reliability of psychiatric diagnosis is critical. Be certain you are clear when asked capacity questions. Are you being asked about past capacity, present capacity, or future capacity? Have you reviewed or do you already understand the legal definitions you will be asked to use?

Often legal terms have special meanings and you must understand the meaning of the terms in the state where you are working. For example, there are at least three legal standards used to define “insanity”.

Attention to current medical literature is critical. You need to know what your peers are thinking and advising because in some cases you will be asked about the standard of care.

Avoid discussions with the press about any case where you have been retained to provide a forensic evaluation or consultation. If it is a high profile case, you may find yourself under scrutiny, and “no comment” is the appropriate response.

Expert testimony may be subject to peer review. Accordingly, know and follow all applicable standards governing forensic practice, such as documenting your examinations, identifying personal opinions as such, identifying material you relied on in reaching your conclusions, etc.

Remember that you have been retained to render a medical opinion and not a legal opinion.

FROM THE AMERICAN ACADEMY OF PSYCHIATRY AND THE LAW (AAPL): * Ethical Guidelines for the Practice of Forensic Psychiatry, available at www.aapl.org/ethics-guidelines

* Practice Guidelines for the Forensic Evaluation of Psychiatric Disability, available at www.jaapl.org/content/36/Supplement_4/S3.long

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CASE PRESENTATION: INDEPENDENT MEDICAL EXAMINATION (IME) LIABILITY

FACTS

Following an automobile accident, Plaintiff filed a personal injury lawsuit in which she sought damages for the traumatic brain injury she allegedly suffered as a result of the accident. As part of that litigation, the defense retained a psychologist to perform an independent medical evaluation (IME) to assess plaintiff’s injury.

After prevailing in the underlying accident case, Plaintiff brought a separate suit against the IME psychologist asserting defamation along with the following two causes of action: Cause of Action #1 - Medical Malpractice

Plaintiff alleged that during the IME, the psychologist “verbally abused [her], raised his voice to her, caused her to break down into tears in his office, stated she was ‘putting on a show,’ and accused her of being a faker and malingerer.” She also asserted that, despite his knowledge of her condition, he “intentionally aggravated her pre-existing condition and her post-traumatic stress disorder and her brain injury.” Plaintiff further alleged that the psychologist breached his duty to her in the conduct of the IME as he “failed to appropriately examine and evaluate [her] mental status…and was deliberately abusive with disregard for the consequences of his conduct” and that as a result, her mental and physical health had “drastically deteriorated.” Cause of Action #2 - Intentional Infliction of Emotional Distress

Plaintiff alleged that during the IME, the psychologist’s conduct was “intentionally designed to inflict emotional distress upon [her] or was done with reckless disregard for the consequences when he knew or should have known that emotional distress would result.” She alleged that his conduct was outrageous and the resulting emotional distress she suffered was severe.

Prior to trial, the defendant psychologist filed a motion in which he argued that, even if the facts alleged were true, there was no legal basis to impose liability, because the IME did not create a physician-patient relationship, and thus there was no duty owed. [Ed. note: The Court noted it used the term “physician,” rather than psychologist, because that is the term used in the malpractice cases discussed in the opinion.] The trial court agreed with the defendant and dismissed all causes of action. Plaintiff then appealed to the State Supreme Court the trial court’s decision to dismiss the medical malpractice and intentional infliction of emotional distress claims. STATE SUPREME COURT’S DECISION

This case of first impression in Virginia held as follows:

1. An IME evaluee can bring a malpractice claim for the negligent performance of an IME.

2. The sole duty of a physician performing an IME is to exercise due care consistent with the applicable standard of care so as not to cause harm when conducting the examination.

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The Court affirmed the dismissal of the intentional infliction of emotional distress claim, but found that plaintiff did plead sufficient facts to sustain a cause of action for medical malpractice. The case was remanded back down to the trial court for resolution of the medical malpractice claim.

NOTE: The State Supreme Court did not rule on the merits of the medical malpractice claim, but rather, stated that a cause of action for medical malpractice related to the performance of an IME could exist, and sent the case back down to the trial court for a trial on the merits of the malpractice claim.

COMMENTS ON THE STATE SUPREME COURT’S ANALYSIS Regarding the Medical Malpractice Claim

The Court began the analysis by addressing duty - the first required element in a claim for malpractice [the other three elements are breach of duty / negligence, damages, and causation]. The Court noted “a physician’s duty arises only upon the creation of a physician-patient relationship; that relationship springs from a consensual transaction, a contract, express or implied, general or special.” The Court determined that the plaintiff’s consent to the relationship was implied, because in Virginia, under Rule 4:10, defendants can have the court order plaintiffs to undergo an IME to determine the nature and extent of claimed injuries. In this case, the Court said “by bringing her personal injury action, [she] gave her implied consent to the [IME] and formed a limited relationship with [defendant] for purposes of this examination.” In terms of the defendant’s consent to this relationship, the Court stated “a health care provider who performs a Rule 4:10 examination, expressly consents to a relationship with the examinee when he agrees to conduct the examination. Therefore, we conclude there is a consensual relationship between the physician and the examinee as patient for the performance of the Rule 4:10 examination.”

Having determined that a limited physician-patient relationship exists, the Court turned to the issue of what was the duty, if any, owed to the examinee by the provider, and noted “the cases that consider the duty of care issue in circumstances where a physician conducts a medical examination of a person at the request of an employer, insurer, or other third person are remarkable for the diversity of their analysis.” In this case, the Court decided that since the examination “functions only to ascertain information relative to the underlying litigation, the physician’s duty in a Rule 4:10 setting is solely to examine the patient without harming her in the conduct of the examination.” Regarding the Intentional Infliction of Emotional Distress Claim

In Virginia, to prevail on this cause of action, plaintiff must prove “(1) the wrongdoer’s conduct was intentional or reckless; (2) the conduct was outrageous and intolerable; (3) there was a causal connection between the wrongdoer’s conduct and the emotional distress; and (4) the emotional distress was severe.” The Court ruled that plaintiff failed to correctly plead outrageousness – it was not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” The Court also ruled that plaintiff failed to correctly plead severity – the distress was not “so severe that no reasonable person could be expected to endure it.”

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RISK MANAGEMENT IMPLICATIONS

A court can find an IME physician liable for medical malpractice, even if there is no treatment relationship Courts across the nation seem to agree that the physician’s duty in performing an IME is not the same as the duty owed to the physician’s patients. The courts disagree, however, on what exact duty, if any, the physician does owe to the evaluee. The traditional view has been that there is no physician-patient relationship in IMEs, therefore there is no duty owed to the evaluee; if there is no duty owed, there can be no malpractice.

However, psychiatrists should not assume that just because there is no patient-psychiatrist relationship, that there is no duty owed to the evaluee. Courts have begun to approach the issue of duty of care to the evaluee differently, with some courts recognizing a “limited” patient-physician relationship for IME purposes.

The extent of the IME physician’s duty varies by state

Various cases have indicated the following duties may be expected:

The duty not to injure the evaluee. Most courts agree that even if there is no other duty, the examining physician has the duty to avoid physically injuring the evaluee during the examination. This has been true even in those states following the traditional rule that IMEs do not create a physician-patient relationship.

Duty to properly diagnose. Some courts impose on IME physicians the duty of reasonable care for the discovery of conditions posing imminent danger to the evaluee’s physical and mental well-being, even in the absence of the traditional physician-patient relationship.

Duty to disclose / inform about a potentially serious medical condition. Expanding the IME physician’s duty even further, some courts have required the physician to disclose to the evaluee any serious medical condition discovered in the course of the evaluation. Courts may require this even while holding that no traditional physician-patient relationship exists. The basis for this duty could include AMA Ethics Opinion 1.2.6 Work-Related & Independent Medical Examinations, as well as state regulations. For example, the New Jersey Medical Board, in it’s regulation 13:35-6.5, requires “that should the examination disclose abnormalities or conditions not known to the examinee, the licensee shall advise the examinee to consult another health care professional for treatment”.

Harris v. Kreutzer, Va. Supreme Ct. Jan. 13, 2006, available at http://www.courts.state.va.us/opinions/ opnscvwp/1050715.pdf

THOUGHT LEADERS IN FORENSIC PSYCHIATRY For additional reading, you may wish to check out these publications with contributions by PRMS Vice President of Risk Management, Donna Vanderpool, MBA, JD: • Ethical Issues in Forensic Psychiatry by Robert L. Sadoff • Oxford Textbook of Correctional Psychiatry edited by Robert L. Trestment, Kenneth L. Appelbaum, and Jeffrey L. Metzner • Clinical Guide to Mental Disability Evaluations edited by Liza Gold and Donna Vanderpool

Rx FOR RISK 21 2017 | Volume 25 | Issue 1 Have any comments or questions about an article? We would love to hear from you! [email protected]

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