The Phobic in Court
Harold J. Bursztajn, M.D.
As a forensic psychiatrist, a psychiatrist who both testifies in court
as an expert witness and evaluates people who arc plaintiffs and defendants
in civil and criminal cases, I often encounter the following paradox:
those who will most benefit by testifying in court often arc those who
arc most frightened and anxious about testifying in court. As often as
not, such fears and anxieties become translated into phobias about having
to take the witness stand and testify in a case. These fears can range
from a fear of actually stepping into the courthouse, stepping up on
the witness stand, swearing to tell the whole truth and nothing but the
truth, or having to testify about an event which was so frightening in
the first place that one wants to put it out of one's mind and yet the
requirement of the case is to testify about it.
What follows is an illustrative case history. Jane D. was driving in her
automobile when she was rear ended by a pick-up truck driven by a drunk
driver. She lost consciousness but prior to losing consciousness remembers
a moment in time that "almost stood still" as she went forward
in the driver's seat and then back again restrained by her seatbelt which
proved to be lifesaving. She does not remember what happened next but
does remember being saved by the "jaws of life" which freed
her from her automobile and then finding herself with terrible left chest
pain. She was taken to the local hospital emergency room where it was
revealed that she had three fractured ribs and a fractured left arm.
After a brief period of hospitalization she remembers a trip back home
and being frightened to get into the passenger's seat of the automobile
which her husband was using to drive her home. She then preceded to have
recurrent nightmares, recurrent intrusive flashbacks around the accident
site whenever she was driving and would even avoid driving on any interstate
highway which is where the accident occurred in the first place.
Driving herself, she would only take backroads, drive very slowly and
still occasionally have panic attacks when any truck which reminded her
of the truck which hit her would appear. She eventually was referred
for treatment to a psychiatrist because of the profoundly disabling features
of her mental state which included hyper-arousalability, hyperdestructibility,
recurrent flashbacks and preoccupations, Her phobia around driving on
open highways caused her phobic avoidance of driving on highways. In
addition, her family life, including emotional and physical intimacy
with her husband dwindled to a stop and she was becoming more depressed
and, because of her problems with flashbacks, unable to concentrate on
her job.
Her treating psychiatrist initiated an intensive program of individual
psychotherapy which included behavioral, cognitive and psychodynamic
components as well as pharmacologic therapy given the severity of her
dysfunction. Two years after the accident and a year and half after beginning
treatment, Jane D. showed some response in terms of a diminution of all
of her presenting symptoms. Six months later, however, she was notified
by her attorney that the legal case surrounding the damages was now proceeding
to the point where she could see a trial date in the year ahead. She
also asked her treating psychiatrist whether she would be willing to
testify in court. The thought that the confidential nature of their dialogue
would be revealed became a preoccupation for Jane D. Moreover, in speaking
with her treating psychiatrist she informed her that the trial process
itself might be stressful, it would be helpful to preserve the confidentiality
of their treatment relationship and that a good alternative existed as
far as being able to provide the court with psychiatric testimony. She
stated that she herself, being a treating psychiatrist, would have no
ability to give the kind of objective forensic psychiatric opinion that
is required in court. By its very nature the treating psychiatrist-patient
relationship is one where the treating psychiatrist's job is to act in
the best interests of the patient. What is required for court, however,
is a degree of detachment and objectivity on the part of the testifying
psychiatrist as far as being able to inform the court with a degree of
medical certainty as to the causal relationship between the patient's
symptom and the accident as well as the extent of the damages and the
patient's prognosis. At this point, her treating psychiatrist suggested
that she seek a consultation in coordination with her attorney with a
forensic psychiatrist.
This is when I received the phone call. I was asked whether I would be
willing to do an extended evaluation of Jane D. for the purposes of presenting
testimony in court about whether there was a causal relationship between
the accident and her psychiatric symptomatology and what was the extent
of the emotional and physiologic damages that she had suffered thereby.
When I met with Jane D., it was with the clear understanding that I was
consulting to her attorney, her treating psychiatrist, and to her, but
that I was not going to be her treating psychiatrist Her treatment would
continue unimpeded and unharassed by the possibility of her treating
psychiatrist being called to testify, as the expert witness. In contrast,
anything which she communicated to me she did so with the knowledge that
should she and her attorney ask me to testify, I would testify to anything
that she had communicated to me. As the evaluation preceded this bifurcation
of function between the treating psychiatrist and myself, the forensic
psychiatrist, proved to be most helpful. For example, in the course of
my evaluation the patient had to reconstruct with me the very difficult
and emotionally overwhelming experience of having felt helpless following
the accident. Knowing that she would see her treating psychiatrist the
next day, she was able to speak more freely and without dreading the
overwhelming sense of helplessness that she knew she would experience
during such a reconstruction. As our evaluation preceded further we were
able to also interview others who had known Jane before the accident
and who knew her after the accident, including her husband, her children,
and two of her co-workers. Having such corroborative evidence for her
changes in function proved eventually immensely helpful at trial.
Six months prior to trial Jane was notified that she needed to appear
first for a deposition. The notice came in a certified letter which she
received. She signed the receipt, opened the envelope, and then went
into a state of panic. As I reviewed with her what a deposition would
involve it became clear that she had fantasies of being exposed, shamed
and humiliated about her symptoms of phobia. In particular, it became
clear that her family had an extended history of stigmatizing individuals
who had become phobic and that there was a strong family history of phobia.
Moreover, she did not understand the "eggshell skull" principle
of causality in civil litigation. Just because someone has a predisposition
to becoming phobic, by reasons of genetics or early developmental history,
and even if they were phobic before the accident, it does not mean that
they will not be compensated. This misunderstanding plus a mixture of
shame and a fear of loss about talking about her phobic symptoms combined
to increase the anxiety for her of being deposed.
She was able to go through the deposition with this clarification in mind
and six months after this it became time to prepare for trial. Once again
symptoms of panic and shame reappeared around the experience of having
to testify. The fear that telling the truth would leave one vulnerable
to being humiliated or exposed was now based on the idea of seeking compensation
for an automobile accident was something which her family had associated
with people who malinger or fake their injuries. Her injuries were real
but the old history of a family myth about what it means to sue someone
in court for an automobile accident lingered on for her. In fact it became
that much stronger as the trial date approached. Her treating psychiatrist
focused with her around symptomatic relief. As a forensic psychiatrist
my job was to help her communicate the truth as openly as she could.
I did so by my reconstructing with her again, in detail, the accident
and reviewing her reactions to it. This in itself seemed to help and
at trial she was a most effective and credible witness.
The high six figure compensation award given to her by the jury gave her
the means that she needed to pursue the kind of intensive treatment course
which she needed. Although much remained as far as her treatment was
concerned, my role as the forensic psychiatrist was over at this point.
I hope this composite case report illustrates and heartens people who
are phobic of testifying in court. Should a consultation with a forensic
psychiatrist be required, this should be done and should be separate
from the treatment in order to preserve treatment confidentiality. The
phobic person or his or her attorney can make contact with a reputable
forensic psychiatrist.
Harold J. Bursztajn, M.D. is Co-Director of the Program in Psychiatry
and the Law and Associate Clinical Professor of Psychiatry at Harvard
Medical School.