Understanding The Source of Weak Psych Reports

   

    If you’re an attorney or an adjuster in workers’ compensation or personal injury, general liability, or any jurisdiction where a psych doctor produces a report of their evaluation or treatment in response to the claim of a mental injury, you are always confronted with psych reports that are weak. But do you understand them and do you know how to defeat them? Let me help you do both! This month I’ll tell you how to understand them. In the next two months, I’ll tell you how to beat them.

    Many of you who have referred workers’ compensation and personal injury cases to me over the last three-plus decades know that I have evaluated between 5,000 and 10,000 applicants and plaintiffs. As part of my practice, I’ve read tens of thousands of psych reports, the vast majority of which are demonstrably substantially flawed.

    First, a little of my professional history will help to understand what I think is going on. For the first 30 years after getting my Ph.D. I was a full-time college professor. As part of my job I did a lot of research and widely published my findings in a variety of subject areas and carefully edited professional journals. As a “publish or perish” academic, journal editors would not let me, or anyone else, get away with authoring any conclusions without adequately supporting those comments with hard, cold data describing what I did and what I found. But in the medical-legal arena there are no journal editors to keep forensic psychiatrists, psychologists, and/or neuropsychologists on their toes. They can write anything they want and often what they write is nonsense. Worse yet, unless those doctors are correctly confronted to defend their conclusions, their reports stand, to the detriment of almost everyone and every entity in the system, except the reporting physicians.

    Before I started doing forensic work I was amazed when an orthopedist friend showed me some psych reports from his cases. I simply could not believe the weakness of those documents. In fact, what drew me to forensic psychology was the immediate perception I could write better reports standing on my head and could demolish what was passing as professional work and maybe make a positive contribution to the field. In the many years since, nothing has changed except the doctor’s names.

    It hurts me to say this, but the vast majority of psych reports are substantially flawed, grossly lacking in credibility and completely incapable of proving or disproving a disputed medical fact or a contested claim. The questions that are always with me is, “Why Are There So Many Substantially Flawed Psych Reports?” And, “What Can Be Done to Defeat Them?” So, this month, I set out to see if I could answer those questions!

    One possible reason I see such bad reports is because the attorneys and adjusters who refer cases to me know I am a demanding critic who does not shy away from “crushing” bad reports, but who loves to do so. According to this explanation, I see a biased sample of incompetent reports because attorneys know a bad report when they see it but because they don’t quite know how to reveal the flaws on cross-examination they send it to me for help. I doubt it, but according to this theory most of the reports are not worthless, only the ones I get to see.

    A second possible reason I see bad reports is despite having gone through medical or graduate school, an internship and a residency, some psychiatrists and psychologists, and maybe those that are most likely to work in a forensic practice, are simply doing what they were taught. Simply put, they have never been trained to conduct competent evaluations and write competent reports. Despite all the many hours spent on their education they were left lacking the basic “non-rocket science” ability to perform competent psychological assessments and write proficient reports. I can’t talk about psychiatric training from firsthand experience but I know that with very rare exceptions, graduate school, internships and postdoctoral training in psychology does not teach competent evaluations and report writing.

    A third possibility is that incompetent reports are the result of forensic practitioners never having to suffer the consequences of their poor work, hence they never learn to correct their methods. Here, the major culprit is the legal system. Specifically, attorney’s understandable lack of knowledge of psychology and psychiatry leads them to unsuccessfully challenge the doctor’s reports, which, in turn, results in the doctors never learning to improve.

    A fourth possibility is that the doctors simply do not care if their work is below par since they continue to get paid for bad work. Although these doctors read my critiques and/or encounter them in giving testimony they follow their same flawed evaluative procedures and report formats because it’s just easier to write off a single bad case outcome than change their methods. Or, maybe they just rationalize the bad outcomes and tell themselves, “What does that attorney/judge/jury know about my area? I did a good job. They just don’t understand what I do.” The bottom line here is that whatever intervenes between being called on the carpet and the next report is completely ignored. The appropriate analogy is if you feed pigeons in the park they’ll keep coming back for more. Unfortunate for justice!

    QUESTION: WHY IS ALL OF THIS HAPPENING? 

    ANSWER: THE PHILOSOPHICAL DIFFERENCE BETWEEN EVIDENCE-BASED PRACTICE (EBP)AND “CURRENT GUT-ORIENTED/FEELING BASED STANDARDS.”

    Evidence-based psychological and psychiatric practice is making decisions about the diagnosis, cause, and treatment of psychopathology that is based on academically grounded scientific research. Evidence-based psychological and psychiatric practitioners rely on objective evidence in drawing evaluative conclusions. In contrast, non-evidence-based practitioners rely on their “gut,” intuition, clinical judgment or subjective feelings about what is occurring. 

    Nowhere can the contrast be more clearly seen than in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders-Fifth Edition, the DSM-5! 

    I have written extensively about the DSM-5 and how in the workers’ compensation arena in California it does not conform to Labor Code section 3208.3 which wisely requires that psychological diagnoses be made using a diagnostic manual “generally approved and accepted nationally by practitioners in the field of psychiatric medicine.” 

    Fortunately, the DSM-5 has not been widely accepted either nationally or internationally. If you want documentation about the reasons I can suggest you read a series of newsletters I published in the latter part of 2013 and in the beginning of 2014 at my website, drleckartwetc.com. 

    Perhaps the single most telling weakness of the DSM-5 occurs in the attitude it expresses concerning the criteria it has written for the literally thousands of disorders found in that diagnostic manual. 

    Specifically, the DSM-5, which supposedly represents the official view of mental disorders for the psychiatric community states very clearly and concisely on page 25: 

    “it is important to note that the definition of mental disorder included in DSM-5 was developed to meet the needs of clinicians, public health professionals, and research investigators rather than all of the technical needs of the courts and legal professionals.” 

     This statement follows on the heels of what was said on page 21: 

    “Diagnostic criteria are offered as guidelines for making diagnoses, and their use should be informed by clinical judgment.” 

    WELL NOW WHAT DO THOSE STATEMENTS TELL US? 

    BY EMPLOYING THE SIMPLE WORD “GUIDELINES” THEY TELL US THAT THE CRITERIA LAID OUT FOR THOUSANDS OF PSYCHOLOGICAL DISORDERS IN THE 947- PAGE DSM-5 CAN BE COMPLETELY IGNORED BY DIAGNOSING PSYCHOLOGISTS AND PSYCHIATRISTS, AND ESPECIALLY THOSE WORKING IN FORENSICS IN FAVOR OF THEIR CLINICAL JUDGMENT! 

    OR, IF YOU PREFER, “DEAR FORENSIC PRACTITIONERS: PLEASE FEEL COMFORTABLE TO COMPLETELY IGNORE THE EVIDENCE-BASED KNOWLEDGE OF THE 1810 MENTAL HEALTH PROFESSIONALS, LISTED ON PAGES 897-916, WHO CONTRIBUTED TO THE DSM-5 DIAGNOSES AND JUST USE YOUR GUT FEELINGS, INTUITIONS OR CLINICAL JUDGMENT IN DRAWING THE CONCLUSIONS IN YOUR FORENSIC REPORTS AND IN PROVIDING TESTIMONY IN COURT!” 

    AND YOU WONDER WHY YOU SEE SUCH TERRIBLY DOCUMENTED REPORTS WITH SUCH UNSUPPORTED CONCLUSIONS AND RECOMMENDATIONS? 

    At this point, I’m pretty sure you know that for the last 10 years I have been writing Apricots™. An Apricot™ is a work-product privileged report written for an insurance adjuster and/or an attorney who believes they have a substantially flawed psychological or psychiatric report that will harm their client’s case. In my Apricots™ I find and describe those flaws in non-technical language and discuss the specific techniques and strategy for cross-examining the doctor, providing simple questions designed to expose those flaws during a deposition or trial despite a slippery doctor’s evasiveness. Those same Apricots™ are frequently used to write trial briefs or appeals. You can simply think of me as “the watchdog,” a nickname given to me by an attorney who has successfully used my Apricots™ on multiple occasions.

    This had been the hardest newsletter I have written over the last 10+ years. In fact, I have struggled for some time about whether or not I should write this newsletter, thinking that maybe I’ve missed something and that incompetence is not the main issue. Well, maybe I have made that mistake and someone will shortly send me proof.

    Finally, I also know this newsletter is going to anger a lot of my colleagues, but then I think, “Maybe they should write better reports.”

Now for some good news! If you are an attorney or an insurance adjuster or supervisor and you just know you have a substantially flawed psych report, send it to me for a free phone consultation describing the flaws in the report and get a cost estimate of an Apricot™. Just give me a call at 310-444-3154 and we will set up a time to chat.

The Economics of Dismantling Flawed Psych Reports

    I’ve been doing personal injury and workers’ compensation psych cases for over thirty years. In that time I have evaluated about 10,000 claimants. I’ve also reviewed about 50,000 psych reports. For the last 12 years, I have written reports and given testimony that conclusively demonstrates that the vast majority of the opposing doctor’s reports are substantially flawed and can be revealed on cross-examination of the doctor to be worthless with regard to a judge and/or jury drawing a reasonable conclusion that a claimant has had a psychiatric injury. As part of what I write in my reports, which are commissioned to critique the opposing doctor’s conclusions, I provide attorneys with a specifically designed line of direct questions that demonstrate to even the most unsophisticated juror the worthlessness of the opposing doctor’s opinions.

    My reports are not inexpensive. A typical report costs between $6,000 and $10,000, depending on the number of diagnoses and the number of errors the doctor made. They usually run about 50-70 pages. In those pages, the attorneys and adjusters find specific information about the substantial flaws in the opposing doctor’s report. Nowhere in my reports do I present any unsupported summary conclusions. Everything I say is documented and backed up with the appropriate citations from the extensive published peer-reviewed psychological and psychiatric literature dating back to the 1800’s. Not only am I a renegade crusader in pursuing my fraternity brothers and sorority sisters in forensic psychology and psychiatry who “mess up,” I’m also a student of the game, and a Professor Emeritus of Psychology who at one time was the youngest full professor of psychology in the United States. If there is a forensic psychologist with my academic background I’ve never heard of them.

    So now I want you to consider the logic behind spending between $6,000 and $10,000 to dismantle or destroy another doctor’s testimony. The bottom line here is that if a plaintiff’s or applicant’s attorney presents a six to eight-figure settlement demand, and I have worked on some very large cases, my fee is miniscule provided I can do what I say. So what is it that I do? What is the logic or rationale behind my reports?

    Essentially, the major problem with psychological and psychiatric reports is misdiagnosis. Once an attorney can demonstrate that there is no support for the doctor’s diagnosis all of the conclusions about a compensable mental injury get thrown out the proverbial window. Well, how is that done?

    The current accepted standard for psychological diagnoses is the DSM-IV-TR, the American Psychiatric Association’s Diagnostic and Statistical Manual, Fourth Edition, Text Revision. A beautiful book that clearly and directly specifies the signs and symptoms that must be present in order to draw a conclusion that the plaintiff is suffering from a disorder. So where do the doctors fall short?

    As I’ve written in innumerable places, including my book, Psychological Evaluations in Litigation, a copy of which you can read and or download for free on my website at DrLeckartWETC.com, psychological diagnoses are based on as many as five sources of information. 

These sources are: 1. The doctor’s complete history of the patient’s symptoms or complaints, including information about their qualitative nature, frequency, intensity, duration, date of onset and course over time. 

2. The results of the doctor’s Mental Status Examination, including data obtained from their direct observations of the patient’s mood, affect, memory, concentration, insight and judgment. 

3. The findings of an objective psychological testing battery, including data in the form of specific scores from a well-known, valid and reliable test such as the MMPI (Minnesota Multiphasic Personality Inventory), that show that the patient has been both honest and credible during the doctor’s examination and in all reasonable medical probability is suffering from one or more psychological disorders found in the DSM-IVTR. 

4. and 5. A review of the patient’s medical records and a presentation of any data that may have been obtained from the patient’s friends, relatives and/or business associates supporting the doctor’s conclusions.

    Most importantly, I provide a series of specific questions to ask the doctor, that when answered demonstrate the opposing doctor’s conclusions are wrong! Those questions are backed up with cold, hard data and reasoning that can stand up to any attempt of the opposing counsel to rehabilitate the doctor’s typically embarrassing testimony. 

    Quite simply, it is a rare psychologist or psychiatrist who has written a report and/or given deposition or trial testimony that demonstrates the existence of a psychological disorder as a result of the claimed injurious occurrence(s). 

    Compare my $6,000 to $10,000 fee that results in the opposing doctor’s testimony being shown to be worthless with the jury and/or judge providing an award that dwarfs my charge! 

Saving Client Money While Defending Psych Claims

      

     I’ve been doing psych evaluations for litigation for over 30 years. During that time I’ve worked for both the defense and the plaintiffs or applicants. I’ve read and critiqued between 30,000 and 50,000 psych reports but rarely have I seen a report whose conclusions were adequately supported by the data. For the last 12 years, I have been a renegade on a crusade to eliminate substantially flawed reports, being willing to incur the wrath of my colleagues by going into court and testify against other doctors. 

      As part of my service, I have been writing ApricotsTM to help attorneys win their cases. For reasons I cannot really understand, most of my commissions come from defense attorneys although substantial flaws are equally found in reports commissioned by both sides. Regardless, an ApricotTM 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. 

      One way of saving on the costs of litigation is NOT to hire a doctor to examine the claimant. Let’s see how that might work. 

     Whether you are on one side or the other there will be times when your opposing counsel will have the claimant examined by a psych doctor. That doctor will write a report. One common way of coping with that report is to hire your own doctor to examine the claimant, give deposition testimony and perhaps appear in court to testify about the claimant’s psychological condition. Of course, this is not inexpensive. 

     Another way of dealing with the case is initially to simply deal with the doctor’s reports and records. Considering that the chance is great that the physician’s report is substantially flawed and relatively easily discredited, you can have me write an ApricotTM and use that document and the questions I provide to discredit the doctor’s testimony during a deposition or at trial. At that point, the opposing counsel will be more amenable to a settlement in your favor and you will have saved the expense of another doctor’s report as well as the associated costs of depositions and trial testimony. 

     Finally, I would like to suggest to you that if you have a report that you suspect is substantially flawed you can send me a copy and I’ll tell you all about its flaws in a free telephone consult at 310-444-3154. At that point, you can decide if you want me to write an Apricot™ or go it alone based on the information I gave you. If you decide on the latter 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. 

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.