Liza H. Gold, MD

In November 2018, the National Rifle Association (NRA) taunted physicians by tweeting, “Someone should tell self-important anti-gun doctors to stay in their lane.” In response, physicians, including psychiatrists, insisted that firearm death, suicide, injury, and trauma are indeed our lane. Both before and after the NRA warned us not to cross their imaginary line, physicians and our professional organizations increasingly have been calling for gun violence to be addressed as a public health crisis and have been proposing interventions to stem the tide of blood.

The American Psychiatric Association has been a leader in confronting the problem of gun violence, the leading cause of preventable injury and death in the US. Each year, firearms kill close to 40,000 people and injure another 70,000. Two thirds of all firearm deaths, the largest single category, are firearm suicides.

In 2014, the APA issued a position paper (and updated it in 2018) calling gun violence a public health problem in need of immediate action.

 In 2015, the APA along with eight other professional medical organizations jointly issued a “Call for Action,” advocating policies intended to mitigate the rate of injuries and deaths due of firearms.

 In 2019, the APA participated in a medical summit of 44 major medical and injury prevention organizations to address the gun violence problem.

The APA and other medical, injury prevention, and public health organizations have advocated for a number of actions: expanding background checks; requiring waiting periods on all gun transactions; requiring safe storage of all firearms in the home; banning assault weapons and high-capacity magazines; and allocating funding for federal firearms research. Many of these measures are widely supported by the American public across party and demographic lines. A September 2019 poll found that 86% of Americans support implementing red flag provisions allowing law enforcement to temporarily seize guns from people in crisis. Similarly, 89% support expanding federal background checks to cover private sales and gun-show transactions.

Although the cultural status quo on gun reform is shifting, the political status quo, at least on the federal level, continues to block any legislative intervention. The nonpartisan Center for Responsive Politics (opensecrets.com) estimated that during the 2016 election, the NRA and its affiliates spent a record $54 million to secure Republican control of the White House and Congress, including at least $30 million to help elect Donald Trump. Thus, these politicians’ investment in (and defense of) the political status quo from which they personally benefit may have become more obvious but is hardly surprising.

In contrast, most psychiatrists are likely to be surprised to find that the APA’s Political Action Committees (PAC) contributes more money more often to the campaigns of federal politicians whose positions do not align with the APA’s stated public health policy on firearm regulation reform compared with those who do. In their study of the PAC donation patterns of the 25 largest professional medical organizations regarding firearm safety, Schuur and colleagues

 found that the APA PAC donated $172,500 to NRA A-rated candidates for Congress, and $154,500 to candidates with any other rating (B-F) in the 2016 election cycle. Politicians with NRA A ratings can be counted on to oppose evidence-based firearm regulation, to vote reflexively against gun reform legislation, to blame gun violence on people with mental illness, and to continue to deny federal funding for firearm research.

The APA PAC is not alone in undermining its organization’s public position on firearm safety reform. By all measures investigated, almost all of the 25 medical organization PACs evaluated by Schuur and colleagues demonstrated a similar pattern of donations. This includes the American Medical Association (AMA; $574,500 to $420,500), the American College of Surgeons (ACS; $257,500 to $185,500), and the American College of Emergency Physicians (ACEP; $716,900 to $344,500).

In 2016 alone, health organization PACs donated about $5.5 million to NRA A-rated candidates as opposed to $4 million to candidates with any other rating. Schuur and colleagues concluded that their findings demonstrate a donation pattern on the part of 20 out of 25 PACs that “appears to be inconsistent with and a barrier to effective public health advocacy for firearm safety.”

In a related study, Neufeld and colleagues

 compared 2018 donations to individual politicians from physician organization PACs and the National Rifle Association Victory Fund (NRA PVF), focusing on seven organizations with published firearm injury prevention policies, including the APA, the AMA, the ACS, and the ACEP. Of the 141 members of Congress who received donations from both physician organization PACs and the NRA PVF (political victory fund), the NRA PVF rated 139 candidates as having greater than 90% NRA approval rating; 70.2% of the candidates received more funds from the medical organization PACs than from the NRA PVF, despite their votes against policies endorsed by the physician organizations themselves.

Overall, combined physician organization PACS donated about $1.5 million to NRA backed candidates; the NRA PVG contributed a total of about $420,000 to these members of Congress. The authors concluded that donations make an impact on NRA-backed members of Congress and to align with their organization’s public health policies regarding firearms “Organizations wishing to make firearm violence and injury prevention a priority must consider redistributing political donations.”

Notably, Steven Sharfstein, MD, a past President of the APA, found similar donation patterns by the AMA’s PAC in 1994 and concluded that this practice belied the AMA positions on these important public health issues.

 Medical organization PACs also contribute to politicians who support firearm reform legislation. Donating to politicians on both sides of any issue is business as usual in Washington. However, as pointed out in the article, this does not explain why any PAC, including the APA PAC, would give significantly more money to representatives who disagree with their organizations’ official positions than to those who support them.

Nevertheless, political business as usual regarding gun violence is no longer acceptable, particularly for medical organizations. The APA PAC’s pattern of political contributions in direct opposition to the APA’s stated positions on firearm reform undermines our professional credibility. More importantly, the APA PAC is supporting a deadly status quo. The fact that politicians’ obstructionist stance invariably includes reflexively blaming gun violence on individuals with mental illness makes the APA PAC’s complicity in supporting these A-rated politicians over others particularly egregious. And, every day, another 110 people die from gun violence.

The APA and other medical professional organizations are in a unique position to take a lead in advocating for public policies to decrease the devastating toll of gun violence. This will require professional medical organizations like the APA to stop protecting the political status quo and remember the primary medical ethic: do no harm.

The PACs’ disregard of their organizations’ public stance on firearm regulation reform makes all physician members, not just those who donate to the PACs, look like cynical hypocrites. As Neufeld and colleagues point out:

Campaign contributions of an organization reflect its legislative priorities. Physician organizations that donate to NRA-backed congressmembers are sending the message that reducing firearm injury is not enough of a priority to outweigh other considerations.

PACs are legally required to be separate entities from their affiliated organizations; they have separate boards and bylaws to oversee fundraising and donations. The governing officers, boards, and assemblies of the medical professional organizations with which the PACS are affiliated cannot direct their PACs’ contribution decisions. Nevertheless, professional medical PACs raise their money almost exclusively from their organizations’ members.

If the APA PAC and other medical affiliated PACs continue patterns of making political contributions in direct opposition to the APA’s and other affiliated medical organizations’ stated positions on firearm reform, physician members should consider whether they want to continue contributing to these PACs. It is not enough for the APA to take public positions about gun violence and public health. We can talk the talk, but our PAC needs to walk the walk. The gun violence epidemic is undoubtedly our lane. Let’s be the public health leaders America needs.

Dr Gold is Clinical Professor of Psychiatry, Georgetown University, Washington, DC.

 American Psychiatric Association: Position Statement on Firearm Access, Acts of Violence and the Relationship to Mental Illness and Mental Health Services.

 Weinberger SE, Hoyt DB, Lawrence HC, et al. Firearm related injury and death in the United States: a call to action from 8 health professional organizations and the American Bar 

 Bulger EM, Kuhls DA, Campbell BT, et al. Proceedings from the Medical Summit on Firearm Injury Prevention: A Public Health Approach to Reduce Death and Disability in the US. 

 DeBonis M, Guskin E. Americans of both parties overwhelmingly support “red flag” laws, expanded background checks for gun buyers. 

 Schuur JD, Decker H, Baker O. Association of physician organization affiliated political action committee contributions with US House of Representative and Senate candidates’ stances on firearm regulation. 

 Neufeld MY, Sanchez SE, Siegel M. Firearm policy: physician organizations’ role in political action committee funds, 2018. 

. September 19, 2019 [Epub ahead of print].

 Sharfstein JM, Sharfstein SS: Campaign contributions from the American political action committee to members of congress: for or against the public health. 

Articles

In November 2018, the National Rifle Association (NRA) taunted physicians by tweeting, “Someone should tell self-important anti-gun doctors to stay in their lane.” In response, physicians, including psychiatrists, insisted that firearm death, suicide, injury, and trauma are indeed our lane.

Gun Violence and Medical Professional Organizations: Political Business as Usual?

We were deeply saddened by the news of the death on April 26, 2011, of our colleague and friend, 

, aged 62. We both coauthored books and articles with Dan Shuman, and our personal and professional lives were enriched by his friendship and scholarship. Poignantly, he passed away just weeks before the 2011 American Psychiatric Association Annual Meeting, where he was awarded posthumously the Manfred S. Guttmacher Award for a book he coauthored with Dr Gold- 

Evaluating Mental Health Disability in the Workplace: Model, Process, and Analysis

From the beginning of our association with Professor Shuman, he provided invaluable advice and assistance when discussions of forensic psychiatry moved into the legal arena. He challenged colleagues to approach issues in the law and psychiatry from new perspectives. For over 25 years, his work has had enormous influence on legal scholars, legal practitioners, and clinicians in the mental health field.

Professor Shuman’s interest in the intersection of law and mental health began early in his legal career. Professor David Wexler first met Professor Shuman in 1970, when Professor Shuman took Professor Wexler’s first Law and Psychiatry seminar as a second-year law student at the University of Arizona. The class project, an empirical observational study of the civil commitment system in Arizona, resulted in an entire issue of the 

. The issue received the first Guttmacher Award, in 1972. Daniel Shuman was one of the stars of the group; even as a law student, Dan demonstrated a natural aptitude for an academic legal career.

Professor Shuman’s career revolved around integrating science, psychiatry, psychology, and law. He taught mental health and legal professionals that expert testimony could be analyzed to determine its value in any given case. In 2000, Professor Shuman summarized his approach to the analysis of mental health testimony by describing the role of the psychiatric expert in civil litigation. He noted that in providing expert testimony, 4 basic points needed to be answered:

• On what information may an expert base an opinion?

In considering these questions, Professor Shuman cut through the common legal prejudice against mental health testimony as inherently unreliable as well as the all too frequent use of “junk science” offered as expert testimony. His insightful evaluation of the rele-vance and reliability of mental health testimony using this approach is reflected in his 1986 book, 

for which he won his first Guttmacher Award. This book and others in the field of psychiatry, as well as articles and multiple book chapters, reflect Professor Shuman’s position as one of the preeminent scholars in the field of mental health and the law.

Academic curiosity was part of what made him an exceptional scholar and teacher. He was not satisfied with defining and changing the way legal and psychiatric professionals understood what it meant to demand or offer expert psychiatric testimony. He explored some of the most controversial ethical, philosophical, and practical issues associated with law and psychiatry. The more controversial the topic, the more Dan relished the debate. He could be relied on to follow these discussions wherever they led and then take them to the next level and explore all the associated implications-psychiatric, legal, forensic, and public policy.

Professor Shuman’s collaborations were based on mutual respect, honesty, and an intense desire to push the boundaries of knowledge. He loved new ideas, whether his own or someone else’s. If an idea was not going to fly, Professor Shuman said so directly, and he then worked to reformulate the concept into a valuable contribution to the field of mental health and the law.

Dr Shuman’s contributions to forensic psychiatry were recognized with awards and invitations to teach at meetings and seminars. In 2005, the American Academy of Forensic Psychology awarded him the Distinguished Lifetime Achievement Award. In his last years, Professor Shuman fought to continue teaching and writing despite the increasing burden of his illness. He also wanted to continue the collaborative work that he found so gratifying. We will remember Professor Shuman as an exceptional scholar, a valued collaborator, and a cherished friend.

Dr Gold and Dr Simon are Clinical Professors in the department of psychiatry at Georgetown University School of Medicine in Washington, DC. Dr Shuman served on the editorial board of 

We will remember Professor Shuman as an exceptional scholar, a valued collaborator, and a cherished friend.

In Memoriam: Daniel W. Shuman, JD: A Gift for Collaboration

Psychiatrists often believe they are protected from liability when conducting third-party evaluations in civil litigation. This belief is based on the understanding that a physician-patient relationship is required for liability to be found and the assumption that no physician-patient relationship is created when examinations are conducted at the request of a third party. Historically, many courts have upheld this view and have found that physicians owe no legal duty of care to the person being evaluated and thus cannot be liable for any injuries.

 Nevertheless, as an increasing number of courts have indicated, the nature of the physician-patient relationship in third-party evaluations and the issue of associated liability is not that straightforward.

Although claims against psychiatrists for third-party evaluations are significantly less common than they are for clinical practice, such suits are no longer extremely rare.

 Forensic psychiatrists frequently perform independent medical examinations (IMEs) and provide reports and, at times, testimony regarding their findings. These are the most common areas of risk for forensic psychiatrists.

 Liability may be incurred both toward the person being evaluated and the third party retaining the psychiatrist.

Negligence is the claim most likely to be faced by forensic psychiatrists conducting third-party evaluations.

 Negligence is defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. Common law holds that physicians are required to conduct all examinations, regardless of purpose, with reasonable care. This reasonable care standard requires that, at a minimum, standard routine examination procedures result in no harm to the person being examined. Harm includes both physical injury and nonphysical damages, such as loss of employment or psychological injury. Violation of this standard can lead to claims of ordinary negligence.

Physicians are also required to possess a standard minimum degree of special knowledge and ability.

 If a person has knowledge or skill superior to an ordinary person, the law will demand that that person's conduct be consistent with that level of knowledge. Breaches of duty by treating physicians within the physician-patient relationship therefore generally fall under statutory laws relating to professional negligence, known as medical malpractice.

Injury as a consequence of an IME may be more common in other areas of medicine--for example, a plaintiff may claim that a functional orthopedic evaluation resulted in a back injury. However, such claims could arise from psychiatric evaluations. For example, the stress of an evaluation might exacerbate the condition of a person being evaluated.

 Such situations can arise, particularly in adversarial evaluations, when the IME becomes part of a hostile discovery process.

 Courts have found that psychiatrists may have a duty to avoid breaching the standard of care and proximately causing harm during a third-party civil psychiatric examination.10

Ordinary negligence or malpractice: implications

To prevail in any negligence claim, a plaintiff must prove by a preponderance of the evidence that:  

 The defendant had a duty or obligation to the plaintiff, requiring the person to conform to a certain standard of conduct. 

 The defendant breached the duty, failing to conform to the standard required. 

 The breach of duty resulted in (or proximately caused) injury or damage to the other party. 

 A reasonably close causal connection exists between the conduct and ensuing injury.

While any or all of the 4 elements of a negligence claim may be disputed in a lawsuit, most cases involving IMEs turn on whether the physician owes a particular duty of care to the person being evaluated as a result of a doctorpatient relationship or the existence of some other relationship.

Thus, whether a claim of negligence constitutes a malpractice claim as opposed to an ordinary negligence claim depends, among other issues, on whether the court determines a physician-patient relationship exists. The ethical and legal ambiguity surrounding the issue of whether a physician-patient relationship exists in third-party evaluations has allowed claimants to pursue ordinary negligence claims as well as medical malpractice claims.

The distinction between professional and ordinary negligence may have significant implications. Statutes of limitations for ordinary negligence are usually longer than those for medical malpractice claims. Physicians therefore have a longer exposure to claims of negligence from people they examine without intent to treat. Unlike medical malpractice claims, ordinary negligence claims do not require the use of expert medical witnesses to establish causation and deviations from accepted standards of care.7 The plaintiff in such a cause of action must only show damages and establish a causal relationship between the examination and the harm done. In addition, unless specifically covered by a rider in a medical malpractice policy, the physician performing third-party evaluations may not have malpractice insurance or any other liability protection if sued for ordinary negligence under common law.

If a court finds that a physician-patient relationship has been established, the psychiatrist will be responsible for meeting all the duties associated with this traditional relationship. Therefore, a court's interpretation of the nature of the relationship between a psychiatrist and a person being evaluated in an examination conducted for a third-party evaluation will determine whether the court considers negligence claims under malpractice codes.

In recent years, a number of courts have found the IME creates at least a limited physician-patient relationship.

Although it is not as broad as the typical relationship between a treating physician and a patient, this relationship implies duties, the breach of which may be sufficient to sustain certain malpractice claims.

 The same legal reasoning has been specifically applied to psychiatric evaluations for third parties.

Case law has indicated IME physicians owe the following legal duties to the person being evaluated: 

 To not cause injury during the examination (ie, to follow accepted professional protocols). 

 To disclose significant findings in a reasonable manner. 

 Breaches of these duties can potentially lead to malpractice claims against physicians conducting evaluations for third parties, including psychiatrists.

Creating a traditional doctor-patient relationship

The defense to malpractice liability in third-party evaluations is severely undercut and may even be lost when a court determines that a treatment relationship has been created. This relationship is, in essence, an expressed or implied legal contract. Whether such a contract is formed depends in large part on what occurred in the mind of the person being evaluated, not in the mind of the physician. 11 Courts considering this issue will inquire whether a reasonable person in the position of the person being evaluated would have concluded that a physician- patient relationship existed.

This determination is often considered a matter of fact by courts and is based on a number of factors, such as the clarity of the nature of the relationship between the physician and the person being evaluated (based on practical and financial arrangements).

 The courts have interpreted a variety of acts undertaken by a physician to establish a physician-patient relationship. In addition to including any treatment or advice given by the physician to the person being examined, anything said or done during or as a result of the examination on which the person being evaluated comes to rely will also be considered to establish such a relationship.

Courts will also consider whether the parties behaved in a manner that would lead an objective observer to conclude that a contract was formed. Most important, if the physician offers affirmative medical treatment, a court may reasonably assume a physician-patient relationship has been created. Under these circumstances, the examining physician becomes a treating physician even though there is no explicit contractual agreement. The physician assumes the duties and obligations of a reasonable physician and becomes subject to the laws of medical malpractice.

The situation most fraught with risk of malpractice liability arises when psychiatrists agree to perform a forensic evaluation or provide court testimony for patients they have been treating clinically. In these circumstances, in addition to causing potential ethical problems, 18 the third-party evaluation may destroy the treatment relationship and expose the psychiatrist to claims of both medical and forensic malpractice. Therefore, for both ethical and riskmanagement reasons, psychiatrists are advised to make every effort to avoid providing forensic services for patients whom they are treating.

When contracting with a third party, the IME physician also assumes obligations directly to that party.

 Courts have held that physicians conducting third-party evaluations owe a duty to the third party who retains them to provide reasonable care to the person being evaluated, even if no duty to the person being evaluated exists. In virtually all jurisdictions, physicians who provide third-party evaluations can be sued for malpractice by the retaining third party if the party, whether an insurer, an attorney, or a litigant, is injured by the consequences of negligent forensic evaluation.

There are 2 types of immunity relevant to third-party evaluations. Quasi-judicial immunity refers to immunity for persons other than judges who are performing judicial activities. Witness immunity protects testimony in a judicial proceeding from civil liability.

 However, these types of immunity are not absolute. Case law has shown the immunity available to IME physicians varies with the type of examination conducted. In general, experts hired by one of the parties to litigation are not covered by quasi-judicial immunity, even if an IME has been ordered by the court.

Moreover, even if protected from civil suit by quasi-judicial or witness immunity, a forensic psychiatrist who gives false or negligent testimony in a judicial proceeding may still be subject to sanction for ethics violations by a medical licensing board or by a professional society.

 Physicians may also be reported to their state medical boards and disciplined.

The boundaries of third-party evaluations and expert testimony liability in civil litigation are constantly shifting. Psychiatrists should therefore be familiar with their ethical and legal obligations and operationalize them to minimize liability risk. They are also well advised to stay abreast of evolving legal standards and to obtain appropriate insurance coverage for their forensic work.

Drs Simon and Gold are clinical professors, and Dr Simon is director, of the program in psychiatry and law at Georgetown University School of Medicine, Washington, DC. Dr Simon is editor, with Robert E. Hales, MD, of The American Psychiatric Press Textbook of Suicide Assessment and Management, published in 2006. Drs Simon and Gold are also co-editors of the American Psychiatric Publishing Textbook of Forensic Psychiatry, published in 2004.

 Baum K. Independent medical examinations: an expanding source of physician liability. Ann Intern Med. 2005;142:974-978.
  

 Larsen RC. Ethical issues in psychiatry and occupational medicine. Occup Med. 1988;3:719-726.
  

 Meyn AM. The liability of physicians who examine for third parties. Spec Law Dig Health Care Law. 1993;167:9-26.
  

 Willick D, Weinstock R, Garrick T. Liability of the forensic psychiatrist. In: Rosner R, ed. Principles and Practice of Forensic Psychiatry. 2nd ed. London: Arnold; 2003:73-78.
  

 Professional Risk Management Services. Risk management practical pointers for psychiatric forensic practice. Rx for Risk. 2004;12:1-12.
  

 Garner BA. Blacks Law Dictionary. 7th ed. St Paul: West Group; 1999.
  

 Keeton WP, Dobbs DB, Keeton RE, et al. Prosser and Keeton on Torts. 5th ed. St Paul: West Publishing Co; 1984.
  

 Appelbaum PS. Liability for forensic evaluations: a word of caution. Psychiatr Serv. 2001;52:885-886.
  

 Gold LH. Sexual Harassment: Psychiatric Assessment in Employment Litigation.Washington, DC: American Psychiatric Press; 2004.
  

 Dalton v Miller, 984 P2d 666 (Colo Ct App 1999).
  

 Rischitelli DG. The confidentiality of medical information in the workplace. J Occup Environ Med. 1995;37:583-593.
  

 Weinstock R, Garrick T. Is liability possible for forensic psychiatrists? Bull Am Acad Psychiatry Law. 1995;23:183-193.
  

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 Greenberg v Perkins, 845 P2d 530 (Colo 1993).
  

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 Harris v Kreutzer, 624 SE2d 24 (Va 2006).
  

 Lambley v Kameny, 682 NE2d 907 (Mass App Ct 1997). 
  

 American Academy of Psychiatry and the Law Ethics Guidelines for the Practice of Forensic Psychiatry (2005). Available at: 

 Postol LP. The medical-legal interface. In: Demeter SL, Anersson GBJ, eds. Disability Evaluation. 2nd ed. Chicago: American Medical Association; 2003:62-72.
  

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 Binder R. Liability for the psychiatrist expert witness. Am J Psychiatry. 2002;159:1819-1825.

Psychiatrists often believe they are protected from liability when conducting third-party evaluations in civil litigation. However, the nature of the physician-patient relationship and the issue of associated liability is not that straightforward.

The Doctor-Patient Relationship and Liability in Third-Party Evaluations for Civil Litigation

Forensic psychiatry has developed into a formal subspecialty in recentyears. However, as in any other subspecialty of psychiatry, generalpractitioners are encouraged to have some training in and knowledge of forensicpsychiatry. Despite its new subspecialty status, general clinicians still performthe bulk of forensic assessment. Clinicians aware of their lack of trainingoften fear becoming involved in forensic cases, avoid forensic practiceentirely, and suffer undue anxiety when their participation becomesunavoidable.

Clinical psychiatrists can and should familiarize themselves with some ofthe principles and practice of this fascinating and challenging subspecialty.General clinicians receive training in a variety of subspecialties ofpsychiatry, such as child and adolescent psychiatry, geriatric psychiatry, orsubstance abuse. Although encouraged to recognize the limits of theirexpertise, and to refer complicated cases to specialists, general cliniciansare able to evaluate, manage and treat patients in these categories based ontheir basic training if they so choose.

This Special Report has something to offer to both forensic specialists andgeneral clinicians. Psychiatrists with forensic expertise will find thesereviews useful synopses of common and relevant forensic issues. General clinicalpsychiatrists will find that these articles provide useful information shouldthe issues discussed in these articles arise in their clinical practice.Perhaps more importantly, general psychiatrists may find that some of theiranxieties regarding forensic involvement and their own professional liabilityexposure may be minimized by an understanding of forensic issues.

This Special Report reviews a number of areas of forensic practice. PhilipJ. Resnick, M.D., and Renee Sorrentino,M.D., have provided a thorough review of competencyissues that commonly arise in consultation-liaison psychiatry and discuss thecomponents of competency evaluations. Jacqueline M. Melonas,J.D., M.S., R.N., discusses an issue that has increasingly come to affectclinical practitioners: liability risk related to psychopharmacology. Sheprovides suggestions to help practitioners reduce these risks by understandingwhere they lie and how good clinical practice can address them. I offer areview of the thorny issues that arise when the diagnosis of posttraumaticstress disorder, increasingly common in all types of litigation, becomes alegal point of contention. Richard A. Ratner, M.D.,has reviewed the complex ethical issues surrounding evaluations of children andadolescents.

Psychiatrists are discovering that both the forensic and clinical practiceof psychiatry can be professionally rewarding. Robert P. GranacherJr., M.D., M.B.A., offers suggestions to those interested in expanding theirpractices to include forensic psychiatry. The business elements of forensicpractices differ in some ways from those of clinical practice. However, generalclinicians and forensic specialists alike will benefit from a review of thesesound business principles.

Forensic psychiatrists can benefit from reviewing the expertise of theircolleagues. General clinicians will find that the more familiar they are withthis exciting subspecialty, the more confident they will become in the clinicalpractice of psychiatry.

Dr. Gold is a clinical and forensic psychiatristand is clinical associate professor of psychiatry at the Georgetown University School of Medicine. Sheis also associate director of the GeorgetownPsychiatry Residency Program in Psychiatry and Law. She is co-editor of 

TheAmerican Psychiatric Publishing Textbook of Forensic Psychiatry 

Although forensic psychiatry is a formal subspecialty, general clinicians are often called upon to perform the bulk of forensic assessment. As such, the need for some basic training in and knowledge of forensic psychiatry is clearer than ever.

A Subspecialty of Growing Importance

The use of the diagnosis of posttraumatic stress disorder in litigation hasbeen called "a forensic minefield" (Sparr and Boehnlein, 1990). Since its inclusion in the 

, PTSD has been increasinglyutilized over the past decades in both civil and criminal litigation (Slovenko, 1994; Sparr and Boehnlein 1990)--so much so that the provision of PTSDtestimony into the legal system has been characterized as "a cottage industry"(Stone, 1993).

Attorneys introduce PTSD arguments into legal cases through the use ofexpert testimony. A diagnosis of PTSD can provide advantages in litigation. Incivil litigation, it creates an assumption of obvious causation. It alsocarries a legal and moral implication that someone else is responsible for anevent so overwhelming that anyone could have developed PTSD as a result.Finally, it provides strong support for arguments regarding damages (Gold,2003; Gold and Simon, 2001). The stressors alleged to cause PTSD and the classof victims who could suffer PTSD from those stressors have expanded thehorizons of tort litigation (Shuman, 2003). Posttraumatic stress disorder isalso increasingly used in criminal cases, typically in arguments ofjustification or mitigation in sentencing. In these circumstances, attorneysargue that anyone exposed to the trauma the defendant suffered might findthemselves committing similar crimes under similar circumstances.

Common misconceptions about the nature of trauma and PTSDsare partially responsible for the increased frequency of a PTSD diagnosis inlitigation. The terms 

 are routinely used synonymously.All traumatic experiences are stressful. However, not all stress is traumatic.Lawyers, laypeople and clinicians all frequently confuse the popular concept ofstress as a synonym for trauma with the medical concept of a specificpsychiatric disorder that may occur following exposure to a true traumaticevent.

At times, clinical and forensic psychiatrists ignore the requisitediagnostic criteria and regard as PTSD any emotional disturbance that followsan adverse stressful event. To maintain credibility when providing diagnosticassessments of PTSD in litigation, psychiatrists should be familiar with the definitionof this disorder and the types of traumatic stressors that can precipitate it.The 

 defines PTSD as a disorderfor which six criteria must be met. These include specific symptoms and adegree of functional impairment.

The most important of these in the context of litigation is Criterion A: aperson must have been exposed to a traumatic event or stressor. Criterion Adefines a traumatic stressor as consisting of an objective and subjectiveelement. Both elements must be met for an event to constitute an emotionalstressor that can cause PTSD. In the objective element, the person must haveexperienced, witnessed or have been confronted with an event or events thatinvolved actual or threatened death or serious injury, or a threat to thephysical integrity of self or others. These include such experiences as combat,violent personal assault, terrorist attack, being kidnapped, being diagnosedwith a threatening illness and automobile accidents, among others. Thesubjective element of Criterion A requires that the person's response must haveinvolved intense fear, helplessness or horror.

However, even if both elements of the traumatic exposure are present, notevery traumatic event causes PTSD in every individual exposed to that event.Epidemiological studies suggest that only 15% to 24% of adults exposed toCriterion A trauma develop PTSD (Breslau,2001). The risk of developing PTSD also varies by type of trauma and stressorintensity or magnitude. Specific risk factors associated with victim characteristics,such as gender, age, race, socioeconomic class, family dysfunction, comorbid psychopathology or a history of psychopathology,and a previous history of trauma, are also associated with the likelihood ofdeveloping PTSD following trauma exposure (Breslau, 2001, 1998; Breslau et al.,1999, 1991; Briere, 1997; Green and Kaltman, 2003).

Epidemiological statistics and identification of risk factors for thedevelopment of PTSD should not be used to discount the inherently traumaticnature of many events. Regardless of pre-existing vulnerabilities, PTSD canoccur in those without significant risk factors in the face of a high magnitudeor intensity traumatic exposure. A previously well-functioning adult canexperience a sharp deterioration in functioning after exposure to severe trauma(van der Kolk et al.,1996). However, an examiner should not assume that any traumatic stressor, muchless a stressful situation that does not meet Criterion A, will necessarilyproduce PTSD.

It is possible for individuals to develop PTSD without meeting the stressorcriterion. For example, exposure to multiple events appears to increase therisk for the development of PTSD, even if the last stressor does not meet allthe elements of Criterion A. Similarly, individuals may be diagnosed with subthreshold PTSD after exposure to a traumatic event ifthey do not meet the 

 requisitenumber of symptoms for a formal diagnosis of PTSD (Blank, 1993; Schutzwohl and Maercker, 1999;Stein et al., 1997; Weiss et al., 1992). Nevertheless, unless the stressorcriterion of serious threat to life or bodily integrity and a correspondingreaction of fear, terror or helplessness occur, the diagnosis of PTSD shouldnot be made without substantial justification and support from the literature. Otherwise,opposing counsel will, without doubt, question the reliability and credibilityof the expert offering the testimony.

In the event of a recognizable traumatic exposure and the presence ofpsychological symptoms that do not meet the criteria for PTSD, the forensicevaluator should carefully assess whether the individual meets the criteria forother 

 diagnoses. Forensicclinicians should consider whether other mood or anxiety diagnoses are moreappropriate (Simon, 2003). These disorders can also be influenced by externalevents, and many have a higher incidence following a traumatic exposure thandoes PTSD, and a number of the symptoms of PTSDoverlap considerably with the symptoms of such disorders.

diagnostic criteria or excessively flexible and idiosyncratic application ofdiagnostic criteria or conventions substantially reduces the utility ofpsychiatric diagnoses. Any assessment of PTSD, even one that concludes in adiagnosis of subthreshold PTSD, must adhere to 

Diagnoses of PTSD are commonly made inaccurately in litigation contexts.Clinicians treating trauma survivors or retained as experts by such individualswhen they become plaintiffs tend to overdiagnose PTSD(Rosen, 1995). Defense experts in civil litigation and experts retained by theprosecution may tend to underdiagnose the disorder.

Misdiagnosis may occur for reasons other than misunderstanding the nature ofthe disorder or misapplication of diagnostic criteria. Adversarial bias, thatis, conscious or unconscious pressure to formulate an opinion favorable to theretaining party, may exert a profound influence in some cases. At times, amisapplied diagnosis of PTSD can represent a vehicle for promoting the forensicpsychiatrist's values of support for victims' rights (Stone, 1993). Conversely,antipathy toward the diagnosis and its implications may result in themisinterpretation or overlooking of genuine posttraumatic symptomatology(Briere, 1997; Pitman et al., 1996).

Attorneys frequently attempt to use psychiatric testimony to make indirectstatements regarding a plaintiff's credibility. As a rule, expert evidence onthe credibility of a witness is not permitted. Nevertheless, attorneys may tryto use psychiatric terminology and diagnoses to introduce indirect credibilityassessments through expert testimony.

Certain diagnoses lend themselves to this type of misuse. A diagnosis ofPTSD in a plaintiff carries implications that the plaintiff's allegations aretrue. Certain personality disorder diagnoses, such as borderline or histrionicpersonality disorder, carry the implication that the plaintiff's allegationsare not credible. The use of psychiatric diagnoses to indirectly establish thecredibility of a legal claim should be viewed as a misuse of psychiatricexpertise (Halleck et al., 1992).

In recent years, attorneys have also increasingly sought expert testimonyabout various trauma-related syndromes, such as battered woman syndrome, rapetrauma syndrome or battered child syndrome. Syndrome diagnoses are based on thepresence of constellations of certain symptoms and have been offered in bothcivil and criminal cases. In civil cases, the presence of a syndrome may beused in attempts to establish that a particular stressor actually occurred,thus establishing witness credibility (Simon and Gutheil,1997). In criminal cases, arguments for the presence of a syndrome in thedefendant may serve as justifications for criminal acts or mitigation ofsentence.

Although they may have some relation to the diagnosis of PTSD, syndromes arenot formal 

 diagnoses. Thedescription of certain syndromes may serve a variety of clinical andsociopolitical purposes, but their utilization in litigation requires carefulconsideration. The use of a claimant's psychological symptoms in the form ofsyndrome evidence (or even an established 

diagnosis) to establish the occurrence of a traumatic event generally has notfound favor with the courts (Boeschen et al., 1998; Slovenko, 1995). However, by offering such testimony that acomplainant is or is not suffering rape trauma syndrome, battered womansyndrome or some other type of psychological syndrome, the expert's testimonymay arguably be characterized or construed as testifying to the truthfulness ofthe complainant or the presence of mitigating circumstances for a crime. Almostall states refuse to admit this level of testimony (Boeschenet al., 1998).

These and other concerns have resulted in courts taking a purpose-specific,qualified approach to syndrome testimony. Courts most often accept syndromeevidence by experts where the defense argues that the woman did not act the waya "real" survivor of rape would, or where the defense argues that if herdomestic situation had really been that bad, she would have left. Courts aremore divided on whether to allow syndrome evidence where there is no overt needto rebut the defense's reliance on myths about women (Orenstein, 1999).

Courts have been most sympathetic to syndrome testimony when the expertspoke generally about typical responses to sexual assault rather than offeringan opinion regarding whether the particular woman suffered from a specificposttraumatic syndrome. Most are also receptive to syndrome evidence when it isoffered to dispel myths about behaviors associated with sexual assault,domestic violence or child abuse (Massaro, 1999;Melton et al., 1997).

Although imperfect and subject to continuous updating and refinement, the 

 is regarded by mental healthprofessionals and the courts alike as a generally valid and reliable diagnosticsystem (Shuman, 1989). The diagnostic criteria and research supporting adiagnosis of PTSD is extensive. However, the tactical legal exploitation of thediagnosis of PTSD most often arises from the use of 

 diagnoses for nonclinical purposes.Psychiatrists who enter the legal arena are well advised to provide reliable,credible testimony if the diagnosis of PTSD is raised as a legal defense orclaim.

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Attempting litigation based on a claim of posttraumatic stress disorder can be difficult. What is the proper DSM definition of PTSD and in what ways can and can't it be used in court to properly defend a client? What should the role of the psychiatrist be in this process?

Author | Liza H. Gold, MD

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