A Horror Story For Insurance Companies

     John Jones gets injured. For this horror story, it doesn’t matter if he was at work or shopping in a supermarket. It doesn’t even matter how the claimed injury occurred or even if he was really injured.

John gets a lawyer to represent his interests. For the sake of discussion, let’s assume the lawyer files the claim saying the injury was psychological or psychiatric.  The lawyer then sends John to a psychologist or a psychiatrist for an evaluation and treatment. The doctor writes a report stating that John had an injury. He begins treatment. The insurance company representing the defendant sends John to another doctor for an opinion. That doctor doesn’t completely concur with John’s lawyer’s doctor but agrees that John was psychologically injured.

     At some later time in the claims process the insurance company pays John some money to compensate him for his injury. John, his lawyer, the insurance company, the defense’s lawyer and both doctors are all happy with the settlement. John has been paid for his damages, the doctors and lawyers have been paid for their services, and the insurance company has paid what they believe is a reasonable amount of money.

     Everyone wins! Or do they? Who loses? Just imagine for a second that the insurance company’s doctor made a mistake in their evaluation. Let’s make it a big mistake, although the size hardly matters. Let’s assume John has successfully exaggerated his injury, or worse yet, faked it entirely. Now there is a loser! No, it’s not the insurance company! They don’t lose because they pass the cost of the claim onto their clients. Every time the insurance company pays out an exaggerated or fraudulent claim the policyholders unjustly pay!

     So along comes another law firm who recognizes the unjust consequences of the insurance company’s doctor’s failure to identify what should have been an easily detected exaggerated or faked claim and files a class action lawsuit on behalf of not only John’s claim, but all the claims that were settled based on inadequate defense doctor evaluations. How much will that class action lawsuit cost the insurance company for failure to use due diligence and good faith? How much will that cost the doctor’s malpractice carriers?

     If you are a defense attorney or a claims adjuster and have what you suspect is a flawed report on your hands, but are not a highly skilled psychiatrist or psychologist, you can prevent making a serious error in judgment and exposing yourself to litigation by getting my analysis of that report. If you’re the defendant in a lawsuit, or represent the defendant who is facing a large loss, settlement and/or increase in their insurance premiums, you can avoid additional costly litigation, including a class action lawsuit by all the insured who have had their premiums wrongly increased as a result of a failure to detect a grossly exaggerated or faked claim by getting an evaluation of the suspected flawed report BEFORE settling the case.

     As regular readers of my monthly newsletter know, I am a Professor Emeritus of Psychology at San Diego State University who has been doing psychological evaluations for over thirty years. During that time I have brought rigorous academic standards to the practice of forensic psychology. In addition to evaluating claims for both claimants and the defense I have specialized in evaluating the credibility of psychiatric and psychological reports. Having read and critiqued between 10,000 and 50,000 reports, in the true fashion of a renegade crusader, on multiple occasions I have fearlessly stepped up and testified that the vast majority are demonstrably substantially flawed to the point of lacking the ability to prove the doctors’ conclusions.

     Additionally, I would like to point out that I have been writing what I call Apricots™ for the last 12 years. An Apricot™ is a work-product privileged report that helps an attorney cross-examine and/or write a trial brief by describing the substantial flaws found in a psych doctor’s report in jargon-free, non-technical language with supporting documentation from the peer-reviewed literature. Apricots™ also provide attorneys with a series of specific questions to ask the doctor that results in getting those flaws into the record despite the doctor’s evasive or non-cooperative behavior.

     Finally, I would like to suggest to you that if you have a case that you suspect is substantially flawed you can send me a copy of that report and I’ll tell you what’s wrong in a free telephone consult at 844-444-8898. At that point you can decide if you want me to write an ApricotTM or go it alone based on the information I gave you. If you decide on the later you can go to my website at DrLeckartWETC.com and download a free copy of my book, Psychological Evaluations in Litigation: A Practical Guide for Attorneys and Insurance Adjusters and use some other resources found there to plan out your strategy. Or, you can ask me to write a report that includes a complete analysis of the flaws with supporting data and professional literature citations as well as a full set of questions that will dismantle the doctor’s testimony during cross-examination. Either way, I’m here to help.

     

Cross Examining Psych Doctors - Tip #59-Administering Psychological Tests

The circumstances under which psychological tests are administered can be crucial for the outcome of those tests. Generally, it is important for tests to be administered under standardized conditions that guarantee that the testing environment provides adequate seating and lighting, privacy, ventilation and an absence of distractions such as noise. It is also important to have a test proctor oversee the process and make sure that the examinee is completing the tests in the prescribed manner and not, for example, responding randomly, making errors as a result of a lack of understanding of the instructions, or obtaining assistance in completing the tests from an unauthorized person or persons who could deliberately or inadvertently grossly distort the test’s results.

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More help can be found at my website (www.drleckartwetc.com) and in my book Psychological Evaluations In Litigation: A Practical Guide for Attorneys and Insurance Adjusters

Cross Examining Psych Doctors - Tip #58-Specifying Personality Traits on Axis II

Personality traits or features are enduring patterns of perceiving, relating to and thinking about the environment and oneself that are exhibited in a wide range of social and personal contexts but are not sufficiently maladaptive to warrant concluding that the individual suffers from one of the Personality Disorders.  It is only when those traits lead to clinically significant distress or impairment in social, occupational or other important areas of functioning that it is reasonable to diagnose a Personality Disorder.  Information about personality traits is typically provided by the doctor to give the reader what they believe is significant information that will be helpful in understanding the patient.  However, since everyone has personality traits, the specification of those traits in a medical-legal report is not especially meaningful if one is concerned with using that report to determine if the person has suffered a psych injury.

Check out my blog (http://drleckart.blogspot.com).  More help can be found at my website (www.drleckartwetc.com) and in my book Psychological Evaluations In Litigation: A Practical Guide for Attorneys and Insurance Adjusters

Cross Examining Psych Doctors - Tip #57-The Five Axes Diagnostic System

Doctors often provide their diagnosis using the five axes diagnostic system. Axis I is reserved for diagnosing most psychological disorders, one exception being Personality Disorders, which are diagnosed on Axis II. The reader of the report should look for Axes III, IV and V where the doctor normally provides information about the individual’s general medical conditions, psychosocial and environmental problems and levels of Global Assessment of Functioning (GAF). The GAF score is especially important in medical-legal cases since it provides information about the individual’s level of functioning that may be relevant to the court’s decisions about disability. As per the DSM, it is also important that the doctor specify an individual’s GAF score at both the time of the evaluation and the highest GAF score they obtained during the past year. 

Check out my blog (http://drleckart.blogspot.com). More help can be found at my website (www.drleckartwetc.com) and in my book Psychological Evaluations In Litigation: A Practical Guide for Attorneys and Insurance Adjusters

Cross Examining Psych Doctors - Tip #56-The MMPI Taken at Home

The MMPI-2 is the most frequently used version of the MMPI. The testing manual for the MMPI-2 provides information on the administration of the test, including the required testing conditions on pages 8 through 10 of that manual.

An inspection of page 8 of the testing manual indicates that it reads in part,

“Supervision by a fully qualified professional is essential in using the MMPI-2”

           Page 8 goes on to state,

“It is strongly recommended that the MMPI-2 not be administered without proper supervision and that it not be given to test-takers to complete at home.”

           Page 10 further emphasizes this point when it states,

“To repeat a point made earlier, administration of the MMPI-2 should always be supervised.”

Thus, when a doctor allows the patient to take the MMPI-2 at home, it is not possible to interpret any of the test data obtained as providing any credible information about the patient’s psychological status.

Check out my blog (http://drleckart.blogspot.com). More help can be found at my website (www.drleckartwetc.com) and in my book Psychological Evaluations In Litigation: A Practical Guide for Attorneys and Insurance Adjusters

Cross Examining Psych Doctors - Tip #55-Psychological Testing Standards

Of all the five sources of information that are obtained about individuals undergoing psychological evaluations, the only form of objective data that is open to public inspection and can be presented to the court is the psychological testing data. Accordingly, the manner in which those data are obtained, scored, analyzed and interpreted are of primary importance. Clearly, the first hurdle that must be overcome in assessing the credibility of the psychological testing data is the manner in which it was collected. At the very minimum, all psychological testing should be administered under the supervision of a licensed mental health professional who may employ a test proctor to monitor the psychological testing and guard against any irregularities, including the possibility that the testing was not taken by the person to whom it was intended to be administered. 

Check out my blog (http://drleckart.blogspot.com). More help can be found at my website (www.drleckartwetc.com) and in my book Psychological Evaluations In Litigation: A Practical Guide for Attorneys and Insurance Adjusters

Cross Examining Psych Doctors - Tip #54-Doctor-Created Diagnostic Ambiguity

When doctors take it upon themselves to add a modifier or specifier to their diagnosis where such a modifier or specifier is not permitted by the Diagnostic and Statistical Manual of Mental Disorders (DSM) all they have succeeded in doing is creating ambiguity in their opinions. The use of modifiers or specifiers created by the doctors results in a situation where their diagnosis is ambiguous as those creations have no generally understood meaning in DSM terminology.

Email me: drleckartwetc@gmail.com Check out my blog (http://drleckart.blogspot.com). More help can be found at my website (www.drleckartwetc.com) and in my book Psychological Evaluations In Litigation: A Practical Guide for Attorneys and Insurance Adjusters

Cross Examining Psych Doctors - Tip #53-Identifying an Incomplete Major Depressive Disorder Diagnosis

In order to diagnose a Major Depressive Disorder correctly it is necessary to specify whether the disorder is of the Recurrent or Single Episode variety and to record the severity of the disorder. In Diagnostic and Statistical Manual of Mental Disorders (DSM) terminology the doctor is also required to provide a 5-digit numerical diagnostic code that allows the reader to work backwards and determine the full nature of the disorder if not described verbally. Thus, when a doctor provides a diagnosis of a Major Depressive Disorder, but declines to state if that disorder is of the Single Episode or Recurrent variety and/or declines to record the severity of the Major Depressive Disorder, then their diagnosis is incomplete.

Check out my blog (http://drleckart.blogspot.com). More help can be found at my website (www.drleckartwetc.com) and in my book Psychological Evaluations In Litigation: A Practical Guide for Attorneys and Insurance Adjusters   Email me at drleckartwetc@gmail.com

Cross Examining Psych Doctors - Tip #52-Deciding Between a Psychologist or a Psychiatrist for Medical-Legal Evaluations

The major differences between psychologists and psychiatrists are their training in psychological tests and psychotropic medications.  Psychologists typically have considerably more training and experience in administering and interpreting psychological tests.  Those tests are invaluable in providing data and insights into an individual’s credibility and possible psychopathology.  If you are concerned with the diagnosis of a mental disorder, the psychologist is in a better position to provide objective data concerning the person’s psychological status by using psychological tests.  However, once you know that a person has a specific disorder that is amenable or treatable with medication, the psychiatrist is the person who can intervene to provide that care.

Check out my blog (http://drleckart.blogspot.com).  More help can be found at my website (www.drleckartwetc.com) and in my book Psychological Evaluations In Litigation:  A Practical Guide for Attorneys and Insurance Adjusters

Fifteen Ideas That Can Drive You "Crazy"

Everyone talks to themselves.  Unfortunately, sometimes the things we say to ourselves are less than productive.  In fact, some of our internal dialogues can make us “crazy.”  Here is the fourth of the “Big Fifteen.”

     4. If something bad happens to me it's "awful."

Cross Examining Psych Doctors - Tip #51-Sadness and Crying are Normal and Not Necessarily Indicative of Psychopathology

In reading medical-legal reports one frequently finds that physicians will list complaints and observations of the patient that are made during the face-to-face interview that include sadness and tearfulness.  In this regard, it should be noted that a reading of page 355 of the DSM-IV-TR and page 168 of the DSM-5 reveals that those manuals explicitly state that, “periods of sadness are inherent aspects of the human experience.” As such, any observations of sadness and related behaviors are not necessarily indicative of psychopathology.  Clearly, while it may be tempting to equate sadness, tearfulness and crying with psychopathology, it should be noted that these behaviors are well within the realm of normal human behavior and not necessarily indicative of pathology.  Individuals may cry for a variety of reasons, including being reasonably, normally, understandably, and expectably upset by physical difficulties, occupational problems and life circumstances. 

Check out my blog (http://drleckart.blogspot.com).  More help can be found at my website (www.drleckartwetc.com) and in my book Psychological Evaluations In Litigation: A Practical Guide for Attorneys and Insurance Adjusters

Cross Examining Psych Doctors - Tip #49-The Correct Diagnostic Procedure for Discussing the Global Assessment of Functioning

The Global Assessment of Functioning (GAF) scale is found in the DSM-IV-TR, but was eliminated from the largely discredited and ignored DSM-5.  When assigning a GAF score the doctor is required by DSM-IV-TR protocol to provide both the current GAF score and the highest GAF score the patient achieved in the previous 12 months.  If the doctor has not done so they have left out some important and required information about the patient.

 Check out my blog (http://drleckart.blogspot.com).  More help can be found at my website (www.drleckartwetc.com) and in my book Psychological Evaluations In Litigation: A Practical Guide for Attorneys and Insurance Adjusters

Cross Examining Psych Doctors - Tip #48-One Thing Never to Ask a Doctor During a Depo or Trial

In cross-examining a doctor it is never a good idea to ask a question about the patient!  It is strongly recommended that all the questions you ask be directed at the doctor’s report or other medical records.  For example, instead of asking the doctor to describe what they observed that led them to conclude that the patient was suffering from a disorder they diagnosed, it is much better to ask them where in their report or their treatment notes you can find the data indicating that they made sufficient observations of the patient to warrant their diagnosis.  The reason for this is quite simple.  If you ask the doctor about the patient they can feel free to provide information not in their records that may justify some of their conclusions.  Obviously, those comments may or may not be correct for a variety of reasons. 

Check out my blog (http://drleckart.blogspot.com).  More help can be found at my website (www.drleckartwetc.com) and in my book Psychological Evaluations In Litigation: A Practical Guide for Attorneys and Insurance Adjusters

Cross Examining Psych Doctors - Tip #47-Collateral Sources of Information in Psych Reports

Collateral sources of information are found in the form of interview data collected from friends, relatives and/or co-workers or business associates of a patient undergoing a medical-legal examination.  However, only rarely are collateral sources of information available and used in evaluations for the court.  Most typically this occurs when there is some barrier to collecting data such as might occur with a person who is developmentally disabled, deceased, or who might be unable to communicate if, for example, they have suffered a severe cerebral stroke or other mentally debilitating central nervous system injury. 

Check out my blog (http://drleckart.blogspot.com).  More help can be found at my website (www.drleckartwetc.com) and in my book Psychological Evaluations In Litigation: A Practical Guide for Attorneys and Insurance Adjusters