Dr. Levy Interviewed on video about PTSD in Iraq GI's - click to watch
AP 5/12/09: Father of US Army Sgt John M. Russell says his son was treated poorly in a a military stress treatment center in Baghdad before he killed 5 of his fellow soldiers on 5/11/09. Mark Levy, MD was interviewed about the nature of Posttraumatic Stress Disorder and the role it may have played in the shootings by Sgt. Russell.
from Cyberounds: Health Law and Bioethics
Maxwell J. Mehlman, J.D.
Educational Objectives
Upon completion of this Cyberounds(R), the participant should be able to:
* Discuss the paradox of the duty to refer
* Discuss how this paradox can confuse judges in malpractice cases
* Describe the correct rule of liability in failure-to-refer cases.
Given all the unkind jokes I hear about lawyers, I rarely choose to criticize the profession but I occasionally make an exception when judges espouse positions and reasoning in particular cases that are, shall we say, inexplicable. So I thought I'd share with you a case entitled Murphy v. Nordhagen, decided by an intermediate appellate court in Wisconsin (588 N.W.2d 96, 1998).
The case was a malpractice suit brought against Nordhagen, a chiropractor, by a patient who alleged that the chiropractor had failed to properly treat her herniated disc. Specifically, the patient accused the chiropractor of failing to refer her to a medical doctor for diagnosis and treatment of her condition. The court upheld a dismissal of the suit on the ground that a chiropractor "does not have a duty to refer a patient who is not treatable through chiropractic means to a medical doctor." (588 N.W.2d at 99).
Was the Court wrong?
At first blush, the court's position seems absurd. Surely, someone who seeks health care services from a chiropractor, or from any other health care provider whose scope of practice is more limited than a physician's, should be able to rely on being referred to a physician if the problem is beyond the scope of the limited practitioner's expertise. This is borne out by many other legal authorities. The Supreme Court of New Jersey, for example, states that "chiropractors have long been expected to diagnose and refer patients whose conditions require medical or other treatment," adding that "[t]he rule protects the public health and welfare by making certain that chiropractic treatment shall be given only when genuinely justified." (Rosenberg v. Cahill, 492 A.2d 371, N.J. 1984).
The first paradox
The effect of the Wisconsin court's rule could be to give chiropractors a blank check when it comes to legal liability for treating ailments that are beyond their expertise. So, here's the first paradox: Under the court's ruling, a chiropractor in Wisconsin can be sued for unreasonably causing injury to a patient in the course of treating a condition that is properly within the scope of chiropractic but might not be held liable for causing injury when treating a patient for a condition that is beyond the scope of chiropractic care. This is particularly troubling in view of the fact that chiropractors have been known to attempt to treat patients for serious illnesses utterly beyond the chiropractor's expertise.
Although judges, with all due respect, sometimes may do stupid things, they are not stupid people. So what was the reasoning behind the Wisconsin court's decision? It's another paradox. Here's the court's language:
[B]ecause implicit in a requirement that a chiropractor refer a patient to a medical doctor is the imposition on the chiropractor to make a medical determination that the patient needs medical care, such a determination could not be made without employing medical knowledge. Because a chiropractor is not licensed to make such a determination, we hold that a chiropractor does not have a duty to refer a patient who is not treatable through chiropractic means to a medical doctor. (588 N.W.2d at 99)
What should we reasonably expect a professional to know?
The court's reasoning has a certain plausibility (of course paradoxes always do, which is why they are such mental challenges): How can we expect a person who is not a physician to know when someone else needs to see a physician? Wouldn't that entail having precisely the type of medical expertise that they are presumed to lack?
But wait. Doesn't this reasoning also apply to the duty of primary care physicians to refer patients to specialists? How can a physician be liable for not referring a patient to a specialist without requiring the physician to know what the specialist knows in the first place? Yet, in dozens of cases, physicians have been held to this duty. [For a compilation, see Jerald J. Director, Annotation: Malpractice: Physician's Failure to Advise Patient to Consult Specialist or One Qualified in a Method of Treatment Which Physician Is Not Qualified to Give, 35 A.L.R.3d 349 (1999).]
Are chiropractors somehow different in the eyes of the Court?
What gives? Is there something different about physicians and chiropractors such that only physicians should be expected to know when to refer a patient and a chiropractor should not? Is it the fact that a chiropractor is not trained the same as a physician? But, then, neither is a primary care physician trained the same way as a board-certified neurosurgeon. Indeed, it is precisely because the chiropractor is not a trained physician that the patient needs the protection of being referred to a physician in the appropriate circumstances.
A personal analogy about Ski Patrol
This issue actually takes on a personal dimension for me since I am a member of the National Ski Patrol. In my role as a ski patroller, I often puzzle over whether or not to tell the patient to see a doctor and, in some states, I might be sued if I make a mistake.
It is the analogy to primary care physicians and ski patrollers, not to mention virtually all other non-physician health care professionals, that exposes the flaw in the Wisconsin court's thinking. Obviously, a chiropractor, like a primary care physician or ski patroller, cannot be expected to have the actual knowledge and skill of a physician or, in the case of a primary care physician, of a specialist. But they can be expected to know when the patient may need the services of a physician or specialist. Ski patrol training, for example, stresses two subjects: How to provide first aid to an injured skier and when to advise that skier to see a physician. We are taught the signs and symptoms that indicate the need for greater expertise than we are assumed to possess.
One standard fits all
The same standard should be applied to chiropractors. They should know what to look for in a patient to tell them whether to proceed with further chiropractic care or to refer the patient to a physician. This isn't expecting the chiropractor to act like a physician -- to use the Wisconsin court's language, to make a "medical determination - but to act like a reasonable chiropractor, or ski patroller, or primary care physician, under the circumstances.
So the correct approach for the courts, when dealing with a failure-to-refer case, is to ask whether the defendant exercised the proper level of skill in determining whether or not to refer the patient. In the case of a chiropractor, this won't be the same level of skill that a physician would be expected to employ. The question isn't whether the chiropractor behaved the way a reasonable physician should but the way a reasonable chiropractor should. In some cases, chiropractors may make mistakes and proceed to treat patients for conditions for which they should have seen a physician but, so long as the chiropractor's mistakes are reasonable, they should not be legally liable.
AMERICAN ACADEMY OF PSYCHIATRY AND THE LAW ETHICS GUIDELINES FOR THE PRACTICE OF FORENSIC PSYCHIATRY Adopted May, 2005 The American Academy of Psychiatry and the Law (AAPL) is dedicated to the highest standards of practice in forensic psychiatry. Recognizing the unique aspects of this practice, which is at the interface of the professions of psychiatry and the law, the Academy presents these guidelines for the ethical practice of forensic psychiatry. Download AAPL Ethical Guidelines for Forensic Psychiatry
This is an original article, published in San Francisco Attorney Magazine (2001) that discusses the Americans with Disabilities Act (ADA) and the California Fair Employment & Housing Act (FEHA) in relation to protection and accommodation issues for employees with mental disabilities. Download mental_illness_in_workplace.PDF
Mental Illness in the Workplace: Legal and Psychiatric Implications of
Mentally Disabled Employees
by Mark I. Levy, MD
Jonathan Mook, Esq.
Saul Rosenberg, PhD
San Francisco Attorney Magazine September 2001
Law.com November 2001
Although federal and state laws prohibit employment discrimination against individuals with physical and mental disabilities and require an employer to make reasonable accommodations for both kinds of disabilities, interpreting and implementing the law with regard to mental disabilities has proven very difficult. The process of diagnosing mental disorders such as like depression or anxiety, specifying the related functional impairments, and suggesting accommodations is inherently more complex than providing wheelchair access.
In order to effectively respond to issues that may arise in dealing with employees who have psychiatric disorders, it is important to approach the matter not just from a legal standpoint, but from psychiatric and psychological perspectives as well.
In this article, we will define “mental disability” under the Americans with Disabilities Act (ADA) as well as the California Fair Employment and Housing Act (FEHA). We will describe who is considered qualified for protection, what constitutes a disabling psychiatric disorder, and the roles of a forensic psychiatrist and psychologist in making this determination. The important question of what constitutes reasonable accommodation for persons with psychiatric disabilities (including issues related to fitness for duty evaluations) and the consultative role of a forensic psychiatrist and psychologist in recommending accommodations and performing evaluations will be examined in a subsequent article.
Who are Disabled Under Federal and State Law?
An analysis of the workplace protections afforded to individuals with psychiatric disabilities must start with a discussion of who is covered under applicable statutes. Over ten years ago, Congress enacted the landmark Americans with Disabilities Act, which prohibits discrimination against individuals with disabilities, defined as a physical or mental impairment that substantially limits one or more major life activities. The Act also protects those who may not currently have a disabling impairment but have a record of such an impairment or are regarded by the employer as having such an impairment.
In 1999, the United States Supreme Court held that in determining whether an individual comes within the ADA statutory definition of disability, the extent of the limitation resulting from the person’s physical or mental impairment must be assessed in light of any mitigating measures, including medication. The Supreme Court’s ruling had the effect of severely constricting the number of persons who could claim coverage under the federal statute.
California also has its own legal protections for persons with disabilities under the California Fair Employment and Housing Act. The statute generally has been interpreted in line with the requirements of the ADA. However, in response to the Supreme Court’s narrow interpretation of the ADA definition of disability, the California legislation amended the FEHA to provide that the impact of any limitations on major life activities due to a physical or mental impairment is to be assessed without regard to mitigating measures. In addition, the limitation need only make achievement of a major life activity “difficult.” Thus, while an individual with depression who functions quite well as a result of taking Prozac or another antidepressant, in all likelihood, may not be covered under the ADA. The same person, however, would be covered under the FEHA, as long as the depression, without regard to the use of Prozac, makes achievement of a major life activity merely difficult.
The following hypothetical case examples contrasts two depressed employees, one of whom, Fred, is not protected by the ADA or FEHA because, despite his symptoms, he is nevertheless able to function in the major areas of his life and is experiencing no added difficulty in performing major life activities. Sally’s condition, on the other hand, appears sufficiently limiting to be covered under the FEHA and ADA.
Fred is a chartered accountant with chronic moderate depression who despite his depressive symptoms is able to work in his office doing tax planning and preparing returns for his clients. Although his range of life activities has always been limited, his functioning both in life and at work is no different than it has ever been.
Sally is also an accountant suffering from recurring depression. In contrast to Fred, she has experienced during the last year increasing difficulty sleeping for more than a few hours at a time, concentrating on her work, and interacting with colleagues and clients. She has recently cancelled client appointments and arrived late for work. Falling significantly behind in her work, she feels mounting guilt and self-recrimination. Sally’s depressive disorder has resulted in a dramatic decline in her functioning both in life and at work.
Establishing Coverage Under ADA and FEHA
The diagnosis of a psychiatric disorder is usually sufficient to establish coverage under the FEHA because, in virtually all cases, the disorder may be said to make the achievement of a life activity “difficult.” However, the same will not be true for establishing coverage under the ADA. The mental disorder must cause a substantial impairment in a major life activity for protection under the ADA. For example, an individual may be depressed with subjective symptoms of blue mood, pessimism about the future, and guilt without exhibiting significant impairment in life activities. In contrast, another individual with the same diagnosis of depression may be chronically fatigued, unable to concentrate, and lack motivation to an extent that the depression substantially interferes with many of the person’s major life activities.[1]
Thus, it is critical that psychiatrists and psychologists who diagnose individuals with a particular mental disorder indicate the person’s specific functional impairment and not just describe mental disorders based upon the self-reporting of subjective distress. It is also important that the mental health evaluator indicate specific life and other job functions that are affected by a disorder and not merely provide general categories of functioning that are impaired. For example, when describing impaired work functioning, it is inadequate to merely say that the claimant experiences stress in the workplace. It is appropriate to say that the employee becomes anxious when working in an open plan office environment where the noise of other employees interferes with concentration.
The Diagnostic and Statistical Manual, currently in its fourth edition, text revision, published by the American Psychiatric Association (DSM-IV-TR), is recognized in California as the authoritative psychiatric diagnostic text. (See Money v. Krall (1982) 128 Cal. App. 3d. 378.) Furthermore, the courts have generally relied upon experts to diagnose mental disorders by the criteria delineated in the DSM.
A mental disorder, as defined by the DSM-IV-TR, involves a psychological pattern or syndrome occurring in an individual that is associated with one or all of the following conditions:
1. The individual experiences subjective distress. For example, the person may experience a painful psychological symptom like anxiety or depression;
2. The individual is impaired in one or more important areas of life functioning, such as the capacity to work, raise a family, or care for personal health;
3. The individual may experience a significantly increased risk of disability, injury, or loss of freedom;
4. The behavioral syndrome is not an expected response to a normal stressful life event, such as brief bout of depression following the death of a loved one.
Diagnoses are made on a matrix of five axes according to the DSM-IV-TR classification. The most frequent mental disorders that may find protection under the ADA (and FEHA) are the clinical syndromes of mood disorders, anxiety disorders, and psychotic disorders, including conditions such as panic disorder, post-traumatic stress disorder, major depression, and bi-polar disorder (manic depressive illness). These disorders are listed in the DSM under Axis I, the major clinical syndromes. However, some clinical syndromes are specifically not covered under ADA, including illegal drug use, drinking on the job, criminal pathology such as compulsive fire setting or stealing, and behaviors that are “personality traits.”
In addition to symptomatic syndromes listed on Axis I, personality disorders described on Axis II are enduring and rigid patterns of behavior, thinking, and feeling that are maladaptive and may lead to distress (sometimes in oneself and sometimes in others). For example, an individual who has a paranoid personality disorder is highly suspicious and vigilant and may feel threatened much of the time, whereas a person with an antisocial personality disorder may feel little subjective distress but harm others by impulsive, self-gratifying behavior.
Axis I and II diagnoses are not mutually exclusive. Frequently, both are present. The presence of a personality disorder may exert a determining influence upon the behavior that gives rise to an ADA or FEHA claim. For example, some individuals with paranoid personality disorders continually believe that people with whom they work and associate are victimizing them. Such individuals have little or no capacity to recognize their own role in bringing about the very circumstance that they experience as persecutory. It requires expert psychiatric and psychological judgment to distinguish specious claims of victimization motivated primarily by paranoia from legitimate complaints where paranoid traits have either been exacerbated by a real injury or are unrelated to the acute emotional damages. The following are hypothetical examples of Axis I, II, and combined Axis I & II psychiatric diagnoses.
Example of an Axis I Disorder:
Nancy, an unmarried woman of thirty-six, has worked for nine years as a devoted secretary to a senior partner of law firm. Uncharacteristically, she enters an impulsive love affair with a charming, but married, younger attorney at the firm. When other partners learn of the affair, Nancy decides to accept a position at an office of the firm located in a distant city. At the new office, she becomes profoundly depressed, ruminating about lost time and missed opportunities for marriage. She is tearful, arrives late to work, experiences difficulty concentrating, has thoughts of suicide, experiences menstrual irregularities and, for the first time in her fifteen-year career, does not complete assignments. Nancy’s gynecologist refers her to a psychiatrist who diagnoses her as having a Major Depressive Episode, Severe, without Psychotic Features.
Example of an Axis II Disorder:
Sam, a recently divorced forty-eight year-old civil engineer, is employed by an engineering firm where he is assigned to specific projects. He is generally distrustful of the work product of anyone other than himself, delegates little or nothing to subordinates, avoids shared responsibilities, and even rejects offers to go to lunch with coworkers. He tends to be critical and dismissive of the quality of work performed by his engineering colleagues.
Sam not only boasts an inflated view of his own professional ability but also assumes that he will be assigned to all major projects that the firm obtains. When his company lands a lucrative consulting contract, he is not invited to join the project team and is placed on a temporary lay-off. He subsequently develops feelings of rage and blames his exclusion on the alleged “stupidity and incompetence” of a particular senior manager as well as the “envy” of his colleagues.
At work and at home, he withdraws into a pattern of fitful sleep and solitary brooding. Sam develops the belief that several colleagues have “conspired” to thwart his career. He entertains fantasies of revenge and leaves several veiled threatening messages on the voicemails of management. As a result of these messages and concern about whether Sam poses a direct threat to the health and safety of other employees, the firm’s human resources director informs Sam that he is being placed on medical leave of absence. Before he may return to his job, he must submit to a “fitness for duty” examination. The psychiatrist selected by the firm who examines Sam diagnoses him as suffering from a Paranoid Personality Disorder with Narcissistic Features.
Example of combined Axis I and an Axis II Disorder:
John, a fifty-two-year-old married “workaholic” CPA, is characteristically brusque and irritable with associates in his accountancy practice. Although usually quiet and compulsive in his work habits, he periodically explodes with frustration and rage, often shouting abusive epithets at assistants who have not performed to his expectations. On one or two occasions, John has actually thrown a paperweight across his office, smashing a glass bookcase door and the glass cover of his own desk. During his twenty years’ tenure at the firm, more than a half-dozen secretaries and younger associates have left their employment due to his abusive and humiliating behavior.
One morning during tax season, John Suddenly develops crushing chest pain and is taken by ambulance to the local hospital emergency room where he is admitted to the coronary care unit. After extensive medical and cardiac evaluation, John is told by the cardiologist that his coronary arteries are “clean as a whistle” and that although he has not suffered a heart attack, he has indeed experienced a severe panic attack. The doctor refers John to a psychiatrist who diagnoses him as suffering from an anxiety disorder (Panic Attacks) as well as an Obsessive Compulsive Personality Disorder.
The Role of Psychological Testing
A comprehensive set of psychological tests can provide objective data about the nature, extent and severity of a mental disorder and related functional impairments. A comprehensive test battery might include self-report questionnaires (such as the MMPI-2), cognitive and intellectual problem-solving tasks (such as the Wechsler Intelligence Scales, and indirect tests, called “projective tests” because the individual may reveal personality traits through their images, responses, and stories). By employing different methods for gathering data, a psychologist can search for patterns occurring across many different kinds of tests that are likely to be more diagnostically reliable and valid than if only a single test is utilized. To be maximally accurate, test data should be interpreted within the overall context of the person’s history and current functioning.
The most widely used self-report test, the Minnesota Multiphasic Personality Inventory (MMPI), offers a procedure for gathering and interpreting behavior under standardized conditions of administration, test scoring, and interpretation. The individual’s pattern of test responses can be scored by computer and yield objective interpretations. For example, a computer program sums up all the items an individual endorses as true about himself related to depression. A report is issued that provides an indication of just how severely that individual is depressed compared to the normal population. In addition, there is a large database of research that correlates particular test scores with behavior characteristics. For example, individuals with significantly elevated scores on the “Paranoia scale” are generally described by others as suspicious and mistrustful.
Test responses, especially on self-report questionnaires, can never be taken at face value because individuals may have a variety of motivations to create a particular impression through their test answers. Some individuals may exaggerate the extent and severity of their symptoms, while others may minimize their psychological distress. Some objective tests like the MMPI-II have “validity” scales that measure—although not perfectly—the degree to which persons are motivated to present a particular impression regarding the nature and extent of their illness.
Another check on the validity of a self-report test is to administer the Rorschach Inkblot Test in which there are no obvious cues about how to respond to create a particular kind of impression. Over the last twenty-five years, a large research database has been created that can be utilized for reliable interpretation and scoring of data. Indirect tests such as the Rorschach can be especially revealing of personality traits that may not be acknowledged in a self-report questionnaire.
Often, a disagreement arises as to the amount of time that may be devoted to testing an individual or even whether the person should be tested at all. This conflict is frequently based upon the misunderstanding that psychological testing represents a duplication of the forensic psychiatrist’s efforts. In a properly conducted evaluation, there should be no overlap between the evaluation activity of a forensic psychiatrist who conducts clinical interviews and reviews medical and treatment records and that of a psychologist who administers, scores, and interprets the psychological tests.
Psychological assessment is a separate activity from interviewing and record reviewing and provides a different type of data. Accordingly, sufficient time must be allowed for comprehensive psychological testing. Using the test results, a professional can draw a diagnostic conclusion by pointing to objective evidence that was used in forming a particular opinion. Moreover, other professionals trained to evaluate psychological test data can critically examine the basis for that opinion.
In this respect, psychological testing can play a very important role in the scientific evaluation of individuals who are disabled by psychiatric disorders. By providing objective reliable data, psychologists can help to distinguish the truly disabled from those who may claim to be disabled but do not have scientifically verifiable mental disorders and impairments.
The determination of whether a person has a psychiatric disability covered under the FEHA or ADA is best made by highly trained forensic psychiatric and psychological professionals. Unlike medical judgments about a physical disability, an opinion about psychiatric impairment should be based upon the review of the broadest array of data, including independent medical evaluations; personal interviews; detailed psychiatric and psychological review of all available clinical documentary evidence, treatment records, deposition transcripts, and employment records; and the administration of a comprehensive set of psychological tests to confirm or rule out diagnostic hypotheses. Such judgments are best made by experienced experts utilizing the best scientific methods available to delineate all the psychological motivations of an individual, both conscious and unconscious, together with the neurobiological and psychopharmacological factors that affect human behavior and underlie claims of psychiatric disability.
This article is the second in a series. The authors welcome questions, comments, and suggestions for future forensic psychiatric articles. Email Mark Levy at mark@levymd.com.
Mark Levy has been practicing full-time clinical psychiatry and psychoanalysis in Mill Valley , for twenty-six years. During the past dozen years, he has devoted a substantial portion of his clinical practice to forensic psychiatry, providing independent medical evaluations (IME’s) and expert forensic psychiatric opinion and consultation nationally to both plaintiff and the defense trial attorneys, major insurance carriers, and the courts. He has developed and taught CLE courses sponsored by the Bar Association of San Francisco and the State of California Bar, focusing on job stress, stress disorders, substance abuse, emotional issues in legal practice, and workplace safety. Visit his Web site at www.lawandpsychiatry.com.
Jonathan R. Mook is a partner in the Alexandria, Virginia firm of DiMuro, Ginsberg & Mook, P.C., where his practice includes general litigation and counseling employers in all aspects of employment law. Mr. Mook is a graduate of Yale Law School and is the author of two legal treatises: The Americans with Disabilities Act: Employee Rights and Employer Obligations and The Americans with Disabilities Act: Public Accommodations and Commercial Facilities, both published by the Matthew Bender Company. He can be reached at jmook@dimuro.com.
Saul Rosenberg, Ph.D. practices clinical and forensic psychology, including evaluation and psychological testing of individuals with traumatic injuries, anxiety, and depression, as well as personality traits and disorders. He has served as expert witness on over thirty-five personal injury cases to both plaintiff and the defense trial attorneys. He also conducts psychotherapy and psychoanalysis, engages in research on assessment and treatment of mental disorders, and teaches mental health professionals at the San Francisco Psychoanalytic Institute and in the department of psychiatry at UCSF, where is he is an associate clinical professor of psychiatry and associate research psychologist. Visit his Web site at www.rosenbergphd.com.
[1]The Equal Employment Opportunity Commission has identified the following major life activities as being relevant to the assessment of psychiatric disabilities: thinking, concentrating, interacting with others, and sleeping. The impact upon a person’s major life activity of working should be considered only if none of the other major life activities of the individual is substantially impaired.
Preamble
The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient. As a member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self. The following Principles adopted by the American Medical Association are not laws, but standards of conduct which define the essentials of honorable behavior for the physician
THE PRINCIPLES OF MEDICAL ETHICS In 1973, the American Psychiatric Association (APA) published the first edition of
INTRODUCTION AND APPLICABILITY
The American Psychological Association's (APA's) Ethical Principles of Psychologists and Code of Conduct (hereinafter referred to as the Ethics Code) consists of an Introduction, a Preamble, five General Principles (A – E), and specific Ethical Standards. The Introduction discusses the intent, organization, procedural considerations, and scope of application of the Ethics Code. The Preamble and General Principles are aspirational goals to guide psychologists toward the highest ideals of psychology. Although the Preamble and General Principles are not themselves enforceable rules, they should be considered by psychologists in arriving at an ethical course of action. The Ethical Standards set forth enforceable rules for conduct as psychologists. Most of the Ethical Standards are written broadly, in order to apply to psychologists in varied roles, although the application of an Ethical Standard may vary depending on the context. The Ethical Standards are not exhaustive. The fact that a given conduct is not specifically addressed by an Ethical Standard does not mean that it is necessarily either ethical or unethical.Download APAcode2002
The U.S. Supreme Court's opinion in Daubert v. Merrell Dow (1993) rejected the Frye test and Frye-plus tests for the admissibility of certain scientific evidence (see admissibility tests lecture). Instead of "general acceptance" in the scientific community, the Daubert test requires an independent judicial assessment of reliability. Among other purposes, the Daubert test is intended to end the current "battle of the experts" state of affairs. The Daubert decision involved the claim that Bendectin caused birth defects, and even though it was intended to clear the way for admitting novel scientific evidence (like DNA), it has instead turned out to be a firestorm of controversy.
The misuse of scientific evidence is a serious problem. Even the FBI laboratory is under suspicion. In West Virginia, a serologist falsified test results in hundreds of cases over a ten-year period, sentencing hundreds of defendants to lengthy prison terms. In Texas, a pathologist faked autopsy results, resulting in as many as 20 death penalty verdicts. A police chemist elsewhere falsified reports and sent hundreds of innocent people away to jail on rape charges. Most misuse of scientific evidence is pro-prosecution. Daubert sheds light on shoddy procedures, protocols, and proficiency testing.
This document attempts to understand the Daubert test in light of continuing battles over forensic techniques and procedures. The Daubert ruling rests on an interpretation of the Federal Rules of Evidence. As a statutory, rather than constitutional case, it is not necessarily binding on the states, but many courts of appeals are ordering remands or whole new hearings because the trial court failed to conduct a Daubert hearing, and there is frequent variation from state to state in how Daubert hearings are conducted.
The fact is that Frye still remains the rule in many states. Other states have adopted Daubert, and yet other states have a history of rejecting Frye and Daubert, substituting their own standards. The following table contains a summary:
States accepting Daubert: |
States sticking with Frye: |
States with their own tests, or typically a Frye-plus test. |
Connecticut |
Alaska |
Arkansas |
Of course, all this is subject to change, but was fairly accurate as of 2004, and I continue to get emails from people updating my information. States in the third category, like North Carolina, express a variety of standards, but generally use a balancing test approach, balancing relevancy or materiality with prejudicial effect which, in North Carolina, has been noted as "consistent with Daubert" (see State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995)).
THE REASONING BEHIND DAUBERT
JUDICIAL NOTICE: The theoretical foundations behind many sciences are so firmly established as scientific laws that they are more properly the subject of judicial notice; the judge should be able to make a determination.
ADMINISTRATIVE LAW: Some techniques and procedures have such an extensive precedent in administrative law as to be part of official manual/standard operating procedure for agencies; it is wide-ranging precedent. CERTIFICATION: Scientific fields that have been generally accepted by professional forensic associations are proliferating, forensic this and forensic that; there must be some underlying reliability standards.
CODIFICATION: Daubert may provide the impetus to amend Fed. Rule 702 and its state counterparts which have created a variety of tests such as the "modified Frye Rule", the "Frye Plus Rule", the "objectively verifiable rule", and "three-prong rules".
Let's look at some common statements of FRYE and DAUBERT.
Interpretation of Frye: |
Interpretation of Daubert: |
Where novel scientific evidence is at issue, the Frye inquiry allows the judiciary to defer to scientific expertise precisely as to whether or not it has gained "general acceptance" in the relevant field. The trial court's gatekeeper role in this respect is conservative, thus helping to keep "pseudoscience" out of the courtroom. |
General acceptance is an austere standard absent from and incompatible with the Rules of Evidence. "Scientific knowledge" must be derived from the scientific method supported by "good grounds".in validating the expert's testimony, establishing a standard of "evidentiary reliability." |
The Daubert ruling substitutes a reliability test for a relevancy test.For states that follow neither Frye nor Daubert, this means that the continued practice of using reliability as a weight once relevancy has been established exposes a serious constitutional liability.
WHAT ARE THE RELIABILITY FACTORS IN DAUBERT.
All trial courts make a preliminary determination of admissibility. This job involves a preliminary assessment of whether the evidence is relevant, competent, and material. In short, can the evidence be properly applied to the facts in this case? This is the traditional "gatekeeping" function of courts. A number of reliability factors can enter into this and subsequent hearings using the Daubert standard.
SOME EXAMPLES OF DAUBERT APPLIED TO SPECIFIC TECHNIQUES:
(Note this is not a complete list, and is not accurate for ALL jurisdictions.
BALLISTICS generally FAILS the Daubert standard despite widespread acceptance.
BATTERED WOMAN SYNDROME has satisfied the Daubert standard in some jurisdictions, but fails in most.
CHILD ABUSE ACCOMMODATION SYNDROME has FAILED the test, for the most part.
COMPUTER SIMULATION has failed because experts often can't explain the algorithms.
DNA evidence is admissible under either the Frye or Daubert standard, but the reliability issue goes beyond the matter of testimony to the proper performance of protocols and probability estimates.
EYEWITNESS IDENTIFICATION generally FAILS the Daubert test, for the most part, as most social science, like social psychology, does.
FORENSIC ANTHROPOLOGY has not yet met the Daubert test, but the study of certain features from bones remains reliable.
HAIR ANALYSIS. Daubert has been successfully applied to Spectrophotometer and Gas Chromatographic tests for detecting the past use of drugs.
HYPNOSIS has known therapeutic value, but not as a method of producing accurate recollection of past events, as it would be used in court. Hypnosis, therefore, does not meet the Daubert test.
INTOXILYZER TESTS have been ruled valid and are considered beyond scientific dispute by many judges.
POLYGRAPH evidence (which was usually acceptable under Frye with a few exceptions) is beginning to be found reliable in Daubert hearings, but still does not enjoy widespread acceptance, and is, in fact, outlawed by per se laws in various jurisdictions.
PSYCHIATRIC evidence has had mixed results under Daubert. Techniques such as use of penile plethysmography to measure sexual arousal have had problems getting admitted in some states, but have faced no problems in other states. Also having difficulty is psychological or sociopsychological profiling which is often attacked for its lack of logical foundation and/or weak methodology. Checklist techniques, such as those used to determine if someone is a pedophile or a psychopath (e.g., an Axis disorder on the DSM IV) are even experiencing difficulties. However, testimony regarding mental disorders that go to the matter of mens rea generally satisfies the Daubert test as does much diminished capacity testimony and the more proven variety of syndromes.
QUESTIONED DOCUMENTS (or Expert Handwriting Analysis) has been ruled by many judges as not requiring the Daubert test because scientific principles have nothing to do with the day to day tasks as performed by practicing QDEs. However, some newer types of analysis are experiencing difficulties.
SOCIAL SCIENCE evidence, such as the use of regression analysis to show evidence of racial bias or estimates of damage, often requires the addition of proof from the field of epidemiology and some demonstration of mastery at econometrics, but "naked" statistical evidence has often been admitted anyway by some judges.
TRACE EVIDENCE COMPARISON has not yet been decided due to controversy over the qualifications required for a forensic scientist or lab technician as a microanalyst.
VOICE COMPARISON techniques have FAILED the Daubert test, for the most part.
INTERNET RESOURCES
Daubert Tracker from MDEX Online
RAND Report on Admitting Scientific Evidence
PRINTED RESOURCES
Berger, M. (2000). "The Supreme Court's Trilogy on the Admissibility of Expert Evidence," Reference Manual on Scientific Evidence. Washington D.C.: Federal Judicial Center.
Dixon, L. & Gill, B. (2002). Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision. Santa Monica: CA: RAND.
Giannelli, P. (1994). "Daubert: Interpreting the Federal Rules of Evidence." Cardoza Law Review 15: 1999-2026.
Golan, T. (2004). Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America. Cambridge, MA: Harvard Univ. Press.
Huber, P. (1993). Galileo's Revenge: Junk Science in the Courtroom. NY: Basic Books.
Jasanoff, S. (1997). Science at the Bar: Science and Technology in American Law. Cambridge, MA: Harvard Univ. Press.
Kiely, T. (2005). Forensic Evidence: Science & The Criminal Law, 2e. Boca Raton, FL: CRC Press.
Lubet, S. (1999). Expert Testimony. NY: National Institute for Trial Advocacy.
Spiegel, M. (1994). Admissibility of expert testimony: Daubert and Beyond. Washington D.C.: ABA Section on Litigation.
Wecht, C. & Rago, J. (Eds.) (2005). Forensic Science and Law. Boca Raton, FL: CRC Press.
Last updated: 02/05/06
Los Angeles Times 5/18/98
CAREERS / ADVERSITY AND CONFLICT
Employees and bosses sometimes reenact childhood family dynamics on the job. Is your workplace dysfunctional? Read up on these relating styles and find out.
By: SUSAN VAUGHN - SPECIAL TO THE TIMES
The successful executive in psychiatrist Mark Levy's office was complaining of deja vu. "He had a critical father he couldn't please, who'd told him he was little and inconsequential," recalled the San Francisco-based psychoanalyst. "And now he found himself with a superior who was belittling him just as his father had. In response, he was becoming submissive and enraged, just like in childhood."
West Los Angeles-based psychologist Marion Solomon was consulted by a real estate firm president whose subordinates seemed ready to mutiny. "He didn't understand why everybody was complaining about him," she said.
"In fact, he felt under appreciated."
The entrepreneur had grown up in a chaotic household where he was forced to take care of his family's needs. "Now he was trying to 'parent' his employees too," Solomon said. "But he was coming across as terribly controlling."
Reenacting childhood family dynamics in the workplace is not unusual, according to many human behavioral behavior experts. "We learn how to connect to people from our mothers, fathers, sisters and brothers," Solomon said. "And we develop certain patterns of relating, based on these early interactions. Unless something comes along that makes us question our behaviors, we tend to replay the dynamics over and over."
"Workplace families," like nuclear families, can be rife with sibling rivalry, mom-vs.-dad power struggles, tyrannical over-parenting and adolescent rebellion. Or they can be Ozzie-and-Harriet havens, where personnel interact peacefully. Stress, agreed Solomon and Levy, is the single most influential factor that may provoke regressive behaviors in employed adults.
Most people are not aware that they're acting out old scripts with new players, Levy said. "It's a universal phenomenon that occurs over and over in the workplace and in other group functions."
How can workers tell when they are regressing into familial patterns?
"When you find yourself in a situation that's evoking more emotion than what's reasonable, that's a giveaway," Solomon said. "Break away and ask yourself, 'What's really going on here?' You may be caught in an old story . . . or if someone else is reacting strongly to you, it could be that you're in their old story."
Solomon recalled a female client -- "this very strong powerhouse attorney" -- who experienced deja vu during an annual review. She had sought counseling after she burst into tears in front of her firm's senior partner. "She had been widely perceived as capable, tough and extremely ambitious," Solomon said. "But when the partner expressed just a little doubt about her and told her to do something better, she began to cry."
It was a scene from her long-ago past. Decades before, the attorney-to-be had been sharply upbraided by her father about her perceived shortcomings. "He'd yell at her until she was in tears," Solomon said. "So it's not a surprise that the child from long ago reemerged when she was criticized by a superior."
Sigmund Freud believed that family relationships influenced individuals' character development. In the late 1940s, British psychiatrist John Bowlby further explored this theory in his exhaustive treatise, "Attachment and Loss," which examined the effects of the early infant-mother bond upon the developing child.
Some children who had difficult relationships with their caretakers experienced similar problems relating to others, according to Bowlby. But mental health professionals today stress that a rough childhood is not an automatic sentence for an unhappy adulthood. "People can transcend disappointing childhood by forging healthy relationships with other caring adults through marriage, friendship and, in some cases, psychotherapy," Levy said.
Nonetheless, some dysfunctional office "family" behavior may be the vestige of long-ingrained relating styles. Solomon illustrates a few of these:
* 'Avoidant' Style
This employee may be a skilled, dedicated worker who is intimidated by others. He prefers to work alone, has few or no friends, and often becomes frustrated when he can't ask for what he needs. He gravitates toward occupations that offer him independence and solitude.
The avoidant-style boss seems unapproachable. He is likely to appoint an assistant to interact with others on his behalf.
"In the avoidant person's childhood," Solomon said, "he may have felt that his caretaker wasn't available, so he stopped trusting people. Now he may feel that it's safer to keep a shell around himself."
* Ambivalent Style
This worker wants to be close to her co-workers and boss but can't. She may first idealize them, then later feel betrayed by them because they've disappointed her in some way. An ambivalent-style employee may obsess about perceived grievances. She is likely to blame others for her difficulties.
The ambivalent-style boss may have a revolving door for incoming and outgoing employees. At first, she may rave about her subordinates' work, but then will notice "glaring shortcomings." Sometimes this boss surrounds herself with non-threatening, less competent staff because she worries that those who are skilled and ambitious may compete for her job.
"This person may have been very close and loving with a parent, but then something happened that caused her to lose trust -- maybe the parent died or there was a divorce," Solomon said. "So she's unable to trust in relationships because she fears she'll be hurt again."
* Abusive Style
The abusive-style employee gets into lots of trouble at work. He argues with co-workers, ignores corporate policy and may be insubordinate.
The abusive-style boss requires very little provocation in order to lose his temper. He may bully subordinates into doing what he wants and punish them for perceived wrongdoings.
"A person who behaves in these ways may have felt abused in childhood," Solomon said. "He could have been told there was something wrong with him, or witnessed or been victim to physical abuse. Some who have this history become victims themselves, and act out passive-aggressively in their workplaces. They may complain, create conflict between co-workers and be covertly abusive to those whom they don't like."
If a business "family's" dynamics are dysfunctional, its "members" should examine their own behaviors to determine if they're reenacting familial conflicts.
"If a person repeats a scenario over and over -- such as progressing so far in a firm, then quitting or getting fired -- it's not a flashing yellow light but a flashing red light to seek help," Levy said. "You may not understand why this is happening, and not fully remember its origin, but you'll be aware that your difficulties keep reoccurring.
"The problem," Levy said, "is that in all but the most enlightened firms, nobody asks for help until there's already a three-alarm fire -- a senior partner gets so abusive that a woman files a sexual harassment suit or a worker is so stressed that he's throwing paperweights through a wall."
If one employee is disrupting interactions in the company, Levy recommends that management encourage the worker to seek professional help. But if a company's "extended family" seems to be relating in a dysfunctional manner, Levy suggests that the people in charge look closely at their "managing/parenting" styles.
"Leadership styles tend to define organizational styles," he said. "So if a manager is paranoid, everyone in the office probably will be looking behind their backs. And if the manager is schizoid and has discomfort with interpersonal relationships, information won't be shared."
Like healthy families, functional corporate families should stress values such as honesty, open communication, security, teamwork and loyalty. "A synergy occurs in the workplace when people are interdependent," Solomon said. "They know people are there for them, and this helps them do their jobs better."
Copyright (c) 1998 Times Mirror Company
Note: May not be reproduced or retransmitted without permission. To talk to our permissions department, call: (800) L
August 1, 2008
The Economist (7/31) reported that experts on Alzheimer's "disagree fundamentally about what drugs aimed at treating" the disease "should be trying to do." The dominant "school of thought...argues that the disease wreaks its damage by causing the formation of the plaques" made up of "sticky bits of a wayward protein called beta-amyloid that gum up the spaces between nerve cells. A rival camp, however, points to the conversion of another protein, tau, into tangles that form inside nerve cells, and suggests this is the real cause of dementia." Lately, three therapies based on the beta-amyloid theory have failed. "In contrast, the tau camp is rising." Researchers from Scotland's University of Aberdeen "describ[ed] the early success of a drug called methylthioninium chloride (MTC) in inhibiting the progression of Alzheimer's." Still, "beta boosters remain unbowed," as drugmakers Lilly, Elan, and Wyeth continue to conduct early- and late-stage trials. But, "[i]n the end, both approaches may be needed. ... As with AIDS, Alzheimer's may...require a cocktail of drugs that do different things if it is to be tackled successfully."
Researchers say hypnosis may slow down impact of dementia. The UPI (8/1) reports that researchers from the U.K.'s University of Liverpool "say hypnosis can slow down the impact of dementia, and improve quality of life for those living with the condition." The team "found that people living with dementia who had received hypnosis therapy showed an improvement in concentration, memory, and socialization."
Small fMRI study indicates APOE4 carriers may have neurological changes long before clinical symptoms of Alzheimer's appear. PsychCentral (7/31, Nauert) reported that "children of Alzheimer's patients who are carriers of a genetic risk factor for Alzheimer's disease" may "have neurological changes that are detectable long before clinical symptoms may appear," according to a study presented on July 29 at the Alzheimer's Association International Conference on Alzheimer's Disease. Using functional magnetic resonance imaging, Shi Jiang Li, Ph.D., of the Medical College of Wisconsin, and colleagues, examined "28 neurologically-normal subjects, between ages 45 and 65. Twelve carried the APOE-4 gene, and 16 did not." Participants in both "groups showed no significant difference in age, educational level, or neuropsychological performances." The researchers found that "functional connectivity" between "the hippocampus and the posterior cingulated cortex, two important brain structures for memory processing," was "approximately 65 percent better" in people who did not carry the APOE-4 gene.
Men who ruminate may be less likely to develop dementia, researchers say. In continuing coverage from yesterday's edition of Headlines, the CBS Evening News (7/31, story 10, 0:25, Couric) reported that "a little workout for your brain may be doing it some good. A new study says men who spend a lot of time over-thinking things cut their risk of dementia by as much as 40 percent."
Jan. 29, 2009—
When someone swallows his or her first antidepressant, it may come as a surprise how the psychiatrist chose that particular pill to prescribe: It's a best guess out of dozens of antidepressants on the market.
Now, a few psychiatrists have set out to bring some order to this educated guessing game. By looking at 117 studies of the 12 most popular antidepressants, researchers ranked the top 12 drugs in the journal The Lancet.
To view their results, click here.
Zoloft and Lexapro came in first for a combination of effectiveness and fewer side effects, followed by Prozac (fluoxetine), Paxil (paroxetine), Cymbalta, and Luvox among others.
"We were surprised because we found a difference among antidepressants," said Dr. Andrea Cipriani of the University of Verona, Italy, and a co-author on the study.
"What we usually said was that all antidepressants worked the same," said Cipriani, who explained that doctors often compare different side effects while choosing an antidepressant.
"So, is there a rationale, is there a hierarchy?" Cipriani asked.
Now, he hopes the ranking will offer more guidance for doctors choosing the first antidepressant for a patient.
Although many psychiatrists are leery of the list, patients who've gone through years of distressing trial and error might find it comforting.
"When I first was diagnosed with depression, they tried all sorts of medication," said Paul Letourneau, 67. "It was terrible."
Letourneau of Worcester, Mass., lived antidepressant-free until 2004, when his parents died, his dog died and he lost his house. Then his life-long mild depression took a serious turn. Drug after drug, Letourneau found the side effects worse than the depression itself.
His rollercoaster emotions landed Letourneau in the hospital on suicide watch four times in two years.
"I was really over-medicated and he [his current doctor] ended up taking me off a lot of the medication and we settled on the two that I take now, and I feel great," Letourneau said. "I've been stable for a year.
"When your medication starts to work and you get involved in a positive thing in life, it does help you tremendously," he said.
Cipriani said issues like Letourneau's motivated him to try and narrow down the best drugs for a patient in need of antidepressants to try the first time. Indeed, Cipriani added, the idea and the method for ranking treatments is not new in medicine.
"This has been used in oncology [cancer treatment] but this is the first time it's been used in psychiatry," he said.
Yet, the ranking did little to sway the thinking of some psychiatrists.
"This rating would not change the way that I prescribe at all," said Dr. Mark I. Levy, a distinguished life fellow of the American Psychiatric Association and an assistant clinical professor of psychiatry at the University of California, San Francisco.
Levy said he largely agrees with the rating because he has found that, on average, Zoloft and Lexapro come with fewer side effects, such as agitation, insomnia or weight gain.
"However, 'on average' doesn't take into account the individual patient who is sitting in front of me in my office," Levy said.
When patients come to Levy, he tries to match their unique emotional profile to the drug with the most compatible side effects, he said.
"For example, an agitation patient with severe insomnia may do best on Paxil, not Zoloft ... a patient with marked symptoms of psychomotor retardation may do best on Prozac. A patient with great concern about their libido may do best starting on Wellbutrin," Levy said.
But, in many cases, the first person to prescribe an antidepressant isn't a psychiatrist, it's a family physician. In that case, Levy might see use for such a ranking.
"It may greatly affect prescribing practices by non-psychiatric physicians, primary-care doctors in particular, who do most of the antidepressant prescribing, so it is good news for the generic makers of sertraline and for Forest Pharmaceuticals, who still have the patent on Lexapro," Levy said.
Other psychiatrists believed the rankings reflected their usual prescription decisions for patients trying antidepressants for the first time, anyway.
"I would be likely to start patients on either Zoloft [because it's cheaper] or Lexapro ...," said Dr. Harold G. Koenig, a professor of psychiatry and behavioral sciences at Duke University Medical Center in Durham, N.C.
"Unfortunately, that is almost none of my patients. By the time they get to me [a psychiatrist], the primary-care doctors have tried Zoloft and other antidepressants, so my patient are not the "new to medication" kind of patients," he said.
Still, Cipriani hopes the rankings will have an impact on depression treatment, even if psychiatrists use other ways to choose an antidepressant for their patients.
He hopes the ranking could be used as a measuring stick for all the new antidepressants coming to the market.
"When developing new drugs for treating depression, usually we have placebo controlled trials ... but before new treatments that are going to be on the market, we need an active comparable list," Cipriani said. "Perhaps the new drugs have to be better than the active standard."
As for Letourneau, he thinks beating depression requires the right drugs, but also a change in thinking.
"When people suffer from mental illness, they very often isolate themselves in life," Letourneau said. "The best thing is to get active. When you sit on your butt doing nothing, all you do is think about your problems.
"I volunteer every day in a place called the Genesis Club in Worcester, Mass," Letourneau said. "I feel great."
This PowerPoint slide presentation illustrates the Best Practices in Psychiatric Medical Care available through the VA system. It is a reflection of the ideas and experience of David Kan MD who oversees substance abuse care at the San Francisco VA Medical Center at Ft. Miley. Dr. Kan is also a board certified forensic psychiatrist and is Assistant Clincial Professor, Department of Psychiatry, Division of Substance Abuse, University of California, San Francisco.
Download a pdf version of this PowerPoint slide presentation:
ASAP_ Best_Practices_in_Veterans_3-14-07.pdf
Amid the debate over how to effectively manage maternal mental-health disorders, a new type of postpartum illness is gaining attention: post-traumatic-stress disorder due to childbirth.
PTSD is most commonly associated with combat veterans and victims of violent crime, but medical experts say it also can be brought on by a very painful or complicated labor and delivery in which a woman believes she or her baby might die. Symptoms can include anxiety, flashbacks and a numbness to daily life. Even as medical advances have resulted in many more lives saved during high-risk births, extreme medical interventions can leave a mother severely stressed -- especially if she feels powerless or mistreated by health providers.
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PTSD is much less common than postpartum depression, which has become better-understood by the public as celebrities like actress Brooke Shields and former CIA agent Valerie Plame have spoken out about their experiences. The National Institute of Mental Health estimates that postpartum depression affects 15% of mothers.
The incidence of childbirth-related PTSD hasn't been widely studied. But a new survey suggests the disorder could be more widespread than previously believed. Of more than 900 U.S. mothers surveyed, 9% screened positive for meeting all of the formal criteria for PTSD set out in the Diagnostic and Statistical Manual of Mental Disorders, or DSM-IV, a handbook of mental-health conditions. And 18% of respondents had some signs of the disorder. The survey, which included an established PTSD screening tool, was conducted by Harris Interactive for Childbirth Connection, a nonprofit maternity-care organization in New York. Separate earlier studies outside the U.S. had estimated the prevalence of childbirth-related PTSD at between 1.5% and 5.9%.
Shari Lusskin, director of reproductive psychiatry at New York University Medical Center, who wasn't involved in the survey, cautions that many aspects of PTSD still aren't understood, especially as it may apply to childbirth. "We don't want to overmedicalize a normal part of human development," she says. "Just because you had a traumatic birth, doesn't mean you'll get PTSD."
Still, the survey results are likely to add fuel to a debate about how to better identify and treat maternal mood disorders and whether widespread, systematic screening is warranted. New Jersey in 2006 passed a law that requires every new mother be screened for risk of depression prior to discharge from a hospital and again at her first post-birth doctor's visit, although women can decline the screening.
'Drugging of Mothers'
Other states, including Illinois and Texas, have passed laws to promote greater educational efforts about postpartum mental illness. And now the first federal law on postpartum mood disorders, which would fund research, treatment and public awareness, is working its way through Congress. Opponents say the law would lead to more "drugging of mothers."
Gena Zaks, of Baltimore, became suicidal with violent nightmares after the premature, emergency birth of twins in 2004, one of whom faced life-threatening respiratory problems. Ms. Zaks was diagnosed with several postpartum conditions, including PTSD and depression. "I was crying nonstop for six days in the hospital," says the 34-year-old mother. "Nobody said anything to me about depression."
Monica Bristow, a clinical psychologist in Redmond, Wash., who counsels mothers with PTSD, says one key to treatment is sharing the story of the trauma with a professional who can understand and validate the experience. Medication can be used to alleviate symptoms like insomnia and anxiety, she says, but nondrug techniques, like relaxation or gradual re-exposure to the trauma through memory in a constructive setting, can be more long-lasting and effective.
A history of sexual abuse or other trauma can also put women at greater risk for PTSD from childbirth, says counselor and childbirth educator Penny Simkin, of Seattle. She says discussing such information with a health professional before giving birth can help reduce the risk.
Maternity-care providers say the increase in the number of medical obstetric procedures in labor and delivery, like Caesarean sections and premature births, could be contributing to PTSD. These providers also note that childbirth-related PTSD became more of a focus of study only after 1995, when the American Psychiatric Association broadened criteria for the disorder.
PTSD, whether brought on by childbirth, natural disaster or some other trauma, can happen immediately, or months after the event. It may occur when someone has experienced an event that involves actual or threatened death or serious injury, and responds with intense fear, helplessness or horror.
Cheryl Beck, a professor at the University of Connecticut School of Nursing who researches birth trauma and was an adviser on the Childbirth Connection survey, says the mothers who reported signs of PTSD in the survey appeared to have a higher rate of medical interventions and describe feeling powerless in a threatening environment.
The survey also found that African-American women, those without private health insurance and women with unplanned pregnancies were more likely to have PTSD symptoms. The survey, called New Mothers Speak Out, available at childbirthconnection.org, also covered a range of other post-birth issues. Executive Director Maureen Corry noted the majority of mothers with PTSD and depression symptoms didn't seek professional help.
In 2003, Liv Lane spent 29 hours in labor. After a painful, vacuum-assisted delivery, she gave birth to a son whose lung had collapsed and whose heart had moved to the right side of his body, a condition known as pneumothorax. Ms. Lane, 33, of Shorewood, Minn., says the baby was whisked away and she was left alone, scared and unsure if he would survive. She says the hospital staff also ignored her calls that pain medication wasn't working. The baby, Ryder, eventually recovered.
At her eight-week postpartum checkup, Ms. Lane told the nurse practitioner she'd been sobbing every day and "fantasizing about driving off a bridge." She says the nurse suggested reading some parenting magazines. "I felt ashamed that I'd even asked for support," Ms. Lane says.
Flashbacks
A therapist later diagnosed Ms. Lane with PTSD. She began a year and a half of treatment that included psychotherapy. Ms. Lane says she then felt ready for a second baby. But when she got pregnant, her flashbacks, anxiety attacks and panic about her son's safety resurfaced.
She took measures to make this birth different. In consultation with her doctors, Ms. Lane switched hospitals and opted for a scheduled C-section, believing that a vaginal birth might re-trigger the trauma. Her doctor prescribed Zoloft at the end of her pregnancy to alleviate anxiety. She also made sure that her husband or another support person would be with her through labor. The experience was "wonderful," she says. Baby Truman is now 3 months old.
Bill in Congress
The proposed federal legislation on postpartum mood disorders, called the Melanie Blocker Stokes Mothers Act, named after a woman who jumped to her death from a Chicago hotel with postpartum psychosis, was approved by the House of Representatives in October. Last week, the proposal got caught up in a package of bills that failed to reach a final vote on the Senate floor. Democratic supporters say the measure, which doesn't include mandatory screening but does authorize a study about its benefits, could be back later this fall.
Amy Philo, of Frisco, Texas, is using her Web site, uniteforlife.org to help galvanize opposition to the measure, which she believes is designed to enrich pharmaceutical companies. "This bill will result in an increased number of women being referred and treated with drugs," Ms. Philo says. Ms. Philo, who calls herself a "Zoloft survivor" because of the adverse reaction she experienced after being prescribed the drug following a postpartum panic attack, believes antidepressants are unsafe and sees mental-health screening as an invasion of privacy.
Susan Stone, a clinical social worker in New Jersey and past president of Postpartum Support International, a nonprofit proponent of the Mothers Act, says the law's intent is to provide effective care, whether it's talk therapy, medications or some combination, to suffering mothers. "Every woman needs to be assessed individually," she says.
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Write to Rachel Zimmerman at rachel.zimmerman@wsj.com
New research points to significant modifications of an important gene that suggests depression may play a role in changing the very makeup of the brain.
Researchers at the Robarts Research Institute at The University of Western Ontario compared the brains of people who committed suicide with those who died suddenly of natural causes, such as a heart attack. They found that the genome in suicidal, depressed people was chemically modified by a process that is normally involved in regulating the essential characteristics of all cells in the body.
The brain tissue was collected during autopsies and may eventually help explain an underlying cause of major depression and suicide.
This is apparently the first study to show that proteins that modify DNA directly are more highly expressed in the brains of people who commit suicide. These proteins are involved in chemically modifying DNA in a process called epigenomic regulation.
Michael O. Poulter, the lead researcher explains, “We have about 40,000 genes in every cell and the main reason a brain cell is a brain cell is because only a small fraction of the genes are turned on. The remaining genes that are not expressed are shut down by an epigenetic process called DNA methylation.”
The rate of methylation in the suicide brains was found to be much greater than that of the control group. Importantly, one of the genes they studied was shown to be heavily chemically modified and its expression was reduced. This particular gene plays a major role in regulating brain activity. “Interestingly, the nature of this chemical modification is long term and hard to reverse, and this fits with depression,” says Poulter.
“The whole idea that the genome is so malleable in the brain is surprising. Finding that epigenetic mechanisms continue to influence gene expression is pretty unusual,” says Poulter.
“These observations open an entirely new avenue of research and potential therapeutic interventions.”
The research was published in the journal Biological Psychiatry.
Source: The University of Western Ontario
The following are the diagnostic criteria for Alcohol Dependence and Abuse, asscording to the Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revised (DSM-IVTR), American Psychiatric Association, Washington, D.C. 2000.
303.90 Alcohol Dependence
Refer, in addition, to the general text and criteria for Substance Dependence. Physiological dependence on alcohol is indicated by evidence of tolerance or symptoms of Withdrawal. Especially if associated with a history of withdrawal, physiological dependence is an indication of a more severe clinical course overall (i.e., earlier onset, higher levels of intake, more alcohol-related problems).
Alcohol Withdrawal is characterized by withdrawal symptoms that develop 4–12 hours or so after the reduction of intake following prolonged, heavy, alcohol ingestion. Because Withdrawal from alcohol can be unpleasant and intense, individuals with Alcohol Dependence may continue to consume alcohol, despite adverse consequences, often to avoid or to relieve the symptoms of withdrawal. Some withdrawal symptoms (e.g., sleep problems) can persist at lower intensities for months. A substantial minority of individuals who have Alcohol Dependence never experience clinically relevant levels of Alcohol Withdrawal, and only about 5% of individuals with Alcohol Dependence ever experience severe complications of withdrawal (e.g., delirium, grand mal seizures). Once a pattern of compulsive use develops, individuals with
Dependence may devote substantial periods of time to obtaining and consuming
alcoholic beverages. These individuals often continue to use alcohol despite evidence of adverse psychological or physical consequences (e.g., depression, blackouts, liver disease, or other sequelae).
Specifiers
The following specifiers may be applied to a diagnosis of Alcohol Dependence
With Physiological Dependence
Without Physiological Dependence
Early Full Remission
Early Partial Remission
Sustained Full Remission
Sustained Partial Remission
In a Controlled Environment
305.00 Alcohol Abuse
Refer, in addition, to the text and criteria for Substance Abuse.
Alcohol Abuse requires fewer symptoms and, thus, may be less severe than
Dependence and is only diagnosed once the absence of Dependence has been
established. School and job performance may suffer either from the aftereffects of drinking or from actual intoxication on the job or at school; child care or household responsibilities may be neglected; and alcohol-related absences may occur from school or job. The person may use alcohol in physically hazardous circumstances (e.g., driving an automobile or operating machinery while intoxicated). Legal difficulties may arise because of alcohol use (e.g., arrests for intoxicated behavior or for driving under the influence). Finally, individuals with Alcohol Abuse may continue to consume alcohol despite the knowledge that continued consumption poses significant social or interpersonal problems for them (e.g., violent arguments with spouse while intoxicated, child abuse). When these problems are accompanied by evidence of tolerance, withdrawal, or compulsive behavior related to alcohol use, a diagnosis of Alcohol Dependence, rather than Alcohol Abuse, should be considered. However, since some
symptoms of tolerance, withdrawal, or compulsive use can occur in individuals with Abuse but not Dependence, it is important to determine whether the full criteria for Dependence are met.
Anlee Kuo, JD, MD, a forensic child and adolescent psychiatrist, co-authored a textbook chapter on Divorce and Child Custody in Lewis's Child and Adolescent Psychiatry: A Comprehensive Textbook, Fourth Edition, Edited by Andres Martin and Fred Volkmar, Lippincott Williams and WIlkins, 2007, pp1006-1013. (Co-author: John Sikorski, M.D.). The chapter includes the following sections and topics:
To download a copy of Dr. Kuo's chapter on Divorce and Child Custody, click here:
By Richard A. Ratner, M.D.
Psychiatric Times 
December 2005 Vol. XXIII Issue 14
Any discussion of contemporary child and adolescent forensic psychiatry will eventually encompass considerations of the ethical underpinnings of this work. Ethical issues arise inevitably in clinical work with children and adolescents and are even more likely to surface in forensic settings.Download Ethics of Forensic Psychiatry with children & adolescents
The following is the text of the parts of Rule 26, Federal Rules of Civil Procedure, which deal directly with expert discovery, in civil actions:
Rule 26. General Provisions Governing Discovery; Duty of Disclosure
(a) Required Disclosures; Methods to Discover Additional Matter.
* * *
(2) Disclosure of Expert Testimony.
(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.
(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
(C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by the other party. The parties shall supplement these disclosures when required under subdivision (e)(1).
* * *
(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
* * *
(4) Trial Preparation: Experts.
(A) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided.
(B) A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this subdivision; and (ii) with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
* * *
[End of Expert Discovery Provisions of FRCP 26]
In California Psychiatric Experts Are Under the Same Privilege/Confidentiality Obligations as are Treating Psychiatrists
California Appellate Decision Regarding Privilege/Confidentiality Duties of Non-Treating, Psychiatric Experts: see PETTUS V. COLE, 57 Cal.Rptr.2d 46 (1996)
Court of Appeal, First District, Division 2, California
from the Headnotes:
"Two psychiatrists violated the Confidentiality of Medical Information Act(Civ. Code, S 56 et seq.) when they disclosed the details of their evaluations of an employee who sought stress-related disability leave to his supervisors at work without his written authorization. Civ. Code, S 56.10, subd. (c)(8)(B), limits permissible disclosure to a description of any "functional limitations" that may have entitled the employee to leave work, and also explicitly prohibits disclosure of "medical cause." These psychiatrists described in detail the employee's hostility toward the company and a coworker, his drinking habits, and other details about his personal life, disclosures which went well beyond a description of "functional limitations."
"(3) Employer and Employee S 7--Contracts of Employment--Medical Care-- Unauthorized Disclosure of Medical Information to Patient's Employer-- Employee's "Patient" Status.
An employee who was evaluated by two psychiatrists in connection with his request for stress-related disability leave was a "patient" within the meaning of the Confidentiality of Medical Information Act (Civ. Code, S 56 et seq.) and thus was protected by the act's provisions."
Anlee Kuo, JD, MD, a forensic child and adolescent psychiatrist co-authored a chapter on forensic child and adolescent psychiatry in the Textbook of Child and Adolescent Psychiatry, Third Edition, American Psychiatric Publishing, Washington, D.C., 2004. The chapter includes the following sections and topics:
To download a copy of Dr. Kuo's chapter, click here:
Download chapter_on_forensic_psychiatry_in_Textbook_of_Child_& Adolescent_Psychiatry.pdf
American Academy of Psychiatry & Law selected Landmark Cases which it thinks especially important and significant for forensic psychiatry.
No. 3968
Court of Appeals of District of Columbia
293 F. 1013; 1923 U.S. App. LEXIS 1712; 54 App. D.C. 46; 34
A.L.R. 145
December 3, 1923, Decided
PRIOR HISTORY: [**1]
Appeal from the Supreme Court of the District of Columbia.
CORE TERMS: blood pressure, deception, systolic, conscious, discovery, scientific principle, expert testimony, scientific, experiments, admissible, falsehood, admitting, skilled, deduced
OPINION BY: VAN ORSDEL
OPINION: [*1013] Before SMYTH, Chief Justice, VAN ORSDEL, Associate Justice, and MARTIN, Presiding Judge of the United States Court of Customs Appeals.
VAN ORSDEL, Associate Justice. Appellant, defendant below, was convicted of the crime of murder in the second degree, and from the judgment prosecutes this appeal.
A single assignment of error is presented for our consideration. In the course of the trial counsel for defendant offered an expert witness to testify to the result of a deception test made upon defendant. The test is described as the systolic blood pressure deception test. It is asserted that blood pressure is influenced by change in the emotions of the witness, and that the systolic blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the autonomic nervous system. Scientific experiments, it is claimed, have demonstrated that fear, rage, and pain always produce a rise of systolic blood pressure, and that conscious deception or falsehood, concealment of facts, or guilt of crime, accompanied by fear of detection when the person is under examination, [**2] raises the systolic blood pressure in a curve, which corresponds exactly to the struggle going on in the subject's mind, between fear and attempted control of that fear, as the examination [*1014] touches the vital points in respect of which he is attempting to deceive the examiner.
In other words, the theory seems to be that truth is spontaneous, and comes without conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure. The rise thus produced is easily detected and distinguished from the rise produced by mere fear of the examination itself. In the former instance, the pressure rises higher than in the latter, and is more pronounced as the examination proceeds, while in the latter case, if the subject is telling the truth, the pressure registers highest at the beginning of the examination, and gradually diminishes as the examination proceeds.
Prior to the trial defendant was subjected to this deception test, and counsel offered the scientist who conducted the test as an expert to testify to the results obtained. The offer was objected to by counsel for the government, and the court sustained the objection. [**3] Counsel for defendant then offered to have the proffered witness conduct a test in the presence of the jury. This also was denied.
Counsel for defendant, in their able presentation of the novel question involved, correctly state in their brief that no cases directly in point have been found. The broad ground, however, upon which they plant their case, is succinctly stated in their brief as follows:
"The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence."
Numerous cases are cited in support of this rule. Just when a scientific [**4] principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.
The judgment is affirmed.
The following is the appellate opinion in Frye v. United States which was affirmed by the Court of Appeals, District of Columbia in 1923. Until the Daubert v. Merrill Dow US Supreme Court decision in 1993 and the Daubert standard for expert testimony replaced the Kelly/Frye standard in Federal matters (Frye still remains the standard for expert testimony in many states) Frye was the standard in state and federal courts for 70 years.
Genetic Variants in Depressed People Raise Suicide Risk
Certain mutations increase the likelihood nearly fivefold, study finds
By Amanda Gardner
HealthDay Reporter
MONDAY, Feb. 1 (HealthDay News) -- Researchers have identified five gene variants that raise the risk for suicide attempts in people suffering from depression.
For now, the research provides insight into what goes awry in people who have suicidal tendencies. In the future, researchers hope the findings will translate into effective drug treatments.
"The goal of this kind of research is to find mechanistic targets for new therapies," explained study author Martin A. Kohli, a postdoctoral fellow at the John P. Hussman Institute for Human Genomics at the University of Miami Miller School of Medicine. "It's a hint towards the search for new medications. We think we've discovered a new target for such kind of medication."
Kohli conducted the research while at the Max Planck Institute of Psychiatry in Munich, Germany. The study, published online Feb. 1, will appear in the April print issue of the Archives of General Psychiatry.
According to background information in the paper, 10 million to 20 million suicide attempts occur annually around the world. One million complete the act.
Previous research has indicated that reduced neurotrophic activity may be involved in major depressive disorder and suicidal behavior. Neurotrophins are proteins that keep neurons -- specialized cells in the nervous system -- alive and active.
"There is a lot of data from a lot of different sources that say that something is wrong with the neurotrophin system in people that develop [a tendency toward] suicide," confirmed Keith Young, vice chair of research psychiatry and behavioral science at Texas A&M Health Science Center College of Medicine, in Temple.
The researchers zeroed in on two genes because postmortem brain studies had shown reduced levels of these genes in suicide victims.
For the first phase of the study, the researchers collected blood samples from 394 depressed patients, 113 of whom had attempted suicide, then compared them with 366 healthy individuals.
These findings were then replicated in a group of 744 German patients with major depressive disorder, 152 of whom had tried suicide, and 921 black patients without a psychiatric diagnosis, 119 of whom had attempted suicide.
Five variants were more common in patients who had attempted suicide, the researchers found. People with three of the most significant mutations had almost a fivefold increased risk of a suicide attempt, they discovered.
"We can say that people who have this certain genotype have an elevated risk to try to commit suicide when they are depressed," Kohli said. The dysfunctional neurotrophic signaling was specific to suicide, not to depression, the authors noted.
Although the study authors did not look specifically at the function of these genes, previous research indicates that they "seem to be very important for neural biology," Kohli said. "They keep neurons alive or promote growth of neurons or remodulate the connectivity between them."
One expert noted that any insight into what raises the risk for suicide is welcomed.
"Suicide is a pretty intransigent problem. It's a very difficult, complex behavior that, despite many years of study, we have to acknowledge that suicide rates haven't changed a great deal," said Dr. Yeates Conwell, co-director of the Center for the Study and Prevention of Suicide at the University of Rochester Medical Center in New York. "We have a long way to go to understand the mechanisms of suicide, so this kind of work is very hopeful and findings like this that identify some significant associations between genetic patterns and a lifetime history of suicidal behavior are certainly intriguing and potentially important, [but] they have a long way to go to translate to suicide preventive interventions."
That said, Conwell added, the best way to look at suicide is in the interactions between genes and environment, and the variability in suicidality explained by genetic profiles is relatively small.
More information
Visit the American Foundation for Suicide Prevention for more on this topic.
SOURCES: Martin A. Kohli, Ph.D., postdoctoral fellow, John P. Hussman Institute for Human Genomics, University of Miami Miller School of Medicine; Keith Young, Ph.D., associate professor and vice chair, research psychiatry and behavioral science, Texas A&M Health Science Center College of Medicine, Temple, and neuroimaging and genetics core leader, VA Center of Excellence for Research on Returning War Veterans, Central Texas Veterans Health Care System; Yeates Conwell, M.D., professor, psychiatry, associate chair for academic affairs, and co-director, Center for the Study and Prevention of Suicide, University of Rochester Medical Center, New York; Feb. 1, 2010, Archives of General Psychiatry, online
Copyright © 2010 HealthDay. All rights reserved.
The medical malpractice insurer has recently issued an "Alert" revisiting the concept of "informed consent" as it is currently viewed by the courts. Download MIEC's Alert #17 Informed Consent Revisited here:
The following is a list of topics about which fpamed experts can offer educational MCLE presentations:
THIS BLOG APPEARED ON jANUARY 4, 2209 ON http://yourlegalwayout.blogspot.com/2009/01/medical-expert-witness-as-evidence.html iT IS REPRODUCED HERE FOR YOUR INTEREST. This blog is all about interesting decisions of tribunals all around the world whether fictional or real. I would like to emphasize the arguments and defenses that were use in order to guide the bench and the bar for future references. Sunday, January 4, 2009 Medical Expert Witness as Evidence Evidence during a criminal trial can help exonerate a defendant or send him away for life. In civil litigation, it can help a person who had been injured to obtain money for medical bills. Conversely, the medical expert can also aid a person who is being unfairly targeted by greedy plaintiffs and reveal them as charlatans. How do they do this? By giving detailed and documented testimony that can lay a foundation that leads to acquittal or unequivocal guilt. In some cases, strong reasonable doubt can be created on the basis of this testimony alone. Since a medical expert witness can be an essential ally for either the prosecution or the defense, the selection of this expert is a crucial decision. So, what should an attorney or defendant in a criminal trial look for when obtaining a medical expert for their court case? Years or verifiable experience One of the more important traits of a medical or dental expert witness is their experience in the field. Experience with giving trial testimony is important as well, but may not be necessary if the person is an emerging talent in their particular profession. Experience is also important because it often indicates that the person is extremely knowledgeable about the topic at hand. A brilliant reputation in the field Reputation can be just as important as experience and in fact their relevance may be about equal. A medical examiner or dental expert witness with years in the field who is ill regarded or known as a crack pot will not help your case, in fact, it could seriously hurt it. The best medical expert witness is one that is the go to person when it comes to qualified medical opinions. These people will be the forerunners of their chosen profession and most likely have substantial backing for their claims. They will be the kind of individuals articles are written about who are asked to speak at seminars and conferences due to their grasp of topic. Why is that relevant? Jurors are usually more confident in the opinions of doctors and pathologists who are well respected by others in their area of expertise. This fact will usually mean that the person knows their stuff and will more often than not correctly interpret medical data, lessening the chance of error. This in turn makes jurors feel more assured about their final verdict. State of the art assessment technology and techniques A quality medical expert is well versed on the technological advances in the medical arena. For example a dental expert witness called a forensic odontologist would have access to hands on tools as well as computer software that helps back up their analysis. This combination makes jurors feel a bit more secure when looking over the evidence. Ability to explain complex procedures in layman's terms The ability of a medical expert witness or a dental expert witness to talk in simple terms cannot be underestimated. One high profile case that was later appealed and won was originally lost due to the inability of the medical expert witness to connect with jurors. An authority in medical sciences who can't engage jurors will lose them. This will spell nothing but trouble for the lawyer who utilizes such a person. A medical professional is an undeniable asset in the court of law. Picking wisely can make or break your case. Do your homework prior to obtaining this person's in person testimony. If the expert provides a statement, be sure to show it to a few more experts in the field for a second opinion. Such diligence will potentially impress the people who have the come up with a verdict in your case, so in the end, the hard work will pay for itself.
This PowerPoint slide show was created by David Y. Kan, MD to accompany a talk he gave to a Substance Abuse Psychiatric Residents' Seminar at the Ft. Miley VA Medical Center in San Francisco in 2007.
Dr. Kan is also a board certified forensic psychiatrist and is Assistant Clincial Professor, Department of Psychiatry, Division of Substance Abuse, University of California, San Francisco.
Download a pdf version of this PowerPoint slide presentation:
Download Was_It_Meth_or_Madness?_SA_Resident_Seminar_2007.pdf
SEATTLE -- Methamphetamine-induced psychosis is a challenging condition from both a medical and legal perspective, according to a panel of addiction specialists at the annual meeting of the American Academy of Psychiatry and the Law.
Its is a potent, highly addictive drug that is relatively cheap and easy to make, but "unfortunately, it is also very neurotoxic," said Dr. Mace Beckson, a forensic psychiatrist at the University of California, Los Angeles.
In addition, users of the drug often run into trouble with the law because some of its adverse effects, such as cognitive impairment, paranoia, and psychosis, may be associated with violent behavior. Originally, the drug and the problems associated with it were confined to the western United States and Hawaii, but they have now "spread eastward," he said.
Dr. David Y. Kan, a psychiatrist and substance abuse specialist at the University of California, San Francisco, said that acute methamphetamine psychosis occurs mainly with the use of high doses and that people may become psychotic after just one such incident.
Several risk factors for methamphetamine psychosis have been identified and include preexisting personality disorder (especially antisocial personality disorder), intravenous injection or smoking of the drug, abuse of other substances, previous psychosis, and brain injury.
"The psychosis of methamphetamine tends to be predominantly a positive-symptom psychosis," Dr. Kan noted. Negative symptoms such as alogia, abulia, and the inability to communicate or form thoughts are relatively rare, which helps differentiate it from schizophrenia. "If a person can tell a joke or can laugh at a joke, then they are probably methamphetamine psychotic" and not schizophrenic.
The psychosis typically begins 5-90 hours after starting use of methamphetamine. Users experience sudden hallucinations that are more often visual than auditory and generally in the presence of a clear sensorium. Psychotic users also have paranoid, reality-based delusions and ideas of reference, and are restless and agitated.
"Often, this is one of the few intoxications that includes management from the medical standpoint" with the administration of antipsychotics for the agitation, Dr. Kan noted.
When the psychotic symptoms persist or recur after drug use has stopped, the diagnosis shifts to chronic methamphetamine psychosis. "We make this call all the time, although it's not technically recognized by the DSM-IV," he commented.
Individuals with chronic psychosis often have acute, flashback-type episodes in response to psychosocial stressors, and may experience psychotic symptoms even if they take relatively low doses of methamphetamine. During the flashbacks, plasma levels of norepinephrine and lesser metabolites of dopamine are elevated, and that surge in norepinephrine resembles that in post-traumatic stress disorder, Dr. Kan said. "There may be a different mechanism at play [rather than] traditional dopaminergic models of psychosis."
The association of methamphetamine use with violence is highly controversial because most data come from the criminal justice system.
In the psychiatric evaluation of methamphetamine users, the occurrence of psychosis and violence is highly variable, depending on tolerance and dose. "Clinical history [and specific circumstances are] your best guide. Toxicology, especially blood levels [of the drug], is not terribly well correlated with psychosis," Dr. Kan noted.
Forensic psychiatrists must consider a number of questions that may affect the legal defense of individuals who have committed crimes in association with methamphetamine use, according to Dr. Joseph R. Simpson, a psychiatrist with the University of Southern California, Los Angeles.
One question from a legal standpoint is whether or not the person is competent to stand trial. Doubt about competence may be raised if defendants have persisting cognitive dysfunction or psychosis with delusions that impairs their ability to understand the proceedings or assist in their defense, he said.
A second question is whether the person was able to form the specific intent needed to carry out the crime. That becomes relevant for crimes that require action with a specific purpose in mind, such as burglary.
The third question relates to whether the person had diminished capacity at the time of the offense, which would signify a reduced ability to premeditate and plan the crime because of the drug use. "There are a fair number of jurisdictions in which this [defense] is still allowed," he noted, "but typically, it's used for very serious crimes, such as first-degree murder," and the aim is usually to get a reduced sentence instead of an acquittal.
A final question is whether the person is not guilty by reason of insanity. An insanity plea is usually not an option in the case of acute drug intoxication, Dr. Simpson said.
However, it might be an option in the case of chronic drug-related psychosis under the legal concept of settled insanity, which requires evidence that substance use caused a long-lasting psychosis that has persisted beyond the period of acute intoxication.
The use of settled insanity pleas has been controversial. "Some people say that if you accept settled insanity, then you are going to reward more severe drug users," and lighter users, who do not develop chronic psychosis, will get harsher sentences, he said.
Further complicating the issue is the uncertainty regarding the role of the drug use at that point.
"If someone is psychotic for years after they have stopped using drugs, [how do we know or not if they were] going to be schizophrenic anyway?" Dr. Simpson asked. "Can you ever tease that apart, and does it matter?"
The availability of the settled insanity defense varies by jurisdiction, and the wording of documents such as statutes and jury instructions suggests it remains a gray area in the legal world, he said. "It's a very complicated issue."
The panelists reported that they had no conflicts of interest in association with their presentations.
This is a brief discussion of the complications that can arise when a treating clinician agrees to become the "independent expert" in his patient's litigation.
By Jia-Rui Chong
Los Angeles Times Staff Writer
August 5, 2008
SAN DIEGO — By the time the sun began to rise one recent Friday over his Mira Mesa neighborhood, Mitch Hood had been up for about 18 hours.
He punched a caffeine tablet out of a blister pack and washed it down with two cans of Red Bull. He finished it off with a gulp of Pepsi.
He figured this would keep him awake four more hours. Then, he jumped back into his video game.
Hood, 25, spent two tours with the Marines in Iraq. Now, like many other veterans and millions of civilians, he faces a new enemy: sleep.
"I'm afraid I'm going to have nightmares and I'm going to get stuck there," he said. "I try with all my strength not to sleep."
When he eventually crashes and sleep overtakes him, Hood relives combat, or sometimes his mind creates new horror-filled scenarios. Once, he punched his fiancee, Natalya Gibson, while having a nightmare. She insisted it didn't hurt, but Hood has not stopped apologizing.
Sleep and wakefulness issues were the most common health problems described by recently returned soldiers, researchers at Walter Reed Army Medical Center found in a study published last year.
About 36% of Army troops who have been back from Iraq for a year said they struggled nearly every day with feeling tired. About 34% said they had difficulty falling asleep, staying asleep or sleeping too much nearly every day. About one-third of the total U.S. adult population report sleep problems, but studies have shown that such problems are much more common in combat veterans than in other young adults, said Steve Woodward, a sleep expert at the Department of Veterans Affairs center on post-traumatic stress disorder. About 70% of veterans being treated for the disorder have sleep problems, he said.
Sleep is a vulnerable state, Woodward said. "When animals are exposed to a severe threat . . . the basic adaptation is to wake up more frequently," he said.
Bill Rider, a 63-year-old Vietnam veteran, knows the signs. He's seen Hood and others like him in group meetings he helps organize in Oceanside for combat veterans of different generations.
Some veterans have told him of how they long for sleep, bingeing on alcohol for sedation. Others, like Hood, fear it. Rider has seen veterans stay up for 72 hours and work themselves into a delirious, manic state.
"I gave up my tranquillity, as many of the other warriors did, so the rest of America can have theirs," he said.
Thinking about Hood, he said, "That was me 30 years ago."
During his tours in Iraq in 2003 and 2004, Hood dug trenches and hauled 100-pound cables as a field wireman in Marine Wing Communications Squadron 38 out of Marine Corps Air Station Miramar. The pressure was always on during those assignments, he said, because the communication lines were essential for airstrikes and medical evacuations.
There were days when "I'd be lucky to get four hours of sleep," said Hood, who still wears his dog tags and has a Grim Reaper tattoo. "It got to the point where we had to choose between bathing ourselves and sleep, between sleeping or eating."
During his first tour, he was worried about a chemical attack. On the second, he was always scanning for roadside bombs.
In 2004, Hood returned to San Diego from Iraq and left the Marines two years later with an honorable discharge. He is now an online student, studying computer science. A few months ago, he found out he had a herniated spinal disc and sciatica, forcing him to use a cane. Hood thinks the pain probably makes his sleep less restful, but the main problems are the terrifying dreams that begin almost immediately after he closes his eyes.
A doctor has prescribed a low-dose antidepressant called trazodone, which has a sedative effect. "I use it here and there," Hood said. But "it basically sticks me in an eight-hour nightmare fest, so that's not a solution for me."
Doctors know it can also be risky to prescribe sleeping pills to veterans with post-traumatic stress disorder because up to 60% of them struggle with substance abuse, said Dr. Tasha Souter, medical director of the Trauma Recovery Program at the VA Palo Alto Health Care System. Some doctors have had some good results prescribing Ambien, which is less addictive, and the hypertension drug prazosin, which can reduce nightmares.
But there is no panacea. "Sleep problems are one of the most difficult symptoms of PTSD to treat," Souter said. "It's not uncommon for veteran patients to have 20, 30 years of difficulty sleeping."
When Hood first came back to Miramar, he didn't notice his sleep problems.
"We'd party until 2 a.m., stay up until 4 and then get up for reveille at 5:30," he said. Once they started cutting back on the partying, "we were in the barracks staring at the wall because we couldn't sleep."
In time, he tried to avoid sleep, like this recent Friday. This period of wakefulness began the day before, when he rose at noon Thursday after about three hours of bad sleep. He dreamed he was in the middle of a chemical attack and awoke wondering why he wasn't wearing his chemical suit. It took a few minutes of looking around the bedroom and hearing Gibson's voice to bring him back.
The dream was veined with the fear he felt during one incident in Iraq. Sirens went off indicating a possible chemical attack. Hood couldn't make it back to the bunker, so he lay face-down in a gutter. He couldn't get his gas mask to seal. Twenty minutes later, the all-clear siren finally sounded.
He was trying to banish the chemical attack nightmare from his thoughts when he showed up at the 7 p.m. weekly meeting of the American Combat Veterans of War in Oceanside. As members of the group went around the conference table describing various work and medical issues, Rider, the Vietnam veteran, looked over at Hood. "You look great, by the way," Rider said. "Do you feel better?"
Hood wondered whether it was his new haircut. No, he told Rider. "No, not really."
Ray Metcalf, a 74-year-old Korean War veteran with a Santa Claus beard, approached Hood and another young Iraq War veteran during a smoke break and asked, "Do you have bad dreams?"
As the young men nodded, Metcalf recounted a nightmare he had a few weeks ago about getting shot down in a helicopter in Korea. Metcalf told them he read in a booklet on post-traumatic stress disorder that it's best to get out of bed if you can't sleep. He recommended going into the living room to watch a movie.
Hood listened intently.
"Sleep deprivation . . . is an ongoing discussion," said Rider, who helped found the combat group in 2001.
Rider, who wears a Vietnam campaign medal and a Buddha on a chain around his neck to symbolize war and peace, has seen doctors to deal with his combat trauma and sleep issues. He has prescriptions for anti-anxiety medications and sleeping pills.
But still, even 40 years after Vietnam, he usually wakes up every two or three hours. Sometimes he thinks he hears a noise outside his house in a well-to-do San Diego suburb. Sometimes he has a nightmare. The nightmares tend to center on April 16, 1968, when he was ordered to take Hill 689 outside Khe Sanh.
"The repeating sequence is always about particular people killed in front of me, in my squad," he said. "It's just as troubling in the dream as when it happened in reality."
When he wakes up, he has to go around the house, checking the windows. Sometimes he goes out to the front gate to make sure it's locked.
"I understand it's not a rational thing to do," Rider said. "Nonetheless the imprinting just becomes too much. You have to get up and take a look."
But Rider says his sleep has improved in recent years because working with other veterans has helped his mind grapple with the trauma. His dreams were once lifelike, but now "some quirky thing" appears in his dreams, such as an out-of-place character, which shows him the dream is not real.
"I think there might be some tranquillity waiting for me," he said.
Rider knows that Hood's strategy isn't going to work. Avoiding sleep makes the nightmares more horrific, thinking more difficult and anger more difficult to control. "If you avoid sleep, it only gets worse," Rider said quietly.
Hood left the veterans meeting about 9 p.m. and drove back to the house he rents with Gibson. He took a shower and then they went to rent some DVDs. They spent a few hours talking about an argument they had earlier in the day about the care he was receiving from the Department of Veterans Affairs.
About 1:30 a.m., a migraine that had been building finally forced Hood to lie down with a pillow over his head. He didn't think he fell asleep, but Gibson heard him mumbling incoherently. He was up again after 10 minutes.
By now the other houses in the neighborhood were dark, but light seeped through the closed blinds in Hood and Gibson's living room. He spoke softly and more slowly than he had at the veterans meeting, but he was still fairly alert.
About 5 a.m. Hood and Gibson looked over their DVD choices. Hood was hoping he could tire out his mind so he would not have nightmares when he finally crashed. They settled on the science fiction movie "Jumper."
"Was there something I wanted to get?" he said suddenly.
"Medicine?" Gibson offered.
"Yeah, but that's not what it was," Hood said, his face screwed up in frustration.
She clicked the remote control, and the 55-inch flat-screen television filled with images of World War II as one of the previews came on. The men were in uniform, carrying guns, heading inexorably to some wintry battle.
Hood covered his face with both hands. Gibson hit fast forward on the remote.
He peeled his hands away from his face a few minutes later as the opening scenes of "Jumper" began. He picked at a slice of chocolate cake on his lap and began playing a computer game in which he tried to take over spaceships.
About 5:30 a.m., Hood was starting to fade. When he took a break from the game to focus on the movie, his eyelids closed for nearly a minute. He quickly blinked them open. A few minutes later, his eyelids dropped again.
About 6 a.m., he took a smoke break and walked back into the living room triumphantly. "This is what I was looking for: caffeine tablets!"
He chugged the tablet and Red Bulls.
Gibson was struggling to keep up with Hood. He stroked her hair and told her he didn't mind if she went to sleep. She crawled into bed at 6:10 a.m.
Hood stayed in the living room and started another video game. He began shooting down planes over a snowy mountain landscape. "Nice kill," a voice in the game said.
At 6:50 a.m., he popped a second caffeine pill and washed it down with Pepsi. As he stood outside smoking again, he started to think about one of the most horrifying incidents of his second tour.
He closed his eyes as he talked about the time he was on a convoy and a roadside bomb blew up a Humvee in front of him. His buddy, a turret gunner, died in the blast.
The convoy stopped, but another improvised explosive device was found behind them. A civilian bus drove over the bomb before it could be disposed of.
In one recurring dream, he said, "I'm up there with my buddy. I pull him out of the Humvee. The medevac helicopter is on top of a hill. I'm carrying him. He keeps getting heavier and heavier and sinking into the ground and I drag him. Gravity is increasing. I can't get him to the chopper."
He paused, lost in thought. The rumble of morning traffic hung in the air.
"That's a stupid dream."
Hood said talking to the other soldiers about sleep problems has "really taken a load off my shoulders to know I'm not the only one."
But he isn't sure how to apply their advice. He was thinking about getting a dog, which he said would help him feel someone else was on watch.
"I'll try anything," Hood said. "I'm almost at the point where I'd be willing to give a body part for one good night's sleep, no nightmares, the type of sleep where you wake up feeling renewed."
In the meantime, 19 hours had passed since his nap and Hood was waiting for the caffeine to kick in. He was waiting for his second wind.
| Pentagon spends $300M to study troops' stress, trauma |
The money — the most spent in one year on military medical research since a $210 million breast cancer study in 1993 — will fund 171 research projects on two of the most prevalent injuries of the Iraq and Afghanistan wars.
Gregory O'Shanick, national medical director for the Brain Injury Association of America, says the funding initiative is "without a doubt … an all-time high" for spending by the government on post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). He says civilian victims will benefit directly from the military studies.
By contrast, the National Institutes of Health, the world's largest government sponsor of medical research with an annual budget of $28 billion, spends about $80 million per year on TBI research, according to the NIH.
"It is huge," says Ross Bullock, director of neurotrauma at the University of Miami School of Medicine and lead investigator in a Pentagon-funded study of a drug designed to improve oxygen flow to damaged brain cells. "It is the just the most … enormous thing that has happened in traumatic brain injury research."
An estimated 1.4 million Americans suffer TBI each year, leaving 235,000 hospitalized and 50,000 dead, according to the Centers for Disease Control and Prevention. The majority are mild cases that can often lead to recovery. Many others suffer lasting damage to their short-term memory and problem-solving abilities, researchers say.
The new research focuses considerable attention on mild TBI, says Navy Capt. E. Melissa Kaime, head of the Congressionally Directed Medical Research Programs office, which is distributing the funds. The studies should be completed in 18 months to five years, she says.
Projects range from the development of an eyeglasses-like device that can detect brain injury through eye movement to coordinated studies of troops and veterans at locations across the country, Kaime says.
The Pentagon also will target new ways of delivering therapy to PTSD victims living in remote areas of the USA and reducing the stigma that can keep victims from seeking help, she says.
The military funding will go toward evaluating up to 20 different medications for TBI, she says, and studying ways of regenerating damaged brain cells.
Half of the $300 million in Pentagon funds have been distributed, and all will be paid out by Sept. 30, Kaime says.
Congress has provided an additional $273.8 million this year to study battlefield injuries, some of which will also go toward researching PTSD and TBI.
A study released in April by the RAND Corp. think tank estimates 300,000 current or former combat troops have PTSD or depression, and up to 320,000 may have suffered a brain injury.
"We're in the midst of an exciting era for those who have been damaged," says Rep. Bill Pascrell, D-N.J., founder of the Congressional Brain Injury Task Force.
Forensic psychiatrists and all testifying physicians are expected to offer opinioins in civil matters to the standard of "reasonable medical certainty" (or "reasonable medical probability" in California). However, the legal definition of causation (proximate cause) and the notion of causation from the perspective of behavioral science is not the same and sometimes it actually diverges This article attempts to explain the differences, explicate the dilemma and point out some of the pitfalls into which a medical expert may fall when testifying about legal causation.
Scientists Read Brain's Magnetic Fields to Spot PTSD
Test identified those with the disorder 90% of the time
By Amanda Gardner
HealthDay Reporter
THURSDAY, Jan. 21 (HealthDay News) -- For the first time, researchers have been able to diagnose post-traumatic stress disorder (PTSD) by reading patterns of magnetic fields created by brain cells. The discovery, made by researchers at the University of Minnesota, provides a biological marker for the condition and could help in both diagnosing and treating PTSD, which is triggered by trauma and characterized by symptoms such as flashbacks and uncontrollable rage. "We may be able to find some signals that could help us pick medications, or even pick up signals of impending problems before symptoms develop," said Keith A. Young, vice chairman for research at Texas A&M Health Science Center College of Medicine in Temple and core leader of the VA Center of Excellence for Research on Returning War Veterans. "The researchers have shown us the potential this has for helping us in the clinic, but it's a first step." Data gleaned from this method could also help pinpoint exactly where relevant changes are taking place in the brain, added Young, who called the study an "eye opener." The "synchronous neural interactions" test detects patterns in data generated by magnetoencephalography (MEG). This same research group had previously used the technique to detect several other conditions, from chronic pain to Alzheimer's. That research was published in 2007. "Brain cells communicate with electrical signals," explained study author Dr. Apostolos P. Georgopoulos, whose team reported its work in the Jan. 20 issue of the Journal of Neural Engineering. "These electrical signals can be recorded with EEG, but they get distorted going through the skull and are delayed, so they're not very useful. The same electrical signals generate a magnetic field around them which passes out of the skull undistorted and extremely fast. They can be recorded with this instrument we have, so we have a very accurate, very faithful signal of brain activity." "Communication patterns [between neurons or brain cells] are very different for different diseases, so one can differentiate very diverse diseases from multiple sclerosis to schizophrenia to Alzheimer's by just comparing those patterns," continued Georgopoulos, a professor of neuroscience, neurology and psychiatry at the University of Minnesota Medical School and director of the VA Brain Sciences Center in Minneapolis. "The [magnetic] patterns are very, very specific, and are different from anything else we have seen in other diseases." According to Young, the MEG technique has been around for 10 or 15 years. "Advances in computing power allowed researchers to sift through a whole lot of data," he said. The Minnesota researchers used MEG to identify similar magnetic patterns in 74 U.S. veterans. All 74 participants had been diagnosed with PTSD. Their magnetic fields were compared with those of 250 volunteers who did not have PTSD. "We were able to correctly classify 72 out of 74 people with the disorder. That's about 90 percent accuracy," said Georgopoulos. The researchers were also able to differentiate severity of symptoms and select those patients who were taking medications for the condition. Georgopoulos predicted that the technique will help distinguish other conditions. Researchers have already seen distinct patterns for fetal alcohol syndrome in young adolescents, for instance, he said. But only about 100 of the MEG instruments exist in the entire world, maybe 20 or 30 of them in the United States, Georgopoulos said. Although Georgopoulos expressed confidence that "the hardware follows the science," Young pointed out that the machines are very expensive and require specialized environments, possibly limiting their widespread use. More information The U.S. National Center for PTSD has more on this condition.
Last Updated: Jan. 21, 2010 Copyright © 2010 ScoutNews, LLC. All rights reserved. |
Maxwell J. Mehlman, J.D.
Sexual relationships with patients are problematic, not only because they may be unethical and may compromise patient care, but because they may lead to civil actions for damages, criminal actions, and disciplinary proceedings by state medical boards.(1) While concern focused originally on relationships between patients and psychiatrists, it is now generally recognized that the problem extends to non-psychiatric physicians as well.
But how far does the taboo extend? Suppose a state medical board seeks to discipline a physician for having an affair with a patient, but both the patient and the physician insist that the patient consented to the relationship. Should the board dismiss the proceeding?
Obviously, not if the patient is a minor. Consent is not a defense to a charge of statutory rape or sexual imposition on a minor.
But what if the patient is a competent adult?
The American Medical Association Council on Ethical and Judicial Affairs states categorically that "[s]exual contact that occurs concurrent with the physician-patient relationship constitutes sexual misconduct" (Opinion 8.14). In an article in JAMA announcing the policy, the Council rejected the position that sexual relationships should be permitted with the patient's consent on the ground that "the relative position of the patient within the professional relationship is such that it is difficult for the patient to give meaningful consent to such behavior." (2)
It is interesting that the AMA categorically condemns sexual relationships to which patients allegedly consent. The American Bar Association, for example, although taking a dim view of these relationships, does not absolutely rule out the possibility that a client has given effective consent:
The lawyer may be called upon in a disciplinary or other proceeding to show that the client consented, that the consent was freely given based on full and reasonable disclosure of the risks involved, and that any ensuing sexual relationship did not in any way disadvantage the client in the representation; that is, the attorney's judgement remained independent, the representation proceeded free of conflicts, the privilege was not compromised and the other ethical obligations to the client were fulfilled. (3)
Moreover, courts have indicated that, despite the physician's greater power within the relationship, they are willing to consider on a case- by-case basis whether to uphold agreements between patients and physicians in which the patient agrees not to sue the physician for malpractice.(4)
Why then does the AMA absolutely prohibit sexual relationships with consenting adult patients? Perhaps it would be too expensive or time-consuming to scrutinize the propriety of these relationships and the effectiveness of consent on a case-by-case basis. For example, the Supreme Court of the United States has upheld maximum age limits for police officers against the challenge that they violate the Constitution by depriving the officers of the ability to show that they in fact are physically capable of doing the job past the age cut-off.(5) Or perhaps the AMA feels that there simply are no circumstances in which a patient could give valid consent.
What about sexual relationships after the patient-physician relationship has ended? You would think that these would be OK, so long as the physician did not abuse the relationship. But the AMA takes the position that ending the professional relationship may not be enough: a relationship still may violate professional ethics "if the sexual contact occurred as a result of the use or exploitation of trust, knowledge, influence, or emotions derived from the former professional relationship." (6) When would this be the case? The only other guidance that the AMA gives is of little help:
Relationships between patients and... physicians may also include considerable trust, intimacy, or emotional dependence. The length of the former relationship, the extent to which the patient has confided personal or private information to the physician, the nature of the patient's medical problem, and the degree of emotional dependence that the patient has on the physician, all may contribute to the intimacy of the relationship. In addition, the extent of the physician's general knowledge about the patient (i.e., the patient's past, the patient's family situation, and the patient's current emotional state) is also a factor that may render a sexual or romantic relationship with a former patient unethical.
Is the idea that the more intimate the former patient-physician relationship, the less ethical a subsequent sexual relationship? Or is it the other way around?
Some commentators have suggested that the way to deal with sexual relationships with former patients is to impose a minimum waiting period following the termination of the patient-physician relationship. Appelbaum and his colleagues, for example, propose three to six months. This suggestion raises some peculiar practical problems, however. If the patient and physician, for example, have discovered a yen for each other, what kind of relationship are they permitted to engage in while waiting for the mandatory period to expire? In any event, the AMA rejects this idea, citing research that shows that patients continue to have strong feelings about psychotherapists for five to ten years after the therapeutic relationship ends. As mentioned in the beginning of this conference, the issue of sexual misconduct originally focused on patients in psychotherapy. The American Psychiatric and the American Psychological Association have their own codes of ethics. Perhaps the CyberoundsTM moderators in psychiatry/neuroscience, Dr. Dean Krahn and Dr. Bruce McEwen, as well as CyberoundsTM members will have some further comments on these issues. For further reading on some of the legal ramifications of sexual relations with patients, I suggest:
J. Barker, "Comment: Professional-Client Sex: Is Criminal Liability an Appropriate Means of Enforcing Professional Responsibility?" 40 U.C.L.A. Law Rev. 1275 (1993).
T. Dobash, "Note: Physician-Patient Sexual Contact: The Battle Between the State and the Medical Profession," 50 Wash. & Lee Law Rev. 1725, 1729 (1993).
References
1. Sandra H. Johnson, "Judicial Review of Discipliary Action for Sexual Misconduct in the Practice of Medicine," 270 JAMA 1596 (1993). return
2. Council on Ethical and Judicial Affairs, American Medical Association, "Sexual Misconduct in the Practice of Medicine," 266 JAMA 2741 (1991). return
3. American Bar Association Formal Ethics Opinion 92-364, "Sexual Relations with Clients." return
4. Tunkl v. Regents of the University of California, 383 P.2d 441 (Cal. 1963). return
5. Massachusetts Board of Retirement v. Murgia, 427 U.D. 307 (1976). return
6. Council on Ethical and Judicial Affairs, American Medical Association, "Sexual Misconduct in the Practice of Medicine," 266 JAMA 2741, 2743 (1991). return
7. Paul S. Appelbaum, Linda M. Jorgenson, Pamela K. Sutherland, "Sexual Relationships Between Physicians and Patients," 154 Arch. Internal Med. 2561 (1994). return
Maxwell J. Mehlman, J.D.
Sexual relationships with patients are problematic, not only because they may be unethical and may compromise patient care, but because they may lead to civil actions for damages, criminal actions, and disciplinary proceedings by state medical boards.(1) While concern focused originally on relationships between patients and psychiatrists, it is now generally recognized that the problem extends to non-psychiatric physicians as well.
But how far does the taboo extend? Suppose a state medical board seeks to discipline a physician for having an affair with a patient, but both the patient and the physician insist that the patient consented to the relationship. Should the board dismiss the proceeding?
Obviously, not if the patient is a minor. Consent is not a defense to a charge of statutory rape or sexual imposition on a minor.
But what if the patient is a competent adult?
The American Medical Association Council on Ethical and Judicial Affairs states categorically that "[s]exual contact that occurs concurrent with the physician-patient relationship constitutes sexual misconduct" (Opinion 8.14). In an article in JAMA announcing the policy, the Council rejected the position that sexual relationships should be permitted with the patient's consent on the ground that "the relative position of the patient within the professional relationship is such that it is difficult for the patient to give meaningful consent to such behavior." (2)
It is interesting that the AMA categorically condemns sexual relationships to which patients allegedly consent. The American Bar Association, for example, although taking a dim view of these relationships, does not absolutely rule out the possibility that a client has given effective consent:
The lawyer may be called upon in a disciplinary or other proceeding to show that the client consented, that the consent was freely given based on full and reasonable disclosure of the risks involved, and that any ensuing sexual relationship did not in any way disadvantage the client in the representation; that is, the attorney's judgement remained independent, the representation proceeded free of conflicts, the privilege was not compromised and the other ethical obligations to the client were fulfilled. (3)
Moreover, courts have indicated that, despite the physician's greater power within the relationship, they are willing to consider on a case- by-case basis whether to uphold agreements between patients and physicians in which the patient agrees not to sue the physician for malpractice.(4)
Why then does the AMA absolutely prohibit sexual relationships with consenting adult patients? Perhaps it would be too expensive or time-consuming to scrutinize the propriety of these relationships and the effectiveness of consent on a case-by-case basis. For example, the Supreme Court of the United States has upheld maximum age limits for police officers against the challenge that they violate the Constitution by depriving the officers of the ability to show that they in fact are physically capable of doing the job past the age cut-off.(5) Or perhaps the AMA feels that there simply are no circumstances in which a patient could give valid consent.
What about sexual relationships after the patient-physician relationship has ended? You would think that these would be OK, so long as the physician did not abuse the relationship. But the AMA takes the position that ending the professional relationship may not be enough: a relationship still may violate professional ethics "if the sexual contact occurred as a result of the use or exploitation of trust, knowledge, influence, or emotions derived from the former professional relationship." (6) When would this be the case? The only other guidance that the AMA gives is of little help:
Relationships between patients and... physicians may also include considerable trust, intimacy, or emotional dependence. The length of the former relationship, the extent to which the patient has confided personal or private information to the physician, the nature of the patient's medical problem, and the degree of emotional dependence that the patient has on the physician, all may contribute to the intimacy of the relationship. In addition, the extent of the physician's general knowledge about the patient (i.e., the patient's past, the patient's family situation, and the patient's current emotional state) is also a factor that may render a sexual or romantic relationship with a former patient unethical.
Is the idea that the more intimate the former patient-physician relationship, the less ethical a subsequent sexual relationship? Or is it the other way around?
Some commentators have suggested that the way to deal with sexual relationships with former patients is to impose a minimum waiting period following the termination of the patient-physician relationship. Appelbaum and his colleagues, for example, propose three to six months. This suggestion raises some peculiar practical problems, however. If the patient and physician, for example, have discovered a yen for each other, what kind of relationship are they permitted to engage in while waiting for the mandatory period to expire? In any event, the AMA rejects this idea, citing research that shows that patients continue to have strong feelings about psychotherapists for five to ten years after the therapeutic relationship ends. As mentioned in the beginning of this conference, the issue of sexual misconduct originally focused on patients in psychotherapy. The American Psychiatric and the American Psychological Association have their own codes of ethics. Perhaps the CyberoundsTM moderators in psychiatry/neuroscience, Dr. Dean Krahn and Dr. Bruce McEwen, as well as CyberoundsTM members will have some further comments on these issues. For further reading on some of the legal ramifications of sexual relations with patients, I suggest:
J. Barker, "Comment: Professional-Client Sex: Is Criminal Liability an Appropriate Means of Enforcing Professional Responsibility?" 40 U.C.L.A. Law Rev. 1275 (1993).
T. Dobash, "Note: Physician-Patient Sexual Contact: The Battle Between the State and the Medical Profession," 50 Wash. & Lee Law Rev. 1725, 1729 (1993).
References
1. Sandra H. Johnson, "Judicial Review of Discipliary Action for Sexual Misconduct in the Practice of Medicine," 270 JAMA 1596 (1993). return
2. Council on Ethical and Judicial Affairs, American Medical Association, "Sexual Misconduct in the Practice of Medicine," 266 JAMA 2741 (1991). return
3. American Bar Association Formal Ethics Opinion 92-364, "Sexual Relations with Clients." return
4. Tunkl v. Regents of the University of California, 383 P.2d 441 (Cal. 1963). return
5. Massachusetts Board of Retirement v. Murgia, 427 U.D. 307 (1976). return
6. Council on Ethical and Judicial Affairs, American Medical Association, "Sexual Misconduct in the Practice of Medicine," 266 JAMA 2741, 2743 (1991). return
7. Paul S. Appelbaum, Linda M. Jorgenson, Pamela K. Sutherland, "Sexual Relationships Between Physicians and Patients," 154 Arch. Internal Med. 2561 (1994). return
This is the first in a series of articles about forensic psychiatry as it is utilized in civil litigation. In this article, I will describe how a forensic psychiatrist can be useful to trial attorneys in civil litigation whenever there are allegations of emotional damages.
What Is Forensic Psychiatry?
Forensic psychiatry is the application of psychiatric clinical knowledge and research to the practice of law where plaintiff’s (or criminal defendant’s) mental status is at issue. The forensic psychiatrist is an expert at making diagnostic and prognostic judgments that are informed by scientific research and clinical experience about whether a plaintiff’s subjectively experienced emotional distress and/or functional impairment can be plausibly related to the alleged accident, injury, or tort. In addition, the forensic psychiatrist considers whether and to what degree other factors (the patient’s pre-existing condition, the plaintiff’s motivation to seek compensation or to punish the defendant, the plaintiff’s legitimate righteous indignation at being wronged with an appropriate wish to seek justice and reparation, or some combination of any of the above) are entering into the plaintiff’s assertion that (s)he has been psychologically damaged and, were it not for the defendant’s action or conduct, the plaintiff would not be suffering from the particular condition that (s)he has alleged.
Forensic Psychiatry and Civil Law: Motivation
In addition to expertise in diagnosing mental disorders, the forensic psychiatrist has expertise in assessing motivation. A plaintiff’s motivation be outright malingering (faking an injury or psychiatric illness) to make money to wanting to financially and judicially punish the defendant for alleged moral wrongs. At the opposite end of the spectrum, an injured plaintiff seeks damages to obtain necessary medical care and, as much as possible, restore his or her life to its pre-injury status. Not infrequently, a combination of these factors are at work. Teasing out the plaintiff’s motivation requires a considerable amount of clinical experience, skill, and acumen, as well as a familiarity with applicable law.
A prospective client tells you he has suffered severe emotional stress (with or without physical injury) as a result of a car accident, or his employer’s actions, or his insurance company, or his doctor, or a drunk driver, or anyone who has damaged, hurt, or injured him by accident, through negligent conduct or any other reason. If you are deciding whether to represent him, or if you are defending your client against his claim of personal injury, how do you assess whether or not the plaintiff is indeed suffering from a psychiatric disorder or injury and, if he is, how do you assess whether it was causally related to the alleged incident or conduct by the defendant? In essence, you have questions about causation and psychological damages. How do you determine the truth?
Only a forensic psychiatrist (or forensic psychologist) has the necessary training and experience to assess the plaintiff’s psychological and psychiatric status at the present time, to make inferences about the plaintiff’s emotional state at the time of the accident or injury, and to determine if there is a plausible connection between that accident or injury and the plaintiff’s current mental state. Among the questions usually addressed by a forensic psychiatrist I in civil litigation are the following:
These can be weighty questions with significant financial and emotional consequences for both parties in a dispute. It goes without saying that the forensic psychiatrist must proceed cautiously and comprehensively when evaluating the entire range of data relevant to the plaintiff’s psychological complaints, including all medical records (including those predating the dispute), all relevant deposition transcripts, and other documentary evidence. Ultimately, the forensic psychiatrist must present the data and his conclusions with reasonable medical certainty (i.e., with more than a fifty percent probability of accuracy).
The “Crumbling Skull” Plaintiff
Paget’s Disease of Bone is the prototype for the “crumbling skull” plaintiff. In Paget’s Disease, a progressive, degenerative condition of the skeletal system, bones become fragile and break repeatedly in the normal course of daily activities of living, such as something as innocuous as bumping into a doorway. Consequently, whether or not the event(s) alleged to have “caused” a fracture actually occurred, the Paget’s Disease plaintiff will continuously suffer broken bones over time regardless of what traumatic events do or do not befall them.
There are chronic, pre-existing psychiatric conditions that metaphorically mimic this bone disease. For example, a schizophrenic passenger in a bus collision may experience hallucinations and delusions after the accident. However, to argue that the accident was the proximate cause of his psychotic symptoms is to ascend a slippery and dangerous slope. In all likelihood, the chronic mentally ill plaintiff experienced similar mental symptoms prior to the accident and would have continued to do so throughout the course of his life, whether or not the bus collision had ever occurred.
The “Thin Skull” Plaintiff
Another bone disease, Osteogenesis Imperfecta (in which bone tissue is congenitally thin, fragile, and subject to easy fracture in particular places), is the prototype for “thin skull” plaintiffs.
For example, an attractive, seductively dressed thirty-something female sales employee of a large corporation is allegedly exposed to off-color sexual banter and subsequently overt sexual propositions by her middle-aged, male supervisor. Eventually, they date and have sexual intercourse on several occasions. While an employee, she never files a complaint of sexual harassment with the firm’s human resources department. However, during a period of company cost reduction, she is terminated. She sues alleging wrongful termination, sexual harassment, sexual abuse, and gender discrimination. She argues that she was fired when several male co-workers were retained due to gender discrimination, that she was subjected to a hostile work environment, and that her sexual activity with her supervisor was a quid pro quo that she believed was necessary in order to keep her job. The supervisor argues that she was sexually seductive toward him in her dress and behavior, that there was never any harassment or coercion, that their subsequent sexual activity was entirely consensual, and that she was terminated from her position due to her marginal sales performance. In essence, it is her word against his.
Defense argues that plaintiff had no objection to the sexual activity prior to being fired, that the allegations of sexual harassment and discrimination were manufactured, and that the filing of her lawsuit was either simple retaliation for being fired with cause or frank malingering in order to obtain monetary compensation. They do not retain a forensic psychiatric expert. Plaintiff’s counsel does retain a forensic psychiatrist who, in the course of conducting an in-depth independent psychiatric examination, learns that as a child, plaintiff was regularly molested by her alcoholic stepfather over a period of seven years, and that she complied with his sexual demands in order to keep the peace in the family and protect her mother and younger brother from his alcoholic rages and physical abuse. The records of a child protection service investigation report on plaintiff’s childhood abuse are produced during discovery.
As a result of the forensic psychiatric expert’s report, plaintiff’s counsel argues that his client is a psychologically “thin skull” plaintiff who was particularly vulnerable to the sexual overtures of a male supervisor because her childhood experiences had “taught” her to comply with the sexual overtures of male authority figures in order to prevent more frightening consequences from occurring. Should the defense make a substantial offer to try and settle this case? Who is a jury likely to believe?
The Paranoid Litigant
A trial attorney once quipped to me when I was discussing my interest in paranoid litigants, “Is there any other kind?” Despite the possible truth in this somewhat cynical remark, paranoid litigants need to be identified and correctly understood in order to cautiously screen their allegations before taking them on as clients and in order to effectively defend their lawsuits. Regrettably, they may contribute to the crowding of judicial calendars, cost the courts and their communities substantial sums of money, represent themselves pro se and not infrequently sue their former counsel. In addition, they are also excellent examples of psychologically “crumbling skull” plaintiffs.
Paranoid and narcissistic personality disorders are a special category of psychiatric “crumbling skull” plaintiffs. Those litigants with these DSM-IV Axis II diagnoses have long standing, psychological difficulties, often exhibit self-defeating strategies of living, feel chronically victimized, suffer from fragile self-esteem, and consistently externalize blame and responsibility for difficulties that befall them, even when they have instigated the very conditions by which they feel victimized. A paranoid plaintiff who, while representing herself pro se after firing one attorney and before retaining the next, provocatively insulted the judge in a law and motion hearing by calling him “senile,” but subsequently felt persecuted and enraged when the judge decided most of the motions presented in favor of the defense.
Paranoid litigants aggressively appeal adverse decisions to the highest judicial levels if permitted and consequently cost themselves, their families, and the judicial system considerable amounts of time and money. They frequently represent themselves pro se, at least during a portion of their litigation, and when they eventually do retain counsel, they not infrequently replace their attorneys during the course of litigation. It is not unheard of for them to sue their former counsel over disputed billing or alleged acts of legal malpractice.
When their complaints include emotional damages, they invariably cite DSM-IV Axis I, acute psychiatric disorders such as Post Traumatic Stress Disorder or Major Depression. They never attribute their alleged suffering to their underlying, long-standing, personality disorder. Nevertheless, it is in fact their paranoid and narcissistic personalities that inevitably drive their litigious activities. This dimension of their psychological make-up must be delineated and addressed by a forensic psychiatric expert in order to present to presentan effective defense of their allegations.
Personality disorders are pathological, long-standing, chronic, fixed mental conditions. Plaintiffs with paranoid and/or narcissistic personality disorders may attempt to use the judicial system to seek external remedies for their own internal psychological problems. Short of declaring a plaintiff a “vexatious litigant,” the courts and public agencies are relatively helpless to defend their crowded calendars and fixed budgets against judicial abuse by paranoid litigants because of the overarching legal value that “everyone deserves his day in court.”
Unfortunately, plaintiffs who suffer from a paranoid or narcissistic personality disorder almost never seek psychological treatment for their underlying problem. Rather, they attempt to externalize blame via litigation in an ongoing quest for external restitution and vindication of their internal psychological wounds. Furthermore, these “wrongs” are frequently experienced by the plaintiff as a “moral” assault, which in turn fuels the plaintiff’s sense of righteous indignation. As trial attorneys know from bitter experience, client control can be difficult with these plaintiffs, and seeking a settlement can feel like playing against a perpetually moving goal post.
During the litigation process itself, these plaintiffs are subject to bouts of emotional instability, anxiety, and narcissistic rage whenever others, including the court itself, oppose their self-declared “just” cause, or simply do not interpret events, the law, or even reality, exactly as the plaintiffs believe they should. Paranoid and narcissistic plaintiffs tend to see the world, including the judicial world, in strictly black and white terms and have little tolerance for ambiguity, uncertainty, or even their own frustration.
It is therefore important for plaintiff’s counsel to consider these issues when seeking an evaluation of a client in order to separate those litigants who have the above personal traits, without a reasonable cause of action, from plaintiffs who may have entirely legitimate grievances as well as a pre-existing personality disorder. A plaintiff may have a paranoid personality, and may also have been legitimately wronged; telling the difference between that type of litigant and one who merely believes they were wronged and is engaged in an endless quest to seek restitution for old hurts and insults requires expert evaluation and judgment.
The forensic psychiatrist has a crucial role in civil litigation where alleged psychiatric illness and motivation are important issues. In retaining a forensic psychiatrist, counsel should look for highly experienced clinicians who are familiar with legal issues, can weigh evidence and present logical and compelling explanations for their opinions based on the evidence in the case and the background of scientific knowledge pertaining to mental disorders and human motivation.
This article is the first in a series. Subsequent articles will examine such topics as expert psychological testing and opinion; federal anti-discrimination and entitlement laws, including the Americans with Disabilities Act (ADA), The Fair Housing Amendment Act, The Age Discrimination and Employment Act (ADEA), The Individuals with Disabilities Education Act (IDEA), and the Social Security Laws; determinations of testamentary capacity; questions of civil commitment and involuntary hospitalization and treatment; evaluation of children being adjudicated within the juvenile court system; child abuse and neglect; and child custody in divorce.
I wish to particularly thank my colleague and friend Saul Rosenberg, Ph.D. for his considerable assistance with the preparation of this article.
Mark Levy, M.D., a Fellow of the American Psychiatric Association, is a psychoanalyst and for more than twenty-five years has been in full-time private practice of general and forensic psychiatry in Mill Valley, California. He is certified by the American Board of Psychiatry and Neurology in both General Psychiatry and Forensic Psychiatry. He is on the clinical faculty of the Department of Psychiatry at the University of California-San Francisco, where he teaches in the Forensic Psychiatry Fellowship. He also maintains a website on law and psychiatry at www.lawandpsychiatry.com. He can be reached at mark@levymd.com. Please feel write to him care of San Francisco Attorney with particular questions, comments, or topical requests.
Dr. David Kan, a forensic psychiatrist and Assistant Clinical Professor of Psychiatry, Ft. Miley VA Medical Center, University of California , San Francisco, created this PowerPoint slide presentation on Risk Assessment of Stalkers for a talk he gave on 11-17-04.
To download a pdf version of Dr. Kan's PowerPoint presentation, click here:
Note to victims of accidents, medical malpractice, broken contracts and the like: When you sue, make a deal.
That is the clear lesson of a soon-to-be-released study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer.
“The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,” said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions.
Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.
The vast majority of cases do settle — from 80 to 92 percent by some estimates, Mr. Kiser said — and there is no way to know whether either side in those cases could have done better at trial. But the findings, based on a study of 2,054 cases that went to trial from 2002 to 2005, raise provocative questions about how lawyers and clients make decisions, the quality of legal advice and lawyers’ motives.
Critics of the profession have long argued that lawyers have an incentive to try to collect fees that are contingent on winning in court or simply to bill for all the hours required to prepare and go to trial.
“What I would want them to look at was whether or not the lawyers had a strong financial incentive to go to trial,” said Cristina C. Arguedas, a criminal defense lawyer in Berkeley, Calif., when told of the study. “I’m not suggesting the answer, because I don’t know, but that would be my question.”
The study, which is to be published in the September issue of the Journal of Empirical Legal Studies, does not directly answer Ms. Arguedas, but it does find that the mistakes were made more often in cases in which lawyers are typically paid a share of whatever is won at trial.
On average, getting it wrong cost plaintiffs at about $43,000; the total could be more because information on legal costs was not available in every case. For defendants, who were less often wrong about going to trial, the cost was much greater: $1.1 million.
“Most of the time, one of the parties has made some kind of miscalculation or mistake,” said Jeffrey J. Rachlinski, a law professor at Cornell who has studied how lawyers and clients decide to go to trial and who is co-editor of the journal. “The interesting thing about it is the errors the defendants make are much more costly.”
The study’s authors have analyzed some data from New York and, after a review of 554 state court trials in 2005, have found parties to lawsuits making the wrong decision at comparable rates.
The findings suggest that lawyers may not be explaining the odds to their clients — or that clients are not listening to their lawyers.
“It’s entirely possible that the attorneys are not giving adequate advice,” said Mr. Kiser, who is also a lawyer but is not practicing. “An attorney could advise a client that they have a strong defense to enforcement of a contract, but that is not the same thing as forecasting what the likely outcome at trial would be.”
As part of the study, which is the biggest of its kind to date, the authors surveyed trial outcomes over 40 years until 2004. They found that over time, poor decisions to go to trial have actually become more frequent.
“It’s peculiar if any field is not improving its performance over a 40-year period,” Mr. Kiser said. “That’s a troubling finding.”
Law schools do not teach how to handicap trials, nor do they help develop the important skill of telling a client that a case is not a winner. Clients do not like to hear such news.
“Most clients think they are completely right,” Michael Shepard, a lawyer at Heller Ehrman in San Francisco. A good lawyer has to be able to tell clients that a judge or jury might see them differently, he continued. “Part of it is judgment and part of it is diplomacy.”
Several lawyers were dismissive of the study, noting that the statistics mean nothing when contemplating a particular case, with its specific facts and legal issues, before a specific judge. They stressed the importance of a lawyer’s experience.
But the study tried to account for that possibility and found that factors like the years of experience, rank of a lawyer’s law school and the size of a law firm were less helpful in predicting the decision to go to trial. More significant was the type of case.
For example, poor decisions by plaintiffs to go to trial “are associated with cases in which contingency fee arrangements are common,” according to the report. “On the defense side, high error rates are noted in cases where insurance coverage is generally unavailable.”
The findings are consistent with research on human behavior and responses to risk, said Martin A. Asher, an economist at the University of Pennsylvania and a co-author. For example, psychologists have found that people are more averse to taking a risk when they are expecting to gain something, and more willing to take a risk when they have something to lose.
“If you approach a class of students and say, I’ll either write you a check for $200, or we can flip a coin and I will pay you nothing or $500,” most students will take the $200 rather than risk getting nothing, Mr. Asher said.
But reverse the situation, so that students have to write the check, and they will choose to flip the coin, risking a bigger loss because they hope to pay nothing at all, he continued. “They’ll take the gamble.”
The third co-author of the study was Blakeley B. McShane, a graduate student at the Wharton School of the University of Pennsylvania.
MedWire (7/31, Davenport) reported, "Patients with generalized anxiety disorder (GAD) are more likely than healthy individuals to have family members with anxiety problems," according to a study published in the May 28 online edition of the Journal of Clinical Psychology. Researchers from Yale University examined "151 GAD patients and 76 healthy controls participating in two treatment-outcome investigations." Subjects "were administered the Anxiety Disorders Interview Schedule-Revised." In addition, "participants were asked" during an interview "to report the psychologic[al] problems of immediate family members." The investigators found that "[a]nxiety problems among relatives were reported by 53.0 percent of GAD patients." For controls, the "corresponding percentage" was 30.3 percent. And, "[w]hile GAD was associated with a significantly higher frequency of familial anxiety disorders than in controls,...there was no association between gender and psychologic[al] problems."
Research suggests psychiatric diagnoses, symptom severity may be increased by stress events early in life. MedWire (7/31, Davenport) reported that "[s]tress-sensitive periods during childhood development increase the risk for psychiatric diagnoses and symptom severity," according to a study published in the journal BMC Psychiatry. Researchers from Germany's University of Konstanz examined "39 patients with major depressive disorder, 32 with schizophrenia, 15 with drug abuse, and 10 with personality disorder, along with 31 healthy controls. The participants were administered, among others, the Early Trauma Inventory, the Brief Psychiatric Rating Scale, the Beck Depression Inventory, and the General Assessment of Functioning Scale." The researchers found that "[p]atients had significantly higher scores than controls for early life stress events, pre-pubertal stress events, overall traumatic experiences, and prenatal stress." In fact, "patients reported significantly more emotional neglect, violence in families during childhood and adolescence, and separation from their biologic mother for at least three months before puberty than controls." And, "patients with high stress loads had significantly more pronounced affective symptoms."
This article is a reprint of the one which first appeared in the San Francisco Recorder on 07/24/96
Though recently protected from disclosure in the federal courts, therapists' records remain under siege by insurance companies
By: Mark Levy, M.D.
Confidentiality is the core of a patient/therapist relationship. Trust, the very foundation of therapy, is eroded by a threat to privacy.
And in June, the U.S. Supreme Court decided that all psychotherapist-patient communication is protected from compelled disclosure in federal courts. The ruling in Jaffee v. Redmond, 1996 WL 315841, marks an enormous victory for patient confidentiality -- but it does nothing to protect patients from insurance companies, Medicare and other organizations and agencies.
Inspectors from a major insurance company -- Albany, N.Y.- based Physicians Health Plan -- regularly monitor therapists' record-keeping by entering offices and reading files. Even the federal government's Health Care Financing Administration has claimed that inspectors from Medicare insurers have the right to read therapists' records to assure that Medicare patients receive the same treatment as others. This sham explanation hides the insurers' true goal -- to invade the doctor-patient privilege. Because of the possibility of such inspections, some therapists now routinely decline to see any patients covered under the Medicare program. Forget whether patients can trust that their therapy is confidential -- they may not get the treatment they need in the first place.
In managed care, mental health professionals are required to state a specific diagnosis and treatment plan to obtain authorization for what is usually a very brief period of care. It is virtually impossible for a patient to give informed consent to this release of information: When an individual is hurting, her priority is to make the pain go away, not to think about the implications of disclosure.
For example, many people occasionally think about suicide, if only in passing. If the psychotherapist notes every instance of suicidal thoughts, the patient might be branded as a suicide risk and subsequently denied life insurance. A patient can't validly consent to allow access to sensitive information if that patient cannot fully comprehend the consequences of his decision.
If you think the assault on patient confidentiality is a purely hypothetical one, consider a suit brought by a coalition of groups helping AIDS patients in Boston. The suit was aimed at stopping auditors at the Department of Health and Human Services from disseminating the names of AIDS patients to various government agencies. Worse, according to Time magazine, several years ago a banker who served on a state health commission obtained a list of every cancer patient in his community and proceeded to call in their loans. The banker's name was not made public, and he was never punished.
The Dangers Of Progress
Many states, including California, are considering the development of a comprehensive, computerized database for medical records. Maryland's Health Care Access and Cost Commission, which is responsible for annually reporting variations in fees charged and the use of physician services, has already done so.
Placing medical information in centralized computer systems may improve efficiency, but it raises privacy concerns. Such records are useful only if they are widely accessible. Though Maryland's HCACC maintains that confidentiality is protected because each patient is identified by an encrypted number, opponents say the main threat to security comes from within.
"The larger the scope of the [HCACC]'s activities, the larger number of insiders who may become involved. As long as data are considered valuable by some parties . . . there will be security risks," according to professor Beverly Woodward of Brandeis University, who is writing a book about medical databases.
To combat the threat to confidentiality, the American Psychoanalytic Association, affiliated with the San Francisco Psychoanalytic Institute and the San Francisco Foundation for Psychoanalysis, has recommended an extreme, but logical solution -- that therapists keep no record of individual treatment sessions. Issues of privacy are most pronounced for those patients seeking psychoanalysis, where disclosing intimate details is an integral part of treatment.
While the Jaffee v. Redmond decision guards patient privacy in federal courts, it does not protect sensitive information from other prying eyes.
AUTHOR: Mark Levy, M.D., is an assistant clinical professor of psychiatry at the UCSF School of Medicine and president of the San Francisco Foundation for Psychoanalysis.
The Supreme Court ruling in the Jaffee v. Redmond Case
On June 13, 1995 the U.S. Supreme Court ruled 7-2 that the communication between a licensed psychotherapist and a patient (for diagnosis or treatment) is PRIVILEGED and that the therapist cannot be compelled to reveal the content of such communication in a Federal court without the patientÕs consent.
This milestone ruling, in effect, creates a new privilege in law at the Federal level. The ruling is particularly strong in that it is not left to the descretion of judges in individual cases to decide whether the need for evidence in a particular case should override the patient's virtually absolute privilege of blocking all access to such material.
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The Intricate Link Between Violence and Mental Disorder Results From the National Epidemiologic Survey on Alcohol and Related Conditions
Arch Gen Psychiatry. 2009;66(2):152-161. Context The relationship between mental illness and violence has a significant effect on mental health policy, clinical practice, and public opinion about the dangerousness of people with psychiatric disorders.
Objective To use a longitudinal data set representative of the US population to clarify whether or how severe mental illnesses such as schizophrenia, bipolar disorder, and major depression lead to violent behavior.
Design Data on mental disorder and violence were collected as part of the National Epidemiologic Survey on Alcohol and Related Conditions (NESARC), a 2-wave face-to-face survey conducted by the National Institute on Alcohol Abuse and Alcoholism.
Participants A total of 34 653 subjects completed NESARC waves 1 (2001-2003) and 2 (2004-2005) interviews. Wave 1 data on severe mental illness and risk factors were analyzed to predict wave 2 data on violent behavior.
Main Outcome Measures Reported violent acts committed between waves 1 and 2.
Results Bivariate analyses showed that the incidence of violence was higher for people with severe mental illness, but only significantly so for those with co-occurring substance abuse and/or dependence. Multivariate analyses revealed that severe mental illness alone did not predict future violence; it was associated instead with historical (past violence, juvenile detention, physical abuse, parental arrest record), clinical (substance abuse, perceived threats), dispositional (age, sex, income), and contextual (recent divorce, unemployment, victimization) factors. Most of these factors were endorsed more often by subjects with severe mental illness.
Conclusions Because severe mental illness did not independently predict future violent behavior, these findings challenge perceptions that mental illness is a leading cause of violence in the general population. Still, people with mental illness did report violence more often, largely because they showed other factors associated with violence. Consequently, understanding the link between violent acts and mental disorder requires consideration of its association with other variables such as substance abuse, environmental stressors, and history of violence.
Author Affiliations: Forensic Psychiatry Program and Clinic, Department of Psychiatry, University of North Carolina at Chapel Hill School of Medicine, Chapel Hill. This Month in Archives of General Psychiatry | ||||||||||||||||||||||||||||||||||||||||||||||||||||
The following is an official statement by the Board of Trustees of the Society for Personality Assessment affirming that the Rorschach Inkblot Test possesses reliability and validity similar to that of other generally accepted personality assessment instruments and its responsible use in personality assessment is appropriate and justified (JOURNAL OF PERSONALITY ASSESSMENT, 85(2), 219-237, copyright 2005, Lawrence Erlbaum Associates, Inc.)
To assist with his teaching of psychiatric residents at UCSF School of Medicine, Dr. Kan has prepared the following PowerPoint slide show summarizing many key aspects of violence risk assessment, a critical forensic psychiatric skill.
Download David Kan MD Violence Risk Assessment Psych interns 2-5-07
When is a Post Traumatic Stress Disorder Claim Legitimate...and When Is It Not?
by Mark I. Levy, M.D. Asst. Clinical Professor Psychiatry
University of California San Francisco
School of Medicine
(expanded version of article published in For the Defense, November 1995)
In prehistoric times, when our earliest ancestors lived in dread of their mortal enemy, the saber-toothed tiger, those cave men (and women) who were fortunate enough to be genetically endowed with the quickest “fight or flight” reactions survived, and became our ancestors. That’s where the story begins... a story which flourishes today in a medical-legal climate where Post-Traumatic Stress Disorder (PTSD) claims comprise a substantial and costly portion of personal injury and employment litigation....
INTRODUCTION
Until recent years, personal injury claims generally alleged orthopedic injuries from automobile, industrial or slip and fall accidents. A small portion alleged neurological injuries, but those involving the brain were limited to closed head injuries and brain trauma: mental trauma, i.e., psychological injury, was rarely a basis for litigated claims. However, the recent sea change in our cultural and social attitudes has resulted in an epidemic of psychological injury claims not only in connection with personal injury suits but also as a by-product of “repressed memory/false memory” hysteria as well as in the field of employment law where sexual harassment and discrimination claims alleging PTSD are growing with leaps and bounds. The dramatic size of several recent psychological injury/ sexual harassment awards (e.g. $7 million punitive damages against the San Francisco law firm Baker and Mckenzie) has not escaped the attention of trial attorneys. As a result, the plaintiff’s bar is developing increased psychological sophistication, both in selecting cases and litigating them. Consequently, in both Personal Injury and Employment Law, Psychological Injuries now comprise an important component of claims. This change in the litigation climate makes it essential for both insurance and employment law defense counsel, as well as claims adjusters, to become knowledgeable about the medical-legal concept of mental trauma.
Among the various psychiatric diagnoses found in psychological injury claims, the major stress diagnosis, PTSD, is one of the most highly compensated. Consequently, in recent years natural disasters (such as earthquakes, floods or fires) or man-made disasters (such as airplane crashes, industrial accidents, assault, rape) as well as workplace allegations of discrimination, abuse or sexual harassment, have generated a rising tide of psychological damage claims with allegations of PTSD. As a result, in order to properly manage these claims, both defense counsel and insurance claims adjusters require a sophisticated and detailed understanding of the psychiatric diagnosis of PTSD: what it is, and -- possibly more importantly -- what it is not.
The diagnostic criteria for PTSD are complex encompassing event, re-experiencing and numbing phenomena. Although some claimants unquestionably meet these criteria, other individuals may not. Knowing how to distinguish between the two groups will make it easier for a defense team to defeat inappropriate claims as well as rapidly settle and avoid costly litigation of claims that are clearly legitimate.
Since many members of the plaintiff’s bar remain unsophisticated in their understanding of how to assess and litigate psychological injuries (as opposed to the more concrete closed head injuries), the defense team with a good understanding of the nature of this type of injury will have a decided advantage.
WHAT IS DSM-IV?
PTSD, like all psychiatric diagnoses used in medical-legal consultation, derives its authority from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, published by the American Psychiatric Association (DSM-IV, May 1994). This psychiatric diagnostic compendium is divided into chapters covering the entire landscape of mental disorders and conditions. The comprehensive manual assigns all psychiatric diagnoses (as well as assessments of functional impairment) to a 5-axis diagnostic system. At the present time the DSM-IV is considered the diagnostic “Bible” in medical-legal psychiatric evaluations. Consequently, a working understanding of DSM-IV is essential to evaluating and defending any claim of alleged psychological injury.
THE HISTORY OF PTSD
Called PTSD since the Viet Nam War, this condition had a long and interesting history. This stress syndrome has been called many things in the 150 years since it was first recognized but every definition had several characteristics in common, including re-experiencing, numbing and physiological arousal. The process of Darwinian “natural selection” supported the evolution of people with highly developed stress responses; those pre-historic people with the most effective “fight or flight” reflexes became our ancestors. Curiously, during the 19th Century, what is known today as PTSD was called “Railway Spine” and was associated with what we would today call “hysterical” physical symptoms -- i.e. “anxiety” expressed as bodily complaints -- seen in people who had been involved in railway accidents but who suffered no bodily injuries.
FIGHT OR FLIGHT
“Fight or flight” is driven by the neuro-chemical hormone adrenaline and results in a range of psycho-physiological responses to danger. These include increased pupil size so that more information can enter the eye, increased heart rate so that oxygen can be pumped to the muscles and brain, and the conversion of glycogen to glucose so that rapidly contracting muscles and essential organs are supplied with sufficient energy to function. These physiological changes encourage men and women to become aggressive or rapidly run away when confronted by danger.
Modern man is still “hard wired” with this physiological reflex--it is our legacy from ancient times. However, when a man or woman employed in business or a profession is feeling threatened in their workplace or boardroom, they would be regarded as bizarre if they suddenly rose from their chair and ran from the room or engaged in physical combat with an opponent. Under most circumstances, threats as perceived may not be threats in reality and the threatened person must sit and bear it. This conflict between our minds and our physiological reflexes is responsible for the modern medical entities known as Stress Response Syndromes. Stress is also responsible for a range of secondary illnesses that can arise from the work environment including cardiovascular and immune system diseases.
PTSD is a condition that arises from exposure to life-threatening circumstances and it was first diagnoses among some of the survivors of wartime combat. Throughout W.W.I the syndrome was known as “Shell Shock” and was thought to be primarily motivated by the soldier’s effort at self preservation. In World War II it was called “War Neurosis” or “Combat Fatigue.” The modern diagnosis of PTSD, a by-product of the Viet Nam War, falls within the general DSM-IV category of “Anxiety Disorders,” sub-category of “Stress Disorders.” Listed below are the DSM-IV’s diagnostic criteria for PTSD, followed by my detailed discussion of these criteria.
DIAGNOSTIC CRITERIA FOR 309.81
POST TRAUMATIC STRESS DISORDER
A. THE PERSON HAS BEEN EXPOSED TO A TRAUMATIC EVENT IN WHICH BOTH OF THE FOLLOWING WERE PRESENT:
B. THE TRAUMATIC EVENT IS PERSISTENTLY RE-EXPERIENCED IN ONE OR MORE OF THE FOLLOWING WAYS:
C. PERSISTENT AVOIDANCE OF STIMULI ASSOCIATED WITH THE TRAUMA AND NUMBING OF GENERAL RESPONSIVENESS (NOT PRESENT BEFORE THE TRAUMA), AS INDICATED BY THREE (OR MORE) OF THE FOLLOWING:
D. PERSISTENT SYMPTOMS OF INCREASED AROUSAL (NOT PRESENT BEFORE THE TRAUMA), AS INDICATED BY TWO (OR MORE) OF THE FOLLOWING:
E. DURATION OF THE DISTURBANCE (SYMPTOMS IN CRITERIA B,C AND D) IS MORE THAN 1 MONTH.
F. THE DISTURBANCE CAUSES CLINICALLY SIGNIFICANT DISTRESS OR IMPAIRMENT IN SOCIAL, OCCUPATIONAL OR OTHER IMPORTANT AREAS OF FUNCTIONING.
Specify if:
ACUTE: IF DURATION OF SYMPTOMS IS LESS THAN 3 MONTHS
CHRONIC: IF DURATION OF SYMPTOMS IS 3 MONTHS OR MORE
Specify if:
WITH DELAYED ONSET: IF ONSET OF SYMPTOMS IS AT LEAST 6 MONTHS AFTER THE STRESSOR
ref: from The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, published by the American Psychiatric Association (DSM-IV), May 1994.
* * * * *
PTSD IS A DISCREET PHENOMENON, NOT A CONTINUUM
Like pregnancy, PTSD is defined as something one has or does not have: for medical-legal purposes, there are no “shades of PTSD gray” (even though in actuality and in some current research, the condition is viewed more in terms of a gradient of symptoms). Medical-legally, however, one is either in or out of the diagnosis, according to whether or not the individual fulfills the six specific, detailed criteria, the so-called “A-F” criteria.
THE “A” CRITERIA, THE EVENT: A THRESHOLD CONCEPT
In a nutshell, the “A” criteria require an individual to have been exposed to a life-threatening circumstance. Earlier incarnations of the DSM used a broad and overly inclusive yardstick, “outside of the range of normal human experience,” but this criterion was considered too loose and was easily abused in its interpretation. With the recent publication of DSM-IV , the “A” criteria have been tightened considerably. The new wording requires that “the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death (emphasis added) .” Even the secondary phrase, “or serious injury, or a threat to the physical integrity of self or others” implies a grave degree of bodily threat. It was the intention of the DSM-IV subcommittee to tighten the “A” criteria so that it conformed more closely to the kind of actual life-threatening circumstances, such as combat, where PTSD was first observed. In essence, the trauma must be sufficiently severe that it ruptures a person’s “bubble of invulnerability.” Most of the time people avoid thinking about the possibility of death in order to carry on their daily lives without constant, high levels of anxiety.
THE RE-EXPERIENCING OR “B” CRITERIA
PTSD victims re-experience the trauma over and over and over again, in a variety of different ways. This results from the psyche’s effort to “master” overwhelming perceptual stimuli. The event is revisited repeatedly in an effort to manage and eventually integrate the traumatic stimuli that originally overwhelmed the victim’s psychological equilibrium. The “B” criteria include five different re-experiencing phenomena, any one of which is deemed sufficient to meet this diagnostic criterion.
· RECURRENT OR INTRUSIVE DISTRESSING RECOLLECTIONS OF THE EVENT, INCLUDING IMAGES, THOUGHTS OR PERCEPTIONS. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed
PTSD victims are never able to quite “forget” the event which traumatized them. They think/dream about it intermittently throughout their waking (and sleeping) hours and often feel persecuted by their inability to repress the recurrent distressing images.
· RECURRENT OR DISTRESSING DREAMS OF THE EVENT. Note: In Children there may be frightening dreams without recognizable content.
These recurrent images of the trauma intrude upon the victim’s sleep in the form of disturbing dreams and nightmares. Unlike normal dreams, which utilize symbolism to conceal from consciousness the dreamer’s actual life conflicts and concerns, PTSD dreams are often literal representations of the traumatic event. The starkly realistic presentation of the dreamer’s traumatic experience reflects the psyche’s inability to master, process and integrate these overwhelming stimuli, through the disguising processes of sublimation and symbol formation.
· ACTING OR FEELING AS IF THE TRAUMATIC EVENT WERE RECURRING (INCLUDES A SENSE OF RELIVING THE EXPERIENCE, ILLUSIONS, HALLUCINATIONS AND DISSOCIATIVE FLASHBACK EPISODES, INCLUDING THOSE THAT OCCUR ON AWAKENING OR WHEN INTOXICATED). Note: In young children, trauma-specific reenactment may occur.
The victim frequently feels a sense of deja vu as if reliving the experience, sometimes in the form of illusions or hallucinations, frequently when in physiologically altered states of consciousness such as those induced by alcohol, drugs or sleep. Young children may actually re-enact the traumatic events in their play behavior, alone or with others.
· INTENSE PSYCHOLOGICAL DISTRESS AT EXPOSURE TO INTERNAL OR EXTERNAL CUES THAT SYMBOLIZE OR RESEMBLE AN ASPECT OF THE TRAUMATIC EVENT.
PTSD victims may experience extreme anxiety or even panic upon exposure to circumstances that either literally or symbolically remind them of the traumatic circumstances.
· PHYSIOLOGICAL REACTIVITY ON EXPOSURE OR INTERNAL OR EXTERNAL CUES THAT SYMBOLIZE OR RESEMBLE AN ASPECT OF THE TRAUMATIC EVENT.
Traumatized Viet Nam War combat veterans, for example, frequently confuse their perceptions from ordinary experiences of every day life with those that date back to the traumatic event. For example, a traumatized combat veteran hearing an automobile muffler backfiring, may experience the sound as if it is wartime gunfire. Accordingly, the person may re-experience the full range of psycho-physiological responses known as “combat alert” (akin to “fight or flight reactions”) as if he were back on the battlefield.
THE NUMBING AND AVOIDANCE OR “C” CRITERIA
PERSISTENT AVOIDANCE OF STIMULI ASSOCIATED WITH THE TRAUMA AND NUMBING OF GENERAL RESPONSIVENESS (NOT PRESENT BEFORE THE TRAUMA), AS INDICATED BY THREE (OR MORE) OF THE FOLLOWING:
As a psychological defense against being overwhelmed and feeling helpless, traumatized individuals are constantly oscillating between re-experiencing the trauma and trying to avoid it. Their efforts to avoid may take many forms, of which any three listed below fulfills the “C” criteria.
· EFFORTS TO AVOID THOUGHTS, FEELINGS, OR CONVERSATIONS ASSOCIATED WITH THE TRAUMA
An airline stewardess who was brutally raped and beaten in a hotel during a work related “layover,” for several weeks told no one about the assault, not her fellow employees nor her family, and only admitted the assault when her grown daughter pressed her to explain why her mood was so different.
· EFFORTS TO AVOID ACTIVITIES, PLACES OR PEOPLE THAT AROUSE RECOLLECTIONS OF THE TRAUMA
Typically, someone who suffers from PTSD will avoid revisiting the site of the trauma. A young woman who was savagely beaten, kicked in the head, and believed she was going to be killed by hoodlums who assaulted her in the parking lot of a well known national restaurant chain, avoided ever revisiting not just the particular restaurant where the assault occurred but any other facility with the chain’s name on it.
· INABILITY TO RECALL AN IMPORTANT ASPECT OF THE TRAUMA
Not infrequently, a seriously traumatized person will be amnesic for particular events or periods of time during the trauma. They may say that their memory is like a stop-frame movie from which moments or extended periods of time are lost and the memory jumps from before to after the missing segments.
· MARKEDLY DIMINISHED INTEREST OR PARTICIPATION IN SIGNIFICANT ACTIVITIES
Another young woman who was beaten in the restaurant parking lot incident referred to above underwent a dramatic personality change following the assault: she was transformed from an outgoing, vivacious, independent and “feisty” young person, someone who performed publicly in an entertainment group, to a frightened, withdrawn, isolated girl who would not even leave her house to go food shopping without the protective companionship of family members. In her withdrawn state, she gained fifty pounds, creating an additional “buffer zone” around herself that shielded her from the outside world.
· FEELING OF DETACHMENT OR ESTRANGEMENT FROM OTHERS
More than simple detachment or loneliness, PTSD victims tend to experience themselves as “outside looking in,” as though they are no longer a part of life’s events but are beyond a transparent barrier, restricted to the role of an observer.
· RESTRICTED RANGE OF AFFECT (E.G., UNABLE TO HAVE LOVING FEELINGS)
It is very common for those suffering from PTSD to suddenly lose the ability to experience strong feelings, for example an inability to love or to care about others who are dear to them. This disconnectedness can seriously damage marital, parent-child or workplace relationships.
· SENSE OF FORESHORTENED FUTURE (E.G., DOES NOT EXPECT TO HAVE A CAREER, MARRIAGE, CHILDREN, OR A NORMAL LIFE SPAN)
Not infrequently, people with PTSD no longer think of themselves as having a future. This is not the same as having suicidal feelings, since the victim has neither the plan nor the intention of killing himself. Rather, these thoughts result from the sudden rupture of their “bubble of invulnerability.” Having experienced a close encounter with death, it’s ever presence can no longer be effectively denied. PTSD victims may simply resign themselves to the belief that sooner rather than later, life will end.
SYMPTOMS OF INCREASED AROUSAL, THE “D” CRITERIA
Due to the effects of adrenaline directly upon the central nervous system, PTSD is always associated with signs of increased arousal (not present before the trauma) as indicated by two (or more) of the following:
· DIFFICULTY FALLING OR STAYING ASLEEP
Sleep disturbances usually begin immediately after the trauma, although in some cases upsetting dreams may not occur for days, weeks or even months. Typically, the PTSD patient has difficulty falling asleep or staying asleep, fearing that something terrible may again happen to them if they relax their guard against sleep. Instead of sleeping, they remain alert. One traumatized woman compromised between her conflicting impulses to remain awake and needing sleep by setting her alarm clock to awaken her every two hours, throughout the night, in order to inspect all the rooms of her house and reassure herself that no intruders were present. Soon, however, she awakened throughout the night at two hourly intervals before the alarm sounded. This practice continued for years after the trauma.
· IRRITABILITY OR OUTBURSTS OF ANGER
Irritability and sometimes rapid fluctuations of mood occur with most people who suffer from this disorder. Sometimes it is experienced as “waves of emotion” that cause the PTSD patient to rapidly shift between focused attention and tearfulness. At other times, tempers are short and the victim “snaps” angrily and inappropriately at friends, family or colleagues. This lability of mood is worsened by the ingestion of alcohol or intoxicating drugs.
· DIFFICULTY CONCENTRATING
Typically, PTSD patients have difficulty reading. If they can read, it is only for very brief intervals, or only illustrated magazines. Even watching television, although easier than reading, may be marked by lapses of attention and difficulty staying focused. The attention difficulties are likely to be the result of intrusive thoughts or images that both distract attention and increase feelings of anxiety. The entire process feels “out of control” which, in a self reinforcing manner, further increases anxiety and decreases attention.
· HYPERVIGILANCE
Hypervigilance, or the state of being in extreme alert, is partially driven by the central nervous system’s response to increased adrenaline and partially by the confusion of perceptions described above as the re-experiencing or “B” criteria.
· EXAGGERATED STARTLE RESPONSE
This is also a symptom of the physiologically stimulated central nervous system anticipating further frightening experiences , similar to the original overwhelming trauma. In certain natural catastrophes, such as earthquakes, victims are repeatedly re-traumatized for days or weeks as aftershocks recur. Marked anxiety results in brisk physiological reflex responses including an exaggerated startle response. One individual originally traumatized by the San Francisco Loma Prieta Earthquake of 1989 and subsequently by aftershocks, eventually developed large reactions to shocks of even minute magnitude. Eventually, his nervous system was so tense in anticipation of the possibility of another large quake that he remained in a state of high alert: he startled easily, and his feet left the ground if anyone closed a door behind him or made a noise unexpectedly.
THE DURATION OR “E” CRITERION
The duration of the disturbance (i.e. the symptoms in criteria b,c and d) lasts longer than one month. This is a somewhat arbitrary criterion. However, its purpose is to distinguish between brief, transient stress response reactions (called in the DSM-IV Acute Stress Disorder) and the more serious, lasting, Post-Traumatic Stress Disorder. Nevertheless, for practical clinical purposes, if a psychiatrist or other mental health professional strongly suspects a diagnosis of PTSD because of the enormity of the trauma and the presence of sufficient B,C and D criteria symptoms, it would be irrational and medically inappropriate to delay treatment for 30 days until the duration criterion had been fulfilled, especially since the best recoveries from PTSD occur when therapeutic measures are introduced early. For litigation purposes, however, “premature” PTSD diagnoses can be attacked when they are applied to symptoms that have not lasted for a minimum of one month. Often these are Acute Stress Reactions that will resolve spontaneously within a short time.
CLINICALLY SIGNIFICANT DISTRESS OR IMPAIRMENT IN SOCIAL, OCCUPATIONAL OR OTHER IMPORTANT AREAS OF FUNCTIONING, THE “F” CRITERION
The “F” criterion means that simply fulfilling the “A - E” criteria is not, in itself, enough to make the diagnosis of PTSD. In addition, the condition must cause clinically significant distress or impairment in social, occupational or other important areas of functioning. Of course, “clinically significant” is a broad concept that is subject to a wide range of interpretations based upon the examining clinician’s experience and judgment. However, the individual’s family, work, school and social lives are explored in detail to determine if this criterion is met. For practical purposes, it is difficult to conceive of a situation in which the Event Criterion is met and the “B - F” criteria are adequately met and the individual does not demonstrate clinically significant distress or functional impairment in these other areas of their life. If a claimant shows no significant impairment of functioning in work, social or family life, it is highly unlikely that they are suffering from genuine PTSD.
ACUTE, CHRONIC OR DELAYED ONSET
Finally, the PTSD diagnosis requires a specification of “Acute” (if the duration of symptoms is less than three months), “Chronic” (if the duration of symptoms is three months or more), or “Delayed Onset” (if the onset of symptoms is at least six months after the stressor).
DIFFERENTIAL DIAGNOSIS
As with many psychological conditions, individuals experiencing PTSD may be diagnosed with other problems. These “differential,” or alternative, diagnoses include Adjustment Disorder, Acute Stress Disorder, Obsessive-Compulsive Disorder, Generalized Anxiety Disorder, Mood Disorder, Substance Abuse, Organic Brain Syndrome and Malingering. The existence of nine diverse alternative diagnoses indicates that some of the signs and symptoms of PTSD are also found in other mental conditions. However, this multiplicity of alternatives neither indicates that PTSD is an imprecise diagnosis nor that it is very difficult to accurately determine. Nevertheless, the diagnosis will only be accurate to the extent that the examiner has carefully evaluated a person in terms of the very specific “A” through “F” criteria.
PSYCHOANALYSTS ARE PARTICULARLY WELL SUITED TO TALK TO A JURY
Psychoanalysts are psychiatrists (M.D.’s) or psychologists (Ph.D.’s) who have completed extensive advanced training beyond that required for their psychiatric or psychological certifications. They are specifically trained as careful observers who can understand a person’s present behavior in terms of their past experiences. This perspective enables psychoanalysts to supplement the static DSM-IV diagnosis with a dynamic psycho-historical understanding of why an individual behaves in a particular way. Because this is an explanation drawn ultimately from the individual’s unique life story, it is frequently heard by a jury as more plausible and comprehensible than an assemblage of dry criteria and technical jargon. Simply stated, psychoanalysts are able to “tell a story” that is cohesive, interesting and that makes sense to a careful listener. It is not surprising, therefore, that many of the most effective psychiatric medical-legal experts are also trained psychoanalysts.
TREATMENT OF PTSD
For most individuals suffering from PTSD, the treatment consists of psychotherapy and pharmacotherapy.
PSYCHOTHERAPY
Psychotherapy has as its purpose to help the individual master and integrate the overwhelming stimuli generated by the traumatic event. One very effective method is abreaction which is helping the patient discuss and re-experience the ideas and emotions associated with trauma in the safety of a therapeutic setting so that these reactions can be mastered. This therapy may necessitate that the patient review the events that occurred as well as their own actions and emotional reactions to those events. Depending upon the strength of the psychological defenses of a person who has PTSD, psychotherapeutic treatment may be required for a period lasting from six months to several years. Since estimated length of required treatment is an important parameter of any settlement negotiation, it is very important for the psychiatric expert consultant to carefully review these estimates in terms of the plaintiff’s general level of defensive functioning. For example, a PTSD plaintiff who is able to adjust to a new job, successfully manage intimate relationships or embark upon arduous vacation travel is unlikely to have markedly impaired psychological defenses and will probably not require extensive treatment.
Another aspect of psychotherapy is didactic, i.e. educational. The patient is told what he or she is likely to expect in the days, weeks and months ahead, so that those reactions can be anticipated and not experienced as a loss of control or feeling “crazy,” feelings which may further traumatize the victim, by temporarily increasing his/her anxiety and delaying recovery. This aspect of the therapy can be accomplished either in individual sessions or in a group debriefing session lead by a knowledgeable therapist who is experienced both in conducting PTSD debriefings and in treating people with this condition.
PSYCHOPHARMACOTHERAPY
Excessive anxiety or sleep disturbance can frequently be managed with temporary prescription of minor anti-anxiety medications such as Xanax (alprazolam) or Ativan (lorazepam). Transient sleep disturbances can be managed with the short term use of mild hypnotics (sleeping pills) such as Dalmane (flurazepam) or Restoril (tamazepam). All of these medications contain the potential for abuse and addiction.
DEPRESSION AND GUILT
Not infrequently, significant depression also develops during the days and weeks following a traumatic event, especially if the traumatized individual feels rational or irrational responsibility for the trauma, feels guilt that he/she survived while others did not (survivor’s guilt), or if the traumatic event and resulting losses resonate consciously and unconsciously with significant earlier life losses experienced by the individual. Under these circumstances, more intensive treatment is required. Psychotherapy must investigate and explore both the early life experiences and losses that have been re-activated by the recent traumatic event. As an adjunct to psychotherapy, anti-depressant medication such as Prozac (fluoxetine), Zoloft (sertraline), Paxil (paroxetine) or Wellbutrin (buproprion) may be very helpful in rapidly relieving depressive symptoms, reducing anxiety and restoring normal sleep. Antidepressant medications are all non-addictive.
HYPOTHETICAL CASES
HYPOTHETICAL PTSD CASE #1
Fact Profile:
A male catastrophe adjuster employed by a major property insurer was brought from another jurisdiction to work with customers whose homes had been destroyed in a massive fire covering hundreds of acres of residential property. The adjuster had worked with fire victims in other locations for many years without incident. However, this particular assignment elicited tears, difficulty sleeping and impaired mental concentration. I was asked to consult. Upon taking a detailed history from this adjuster, I learned that a decade earlier, he was engaged to be married to his childhood sweetheart. They had purchased a house in which they were going to live together after the marriage. Suddenly, she was killed in a freak automobile accident. After her death, he sold the house, moved to a different city and tried to put it all behind him. He never adequately mourned her death, never married nor even seriously dated during the decade since she had died. He simply “started over” and dedicated himself to his new job, putting his personal needs “on hold.”
After arriving at this assignment, he discovered that the home that he had purchased to share with his bride was one that had been totally devastated by the fire. The news brought back his terrible and unmourned loss of ten years earlier, which overwhelmed him with its intensity. A consultation and brief psychotherapy enabled him to complete his mourning, make a few life changes, and return to his formerly productive level of functioning.
HYPOTHETICAL PTSD CASE #2
Fact Profile:
Mrs. A., is an attractive, petite, twice married, high school educated thirty-six year old, Asian-American woman. She is the mother of two children, one from each marriage, and worked as a mail clerk for a major oil company. Part of her responsibilities as a mail clerk were to deliver the company mail to various department heads and supervisors. She was friendly, engaging and enjoyed the positive attention she received from some of the older men in managerial positions.
Her husband is a civil servant who objected to her returning to work. She is the middle daughter of a very large, low income family. She always maintained a particularly close relationship with her father. He worked as a school custodian and, in his spare time, taught her automobile mechanics when she was an adolescent. By returning to work she wanted to demonstrate that she could “become somebody.” She approached her new job with determined enthusiasm and dedication.
After two years of working as a mail clerk, one of the supervisors to whom she delivered mail, Mr. H., “recruited” her to join a half-time machinist training program set up for specifically for minority employees and sponsored by the company. Mr. H. is a heavy set, fifty-seven year old mechanical engineer, married and divorced four times and a twenty-five year “veteran” employee of the company. Mr. H. told Mrs. A. that if she was accepted into the training program and completed it, she would be his prodigy. She was flattered. Mr. B. also made a side bet with one of his colleagues that he could turn her into a qualified machinist “in record time.” During the last three years, two different women have asked for and received transfers away from Mr. H.’s supervision because of what they vaguely described as his “pressure tactics” and “sexually inappropriate” comments. There is also an rumor within the mechanical engineering division that Mr. H. has a “drinking problem,” although he has never been accused of drinking on the job.
Mrs. A. was accepted into the program and worked extra hours in order to maintain her income while pursuing the half-time training. Mr. H. was her supervisor and mentor in the program. After six months of training, he required her to accompany him on a business trip to a refinery in a distant city to repair equipment. He told her that she would assist him and that this assignment would constitute an important part of her training. She made arrangements with her family to be away from home overnight. After completing the first days work at the refinery, according to Mrs. A., Mr. H. knocked on her hotel room door at 7 p.m. and said he needed to show her diagrams of the work for the next day. She opened the door to let him in. As he pushed past her, she noticed the odor of alcohol on his breath. He sat next to her on a sofa to show her the book of diagrams but then, according to Mrs. A., began to caress her hair and cheek and told her how attracted he felt towards her and how much he “knew” that she “wanted” him too. He also stated that she “owed” him sexual favors because of all the effort he had invested to further her career. According to Mrs. A, he said “Where would you be now without me? You owe me!”
When she attempted to push him away but he overpowered her, pulled off her jeans and underpants and forcibly raped her. She says that she pleaded with him to stop. Afterwards, she ordered him to get out of her room. Profoundly shaken, she took a long shower trying to “clean” herself while crying. But she reported the incident to no one. The next morning, he apologized and said that “it will never happen again.”
She explained that she told no one at the company about the rape because she doubted that the mostly middle-aged male supervisors would believe her word against that of a colleague with managerial authority and she was certain that he would deny the incident. She also decided against telling her husband because she feared that he might take matters into his own hands and act violently against Mr. H. She also acknowledged that she was afraid he would insist that she leave her job and the training program which she so desperately wanted to complete.
During the next two years she was required to make approximately ten additional overnight business trips with Mr. H.. On at least two of these trips, under similar circumstances of intoxication, he again raped her. During the interim, she alleges that other acts of harrassment occurred such as his trying to rub her legs under the conference table during meetings.
After the second rape, she did confide the problem to a female friend who urged her to leave the company. After the third alleged assault, she became seriously depressed and refused to work any longer with her supervisor. Consequently, she was reassigned to an office job. Finally, her computer was taken away from her. Enraged and tearful, she was referred by Human Resources to a psychiatrist who examined her, diagnosed Depression with Suicidal Ideas and hospitalized her for two weeks on a psychiatric unit. At the end of her hospital stay, she told her psychiatrist for the first time about the alleged rapes. The psychiatrist changed his diagnosis to Post-Traumatic Stress Disorder.
Although her husband did not know of the alleged sexual assaults, he believed that she had been treated poorly by her supervisor and employer and retained an attorney to represent her. After the attorney interviewed Mrs. A. and she confided in him about the assaults, he filed a civil damages lawsuit on her behalf against the company and the supervisor, alleging PTSD psychological damages resulting from sexual harassment and multiple sexual assaults.
The defendant claims that he and the employee had an affair, that during the affair they had consensual sex, but that the affair ended more than a year. He flatly denies any allegations of sexual coercion, rape or wrongdoing.
Medical-Legal Question:
The primary medical-legal question is not whether she has a cause for action but whether she indeed is suffering from PTSD? Does she meet the A - F Criteria, in particular the critical threshold “event” criterion? If she does not meet the full criteria for PTSD, is she suffering from any other mental disorder? To what extent did she have pre-existing psychiatric illness(es), that preceded her employment and what role, if any, might they play in her current symptoms? Is she malingering? Is she delusional? If so, from what cause?
HYPOTHETICAL PTSD CASE #3
Fact Profile:
Mrs. B., a married, 35 year old secretary working for an agency of a municipal government, ate a pastry left for the secretarial pool following a board meeting. After biting into a croissant, she had the sensation in her mouth of a chewy, malodorous substance. She was disgusted and spit out the material. She brought the remaining croissant to a laboratory and was told that it was contaminated by rat feces. She complained to her doctor of anxiety, insomnia and recurrent thoughts of the rat feces. He treated her with a mild sedative and referred her to a marriage and family counselor psychotherapist. The therapist makes the diagnosis of PTSD.
Mrs. B. claimed that she could never work in an office again and filed a workers compensation claim for PTSD resulting from the rat feces contaminated croissant incident. She was awarded $75,000 plus 18 months of private vocational rehabilitation. She then filed a personal injury suit against the municipality, the caterer and the bakery that manufactured the croissant alleging permanent psychological damages.
Medical-Legal Question:
Of course, the central medical-legal question is again whether or not she is suffering from PTSD? If she is not, does she have any other mental illness or injury? If so what is it? Is it pre-existing or as a consequence of the alleged traumatic incident? If she has no evidence of other mental illness or injury, is she malingering? If she had no industrially related psychological injury, why was she given a substantial workers compensation award?
HYPOTHETICAL PTSD CASE #4
Fact Profile:
An attractive young woman, Ms. C., who was abused as a child and is the daughter of an alcoholic suffered an unknown degree of psychological problems. She got a job as a secretary in an office. She claimed that she was sexually harassed by a man who is the age of her father. She rejected his attention and initially did not report the problem to her employer because, she said, she feared that by doing so she might lose her job. After some time, her job performance deteriorates and she is terminated. She brought a wrongful termination suit alleging sexual harrassment and discrimination. After filing suit, she was treated by a psychologist who diagnosed PTSD resulting from the alleged sexual harrassment.
Medical-Legal Questions:
Several questions are raised by this case. Although the primary one is whether or not she is indeed suffering from PTSD as alleged, there are important secondary questions as well: a) what were the nature of her psychological problems prior to the alleged sexual harrassment? b) why she did not report the harrassment to her employer? c) if she does have PTSD, could it have been caused by childhood trauma; if she does not have PTSD, is she suffering from any other mental disorder? and d) what role, if any, did the childhood abuse by her alcoholic parents play in the formation of her character, her psychological defenses, and her ultimate difficulties at work?
Of course, in a case of alleged harrassment, the independent psychiatric expert should, in addition to reviewing documents, interview the plaintiff and investigate all of these questions delicately and with sensitivity, without contributing additional trauma to the plaintiff’s life and without giving even the appearance of “blaming the alleged victim.” At the same time, the examiner must respect the presumption of innocence of the accused. In this last regard, it can be helpful and is often essential to a successful defense for the psychiatric expert to not only examine the plaintiff/victim but also the accused harasser.
SUMMARY
Post Traumatic Stress Disorder is a psychiatric diagnosis with a long and established medical history as well as a vibrant medical-legal present and future. With increasing frequency, it is being claimed in a widening scope of personal injury, malpractice and employment litigation. It is a complex diagnosis requiring the careful and detailed examination of a plaintiff by an experienced medical-legal psychiatric expert. Psychoanalysts are well trained for the combined tasks of diagnosing, understanding and communicating to others the presence or absence of psychological injuries. Several approaches to treatment are mentioned. A number of hypothetical cases of alleged PTSD are presented. Critical questions about PTSD claims are raised that must be thoroughly addressed by the consulting medical-legal psychiatric expert.
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Brief Biography - Mark I. Levy, M.D., F.A.P.A.
Doctor Levy, a graduate of Columbia University College of Physicians and Surgeons and a Board Certified Psychiatrist and Forensic Psychiatrist, is also a graduate of the San Francisco Psychoanalytic Institute. He has been a full-time psychiatrist and psychoanalyst practicing in Marin County, California for more than 25 years, and he also devotes a portion of his practice to psychiatric expert forensic consultation. Doctor Levy is Assistant Clinical Professor at the Department of Psychiatry, University of California, San Francisco, and he is also on the faculty at the S.F. Psychoanalytic Institute. He is Chairman and Past President of the San Francisco Foundation for Psychoanalysis, a community outreach organization of psychoanalysts, and he has helped establish an educational program on psychological issues for attorneys through the Bar Association of San Francisco, where he has consulted on a wide range of psychological topics. Doctor Levy is a member of numerous professional organizations and has been interviewed and quoted nationally by the print and broadcast media including The Wall Street Journal, Business Week, For the Defense, NBC, Fox News and CNN. He has been the HealthBeat Psychiatrist and Psychoanalyst for KRON-TV4, the NBC affiliate in San Francisco, as well as for its cable station, Bay TV.
The following is the appellate opinion in Frye v. United States which was affirmed by the Court of Appeals, District of Columbia in 1923. Until the Daubert v. Merrill Dow US Supreme Court decision in 1993 and the Daubert standard for expert testimony replaced the Kelly/Frye standard in Federal matters (Frye still remains the standard for expert testimony in many states) Frye was the standard in state and federal courts for 70 years.
