Expert Forensic Psychiatric Testimony Aids Defense in Malpractice Lawsuit

Medical Liability Advisory Service, January 1996, p 2.

Expert forensic psychiatric testimony in a federal case in Oklahoma offers a glimpse at a novel and effective use of the expert's testimony. The expert, Dr. Harold Bursztajn, reports how the use of such testimony helped return a jury verdict for the defense in this case (Jamie Claborn Drewry v. Phillip Harwell, M.D., et al., CIV-94-1600-T UDSC WD Oklahoma).

The expert testimony was introduced by the defense with respect to: a) medical decision making under conditions of uncertainty; b) the distinction between informed consent and informed choice; and c) motivation for memory revision.

The plaintiff was a young woman suffering from chronic pelvic pain. After a period of unsuccessful attempts to control the pain with medications, the defendant obstetrician/gynecologist performed a hysterectomy. The plaintiff's and defendant's testimony differed as to how this decision was reached and whether it reflected the plaintiff's wishes. In the course of the surgery, an embryo of one month's gestation was discovered and, as a necessary consequence of the surgery, aborted.

The plaintiff subsequently brought malpractice action, charging the defendant with performing an unwanted procedure, causing an unwanted abortion, and sexual misconduct. At the request of the defense, Bursztajn performed a court-ordered Rule 35 examination of the plaintiff. Subsequently, the charge of sexual misconduct was dropped. However, the case went to trial on the other two charges.

Bursztajn reported that he testified for the defense as an expert witness in forensic psychiatry, medical decision making, and informed consent. His testimony included:

  1. a constrictive use of decision analysis to retrace the decision-making process engaged in by the physician and patent and thereby to counteract the hindsight bias introduced by the plaintiff;
  2. a forensic analysis of the informed-consent process engaged in by doctor and patient, which provided a psychological autopsy of the decision.

Specifically, Bursztajn testified that:

  1. the physician and patent had appropriately considered the risks and benefits of four possible courses of action: medical treatment, psychiatric treatment, surgery, and no treatment;
  2. the patient had been competent to give informed consent and had in fact done so;
  3. the physician's actions met the standard of care in the areas of medical decision making and informed consent and were responsive to the patient's wishes as expressed at the time;
  4. a referral to a psychiatrist for psychogenic pain, which the patient in retrospect claimed to have sought, would not likely have been productive in view of the patient's defensive concealment of important aspects of her medical and personal history; and
  5. as a result of early developmental trauma, the patient had grown up feeling victimized. As a consequence, she had difficulty taking responsibility (which she equated with taking blame). Thus, although there was evidence she had made an informed choice, she subsequently sought to disavow the choice she had made and automatically revised her memory of the informed consent process to fit her long-standing secret identity as a victim.