Law and Medicine

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Medical and Psychiatric Experts

How is an Objective Medical/Psychiatric Opinion Formed?

A medical expert is a physician who has the requisite clinical experience and academic achievement to form an objective medical opinion to a reasonable degree of medical certainty. A forensic psychiatrist is a physician who integrates clinical experience, knowledge of medicine, mental health, and the neurosciences to form an independent, objective opinion. Relevant data are gathered and analyzed as part of a process of alternative hypothesis testing to formulate an expert medical/psychiatric opinion. This expert opinion can be effectively communicated by written report, deposition, or courtroom testimony. The applications of forensic psychiatry are widespread in settings ranging from health care and the workplace to criminal justice and public safety. Common areas of expertise are briefly described below. For more details, see the left column listing of specific areas of interest, or confidentially call or e-mail our office directly.

Expert Multispecialty Team Analysis

Dr. Bursztajn continues to have an active clinical practice and consults and teaches nationally both as an individual and as a distinguished multispecialty team expert. He has had a long standing special interest in medical and psychiatric diagnosis. His publications analyzing clinical and forensic diagnosis and misdiagnosis range from the highly acclaimed book Medical Choices Medical Chances through Analysis: DSM Biases Evident in Clinical Training and Courtroom Testimony published in the September 2007 issue of Psychiatric Annals.

Review and analysis, consultation, and expert opinion formulation in medical and mental health malpractice, product liability, and testamentary capacity cases are a longstanding area of special interest. Responses to initial telephone or e-mail inquiries regarding case merit and expert assistance are at no cost, as well as referrals to colleagues where a multispecialty expert team seems best.

Who Can Benefit?

A forensic psychiatrist/medical expert can assist individuals and institutions, plaintiffs and defendants, attorneys, federal agencies, and the courts to evaluate claims ranging from medical and mental health malpractice to disability and sexual harassment. Organizations can also benefit from an expert consultation evaluating the validity and response strategy to employment, supervisory responsibility, or maintenance of health care standards claims. Public safety and criminal justice professionals can also find forensic expert consultation effective in analyzing and preventing threats to security.

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Some Examples of Expertise:

Medical and Mental Health Malpractice

A physician who is an expert in psychiatry, primary medical care, medical causation, and clinical ethics can analyze the informed consent process and primary medical care decision making and formulate an expert opinion applicable to specific questions, such as whether the standard of primary medical and mental health care for medical decision making and informed consent has been met by the treating physician, the staff, and the health care organization.

Dr. Bursztajn has been retained by clinicians and institutions as an expert for peer review and to consult to the courts and plaintiff's and defense attorneys on questions such as:

Employment Litigation

In the workplace, the forensic psychiatrist may be asked to consider whether a claimed disability (e.g., a chronic general illness, such as Chronic Fatigue Syndrome, a chronic pain syndrome, such as Fibromyalgia, or a mental disorder, such as Depression, Obsessive-Compulsive Disorder or Post Traumatic Stress Disorder) is valid and work stress-related. Some other frequently asked employment-related examination questions are:

Criminal Justice and Public Safety

Frequently asked questions range from evaluation of defendants for determining mitigating and treatable neuropsychiatric disorders to advising safety officials on courtroom and workplace security. Dr. Bursztajn is frequently chosen as a peer reviewer by journals in medicine and psychiatry, ranging from the Journal of the American Medical Association to the American Journal of Psychiatry. Among his forensic psychiatric contributions you can read his review of the book "Are You There Alone?" The Unspeakable Crime of Andrea Yates, by Suzanne O’Malley. New York, Simon & Schuster, 2004.

Areas of special interest include:

Pharmaceutical and Medical Device Product Liability

Product liability cases often raise issues of informed consent processes, assumption of risk, professional and organizational ethics, complex neuropsychiatric causation of claimed injuries, and the validity and reliability of expert methodology and opinion formulation. There can also be a question of distinguishing medical product liability from the physician's or patient's knowing assumption of risk. Here the level of informed consent available may be crucial.

Dr Bursztajn consults and teaches physicians, including psychiatrists, regarding the fundamentals of informed consent processes. "Informed Consent in Neuropsychosocialpharmacology," Psychiatric Times, 2005; 22(13):59-63. His longstanding interest in the ethical foundations of pharmaceutical and medical device research led to his serving on the National Committee for Quality Assurance (NCQA) under contract to the U.S. Department of Veterans Affairs (VA) in developing standards for the accreditation of programs for the protection of human subjects. These standards served as a basis for field testing and adoption nationally by the Institute of Medicine.

Areas of special interest include:

Expert on Experts

In the wake of a series of U.S. Supreme Court decisions on standards for reliability of expert methodology, distinguished forensic psychiatric experts may be asked to evaluate and opine as to the reliability of forensic psychiatric methodology of previously retained experts. Dr. Bursztajn has been retained as an "expert on experts" based on his teaching and publications (see for example his recent article On Skepticism and Tolerance in Psychiatry and Forensic Psychiatry in the Psychiatric Times' Forensic Bonus Issue) in the area of evaluation of reliability of forensic methodology and his service on a variety of relevant national professional standards committees. These range from the American Academy of Psychiatry and Law Ethics Committee to the American Bar Association's Advisory and Expert Panel for the State Justice Institute (SJI) Benchbook Project on Psychiatric and Psychological Evidence.

Questions of interest include whether the opinion of an expert meets generally accepted standards for reliability for forensic medical, psychiatric, and mental health evaluations. These include analyses of an expert's methodology for reliability of:

Dr. Bursztajn's classic article Avoiding Ipse Dixit Mislabeling: Post-Daubert Approaches to Expert Clinical Opinions (J Am Acad Psychiatry Law 31:205-10, 2003) informs us how experts can reduce the likelihood that their conclusions will be mislabeled. He continues to advise clinical experts across the spectrum of medical specialties, the bar, and the judiciary as to the fundamentals of clinical expertise post-Daubert/Joiner/Kumho evidentiary standards for the reliability of testimony of clinical experts. Also, see Dr. Bursztajn and colleagues explore the evolving role of the clinical expert post-Kumho in his article, Kumho for Clinicians in the Courtroom.

Medical Director

Harold J. BursztajnHarold J. Bursztajn, MD -[Curriculum Vitae]- has over twenty-five years of service as a distinguished patient care-focused clinician and as senior clinical faculty at Harvard Medical School. Among his many distinctions at Harvard Medical School is being recognized as a practicing "doctor's doctor" by being named Principal Mentor at Harvard Medical School and being awarded the A. Clifford Barger Excellence in Mentoring Award as well as being the first physician/forensic psychiatrist in Harvard Medical School's history to be appointed as the representative of the Harvard Medical School Alumni Board of Directors to the Harvard University Alumni Board. He continues to be active in patient care, forensic consultation, and judicial education. Among the many clinical honors bestowed by Dr. Bursztajn's patients and colleagues nationwide is his being recently named to the "Best Doctors in America" list.

He is co-Founder of the Program in Psychiatry and the Law at the Beth Israel Deaconess Medical Center Department of Psychiatry of Harvard Medical School and Associate Clinical Professor of Psychiatry at Harvard Medical School. Author of the highly acclaimed book, Medical Choices, Medical Chances this classic has been reviewed favorably in leading medical journals ranging from the New England Journal of Medicine and the Journal of the American Medical Association to the American Journal of Psychiatry. Among his other leading contributions to medical and mental health education are three books Divided Staffs, Divided Selves, a Case Approach to Mental Health Ethics, Decision Making in Psychiatry and the Law and Psychiatric Ethics and the Rights of Persons with Mental Disabilities in Institutions and the Community, as well as numerous articles in medicine, psychiatry, forensic neuropsychiatry and clinical ethics.

Dr. Bursztajn consults clinically and forensically, provides second opinions in patient care, teaches medical students and conducts continuing medical education courses for professionals; and advises institutions, the courts, and public health-oriented media on forensic psychiatry and clinical ethics-related issues. He serves as a peer reviewer expert for leading medical and psychiatric journals, non-profit medical and ethics review organizations, health care and human services corporations and the judiciary. His numerous awards and honors in the course of twenty-five years of service as a Harvard Medical School clinical faculty member range from the Solomon Faculty Research Prize to his being named as one of only fifty Principal Clinical Mentors for Harvard Medical School entering class.

In addition to his twenty-five-year commitment to patient care, Dr. Bursztajn consults nationally and internationally to individuals and institutions, plaintiff and defense attorneys, and the courts as a distinguished forensic psychiatric expert. Among his areas of expertise are treating vulnerable patients, improving medical and mental health decision making, informed consent and malpractice and product liability risk reduction, and standards for the forensic evaluation of employment-related claims, diminished capacity, psychiatric autopsies, and violence prevention.

Dr. Bursztajn is active in public education and promoting intergenerational learning and inquiry. Contributions to public education include his work as a guest analyst on news programs including CNN Headline News, Boston's WCVB News Show Chronicle and public education programs such as those presented by ABC's Discovery Channel including "Who Killed Julius Caesar?, " "Who Killed Tutankhamun?," "Who Killed Alexander the Great?," "The Mysterious Death of Cleopatra," and "Columbus: Secrets From The Grave." His work in public education with teams of experts from a variety of scientific and humanities backgrounds has been recognized both academically in Harvard Magazine and publicly in The Sunday London Times.

Dr. Bursztajn teaches and consults nationally to psychiatrists and other mental health professionals, as well as to physicians across the primary and specialty medical care spectrum. He serves as faculty for the Harvard Medical School Psychiatric Intensive Diagnostic Interviewing Preparatory Course for the Board of Psychiatry & Neurology certification examinations. He continues to publish and present workshops nationally and internationally on a variety of special interest topics in medicine and in general and forensic neuropsychiatry.

There are a variety of areas of human suffering which, insofar as they evoke painful or frightening feelings, can become all too sadly unspeakable. Among Dr. Bursztajn's special interests are the long term consequences of massive psychic trauma. Over the years he has explored this topic in workshops for health care providers both nationally and internationally. Dr. Bursztajn's motivation for becoming a doctor and for continuing to practice clinically and to teach nationally can be found in the following article: "The Shoah and its Aftermath," which presents the testimony of Dr. Bursztajn father, a Holocaust survivor.