Afterword from a story entitled “Litigation Lane,” excerpted from Beyond Bedlam’s Door: True Tales from the Couch and Courtroom (Thunder Lake Press).
Forensic psychiatry involves the interface of psychiatry and the law. Over the years, I was asked to psychiatrically evaluate people in the context of civil litigation. Both plaintiff and defense attorneys retained my services to determine if an accident or incident that was the subject of a lawsuit involved psychiatric injury.
The people suing could be rape victims where a landlord had not provided adequate security in a building; or people who had been in accidents of every kind; others had been wrongfully terminated from their jobs; some had been discriminated against or sexually harassed at work. I was involved in evaluating people who had been in many different tortious situations: some bizarre, others rather routine.
After examining the litigant and rendering a report with my opinion, there were times when I would appear in court as an expert witness to provide testimony about whether or not the accident or incident caused psychiatric injury. If so, I would be asked under oath my opinion about the nature and extent of that injury, the need for treatment, and the long-term effects of that injury. I appeared in court on average only four times each year because most cases settled, meaning the plaintiff and defendant came to an out-of-court agreement about the financial award due the plaintiff to compensate the person for injuries sustained.
Civil forensic cases typically involved a tug-of-war between the plaintiff’s attorney and the defense attorney. In zealously representing a client, the plaintiff’s attorney would want to maximize the client’s injuries—sometimes to the point of outright exaggeration—thereby hoping to enhance the jury’s award to the plaintiff. Since the attorney’s fee was one-third of the award contingent upon either a settlement or prevailing at a jury trial, the attorney’s inclination was to demonstrate greater injury and hence be the beneficiary of a larger award.
On the other hand, the defense attorney, zealously defending his or her client, would minimize or refute the extent of injuries, aiming for a defense verdict, or for the lowest financial award possible.
I was once retained by an attorney defending a case in which an intruder gained entrance to an unsecured residential building; made his way into the plaintiff’s apartment by posing as a porter; and held the woman’s infant at knifepoint while ordering the woman to undress. He then raped her repeatedly. After the ordeal, she filed a lawsuit against the landlord because she and her neighbors had lodged multiple complaints about the broken lock on the building’s outer door.
In the context of litigation, her attorney retained a psychiatrist who examined her and rendered a diagnosis of Post-Traumatic Stress Disorder deriving from the ordeal she had suffered.
The defense attorney retained me to examine the plaintiff and provide an opinion about her psychiatric state. When he telephoned to retain my services, he said, “It’s all exaggeration. She’s back at work and doesn’t have a mental disorder of any kind.”
She certainly did have a psychiatric disorder: she presented with one of the most pervasive cases of PTSD I’d ever seen. She could no longer live in that building, was fearful each time she entered the new building in which she and her child now lived, and could no longer ride alone in an elevator. If she saw a man who even vaguely resembled her attacker, she panicked. Basically, she suffered with the classical hallmarks of PTSD, including intrusive recollections of the ordeal and nightmares in which she relived the traumatic event.
When I examined her and prepared a report detailing my findings and opinion, the defense attorney who had retained my services was very upset. “Your report serves the plaintiff’s case even better than the one prepared by the plaintiff’s psychiatrist,” he complained. “I didn’t hire you to buttress the plaintiff’s case.”
I urged the attorney to settle the case since the plaintiff had already appeared for the defense-retained examination. The plaintiff’s attorney would eventually demand the report, to which she was entitled according to the rules of litigation. The defense attorney was reluctant to follow my recommendation.
The psychiatric truth was not important to him.
Our legal system is an adversarial one in which both sides—plaintiff and defense—battle in the presence of a jury—the decider of fact—who may or may not award a plaintiff. The attorneys are locked in a war of words. In essence, these cases are fought on a legal battleground, mixing money, medicine, and the law in which medical specialists are used as weaponized experts.
Early on in my forensic work, I realized some medical experts were indeed hacks—physicians with opinions for hire. Depending on which side—plaintiff or defendant—retained them, they would tailor their medical findings and testimony to suit whomever was paying their fee. Such testimony often could be picked apart by opposing council as it usually was flawed, agenda-driven, and contrary to generally accepted psychiatric or medical standards.
But there were good reasons for not shading the clinical truth.
On a self-serving level, I knew that once an expert was exposed as a hack, that witness’s expertise was forever devalued. Word spread quickly through the legal community and it would be short-sighted to prostitute one’s self by providing untenable psychiatric opinions. Not only was such testimony assailable, but I wanted to maintain my self-respect by telling the clinical truth regardless of which side retained me.
It’s important to note the majority of attorneys—both those representing plaintiffs as well as defendants—did indeed want to be told the truth about a case. On many occasions an attorney would say, “I just want to know what I have or don’t have. Give it to me straight, so I know exactly where I stand with this case.”
But there were frequent requests for me—or forensic experts in any medical specialty—to shade the truth.
Contrary to the oft-heard mantra, a trial is not always a search for the truth.
Where money and the law intersect, truth can sometimes be the victim.
Mark Rubinstein is a psychiatrist and author of Beyond Bedlam’s Door: True Tales from the Couch and Courtroom. He can be reached on Facebook and on Twitter @mrubinsteinCT.
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