Medicolegal Issues

Considering work as an expert witness? Look before you leap!

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Dear Dr. Mossman,
I am retired, but an attorney friend of mine has asked me to help out by performing forensic evaluations. I’m tempted to try it because the work sounds meaningful and interesting. I won’t have a doctor–patient relationship with the attorney’s clients, and I expect the work will take <10 hours a week. Do I need malpractice coverage? Should I consider any other medicolegal issues before I start?

Submitted by “Dr. B”

One of the great things about being a psychiatrist is the variety of available practice options. Like Dr. B, many psychiatrists contemplate using their clinical know-how to perform forensic evaluations. For some psychiatrists, part-time work as an expert witness may provide an appealing change of pace from their other clinical duties1 and a way to supplement their income.2

But as would be true for other kinds of medical practice, Dr. B is wise to consider the possible risks before jumping into forensic work. To help Dr. B decide about getting insurance coverage, we will:

  • explain briefly the subspecialty of forensic psychiatry
  • review the theory of malpractice and negligence torts
  • discuss whether forensic evaluations can create doctor–patient relationships
  • explore the availability and limitations of immunity for forensic work
  • describe other types of liability with forensic work
  • summarize steps to avoid liability.

Introduction to forensic psychiatry

Some psychiatrists—and many people who are not psychiatrists—have a vague or incorrect understanding of forensic psychiatry. Put succinctly, “Forensic Psychiatry is a subspecialty of psychiatry in which scientific and clinical expertise is applied in legal contexts….”3 To practice forensic psychiatry well, a psychiatrist must have some understanding of the law and how to apply and translate clinical concepts to fit legal criteria.4 Psychiatrists who offer to serve as expert witnesses should be familiar with how the courtroom functions, the nuances of how expert testimony is used, and possible sources of bias.4,5

Forensic work can create role conflicts. For most types of forensic assessments, psychiatrists should not provide forensic opinions or testimony about their own patients.3 Even psychiatrists who only work as expert witnesses must balance duties of assisting the trier of fact, fulfilling the consultation role to the retaining party, upholding the standards and ethics of the profession, and striving to provide truthful, objective testimony.2

Special training usually is required

The most important qualification for being a good psychiatric expert witness is being a good psychiatrist, and courts do not require psychiatrists to have specialty training in forensic psychiatry to perform forensic psychiatric evaluations. Yet, the field of forensic psychiatry has developed over the past 50 years to the point that psychiatrists need special training to properly perform many, if not most, types of forensic evaluations.6 Much of forensic psychiatry involves writing specialized reports for lawyers and the court,7 and experts are supposed to meet professional standards, regardless of their training.8-10 Psychiatrists who perform forensic work are obligated to claim expertise only in areas where their knowledge, skills, training, and experience justify such claims. These considerations explain why, since 1999, the American Board of Psychiatry and Neurology has limited eligibility for board certification in forensic psychiatry to psychiatrists who have completed accredited forensic fellowships.11

Malpractice: A short review

To address Dr. B’s question about malpractice coverage, we first review what malpractice is.

“Tort” is a legal term for injury, and tort claims arise when one party harms another and the harmed party seeks money as compensation.9 In a tort claim alleging negligence, the plaintiff (ie, the person bringing the suit) asserts that the defendant had a legally recognized duty, that the defendant breached that duty, and that breach of duty harmed the plaintiff.8

Physicians have a legal duty to “possess the requisite knowledge and skill such as is possessed by the average member of the medical profession; … exercise ordinary and reasonable care in the application of such knowledge and skill; and … use best judgment in such application.”10 A medical malpractice lawsuit asserts that a doctor breached this duty and caused injury in the course of the medical practice.

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