Q. I was hired by a defense attorney to review records and render an opinion in a personal injury case. After my review of records, I asked to interview the plaintiff. The plaintiff’s lawyer is refusing to allow her client to be seen. How do I proceed?
A. Sadoff: First, I would try to ascertain the reason why plaintiff’s attorney refuses to have her client examined when she has consulted with her forensic psychiatric expert who gave her an opinion helpful to plaintiff. The reason is most likely that plaintiff is fragile and likely to be harmed by further forensic psychiatric examinations.
One can rebut that concern by allowing plaintiff’s attorney to be present during the examination or have a trusted friend present to avoid any excessive harm to the plaintiff. The examination can also be videotaped or audiotaped so that all can know what transpired during the examination.
If plaintiff’s attorney continues to refuse to allow the examination, I would ask the defense attorney to petition the court to disallow the plaintiff’s claim unless the examination can occur. It appears blatantly unfair to the defense not to have the examination when plaintiff raises her mental state as an issue in this civil case. Some judges will disallow the case to go forward unless the plaintiff is cooperative with the defense expert.
If there is the rare case in which the judge insists that no examination by the defense can occur and the case must proceed, then the forensic expert, if he or she decides to conduct an evaluation without the examination, must examine records, speak to collateral individuals and use his or her experience in order to reach a reasonable conclusion, even without an examination or a diagnosis. It is deemed unethical, according to APA guidelines to make a diagnosis without a personal examination, except in those cases where no examination is possible such as in wills’ cases or in wrongful death cases.
This being the case, I would testify according to the ethical guidelines of AAPL by telling the court that I reached my opinions without a personal examination because the judge refused to allow one, and I utilized medical and other records and other interviews. It is my opinion that reasonable jurors will wonder why the judge refused to allow a psychiatric examination by the defense. Thus, the reasonable and ethical forensic psychiatrist can proceed in such an impossible situation (which in my opinion is not only rare, but has never occurred) by following the ethics guidelines of AAPL and presenting an opinion announcing the limitations imposed by the court in not allowing a personal examination of the plaintiff. It is my opinion and experience that most judges will order the plaintiff to be examined or place specific conditions on the examination in order to protect the plaintiff but remain fair to both sides.
A. Kaye: Clearly, the AAPL Ethics Guidelines address this issue. Section IV notes that an expert’s objectivity and honesty may be questioned when an opinion is offered absent an actual examination. However, the Ethics Guidelines do allow you to proceed, providing that the expert duly notes that the opinion proffered is limited by the lack of an examination. I bring this up not to just remind all of us about the importance of familiarity with the AAPL Ethics Guidelines, but also because I share the Guidelines with the attorney. I am then able to ask the attorney to get a court order for me to conduct the examination, using the Guidelines to help establish why this important and appropriate.
I have also gone further and asked the attorney to depose the treating doctor and/or expert on the other side specifically about this issue. A credible colleague will generally acknowledge that it is the “standard of care” in forensics to conduct a personal examination and that to do so would not be harmful to the plaintiff. Further, if necessary, safeguards can be put in place to assure that the evaluee is not traumatized by the evaluation. In all but one case, this approach has resulted in a court order allowing me to do my job. However, I have been involved in one case where despite all of these actions, the judge still refused to allow my examination. Per the AAPL Ethics Guideline, I am sure that my efforts were “earnest.”
Sadoff/Kaye: Take home point: Life isn’t always fair, and the judge’s word is final, unless overturned on appeal