I. Definition
Forensic neuropsychiatry is a subspecialty that applies to legal issues, a scientific and clinical understanding of the behavioral manifestations of brain disease.
II. Background
Psychiatrists and neurologists are frequently involved with the legal system in a variety of ways; either as the attending physician, giving medical information about one’s own patient through records or personal testimony, or as a consultant not actually treating the person in question. A doctor examining a patient for the purpose of rendering an opinion, rather than for treatment, is said to be performing an Independent Medical Examination (IME). A forensic neuropsychiatric evaluation is of use to give a diagnosis and prognosis in a legal setting, for purposes of rating disability, determining competence to make decisions, or determining civil or criminal responsibility. The court (the judge), or lawyers on either side of the question in litigation, may request the physician to explain in layman’s language the relevant medical facts or opinions. Forensic neuropsychiatry may also refer to forensic specialists who practice within the penal or correctional system, working as treating physicians in prisons or hospitals for
the criminally insane, or determining competence or insanity for the court. Forensic fellowships are available in a number of training sites, and most psychiatric residency programs include some background in the basics of commitment procedures and competency determination.
the criminally insane, or determining competence or insanity for the court. Forensic fellowships are available in a number of training sites, and most psychiatric residency programs include some background in the basics of commitment procedures and competency determination.
III. The Adversary System
Courts in the United States use the adversary system in an attempt to establish facts and render decisions in torts and criminal cases. Each side of a dispute will present an argument and evidence to support it, and through cross-examination either side will attack the testimony of witnesses, including expert witnesses. The same process is used in a number of other venues, including arbitration, or simply reviews by insurance providers or medical boards.
In many countries outside the United States, in the criminal court, a panel of court approved or appointed experts may be employed to reach a consensus regarding the question of sanity or criminal responsibility. This procedure is more efficient than a trial and avoids “a battle of the experts.” This unseemly contest of disputing experts may only serve, in the eyes of the public, to discredit the medical profession and the scientific method in general.
IV. Scientific Evidence
It is important for courts to evaluate the scientific basis of testimony and the credentials of “experts” before they are presented to the juries or the boards. This process is largely at the discretion of the judge in a case, but is guided by a number of decisions and rules, which have been evolving recently. The Daubert rule is the most important of these regarding the admissibility of scientific evidence. In the past it has sufficed for an expert to simply express an opinion on the basis of his or her own experience or review of the literature, but now one must show that an opinion is the generally accepted view of specialists in a particular field, and that the relevant peer-reviewed literature will support that position. Daubert versus Merrell Dow Pharmaceuticals, 92–102, 509 U.S. 579 (1993), is the case that set the standard for scientific testimony in court. It is the basis of the federal rule for scientific testimony, but is gaining wider acceptance in state courts across the country. Daubert states that scientific evidence is inadmissible unless the technique is “generally accepted” as reliable in the scientific community, rests on a reliable foundation, and is relevant to the question at hand. The judge has the task of determining whether the method and reasoning is scientifically valid. The Daubert decision superseded Frye versus United States, 54 App. D.C. 46, 293 F. 1014, which required “general acceptance.”
V. Expert Witness
If the physician is to give an opinion about a patient he has not been treating, he is then referred to as an expert witness. He may be conducting an IME of a patient, or simply testifying to a review
of facts of a case in question. It is mandatory for doctors giving testimony to facts or opinion to understand the purpose of their testimony and to be precise regarding the facts in question.
In an attempt to improve their expertise in dealing with the legal system, and to bolster their credibility with the courts, some physicians seek to be certified as experts through various “boards” offering forensic credentials. These boards include the American Board of Psychiatry and Neurology, which offers subspecialty certification in Forensic Psychiatry. A physician becomes an expert witness by presenting his or her credentials and qualifications to the court and being accepted by the judge. Therefore, expert witnesses should be experienced in the field of knowledge in question and be armed with the applicable peer-reviewed scientific literature. They must be prepared to outline their reasoning in a way that judge and jury can follow and understand. It is not enough to have the proper credentials and to express an opinion on the basis of personal experience; one must be able to prove the point and stand up to cross-examination by a well-prepared lawyer. Compensation is based on an hourly rate, including record review, examination of the patient, and time for depositions or courtroom testimony.
VI. Degree of Certainty
Despite the Daubert rule, there will remain many areas where the medical/scientific literature is unclear, insufficient, or vague, and the clinical material may be subject to several interpretations. Even something as apparently concrete as the reading of an x-ray is subject to interpretation and clinical judgment, a fact that may be lost on a judge or jury. An expert must, therefore, be careful to admit the level of certainty to which an interpretation of clinical opinion may be held even if it is undisputed. In some cases opinions must be expressed “to a reasonable degree of medical certainty” (90% to 100%), a rather high standard, but one to which a clinician adheres in medical practice. For medical causation the opinions may be “to a reasonable degree of medical probability” (>50% likelihood, or “more likely than not”), a much lower standard. These definitions may vary from state to state, and may differ depending on the court. Unfortunately, the outcome of such apparently imprecise measures may be expressed in an all-or-none decision or finding of fact.
VII. Torts
A Tort is a claim of wrong, due to another person, for which a legal remedy (usually money) is sought. Torts may involve persons or classes, individuals or corporations and are tried in civil, rather than criminal courts. Some examples of torts follow below.
Malpractice
Patients or their heirs may sue for malpractice if a treatment has a bad outcome, or if they feel that there was negligence, abuse (sexual, emotional, or physical), a violation of
confidentiality, or an adverse reaction to a medication or treatment. For a doctor to be liable, the patient must prove that a duty existed to provide proper treatment and there was negligence. The determining factor in such a case is whether it was a violation of the standard of care.
The standard of care is usually defined as that level of competence and care usually exercised by practitioners in the same specialty as the physician involved in the treatment. Practice parameters are published by the American Academy of Neurology, the Academy of Child and Adolescent Psychiatry, and the American Psychiatric Association. Although, these do not have the force of law, they are useful to assist in the determination of the standard of care. Of course, if the physician is doing something for which he lacks the training or expertise, it is undertaken at the risk of being held to the same standard as experts in that field. The standard of care is a national one; doctors in rural areas are held to the same standards as those in a university hospital. Interns are judged by the same standard as their attending physician.
For a case to prevail there must be damages, and there must be causation. Damages are the actual harm, which results from a deviation from the standard of care, and are not simply a death, emotional trauma or disfigurement, which in the normal course of events may be the natural outcome of disease or injury.
Expert testimony must state what constitutes the standard of care in a given situation, what the deviation was, and the cause-and-effect relationship of that deviation and the harm done. Often the experts for the defense and plaintiff have opposite opinions, and therefore, it is up to a jury to decide the case on the merits perceived, and the strength of the arguments presented by the competing lawyers. Unfortunately, in the case of complicated medical matters, the result may depend on the eloquence of the expert or the lawyer, rather than scientific basis of the opinions presented.
Review boards. A number of jurisdictions in the United States now require an evaluation by a screening board composed of doctors and lay people before a case of alleged medical malpractice may be brought to court or arbitration. This approach can be a valuable screening tool to prevent frivolous lawsuits from going forward, but also depends upon expert reports by an affidavit or a testimony.
Who gets sued for malpractice? In a malpractice suit it is common for plaintiff attorneys to sue everyone involved in the care of the patient, including those who have no culpability or only a remote connection to the incident in question. This action may be done as a fact-finding maneuver, because then subpoenas may be issued to take depositions (sworn testimony which may be used as evidence in court),
and the complete medical record may then be produced for review.
Do you need an attorney if you are sued? Although the various insurance companies involved have attorneys to defend the physicians being sued, their interests may diverge from those of the doctor. Thus, it may be appropriate for the defendant doctor to retain an attorney to represent his interests, in case the insurance company wants to settle a case simply to avoid a trial, particularly when the physician is in fact not responsible for the perceived damages.
Toxic torts. Dangerous chemicals in the environment may cause neurologic damage to the central or peripheral nervous system, with manifestations ranging from cancer, to dementia, or neuropathy. In some jurisdictions, including California, a legitimate fear of cancer from a toxic exposure is compensable. Claims of multiple chemical sensitivity, toxic mold and similar problems require careful environmental evaluations and rigorous adherence to scientific methods on the part of expert witnesses.
VIII. Competence
Competence refers to the ability of a person to testify or make a decision. Competence is specific to the purpose, that is, to testify, to make a will or a contract, to refuse or permit treatment, to confess or give a statement, to be tried or executed, or to be employed in a sensitive area or occupation. These various types of competence have different standards, and it is essential that the physician understands the statutory requirements and limits for each type before expressing an opinion.
The phrase, “being of sound mind and body” is often incorporated in a will. Witnesses to the will attest to that fact, but a lay observation is not the same as a legal determination based on neuropsychological testing. Therefore, if a person is demented, or psychotic, or so depressed that they do not care what happens, they may not be competent to make a will. To be competent to make a will requires only that the person knows what his estate consists of, and knows how he wishes to dispose of it. It does not require a detailed understanding or logical reasons, as long as the person making the will is not subjected to undue influence or delusions. This requirement will be spelled out in legal language, which may vary from jurisdiction to jurisdiction, and is a looser standard than that required for other purposes. Neuropsychiatric testimony based on a retrospective review of medical records and witness statements may be relied upon to make a determination of testamentary capacity of a deceased person.
Competence to stand trial requires that the defendant understand the charges against him, the nature of the proceedings including the functions of judge, jury, prosecutor, witnesses, and his own attorney, and be able to assist his attorney by communicating with him and being able to confront witnesses or accusers. Clearly, this competence is a more complex question than that
of being competent to make a will. A defendant found to be incompetent to stand trial will usually be remanded to a mental hospital to be treated to restore competence. Of course, in some cases of psychosis or dementia, either Alzheimer disease or from traumatic brain injury, incompetence may be permanent. In such cases charges may be dismissed and civil commitment proceedings may follow.Related posts:
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