Transcript Forensic Practice for the Addiction Medicine Provider

Addiction Medicine
Practitioner as Expert
Witness
A Clinical Master Class
David Kan, MD
VA Medical Center, San Francisco
Health Sciences Assistant Clinical Professor of Psychiatry, UCSF
Executive Board, California Society of Addiction Medicine
Department of
Veterans Affairs
ffairs
1
Disclosure
No relevant financial
relationship with commercial
interests.
2
Why Forensics?

Already part of practice

Change of pace

Never a dull moment

Payment comes from another pocket
3
Case Example

46-year-old woman

Claims emotional damages from
workplace harassment

Her psychologist testifies that her
depression was caused by hostile
work environment

You (as expert) diagnose Borderline
Personality Disorder and alcoholism
4
Case Example

At Trial:

Attorney: Do you claim to know more
about the plaintiff than her treating
psychologist who has seen her more
than 60 times?

You (expert): Yes.

Attorney: Could you explain how that is
possible?
5
Expert Witness

What makes you an
expert?

What is your role?

VOLUNTEERS
6
What Makes You an Expert?

KNOWLEDGE AND EXPERIENCE

Qualifications

ASAM/ABAM

Board Certification

Society membership

Faculty appointment

Publications

Research
7
Expert vs. Advocate

Although it is Appropriate for Treating
Clinicians to Advocate for Their
Patients…

Independent Experts should NEVER
“Play Lawyer” and Advocate for Plaintiff
or Defendant.

Independent Experts should only
Advocate for their own Evidence-Based
Opinions – Nothing More, Nothing Less.
8
Forensic Ethics

No doctor-patient relationship

Not “primum non nocere”

Lacks confidentiality

Informed consent applies

Lacks peer review

Is it the practice of medicine?
9
Forensic Ethics

Striving for objectivity

Bias universal

Full database


Contingency Fees


You know what you know based upon what you
know
No! No! No!
Treater vs. Expert
10
Common Ethical Problems

Hired gun

Opinion for sale

Problem honest disagreement

Emotional involvement

Testimony vs. Time
11
Common Ethical Problems

Being the Doctor


Forensic-to-treatment mindset
Warnings not issued

Confidentiality limits

Side of case

Refusal to answer questions

Breaks allowed
12
Advocacy
Often Physicians Confuse
Their Roles as Treating
Clinicians with Their Roles As
Independent Experts,
Creating…
13
The Problem of
Wearing Two Hats
14
The Problem is
DUAL AGENCY
…and ROLE CONFUSION
15
The Legal System
16
The Legal System

Case Law



Stare decisis – “let the decision stand”
Common Law

Defines most crime

Defines civil actions
“The legal system is not logical, it is
legal” – Wm. Brandeis
17
Judicial Process

Adversarial vs. Inquisitional

Criminal Law


State v. Defendant
Civil Law

Plaintiff v. Defendant
18
Matters of Fact vs.
Matters of Law
MATTERS OF FACT

Ascertained by senses

Witness described what
they have perceived


Trials establish facts
then apply “the law”
MATTERS OF LAW

Jury

Judge

Statutes

Principles of law

Judge decides
what is/is not

ONLY issues of law
may be appealed
Trier of Fact

What is decided by
application of:
19
Burden of Proof

Criminal



Except Insanity – Burden of Proof shifts to
defendant
Civil


Prosecution
One Party > Than the Other
Worker’s Compensation

None per se
20
Criminal Procedure
21
Criminal Procedure

Actus Rea - Bad Act

Mens Rea - Guilty Mind
1.
2.
3.
4.
Purposely – conduct conscious object
Knowingly – aware of circumstances
Recklessly – conscious disregard
Negligently – not criminal unless by statute
No intent to do harm

Specific Intent includes 1-2

General Intent includes 1-3
22
Criminal Procedure


Misdemeanor

<12 month sentences

Local jail
Felonies

>12 month sentence

State prison
23
Criminal Punishment

Deterrence – setting example

Retribution – just desserts

Rehabilitation

Removal of Offender
24
Affirmative Defenses

Burden of production and proof is on defendant

Excuse

Self-defense – justifiable

Duress

Insanity

Automatism

Entrapment

Necessity – cabin in the snow
25
Intoxication in
Criminal Defense

Voluntary intoxication excluded


Settled Psychosis


May influence Actuality/Capacity
May be exculpating
DUI

Per se violation
26
Case Example

50-year-old man assaults wife

Shot her after argument

Claim: Intoxicated and can’t remember

Hx of Bipolar, family testifies not
symptomatic

Heavy drinker, 3 DUIs

Threatens her – “you don’t have the balls to
pull the trigger” – defendant then shoots
wife
27
Case Example

Voluntary Intoxication


Alcoholic blackout
Bipolar Disorder

No evidence of symptoms
28
Civil Procedure

Discovery – exchange information

Interrogatories

Requests for documents (subpoena)

Depositions

Mental and Physical Examinations
29
Tort Law

Tort = Civil wrong

Tort law is attempt to make injured
party “whole”

Shifts financial loss from injured
party

Blameworthiness is not necessary
30
Intentional Torts

Intentional – acts where damage
should be expected

Assault and battery

Medical



False imprisonment
Violate civil rights
Sex with patients
31
Unintentional Torts


Negligence – unreasonable risk of
causing harm
Medical Negligence

Duty

Dereliction

Direct Cause

Damages
32
Damage Types




Actual – compensatory for loss
Special – out-of-pocket expenses for
injured
Punitive – punish defendant; requires
willful, malicious, wanton behavior
Pain and Suffering – physical and
mental discomfort
33
Addiction in Law

Invisibility

Reluctance to disclose or discover
34
Standard of Evidence



Beyond a Reasonable Doubt

Criminal

>95%
Clear and Convincing Evidence

Civil Commitment
(Conservatorships / Sexually Violent Predator)

>75%
Preponderance of the Evidence

Most Civil Cases

50%+1
35
Example

49-year-old male accused of
murdering ex-wife and boyfriend; no
witnesses; lots of forensic evidence

Criminal


Not guilty
Civil

Judgment goes against him
36
The Life of a Case
37
The Life of a Case

Initial Inquiry (typically phone call)

Attorney presents their construction of
case

Discussion usually ensues

They want to know your fee

They ask for your CV

Conflicts of interest
38
The Initial Call

Get their name, number, and e-mail

Find out the calendar of the case

Give:

Fee and Retainer agreement

CV

Information that helps them (e.g.,
article, PowerPoint)
39
The Initial Call

Ask for all relevant information

Medical & Psychiatric Records

Drug Tests

Criminal Reports

Job Reviews

Depositions

Interrogatories
40
Working with Attorneys

They are advocates for their client/cause

They may be used to working with experts

They generally care about your opinion
41
Assessment

Review all records


May want to dictate record review
Interview

Informed consent

Record interview (video best, audio OK)

Observe behavior

Relevant history – medical/psych, work,
functional, recreational
42
Behavior during the
Assessment
Behavior occurring during the clinical evaluation can
provide valuable information. This may include:

Unusual emotional states that seem strange or inappropriate
to the situation

Unusual or atypical motor behavior
 restlessness
 startle reactions
 unusual or poor use of arms/hands/legs
 unusual gait or posture
 unusual or inappropriate facial expressions

Poor attention and concentration

Apparent lack of effort or fluctuating effort levels
43
Evaluating Addiction in
Litigation

Drug / Alcohol Testing

Different detection windows

Multiple drug testing technologies






Blood – current intoxicants
Urine – recent use
Saliva – recent use; not good for Cannabis
Hair – up to 3 months
Invasiveness
How much and diagnoses are far less
important than impact of use
44
Evaluating Addiction in
Litigation

Indirect Laboratory Testing


Blood count, liver function tests
Physical Examination / Observation

Sweating, pupillary dilation, agitation

Sequelae of Alcoholism



Alcohol on breath
Rosacea, Angiomata
Co-Occurring Physical Conditions
45
Evaluating Addiction in
Litigation

Psychological Symptoms

Intoxication vs. Withdrawal

Toxidromes mimic psychiatric disorders





Depression
Mania
Anxiety states
High rates of co-occurring disorders with
addiction
Cognitive Abnormalities

Intoxication vs. Kindled damage
46
Report Writing

Report is meant to help
legal disposition of
dispute

Stages

Gathering information

Consider audience

Organize and outline

Fine tuning
47
Federal Rule of Civil
Procedure Rule 26

Written report

Complete statement of opinions

Basis and reasoning

Qualifications – CV is sufficient

Publications in last 10 years

Fees

List of cases depo/testified for 4 years
48
Report Writing

Label sections

Short paragraphs

Executive summary

Report should be self-sufficient

Reasoning is most critical part!
49
Report Content

Identifying Information

Case number, charges or allegations

Source of Referral

Referral Issue

Sources of Information

Interviews

Documents
50
Report Content

Qualifications

Statement of Non-Confidentiality

Past Personal History

Family History

Sexual and Marital History

Educational History
51
Report Content

Employment History

Relevant Medical History

Drug and Alcohol History

Legal History

Juvenile arrests

Prior litigation

Worker’s Compensation
52
Report Content

Psychiatric History

Relationship of Plaintiff/Defendant

Relevant Events Preceding Crime

Defendant’s Account of Crime

Witness Accounts

Mental Status Examination/Physical
Examination
53
Report Content

Summary of Psychological Testing

Competency Assessment

Psychiatric Diagnosis

Opinion


Reasonable medical or psychological
certainty
Avoid hedging – “it seems, I think, I
believe”
54
Attorney Control over
Reports

May not want report


Brief report


Avoid cross examination
Keep costs down, keep information
confidential
Don’t keep drafts
55
Report Writing Don'ts

Be snide/snarky

Make personal attacks

Use legal terms generally

Use terms as draft/confidential/work
product

!, ____, Bold, Italics

http://gunning-fog-index.com/
56
Testimony

Deposition vs. Trial

Both

Expect an oath

Subpoena Duces Tecum


Voir Dire


Bring your documents
Number of times contrary construction
Anticipate and spell technical terms57
Deposition
58
What gets Covered in
Deposition

Qualifications?

Compensation?

Expert’s experience including %
plaintiff vs. % defense?

What was assignment?

What work was done to fulfill
assignment?
59
What gets Covered in
Deposition

Reviewing Expert’s file material

Opinions formed?

Basis for each opinion?

Additional work requested, if
any?

Whether changing particular
facts would change Expert’s
opinions?
60
Deposition

Cross examination

Provide opinions and basis for them

For the record

Speak clearly and slowly

Understand question

Feel free to repeat
61
Deposition

Answer question asked

Feel free to refer to documents

Don’t banter

Payment

Paid by opposing counsel for time
allotted

Paid by your counsel for travel and
expenses
62
Deposition

Don’t guess

“I don’t recall” is a fair answer

Objections

Listen carefully

Answer question unless instructed not
to
63
Deposition Attorney Tricks

“Let’s have a conversation”

Scrambling the order

The Rhythm Method

Making you guess

Personal questions
64
Trial Testimony – 6 P’s
1.
Preparation
2.
Planning
3.
Practice
4.
Pretrial Conference
5.
Pitfalls
6.
Presentation
65
Testimony Example Direct
66
Testimony Example Cross
67
Attorney Preparation

Educate

Diagnosis, psycho/pharmacotherapy

Demystification

Limits of data

Be aware of ex-ference
68
Trial Testimony


Direct Examination

Your attorney makes the case

You can help prepare your attorney for
direct
Cross Examination


Opportunity for opposing counsel to
poke you
Don’t be rattled
69
Trial Testimony

Dress conservatively

Explain medical terminology

Think about answer first

Objections:

Wait for instructions from judge
70
Trial Testimony

Speak directly to the fact-finder (i.e.,
judge, jury)

Make eye contact with every member
of jury
71
Trial Attorney Tricks




“Isn’t it possible?”
“You’re being paid $X for your
testimony?”
“You’re saying you know this case
better than the treating physician?”
“Have you done a complete and
thorough review?”
72
Trial Attorney Tricks

Misquoting testimony

“Never” and “Always”

Simple harassment

Treat attorney like a Borderline patient

Impugning pretrial preparation

Patient is present
73
Expert Advice

“Based upon knowledge, training,
experience”

Concede valid points

“Your honor may I explain?”

“My job is educator”

“I’m here to advocate for my
opinion”
74
Starting and Growing Your
Practice

Advertising

Consultation

Fee and Retainer Agreements


Sample included in CD
Getting paid
75
Getting Your Name Out

Advertising

Google

Call local DA/PD to offer discounted
work

Educational talks

Publish in law journals

Local bar association publications
76
Getting Your Name Out

Redacted reports

Never eat lunch alone

Connect with experienced forensic
practitioner

Worker’s Compensation
77
Practice Management


Billing software

Timeslips

iBiz
Storing Records

Ask permission prior to shredding
78
Money

10 hour retainer

Nonrefundable?

Keep attorney appraised of cost

Stop work when money is out

Time estimates are not NTE quotes
79
Money

10 hour per diem

Minimum ½ day for deposition/trial

Travel pay

Expenses
80
Selected Topics

Competency

Malpractice

Child Custody

Dram Shop

Drug-Free Workplace
81
Selected Topics

Impaired Professional

Prescription Drug Abuse

Toxidromes
82
Competency

To do what?

Testamentary


Stand Trial


Know natural heirs, make appropriate decision
Know charges and court procedure
Fitness for duty


Pettus v. Cole
Limits disclosure
83
Malpractice

Duty, Dereliction, Direct, Damages

Standard of Care

What a reasonable practitioner would do
similarly situated

Guidelines

Hindsight Bias


Perfect vs. Single lesion
What was not written didn’t happen?
84
Child Custody

Best interests of child

Parent is accused of addiction

Evaluation


Labs, testing
Recommendations

Treatment, disulfiram, naltrexone
85
Dram Shop

Defendant walks into bar

Three drinks

DUI


.08 vs. .25
Bar owner sued
86
Drug Free Workplace Act
1988


TITLE 41 > CHAPTER 10 > § 701

Prohibit use on job

Prohibit working under the influence

Provides employee notification
requirements
Prohibits unlawful manufacture,
distribution, dispensation, possession,
or use of a controlled substance
87
ADA Title I and V
Section 12114c

Drug addiction may be a "disability" if it
"substantially limits one or more ... major life
activities." 42 U.S.C. Section 12102(2)

Current use of illegal drugs does not make
“qualified individual with disability”

Can be qualified individual with disability

Completed program and is now drug-free

Participating in supervised rehabilitation program and is
now drug free
88
Addiction and Americans
with Disabilities Act

Brown v. Lucky Stores, 246 F.3d 1182


Employer permitted to terminate an alcoholic
employee for violating a rational rule of conduct even
if the misconduct was related to the employee's
alcoholism
Hernandez v. Hughes Missile Systems Co.,
DJDAR 6518 (9th Cir. June 11, 2002)

Hernandez fired after cocaine+ on Utox

Hernandez went to rehabilitation

9th Circuit ruled that Hernandez qualified as an
individual with a disability, and that history of
addiction alone, even related to reason for
termination, was not grounds not to rehire
89
Workplace Drug Testing

Workplace Drug Testing



Is not considered a medical examination
Alcohol Testing

Is considered a medical examination and thus
must meet need and necessity

Individuals with current alcohol-related disorders
are protected under the ADA
ADA does not conflict with DOT or other
Federal Regulation

ADA trumps state/local law when conflict arises
90
Workplace Drug Testing

Pre-employment examination

Periodic random testing

Post-incident/accident

For reasonable cause

Random testing (safety/security sensitive
positions)

Work fitness examinations

Job transfer examinations

Continuing-care testing (workers in treatment
where testing is a condition of continuing
employment)
91
Impaired Professional

Regulatory

Diversion

Constraints of safe practice

Monitoring
92
Prescription Drug Abuse

Malpractice claim

Documentation

Good faith H&P

Risks and Benefits

Appropriate treatment plan

Monitoring

Universal precautions?
93
Prevalence


Among full-time workers aged18 to 64
(NSDUH 2004-5)

8.8 percent reported current heavy alcohol use

8.2 percent reported current illicit drug use

~30% overlap
In the past year

7.4 percent of these workers were dependent
on or abusing alcohol

1.9 percent were dependent on or abusing
illicit drugs
94
Affected Industries


Highest rates of current illicit drug use

Accommodations and Food Services industry
(16.9%)

Construction industry (13.7%)
Highest rates of current heavy alcohol use

Construction industry (15.9%)

Arts, Entertainment, and Recreation industry
(13.6%)

Mining industry (13.7%)
95
Impact of Addiction

Illicit Drug Users

Heavy Alcohol Users

1.5x likely to miss 2 or
more days of work in
last month due to
illness/injury

1.5x likely to miss 2 or
more days of work in
last month due to
illness/injury

2.6x more likely to skip
1+ days of work in last
month

2.2x more likely to skip
1+ days of work in last
month

1.6x more likely to have
left employer in last year

1.3x more likely to have
left employer in last year

1.9x as likely to have
been terminated

1.6x as likely to have
been terminated
SAMHSA 1999 Data
96
Impact of Addiction

Lost Productivity (deBenardo 2001)


Sick Leave


25-33% lower
300% higher health insurance rates
Worker’s Compensation Claims

Addiction linked to 40% of industrial
fatalities and 47% of industrial injuries
97
Addiction Myths

Myth of Self Medication

Myth of Detoxification

Myth of Character Weakness

Myth of Treatment Ineffectiveness
98
Alcohol

Most prevalent

Intoxication effects well known

Problem drinking

Deleterious effects women > men

Patterns of absenteeism
99
Cannabis

Prop 215 contradicts Federal Law

“Medicinal marijuana”

Paranoia, psychosis, anxiety
100
Cocaine + Amphetamine

Central Nervous System stimulants

High doses and/or prolonged use
can produce psychosis, agitation,
anxiety, anger

Cessation of use associated with
dysphoria

Amphetamine epidemic problematic,
but somewhat overstated
101
Opiates


Non-prescribed use growing
Chronic opiates rx’d for pain conditions
generally NOT impairing when taken as
prescribed

Look for early refills, lost rx, multiple
prescribers

DOJ CURES form

Methadone / Buprenorphine treatment of
choice

Detoxification of limited long-term efficacy
102
Other Issues

Testimony


Orders in limine
Report Writing

Editor

CALJIC/CALCRIM

Hindsight bias
103
Discussion
104