Psychiatric Experts in Victim Litigation

By Dr. Harold J. Bursztajn, M.D. and D. Thomas Nelson, Esq.

With increasing frequency, expert witnesses are being called to testify on behalf of crime victims who bring lawsuits based on crime victimization. These experts often engage in forensic research to help judges and juries understand technical issues ranging from inadequate security measures to the extent of emotional damages victims and their families have suffered. Perhaps no type of expert is enlisted more often than the forensic psychiatrist When a victim has suffered emotional trauma, especially in cases where there is little evidence of physical injury, a qualified forensic psychiatrist usually best demonstrates the extent of the victim's injuries.

The Forensic Psychiatrist

A forensic psychiatrist is a medical doctor who has training as a psychiatrist and possesses specific knowledge in the application of psychiatric principles to legal issues. A forensic psychiatrist may also have a clinical practice, however, when acting in the capacity of a forensic specialist, he or she is not providing therapy to alleviate the patient's suffering, but an objective evaluation for use by the retaining institution, attorney, or court.

Generally, forensic psychiatrists are involved in a range of particularized competency determinations, such as the capacity to make wills, dispose of property, refuse medical treatment, or the ability of children to express their wishes in child custody proceedings. In cases involving crime and victimization, forensic psychiatrists can evaluate and testify in cases where victims, and sometimes family members, are experiencing Post-traumatic Stress Disorder (PTSD). In these cases, it is necessary to reach a deep understanding of the victim's life history, so as to identify prior experiences that may have created a special vulnerability to trauma (as opposed to prior impaired functioning).

Forensic psychiatrists also evaluate issues relating to worksites, including workplace violence and sexual harassment They are also trained in psychological autopsy techniques to determine cause of death. In recent years, forensic psychiatrists have used their special knowledge of medical-legal issues to testify in cases of medical malpractice, which includes the ever-increasing number of suits for sexual misconduct by health professionals.

Conducting an Evaluation

A properly conducted forensic evaluation is an in-depth process. It entails multiple interviews at carefully spaced intervals over an extended period of time, detailed review and comparison of what the examinee has communicated on different occasions, microanalysis of the data (considering sequence, tone, and non-verbal behavior), and cross-checking with corroborative evidence (e.g., interviews with other relevant parties and law enforcement, medical records, other expert witness reports, and psychological testing).

The evaluation must be conducted with subtlety and delicacy. For a number of reasons, the examinee may minimize or deny symptoms of traumatic stress, exhibit amnesia or denial of past events which may evoke such stress. Such denial or minimization is, often as not, a significant component of severe emotional injury For instance, in cases involving past sexual abuse, some courts have begun to toll statutes of limitation from the time the plaintiff became aware of the damage resulting from the injury, rather than from the time the injury occurred. People under stress may forget or distort significant details, although neither necessarily denotes malingering or perjury. However issues involving the plaintiffs truthfulness are usually raised by defense counsel, therefore an unbiased examination by a forensic psychiatrist is often instructive. The essence of forensic psychiatry lies in creating a working alliance with the person being examined, for the limited purposes of the examination. It allows the examinee to collaborate in reconstructing the mental, emotional and physical states in question. If the alliance is successful, and if it is accompanied by a thorough microanalysis of data from multiple sources, the forensic psychiatrist should be able to anticipate 95 percent of the questions raised by even the most skillful cross-examiner.

Evaluating PTSD Claims

Post-traumatic Stress Disorder (PTSD), originally identified as a neuropsychiatric reaction to combat stress, has been applied more and more broadly since it was officially recognized as a psychiatric diagnosis in 1980. Indeed, it is arising in so many legal contexts that is it is becoming a major focus of psychiatry in the courtroom. In addition to its use in criminal law to support claims of self-defense (e.g., Battered Woman Syndrome cases), PTSD is now a commonly alleged form of emotional injury in civil litigation as well as a major element of damages in cases of physical injury. PTSD may occur as a result of a threat to a person's safety, includ-ing actual physical injury or the risk of physical injury. As such, it can be the basis of damage claims in cases of alleged harm caused by acts of violence, sexual abuse, and workplace harassment, to name a few. PTSD can also occur when a person is a bystander to harm inflicted upon a loved one.

Three recent developments indicate an even more prominent role for PTSD in civil proceedings. The first is the discovery of a physiological basis for persistent memories of terrifying experiences. Understanding how the brain stores emotional memories appears to validate the claim that PTSD can be a lifelong—if not always evident—condition. The second is both psychophysical laboratory demonstration and judicial recognition of PTSD as a condition with symptoms of emotional and physical distress. The third is the publication of revised criteria for PTSD in the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual (DSM-IV). Whereas the previous edition (DSM-III-R) specified that "the person has experienced an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone," the new edition simply states that

  1. The person has been exposed to a traumatic event in which both of the following have been present:
    1. the person has experienced, witnessed, or been confronted with an event or events that involve actual or threatened death or serious injury, or a threat to the physical integrity of oneself or others;
    2. the person's response involved intense fear, helplessness, or horror.

Thus, where the previous diagnostic criteria described the precipitating event(s), or stressor(s), in universal terms, the current criteria do so in personal terms. By respecting the variability of individual experience in response to threatening events, this redefinition of PTSD opens the way for more frequent claims of PTSD as a severe form of emotional injury.

At the same time, it places a premium on the kind of sensitive, thorough evaluation described above to assess the validity of such claims. In particular; a careful developmental history is necessary for interpreting subjective reactions to trauma. The evaluator must reach a deep understanding of the person's life history, so as to identify prior experiences that may have created a special vulnerability to a particular trauma, as well as pre-existing psychiatric conditions that may provide either a basis for questioning the effects of the trauma or a context in which those effects become explicable.

Evaluation and Treatment as Distinct Roles

It is an understandable temptation for attorney and client alike simply to ask the client's treating psychiatrist to perform the evaluation for the court. Tragically, the client who makes this request has no idea—until it happens—how devastating it can be to sacrifice the confidentiality of the therapeutic relationship and have one's formerly empathic ally reporting to the court one's most personal feelings and experiences. In these scenarios the client may have difficulty trusting their therapist thereafter.

There are other equally weighty reasons to avoid having even a highly trained psychiatrist provide both clinical treatment and forensic evaluation for the same person. In other medical specialties a treating clinician can sometimes provide objective information about a patient without thereby compromising either the treatment or the evaluation; however, in psychiatry this is not possible. A treating psychiatrist engages in an empathic exploration of the patient's subjective point of view, which entails a degree of emotional identification and a "willing suspension of disbelief." A forensic psychiatrist, by contrast, undertakes an objective investigation of cause-and-effect relationships, using multiple perspectives and information sources. The two roles are so incompatible the American Academy of Psychiatry and the Law considers it unethical to combine them as long as a forensic psychiatrist who is not the treating psychiatrist is available.

Moreover, from the trial attorney's point of view, the use of a treating psychiatrist of a forensic psychiatrist can generally damage the client's case. This often happens because a forensic psychiatrist's specialized expertise is given greater weight than a clinician's less-objective, albeit perhaps more empathic, opinion. The trial attorney should also take care in choosing a forensic psychiatrist, in that an expert who has a balanced background of testifying on behalf of both plaintiffs and defendants will likely be more credible. An expert who primarily testifies on behalf of only plaintiffs or defendants is probably more likely to be subject to issues of bias. Further, a trial attorney considering employing a psychiatric expert should be aware that another psychiatric institution, the American Board of Neurology, certifies experts in forensic psychiatry for added qualification of those already trained in the discipline.

In addition to the highly visible role of expert witness, the forensic psychiatrist preforms numerous consultative services out of the public eye. These include client management, witness evaluation, witness preparation, jury selection, and establishing witness credibility. Having an ongoing dialogue with the consulting expert is usually the best way to determine the services most useful to the client and the case.

Dr. Harold J. Bursztajn, M.D. is an Associate Clinical Professor of Psychiatry and Co-Director, Program of Psychiatry and the Law, at Harvard Medical School, and is certified by the American Board of Psychiatry and Neurology in psychiatry with added qualifications in forensic psychiatry. He may be reached at 96 Larchwood Drive, Cambridge, MA 02138. Telephone, (617) 492-8366; Telefax, (617) 441-3195. ■