From Treating Therapist To Expert Witness

 

In a litigated case, it is quite routine for an attorney to seek out forensic mental health experts. It is also quite common for attorneys to contact a treating therapist. However, in the forensic arena, there are many risks when an attorney calls the treating therapist and asks them to become an expert witness. (Guthiel & Hilliard, 2001; Reid, 2010). Upon undertaking a new role, the therapist may enter into an improper dual relationship. As a result, there are ethical and legal implications when serving either simultaneously or successively as a treater and expert witness in the same case.

One risk is to voluntarily agree to switch roles. A therapist may decide on their own that it would be helpful testify on behalf of their current patient. Or the therapist may terminate a patient, and assume that there is no ethical problem in testifying as an expert. A second area of concern is if the therapist is subpoenaed to testify on expert witness basis. Can the therapist refuse to testify?

A third area of vulnerability for a treating clinician occurs when they are subtlety pulled into the role of an expert during a deposition. Before this happens, the treater should be certain that they are not being called as an expert, but are only offering fact information.

 
Background

Prior to 1990 or so, there was much less concern about the parameters regarding switching roles from treater to expert or even expert to treater. However, several significant articles pointed out a number of inherent problems. (Greenberg and Schuman, 1997; Strasberg, Gutheil & Brodski, 1997.) Under their view, a treating clinician will lose objectivity if attempting to serve as an expert witness in the same case.

An alternative position is presented by Heltzel (2007) who is favor of treating clinicians in certain circumstances to simultaneously provide expert witness testimony. It is the case than in Worker’s Compensation for example, psychotherapists offer expert opinions in their evaluation reports. However, in the Administrative Law arena of Worker’s Compensation, a treating therapist generally would not be expected to testify to matters beyond what is in the four corners of their report.

Nevertheless, the prevailing view at present is that a treating therapist will risk objectivity if attempting to serve as an expert witness in the same case. This is especially so in Civil and Criminal matters. Generally, ethics boards frown upon serving in this dual capacity. At this point in time, it appears that the issue of switching roles from treater to expert and expert to treater can be fraught with exposure to liability or and disciplinary actions. An expert witness could be impeached and a negligence lawsuit could be brought. For example, if the case goes awry due to impeached or negligent testimony, the plaintiff can initiate a lawsuit.

There are three issues that might confront the treating therapist which will be explored here. First, should a therapist terminate a therapeutic relationship in order to serve as an expert? Secondly, can a treating therapist refuse to testify? Third, what should a therapist do at a deposition or trial if asked expert witness questions?

 
Can A Mental Health Clinician Terminate A Patient In Order To Serve As An Expert?

This may seem like a good compromise at first. The fees generally are much better as it turns out and the patient was just about to be terminated anyway. It should be noted that the risks here also apply to a simultaneous treater/expert relationship.

The first problem is that the therapist/expert needs to explain why the patient was terminated. This could lead to possible extraneous issues, but also could be harmful to the patient as well as the witness. Of great significance, the credibility of the witness may be tainted by their explanation. Opposing Attorney: “Isn’t it true that your fees as an expert are much higher than as the treating therapist?”Answer: “Yes, but…”

Furthermore, what if the patient owes the therapist some money? Could this affect their testimony and credibility? Undoubtedly the expert witness will be cross-examined about the bills and invoices.

A problem for the treater/expert is that serving in the sequential double role not only could be construed as a conflict of interest and a violation of the standard of care, but the patient could assert abandonment. Thus, it could be claimed that the termination was not for therapeutic reasons, but was to enhance the professional’s career and earn more money. The opposing attorney could inquire as follows: Question: “Do you believe everything Ms. Smith tells you?”Answer: “Do you mean my clinical notes or my expert report?”Question: “Is there a difference in whether you believe the patient when treating her, but not now?”

What the opposing attorney can demonstrate is a different mindset and an inconsistency in reporting.

 
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What Happens When A Therapist Is Called On As An Expert?

The main issue is whether a treating therapist can refuse to testify as an expert. As noted by Reid (2010), the forensic mental health clinician should have their antennae up and be cautious when called by an attorney calls. A treater should not agree to discuss anything without verifying who is calling and why.

What happens if a treating therapist is also called via subpoena as an expert? Generally, there may have to appear at a deposition or trial, but cannot be compelled to answer. In one example (Guthheil, & Hilliard, 2001), a treating therapist was asked for a brief note about his patient. Much to the therapist’s surprise he was designated as an expert witness. The treating witness was examined at his deposition and had a most unpleasant time.

In another case, Berlin, (2005), a radiologist made some comments to a patient regarding issues related to her treatment. He subsequently was subpoenaed to testify and was asked questions about the standard of care. The radiologist apparently made statements in his notes regarding prior treatment by another doctor related to the standard of care. The radiologist was subpoenaed and was going to be asked questions regarding the statements on the standard of care. He refused to do so. At the court hearing, a judge ruled that the radiologist did not have to answer questions related to expert witness opinions.

Furthermore, in Glenn v. Plante, a treating doctor had criticized the treatment of another doctor. Various words were used that suggested that standard of care issues, such as the treatment being unwarranted. The case was appealed all the way to the Wisconsin Supreme Court as to whether the doctor would be required to testify as an expert. The ultimate ruling is that if there is not a showing of compelling circumstances, expert witnesses should be free from testifying against their will. In order to avoid this trap, the forensic mental health expert can refuse, if subpoenaed, to answer questions that go beyond the scope of a treating clinician. If intentionally or inadvertently named as an expert, the treating therapist can decline to participate on that basis.

 
What Should The Treater Do At A Deposition Or Trial If Asked Expert Questions?

In this scenario, the witness shows up fully expecting to testify only as to factual matters. A clinician who is involved in a litigated case needs to be on high vigilance. The opposing attorney will try to lead to witness down the garden path, especially in the area of (Eisner, 2010.) After a few perfunctory questions, the opposing attorney may begin with expert type questions that are not obvious at first, such that the hiring attorney and the witness do not notice. Once into the thicket, it may be hard to escape. The treating therapist has already breached the dividing point between a percipient or fact witness and an expert witness. This may be fertile grounds, not only for later impeachment at trial, but a call to the State Board for possible disciplinary action. For example, if the case is adversely affected by their performance, the plaintiff can bring a lawsuit, or their could be an ethics investigation.

In this scenario, the treating therapist shows up at his deposition in good faith, fully expecting to function as a so-called fact or percipient witness. There is no expectation that they will be asked to render expert opinions. They are certainly not named as an expert, nor were they ever informed that they would be functioning as an expert at the deposition. Nevertheless, the opposing attorney, not only to save time and money, but to impeach a witness later, will attempt to intrude into the province of the expert witness.

In sensitive cases, it may be helpful to have your own attorney present. It may be that the hiring attorney does not always raise an objection. Not only can your personal attorney raise objections, but they can also request that the treating therapist not answer the questions. Of course, the astute clinician can refuse to answer on their own. Opposing
attorney: “Did you diagnose the patient as autistic?”
Answer: “Yes.”
Opposing Attorney: “Is the incidence of autism on the rise?”
Answer: “No, the rates are sharply decreasing”

The treating witness has now emerged into treacherous territory. Perhaps the witness read or misread some data, or was confused during the deposition. Furthermore, if an expert makes a significant misstatement, there can be disciplinary action.(General Medical Council, 2006.) Opposing Attorney: “Do you think Ms. X is a malingerer?”
Answer: “That goes beyond my role as a treating clinician.”

In this scenario, the mental health professional should politely and firmly maintain the strict boundaries of the therapeutic role and simply refuse to answer the question. The questions may seem innocuous at first, but it can be difficult at times to keep track during a fast and furious line of questions, when there is a shift in focus. The clinician should prepare and know well in advance what the parameters are. Certainly, factual matters are within the zone of their testimonial role. In the first example above, the witness should not have answered the question on the rates or incidence of autism.

 
Conclusion

At this point in time, it appears generally accepted that treating psychotherapist should not undertake a secondary role in a litigated case an expert witness. Professional organizations and State Boards generally would consider this situation to be an improper dual relationship.

The risk of switching from treater to expert can be quite severe. First, the witness is subject to impeachment based on this circumstance alone. Should this occur, the by now ex client can bring a negligence lawsuit, particularly when there is an adverse ruling. There also is likely to be an investigation from a State or professional disciplinary board. Further, should the treater/expert be coaxed into uncharted territory, there could be a negligence claim and disciplinary investigation for offering unsound or unreliable testimony.

 
References

“Berlin, L.(2005). Can a Radiologist be Compelled to Testify as an Expert Witness? American Journal of Roentgenology, 185, 36-42.

Eisner, D.A.(2010). Expert Witness Mental Health Testimony: Handling Deposition and Trial Traps. American Journal of Forensic Psychology, 28, 47-65.

General Medical Council The Meadow (2006). EWAC, CIB 1490.

Glenn D. Plante, (2004). 296 Wis.2d, 575.

Greenberg, S.A. and Shuman, D.W. (1997). Irreconcilable Conflict Between Therapeutic and Forensic Roles, Professional Psychology: Research and Practice, 28, 50-57.

Gutheil, T.G. and Hilliard, J.T. (2001). The Treating Psychiatrist Thrust into the Role of Expert Witness, Psychiatric Services, 52, 1526-1527.

Heltzel, T. (2007). Compatibility of Therapeutic and Forensic Roles, Professional Psychology: Research and Practice, 38, 122-128.

Reid, W.H (2010). When Lawyers Call Clinicians, Journal of Psychiatric Practice (2010). 16, 253-257.

Strasburger, L.H., Gutheil, T. & Brodsky, A. (1997). On Wearing Two Hats: Role Conflict in Serving as Both Psychotherapist and Expert Witness. Journal of Psychiatry, 154, 448-456.

 
Donald A. Eisner, Ph.D. is a licensed psychologist and attorney. He is the dean at Eisner Institute for Professional Studies. His web site is at http://www.eisnerpsychlaw.com and he can be reached at psychlaw@hotmail.com

© 2010 Donald A. Eisner, Ph.D

 
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