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 #40-Psychological Testing Standards

Reports of psychological and psychiatric evaluations typically contain data from various sources.  Usually, 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 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 #38- The Wahler Physical Symptoms Inventory

The Wahler Physical Symptoms Inventory often appears in a psychological test battery of medical-legal evaluators in psychology and psychiatry.  In this regard, the Wahler is a self-report inventory in which the individual is asked to state how frequently they have a variety of physical symptoms or complaints such as "headaches, difficulty sleeping and backaches."  Unfortunately, a reading of the testing manual indicates that there are no validity scales for this instrument (Wahler, H. J., Wahler Physical Symptoms Inventory Manual, Los Angeles:  Western Psychological Services, 1983).  Accordingly, there is no way of detecting individuals who are endorsing complaints that do not exist.  In the absence of test results from the evaluator's battery that establish that the patient completed the testing in an honest and forthright manner, no conclusions can be drawn from the Wahler Physical Symptoms Inventory.  Additionally, the use of this test in a medical-legal examination is inappropriate as the presentation of the test items can be an encouragement to claim symptoms or complaints that do not exist.

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 #35-Measurements During a Mental Status Examination

A Mental Status Examination produces a set of observations of the patient that are made by the doctor, during their face-to-face meeting, using a relatively standard set of examining techniques and questions that yield easily reported upon objective data. Those doctor-made observations are called “signs,” and should not be confused with the patient-made complaints, since they are often different.  The nature of the techniques used by doctors is most easily understood in talking about the patient’s memory, concentration, insight and judgment.  These processes are easily measured during the course of a Mental Status Examination with such techniques as asking the patient to recall a series of numbers, asking them to count backward by 7’s or asking them to provide interpretations of proverbs or to describe in what way an elephant is similar to a whale.  For instance, if the doctor diagnoses some form of depression, individuals who are clinically depressed will often have signs, or observable behaviors, of dysfunctions in these areas.

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 #34-Panic Disorder

A Panic Disorder is diagnosed correctly when the individual presents with recurrent and unexpected Panic Attacks.  These attacks must be shown to have been followed by one month or more of either persistent concern about having additional attacks, worry about the implications of the attacks or the consequences, or a significant change in behavior related to the attacks.  In addition, the DSM specifies that a Panic Attack is not a disorder in and of itself and is characterized by a discrete period of intense fear or discomfort in which four or more of 13 symptoms occur that develop abruptly and reach a peak within minutes.  These symptoms are: palpitations; a pounding heart or accelerated heart rate; sweating; trembling or shaking; sensations of shortness of breath or smothering; feelings of choking; chest pain or discomfort; nausea or abdominal distress; feeling dizzy, unsteady, lightheaded or faint; feelings of unreality or of being detached from oneself; fear of losing control or going crazy; fear of dying; numbness or tingling sensation and chills or hot flushes. 

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 #33-Workplace Violence

Violence in the workplace has many faces and is the cause of a very large number of psychiatric claims in the workers’ compensation and personal injury arenas.  In this regard, workplace violence is defined as “physical assaults or threats of assault directed towards employees” whereas aggression is a more general term that is defined as “behavior that is intended to physically or psychologically harm an individual.”  

Research has shown that in any given year, anywhere from 1% to 5% of employees are victims of a physical assault at work, while anywhere from 9% to 70% of employees are the victim of nonphysical aggression in the workplace, such as verbal abuse, emotional abuse, and/or sexual harassment (Barling, J., Dupre, K. E., & Kelloway, E. K. (2009). Predicting workplace aggression and violence. Annual Review of Psychology, 671-692).  Worse yet, according to a 2011 report by the Occupational Safety and Health Administration (OSHA), workplace homicide accounts for 11% of all fatal workplace injuries in the United States.  In fact, the leading cause of workplace death for women in the United States is homicide.  the rates of violence across numerous occupations are highly similar (e.g., LeBlanc, M. M., & Kelloway, E. K. Predictors and outcomes of workplace violence and aggression. Journal of Applied Psychology, 2002, 87, 444-453).  Believe it or not, a coal miner, a police officer and a university professor have approximately the same chance of being physically or non-physically assaulted by a coworker. 

From a risk management point of view, how can individuals be identified who are likely to act out violently?  One obvious recommendation is to avoid hiring individuals who either have a history of acting out or possess characteristics that are associated with behaving violently.  Depending on the employer’s Human Resources budget, it may be reasonable to do background checks on prospective employees or even pay for a pre-employment psychological evaluation.  Another loss-preventative measure is to continually assess employees for their potential to act out and to provide counseling programs for individuals who show characteristics likely to lead to workplace violence, helping them deal with their personal problems without compromising the organization. 

In developing a strategy to reduce workplace violence, it is often cost effective to hire specialists in industrial-organizational psychology.  These individuals can assist any employer in selecting workers who are less likely to perpetrate or to be the “victims” of violence, can set up programs to monitor for the warning signs of aversive events, and are able to provide plans for taking counter measures to defuse situations. 

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