Month: October 2019

If It Doesn’t Fit…

Posted on by Shawn Wygant

At PsychLaw.net we note that another recent mental health case illustrates the cross examiner attacking an otherwise well qualified expert on the basis of “fit”.[1] The Supreme Court adopted terminology used by Judge Becker of the Third Circuit in United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985), where it characterized a Daubert factor as one of “fit”.[2] Essentially, an otherwise well qualified expert may be attacked and/or stricken if his qualifications do not “fit” the issues in a case.  As in In re Dru, a well qualified psychologist was disallowed as an expert because he was called to testify on matters pertaining to medication – in a state where psychologists do not prescribe medication. The reviewing court reasoned that as he did not regularly prescribe medications, he could not give a meaningful opinion on the possible harmful effects of any proposed medications.[3]

This past year, two decisions evaluating “fit” came to different conclusions regarding how closely a proposed expert’s area of expertise needs to dovetail with the discrete subject on which they propose to testify. In Delaware, in Freidel v. Osunkoya[4], Mandy Friedel sought treatment from Dr. Amibola Osunkoya for opiate withdrawal, for which Dr. O prescribed methadone. She went back to him about a week later complaining of various discomforts, including chest pain. Dr. O continued her on methadone and prescribed an additional drug for her other symptoms.[5] Five days later, 24 year-old Mandy was dead of cardiovascular and pulmonary arrest, in which her blood level of methadone was thought to be a factor[6]. Mandy’s estate sued Dr. Osunkoya for medical negligence. In his defense, Dr. O sought to call Dr. Bruce Goldberger, a forensic toxicologist to testify. The proposed testimony concerned the levels of methadone found in Mandy’s blood and suggested they were within normal limits. The plaintiffs filed a motion in limine to prevent this testimony from the defendant’s expert on the grounds that although Dr. Goldberger may have been well-qualified as a toxicologist, he was not qualified to offer his opinion on the cause of Mandy’s death[7]. The Court agreed, explaining that,

Clearly Dr. Goldberger has impressive credentials. The issue is whether these credentials and his experience enable him to opine about Friedel’s cause of death…An expert may be highly qualified and competent to offer many opinions. But that expert must be competent to offer opinions in a given specific factual setting[8].

The Court found that the testimony Dr. Goldberger proposed to offer was not within the realm of a toxicologist, but rather a pathologist, and thus granted the plaintiffs’ motion in limine.[9]

We at PsychLaw.net find that as is unfortunately so often the case, where another state got it right, Texas got it wrong. In Menefee v. Ohman[10], a sixteen year old girl was admitted to a psychiatric hospital, where she was prescribed multiple psychoactive medications. When the girl became “confused” and fell down in her room, she was taken to Arlington Memorial Hospital for treatment. At this facility, her mother became concerned at her daughter’s condition, as the girl was “drooling…non-verbal…and her whole body was shaking”.[11] The mother removed her daughter from Arlington Memorial and took her to North Hills Hospital. At this hospital, she was examined by Dr. Ohman, who believed that the girl’s symptoms were reactions to her medication and felt they would dissipate as they wore off[12]. While at North Hills, the girl suffered seizures and brain damage. Mother sued Dr. Ohman, claiming that he had breached the standard of care by not prescribing anti-convulsant drugs for her daughter. Plaintiff mother sought to bring Dr. J. Boswell Tabler, a psychiatrist, to testify regarding the applicable standard of care of Dr. Ohman, a pediatrician consulting in the emergency room. Despite citing to prior caselaw that helpfully explained that, “…there is no validity…to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question…”,[13] the Court reasoned that, “‘there are certain standards of medical care that apply to multiple schools of practice and any medical doctor,’”[14] and found Tabler qualified to offer an expert opinion on the standard of care issue.[15] Where Delaware was right, Texas was wrong again.

We at PsychLaw.net feel that Indiana, on the other hand, got it right. In Bennett v. Richmond,[16] John Richmond was driving his van, minding his own business, when he was rear-ended by a truck driven by Henry Bennett. This collision resulted in injuries to Richmond’s neck, for which he sought medical treatment. A few months later, a work-related back injury caused the issues from the neck injury to flare up again.[17] Richmond underwent a neuropsychological evaluation with a psychologist, Dr. McCabe, to determine whether he had sustained a closed head injury in the car accident. McCabe concluded that Richmond’s symptoms indicated a traumatic brain injury caused by the accident with Bennett.[18] McCabe testified to such at trial over Bennett’s objections.[19] After a jury verdict in Richmond’s favor, Bennett appealed, contending that the trial court had erred in permitting McCabe’s expert testimony on the ground that he was not a physician and thus was therefore not able to testify regarding medical diagnosis.[20] Relying on the record produced by the cross-examiner, the Indiana Court of Appeals agreed, explaining that:

The evaluation of a brain injury, which is within Dr. McCabe’s field of expertise, is distinct from the determination of the medical cause of a brain injury, which is generally exclusively within the purview of medical doctors…Dr. McCabe has not demonstrated that he is qualified to opine on causation in this case.[21]

We at PsychLaw.net believe an excellent example of the court working diligently to sort out the competing claims about specific expertise and the qualifications of a proposed expert can be found in Bado-Santana v. Ford Motor Co.[22] In this matter, newly minted federal district court Judge Gustavo Gelpí in Puerto Rico was faced with competing claims about psychologist Maria Margarida and Mild Traumatic Brain Injury. In this case, Judge Gelpí undertook a detailed evaluation of the proposed expert’s qualifications and the manner in which her credentials and methodology “fit” the facts at issue in the case.

In another recent “fit” illustration, a plaintiff complained of injuries when a falling piece of wood struck her head while she was shopping at the defendant’s business. The plaintiff received treatment for her injuries from physicians and a psychologist. She also received case-management advice from one Michael Davis, a “brain injury specialist”.[23] At trial the judge allowed Davis to testify as a fact witness, but excluded a portion of his testimony relating to the plaintiff’s competence. The plaintiff attempted to qualify Davis as an expert based on the fact that he was certified as a “brain injury specialist” and attended numerous seminars, conferences, symposia, and classes on brain injuries. While is was clear that Davis had experience working with people suffering from brain injuries, the cross examiner brought out that his work has been limited to case-management services like coordinating benefits, finding rehabilitation experts, and assisting brain-injury sufferers in retaining appropriate legal counsel. The cross examiner demonstrated that Davis did not diagnose or provide therapeutic treatment to his clients. In fact, the cross examiner made a record that Davis had no formal education or experience in any medical field. In sustaining the trial court’s refusal to allow Davis to testify as an expert, the panel pointed out that while a degree is not a per se requirement, the experience or specialized knowledge the witness has must “fit” the field about which the witness proposes to testify.[24]

We at PsychLaw.net point that an excellent example of the court working diligently to sort out the competing claims about specific expertise and the qualifications of a proposed expert can be found in Bado-Santana v. Ford Motor Co.[25] In this matter, newly minted federal district court Judge Gustavo Gelpí in Puerto Rico was faced with competing claims about psychologist Maria Margarida and Mild Traumatic Brain Injury. In this case, Judge Gelpí undertook a detailed evaluation of the proposed expert’s qualifications and the manner in which her credentials and methodology “fit” the facts at issue in the case.

Cross examiners in Minnesota attacked the “fit” of an otherwise well qualified expert in Noske v. Friedberg,[26] and succeeded in blocking his expert testimony. In this case James Noske had a few beers and decided that the folks in the cabin across the highway were probably drug dealers. Mr. Noske went after them with his gun and was charged and convicted of second degree assault.  Thereafter, both the district court and the state court of appeals denied postconviction relief. Years later, Noske petitioned the federal district court for a writ of habeas corpus.  The federal district court ruled that attorney Friedberg’s assistance was constitutionally deficient and found that the introduction of a self-defense theory to the jury would have had a reasonable probability of altering the outcome of the case.  Noske had thus been “denied his Sixth Amendment right to effective assistance of counsel and was prejudiced thereby”[27]. The federal district court granted habeas relief, vacated Noske’s conviction, and authorized the state to retry Noske on the criminal-assault charge, which the state declined to do. Noske then filed a legal-malpractice action against Friedberg in state district court.[28]

At trial, Noske presented Michael Scherschligt, a Hamline University School of Law professor, as an expert. The trial court barred Scherschligt as an expert reasoning that a proposed expert must “make a substantial showing of qualification in the particular field of inquiry”[29]. Analyzing Professor Scherschligt’s experience on the basis of “fit” the court reasoned and the appellate panel agreed: experts should also have practical experience in the particular matter at issue. In this matter the court discovered that Scherschligt taught primarily torts and professional responsibility. The district court ruled that it was unlikely that Scherschligt, who had no practical or academic experience in criminal law and had only academic experience on issues of professional responsibility, could provide admissible expert testimony at trial[30]. Another proposed expert stricken on the basis of “fit”.

We at PsychLaw.net find that in another federal analysis of “fit”, the Third Circuit examined New Jersey District Judge Alfred J. Lechner Jr.’s error in exclusion of behavioral science testimony[31]. In a carefully crafted opinion, the Third Circuit describes how the District Court’s analysis should have proceeded. In Mathis, the defendant was identified by both a police officer as one of the men the officer saw fleeing from a New Jersey bank robbery. He was also identified by Steven Gantt, a man who pled guilty to the same robbery and rolled over on the defendant on eleven previous bank jobs.  At trial, District Judge Lechner ruled that the testimony of the unindicted co-conspirator (Mr. Gantt) was admissible against the defendant.

Mr. Mathis’ defense described the unindicted co-conspirator as a liar and focused on the police officer’s fleeting eye-witness identification.  The defense called upon Professor Geoffrey Loftus[32] to describe “…memory formation, double identification…post-event information…the relationship between confidence and accuracy, and weapons focus.”[33]

Following a Daubert hearing, Judge Lechner ruled that Loftus was clearly qualified as an expert, but stated: “…I believe this testimony has the probability of confusing and misleading the jury….I decline the invitation to admit.”[34] While the Third Circuit ultimately ruled that Judge Lerchner’s Daubert errors were harmless,[35] the Circuit’s instructions concerning the proper approach to behavioral sciences evidence is informative.

The panel began by describing Professor Loftus’ experience and education, agreeing with their district judge that he obviously qualified under a Daubert analysis.[36] The panel then listed the subject matter of the testimony Loftus proposed to offer:

Dr. Loftus then proffered testimony on four topics concerning the operation of human memory: (i) the preconditions for forming accurate memories, (ii) the confounding impact of “double identification” or “post-event information,” (iii) the relationship between individuals’ confidence in describing memories and the accuracy of such memories, and (iv) potential disruptions caused by “weapons focus.” With respect to memory formation, Dr. Loftus observed that, among other circumstances, the brevity of one’s     visual exposure to an object tends to cause an incomplete memory, which might later be especially susceptible to biasing influences.  Dr. Loftus described “double identification” as a problem in determining whether one’s        memory derives from one of two or more possible visual exposures to an object. According to Dr. Loftus, a witness’s recognizing someone, under circumstances similar to those described by [the police officer], could derive either from the witness’s actually having seen the recognized person or from a previous exposure to that person’s photograph.  Dr. Loftus indicated, citing scientific studies, that when one encounters a remembered image along with ‘post-event information’ suggesting a particular context from which the image might be remembered…[37]

 

Indeed, the numerous pages discussing Loftus’ proposed testimony provide a veritable treatise on the scientific factors which must be considered in eye-witness identification. Next, the panel carefully discussed what Professor Loftus described as the manner in which the relevant research fit the facts of the case.  This was the essential point of contention because the panel reasoned that it was in an analysis of “fit” where District Judge Lechner went wrong.[38]

As the Mathis panel further explained:

…[T]he government challenges the fit of Dr. Loftus’s testimony in three respects.   First, on the subject of “double identification” and “post-event information,” the government claims that Dr. Loftus’s testimony did not pertain to the present facts because, according to Dr. Loftus’s own theory, [the police officer] viewed Mr. Mathis’s face only once, as part of the suspect materials, before selecting from the photographic array. Thus, the government claims, this case did not involve any “double” identification…The government also argues that there was no post-event information “between the visual identification of Mathis on the day of the robbery and the photo array identification”…Each of these arguments misconstrues the substance of Dr. Loftus’s testimony.[39]

Reminding again and again of the “liberal standard of admissibility mandated by Rule 702”,[40]  the panel devoted ten solid pages to a clear explication of the interaction of the rules of evidence and the relevant behavioral science.

Citing to their district judge’s concerns over the “aura of reliability” and the supposed “confusion of the jury”, the panel explained:

We find is difficult to accord the customary degree of deference to the District Court’s discretion in this case… The District Court clearly expressed concern with “[t]he aura of reliability that’s attached to an expert witness”–which is one reason for district courts’ “gatekeeping function” in assessing expert testimony under Rule 702. …There is no suggestion, however, that such an aura of reliability was unwarranted in this case or, to be more precise, that it was unfairly prejudicial.  From the record, it seems that Dr. Loftus was an extremely qualified, experienced academic presenting opinion on topics near the heart of his expertise. Moreover, Dr. Loftus’s conclusions seem closely tied to empirical studies whose reliability is not impeached, and he explained the bases for these studies at apparently appropriate length.   In short, we see no reason to believe that Dr. Loftus’s aura of reliability reflected anything other than his actual reliability as an expert witness.   With respect to the District Court’s concern with “confusing and misleading the jury” and “unfair prejudice”, we are unable to discern from these references, any more than from our own review of the record, how such problems might arise.[41]

After its detailed analysis, the panel stated simply: “We find that, in this case, and on this record, it was an abuse of discretion not to admit such testimony into evidence.” [42]

___________________________________________________________________________________________________________________________

[1]         In re Dru G., 369 Ill.App.3d 650, 860 N.E.2d 845, 849 (2006).

[2]        Daubert, 113 S. Ct. 2786, at 2796.  The expert’s testimony must provide “a valid scientific connection to the pertinent inquiry.” Downing was a human memory and eyewitness testimony case. In Downing, the Third Circuit discussed certain of the rationales advanced by other courts of appeals in prior years for excluding such testimony, including notions that relevant issues could adequately be raised through cross-examination and common sense, that such testimony usurps the jury’s function, and that such evidence would lead to an unduly confusing “battle” of experts.  Downing, 753 F.2d 1224 at 1229-30 & n. 4. The Downing panel found those rationales unpersuasive, and disavowed the skepticism concerning such testimony as a matter of principle.  The panel then remanded for the district court to apply Rule 702‘s “helpfulness test.” In Downing the panel described this test, as: ‘[A]dmission depends upon the ‘fit,’ i.e., upon a specific proffer showing that scientific research has established that particular features of the eyewitness   identifications involved may have impaired the accuracy of those           identifications.”  Downing, 753 F.2d 1224 at 1226.

[3]        Id. Dru was a review of orders for the involuntary administration of

psychotropic medications.

[4]        994 A.2d 746 (Del. Super. Ct. 2010).

[5]        Id. at 748.

[6]        Id.

[7]        Id. at 751.

[8]        Id.

[9]        994 A.2d at 751-752.

[10]       323 S.W.3d 509 (Tex. App.-Fort Worth 2010).

[11]       Id. at 512.

[12]       Id.

[13]       Id. at 514, citing to Ehrlich v. Miles, 144 S.W.3d 620, 625.

[14]       323 S.W.3d 514, citing to Blan v. Ali, 7 S.W.3d 741, 746.

[15]       323 S.W.3d at 519.

[16]       932 N.E.2d 704 (Ind. Ct. App. 2010).

[17]       Id. at 706.

[18]       Id. at 706-707.

[19]       Id. at 707.

[20]       Id. at 709.

[21]       932 N.E.2d at 709-710.

[22]       482 F.Supp.2d 192 (D. Puerto Rico 2007).  Judge Gustavo Gelpí is the youngest United States District Judge for the District of Puerto Rico. He was appointed on August 1, 2006. Previously he served as a United States Magistrate Judge for five years. He is also a former Assistant Federal Public Defender and law clerk to Juan M. Perez Gimenez, his predecessor and now colleague on the federal bench.

[23]            Newman v. Farmacy Natural & Specialty Foods, 168 Ohio App.3d 630, 861 N.E.2d 559, 562 (Ohio App. 2006).

[24]       Id.

[25]       482 F.Supp.2d 192 (D. Puerto Rico 2007).  Judge Gustavo Gelpí is the youngest United States District Judge for the District of Puerto Rico. He was appointed on August 1, 2006. Previously he served as a United States Magistrate Judge for five years. He is also a former Assistant Federal Public Defender and law clerk to Juan M. Perez Gimenez, his predecessor and now colleague on the federal bench.

[26]       Noske v Friedberg, et. al., 713 N.W.2d 866 (Minnesota App. 2006).

[27]       Id.

[28]       Id. The district court dismissed the claim as barred by the statute of limitations.  The court of appeals reversed and remanded, and the supreme court affirmed, holding that Noske’s cause of action did not accrue until he was granted habeas corpus relief in 1999.

[29]       Id. 871.

[30]       Id. 872.

[31]       U. S. v Mathis, 264 F.3d 321 (3rd Cir. N.J., 2001).

[32]       Professor Geoffrey Loftus is the former research partner and former husband of Professor Elizabeth Loftus, the world renowned scientist and expert on human memory.  While a team, the Professors Loftus, carried on many studies and wrote numerous scientific papers on the issues relevant to memory and eye-witness identification.

[33]       264 F. 3d 321 at 340,  note seven.

[34]       264 F. 3d 321 at 335.

[35]       The evidence from the witnesses in the bank as well as that of the unindicted co-conspirator were seen as overwhelming.  264 F. 3d 321 at 343 – 344.

[36]       Curiously, someone transcribed that Professor Loftus earned his doctorate at “Stamford” University, when it was obviously Stanford, in Palo Alto, California. 264 F.3d 321 at 333.

[37]       264 F.3d 321 at 333 – 334.

[38]“      This court has construed Rule 702 as embodying ‘three distinct substantive restrictions on the admission of expert testimony: qualifications, reliability, and fit.’  Elcock v. Kmart Corp., 233 F.3d 734, 741 (3rd Cir.2000).  Only ‘fit’ is contested here; the government acknowledges that Dr. Loftus is a properly qualified expert and that his methods, principles, and data are of a sufficiently reliable scientific character.  See generally Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (discussing factors that may be considered in assessing scientific reliability);  In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n. 8 (3rd  Cir.1994) (same).” 264 F.3d 321, 335.

[39]       264 F.3d 321 at 336 (emphasis added).

[40]       264 F.3d 321 at 335 & 336.

[41]       264 F.3d 321 at 336.

[42]       264 F.3d 321 at 342.

Victims, Villians, and Saviors

Posted on by Shawn Wygant

Clients frequently come into treatment expressing allegations and complaints about people close to them.  These allegations and complaints may be directed at spouses, siblings, or parents. Seeking the client’s loyalty, therapists often endorse these allegations.  At PsychLaw.net we find that as a result, client and therapist begin to think of the people with whom the client is disaffected, to some degree, as villains.  This often leads to the client assuming the role of a beleaguered victim; and the therapist evolves as an altruistic savior, assisting the client to contend with the villains of a “toxic family.”

When a significant person in a client’s life has been designated a “villain”, client and therapist gravitate into a closer alliance with each other.  Moreover, a designation as “victims” provides clients with an enhanced sense of potency that heretofore may have eluded them.  There is a great deal of secondary gain associated with the “victim” role.  Disregarding initial impressions to the contrary, a victim is actually more powerful than a villain.  Victims enjoy a virtuous reputation that inspires them, villains endure a malevolent reputation that humiliates them.

At PsychLaw.net we emphasize that when clients and therapists organize their relationship about the reciprocity of victim and savior, the identity of each demands the other persist in their role.  Victims need saviors, and saviors need victims.  Victims reassure saviors that they are in fact saviors, and saviors reassure victims that they are in fact victims.  When villains participate in the exchanges between victims and saviors, a triangulated relationship develop.[1]   These triangulated relationships typically organize themselves about the premise: “The enemy of my enemy is my friend;” and as a result, they can persist for extended periods of time.[2]

Therapists who create triangulated relationships act as if they ‑ and only they ‑ can assist their clients. As a result, these therapists often lure their clients’ into  excessive dependence.  Rather than solicit their clients’ dependency, effective therapists resolve the impasses that alienate clients from friends and family. An effective therapist assesses clients to identify the types of social support relevant to their needs.  Effective therapists ask themselves: Does the client need bolstered self‑esteem?  Does the client need information or help with day‑to‑day living?  Does the client need companionship?  The therapist then works to help the client’s friends or family members to increase the level of social support available to the client.  We at PsychLaw.net find that in circumstances such as these, the therapist progressively assumes a more peripheral role in relation to the client.  Simultaneously, friends and family emerge as the central figures they should be in the lives of the clients who need them.

Cross‑examining RE Victims, Villains, and Saviors.

  1. In this case, your client came into therapy expressing complaints about ____ (fill in the blank) ‑‑ Correct?
  2. And those complaints included ____, ____, and ____ ‑‑ Correct?

[Fill in the blanks with information obtained from treatment notes]

  1. And you responded sympathetically to those complaints ‑‑ Correct?
  2. And because you responded sympathetically to the client’s complaints, the client regarded you as a wise and perceptive person ‑‑ Correct?
  3. By responding sympathetically to the client’s complaints, you may have encouraged him to think of himself as a victim ‑‑ Correct?
  4. And in this exchange, the client thought of you as a savior ‑‑ Correct?
  5. And you and the client thought of the people with whom the client was disaffected as villains ‑‑ Correct?
  6. Have you ever heard the phrase, “The enemy of my enemy is my friend”?
  7. If you and I share the same enemies, we might become very loyal friends ‑‑ Correct?
  8. In other words, if the court reporter is my enemy, and if the court reporter is your enemy, then we can predict that you and I will be friends ‑‑ Correct?
  9. And this is the way you inspired loyalty in your client, her enemies became your enemies ‑‑ Correct?
  10. And inspiring that kind of loyality in clients can make them dependent on you ‑‑ Correct?
  11. And though the client was loyal to you, and developed a dependency on you, you never effectively assisted her in resolving the conflicts with the other people in her life ‑‑ Correct?

Strengths vs. Deficits.

The Freudian pursuit of insight predisposes legions of therapists to lead their clients into detailed analyses of their maladjustments.  Treatments focusing primarily on deficits suggest that clients must understand their many supposed maladjustments in great depth and detail.  In their determination to promote these kinds of insights, therapists can “prime” their dialogues with clients.

Therapists exercise priming effects via leading questions and other suggestive influences.  In turn, the responses expected of clients ‑ inventorying their many, supposed deficits ‑ prompts heightened therapist interest and attention.  Therefore, priming effects afford therapists the opportunity to lead clients into biased searches for their deficits and shortcomings.  Simultaneously, therapists overlook their clients’ strengths and resources.  We at PsychLaw.net find that these biased searches then leave clients more discouraged and pessimistic via mood‑congruent memory effects.

For almost 20 years, laboratory research has examined mood‑congruent memory effects.  This research demonstrates that induced mood states significantly influence how people think about themselves and their life situations.[3] , [4] , [5]  Simply asking people to think about a sad event, for example, leads to significant increases in depression and anxiety.[6]  Inducing a sad mood also increases the extent to which people anticipate negative events.[7]  Conversely, inducing a happy mood prompts marked decreases in levels of depression and anxiety.  Creating an up‑beat mood also increases the level of expectations for positive events.

Persuading clients they must undergo detailed dissections of their problems and deficits arouses their depression and anxiety.  Increasing clients’ depression and anxiety, while also creating heightened expectations for negative events, decreases their self‑confidence.[8]  Therefore, persistently examining the supposed shortcomings and deficits of clients leads to unfortunate outcomes.  Therapists who resort to these kinds of tactics create more needs for their services.  These tactics reduce clients to heightened self‑doubt and discouragement; and we at PsychLaw.net find that as a result, clients often conclude they need more therapy.  Unfortunately, legions of therapists describe such clients as “insightful.”

On the other hand, priming and mood‑congruent memory effects can also facilitate positive treatment effects.  Treatments that lead clients into detailed, comprehensive assessments of their strengths assist them more effectively.  This approach encourages clients to seek solutions for the problems that motivated their undertaking therapy in the first place.  In these circumstances, mood‑congruent memory effects arouse more optimistic expectations.  Clients inventory their existing strengths identifying how to most efficiently solve their problems.

Inventorying strengths moreover directs clients to issues of what needs to be done to cope more effectively.  Too often, inventorying client deficits deteriorates into a never‑ending, circular endeavor examining why those supposed deficits exist.  In other words, treatment questions of “What” motivate well‑defined courses of action compared to questions of “Why.”  Therefore, psychotherapy responds more effectively to the welfare of clients when it seeks to identify their strengths, as opposed to analyzing their deficits.

Cross‑examination RE Strengths vs. Deficits.

  1. Your course of therapy focused in considerable detail on the client’s problems and deficits ‑‑ Correct?
  2. And you wanted the client to insightfully understand her problems and deficits ‑‑ Correct?

[USE THE 22 FOUNDATIONAL QUESTIONS FROM PREVIOUS POSTS IF YOU HAVE NOT YET DONE SO]

  1. You are familiar with the term “mood‑congruent memory effect” ‑‑ Correct?
  2. The Journal of Systemic Therapies is a generally recognized and accepted, peer‑reviewed journal in your field ‑‑ Correct?
  3. And Campbell’s definition of the mood‑congruent memory effect found in his 1996 article – “Systemic Therapies and Basic Research” ‑ published in the Journal of Systemic Therapies might be relevant to your work in this case ‑‑ Correct?
  4. Please consider Campbell’s definition of the “mood‑congruent memory effect”:

– [ read ] –

“Laboratory research examining mood‑congruent memory effects has demonstrated that induced mood states significantly influence cognitive processes.”

Now my question: You can accept this definition of the mood‑congruent memory effect ‑‑ Correct?

  1. The Journal of Clinical Psychology is also a generally recognized and accepted, peer‑reviewed journal in your field ‑‑ Correct?
  2. And a 1993 study by Baker and Guttfreund published in the Journal of Clinical Psychology ‑ titled “The Effects of Written Autobiographical Recollection Induction Procedures on Mood” ‑ might be relevant to your opinions in this case ‑‑ Correct?
  3. Please consider how Baker and Guttfreund described their study:

– [ read ] –

“Conditions One and Two consisted of subjects being asked to think of the two saddest and two happiest events of their lives, respectively … The procedure produced marked decreases in depression (p < .001) and anxiety (p <.001) as mood states in Condition One (happy events) and marked increases in depression (p < .001) and anxiety (p < .001) in Condition Two (sad events).”

Now my question: If thinking about sad events increases depression and anxiety, this is an example of how induced mood influences cognitive processes ‑‑ Correct?

  1. When you and your client focused his attention on his problems and deficits, a sad mood  mood was induced ‑‑ Correct?
  2. And we know that inducing sad moods can increase people’s feelings of depression and anxiety ‑‑ Correct?
  3. Therefore, your leading this client into a detailed examination of her problems and deficits may have simply increased her feelings of depression and anxiety ‑‑ Correct?
  4. And clients who experience progressively greater levels of depression and anxiety can conclude they need more therapy ‑‑ Correct?
  5. In other words, a therapy that provokes heightened levels of depression and anxiety creates a need for its own services ‑‑ Correct?
  6. That kind of therapy creates a need for its own services because increasingly depressed and anxious clients usually conclude they need more therapy ‑‑ Correct?
  7. And some therapists call clients ‑ who think they need more therapy ‑ insightful ‑‑ Correct?
  8. And as a result of the Baker and Guttfreund study, we also know that thinking about happy events decreases depression and anxiety ‑‑ Correct?
  9. But in reviewing your treatment notes, you focused much more on the clients’ problems and deficits than you focused on his strengths and resources ‑‑ Correct?

__________________________________________________________________________

[1].       Bowen, M. (1978). Family therapy in clinical practice. New York: Jason Aronson.

[2].       Abelson, R.P. & Rosenberg, M.J. (1958). Symbolic psychologic: A model of attitudinal cognition. Behavioral Science, 3, 1‑13.

[3].       Bower, G.J. (1981). Mood and memory. American Psychologist, 36, 129‑148.

[4].       Clark, D.M. & Teasdale, J.D. (1982). Diurnal variation in clinical depression and accessibility of memories of positive and negative experiences. Journal of Abnormal Psychology, 91, 87‑95.

[5].       Snyder, M. & White, P. (1982). Moods and memories: Elation, depression, and the remembering of the events of one’s life. Journal of Personality, 50, 149‑167.

[6].       Baker, R.C. & Guttfreund, D.G. (1993). The effects of written autobiographical recollection induction procedures on mood. Journal of Clinical Psychology, 49, 563‑567.

[7].       Hendrickx, L., Vlex, C. & Calje, H. (1992). Mood effects of subjective probability assessment. Organizational Behavior & Human Decision Processes, 52, 256‑275.

[8].       Bandura, A. (1986). Social foundations of thought and action: A social cognitive theory. Englewood Cliffs, NJ: Prentice‑Hall

Negligent & Intentional Infliction of Psychological Injuries in Medical Practice

Posted on by Shawn Wygant

Unfortunately, there are numerous circumstances in which psychological injury can occur in medical contexts.  For example, fear of HIV infection as a form of phobia or psychological injury has been compensated in our courts.  In 1997 an Illinois appellate panel determined that a cause of action for negligent infliction of mental distress[1] was recognized for physician’s failure to disclose the fact that he had been infected with human immunodeficiency virus (HIV) to a patient when seeking patient’s consent to perform an invasive medical procedure.  The panel reasoned that even where there is no allegation of actual HIV transmission during course of the procedure, the lack of informed consent and the resulting anxiety in the patient was compensatable.[2]

In the context of psychiatric treatment, a California court discussed the psychological injury to a mentally impaired and chronically schizophrenic girl in Adams v Murakami. [3] In this case, the defendant physician treated the plaintiff, in a locked psychiatric unit over a span of many months. The unit had both male and female patients with free access to each other. The hospital permitted consensual sexual relations between patients and the staff knew that such activity was common. The defendant prescribed birth control for some of his patients, but not to plaintiff despite her requests.[4]  The court also found that the defendant made only monthly visits to see his patients, and he did not make examinations of his patients on those visits. The defendant also ignored the plaintiff’s symptoms of pregnancy until the plaintiff was in her seventeenth week of pregnancy. He then ordered an abortion, which was blocked by the plaintiff’s brother-in-law. The defendant did not take the plaintiff off of the psychotropic medications she was receiving, and did not inform her that they were contraindicated for pregnancy. A son was born who was severely retarded and autistic. The plaintiff experienced two acute psychotic breaks within a year of the birth. The court held that the defendant’s conduct was sufficiently outrageous to sustain substantial awards of both compensatory and punitive damages.[5]

At  PsychLaw.net  we find that even the practice of radiology can bring about psychological injury.  In Curtis v MRI Imaging Services II, [6] an Oregon court determined that a patient who sustained permanent psychic injures as result of MRI procedure stated viable claim for negligent infliction of emotional distress.  The patient did not allege any physical injury but was harmed when the professionals failed to warn him of the claustrophobic effects of an MRI.  This was particularly important because the defendant professionals also failed to learn beforehand of the patients’ asthma, and failed to stop the MRI procedure when he reported fear and trouble breathing.

In addition, numerous courts have sustained psychological injury claims when treatment was being delivered to others.  In Love v Cramer [7] a Pennsylvania court determined that the daughter of a woman whose death from a heart attack was caused by doctor’s negligence, had alleged sufficient harm to sustain an action against doctor for negligent infliction of emotional distress.  This was so even though the doctor’s negligence did not take place at time of mother’s death and daughter’s trauma.  The essential issue for recovery on the N.I.E.D. theory was that the daughter witnessed discrete and identifiable traumatic events in her mother’s deterioration and thereby suffered depression, nightmares, stress, and anxiety that required psychological treatment.

In Crippens v. Sav on Drug Stores, [8] a Nevada court determined that a pharmacy could reasonably have foreseen that its pharmacist’s negligent dispensation of wrong prescription drug to a daughter who provided care for her mother, (to whom drug was prescribed), would result in harm to daughter.  Because the daughter witnessed her mother’s extreme adverse reaction to the wrong prescription drug, the court held the daughter could bring a negligent infliction of emotional distress claim against the pharmacy.

In what we at  PsychLaw.net  believe is an equally tragic case, an Ohio court reasoned that a proper claim for N.I.E.D. could be sustained by a husband who witnessed his wife, covered in blood and under cardiac arrest, being brought to a hospital emergency room from the provider’s facility.  The hospital failed to fulfill the surgical services provider’s emergency request for four units of blood during surgery, and the woman died.[9]

Some of the most difficult circumstances of medical practice can lead to sustainable claims for Intentional infliction of emotional distress.  The Restatement (Second) of Torts, provides that the elements of a cause of action for Intentional Infliction of Emotional Distress are:

  • Extreme and outrageous conduct;
  • That gives rise to severe emotional distress; and
  • That was so reckless that the defendant expected or should have expected that severe emotional distress would result.[10]

In an older Tennessee case, a mother, some weeks after her premature baby died, asked her physician what had happened to the baby’s remains. The physician could only find that the baby was not disposed of as a surgical specimen.  The bereft mother went to the hospital to find out about her child and a clerk took her across the hall and pulled out a large jar that contained the baby preserved in formaldehyde. The Tennessee court ruled that these facts were sufficient to sustain an award for both compensatory and punitive damages for intentional infliction of emotional distress.[11]

In addition, in 1990, the Iowa courts took up a claim for “outrage”.  In Oswald v LeGrand [12] the court noted that a plaintiff began to bleed heavily after being examined by a defendant obstetrician in his office, whereupon she was taken by ambulance to the hospital.   She was then discharged, but the cramping and bleeding got worse the next day. Her husband took her to the emergency room but the defendant physician said there was nothing to be done and wrote discharge orders again. The plaintiff’s husband insisted that she be admitted and she was admitted despite the physician’s objection. The first nurse plaintiff saw told her she should have stayed at home.  Next, another nurse told plaintiff that if she miscarried, she would not have a baby but “a big blob of blood.”  The following day, one of the defendant doctors got into an argument with the family, insisting that he did not want to care for the plaintiff.  He then neglected her complaints of pain, and left to go on vacation. Minutes after he left, plaintiff began delivering her baby in the hallway and her husband had to kick open a door to get the attention of the nurses.

Providing clearly substandard care, the nurses only examined the baby visually and announced that it was stillborn. Another defendant physician then delivered the placenta but did not examine the infant and went back to his office. The father in the meantime touched the infant’s finger, had the grasp returned and advised a nurse. The nurse determined that the baby was alive and transferred it to neonatal intensive care, where it died about twelve hours later.  The Iowa court found that these facts were sufficient to state a cause of action for intentional infliction of emotional distress, even without expert testimony that would have been necessary to establish that any of the defendants committed malpractice.[13]

There are additional contexts in which extreme and outrageous behavior can lead to psychological injury.  In Andrews v Bruk ,[14] the Court determined that when a staff physician improperly accessed a patient’s confidential hospital records and annexed them, without consent, as exhibit to physician’s own divorce action, the plaintiff properly stated a cause of action in I.I.E.D.  In Macsenti v. Becker,[15] the Tenth Federal Circuit Court determined that when an Oklahoma dentist performing a delicate implant procedure, lost consciousness as many as ten to fifteen times during the process but nevertheless continued his attempt to complete the surgery, (heedless of any danger posed by keeping patient sedated for an unreasonably long procedure); the patient properly stated a cause of action for I.I.E.D.

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[1]  Section 436A of the Restatement (Second) of Torts:  “Negligence Resulting in Emotional Disturbance Alone,” provides:

If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.

[2]  Doe v. Noe, 228 Ill. Dec. 937, 690 N.E.2d 1012 (App. Ct. 1st  Dist. 1997); See, also: Harris v. State, 187 Misc. 2d 512, 723 N.Y.S.2d 824 (Ct. Cl. 2001): A plaintiff can objectively establish actual exposure to HIV virus, as element of cause of action for phobia of acquired immune deficiency syndrome (AIDS), by proving (1) a means of transmission that is scientifically accepted as capable of conveying the virus and (2) the presence of blood or other fluid that is HIV-positive.  See, also: Monaco v. Health Partners of Southern Arizona, 196 Ariz. 299, 995 P.2d 735 (Ct. App. Div. 2 1999), review denied, (Feb. 8, 2000): Erroneous treatment that increased patient’s risk of leukemia resulted in substantial, long-term emotional disturbances sufficient to support claim for negligent infliction of emotional distress.  Patient was diagnosed with post-traumatic stress disorder (PTSD), had trouble sleeping, had nightmares about disease, woke up in sweat, and could no longer enjoy visits from children and grandchildren.

[3]  228 Cal App 3d 885, (2nd Dist., 1990) revd in part on other grounds 54 Cal 3d 105, 284 Cal Rptr 318, 813 P2d 1348 (1991).

[4]  Her chart indicated that she had been seen in bed with numerous men.

[5]  Id. See also: Jacoves v United Merchandising Corp. 9 Cal App 4th 88, 11 Cal Rptr 2d 468 (2nd Dist. 1992): A hospital or doctor may be liable to the parents of a psychiatric patient for negligent infliction of emotional distress damages caused by the breach of a duty to the parents arising out of a physician-patient. An assumed duty may arise from the utilization of the parents as active instrumentalities in the patient’s treatment. And similarly, see: Moczydloski v First Hosp. Corp., 19 D &  C 4th  259 (Pennsylvania, 1993): In an action arising from the suicide of a psychiatric patient after 21 days of treatment at the defendant hospital, a cause of action for negligent infliction of emotional distress lay where the patient’s widow participated in therapy sessions with the decedent and his physician and watched his continual deterioration in the 21 days before his death.

[6]  148 Or. App. 607, 941 P.2d 602 (1997).

[7]  414 Pa Super 231, 606 A2d 1175 (1992).

[8]  961 P.2d 761 (Nev. 1998).

[9]  McGill v. Newark Surgery Ctr., 113 Ohio Misc. 2d 21, 756 N.E.2d 762 (C.P. 2001).

[10]  Restatement (Second) Torts, § 46, pp. 71-72.

[11]  Johnson v Woman’s Hospital, 527 SW2d 133 (Tenn App. 1975).

[12]  453 NW2d 634 (Iowa, 1990).

[13]   Id. The court took pains to observe that it was not holding that there was a tort of rudeness, but that extremely rude behavior or crass insensitivity coupled with an unusual vulnerability in a person who is receiving professional services would be sufficient to sustain a recovery.  See, also: McAlpin v Sokolay,  596 So 2d 1266, 17 FLW D1012 (Florida App 5th Dist. 1992): The Appellate Court ruled that the trial court erred by dismissing a patient’s complaint against physician for failure to state a cause of action,  where the patient went to the doctor to receive a diagnostic x-ray for her medical problems.  Instead of the x-ray, the patient received verbal abuse which worsened her condition.  The court ruled that because a jury could find that the doctor’s conduct was not only unprofessional but also actionable for intentional infliction of emotional distress (deliberate or reckless, outrageous, and causally related to the emotional distress) the summary judgment was error.  See, also: Williams v Voljavec 202 Ga App 580, 415 SE2d 31(1992): Testimony by a patient, who suffered from chronic diabetes and was admitted to hospital’s coronary care unit after complaining of chest pains, that her physician relentlessly vented anger against her while she was in the hospital; and  that he was aware of her potentially fragile physical condition.  Further, testimony that her physical condition deteriorated after his conduct, was sufficient to sustain a cause of action against the physician for intentional infliction of emotional distress. And see: Gragg v. Calandra, 297 Ill. App. 3d 639, 231 Ill. Dec. 711, 696 N.E.2d 1282 (2nd Dist. 1998), reh’g denied, (Aug. 4, 1998): Allegations that hospital staff and physicians knew patient’s wife and adult daughter were extremely distraught but they accused the wife and daughter of trying to kill patient by requesting discontinuance of life support, stated claim for intentional infliction of emotional distress.

[14]  160 Misc 2d 618, 610 NYS2d 752 (1994).

[15]  237 F.3d 1223 (10th Cir. 2001).

Child Custody Evaluations and Appropriate Standards of Psychological Practice

Posted on by Shawn Wygant

The 1994 guidelines of the American Psychological Association indicate that child custody evaluations should respond to the best interests of the children as the issue of ultimate importance.[1]  In pursuing the best interests of the children involved, these guidelines recommend assessing: (1) the parental capacities of the competing parties, (2) the developmental status of the children including consideration of their needs and preferences when appropriate, and (3) what custody arrangement approximates the best fit between parental capacities and children’s needs.[2]

When addressing these three questions, custody evaluators must recognize the daunting task facing them.  We at PsychLaw.net emphasize that in particular, custody evaluators need to appreciate the complexity of the issues associated with these evaluations.  Profound changes in life circumstances provoke profound changes in how people behave ‑ and divorce surely qualifies as a profound change in life circumstances.  As a result, custody evaluations on a pre‑decree basis typically involve the difficult task of assessing a situation that does not yet exist ‑ how each parent will function as a single‑parent. We at PsychLaw.net feel that consequently, custody evaluators are obligated to assess: (1) the pre‑decree characteristics of existing parent‑child relationships, (2) the situational demands each parent will encounter as a single‑parent, and (3) how pre‑decree parental effectiveness will combine with the status of single‑parent to influence post‑decree parental effectiveness.

Divorce and Changing Family Dynamics– Assessment Issues

Assessing post‑decree parental effectiveness is further complicated by the inevitable behavioral changes exhibited by children as they grow and mature.  A recently recommended standard ‑ “the approximation rule” ‑ overlooks the profound changes associated with child growth and development.  The approximation rule advocates that subsequent to divorce, custody arrangements should approximate, as much as possible, the child rearing circumstances that existed prior to divorce.[3]  The approximation rule, however, assumes a degree of stability in the needs of children that, in fact, do not exist.  As children grow and mature, their relationships with their parents inevitably change.

Compromised parental effectiveness frequently corresponds to reduced emotional sensitivity, decreased parental attentiveness, and parental unavailability.  These parental characteristics ‑ increased unavailability, deceased attentiveness, and reduced sensitivity ‑ are common responses to the stress of divorce.[4]  Fortunately, these characteristics progressively resolve themselves over time as parents adjust, and reorganize their lives in response to divorce.[5]

It is taught at PsychLaw.net that custody evaluators must also appreciate the inordinate stress associated with marital dissolution and divorce.  These situational considerations are so powerful that they frequently influence reactions to divorce more than the personality characteristics of the litigants.  A 1997 article examining responses to the Minnesota Multiphasic Personality Inventory‑2 in custody evaluations emphasized:

“With few exceptions, child custody litigants represent a normal population undergoing a psychologically agonizing experience in their family life.”[6]

Custody evaluators who overlook these considerations are at risk for committing the “fundamental attribution error” discussed in Previous Posts.  This error leads custody evaluators into overemphasizing the personality characteristics of competing parental parties, and underemphasizing the significance of the situational circumstances confronting them.[7]

Cross‑Examination Regarding Divorce and Changing Circumstances

  1. Dr. X, you would agree that profound changes in life circumstances provoke profound changes in how people behave ‑‑ Correct?
  2. And you would also agree that divorce qualifies as a profound change in life circumstances ‑‑ Correct
  3. A custody evaluation in a case like this is an exceedingly difficult task ‑‑Correct?
  4. A custody evaluation in this case is an exceedingly difficult task because you are attempting to assess a situation that does not yet exist ‑‑ Correct?
  5. For example, you have attempted to assess how these litigants will function as single parents ‑‑ Correct?
  6. But in fact, neither one of them is a single parent at this point in time ‑‑ Correct?
  7. Therefore, you were faced with the task of assessing how the reactions of these parents to the stress of divorce will influence their parental effectiveness ‑‑ Correct?
  8. Considering the needs of the children involved, we know that their needs will change as they grow and mature ‑‑ Correct?
  9. Parental behaviors that are effective at this point in time, may not be effective in the future as result of changes in their children’s behavior ‑‑ Correct?
  10. And the stress of divorce can temporarily compromise parental effectiveness ‑‑ Correct?
  11. And with the passage of time, most people recover from the devastating effects of divorce ‑‑ Correct?
  12. Adjusting to the stress of divorce assists most people to function more effectively as parents ‑‑ Correct?
  13. But, you do not know whether one, or both, of these parents will remarry ‑‑ Correct?
  14. And if one or both of these parents remarry, you don’t know how the remarriage will influence their parental effectiveness ‑‑ Correct?
  15. And you do not know what kind of peer‑group influences these children will encounter in the future ‑‑ Correct?
  16. In other words, there are many future developments that will transpire in the lives of these parents and children which you cannot factor into your current recommendations ‑‑ Correct?
  17. The value of your evaluation is therefore limited because of all the future events in the lives of these children, and their parents, that you cannot accurately forecast ‑‑ Correct?

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[1].       For one of the more interesting statements on the children’s best interests, see:Parham v J.R., 442 U.S. 584 (1979) [Did the parents act in the child’s best interests in committing the child to a mental institution.]

[2].       American Psychological Association (1994). Guidelines for child custody evaluations in divorce proceedings. American Psychologist, 49, 677-680.

[3].       Scott, E.S. (1992). Pluralism, parental preference, and child custody. California Law Review, 80, 115-172.

[4].       Hetherington, E.M., Bridges, M., & Insabella, G.M. (1998). What matters? What does not?: Five perspectives on the association between marital transitions and children’s adjustment. American Psychologist, 53, 167-184.

[5].       Wallerstein, J.S. & Lewis, J. (1998). The long-term impact of divorce on children: A first report from a 25-year study. Family and Conciliation Courts Review, 36, 368-383.

[6].       Bathurst, K., Gottfried, A.W., & Gottfried, A.E. (1997). Normative data for the MMPI-2 in child custody litigation. Psychological Assessment, 9, 205-211 (p. 209).

[7].       Fundamental attribution errors and the mis-emphasis of particularities in a divorcing circumstance are endemic to the court’s search for information.  See, i.e.:Rohman, Sales, and Lou, (1990). The Best Interests Standard in Child Custody Decisions. In David Weisstub (Ed.), Law and Mental Health: International Perspectives (Volume 5) 40; Sales, Manber, Rohman,(1992). Social Science Research and Child Custody Decision-Making.  1 Applied and Preventive Psychology: Current Scientific Perspectives 23.