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Psychiatrists and other mental health professionals are familiar figures in contemporary legal proceedings. Their roles range from evaluating a defendant's competence to stand trial, to recommending child custody arrangements after a divorce, to assessing emotional distress in a variety of tort actions. With managed care reducing both the pleasure and the remuneration to be derived from clinical practice, a growing number of clinicians are augmenting their practices by spending some of their time doing forensic work. Many practitioners, though, take on these functions without a clear understanding of the parameters of liability for their forensic evaluations and testimony.
Some helpful guidance on these matters comes from a recent Colorado case that considered the extent to which a psychiatrist can be held liable for allegedly improper performance of a forensic evaluation. Dalton v. Miller grew out of an independent psychiatric examination performed by Dr. Frederick Miller, a Denver psychiatrist, of Patricia Dalton (1). Ms. Dalton had sued her insurance company for failure to renew her health insurance policy, claiming, among other consequences, that the company's actions had caused her substantial emotional distress. As is common when such claims are made, the insurance company requested that the judge order Ms. Dalton to undergo a psychiatric evaluation by an expert, Dr. Miller, who had been retained by the insurer.
After performing the examination that was ordered by the court, Dr. Miller drafted a report for the insurer and later testified in a videotaped deposition prepared for use at trial. Before the trial could be held, Ms. Dalton and the insurance company reached a settlement, and Dr. Miller's testimony was never heard. However, Ms. Dalton then filed another suit, this time against Dr. Miller, alleging irregularities in his conduct of the psychiatric examination and discrepancies between his written report for the insurance company and the testimony he provided in his deposition. Among her many claims, Ms. Dalton alleged misrepresentation and deceit, invasion of privacy, intentional infliction of emotional distress, abuse of process, and civil conspiracy, all of which allegedly compromised her legal case and caused her significant distress.
The trial court that was assigned to hear these claims granted Dr. Miller's motion to dismiss the case on the grounds that he was entitled to "quasi-judicial immunity" for his actions in connection with the psychiatric evaluation. Quasi-judicial immunity derives from the common law, which, as the U.S. Supreme Court noted, "provided absolute immunity from subsequent damages liability for all persons—governmental or otherwise—who were integral parts of the judicial process" (2). Thus judges, prosecutors, and jurors cannot be held liable for the actions they undertake as part of their official duties. Other persons appointed to assist the courts may be covered by this blanket of protection, including mental health professionals who have been appointed by the court itself to carry out evaluations and make recommendations (3).
In general, however, experts hired by one of the parties to litigation are not covered by quasi-judicial immunity. Exceptions tend to occur only in unusual circumstances, such as a California child custody case in which both parties agreed to hire a single psychologist, whom the court characterized as a "mediator" who provided "dispute resolution services" (4). Thus when Ms. Dalton appealed to the Colorado Court of Appeals, that court decided that Dr. Miller's function in reporting back to the insurer, which "could then decide either to use the information or to ignore it in presenting its case," did not warrant the protection of quasi-judicial immunity.
However, there was still another source of insulation from liability to which Dr. Miller could turn. In Briscoe v. LaHue, the U.S. Supreme Court held that trial witnesses themselves are entitled to absolute immunity from civil suit on the grounds that "[a] witness' apprehension of subsequent damages liability might induce two forms of self-censorship. First, witnesses might be reluctant to come forward to testify…. And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability (2)." Moreover, the court noted, "honest witnesses might erroneously be subjected to liability because of the difficulty of proving the truth of their statements." To protect the truth-finding function of the court, absolute civil immunity for witnesses was essential. Of course, witnesses who lied in their testimony could always be prosecuted by the state for perjury, a criminal offense for which there is no immunity.
In this case, though, because Ms. Dalton's lawsuit against her health insurance company did not go to trial, Dr. Miller never took the stand as a witness. Fortunately for his defense, witness immunity has routinely been applied to testimony given in sworn depositions—which can be introduced as evidence at trial—and even to pretrial reports written for one of the parties (5). Thus the court found that Dr. Miller had absolute immunity for all of the testimony presented in his deposition and for the content of the reports he submitted to the insurer.
Dr. Miller was not yet home free. Among the plaintiff's allegations was that Dr. Miller had caused her harm by his behavior during the evaluation itself. The court cited an earlier Colorado Supreme Court case, which noted, "if the physician or health care provider conducted an evaluation in a manner that worsened the examinee's mental health and the physician or health care provider knew or should have known about information that would have cautioned against conducting the examination in that manner, a duty might well arise…" (6). Thus Ms. Dalton's case was remanded back to the trial court for proceedings to determine whether Dr. Miller's evaluation had been conducted in a negligent fashion, such as to have caused injury to her. The Colorado Supreme Court declined to review this decision.
The approach of the court in Dalton reflects the majority view of American jurisdictions on these issues. Forensic experts can count on absolute witness immunity to insulate them from liability to their examinees for the reports they write or the testimony they provide, even if they are negligent in performing those functions. Thus, for example, when a plaintiff alleges that an evaluation was negligently performed, resulting in a misdiagnosis of malingering and consequent denial of insurance benefits and treatment, the courts will not allow such claims to proceed to trial (6). A forensic evaluator working for an adverse party or for the court will not be held to owe a duty to the subject of the evaluation.
However, that does not mean that a clinician is immune from all liability for a negligently performed assessment. The party who employs the evaluator—whether an insurer, an attorney, or a litigant—if injured by the consequences of a negligent evaluation, can file suit for professional malpractice (7). Such suits are not common, but emotions often run high when claims are denied, and litigants who seek to blame someone else for the failure of their case might well turn to the experts employed to perform the evaluation and allege that they were negligent. This possibility underscores the importance of maintaining adequate malpractice insurance that covers forensic functions. Clinicians who expect to perform evaluations ought to check with their insurers to see whether their existing policies will cover claims that arise from evaluations for the courts. If not, some insurers will sell riders that, for a small additional premium, will provide this protection.
Although the formulation and expression of an opinion are protected by witness immunity, the actual performance of the evaluation may not be covered if the subject suffers harm as a result. Such consequences may be more common in other areas of medicine—for example, when a plaintiff claimed that a functional orthopedic evaluation itself resulted in injury to her back (8)—but it is not unimaginable that such claims could arise from psychiatric evaluations. Forensic examiners would do well to be sensitive to the possibility that the stress of an evaluation might exacerbate a subject's condition and modulate the assessment accordingly. Evaluations that are deliberately intended to stress the plaintiff pose a higher risk of liability.
To date, suits against psychiatrists and other mental health professionals that have arisen from forensic evaluations have been infrequent. However, such suits are not unheard of, and even if ultimately dismissed, they can engender considerable legal costs. Clinicians are well advised to obtain appropriate insurance coverage for their forensic work.
Dr. Appelbaum, who is editor of this column, is A. F. Zeleznik professor and chair in the department of psychiatry at the University of Massachusetts Medical School, 55 Lake Avenue North, Worcester, Massachusetts 01655 (e-mail, email@example.com).
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