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Can a Treating Psychiatrist Double As Expert Witness for Same Patient?

A. In general, acting as both a treating psychiatrist and performing an evaluation for legal purposes (or acting as an expert witness) could adversely affect both the therapeutic relationship and your objectivity as an expert.

These are two common scenarios in which psychiatrists find themselves:

• A psychiatrist has been treating a woman, diagnosed with bipolar disorder, for three years. The patient and her husband are separated and have joint custody of their young son. The patient tells the psychiatrist that her estranged husband provides very little monetary support for the child and goes out of his way to make her life miserable. The psychiatrist thinks the patient is trying very hard to provide a good home for her child, but that sometimes she is barely holding things together. Now the father wants sole custody, saying the mother is "unstable." The father has retained a well-known attorney from a large and influential law firm to represent him. The patient's attorney has contacted the psychiatrist and asked her to write a report and provide oral testimony at a custody hearing in support of the patient/mother retaining custody of the child. The patient tells the psychiatrist that she cannot afford to pay for an independent medical expert and, "besides, you know better than anyone that it is best for my child to live with me."
  
• The patient is receiving disability insurance through his workplace as a result of an injury at work. The patient started psychiatric treatment about a year after the injury. The psychiatrist and the patient have been working on many issues, including issues related to the injury. Now the patient is involved in a dispute with the insurance company because the disability payments are being discontinued. He has consulted an attorney about filing a lawsuit against the insurance company. If the patient loses the disability payments, it is unlikely that he will continue in treatment with the psychiatrist because of the cost. Previously, the psychiatrist provided limited information, with the consent of the patient, to the disability insurance company about the patient's current and previous diagnoses and about the recommended treatment plan. Now the patient and his attorney have requested that the psychiatrist write a letter to the disability insurance company stating that the patient's current psychiatric problems were caused by the injury that he sustained at work.
  

In these scenarios, the psychiatrists are initially treating psychiatrists. Once they start giving opinions for the purposes of litigation or employment, however, they move beyond the role of treating psychiatrist and into the role of forensic psychiatrist or expert witness.

Multiple roles bring with them the very real possibility, even the inevitability, of conflicting obligations (that is, the patient's clinical needs versus the patient's legal needs). Conflicting obligations increase the risk of clinical, ethical, and legal problems.

The American Academy of Psychiatry and the Law states in its Ethical Guidelines for the Practice of Forensic Psychiatry, "A treating psychiatrist should generally avoid agreeing to be an expert witness or to perform evaluation of his patient for legal purposes because his forensic evaluation usually requires that other people be interviewed and testimony may adversely affect the therapeutic relationship."

It is appropriate for a psychiatrist, as the treater, to provide factual information in a report or testimony about the patient's clinical status, with proper consent from the patient, but if the assessments, recommendations, and opinions do not exactly match the litigation needs of the patient/party as the lawsuit develops, then the psychiatrist's usefulness as a witness is finished. He/she might even be detrimental to the patient's case, which could have serious implications for the therapeutic relationship.

If, in contrast, a psychiatrist tailors his/her assessments, recommendations, and opinions to the needs of the lawsuit, then his/her effectiveness as a treating psychiatrist is compromised, if not destroyed, and he/she may fall below the standard of care.

In either situation, if the patient thinks he/she has been harmed by the doctor's involvement, the patient may then have a cause of action against the psychiatrist based in negligence (that is, negligent treatment or negligent forensic evaluation).

Psychiatrists should be wary when asked for opinions or predictions by third parties, such as patients' employers, disability insurance companies, and attorneys. The safest response is for the psychiatrist to discuss the issue with the patient, explain the limits of his/her role as a treating psychiatrist, and outline the potential conflicts. The psychiatrist can advise the requesting parties that if they want a specific opinion or prediction, then they should obtain an independent medical exam for that purpose. Unfortunately, psychiatrists who practice in small towns or rural areas sometimes find that it is difficult to avoid dual roles.

Many medical professional liability insurance policies do not cover the risks inherent in forensic practice, but forensic work is covered under the APA-endorsed Psychiatrists' Professional Liability Insurance Program.

This column is provided by PRMS, manager of the Psychiatrists' Program, for the benefit of members. More information about the Program is available by visiting its Web site at <www.psychprogram.com; calling (800) 245-3333, ext. 389; or sending an e-mail to TheProgram{at}prms.com.

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