• Informed Consent &
  Malpractice
• Employment Litigation
  ADA - Disability - Sexual Misconduct
  Discrimination - Worker's Compensation
• Emotional &
  Physical Damages
  Conscious Pain & Suffering
  Post-Traumatic Stress Disorder (PTSD)
  Neuropsychiatry and Brain Imaging
• Standards for Experts
• Product Liability
  Medical Devices & Pharmaceuticals
  Toxic Tort
• Criminal Justice &
  Public Safety
  Diminished Capacity - Drug Addiction
  Competency to Confess
  Death Penalty Mitigation
  Workplace Safety
• Family & Custody Issues
• Testamentary &
  Contractual Capacity
• Professional &
  Organizational Ethics
  Patient Care - Managed Care - Privacy
• Psychoanalysis &
  Cultural Perspectives

Employment Issues

Employment issues, including worker's compensation and disability law, supervisory negligence, workplace discrimination, and wrongful termination can benefit from a forensic neuropsychiatric evaluation. Such an evaluation begins with a review and analysis of medical records, depositions and supporting documents. Initial working hypotheses may be supplemented by a forensic psychiatric examination of the plaintiff or the insured. This process can result in the formulation of an expert opinion as to the validity, nature, and extent of the claims at issue. Areas of interest include risk factors for misdiagnosis, misattribution, malingering, or motivation for secondary gain.

Accommodation Claims

Forensic neuropsychiatric evaluation regarding reasonable accommodation claims and causation of emotional harm is among Dr. Bursztajn's areas of special forensic interest. In this regard he has been retained by both plaintiff's and defense counsel, and has advised the judiciary and psychiatrists in training. Dr. Bursztajn has served as an examining expert and also as an expert on the methodological reliability of employment-related forensic opinion formulation by mental health experts (i.e., as an "expert on experts"). The issue of misattribution of causation in employment-related cases (e.g., as when the job becomes a passive and convenient focus for misattribution of causation of deep-rooted problems in a person's life) is of parallel special interest.

Beginning with his internship at Harvard Medical School at Children's Hospital in 1978, as acting director of the Metropolitan State Hospital Concord Unit in 1979, and during the course of his residency in psychiatry at the Massachusetts Mental Health Center (1979-1982), Dr. Bursztajn has a special interest in the treatment and forensic evaluation of developmentally related impairments. These have included communication-related impairments such as deafness -e.g., evaluating reasonable accommodations making health care accessible for deaf patients and selecting jobs which, with reasonable accommodation, could be made suitable for deaf employees. Academically, Dr. Bursztajn teaches The Harvard Medical School Intensive Diagnostic Interviewing course for psychiatrists preparing for the American Board of Psychiatry and Neurology certification examination, with a special emphasis on learning to observe and report nonverbal communication by the mentally and developmentally communication-impaired patient.

Right to Privacy

Employment at Will Protection in NY May Extend to Physicians

Sheila E. Horn, Plaintiff, v. New York Times, Defendant. In Horn, the New York Supreme Court applied, to an entirely different profession, the same justification that enabled the Court of Appeals to create the narrow exception to the employment-at-will doctrine for the legal profession. The crucial factor in Horn was not the profession itself, but whether there was an overriding rule or ethical standard that serves to protect both the employee and innocent third parties. Accordingly, before disciplining professionals working under ethical or legal standards, employers may wish to look carefully at the type of discipline or reason for discharge.

Americans with Disabilities Act (ADA)

The Americans with Disabilities Act shields disabled persons from discrimination in the workplace. Claims of having a protected disability status and allegations of disability related discrimination in hiring, firing, or workplace practices must be supportable. A forensic neuropsychiatric evaluation and investigation into the discrimination claim can help to determine whether the alleged discrimination actually arose from the employee's claimed disability.

• Equal Employment Opportunity Commission. (EEOC) Notice No. 915.002. This notice puts forth the stand of the Commission on the relationship between the American with Disabilities Act and state workers' compensation laws.
• The ADA and Mental Impairment. This chart summarizes the relationship between mental impairments and the ADA based on the EEOC Notice No. 915.002.
• Article: Court Broadens ADA Scope
• Case: Mayotte M. Jones v. MetroWest Medical, Inc. The plaintiff in this case claimed that her Multiple Chemical Sensitivity (MCS) was a disability under ADA; the court ruled that MCS was not under the scope of ADA.
• Case: Stieberger v. Apfel "Standard Social Security Administration. Psychiatric Disability Denial Notices May be Constitutionally Defective."
• Case: Pennsylvania Department of Corrections, et al. v. Yeskey (No. 97-634)
• Case: Menkowitz v. Pottstown Memorial Medical Center The "disability defense" to loss of medical privileges.
• Case: Rascon v. U.S. West Communications, Inc. "Employer Must Allow Leave of Absence for Inpatient Treatment of Postgraduate Stress Disorder"
• Article: "Pivotal Rulings Ahead for Law on Disabilities" The New York Times, 4-19-99. The ADA as applied to mental and medical healthcare. Is it a question of reasonable accommodation or good health care?
• Case: LC v OLMSTEAD A complete text of this landmark ADA/Managed Care case.
• Article: "Major Mental Illness & Violence: Quick Fix vs. Commitment to Care"
• Article: "Supreme Court Narrows Scope Of Federal Disabilities-Bias Law." "The Supreme Court narrowed the scope of disabilities covered under a major law that protects disabled people against unfair treatment." For example, the Supreme Court has ruled that a disability that is reasonably correctable is not protected under the ADA (e.g., near sightedness and hypertension). On the other hand, the Supreme Court extended the scope of reasonable accommodations which states have to make for people with mental health disabilities to include treatment in the least restrictive alternative available (e.g., group home v. chronic inpatient hospitalization). The Wall Street Journal, 6-23-99
• Case: Sutton and Hinton v. United Air Lines, Inc., No. 97-1943.
• Case: Albertsons, Inc. v. Kirkingburg, No. 98-591.
• Case: Murphy v. United Parcel Service, Inc., No. 97-1992.
• Case: Olmstead, et al., v. L. C., by Zimring et al., No. 98-536.
• Case: Cleveland v. Policy Management Systems Corp., (No. 97-1008)
• Article: "Doctors Debate 'Chemical Sensitivity' Diagnosis"
  

  See Federal Judge commending Dr. Bursztajn's testimony on the need for a nuanced diagnosis an approach including ruling out malingering, sick role motivation, misattribution, and treatable psychiatric conditions.

• Case: Mayotte M. Jones v. MetroWest Medical, Inc.
• Article: "'Hostile Environment' Claims Expand Potential Liability Woes for Employers."  Hostile work environment.
• Article: McAlindin v. County of San Diego Life Activities and Ability to Work.
• Article: "A Disabled Attorney's Novel Strategy Puts A Civil-Rights Spin on HMO Litigation"

Three cases to research:

• Case: Equal Employment Opportunity Commission v. Complete Auto Transit, Inc. In this ADA case, the EEOC represented an employee with epilepsy.
• Case: Allen v. GTE Mobile Communications Serv. Corp. The court ruled that the plaintiff's depression prevented her from fulfilling her job; consequently, the employer was not required under ADA to continue her employment.
• Case: Buckley v. Consolidated Edison Company of New York Inc. (No. 96-9039) A federal appeals court in New York ruled that a recovering drug addict treated differently in a workplace drug test from non-addict employees may sue the employer under the ADA. [Mental Health Law Reporter, Vol. 15 No. 12, Dec. 1997]

Disability & Workers' Compensation

Questionable claims of pain or impairment are sometimes presented in workers' compensation or disability laws. An expert in medical decision analysis and forensic neuropsychiatry can evaluate the following factors: that a treating physician maintained established reliability standards in the diagnostic process; emotional factors that could complicate physical illness have been addressed; and the ruling out of common psychiatric mimics of physical illness (e.g., Somatization, Conversion Disorders, substance abuse, and personality traits such as malingering, exaggeration, misattribution of pain and impairment).

• Work Disability Prevention in the Midst of Major Mental Illness and Life's Trauma

  The individual and social risks of post trauma chronic work disability can be reduced by structuring clinical services so as to reduce the treating clinician being burdened by the dual responsibilities of both being the patient's treating clinician and potential back to work forensic evaluator. Dr. Bursztajn, Psychiatric Services, November, 2001.

• Surge in Bias Cases Punishes Insurers, and Premiums Rise. The New York Times, January 9, 2002

  Many companies, alarmed by the increasing size of payouts to resolve harassment or discrimination claims by employees, have bought insurance policies over the last decade to protect themselves.

• Case: Doe v. Doe Expert Testimony & Workman's Compensation
• Case: "Doctor Bolsters Insanity Defense" A jury overcomes prejudice against the insanity defense. Brattleboro Reformer, Vermont 1999.
• Excerpt on case: Vukic v. Melville Corp.
• Article Summary: "Stress and Psychiatric Disorder in Healthcare Professionals and Hospital Staff"
• Article: "Genes, Environment, and Mental Health Wellness" Genetics and Behavior.
• Article: "Merrill Lynch Cuts Health Costs, Creates a Generous Benefit Plan" A way for employers to save on worker's compensation and disability costs.
• Article: "Health and Disability Costs of Depressive Illness in a Major U.S. Corporation"
• Article: "Assessing the effect of psychiatric disorders on work function"
• Disability Law Blog. A Disability Law Resource

Chronic Pain

Can Employers' Long Term Disability For People With Mental Disabilities Be Limited?

U.S. Supreme Court last month let stand a federal appeals court decision allowing health plans to limit long-term disability payments for people with mental disabilities but not physical disabilities. Parker v. Metropolitan Life Insurance and Schering-Plough Corp. [Mental Health Law Reporter, Feb. 1998: Vol. 16 No. 2, p.9.]

• Article: "Business Groups and Allied in Congress Seek to Block OSHA Ergonomics Plan" Cited from the February 22, 1999 issue of The Wall Street Journal, By Glen Burkins

Chronic pain can also occur either as a result of a preexisting psychiatric condition or a complicating psychiatric comorbidity to physical injury. In the course of litigation, it always need to be forensically evaluated to rule out misattribution, exaggeration, or secondary gain.

• Article: Pain Management with Opioids Guidelines

Discrimination

Sex Discrimination

• Case: Kolstad v. American Dental Association, No. 98-208.
• Article: Rau v. Apple-Rio Management Company Inc. "Pregnant Manager awarded $1.8M In Bias Suit"

Genetic Discrimination

• Article: "Ban Genetic Discrimination" Boston Globe Op-Ed piece by Dr. Harold J. Bursztajn and Dr. Richard Sobel, that appeared on August 7th, 2000

Sexual Harassment & Supreme Court Cases

The Supreme Court decisions Oncale which have focused on "reasonableness" of perception, and employer and employee response, have expanded the role of a forensic psychiatric consultation and evaluation in both preventing and responding to sexual harassment claims.

Both true and false allegations of sexual harassment are made in the workplace. The presence or absence of psychological trauma is not enough to prove sexual harassment. False memories, desire for attention or revenge, and later reconsideration of consent can all lead to false allegations. At the same time, true allegations may not initially be considered credible. While a treating psychiatrist's goal is to help alleviate the presenting emotional and psychological pain and trauma without necessarily determining the facts of the incident, a forensic psychiatrist is trained to objectively evaluate claims such as that of sexual harassment. Such an evaluation yields more accurate testimony regarding the grounds on which the claim of sexual harassment is made, and potential emotional and physical damages.

"In 1991 the Equal Employment Opportunity Commission (EEOC), the federal agency that deals with such complaints, handled 6,127 of them (sexual harassment cases) and settled cases worth $7.7m in damages to victims. In 1997, it handled 15,889 complaints and won $49.4m for victims." The Economist, February 14, 1998, p. 25

• Sexual Harassment: "The Need for Forensic Psychiatric Examination"

On the importance of carefully evaluating for true and false sexual harassment and abuse allegations: The Me too! syndrome.

Among the phenomena noted when there is a valid or even pending accusation of sexual abuse or harassment against an authority figure, is the me too phenomena. Under these circumstances individual histories have to be carefully evaluated to rule out Hystories. (following a book by that title by Elaine Showalter, Columbia University Press: New York: 1997). Under these circumstances one has to avoid the misleading heuristics of "where there is smoke there is fire." If one accusation is true each accusation must be true and multiple accusations by friends of one figure are the gold standard for proof (i.e. The Salem Witchcraft Trials). There are a variety of Personality Traits ranging from Narcissistic or Borderline to Hysteronic or Dependent which are risk factors for Me tooitis.

See Boston Priests Warn Cardinal of False Abuse Allegations by Fox Butterfield, The New York Times, August 22, 2002.

Reasonableness of Perception:

• Differentiating true from false allegations of clergy sexual abuse: the need for a comprehensive forensic psychiatric examination. The Rebirth of Forensic Psychiatry in Light of Recent Historical Trends in Criminal Responsibility by Bursztajn, HJ, Scherr, AE, Brodsky A. Psychiatric Clinics of North America, November 12, 1994.
• Case: Oncale v. Sundowner Offshore Services, Inc., et al.
  1. This ruling of the U.S. Supreme Court (March 4, 1998) clarifies sexual harassment law as it applies to same-sex relationships.
  2. "Reasonableness Key": "The social context in which particular behavior occurs [Justice Scalia] is the key to distinguishing between simple teasing and genuinely abusive behavior." This distinction can be explored in the course of forensic psychiatric examination, evaluation, and opinion formation.

Reasonableness of Employee Perception:

The cases below bring up issues and questions which an expert can address in the course of a forensic psychiatric evaluation.

• Case: Faragher v. Boca Raton
• Case: Burlington Industries v. Ellerth

A brief summary of the cases listed above:

• Daubert

Psychiatric Expert Testimony Relevance and Reliability

• U.S. Supreme Court Rules about Standards in Expert Witness Post-Daubert

Summaries of some recent court decisions as to the admissibility of expert evidence post the U.S. Supreme Court Daubert decision:

• Case: Wilson v. Woods
• Case: Price Ex. Rel. Price v. NYC Housing Authority
• Case: Schlader v. Interstate Power Co.
• Case: Oncale

Are there any conditions which may have limited or influenced the reasonableness of employee perception of harassment in the specific organizational context?

• Faragher v. Boca Raton & Burlington Industries v. Ellerth

Did the employer take reasonable steps to prevent sexual harassment?
Did the employee take reasonable steps to prevent sexual harassment?
Did the employer take reasonable steps to correct (i. e. post-vention)?
Did the employee take reasonable steps to complain about sexual harassment?

• Article: Traumatic Memories as Evidence: True or False?
• Article: The Forensic Psychiatric Expert in Post-Daubert Sexual Harassment Proceedings. Latest developments in sexual harassment from Meritor Savings Bank v. Vinson to Jones v. Clinton.
• Equal Employment Opportunity Commission The home site of the EEOC, this site contains descriptions of various employment-related issues ranging from disability discrimination to workplace sexual harassment.
• Article: "Supervisory Negligence Litigation in Context." When harassment, discrimination, or assaults take place at work, the supervisor can be charged as a responsible party. This article discusses the litigation of such cases. At the same time, each claim needs to be carefully forensically evaluated for an objective determination of whether the attributions may be motivated by pre-existing psychopathology or a variety of organizational dynamics
• Case: Azzaro v. County of Allegheny. In this sexual harassment case, the plaintiff alleged that she lost her job because she reported the incident to her supervisor; the court ruled that her reporting the incident, even privately, made it a public concern.
• Article: "Supreme Court Rules Schools May Be Liable in Harassment." If there is a failure to respond reasonably and a reasonable plaintiff can prove a debilitating effect on mental and emotional well being (see Monroe v. Davis below).
• Case: Monroe v. Davis
• Case: Pascouau v. Martin Marietta Corporation. A forensic psychiatric dimension.
• Case: Davis v. Darnaby Family physician is sued by plaintiff alleging sexual misconduct.

AHA urges review of sexual-harassment policy

"In the wake of two recent U.S. Supreme Court rulings on workplace sexual harassment, hospitals should review their personnel policies to ensue compliance, the AHA and the American Society for Healthcare Human Resources Administration (ASHHRA) warned. The groups issued an advisory last week, urging hospitals to review their harassment policies in light of the high court's action, which made clear employers are responsible for the sexual misconduct of supervisors even if the employers knew nothing about the situations. The advisory is posted on the AHA Web site at or call ASHHRA at (312) 422-3982." [American Hospital Association Newsletter, July 1998]

Recent Supreme Court Decision Highlights

• Case: General Electric Co. v. Joiner "Most Recent Supreme Court Decision On Testimony by Scientific Experts." Reasonableness of Perception as One Dimension of a Forensic Psychiatrist Examination

• Article: Supreme Court Draws Line on Sexual Harassment
  

  "In a unanimous opinion sure to send big ripples throughout American workplaces, the justices also put new constraints on harassment suits of all kinds, urging judges to use common sense in deciding whether to let sexual-harassment cases go forward. 'We have never held that workplace harassment, even harassment between men and women, is automatically discrimination,' Justice Antonin Scalia wrote in a strikingly direct seven-page opinion for the court. The law doesn't cover ordinary 'intersexual flirtation'; nor does it apply in the ways men and women routinely interact,' he added." [Wall Street Journal - Interactive Ed, High Court Says Harassment Law Applies to Same-Sex Relationships, March 5, 1998.]

Recommended Reading:

• "Difference and Pathology: Stereotypes of Sexuality, Race and Madness." by Sander L. Gilman. Cornell University Press, Ithaca: 1985.
• Hystories by Elaine Showalter -- book on false accusations and pseudo-illness.

Dr. Bursztajn has an active patient care practice and consults to physicians, institutions, judges, and plaintiff and defense counsel nationally.