The Use of Forensic Psychiatry in Catastrophic Injury and Multi-Party Litigation

Catastrophic accidents often lead to claims for severe emotional distress including allegations of post-traumatic stress disorder ("PTSD"). Similarly, allegations of acute neuropsychological disorders and fear of cancer can follow environmental releases and toxic exposures. So, too, with product liability claims and even claims from entire "classes" of individual employees. A single incident or condition may produce thousands of claims.

The many challenges to defending these claims include limited access to plaintiffs, privacy issues, and treating physicians who often advocate for their patients, relying almost exclusively on their patients' subjective reports of their experiences and symptoms, rather than on objectively verifiable data.

In contrast, forensic psychiatry seeks to determine what is objectively true about the plaintiff's diagnosis and possible injury, using neurocognitive and psychological testing, in-depth interviewing, and a careful and detailed review of all available relevant documentary data. This article discusses the definition and unique characteristics of forensic psychiatry (in contrast to clinical psychiatry), the effective use of forensic psychiatric expertise in catastrophic injury and mass tort claims, and the practical, legal and ethical issues that frequently arise in these cases.

Definition of Forensic Psychiatry and Credentials

Forensic Psychiatry is a medical subspecialty of psychiatry. Its focus is the interface between the law and behavioral medicine. Like the law, forensic psychiatry is divided into various sections. According to the sole credentialing body for psychiatry and forensic psychiatry, the American Board of Psychiatry and Neurology ("ABPN"):

Forensic psychiatry is a subspecialty that involves having psychiatric focus on interrelationships with civil, criminal and administrative law, evaluation and specialized treatment of individuals involved with the legal system, incarcerated in jails, prisons, and forensic psychiatry hospitals.

The ABPN offers subspecialty board certification in this field. However, in order to even be eligible to take the forensic psychiatry board examination, a candidate must have completed a four-year residency in psychiatry, been examined and certified in psychiatry by the ABPN, and then completed a rigorous one-year, fulltime, accredited post-residency fellowship in forensic psychiatry.

At this time, less than six percent of the approximately 35,000 board-certified or board-eligible psychiatrists within the United States are also board-certified in forensic psychiatry. Of this total, only a tiny group of several hundred individuals are board certified in Adult, Child & Adolescent Psychiatry and Forensic Psychiatry.

Despite the clear paths to receiving training and obtaining credentials in forensic psychiatry, many psychiatrists who are neither forensically trained nor board-certified in forensic psychiatry continue to offer themselves to litigators as forensic psychiatric "experts."

Too often, such untrained "experts" do not have a clear understanding of the significant role distinctions between functioning as a treating clinician on the one hand, and providing independent forensic psychiatric opinion on the other, and they often unwittingly slip into the clinician's role of advocate, as if their relationship to the plaintiff examinee is identical to their relationship to a patient whom they are treating. As a result, it is crucial that any attorney who is retaining, or crossexamining, a forensic psychiatric expert understands the important differences between the role of a treating psychiatric clinician versus an independent, forensic psychiatric expert.

Treating Clinician v. Independent Forensic Psychiatric Expert: Wearing Two Hats

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