FIG1Heightened scrutiny of
expert medical testimony and sanctions by medical licensing boards and medical
associations mean that psychiatrists need to take several precautionary steps
before they testify in legal proceedings.
Philip Merideth, M.D., J.D.: Expert testimony is increasingly being seen
as medical practice.
Credit: David Hathcox
That was the message delivered by forensic experts at APA's 2007 annual
meeting in San Diego in May.
The emergence of increased scrutiny of expert medical witnesses stems from
growing complaints about physicians providing dubious or misleading testimony
against colleagues in malpractice lawsuits, without the possibility of
professional sanctions against such witnesses. Clinicians also have complained
about the increasing use of out-of-state experts who specialize as expert
witnesses, according to forensic psychiatrists who spoke at the meeting.
In response to a raft of complaints about these problems, the AMA now has a
policy stating that medico-legal testimony by a physician expert witness
should be considered the practice of medicine and that such testimony should
be subject to peer review.
In recent years licensing boards have increased reviews of expert testimony
and disciplinary actions against expert medical wit nesses in legal
proceedings. Stepped-up oversight activity has included disciplinary measures
for findings of unprofessional conduct, establishing licensing requirements
for out-of-state physicians to testify as medical experts, and recommending
standards for expert testimony.
Also, professional associations have implemented peer review and
disciplinary steps in conjunction with expert testimony. Medical societies
that take on these roles often form peer-review committees to investigate
complaints filed against members because of testimony they have given as
"The trend may be away from treating expert testimony as something
other than the practice of medicine," said forensic psychiatrist Philip
Merideth, M.D., J.D. He is the chief medical officer at Brentwood Behavioral
Healthcare in Jackson, Miss., and a member of APA's Ethics Committee.
The increasing risk of professional-society and medical-board sanct ions
should convince physician experts to educate themselves to avoid legally
precarious situations, he said.
Some physician experts have pushed back against the increased scrutiny,
with mixed results. A Florida court found last year that a medical-society
program that evaluated the testimony of expert witnesses in medical-liability
cases was an unprotected form of peer review under state and federal liability
Amid the complicated and changing legal landscape, experts in legal issues
involving the medical profession, including Renée Binder, M.D., a
professor of psychiatry and director of the Psychiatry and Law Program at the
University of California, San Francisco, urged psychiatrists to take more
precautions before testifying than they may have in past years.
One suggestion to gain an understanding of relevant legal issues before
testifying in either criminal or civil cases is to take an appropriate
fellowship or pursue training leading to certification. Education also can
clarify the rules on confidentiality.
Psychiatrists need training that is specific to forensic psychiatry, Binder
suggested, which goes beyond diagnosing for the clinical setting to presenting
expert opinions about diagnosis and treatment that comports with the way the
legal system needs such information presented.
Expert witnesses should study state medical boards' standards for expert
testimony and the licensing requirements for out-of-state witnesses, Binder
The importance of a thorough understanding of state medical board
requirements has been highlighted in the ongoing legal wrangling in South
Carolina, for example, where the state medical board requires out-of-state
clinicians who testify as expert witnesses to get a medical license in that
Physicians who plan to testify as medical experts should first understand
the positions and policies of their state medical societies and state medical
boards. Sanctions by professional organizations may be reportable to the
National Practitioner Data Bank and are discoverable in litigation, Merideth
Physician groups that have guidelines for members who give expert testimony
include APA, the AMA, and the American Academy of Psychiatry and the Law.
Binder also urged psychiatrists to avoid testifying on issues involving
clinical situations with which they may be unfamiliar, such as treatment or
policies on particular inpatient units.
The experts at the workshop agreed that detailed notes are critical during
all aspects of a psychiatrist's involvement in legal proceedings. However,
opinions differed on the benefits of audio or video recordings of interviews.
Binder said she electronically records all such interactions to avoid
accusations that she did something that could harm the person at the center of
the case. Merideth countered, however, that records may be used in a follow-up
suit against the psychiatric expert witness. The only case interviews he
records are sexual-harassment cases involving women.
"Your audiotape will be micro-scrutinized by the opposing
counsel," he stressed.
Clinicians also should obtain written consent-form signatures from the
subject of a legal case before releasing any evaluations, Binder said.
Merideth urged clinicians to have their own lawyer help them understand"
unclear legal situations" before they agree to provide expert
There are also early indicators pointing to cases that clinicians should
avoid. Psychiatrists should avoid cases in which the person involved asks in
advance for a specific medical opinion, according to Binder.
Another red flag for a legally perilous situation involves cases in which
one party contacts the psychiatrist shortly before the trial is set to begin,
since this often indicates that other experts have already abandoned a weak