Mr. B was a 75-year-old man who had made a will in 1995 naming his two sons as equal beneficiaries of his estate after his death. In 2004, he married Ms. M. On August 11, 2008, he was diagnosed with brain cancer, for the treatment of which he was hospitalized. On September 3, 2008, he signed a new will that Ms. M had procured for him, naming her the sole beneficiary of his estate after his death, to be subsequently given to his sons after the event of her death. Mr. B passed away on September 29, 2008. His sons subsequently sued Ms. M, alleging that Mr. B did not have testamentary capacity when he signed his new will. His attorney consulted me to review his medical records to assess Mr. B's mental state, testamentary capacity, and vulnerability to undue influence.
Facts of the Case: Ms. P was a 91-year-old, widowed, Caucasian woman with a history of Parkinson's disease who was diagnosed with metastatic colon cancer after she was found down in her bedroom, where she had fallen and broken her arm. It was decided by her physicians that it was best to not pursue chemotherapy, radiation, or surgery. A colostomy bag was placed, and Ms. P was placed on home-based hospice care, with an emphasis on comfort care measures.
An ever-increasing number of plaintiffs are claiming post-traumatic stress disorder. Why such a sudden, marked increase in litigation of this form? Post-traumatic stress disorder (PTSD) was first described in the sixth century B.C. The symptoms associated with the illness have not changed, though the name of the condition itself has, naturally, changed. In World War I the disorder was labeled "shell shock," linking the condition to the close lines between battling armies and the continuous firing of munitions. In World War II, the condition came to be called "combat neurosis." The term "post-traumatic stress disorder" entered the psychiatric nomenclature with the 1980 publication of the Diagnostic and Statistical Manual of Mental Disorders, 3rd Edition.
Forensic rehabilitation? That sounds suspiciously like an oxymoron. However, in personal injury litigation, a physiatrist, an M.D. or D.O. specializing in Physical Medicine and Rehabilitation, can often be helpful in case preparation, as well as trial testimony.
Objective: To determine if demographic differences exist in patients with depressive symptoms as the principal reason for visits to primary care physicians (PCP) versus psychiatrists. To estimate the likelihood of these patients receiving a range of mental health services from each provider group. Methods: Review and analysis of all outpatient visits made by patients with depressive symptoms using the National Ambulatory Medical Care Surveys (NAMCS) conducted in 1995 and 1996. Results: A significantly greater proportion of visits by persons with depressive symptoms as the principal reason for visit were made to psychiatrists than to primary care physicians (T = -3.56, P = .000).
Objective: The authors compared data from psychiatrists and psychologists in California to determine whether long-standing differences in clinical practice remain after the introduction of managed care and other changes in mental service delivery. Methods: Responses from practicing clinicians in California who participated in the 1998 National Survey of Psychiatric Practice and the 2000 California Survey of Psychological Practice were compared on items related to patient caseload, practice profile, and insurance or reimbursement arrangements.
Forensic psychological evaluations have become a valuable resource for the criminal justice system by addressing important forensic questions. For instance, assessing risk for violence can help courts make appropriate decisions on issues such as sentencing, granting privileges, and community reintegration. If an individual is assessed to be a high risk for future violence, a judge has grounds to order a more restrictive setting compared to someone who is a lower risk for recidivism. By tailoring court decisions based on accurate psychological evaluations, the community is safer while the defendant's rights are also protected.
In order for a medical opinion to be admissible as evidence in civil, criminal and administrative cases, the basis of the opinion must fulfill either the Daubert Criteria or the Frye test, depending on the jurisdiction. The judge of the court rules on the admissibility of the expert opinion. The effect of Daubert has been to limit expert testimony to opinions which are based on a scientific foundation. Daubert specifies that adequate scientific support and method and a known error rate must exist. The testimony of a mental health expert rendering an opinion using criteria which does not meet Daubert standards is weakened by the implication that it is not based on "sound science." In some instances, for example, a mental health expert uses an approach where there are no peer-reviewed studies or methods, such as when psychologists compose their own neuropsychological test batteries. In most cases where an attorney is considering a "Daubert challenge," a contemporaneous and up-to-date literature search is indicated. Also, extensive case law presently exists as to specific issues. Being familiar with the Daubert criteria enhances effectiveness in challenging a mental health expert's opinion, whether on voir dire or cross examination. On direct examination, the strengths of an opinion reached under Daubert criteria become a "teaching moment" for the trier of fact, because it will be founded on the science of mental health assessment.
Undue influence occurs when the testator's freewill and freedom of choice in the disposition of the assets of his or her estate is replaced by the substituted judgment/wishes of another. This can apply to creating a will, codicil to amend a will, trust or other legal instrument.
The medical expert cannot express an opinion about the ultimate question to the trier of fact: how much is the plaintiff's emotional distress (emotional injury) worth in dollars? Yet when the question of these monetary damages is put to a jury, their deliberations are better-served if considered in the context of a Forensic Psychiatrist's knowledgeable findings and testimony.