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.

     

Get The Psych Report Dismissed

In the words of John Henry Wigmore, cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 

3 Wigmore, Evidence §1367, p. 27 (2d ed. 1923)

Don’t accept a substantially flawed psych report.  Get the report dismissed! 

Unfortunately, psychiatrists, neuropsychologist, and psychologists often write reports for the courts that are substantially flawed.  When you get one of those reports, the first hurdle is to figure out if the doctor did a good job in writing their report or if the report contains fatal errors that could warrant the dismissal of that report by the Trier of Fact.  This newsletter will discuss five steps to determine if the report is substantially flawed and should be thrown out. 

Before proceeding to a discussion of the five steps referred to above, it is imperative that the attorney decide to attack the diagnosis, which is invariably the most vulnerable part of the doctor’s report.  It is almost never a good idea to attack the doctor’s conclusions about causation, the Global Assessment of Functioning (GAF) score, apportionment, temporary or permanent disability and/or treatment recommendations without first questioning the doctor about their diagnosis.  The reason being that those conclusions are left entirely to the doctor’s subjective opinions while the doctor’s diagnostic conclusions are not left to their subjective opinions.  Instead, the doctor’s report should contain substantial medical evidence demonstrating the plaintiff or applicant meets the diagnostic criteria for the disorder found in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.  The bottom line is that the attorney should focus their efforts on challenging the doctor’s diagnosis. 

Five steps to determine if the report is substantially flawed and should be thrown out:

• Determine if the doctor cited sufficient history to indicate that the patient reported sufficient current symptoms to diagnose the disorder correctly. Be sure to determine that the history is complete with data about each complaint’s qualitative nature, frequency, intensity, duration, onset and course over time. 

• Determine if there are sufficient data in the doctor’s report of their Mental Status Examination (MSE) to support their diagnoses. A MSE should contain a description of the patient’s appearance and social behavior during the face-to-face interview, observations that have led the doctor to conclusions about the patient’s credibility, narrative statements made by the patient that shed light on any possible psychopathology, observations about the patient’s mood and affect, as well as a discussion of observations obtained by measurements of the patient’s memory, concentration and attention, insight, and judgment.

• Determine if there are psychological testing data consistent with the doctor’s diagnoses.  Information about the psychological tests can be found in my book, Psychological Evaluations in Litigation, which is available for reading or free downloading at my website (www.drleckartwetc.com).  In this regard, an inspection of my book will reveal that most psychological tests are not useful in medical-legal examinations because the first responsibility of any medical-legal evaluator is to determine credibility and most tests do not have measures of credibility. 

• Determine if the doctor cited any medical records from any mental health professional who agreed with their diagnoses and decide if that doctor’s report(s) were credible. 

• Determine if the doctor’s report provides information obtained from collateral sources such as the plaintiff’s or applicant’s family, friends and/or business associates that are available at the time of the doctor’s examination and that could possibly support their diagnoses.

Follow these five steps when reading through the doctor’s report.  When you find that the doctor’s report lacks substantial medical evidence to support their diagnoses, you can set your sights on getting the doctor’s report dismissed.  One plan of action is to cross-examine the doctor, asking questions that will expose the absence of substantial medical evidence in their report.  Another option is to draft a trial brief that discusses the report’s lack of substantial medical evidence to support the doctor’s diagnoses.  In both cases, the end result will likely be the dismissal of the doctor’s flawed report!

Now, if you are an attorney or an insurance adjuster or supervisor and you suspect you have a substantially flawed psych report, call me for a free analysis and a cost estimate for obtaining an Apricot™.  An Apricot™ is a work-product privileged report written for an insurance adjuster and/or an attorney who believes they have a substantially flawed psychiatric, neuropsychological or psychological report that will harm their client’s case. In my Apricots™ I describe all the 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, petitions, and appeals.  Call me at 844-444-8898 or email DrLeckartWETC@gmail.com.

The DSM-5 and Weak Psych Reports

In the words of John Henry Wigmore,

 cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”

3 Wigmore, Evidence §1367, p. 27 (2d ed. 1923)

In last month’s newsletter after laying out a number of theories I concluded that psychologists and psychiatrists keep writing substantially flawed reports in workers’ compensation and personal injury litigation because of incompetence. In this month’s newsletter I point out that the same “mind set” that produces weak psych reports is found in the DSM-5, reinforcing the notion that it’s ok to do bad work.

Specifically, both the problematic DSM-5 and the incompetence rampant in forensic psych is the result of the philosophical difference between evidence-based practice (EBP) and the “gut-oriented/feeling–based” standards utilized by many forensic and clinical psych practitioners.
Evidence-based practice requires making decisions about the diagnosis, cause, and treatment of psychopathology that is based on academically grounded scientific research. Evidence-based practitioners rely on objective data to draw evaluative conclusions. In contrast, non-evidence-based practitioners rely on their “gut,” intuition, clinical judgment or subjective feelings.

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 California’s workers’ compensation system 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.”

There is no doubt that the DSM-5 has been widely rejected nationally and internationally. If you want documentation about the reasons, I suggest you read the newsletters I published between June, 2013 and February, 2014, available at my website, www.DrLeckartWETC.com.  

 Perhaps the single most telling weakness of the DSM-5 occurs in the collective attitude expressed by its almost 2,000 authors concerning the diagnostic criteria for the literally thousands of disorders found in that manual.
Specifically, the DSM-5, which attempts to represent the official view of mental disorders for the mental health community, states very clearly and concisely on page 21:

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

  A statement follows this on page 25 that reads:

“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.”

Well now, what do those statements tell us?
By employing the simple word “guidelines,” the DSM-5 explicitly states that the criteria laid out for the thousands of disorders in the 947-page DSM-5 can be completely ignored by diagnosticians, especially those working in forensics, in favor of their “clinical judgment.”    

Or, if you prefer,

Dear forensic practitioners:

           “Please feel comfortable and completely free to ignore the evidence-based knowledge of the 1,810 mental health professionals, listed on pages 897-916 who contributed to the DSM-5 diagnostic criteria. Throw those criteria out the window, and just use your “gut,” intuitions, clinical judgment and subjective feelings in drawing diagnostic conclusions and providing testimony in court!”

And you wonder why you see such terrible, undocumented reports with unsupported conclusions and recommendations?

Now for some good news. For over 30 years I have been fighting incompetent reports in the course of my multifaceted forensic practice. For the last 10 years I’ve been focused on writing Apricots™. An Apricot™ is a work product privileged report that lists all of a psych report’s flaws, explains why they are flaws in jargon-free language, provides published references supporting my conclusions, and includes simple questions to ask the psych doctor on Cx that expose the flaws in their report.  Apricots™ are also used to prepare briefs, petitions and/or appeals. If you are an attorney, an insurance adjuster or supervisor and you suspect you have a substantially flawed psych report, send it to me for a free telephone analysis and cost estimate of an Apricot™. You can reach me at 844-444-8898 and/or DrLeckartWETC@gmail.com.

How lawyers can effectively cross-examine psychiatrists and psychologists

G.M. Filisko's article published in July, 2017 ABA Journal states that psychiatrists and psychologists "are among the toughest witnesses to challenge because their testimony can have elements of hearsay as well as subjectivity."

Filisko further states, "Bruce Leckart, a Los Angeles-based forensic psychologist and professor emeritus of psychology at San Diego State University, has developed a set of rules for cross-examining mental health professionals. One rule is to never ask them about the patient directly but instead confine questions to their report. Another is to always determine whether they have taken a complete history of the patient’s symptoms and complaints to support the diagnosis."  

Read the full article here: http://www.abajournal.com/magazine/article/cross_examine_psychiatrists_psychologists

Trashing Flawed Psych Reports

In the words of John Henry Wigmore, cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”

3 Wigmore, Evidence §1367, p. 27 (2d ed. 1923)

The Problem:  You’ve got a psych case in which a doctor diagnosed a disorder and concluded that the patient has had a psychiatric injury and is psychiatrically disabled.  You also have lots of collateral information indicating that none of this is true. 

How do you cross-examine the doctor?

If you’re an attorney working on a psych case there is only one way to trash an unsubstantial or incompetent report.  When you take the doctor’s deposition or trial testimony you attack the doctor’s DSM diagnosis by showing that their report doesn’t support their diagnosis. 

If the diagnostic manual’s criteria are not supported by the data in the doctor’s report, the doctor’s
diagnosis and all the conclusions flowing from that diagnosis are worthless. 

If you take any other approach the doctor will simply hide behind their “professional opinion.”  Quite simply, all other approaches or strategies may produce piddling results but will not produce a prideful, winning outcome.

I’ve been singing the same song for over thirty years of critiquing tens of thousands of psych reports.  The only thing that consistently works is attacking the doctor’s diagnosis.

You want to know how to do that?  Ask me! 

(844) 444-8898.  No charge for the phone call.

End of the story.

Five reasons to never depose a psych doctor without an Apricot™ - Cross Examining Psych Doctors, Tip #122

An Apricot™ is a report that provides attorneys and insurance adjusters with information about the flaws in a psych report.  An Apricot™ is written on an expert witness basis and is protected by the work product doctrine.

1. Attorneys are experts in the law and typically not experts in psychology or psychiatry.
2. Psych doctors have the upper hand when being deposed by an attorney.
3. An Apricot™ uses non-technical terms to describe the flaws in a psych report revealing that the report does not constitute substantial medical evidence.
4. An Apricot™ provides the attorney with a list of simple questions to use on cross-examination of the doctor.
5. An Apricot™ provides a list of the major problems in the doctor’s report.

When psych reports are not in your favor - What to do about it - Tip #121

Dr. Bruce Leckart conducts psychological evaluations in workers’ compensation and personal injury litigation. In addition to evaluating patients, he provides Apricots™ for attorneys and insurance adjusters who have a psych report not in their favor. An Apricot™ is a work-product privileged report used to assist an attorney in cross-examining a doctor and/or writing a trial brief for the court. Essentially, Dr. Leckart will find every flaw in the report, write up those flaws in easy-to-understand terms and provide the attorney with a list of simple questions to use in cross-examination. It doesn’t matter which state you are located in or the jurisdiction, Dr. Leckart can assist when you have a psych report that is not in your favor.

Give us a call today: (844) 444-8898

The Miller Forensic Assessment of Symptoms Test (M-FAST) - Cross-Examining Psych Doctors, Tip #120

     The M-FAST is a 25-item, doctor-administered, brief structured interview designed to identify individuals who may be over-reporting, exaggerating, or fabricating psychological symptoms.  However, the M-Fast is not a psychological test in the sense that it presents any physical material that is administered to a patient.  Clearly, the results of the M-Fast are based on the doctor’s subjective observations, rather than the patient’s objective responses and therefore, this measure is not capable of presenting any non-interview objective data to the court.  When you find that the doctor discussed the M-Fast in their report you should ask the doctor if the M-Fast has any demonstrably effective methods for measuring the individual’s test-taking attitudes and credibility.

The MMPI K Scale - Cross-Examining Psych Doctors, Tip #119

     The Minnesota Multiphasic Personality Inventory (MMPI) is a psychological test that is considered the gold standard of test batteries used in medical legal evaluations.  The MMPI-2 was published in 1989 and has many proponents who depend on the test’s validity scales to provide information about the individual’s test-taking attitudes and credibility.  In fact, the MMPI-2 is the most commonly used version of the MMPI by psychologists and psychiatrists.  Every validity and clinical scale performance is described with a T-Score on the MMPI-2 which all have a mean of 50 and a standard deviation of 10.  Further, it is well known and universally accepted that T-Scores of 65 or larger are clinically significant or interpretable.  In this regard, the K Scale is one of the validity scales of the MMPI-2.  T-Scores 65 or higher on the K Scale are associated with the exaggeration of physical disability and distorting the individual’s true psychological condition.

Proverbs in a Mental Status Examination - Cross-Examining Psych Doctors, Tip #118

     One of the five basic sources of information that compose a credible psychological or psychiatric examination and report is a Mental Status Examination.  A Mental Status Examination is normally part of every face-to-face clinical interview during a medical legal evaluation.  In this regard, a Mental Status Examination produces a set of observations of the patient that are made by the doctor under reasonably controlled conditions, employing a relatively standard set of examining techniques and questions.  One of those examining techniques is to ask the examinee to interpret a set of proverbs.  For example, insight can be measured by asking the patient to interpret proverbs such as “a stitch in time saves nine.”  Similarly, judgment can be measured by simply asking the person what they would do if they found a child locked in a car on a hot summer’s day.   When reading a psych report you may notice that the doctor commented on the patient’s insight and/or judgment but did not provide any easily and normally obtainable observational data concerning those processes.  Accordingly, during a deposition an attorney should ask the doctor where in their report they cited their Mental Status Examination test results supporting their conclusions about the patient’s judgment and insight.

Serial 3s Task - Cross-Examining Psych Doctors, Tip #117

     When performing a Mental Status Examination during a psychological evaluation, the doctor may choose to have the patient count backward from 20 by 3s as a measure of their concentration.  This task is called a serial 3s task and can be done relatively quickly during a face-to-face interview.  The patient’s performance on a serial 3s task is a measure of concentration.  When a doctor chooses to use a serial 3s task to measure the patient’s concentration, it is imperative that they describe their observational data in their report of their Mental Status Examination. 

Serial 7s Task - Cross-Examining Psych Doctors, Tip #116

     A Mental Status Examination produces a set of observations of the patient, which are made by the doctor, under reasonably controlled conditions, employing a relatively standard set of examining techniques and questions.  Measuring and reporting on observational data of the patient’s functioning in the area of concentration is typically part of every Mental Status Examination report.  For example, one measure of concentration is to ask an individual to count backwards from 100 by 7s.  This is known as a serial 7s task.  The patient’s performance on this task is a measure of their concentration and, when administered by the doctor, the doctor’s observations of the patient’s performance should be described in their report of their Mental Status Examination.

Liens for psychological and psychiatric treatment
can be disputed!

If an inspection of the data in the psych doctor's report does not support the doctor's diagnosis, the conclusion is inescapable that the doctor's report does not support the doctor's diagnosis warranting the need for mental health treatment. At that point, it is reasonable to conclude that the doctor's liens are not supported by the doctor's report. 


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Dysthymic Disorder - Cross-Examining Psych Doctors, Tip #115

     According to the criteria found in the Diagnostic and Statistical Manual of Mental Disorders, a Dysthymic Disorder is diagnosed correctly when the individual presents with a chronically depressed mood that occurs for most of the day, more days than not, for at least two years.  During periods of depressed mood, at least two of the following additional symptoms are present:  poor appetite or overeating, insomnia or hypersomnia, low energy or fatigue, low self-esteem, poor concentration or difficulty making decisions, and feelings of hopelessness.  When you find that a psych report lacks information supporting the diagnosis of a Dysthymic Disorder, the attorney should ask the doctor, where in their report they provided historical data demonstrating that the patient met the diagnostic criteria for a Dysthymic Disorder.