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