Psychiatry on Trial

Fact and Fantasy in the Courtroom

Ben Bursten, M.D.

 Copyright © 2001 Ben Bursten

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 Table of Contents
Acknowledgments

Preface

Chapter 1 Prostitutes and Junk Scientists

Chapter 2 How Expert Is the Expert?

Chapter 3 Searching for Causes

Chapter 4 Psychiatric Impairments

Chapter 5 “Impairments Are Forever!”

Chapter 6 Long-Distance Evaluations

Chapter 7 Prudent Practitioners and the Protection Paradox

Chapter 8 Nursery Crimes

Chapter 9 Custody Battles

Chapter 10 “Sex Play”

Chapter 11 Unfitness for Duty

Chapter 12 “Troublemakers”

Chapter 13 Role Conflicts

Chapter 14 Which Conditions Count?

Chapter 15 Should We Throw Out the Baby?

Bibliography

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 Acknowledgments

The often unsung heroes of a book such as this

are the reference librarians. With patience and

good humor they have hunted down obscure

documents and helped me find books and other

source materials that were buried in the far

recesses of their collections. With their help, I was

able to make good use of the resources of the

libraries of the University of Tennessee at
Knoxville: the Hodges (Main) Library, the Preston

Medical Library, and the Joel A. Katz Law Library.

And when I needed some unpublished material

from the American Psychiatric Association, the

librarians at that office in Washington graciously

tracked them down for me.

Much of the material in this book is drawn

from my experiences as I worked with attorneys. I

especially appreciate those lawyers who have

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 stuck with me, even though they could not depend
on me to support their position in some cases. Yes,

there are some lawyers who really want to know

the opinion of an independent psychiatrist. They

are a credit to their profession.

One person must be singled out. My wife,

Jocelyn, acted as my first editor. She read draft
after draft of each chapter, and she pointed out

where my rhetoric was too pedantic or my

meaning too obscure. To the degree that this book

is intelligible, the credit belongs to her. And her

enthusiasm and encouragement for this project

never faltered, even when I had to discard earlier

attempts. She also gave me one of the most

valuable gifts a writer can get—the gift of time.

Time to think, time to write, time to go to the

library. For all the gifts she has given me over the

years, I am very grateful.

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 Preface

As in any profession, psychiatry has its warts

and its beauty marks. And since we psychiatrists

are human beings, we are subject to the same

distortions, misunderstandings, ego trips, and

temptations as others. At times we may

pontificate, weaving theories unsupported by data,

in order to impress others with our “knowledge.”

Sometimes we parrot our teachers without
questioning whether what we (and they) believe is

really accurate. We may use our professional

platforms in the service of political or ideological

ends. At times our eyes may wander from our

science to the sources of our income. That’s the

bad news.

The good news is that our profession has been

willing to reexamine old theories and to modify

them as new evidence has emerged. With the

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 development of advanced research techniques,
psychiatry is increasingly based on empirical

studies. And the best in our profession use these

data in their practices without losing their touch of

humanity when they interact with patients.

Respect for patients and concern for their welfare

are the hallmarks of any good physician.

The warts and beauty marks come into bold

relief when we psychiatrists enter the legal arena.

Here, our pronouncements are on display,

sometimes splattered all over the news media.

Here we are beyond the doctor-patient dyad; we

are working with society’s rules, and society is

quick to judge us.

There is no shortage of people ready to

criticize psychiatric testimony. Some even suggest

that psychiatrists should be barred from the

courtroom. Unfortunately, the criticisms are not

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 always wide of the mark. There is improper
testimony; sometimes there is outrageous

testimony. But there can also be good testimony

which can help the judge or jury reach a more

well-informed decision. This book attempts to

distinguish between the good and the improper

testimony. It is not a source book on psychiatry;

neither is it a source book on legal concepts. I have

tried to give just enough information about

psychiatry and law so that the issues can be

understood by either profession. Rather than the

academic prose style, I have opted for a more

conversational rhetoric, hopefully understandable

to nonprofessionals in either field. It is the

language I use when I testify on the witness stand.

In this book I report many case examples to

illustrate the points I am making. In order to

protect the privacy of the people involved, I have

changed their names. I have also altered some of

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 the details of the case histories to help preserve

anonymity. However, none of the facts which are

essential to the psychiatric or legal understanding

of the case examples have been altered. All

material in quotation marks is accurate, as copied

from testimony, records I reviewed, or my

extensive interview notes.

Some of the cases described have already

received wide publicity. These contain correct
names and incidents, and they will be noted as

such in footnotes. Names and details of cases cited

as court decisions are accurate. And of course,

names cited as references are also correct.

In my forensic psychiatric practice, I have had

the opportunity to review the records and

conclusions of many of my colleagues. Sometimes I

was impressed; sometimes I was disgusted. And

sometimes I was taken aback with the realization

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 that during the course of my career, I, too, have
purveyed misinformation because of naiveté or

carelessness, or desire to please someone. I trust

that as my career proceeded, I have been

correcting these errors. It is in this spirit that I

offer this book so that we, as professionals, may

confront the problems. I have no illusions that we

will solve them, but at least we can bring them out

in the open. And I offer this book also to our critics

who too often focus on the warts while neglecting

the beauty marks. For psychiatrists will continue

to play a role on the legal stage, and the real

question is how society can be best served by our

actions.

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 Chapter 1

Prostitutes and Junk Scientists

Jay Ziskin, psychologist and lawyer, didn’t
mince any words. He cited a long string of legal

and mental health professionals who criticized the

role of psychiatrists and psychologists as expert

witnesses, and he concluded, “The continued

participation of members of these professions in

the legal process is a travesty and is well

recognized as such by the public and the media.
Hundreds of millions, if not billions of dollars of

taxpayers’ money goes down the drain in the

continued imposition of this encumbrance on the

legal process. I can only provide the relevant data.

It is up to the legal and mental health professions

to take steps to stop this travesty.”1 His attack on

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 psychiatric testimony has been echoed by
countless professional and lay critics. Such

testimony is useless, they say. Or worse, it is

useless and biased. Or still worse, it is useless,

biased, and fraudulent.

Of course not everyone agrees with this

assertion. However, even judges who don’t

subscribe to such a sweeping condemnation

sometimes have their strong doubts about what

they hear from psychiatrists. In a recent case, the

doubts reached the point where the judges on the

Appeal Panel were either merely disgusted or

downright exasperated with the psychiatrist’s

testimony. At the very least, they didn’t trust him,

and they let the whole world know. In a footnote,

they wrote that Dr. Smith2 left Michigan “under

something of a cloud when his group was charged

with bilking a federal program. He settled the

government’s claim against him... He ‘went into

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 business for himself’ by sending out 140

‘marketing letters’ to lawyers announcing that his

services as an ‘expert’ psychiatrist were available.”

The footnote went on to state that Dr. Smith

“evaluates between 48 and 70 cases yearly for the

attorney in this case, and he charges substantial

fees as a ‘forensic psychiatrist.’”

The case was straightforward enough. A

woman sustained minor back and hand injuries at
work. She claimed these injuries caused her to be

severely depressed. Dr. Smith agreed and testified

that her depression would never get better. She

was mentally crippled for life. Although the
defendant company offered testimony from

another psychiatrist who was much more

optimistic about her recovery, the judge went with

Dr. Smith. He awarded her $300,000. The

defendant company appealed and the Appeal

Panel reversed the lower court’s judgment. They

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 noted that Dr. Smith contradicted himself in his

testimony and that much of what he said was

“opaque.”

The judges could have stopped there, but

something about Dr. Smith, or about the state of

the art of psychiatric expert witnesses in general,

pushed them to add this damning footnote. They

just had no faith in this expert witness.

Unfortunately, this kind of accusation can be

found in the written decisions of quite a few

judges. Mossman has compiled a list of cases

where the psychiatric or psychological witness is

described as a prostitute, whore, or hired gun.3

Back in the Middle Ages, one didn’t need expert

witnesses, because there wasn’t very much science

around. Everyone knew there were witches who

caused all sorts of bad things to happen.4 No one

was needed to explain to the court what witchcraft

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 was all about. If things went awry, put a woman on
trial. The judges knew a witch when they saw one.

Things changed with the rise of science—the

magic of alchemy gave way to the science of

chemistry, physics and mathematics added

complexity to engineering, and statistical methods

enabled scientists to predict the likelihood of

something happening. Medicine, too, was

changing. Folk remedies gave way to treatment

based on research. Superstition and myth were

yielding to understanding. But this kind of

understanding takes a great deal of study and

experience. And you can’t understand everything.

People specialize.

The fruits of this knowledge explosion made

the situation in the courtroom quite different. Now
there were people who knew more about some

things than judges and juries did. Ordinary

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 witnesses possessed common knowledge. In court,
they could testify about what they had seen and

heard (or what they thought they saw and heard,

for perception and memory are easily distorted).5

The juries knew what the witnesses were talking
about. But expert witnesses possessed uncommon

knowledge — things that had to be explained to

juries. That’s why expert witnesses are not

restricted to giving only data; they must interpret

the data to the jury. And since nothing is certain in

this world, their interpretations can represent

their opinions. Other experts, in good faith, can

have different interpretations of the data.

When we get two experts, relying on their

specialized knowledge and experience, who offer

different opinions, who makes the decision? Why,

the jury of course—or the judge, if it isn’t a jury

trial. And they are people who have no specialized

knowledge. Sometimes, even when there is only

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 one expert, the judge or jury may not agree with

the expert’s opinion. More than once, I’ve heard

one of my colleagues complain, “Of course he’s

insane. He has all the symptoms of schizophrenia.

How can the jury, with no medical training, say

he’s not?”

The answer is really quite simple if you

understand what a trial is all about. We tend to

think of a trial as a search for truth. Did O.J.
Simpson really kill his wife? Did tobacco

companies really conspire to hide the addictive

properties of tobacco? How is a judge or jury to

know which side is correct? What they decide is
not what is true, but what they believe—what the

truth is as they see it. The courtroom is not a truth

arena; it is a persuasion arena where the

contestants try to make the judge or jury see it

their way.

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 Wealthy litigants may spend thousands of

dollars hiring jury consultants. Do these experts,

armed with questionnaires for prospective jurors,

look for people who are truth specialists? Of

course not. They look for telltale signs which

might predict how the jurors will decide the case.
Each side wants to load the jury with those who

are likely to be favorable to them—even before

they hear the evidence.

No, the courtroom is not—and cannot be—a

laboratory where truth is discovered. The purpose

of the court is a very practical one: When a dispute

arises in society, there must be a mechanism for

deciding it.6 We may hope the decision is correct,

but our confidence in the truth is too often shaken

by those convicts who have been found guilty, but
who are ultimately released because of new

evidence.

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 While the courtroom may be an arena of

persuasion, there are limits to how the contestants

can go about the business of persuading. Court

rules define what kind of evidence is acceptable

and what procedures the attorneys must follow.

Witnesses are sworn to tell the truth (as they see
it). Although each attorney tries to argue more

convincingly than the other (the adversary

system), these rules help the judge make the trial

fair to each side.

Within these rules, the lawyer’s job is to do his

or her best to protect the interest of the client—in

other words, to win. And if he or she can bring in

some expert in a specialized field who can throw
light on the issues in the case, so much the better

—as long as the expert supports the client’s case.

As Huber pointed out, the expert who cannot be

relied on will not be called again.7 Telling the

attorney something he or she doesn’t want to hear

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 is no way for an expert to build up a forensic

practice.

This book is about one kind of specialized

knowledge—psychiatric testimony. As happens in

every specialty, sometimes the psychiatric facts of

the case run counter to what the lawyer is looking

for. What then? Even though the lawyer may know

the case is weak, he or she may engage the service

of a “flexible” psychiatrist—one who will march to
the attorney’s tune. The witness needn’t

necessarily resort to outright lying. Sometimes the

“expert” phrases the testimony in such a way that

the jury doesn’t realize it is getting a distorted
impression of the facts. Sometimes he or she may

present irrelevant facts in order to impress and

persuade the jury. One such witness may have

plied his trade in Bobby’s case.

Bobby was on trial for murder. Both the

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 district attorney and Bobby’s lawyer agreed to
these facts: Bobby’s drug use started with speed

(amphetamines) when he injured his back in his

late adolescence. His usage gradually escalated,

and at the time of the killing, he used not only

speed but also cocaine, Valium, and marijuana—

and, of course, beer. He was living by himself in a

small run-down house. He ran with a rough crowd

and supported himself by selling drugs to others.

One evening, he came home to discover that

someone had broken into his house. Several items

were stolen—guns, tools, two television sets, and

drugs. The house was a mess.

Several witnesses agreed about what

happened after that. The gossip among his friends

was that a young man with whom he was

acquainted, Greg, had pawned the television sets

in another city. The gossip flowed back and forth

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 and Greg learned he was suspected. Greg and his
friends accosted Bobby in a bar and warned him

not to report the crime. To emphasize the warning,

they stole a scarecrow from a nearby cornfield,

painted it with red splotches to simulate blood,

and hung it in a tree near Bobby’s house.

Bobby and his friends retaliated by shooting

holes in Greg’s car. By now, the lines were drawn.

Bobby’s group captured Greg and brought him to

the house, where he was tied up in a back room.

During the next few days, as usual, everyone was

using drugs—“partying.” Since they knew Greg’s

friends might attack and attempt to rescue him,

they took turns outside the front door—gun ready

to shoot any intruder.

During the next five days, from time to time

Bobby went into the back room to tease and

torture his victim. He shot at him, barely missing

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 his head. He and his friends kicked him
mercilessly, but they made sure not to allow him

to lose consciousness. They cut his arms and legs

—small cuts which could fester and hurt, but

which would not bleed excessively. Although

Bobby demanded Greg tell him where the guns

and tools were, Greg held firm. Finally, Bobby took

him out of the back room, laid him on a blanket in

the kitchen, and slowly inserted a knife through

his chest wall and into his heart. Greg bled out

internally and died. The captors cleaned the house

thoroughly. Wrapping Greg in a blanket, they

drove him to a river and pitched him in.

Not having seen Greg for a few days, his

girlfriend went to the sheriff and suggested that

Bobby might be holding him. The deputy found

Bobby’s house to be neat and clean. He testified

that Bobby did not appear intoxicated and that he

was cooperative. There was nothing unusual about

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 him. However, one of Bobby’s friends worried

about the deputy’s visit. He went to the sheriff and

told him what happened. Bobby was arrested and

charged with an unusually violent first-degree

murder—the kind which could lead to the death

penalty.

The evidence against Bobby was strong, but his

attorney had two chances to save him from the

electric chair. He might be able to convince the
jury that Bobby was so out of his mind when he

committed the offense that he didn’t realize the

significance of what he was doing. If that didn’t

work, he still might be able to persuade the jury to
have pity on Bobby and sentence him to life in

prison instead of death. He flew in Dr. Barker and

explained what he needed.

Dr. Barker was no ordinary psychiatrist. He

was trained in outstanding hospitals. He was on

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 the faculty of a major medical school. He was
consultant to several important agencies. He was

well versed in legal aspects of psychiatry, and he’d

even taught in the Law School. He had testified

“hundreds” of times. And he was on the ethics

committee of the University. A saint! The attorney

made sure the jury knew this man’s pedigree. It is

fair to say this doctor was knowledgeable about

psychiatry. At the trial he was not likely to be

confused or to be beset by thought-disrupting

anxiety. Certainly he was not naive about what is

expected in the courtroom.

In his testimony, Dr. Barker gave the jury a

history of cocaine. The drug, he said, was used

thousands of years ago by the Incas of South

America. It gave them energy in the high

mountains where the air is thinner. In the late

1800s, it was used as a stimulant by many

physicians—here he dropped a few famous names.

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 It was an ingredient in Coca-Cola, until it was

legally banned in the United States. All very

interesting, but Bobby was Caucasian. He lived in

southern Kentucky where the mountains are not

as high as the Andes in Peru. And there was no

evidence that Bobby was high on Coca-Cola.

Perhaps Dr. Barker was trying to impress the jury

with his vast knowledge. Perhaps they were

impressed. But the testimony was irrelevant.

He recounted Bobby’s life story for the jury,

starting with an appendectomy when he was six.

Dr. Barker described the surgery in some detail. As

a child, Bobby struggled in school because he had
a reading disability. Despite this fact, he managed

to graduate from high school.

Bobby’s life was a series of tragedies. He

married at the age of 18, but his wife spent money

excessively, and they went into debt. She started

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 to run around on him and finally left him for
another man. Nonetheless, he continued to work

very hard, trying to catch up on the debts incurred

by his wife. Weighed down by all of this, Bobby

began to drink.

Dr. Barker continued the tale of woe. Bobby

did not come from a stable family. His father drank
and occasionally used speed, and his mother was

on tranquilizers for her nerves. After his parents

divorced, Bobby shuttled between his parents,

living a month or so with one and then moving to

the other one’s home.

While working on a construction job, Bobby

injured his back. Seeing how Bobby was suffering,

his father gave him some speed to perk up his

mood. From that point on, Bobby’s personality

changed and he started using a variety of drugs.

He lost his job and began running with a bad

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 crowd.

A pitiful story indeed, but not really expert

psychiatric testimony. Dr. Barker never directly

stated that these tragedies produced a disordered

mental state at the time of the offense. His

testimony was not the kind that needed a

specialist to interpret. It did not rest on a body of
knowledge acquired through years of study and

experience. In fact, the same data could have been

given by Bobby’s mother or a close family friend

with no psychiatric training whatsoever. But

clothed in the mantel of psychiatric testimony, this

history might take on special meaning. The jury

might think Bobby did the deed because he was

psychiatrically crippled by all these tragedies. Dr.

Barker never actually said that; he never lied. He

didn’t have to.

Dr. Barker did provide some truly psychiatric

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 testimony—specialized knowledge which could
help the jury understand. The use of

amphetamines can make you psychotic. You can

become paranoid and feel you are in danger. You

may hallucinate and be convinced what you are

seeing or hearing is real.8 It’s like a bad dream and

you think people are after you. You may do

anything to survive!

But there was a problem. Bobby was in danger.

Greg and his friends were after him. “Ah,” said Dr.

Barker, “just because they’re after you doesn’t

mean you’re not also paranoid. It just makes the

paranoia worse.” He never explained how, if

someone really threatens to kill you, it can get

worse than that.

Bobby, of course, was “partying.” He did do

some foolish things during those five days. His

judgment may well have been impaired from time

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 to time. But was it impaired at the time of the
killing? “Yes,” said Dr. Barker, responding to the

attorney’s question. “At that point, he was

suffering from an amphetamine-induced psychosis

—the effects of speed. It would focus his attention

on the thought that Greg was out to kill him and he

had to do something to survive.”

On cross examination, the district attorney

specifically asked Dr. Barker if he meant that

Bobby killed Gregory Stanton out of a misbelief

that he was a threat to him.

Listen to the doctor’s response.

Dr. Barker: “No, I’m describing the kind of thinking,

the kind of focused thinking that takes place
in individuals who have an amphetamine
psychosis.”

Not the kind of thinking that did, to a reasonable

degree of medical certainty, take place, but a

generic does take place. If he were more accurate,

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 Dr. Barker should have said “that could take place.”
But accuracy was taking a back seat to persuasion.

He failed to provide any sound data that Bobby

even had an amphetamine-induced paranoid

psychosis. Where were the delusions? Back to the

fact that Greg really was a threat. And Dr. Barker

testified that Bobby did not kill Greg out of a
misbelief he was a threat to him. In fact, the doctor

failed to inform the jury that a person with an

amphetamine-induced paranoid psychosis is likely

to be suspicious of everyone—including his

cohorts with whom he was “partying” and whom

he trusted to guard his house. The testimony was

like a shell game, and it is doubtful the jury could

detect under which shell the pellet ended up.

The jury didn’t agree that Bobby suffered from

a crippled mind when he killed Gregory Stanton.

However, they did not sentence him to death; he

got a life sentence. I don’t know if this was because

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 they heard about the tragedies in his life, or

because his life story painted him as a real human

being. It’s hard to sentence to death someone

you’ve gotten to know. Or perhaps there were

other reasons, not related to Dr. Barker’s

testimony at all.

However, the doctor’s discussion, coming from

a knowledgeable and experienced expert, at least

raises the question of whether the testimony was
bought and paid for by the attorney. I cannot

answer this question. I have never met Dr. Barker

and I don’t know what was in his mind when he

was testifying. Maybe he was confused—or
misinformed—or something. But it is this kind of

testimony which causes many people to label

some psychiatrists who testify as prostitutes. And

quite a few attorneys chuckle about the label, just

before they pick up the phone to call them.

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 Some witnesses use junk science. Junk science,

a term coined by Huber, has the trappings of

science without the careful testing which gives

science its substance. He noted that the research

on which it is based “is a catalogue of every

conceivable kind of error: data dredging, wishful
thinking, truculent dogmatism, and, now and

again, outright fraud.”9 In other words, the

“research” is grossly faulty or absent altogether.

Foster and Huber stress that to be truly scientific,

a theory must be capable of being tested with the

possibility that it might be proven incorrect.10

The witness who is an out-and-out prostitute

knows when he or she is presenting conclusions

which only pretend to rest on sound science. In

fact, this “expert” may love junk science; he or she

may even create some of it on the stand. However,

there are others who truly believe what they are

testifying about, but the theories on which they

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 base their reasoning are, perhaps unbeknownst to

them, based on junk science. When they testify in

good faith, they perpetuate a myth.

I encountered such a junk scientist several

years ago when Attorney Roger Price asked me to

evaluate his client. Jim and a friend had broken

into a house one night. The next day, a woman was

found in the house—raped and brutally murdered.

The assailants were easily identified and charged
with the crimes. The problem was that each

defendant accused the other of being the

perpetrator. Each claimed to have been only a

frightened witness.

I evaluated Jim and talked with his parents.

While I could not comment on the truth of what

they told me, nothing either he or they said

convinced me that Jim had a significant psychiatric

condition which affected his judgment at the time

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 of the offense. Both men were found guilty by the
jury. They were given the death penalty.

Several years later, an assistant district

attorney called me. Jim had a new lawyer, and he

was appealing his sentence. He claimed Roger

Price had not given him an effective defense. He

didn’t dispute the finding of guilt. However, after
the jury decides the defendant is guilty of first-

degree murder, the trial moves to the sentencing

phase. The lawyers may enter evidence to help the

jury decide how severe the penalty should be. Jim

argued that his former attorney (and I) failed to

recognize how emotionally upset he was at the

time of the offense. He should have another chance

to present that point to a sentencing jury. If he

were stressed out at the time, the jury could

decide that the death penalty was too severe.

The new lawyer hired a psychologist to inquire

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 if Mr. Stone was, indeed, stressed out at the time.
The psychologist’s report was 20 single-spaced

pages long. In addition to a three-hour interview,

he administered 25 different psychological tests.

They tapped Jim’s intelligence, his memory, his

ability to think. Special neuropsychological tests

sought to uncover brain damage. Finally, the

psychologist administered several personality

tests to Jim. The psychologist may have thought he

was being thorough; I think it was overkill.

The test results were striking. Jim’s thinking

ability was good to excellent, depending on the

test. The neuropsychological tests revealed no

brain pathology. But the personality tests revealed

a host of problems. His tests fit the pattern of

people who are immature and somewhat

impulsive. Such people have a history of poor

interpersonal relationships, and they tend to be

rather passive. They have low self esteem and

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 little self confidence. Under stress, their attention

turns to their bodies and the possibility of disease

or injury. They come from troubled families and

they may have long-standing problems of

maladjustment.

The list of maladjustments went on and on. If

something could go wrong in someone’s makeup,

it looked as if Jim was likely to have it. He was

truly crippled. His diagnosis: mixed personality
disorder.

In contrast to Dr. Barker’s testimony about the

history of cocaine and the tragedies in Bobby’s life,

the psychologist in this case stuck to specialized
data—data which had to be interpreted in order

for the jury to understand. What was needed at

this point, however, was to link those test data

with Jim’s emotional state at the time of the

offenses. The link was child abuse.

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 Jim told the psychologist he was virtually a

captive of his predatory friend, the other assailant.

He feared he would be harmed if he didn’t

participate. Emotional stress! What the

psychologist did was to provide supporting

evidence that this, indeed, was the case.

In the interview with the psychologist, Jim said

he didn’t remember anything about his childhood.

According to the psychologist, people who don’t
remember anything about their childhood are

victims of abuse; childhood memories are too

painful to remember. Such victims often develop

into people who are dependent and fear losing

friends. Therefore, they are overly compliant. And
Jim’s tests showed he had passive trends. Further,

such victims carry within them repressed

memories of bodily threat and injury at the hands

of the abuser—fear of injury, just like the tests

confirmed. It all tied together, and science

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 supported what Jim said about his emotional state

at the time of the offense.

When I read the report, I knew the science was

weak. So was the logic. The test results were not

surprising. Having worked in prisons, I have

evaluated many convicted murderers and quite a

few rapists. I have yet to find one whose character

is without significant flaws. I doubt I ever will.

Does your average well-adjusted person rape and
murder? Give enough tests, and you are likely to

find an array of problems which you can tie into

the patient’s history, whatever the history has

been. You can pick and choose from among them
and relate the findings to any number of histories.

Not that tests are useless; they are just weak

evidence if the other data aren’t strong.

And what about the other data—Jim’s history?

Not remembering equals child abuse? At best, this

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 is a very controversial inference to make; the data
to support this inference are weak and ambiguous.

And, as it happened, in this case this inference was

contradicted by other data. In my evaluation, a few

years earlier, I asked Jim about child abuse, and he

denied it. “Never happened,” he said. And his

parents described a close and loving family. The

only child they ever had any problems with was

Jim’s younger brother—and these problems were

not severe.

Of course, these people may have been

covering up a family secret, even though in this

legal situation it would have been to their

advantage to portray Jim as a victim of family

trouble. But at least this is a stronger piece of data

than the inferences the psychologist made. And

there was another piece of data. Jim didn’t tell me

that, because he couldn’t remember his childhood,

he didn’t know whether he was abused. He said he

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 knew he wasn’t.

Junk science. I was asked to give my opinion

about the psychologist’s report. After outlining his

series of inferences, I summed it all up by saying

that he had built a rickety house on a foundation of

sand. Apparently the judge agreed, and Jim’s

appeal was denied.

It is just such inferences and formulations

which has led many writers to criticize psychiatric

testimony and psychiatry, itself. The classic

criticism came in the early 1960s from a

psychiatrist—Dr. Thomas Szasz: “I submit that the

traditional definition of psychiatry, which is still in
vogue, places it alongside such things as alchemy

and astrology, and commits it to the category of

pseudo science.”11 Junk science!

Szasz was criticizing a “science” based on the

psychiatry of the day— conclusions derived from

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 clinical practice—largely psychoanalytically
oriented practice. Psychoanalysis was an easy

target for ridicule. Our problems stem from

infantile sexuality? Freud must have been a dirty

old man. How do we know we are victims of

repressed memories? Our analysts told us so. And

how do they know? Their theories told them so.
Not good science. Psychoanalysis does have its

clinical uses, but court testimony is not one of

them.12

However, even at the time Szasz was writing,

psychiatry was changing. In the last few decades,

there has been an explosion in sound, testable and
tested theories. The theoretical basis of psychiatry

is shifting from the clinic to the laboratory. But

what do we find on the cover of a recent book

attacking the use of psychiatric testimony? A

psychoanalytic couch! And in this book by Dr.

Margaret Hagen, we learn that Freud is still

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 considered psychiatry’s “principle founding
father.”13 She maintains that psychiatric

testimony is based on pure fiction.

In my view, she paints with too broad a brush.

There are problems with psychiatric testimony.

There are prostitutes who will say anything for a

referral and a fee. There are misguided

practitioners purveying junk science. But Dr.

Hagen throws the baby out with the bath water.
We also have substantial information which can

inform the judge or jury—information based on

sound specialized knowledge and technique. The

psychiatric expert does have a role in presenting

and explaining this information in the courtroom.

But he or she also has a role in rebutting the

testimony of the prostitutes and junk scientists.

Notes
1 Ziskin J: Coping with psychological and psychiatric
testimony (3rd ed.). Venice, Calif.: Law and Psychology

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 Press, 1991, p. 63

2 Even though the quotations are directly from the footnote of

the court’s decision, I have chosen to disguise the name
of the psychiatrist and not to cite the case.

3 Mossman D: “Hired guns,” “whores,” and “prostitutes”: Case

law references to clinicians of ill repute. Journ. Amer.
Acad. Psychiatry Law 27: 414-425,1999

4 Huber PW: Galileo’s revenge: Junk science in the courtroom.

New York: Basic Books, 1993, pp. 9-10

5 Loftus EF: Memory: Surprising new insights into how we

remember and why we forget. Reading, Mass.: Addison
Wesley, 1980, pp. 35-62

6 Slovenko R: Psychiatry and law. Boston: Little Brown and

Co., 1973, pp. 3-14

7 Huber: Galileo’s revenge, pp. 18-19

8 Ghodse H: Drugs and addictive behavior: A guide to

treatment (2nd ed.). Oxford, England: Blackwell Science,
1995, p. 92

9 Huber: Galileo’s revenge, p. 3

10 Foster KR and Huber PW: Judging science: Scientific

knowledge and the federal courts. Cambridge, Mass.: The
MIT Press, 1997, pp. 37-68

11 Szasz TS: The myth of mental illness: Foundations of a

theory of personal conduct. New York: Hoeber-Harper,
1961, p. 1

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 12 Morse SJ: Failed explanations and criminal responsibility:
Experts and the unconscious. Virginia Law Rev. 68: 971-
1084,1982

13 Hagen M: Whores of the court: The fraud of psychiatric

testimony and the rape of American justice. New York:
Regan Books, 1997, p. 20

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 Chapter 2

How Expert Is the Expert?

Just because you have an opinion doesn’t mean
you can testify as an expert witness. You must

meet two requirements before the judge will let

you speak to the jury: You must be qualified to

speak about some issue in the case, and what you

have to say must be helpful to the jury in reaching

its verdict.1

The attorney who puts you on the stand is

more than happy to question you about your

qualifications. The better the qualifications, the

more impressed the jury is likely to be. An

unimpressive witness has little persuasive power.

Where did you get your medical training? Your

specialty training? Are you licensed to practice in

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 this state? How much experience have you had?

Have you published in your field? Have you passed

the Specialty Board exams in psychiatry? Like with

the scarecrow in The Wizard of Oz, diplomas equal

wisdom in the eyes of the jury. Your wisdom may

increase with the number of diplomas you have.

Not that these questions are unimportant.

They are necessary, but not sufficient. Remember

Dr. Barker, the cocaine specialist? His wall was

cluttered with diplomas, but his testimony was
cluttered with nonsense. The bottom line is the

testimony, not the credentials.

In addition to your qualifications is the matter

of helpfulness. The testimony must be relevant to
the case being tried. You must be able to help the

jury by telling them something they ordinarily

wouldn’t know. As an expert witness, you are

allowed to interpret data and give your opinion

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 because you have specialized knowledge and
understanding—knowledge and understanding

beyond that which the general public has.2

Some time ago, I was confronted with this

question of helpfulness. The phone call came from

an attorney in another state. He was defending the

Applewood family. Bill Applewood was accused of

sexually molesting Denise Sims, a nine-year-old

friend of his daughter, Joan.

Bill’s attorney had it all figured out, and he was

hoping for confirmation from me. He told me

Denise was confused because Bill Applewood had

the same first name as a boy who had taken her

into the basement of his house and engaged in sex

play with her. I responded that I didn’t think it

likely that a nine-year-old would make that kind of

error. I asked him for more details about the case.

It was a long and bizarre story. When Bill had

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 suggested to his daughter that they go to the
circus on Saturday afternoon, Joan asked if her

school friend, Denise, could join them. The

following day, Joan told her folks that Denise had

her mother’s permission. On Saturday, Bill and

Joan went to pick up Denise at her house. The

child was waiting outside. Bill wanted to go in to
meet Denise’s parents, but the girl said they

weren’t home.

When they returned to Denise’s house, they

were met by a very angry and worried mother. Bill

apologized and tried to explain that Denise had

told them she had permission to go. The mother

denied giving permission, and Denise told her

mother it was Bill who said it would be all right.

Once again, Bill apologized for the mix-up and said
it wouldn’t happen again.

Of course it wouldn’t happen again, because

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 the Applewoods told their daughter Denise was
not a very reliable playmate. Joan agreed. And that

was that—well, almost.

When Denise told her parents Joan’s father had

taken them aside and fondled them, her parents

were outraged. They contacted the police and it

wasn’t long before a Human Services worker came
to talk with them. They told the social worker that

when Bill came by with his daughter, he told

Denise he had her mother’s permission for her to

go with them. The social worker said that was a

bad sign. The parents readily agreed she could

interview their daughter.

An hour into the interview, the story came

tumbling out—a torrent of accusations which

confirmed their worst suspicions. According to

Denise, at the circus Bill took the two girls into a

tent that wasn’t occupied at the time, and he told

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 them to take their clothes off. Joan declined. Bill
forcibly removed Denise’s clothes and raped her

vaginally, while Joan watched. Denise started to

scream, but Bill covered her mouth with his hand.

She fainted, but fortunately Joan breathed in her

mouth and revived her.

Bill told her not to tell anyone or he would put

her in the lion’s cage. She promised, and Bill

bought the girls ice cream and took them to an

unoccupied house. Once again, he started to

remove Denise’s clothes, but she broke away and

hid in a closet. She was shaking with fright as she

heard Bill approach. When he opened the door,

she slipped past him and ran down to the

basement. Bill caught her and punched her in the

stomach, threatening to kill her if she told anyone.

Joan arrived just in time and pulled her father

away.

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 When the social worker interviewed Joan’s

parents, Bill denied knowing anything about the

molestation. He told her it was a perfectly

ordinary afternoon at the circus until they brought

Denise back to her house. It was then he realized

Denise had lied about getting permission and was
lying about Bill’s willingness to take her without

her mother’s permission. The social worker asked

to interview Joan. The interview would be in her

bedroom and it would be videotaped. At first, Bill

and his wife declined to involve their daughter in

such an accusation. Of course, this didn’t sit well

with the social worker. What was this family

trying to hide?

On the advice of their attorney, Joan’s parents

finally gave in. During the first two hours of the

interview, Joan denied everything. Finally, on the

promise that the interview would be over if Joan

would just answer this one question—Did your

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 father have permission to take Denise?— Joan

lowered her head and nodded. At least that’s how

the investigator saw it. The lawyer told me that

when he reviewed the videotapes of the interview,

it looked more like a sigh of frustration than a nod

of agreement. Either way, it was a trick question,

and Joan never had a chance to explain that her

father thought he had permission.

I asked the attorney what the legal issue was.

He replied that because the state felt Bill was a

likely child molester, they had taken Joan away for

her own protection. The Applewoods wanted their

daughter back, and there would be a hearing. And
Denise’s parents were waiting in the wings, ready

to prosecute Bill Applewood.

I asked how I could help him. Once again, the

lawyer turned to his theory that there was

confusion because of Denise’s sex play with the

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 young boy whose name was also Bill.

I asked if that sex play actually happened. The

attorney told me the boy had taken several girls to

the basement when his parents weren’t at home.

Ultimately, a few girls, including Denise, told their

parents. The parents confronted the boy’s family,

and the family moved away.

Again I doubted that a nine-year-old would

make that kind of mistake. Besides, there were too

many elements in Denise’s story about Bill and
Joan that had nothing to do with the sex play in the

basement. “Frankly,” I said, “Denise’s story is

bizarre.”

He agreed and added that when you look at the

taped interview with Joan, “Anyone can see how

they try to put words in her mouth. And anyone

can see how crazy Denise’s story is.”

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 “That’s the point,” I said. I told him it was

obvious to me that Denise’s story didn’t make

sense. The rape with Joan present to watch! Joan

performing mouth to mouth resuscitation and

Denise being able to jump right up and run away!

The scene in the basement with Joan rescuing her
again!

It sounded to me like a type of behavior we

used to talk about years ago—pseudologia
fantastica.3 Some people make up fantastic lies,

and sometimes they almost believe in them

themselves. The stories are very dramatic and

invite attention until they fall apart with their own

weight.

The lies may have some references in reality.

Most houses in that area had basements. Besides,

Denise did have a sexual experience in a basement

—yes, and with a Bill. The lion threat was another

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 obvious element; they did go to the circus. She
probably pieced all this together with the social

worker’s interest in Bill Applewood. She

performed brilliantly. She had already proven

herself to be a facile storyteller with the change in

her story when her mother denied giving

permission.

The lawyer was enthusiastic and asked if I

could testify about that.

I replied that I could, but for what purpose? All

I would be doing is calling it a name. Aside from

the bizarre story, I had no data to say the story

was really a product of pseudologia fantastica—it

just reminded me of it. If I said she had

pseudologia fantastica, I’d be saying that I knew

she was fabricating. I did know she was lying, not

because I am a psychiatrist, but because of the

nature of the story.

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 I asked the lawyer if he didn’t think the judge

would also see the implausibility of her story. He

agreed that he would.

I said that in that case, the judge might not

even allow my testimony because it didn’t add

anything except an impressive technical name—

pseudologia fantastica. I really had nothing to add

to what he could know by himself.

The lawyer still wanted me to testify, but

financial considerations made the trip impossible.

He went to the hearing without any psychiatric

testimony. After the hearing he called me to say
Joan had been returned to her family. The

investigators had no proof, and the judge actually

smiled when he heard Denise’s story. I couldn’t

have been more helpful to the judge who had to

make the decision than Denise, herself, was.

Expert testimony would have been inappropriate.

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 But wait a minute! Experts are allowed to

testify about things that the lay public may not

know about. The lawyer said that anyone could

see Denise’s story didn’t make sense. Does

“anyone” mean “everyone?” Well, not exactly.

Denise’s parents couldn’t see it. The social worker
couldn’t see it. If anyone/everyone could see it,

Joan would never have been taken from her family

and there would have been no hearing.

While I’ll admit this case is so obvious that

most people could see through the story, many

situations call for testimony that isn’t so apparent.

Someone must decide if the testimony is

something “most anyone” should know or if it
requires an expert’s help.

That someone is the judge, who has to pretend

he or she knows what the general public is capable

of understanding—the jury being representative

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 of the general public. Overtly biased jurors
presumably have been screened out when the

lawyers questioned the prospective jurors.

Likewise, people who have obviously lived lives

which were too sheltered to allow them to

understand the issues in the case would not have

been selected. Those making the cut and serving

on the jury are assumed to be representative of

the general public. And they are assumed to be

reasonable.

In the law, the word, “reasonable” appears in

many contexts. What does “reasonable” mean?

One might say reasonable people are those whose

thinking and actions are dictated by reason—they

are rational.4 You can see where this is going.

Reasonable people are rational. Rational people

are reasonable. Round and round. The idea of

knowing what the reasonable person can

understand is a legal fiction. Keeton devoted

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 twenty pages describing courtroom attempts to

define the reasonable person, but he concluded

that it is “a fictitious person who had never existed

on land or sea.”5

However, the court must rely on certain

assumptions in order to proceed. Since there is no

test of what the reasonable person knows or

understands—we can’t take a poll to find out

about the average person (is the average person

reasonable, anyhow?)—we must assume that a

reasonable judge knows what a reasonable person

understands. Without this legal fiction, we would

have no basis for allowing expert witnesses to give

interpretations while general witnesses cannot.

Because psychiatrists do have some

specialized knowledge about human thinking and
behavior, some people believe we are experts in

all aspects of human activity—even who is a

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 reasonable person. Especially when they want us
to confirm their own opinions.

Attorney Marie Foster wanted my professional

opinion about reasonableness. When she called,

she told me she was representing the insurers of a

department store. Brenda had been stuck with a

needle on the job in the alterations section. She
thought she had AIDS and could no longer work.

She was suing for workers’ compensation.

Her doctor took a blood test, and he told her it

came out negative. But she didn’t believe her

doctor. Ms. Foster wanted an expert opinion about

whether that was reasonable.

I responded that I couldn’t answer that

question any better than she could. I had my own

opinion as a layperson, but psychiatry doesn’t

teach us what’s reasonable and what isn’t. Her

client may have had a false belief, or maybe not.

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 But even if she had a false belief, it might be a
reasonable mistake. I didn’t consider this a

psychiatric question.

Nonetheless, Ms. Foster proceeded to tell me

about the case. Brenda was a seamstress. She had

worked in the alteration room of the department

store for more than thirty years. Over a year ago,

she scratched her forearm with a needle and some

blood appeared. She was convinced she had AIDS

from the needle scratch, despite the fact that her

family doctor, Dr. Rogers, tried to convince her the

AIDS test was negative. Unfortunately, she became

depressed because of her “affliction,” and she

spent an inordinate amount of time worrying. She

dropped out of work and social activities because

of her fear of spreading this dread disease in
crowded places. She even stopped going to church,

although she remained devoutly religious.

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 The attorney challenged me by asking if I was

still going to tell her this was all reasonable

behavior.

I replied that it didn’t sound reasonable to me.

I reiterated that this was not a psychiatric opinion.

I was just using the same criteria she was—it just

didn’t sound reasonable. I added that from a

psychiatric point of view, Brenda might have a

problem.

At that point she told me Brenda had been in

psychiatric treatment with doctor Franklin for

several months now. The picture became clearer.
The needle scratch was healed. Brenda wouldn’t

get much workers’ compensation for that. But if

the scratch caused her to have a psychiatric

problem, the compensation award could go way

up. Ms. Foster was hoping I’d find that Brenda had

no psychiatric problem—hoping I’d say she was

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 just unreasonable. She wanted me to rebut Dr.
Franklin. I replied that I could certainly comment

about whether and to what extent Brenda had a

psychiatric problem, but I wouldn’t comment on

the question of reasonableness.

Ms. Foster agreed to send me all the medical

records, after which I would arrange an
independent evaluation of Brenda. The records

from Dr. Rogers, Brenda’s family practitioner,

revealed that Brenda had a pattern of overreacting

to stresses of any kind. Prior to the needle

incident, she had multiple minor medical

complaints accompanied by anxiety, nausea, and

sometimes sleep problems. Formerly, these

symptoms could be easily treated by a day off

from work, perhaps a minor antianxiety pill, often

just a placebo and reassurance. But this one was

different. It didn’t respond to the usual simple

measures.

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 The doctor’s records also revealed what

happened after she got the needle scratch. Her

employer sent her to an ambulatory care clinic

where she received a tetanus toxoid shot. That

night, her arm started to swell and hurt from the

injection, and she went to Dr. Rogers the next day.
According to his subsequent notes, she misheard

him when he commented about the toxoid shot

she’d received at the ambulatory clinic; she

thought he’d said the arm was toxic. Although the

swelling went down, Brenda was sure it was a sign

AIDS was spreading throughout her body. When a

few months passed with no improvement in her

outlook, Dr. Rogers recommended a psychiatrist,

but Brenda was indignant; she wasn’t crazy, she

had AIDS.

Dr. Franklin’s records picked up the story.

Brenda had gone to the lawyer at the urging of her

daughter-in-law. She accepted the psychiatric

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 referral from him because he agreed she might

possibly have AIDS, but that whatever it was, it

was making her nervous and the psychiatrist

could help with that. Besides (she told Dr.

Franklin), the attorney said this would help her

get the money the company owed her because she

was injured on the job.

Dr. Franklin diagnosed Brenda as having

hypochondriasis—an unshakable preoccupation
with the idea that she suffered from a disease (in

this case, AIDS) despite medical evidence to the

contrary. He ruled out psychosis by giving her an

adequate trial on antipsychotic medication with
no change in her symptoms. In fact, when she

developed a mild tremor as a side effect of the

medicine, she felt she’d developed another

symptom of AIDS. The medicine was discontinued.

She was depressed and anxious. Sometimes

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 her sleep was disrupted by a nightmare that the
Devil was watching her. She was terribly ashamed

about her disease. Dr. Franklin started

psychotherapy and put her on an antianxiety

medication and an antidepressant. While these

measures took the edge off some of the worry, her

basic concern about AIDS was as firm as ever. Like

many people with hypochondriasis, her condition

had become chronic and the outlook for recovery

was poor.

When I saw her, she was pleasant and soft-

spoken at first, although she kept her arms pulled

in as if she wanted to wrap herself up. She

recounted the events I had read in the records. She

told me she’d gotten AIDS from a needle carelessly

left on a table by a young coworker. Then she

launched into a tight-lipped diatribe about the

young girls she’d been forced to work with in the

crowded alteration room. They had no values.

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 They were poor workers. They swore and took the

Lord’s name in vain. Most of them never even

went to church. Many lasted no more that a month

or so at work. Some of them were fired within a

week. Just the kind of loose girls who could have

AIDS. One of them must have contaminated the

needle.

I probed for psychosis by asking her how she

could be so sure she had AIDS.

“What else could it be,” she asked.

“Even though you tested negative?”

“But what if the tests are wrong? I keep having

these symptoms. Look, Doctor, I’d be the happiest

person in the world if they could prove I don’t
have AIDS. Once in a while, I think, maybe they’re

right, but then I get a boil or something. It must be

AIDS.”

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 Dr. Franklin was right. Brenda wasn’t

delusional. People with delusions won’t even

admit to the possibility they might be wrong, and

they often get angry when challenged. This was

hypochondriasis. And she was incapacitated. Her

mind was so often on AIDS, she found it difficult to
concentrate; She hesitated to visit her

grandchildren for fear of contaminating them. The

only high points in her life were listening to

religious programs on television and talking to

Johnny on the phone. And these points weren’t

very high.

“Who is Johnny?” I asked.

She told me Johnny was a very good friend

she’d met after her husband passed away. He had

lost his wife a long time ago. They used to go out to

dinner together, but now, once in a while, they go

driving in the country—when she feels up to it.

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 “Have you two had a romantic relationship?” I

inquired.

“Not really.” She looked away and I waited.

“Well, sort of.”

“Sexual?”

“Yes. To be perfectly honest with you, Doctor,

we did it a few times. But then, we got to thinking.
It’s not right to have sex without you’re married.

So we stopped. Now, we’re just friends.”

“Do you miss it?”

“Sometimes, yes. But that’s not the way I was

raised up.” She told me about her strict Christian

upbringing. “I know what’s right and what’s
wrong.”

“Do you feel guilty about having had sex with

Johnny?” I asked.

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 “Not really,” she answered. “We shouldn’t have

done it, of course. But we did it and it’s over with. I

don’t think about it; it don’t bother me.”

I wasn’t so sure about that. Could it be that

somewhere in Brenda’s mind, without realizing it,

she felt God was punishing her for her sexual

transgression? Did she feel that she was just like

those loose girls in the alteration room? What

more appropriate punishment than AIDS? Maybe
so, maybe not. That wasn’t the kind of thing I could

testify about. It was a hunch. Perhaps later in

psychotherapy, Dr. Franklin might find out. But

the data weren’t firm enough to present as expert

opinion in court.

I had to agree with Dr. Franklin. Brenda was

suffering from hypochondriasis and it was chronic.

Associated with it was the anxiety and a mild

depression. If what she told me about her

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 symptoms was true, it was unlikely she could
return to work. The needle scratch did not trigger

AIDS; it triggered hypochondriasis.

Hypochondriasis and its outlook could be

explained to the judge to help him decide on the

matter of workers’ compensation—expert

testimony.

Ms. Foster was not happy with my findings.

She refused to believe Brenda couldn’t work

because of the fear of AIDS. “Even if that fear was

unreasonable?”

I ignored the part about unreasonableness and

told her I couldn’t rebut Dr. Franklin’s conclusions.

Actually, I thought he was doing a good job.

“Well, damn!” she barked. She hung up and I

never heard from her again.

Why could I testify about the diagnosis of

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 hypochondriasis and its outlook, but not about the

formulation I’d made regarding guilt? Both of

these items required specialized knowledge;

indeed, some in my field would say that the

formulation required even more skill than the

diagnosis. The difference between them lies in yet

another aspect of evidence which can be admitted

in court—the matter of degree of certainty. How

sure can we be that what we are saying is

accurate?

Although the lawyer who puts you on the stand

tries to build you up, the opposing lawyer tries to

shoot you down. One way of doing this is to

demean your field of specialization. “Psychiatry

isn’t an exact science, is it, Doctor?” The lawyer

wants a yes-or-no answer, but the question

doesn’t lend itself to a simple response. What is an

exact science? One with all the answers? One with

100 percent predictability? One that is infallible?

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 And what distinguishes the “exact science” from

junk science?

At first, it might seem odd that the courtroom,

which operates on persuasion because it can never

be certain of the truth, allows a question about

“exact” anything. But among the rules governing

which kinds of evidence can be presented when

the lawyers try to persuade the jury, are standards

of how likely the opinion presented will turn out
to be correct. The testimony must have some

substance behind it; it can’t be pulled out of thin

air.

Unfortunately there is plenty of room to

maneuver between “exact science” and make-

believe. And, while “exact science” might be an

ideal, it is only approachable—never attainable. As

Kuhn has described, scientific points of view

change from time to time.6 Today’s “exact science”

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 may become tomorrow’s historical oddity. This is
true of the biological sciences underlying much of

medicine, and the psychobiological sciences

underlying the psychiatric branch of medicine. At

the time of Brenda’s hearing, people who had

hypochondriasis had a poor prognosis. Since then

our view—theory, if you will—of hypochondriasis

has changed, and newer medications are being

tried with some success.7 Nowadays, I would have

to check to see if Dr. Franklin had tried the newer

medical regimens before concluding Brenda was

unlikely to recover. But you can only testify about

the knowledge available at the time of the trial.

There is always the possibility that newer theories

or newer data will change the picture. Medicine,

like all of science, is continually evolving. No

science is an exact science. The “wisdom” of one

era may be deleted from the textbooks of another.

A side-by-side pair of articles in the Journal of

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 the American Medical Association8 points this out

with great clarity. In 1897, Dr. W.J.K. Kline, A.M.,

M.D., stated that chemistry is the bedrock of

medicine. All we need is to expand the number of

chemical laboratories and voila!, “Medicine will be

an exact science.” We will know exactly what is

needed to maintain health.

The companion article, written 100 years later

by Robert L. Martensen, M.D., Ph.D., stated that
“Nowadays, many doctors believe that ‘molecular

medicine’ will satisfy the yearning for medicine to

be an ‘exact science.’” Medicine an exact science?

Dr. Martensen doubted it, and he noted that since

as far back as 1647, that claim has been made.

If you still believe medicine is an exact science,

go to any convention of doctors. You will hear

debates and skeptical questions. Or go to a hotly

contested trial with experts testifying for each

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 side. You may hear different interpretations of the
same data—from reputable and well-meaning

physicians.

If medicine is not an exact science, how does

the court decide which evidence is firmly based

enough to be admitted? The traditional method of

discerning if expert testimony (including medical
opinion) was firm enough was the Frye9 test. The

data and the opinion drawn from them must have

“general acceptance” in the field of the expert.

Does that mean that an astrologer can testify so

long as what he or she deduces from the stars

meets with general acceptance among other

astrologers? What about purveyors of nutritional

supplements who agree with other such

purveyors? Creation Scientists?

Clearly more was needed, and the more recent

Daubert10 standard provides the following more

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 specific guidelines. (1) The theory or technique
can be (and has been) tested. This doesn’t mean it

has been proven, but it must be susceptible to

being disproven. Any theory which has an answer

to fit any result you might get is not scientific. (2)

It must have been published in a peer-reviewed

journal. (3) There is a known or potential rate of

error. There are too many unknown variables in

life for 100 percent results in most cases. (4)

There must be certain accepted standards

controlling how you get the data. (5) The

technique should have wide acceptance by others

in the field. These guidelines tell the judge what he

or she should consider in deciding whether the

offered evidence should be admitted. These

guidelines apply to the Federal Courts; state courts

are not obligated to follow them. But Guideline 3 is

of particular interest here. The “rate of error”

indicates how nearly certain the expert can be that

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 the testimony represents firmly based opinion. If

the theory has been tested and reported, but the

test results hardly ever support the theory, it is of

little use.

In 1971, Pollack put it very well: “In the

physical sciences, judgments can be offered with a

high level of mathematical probability (although

still not with certainty); but judgments in the

biological field, and especially in medicine, hold a
much higher risk of error and are generally

offered with a lower level of confidence. . . .

Judgments in psychiatry are made with a still

greater risk of error and with an even lower level

of conviction than obtains in most other branches
of medicine.”11

Since 1971, psychiatry has been closing the

gap, but we still have a way to go. There has been a

substantial increase in empirically based and

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 tested data. There is also much speculation and
untested theory in psychiatric practice—theory

which may be helpful in certain therapeutic

situations but which should be treated with great

caution in the legal arena. My formulation that

Brenda’s hypochondriasis resulted in part from

sexual guilt was such a speculation. I could not

testify to that. On the other hand, at the time of the

consultation, there was evidence that

hypochondriasis tended to be chronic; I could

have testified to that.

How nearly certain does a doctor have to be in

order to testify? I have found no hard and fast rule,

but the general requirement seems to be that we

must testify to a reasonable (there’s that word

again) degree of medical certainty. In legalese, this

means the opinion must be more probable than

not—a 51 percent degree of certainty. Mere

speculation (stating that something is possible) is

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 not admissible.12 If the doctor’s testimony is that

the opinion is the mostly likely among the possible

explanations, it is admissible.13 That is why

psychoanalytic formulations and therapeutic

hunches which may well change as therapy goes

on does not make good testimony.

If, indeed, the level of certainty in psychiatric

testimony is lower than that of other medical

specialties, it may come as a surprise that,

according to Wecht, psychiatry and pathology are

the only specialties that are “consistently and

uniformly accorded professional recognition by

the courts.”14 The demand for psychiatric

testimony is understandable if we remember that

the court is an arena for resolving disputes.

Disputes very often involve the issues of how

people think and how their mental state

determines what they do. This is the area of

psychiatry.

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 I shall discuss the variety of these issues in

subsequent chapters. Some of our data and

explanations are reasonably firm; these should be

presented to the court. Some are only speculation;

these should be kept out. Presenting the data from

which the opinions are drawn may help the judge
and jury evaluate the testimony. Often, the

testimony of another psychiatrist can help the

judge and jury distinguish which is which.

Notes

1 Fed. Rules Evidence: 28 USCA Rule 702

2 U.S. v. Carr. 965 F.2d 408, 412 (1992)

3 Kolb LC and Brodie HKH: Modern clinical psychiatry (10th

ed.). Philadelphia: W.B. Saunders Co., 1982, p. 609

4 Cass v. State, 61 S.W.2d 500, 504 (1933)

5 Keeton WP: Prosser and Keeton on the law of torts. St. Paul,
Minn.: West Publishing Co, 1984, p. 174

6 Kuhn TS: The structure of scientific revolutions. Chicago:

Univ. of Chicago Press, 1970

7 Fallon BA et al.: The psychopharmachology of

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 hypochondriasis. Psychopharm. Bull. 32: 607-611,1996

8 Medicine as an exact science. Journ. Amer. Med. Assoc. 278:

608-609,1997

9 Frye v. U.S., 293 F. 1013,1014 (1923)

10 Daubert v. Merrill Dow Pharmaceuticals, Inc. 509 U.S. 579,

592-595 (1993)

11 Pollack S: Principles of forensic psychiatry for psychiatric-

legal opinion-making. (In) Wecht CH (ed.): Legal
medicine annual. New York: Appleton Century Crofts,
1971, pp. 261-295

12 Lindsey v. Miami Development Corp. 689 S.W.2d 856, 861

(1985)

13 Norland v. Washington General Hospital 461 F.2d 694, 695

(1972)

14 Wecht CH: Legal medicine and jurisprudence. (In) Eckert

WG (ed.): Introduction to forensic sciences (2nd. ed.)
Boca Raton, Fla.: CRC Press, 1997, pp. 81-92

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 Chapter 3

Searching for Causes

A black cat crosses your path, and later that
day you get hit by a car. Does that prove black cats

bring bad luck, and the cat caused the accident to

happen? Of course, some people think like that,

but most of us don’t. You’ll never get a lawyer to

take the case against the owner of the cat. Even if

the lawyer believes in the black cat superstition,

he or she knows no judge or jury will allow you to
win the case.

Just because one thing happened after the

other doesn’t mean there is a causal relationship.

Yet that kind of thinking is so common

philosophers who analyze logical errors even have

a Latin name for that kind of misguided reasoning:

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 post hoc, ergo propter hoc—after this, therefore

because of this.

While you’ll never hear of any actual black cat

lawsuits, some attorneys will file suits for huge

amounts of money based on the same illogical

principle. The factory belched smoke—therefore,

the illnesses the citizens suffered must have been

caused by the toxins in the smoke. Maybe so, but

maybe not. There must be more than the mere

connection over time. There must be some data to
show that this kind of smoke causes that kind of

illness. There must be evidence that the fumes

reached the plaintiffs. Experts must testify about

the causal relationships. And there may be experts

who testify on opposite sides of the issue.

The lawyer might take the case even if the

proof is weak and the causal connection is very

tenuous, because he or she counts on the fact that

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 the jury may have enough sympathy for the sick
people to decide in their favor. Or the jury may

have such a negative attitude about big factories

and pollution that they see a causal connection

despite what the experts say. The company may

choose to settle out of court rather than run the

risk of a trial. An adverse verdict from a jury might

cost them even more money.

Causal relationships are at the heart of many

lawsuits. Some of them are obvious. If the car

carelessly swerves and knocks you down, it is

apparent the driver caused your injuries. You

don’t have to have an expert witness to establish

who was responsible for your problem. However,

sometimes what seems to be the cause of the

injury may turn out not to be the cause after all.

Expert opinion may be needed to sort things out.

Frequently this is the case when a psychiatric

injury is involved.1 Betty’s injury was such a

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 situation.

At first glance, Betty’s case seemed

straightforward enough. She was a stocker in a

discount department store. One day, she picked up

a container of chocolates. Placing it on the pail

shelf of the ladder, she climbed up to the third

step. The next thing anybody knew, there was a

thump as the ladder tipped over. Another stocker

rushed to the candy aisle and found Betty on the
floor. According to her coworker, Betty was not

responding. The coworker shouted at her, but

Betty did not move. The coworker summoned the

manager who called for an ambulance.

Betty remained unresponsive until she arrived

at the emergency room. There, she cleared quickly.

An X-ray of her skull revealed no fractures or any

other abnormalities. Nonetheless, as a cautionary

procedure, the doctor hospitalized her for

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 observation overnight. She was released the next
morning.

Betty said her life had gone downhill ever since

the accident. Her memory was spotty and she

couldn’t concentrate. She suffered from

intermittent headaches. She was constantly

fatigued and depressed. Occasionally her mood
was so bad she thought of killing herself. Her

doctor diagnosed her as having a major

depression, and he put her on medication. In her

condition, she was no longer able to work.

Since the accident happened while she was

working, Betty was suing for workers’

compensation. Her symptoms appeared to be

consistent with a person who suffered a

concussion—a brain which has been shaken up by

some kind of blow to the head. There were other

problems also. Betty had intermittent pains in

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 various parts of her body—pains which defied
medical diagnosis. Everything seemed clear

enough: The fall at work caused the concussion

which resulted in her psychiatric symptoms.

In fact, when her attorney sent her to a

psychiatrist and a neuropsychologist, they agreed

with the diagnosis—post-concussive syndrome.
When they reviewed the hospital records, they

were not surprised at the normal X-ray. It is not

unusual to find nothing on the X-ray when

someone has a concussion. On the other hand,

when these doctors took her

electroencephalograph, it was abnormal. Further,

some of the psychological tests given by the

neuropsychologist confirmed that Betty had

problems concentrating and remembering. And

she was depressed. The pains and fatigue could be

a result of her depression.

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 Even though Betty had a history of mysterious

aches and pains long before the incident in the

store, she deteriorated after the incident. In the

consultants’ opinion, “The fall caused the

concussion which exacerbated Betty’s pre-existing

condition.” Because her condition was made worse
— to the point where she could no longer work—

she sued for $500,000 plus money for the

continued medical treatment she would probably

need for the rest of her life.

Of course, the lawyer for the insurance

company saw it differently. Just because Betty’s

complaints happened following an incident at

work, that doesn’t mean they were caused by the
work situation. He believed she was malingering.

In his opinion, Betty’s extensive medical problems

which defied diagnosis in the past showed that

she’d faked illnesses all her life. And now she saw

a chance to collect money.

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 Did she really have a concussion? Her medical

records revealed several problems with that

diagnosis. The doctors in the emergency room had

written that she had a “possible concussion.” They

had not witnessed her loss of consciousness; they

were going on the basis of the information they
were given. I wondered how a fall from three feet

up could do such damage. There were no marks or

bruises anywhere on her body. Absolutely none on

her head. Even if she did fall, it’s unlikely she’d

sustain a serious injury to her head. Certainly,

there was not enough distance for her to

somersault in midair and land head first.

There were other problems, also. Betty clearly

remembered what the doctors did in the

emergency room from the moment she came to,

and she knew what occurred during her overnight

stay. People with serious concussions don’t

usually remember events just after they wake up;

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 the damaged brain cannot immediately lay down

memory traces.

But what about the abnormal

electroencephalograph? What struck me about the

EEG report was that the abnormal patterns were

those often seen in patients who are on

medications. Betty was on an endless list of

medicines. As I reread the psychiatrist’s report, I

realized he did not even mention the medications
she was taking. Perhaps he had failed to ask her

about them. Perhaps he didn’t think they were

important enough to report. Or perhaps, he

preferred to reach a diagnosis in Betty’s favor.

I am not an expert in interpreting brain wave

patterns; that skill is properly the province of a

neurologist. I showed the EEG report and the list

of Betty’s medicines to a neurologist colleague. He

agreed that some of the medications could well

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 have produced these results.

If she did not have a concussion, what was

going on? Was the attorney correct? Was she a

faker? Of course, this was always a possibility, but

perhaps there was another explanation. While it

was true that having a concussion would yield rich

monetary rewards, this had not been the case in
her many past unexplained illnesses. In fact she

had several previous “falls” without bruising in

situations where there was no chance of financial

compensation.

The account of events given by her coworker

furthered my doubt Betty was faking. When she

arrived at work, she didn’t punch the time clock.

Instead, she went directly to the back room, and

she picked up the container of chocolates. When

the coworker went to the scene of the “fall,” she

saw there was more than an adequate supply of

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 chocolate already on the shelf. The contents of the
container were all spilled out on the floor. And the

chocolate shelf was low enough that Betty needn’t

have used the ladder. Any stocker who was a

competent faker would have chosen an item which

needed restocking and a shelf which required

using the ladder. And even if the fall was genuine,

how can we explain that Betty, an experienced

stocker, climbed a ladder to restock a low shelf

that didn’t need it?

If not faking or a concussion, what was going

on? I spent many hours poring over countless

medical reports both before and after the incident

in the store. There was doctor visit after doctor

visit, going back 23 years to the age of 17. She was

marching through life in an endless parade of

every type of complaint imaginable. It seemed to

me Betty had a somatization disorder.2 People

with this problem have many different types of

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 medical complaints which drive their physicians

to distraction because they can’t pin down any

diagnosis.

Betty’s history more than fit this disorder.

When she divorced her first husband, she

suddenly developed a paralysis of her right arm.

The neurologist could find no cause, and she

cleared up a day later. Betty maintained she’d had

a stroke. Some time later, her gynecologist
performed a hysterectomy because her pelvic

pains defied more conservative treatment. The

pathologist reported that her uterus was perfectly

normal, but Betty was convinced she’d had cancer.
There were many stomach and digestive

complaints, none of which could be diagnosed

after extensive evaluations. There were a variety

of mysterious aches and pains. And there were

several falls without bruising which she attributed

to fainting. One physician’s note said, “Doesn’t

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 remember falling, but found herself on the floor.”

Often she was treated with reassurance and

tranquilizers. Now, of course, she added

concussion to her list of medical tragedies.

Somatization disorder was the more likely

explanation for her symptoms, but what about the

strange behavior preceding her “fall”? Frequently

people with somatization disorders have

associated episodes of dissociation.3 This is a

process wherein the person’s memory,

perceptions, or actions appear to have “broken off”

from his or her usual state of awareness—sort of

like when you tip over a vase and a piece breaks

free. It’s still part of the vase, but it’s separated

from the rest. Amnesias and fugue states, where

someone travels to a strange place but doesn’t

know who he or she is, are examples of

dissociation. The widely known cases of multiple

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 personality where different personalities take
over from time to time are dissociative reactions.

It’s like being on automatic pilot.

Indeed, during her interview with me, there

were two brief episodes where she tuned out of

our conversation and moved her hands in a

strange repetitive manner. When I asked her what
was going on, she didn’t recall doing it.

Putting this all together, it was my opinion that

in her lengthy course of a somatization disorder,
Betty had a dissociative episode during which she

came into the store without punching in, got the

container with chocolates, climbed the ladder and

spilled the chocolates, then lowered herself to the

floor without actual injury, tipped the ladder over

and remained unresponsive until she got to the

hospital—all on automatic pilot. Afterward, she

had no recollection of it, not even the part about

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 coming in and climbing the ladder. Not even the
ambulance ride. Nothing, until she abruptly “woke

up” in the emergency room. It wasn’t a concussion,

and it most probably wasn’t faking.

Dissociation and somatization was the most

likely explanation, and as I explained in the

previous chapter, the most likely explanation
meets the criterion of reasonable degree of

medical certainty. The obvious cause which was

first presented (fall and concussion) had to yield

to a more complicated explanation. This

information could help the judge decide the nature

of the cause as well as the nature of the apparent

injury. However, I never had the opportunity to

see how this diagnosis played out in court,

because, as often happens, the attorneys settled

the case. Instead of the $500,000 and more at risk,

the insurance company agreed to pay $50,000. My

report was a factor in getting the plaintiff to accept

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 this offer.

Betty’s case, then, shows how psychiatric

opinion, based not on speculation but on diagnosis

and data, can be of help in resolving the question

of cause in legal situations. Searching for possible

causes is an important part of the work of a

forensic psychiatrist.

Often, the cause of the psychiatric problem is

more complicated than factor A producing factor

B. Like a falling row of dominos, there can be a

sequence of events,4 a causal chain where one

event causes another which causes still another.

The sequence can involve (say) an accident which

causes injury to an arm or leg, which causes the

victim to react with emotional distress. In such

cases, those responsible for the accident may be

held responsible for the whole string of

consequences.5

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 Most injuries in the workplace involve damage

to parts of the body: fractures, problems with

displacement of spinal discs, burns, etc. Generally,

it is not difficult to determine the cause. Then, if

the damage leads to psychiatric dysfunction, the

causal chain can be examined and evaluated. But
what if there is no bodily injury? A person can

develop psychiatric dysfunction because of

stresses at work. Can that person sue for workers’

compensation?

A problem arises: Stresses frequently occur in

the usual course of work. Production quotas must

be met, schedules must be kept, unforeseen

problems may arise. Sometimes a boss or
coworker speaks sharply because he or she is

having a bad day. Even at the highest corporate

level, managers must worry about the bottom line

and the stockholders. It’s not only lonely, it may be

risky at the top.

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 Particularly if an employee is psychiatrically

vulnerable—say, an anxious person or one who is

prone to develop depressions—he or she may be

unable to withstand the usual business stresses.

We might understand why someone whose leg

was broken when a pile of cases fell against him
would want to be compensated, but a person who

fell apart psychiatrically because he or she was

frequently criticized or was asked to put in a large

amount of overtime? Should that person be

allowed to sue?

Actually, the answer depends on where you

work. In some states, if you suffer from a

psychiatric dysfunction because you couldn’t
stand the usual work stresses, you can sue for

workers’ compensation.6 Other states require

workers’ compensation to be paid only if the

dysfunction arises because of a single unusually

stressful incident. Even then, often the courts in

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 some of those states stretch the law and award

compensation when the dysfunction has been

caused by the more usual work stresses.7

Nonetheless, in some jurisdictions, both the

law and the courts adhere to the standard which

requires that there must have been an unusually

stressful occurrence in order to qualify for

workers’ compensation. As one court put it, “...a

mental stimulus, such as fright, shock or even

excessive unexpected anxiety could amount to an

‘accident’ sufficient to justify an award for a

resulting mental or nervous disorder.”8 The court

went on to distinguish that sort of “accident” from

“every stress and strain of daily living or every

undesirable experience encountered in carrying

out one’s duties under a contract of employment.”

These stresses and strains are not compensable in

that jurisdiction.

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 In such a jurisdiction, it is up to the judge to

decide whether that kind of stressful event the

plaintiff experienced was usual or unusual. We

psychiatrists are not experts in what is unusual or

outrageous in the workplace. However, if the

stressful event does qualify, we may help in
evaluating whether that stressful event is the

cause of the psychiatric dysfunction.

Janet had worked her way to the top. Starting

as a secretary in an office pool, she progressed

step by step up the secretarial ladder, and now she

was the executive secretary of a company vice

president. Each promotion came with added

responsibilities, and Janet, eager to please, met
them all.

Of course, she paid a price: longer and longer

hours, work to take home at night, telephone

interruptions when she was engrossed in

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 document preparation. And Janet was the
worrying type. At night, she would lie awake,

going back over the day and wondering if she got

this letter off or set up that appointment. The next

morning, she went in early to check, and of course

she had done everything.

Actually, she liked working for Mr. Jenkins.

While not lavish with compliments, once in a while

he did tell her that she did a good job. And he was
a pleasant man. You don’t always find that in a

workaholic. He often stayed late in the office, and

he needed her to stay with him. Things were

always happening in Mr. Jenkins’s domain—

interesting things, even if it was a high-pressure

office. And Janet did like to keep busy.

One afternoon, she was on the telephone

checking the airline schedule for her boss when

the intruder appeared. He brushed right past her

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 desk and entered Mr. Jenkins’s office before Janet
even had a chance to ask who he was. The door

slammed and Janet heard loud, angry voices. Then

a shot rang out. The intruder reappeared and ran

for the elevator.

A minute or two later, Mr. Jenkins came out. He

was pale and shaking. He told Janet the office was
a mess and he was going home. He said that she

should take care of things. After he left, she went

into his office and picked up the papers that were

scattered all over his floor. She straightened out

his desk. She saw the hole in the wall where the

bullet struck. Immediately she knew what to do.

She called security. They informed her that she

should leave everything untouched; the police

were already here. They had apprehended the

intruder who was a disgruntled ex-employee.

It took a little over two years before Tom

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 Browning called me. He was the lawyer for the
insurance company which carried the workers’

compensation coverage for Janet’s company. He

told me the story briefly, and then he informed me

that Janet had reported for work for the next few

days, but after a few hours, she left, claiming

illness. The following week, she had a doctor’s

excuse to stay off work for two weeks. After that,

she went back to work on a full-time schedule, but

her performance deteriorated. Two months later,

she got another doctor’s excuse and never

returned to work after that.

Janet was suing for workers’ compensation and

her lawyer sent her to a psychiatrist, Dr. Embry,

who found she was significantly impaired because

of the intruder incident and was unlikely to

recover. Tom wanted another opinion. Was Janet

psychiatrically impaired? If so, was it due to the

incident, or was it due to her general inability to

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 keep up with the high-pressure work schedule? If

it was the former, it might well qualify as a

consequence of an unusually severe stressful

event. But she did go back to work. And her

medical records showed she was beginning to

crumble even before the incident. Could she have

recovered from the stress of the incident during

her two weeks off and now was reacting to the

usual business stresses?

I examined the medical records Tom sent over.

Apparently, Janet had been struggling emotionally

for several years. Her family practitioner’s notes

reported intermittent visits for “stress at work.”
He had often advised her to take more time off or

to seek a different job. He prescribed sleeping pills

and antianxiety medications. These helped for a

while, and then she came back with the same

problems. On several occasions he suggested

psychiatric help, but she always declined.

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 The doctor’s notes revealed that Janet came in

a few days after the incident. He agreed to give her

medication and an excuse for two weeks’ leave of

absence, but he insisted that she see a psychiatrist.

He put it this way in his note: “Once again, I told

her she needs psychiatric help and I wouldn’t give
her a back-to-work slip unless she goes.” Janet

agreed to see Dr. Embry.

Dr. Embry wrote very clear notes. He saw Janet

frequently and tried a variety of medications and

psychotherapeutic techniques. He was aware that

her need to do a good job—to work harder and

harder—was based on her insecurity. She needed

frequent reminders of success. Work had been a
struggle for her for a long time. He documented

her periods of anxiety and her need to check and

recheck her work. She told him she couldn’t look

for another job because that would mean she

failed at this one.

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 However, the incident with the intruder

precipitated different symptoms. She began to

have nightmares about the event. Sudden loud

noises startled her and could even bring on

sweating and nausea. She couldn’t concentrate,

and she dreaded going back to that office. When
she did go back for two months, she felt like a

robot, doing things she’d done for years while

trying not to realize where she was. Obviously, it

didn’t work.

Despite the psychiatrist’s best efforts, Janet did

not improve very much. Every day was a struggle

against memories. She blamed herself for not

being able to work. Without being able to prove
herself, her selfesteem plummeted. She even had

thoughts of suicide.

I told the attorney that Dr. Embry documented

a very significant impairment. Janet had post-

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 traumatic stress disorder. She had panics. She was
depressed. And, if the doctor’s notes were

accurate, these problems were brought on by the

incident with the intruder.

Although I felt I could add nothing, the

attorney wanted me to evaluate Janet. If both

psychiatrists agreed, it would strengthen his
report to his client. I set up an appointment with

her.

Indeed, there was nothing I could add to Dr.

Embry’s opinion. I was curious about one thing,

however. I wondered why Janet, who was so

familiar with protocol, cleaned up the papers

before calling security. Truly she must have been

aware the police would want the scene untouched.

“I couldn’t think straight,” she replied. “When I

heard the shot, I knew Mr. Jenkins was dead. I was

afraid I’d be next.” She shuddered and her face

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 flushed. She paused to compose herself, and then
she went on. “After the man left, all I could think

about was that I’d have to go in there and see

blood all over the place. I still dream about that.

Then, when Mr. Jenkins came out and told me to

take care of things, I had this thought, you know—

this thought that if I did what he said and cleaned
up, maybe it would all go away. But it didn’t.” She

sobbed. It was clear Janet was suffering from the

unusual event.

I sent the lawyer my report and the insurance

company settled the case.

Causal chains are not always exactly like a row

of dominos—one cause “falling” and producing the

next cause. Life doesn’t travel in a single straight

line. In the course of an emotional disturbance,
other things happen—death of a close relative,

breakup of a romantic relationship, etc. These are

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 intervening causes.9 There may be several causes
of the condition we observe—some lying within

the apparent causal chain and some outside the

chain. Sometimes, those lying outside the causal

chain are more relevant to a persons psychiatric

state than those within the causal chain.

Sam sustained a low back injury from a fall at

work. The consensus among the orthopedists was

that he could do only light duty work. His 10

percent impairment would be permanent. This

would entitle him to a very modest compensation.

However, the pain did interfere somewhat

with his sleep. And since he always was a hard

worker, the restrictions on his activities bothered

him. He seemed to be sitting around the house and

brooding. His lawyer sent him to a psychiatrist

who diagnosed a significant depression—a

depression caused by his pain. According to the

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 psychiatrist, despite adequate treatment, the
depression had hung on so stubbornly for so long,

it was unlikely to improve.

The causal chain seemed simple enough:

incident at work—back injury—significant

depression. It was a causal chain which would

greatly increase Sam’s compensation.

The insurance company asked me to evaluate

him. Sam told me there were good days and bad

days, depending on the amount of pain. When the
pain was controlled, he woke up refreshed from a

good night’s sleep. He was eating well and his

weight was stable. He tried to help his wife around

the house, until his back started to hurt. He was

able to take his own meals when his wife was at

work. On a bad day, the pain was worse and his

activities were more curtailed. “Not much of a life,”

he said. Friends used to visit, but they gradually

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 dropped off. “I guess I wasn’t very good company.”

In response to my question, he was able to tell

me what was going on in the news. He watched

television quite a bit—liked war movies. “But

when I get to thinking, I can’t concentrate.” All in

all, I felt he did not have a major depression, but

then, he was on medication. He might have been
sicker without it.

That phrase, “I get to thinking,” came up again

and again in the interview. Of course his back
condition bothered him, “but what really gets to

me is the way the company treated me.” When he

applied for permanent workers’ compensation, the

company did not immediately grant it. He felt they

forced him to sue, and now they were asking their

doctors to evaluate him. To him, this was a great

indignity. “I gave them my best for 25 years, and

they treat me like a second-class citizen.” His face

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 flushed as he said this. This is the theme that he
thought about—brooded about—when he got to

thinking. “On a bad day, when I hurt, I sit around

and think, ‘Why did the company do this to me?

It’s not fair.’” At another point in the interview, he

said, “It’s always on my mind; why did they do me

this way?”

At one point, I tried to get him away from this

line of thinking. “Suppose the company had given

you permanent workers’ compensation. How

would this affect you?”

He didn’t say the family would be better off

financially. He didn’t say that he’d still be

depressed because of the incapacity from his

injury. He couldn’t even break away from the

thought that plagued him. “But they didn’t,” he

replied. “They tried to screw me.” I wasn’t

surprised his friends dropped off, if this was all he

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 wanted to talk about.

The company, of course, was following a

reasonable course. They were giving him

temporary financial help, but they had to be sure

before handing out the large amount of money

permanent disability would cost. It was Sam’s

feelings of entitlement and betrayal, not the
company’s action, which could be blamed for the

bitterness which Sam made the center of his life.

The cause of this distress was not something the

company was legally responsible for.

Since I couldn’t nudge him much from his

recurrent complaint, I could not rule in or out

some direct depression as a result of the injury.

However, I testified that the bulk of his emotional

reaction seemed to be the feeling of having been

treated wrongly after years of faithful service.

The judge awarded him nothing for the

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 emotional component of his complaint. In my
view, that may have been a bit harsh. I had said

“the bulk,” not “the entirety.” But as a witness, I am

not expert in fairness; that’s for the judge or jury

to decide. My job is only to provide a psychiatric

opinion of what is going on with the person I

evaluate and to give the data on which I base my
opinion.

How much information do you need before you

can be reasonably certain about the events causing

a psychiatric condition? This question came up

when Attorney Henry Bradley called me. He asked

me to examine the medical records of Jim

Thornton, who had been injured when a new

stepladder collapsed. Jim was suing the

manufacturer because of bodily injuries and
depression.

Mr. Bradley represented the manufacturer’s

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 insurance company. While he could acknowledge
the bodily injuries, he was not ready to accept that

they led to psychiatric dysfunction. According to

him, Jim’s psychiatrist did not perform a good

evaluation, and therefore he had no basis for

coming up with a diagnosis of depression.

I told him that in addition to the records, I’d

need to see the patient in order to decide if I

agreed with the diagnosis. He didn’t want me to

see the patient, because he wasn’t sure he’d use

me, and he would have to get the permission of

Jim’s lawyer to set up an evaluation. In essence, he

didn’t want to play his legal hand until he was

more certain of the outcome.

Although I declined to make a diagnosis

without an evaluation, I said I could look over the

other psychiatrist’s office notes and see if they

supported the diagnosis he came up with. The

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 attorney told me about the case and said he’d send
me the plaintiff’s deposition and his psychiatric

records.

Jim’s psychiatrist was Dr. Higgins. The doctor’s

office notes revealed that he had performed quite

an adequate evaluation, the results of which did

support the diagnosis of a major depression. The
diagnosis was consistent with the data he had

recorded. In his opinion, the injuries due to the

accident caused the depression. I reported this to

Mr. Bradley.

The attorney was not happy with my opinion.

He couldn’t understand how the psychiatrist could

say the injuries caused the depression without

having had any of Jim’s previous medical records.

He hadn’t talked to Jim’s friends or relatives to see

if anything else was going on. He ignored the fact

that Jim’s mother had some sort of mental

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 problem years ago.

I replied that he was now making a different

point. I told him the diagnosis was consistent with

data from Dr. Higgins’s evaluation. I suggested to

Mr. Bradley that the problem was that he didn’t

agree with the doctor’s opinion about what caused

the mental condition.

I reiterated that the diagnosis was consistent

with data the psychiatrist had documented. I then

focused on the nature of examinations. I explained
that a clinical exam is different from a forensic

exam. I proceeded to point out the differences

with regard to the question of causation.

When a patient consults a psychiatrist

clinically, we generally rely on the history he or

she gives unless it is glaringly inconsistent with his

or her complaints. We may supplement our

history-taking when we feel laboratory or other

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 medical reports are necessary to bolster our
diagnosis. When the patient is unable to give a

coherent account, or is a child, the story must be

rounded out by interviewing others. However,

confidentiality may limit this kind of investigation.

Actually, in our initial clinical evaluation, we are

not so interested in causes as in diagnosis and
response to previous treatments.

In the forensic situation, the issue of causation

may be more important. Because the psychiatric

problem has been raised in the legal arena, the

issue of confidentiality may be automatically

waived. In my forensic practice, in addition to

examining if the symptoms are consistent with the

alleged cause, I ask to examine preexisting medical

records, witness reports, depositions, and
sometimes employment and school records. I

review the statements of others who know the

plaintiff or defendant, if they are available. I may

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 well find causes other than the one which is

alleged. Can you imagine what would happen to

doctor-patient rapport if all these things were

requested in the usual clinical situation? The

patient would storm out, saying, “If you don’t trust

me, doctor, how can I trust you?”

How much information I get in the legal

situation is dependent on the attorney with whom

I am working; it is the lawyer who must negotiate
with the other attorney to get the material.

Sometimes, the attorney doesn’t want to give me

“too much,” because it might prejudice my

opinion. I tell the lawyer I am capable of
withstanding such prejudice. Besides, if I testify

and am confronted with new data on cross

examination, I might have to change my opinion

on the stand, and the case may be blown apart.

When I pointed out these differences between

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 the two types of evaluations, Mr. Bradley shifted
his focus. He would not risk having me evaluate

Jim; I might agree with Dr. Higgins. Instead, he

asked me to testify about the two types of

evaluations. The jury might then agree that Dr.

Higgins could not testify with any assurance about

what caused the depression.

I told him I could testify about the different

types of examination, but I could say nothing

about Dr. Higgins’s evaluation. I added that Dr.

Higgins could testify on what caused the

depression on the basis of the facts he had.

Mr. Bradley was not one to give up easily. He

said that at the trial, he might ask Dr. Higgins if he

was certain there were no other causative facts.

I pointed out Dr. Higgins might reply that if

there were any other facts he’d be willing to

reconsider his opinion. Any witness must be open

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 to receiving and considering new facts.

And while we were talking about what might

happen at the trial, I added that the other attorney

might ask me on cross examination if a doctor can

form an opinion about a diagnosis to a reasonable

degree of medical certainty based on a clinical

examination. I’d have to say that the doctor can.

We always practice on that basis; if we couldn’t,

how could we prescribe treatment?

The attorney sighed. He said that he would

have to take the chance that the opposing lawyer

wouldn’t ask me that question, because he had

nothing else with which to rebut Dr. Higgins’s

opinion.

We never had the opportunity to find out if the

attorney’s gamble would have worked at trial,

because the case was settled out of court.

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 Hunting down causes is one of the most

fascinating aspects of my work as a forensic

psychiatrist. Often it is painstaking work, but

when I can identify a cause (or the absence of a

cause in the chain) and I have data to back up my

opinion, I may well be in a position to tell the
judge or jury something they would not have

ordinarily known from common knowledge—to a

reasonable degree of medical certainty.

Notes

1 Bushman v. Hahn, 748 F.2d 651, 659-660 (1986)

2 Cloninger CR: Somatiform and dissociative disorders. (In)

Winokur G and Clayton PJ (eds.): The Medical basis of
psychiatry (2nd. ed.). Philadelphia: W.B. Saunders Co.,
1994, pp. 169-192

3 Spiegel D and Montenaldo JR: Dissociative disorders. (In)

Hales RE et al. (eds.): The American Psychiatric
Association textbook of psychiatry (3rd ed.).
Washington: American Psychiatric Press, 1999, pp. 711-
737

4 Rothstein MA et al.: Employment law (2nd ed.). St. Paul,

Minn.: West Group, 1997, p. 596

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 5 Dobbs DB: The law of torts. St. Paul, Minn.: West Group,
2000, pp. 1050-1051

6 Carter v. General Motors Corp. 106 N.W.2d 105,109-113

(1960)

7 Rothstein: Employment law, p. 597

8 Jose v. Equifax 556 S.W.2d 82, 84 (1977)

9 Johnson v. City of East Moline 91 N.E.2d 401, 403 (1950)

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 Chapter 4

Psychiatric Impairments
Remember the medieval judges who knew a
witch when they saw one? So, how do modern-day

doctors know a sick person when they see one?

They take a history from the patient and they use

physical examination, laboratory tests and MRIs—

they gather all sorts of data. And then they know a

sick person when they see one, right? Well, mostly,

but not always. Think back to the woman with the
somatization disorder (unexplained symptoms all

over her body) who complained of pelvic pain. Her

doctor performed a hysterectomy—not an

inconsequential procedure. But the uterus wasn’t

sick. Neither was the woman, at least in the way

the doctor saw it. The problem is you can’t see

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 pain, either with your eyes or with complicated
imaging equipment. And even if you could, you

wouldn’t be able to tell if it is coming from the

uterus or from the person’s imagination.

Putting aside somatization disorder, there are

people who appear at emergency rooms with a

variety of faked symptoms you can’t see, and they

get “treated.” Others actually produce pathology,

or they secretly manipulate thermometers or

other diagnostic instruments to produce the

illusion of illness.1 No, even doctors don’t always

know a sick person when they see one.

In the legal setting, instead of “sick” the word

“impairment” is often used, although “disease,”

“defect,” “disorder,” or “illness” can also be found.

For our purposes, all of these terms may be

considered as synonyms of “sick.” We’ll stick with

“impairments.” According to the World Health

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 Organization, an impairment is “any loss or
abnormality of psychological, physiological, or

anatomic structure or function.”2 Quite a

mouthful! In common terms, you’re impaired if

you’ve lost some of your health and/or you’re not

normal (whatever that means), and it negatively

affects the way you or part of your body does

things.

Now, when it comes to faked impairments,

psychiatry has more than its share of special

problems, because there are hardly any tests, X-

rays, etc. that allow us to be sure that there is,

indeed, an impairment. We listen to what the

patient tells us, but you can’t measure a patient’s

hallucination; you can’t even hear it. We pay

attention to how the patient acts and talks when

we evaluate him or her, but it’s not hard to act

depressed. Even asking relatives may not help, if

they are in on the fraud.

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 In the clinical situation, this is usually not a

problem, although it does occur with people who

seek drugs, or those who pretend to seek help in

order to satisfy a spouse who threatens divorce.

When there is a legal issue at stake, however, the

payoff for successful faking can be considerable:
more compensatory money, avoiding prison, etc.

The courts have recognized that sometimes

mental problems can be “too easily feigned.”3

As Rogers and Mitchell have stated, the

question is not whether psychiatric impairment

can be faked (it can), but whether we can detect

the faker—and separate him or her from the truly

impaired.4 Sometimes psychological tests can be

helpful; you can suspect faking if the test questions

have been answered in such a way that the test
cannot be scored and defies interpretation. The

most widely used and respected personality test—

the MMPI-2—has scales which can indicate if the

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 test can be scored, or if it was taken in such a way

that no valid conclusions can be drawn. These

scales can suggest that the person may have taken

the test with the aim of impressing the examiner

with his or her high moral standards or if the

person may have exaggerated the degree of his or

her impairment. The person may give inconsistent

answers to pairs of questions which ask

substantially the same thing but are phrased
differently. There are several scales which can
strongly suggest malingering.5 However, the test

must be interpreted with caution, because it may

not “fit” this particular test-taker. It is one piece of

data, which must be combined with other data

about the individual. Even tests which have been

constructed specifically to detect malingerers are

subject to errors. They may accuse someone who

is genuinely impaired.6 Testing can be helpful, but

it is not definitive.

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 Tests were helpful in the evaluation of Fred

Baker, a 34-year-old man who was knocked to the

floor by a heavy piece of lumber in the lumber

yard where he worked. There was a bruise on his

lower back but no other findings except for

complaints of back pain. The bruise went away,
but the pain persisted. Several doctors agreed his

description of the pain did not fit any neurological

syndrome. He was either faking or psychiatrically

disturbed. He was referred to Dr. Gibbons, a

psychiatrist.

Dr. Gibbons took a careful history. Several

years earlier, Fred was injured at home. Although

the injury was not particularly impressive, Fred
responded with excessive pain and a mild

depression. He was treated with antidepressants

and his condition cleared up after a few months.

The present problem seemed to be a repeat of the

previous causal chain— relatively small,

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 somewhat painful injury inducing a psychiatric

reaction. Only this time, more than a few months

had passed without significant progress.

Dr. Gibbons treated him for well over a year.

Apparently, Fred had a serious depression—low

energy, sad mood, loss of interest in anything. He

felt guilty because pain prevented him from

working to support his family. His memory was

faulty and he couldn’t concentrate. And he was
beginning to hear occasional voices. The diagnosis

was major depression with psychosis. The

psychiatrist tried various medications in adequate

dosage. Sometimes, it looked as if Fred were
improving, but inevitably there was a relapse.

When the doctor was contacted by Fred’s attorney,

he gave him the sad news: Fred was too sick to

work, and the outlook for a complete recovery was

not good. Sad news for Fred, but at least it would

help the lawsuit.

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 After reviewing the records, I interviewed both

Fred and his wife. Fred looked dejected and his

speech was slow—as if it was an effort to produce

sentences. The only time he showed any measure

of enthusiasm (and it wasn’t much) was when he

talked about his back pain. His day was “pure shit.
I sit at home and wait for another day.” He said he

was making no real progress with Dr. Gibbons.

“He’s a nice guy, but he doesn’t seem concerned

about my pain.”

There did seem to be some psychotic features.

He told me he sometimes heard voices when he

was home alone, although he could not make out

what they were saying—“Like someone’s playing
tricks on me.” Sometimes he saw snakes. They

seemed to appear when he was hearing the voices.

Fred’s wife confirmed that her husband had

gone downhill. When he heard the voices, he asked

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 her whether she could hear them. He did virtually
nothing all day and she couldn’t motivate him. He

preferred to be alone. His sleep was poor.

On the surface, Fred did seem to be suffering

with a psychotic depression, but there were a few

puzzles. It would be very unusual to encounter a

depressed person who experiences such
simultaneous auditory and visual hallucinations as

voices and snakes. And why would he ask his wife

if she heard the voices when they came to him

while nobody was home? He had told one doctor

the accident knocked him out; he told another he

had not been unconscious. With me, he split the

difference—“I was kind of in a daze.” Then, there

was his gait. One orthopedist noted he had

changed the leg on which he limped. And sure

enough, when he came in to see me, he was

limping on his right leg, but when he departed, the

left leg had the limp.

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 In order to look further into the question of

faking, I gave him the Rey Test. This is a brief

memory test of fifteen items so arranged that even

mildly mentally defective people can remember

nine of them. Fred reported remembering only

seven. While I didn’t know his exact I.Q., his
vocabulary and sentence structure was such that it

was unlikely he was retarded. Another piece of

data.

I next administered the MMPI-2. This was a

laborious process because the test consists of 567

true-false items, and Fred had already told me he

had a reading problem. I read the items to him.

This turned out to be a bit of luck. When I received
the computer-generated report, it was apparent

the test was not able to be scored. Fred had

endorsed so many problems which rarely occur

that the invalidity scale was not only high; it was

off the chart. In addition, almost all the problem

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 scales were extremely high. This kind of problem

exaggeration could result from low reading level,

severe psychiatric confusion, a plea for help, or

falsely claiming problems. Because I read the

items to him, poor reading ability was ruled out.

The conduct of our interview made it clear he

wasn’t severely confused. While I couldn’t really

rule out the plea for help, his presentation to me in

the interview gave me no data to support it. And I
already had the other data supporting falsification

of reported symptoms.

I tend to be conservative about testimony

regarding malingering. I feel it is up to the judge or
jury to decide whether the person is being

truthful. When there is a conflict in testimony, they

are the ones who decide whom to believe. In this

case, I presented the data and said I could not

make psychiatric sense out of all these findings;

they didn’t all fit together. The judge asked me if

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 Dr. Gibbons, who had seen him for over a year,

was wrong. I replied that the clinician tends to

believe the story, unless something doesn’t fit. The

forensic evaluator has a higher index of suspicion.

Dr. Gibbons did a competent job with the data he

had, but the deposition he gave indicated he did

not have all the medical records I had. And he

didn’t administer the tests; he had no reason to.

The judge ruled against Fred Baker.

I witnessed a funny coda to this evaluation.

Several months later, I was in the courtroom

waiting for my case to come up. Another case was

being argued, and lo and behold! There was Fred
going up to the witness stand without a limp. He

was testifying on behalf of a friend. His speech was

enthusiastic, and his memory and concentration

were fine. Do you believe in miracle cures like

that? I don’t.

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 Psychological tests are only one type of

strategy for attempting to detect faking.7 We look

for inconsistencies, overuse of rare symptom

combinations, or observing differences in what is

reported and what is seen. These kind of

discrepancies led me to wonder about Frank

Conway.

Frank, a factory worker, slipped on a wet floor

in a convenience store. The emergency room

doctor said he’d strained his back. Unfortunately,

the pain persisted and was severe enough to

interfere with his ability to continue working in

the factory. He consulted several orthopedists, and

there was general agreement that Frank’s spine

had been slowly degenerating prior to the
accident. However, his problem was aggravated by

the fall. While he had more pain than one would

expect from this kind of condition, the doctors

agreed he did have an injury. Frank was optimistic

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 about his chances for recovery. The doctors were

less sure, but they were impressed with Frank’s

spirit. One note read, “He refuses to believe I can’t

restore his back to what it was before.”

According to those records, Frank finally did

believe he would be handicapped for life, and his

optimistic bubble burst. His status had changed

from a productive wage earner to a relatively

sedentary person, from an athletic handball player
to someone incapable of physical exercise. He

became despondent, and his doctor referred him

to a psychiatrist.

According to the psychiatrist’s deposition,

Frank had lost his selfesteem, he felt hopeless, and

he could not do much around the house because of

his depression. He was irritable and had

withdrawn from friends. Although he responded

somewhat to antidepressant medications, he had

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 settled on a plateau—moderate depression—and
was unlikely to improve further.

Since Frank was suing the convenience store,

his attorney sent him to another psychiatrist for a

further opinion. This doctor was more robust in

his appraisal. First of all, the doctor reported there

was no doubt this was a man of “the utmost
veracity.” He then proceeded to describe symptom

after depressive symptom—almost a textbook

case. The diagnosis was major depression, severe.

The prognosis was grim. In essence, Frank was a

basket case.

After I evaluated Frank at the request of the

attorney for the insurance company, I was not so

sure he was a man of “the utmost veracity.”

However, I was quite certain the doctor who

wrote that report was not a psychiatrist of the

utmost veracity. When Frank came for the

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 appointment, there was no basket case at my door.
Frank arrived, sipping a large coke. He was

pleasant and voluble. True, when he described his

many depressive symptoms, his expression was

downcast. “I don’t have any motivation. I have no

desire to get out. I try to read the paper, but I can’t

concentrate much. Nothing interests me.”
However, when I asked him what was going on in

the world, he began to wind up. He knew about the

presidential campaigns—“that rich guy” (he

named a candidate) trying to buy the election.

“They all promise so much. If they kept half their

promises, this would be a great place. They think

they can tell us anything and we’ll believe it.

There’s an old saying, ‘Not every closed eye is

asleep.’ I’m not blind.” Well, Frank’s self-esteem
hadn’t decayed.

He really took off when I asked if he watched

TV. “Only ESPN- sports, that’s my thing. You better

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 believe I used to be a sports man. Basketball,

football, baseball, tennis, handball. There’s an

NCAA tournament going on right now. Yesterday I

had to switch back and forth between the

basketball and the tennis at Forest Lawn.” Not bad

for a man who lost all interest and motivation.

He leaned forward for emphasis (apparently

that position didn’t bother his back). “My son’s just

like me. I talk to him. I told him he has to
concentrate on just one or two sports. I was

pushing basketball. When I watch him in a game,

I’m his number one fan. It’s a big thrill.” Yes,

indeed, a big thrill for a man who is severely
depressed.

I decided the attorney’s psychiatrist was either

totally inept or a hired gun. I opted for the latter. I

had to give more thought to the report of Frank’s

treating psychiatrist. I could not go along with a

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 diagnosis of moderate depression, but perhaps
there were some mild depressive symptoms.

Maybe the antidepressants had done a fair, but not

complete, job. Alternatively, maybe the man was

faking. Perhaps an MMPI-2 could shed some light.

Frank’s MMPI-2 was easily scored. There were

no suggestions of faking or even exaggeration.
There were signs of anxiety and depression. The

report seemed to go along with one of the two

possibilities I had considered—depression, largely

in remission.

I called the attorney with whom I was

consulting, and I told him about my findings and

the two possible conclusions—mild depression

made better by treatment or faking. He responded

with laughter as he said he was just about to call

me. He’d hired an investigator who got an

interesting video. The attorney scheduled a

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 meeting with Frank and his wife together with
their lawyer. The tape was shown. There was

Frank in great form on the handball court. His

attorney was furious at him, but nothing like his

wife. She was livid. He’d even fooled her!

I was left with several questions. Why didn’t

Frank’s treating psychiatrist see the enthusiastic
behavior I saw? I can only guess. Possibly it was

because of the way clinical psychiatrists tend to

see patients during this era of managed care. The

visits are short and symptom-focused. There is

little time for broader discussions about daily life

or about sports. When he described his symptoms

to me, Frank’s demeanor was also downcast.

And why was Frank’s wife livid? Was she really

fooled, or was she angry because she may have let

him persuade her to go along with the false story?

Or was she angry because he was “foolish enough”

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 to get caught? Human behavior has many twists
and turns, and we psychiatrists don’t have all the

answers. We shouldn’t pretend that we do.

There is no sure way to diagnose psychiatric

malingering. The strategies can sometimes point

in that direction, but unless there is actual direct

evidence (such as the videotape), you are left to
wonder. In my view, a psychiatrist can testify to a

reasonable degree of medical certainty that the

data we have does or does not fit someone who

has a psychiatric disorder,8 but we are on shakier

ground when we try to do the judge’s or jury’s job

of calling someone a liar. That is why I present the
data and my opinion, and I let others decide.

When you encounter obvious cases of

malingering, it is easy to believe that everyone

who is in a legal situation is lying. Most of the

people I see give no evidence of faking. The data I

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 gather from them indicates there is a reasonable
causal chain leading to a bona fide psychiatric

impairment. Then I must reach the next question:

How badly is the plaintiff impaired? In workplace

accident and personal injury cases (such as auto

accidents) the more severe the impairment, the

greater the compensation. (In other types of cases,

such as criminal insanity pleas or psychiatric

hospital commitment, the issues of impairment

severity are handled differently, but are no less

important. These issues will be discussed in

subsequent chapters.)

The American Medical Association has

published the Guides,9 now in its fourth edition, to

enable physicians of every specialty to evaluate

the degree of impairment. By fitting the person’s
symptoms with the descriptions in the book,

doctors can arrive at a reasonable estimate of how

impaired he or she is—an estimate which is

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 expressed numerically.

There is a curious thing about the Guides. You

may remember the Frye and Daubert standards

described in Chapter 2. The Supreme Court

rejected opinions based only on consensus of

people in the field; opinions must be based on data

which can be tested. Yet we read in the Guides that

the degrees of impairment have been decided by

consensus of authorities in each specialty.10 And

how could it be otherwise? In many cases—and

especially in psychiatry—there is no scientific way

of determining whether one person is more

impaired than another, or more specifically that

one is impaired twice as much as another. Once

again, the courts must rely on estimates that are

reasonable (that word again) in order to proceed

with their decision-making.

The Guides is used in most states in the United

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 States. In every specialty except psychiatry, the
book gives criteria which translate into a number

or range of numbers. For example, amputation of

the thumb equals 40 percent impairment of the

hand; amputation of the little finger equals 10

percent of the hand. Unfortunately the

psychiatrists who designed the psychiatric section

of the Guides balked at using numbers; they

separated the degrees of impairment into five

levels: none, mild, moderate, marked, and

extreme. While they given cogent reasons for not

using numbers, in my view this system is not very

practical, because judges sometimes need

numbers to put into the complicated mathematical

formulae used to determine the level of

compensation they will award to the plaintiff.

I prefer to use the Global Assessment of

Functioning (GAF) described in the psychiatric

diagnostic manual.11 The group of psychiatrists

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 who worked out this system did not shy away

from the use of numbers, and they linked various

specific symptoms and activities to numerical

levels of functioning. The scale goes from zero to

100, divided into ten levels. For example, a person

who is acting on the basis of delusions and

hallucinations or stays in bed day in and day out

with no real communication is functioning

somewhere in the 21-30 range. The rater can fine
tune within this range. By contrast, the person

who may overreact a bit after a family argument

or has minor difficulties on the job or in school is

put in the 71-80 level. The person who has no

more than everyday problems with which he or

she can cope well falls in the 81-90 level—that’s

where most people without any significant

psychiatric problems fall. The top level is reserved

for super-people who are sought out by others

because of their many positive qualities and

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 whose life never seems to wobble. I haven’t met

any of them.

The GAF is an adaptation of a previous scale of

functioning, which has proven to be reliable—that

is, several unbiased raters with no ax to grind will

come up with similar ratings.12 Additionally, a

person’s score changes over time if there are

changes in the person’s condition.

Many people who suffer injuries had

psychiatric problems before the injury being

litigated. Suppose they were on a mild-symptom

level (say, 65) before the event. Because of the

recent injury, they may be now rated on the GAF at

a level of (say) 55—moderate symptoms. Do we

report that the recent event caused a drop of ten

points in the GAF level? Generally, we do not. If the

previous condition was aggravated by the recent

injury, the defendant is liable for the whole

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 amount of impairment—presumably a drop from
where an unimpaired person would be. The only

exception is when the recent injury produces a set

of symptoms clearly differentiated from the earlier

disorder.13 Clearly, what level you take as the

starting point from which you will subtract the

current (post-injury) level can make a significant

difference in the amount of compensation the

plaintiff will receive.

The starting point became an issue in the case

of Ellen Clark. Ellen was driving over a bridge on

the highway when another vehicle swerved and

hit her. Fortunately, she was able to wrestle her

automobile back under control, and she came to a

stop just shy of striking the guard rail. She

sustained a minor bump on her head. But she had

a lasting vision of the guard rail getting closer and

closer. She shuddered every time she thought of it.
Her sleep deteriorated and she had occasional

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 nightmares, not only of what had happened, but

also what could have happened if the guard rail

didn’t hold and she plunged into the river. There

was a pall over her daytime activities; it was hard

to teach youngsters in school when she was

preoccupied. She had post-traumatic stress

disorder.

Fortunately, she had good treatment, and the

sharpest symptoms disappeared. Although she
still had some insomnia, the nightmares

diminished in frequency. Even though she tired

easily, she was able to resume teaching. She was

driving again, but crossing a bridge caused her
anxiety. Progress, but some residual.

According to Ellen’s psychiatrist, she was

functioning on a GAF level of 60 (the top of the

level with moderate symptoms). He said she was

40 percent impaired. He must have thought that

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 before the accident she was operating at a GAF of
100 (100 minus 60 would be 40 percent

impairment)—if he thought about it at all. That

would have made her not only a super-person, but

at the top of the super range before the accident.

Ellen’s attorney felt she had a 50 percent-60

percent impairment. He didn’t need to use the
GAF; he knew a sick plaintiff when he saw one.

Besides, he needed to persuade the jury that Ellen

really deserved substantial compensation.

Unfortunately for his case, the psychiatrist

consulting with the defense rated her with a 15

percent impairment due to the accident. Hoping I

could rebut that psychiatrist, Ellen’s lawyer asked

me to evaluate Ellen.

Actually, in such personal injury cases, the

issue of degree of impairment (in numbers)

doesn’t always come up; the plaintiff’s attorney

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 merely wants you to impress the jury with the
symptoms. The lawyer hopes the defense will not

find any preexisting problems, but he or she isn’t

going to go looking for them. In this case, however,

the severity of the injury- caused impairment had

come up, and a battle of the numbers had already

been joined. Therefore, in addition to the accident

report and the records and depositions of the

psychiatrists involved, I asked for Ellen’s

evaluations at school as well as her doctor’s

records before and after the accident.

Prior to the accident, Ellen got reasonably good

reviews from her principal, although there were

some comments about how she let the children

upset her and how she sometimes lost control of

the class. She was seen crying with frustration at

times in the teacher’s lounge. Luckily, she could

pull herself together and return to the classroom.

Teachers do this occasionally—especially young

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 ones. It’s not particularly a sign of

psychopathology.

However, her family physician carried this to a

different level. His records indicated she was

complaining of occasional insomnia, worry about

her school performance, and a gradually mounting

anxiety about her ability as a teacher. He

prescribed a mild antianxiety pill which

sometimes calmed her down. All this before the
accident.

When I saw Ellen, she was a pleasant woman of

34, married, with two children. She went over the

details of the accident and recounted her reactions
to it. She was pleased with the progress she had

made in treatment. Her story confirmed what I

had read from her psychiatrist. I felt his rating of

her current functioning at GAF 60 was quite

reasonable.

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 The next step was to assess her functioning

level prior to the accident. In my judgment, Ellen

was functioning on the level of 70 before the

accident—a few mild symptoms and a little

difficulty functioning on the job. A reasonably

functioning woman, but not at a level of GAF 100.

In my opinion, the symptoms produced by the

accident were sufficiently different and sufficiently

related to the accident to constitute a new
problem rather than an aggravation of the older

one. Coming down from this point, the decrease in

her functioning due to the accident was 14

percent. I wouldn’t argue with the defense’s

psychiatrist who rated her at 15 percent.

Needless to say, Ellen’s attorney was less than

enchanted with my appraisal. He decided not to

have me testify at the trial. He thanked me, but he

never called me again. I suspect he settled the

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 case.

As I mentioned in Chapter 1, the lawyer’s job is

to do the best for his or her client. Better to have a

“flexible” expert who can be counted on to

maximize or minimize the impairment rating

(depending on which side the attorney is on) than

one who can’t be relied on. Theoretically, at least,
the opposing attorney can mute this effect by

hiring his or her own “flexible” attorney. While

this may be good for the legal profession, it leaves

an unfortunate stain on the psychiatric profession.

This “bending” of impairment ratings occurs in

other medical specialties as well. For example, I

have reviewed orthopedic records which gave

differing impairment ratings on the same

individual.

I do not mean to imply that every time there

are different opinions, one or both experts are

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 either prostitutes or are using junk science. As I
stated above, impairment rating is not an exact

science. But it is the only science available.

Reasonable and conscientious experts can

disagree. However, when both experts have

essentially the same data and there is a wide

disparity, you are left to wonder.

In the pursuit of persuasion, cross-examining

attorneys will try to show the expert is biased.

Frequently they ask you the standard trick

question: “Do you mostly testify for the defense,

Doctor?” Forensic psychiatry is largely a referral

enterprise. If the evaluation helps a defense

lawyer win an important case for the client, he or

she may pass your name on to colleagues. Pretty

soon, you are getting calls from other defense

attorneys. Plaintiffs’ attorneys won’t call you,

because they think their chances of a favorable

report aren’t very good.

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 Does that mean the psychiatric expert must

stretch the impairment severity in order to get

referrals? I would be less than honest if I said the

thought never crosses my mind. It is the great

temptation of forensic psychiatry. I do the best I

can to avoid this breach of ethics. Often, I tell the
attorney I cannot be of help, or my impairment

assessment is the same as that of the expert on the

other side. One of the satisfactions of this

approach is that I have developed a cadre of

referring attorneys who really want to know my

opinion. I can only surmise that the companies

they represent are willing to be fair. These lawyers

have stuck with me even when I have not rated

impairments as severe as they would have liked.

Back to the trick question: “Do you mostly

testify for the defense, Doctor?” The answer would

have to be “Yes.” But the more telling question, the

one I have never yet heard in court, would be, “Do

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 your findings always support the defense,

Doctor?” While I don’t keep count, I could say

there are many occasions when, because my

findings are not supportive, the case has been

settled and I did not testify at all.

I had an amusing interchange with a district

attorney early in my career. I was testifying about

the psychiatric impairment of a defendant in a

criminal case. The prosecutor asked me the “Do
you mostly” question, and I replied, “I’ve been

waiting for your call, but it never came.” The

gratifying end to the story was that I actually

received his call some time later when he had
doubts about the findings of his own expert.

It is generally easier to diagnose that a person

has a psychiatric impairment than it is to be

absolutely certain about what caused it or how

severe it is. We can only be confident to a

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 reasonable degree of medical certainty. Yet, these
are things judges and juries often need to know in

order to render their verdicts. Psychiatrists can

best help by avoiding psychobabble and not

relying on tenuous theories. Plain talk about our

opinions and presentation of the data by which we

have reached those opinions can help the judge

and jury reach their own conclusions.

Notes

1 Feldman MD and Eisendrath SJ (eds.): The spectrum of

factitious disorders. Washington: American Psychiatric
Press, 1966

2 World Health Organization: International classification of

impairments, disabilities and handicaps. Geneva,
Switzerland: World Health Organization, 1980, p. 47

3 Payton v. Abbot Laboratories, 437 N.E.2d 171,178 (1982)

4 Rogers R and Mitchell CN: Mental health experts and the

criminal courts. Scarborough, Ontario: Thomason
Professional Publishing Co., 1991, p. 18

5 Greene RL: Assessment of malingering and defensiveness by

multiscale personality inventories. (In) Rogers R (ed.):
Clinical assessment of malingering and deception (3rd.

www.freepsychotherapybooks.org 164
 ed.). New York: Guilford Press, 1997, pp. 169-207

6 Edans JF et al.: Utility of the Structured Inventory of

Malingered Symptomatology in identifying persons
motivated to malinger psychopathology. Journ. Amer.
Acad. Psychiatry Law 27: 387-396,1999

7 Rogers and Mitchell: Mental health experts, pp. 16-17

8 Resnick PJ: The detection of malingered psychosis. (In)

Resnick PJ (ed.): The Psychiatric Clinics of North
America: Forensic psychiatry. Philadelphia: W.B.
Saunders Co. 22:1159-172,1999

9 American Medical Association: Guides to the evaluation of

permanent impairment (4th ed.). Chicago: American
Medical Association, 1994

10 Ibid., p. 3

11 American Psychiatric Association: Diagnostic and statistical

manual of mental disorders (4th ed.). Washington:
American Psychiatric Press, 1994, pp. 30-32

12 Endicott J et al.: The global assessment scale. Arch. Gen.

Psychiatry 33: 766-771, 1976

13 David v. DeLeon 547 N.W.2d. 726, 729-730 (1996)

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 Chapter 5

“Impairments Are Forever!”

If someone’s legs must be amputated because
of an industrial accident, he or she will be

impaired forever. The legs will not grow back. The

victim is also likely to be disabled—unable to

work any more. Many medical conditions are

permanent and may even deteriorate further. Far

advanced cancers, certain serious heart

conditions, blindness, and lungs crippled by
smoking will never be reversible. Doctors aim to

slow the course and impact of the illness, but

recovery may be out of the question.

Only a few decades ago, many psychiatric

patients were condemned to a lifetime of severe

impairment. With the advent of newer

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 medications, innovative psychotherapeutic and

rehabilitative techniques, and an explosion in our

understanding of the way the brain works, the

picture has become much brighter. Schizophrenia

can often be controlled—not cured, but alleviated

to the point where patients can improve much of

their functioning.` People with bipolar disorder,

once subject to a lifetime of depressive slumps and

manic highs, can now be smoothed out.1 There are

medications which may control impulsive and

aggressive behavior.2 Even that annoying “habit”

of going back again and again to make absolutely

sure the door is locked can often be controlled by

medication and behavioral psychotherapy.4 The

list goes on and the picture is getting rosier. There

is still a long way to go, but researchers have

already traveled considerable distance.

Good news for the average patient, but not

always good news when the patient becomes a

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 plaintiff in a law suit. If this plaintiff has a

psychiatric impairment which renders him or her

unable to work and it is judged to be permanent,

the financial awards can be considerable. In

workers’ compensation cases, the plaintiff may get

a lump sum of money calculated on the basis of his

or her previously expected working life. Disability

policies also take into consideration whether the

plaintiff will ever be able to work again.

In other accident and injury cases, the awards

may be even higher. The attorney may bring in an

economist—a relatively new breed of expert—

who will painstakingly calculate the plaintiff’s
potential economic loss in front of a jury. This is

more than a matter of mathematics; remember,

the courtroom is an arena of persuasion, and all

the while the economist is talking, the jury is being

impressed with the anticipated years of continued

financial suffering. And in these cases, the

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 monetary award is usually decided by the jury,

rather than by some formula. The award may

skyrocket.

Since the question of whether an impairment is

permanent requires knowledge not usually

available to the judge or jury, it falls to the medical

expert to render an opinion. Unfortunately, in

many cases, this is not an easy call, unless, of

course, the “expert” is careless or is a prostitute.
Take the case, for example, of Stuart who claimed

a minor back injury on the job. Several months

later, even though his family practitioner had not

noted any significant psychiatric problems, his
attorney recommended he see Dr. Starrett for an

evaluation. Since this was a forensic evaluation

rather then a contact for psychiatric treatment, Dr.

Starrett saw the plaintiff on only one occasion.

The psychiatrist diagnosed a severe

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 depression as a consequence of the back injury.
The proof of the causal link was that it had started

one year previously, shortly after the accident.

And since it had not been treated for that length of

time, it had “set in.” The doctor said that “any

depression that hasn’t been treated for over a year

can no longer be helped!”

When I saw the plaintiff, I felt he was unhappy

about his loss of income and perhaps he had a

mild depression, but he was nowhere near

meeting the requirements of a diagnosis of severe

depression. And suppose he had really had a

significant depression, would it have been

permanent? How do you know any depression is

treatment-resistant until you have tried to treat it?

Many people who are more seriously depressed

than this man—and for longer periods of time—

can be made functional and return to their jobs. I

couldn’t wait to testify to the judge about the

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 absurdity of the other psychiatrist’s statement, but

I never got the chance. The case was settled.

How do we determine if an impairment is

permanent? As I discussed in the previous chapter,

the American Medical Association has published

the Guides.5 The full title of this book is Guides to

the Evaluation of Permanent Impairment. The

Glossary tells us “permanent” refers to medical

conditions which are stable (unlikely to change by

more than 3 percent in the next year with or

without treatment).6 However, in the psychiatry

section we learn that “Determining permanent

impairment is often imprecise, and rarely is there
certainty that it exists.”7 We aren’t fortune tellers.

We have no good guidelines except experience of

the profession—the reasonable degree of medical
certainty again.

This problem occurs not only in psychiatry. A

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 neurosurgeon evaluated a woman who
complained of neck and arm pain after she fell at

work. When he evaluated her, he found no

objective neurological signs; nor did imaging

studies reveal any structural abnormalities.

Nonetheless, the pain she described was

consistent with irritation of some nerves coming

out of the spinal cord at the level of her neck. He

felt there was no reason to think she was

malingering. Asked whether the condition was

permanent, he replied, “I guess I have to send you

to the chaplain’s office for the answer to that one,

sir. It is entirely possible she could get better. It is

also entirely possible she could never get better.

It’s impossible for me to say one way or the other.”

However, there are some situations where we

can, to a reasonable degree of medical certainty,

say that a psychiatric condition is permanent. A

condition may be permanent if a person remains

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 impaired because he or she refuses to go to the

doctor or declines to follow the doctor’s orders. In

most cases, the lack of cooperation will bar that

person from claiming permanent impairment.

Most cases, but not all. One case, unique in my

experience, illustrates an exception to this rule.

Sylvia claimed she was permanently unable to

work and she wanted to collect her disability

insurance.

She was 36 when her marriage fell apart. It

was a bitter divorce and custody fight, one which

overwhelmed her. She was always somewhat

timid, and she tried to avoid confrontations. “I get
uncomfortable when I’m angry,” she told me.

Ultimately, she won custody of the two children,

but their father refused support payments. It had

been a never-ending series of court battles, and

Sylvia was drained. More than drained, she began

to experience panics. Unpredictably, she became

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 short of breath and felt as if her heart was about to

pound out of her chest. Her thinking got fuzzy and

she was sure she was going to die from a heart

attack. She perspired profusely. After a while, the

attack subsided, but the memory of what she’d just

gone through lingered. Sometimes, these attacks

woke her at night; at other times, they occurred

during the day. Because she never knew when to

expect an attack, she was preoccupied with the
anticipation that one might occur at any moment.

She began to organize her life so that she’d never

be far from help if she needed it. All this, of course,

precluded her working as a secretary.

Sylvia had never been one to visit doctors; the

idea of putting “drugs” into your body repelled

her. Her idea of a healthy lifestyle was to watch

what she ate and get plenty of exercise. Not a bad

regimen, for starters, but sometimes more is

necessary. Sylvia was aware that some

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 circumstances required professional help.

Whenever she felt poorly, she consulted an

“alternative medical provider,” one who

prescribed massages and dietary changes to put

her body “back in balance.” When she consulted

him about her panics, he plucked a hair from her

head and sent it off to a laboratory. Sure enough,

the report came back stating that Sylvia had

multiple heavy metal toxins. These needed to be
dealt with by rebalancing her.

At the insistence of her mother and the strong

suggestion from the insurance company, she did

consent to see a psychiatrist. He diagnosed her as
suffering from panic disorder, and he began

prescribing an antipanic medication. According to

his records, he recognized her fear of medications.

He spent time discussing possible side effects and

started her on a very low dose, working up only

gradually to a reasonable, but not maximum, dose.

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 Sylvia told me the psychiatrist explained

everything; he was very nice and very gentle. She

did not experience any side effects, and she

appreciated the slow pace at which he increased

the medicine. He also tried to guide her through

some mental exercises to ease her apprehension.

When the panics didn’t respond to the new

regimen, the insurance company asked me to do

an independent medical examination to see if her
problems would be permanent. Sylvia was a

pleasant but somewhat dramatic person. She

could go through a gamut of emotions within

fifteen minutes, depending on what she was
talking about. At one point, she held her head in

her hand and stared at the floor—the picture of

dejection. Softly but firmly, I said, “Lift your head

up so we can go on.” She looked at me and smiled,

and we proceeded. She was very suggestible.

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 We talked about many things, and I decided

that she did suffer from panic disorder and was

unable to work. The psychiatrist was following a

reasonable course. But when I went over with her

in detail the medications she was taking (including

the special foods prescribed to put her in balance),
she told me, “Dr. Stevenson prescribes two pills in

the morning and one at night, but I really think

this is too much, so I take only one a day—when I

remember to take it.” She was even less inclined to

practice the mental exercises.

From his notes, I could see the psychiatrist was

unaware of this. I doubt it would have made any

real difference. Sylvia was committed to her
alternative provider. And since the impairment

had gone on unabated for over a year now, the

prospect of improvement looked dim.

Medication and behavioral psychotherapy can

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 improve panic disorder. A recent study showed
that about 80 percent of patients so treated

“remained well or were (only) minimally impaired

five years after treatment.”8 But despite the

psychiatrist’s efforts, Sylvia was not being

adequately treated. Within a reasonable degree of

medical certainty, I could say her condition was

unlikely to resolve.

I discussed all this with the insurance

company. The insurance reviewer told me Sylvia
would be placed on permanent disability. It didn’t

seem fair to me. The permanence of Sylvia’s

impairment was due to her own actions. She

wasn’t following her doctor’s advice. The reviewer

told me that Sylvia’s particular insurance contract

entitled her to pick out her own provider, and that

alternative practitioners were included. The

company no longer includes this particular type of

practitioner, but that didn’t affect Sylvia’s contract.

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 I am not an expert in this alternative type of

practice. Even though I am skeptical, I could not

say that his treatment would or would not be

effective. I do know that assaying heavy metals in

hair is an unreliable method of assessing what is

going on in the rest of the body at any one time,9

and I know of no studies that show panic

disorders results from heavy metal toxicity.

Perhaps, if the company was not bound by this

type of contract and a lawsuit was filed, I could

have rebutted the practitioner’s junk science of

heavy metals. But in this case, junk science won

out over reasonable medical certainty.

I distinguish between junk science and twisted

science. Junk science is based on faulty research,

or on no research at all—just anecdote or wishful

thinking. Twisted science, as I use the term, occurs

when the expert witness uses well-researched

concepts and data but misinterprets them,

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 perhaps because he or she misunderstands the

meaning of the studies or perhaps in an attempt to

impress the judge or jury. The witness may twist

intentionally or may honestly be misguided; in

either case it is twisted science. Twisted science

cropped up in one case both in the description of

the impairment and more blatantly in the

assessment of permanency.

Brad was employed by an environmental

cleanup company. He was a high school graduate

with a flair for mechanics. After the health

physicists and engineers figured out the nature of

the contamination and how best to dispose of it,
Brad was part of the crew that went in and did the

job.

During the course of his employment, he

worked on various contaminated sites in the

region—sites with chemical byproducts of

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 different manufacturing processes. Gradually he
noticed the onset of bouts of mental confusion.

These increased to the point where he felt he

could no longer work. He stopped work in 1993.

His memory was spotty, and at times he forgot

what he was doing or he didn’t recognize things.

Sometimes he lost track of what he was saying. He
was afraid to drive, although he did drive short

distances from his home.

Brad’s family practitioner suggested his

problems might stem from exposure to the

contaminants. A doctor who claimed to specialize

in toxic problems agreed to examine him. In June,

1994, he found a slightly increased concentration

of lead in Brad’s urine. He recommended chelation

—a process where the patient is given a substance

which removes lead from the body. Urinary lead

levels decreased to within expected normal limits.

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 Brad was convinced contamination was his
problem because, as he told me, “Right after the

chelation, my memory improved and I could

recognize things I had trouble with before.” He

assured me the symptoms had subsequently

returned.

By this time, Brad had a lawyer and was suing

for workers’ compensation, claiming his problems

were caused by on-the-job contamination. The

doctor who performed the chelation agreed, and

the attorney sent Brad to a psychiatrist for a

medical opinion regarding his mental functioning.

Brad told the psychiatrist that the chelation doctor

had found “super high” lead levels. (I can only

surmise that the attorney did not furnish the

actual reports to the psychiatrist.) After his

examination, the psychiatrist reported that Brad

was leading an almost vegetative life—doing

nothing but sitting around all day. He couldn’t

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 concentrate; he was forgetful and constantly lost

track of where he was in a conversation. He had

auditory hallucinations. This was clearly a

dementia, due to lead. And more important, the

toxic material was trapped in the brain. The

dementia was not only permanent; the lead would

continue to do its damage and the dementia would

deteriorate until Brad became like a person with

Alzheimer’s Disease.

Here, then was a causal chain: excess exposure

to contaminants (assumed but not really shown in

the record), leading to lead toxicity, leading to a

deteriorating brain condition. But apparently the
“toxic-problem specialist” failed to obtain records

of Brad’s previous evaluations. A neurologist had

examined him a few months earlier, and Brad had

no neurological signs of lead toxicity. Blood tests

did not show abnormal lead levels. An

electroencephalogram and an MRI of the brain

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 showed no abnormalities.

Brad had also been examined by an

occupational physician prior to seeing the

“specialist.” Again, a blood sample failed to show

elevated lead levels. How, then, could the chelating

doctor have found an elevated lead level? Brad had

not worked in decontamination for almost a year.

The most probable explanation lies in the nature

of the test. There is lead in every environment and
it is not uncommon to find some lead in the bodies

of many people. The chelating doctor used a urine

rather than a blood sample. Urine samples are

notoriously unreliable for measuring lead; blood
samples (which the others used) are the gold

standard.10 The chelating doctor had not used

junk science; there are good research data

supporting the techniques he used. Of course, the

research showed the techniques he used were not

the best available. The science was good; the

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 doctor wasn’t. His choice of lead measurement and

his interpretation of the data were faulty—twisted

science.

The psychiatrist who predicted permanent

brain injury fell (or walked) into the same twisted

science position. His diagnosis of lead as the cause

was faulty. Although hallucinations can occur in

cases of acute lead intoxication (intense exposure

over a short time span), they are part of a delirious
state and they disappear when the delirium

subsides.11 Brad never was delirious.

The psychiatrist had described Brad’s

“vegetative” life, and he attributed it to lead

toxicity. There have been several

neuropsychological studies of workers with

documented exposure to toxic lead levels,12 and

while some occupationally exposed workers have

shown deficits, their problems are not global and

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 do not lead to the symptoms Brad showed. The
workers’ compensation insurer sent him to a

neuropsychologist who documented some deficits

in thinking processes. The result? “A link to lead

poisoning can not be conclusively established.”

And even if the causal chain from lead

exposure to psychiatric problems were
established, would the lead be trapped in the brain

permanently and cause Brad’s performance to

deteriorate to Alzheimer levels? “It would,” the

psychiatrist reported “because of the blood-brain

barrier.” More twisted science! There is, indeed,

something called the blood-brain barrier; certain

substances move between blood vessels and brain

tissue only with great difficulty. Lead moves very

slowly both in and out of brain tissue, but it does

move.13 No study has indicated that after removal

from the exposure there will be constant

deterioration, finally leading to an Alzheimer’s-like

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 state.

Interestingly enough, the blood-brain barrier is

sufficiently strong that chelation does not remove

any significant amount of lead from the brain. And

yet, Brad reported that right after the chelation,

his mental symptoms lifted, at least temporarily.

In fact, that was what convinced him lead was the

culprit. There is no way the chelation could have

cleared his brain of whatever lead might have
been there.

That gave me the clue something else was

going on. The neuropsychologist provided some of

the solution. He documented that Brad had a
severe personality problem; he had “strange

beliefs” and was subject to “strange intrusive

thoughts” and hearing people call his name.

Reason enough to interfere with concentration

and make you forget what you are talking about

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 every so often. And my evaluation led me to the
same conclusion. In fact, it turned out that Brad

had been hospitalized on two previous occasions

because of overly severe stress reactions to events

in his life. Only this time he understood his

psychiatric disturbances in terms of a chemical

exposure.

Indeed, I felt Brad’s impairment probably

would be permanent; longstanding personality

problems of the type he had seldom improve

much. But the impairment was not attributable to

industrial toxins.

I don’t know why the company settled the

lawsuit; I can only speculate. The nature of the

evidence can get quite complicated—laboratory

tests, blood-brain barriers, etc. There is always

uncertainty about the outcome when testimony

from experts is conflicting. It may be that the

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 company didn’t want to take the chance of an
adverse opinion from a judge for whom science

was not his long suit. I’ll never know. The details
of settlements are not generally revealed.

Most often the bottom line regarding

permanency of a psychiatric condition depends on

whether the psychiatrist has treated the patient
vigorously. Only then can the expert reasonably

testify that the plaintiff’s condition is permanent.

The medical phrase is “maximum medical

improvement.” This means that all reasonable

remedies have been tried, and while the patient

may have improved, he or she has reached a level

which has remained stable and is unlikely to

improve further.

Henry was a promising student in high school.

He seemed to have not only intelligence but also

that extra bit of energy which made him outgoing

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 and popular. He started college, but he soon got so
involved in extracurricular activities that his

studies took a back seat. College grades were

mediocre—significantly below those earned in

high school. Toward the end of his junior year, he

seemed to run out of steam. His parents agreed he

should take the remainder of the year off to “find

himself.”

What he found was a management training

position in a department store. He applied himself

with enthusiasm, and soon he became an assistant

manager in a branch store. Every so often, his boss

had to rein in his enthusiasm. While some of his

ideas were inventive, not all of them were

practical. But in general, his manager liked him

and predicted a good future for him in the

company.

Then he began to develop sleep problems. At

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 first he attributed his insomnia to overwork. He
decided to take some time off. As depression

began to set in, he consulted his doctor, who put

him on an antidepressant, and shortly he was his

old enthusiastic self again. Over the next several

years, he had recurrent bouts of overenthusiasm

and depression, and his doctor finally referred him

to a psychiatrist who diagnosed him as suffering

from bipolar disorder—excessive highs and lows.

During the ensuing years, Henry had several

depressions and one hospitalization when his

thoughts came so fast and he felt so exuberant he

bought a variety of tools, even though he had no

talent with his hands whatsoever. He started to

use more and more sick leave. Finally, his

psychiatrist said he was unable to go back to work

—permanently. The disability insurer asked me

for a second opinion.

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 I reviewed several years’ worth of the

psychiatrist’s notes. In my opinion, he had tried

everything. He was very supportive, being

available by phone whenever Henry had an

emergency. He explained the illness to Henry and

encouraged him to accept his limitations. He
helped Henry adjust when he could no longer

work. As newer medications were developed, the

psychiatrist prescribed them. He had ordered a

variety of laboratory studies. He seemed to have

left no stone unturned.

When I interviewed Henry, I was struck with

the volume and speed of his speech. He was overly

friendly. Most of the time, his speech was logical,
relevant, and coherent. On a few occasions,

however, he seemed to bounce from subject to

subject. He could catch himself, however, and get

back on course.

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 He filled me in on some historical details.

During some of his depressive episodes he had

suicidal thoughts. Once, he played with a loaded

gun, but then he put it away. The incident scared

him and he got rid of the weapon. In his manic

phases he was prone to go on spending sprees. “I
got stuff I’d never use. I’d store it in the garage. It

got so I had to park my car on the street because

the garage was full of stuff. I never even opened

the boxes. If I wasn’t earning good money, I’d be

bankrupt.”

As his illness progressed, work got harder and

harder. He struggled to get up for work during his

depressed periods. His manager began to
complain about his lateness. During his manic

phases, concentration was very difficult, and

sometimes he was overbearing when dealing with

customers. His performance ratings nose-dived.

This added to his emotional burdens, because “I

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 never used to be even average; I always got great

ratings.”

Henry’s family history was loaded with bipolar

disorder. His mother, sister, and niece all had been

treated for the disorder. An uncle had killed

himself. There was no doubt in my mind. I agreed

with his psychiatrist’s diagnosis. His treatment

was vigorous. The man before me was probably

operating on as good a level as he ever would; he’d
been much worse at times. In my opinion, Henry’s

impairment had reached maximum medical

improvement; for him, he was doing rather well,

considering that he still elevated and sank
intermittently. And even on this level, his speech

and manner precluded gainful employment. What

employer would hire him, knowing that the

chances of relapse—either up or down—were

high? Indeed, according to the records, the

intervals between more significant highs and lows

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 were getting shorter.

Since I evaluated Henry, some newer

medications have come on the market. It is

possible that one of these might have made him

more stable and changed the picture. I hope so. His

psychiatrist has probably already tried them.

However, when evaluating maximum medical

improvement, we can only go with the treatments

which are known at the time we see the person. To
say that maybe new medications will help him

turn the corner sometime in the future is mere

speculation, and speculation has no place in the

courtroom. There is always that hope in every
branch of medicine. Are we therefore to say that

no impairment can be declared permanent—that

permanent disability payments should never be

given? Here comes that term, “reasonable,” again.

It is reasonable to assess the claimant from the

standpoint of what is known at the time. The

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 insurance company agreed and Henry was

awarded permanent disability status.

There are other times when the psychiatrist

fosters the permanence. Forty-six-year-old George

was unloading a truck when he was jarred by a

stabbing pain from his lower back down through

his right leg. The MRI revealed that a lumbar disk

was wrenched out of place and was irritating a

nerve root. His orthopedist tried conservative
treatment, but the pain continued unabated.

Finally he had surgery. Although the doctor

warned him that surgery is not always successful

in this type of case, George “knew” this would be
the cure he was waiting for.

Unfortunately, it wasn’t. Even though he

improved to some degree, there wasn’t much he

could do without considerable discomfort. Sitting

in a chair for a long stretch of time brought on the

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 pain. So did standing, walking, and even lying in
bed. His sleep was disrupted. According to his

orthopedist, although the pain complaints were

somewhat in excess of what would be expected

from the examination, there was no doubt the

hoped-for results did not materialize. Even with

various analgesics, George’s movements were

limited. The orthopedist rated his impairment at

10 percent, and he said the condition was unlikely

to improve.

The news devastated George. The impairment

struck at the root of his self-esteem as a man. The

pain was bad enough, but now he could no longer

support his family. Why, he couldn’t even sit long

enough to watch his youngest son play football.

Working on the car he was restoring was out of

the question. And the many things he used to do

around the house were going undone.

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 Gradually, he became irritable. He hated

himself for his growing temper, but he wasn’t able

to stop barking at his family. Often, he just

wandered around the living room, now sitting,

now lying on the couch. The television was on, but

he couldn’t pay attention to it. Sleep became even
worse; on top of the pain, there were the worries,

and sometimes there seemed to be just emptiness.

He found himself thinking life was no longer worth

living. When he told his wife about these thoughts,

she prodded him into seeing his family doctor.

Dr. Jenkins said he was depressed and he

prescribed an antidepressant—one of the newer

class of such medications. George reported slight
improvement. Just about this time, a former

coworker killed himself. This man had been

diagnosed with inoperable cancer and he must

have decided the pain and incapacity wasn’t worth

it. As George told me later, “I got to thinking. That

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 could be me. The suicide thoughts started coming

back, and I had to fight them off.” His depression

nose-dived, and his family doctor sent him to a

psychiatrist.

Dr. Blackwell raised George’s medication up a

notch, and George’s suicidal thoughts abated.

However, the depression continued. After eighteen

months of no further progress, Dr. Blackwell said

George was 70 percent psychiatrically impaired
and he had reached maximum medical

improvement. The impairment was permanent.

The employer’s attorney referred him to me for an

independent medical evaluation of his psychiatric
status.

I agreed George was depressed, but not 70

percent worth. It was, however, a significant

depression. But was it permanent? I reviewed Dr.

Blackwell’s office records and his deposition. What

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 leaped out at me was the fact that while he had
raised the medication when George first saw him,

there was no further adjustment of the dose. Nor

was there any attempt to use a different

antidepressant or to use other medications which

can augment the power of antidepressants. There

was an array of treatment options available, but

not used. It was obviously premature to declare

George’s impairment permanent.

Why did Dr. Blackwell not treat George

vigorously? He had full psychiatric training.

Certainly he knew of alternative courses of

treatment. I can only speculate. I have reviewed

more than a few cases where the patient is kept on

the same dose of the same medication and

ultimately is declared permanently impaired. Do

the doctors not keep abreast of the literature? Or

are they burned out—seeing too many patients for

too short a time? This possibly was the case with

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 Dr. Blackwell. When I reviewed his office notes, I

realized that during every visit it was the nurse

who saw the patient and wrote the note and the
medication recommendation. The doctor

countersigned the note and (presumably) wrote

the prescription. George told me the nurse spent

fifteen minutes with him and the doctor came in

for about five. Although the time spent by each

party varies, this type of practice has become
relatively commonplace in recent years—in part a

reaction to managed care (really managed cost)

which regulates how much the doctor will get paid

for each type of service. To compensate for

managed care and the lowered per-patient

income, doctors are increasingly packing patients

in—managing time rather than taking time. And

what is worse, sometimes contemporary medical

practice drives an emotional wedge between

doctor and patient which allows doctors to settle

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 for second-best treatment. They may not take the

time to know their patients as people, to do a bit of

psychotherapy, to get some human feedback from

their patients which might inspire them to think a

little harder about alternative medications.

Of course, my forensic practice is skewed

toward seeing records of the failures—these are

the people suing for permanent impairment. On

the other hand, I have reviewed the medical
records of several courses of treatment where the

psychiatrists have gone to extraordinary lengths

to help their patients with resistant illnesses.

However, quite a few studies indicate that a

substantial number of psychiatrists, as well as
other physicians, do not treat resistant

depressions vigorously.14 It is a problem in our

profession.

Notes

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 1 Meltzer HY and Ranjan R: Recent advances in the
pharmacology of schizophrenia. Acta Psychiat. Scand.
Supp. 384: 95-101,1995

2 Bowden Cl: Predictors of response to divalproex and lithium.

Journ. Clin. Psychiatry 56: 25-30,1995

3 Trestmen RL et al.: Treatment of personality disorders. (In)

Schatzberg AF and Nemeroff CB (eds.): The American
Psychiatric Press textbook of psychopharmacology (2nd
ed.). Washington: American Psychiatric Press, 1998, pp.
901-916

4 Hollander E et al.: Anxiety disorders. (In) Hales RE et al.: The

American Psychiatric Press textbook of psychiatry (3d.
ed.). Washington: American Psychiatric Press, 1999, pp.
567-633

5 American Medical Association: Guides to the evaluation of

permanent impairment (4th ed.). Chicago: American
Medical Association, 1994

6 Ibid., p. 315

7 Ibid., p. 296

8 O’Rourke TJ et al.: The Galway study of panic disorder III.

Brit. Journ. Psychiatry 168: 462-468,1996

9 Masci O et al.: Biological monitoring. (In) Castilino N et al.

(eds.): Inorganic lead exposure. Boca Raton, Fla.: Lewis
Publishers, 1995, pp. 215-256

10 Ibid.

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 11 Lishman WA: Organic psychiatry: The psychological
consequences of cerebral disorder (3rd ed.). Oxford,
England: Blackwell Science LTD, 1998, p. 631

12 Castilino N et al.: The neurological toxicity of lead. (In)

Castilino N et al. (eds.): Inorganic lead exposure. Boca
Raton, Fla.: Lewis Publishers, 1995, pp. 297-337

13 Keller CA and Doherty RA: Distribution and excretion of

lead in young and adult female mice. Environ. Research
21: 217-228,1980

14 Keller MB: Depression: Under recognition and under

treatment by psychiatrists and other heath care
professionals. Arch. Internal Med. ISO. 946-948,1990

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 Chapter 6

Long-Distance Evaluations
George III,1 King of England from 1760 to

1820, is probably best known in the United States

as the monarch who treated the colonies unfairly

and whose armies lost the American revolution.

Far from a despised tyrant in England, however,

he was very popular with the common folk. But

everyone agreed he had bouts of madness.

Although his physicians at the time did their best

to diagnose and treat him, they were perplexed.

Because the illness came and went, some figured

he had a feverish delirium, but there was no

apparent fever. Others said the madness resulted

from disturbances of the bodily humors.2 It was a

mystery.

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 If the royal physicians had to testify in court,

there would have been a battle of the experts, each

testifying to a reasonable degree of medical

certainty. And their testimony would have passed

the Frye test, because these doctors reflected the

“wisdom” of their colleagues. Of course, the king
wasn’t tried in a present-day court, and it would

be years before the Frye standard was articulated,

and anyhow, it wasn’t articulated in England. But

however baffled the physicians were, at least they

had the opportunity to examine the patient.

The mystery lingered for well over a hundred

years. Medical knowledge advanced, and now

modern doctors were interested in the mad king’s
illness. Since he was long dead, examining him

personally was not possible.

Now a question arises: Can you make a

diagnosis about someone whom you have never

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 examined personally? Or whom you have not seen
when he or she was actually suffering from the

illness? Can you come to a conclusion to a

reasonable degree of medical certainty? Can you

do an evaluation at a distance in space or in time?

Let us follow the story of George III and see

where it leads us. In 1941, Guttmacher studied the
historical documents which recorded the king’s

illness.3 He decided the king suffered from manic-

depressive illness—a disease unknown back in

King George’s time. People with manic-depressive

illness—currently called bipolar disorder—can be

plagued with bouts of psychotic behavior, and

they don’t have fevers. (The idea of shifting bodily

humors had long since gone out of style.)

The etiology of manic-depressive illness was

not well worked out in 1941. However, this was a

period of intense psychiatric interest in

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 psychoanalysis. Two of its theoretical concepts in
vogue when Guttmacher wrote his book are of

interest to us: (1) Personality is formed by one’s

earlier experiences, and (2) stressful events in

one’s life can stir up unconscious conflicts and

even cause “decompensation” into psychotic

states. On the basis of his research, Guttmacher

put together an evaluation: The vulnerability of

the monarch to bouts of manic-depressive

psychosis resulted from an unstable personality

because of his upbringing,4 and the stresses of his

reign together with family problems initiated the

periods of his decompensation.5 Of course,

Guttmacher never examined his subject (the king

had been dead for over 100 years), but he relied

on records and the prevalent psychiatric

understanding. If Guttmacher was testifying, he

would have met the Frye standard. But his

formulations were not based on tested theories,

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 and his leap from actual data to formulations was

speculation. As I discussed in Chapter 2,

speculation has no place in the courtroom.

In the late 1960s MacAlpine and Hunter, armed

with newer medical knowledge, investigated King

George’s sickness. They published an account of

their remarkable medical sleuthing in 1969, and

they concluded King George suffered, not from

manic-depressive illness, but from porphyria.6

Porphyria is a disease caused by an excess of

porphyrin, a purplish pigment which is found in

everyone’s cells. The body usually can strike a

balance between its creation and excretion. But in

porphyria, the balance goes haywire, resulting in

too much porphyrin circulating in the

bloodstream. Periodic toxicity can produce a

variety of neurological symptoms, including

weakness, pain, gastrointestinal disturbances, and

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 bouts of irrationality when the nerves of the brain
are attacked.

Supported by countless documents, the result

of exhaustive research, MacAlpine and Hunter

showed that all the reported symptoms of the king

fit what attacks of porphyria can do. Of course

there were no laboratory reports; there were no
laboratories in King George’s time, and even if

there were, no one would have known what to

look for. But a tell-tale “laboratory” bit of evidence

was reported back then: during the attacks, King

George’s urine was purple—stained with

porphyrins.

MacAlpine and Hunter were cautious. They

wrote, “A retrospective diagnosis can hardly ever

be made with the same confidence as one in a

living patient.”7 But they unearthed more
evidence. Porphyria is a hereditary disease.

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 Fortunately, descendants of royalty are generally
easier to locate than those of the general public,

even after 140 years. They found four living

descendants with porphyria. Then they went

backwards through whatever documents they

could find, and they discovered evidence of several

ancestors who had clinical signs of porphyria. The

documents included some which even recorded

the discolored urine. They traced the illness as far

back as Mary, Queen of Scots, who lived in the

1500s.8

In my opinion, if they had to testify in court

about George III, they would have met the Daubert

standard discussed in Chapter 2—conclusions

based on evidence which rests on the scientific

standards of testability, peer reviewed in

professional journals, and widely accepted in the

medical community. And they did all that without

examining the patient—long-distance evaluation.

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 Of course, MacAlpine and Hunter were not

testifying in court; they were writing a historical

treatise. Just how certain one must be about

diagnosis depends to a great extent on the use to

which the evaluation is going to be put, and on

what the consequences of the diagnosis are likely
to be. In his book about the psychology of Lincoln’s

depressive moods, Burlingame, a historian, put it

very well when he offered in his book “what I hope

are informed guesses about my subject’s inner

life.”9 Thus he modestly told us the degree of

certainty of his formulations—they were informed

guesses. And what was his purpose? Burlingame

said it was to make Lincoln “more human and

understandable.”10 And the consequences?

Historians might modify their view of the

president, or at least scholarly discussion would

be stimulated. Quite appropriate for the historical

arena.

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 Contrast this with the legal arena which, in my

view, requires a higher degree of certainty

because the aim is decision-making, and the

consequences are more pressing. People may gain

or lose substantial sums of money, they may lose

custody of their children, they may be sent to a
mental hospital or prison. They may even be put to

death.

Guttmacher and MacAlpine and Hunter were

operating in the historical arena, although they

might have prevailed in the courts of their time.

MacAlpine and Hunter might even have prevailed

in today’s federal courts. But, as they warn, long-

distance evaluation is second best.

Many critics of forensic uses of psychiatry feel

that long-distance evaluation may not even reach

the level of second best. How can you tell about

the mental functioning of people you never met, or

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 those you didn’t interview months or years ago
when they did something that brought them to

court? Well, the story of King George’s porphyria

shows that you can, to a reasonable degree of

medical certainty, do just that. Of course, we

psychiatrists don’t have the time or resources to

do such a thorough job as MacAlpine and Hunter.

On the other hand, sometimes we do have

sufficient data, resting on good science, to make a

reasonable long-distance diagnosis.

The most common situation is that of a

criminal defendant pleading he or she was legally

insane at the time the offense was committed. The

psychiatric witness renders an opinion about

whether the illegal behavior is caused by, or is a

feature of, mental illness. Ultimately, the jury

decides if it believes the behavior is tied to a

mental illness. It can be a puzzling decision,

depending in great part on what one considers is

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 mental illness and what one thinks is not mental
illness.11 I shall discuss this problem further in

Chapter 14.

If the defendant prevails, he or she is sent to a

hospital, not to prison. If you don’t agree with the

decision, don’t blame the psychiatrist. Blame the

judge or jury; they are the ones who decided the

defendant was insane. Of course, if, in your

opinion, the psychiatrist was an out-and-out
prostitute, blame the doctor too. And if you’re still

upset, blame the prosecutor who didn’t get a

consultation from a psychiatrist who plays it

straight and who might have rebutted the

prostitute. However, if you feel the whole system

just coddles killers, blame the legislators. They set

up the rules, the psychiatrist has followed their

guidelines. I must tell you, though, that you might

not get very far, The insanity defense has

withstood the test of time; it has survived since

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 the thirteenth century.12

“Insanity,” then, is a legal term, not a medical

one. The laws of the various states give guidelines

for the determination of insanity. They are not a

list of diagnoses; they are descriptions of the

defendant’s state of mind at the time of the

offense. To help the judge or jury decide, the

psychiatrist may be asked to do a long-distance

evaluation: See the defendant today and obtain

whatever records you can about his or her mental

state way back when, and come up with an

opinion about his or her mental state way back

when. Kind of like interviewing King George long

after one of his bouts and getting reports of his

behavior when the bouts occurred.

Steve shot his parents while they were

sleeping. Some months later, Jim Colquitt, the

public defender, asked me to evaluate him. The

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 guidelines for legal insanity in that state were
patterned after a well-known English case which

was decided in 1843—M’Naughten’s Case.13

Essentially, Steve could be adjudged insane if he

could not understand the nature of what he was

doing and if he could not understand that it was

wrong. And a doctor could testify about the

defendant’s mental state at the time even though

the evaluation was made at a much later date.14

The details of the case were scanty because no

one else was in the house at the time. Steve’s rifle,

fingerprints and all, was found in the yard in plain

view. His car was gone. Five days later, Steve

returned and he was sitting calmly on the porch,

as if nothing had happened.

Some testimony from neighbors indicated they

had often seen him roaming the streets aimlessly

late at night. He was known to talk to himself. He

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 had no work record to speak of. According to his
uncle, he’d gone downhill since his senior year in

high school. There were a few shortlived attempts

to work at rather menial jobs, but they quickly

ended in failure. Steve mostly just sat around the

house, talking strangely. He was considered weird,

but harmless.

I saw Steve through a grated window in the

county jail. He was a lanky young man with sallow

skin and strands of long blond hair streaming over

his eyes. His arms seemed to have no muscles at

all, and his overly long fingers with their ragged

nails clutched his side of the counter like claws.

When I asked if he knew who his lawyer was, he

pulled out a card and read Mr. Colquitt’s name to

me. There was no eye contact at all. When I asked

what he was charged with, he answered, “My

parents had a strict type of complexion. I am in the

gangrene ward. I was doused here last Tuesday

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 and manipulated through military police arrest.

Intelligence, military intelligence, U. S. army video

network and surveillance, you know.”

He let out a brief incongruous laugh and stifled

it by putting his hand over his mouth. “I have got

several daughters. I had a son. He was killed by a

Mafia attack up here. We were shot again today by

Mafia sniper attack. I am a bodyguard for the CIA,

molted around the specimen tanks and the
syringtha, you know. I was given bulletproofing

for all this moltenence. I was doused with

gangrene sabotage.”

Steve suddenly turned and muttered

something to the wall. After that, he said nothing

else to me.

His sentences were not logical, nor did the

parts always seem to hang together. He invented

words, often by merging parts of other words

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 together. His facial expression, flat tone of voice,
and short outbursts of bizarre laughter had no

clear relation to what he was talking about. He

obviously viewed the world as a dangerous place

with himself as a target. His view of the world was

bizarre.

When I presented the results of this evaluation

in court, the prosecutor raised the question of long

distance. Citing the amount of time between the

shooting and my evaluation, he asked how I could

know that what I saw wasn’t a mental breakdown

precipitated by his realization that he had actually

killed his parents. Couldn’t Steve’s mental

disturbance be a reaction to the shooting rather

than a causal factor before the shooting?

I told the jury Steve was suffering from

disorganized schizophrenia. The florid nature of

his symptoms do not suddenly appear full-

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 blown,15 and the reports of those who knew him
testified to a long-standing illness. Other facts,

such as leaving a gun with his fingerprints on it in

plain view, were consistent with the mental state

of disorganization, not the mental state of one who

was trying to cover up a crime he knew was

wrong. And the nature of his delusions showed his

tendency to misunderstand the real world.

After I left the courthouse, Steve’s attorney put

him on the stand. It didn’t take the jury long to find

him not guilty by reason of insanity. With a

witness like Steve, what did they need an expert

for? They probably didn’t. Giving the condition a

diagnostic name may have been helpful to the jury,

but they probably decided the case on Steve’s

bizarre presentation. Which they really shouldn’t

do, because what they were seeing was present

tense.

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 The prosecutor’s question to me was an

appropriate one. He was saying that even if Steve

were crazy now, how could I know he was crazy

back then? What I could supply as an expert was

the information about the course of the illness

leading up to his current presentation, and the
relationship of the reports of others who knew

him back then to Steve’s present state. However, I

don’t think that was what tipped the balance in the

mind of the jury.

The last time I checked (a few years ago), I

learned that Steve was still in the hospital, and he

had made little progress. Perhaps some of the

newer medications are helping him, and he could
be restored to sanity and released.

Of course, Steve’s case was relatively

uncomplicated because not much time had

elapsed between the offense and my evaluation.

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 On the other end of the spectrum, the district
attorney prosecuting Donald’s case waited a

couple of years before asking me to evaluate him.

He started his phone call by saying that there was

a “strange situation.” He told me Donald had shot a

motel clerk late at night. The defense attorney

called a psychiatrist who hospitalized him. That

doctor said Donald was insane at the time of the

offense because he had “some kind of blood

disease.”

When I received Dr. Lampier’s records, I

realized the “blood disease” was hypoglycemia—

too low a level of sugar in the blood. The routine

blood screen test taken before breakfast on the

morning after admission to the hospital showed a

blood sugar level of 45 milligrams. The usual

range is 70-120 milligrams. According to Dr.

Lampier, the low blood sugar caused Donald to be

confused and prevented him from acting in a

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 rational manner on the night of the offense.

Technically, hypoglycemia isn’t a blood

disease. People with this condition have difficulty

regulating the amount of sugar in their blood. The

best-known problem of this dysregulation is

diabetes, where the blood carries too much sugar.

In hypoglycemia, the sugar level is too low.

Because the brain gets its nourishment from the

sugar carried to it by the blood, hypoglycemia can
cause anxiety, irritability, weakness, poor

concentration, and in some cases, even psychotic

symptoms. Was that what happened to Donald

back then?

I checked the nursing notes in the hospital

records. On the morning of the blood test, Donald

had been up since 6:30 A.M. The blood was drawn

at 7:30. The notes revealed a pleasant young man

who slept well. He was cheerful and cooperative

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 and spent his time socializing with other patients
and watching television. Nothing unusual about

his behavior was documented. Apparently the low

blood sugar had not affected his behavior to any

discernible degree. I wasn’t surprised. Many

people sometimes have blood sugar levels as low

as 45 without having any symptoms of

hypoglycemia.

Subsequent blood samples tested during this

hospitalization showed levels of sugar within the

normal range. Of course, this did not rule out the

possibility that on the occasion of the shooting his

sugar was below normal.

When I interviewed Donald in the jail, he

talked easily. He told me all about that evening,

even though I had informed him I was consulting

with the prosecutor. His account of the events fit

closely with what he had confessed to the police

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 after he was arrested. After an evening of drinking
and gambling at a club (where he had lost most of

his money), he and a friend drove around until

they spotted this isolated motel. Donald admitted

to shooting the clerk and taking the money from

the register.

I asked him to give me more details about the

evening. He’d had pork chops and potatoes, a full

dinner at about 6:30 P.M. He’d arrived at the club

“about 8:30 or 9:00, maybe.” Between 9:00 and

11:00 he’d imbibed five “tornadoes”—tall sweet

alcoholic beverages. He didn’t recall nibbling on

munchies. He’d lost most of his money in the back

room at a poker game.

Donald and his friend drove around for about

an hour. They stopped at an all-night convenience

store and ate candy bars. Then they found the

motel, and Donald decided to recoup his losses. He

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 was home by 1:30 A.M.

I took him back to the motel. “You went in, and

then what?”

“So I go in—I look around. The light’s out and

there ain’t no one there. I push the buzzer on the

counter, and this old fart comes out and turns on

the light.”

“What was he wearing?”

Donald thought a moment. “He was in his

pajamas—and a red bathrobe.”

“What color pajamas?”

“Let’s see. Oh yeah. I remember ’cause the tops

were green. I could see the sleeves sticking out of

the bathrobe. And the bottoms were blue. That’s

how I remember; they didn’t match.”

I asked him to describe the man.

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 “I don’t know. An old guy with a gray beard

and sideburns. Kind of thin and bent over. So I

point the gun at him and ask him for the money.”

“What did he do?”

“That’s the goddamn point. The bastard opens

the cash drawer and says, ‘Don’t hurt me, Sonny.’

Sonny! The son of a bitch called me ‘Sonny,’ like I

was some little kid or something. I guess I lost it. I

blew him away.”

Donald’s memory of the details of the motel

encounter did not show any confusion or mental

clouding. He was even able to find the buzzer in

the dark. In addition there was only one recorded

low blood sugar in the hospital, and he had not

behaved in an unusual manner at the time it was

drawn.

However, that low reading was a fasting blood

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 sugar level, drawn several hours after his previous

meal. There is another kind of hypoglycemia-

reactive hypoglycemia. It works on a different

mechanism from fasting hypoglycemia. Some

people get reactive hypoglycemia after they eat or

drink. This may even happen after sweet alcoholic

drinks. The food or drink raises the blood sugar

(as it does in all of us) and the body moves the

sugar out of the bloodstream to reestablish normal

levels. In reactive hypoglycemia, too much is
removed, resulting in low blood sugar.

Reactive hypoglycemia comes on about three

or four hours after drinking sweet alcoholic

drinks.16 Donald’s time table was wrong for that.

Last drink about 11:00 P.M., home by 1:30, and the

motel being three-quarters of an hour away from
his home. The cure for reactive hypoglycemia is to

eat something sweet to put more sugar in the

blood. Just like Donald did with the candy.

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 Therefore, the linkage of Donald’s illegal activity

with hypoglycemia could not be supported either

by his memory of the situation or by the biological

dynamics of blood sugar.

Even though Dr. Lampier conducted a

relatively short-distance evaluation, he was, at

best, tripped up by twisted science—incorrect

interpretation of the data. Or, it may have been an

intentional distortion on his part. My longer
distance evaluation was able to set the record

straight. Donald was found guilty and sentenced to

life in prison.

Not all long-distance evaluations have the

benefit of laboratory tests with concurrent

professional behavioral observations so close to

the time of the offense. Nor do they always have

the benefit of the defendant’s memories of such

factual details which can preclude a befuddled

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 mind at the time of the event. Still, there may be
some observations psychiatrists can make to help

the judge or jury decide whether the defendant

was legally insane at the time of the offense.

Quite some time ago I received a call from an

attorney in a distant state. He was representing a

trucker who had shot his wife. The defendant had
been driving all night, and the lawyer thought the

lack of sleep might have affected his mental state.

Further, his marriage was bad, and in his sleepy

condition, he must have acted impulsively. The

defendant shot his wife right in broad daylight in a

bank parking lot with everyone standing around.

Then he fired a couple more shots into the

building right next to the door. The court-

appointed psychiatrist had ruled out legal insanity,

but his attorney wanted another opinion.

He explained why he called me. His client, Matt,

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 didn’t want to plead insanity. Since Matt originally
came from Tennessee, the attorney felt a

Tennessee doctor might have better rapport with

him and could persuade him that a mental

problem was the only defense he might have. The

lawyer had gotten my name from a Tennessee

colleague.

Matt told me his story. To say he had a bad

marriage was an understatement. His wife’s first

recorded infidelity occurred two years after the

marriage, twenty years ago. There were several

further occasions when she went out with other

men; apparently this was well-known around

town. Not that Matt was a paragon of virtue, but

almost. He tearfully told me had once picked up a

girl while out on the road. He still felt guilty about

it, thinking he had violated one of the tenets of his

family back in Tennessee.

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 As the years went on, the marriage

deteriorated. Matt’s wife started drinking and

using “tranquilizers.” When he was out on the

road, he’d call home late at night, but no one was

home. She stopped having sexual relations with

him. There was even a question of whether she
was having an affair with another woman. She left

him and went back to Tennessee on several

occasions. When he pleaded with her to return

and try to repair the marriage, she came back, but

her behavior didn’t change. He took on more work

to try to buy her love with money. Finally, she said

she had been staying with him only for financial

support, and she moved out and went to stay with

a friend. While he was away, she sold most of the

furniture in the house. He still tried to win her

back. Despite this record he told me, “For twenty

years, I had the best woman there ever was alive.”

Matt’s story about the marriage coincided with

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 statements made by three of his friends which the

attorney had sent me. None of them could

understand why he still wanted her back. Two of

them had seen him the evening before the

incident, and he seemed to be very upset and

keyed up.

Matt told me that at the time of the offense, he

had been driving at least three days and two

nights, with precious little sleep. He got home to
his empty house the night before the incident, but

he was so keyed up, he was unable to sleep. That’s

when I asked him about taking speed. Many truck

drivers use that drug to keep awake when they are
on long trips.

He admitted that he frequently used speed on

long trips. As he became more tolerant of the drug,

he used higher doses. “Funny things would happen

sometimes, like when I was on the road at night, I

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 thought she was in the seat next to me, but when I
started to put my arm around her, she wasn’t

there.” That happened the night before the

incident, too. “And she wasn’t even in the house. I

thought I saw her sitting in the kitchen, and on the

couch, but when I reached out to put my arm

around her, she was gone. I couldn’t sleep. I got up

at 5 A.M. and tried to pay some bills, but I couldn’t

keep my mind on it. I kept writing down the wrong

figures or in the wrong places. I took a few more

pills. I just had to get her to talk to me.”

Since he had no appetite for breakfast, he just

got in his car and drove around aimlessly until the

bank where she worked opened. He took another

pill to stay alert. “I saw her going to the door, but it

was all fuzzy, like a fuzzy TV screen. Like there

were colored dots floating around her, and then

there were like two of her, maybe her girlfriend,

but she looked exactly like my wife. I thought it

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 was her girlfriend, the one who ruined my

marriage. I ran to my pickup and got the gun and

ran up and shot the girlfriend, but she sort of

moved so I shot her again, but that was my wife.”

He started to weep. “I destroyed the thing that

meant the most to me. I still think we could have

worked it out.”

After the shooting, he drove to his best friend’s

house. When the police came, he asked them to
shoot him. “I’m not crazy, Doc, am I? No one’s ever

been crazy in my family. I mean, my family’s a

good family. We ain’t got no insanity.” I assured

him he wasn’t crazy, but his mind was messed up
at the time—temporarily.

I called the attorney and asked him to arrange

a meeting with the best friend. The meeting took

place later that day in the lawyer’s conference

room. The friend confirmed the details of the bad

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 marriage. He also knew Matt was taking increasing
doses of speed—amphetamines.

The story fit the description of an

amphetamine reaction—on top of sleep

deprivation. What he described were illusions—

misperceptions of the stimuli in the environment

which could be corrected when he looked further.
Not quite hallucinations which come on without

the external stimulus. Some of the misperceptions

were linked to his concerns about his wife. As I

learned later, the woman was entering the bank

alone; there was no other woman near her. This

was not a drug psychosis (as described in Chapter

1); this was amphetamine intoxication with

perceptual disturbances as described by Bowers

and Freedman.17 Sometimes, but not always, this

disturbance may herald the onset of a true

amphetamine psychosis. Unfortunately, there was

no one to monitor his pulse, check his eyes, or

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 document other physiological changes associated

with this type of intoxication. And no one screened

him for the existence of drugs in his body.

Nonetheless, I felt the whole story was consistent

with a diagnosis of amphetamine intoxication to a

reasonable degree of medical certainty.

I gave the attorney a list of things I wanted if it

were possible to get them: the log book of his last

trip to verify the hours and distances he drove, the
check book to verify the errors, the results of the

court-appointed psychiatrist’s evaluation, and a

few other items which I felt would further confirm

the diagnosis. His secretary gave me the
psychiatrist’s report and said she’d try to get the

other material.

The information in the psychiatrist’s report

reflected that which I obtained, including the use

of amphetamines. He concluded Matt did not

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 present the symptoms which might meet the
guidelines for legal insanity. I agreed with that

conclusion, but it did not go far enough. I felt that,

because of the intoxication, Matt’s judgment was

impaired and he could not premeditate (plan

ahead in a sound manner) or deliberate (think

about the act and its consequences) in a

reasonable manner. Over 100 years ago, the

Supreme Court handed down a decision which

affected those states whose laws allowed for

different degrees of murder, depending on the

defendant’s state of mind at the time. If first-

degree murder required the ability to premeditate

and deliberate, the jury must consider the effect of

intoxication, even if the substance used was

voluntary.18

To meet the requirements for conviction of a

first degree murder charge, Matt must have had

the capacity to premeditate and deliberate. If the

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 jury agreed that his mental state was so clouded

by amphetamines, Matt could be found guilty of

second-degree murder. He would not be sent to a

mental hospital, but at least he would have been

given a lesser prison sentence. If the jury

disagreed, he’d get life.

Unfortunately, I never had a chance to talk

with the attorney about my findings. When I got

back to Tennessee, I called his office several times.
The receptionist said he’d return the call, but he

never did. I told her I was reluctant to testify

without talking to the attorney first. The

receptionist promised that the lawyer would meet
me at the hotel when I went back for the trial, but

of course he never showed up.

The next morning I went to the lawyer’s office

and was told the trial had started and the attorney

would come for me when it was my turn to testify.

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 I wrote down ten questions for him to ask. These
would allow me to establish the amphetamine

intoxication and sleep deprivation. The last

question would tie this condition in to the

shooting; the effects of this condition, in my

opinion, hampered Matt’s ability to premeditate or

deliberate at the time of the offense.

The attorney grabbed my pad and we went

into court. He asked the first nine questions and I

felt the testimony was going well. However, at that

point he rested; he did not ask the tenth and

crucial question. The prosecutor caught on

immediately and never even bothered to cross

examine me. Matt’s lawyer had only demonstrated

a mental condition; he had not tied it into the legal

issue at hand. Matt was sentenced to life in prison.

You may be appalled at the idea that if a person

kills somebody because of the influence of an

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 illegal drug he or she took voluntarily, the
assailant is entitled to a lighter sentence. Once

again, don’t complain about the psychiatrist; talk

to your legislator who makes the guidelines.

As psychiatrists, we are interested in all

aspects of human behavior. What makes a man

like Matt endure the actions of his ex-wife and still
claim that throughout the marriage he “had the

best woman there ever was alive”? This type of

thinking is not all that uncommon. Glenn was

charged with rape, sodomy, and assault with a

deadly weapon. The victim was his wife. His

attorney asked my opinion regarding his mental

state at the time of the offense, many months

previously.

Like Matt, he had tried again and again to

repair a doomed marriage. Like Matt, he was

repeatedly unsuccessful. And like Matt, he

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 idealized his wife—put her on a pedestal.
Although she had been married before, “She was a

virgin in my eyes. She was as pure as anyone.”

People like Glenn and Matt have a strong need to

put their wife’s negative traits out of their mind,

and the anger is often buried, waiting to erupt.19

Although others had informed Glenn his wife was

running around, he felt very certain she wasn’t,

“because I trusted her.”

She filed for the divorce, and after it was final,

Glenn became aware that she was seeing another

man. “So soon after the divorce, and she goes to

bed with him. Just like a whore!” The anger broke

through. Before, she was entirely good; now she

was entirely bad. He decided to show her—to treat

her like the whore he felt she was. Using his old
key, he entered the house and waited for her. He

threatened her with a gun and forced her to have

sex with him.

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 My psychoanalytic training helped me

formulate what kind of character problems Glenn

brought to the marriage and to the encounter that

evening. But there is a difference between

psychotherapy and forensic psychiatry. The

psychoanalytic formulation is a hypothesis, or a
guide of what to look for as therapy proceeds. The

therapist doesn’t come right out and state the

formulation to the patient. The patient must find

out the details by him or herself. Often, as therapy

proceeds, the formulation must be expanded or

revised. The therapist helps the patient come to

grips with the parts of his or her character which

cause trouble.

As a forensic psychiatrist, I wasn’t working

with the patient. As we discussed in Chapter 2, my

formulation was a speculation and had no place in

testimony. When I testified in Matt’s case, none of

the questions I gave to his lawyer touched on this

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 formulation; it was irrelevant. It was the sleep

deprivation and amphetamine use which clouded

his mind.

But with Glenn, there was no sleep deprivation

or amphetamine. There was only unleashed anger.

He obviously premeditated—waited for his wife.

He was in clear awareness (deliberation) of what

he was doing and why. I told his attorney I could

not be helpful to his case.

Probably the ultimate in long-distance

evaluations are the cases of contested wills. Here,

the target of the evaluation is deceased; we cannot

get his or her story, nor can we assess how the
person is functioning even now, let alone at the

time the will was executed. However, when the

will was signed, the testator (the person leaving

the will) must have been of “sound mind.” In

contrast to “reasonable,” which we discussed in

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 Chapter 2, “sound mind” is described in more
detail. The person executing a will must have a

rough idea of what he or she owns, must know

who are the “natural” heirs (spouse, children, etc.),

and must be aware that he or she is disposing of

the property in a will.20

Can a person suffering from chronic

schizophrenia execute a will? Certainly, if he or

she is lucid enough to fit the three criteria—

especially if delusions don’t distort his or her

understanding of the natural heirs. How about a

person with dementia—deterioration of the

brain’s ability to remember and think? Yes, if the

testator was lucid at the time of the signing. Some

people with mild dementias have better days and

worse days.

These guidelines focus on the testator. There is

often another set of guidelines focusing on people

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 who may have benefited by exerting “undue
influence” on the testator—taking advantage of

the testator’s weakened physical condition or

mental vulnerability. In this situation, the

psychiatrist may be called upon to determine “the

mental condition of the testator as it affects his

ability to withstand influence” at the time of the

execution of the will.21 But even if the testator was

vulnerable, the person left out of the will must

prove the beneficiary actually exerted the undue

influence.

These, then, are the major targets of the

psychiatric evaluation, all examined from the

“distance” of time, with no chance to meet the

testator. This is what I faced in the case of the late

Charlie Potter. How could I tell what his state of

mind was on the day he signed the will? I didn’t

have a movie or videotape of the event. What I did

have were statements of people who knew him

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 and a record of some of his hospitalizations.

Charlie had an exemplary career as an

executive in a large firm. He was also considered

an outstanding member of the community—active

in his church and community affairs, well-

respected for his gentlemanly manners. However,

according to statements by his fellow attorneys, he

started to go downhill during his 60s and more

particularly after his wife died. He made
inappropriate sexually tinged remarks to the

secretaries, his desk became sloppy, and his work

output was haphazard. His dress was slovenly.

This formerly well-organized man was becoming
unpredictable. At times, he lost his temper over

little things.

Before the Board of Directors could remove

him, Charlie resigned abruptly, without telling his

children. He moved out of the city and bought a

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 small home in the mountains. Four young men
befriended him and suggested ways they could

remodel the house. It grew larger and larger, in an

unplanned manner. The workmanship was

shoddy. They billed him far in excess of what the

construction was worth. He counted them as his

only real friends. If he needed them, he could call

them any time. Sometimes they just dropped in

and sat around, consuming his liquor. He even

invested money in a business they were buying—

essentially, he bought it for them. And this

experienced executive did all this without any

contract! These were the people he left his estate

to; his children got nothing. In fact, he stopped

communicating with them.

The medical records were quite revealing.

Charlie had diabetes and was not regulating his

insulin correctly. On at least two occasions, he was

hospitalized with significantly low blood sugar

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 due to improper use of insulin. On another

occasion, his blood sugar was very high and his

heart was having difficulty pumping out enough

blood. He had difficulty breathing because there

was fluid in his chest. On one occasion he had a

small stroke. Despite the fact that he was confused

from time to time during this hospitalization, the

doctor wrote that he was mentally able to handle

his own affairs. This note, for some reason, was
witnessed by one of the friends.

Shortly before Charlie’s final hospitalization,

one of his friends drove him to an attorney’s office,

and they instructed the lawyer to create a new
will. Two weeks later, another stroke sent Charlie

back into the hospital. On the day after admission,

one of the friends called the attorney and told him

to rush the will up to the hospital for signature.

Charlie signed it, and a nurse recorded that he

knew what he was doing at the time.

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 I could make a diagnosis with a reasonable

degree of medical certainty: organic personality

syndrome. This was the appropriate diagnostic

label at the time; it has since been given another

name. The deteriorating course with its social

inappropriateness, poor judgment, and irascibility
indicated a progressive chipping away of Charlie’s

brain functioning. The probable cause was a

succession of small strokes, smaller than the ones

that had landed him in the hospital.22 It may be

that fluctuations in his blood sugar (sugar is the

nutrient for the brain) contributed; perhaps

further injury was caused by diminished oxygen

levels at times when his breathing was impaired

by heart trouble.

So much for the diagnosis. Capacity to make a

will is not governed by diagnosis, but by the

mental functioning at the time the will is executed.

The nurse’s note that he knew what he was doing

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 could not, in my opinion, be counted on. And

remember the doctor’s note, during a previous

hospitalization, virtually ignoring the fact that

Charlie sometimes got confused and stating he

was mentally competent to handle his affairs. On

the other hand, I had no way of knowing whether

on the day Charlie signed the will he knew how

much property he had, who his natural heirs were,

or that he was disposing of this property. People
with organic personality syndrome can wax and

wane in their understanding.

However, I could testify to the issue of his

vulnerability to undue influence. Charlie’s lack of
judgment was well-documented. His readiness to

build a large and grotesque house and to pay

outrageous bills when his newfound friends

presented them to him attested to his

vulnerability. I could not testify that there was, in

fact, undue influence; that refers to the actions of

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 the friends, not the state of mind of Charlie. It was

the job of the attorney representing the children to

present evidence to support that. It seemed to me

that there were sufficient data to document that

his friends had unduly influenced him—taken

advantage of his mental condition—but that’s not

a psychiatric opinion. However, the jury must have

felt the data weren’t sufficient, because they

upheld the will.

I agree with MacAlpine and Hunter: “A

retrospective diagnosis can hardly ever be made

with the same confidence as one in a living

patient.” But there are some circumstances where
the court needs information which can only be

ferreted out by long-distance evaluations. And if

the conclusions are bolstered by sufficient data,

the psychiatric opinion can be offered with a

reasonable degree of medical certainty.

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 Notes
1 All names and incidents in this case discussion are accurate
as documented in the references.

2 MacAlpine I and Hunter R: George III and the mad business.

New York: Pantheon Books, 1969, pp. 98-107

3 Guttmacher MS: America’s last king: An interpretation of the

madness of George. New York: Charles Scribner’s Sons,
1941

4 Ibid., p. 26

5 Ibid., pp. 258-259

6 MacAlpine: George III, pp. 172-175

7 Ibid., p. 195

8 Ibid., pp. 210-212

9 Burlingame M: The inner world of Abraham Lincoln. Urbana

and Chicago: Univ. of Illinois Press, 1994, Introduction, p.
xiii

`0 Ibid., p. xix

11 Slovenko R: Psychiatry and criminal culpability. New York:

John Wiley & Sons, 1995, pp. 119-132

12 Amarillo J: Insanity—guilty but mentally ill—diminished

capacity: An aggregate approach to madness. John
Marshall Journ. Practice and Procedure 12: 351-
382,1979

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 13 M’Naughten’s Case, 8 Eng. Reports 718, 719 (1843)

14 Ibid., p. 721

15 Winokur G et al.: Iowa 500: The clinical and genetic

distinction of hebephrenic and paranoid schizophrenia.
Journ. Nerv. Mental Dis. 759:12-19,1974

16 Service FJ: Hypoglycemic disorders. (In) Wyngarden JB and

Smith LH (eds.): Cecil textbook of medicine (17th ed.).
Philadelphia: W.B. Saunders, 1985, pp. 1341-1347

17 Bowers MB and Freedman DX: “Psychodelic” experiences

in acute psychoses. Arch. Gen. Psychiatry 75: 240-
248,1966

18 Hopt v. People 104 U.S. 631, 634 (1881)

19 Bursten B: Isolated violence to the loved one. Bull. Amer.

Acad. Psychiatry Law 9:116-127,1981

20 McGovern WM et al.: Wills, trusts, and estates. St. Paul,

Minn.: West Publishing Co., 1998, pp. 274-277

21 Matter of the estate of Hogan, 708 P.2d 1018,1020 (1985)

22 Lishman WA: Organic psychiatry: The psychological

consequences of cerebral disorder (3rd ed.). Oxford,
England: Blackwell Science Ltd., 1998, p. 631

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 Chapter 7

Prudent Practitioners and the

Protection Paradox
According to Chapman,1 malpractice suits can

be traced all the way back to a fourteenth-century

horse. In English law prior to that time, you could

sue a surgeon only if he (there were no she-

surgeons) actually intended to harm you. Since

another person’s intentions are very hard to

prove, surgeons were well protected.

Unfortunately, when Agnes of Stratton injured her

hand, her surgeon botched the job, and Agnes lost

the use of her hand altogether. Nobody accused

the surgeon of intending to do such a bad job, but

Agnes got a lawyer and sued anyway. Her lawyer

pointed out to the judge that when a blacksmith

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 injured a horse, even accidentally, the horse owner
could sue. If a smith who injures a horse because

of less than diligent care can be sued, why not a

surgeon who injures a human? The judge agreed,

and thus the groundwork for malpractice suits

was laid. No longer did the standard of proof hinge

on the intentions of the doctor. If, despite the best
of intentions, a doctor failed to be diligent, he

could be sued.

Of course patients who aren’t happy with the

results of their treatment often feel their doctor

didn’t act diligently. Thanks to the wonders of

modern science and the growth of the litigious

society, many people believe there should be a

successful treatment for almost everything. Bad

outcomes must result from bad doctoring. And bad
outcomes can easily trigger a lawsuit. A few

decades ago, there was a joke going around:

Support your local lawyer; send a boy to medical

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 school.

However, a bad outcome doesn’t necessarily

mean the doctor wasn’t diligent. Doctors aren’t

miracle workers. Modern courts have tried to spell

out what diligence means. Doctors are diligent if

their practices conform to the standard of care of

the profession. Like so many definitions in the law,

this one just raises yet another question: How do

you know what the profession’s standard of care
is? Generally, the courts say two things are

needed: Doctors must show they used current

medical knowledge, and they must have taken

advantage of all the tools and facilities available to
them.2 Clearly, the psychiatrist has a role as an

expert witness in this situation. Who better to tell

about the standard of practice in the psychiatric
profession?

Of course, the experts don’t always agree about

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 the standard of practice. When this happens, the
jury of laypersons may sweep away much of the

expert testimony. In a sense, they become the

experts and decide what the doctor should have

done in the particular situation at issue. Influenced

by their own biases—pity for the patient, awe and

respect for doctors, or persuasion by those who

speak most eloquently during the trial, they may

decide on the basis of whether they think the

doctor used good judgment—what the law refers

to as the “prudent practitioner.”

Often, but not always, what conforms to the

standard of care is also prudent.3 However,

neither customary psychiatric care nor prudence

was evident in the case of Jeanette. As she

proceeded through adolescence, she was

becoming increasingly depressed. At the

suggestion of their family physician, her parents

phoned Dr. Tarbow and expressed their concerns.

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 He replied that what she needed was

psychotherapy, and he referred her to Ms. Jordan,

a social worker who worked in his suite of offices.

Ms. Jordan saw her three times a week, but

Jeanette didn’t seem to be making any progress. In

fact, since she was getting more deeply depressed,

Ms. Jordan set up an appointment with Dr.

Tarbow, so he could put Jeanette on medication.

He saw her briefly and agreed she was depressed.
He started her on amoxapine, an antidepressant

widely used at that time. He sent her back to Ms.

Jordan and made no follow-up appointment.

As time went on, Jeanette seemed to develop

certain disturbing “habits”—abrupt and awkward

movements of her neck, her arms, and other parts

of her body. Jeanette’s parents were very

concerned. Self-esteem can be fragile enough in an

adolescent young lady; bizarre movements can be

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 devastating and can aggravate the depression.
Finally, Ms. Jordan felt she could no longer help

Jeanette, and she discussed the case with Dr.

Tarbow. According to the records I reviewed, after

seeing Jeanette he concluded the movements

showed her depression was getting so deep she

was becoming agitated. Since amoxapine was

sometimes used to treat agitated depressions at

that time, all that was needed was to double the

dose. He wrote a new prescription for the patient.

After hanging in for several more weeks, Ms.

Jordan again asked Dr. Tarbow to intervene.

Jeanette’s parents also called the psychiatrist. Dr.

Tarbow told them Jeanette was obviously

becoming psychotic, and neither he nor Ms. Jordan

could treat her. (I found it odd that a psychiatrist

couldn’t treat psychosis.) Dr. Tarbow called Dr.

Gordon to arrange a referral.

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 By this time, the movements had increased

significantly. Dr. Gordon took one look at Jeanette

and diagnosed the problem as a neurological side

effect of the amoxapine. As Dr. Gordon knew (and

Dr. Tarbow should have known), amoxapine is

converted in the body to a chemical which can
sometimes produce these symptoms.4 He stopped

all the medication and sent her to a neurologist.

Unfortunately, the movements continued for a few

years, although with the passage of time and what

treatments were then available, they ultimately

lightened up considerably.

Since neither Dr. Gordon nor the neurologist

were willing to testify—not uncommon among

doctors in a community—I was asked to render an

opinion. I read Dr. Tarbow’s deposition, in which

he said he never noticed the movements. Later,

when confronted with his office notes, he agreed

that he did observe “some bizarre activity.”

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 However, he continued to insist Jeanette was

becoming agitated and needed the additional

medication. And then she became psychotic. What

were the signs of psychosis? In the deposition, he

said she was hallucinating. However, there was no

mention of hallucinations in his office notes.

In my opinion, Dr. Tarbow failed to adhere to

the standard of practice in the profession in two

main ways: Although Jeanette was referred to him
by the family doctor, he failed to examine her;

instead he assumed she needed psychotherapy

and referred her to a social worker. This, in itself,

would not have triggered a lawsuit, because Ms.
Jordan had the good sense to know that she was

out of her depth, and she got a consultation from

Dr. Tarbow. However, once having put Jeanette on

medication, he did not arrange for a follow-up to

check for adequacy of response or possible side

effects. Even when your doctor responds to your

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 night time phone call by saying “Take two aspirins

and call me in the morning,” he or she implicitly

invites a follow-up if things aren’t going well.

The second major deviation from the standard

of practice was the failure to recognize the side

effects. At best, Dr. Tarbow’s testimony about the

movements was garbled. However, Ms. Jordan

testified that she had described the movements to

him when she requested the consultation. Dr.
Tarbow should reasonably have had knowledge

about this side effect of amoxapine. Of all the

antidepressants in use at that time, this drug had

the highest incidence of that kind of side effect.
And even if he did not know (you can’t know

everything about every medication), any time a

new symptom comes up after you start a new

medication, you should think “side effect?” and

look it up. Instead, he doubled the dose, and again

he arranged for no follow-up.

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 Dr. Tarbow neither adhered to the standard of

care nor did he act prudently. In fact, when you

read all the notes and deposition testimony, you

get the feeling he wasn’t particularly interested; he

acted carelessly instead of prudently. His

attorneys probably thought the jury might get the
same feeling, because they persuaded Dr.

Tarbow’s malpractice insurer to settle the case for

a substantial monetary award.

Of all the medical specialties, psychiatry is the

one focused primarily on the complexities of

human behavior. And this is what gets us into the

prediction paradox. We are charged by law to

assess the risk of dangerous behavior—danger to
the patient or to others the patient might harm.

And when we conclude that someone, because of

mental illness, is dangerous, we must protect the

patient or others—usually by hospitalization. If we

don’t act prudently in this regard, we can be the

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 target of a lawsuit.

On the other hand, the tools we have for doing

this grave task are not very good. Research shows

we can’t predict future harm. A press release by

the American Psychiatric Association in 1983

summed it all up: “...psychiatrists have no special

knowledge or ability with which to predict

dangerous behavior. Studies have shown that even

with patients in which there is a history of violent
acts, prediction of future violence will be wrong

for two out of every three patients.”5 Ennis and

Litwak, attorneys, called the process of prediction

“flipping coins,”6 and Steadman, a psychiatrist,
called our predictions “magic.”7 We confine quite a

few people who might never have acted

dangerously (better safe than sorry), and we fail to
confine others who ultimately harm themselves or

others.

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 This shouldn’t surprise anyone. Violent acts

are the result of many factors. People can be

provoked suddenly, family circumstances can take

a turn for the worse, workers can lose their jobs,

etc. Life is unpredictable. And mental illness is not

static; it may wax and wane, even when patients
are on medication—not to mention when they

forget to take the medicine or decide they don’t

need it anymore.

What we do is “predict” on the basis of risk

factors. Statistical data can show what factors are

most frequently found in the backgrounds of

people who actually killed themselves8 or were

violent toward others.9 We operate somewhat like

insurance companies. Their actuarial tables tell

them which types of persons or situations are at
what risk, and they set their rates accordingly. If

you had a traffic accident within the last five years,

your rates may increase or you may find it difficult

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 to insure with a different company. They aren’t

saying you will have, another accident; they are

saying you are more likely to have one.

Since the 1960s scientists have become aware

that cigarette smoking is linked to lung cancer.

That doesn’t mean everyone who smokes will

develop cancer. It does mean that smoking puts

you at greater risk—smoking is a risk factor.

In psychiatry, the standard of care is that with

substantial risk factors, we should consider the

patient dangerous and take steps to insure safety.

And in the law, we are responsible for mishaps on

our turf which are reasonably foreseeable; they
don’t have to be certain.10 Risk factors increase

the foreseeability.

Many people have argued that involuntarily

hospitalizing people or keeping them in hospitals

because they are statistically likely to be

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 dangerous is overkill; in this country we generally
don’t confine people to prevent something that

might happen.11 Why should we make an

exception for those who are mentally ill and likely

to be dangerous? Because the legislators and

courts have decided such an exception is justified.

If you disagree, talk to them about it.

In the eighteenth century, the criteria for

committing someone involuntarily to a mental

hospital in this country were unimportant,
because mental hospitals were almost nonexistent

and mentally ill people were cared for at home or

in the community. Some were put in jail. Others

were driven out of the community. However, as

the population exploded and rural communities

gave way to urban society, these informal methods

of handling those who were mentally disturbed

were no longer viable. By the end of the

nineteenth century, almost every state had at least

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 one public mental hospital. Like the ballpark in

Field of Dreams, “Build it and they will come!” And

come, they did. The hospital population grew

rapidly—often fueled by families having problems

with one of their members. Although the

procedure for hospitalizing could be complicated,

the criteria used for involuntary admission were

quite flexible.12 Even as late as the 1960s all a

doctor had to do was to certify that the patient

was mentally ill and needed inpatient treatment,

and he or she could be involuntarily hospitalized.

If your old Aunt Suzie’s eccentricities were

embarrassing to the family or if your 19-year-old

son wanted to roam the country aimlessly rather

than join the family’s banking business, you could

get a psychiatrist to make a legitimate diagnosis

and sequester her or him in a psychiatric hospital.

Things changed about three decades ago when

the courts decided a mentally ill person should be

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 forced into a hospital only if there was urgent

need—the patient was likely to be dangerous. And

the definition of dangerousness had to be spelled

out.13 Many states adopted these three criteria:

Mentally ill persons could be involuntarily

confined as dangerous if they made a recent threat

or attempt of suicide or violence. Or if they placed

others in reasonable fear that violence would

occur. Or if they were so disturbed they couldn’t
care for their basic needs.

And here is where risk factors come in. If a

histrionic mother yells out, “I’m going to kill

myself!” when her children upset her, or an

alcoholic man says, “I’ll get you!” to an adversary,

we don’t ordinarily commit them. Beyond the legal

threshold, the standard of care requires that

psychiatrists evaluate the likelihood of

dangerousness, and research on risk factors

provides the basis for our evaluation.

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 Such were the rules in effect when Angela

came to Memorial Hospital one evening. She

complained of feeling hopeless; she couldn’t

function, she wasn’t sleeping, and she had lost 20

pounds in the last few weeks because she had no

appetite. She was drinking to excess.

Angela had several sources of stress. Her

marriage was a shambles, and her husband had

gotten custody of their five-year-old son who was
now living with her ex-mother-in-law. Their

younger daughter had died abruptly a few months

earlier. Angela’s job was in jeopardy because of

poor attendance. She was facing a trial for driving

while intoxicated—her third drunk driving
offense.

That evening, after calling her son to say

“Good-bye,” she sat alone in her chair for over an

hour. She toyed with her sleeping medications for

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 a while, but finally she put the bottle down and
decided to come to the hospital.

This was not the first time she’d made serious

suicide gestures. She had been hospitalized in

Memorial’s small psychiatric unit previously. This

time, however, a few hours after admission, she

decided to leave. Her psychiatrist felt discharge
was too risky, and he wrote out a commitment

paper. Since the psychiatric unit was not equipped

to handle committed patients, Angela was

transferred to Willowbrook General, a larger

hospital in the same city.

The Willowbrook emergency room’s doctor

read the report sent over from Memorial. It

detailed what Angela said and did at that facility.

His own report of the emergency room evaluation

indicated Angela told him the same story. The

doctor was prepared to write out the second

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 commitment paper (two were required) when
Angela agreed to come in voluntarily. By the time

Angela reached the psychiatric unit, her chart

contained both reports.

Angela was put under the care of Dr. Morrison,

a psychiatrist on the Willowbrook staff, who saw

her the next morning. She seemed brighter. She
said the whole thing was a misunderstanding;

she’d been drinking and was only playing with the

medicine bottle. She denied having sleep and

appetite problems. Dr. Morrison decided to have

the social worker call Angela’s mother and her ex-

mother-in-law for more information. He also

asked the psychologist to test her. However,

Angela refused permission for the staff to call the

ex-mother-in-law (not a good sign in itself). Her

own mother said she didn’t think Angela was

suicidal.

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 That afternoon, Angela told a nurse that Dr.

Morrison promised to discharge her on the

following day.

The next afternoon, after a session with Angela

and her mother, Dr. Morrison discharged his

patient with a final diagnosis of major depression.

He referred her to a mental health center for a

follow-up appointment. He didn’t prescribe any

medication. A few hours later, Angela took a
massive overdose of sleeping pills and died. Her

mother sued.

Dr. Morrison’s deposition testimony in this

case revealed he was aware Angela’s story

fluctuated and could not be taken at face value. He

also had not received the psychological report. (It

wasn’t written up until a few days later, at which

time it indicated a high probability the patient was

concealing the depth of her depression). This

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 didn’t phase Dr. Morrison. He said he ordered the
tests only to see if the patient would be

cooperative. Quite an expense to see if someone is

cooperative, when you can observe her

cooperation on the unit at no added cost

whatsoever!

At the trial, I testified for the plaintiff. In my

opinion, Dr. Morrison failed to act prudently by

following the standard of care in this situation.

Angela had several risk factors. She had a major

depression and reported significant insomnia,

weight loss and hopelessness, although

subsequently she changed her story. She had three

significant recent losses— her husband and living

son and her daughter. She was abusing alcohol.

She had made a very recent suicide gesture. And

calling her son to say “good-bye” was a clear sign

of suicide potential.

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 Even the fact that the story changed overnight

in the hospital should have warned the doctor to

use more caution. And the fact that Angela didn’t

want to have her ex-mother-in-law contacted

should have triggered an inquiry about why.

Dr. Toliver testified in support of Dr. Morrison.

In my opinion, Dr. Toliver was not a prostitute,

making up vivid fantasies to bolster his case. He

was not a junk scientist, relying on untestable
theories. Nor was he misusing science,

misinterpreting results of research. Yet, in my

view, the jury was misled.

Dr. Morrison’s lawyer was George Grafton, a

skilled attorney. From the way his questions and

Dr. Toliver’s answers flowed back and forth so

seamlessly, it was obvious he had prepared the

witness very well. There is nothing wrong with

this; it’s good lawyering, so long as the attorney

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 doesn’t try to persuade the witness to distort his
or her findings. And I had no reason to suspect this

attorney strayed from the rule. Dr. Toliver’s

answers were succinct and based on well-

researched facts. He responded quite reasonably

to the attorney’s questions. He made a very good

witness.

The jury may have been misled because of the

questions themselves. There is no rule that I know

of that says the attorney can’t phrase questions in

such a way that the answers may mislead the jury.

Lawyers often throw up plenty of smoke and

mirrors in this arena of persuasion.

Mr. Grafton asked a series of diagnostic

questions:

Q: Was Angela psychotic?

A: No.

Did she have delusions?

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 A: No.

Q; Did she hear voices?

A: No, she did not.

Q: Was she capable of thinking and understanding?

A: In my opinion, she was.

And on and on, all tending to show Angela

really didn’t show signs of severe sickness at all. Of

course, nobody had claimed Angela was psychotic

or couldn’t think, but that wasn’t the point.

Next, Mr. Grafton got around to depression, but

he never asked how deeply depressed Angela was.

Instead, he asked if depressions were treatable.

A: Yes, they are.

Q: Do depressed people always need to be treated in

the hospital?

A: No, most of them are treated in outpatient settings.

Q: Do they always need antidepressant chemicals?

A: No. Many are treated with psychotherapy. Some

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 depressions resolve spontaneously.

No questions about this patient and her needs;

just general questions. As if to say, “What’s the big

deal about depression?”

Then, Mr. Grafton asked whether psychiatrists

can predict which patients will kill themselves. Dr.

Toliver answered correctly that we can’t. He said,

“Studies have shown that we are wrong more
often than right.”

Finally, the lawyer got around to the risk

factors I’d named. But while I stressed that it was

the cumulative number of risk factors which raised

the likelihood of danger, Mr. Grafton asked his

witness about them separately—one by one.

Q: Are all people who lose family members likely to

be dangerous?

Q: Are all people with alcohol problems likely to be

dangerous?

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 Q: Are all depressed people dangerous?

Q: Are all people who can’t sleep dangerous?

It was like asking if all people whose parents

had heart attacks are very likely to have heart

attacks. Of course they aren’t. But if those people

also have bad fatty compounds in their

bloodstream, and if they smoke, and if they don’t
watch what they eat, and if they get no exercise,

the odds go way up.

Dr. Toliver answered all Mr. Grafton’s

questions correctly. But the bulk of his testimony,

guided by the attorney’s questions, did not deal

with the standard of care in treating this particular

patient with this aggregate of risk factors.

Of course, the issues in this case were more

complicated than I present in this vignette. The

trial lasted several days. So I cannot say with any

confidence why the jury found there was no

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 deviation from the standard of care. Dr. Morrison

was exonerated.

Was Dr. Toliver obligated to “correct” the

lawyer’s questions or to expand his answers by

talking about the aggregate of risk factors? No, he

was not. On the witness stand, you answer the

question you are asked. Of course, I have no

evidence Dr. Toliver wished the more pertinent

questions had been asked, but the lawyer is the

quarterback who calls the plays. But if the doctor
knew of this tactic in advance, he did lend (or sell)

himself to the misrepresentation. On the other

hand, the plaintiff’s attorney could have asked him

the aggregate question on cross-examination. For

some reason, this didn’t happen.

A psychiatrist’s deviation from the standard of

care won’t add up to a viable malpractice suit

unless there are untoward consequences. If I fail

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 to listen to your heart when I give you a physical
exam and you come down with an infected toe,

there are no grounds for a suit. Once again, we

must examine the causal chain between the

deviation and the claimed result. When Dr.

Andrews was sued, there were two issues: Did he

deviate from the standard of care of a patient

judged to be dangerous? If so, was the tragedy that

followed causally related?

To add to the complexity, there were two

expert witnesses—one on each side—before I was

called. My guess was that the lawyer defending

Doctor Andrews hoped I’d break the tie on his

client’s behalf in order to persuade the jury.

One evening, Perry came to the emergency

department of the local hospital complaining of

depression and suicidal thoughts. Cindy, his wife,

was threatening to leave him because of his

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 drinking. He agreed to come into the psychiatric
unit under Dr. Andrews’s care.

Dr. Andrews diagnosed him as having major

depression and alcohol abuse. By the next

morning, the social worker had talked with the

patient’s wife. Perry had made numerous threats

to harm himself over the past year. He had a
severe alcohol problem. When he drank, he’d

accuse his wife of infidelity and become physically

abusive. Cindy couldn’t take it any more.

Because Perry had several risk factors—

imminent loss of wife, alcohol abuse, major

depression, suicide threats and spouse abuse—Dr.

Andrews felt caution was necessary. He put him

on level 3, which meant he was to leave the unit

only in a group and accompanied by a staff

member. He could go no further than the cafeteria

or the outside smoking area.

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 The next day, Perry said he wanted to leave. At

that time in that particular state, when a voluntary

patient wanted to leave, the doctor could keep him

or her for three more days without instituting

formal commitment procedures. This would give

the patient a chance to reconsider in case the
decision to leave was impulsive. Meanwhile, the

doctor would have a further period of observation.

Perry was furious when told he’d have to wait.

According to his notes, Dr. Andrews was

increasingly concerned about his patient. He felt it

was too risky to let Perry leave. He was prepared

to commit him if he didn’t change his mind.

However, a day later, while out with the group in
the smoking area, Perry walked off. The staff

member, occupied with others in the group, never

saw him go. Dr. Andrews immediately filed

commitment papers. He called the police to tell

them of the escape. He also alerted Perry’s wife.

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 Several days later, Perry phoned Dr. Andrews

and told him he was he was no longer depressed.

He wanted to go back to work. He agreed to stay

away from Cindy. After a long and pleasant

discussion, Dr. Andrews agreed, and he informed

him the commitment was no longer in force. He
suggested outpatient treatment, and Perry was

willing to set up an appointment with a mental

health center.

Perry returned and went back to work. Two

months later, on the way home from a local bar, he

spotted his wife in the company of another man.

He took his gun out of the glove compartment and

killed her.

It didn’t take Cindy’s family very long to file a

suit against Dr. Andrews for failing to protect her

from this mentally ill and dangerous man.

Did Dr. Andrews deviate from the standard of

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 care in not ensuring Perry would remain on the
unit? All the experts agreed Dr. Andrews believed

Perry was depressed and was an abuser of alcohol,

and the likelihood of danger was high enough to

conform to the commitment guidelines. It was not

our job to agree or disagree with the doctor’s

assessment. If a doctor does a reasonable
assessment, and he or she comes to a reasonable

conclusion about dangerousness, that conforms to

the standard of practice—even if subsequent

events prove the doctor wrong. Remember, we are

talking about likelihood, not about absolute

prediction.

One expert testifying in deposition for Cindy’s

family said the treatment was shoddy. When Perry

wished to leave so quickly after admission, and
when he got so angry upon learning of the three

day provisions, it was foreseeable that he might

try to leave without authorization. In his opinion,

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 Dr. Andrews should have put him on level 1, which

would have restricted him to the unit. The doctor

should have known Perry was an escape risk, and

the hospital procedure for patients who were at

risk for going AWOL was to assign them to level 1.

I checked the hospital’s Policy and Procedure

Manual; it was all there in print.

The expert working with Dr. Andrews’s

attorney disagreed. Dr. Boynton said that when
the patient signed the 72-hour paper, he was

merely opening up the option to leave after the

three days elapsed. He made it sound almost like a

contract, like a promise to stay for three days. In
my opinion, he was painting a picture of a peaceful

transaction, an agreement between equals. But the

“contract” was coercive. Perry had to sign the

paper; the hospital could legally hold him longer if

he didn’t sign his intention to leave. Further, Dr.

Boynton seemed to ignore Perry’s anger at being

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 forced to stay because of the regulation. As the

family’s expert said, Perry’s anger should have

been a signal of how badly he wanted to leave.

Dr. Boynton had another reason for saying

there was no deviation from the standard of

practice. He said that most of the time, patients

will cool down and take back the three-day paper.

While this might be true, there was nothing in the

chart to indicate Perry was changing his mind. On
the contrary, notes of a staff meeting two hours

before Perry walked off showed the staff was

increasingly concerned about Perry. The doctor

was prepared to institute commitment
proceedings immediately after the three-day

period elapsed if Perry wanted to leave.

Dr. Boynton made another point which spoke

even more directly to the standard of practice. He

felt that restricting Perry to the ward would injure

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 the doctor-patient relationship and reduce the
chances of working things out. It is prudent to do

everything you can to strengthen the

collaboration.

This is an issue that has plagued psychiatry for

the last several decades. There is no question that

treatment is enhanced when the doctor and the
patient work together. The patient must trust the

psychiatrist in order to comply with medication

and to discuss painful and sometimes

embarrassing issues. Patients should see their

psychiatrists as helpers, not as judges or jailers.

On the other hand, society needs to protect

people from danger. “I am not my brother’s

keeper” may be all right for friends and relatives,

but it is not sufficient for psychiatrists. Society has

asserted that we have a special relationship14 with

our patients. The state licenses us and gives us

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 certain rights and powers that others don’t have.
And with these rights come certain duties, one of

which is to protect patients and other people who

might be harmed by them when we reasonably

can.

The conflict between protecting the

therapeutic alliance and dangerousness is
increasingly being decided in favor of preventing

harm to self and others. The Court in Tarasoff,

stating that protecting the patient-doctor

confidentiality must give way to safety, put it this

way: “The protective privilege ends where the

public peril begins.”15

Even though I was consulting with Dr.

Andrews’s attorney, I had to give him the bad

news. In my opinion, the possibility of escape was

foreseeable and the patient’s dangerousness had

been deemed likely. Therapeutic considerations

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 should have been given a back seat. I could not
agree with the conclusions of my colleague.

But if that was malpractice, did Dr. Andrews’s

actions (or failure to act) cause Cindy’s death? Was

there a causal chain? Once again, opinion was

divided. The psychiatrist consulting with the

attorney for the family saw a direct causal
connection. Perry should have been committed

and treated for more than a month, or as long as it

took until he was no longer potentially violent.

Since Perry’s actions showed he was not

motivated for treatment, Dr. Andrews should have

known that a longer and more difficult therapeutic

task lay ahead.

Dr. Boynton asserted there was no causal

chain. He agreed that Perry was unmotivated. But

the issue wasn’t whether the lack of motivation

would make the hospitalization longer. It was

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 whether the lack of motivation made successful
treatment likely. And which condition were we

talking about? Depression or alcoholism? By the

time of the killing, there was evidence the

depression had significantly cleared; Perry was

back at work. As for the alcohol problem, there is

no evidence that extended inpatient treatment of

people with alcoholism is particularly

efficacious.16

Dr. Boynton also pointed out that people with

alcoholism are often a danger, particularly to their

wives. Without a significant additional diagnosis,

we do not commit wife abusers; we get restraining

orders forbidding contact with the wife, or we

send them to jail for battery.

In my opinion, time was a significant issue

here. In assessing whether an alleged action or

omission is causally related to an unfortunate

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 outcome, the amount of time which has elapsed
between the two events must be taken into

consideration.17 And the guideline for involuntary

hospitalization says the likely danger must be

imminent, not way down the road sometime.18

When he came back and went to work, Perry did
not immediately kill his wife. The bit of good news

I had for the defense attorney was that I agreed

with his expert on the time issue. Two months had

elapsed since Perry left the hospital. Furthermore,

even if Dr. Andrews committed him, Perry would

probably be out by then. And he probably would

still have been an alcoholic and jealous. When Dr.

Andrews last spoke with him, he was no longer

imminently dangerous. Time had broken the

causal chain.

Weighing the deposition testimony of both

attorneys’ witnesses, the parties decided to settle

the case rather than to rely on the uncertainty of a

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 jury trial.

The standard of practice in any medical

specialty is not carved in granite. Various

practitioners, all of them prudent, may approach a

clinical problem in a variety of ways. The expert

witness must be careful not to be an advocate for

his or her favorite way of doing things. By making

allowances for differences of opinion and relying

on accepted procedures based on research in the
field, the psychiatric witness can testify about the

standard of care to a reasonable degree of medical

certainty.

Notes

1 Chapman CB: Stratton vs. Swanland: The fourteenth century

ancestor of the law of malpractice. The Pharos 45: 20-24,
Fall, 1982

2 Hill v. Hilbun 466 So.2d 856, 877 (1985)

3 Helling v. Carey and Laughlin 519 P.2d. 981, 982-983 (1973)

4 Lydiard RB and Gelenberg AJ: Amoxapine—an

antidepressant with some neuroleptic properties?

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 Pharmacotherapy 7:163-178,1981

5 American Psychiatric Association: Statement on prediction

of dangerousness. Washington: American Psychiatric
Assoc. News Release, 1983

6 Ennis D and Litwak TR: Psychiatry and the presumption of

expertise: Flipping coins in the courtroom. Cal. Law Rev.
62: 693-752,1974

7 Steadman HT: Predicting dangerousness among the

mentally ill: Art magic and science. Int. Journ. Law and
Psychiatry 6: 381-390,1983

8 Muscicki EK: Identification of suicide risk factors using

epidemiological studies. (In) Mann JJ (ed.): The
Psychiatric Clinics of North America: Suicide. 20:3: 499-
517. Philadelphia: W.B. Saunders Co., 1997

9 Asnis GM et al.: Violence and homicidal behaviors in

psychiatric disorders. (In) Fava M (ed): The Psychiatric
Clinics of North America: Violence and aggression. 20:2:
405-425. Philadelphia: W.B. Saunders Co., 1977

10 Rodriguez v. Bethlehem Steel Corporation 525 P.2d 669,

680 (1974)

11 Dershowitz AM: Preventive confinement: A suggested

framework for constitutional analysis. Texas Law Rev.
57: 1277-1324,1973

12 Grob GR: Mental illness and American society. Princeton,

N.J.: Princeton University Press, 1983, pp. 3-29

13 Lessard v. Schmidt: 349 F. Supp. 1078,1093-1097 (1972)

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 14 Bursten B: Dimensions of third party protection. Bull.
Amer. Acad. Psychiatry Law 6: 405-413,1978

15 Tarasoff v. Regents of the University of California 131 Cal.

Rptr. 14, 27 (1976)

16 Edwards G et al.: Alcoholism: A controlled trial of

“treatment” and “advice.” Journ. Studies Alcohol 38:
1004-1031,1977

17 Restatement 2d of the Law of Torts §437 (c), 1965

18 Arthur L et al.: Involuntary commitment: A manual for

lawyers and judges. Washington: American Bar
Association, 1998, p. 11

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 Chapter 8

Nursery Crimes
Adults can—and they sometimes do—beat and
maim children. They may burn them with hot

irons or over open flames; they may kick them, or

punch them with fists, or strike them with chair

legs or hairbrushes; they may sexually molest

them or kill them.1 As many as 63 percent of these

child fatalities are the result of abuse by the

children’s biological parents.2

Child abuse is not a rare phenomenon. In 1992,

2.9 million cases were reported in the United

States; 1,200 children died. And the numbers keep

growing.3 When physically abused children come

into the hospital, they require a disproportionate
amount of time because the diagnosis is complex,

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 and treatment of multiple wounds is extensive.

Neurological problems are common, and other

bodily systems may be disordered. In one study,

70 percent of severely abused children died, and
60 percent of the survivors had residual defects.4

There may also be severe residual emotional

problems for survivors of physical and sexual
abuse.5

For most of history, this problem was a well-

kept secret. It was almost inconceivable that

parents would do such a thing. Disciplinary

punishment, yes! Children might need to be tamed,

or they would turn into delinquents. But

malevolent abuse? Never! Or at least rarely.

Even when these children showed up in

hospital emergency rooms, bruised or burned,

doctors didn’t formally conclude they’d been

abused. Perhaps the physicians did not want to get

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 involved in what might be a legal problem.
Generally, the focus was on treating the patient,

anyhow. Besides, there was a prevailing medical

attitude of patient (and in these cases, family)

confidentiality.6

Such was the situation in 1946 when Cafley,7 a

pediatric radiologist, came across a puzzle while

doing his research. He noticed that X-rays of

several children showed evidence of old arm and

leg fractures and telltale signs of old bleeding.

Being a good medical researcher, he wondered

what disease could cause this phenomenon. Could

it result from weak bones? A related blood-clotting

illness, perhaps? He could not figure out the

answer.

Gradually, doctors began to realize these

problems didn’t arise from diseases within the

children’s bodies. Still, resistance to the truth

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 prevailed. The findings were attributed to
accidents or parental carelessness.8 Finally, in

1962, Kempe and his colleagues9 defined the

“battered child syndrome” and opened the door to

the public acknowledgment that these injuries

resulted from intentional acts.

Societal outrage was rapid. Little children are

defenseless; they have no one to trust but those

who may betray them. Child abuse was tagged as a

major public health problem. States passed laws

requiring professionals to report suspected child

abuse to Departments of Human Services (DHS) or

Child Protective Services (CPS). Then came the

task of verifying that the abuse actually occurred.

And if so, who was the perpetrator?

How did the psychiatrist get into the act? The

diagnosis of abuse is a matter for physicians

trained in specialties other than psychiatry. They

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 are the experts who can interpret their
observations to the court. (We will consider the

case of sexual molestation which may leave no

marks on the body later in this chapter.) And

identifying the abuser is a matter for the police or

the investigative social worker who can report to

the court, not as expert witnesses, but as the

people who can uncover the facts of the case.

The psychiatrist got into the act when Kempe

coined the phrase, “battered child syndrome.”

Prior to that time, a syndrome was a set of signs

and symptoms residing within the sick person.

Kempe and his team, which included a

psychiatrist, enlarged the concept of the syndrome

to include the cause which resided outside of the

body of a sick person. We now had not only the

sick child, but the sick family. Kempe’s group

described the parents as “psychiatric deviants”

with “defects in character structure.” The

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 consequences of this way of thinking have led to

many productive research hypotheses and

therapeutic efforts. However, as I discussed in

Chapter 2, the standard required of an expert

witness has its own special requirements.

Hypotheses are not sufficient in court. And in my

opinion, much of the psychiatric testimony in this

area does not reach the level of a reasonable

degree of medical certainty.

It is helpful to consider battering abuse and

sexual abuse separately. With regard to identifying

the existence of battering abuse, the psychiatrist

has no role whatsoever. This is the province of the
emergency room physician, the pediatrician, the

orthopedist, the radiologist, or any other

diagnostician involved with the examination and

treatment of the child’s bodily injuries.

When the evidence points to child abuse, child

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 protective agencies, such as state Departments of
Human Services or Child Protection Services have

a high interest in finding out who did it. And

beyond these agencies are the courts which have

the final say about who the perpetrator is and

what the consequences will be.

Older children can identify their abusers,

although they may be reluctant to do so out of fear,

or when the parents are the abusers, out of

conflicted feelings about those who both care for

and torture them. Infants cannot identify their

abusers, but the circumstances surrounding the

event (e.g., who was in the house at the time) can

often point to the abuser. Can the psychiatrist offer

anything useful that meets reasonable testimonial

standards?

Consider the case of Billy Hunter. Billy was a

little over one year old when he was brought to

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 the hospital by his parents. They said he
developed a rash a few days ago. It started as a

diaper rash but then spread to his trunk, buttocks,

arms and legs. His mother first tried to treat it

with powder, but it soon developed into blisters,

which she punctured. She applied an over-the-

counter medication to the “sores.” When Billy

developed a fever, Mrs. Hunter’s mother insisted

she take him to the hospital for examination.

The doctors easily identified the “sores” as

burns. Mrs. Hunter seemed surprised. She was the

only one who bathed Billy, and he never expressed

any pain or discomfort during the bath. Perhaps

he had backed into the space heater, and the sores

from the initial burn had spread. When the doctors

told her burns don’t spread, she said she just

couldn’t remember anything that would have

caused the problem.

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 The case was turned over to a clinic which the

hospital had set up to evaluate suspected child

abusers. The social worker asked Mrs. Hunter why

she waited so long to bring Billy for treatment. She

replied that she still owed the hospital money

from previous visits and she was afraid they
wouldn’t treat him. Among those previous visits

had been Billy’s sister who had a broken arm. On

that occasion, Mrs. Hunter said she had pulled the

child abruptly and the arm was caught between

the slats of the crib. Another child had died in

infancy. She had been losing weight for over a

month, and one morning she was found dead in

her crib. According to Mrs. Hunter, an autopsy

showed the child had ulcers and “intestine

problems.”

The social worker took an extensive history,

which revealed that Mrs. Hunter had been

battered and sexually abused as a child. Even as an

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 adolescent, when she went to live with an uncle,

she was subjected to beatings and sexual abuse.

She had been raped at the age of 15. When she was
17, she gave birth to her first child. She had no

idea who the father was. She gave the child up for

adoption.

Mrs. Hunter dropped out of school when she

was sixteen. She held a variety of menial jobs, and

apparently was not a success at any of them.
Mostly, she attached herself to a succession of men

who more or less took care of her in return for sex.

She didn’t enjoy it, but it was the price she had to
pay. She and her husband were married four years
ago. She was content in this marriage. Her

husband worked “most of the time.” He helped her

with the children. They went to church several

times a weeks, and they took the children with

them.

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 According to the social worker, Mrs. Hunter

rarely smiled; she “appeared to be depressed.”

When she described her past history, she went

into overly long detailed accounts; her memory

appeared sharp. However, in describing the events

of the last few days, she was vague and “evasive.”

On the other hand, Mr. Hunter was pleasant.

He agreed that the marriage was going well.

According to him, their sexual life was good, and
they both enjoyed it. He seemed “unusually

unconcerned” about his child’s problem. “I don’t

know nothing about rashes and babies, and stuff.

My wife takes care of all that.” He said that she is

the disciplinarian in the household, because he is
afraid he might be “too hard on the kids.” He did

whip one of the children two years ago, but it left

marks. “Marks show, and that don’t look too good.”

He said his own childhood was normal, but he did

remember being whipped by his father.

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 The social worker listed her concerns on the

report: Billy’s injuries were severe. Although his

parents were the sole caretakers, they couldn’t

account for what happened. They delayed seeking

medical attention, not only for Billy, but also for

the child who died. Mrs. Hunter had “accidentally”
fractured another child’s arm. Mr. Hunter

admitted being too hard a disciplinarian, and his

concern was that marks from whipping “don’t look

too good.”

Both parents were sent for psychological

evaluations “in order to determine their capacity

to care for their children.” Amazing! With the

social worker’s report, was there any question? In
my opinion, any judge who couldn’t answer should

not be sitting on the bench. True, we don’t know

for certain who abused the child, but we do know,

without a shadow of a doubt, there was abuse. And

there was a pattern of neglect. Why did they need

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 expert psychological (in this case) testimony?

Two reasons come to my mind. Admittedly,

they are speculations— not admissible in court,

but admissible in this book so long as they are

identified as speculative. Perhaps by providing

data about the parents’ character structure, this

clinic could make a more forceful, “scientific”

presentation to the judge. Or perhaps, like in many

clinics back in the era when funding was widely
available, more work meant more funded

positions.

The psychologist gave each parent a battery of

seven tests. Each report was several pages long;
half of the report repeated the information from

the social worker’s report. In addition, the

psychologist noted that Mrs. Hunter, while

outwardly calm, had inner turmoil. When stressed,

she tended to retreat into fantasy—

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 preoccupations with her daydreams. She was a
dependent, somewhat sensitive and mistrustful

person. Intellectually, she was below the average

range.

Mr. Hunter seemed “preoccupied with

religion.” He went to church several times weekly,

and he was studying on his own to be a minister.
He said he and his wife had prayed to find the

right date the Lord wanted them to get married.

When the date came to him, the marriage took

place, “just as the Lord wanted it to.” The proof the

union was the Lord’s work was that the marriage

was good. He said that before he was saved, he

gambled and used drugs; now he was a new

person. “That’s the power of the Lord.”

The tests showed Mr. Hunter had feelings of

inadequacy for which he compensated by a

tendency to brag. He was also conflicted about his

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 destructive impulses. There were “tendencies
toward resentment of nurturing women.” The

report was full of “the tests suggested” and “he has

a tendency toward.”

The psychologist concluded the Hunters had

many risk factors for abuse potential. He never

actually said they had been abusers. He had
studied their characters; he certainly wasn’t

accusing them of anything but character flaws. But

we already knew from the reports of the

emergency room and the social worker that there

was parental neglect and probable abuse. Viewed

in that light, if the judge still had any doubt about

who inflicted the abuse, the psychologist’s report

would have pointed the finger at the parents.

In legal terms, what the psychologist provided

was character evidence. This is evidence based not

on facts of the incident at issue but on the

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 character of the person involved in the situation
discussed at the trial. For example, in a criminal

trial, lacking substantial evidence to prove the

defendant actually perpetrated the offense, the

prosecutor might want to show the jury what a

bad character the defendant has. The jury might

then conclude that this kind of person could well

have committed the offense. But character

evidence is not admissible as a means of proving

guilt in a criminal trial.10

Even in civil cases, character evidence is at best

problematical, because it may distract from the

facts of the case and it may be prejudicial.11
However, the rules of procedure and evidence are

much less formal in family and juvenile courts, and

many judges not only allow character evidence,
but seek it.12 But was the character evidence in

this case valid to a reasonable degree of medical

certainty? Look how the character evidence in this

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 case played out.

The children were removed to foster care, and

the Hunters consulted a legal services attorney in

an effort to get them back. The attorney asked me

to review the reports and interview the parents. I

agreed with much of what the psychologist

reported about Mrs. Hunter. But did that make her

an abuser? Were these features really risk factors

for abuse potential? Are there any consistent risk
factors which reliably point to someone actually

being an abuser?

Reviews of the literature reveal that different

researchers find different risk factors, some of
which are inconsistent with others.13 One

researcher estimated that “20% of the population

of parents have child rearing attitudes and

experiences that are so similar to known abusers

as to make them indistinguishable from abusers

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 on any dimensions except the absence of
documented abuse.”14 Yet if we were to testify on
the basis of their profiles, all of them might be

fingered as abusers.

It seemed to me the psychologist was all too

ready to find flaws in Mr. Hunter’s character. For

example, his negatively-toned description about

Mr. Hunter’s religiosity did not stand the test of

my discussion with the man. Mr. Hunter was a

member of a primitive fundamentalist sect, and

what he described were beliefs common to that

particular religious group. No real pathology there.

Was I therefore prepared to say that it was safe

to bring the children back into the household?

Much to the lawyer’s regret, I was not. All I could

tell him was that the psychologist’s conclusions

rested on very shaky grounds. And, as I told him

before he sent the material to me in the first place,

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 I did not believe that psychiatrists had much, if
anything, to add in these types of cases, except to

rebut other “experts.”

I put all this in the report. I never did find out

what the judge decided. It often happens that I get

no follow-up from the attorney.

Of course, not all cases of child abuse result

from battering. Sexual abuse has been very much

in the news in the last few decades. Over 200,000

cases of child sex abuse were reported in 1993—
an 83 percent increase since 1986.15 This

probably represents both considerable

underreporting and false reporting. Detecting

sexual abuse of children poses a more difficult

problem than detecting battering, because

molestation may not leave any tell-tale marks on

the body. Although doctors may find vaginal or

rectal tears, the lack of these injuries does not

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 mean the abuse did not occur.

Often, the abuse comes to our attention

because a parent informs the authorities what the

child has told him or her—or what the parent

claims the child has said. The case may hinge on

the veracity and reliability of the witness.16

Children think differently from adults and they

may be more likely to be suggestible, to

misunderstand, or to confuse fact and fantasy.

Expert testimony poses no great problem so long

as it describes children’s thinking. However, in my

opinion, the testimony should not single out a

particular child witness as having distorted the

facts unless there are specific data. And unless

there are specific data, generalizations about

children’s thinking should not be used to imply

that the event did or did not occur.

How, then, are the judges to conclude that the

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 event—with no marks on the body and no third-
party witnesses—did or did not occur? No wonder

judges turn to “experts” for their opinions. And

that’s just what the judge did in the case of

Carolyn.

Three-year-old Carolyn Archer was in the

middle of a dispute between her parents. The
parents had been divorced since Carolyn was six

months old. Sally Archer had custody of Carolyn

and her four-year-old brother, Jeremy. Dwayne

Archer lived with his mother, and he was allowed

to take the children every other weekend.

The discord between Sally and Dwayne boiled

over when Dwayne started going with Louise.

According to Sally, Carolyn told her Louise had

inserted her finger and “needles” into her vagina

and rectum on three successive visits. She took the

child to the family physician, who found some

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 “redness around the vagina.” No tearing or
bruising was discovered. Because of the

allegations, the doctor notified the DHS.

When the DHS social worker interviewed Sally,

she learned not only about the alleged

molestation, but also about Dwayne’s immaturity.

Sally said he was unstable, and she doubted he
could adequately supervise the visitation. The

social worker referred Carolyn to Dr. Groves for an

evaluation.

Dr. Groves and Carolyn played with the

anatomically correct dolls. Carolyn undressed the

child doll and immediately stuck her finger in the

doll’s vagina. She said that was what Louise did to

her, and it hurt. She also reported that Louise had

inserted a hot needle and once even the handle of

a teaspoon.

Dr. Groves found Carolyn to be

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 developmentally on target. She was an active girl
—outgoing and friendly. She “did not appear to be

afraid of anyone.” The words she used to describe

body parts were appropriately childlike.

Sally told the doctor her daughter had changed

over the past few weeks. She was cranky, slept

poorly, and she had developed a terrible temper.

Putting all this together with the social

worker’s report, Dr. Groves concluded that the

abuse “probably” did occur and that Louise was

“likely to have been the perpetrator.” The judge

agreed to put restrictions on Dwayne’s visitation;

he could not leave Carolyn alone with Louise.

However, Dwayne hired his own lawyer who

insisted on another evaluation, and the judge

made the restrictions temporary, until the next

evaluation report came in. Dwayne’s lawyer called

me.

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 I told the lawyer that neither I nor any other

psychiatrist could state whether the events

actually occurred, and if so, whether Louise was

the perpetrator. He responded that he understood

I might not be able to do this. However, I might be

able to neutralize the report of the other doctor.
With no guarantees, I agreed to see the child. I

asked the attorney to have Dwayne bring Louise

along when he brought Carolyn to my office.

Carolyn was just as Dr. Groves described her—

friendly, outgoing, and active. She talked easily as

she played with the toys. She looked up at me and

told me her mother had stuck her finger with a

needle while she was sewing. She showed me the
finger, but there was no mark on it. She proceeded

to undress the anatomically correct dolls and

stuck her finger in the boy’s rectum. “That’s

Jeremy,” she said. I asked her if anyone stuck their

finger in Jeremy that way, and she replied

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 “Louise.” This was the only report involving

Jeremy in the record.

“How do you know?” I asked.

“I know.”

“Really? How do you know all that?”

“My mom—nobody told me.” She was matter-

of-fact about all this— not a hint of anxiety.

“Louise did it to me, too,” she added. She took the

girl doll and jabbed its vagina and rectum.

“Just with her finger, or something else, too?”

“No, she used her finger!” she replied, with a

charming three-year-old look that reminded me

that we adults just don’t understand very much.

And she busied herself with a tea set.

After some more play—she was very easy to

play with—I suggested that she wait in the waiting

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 room with her daddy while I talked with Louise.

Louise talked easily about her relationship with

Carolyn’s father. She expressed bitterness about

“that woman’s” accusations. “She’s been trying to

break us up ever since we started going together.

She even accused Dwayne of doing bad things to

the kids.”

“Bad things? Like what?” I inquired.

“Oh, you know, like the stuff she accuses me

of.” She proceeded to tell me what a jealous

woman Sally was. Then she lowered her voice and

said, “I wouldn’t do anything like that to a kid. I

know what it feels like—my daddy used to do that

to me.” We talked about that for a while, until she

regained her composure.

Following this interview, I observed Carolyn

and Louise playing together. Carolyn volunteered

to sit on Louise’s lap and they played happily

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 together. It seemed to be a comfortable
relationship, and Carolyn showed no anxiety.

I reported these observations to Dwayne’s

attorney. In my report, I explained that I could

draw no conclusions from the interviews.

Psychiatrists may be good diagnosticians and

therapists, but we are not very good detectives.

Children do modify their stories, sometimes

because the original story was not based on fact

and sometimes because of the way they remember

them, or the way they were coached. The report

about Jeremy could be true or it could be an

elaboration of Carolyn’s story. The one new sound

fact I could add was her saying, “My mom ...

nobody told me.” While this could indicate the

story was originally planted by her mother, it
might also be a reflection of her mother’s having

rehearsed her in preparation for her visit with me.

“Be sure to tell him about what Louise did to you,

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 dear, but don’t say I told you to say anything.”

Quite a bit for a young child to keep orderly in her

mind.

Certainly the way Carolyn and Louise related

in my office was impressive. It didn’t look as if

Louise had made Carolyn uncomfortable. But

maybe there had been gentle sex play, and the

various details somehow got attached in the little

girl’s mind or in her discussion with her mother.
Who knows where the idea of a hot needle and

teaspoon came from? And was this the child who

was cranky and had a terrible temper at home? Or

perhaps Carolyn reacted to other things at home
which had nothing to do with Louise. A multitude

of questions, each one with many possible

answers. I know of no research to guide me in

choosing among these various answers. And, I

pointed out in Chapter 2, there is no room for

speculation in courtroom testimony.

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 After receiving my report, the judge felt the

data he had did not warrant enforcing the

restriction, and it was lifted. Now, it may be that

some of you readers will look at what I described

and disagree with my conclusion. Why, you may

ask, am I so blind I can’t see the obvious? You and
the judge are entitled to come to your conclusions

on the basis of what is obvious to you; indeed,

that’s the only way the judge could operate in this

case. But the expert must testify to things that are

not so obvious—uncommon knowledge.

But what about Louise? Didn’t I find things

about her that could establish her as an abuser?

Would psychological tests have helped? As in the
case with battering, there are no consistent sex

abuser profiles, and testing doesn’t help.17

Essentially, profiles are built on risk factors.

Why do I accept risk factors when it comes to

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 assessing dangerous patients (Chapter 7) and
reject them when it comes to abuse? There are

two reasons: There is greater agreement among

studies of risk factors of dangerousness. And if I

fail to use risk factors in assessing dangerousness,

I may be sued for not protecting someone. That’s

the law, and it dictates our standard of practice.

There is no such law when it comes to profiles and

risk factors in child abuse cases. Unless, of course,

I have good reason to believe a parent is mentally

ill and imminently dangerous, in which case we

revert to the commitment law discussed in the

preceding chapter. Otherwise my only legal duty is

to report cases to DHS when I believe abuse has

occurred. This legal duty is not testimony; I don’t

even have to have enough data to conclude

anything to a reasonable degree of medical

certainty. It is up to others to present testimony to

the judge.

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 Unfortunately, sometimes our testimony rests

on concern or ideology, rather than fact. It is

difficult not to feel sympathetic toward the child

who may have been abused. And our sense of

justice pits us against the accused. Of course

money also enters in; it is tempting to position
ourselves to get repeat referrals to evaluate and to

treat “victims.”

During the heyday of the nursery school sex

abuse scandals, I was teaching at a medical school.

One day, a colleague asked me if I would join with

other faculty in helping families of many children

who had been molested at a local nursery school.

He seemed surprised when I asked him how he
knew the abuse had occurred. He told me that he

knew it happened because it was even in all the

newspapers. I declined. The department chairman

called me in and said that he hoped my forensic

work wouldn’t interfere with what the faculty

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 were doing with these families. I responded that if

I was asked to consult, I’d have to call the case as I

saw it.

Shortly thereafter, a lawyer representing the

nursery school requested that I evaluate two of

the children. I had never done this type of work

before, but the lawyer was having difficulty in

finding a psychiatrist or psychologist to work on

the defense team. I confess I was pleased to be
asked to work on such a high profile case. I said I’d

be willing to try, but I doubted I could throw any

light on the situation. Since the children were so

young, I thought it wise to work with a female
colleague. I called every woman professional I

knew who was more experienced than I. They all

declined. Several of them came right out and said

they get referrals from DHS—not only to testify,

but subsequently to treat the children. They

couldn’t testify for the other side. Finally, I settled

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 for a woman who was a good psychologist but was

as inexperienced in this area as I. As I predicted,

we were unable to say whether the abuse had

occurred. Of the several adults who were accused,

only one was convicted, and the judge

subsequently let her out of jail.

A few years later, a strange thing happened. I

received a call from DHS. They wanted me to

evaluate a child who said she’d been molested. I
told the caller I was surprised to get her call. I

reminded her that she had seen me in court quite

a few times testifying that a psychiatrist can’t say

whether the abuse actually occurred. And I added
that DHS had a whole cadre of experts that it used

to support their allegations of abuse. I told her I’d

talked to several of them when I was looking for a

woman to help me when I worked with the

defense on the nursery school case.

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 The DHS worker replied that she knew all that.

But she said that this case was different because

they were suspicious that the abuse didn't occur.

That’s why they were calling me. I declined

politely. There was, and still is, a cottage industry

where some protective agencies and some
therapists feed on each other. And like the

lawyers, the DHS knew where to get testimony

which favored their point of view.

The story of the nursery school accusations

had a strange twist to it. Although I was consulting

with the defense, I received a phone call from the

assistant district attorney. He expressed concern

about the evidence against the people running the
school. The evidence consisted of the interviews of

the children performed by a policewoman and a

social worker from DHS. He felt the children were

goaded into naming the teachers by a series of

leading questions and promises of ice cream once

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 they told the whole story. He wanted my expert

opinion. With the permission of the defense

lawyers, I agreed to review the videotapes. Indeed,

the interviews were loaded with leading

questions. The assistant D.A. resigned from the

case, but another was assigned to prosecute this

high-profile case.

In court, as the jury viewed the tapes, I pointed

out how the interviewers guided the children’s
answers. Evidently the jury didn’t buy it; on the

basis of this evidence, they convicted one of the

teachers.

In retrospect, I wonder whether my testimony

was a result of my professional expertise or

whether it was a judgment call based on common

knowledge. The assistant district attorney who

called me reached the same conclusions as I did

about the leading nature of the questions. And he

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 had no psychiatric training whatsoever. Since that
time, psychiatrists and psychologists have

published numerous sets of guidelines for doing

neutral interviews.18 But I still wonder if this is

the proper venue for psychiatrists, rather than

detectives, communication specialists, or social

workers. If we have no special expertise in

detecting abuse or abusers, we shouldn’t be doing

the interviews—guidelines or not. We do know

something about the vulnerability of children to

suggestions by adults, but so does everyone else.

A few years after the nursery school scandals

peaked, there was an upsurge in patients who, in

the course of psychotherapy, claimed to have

recovered repressed memories of having been

sexually abused years before. These patients

sometimes confronted or even sued the family

members they identified as the abusers. Soon one

cadre of “experts” said the “recovered memories”

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 had been implanted by the therapists. A new

abuse “syndrome” was articulated—the false

memory syndrome. Another cadre insisted the

memories were accurate. Each side relied on a
spate of studies to support its views.19

Recalling past events is a very complicated

process—or rather several very complicated

processes—for there are various types of memory

and recall which involve activity in various areas

of the brain. However, for our purposes, we can

simplify the questions which must be asked: (1): Is

it possible for a person to be unable to recall sex

abuse in childhood (let’s call that “not

remembering”) for many years? (2): If so, can he

or she later recover it from memory? (3): Can the

recalled memory be implanted by a

psychotherapist? (4): Do some therapists actually

strongly suggest early sex abuse to their patients?

(5): Are the recalled events accurate?

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 (1): It is possible for childhood victims of

sexual abuse to have amnesia for years and then to

recall the abuse. Williams20 selected 129 women

who, as children seventeen years earlier, had been

studied when they were brought to the hospital

with allegations of having been sexually abused.

The hospital records documented the evidence of

the sexual abuse in all these children. Now,

seventeen years later, Williams inquired about

whether they had ever been abused. Thirty-eight

percent had no memory of the abuse. Not

remembering sex abuse is possible.

(2): The abuse which was not remembered can

subsequently be recalled. In the Williams study, 16

percent of the women reported they had forgotten

the abuse for many years before they

subsequently remembered it. None of these

women were in psychotherapy.

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 One example from my clinical practice drove

the point home to me. A mother I had in treatment

asked if I would see her adolescent daughter. The

young lady was starting to develop an “orderly”

habit. She’d always been neat, but now she had to

put her books in alphabetical order on her desk
and to straighten up things that were hardly out of

line to begin with. If things were not in order, she

felt a vague discomfort.

Other than her compulsion, she was quite a

remarkable person. Her school grades were

excellent. She had many friends, and she was

active in several extra-curricular activities. She

was a talented artist, although lately her paintings
took on a more symmetrical pattern. She got along

well with her parents.

The case seemed simple enough—she was

developing a compulsive disorder. There were

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 three possible courses of treatment. She could
take medication, she could have behavioral

psychotherapy, or she could have both. She opted

for only the medication, and her mother agreed.

A week later, her mother called to report the

medication was having disturbing side effects.

Surprisingly, the “orderly” daughter started to
spatter paint indiscriminately on her canvases. I

wasn’t sure this was a side effect of the

medication, but the young lady stopped the

medicine anyway. A few weeks later, the mother

came in for her own appointment, and she told me

what happened. Her daughter had spontaneously

recalled having been molested by a former family

friend in another city years before. She had the

good sense to write this friend about her

recollection. It must have been an unusually

tactful letter, because the friend acknowledged the

incidents and apologized. Following this, the

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 compulsion lightened. It remained, but on a

tolerable level.

(3): The “recalled memory” can be implanted

by a psychotherapist. I know it did not happen in

the case of this young lady, because I made the

error of not asking about abuse when I took her

history, and she’d had no previous treatment.

Well-researched studies of therapist suggestions

and patient suggestibility do not support the
conclusion that it can happen.21 Individual reports

and anecdotal evidence suggest that it can. While

not conclusive, the accusation of Joseph Cardinal

Bernardin of Chicago could be a case in point.22

During hypnotherapy, Steven Cook “recalled”

having been sexually molested years before by

Father Bernardin. So convinced was he that he
filed suit against the cardinal. Of course, the suit

became a major news-media event, much to the

embarrassment of many. Some time thereafter,

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 but before the suit came to trial, Mr. Cook thought

it over and realized that the “memory” was

unreliable. He withdrew the suit and the judge

dismissed the case.

(4): Unfortunately, some therapists do strongly

and repeatedly suggest to their patients that the

symptoms they suffer from result from childhood

abuse, and they tell them it is important that they

search their memories until they find it. I had one
such case.

A woman came to my office and asked for a

second opinion. She had intermittent periods of

promiscuity under rather risky circumstances. For
two years, her psychotherapist told her this was

her attempt to work through (get over) her

childhood sexual victimization. She gave her one

of the many books describing symptoms and

repressed memories. But search as she might, the

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 patient couldn’t actually find any abuse in her
memory bank.

I told her that while this diagnosis was

certainly possible, we should explore other

avenues as well. After asking about other

symptoms, I discovered that she had periods of

hypomania—not quite manic, but over-active—
rapid speech, sleep disturbance and impulsivity.

There were others in her family who had similar

problems. It is not uncommon for hypo-manic

episodes to be accompanied by impulsive behavior

and heightened sexual interest. I prescribed a

mood-stabilizing medication and followed her for

several years. She had no recurrence of the

promiscuity.

Why do therapists sometimes jump to the

conclusion that childhood sex abuse must have

occurred? Some have had little or no training in

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 diagnosis; they are not aware of alternate
possibilities. Others follow what they have been

taught, and their teachers followed what they have

been taught. Many of the journals they read have

articles which can’t pass scientific muster. Most

psychotherapists have little exposure to the

research methods or findings underlying their

practices. Still others may have an ideological

agenda: Women are taken advantage of by men.

While many men do take advantage of women,

this is no basis for making a diagnosis.

(5): Are the “recalled memories” accurate?

This is the ultimate forensic question. Unless the

alleged perpetrator confesses, the answer must be

equivocal. Let’s review the first four questions:

Not remembering can, but needn’t occur. Some

victims have it, some do not. Child abuse which is

not remembered can sometimes subsequently be

recalled. Some, but not all, memories may be

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 implanted by psychotherapists. Some, but not all,

psychotherapists use repeated and strong

suggestion. This leads to the fifth and ultimate

question. Some, but not all, “recovered memories”

are accurate. How can we psychiatrists tell which

is which? We can’t!

The scientific study of memory has not yielded

unequivocal guidelines for the detection of past

events. According the American Psychiatric
Association, “There is no completely accurate way

of determining the validity of reports [of

recovered memories of child sexual abuse] in the

absence of corroborating information.”23

Unfortunately, the debate is guided as much by

ideology as by science. As Brown put it: “My

concern is that the standard of science drops when

concern about public issues takes priority over

careful science. The application of memory science

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 ... is very much in its infancy.”24

Brown and his colleagues do have hope for the

future. While they maintain that “No ‘litmus test’

currently exists to distinguish between true and

false reports of abuse...,” they seem optimistic that

more sophisticated research will “increase our

precision in determining true from false

allegations.”25

I wish I could share their optimism. The social

problem of child sexual abuse cries out for

scientific answers to give to the court. But, in my

opinion, there is a basic and unsolvable flaw in

research on the accuracy of recalled memories. In

order to know if your test or technique accurately

points to abuse, you have to have some way of

measuring it against the fact that it did, indeed,

occur.

Researchers often bolster their reports by

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 citing the validity of their tests or procedures.
There are many different types of validity, but,

once again, the only one that really counts (and is

rarely cited) is the one which measures these

devices against whether the event actually

occurred.26 Unless you can show that your device

accurately fingers both true and false memories of

abuse, the use of the word “valid” is misleading.

So, it gets down to having some way of

knowing whether the abuse really occurred, in

order to test your procedure against it. Williams27

seems to have solved that problem. She reviewed

documents from hospital records citing

examinations and reports of sex abuse at the time

of the reported occurrence. But were these

documents accurate? Thirty-four percent of her

sample had documented medical evidence of

genital or anal trauma. I’m willing to agree that

this is a good corroborative data of the trauma.

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 But 66 percent lacked such evidence; the

documents recorded reports. Reports are

allegations; they may or may not be true. And one

finding, often not mentioned in subsequent

references to her research, is that three

(documented) women she interviewed were

excluded from the study because they maintained

they had fabricated the abuse. Were there other

such cases in the documents—cases where the
women were not so frank in the research

interview? Or did witnesses fabricate or

misperceive at the time the hospital recorded the

incidents? We will never know. And this is why

psychiatric methods to determine the accuracy of

allegations of sex abuse or belatedly recalled

memories of such abuse must fail. When there is

no evidence on the body or no confession from the

alleged perpetrator, there is no good way I can

think of to be sure that members of the research

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 sample were or were not abused.

Where does that leave the forensic

psychiatrist? In my view, giving testimonial

opinions about the vagaries of memory is

legitimate but may be prejudicial if it tends to

point to the accuracy of the particular memory in

question. The best we can say is that we don’t

know, and neither does the “expert” on the other

side who claims he or she does. We can’t help the
court with this vexing decision; the judge or jury

will have to decide on the basis of common

knowledge.

Notes

1 Orfinger MS: Battered child syndrome: Evidence of prior

acts in disguise. Fla. Law Rev. 7: 345-367,1989

2 Herman-Giddens PA: Underascertainment of child abuse

mortality in the United States. Journ. Amer. Med. Assoc.
282: 463-467,1999

3 McCurdy K and Daro D: Child maltreatment: A national

survey of reports and fatalities. Journ. Interpersonal

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 Violence 9: 75-94,1994

4 Irazuzta JE et al.: Outcome and cost of child abuse. Child

Abuse and Neglect 21: 751-757,1997

5 Ferguson DM and Lynskey MT: Physical

punishment/maltreatment during childhood and
adjustment in young adulthood. Child Abuse and Neglect
21: 617-630,1997

6 Pfohl ST: The “discovery” of child abuse. Soc. Probs. 24: 310-
323,1977

7 Caffey J: Multiple fractures in the long bones of infants

suffering from chronic subdural hematoma. Amer. Journ.
Roentgenology 56: 163-173,1946

8 Pfohl: “Discovery" of child abuse

9 Kempe CH et al.: The battered child syndrome. Journ. Amer.

Med. Assoc. 181: 17-24,1962

10 Lilly GC: An introduction to the law of evidence (3rd ed.).

St. Paul, Minn.: West Publishing Co., 1996, p. 140

11 Fed. Rules of Evidence §401(a)

12 Bursten B: Detecting child abuse by studying the parents.

Bull. Amer. Acad. Psychiatry Law 13: 273-281,1985

13 Starr RH: Child abuse. Amer. Psychologist 34: 872-

878,1979

14 Schneider C et al.: A predictive screening questionnaire for

potential problems in mother-child interaction. (In)
Heifer RE and Kempe CH (eds.): Child abuse and neglect.

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 Cambridge, Mass.: Ballinger Publishing Co., 1976, pp.
393-407

15 Sedlak AJ and Broadhurst DD: Executive summary of the

third national incidence study of child abuse and neglect.
Washington: United States Department of Health and
Human Services (unpublished document), 1996

16 McCord D: Expert psychological testimony about child

complaints in sexual abuse prosecutions: A foray into the
admissibility of novel psychological evidence. Journ.
Criminal Law and Criminology 77: 1-68, 1986

17 Murphy WD and Peters JM: Profiling child sex abusers:

Psychological considerations. Criminal Justice and
Behavior 19: 24-37,1992

18 Bernet W et al.: Practice parameters for the forensic

evaluation of children and adolescents who may have
been physically or sexually abused. Journ. Amer. Acad.
Child Adolesc. Psychiatry 36: 423-442,1997

19 Brown D et al.: Memory, trauma treatment, and the law.

New York: W. W. Norton and Co. 1998, pp. 11-54

20 Williams LM: Recall of childhood trauma: A prospective

study of women’s memories of child sexual abuse. Journ.
Consult, and Clin. Psychology 62: 1167-1176,1994

21 Brown et al.: Memory and law, p. 34-35

22 New York Times, March 1,1994, p. A27

23 American Psychiatric Association: Statement on memories

of sexual abuse (unpublished document), 1993

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 24 Brown D: Pseudomemories: The standard of science and
the standard of care in trauma treatment. Amer. Journ.
Clinical Hypnosis 37,#3: 1-24,1995

25 Brown et al.: Memory and law, p. 634

26 Bursten B: Validity of childhood abuse measurements (ltr

to ed.). Amer. Journ. Psychiatry 152:1533-1534,1995

27 Williams: Recall of childhood trauma

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 Chapter 9

Custody Battles
Shortly after King Solomon received the gift of
great wisdom and understanding, he faced a child

custody problem. This wasn’t your run-of-the-mill

custody dispute between divorcing parents nor

between family members. It wasn’t a fight

between foster and biological parents. Before the

king were two prostitutes. They lived together and

had delivered babies within a few days of each
other. One child died, and each woman claimed the

living child was hers.

King Solomon decided the issue on the basis of

character evidence. He ordered the infant to be cut

in half—one half given to each woman. One

woman agreed, while the other woman gave up

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 her claim in order that the child might live. “This is

the kind of woman,” the king must have thought,

“who has the attributes of the child’s mother.”

Character evidence! The king, being the judge (and

the king, of course), had the privilege of relying on

this evidence.

Now the king did not necessarily infer that this

woman would make the better mother. For all we

know, when the other woman got over her fit of

jealousy and spite, she might have raised a great
fighter to help Solomon with his expanding

empire. The woman who got the child might be

rather timid, if not masochistic, and she might

have raised a wimp. But what happened to the

child wasn’t the question. The question was the

identification of the biological mother—good

mother or not. In fact, in modern-day courts, the

child might not have been given to either mother

because they both were prostitutes—more

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 character evidence. That’s not the kind of

environment we want for our children.

The issue, then, wasn’t what was best for the

child, but rather which woman had the right to the

infant. Indeed, throughout most of history, the

focus has been on the interests of the adults rather

than the children.1 During feudal times, while

women and children belonged to the man of the

house, they were also the property of the lord of

the manor. Not much in the way of custody

disputes there. After feudal times, children were

the property of the father. In the largely agrarian

economy, children working on the farm were

economically valuable. However, with the

industrial revolution, the father worked out of the

home to earn the family’s income. Children were

“economically worthless,”2 unless, of course, they

too worked in the factories.

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 Gradually, however, the focus shifted to the

child’s nurturance. It was true the child had needs,

but it was assumed that the mother could and

would provide for them. Thus, the role of mother

gained dominance in custody disputes. Especially

during their “tender years,” children needed their
mothers. In many courts at that time—and even

now—an idealized image of the loving mother

held sway. As one judge rhapsodized, “There is but

a twilight zone between a mother’s love and the

atmosphere of heaven....”3

In all these conceptions the specific needs of

the child were not very important. Custody

decisions were decided predominantly on the

basis of which parent had the right to the child or

on the basis of which parent was automatically

assumed to be better for the child. There was little

need for psychiatric experts.

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 However, times were changing in the early

twentieth century. Child labor laws were

promulgated. Education was becoming

compulsory. The child was coming into its own. In

1925, the court stated that the custody decision

should not be based on the disputes between the
parents but on “what is best for the interests of the

child.”4 The child’s needs should be paramount in

the custody decision.

While the child’s needs could be defined by

educational opportunities, financial support,

religious needs, and even social status, little by

little, psychological needs were included.

Ultimately, in many courtrooms, the best interests

of the child became largely defined by which

parent-child relationship offered the child the best

psychological opportunities for his or her

development.5 And here, the courts needed (and

welcomed) the specialized information given by

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 the experts in this area.

Judges tend to give great weight to the expert’s

recommendations.6 And experts from the various

professions studying children are more than

willing to provide this information. Psychiatrists

and other professionals seem to know what

children need. And we seem to know what kind of

parents are most likely to fulfill these needs—and

what kind of parents will not.

This is character evidence, but it is cast in a

different light from its use in abuse cases. In abuse

cases, the judge decides on the basis of a historical

fact—did the abuse occur? The character evidence

is used (really misused) to make the judge believe

the “expert” can help him or her know whether the

allegation was accurate. As I discussed in the

previous chapter, much of our expert testimony in

abuse cases, based on character evidence, proves

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 or tends to prove nothing except how
professionals may overreach.

However, in custody cases the decision may

rest on which parent has the most appropriate

character. Character evidence is right on target; it

is relevant to the issue at hand.7 The message is

not lost on the warring parents in a bitter custody

dispute; they engage in character assassination.

And the Stricklands pulled out all the stops.

Professor Kenneth Strickland was a

distinguished authority on linguistics. Katy

Strickland was a high school graduate who

worked as a secretary in the public school system.

Kenneth first saw her in the travel section of a

bookstore, and he was smitten. He could not resist

going up to her and striking up a conversation. Her

travel had been restricted to looking at pictures;

he had actually been to all these places. Katy was

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 very impressed. They had coffee, and the
relationship began.

Every so often, Katy had her misgivings; he

seemed so far above her. He’d never fit in with her

friends. Kenneth stuck with his fantasies; she was

like a beautiful block of marble waiting to be

sculpted into the wife of his dreams. Katy insisted
on a trial separation, but after a while, she found

she missed him. A few months later, they married

and Katy moved into Kenneth’s house.

It didn’t take long for the honeymoon to end.

Kenneth was neat; Katy was a lackadaisical

housekeeper. He felt she was unreasonable; she

felt he always wanted his own way. He was

embarrassed at her comments at a faculty dinner;

she thought they were all snobs. Unfortunately,

like so many families in such a predicament, they

decided that what they needed—what they could

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 have in common—was a child. The following year,
Kenneth Junior—KJ—was born. But things went

from bad to worse, and when KJ was four, they

decided on a divorce. They each wanted custody of

KJ.

My entry into the case was rather unusual.

Katy’s attorney called me and said the judge
wanted me to evaluate both parties. Shortly

thereafter, Kenneth called me with the same

report. I called the court clerk who confirmed the

request. But each parent had already been

evaluated separately by different psychiatrists.

Each doctor had ordered psychological testing.

Katy’s doctor said she was emotionally labile

and tended to be uncomfortable when left alone

(Kenneth worked long hours and went away to

conventions). She had a tendency to be suspicious,

but not to the level of paranoia. Intellectually, she

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 was in the average range. She had developed good
coping mechanisms which were very helpful to

her in the face of “intense stress because of her

husband’s abuse. She is well able to care for her

child, even when the pressures are great.”

The report from Kenneth’s doctor was more

glowing. He had superior intelligence. He was
focused and had “an admirable work record. He

also had many cultural interests.” He tended to be

somewhat rigid in his thinking, but he also had

emotional warmth.

But Kenneth’s psychiatrist was concerned

about Katy. “Although she is well-meaning, she is

not very well educated. She has not achieved much

in life. Her outbursts of temper are signs of her

instability.” I wondered how the doctor knew

about this woman he had never examined.

Kenneth gave me the answer several weeks later

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 when I talked with him. He and the doctor shared
the “many cultural interests”; they were friends.

The psychiatrist had a conflict of interest and

should have referred Kenneth elsewhere for the

evaluation. In fact, at one point, when Katy had

been very angry, Kenneth had his psychiatrist

friend fill out a commitment paper, but the doctors

at the psychiatric hospital refused to admit her

because she didn’t need it.

While it was obvious to me the psychiatrist

was unfit, my task was to see if either parent was

unfit, and to decide what was in the best interests

of KJ. I arranged to see each parent separately and

together with KJ. I also arranged to see KJ alone.

Each parent had a list of accusations against

the other. Kenneth reported that Katy used drugs.

KJ had told him she was having an affair. She was

rarely home and left KJ unattended. She was

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 mentally ill, and Kenneth had a copy of the
commitment paper to prove it. She had a terrible

temper. She was lazy and a terrible housekeeper.

She was overly suspicious. “She keeps accusing me

of having an affair with my secretary.” Katy

reported that Kenneth lost his temper and had

struck her on several occasions. Once, she had to

go the emergency room. (Kenneth said she

provoked him and hit him first.) She said her

husband wanted to bring up KJ to be a college

professor. “Not if I can help it!” she barked. On one

occasion, Kenneth got into an argument with

Katy’s friend, Annette. He scratched the side of her

car.

Fortunately, neither parent accused the other

of physically harming KJ. He seemed to relate well

with both of them. He was a pleasant, somewhat

reserved boy whose language and manner were

age-appropriate. He drew a picture of his family. I

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 asked him what they were doing.

“They’re yelling. I don’t like it.”

“What are you doing?” I asked.

“I’m going to my room.” He drew a box around

himself.

KJ knew his parents were going to separate,

and he wasn’t happy about it. He wanted to be

with both of them. “Daddy teaches me things and

we go in his car.”

“And Mommy? How about her.”

“She buys me toys and things. She makes

supper.”

“Does Mommy ever go out and there’s no one

in the house?”

“Sometimes she goes somewhere, and she

takes me to Stella’s.” He shifted his position on the

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 floor, a little uneasily. I asked if he wanted to draw
another picture. He drew two figures with their

faces close together.

“Who are they?”

“Mommy and the bad man. They’re kissing.”

“How do you know?” I asked.

“Daddy told me. One time he said they were in

the bedroom kissing. I went there and I saw them.”

“Was your daddy home then?”

“He was in the living room.”

So far as I could tell, KJ was comfortable with

each parent. In his four-year-old mind he’d sorted

out what each of them brought to their

relationship with him. But he was uncomfortable

when they were together, which made it difficult

for him because he wanted them both.

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 In my report, I listed the various accusations,

most of which I could not substantiate. There was

the report from the emergency room documenting

Katy’s cut lip. There was the suggestion, at least,

that Kenneth had primed KJ about the “affair.”

That didn’t mean there was no affair. I just had no
data. I also had no data about Kenneth and his

secretary.

It was apparent both psychiatrists’

assessments were generally accurate. But did

Katy’s lability and “lack of achievement” make her

a bad parent? And did Kenneth’s intelligence and

cultural interests make him a good parent? Or did

this tell us more about the values of Kenneth’s
psychiatrist? I have occasionally read reports

which judged the better parent on the basis of his

or her sharing the psychiatrist’s values. Is a college

professor a better parent than a secretary? Is a

person with a dignified demeanor better than

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 someone who shows a full range of emotion? And

did the tests fail to reveal that Kenneth, too, could

have emotional dyscontrol? Or didn’t his

psychiatrist know that behind the studied

demeanor was a man who struck his wife and cut

her lip?

I told the judge I couldn’t choose between

them. What I didn’t tell him was that some of the

court’s money spent on me might better have been
spent on a trained investigator—a social worker

or a detective—in order to get to the bottom of the

accusations. The judge decided to award custody

to Katy, but to give Kenneth liberal visitation. He
followed my suggestion that they meet jointly with

a counselor to try to ease their antagonisms—

anger which could only hurt KJ.

Not long afterwards, a paper by Beaver8

convinced me that, at least in many cases, trying to

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 decide which parent will act in the best interests
of the child is usually a futile exercise. As we have

seen with the Stricklands, the data given to the

evaluator is colored by the custody battle. Further,

we are evaluating the parents under the very

stressful conditions of a contested custody case.

We take the data and extrapolate the parent-child

relationship into future time. It is possible that the

parent who relates well to the infant will not be

able to let go or to relate nearly as well to the child

as he or she grows older. In fact, as the author

wisely points out, sometimes, a parent’s short-

range negative impact on the child may help him

or her learn to adapt and develop coping skills.

And how do we know what the future holds? We

evaluate the mother and father, but what if one of

them marries again? Then, there is an unevaluated

additional parent.

With regard to the psychiatric evaluation,

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 probably the most important point the author

makes is that there are many variables that go into

good parenting. How do we assign weights to

them? Which are more important? We see a whole

host of variables when we look at the recent

guidelines for custody evaluations issued by the

American Academy of Child and Adolescent

Psychiatry.9 Seventeen areas should be assessed.

These include the nature and degree of the

attachment (sense of security in the relationship

between the child and each parent), the child’s

preferences, educational needs, sibling

relationships, parents’ physical and psychological

health, styles of parenting and disciplining, and

several others. Are the child’s educational needs

more important than sibling relationships? What

weight should we assign to each factor?

The guidelines assert that “the assessment of

the quality of attachments between the parents

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 and the children is the centerpiece of the

evaluation” (italics mine). This suggests that

attachment should be given more weight than

some other factors. Rutter’s recent review of the
literature10 reveals that attachment theory has

been enormously productive for child

development research. However, several studies

he cites cause me to be concerned that we don’t

often have a sound enough data base for making

decisions about attachment in the forensic

situation.

How do we assess the degree and quality of

attachment to each parent? There are some

strategies which are used during the child’s infant

years, but even these are subject to criticism. And

when it comes to older children, Rutter says, “The

issue that is only partially resolved concerns how

to measure attachment qualities after the first few

years of life.” And we must remember we are not

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 observing parent and child under the relatively

calm conditions of the research setting; we

observe them in the midst of a bitter custody

dispute.

Of course, if there are huge differences in the

quality of the relationship between the child and

each parent, we might be justified in drawing a

custody conclusion, even though there is no way of

assessing and comparing finer degrees of
attachment. But if the differences are that huge,

does the court need the specialized knowledge of

an expert? Consider the case of the Carvers.

Doreen Carver married her husband on the

rebound from her first divorce. Doreen was a

marketing director in a medium-sized company,

while Philip Carver was a minister. He was quite a

contrast with her first husband who was an

engineer.

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 Doreen came to the marriage with her 12-year-

old son, Johnny. Philip’s quiet, steady manner was

a relief from the turbulent first marriage. Or so she

thought until the clash of lifestyles became

apparent and she was bored and disgruntled. By

this time, Doreen and Philip were parents of
another child—three-year-old Alice. Doreen had

moved out and divorce was in the air. Custody had

to be decided.

Philip wanted Alice, and Johnny’s biological

father (Doreen’s first husband) wanted Johnny.

Both men had gone to court together and obtained

temporary custody of their biological children.

According to Doreen, she had a poor lawyer.

Both men said they had evidence that Doreen

was an unfit mother. They said she was often very

angry at Johnny and called him derogatory names.

She threatened to leave, and she threatened to kill

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 herself because of Johnny’s demanding nature and
insolent remarks. Johnny’s school behavior was

variable, and he had trouble relating to his peers.

The school counselor was aware of Doreen’s

outbursts, and she stopped informing her of

Johnny’s school problems in order to protect the

youngster. Doreen, herself, admitted she found it

hard to keep her temper under control when

dealing with her son.

Alice was another story, however. She was a

quiet, somewhat docile child. Her behavior did not

provoke outbursts from her mother. Although

Doreen scolded Alice from time to time, the

intensity was far less than the outbursts leveled at

Johnny. On the other hand, Alice was far younger

than Johnny. Perhaps when she was older ... who

could tell?

However, in this day and age, lawyers feel the

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 need to add the opinion of experts. The attorney
representing Johnny’s biological father obtained a

court order to have him and his mother examined.

The biological father gave the psychologist an

account of what he had observed and what Johnny

told him. He also described Doreen’s behavior

when they were married. After interviewing

Doreen and giving her a battery of tests, the

psychologist found that Doreen was brought up in

a dysfunctional home. She alternated between

trying to discipline Johnny in a rigid, overly

controlling manner and blowing up when that

failed.

The psychologist found Johnny to be self-

centered and emotionally labile—clearly a

reaction to the stress of his mother’s outbursts. He

felt comfortable in his assessment that Doreen

was not good for Johnny.

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 Philip’s lawyer asked me to evaluate the

parents and Alice. In many ways, Alice was a

miniature Philip—pleasant and friendly. When she

tried to dress the doll, her three-year-old fingers

weren’t up to the task. Instead of becoming

distressed, she tried again and again. Finally she
put the doll to bed and turned to other toys. She

glanced at her father. He said, “Dolly’s sleeping.”

She and Philip seemed quite comfortable together.

I saw Doreen without the child. She, too, was

pleasant and cooperative. She readily

acknowledged Johnny made her upset and she lost

her temper. She couldn’t put up with him any

more, and she was willing to let him stay with his
biological father. “But Alice...,” she said wistfully, “I

won’t get to put her to bed anymore. I’ll miss her.”

It sounded as if she was ready to capitulate and

give the child to Philip. We talked a bit more, and

she discussed the possibilities of a promotion at

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 work—an area where she felt most comfortable

and competent.

I never got to see Doreen and Alice together,

nor was I asked for a report. Much later, I

discovered that in a three-way mediation session

with all the lawyers present, Doreen agreed to give

up the children to their respective fathers, but she

got fairly liberal visitation rights.

Recently, I phoned Philip’s attorney to find out

what happened to the children. Johnny calmed

down quite a bit in his father’s home. However,

now in college, he still showed emotional lability

from time to time. His peer relationships
improved, but he still had a tendency to be self-

centered. According to the attorney, he was doing

well in school.

Alice still had her own pleasant manner and

was doing nicely. Both children continued to visit

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 their mother, and the visits were going well.
Doreen had been seeing a psychiatrist for

psychotherapy and medication. She had, indeed,

advanced in her career.

With regard to Johnny, what did the

psychologist’s report add to what was obvious to

everyone—other than technical terms? The

statements from the two fathers and the testimony

from the school counselors and from Johnny

would have tipped the balance. Even Doreen

realized she and Johnny were not a match. With

regard to Alice, it might have been a closer call, but

Doreen herself was ready to relinquish custody

and move on with her career.

Without such obvious evidence, judges are

faced with an impossible task, and they don’t have
the resources of Solomon. They are only too happy

to shift the decision to “experts.” But the problem

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 of assessing relationships in the less obvious cases
casts doubt on the validity of psychiatric opinions

in an attachment-centered inquiry.

Even if there were a sound clinical way to

assess the degree and quality of attachments

during the process of divorce, what weight should

we assign to this factor when put alongside the
other sixteen variables suggested by the American

Academy of Child and Adolescent Psychiatry?

Should it outweigh the parent’s style of discipline

(excluding abuse, of course)? The parent’s work

schedules? The parent’s and child’s social support

network (grandparents, friends, etc.)? Well, maybe

it should if attachment is the major factor

determining how the child will turn out later in

life.

Rutter points out that while attachment theory

predicts that poor childhood attachments will

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 deprive the individual of the security and
confidence necessary for intimate relationships

later on, we don’t know that these attachments are

more important than other factors influencing the

child as he or she grows up. It “has not been put

the test in a rigorous fashion as yet.”11 Further,

while there is some evidence that poor childhood

attachments are associated with “various forms of

later psychopathology,” the relationship is only a

moderate one. Other factors play a significant part.

Besides, other studies don’t even show this

moderate association.

There are many variables that go into the way

a child will develop. Relationships and parenting

styles are important, but we can’t ascribe

everything to them. There are social factors, peer

groups, unpredictable experiences, and biology.

Let us revisit Johnny and Doreen. Recall that

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 the psychologist deduced that Johnny’s emotional
outbursts and self-centeredness were

consequences of Doreen outbursts, and this made

her an unfit mother. I have no argument with that,

but that isn’t the whole story. Johnny continued to

have these qualities for many years. And so did

Doreen, although hers were tempered somewhat

by her treatment. It is certainly possible that some

portion of Johnny’s behavior reflected an inherited

temperament. It was obvious Alice was a chip off

her father’s block; probably Johnny was a chip off

his mother’s. When studying relationships, it is so

easy to attribute everything to unfit parenting.

Quite possibly the temperaments of mother and

son were grinding against each other—Johnny

provoking his mother and vice versa. Alice’s

temperament didn’t bring out the worst in Doreen.

In a way, if there were a valid method of

quantifying each variable we could have an

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 “Unfitness Profile.” And if there were a way of

weighting the variables we could arrive at an

“Unfitness Quotient,” and we would be on sounder

ground when testifying on the basis of

observations, interviews and tests. Strong and his

colleagues point out that juries (in custody cases,

judges) “bring into the courtroom their own

preconceived ‘profiles.’”12 These profiles are

“impressionistic.” But Strong and his colleagues

are law professors, and they reflect a judge’s faith

as they go on to say that psychological profiles

“may have been derived in a more or less

systematic way, and some may have been tested

by verifying that they give correct ...

predictions.”13 Would that this were so, but in

custody cases, the evidence for that hope is just

not there. I can find no formula for weighting; no

study of predictive profiles. There is no way of

comparing “unfitness quotients” in cases where

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 the differences between the parents are not large

and obvious.

Does that mean that psychiatrists have no role

whatsoever in custody evaluations? Not

necessarily, but, in my opinion, our role should be

very limited. First, of course, we could rebut the

expert who claims to be able psychologically to

detect the better parent, but the judge probably

wouldn’t believe us, because that would force the
judge to use his or her own impressionistic profile

without “expert” backup. However, there are two

other possible roles for us: uncovering facts for

the judge to use in his or her impressionistic

profile, and informing the judge of research-based
guidelines.

Sometimes, in our interview, we can uncover

or support facts that may be helpful to the judge.

This was what the judge requested me to do in the

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 case of Jerry Cummings. Jerry’s son, Bob, was a
fourteen-year-old boy with a serious behavior

problem. He’d run away several times, he drank

beer, he was picked up for driving his father’s car

while underage. Jerry’s wife had died a few years

earlier, and Bob seemed beyond Jerry’s ability to

control. When Bob made a suicide threat in school,

the Department of Human Services came in and

took custody of the youngster. They placed him in

a residential treatment program. In addition to

individual therapy, both father and son were seen

together.

After discharge, the doctors recommended

Jerry and Bob seek further counseling. In the

meantime, Bob, still a ward of the state, was

placed in a group home. Initially, his behavior was

not unreasonable, but after a while, he yearned to

go home. He ran back to his home, and after a few

days, Jerry notified DHS. They took him back to the

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 group home.

During many telephone calls, Bob pleaded with

his father to take him back home. Finally, Jerry

saw a lawyer and sued for the return of custody of

his son. The custody dispute in this case was not

between parents, but between a parent and the

State. It was not a bitterly fought dispute with

accusations and allegations. But the DHS was

concerned that Jerry was unable to exert enough
disciplinary control. Jerry’s position was that he

had attended his follow-up psychotherapy

religiously, and he now was better able to

discipline his son. His therapist agreed that Jerry
had made significant progress in treatment. The

judge asked me to evaluate whether Jerry was

now able to discipline his son.

Jerry told me he’d allowed his son to take the

car because he “begged and begged.”

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 “Does he still beg?” I asked.

“Yes. But, I don’t always listen now.”

“Would you give me an example?”

“Like when he ran away, he kept saying, ‘One

more day, just one more day,’ but after a few days,

I called DHS.”

“What did they say?”

He smiled. “They were kind of mad, because I

was supposed to notify them immediately. But, I

figured maybe the kid needed a couple of days’

break.”

It turned out Jerry had evidence his son had

visited at other times when he wasn’t home. Food

was taken from the refrigerator, sometimes the

door was left unlocked. Bob still had a key.

“Did you call DHS?”

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 “Not really. I guess he got back to the home OK,

because they never found out he was missing. Why

create a fuss? Bob would only get mad.”

“So, what would happen if Bob got mad?”

That question was the cue for Jerry to tell me

about his philosophy of parenting. In his opinion,

Bob needed a friend in his father—especially now

that his mother was gone. Above all, creating a

scene was to be avoided, and Jerry knew he must

handle his son gently to avoid confrontation. “Like

one time he called me and said he ran away from

the treatment center and was at a friend’s house. I
told him to go back to the center and hang in a

little longer there, and maybe things would get

better.” However, Bob came home, and it was a

few days before Jerry notified the center, even

though Bob’s therapist had called to say he was

missing.

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 Jerry summed himself up this way. “I’m not a

leader. I never was. I listen to others. I’m always

optimistic things will work out OK if we just don’t

get into arguments. Maybe I give in too much—I

don’t know.”

I learned a great deal about Jerry’s upbringing,

and I could speculate about some of the forces that

made him the way he is. But that would be just

that—speculation, and it has no place in the
courtroom. Besides, I had enough facts in the form

of Jerry’s track record and the things he told me

about his dealings with his son to form an opinion

that even he would have agreed with. Jerry could

not bring himself to set limits on a son who was
out of control and who knew how to wrap his

father around his little finger. True, my opinion

was based on my inferences, but there were actual

data—not theory—which would allow the judge to

see how I reached my opinion.

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 The conclusions were obvious from the data;

you didn’t need to be a psychiatrist to see that. In

fact, you didn’t need to be a psychiatrist to get the

data; any competent interviewer could get those

data. But, in my view, such data gathering is also

appropriate for a psychiatrist. Many psychiatrists
are able to empathize with the person being

interviewed. This empathy may guide the

interviewer into lines of questioning which may

yield parental statements relevant to the custody

decision. It may help uncover facts about a

parent’s sensitivity to the child’s needs or the

parent’s approach to resolving disputes among

siblings—or any of the other variables mentioned

in the guidelines of the American Academy of

Child and Adolescent Psychiatry. But these facts

(statements made by the parent) should be

presented as relevant, but not necessarily the

most important factor in the decision. The judge

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 should do the weighting.

Research has yielded some guidelines about

what may happen to children of divorce. For

example, in general, children adjust equally well if

there is joint or sole custody, if the mother or the

father has custody, or if the child is placed with the

parent of the same or opposite sex. More

important than the type of arrangement is the

degree of parental conflict.14 Studies such as these

may help the judge correct preconceived notions.

However, they are predicated on an “other

things being equal” situation; they can’t predict

what will happen as a result of the custody

decision in any individual case.

There has been a recent resurgence of

attention paid to the rights of biological parents.15

Often, this pushes the best interests of the child

into the background when the biological parents

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 seek to regain custody after the child has lived for
an extended period of time with a guardian or

foster family. Historically, the courts have been

reluctant to prevent biological parents from

reclaiming their children.16

But what about the case where the mother

gave up the child shortly after birth and years later

wishes to reclaim him or her? If it didn’t make any

material difference to the child, the competing

interests would be between the mother and the

foster parents. However, some research data show

that it does make a difference to the child.17

Unless there are serious and obvious defects in the

current relationship, disrupting it to preserve the

rights of biological parent is most often traumatic

for the child and can have lasting consequences. It

is not in his or her best interests. I testified to that

effect in such a case, but the judge removed the

child from the family that brought her up and

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 returned her to a biological parent who had not

seen or visited her for several years. In his

opinion, the interests of the parent outweighed the

interests of the child. I disagree; in my opinion,

that is bad social policy.

There are, then, some types of situations where

we psychiatrists can present expert testimony in

custody cases. Unfortunately, in the close calls—

where we might really be needed—we don’t have
much to offer. As in every forensic issue, there are

some prostitutes selling their opinions to increase

referrals. But it is my impression that most of the

misguided testimony is a result of sincere concern
for the welfare of the child. These psychiatrists are

using whatever tools they have been given—

concepts which they have been taught and which

seem to work well in the therapeutic situation. But

the courtroom demands a different standard;

concepts without reasonable research data are

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 junk science. Especially in custody cases, where

emotions run high, psychiatrists do have a way to

go to learn to distinguish theory from research-

based data.

Notes

1 Roman M and Haddad W: The disposable parent. New York:

Holt, Rinehart and Winston, 1987, pp. 23-47

2 Zelitzer V: Pricing the priceless child: The changing social

value of children. New York: Basic Books, 1985, pp. 57-
72

3 Tater v. Tater 120 S.W.2d 203, 205 (1938)

4 Finlay v. Finlay 148 N.E. 624, 626 (1925)

5 Derdeyn A: Child custody consultation. Amer. Journ.

Orthopsychiatry 45: 791-801,1975

6 Kunin CC et al.: An archival study of decision-making in

custody disputes. Journ. Clin. Psychology 48: 564-
573,1992

7 Ex parte Berryhill 410 So.2d 416, 419 (1982)

8 Beaver RJ: Custody quagmire: Some psychological dilemmas.

Journ. Psychiatry and Law 10: 309-326,1982

9 Herman SP et al.: Practice parameters for child custody

evaluation. Journ. Amer. Acad. Child Adolesc. Psychiatry

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 36 (supplement): 57s-68s, 1997

10 Rutter M: Clinical implications of attachment concepts:

Retrospect and prospect. Journ. Child Psychology and
Psychiatry 36: 549-571,1995

11 Ibid.

12 Strong JW et al.: McCormick on evidence (4th ed.) St. Paul,

Minn.: West Publishing Co., 1992, pp. 376-377

13 Ibid., p. 377

14 Twait JA and Luchow AK: Custodial arrangements and

parental conflict following divorce: The impact on
children’s adjustment. Journ. Psychiatry and Law 24:53-
75, 1996

15 Kerman EJ and Weiss BA: Biological parents regaining their

rights: A psychological analysis. Journ. Amer. Acad.
Psychiatry Law 23: 261-267,1995

16 Santusky v. Kramer 455 US 745, 753,1980

17 Milchman MS: Children’s resiliency versus vulnerability to

attachment trauma in guardianship cases. Journ.
Psychiatry and Law 23: 497-515,1995

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 Chapter 10

“Sex Play”
Paula Coughlin1 was not amused. In 1991, she

was a naval lieutenant who flew helicopters—a

“bright star,” according to her superiors. In

retrospect, her big mistake was to attend the

annual convention of the Tailhook Association.

This association of Naval and Marine air personnel

met annually for symposia and discussion about

naval subjects. But there was also free time for

partying. And there was also alcohol. By the time

the party was over, 83 women and 7 men had

been assaulted sexually, many in a hallway of the

host hotel, the Las Vegas Hilton. Paula Coughlin

was one of them. A group of men lined the hallway

and when women tried to pass through, the men

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 made them “run the gauntlet.” They pulled at their
clothes and groped them. According to Paula,

when she finally got to the end of the line, she fled

into an empty room and cried. She was afraid

she’d be raped. She was ashamed that she’d been

attacked. She was even ashamed she was crying.2

Paula was the original whistleblower, but no

one would listen. After she went public, the Navy

mounted an investigation. She accused the naval

personnel of sexual harassment and abuse, and

she pointed to a captain as the “most brazen”

molester in the line. At the hearing, the captain

acknowledged he was at the convention, but he

stated he was not at the scene of the melee. He had

witnesses to back up his statements. He also had

character witnesses who described him as a

person unlikely to do such a thing. Besides, he was

battling cancer. His lawyer pointed out Paula had

previously identified someone else as the

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 molester.

The Navy’s investigation encountered

difficulties. The prosecutors ran up against a “code

of silence,” making it almost impossible to

establish anything.3 It didn’t take long before the

Navy dropped charges against fully one-half of the

men accused of participating. However, the

Pentagon sharply criticized the investigation,

charging that the Navy’s investigators “sabotaged

their own agents’ efforts because of their hostility

to women.”4

Finally, Paula resigned from the Navy; she said

she’d had enough of the harassment and ostracism

she received because she blew the whistle.5 She

sued the Tailhook Association for the sexual

misconduct and the Hilton Hotel for not providing

sufficient security. The Association settled, but the

hotel decided to fight the case.

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 During the Hilton trial, the defense attorneys

tried to convince the jury of several points. They

said Paula did not suffer post-traumatic stress; she

was merely angry. Paula said she’d been suicidal.

A witness testified Paula wore provocative clothes

in the evening. Another witness, Lieutenant Diaz,
testified Paula had let another officer shave her

legs. Paula vehemently denied both accusations. A

woman—a resident of Las Vegas—said she was in

the hotel at the time and observed the

proceedings. According to her, it was just a crazy

bunch of people who were playfully displaying

their genitals and grabbing women’s buttocks. “It

was just a sort of joke!”6

If it was a joke, Paula Coughlin was not

amused. Neither was the jury. They awarded her

$1.7 million as compensation for what was done to

her, and an additional $5 million as punishment

for the hotel’s not offering reasonable protection.

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 It took them less than one hour to decide on the $5
million punitive award.7

Among the many allegations of sexual

harassment reported by the press in the last

decade, the Tailhook scandal was one of the few in

which there was no doubt that sexual misconduct

occurred. And it was arguably the most egregious

recent example of sexual harassment in this

country. But the cases the press reports—usually

allegations against prominent figures—are barely

the tip of the iceberg. The government agency

overseeing Federal employees reported that 44

percent of women and 19 percent of men

surveyed said they had been subjected to some

type of sexual harassment in 1994.8 This number

had not changed since 1980, despite increased

awareness of the problem. The vast majority of

these incidents were not reported to supervisors.

Yet, workplace sexual harassment cost the

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 government about $327 million over a two-year

period.

In the United States, the history of this type of

behavior goes back to colonial times.9 While

women had always been subjected to unwanted

sexual activity, this harassment became almost

institutionalized on the southern plantations

where slaves were considered fair game.

Although sexual misconduct occurs in many

settings, I shall focus on workplace harassment in

this chapter. And since the majority of such

incidents involve men harassing women, I shall

confine my discussion to this type of situation.

With the industrial revolution, sexual harassment

crossed the racial divide and lodged in the

workplace. Women were cheap factory labor, and

they could be easily replaced if they caused a fuss.

They were supposed to be the guardians of proper

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 sexual behavior, and if the harassment came into
view, it was the woman who was considered

responsible; she was the one likely to lose her job.

In the years following World War II, the role of

women changed dramatically and the sexual

revolution was ushered in. With this new

openness, partly fueled by oral contraceptives,
many men felt more comfortable in making sexual

overtures in the workplace and elsewhere. And in

the workplace, sexual harassment continued, often

because male employers had power over women’s

livelihoods.

However, along with the changing role of

women in the 1960s came the civil rights

movement. Title VII of the momentous Civil Rights

Act of 1964 made it unlawful for employers to

discriminate against an employee “with respect to

... conditions or privileges of employment, because

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 of such individual’s race, color, religion, sex or
national origin....”10 The courts refined the statute
by interpreting what conditions and privileges

really meant.

Freedom from sexual harassment was one

such privilege and condition. This harassment was

defined in two ways:11 First, quid pro quo

harassment could occur when the employee could

get benefits (such as raises or promotions) in

return for sexual favors or could lose benefits if

she refused such favors. Second, creating a hostile

or offensive working environment—soliciting sex,

telling dirty jokes, making sexual remarks—could

also trigger charges of sexual harassment.

Quid pro quo is understandable enough, but

what actually is a hostile and offensive working

environment? One off-color joke told to a crowd of

people? Complimenting a coworker on her new

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 dress? Paula Coughlin felt she was harassed, but a
woman who witnessed the gauntlet said it was all

in good fun—it was a joke at a party.

As one court noted,12 this may be a difficult

call, especially because men and women have

different standards about what constitutes

offensive behavior. The court stated that hostile

environment has two dimensions: severity and

pervasiveness. One off-color joke is not very

severe, but repeated salacious remarks can make

the environment offensive. On the other hand, it

takes only one rape to make it offensive. The court

must weigh these two factors and decide if the

alleged conduct amounts to sexual harassment.

And it is the judge who decides. How does he or

she decide? The court stated that regardless of

whether the judge is male or female, the judge

decides if the behavior is the type that a

“reasonable woman would consider sufficiently

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 severe or pervasive...” (italics mine). You will

recall my discussion in Chapter 2 regarding

reasonable persons. It is a legal fiction which

allows the trial to proceed. And if the judge thinks

the charges reasonably (in women’s terms) add up

to sexual harassment, the jury uses its powers of

reasonableness when it considers the verdict.

There may also be the vexing problem of

consensual sex. If the woman complied with the
man’s request, is she really a victim of

harassment? Possibly, said the court. She might

have complied because she feared for her job if

she refused. The employer must have a stronger
defense than compliance.13

But things get much more complicated when

we realize that in some surveys, as many of 70

percent of male and female workers have dated

others on the job. Some have even gotten married.

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 Proximity can breed friendship; it can even breed
love. How do you distinguish courting behavior

from sexual harassment? According to the court,

sex-tinged behavior is harassment when it is

unwelcome.14 The court incorporated the

guidelines stated by the Equal Employment

Opportunities Commission. The conduct is sexual

harassment “if it has the purpose or the effect of

unreasonably interfering with an individual’s

work performance or creating an intimidating,

hostile or offensive work environment.”15 An

offensive environment need not target any specific

person; if sex is pervasive in the atmosphere, it

may be unwelcome or disturbing to workers.

Where do psychiatrists fit into this picture?

Shafran16 provides a useful framework for

considering possible roles for the forensic

psychiatrist. (1): Did the conduct actually occur?

(2): If it did, did it meet the criteria for sexual

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 harassment? (3): If it did, how injured was the

plaintiff?

When there are witnesses to the conduct, they

can establish the facts. But when there are no

witnesses, we get into a “he says—she says”

situation. In 1991, when Professor Anita Hill

accused Judge Clarence Thomas of past sexual

harassment, their stories were entirely different.

Judge Thomas was up for appointment to the U.S.
Supreme Court, and the allegations had potential

consequences of national significance. A reporter

for the New York Times asked several psychiatrists

and psychologists about the discrepant
testimony.17 They offered three possible

scenarios: One or both may be lying, each may

have had a distortion of memory, or the accuser
could be suffering from a delusion. None of these

professionals could throw any light on the facts of

the case. I note a fourth possibility-even delusional

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 people can be harassed.

As in the case of the nursery crimes described

in Chapter 8, psychiatrists are not detectives, and

we cannot tell whether an allegation about an

historical fact is true or false. It would be

convenient if certain symptoms were specific to

victims of sexual harassment. However, victims of

harassment may suffer so many different types of

symptoms, there is no such thing as a typical post-
harassment syndrome. Reactions may range from

anger to depression (mild or moderate), guilt,

humiliation, loss of self-esteem, feeling dirty,

headaches, anxiety and fear of going outside, and
even vulnerability to respiratory infections.18

Different people react differently.

However, psychiatrists can help the jury

understand why a plaintiff might appear to be

lying when she may have really been a victim.

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 Bertha needed this help when she sued the Ingram
Company for sexual harassment. According to her

attorney, the lawyers representing the company

were pulling out all stops in order to discredit

Bertha. They said that while she and her

supervisor did have a sexual relationship, it was

consensual. Bertha even invited Brad into her

home. The relationship continued over several

weeks, and Bertha never complained to anyone.

She had a history of moving from job to job, and

she had quit this one and gone back home. The

lawyers obtained her medical records, and they

indicated she told her doctor she was upset

because of her financial situation. She never told

him about the affair. Almost a year elapsed before

she suddenly went to a lawyer. The company’s

lawyers accused Bertha of being out for financial

gain because she was in debt.

I told the attorney I probably could not testify

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 to the truthfulness of Bertha’s story unless there

were gross distortions or serious internal

contradictions. However, I might be able to explain

this type of behavior.

Bertha was the middle child between an older

brother and a younger sister. Her father owned a

prosperous hardware store in a small farming

community. “Maybe that’s why I’m like I am,” she

said. “You know, middle child and stuff.”

“What are you like?” I asked.

“Oh, you know, independent. I don’t like to lean

on anyone, and I don’t like anyone leaning on me.”

She went on to tell me she was fortunate in having

a lot of energy. “I’m a doer. I don’t waste time

thinking about things.”

“What things?”

“Anything that bothers me, I just put it out of

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 my mind. I don’t worry a lot, except now about my
finances. Usually I’m an optimist. I always think

things will work out, but now, with what I owe my

folks, I don’t know.”

“Are they pressing you for money?” I asked.

“Oh, no. Dad can afford it, but like I said, I don’t

like to be dependent on anyone. Ever since I

graduated high school, I’ve always made my own
way. I left home when I was eighteen. Dad gave me

money for one month, and I got an apartment

here.”

In response to my question, she said she didn’t

have a job at first. But she knew she’d find one in

the city. And when she did, she immediately paid

her father back. Here, in a nutshell, was the

energy, the optimism, and the independence.

It was true that she went from job to job, but it

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 was always in search of advancement and better

pay. Bertha was not career-oriented; she was

happy to work as a secretary. But better pay was

proof she could make it on her own. The money

was important, but so was the pride that came

with success.

Not that she was a workaholic, however. She

had friends, and she had a reasonably active

dating life. At 32, she had no thoughts of marriage.

In fact, she never wanted to have a serious
relationship. “I don’t want to make a

commitment,” she said. “Maybe it’s because I don’t

want to give up my independence.”

There was an underside to her independence.

She told me about one fellow whom she dated for

almost a year. He wanted to get engaged, but the

more he pressed his suit, the more crowded she

felt. She was anxious and she developed dizziness

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 and nausea. Apparently, when she tried to put it
out of her mind, it went to her body.

At the Ingram Company, she was recognized

for her skill as a secretary, and she was offered a

better-paying position as office manager at a

branch in another city. She jumped at the chance,

and borrowed money from her father for the
move. Shortly thereafter, an uninsured motorist

hit her car. While she was uninjured, the auto was
totaled. Ever the optimist, she decided to get a new

car. Even though she now owed more than ever

before—car payments and her father’s loan—with

the raise in salary Bertha knew she could pay the

debts off. But she didn’t count on Brad, her

supervisor.

When Brad first started making remarks, she

thought it was “typical office flirtation, like you get

wherever you work.” While not pleasant because

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 Brad was married, the remarks were tolerable.
When he started pressing her for a date, she

pointed out that she didn’t date married men.

Optimistically, she thought that would end the

matter.

It didn’t. In fact, Brad’s advances became more

openly sexual. He’d comment about her body and
how nice it would be if they went to bed together.

And he added that he could make her job more

attractive, or he could make it less attractive.

Bertha had already heard from coworkers that

Brad could be vindictive. She began to feel

trapped; she needed the job and the money. She

also needed her self-respect, and she continued to

turn him down.

One evening, Brad appeared at her apartment.

She was shocked. She thought, “Oh my God! What

have I gotten myself into!” She told me she felt

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 cornered and went numb. He took off her clothes
and when she didn’t resist, he had intercourse

with her. She claimed she had no feeling.

He came back to her house three or four times

(she couldn’t remember the events quite

accurately) during the next few weeks. One day, he

called her to his office and started to embrace her.
She shouted, “Keep your damn hands off me!” He

whispered, “Leave my office and keep your mouth

shut. And you damn well better improve your

work; you’ve gotten very sloppy lately.” That

ended the sexual advances.

It was true her work was slipping; she couldn’t

concentrate. Every time he came near her work

station, she felt dizzy. Several times she vomited in

the ladies room. She was irritable. She had trouble

sleeping. Once again, her body was protesting. She

went to the company physician, but she was too

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 ashamed to tell him what the problem was. He
treated the symptoms; he gave her a minor

tranquilizer. It didn’t help, and finally she

admitted defeat and quit the job.

Out of money and out of pride, she could no

longer be independent; she forfeited the new car

and went home. Her father gave her a job in his
store, but the comfort of a supporting family did

not assuage her symptoms. In fact, in a way, it only

drove home the fact that she could not make it on

her own. She consulted her family physician when

the symptoms continued, but she said the problem

was her financial stresses. Finally, one evening

when her mother heard her crying in her

bedroom, Bertha broke down, and she told her

mother what happened. Her parents insisted she

see a lawyer.

Bertha’s story had many of the ingredients of a

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 sexual harassment case. There was the offensive
environment (unpleasant, but tolerated), and the

overt advances which were unwelcome. There was

even an implied quid pro quo—“I can make your

job more—or less—attractive.” The harassment

was both severe and pervasive.

The company pointed out that the sex

continued repeatedly, but while there was no

resistance, it could hardly be called consensual. As

so often happens when women are sexually

harassed, they may feel guilty and humiliated.

Remember, even Paula Coughlin was ashamed

she’d been attacked at the Tailhook convention.

And Bertha said, “Oh my God! What have I gotten

myself into!” As if it was something she did. Guilt

feelings and humiliation can account for long

periods of silence. And in Bertha’s case, where

pride of independence was so important to her,

one could understand why she was reluctant to

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 advertise the experience.

Bertha did confirm one thing the company

lawyers said: She did need the money. But that

didn’t negate the other factors. And while you

don’t need to have psychological injury to win a

sexual harassment case19 (the fact of harassment

depends on what went on, not how the victim

reacted), Bertha’s symptoms were consistent with

her story and with the type of person she was.

Did that mean her account was true? I had no

way of knowing if it was true in whole or in part.

And that’s what I told her attorney. But I also told

her Bertha’s story was not unusual. The facts the

company’s lawyers were using did not necessarily

establish that Bertha was lying. I heard

subsequently that the company settled the case.

Even though technically you may not need any

psychological injury to win a sexual harassment

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 case, it helps. Since the courtroom is an arena of
persuasion, greater injuries may yield larger

awards. In fact, the threat of larger awards may

prompt companies to settle the case before a trial

altogether. Here all the issues of causation and

impairments described in Chapters 3 and 4 come

into play. And here there may be differences
among the opinions of various professionals.

Charlotte’s case pointed up how a close call may

lead to a such a difference.

Charlotte’s story might be called a run-of-the-

mill harassment story, although if it happens to

you, there is nothing commonplace about it.

During the first year of her employment, George,

her supervisor, befriended her. Talk was casual—

the job, their children. One day, however, he came
up behind her and placed his hands on her

shoulders. He remarked that she was very

attractive. She brushed his hands away and

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 thanked him for the compliment. Shortly

thereafter, he began groping her. When she

protested, he would leave her office. When George

continued his advances, Charlotte told a coworker.

This woman said he had done the same thing to

her, and she complained to the boss. However,

nothing was done. It was only when Charlotte

came to the firm that George stopped harassing

the other employee.

One afternoon, Charlotte had to get some

supplies in a rather secluded storage room. George

entered the room and pulled down his pants. He

started to grope her, but the sound of footsteps
interrupted them. After that incident, Charlotte did

her best to avoid him. Although the frequency of

the episodes diminished, it was apparent George

wasn’t about to give up. Finally, overcoming her

embarrassment, she reported him to the boss, who

said he’d conduct an investigation. According to

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 Charlotte, the only thing that happened after that

was that she was demoted. Consequently, she

called a lawyer.

Apparently, emboldened by Charlotte’s

lawsuit, several other employees revealed George

had approached them also. With that array of

potential witnesses, the fact of the harassment was

not at issue. The remaining question was whether

Charlotte was psychologically harmed by the
incidents. The company had Charlotte examined

by a psychiatrist.

Dr. Stern not only evaluated Charlotte himself,

but he also sent her to a psychologist for testing.
The psychological tests revealed Charlotte had a

long-standing mild depression—dysthymic

disorder, in diagnostic terms—which probably

had been present even before she worked for this

company. She also had a personality disorder with

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 avoidant traits—a tendency toward shyness and
low self-esteem. Personality disorders are also

long-standing. “Even in the clinical interview,” Dr.

Stern reported, “she says she is meeting all her

work and family requirements. She remains

actively involved with her church. In fact,

Charlotte feels she is capable of effectively

carrying out the duties of the position from which

she had been recently demoted.... Any reactions

she might have had were transient and expectable

reactions to the harassment.” Very little in the way

of psychological injury caused by the harassment.

Charlotte’s attorney sent her to me for another

evaluation, and hopefully an opinion more

favorable to her case. Essentially, I agreed with Dr.

Stern’s findings, but I felt they didn’t go far

enough. His report implied that there was no

psychological injury attributable to the

harassment; everything was long-standing—just

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 as before. He failed to spell out what the “transient

and expectable reactions” were.

Charlotte was having trouble sleeping, and she

didn’t wake up refreshed. She no longer felt quite

safe at home. Sometimes, she dreamed of being

grabbed and having to fight her way to safety, and

she woke up frightened. Occasionally she had the

feeling people were talking about her, and she was

embarrassed. Prior to the harassment, when men
glanced at her admiringly, her self-esteem got a

much-needed boost. “Now, if they look at me, I feel

like a piece of meat.” She tended to avoid one-on-

one situations with men. As she left, she turned
and said, “I hope I haven’t ruined your day.”

“What do you mean?” I asked.

“People don’t like it when you tell them sad

stories, because it makes them feel sad.”

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 In my opinion, Charlotte had the symptoms of

a post-traumatic stress disorder, albeit a mild one.

She’d been exposed to a distressing event, one

which involved the integrity of her body and her

sense of herself. She was feeling increasingly

caught in a bind between continuing in her job and
having to fend off her supervisor. The stressful

situation kept coming back to her in her dreams.

Her mind couldn’t relax enough to allow restful

sleep even when the dreams didn’t occur. And

while she was able to continue in many activities,

she tried to limit contacts which might bring back

thoughts of the supervisor’s actions.

While I essentially agreed with Dr. Stern about

the severity (or lack of it) of Charlotte’s problem,

there was a difference in emphasis. True, she had a

preexisting condition, but now there were new

symptoms which aggravated it. And the symptoms

could causally be connected with the supervisor’s

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 actions. I explained all that to Charlotte’s lawyer.

The jury would have to decide which emphasis to

accept. The case never got to court, because it was

settled.

Why did Dr. Stern and I reach essentially the

same conclusion but with different emphasis?

Perhaps it was because he consulted with the

defense team and I consulted with the plaintiff’s

attorney. One study20 found that plaintiff’s experts

more frequently report diagnoses indicating

significant reactions to the harassment, while

psychiatrists working with the defense team more

frequently use long-standing personality

diagnoses which de-emphasize reactions to the

harassment. I do remember, however, consulting

with a defense team and coming up with the same

kind of emphasis that I used in Charlotte’s case.

The lawyer thanked me and never called me again.

Perhaps Dr. Stern had the same experience.

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 While there are good reasons for claiming

emotional problems because of harassment, there

are also good reasons for avoiding such a claim.

Once the plaintiff puts her emotional condition

into the claim, her whole emotional life becomes

fair game for examination. The employer’s team
may gain access to records of any psychiatric

treatment she has had. Psychiatrists consulting

with the defense can probe for anything they can

use to discredit the plaintiff, to search for other

possible causes of the plaintiff’s discomfort, or

even to show that things in her background may

be complicating the way she remembers the

alleged harassment incidents.21

These are legitimate pursuits; not every

harassment allegation is true or happened the way

the plaintiff describes. But consider a woman who

has felt degraded by a severe and pervasive

harassing experience, a woman who feels guilty

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 and embarrassed. Does she really now want to

have her past sex life paraded in open court?

A few years ago, Attorney Sidney Crowe called

me. He told me he was given my name by a

colleague with whom I had consulted on workers’

compensation cases. Like his colleague, Mr. Crowe

was representing the company, but this was

against a claim of sexual harassment. Sarah Lewis

complained that harassment by a supervisor had
caused her significant psychiatric problems. I

agreed to evaluate her, but I told Mr. Crowe I’d call

it the way I see it.

“That’s what I want you to do,” he replied.

Maybe so, maybe not.

Sarah was a woman in her thirties. Her plain

but pleasant face was pulled taut by worry. Her

arms never stopped shaking. The story was similar

to those I’d heard before. A supervisor who moved

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 quickly from sexual innuendoes to propositions.
An employee who hoped it would all go away if

she declined. His unwanted touches, her fear for

her job. Years ago, when I first became aware of

sexual harassment, I was surprised that a

supervisor would be so bold as to come to the

employee’s home. Nowadays, I almost expect to
hear about it. And true to the script, Sarah told me

how she became numb when he appeared, and she

felt unable to resist.

Sarah’s story was consistent and not unusual;

whether it was true or not, I couldn’t say. The best

I can do in most of these cases is to assume the

truthfulness and to see if the reactions reasonably

follow from the accusation. It’s up to the lawyers

to argue the truthfulness.

According to Sarah’s psychiatrist, she had

severe general anxiety disorder and panic

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 disorder. She had even made a suicide attempt
several months ago and was briefly hospitalized.

His diagnoses seemed reasonable to me.

After an extensive discussion about her

current status, I turned to her past history. There

was no family history of official psychiatric

problems but her family was not functional. Her
parents divorced when she was three. Her father

“came by every so often.” He drank.

“Did he abuse you—physically or sexually?”

“Yes.” Very softly said.

“Which? Physically or sexually? Or both?”

“Both,” she whispered.

“Did you tell your mother?” I asked.

Sarah started to weep. “She knew. She did it

too. She played with me too.”

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 I let her cry. When she regained a bit of her

composure, she said, “That man, every time he

comes at me—he has my mother’s blue eyes.”

The foundation for Sarah’s shame and

humiliation and the basis for feeling trapped and

overwhelmed were laid many years before the

harassment. But Sarah had survived, even if

somewhat psychiatrically crippled. The

harassment at work revived and added to the
intensity of the earlier feelings. Post-traumatic

stress disorder could be added to the diagnostic

mix.

When I discussed this information with Mr.

Crowe, the attorney was delighted. “So, maybe

she’s unusually sensitive—sees harassment where

it doesn’t exist.”

I’d heard that argument before. I’d even read a

professional paper advocating that idea as a

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 defense—the “hypersensitive” plaintiff.22 I
explained that I could not say, to a reasonable

degree of medical certainty, that she was

hypersensitive to the extent that she saw

harassment where it didn’t exist. “Besides,” I

added, “as I understand it, a finding of harassment

rests on whether the conduct of the man would be
offensive to a reasonable woman, regardless of

how sensitive this particular woman might be.”

Mr. Crowe’s tone flattened as he agreed. “But

what about the degree of her reaction? Maybe if

she wasn’t raised in this kind of family, she

wouldn’t be so messed up now?”

I was sure Mr. Crowe knew the law better than

I, but even I knew the basic dictum that you take

your plaintiff as you find him or her.23 It doesn’t

matter if the plaintiff had a preexisting condition

in these types of cases; if the defendant’s actions

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 made these conditions worse, he or she is liable
for the whole reaction.

I guessed that something else was going on in

the attorney’s mind, and I decided to confront it.

“Look,” I said, “I’ve done the evaluation. I have the

facts as she told them to me—even the dirt on her

family. If I’m called to the stand, I will report what
I know fully and honestly. You know, and I know,

that the threat of this exposure will only add to

Sarah’s grief. Maybe she’s not up to it, and maybe

she’ll cave in and not press her suit. But on the

other hand, maybe she won’t cave in, and the jury

will have more pity for what they see as ‘this poor

girl, how she’s suffered all her life—and now this!’

I’ll cooperate with you on the stand, but it’s your

call about whether you want to risk it.”

The company must have decided the risk was

too great, and they settled the case.

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 Advice like this and testimony based on data

from the plaintiff is an appropriate function of the

psychiatrist. However, of all the types of forensic

psychiatric situations, sexual harassment cases are

the ones which can arouse the strongest feelings.

We all have our biases24 when it comes to the role

of women. Some think women are exploited by

men with power; others think women’s claim of

powerlessness is a ploy to exploit men.

Psychiatrists are not immune to the continuing

war between the sexes. Only if the forensic

psychiatrist is doubly careful to maintain

objectivity can he or she avoid the temptation to

veer from the data and become an advocate.

Notes

1All names and incidents in this case discussion are accurate

as documented in the references.

2 New York Times, October 4,1994, p. A12

3 Ibid., May 1,1992, p. A14

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 4 Ibid., September 25,1992, p. Al

5 Ibid., February 11,1994, pp. 24-25

6 Ibid., October 28,1994, p. A22

7 Ibid., November 1,1994, p. A24

8 Merit System Protection Board: Sexual harassment in the

federal workplace: Trends, progress and continuing
challenges. Unpublished document, 1995

9 Skaine R: Power and gender: Issues in sexual dominance and

harassment. Jefferson, N.C.: McFarland and Co., 1996, p.
31

10 42 U.S.C. §2000e-2(a)(l)

11 Bundy v. Jackson 641 F. 2d 934, 943-946 (1981)

12 Ellison v. Brady 924 F.2d 872, 878-9 (1991)

13 Meritor Savings Bank v. Vinson 477 U.S. 57, 68 (1986)

14 Ibid.

15 29 C.F.R. §1604.11(a)(3) (1980)

16 Shafran LH: Sexual harassment cases in the courts, or

therapy goes to war: Supporting a sexual harassment
victim during litigation. (In) Shrier DK (ed.): Sexual
harassment in the workplace and academia: Psychiatric
issues. Washington: American Psychiatric Press, 1996,
pp. 133-153

17 New York Times, October 14,1991, p. A10

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 18 Charney DA and Russell RC: An overview of sexual
harassment. Amer. Journ. Psychiatry 151: 10-17,1994

19 Harris v. Forklift Systems, Inc. 510 U.S. 17, 22 (1993)

20 Long BL: Psychiatric diagnoses in sexual harassment cases.

Bull. Amer. Acad. Psychiatry Law 22:195-203,1994

21 Feldman-Schorrig SP and McDonald JJ: The role of forensic

psychiatry in the defense of sexual harassment cases.
Journ. Psychiatry and Law 20: 5-33, 1992

22 Ibid.

23 Restatement of the Law of Torts 2d, §461,1965

24 Gold LH: Addressing bias in the forensic assessment of

sexual harassment claims. Journ. Amer. Acad. Psychiatry
Law 26: 463-478,1998

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 Chapter 11

Unfitness for Duty

Shortly after midnight on March 3, 1991, the
highway patrol was racing after a speeding white

Hyundai sedan. When the car turned off the

highway and into the local streets, its pursuers

called the local police department for assistance.

The Hyundai tore around the city streets at 55

miles an hour in a 40-mph zone. By the time the

Los Angeles police officers caught the speeder, 10
patrol cars and a police helicopter had been called

in to assist in the chase.

The wail of the sirens and the roar of the

helicopter woke up the neighborhood residents,

many of whom went outside to see what was

going on. According to their reports, the driver got

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 out of the car with his hands up, and he lay down

on the ground. This might have been voluntary or

in response to police orders; the residents were

too far away to hear police commands. On the

other hand, one witness thought there might have

been a scuffle, and the police said the driver began

to charge at an officer.

Whichever version is correct, ultimately the

driver was on the ground. His name was Rodney

King.1 He was a 25-year-old unemployed

construction worker who had recently been

released from prison. He was on parole, having

served six months of a two-year sentence for a

robbery during which he had brandished a tire

iron. However, the police at the scene didn’t have
this information.

George Holliday, one of the witnesses,

videotaped what happened next. An officer

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 shocked Mr. King twice with a stun gun and was in
a position to administer further shocks if

necessary. Two officers took turns beating him

with billy clubs, and a third officer intermittently

kicked him in the head. At least ten other officers

stood by and watched. Only one policeman briefly

tried to intervene, but then he withdrew. The

residents were shouting for the police to stop.

“Don’t kill him,” they cried. The police ignored

them. At the end of the beating, the officers

handcuffed Mr. King. They hog-tied him and

dragged him, face down, to the side of the street.

During all this time, Mr. King offered no resistance;

he was pleading with them to stop.2

According to police audiotapes3 the following

lighthearted exchange occurred between Sergeant

Koon on the scene and the watch command:

Koon: “You just had a big-time use of force ... tased

and beat the suspect ... big time.”

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 Command: “Oh well, I’m sure the lizard didn’t
deserve it, ha, ha!”

And from one of the officers: “Oops!”

Command: “Oops what?”

Officer: “I haven’t beaten anyone this bad in a long

time.”

Command: “Oh, not again ... Why for you do that? ... I
thought you agreed to chill out for awhile….”

But for Rodney King there was nothing

lighthearted about the situation. The doctors at

the hospital reported he had nine skull fractures, a

shattered eye socket, a broken cheek bone, a

concussion, a broken leg, injuries to both knees,

and damage to a facial nerve which left his face

partially paralyzed. And all this while lying on the

ground.4

Chief Daryl Gates described the incident as an

“aberration.”5 Perhaps it was; in a police force of

over 8,000 officers, a few cases might be called

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 “aberrations.” However, in 1972, the city paid out
$533,000 in settlements of such cases. By 1990,

that figure had grown to $8 million.6 A rather

expensive aberration!

Three officers and Sergeant Koon were

acquitted of misdeeds by a state court. However, a

federal court convicted one officer and the

sergeant of violating Mr. King’s right to be kept

free from harm while in custody.7

What interests us here, however, is not the fate

of the officers but the nature of their actions. They

used brutal force where it was not necessary. They

acted as if it were a joke. They failed to restrain

the active perpetrators. All this was done with

such callousness that the policemen didn’t even

seem to mind that the neighborhood residents

were watching and pleading with them.

During the period when many of these men

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 were recruited and hired, the Los Angeles Police
Department, like most major departments across

the country, required the applicants to take a

battery of psychological tests and to have a

personal evaluation by a psychologist.8 How, then,

did these men ever get hired?

Let us start by assuming the department had

screened out the obvious negatives, such as
disqualifying physical problems, a history of

violence, inadequate education, a record of poor

job performance, a criminal record, etc. Our focus

will be on the process of screening out those

applicants with psychopathological traits which
would interfere with proper police performance.

There is a variety of personality tests and other

procedures in use for screening police officers.

Unfortunately, “serious questions remain as to the

validity and reliability of such procedures.”9

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 We must understand what psychologists mean

by validity. As I mentioned in Chapter 8, the term

“validity” is used in a variety of ways. Some test-

makers say their test has face validity. All this

means is that the questions on the test obviously

relate to the thing the test is supposed to measure
(on the face of it). Some psychologists state their

test is valid if it correlates with other tests

purporting to measure the same thing—

convergent validity. There are several other types

of validity,10 none of which get to the bottom line

of what the screening is supposed to do. The

bottom line is whether the test can predict how

the applicant ultimately will perform on the job.

This is predictive validity. Studies have shown that

personality tests “tend to show inconsistent

correlation with police performance ….”11

Why is the predictive power of the tests so

inconclusive? In the first place, there isn’t general

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 agreement about what traits a good police officer

should have. Ask the chief and then ask the

patrolman on the street and you may get two

different views. Second, the test-taking situation is

very different from the actual situations which

may come up suddenly. Further, stresses at home

may unpredictably influence behavior on the job.

And of greatest importance is the actual value

system which the new recruit learns as he or she
picks up the informal rules of older colleagues.

The code of silence, present in every profession,

demands that you protect your colleagues when

their behavior has crossed the line. But you’d

never admit to that on a personality test. Indeed,

you might join the force vowing to be true to the

Boy Scout oath, but you soon learn that you have

to go along to get along. Subtle and overt messages

from higher up on the chain of command can set a

tone which allows or even encourages misdeeds.

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 We can see these factors in the Rodney King

case. The sergeant didn’t intervene. Only one

patrolman tried to stop the attack, and he did it

only briefly. People joked about the incident,

calling the victim a lizard. Half an hour before the

incident, two of the officers were recorded
exchanging racial jokes with foot patrolmen.

Rodney King was a black man. Rather than

immediately condemning the incident, Chief Gates

said Rodney King created it by speeding and

resisting arrest. Besides, the incident was an

aberration. And, according to the audiotapes, one

of the perpetrators already had a record of

stepping over the line. The department’s reaction

was to tell him to “chill out for a while.” With a

value system such as this, the policeman on the job

becomes a different person from the one who took

the test.

“Shaping” the employee on the job does not

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 occur only on the police force. On a social occasion

with friends, my wife and I were invited to play an

“ethics game.” Our host had a mid-level

management position in a large manufacturing

company. The Human Resources Department had

developed the game and passed it out to all

employees. The game consisted of a series of

situations requiring ethical decisions in the

factory, and each contestant got points for the
correct answer. Halfway through the game, we

gave up, because as the host said, “If you acted like

this game says, your supervisor would see that

you got fired—if you didn’t get punched out by

your fellow workers first.”

If the tests are so inconclusive, are they of any

use at all? Surprisingly, they are. They may weed

out some of those people whose traits clearly point

to an unsuitable candidate, even if they don’t get

all of them. Of course, they will also weed out

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 some people who don’t deserve to be left behind.

While this is unfair to those applicants, from a

business and safety point of view, when there are

considerably more applicants than job spaces, the

company can tolerate losing some potentially good

candidates.12 In the case of policing and some

other professions, better safe than sorry. As I

discussed in Chapter 6, you don’t judge the

usefulness of a procedure solely on the degree of
its accuracy; you must consider the value of the

procedure in the context of where it is used. In

some situations, such as murder trials, you need a

high degree of confidence that you are accurate; in
other situations, such as employment screening,

you may settle for less accuracy if the procedure

has some utility.

But what about the bad apples who slipped

through? They never would have progressed to

the testing stage unless it was thought they were

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 good candidates. Without the tests, they would

have been accepted anyhow.

Management is not entirely free to pick and

choose from among the applicants they feel are

qualified. The 1964 Civil Rights Act13 prohibited

discrimination in employment, and the courts

have underlined this prohibition.14 The U.S.

Commission on Civil Rights has called into serious

question whether the psychological tests used in

employment have subtle biases which may

systematically tend to discriminate against certain

classes of applicants.15

If biases can creep into standardized tests, how

much more likely are they to crop up in the

personal interview by a psychologist or

psychiatrist. I encountered an unusual interview

bias in the case of Robert Strong. Robert had

applied for a position as a deputy sheriff in a rural

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 county. By law, he had to be evaluated by the local
mental health center. The psychologist at the

center administered an MMPI-2 test and

conducted a personal interview. Her report to the

sheriff indicated that while the MMPI-2 showed no

outstanding psychopathology, Robert had acted in

a hostile and defensive manner in the personal

interview. She sensed Robert was hostile toward

women. Therefore, she had reservations about

clearing him for employment.

The sheriff considered the report inconclusive.

It may be that he felt Robert was a good recruit. It

may be that he needed another deputy and there

were few applicants. It may be that he just wanted

to cover himself legally by getting a more strongly

worded report. Whatever the reason, he asked me

to reevaluate Robert.

I read the report of the MMPI-2. It showed

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 Robert had answered the questions in a “frank and
open manner.” There was no suggestion of undue

defensiveness. All the scales were within normal

limits, and while there were some positively and

some negatively toned traits (all of us have some

of each), nothing stood out with respect to the

position he was seeking. As the psychologist

wrote, the problem arose in the interview. Her

report said nothing more than that Robert was

hostile and defensive. She cited no actual data to

back up her conclusions. What did he say that was

hostile? What signs did he exhibit to indicate

defensiveness? Unfortunately, I have read many

reports that are confined to conclusions or

interpretations without showing the evidence on

which the opinions are based. A good forensic

report will cite sufficient data to allow the reader

to understand how the reporter reached the

conclusion. Or if the interpretation is too

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 specialized for the layperson, at least another

psychiatrist should be able to understand how the

opinion was reached.

Robert told me he had already started his on-

the-job training in the jail when he traveled to the

mental health center for his interview. While he

had not yet been issued a uniform, he did have

handcuffs which were in his back pocket at that

time. His account of the interview went like this:

“The lady came into the waiting room and

asked if I was ready. She didn’t introduce herself.

She was kinda hateful. I said, ‘Yes, ma’am.’ and I
followed her to her office. She saw the handcuffs in

my pocket and she asked if I always carried

handcuffs. I explained I was just coming from

work. She said, ‘Tell me about your father.’ I asked

if that question was relevant. She said, ‘We always

ask these questions. Why are you mad?’

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 “I told her I don’t like people asking about my

personal business. ‘Not you, but people in general.’

She said, ‘If that makes you mad, you must have
something to hide.’ I told her I love my dad; he’s a

good man. Then she said, ‘OK, it’s over.’ The whole
thing lasted about thirty minutes.” If the interview
lasted at least that long, there was more to it than

he recounted. He was giving me the summary of

his impression of the interviewer.

Whatever the psychologist’s attitude, Robert

wasn’t very smart in fending off her inquiry about

his father, even though many other deputies in

that area also guard their “personal business.” On

the other hand, the psychologist’s reply was
standard psychobabble and was a challenge in

itself.

I inquired about his relationships with women.

He had been married once, but he divorced his

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 wife when she cheated on him while he was
working in another city. He paid child support and

had a good relationship with his daughter. His

mother was “the neighborhood grandma—all the

kids liked her.” He got along well with his dad.

Robert had worked under several female

supervisors in the various jobs he’d held, and

there were never any problems. When he was

younger, he did get into a “hotheaded” argument

with a male foreman, and he was fired. He was

honorably discharged from the Army.

I had to evaluate Robert not in terms of what I

might think would make the ideal deputy, but in

terms of what I knew about the type of deputy in

his community. Perfect? No. Reasonable, yes. I

could find nothing in what he told me to indicate

he had a particular hostility toward women which

would interfere with reasonable job performance.

The most I could come up with was that somehow

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 the interview with the psychologist got off on the

wrong track and didn’t recover. What I had heard

through the grapevine (but didn’t mention in my

report) was that this psychologist had an

“attitude” about men.

With the personal interview, we must be as

careful as possible not to let our own biases

influence either the way we conduct the interview

or how we interpret the data. I concluded that I
found nothing in my evaluation that would

preclude Robert from working as a deputy sheriff

in that locality. Notice my wording! I didn’t say he

would make a good employee. As I have described
above and the research on testing bears out, we

cannot predict good employee behavior with any

confidence. But we can sometimes weed out

unsuitable employees.

If that is the case, is there really any role for a

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 psychiatric interview? In my opinion, there is, but
it is a limited one. We are on safest ground when

we are evaluating someone who might be

suffering from disqualifying psychiatric illness.

A manufacturing company had a concern about

an applicant for a position as sales representative.

The job would require him to travel around to
potential purchasers to secure orders and to

respond to any difficulties which might arise after

the equipment was in use. The pace was fast and

the sales goals were ambitious. It was a job with

some potential stress. Jack had a good track record

and seemed quite appropriate for the job. The

problem was that four years ago, he had been

hospitalized on a psychiatric unit. According to

him, he’d recovered and was doing well. Still, he

had made a suicide attempt and had been

diagnosed as having had a severe major

depression. With this record of mental illness, how

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 safe was the company and Jack, himself, if he got

the position?

Although the Americans with Disabilities Act

requires employers to accommodate employees

with disabilities, they may decline to employ them

or they may discharge them if there is no

reasonable way the employee can be

accommodated without causing “undue hardship”

to the employer.16 The question, then, was

whether Jack’s problem would cause him to be

depressed again if the job he sought proved to be

too stressful.

I examined Jack’s medical records. He never

previously had psychiatric consultation, and there

was no record of mental illness in his family. He

had developed headaches, and his family doctor

diagnosed migraine and prescribed two

medications. The headaches continued and the

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 doses were raised. Then the “psychiatric
problems” started. Jack reported some confusion

and concentration difficulty. He had difficulty

sleeping. The doctor added a sleeping medicine,

and when the sleep pattern didn’t change, he

added an antidepressant medicine with strong

sedating properties. Essentially, medicine after

medicine was added. Usually an energetic person,

Jack found his energy lagging. He was losing his

sexual ability as well. The doctor diagnosed

depression and added yet another antidepressant

medicine. One day, Jack drank some beer and took

too many of his pills. His wife came home and

roused him, and she called the doctor who

admitted him to the psychiatric unit of the local

hospital.

When a consultant took Jack off all the

medications, his mind gradually cleared and his

energy returned. Nevertheless, the diagnosis of

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 major depression, severe, was written on his

discharge summary.

Jack gave up on his original doctor, and the

new family practitioner put him on a different

migraine medication which controlled the

headaches. When I saw him, he’d been free of all

the other medicines for three years, and he felt

like his old self.

It was not difficult to account for Jack’s

condition. The migraine plus the medication

cocktail he took produced all his symptoms, some

of which mimicked the symptoms of depression.

As for the suicide episode, Jack acknowledged

he’d wanted to die. He was always an energetic

man who depended on his wits to make a living.

He could no longer face the possibility he’d be a

mental cripple for life. What was there to look

forward to? He was reacting to severe stress, and

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 during a period when he couldn’t think too clearly
anyway. I could find no psychiatric reason Jack

could not perform well on the job.

In many companies, the Americans with

Disabilities Act applies not only to pre-

employment screening, but also to long-time

employees who have become disabled. Actually, it

is often in the company’s best interest to salvage

employees with disabilities. Employee turnover

can be costly. The company may have invested

considerable time and money in training the new

recruit. A worker’s on-the-job experience is a

valuable asset. A psychiatric evaluation may be

helpful.

Roger was a foreman in a large construction

company. In many ways, he showed he knew the
business. However, recently his effectiveness was

ebbing. He was losing the respect of those he

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 supervised, and he was getting more irritable.
Then, he began to call in sick. Finally, he took

medical leave because of persistent panic attacks.

He would wake up with cold sweats. When

thinking of going back to work, his heart would

pound and he’d gasp for air. The longer he stayed

away, the less he was bothered. In addition, he

was now seeing a psychiatrist who prescribed

antipanic medication. By the time I saw him, he

was virtually symptom-free. He was able to go in

to the company’s offices to discuss his status

without having panics. However, he dreaded going

back to work as a foreman, and he was asking for a

different position. The company wanted to know if

he could function on the job. They also wanted to

know whether work would trigger another bout of

illness.

When I examined Roger, I was immediately

struck by his over-attention to detail. When I

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 asked about his difficulty, he started giving me a

lengthy work history, including his education and

his military service. He was working up to the

current job, but not without background. This is

circumstantial thinking. Often, you can’t even

interrupt a person with this type of train of

thought; you just have to sit back and let it all

wash over you until he or she reaches the point

where your specific question is answered.
Fortunately, Roger was able to respond to my

structuring. But what did come out in his speech

was that he had an almost moral conviction that

rules are made to be followed. The laborers who

worked under his supervision had a much more

laid-back approach. The various craft people

(carpenters, equipment operators, etc.) seemed to

pay more attention to the rules of their unions

than to the requirements of the work at hand.

Inefficiency bothered Roger, and the stage was set

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 for conflict.

If inefficiency bothered Roger, conflict

bothered him more. His relationship with the

workers deteriorated. As his anger mounted, his

attitude toward the “lazy” workers hardened. But

Roger also had difficulty in expressing anger, and

it boiled over as panic attacks. Violence was not in

his repertoire. My diagnosis was panic disorder,

situationally triggered.

We discussed his work possibilities. He wanted

to return to work, but “if they put me back with

those guys, I’m not going to cut them any slack
anymore.” He felt their lack of respect was due to

the fact he had tried too hard to be a nice guy. It

was inconceivable to him that his rigidity might be

contributing to the problem. Obviously, if he

returned to the same situation, his panics were

likely to resume—even despite the medication.

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 The best medicine would be a job transfer to a
position which could utilize his knowledge and

experience in a setting less likely to cause these

conflicts. The company agreed to give him some

additional training and move him to an office

position.

Many large companies employ industrial

psychiatrists as part of the management team.

They may recommend treatment and workplace

accommodations for employees, such as Roger, in

accordance with the Americans with Disabilities

Act. They may also weed out workers whose

disabilities render them unsuitable for continued

work anywhere in the organization.

However, the psychiatrist working in industry

can run into the same ethical problems as the

freestanding forensic psychiatrist. As I described

in Chapter 1, it is tempting to bend the data to fit

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 into the needs of the person or organization that is
paying you. The freestanding forensic psychiatrist

wants continued referrals; the industrial

psychiatrist wants to retain his or her high-

salaried position with the company. From the

standpoint of testimony, there is little difference

between a prostitute on the street and a concubine

in the company. But even if the psychiatrist

approaches the evaluations with more honesty, he

or she also runs the danger of identifying too

closely with the management team. His or her

opinions may be shaped not by venality but by the

attitudes and value system of the organization’s

management culture.

This becomes problematical especially when

the employee is not claiming a disability, but

management seeks to establish that the worker is

psychiatrically impaired. Employers are not above

attempting to use the psychiatrist against an

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 unsatisfactory employee. It may be difficult for the
industrial psychiatrist to maintain objectivity.17

The American Psychiatric Association has stated

that the “risks of abuse and misuse of psychiatry

are inherent when a psychiatrist employed by an

organization conducts an examination of an adult

who is required by the organization to undergo

examination.”18 However, a group of occupational

psychiatrists stated that, in their experience, the

bulk of the referrals are made by employers who

wish to help the worker work more effectively.19

In their opinion, only infrequently will the

employer use a psychiatrist to obtain information

“with which to ‘hang’ the employee.” This may well

be true, but it would be difficult to set up a

systematic study in order to get data.

Why would an employer want to use a

psychiatric evaluation as a means of “hanging” an

employee? As I described in the previous chapter,

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 sometimes it occurs when a worker threatens to

sue for sexual harassment. Psychiatric scrutiny

might turn up things which are useful for the

company’s defense. The risk of exposing a

checkered past may persuade the alleged victim to

drop the lawsuit altogether.

However, there are other situations where the

company wants to get rid of an employee. This

may occur, for example, with whistleblowers or
disruptive workers. But why bother with a

psychiatric evaluation? Why not just fire the

“offender”?

The twentieth century has seen a proliferation

of laws protecting the rights of workers.20 Prior to

that time, workers were subject to virtually the

total control of their employers. It was only at the

end of the nineteenth century that some courts

began to allow workers to organize and to strike.

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 However, strikebreaking by violence, including the
use of government troops, was common. The

1930s was a pivotal decade in labor relations in

this country. Congress granted unions the right to

collective bargaining.

After the end of World War II, strikes against

large corporations reached such record numbers
that Congress tipped the balance between

management and labor more toward management.

Indeed, this balance is a dynamic one, sometimes

challenged in the courtroom. And while

management can use its discretion in hiring and

firing, the constraints imposed by the Civil Rights

Act, the Americans with Disabilities Act, and other

legislative prohibitions against certain types of

antiunion activity cause employers to seek solid

reasons for dismissing an employee. One of these

reasons may be the employee’s inability to

perform safely or productively because of some

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 psychiatric condition which the company cannot

reasonably accommodate. Regardless of the real

reason, it is helpful for the company to have a

“flexible” psychiatrist. Lawyers who may have to

defend companies against suits for wrongful

dismissal advise the employer to “take a detailed

history of personal problems.”21

Carl worked in a paper mill. The company was

already at odds with the community because the

gasses it emitted had a foul odor. More days than

not, the town smelled like rotten eggs. In addition,

the company’s liquid waste flowed into the river.

Fish were dying. In the eyes of an increasingly

vocal group, the dead fish were a clear sign the

company’s pollution was causing all sorts of

illnesses in the city. Cancer, asthma, rashes—you

name it, most everything was attributed to the

company’s blatant disregard for the community.

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 For its part, the company maintained that the

odor and the river contamination were the price

the city paid for hosting the paper mill, a mainstay

of the economy in the area. But the price, while

inconvenient, did not pose any serious health

risks. Their health scientists had studied the plant
and declared it safe.

About three years into the job, Carl began to

notice the company taking short cuts which
resulted in safety hazards. He reported these

safety violations to his supervisor who said these

small infractions of the rules had to be tolerated in

order to keep production up and costs down.

While there were occasional small accidents, no
major disasters happened. However, when Carl’s

wife, Judith, developed lupus, a systemic disease

involving the production of certain antibodies,

Carl put two and two together and got four—or

was it five? If the company could be so callous

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 about safety within the plant, it could be just as

callous about safety in the community. Judith’s

family physician said he had reviewed the

company’s health studies, and it was very unlikely

that pollutants from the company could have

produced her illness. However, activists in the

town claimed the doctors were in league with the

company to cover up the situation. Carl thought

they might be right, and he joined the group. The
activists were more than glad to display their new

recruit; after all, he was an insider and he knew

what the company was doing.

Management took a dim view of Carl’s

activities. At first, health personnel from the

corporate offices tried to dispel what they claimed

were Carl’s incorrect conclusions. Pretty soon

things developed into a we-versus-they situation.

Carl felt he was being harassed because he was a

whistleblower. Management felt he was

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 destructive to the company in a town where they

had enough troubles without him. He was sent to

corporate headquarters to meet with the company

psychiatrist. The psychiatrist said Carl was

paranoid and his disorder was likely to further

impede his job performance. Carl was furious and

he consulted an attorney who sent him to me for

an independent evaluation.

I read the psychiatrist’s report. Essentially, Dr.

Spann recorded Carl’s complaints about the safety

infractions and the health problems. When Dr.

Spann couldn’t convince him that his fears were

unfounded, he concluded that Carl had fixed
delusions. Even the MMPI-2 confirmed Carl’s

paranoid tendencies. Carl was sick and should be

started on antipsychotic medications! And

working at the mill was just an added stress,

feeding into his illness.

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 My impression was quite different. Certainly

Carl was concerned. He was worried about his

wife. “I don’t know, Doc,” he said. “There are too

many coincidences. Everybody’s getting sick and

the company only seems to care about

production.”

“What don’t you know?” I asked.

“Maybe I’m wrong. Not about the safety stuff, I

mean. I see that with my own eyes. And the

company doesn’t do anything about it. But the

sicknesses, the dead fish and all. It looks mighty

damn suspicious. And you can’t trust the
company.”

Delusions are false beliefs, but they are beliefs

which tend to be fixed. If you challenge a delusion,

the person is likely to get angry. “Maybe I’m

wrong” points away from a delusion. Delusions are

also false beliefs not shared by associates. There

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 was nothing bizarre or unusual about Carl’s
beliefs, and these beliefs were the fabric of the

activists’ protests. I have no way of knowing

whether the activists’ beliefs were correct or

incorrect, but they weren’t delusions.

But what about the MMPI-2? It was true there

were some features pointing to suspiciousness.

That scale was minimally elevated. Carl reported

that he believed he was being plotted against, that

someone had it in for him, that he was being

talked about, that people were saying insulting

things about him. When I asked him about those

responses, he referred only to the actions the

company was taking against him—sending him to

a psychiatrist and saying he was paranoid. He felt

the company was trying to get rid of him (plotted
against him). Once again, I had no way of knowing

the company’s motives, but in my view Carl’s

suspicions were not unreasonable. These answers

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 didn’t rise to the level of delusions.

So much for my diagnosis of Carl. As for Dr.

Spann, in my opinion, maybe he didn’t understand

what constitutes a delusion (although most

psychiatrists do). Or maybe he had absorbed

management’s ideology that troublemakers are

unreasonable even though the company tries to

look out for their welfare. Perhaps, his diagnostic

acumen was warped by the organizational culture.
Or maybe he was a concubine. A prostitute by any

other name...

Although fitness-for-duty disputes may end up

in the courts, often they do not. Nonetheless, the
psychiatrist’s report should reflect the same

standards required in other courtroom testimony:

helping the decisionmakers by presenting

specialized information backed up by data and

reaching the criterion of a reasonable degree of

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 medical certainty. And in my opinion, we are on
safer grounds when we pose the question not in

terms of whether the applicant or employee is fit

for duty, but rather whether we can support the

conclusion that he or she is unfit. That is the

opinion we may have to defend on the witness

stand.

Notes

1 All names and incidents in this case discussion are accurate

as documented in the references.

2 New York Times, March 18, 1991, p. A1; p. B7

3 Los Angeles Times, March 19, 1991, p. A20

4 New York Times, March 10, 1991, p. A23

5 Ibid., March 7, 1991, p. A18

6 Ibid., March 18, 1991, p. B7

7 Ibid., April 18, 1993, p. I1

8 Los Angeles Police Department: personal communication

9 Blau TH: Psychological services for law enforcement. New

York: John Wiley and Sons, 1994, p. 110

10 Silva S: Psychometric foundations and behavioral

www.freepsychotherapybooks.org 470
 assessment. Newbury Park, Calif. Sage Publications,
1993, pp. 65-124

11 Henderson, ND: Criterion-related validity of personality

and aptitude scales. (In) Spielberger CD (ed): Police
selection and evaluation: Issues and techniques. New
York: Hemisphere Publishing Corporation, 1979, pp.
179-195

12 Blau: Psychological services, pp. 110-111

13 42 U.S.C. § 2000e-2(a)(l)

14 Dothard v. Rawlinson 433 US 321, 328-331 1977

15 U.S. Commission on Civil Rights: The validity of testing in

education and employment. Unpublished document,
1993

16 Perritt HH: Employment dismissal: Law and practice (4th

ed.) (vol. 1). New York: John Wiley and Sons, 1998, pp.
244-245

17 Glasser E: Ethical issues in consultation practice with

organizations. Consultation 1:12-16,1981

18 American Psychiatric Association: Statement on

employment-related psychiatric examinations. Amer.
Journ. Psychiatry 142: 416,1985

19 Group for the Advancement of Psychiatry: Introduction to

occupational psychiatry. Washington: American
Psychiatric Press, 1994

20 West Group: West’s encyclopedia of American law (vol. 6).

www.freepsychotherapybooks.org 471
 St. Paul, Minn.: West Group, 1998, pp. 371-374

21 Perritt: Employment dismissal, p. 84

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 Chapter 12

“Troublemakers”
One June morning in 1860, Mrs. Elizabeth
Packard1 saw her husband approach her bedroom

with two physicians and a sheriff. Not yet dressed,

she locked her door and started to put on her

clothes. Her husband gained entry by chopping out

the window with an ax. Since she was not fully

clothed as yet, she ducked under the covers. The

doctors felt her pulse and said she was insane.

They had asked her no questions.2

Mrs. Packard was not entirely surprised; she

had seen this coming for a long time. On several

occasions, her husband, a Presbyterian minister,

had threatened to put her away. Now he told her

that, in accordance with the law, he was placing

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 her in the asylum in Jacksonville, some distance

from their home town of Manteno.

The law was, indeed, on his side. This was

Illinois in the mid-nineteenth century, and the law

stated that “married women and infants, who, in

the judgment of the medical superintendent are

evidently insane or distracted, may be entered or

detained in the hospital on the request of the

husband of the woman ... without the evidence of

insanity required in other cases.”

Elizabeth Packard didn’t put up a fight, but she

did actively refuse to participate in what she

referred to as her “kidnapping.” She was carried

on to a lumber wagon and taken to the train depot.
A crowd of her sympathizers and well-wishers had

gathered there to defend her, but the reverend’s

brother-in-law, Deacon Dole, controlled the crowd

by telling them that not only was the commitment

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 backed by the law, but “the interest of our beloved
pastor and the cause of the church required it as

an act of self defense.”

Upon her arrival at the hospital she was taken

to a relatively pleasant, if sparse, ward by Dr.

Tenny. He was not the hospital superintendent.

Apparently this was standard procedure. It was
only the next day that she met with Dr. McFarland,

the superintendent. Other patients told her that

none of them ever met with him. Perhaps this visit

was a bow to her social position as the pastor’s

wife in the community. However, not long

afterwards, she was moved to a filthy back ward

with more seriously ill patients. She stayed there

for three years before being discharged.

Why did the Reverend Packard send his wife to

the asylum?3 When Elizabeth was 19, she had an

attack of “brain fever” (probably delirium) during

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 which she saw visions. After six weeks in the
hospital, she fully recovered. Three years later, at

the prompting of her father, she married the

Reverend Theophilus Packard who was fifteen

years her senior. Both families were prominent in

their respective Massachusetts towns.

Despite the fact that Mrs. Packard found her

husband cold and domineering, their marriage

was relatively uneventful for the first fifteen years.

They had five children, and Mrs. Packard assisted

her husband in Bible class.

However, when the Reverend Packard moved

the family west, Mrs. Packard began to do things

which did not meet with her husband’s approval.

She started working in the community rather than

staying in the home. She developed an interest in

Spiritualism. She invited visiting Universalist

ministers into the house. She began publicly to

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 criticize Calvinist teaching. And (perhaps worst of
all), she asked to be dismissed from the

Presbyterian church in order to join the

Methodists. Shortly thereafter, he had her

committed.

According to his diary, he felt her derangement

was probably due to inborn tendencies, but her
ideas posed a threat to his children and to his

church. Since mental illness was not well defined

at the time and since he had high ministerial status

while she had the status of a housewife, it wasn’t

difficult to commit her. The Reverend Packard,

however sincere he may have been, put his wife

away because she was making trouble.

But if she was a troublemaker, was she also

insane? Some troublemakers are, some aren’t. The

line between the two can sometimes be blurred. I

shall address this problem in Chapter 14. When

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 we look at Mrs. Packard’s case, we must consider
her actions not in the light of today’s knowledge,

but against the ideas about insanity in mid-

nineteenth-century America. Who better to turn to

than Dr. McFarland, who presented her case in

1863 to an assembly of asylum superintendents.4

She was suffering from “moral insanity”—an

acceptable diagnosis at that time. To document

this diagnosis, he recounted how she thwarted her

husband and “tore the church all to pieces.”

Although moral insanity was supposed to be

accompanied by deterioration of the intellect, Dr.

McFarland acknowledged that her superior

intellect remained intact for the first two years. It

was only when reading the book she was writing

that he discovered she had a delusion that she was

the female Holy Ghost, a sign of intellectual

problems. Indeed, Mrs. Packard did feel she’d been

chosen by God to work on behalf of the insane.

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 Even today, people get “the call” to a religiously

inspired vocation. This, in itself, does not

constitute a delusion nowadays, nor did it back

then.

Elizabeth agitated for improved hospital

conditions and for a fair hearing for herself.

Finally, she mobilized several patients in the back

ward and they secretly began to destroy hospital

property. She was a troublemaker all right, but the
hospital gave in and living conditions began to

improve. After she threatened to expose Dr.

McFarland and the hospital, he maneuvered the

trustees of the asylum to eject her. Apparently she

was not insane enough to merit further
commitment.

The Reverend Packard was not happy to have

his wife home. He boarded her with her stepsister

in another city. She returned to Manteno, and

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 eventually he locked her in her room and boarded
up the windows. Somehow, she sneaked a note to

a friend who started court proceedings against her

husband. He had to show the judge why he was

keeping his wife prisoner.

When the trial started, the judge changed the

rules. He stated that the issue was not
imprisonment but whether Mrs. Packard was,

indeed, insane. The Reverend Packard brought in

three doctors, one of whom said she was

“hopelessly insane.” Another said he was one of

those who had previously certified her as being

insane, but “three quarters of the religious

community are insane in the same manner.” The

third of the Reverend Packard’s witnesses said he

wasn’t sure. A letter from Dr. McFarland said she

was “incurably insane” at the time of her

discharge. Even against the background of the

period, discharge is a strange way to treat the

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 incurably insane.

None of the doctors testifying in Mrs. Packard’s

behalf said she was insane. Neither did the crowd

of townspeople who knew her well. After a seven

minute deliberation, the jury declared her sane.

There is much more to the Elizabeth Packard

story. She wrote several books and worked hard

for the improvement of conditions in mental

hospitals. In 1865, the Illinois legislators repealed

the law denying married women the same rights

in commitment that others had. In Massachusetts,

she urged the legislators to change the law so that

deviant opinions and ideas could not trigger
commitment unless there was also deviant

behavior. She wanted to protect those who had

original ideas and who wished to reform society.

With her books and energy, Elizabeth Packard

played a significant role in shaping the practice of

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 hospital psychiatry in the nineteenth century.5 Not
bad for an “insane” woman.

As for the Illinois law which put Elizabeth in

the hospital, one legislator said, “Thus we see a

corrupt husband, with money enough to corrupt a

Superintendent, can get rid of a wife as effectually

as ever was done in a more barbarous age. The
Superintendent may be corrupted either with

money or influence, that he thinks will give him

position, place or emoluments.”6

It is bad enough when psychiatrists collude

with local individuals who have inconvenient

problems with nonpsychotic troublemakers; it is

much more ominous when they collude with

governments. Possibly the most widespread

activity of this kind in modern times occurred in

the former Soviet Union. There is ample

documentation that one way the Soviet

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 government dealt with political troublemakers
was to have them examined by psychiatrists who

declared them insane and committed them to

mental hospitals.7 The case of Pyotr Grigorenko in

the 1960s illustrates the process.8

Grigorenko was an active member of the

Communist Party. An expert engineer, he

advanced through the ranks of the Red Army.

During World War II, he received several

decorations, and he achieved the rank of major

general. Ultimately, he taught at a prestigious

military academy, where he was appointed

chairman of the cybernetics department.

However, in 1961, he began openly to criticize

what he felt were the excesses of the Khrushchev

regime. He stated that the special privileges of the

political elite did not conform to the principles laid

down by Lenin. Despite being removed from his

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 academic post, he formed a dissident group—“The
Group for the Struggle to Revive Leninism.” He

was arrested and sent to Moscow’s Lubyanka

prison, and from there to the Serbsky Institute for

a psychiatric evaluation. He was diagnosed as

suffering from a “psychological illness in the form

of a paranoid development of the personality....”

The data on which this was based were his

reformist ideas and his grandiosity. Since his

views were unshakable, the doctors concluded

they had reached delusional proportions. He was

not responsible for his actions and was therefore

involuntarily sent to a special psychiatric hospital.

While there, the government stripped him of his

pension even though, by law, a mentally ill military

officer was entitled to a pension. After six months,

he was found to be in remission and was

discharged for outpatient follow-up.

If Grigorenko’s “illness” were in remission, his

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 political views were not. He demanded his pension

be restored. Although he finally started receiving

his pension again, it was severely cut. He became

much more active in his dissent, and he stirred

others to protest some of the State’s actions. The

KGB gave him several warnings, and finally, in

1969, they’d had enough. Since Grigorenko had a

following in Moscow, he was lured to Tashkent,

half a continent away. Again he was arrested and
evaluated by a psychiatric team. These doctors

reported he was not psychiatrically ill, but he was

responsible for his actions. He had firm

convictions which were not delusional; they were

shared by many of his colleagues. Having

examined the records of his previous

hospitalization, they concluded that he had not

been ill at that time either.

The KGB brought him back to Moscow, and

three months later, they arranged a second

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 evaluation at the Serbsky Institute. Once again,

these doctors found that Grigorenko had “a

paranoid development of the personality”

manifested by reformist ideas. This diagnosis was

“confirmed” by the fact that he’d had the same

illness when he was diagnosed previously in the

Serbsky Institute. Only this time it had gotten

worse. He had to be hospitalized in a special

psychiatric hospital again. Finally, after almost
four years, he was transferred to an ordinary

psychiatric hospital. It was no coincidence that

this occurred when the World Psychiatric

Association was to meet in Moscow. The hospital

selected was some distance from Moscow in an

area closed to foreign visitors. Many months later,

in deteriorating health, he was discharged.

There is much more to Grigorenko’s story, but

this capsule will suffice for our purposes. He was,

indeed, a troublemaker, but was he also

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 psychiatrically ill? Once again, we must look at his

condition, not by today’s American diagnostic

standards, but in the light of Soviet standards in

the 1960s.

In the Soviet nomenclature, the word

“psychopathy” did not refer to people with

antisocial personalities—those who have little

conscience and use others, legally or illegally, for

their own ends. Instead “psychopathy” more
closely referred to what we call “personality

disorders”—people whose persistent styles of

thinking and behaving cause difficulties in their

lives.9 In Soviet psychiatry, sometimes, as in the

case of paranoid development of the personality,

the style of thinking might include “reformist

delusions” together with the patient’s overvalued

idea that he or she holds the key to social

reform.10 In 1968, even the American
nomenclature included the diagnosis of paranoid

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 personality11 which was close to that described by

the Soviets—without the addition of “reformist

delusions,” of course. Against the Soviet template,

Pyotr Grigorenko could have been ill, although his

“paranoid” ideas were shared by others in his

group. Against that template, almost any dissenter

could be diagnosed as ill.

The notion of reformist delusions was very

much in vogue in the Soviet culture. I was with a
group in the Soviet Union in the late 1970s, and

we spent part of an afternoon with an economics

professor. Since we were invited to ask any

question we wished, I mentioned the American
street protests during the Vietnam War and asked

if such protests could occur in the Soviet Union. He

responded that any citizen who had lived through

the enormous progress made in the Soviet Union

over the years would have to have something

wrong with him to join a street protest. Was he

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 just spouting the party line or did he actually

believe it?

This, then, brings us to the question of the

psychiatrists. How sincere were they? Were they

prostitutes collaborating with the government, or

were they following the tenets of their profession,

using the science of the day? Bukovsky and

Gluzman, both dissenters, classified several

different types of Soviet psychiatrists.12 Three

types are of interest to us. “Novices”

enthusiastically love their profession and are not

very worldly. They tend to accept what is taught

without question. We were all novices in the early

part of our training; some never outgrew it—

uncritically accepting what their instructors

taught them. And the instructors may have

accepted what their instructors taught. Such is the

perpetuation of junk science.

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 On the other hand, “Philistines” have achieved

a comfortable social status. They are of average

intelligence but have a higher opinion of their

talents than what is justified. They are social (and

political) conformists, and, like the economist who

responded to my question, they cannot really
relate to those whose views are not within the

social norm. They honestly feel there is something

wrong with the dissenter. “But you had an

apartment, a family, a job. Why did you do it?”

“Professional hangmen” know when they are

tuning their diagnoses to the demands of the State.

While novices and Philistines may use junk

science, professional hangmen are prostitutes.
Were the psychiatrists at the Serbsky Institute

hangmen?

The Serbsky Institute of Forensic Psychiatry

was a premier hospital for the psychiatric

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 evaluation of people accused of committing
crimes. According to the law, the three

psychiatrists who examined Grigorenko had to do

more than diagnose him; they had also to come up

with recommendations. In both of Grigorenko’s

evaluations at the Serbsky Institute, the

psychiatrists recommended compulsory

hospitalization in a special psychiatric hospital.

The special psychiatric hospital13 was

essentially a prison. It housed mostly violent

patients who were committed after being found

not mentally responsible for their illegal acts.

While there were psychiatrists, they were

subordinate to those who worked for the Ministry

of Internal Affairs. Indeed, in contrast to the

ordinary psychiatric hospital, the special hospital

was not even under the Ministry of Health. It was a

brutal, punitive environment, ill equipped to

rehabilitate someone with a paranoid

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 development of the personality. Some dissenters

were sent to ordinary psychiatric hospitals even if

they had more malignant diagnoses. Ordinary

psychiatric hospitals,14 under the Ministry of

Health, were generally oriented toward

rehabilitation, although there were abuses there

as well. Why, then, did the Serbsky psychiatrists

recommend Grigorenko for the special psychiatric

hospital? For that matter, why was their diagnosis
so different from that done in Tashkent, far from

the center of State power? Questions such as these

—and many others—strongly suggest the Serbsky
psychiatrists were hangmen—prostitutes.

A different twist to the psychiatric handling of

dissenters occurred in the United States in the

case of the poet, Ezra Pound. “Pound had been a

commanding presence in the world of letters. If

contemporary poetry sounds different, looks

different on the printed page, from the traditional

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 poetry of the nineteenth century, it is in large part

due to the practice and endless inflammatory

preaching of Ezra Pound.”15 His friends included

some of the most outstanding writers of his time—

several of whom he had helped and encouraged in

their early careers. But everyone agreed he was
eccentric. He considered himself an expert in

economics, and he disliked the government’s

policies, which he believed were controlled by a

Jewish conspiracy. He was living in Italy when

World War II broke out. An admirer of Mussolini

and Fascism, he aided the Italian propaganda

effort by writing and broadcasting short-wave

programs decrying English and American

participation in the war and railing against all the

evils he saw in the United States’ policies.

When the American army moved up the coast

of Italy in 1945, Pound was apprehended. Here is

where his psychiatric story begins—a remarkable

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 tale well researched and told by Torrey.16 He was

sent to an army prison near Pisa. Although most of

the prisoners—misfits in the American army—

were housed in tents, those requiring special
observation were put into the “cages.”17 These

were actual cages, open on all sides, screened by

steel netting, and easily heated by the summer

sun. Sharp spikes protruded from the ground

around the perimeter. At night, acetylene torches

illuminated the cages. Pound was charged with

treason, and Washington wanted him held under

the strictest observation.

After about two weeks, he was having

nightmares and brief periods of confusion and

anxiety. He was examined by two army

psychiatrists who noted that he was essentially

normal, but due to his age and a personality which

“lacked resilience,” he was unable to cope with the

conditions of the cage. He was suffering from

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 anxiety, frustration, fatigue and claustrophobia.

The condition may have also been aggravated by

heat and dehydration. He was removed to a tent,

and he had no more “spells.”

Two years earlier, Pound was indicted for

treason by a District of Columbia grand jury. Now

a prisoner of the United States, he was brought

back to Washington to stand trial. The penalty for

treason could be a long imprisonment or even
execution. And after the lengthy and bloody war

against monstrous enemies, the public was in no

mood to coddle traitors. His friends were very

concerned. They rallied to his defense, helped him
get an attorney, and planned his defense. The

defense would be that he was incompetent to

stand trial.18

At that time in order to be tried for a criminal

offense, the defendant had to be able to participate

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 with a reasonably clear mind. As the judge told the
jury, Pound had to be mentally sound enough to be

able to “cooperate with counsel, to stand trial

without causing him to crack up or break down ...

to testify ... to stand cross examination."19 If he

were found incompetent, he would be sent to a

psychiatric hospital indefinitely, unless he was

restored to health and could stand trial. Ezra

Pound agreed to this defense strategy.

Here we have a situation different from that

which confronted Pyotr Grigenko. The Soviet

dissenter protested he was not insane; the

American dissenter said he was. Of course there

were other differences also. The Soviet special

psychiatric hospital was really a brutal prison;

being sent to an American psychiatric hospital was

better than being in prison and certainly better

than being executed.

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 Of the four psychiatrists selected to examine

Pound, Dr. Winfred Overholser stood out as the

most eminent. He was in line to become the

president-elect of the American Psychiatric

Association. He was the Superintendent of St.

Elizabeth’s Hospital, Washington’s major
psychiatric hospital. He was well-published and

was recognized as one of the preeminent forensic

psychiatrists in the country. In short, he was a

heavyweight.

As Torrey documents,20 Dr. Overholser had the

respect of the other three psychiatrists. There is

reason to believe that two of them initially
concluded that Pound was merely eccentric but

was not insane. They also cited the report of his

psychiatric examination in Italy where no insanity

was found. However, Dr. Overholser had

stipulated that the doctors should file only one—

unified—report, and his view prevailed. His

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 diagnosis was that of a paranoid state. He found

Pound to be grandiose with “pressure of speech,

discursiveness, and distractibility.” Pound’s

abnormal personality had undergone further

deterioration; he was insane and couldn’t stand

trial. In my view, this sounds eerily similar to the

Soviet diagnosis of paranoid development of the

personality.

During that period, Dr. Overholser was writing

a textbook on psychiatry, and he described what

he meant by a paranoid state. These patients could

put on a good front, but underneath, they were

hiding delusions and hallucinations. They could
sometimes become assaultive. But there were no

data indicating Pound had delusions or

hallucinations— either up front or underneath. He

had never been assaultive.

The more junior psychiatrists at St. Elizabeth’s

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 could not see Pound’s insanity. Their notes in the
records didn’t flatly contradict their

Superintendent, but they failed to support his

diagnosis. Dr. Duval, a senior psychiatrist at St.

Elizabeth’s, subsequently recalled that the general

feeling among the doctors was that Pound was

neither insane nor incompetent to stand trial. Out

of loyalty to their chief, they decided not to make

any diagnosis.

When Dr. Duval had discussed this decision

with Dr. Overholser, the Superintendent told him

“he respected ... our diagnosis [but] we didn’t need

to disturb the practicalities of the situation by

making it public, and we should just keep it to

ourselves. So that’s what we did so as not to

embarrass our boss.”21

Ezra Pound was found incompetent to stand

trial, and he spent over twelve years in St.

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 Elizabeth’s. By 1958, the public’s mood had
quieted.22 People convicted of war crimes—such
as Tokyo Rose who broadcasted for Japan—were

being let out of prison. Dr. Overholser reported

that Pound was incurably insane, but he was not

dangerous. He added that it would be a needless

expense to keep him in the hospital.

As for the government prosecutors, they

dropped the indictment. Although their attorneys

all agreed Pound’s actions had been reprehensible,

it was possible their case against Pound could not

meet certain specific legal standards required to

prove treason. Ezra Pound was released from the

hospital.

It is obvious Dr. Overholser falsified his

diagnosis and then effectively, if politely, muzzled

his colleagues. Why did he do it? Actually, he was

appointed as an examiner by the government, not

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 by Pound’s attorney. His testimony did not
support the view of those who were paying him.

Perhaps he and Pound had mutual friends;

perhaps he respected this man of unusual literary

talent and felt that an exception should be made in

this case. Torrey’s comments get to the point:

“Overholser had exaggerated Pound’s symptoms

and disabilities; when exaggeration under oath

crosses an indefinable line it can be perjury. Some

of Dr. Overholser’s colleagues ... say such perjury

was carried out with the best of intentions. As one

of them succinctly summarized it: ‘Of course Dr.

Overholser committed perjury. Pound was a great

artist, a national treasure. If necessary, I would

have committed perjury too—gladly.’”23

So, how do we classify Dr. Overholser in this

case? Not really a prostitute; he didn’t do it for

personal gain. Certainly not a hangman; he was

helping Pound, not persecuting him. Not exactly a

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 junk scientist; he used (or misused) the best

science of the day. Let us use the words of his

colleagues; we’ll have a category called “the well-

intentioned prevaricator.”

All of us think we know what is best, and at

times, truth takes a back seat to “the practicalities

of the situation.” But this is ideology, not

psychiatry. It’s the kind of thinking that led

roughly 10 percent of American psychiatrists in
1964 to diagnose Barry Goldwater as

psychologically unfit to be president. And another

5 percent said he was psychologically fit. None of

them had ever examined him; they were
responding to a mail-in poll taken by Fact

magazine.24 It is an easy trap to fall into because

who can argue with good intentions? As a recent

study, aptly titled “Lying for Patients,” reported,

many doctors do it when they modify diagnoses to

help the patient get insurance reimbursement.

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 And they always are able to justify this fraud by

stating that they have the best interest of their

patients at heart.25 I’ve done it on occasion when I

thought the cause justified the (shall we say)

“exaggeration.” Never in court, though, at least as

far as I can remember!

But psychiatrist Robert Coles makes a very

telling point about the Overholser-Pound case:

“...We are once more reminded that psychiatry ...

can serve the law poorly and that some of us will

grant liberties to certain influential figures we

certainly would deny other men and women who

are presumably entitled to their fair share of this

nation’s ‘equal justice under the law.’”26

Even in this country, psychiatrists may

sometimes act more like hangmen than well-

intentioned prevaricators. Consider the case of

Grace Walden. She lived in a decaying flophouse

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 where you could rent a room for $8.50 a week. The
building was across from the Lorraine Motel in

Memphis. It was the building from which the

gunman assassinated Dr. Martin Luther King, Jr.,

on April 4,1968. As she told me when I visited her

in a nursing home almost 30 years later, “I heard

the shot. I ran out the door and I saw a man

running from the bathroom. He had something

under his arm. I didn’t know what it was.”

Two months later, after James Earl Ray was

apprehended at Heathrow Airport in London,

Grace was taken to John Gaston Hospital. Two

policemen brought her, acting on the complaint of

her live-in boyfriend, Charlie Stevens. Grace had

seen Ray’s picture, and she was telling people he

was not the man she saw. Charlie and Grace both
drank heavily and often argued. Grace thought

Charlie complained because “he was so mad at me

he wanted to put me away.” The hospital

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 admitting record indicated she had witnessed Dr.

King’s murder and was disturbed in anticipation of

the upcoming trial. The examining psychiatrist

said she had “suicidal tendencies.... She thinks she

is a witness in Dr. King’s murder trial.”

At best, Grace would have made a

problematical witness. Although quite bright and

an avid reader, she was a street person. She had

two or three marriages (she couldn’t remember
which) and lived with a succession of men. She

was known to be a heavy drinker, although she

insisted to me she had not drunk anything on April

4, 1968. She’d been arrested many times for a
variety of offenses.

After a three-week stay at the Memphis

hospital, she was transferred to Western State

Psychiatric Hospital, 65 miles away. She was still

there, committed involuntarily, when I first heard

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 of her ten years later. An attorney called me and
asked if I would be willing to assist her group in a

“very controversial” case. She told me Grace was

confined incommunicado, but one of the lawyers

just walked into the hospital and went to her room

without asking anyone. Grace signed an agreement

to have him represent her. By court order, the

group had obtained all her Western State records.

I agreed to review them to see if she still (or ever)

met the standards for involuntary hospitalization.

Unfortunately, the lawyers were never able to

get records of her treatment at John Gaston. They

suspected the records had either been destroyed

or were being kept secret. When I visited Memphis

in 1996, I went to the record room of The Med

(successor to John Gaston), equipped with the

appropriate release forms given me by Grace’s

guardian. I was told the computers were down,

but I could call in a few days. After several calls

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 which never were returned, I gave up.

Nevertheless, the Western State records were

revealing enough. The admitting doctors there

said, “She appears to be delusional, although she

gives a very convincing story about her having

seen the murder of Dr. King.” They diagnosed her

as having a chronic brain syndrome (deterioration

of the brain resulting in an impairment of her

thinking) due to alcoholism. In the whole ten years
of records I examined, there were no data to

support this diagnosis. In 1996, I had the

opportunity to review the reports of a

psychologist and psychiatrist who examined her
shortly after she finally got out of the hospital.

Neither found any signs of chronic brain

syndrome. Certainly, when I visited her, she was

quite sharp for an 81-year-old woman. In fact, as

early as 1969, a hospital doctor wrote “Non-

psychotic.... Although she has only a behavioral

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 reaction, we may have to call it a psychosis

anyway.”

There were other, more ominous entries in her

hospital records. Seven months after her

admission to Western State, her doctor noted she

was ready for discharge if only there were an

“acceptable community placement.” A year later,

another doctor stated Grace could function outside

in a boarding home, but there were “some legal
complications in Memphis.” Dr. Neale, the

superintendent at the time, told the nurses they

should allow “no one to see her or talk to her

alone.... No information is to be given concerning
the patient to anyone.” He said she could still work

in the hospital “but is never to be left alone.” The

written order said the nurses should hand this

directive from shift to shift. This, despite the fact

that her progress notes revealed that except for

some stubbornness and outbursts of swearing, she

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 was cooperative and helpful to other patients. She

spent much of her time reading in the library. I

have never seen such an order come from the

superintendent; occasionally such orders might

came from a patient’s psychiatrist.

By 1973, such warnings began to appear on the

covers of her charts: “Nobody allowed to visit or

read record.” One doctor wrote, “I suppose her

involvement in the Martin Luther King murder
will support this prohibition by the

Superintendent.” And in 1976, another doctor

suggested she be prepared for discharge, “but first

check legal aspects of the case. Apparently patient
still can’t leave the hospital or go to activities in

Memphis because of some legal complications.”

By 1978, when the attorney sneaked into the

hospital to get Grace’s signature for him to

represent her, Dr. Cohen had become

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 superintendent.

The policies had remained in place. Suddenly,

there was a flurry of publicity, generated by the

group of lawyers. Dr. Cohen responded that the

hospital had been planning to release Grace for

months, and they were trying to make suitable

arrangements. Nothing in the records suggested
this was the case. Indeed, if Grace was ready for

discharge in 1978, she was ready years earlier,

because her behavior had not changed. Even her

official diagnosis remained the same. Dr. Cohen

stated she suffered from “chronic brain syndrome

due to alcoholism....” She had “brain impairments

such as in a person who has senility.”

I reported my findings to the attorneys, but I

never had to testify. Doctor Cohen finally released

Grace to a boarding home with the strict

understanding she should not leave unattended—

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 whereupon the same attorney who had visited her
in the hospital took her out to lunch and flew her

to California, where she was evaluated by the

psychologist and psychiatrist who found no signs

of a chronic brain syndrome. After much legal

maneuvering, April Ferguson, one of the lawyers,

was appointed her guardian. Ms. Ferguson was

more than a guardian; she was her friend. She took

Grace into her home, and when it became

apparent that this no longer was working out, she

put her in a nursing home and visited her

frequently until Grace’s death, about a year after I

visited her.

One could argue that being in the hospital

probably prolonged Grace’s life because she was

kept away from alcohol and the dangerous life of

the street. That would put a “well-intentioned”

spin on it. But it is clear from the record that the

doctors who collaborated with the “legal

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 complications in Memphis” were not acting in

Grace’s interest. They were hangmen.

Sometimes individuals attempt to use

psychiatrists to handle those who give them

trouble. Sometimes governments do. But when

representatives of government attempt to use

psychiatrists to deal with “troublemakers,” the

implications are even more severe. The State has

enormous resources and power, and it is tempting
for governments to use that power to curtail

individual liberty.27 The problem for psychiatry is

not that the State may want to use psychiatrists

for this purpose, but that it isn’t always difficult to
find psychiatrists who, either because of ideology,

naivete, or personal gain, will allow themselves to

be used.

Notes

1 In contrast with most names in this book, all names in this

chapter are correct. Their names and cases have been

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 well documented in the public arena with the exception
of Grace Walden. I publish the material about her with
the permission of her guardian.

2 Packard E: Modern persecution or insane asylums unveiled:

My abduction (In) Goshen CE: Documentary history of
psychiatry: A source book on historical principles. New
York: Philosophical Library, 1967, pp. 640-665

3 Himmelhoch MS and Shaffer AH: Elizabeth Packard:

Nineteenth century crusader for the rights of mental
patients. Journ. Amer. Studies 13: 343-375,1979

4 Ibid.

5 Ibid.

6 Packard: Modern persecution.

7 Bloch S and Reddaway P: Psychiatric terror: How Soviet

psychiatry is used to suppress dissent. New York: Basic
Books, 1977

8 Ibid., pp. 105-127

9 Calloway P: Russian/Soviet and Western psychiatry: A

contemporary comparative study. New York: John Wiley
and Sons, Inc., 1993, p. 183

10 Bukovsky B and Gluzman S: A Manual on psychiatry for

dissenters. (In) Bloch S and Reddaway P: Psychiatric
terror, pp. 419-441

11 Committee on Nomenclature and Statistics of the American

Psychiatric Association: Diagnostic and statistical manual

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 of mental disorders II. Washington: American Psychiatric
Association, 1968, p. 42

12 Bukovsky and Gluzman: Manual on psychiatry

13 Bloch and Reddaway: Psychiatric terror, pp. 191-219

14 Ibid., pp. 187-191

15 Wernick R: The strange and inscrutable case of Ezra Pound.

Smithsonian 26 (Dec.): 112-127,1995

16 Torrey EF: The roots of treason: Ezra Pound and the secret
of St. Elizabeth’s. New York: McGraw-Hill Book Co., 1984

17 Ibid., pp. 1-17

18 Ibid., pp. 177-185

19 Carpenter H: A Serious character: The life of Ezra Pound.

Boston: Houghton Mifflin Co., 1988, pp. 750-751

20 Torrey: The roots of treason, pp. 186-204

21 Ibid., p. 204

22 Wernick: The case of Ezra Pound

23 Torrey: The roots of treason, p. 218

24 New York Times, October 2,1964, p. 20

25 Freeman V et al.: Lying for patients: Physician deception of

third-party payers. Arch. Int. Med. 159: 2263-2270,1999

26 Coles R: How sane was Pound? (Book Review). New York

Times, October 23, 1983

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 27 Szasz TS: Psychiatric justice. New York: The Macmillan Co.,
1965, pp. 264-272

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 Chapter 13

Role Conflicts
Dr. Ruth Green didn’t want any part of a court
proceeding, much less having to testify at a

deposition. Like most psychiatrists, she wanted to

treat patients. She had to shuffle her schedule to

make room for this appearance, and she

anticipated a withering personal attack from the

one of the attorneys. Nonetheless, she’d received a

subpoena, and there she was.

Fortunately, she was not the target of a

malpractice suit. She had a well-earned reputation

as a skillful and caring psychiatrist. This case was

about Sheila, one of her patients. Sheila was

injured at work. While lifting some boxes at the

factory, she “heard a pop” in her back and felt a

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 “stabbing pain.” Despite medications, the back

pain persisted. She couldn’t sit for any length of

time; on the other hand, long periods of standing

or walking caused her to suffer. It was difficult to

find a comfortable position in bed and her sleep

was interrupted.

After some time, these problems seemed to

bother her emotionally, and she was sent to Dr.

Green who diagnosed depression. The causal chain

was clear: injury—back pain—physical limitations
—depression. Now, as Sheila’s workers’

compensation case came up, Dr. Green had to

testify about the extent of the psychiatric

impairment.

Although we discussed impairments in Chapter

4, I will tell you a little more about Sheila’s

situation in order to set the stage for the focus of

this chapter—role conflicts and the difficulties of

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 being an impartial witness.

Sheila now depended on her adolescent

daughter to carry an increasing load of the

housework—a task the daughter resented. There

was dissension in the house, aggravated by

Sheila’s irritability—one of the symptoms of her

depression.

Because Sheila was now not working, finances

were a problem. She applied for Social Security

benefits as a disabled person, but she was turned
down. Sheila had to depend on support from her

parents and this, too, caused tension. If the

workers’ compensation award were large enough,

her finances would stabilize.

Both Dr. Green and I agreed Sheila was

depressed; where we differed was on the degree

of the psychiatric impairment. She felt her patient

was markedly impaired, while I felt she was mildly

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 impaired. Dr. Green thought the depression “had
set in” and most likely was permanent. I felt that it

was premature to form that conclusion; there

were things that hadn’t been tried as yet. For

example, Dr. Green had tried only two

antidepressants; there were several other

medication adjustments which might help.
Likewise, the whole treatment was oriented

toward focusing on what Sheila could not do; there

was no step-by-step encouragement for her to

cope with the pain and try things.

Doctors can disagree. Dr. Green supported her

conclusions reasonably and so did I. It was up to

the judge to referee. As it turned out, he never had

the chance because the parties settled the case out

of court.

However, there were other aspects of Dr.

Green’s testimony which caught my attention.

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 According to her records, months after the start of
the psychiatric treatment, Dr. Green submitted a

letter to Sheila’s lawyer stating that her patient

had a 35 percent psychiatric impairment. Why did

she do that? The data indicated the lawyer hadn’t

yet asked for this opinion. Dr. Green testified that

“I felt it was in Sheila’s best interest to submit an

impairment rating at this point.” Unfortunately she

was never asked why this was in the best interest

of the patient.

At another point, Dr. Green indicated that since

the legal situation was one of Sheila’s stressors, it

was better to get the case behind her so she could

move on. It probably escaped the doctor’s

attention that if the impairment was permanent—

incapable of improvement—then what would she

move on toward?

Shortly before her deposition, at the request of

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 the patient’s attorney, the doctor submitted
another impairment rating. This time it was higher

—50 percent. This, despite the fact that her

records indicated there was no change in Sheila’s

symptoms. Asked about this rating change, she

said, “Frankly, I’m uncomfortable with changing

my former rating, but I feel I was unfair before. I

might have been a little too harsh. I'm very

concerned about Sheila, and my interest is primarily

that her needs be addressed” (emphasis mine).

Asked about Sheila’s needs, she responded that

there was need to get out of the litigation, financial

needs, and the problem with her daughter which

must be diminished. On three other occasions

during the deposition, Dr. Green repeated it was in

the patient’s best interest to have these three

areas of need resolved.

Thus, Dr. Green has put the problem squarely

before us. To whom did she owe primary

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 allegiance? She, herself, told us: Like every good

clinician she owed it to the patient. She assessed

what her patient needed and was trying to be as

helpful as she could. In the technical jargon of

forensic psychiatry, her role was that of the

patient’s agent. This is appropriate for a treating

psychiatrist. But is it appropriate in the forensic

situation? An impairment rating is not based on

what the patient needs, but on what the patient
cannot do. Two people with the same incapacity

should get the same impairment rating, even if one

is rich and needs less and the other is poor and

needs more.

In contrast with the treating psychiatrist, the

forensic psychiatrist should owe primary

allegiance to the court and the legal process. With

a few exceptions which I shall discuss below, there

is nothing owed to the patient—or the defendant,

or the plaintiff, or any of the litigants. But when

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 the treating psychiatrist is before the court, there

is a conflict of roles. As Applebaum stated about

forensic testimony, “When we allow therapeutic

principles to creep into our thinking, we open the

door to profound confusion over the psychiatrist’s

role.” He went on to state that the work of the

forensic psychiatrist should be “the pursuit of

justice rather than health.”1

Does this mean Dr. Green was a prostitute? Not

in my opinion. She was not selling her opinion to

Sheila’s attorney in order to get more referrals.

The last thing she wanted was more involvement

in the legal process. Was she, then, a well-

intentioned prevaricator? I wouldn’t say so. I have

no reason to believe she knew she was distorting

the data or lying about her conclusions in order to

help her patient. According to her testimony and

her reputation, she honestly believed (and she

stated) that her role was to act in the best interest

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 of her patient. The problem was that as a witness,

she was serving two masters—patient and court.

Halleck2 has referred to this as a double-agent

problem which can cause role confusion. While

testifying, Dr. Green was confused about her

primary allegiance. As a witness, it should have
been to the court.3

There is another reason that treating

psychiatrists may have a conflict of roles when

testifying. Patients expect their doctors to be on

their side. Testifying to something that puts the

patient at a disadvantage injures the doctor-

patient relationship—a very important part of the

treatment process. In order to avoid these

conflicts, the treating psychiatrist should punt the

forensic issue to another psychiatrist whenever

possible.

Unfortunately, life is not so simple; separation

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 of treatment and testimony is not always possible.
After all, it was Sheila, through her attorney, who

raised the issue of emotional damage due to her

work situation. She couldn’t then duck and hide

her psychiatric record. Her psychiatric history and

treatment were relevant to the issue of the

emotional damages she claimed.4 Even if Dr. Green

could have punted the forensic evaluation to

another psychiatrist, she still would have had to

release all Sheila’s records—data which Sheila

previously had every right to believe were

confidential. That’s the price one may have to pay

for bringing a lawsuit-even if the suit is justified.

We have already encountered that problem in

Chapter 10, where I discussed how some women

prefer to avoid claiming psychiatric damages due

to sexual harassment, because it may open up an

embarrassing Pandora’s box when the defense

attorney explores the woman’s sexual history and

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 propensities.

So much for the problems of the treating

psychiatrist who enters the forensic arena. What

about the forensic psychiatrist who makes

treatment recommendations? Gutheil

emphatically stated that as a forensic psychiatrist,

“You certainly don’t owe a duty to other

professionals who may be part of the patient’s

treatment team.”5 Indeed, frequently the attorney

or the insurance company he or she represents

specifically instructs the forensic psychiatrist not

to make any treatment recommendations. Keeping

the roles straight is the best way to avoid being

partial to one side or the other.

Sometimes, however, treatment

recommendations are unavoidable—particularly if

the forensic psychiatrist must testify as to whether

an impairment is permanent. In Sheila’s case, it

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 was not enough for me to tell the judge it was
premature to state the condition was permanent. I

had to support that conclusion by talking about

the possible use of other medications and about

behavioral treatment aimed at getting her more

active. But if I was helping Sheila out (by default), I

never felt I had any allegiance to her. I wasn’t

doing it for her, but for the court.

I encountered another treatment situation

when I was asked to evaluate Donald. As an

adolescent, he seemed to lose interest in

everything and everyone. He ruminated about

such “philosophical” questions as the meaning of

life, and whether people could control others

through thought waves or other supernatural

means.

When he was 19, he killed a cousin. He was

blatantly delusional, and everyone agreed he’d

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 been responding to hallucinations. At trial, he was
found not guilty by reason of insanity. I was not

involved in his case at that point.

Donald was diagnosed as having paranoid

schizophrenia. He was committed to a state

hospital where he would stay until he was no

longer actively psychotic and he posed no danger
to anyone. The whole family was furious at him

and refused to have anything to do with him. His

uncle, who happened to be an attorney, said he

could “rot in there for life.”

Seven years later, Donald thought he was

ready for discharge, but the hospital disagreed.

According to state law, the hospital had to pay for

an attorney to assist the patient who wanted to

leave and for a psychiatrist to do the evaluation.

Donald’s attorney asked me to do the evaluation.

Looking through Donald’s hospital chart, I

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 could see he’d made considerable progress in the
hospital. He was working in the hospital kitchen,

and he had free run of the grounds. He’d gone on

several group excursions into the city

accompanied by staff, and things went well. He

reported no delusions. He regretted what he had

done to his cousin, and he understood his parents’
anger.

However, there were also negative features.

Most of the time Donald seemed preoccupied with

his Bible, which he carried around with him

constantly. Every so often, he would mumble to

himself. Could he be responding to inner voices?

Because he had no family support and he didn’t

want to live in a group home, there was no

reasonable placement for him on the outside. And
a hospital psychologist noted that Donald seemed

to become agitated whenever they talked about

discharge.

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 When I examined him, I could see no overt

signs of paranoid schizophrenia. He was able to

talk about his psychotic thinking years earlier; he

seemed to have a good perspective about it. He

was a born-again Christian now, and his faith was

stabilizing him. As for the muttering, he said he
was not hallucinating; he was reciting Scripture.

He didn’t think the medication was doing any

good, but he knew he would have to stay on the

regimen as a condition of discharge.

In my report, I noted that this was a difficult

call and the stakes were high. Was the Biblical

preoccupation a remnant of his ruminations as an

adolescent—a time when his schizophrenia was
emerging? What if he panicked after he was

discharged? Might he become delusional and kill

again? What if he decided he should go off his

medication? And where would he live? He had no

family support. He did not wish to live in a group

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 home. I could not recommend that Donald be

discharged at this time.

However, I did have some treatment

suggestions for the staff. The doctor had him on a

low dose of antipsychotic medication. I suggested

it be raised. Then we could see if there were any

loosening of his Biblical preoccupation. If so, this

would suggest it was partly fueled by an

underlying psychotic process. I also suggested the
staff try to accompany him on visits to a group

home and to the mental health center where his

treatment would continue after discharge.

Perhaps he would find a placement more palatable
and the transition would be eased. In accordance

with standard procedure, I sent my report both to

the attorney who hired me and to the hospital’s

attorney.

One year later, the attorney asked me to

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 reevaluate Donald. His medicine dose had been
raised. Now, although he still studied the Bible, he

could also be seen reading secular bodks he

obtained from the hospital library. The

preoccupation had loosened. Equally important

was that while on the hospital grounds, he had

met several Christian missionaries. While they

didn’t enter the hospital, they did their work on

the grounds with any patient who would listen to

them. Donald was invited to attend their small

church, and on occasion, a staff member agreed to

go with him. The staff member’s report about the

group was quite positive; it was a warm and

supportive environment. The church was willing

to find him an apartment and help him get a job.

They would undertake to see that he kept his

doctor’s appointments. Although certain religious

groups believe that taking medicine shows a lack

of trust in God, fortunately this group felt that

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 medicine and a belief in God were compatible.

Since his medicine was administered

intramuscularly every two weeks, compliance

would not be a problem.

This time, while the hospital still maintained

Donald was not ready for discharge, I felt he was.

We each presented our views at the hearing, and

the judge decided to release him with the

provision that he comply with the outpatient
treatment arranged for him.

A few years later, I happened to be in Donald’s

part of town and I ran into him sitting on a park
bench. He was eating a sandwich and reading a

novel. He told me he had a job and was doing well.

He was seeing his doctor regularly. His faith was

still very strong, and he felt supported by the

members of the church. He was sad to be

estranged from his family, but he accepted the fact.

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 The church was his family now.

Some of my colleagues might feel I stepped

over the line by offering treatment suggestions

while doing a forensic evaluation. In this case, I

was clearly hoping to help Donald, and in a way, I

was acting as his agent. However, as I thought

about this situation, I concluded there was no
conflict of interest. Even though I wanted to help

him, the report I wrote opposed his discharge at

the time I made the recommendations. While I

was, indeed, assuming both a forensic and treating

role, they were not incompatible.

As I mentioned above, it is not exactly true that

as a forensic psychiatrist I owe nothing to the

person I am evaluating. There are exceptions. I

owe the person two things: acting courteously and

honestly informing him or her about who is paying

me, what my role is, and what rules govern how

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 my role is carried out. Generally, this means that I
make sure the examinee knows the nature of the

legal conflict and which side has employed me. I

define myself as a psychiatrist and sometimes I

must tell him or her I’m getting paid by the people

on the other side—“but I call it exactly as I see it.”

Sometimes, the examinee will start right in

pleading his or her case. I stop the person

immediately and make sure he or she knows that

nothing is off the record here. “Anything you tell

me that I think is important the attorney should

know, I will tell him (or her). And of course, if I

testify, I have to tell the truth. There are no secrets

in here.” Then I double check to make sure the

examinee understands.

Once in a while during the evaluation, the

person will say, “I’ll tell you, Doc, just between you

and me...” I stop the discussion immediately and

remind him or her that there is no “between you

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 and me.” Often, he or she will think about that for a

minute and then decide to tell me anyway. While I

am trying to get as much relevant information as I

can, I feel it would be unfair to trick him or her.

And the best way to avoid unfairness is to let the

examinee know with whom I’m consulting and

what the rules are.

In my role as a potential witness, then, my

primary allegiance as a forensic psychiatrist is to
the court. However, I usually have another role, as

well. I am a consultant to the attorney who has

hired me. These two roles need not be in conflict.

What I say when I testify has to be independent of
the attorney with whom I consult. But as a

consultant, I may help the attorney by discussing

how the psychiatric findings might possibly

impact on the case. I often point out that if I must

testify about such- and-such, the other attorney

may use the testimony on cross examination to

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 support his or her side of the case. The attorney to

whom I owe allegiance is entitled to know what

will help the case and what will harm it. The
lawyer may decide not to put me on the stand.

You may recall the case I discussed in Chapter

3. Jim Thornton claimed his depression was

caused by a work-related injury. His psychiatrist,

Dr. Higgins, agreed with that position. Henry

Bradley, the attorney representing the company,
wanted me to look at Dr. Higgins’s records and to

say that Jim wasn’t depressed. But he didn’t want

me to examine the patient, because I might agree

with the diagnosis and Jim’s attorney would know.
I told him I couldn’t give a diagnosis under those

conditions.

Then, as a consultant, I told the attorney what I

could do. I could tell him whether Dr. Higgins’s

office notes were consistent with the diagnosis of

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 depression. But I warned him that might or might
not be helpful to his case. While giving him an

alternative, I was also asserting the independence

of my testimony.

The lawyer shifted his position and claimed

that Dr. Higgins couldn’t testify about what caused

the depression because he relied only on Jim’s
reports in the clinical situation. I explained the

difference between a clinical and a forensic

evaluation, and I told him that a clinician (or any

witness) can testify only on the basis of what data

he or she has. If the doctor’s opinion were the

most likely alternative, it would meet the standard

of reasonable degree of medical certainty. And I

warned Mr. Bradley that if he asked Dr. Higgins if

he were certain there were no other facts which

were contradictory, the doctor might reply that he

would be willing to reconsider his position if other

facts were presented. In my opinion, consulting

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 with the attorney about what might help and what

might hinder his or her case is appropriate, so long

as the witness does not distort the testimony or

mislead the court.

I also owe the attorney the opportunity to go

over the questions he or she will ask me in court.

This not only helps me to be better prepared, but

it also allows both of us to make the best and most

understandable presentation of the data and
conclusions possible. It is not a matter of

distorting the findings; it is a matter of helping the

court understand them.

In addition to witness, treating psychiatrist

(sometimes), and consultant, there are still other

roles assumed by forensic psychiatrists. One of

them is the role as a career person. We have

allegiance to ourselves and our careers. There is at

least a small part of us that wants to satisfy the

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 person who hired us. There is always some desire
to get feedback that we have done a good job.

Everyone likes to be thanked. Occasionally, when I

step down from the witness stand and prepare to

leave the courtroom, I find myself glancing at the

attorney in whose behalf I was testifying. I look for

some small sign—a nod, a smile, anything—to

show me that he or she approved of my work. Of

course I never get it, and I laugh at myself for

having expected it. On one occasion, I did get

feedback in the courthouse. While I was in the

men’s room, the bailiff entered and said, “Doc,

that’s the first time I ever understood what a

psychiatrist was talking about.” I’ll take that kind

of feedback anywhere—even in the men’s room.

Allegiance to oneself and one’s career can

interfere with the way we reach our conclusions in

the forensic arena. “I call it exactly as I see it” is all

well and good, but the way I see it can be

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 influenced by my eye on my reputation. Let’s go

back to the case of Donald. The biggest problem

with releasing him from the hospital was that he

had killed someone. Suppose I called it wrong, and

he got out and killed someone else—perhaps

another member of his family. No one would then

say I did a good job. On the contrary, my

reputation (and perhaps my career) would be

tarnished. I would be less than candid if I said this
thought never crossed my mind. I was much

relieved to stumble across him on the park bench

and to learn he was doing well. And while I can’t

get into the minds of the hospital psychiatrists and

lawyer who opposed his discharge, it is certainly

possible that they didn’t want to be the ones to

take the risk and potentially the blame by

releasing him. Maybe I took them off the hook.

However, it wasn’t only my reputation I was

concerned about. I had yet another role; I am a

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 member of society. I had an allegiance to society at

large. While it was not primary, it was very much

on my mind. I had an obligation to use my

expertise to protect unknown persons who might

be killed if I persuaded the judge to discharge him

before I felt certain he was ready. This, too, came

into my thinking.

Another role assumed by some forensic

psychiatrists is that of advocate for social change.
Usually, as Szasz6 pointed out almost 40 years ago,

when we testify, we act as society’s agent,

furthering society’s values, such as marriage,

racial relations, national interests, etc. For

example, in participating in the commitment

process, I was buying into our society’s decision
that some killers should be hospitalized with an

indeterminate “sentence” while others go to jail—

a decision based on sympathy for people who are

ill. Many people—especially families of victims—

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 don’t feel that way. The way we understand

behavior and what we choose to do about it are

significantly rooted in the values of the society in

which we live. Recall the Soviet Philistines

described in Chapter 12 who could not understand

why a person with a job and an apartment would

want to be a dissenter. And the Soviet hangmen

who may have felt justified in distorting testimony

in support of the Communist society. Allegiance to
society and its values.

However, some witnesses follow a different

star. Dissatisfied with some of society’s current

values, they may bend their testimony as they
advocate for change. An expert may have a strong

allegiance to a certain kind of ideology. For

example, he or she may feel that all people should

be held responsible for their actions regardless of

their mental state. On the other hand, an expert

may feel that no one should be blamed since

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 “criminal” actions are prompted by sickness or

television violence or poverty. Sometimes a

witness may distort testimony to promote such

ideologies. Remember the psychiatrist who said he

would perjure himself in the service of such a

national treasure as the poet, Ezra Pound.

Witnesses such as these are well-intentioned

prevaricators. It may be tempting to use testimony

in the service of a particular ideology, but this can
undercut the primary allegiance to the court—

presentation of honest opinions based on the best

evidence available.

In my view, there are two acceptable

ideologies in the courtroom. First, we must

subscribe to the ideology of the justice system and

the rules of the court. If you find this abhorrent,

don’t be a witness. Second, we must subscribe to

the ideology of scientific evidence as data. We

should supply the court with data and conclusions

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 based on the best specialized knowledge available.

If we subscribe to an ideology which is junk

science, if we act like the novices described by

Soviet dissenters—parroting theories we have

accepted uncritically because that’s the way we

were taught—we do the court and the litigants a

disservice.

Possibly the most impassioned disagreement

among forensic psychiatrists is whether we should
participate in evaluating whether a convicted

murderer is competent to be executed. At first

blush the whole notion of this issue may seem

silly. The perpetrator has been convicted and
sentenced. He or she has been found

psychiatrically sound enough at the time the

offense was committed and sound enough to stand

trial. What difference does it make if the murderer

is sane or insane at the time of death? Certainly we

don’t want the convict to understand what is

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 happening in order to teach him or her a lesson!

Yet, for centuries, legal systems have required

that the condemned person be able to understand

what will happen and why he or she will be put to

death. And it is required by the Constitution of the

United States.7 Among the reasons given for this

requirement are the following: The insane person

cannot participate with the attorney in the last-

minute defense. The full force of the punishment is

attenuated because the deranged convict doesn’t

suffer the worry of anticipating the execution. The

condemned person doesn’t have the capacity to

repent and make peace with God.

It is not our role as forensic psychiatrists to

argue the merits or drawbacks of the death

penalty. Some favor it, some oppose it. These are

ideologies, and each of is us gives allegiance to our

own ideology. The controversy arises because we

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 are doctors, trained to help people, not to
participate in their death. In my opinion, this is a

role problem. True, we are doctors, and we should

put our skills to work to help people. But in our

various roles in the service of the court, we may be

unhelpful—or even harmful—to a litigant. Even in

the criminal process, we routinely testify about

the state of mind of the defendant at the time of

the offense despite the fact that this may put him

or her in prison (hardly therapeutic) and even on

the track toward the death penalty.

What happens in evaluations for competence

to be executed is that we use our diagnostic skills

in the service of the court, which is our primary

allegiance. If we take the position we should

primarily be the agent of the defendant (and life

over death), we run the risk of falling victim to the

same problem the treating psychiatrist has when

called to testify— honest testimony may injure the

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 patient.

I believe those who say we should not

participate in death penalty competency

examinations are placing ideology as the primary

allegiance— which is fine for them as individuals;

they should stay away from this kind of work.

“Although saving a life may be most consistent

with traditional Hippocratic ethics, truth and

honesty is the primary duty for a forensic
psychiatrist.... If the facts are not favorable to the

defendant, a forensic psychiatrist can refuse to

become involved.”8

In forensic psychiatry, multiple roles are

inevitable and they can cause problems. There is

always the temptation to bend the testimony—

sometimes unwittingly—to one or another

allegiance. The notion of a totally impartial expert

(in psychiatry or anywhere else) is a fallacy.9 So

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 long as the psychiatrist understands these forces
and chooses the court as the primary allegiance,

problems of multiple allegiance can be minimized

—but never completely eliminated.

Notes

1 Applebaum PS: A theory of ethics for forensic psychiatry.

Journ. Amer. Acad. Psychiatry Law 25: 233-247,1997

2 Halleck SL: The politics of therapy. New York: Science House,

1971, pp. 119-120

3 Modlin HC: The ivory tower in the marketplace. Bull. Amer.

Acad. Psychiatry Law 12: 266-236,1984

4 In re Lifschutz 467 P.2d 557, 567-569 (1970)

5 Gutheil TG: The psychiatrist as expert witness. Washington:

American Psychiatric Press, Inc., 1998, p. 20

6 Szasz TS: Law, liberty and psychiatry: An inquiry into the

social uses of mental health practices. New York: The
Macmillan Co., 1963, p. 197

7 Ford v. Wainwright 477 U.S. 399, 405-410 (1986)

8 American Academy of Psychiatry and the Law: Additional

opinions to the ethical guidelines for the practice of
forensic psychiatry. Question # 13 (unpublished
document), 1995

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 9 Diamond BL: The fallacy of the impartial expert. Arch. Crim.
Psychodynamics 3: 221-226,1959

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 Chapter 14

Which Conditions Count?

The Supreme Court’s decision in Kansas v.
Hendricks1 sent a minor shock wave through

American psychiatry, and state mental hospitals

felt the tremor. Leroy Hendricks2 was a pedophile,

preying on both boys and girls. His criminal

career3 started in 1955 when he pled guilty to

exposing himself to two young girls. Two years

later, he was jailed for lewdness with a young girl.
Three years after that, he was convicted of

molesting two young boys. When he was paroled,

he was arrested again for molesting a young girl.

Subsequently, whenever he was released from

prison, he was rearrested for further sexual

misbehavior with youngsters, including his

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 stepchildren. And, of course, the record shows
only those cases where he was caught! Finally, he

was convicted of sexual encounters with two

adolescent boys. After serving his sentence, a date

for discharge was set. But this time was different!

In 1994, Kansas had enacted a law4 stating

specifically that people who, because of “mental

abnormality” or “personality disorders,” are likely

to engage in sexual predation may be committed

to mental hospitals. Hendricks was a prime

candidate. He agreed he was a pedophile and that

he could not control his behavior.5 Attempts at

treatment hadn’t helped.

Why did the Kansas legislators enact a special

law regarding pedophiles? The state already had a

commitment law based on the criteria of mental

illness and dangerousness. But in that law the

legislators felt (possibly because the psychiatrists

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 felt) that pedophiles “do not have a mental disease
or defect that renders them appropriate for

involuntary commitment.”6 In other words,

despite that fact that pedophilia is listed as a

mental disorder in the psychiatric diagnostic

manual,7 as far as commitment was concerned, it

didn’t count. With the new law the lawmakers

tried to “remedy” that situation; they made it

count.

The staffs of state mental hospitals, the likely

recipients of these committed pedophiles, were

not happy. Even the Kansas legislators recognized

that pedophiles often have “anti-social personality

features which are unamenable to existing mental

illness treatment modalities....”8 But worse than

that, repeated sexual predators with antisocial

tendencies often are manipulative, are not very

honest with the staff, and may prey on vulnerable

mentally ill patients in the hospital. They may be

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 there forever, working the system and causing

disruption of the unit. How does a hospital

administrator ever decide to discharge such a

patient and take the heat if another pedophilic act

occurs?

The way the Kansas law defined “mental

abnormality” is of interest to us here: “a congenital

or acquired condition affecting the emotional or

volitional capacity which predisposes the person
to commit sexually violent offenses....”9 In simpler

terms, these people can’t control themselves. In

the Supreme Court’s decision, mental illness which

legally counts as an illness criterion for

commitment is behavior which the person is

unable to control.10 The justices agreed that

Hendricks’s pedophilia was not under his control.

Is pedophilia a psychiatric condition? Or, more

properly put, should pedophilia be considered a

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 psychiatric condition in the legal arena? It
depends who you ask.11

While the Supreme Court ratified Kansas’s

position that pedophilia should be counted as a

psychiatric condition, the Court has taken another

route when the diagnosis is antisocial personality

disorder (without pedophilia).12 Terry Foucha

was charged with aggravated burglary and illegal

discharge of a firearm. Apparently he was on

street drugs and had a psychotic reaction at the

time of the offense. He was found not guilty by

reason of insanity and was committed to a state

mental hospital. Free of these drugs, his diagnosis

was antisocial personality. Despite his track

record, the doctors could not say whether he was

still a danger to society.13 But even if he were, the

Court noted that many criminals have antisocial

personalities, and the state controls their

dangerous behavior not by commitment but by

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 other means, “such as punishment, deterrence,
and supervised release.”14 These people are not

mad; they are bad. They go to jail instead of

mental hospitals.

So there you have it: pedophiles can’t control

themselves (at least in Kansas and several other

states), while people with antisocial personalities

could control themselves but they choose not to.

Thus the justices decided that, for legal purposes,
the former are counted as mentally ill while the

latter are not.

But how did they know pedophiles can’t

control themselves? Hendricks made it easy by

agreeing that he “couldn’t control the urge.”15

Most people don’t make it that easy. Yet, the

linchpin in deciding whether a mental disorder

counts as a commitable condition is precisely that:

Could the person control him or herself? If the

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 opportunity to do something presented itself and
the person did not do it, control is evident. But if

the person took advantage of the opportunity, how

are we to know if he or she could have exerted

self-control if he or she wanted to? It is the old

philosophical question of determinism vs. free

will, and as Stone wrote, “The debate never has

been resolved by psychiatrists; it is relevant to

every question of volition and responsibility.”16

The ability to control oneself is at the heart of

society’s definition of illness.17 As Parsons18

pointed out, a person is sick if he or she “can’t help

it.” We can’t expect the patient to get well by sheer

willpower. Even if the person ate fatty foods,

didn’t exercise, smoked, etc., once he or she got the

heart attack, that condition could not be changed

by the patient deciding he or she is not sick. While

the patient can decide to take measures to help the

cure along, the sickness, itself, is beyond the

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 person’s control. And generally, everyone agrees

that the person can’t wipe out the symptoms

merely by choosing not to have them.

Partly this is due to the fact that most

sicknesses are obviously biologically driven. There

is a bodily derangement, and even if you deny it,

the derangement is still there. But mental illness

poses tougher problems, because the condition is

recognized (diagnosed) by what the person says
and does. Usually, there is no obvious bodily

derangement to guide us in our thinking about

whether the person could exercise control over

the behavior.

Could we rely on psychiatric experts to help us

determine which people are sick and which are

evil? Consider the fiasco in the case of Comer

Blocker.19 Everyone agreed Blocker had a

sociopathic personality. Today we call this

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 condition antisocial personality disorder. He was
accused of first-degree murder, and he pled that

because of this personality disorder, he was

insane. (I couldn’t help it; I was sick!) A panel of

psychiatrists, including the Drs. Overholser and

Duval, a former president and vice-president of

the American Psychiatric Association, testified that

sociopathy is not a mental illness. The implications

of this opinion were that this man was in control

of himself and he should be held responsible for

his actions. Blocker was found guilty and sent to

prison. One month later, in another trial, Dr. Duval

testified that sociopathy was, indeed, a mental

illness, and the defendant should be treated in a

mental hospital. Why the change? There were no

new findings about sociopathy. What happened

was that the doctors met and decided to change

their viewpoint.

Currently, the American Psychiatric

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 Association skirts this issue. The diagnostic

manual doesn’t even mention illness. All the

diagnoses are called “disorders.” Almost all

imaginable mental conditions, from schizophrenia

to smoking, are included as targets for psychiatric

investigation and possible intervention. Some

critics have condemned this type of array as

“psychiatric imperialism.”20 Kendler doubts we

will ever be able to agree on setting the

boundaries of conditions which should count as

disorders.21 But the diagnostic manual cautions

the reader that inclusion in the book “is not

sufficient to establish the existence for legal

purposes of a ‘mental disorder,’ ‘mental disability,’

‘mental disease,’ or ‘mental defect.’”22 It wisely

takes no position on whether people with these

various disorders can control their behavior or not

—in other words, whether they should count in

any particular legal situation.

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 But where does that leave the psychiatrist who

is on the witness stand? Johnny Blevins had a

record of several arrests and convictions—

forgery, burglary, assault with a deadly weapon.

This time, he’d molested a young girl. Prior to the

trial, his attorney sent him for a psychiatric
examination. The psychiatrist diagnosed him as

suffering from schizophrenia. The jury found him

not guilty by reason of insanity, and he was sent to

a state hospital.

Once there, all his signs of psychosis

disappeared. Johnny bragged about “beating the

system” by fooling the evaluating psychiatrist.

When records arrived from other sources around
the country, the doctors discovered that he had

tried this ploy before, but it had never worked.

The various doctors who examined him in the past

all agreed that Johnny had an antisocial

personality disorder—he flouted the law, was an

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 inveterate liar, had no respect for the rights of

others, and was incapable of remorse for his

actions.

The doctors in this hospital also diagnosed

Johnny as having an antisocial personality

disorder, and they added the diagnosis of

pedophilia. True to form, Johnny proceeded to

drive the staff to distraction. He was manipulative,

demanding, threatening when he didn’t get his
way. He never actually struck anyone, but he did

attempt to sequester several of the more

vulnerable patients in order to make sexual

advances toward them. The staff couldn’t be sure
whether he ever actually succeeded. Johnny just

couldn’t be trusted.

In order to beat the system, Johnny had to get

out of the hospital. Having been found not guilty,

once he was discharged, he would be a free man.

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 And Johnny knew the law. At the earliest possible
time, he filed a petition for discharge, claiming he

did not meet the standards for involuntary

commitment. He was assigned a lawyer who called

me to evaluate him.

After examining Johnny’s records and meeting

with him, I concurred with the diagnoses of
antisocial personality disorder and pedophilia. I

discussed the problem with his hospital

psychiatrist. We both agreed that if he were

discharged, he would likely be a danger to others

again. The question was whether he was capable

of controlling his actions. True, he had a mental

disorder according to the diagnostic manual, but

did he have a mental illness?

In court, I testified that although these

disorders are listed in the diagnostic manual, they

are not generally considered to be illnesses—or at

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 least illnesses that meet the commitment
standard. I maintained that if this person initially

had been brought to the hospital for evaluation, he

would have not been committed. This is not the

type of person that psychiatrists count as

commitable. In fact, in previous evaluations in

other states, after being evaluated, he was not

hospitalized; he was jailed. He was only in this

hospital because he faked his way in. I agreed that

if he were discharged, he would quite likely get

into trouble again. Even if he were discharged on

medication and with the condition that he be

followed in a mental health center (mandatory

outpatient treatment), he’d be gone in a week. And

I was sure that secretly everyone would be happy

if he left our jurisdiction and was off our hands.

But I never said that in open court.

The hospital psychiatrist took the opposite

view. His testimony focused not on the antisocial

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 traits, but on the pedophilia. He was attempting to

treat this “illness” with medication, although he

stated that there was not sufficient evidence of the

medication’s efficacy to merit approval by the

Food and Drug Administration for use in such

cases. He also focused on the patient’s

dangerousness. The judge decided that Johnny met

the commitment standard and needed to remain

in the hospital. Since the hospital psychiatrist said
Johnny had a dismal prognosis, he would remain

in the hospital for a long, long time. Instead of

beating the system, the system beat him.

Of course, as in any case, there were factors

other than those expressed in court. I wondered

why the prosecutor had not sent Johnny for

another evaluation—why she hadn’t fought the

insanity defense more vigorously. My hunch is that

she weighed the possibilities. If he were convicted

and sent to jail, he’d have served his sentence and

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 gotten out. But if he were committed to a hospital,

he might languish there indefinitely. Indeed, there

is evidence that some of the supporters of the law

in Kansas which made pedophilia a commitable

condition “had seen it as an opportunity

permanently to confine dangerous sex

offenders.”23 Not surprisingly, some of these

supporters were prosecutors.

Which one of us was correct—the hospital

psychiatrist or I? Was Johnny mentally ill? Could

he have controlled his behavior? It was a matter of

opinion, not science. Perhaps biology could solve

the dilemma. In 1962, Diamond, a well-known

psychiatrist, wrote, “Within ten years, biochemical

and physiological tests will be developed that will
demonstrate beyond a reasonable doubt that a

substantial number of our worst and most vicious

criminal offenders are actually the sickest of all.

And if the concept of mental disease and

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 exculpation from responsibility applies at all, it

will apply more appropriately to them. And

further, it will apply equally to the vast horde of

minor, habitual, aggressive offenders who form

the great bulk of the recidivists.” He went on to

predict that science would force society to realize

that these people “who now receive the full,

untempered blow of social indignation, ostracism,

vengeance, and ritualized judicial murder are sick
and helpless victims of psychological and physical
disease of mind and brain.”24

While his timing was off, he may have been half

right. In recent years, researchers studying violent

juvenile delinquents25 and adult murderers26

have turned up intriguing biological findings. Even

biological factors in people with antisocial

personality disorders are being discovered.27

Some time in the future, we may, indeed, end up

knowing the array of factors (biological and

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 psychosocial) which can reliably predict

criminality.

But what about the other half of Diamond’s

prediction? Will society treat all these people as

mentally ill? Will they tear down the prisons and

build more mental hospitals? Will people realize

that there is no such a thing as sin, that no one is

evil or depraved—that they are only sick and can’t

help themselves? Will offenders be excused from
responsibility for their actions because scientists

can confidently explain the causes of their

behavior in biological and psychosocial terms? In

short, will all illegal behavior be counted as mental
illness?

I doubt it. Even if scientists were to decide that

all offenders are ill and can’t control their

behavior, society wouldn’t buy it. Society’s sense

of justice doesn’t rest on intellectual formulations;

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 it rests on emotions.28 In the case of those who
break the law, the decision of what counts as

illness basically rests on the tension between

outrage and compassion.29 If the jury (or the

legislators) feel more outrage, they will conclude

that this type of offender should have been able to

exert self control—overcoming the biological and

psychosocial factors.

The question of what counts as illness arises in

a wide variety of cases. It is central in cases of
disability, personal injury, and workers’

compensation. If the litigant is impaired because

of mental illness, he or she may get a substantial

monetary award. If, on the other hand, the judge

or jury decides the person could pull him or

herself together if he or she really wanted to, there

will be no award. Legislators, heads of government

agencies, and those who design insurance policies

grapple with the issue of just what kind of mental

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 disorder will count as compensable illness.

Bruce Adams was just about 50 years old when

he applied for Social Security disability

payments.30 Although he had been hospitalized on

two occasions for treatment of alcoholism, he

continued to drink. However, he had stopped

drinking about a quart of vodka daily; he now

confined himself to six to eight beers a day (or so

he said). He was examined by several doctors who

found he had emphysema (from smoking) and

cirrhosis of the liver caused by his drinking.

Neither condition was serious enough to prevent

him from working.

While Adams stated that although his

condition would improve if he didn’t drink and

he’d have no problem quitting, he liked to drink.

The doctors agreed he had no motivation to

change. In fact, one evaluating physician reported

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 that during the examination, Adams asked him for
barbiturates. The prospects for rehabilitation

were virtually nil. The question before the Social

Security judge was whether this type of alcoholism

should count as a sickness; should Adams receive

disability payments?

According to the Social Security regulations at

the time (1970s),31 alcoholism could be counted

as a disabling condition if it resulted in a

permanent damage to some bodily organ. Of

course, liver cirrhosis might have filled the bill, but

since the regulations also required the claimant to

follow the advice of the physicians and Adams was

unmotivated, the judge denied Adams’s

application for payments.

Adams appealed to the Federal District Court.

The judge upheld the decision to deny the benefits,

stating that although it was “hardly debatable”

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 that alcoholism is a medical disease, the real
reason Adams could not work was that he enjoys

drinking. “We are not convinced that simply

because Adams wants to continue his drinking

habits, this is sufficient to show a disability.”32 In

other words, Adams could choose to stop drinking

and follow the doctors’ suggestions that he be

rehabilitated, but he doesn’t want to.

Adams took his case to the Circuit Court. Once

again, whether Adams’s alcoholism would count

depended on the question of his ability to choose a

different path. The judges said, “In the case of

alcoholism, the emphasis should be placed on

whether the claimant is addicted to alcohol and as

a consequence has lost the voluntary ability to

control its use” (emphasis mine).33 This court felt

that the Social Security judges hadn’t faced this

issue squarely, and they sent the case back for

review. I don’t know what happened in that

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 review, but I would like to have listened in when

the judges grappled with the issue of determinism

(sickness) vs. free will (volition).

What usually happens when people are forced

to decide the unknowable is that they throw

words at it. In my opinion, that’s what the Social

Security Agency did in 1998 when the new criteria

forjudging alcoholism as a disability took effect.34

In these new regulations, in addition to changes in

behavior due to the regular use of alcoholism, the

claimant had to have another mental disorder,

such as cognitive loss due to brain damage,

depression, anxiety disorder, personality disorder

or deterioration of the nerves in the arms or legs.

And not every personality disorder would count—

only those which made the person seem peculiar

or impulsive— but not antisocial personality. In

fact, in a display of circular reasoning, some of the

personality disorders were defined as illnesses by

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 stating that the behavior must be pathological. It

seems to me that the framers merely shifted the

dilemma of knowing if someone could control his

or her drinking to other sets of behaviors where

there might be more agreement that the person

can’t control the condition. Deciding determinism

vs. free will on the basis of common agreement!

The Social Security regulations which tell us

which personality disorders will be counted as
illnesses do not necessarily apply to other legal

situations. Each type of lawsuit may have its own

rules; in fact, most of them don’t have any

guidelines with regards to whether a particular
personality disorder counts. This was the issue

when I testified about Alice Judson’s problem.

Alice was 40 years old when she tripped over a

box at work and broke her left arm in the fall. The

doctor reset the bone, and healing seemed to

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 proceed well until the pains started. These were
“burning pains” up and down the arm, sometimes

accompanied by feeling her arm was too hot or too

cold. Sometimes the arm was acutely sensitive to

touch; on other occasions, she had less feeling

than usual. The orthopedist diagnosed reflex

sympathetic dystrophy and sent her to a pain

specialist.

Reflex sympathetic dystrophy can occur

unpredictably after an injury. It seems to arise

because the injured tissue irritates the nerves in

the vicinity which then set up a pattern that

continues even when the primary injury has

healed. “Sympathetic” does not refer to the

patient’s wanting sympathy (although, as we shall

see, that’s what the patient may have wanted) but

to the sympathetic nervous system which is

involved in producing the symptoms.35

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 The pain specialist concurred with the

diagnosis. Unfortunately, medication and a series

of nerve blocks did not alleviate the symptoms in

Alice’s case. Her doctor said she was 30 percent

disabled and the problem was likely to be

permanent. This would entitle her to receive
workers’ compensation payments. However, the

doctor also noticed another problem; Alice had a

tendency to cry, not from pain, but from the fact

she could no longer do all the things she used to do

—gardening, mowing the lawn, craft work,

anything involving the use of both hands. Feeling

Alice was depressed, the doctor referred her to a

psychiatrist.

Dr. King, the psychiatrist, said Alice was

suffering from Major Depressive Disorder, and it

was in a causal chain from the work injury. He

tried a variety of medications over a period of

almost a year, but the depression didn’t seem to

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 change much. Alice cried in the office, she

expressed wishes that she could die (but she

denied she’d ever kill herself), and she was the

picture of dejection. Dr. King tried to get her to

become more active by doing things that didn’t

involve her left arm, but she didn’t try them.

Instead, she just stayed in the house. The doctor

attributed this to the lack of interest in anything,

which sometimes accompanies a significant
depression. He felt she had a 50 percent

psychiatric impairment which was likely to be

permanent.

The defense attorney asked me to do another

evaluation. Through most of the evaluation, Alice

supported her left arm with her right hand. She

certainly looked downcast, and she cried from

time to time, especially when she described how

the pain prevented her from doing the things she

used to do. Gently, I told her to stop crying so we

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 could proceed. She carefully placed her left arm in

her lap and wiped her eyes with the right. Then

she resumed holding the injured arm, and she

said, “After I cry it out, I feel better.” She said she

used her right hand to steady the left arm because

“otherwise it hurts.” This essentially incapacitated

both hands for much of the time. She winced when

she described her symptoms.

Alice reported she did virtually nothing during

the day. Often she spent the day in her nightgown,

sitting and thinking or watching television. “But I

don’t really watch. I turn it on so the noise keeps

me company. I can’t concentrate enough even to
remember what’s on.” However, later in the

interview, when I asked her what was happening

currently in the news, she was able to tell me.

When I asked her about meals, she said that her

friend, Jean, brought food over. Alice was able to

warm things up in the microwave. She had not lost

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 weight.

It turned out Jean did more than bring food

over. Good friend that she was, she cleaned the

house twice a week, and she did Alice’s banking

and kept her accounts. She sometimes spent an

afternoon with Alice. Alice told me there was no

conversation because she was too depressed to

talk, but it was nice to have Jean just sit with her.
Jean also took her to her doctor appointments.

Alice’s brother was also helpful. Because she

was no longer working, he helped her out

financially. Sometimes he would come over on a

weekend. He’d watch sports on television and she
would sit on the couch. “Just to have someone in

the house,” she said. Other relatives would call to

find out how she was, but she never called them. It

all sounded very gloomy.

Usually when I go to court, the other witnesses

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 and I must wait outside the courtroom until it is
our turn to testify. In that way, we won’t shape our

testimony on the basis of what other witnesses

say. For some reason, that rule wasn’t invoked in

this hearing, and I had the opportunity to hear

Alice present the same story to the judge. I

observed how another woman, presumably Jean,
held her lightly as she took the stand, and again

jumped up to help her back to her seat when she

finished testifying.

When I was called to testify, I said that in my

opinion Alice did not have a depressive disorder,

although she was unhappy. I went down the

criteria one by one. True she felt sad much of the

time and showed little interest in things, but her

appetite was adequate, her sleep was reasonable
except when her arm hurt her, she did not

complain of loss of energy. She complained of pain

and loss of the use of both hands. Although she

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 said she couldn’t concentrate, she did remember

the news she saw on television. She felt no guilt.

The wish not to be alive didn’t rise to the level of a

significant suicide thought. In my view, there were

just not enough features of a major depression to

support that diagnosis.

The judge asked me if her crying when she

testified didn’t indicate depression. I told him that

many people cry when they feel sorry for
themselves. I pointed out that although she

claimed not to hold conversations at home, on the

witness stand she answered questions quickly and

clearly. And she was able to concentrate on the
line of questioning.

Alice had adopted the role of a sick person and

those around her were supporting that role. She

was a very expressive person, and that

expressiveness evoked unusual amounts of

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 sympathy from others. For example, I asked why
she needed the other woman to support her when

she got on and off the stand. At home alone, clearly

she could walk. And why did she need to

incapacitate her right hand when the left arm

could be supported in a sling?

Alice and those who helped her were locking

themselves into a permanent situation, but was

she mentally ill? Obviously what she was doing—

consciously or unwittingly, I couldn’t tell which—

was a feature of her personality. I could have even

diagnosed a mixed personality disorder, but would

it have implied that it was under her control?

Could she act differently? Would she act

differently if the support of others were

withdrawn? Fortunately, I was never asked these

questions. My role in the hearing was to speak

about the diagnosis Dr. King gave her, not to make

a diagnosis of my own. I described only what she

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 and her associates were doing with each other,

and I left it to the judge to decide if that was a

psychiatric impairment—illness. The judge

decided it was, and he awarded her compensation.

I agree with Stone. Psychiatrists can not tell

whether behavior is totally determined by

biological and psychological factors (sick) or could

be altered if the person wanted to (not sick). It is a

dilemma that defies solution. Nothing in our
psychiatric training equips us to make that

distinction.

Judges and juries solve this problem by using

common sense. Subtly prompted by outrage or
compassion or indifference,36 they decide that this

kind of person should be able to exercise self

control while that kind of person can’t be expected

to do so. And like it or not, that is what

psychiatrists do also. But, as I did in the case of the

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 antisocial Johnny Blevins, we tend to follow the
general trend of the way the group of psychiatrists

practice, as if that provided us with more

knowledge about the determinism-free will

dilemma.

However we’re supposed to testify on the basis

of uncommon knowledge, as I noted in Chapter 2.
Unfortunately, the laws are written in terms of

illnesses rather than disorders, and so we’re stuck

and we do the best we can. It would be better if the

laws were written so that the psychiatrist would

know which disorders society wants to count, as

the regulators did in the 1998 revision of the

Social Security guidelines—and which, I should

add, the Kansas legislators did when they decided

to count pedophilia. Then, we could describe the

behavior and whether it fits with the diagnosis

that society, through its legislators, have decided

to count. This, to me at least, makes sense because

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 counting something as illness in a particular legal

context is a societal function, not a psychiatric one.

Notes

1 Kansas v. Hendricks 521 U.S. 346 (1997)

2 The cases of Hendricks, Foucha, Blocker, and Adams are

accurate as described in the referenced court records.

3 Ibid., pp. 353-355

4 Kan. Stat. Ann. §59-29(a)02 et seq. (1994)

5 Kansas v. Hendricks, p. 355

6 Kan. Stat. Ann. §59-29(a)01

7 American Psychiatric Association: Diagnostic and statistical

manual of mental disorders (4th ed.). Washington:
American Psychiatric Press, 1994, pp. 527-528

8 Kan. Stat. Ann. §59-29(a)01

9 Kan. Stat. Ann. §59-29(a)02(b)

10 Kansas v. Hendricks, p. 346

11 Slovenko R: Psychiatry and criminal culpability. New York:

John Wiley and Sons, 1995, pp. 56-58

12 Foucha v. Louisiana 504 U.S. 71, 73-75, 85 (1972)

13 Ibid., pp. 73-75

www.freepsychotherapybooks.org 585
 14 Ibid., p. 85

15 Kansas v. Hendricks, p. 355

16 Stone AA: The ethical boundaries of forensic psychiatry.

Bull. Amer. Acad. Psychiatry Law 12: 209-219,1984

17 Bursten B: Beyond psychiatric expertise. Springfield, Ill.:

Charles C. Thomas, 1984, pp. 26-44

18 Parsons T: The social system. Glencoe, Ill.: The Free Press,

1951, pp. 436-437, 440-441

19 Blocker v. U.S. 274 F. 2d 572-573 (1959)

20 Gallagher BJ: The sociology of mental illness. Prentice Hall:

Englewood Cliffs, N.J.: 1987, p. 33

21 Kendler KS: Setting boundaries for psychiatric disorders.

Amer. Journ. Psychiatry 156:1845-1849,1999

22 American Psychiatric Association: Diagnostic manual, p.

xxiii

23 Kansas v. Hendricks, p. 384

24 Diamond BL: From M’Naughton to Currens and beyond.

Cal. Law Rev. 50: 189-262, 1962

25 Lewis DO: Neuropsychiatric and experiential correlates of

violent juvenile delinquency. Neuropsychol. Rev. 7:125-
136, 1990

26 Blake PY et al.: Neurologic abnormalities in murderers.

Neurology 45:1941-1947, 1993

www.freepsychotherapybooks.org 586
 27 Raine A et al.: Reduced prefrontal gray matter volume and
reduced autonomic activity in antisocial personality
disorders. Arch. Gen. Psychiatry 57: 119-127, 2000

28 Bursten: Beyond psychiatric expertise, pp. 63-82

29 Ibid., pp. 94-97

30 Adams v. Matthews 407 F. Supp. 729-732 (1975)

31 20 C.F.R. §404, Subpart P Appendix 12.09 (1975)

32 Adams v. Matthews, p. 732

33 Adams v. Weinberger 548 F.2d 239, 244 (1977)

34 20 C.F.R. §404, Subpart P Appendix 12.09 (1998)

35 Calliet R: Soft tissue pain and disability (3rd. ed.).

Philadelphia: F. A. Davis, 1996, pp. 46-51

36 Bursten: Beyond psychiatric expertise, pp. 142-166

www.freepsychotherapybooks.org 587
 Chapter 15

Should We Throw Out the

Baby?
In the early 1990s, the Council on Psychiatry

and Law of the American Psychiatric Association

was charged with the task of considering the many

criticisms about the quality of psychiatric expert

testimony. They reported, “Some criticism, to be

sure, is ill-informed, stemming from a

misunderstanding of the role of the expert witness
in court. Much of it, however, comes from

knowledgeable commentators who are disturbed

by aspects of psychiatrists’ conduct on the witness

stand.”1 Now, almost ten years later, as I have

discussed in this book, the situation hasn’t

changed all that much. The reputation of our

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 profession must still bear the stains of prostitutes,
junk scientists, ideologues and others who present

distorted testimony. Should we bow to the critics

and agree that psychiatric testimony must be

excluded from the courtroom?

Of course, the critics present only one side of

the story—unfortunately the most dramatic side.

There is another side which must be considered.

In many legal situations, psychiatric testimony is

needed to give the judge or jury information that

lay people don’t have.2 Psychiatrists are licensed

physicians who must live up to the profession’s

standards of practice. When a malpractice suit is
before the court, only a psychiatrist can testify

about whether the defendant deviated from the

standard. In cases where a plaintiff alleges he or

she was psychiatrically injured—in an accident at

work or on the road or elsewhere—a psychiatrist

can inform the court about the seriousness of the

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 injury, what caused it, and whether it is likely to

respond to treatment or will be permanent. When

a contract or a will is challenged because the

person who signed it is alleged to have been so

mentally ill at the time that he or she didn’t realize

the nature of what was being signed, a psychiatrist

might be able to throw some light on the person’s

mental state when the signing took place. When

someone is charged with a criminal offense, he or
she may plead insanity. A psychiatrist may be able

to help the jury understand the defendant’s mental

state at the time the offense was committed.

All of these needs can be met only if we

psychiatrists have a sound basis for our testimony.

Psychiatry today is very different from the

psychiatry of the early 1960s when I first trained.3

During those years, psychiatrists were divided by

various theories—ideologies, if you will. It was a

case of medication vs. psychotherapy,

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 psychoanalysis vs. behavior modification vs. a

“common-sense practical approach” laced with

advice-giving. In tune with the spirit of the times,

there were those who felt that mental illness was a

product of an unjust society and others who

thought that if we could just have enough money

to treat patients (often called “clients”) in the

community, we could go a long way toward

solving the problem of psychiatric disorders.

However, the past few decades have seen an

explosion of empirical research. Ideologies still

exist, and speculative theories still find their way

into testimony, but the scene is changing. The
newer technological tools, such as imaging of the

brain, biochemical and genetic studies, and

epidemiological research are replacing untested

and untestable theories. Diagnostic categories are

being refined so that there can be greater

agreement about the condition of the person being

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 evaluated. Researchers are studying the efficacy of

various treatments and are producing data to help

us gauge the likelihood of our patients’

improvement. With the prospect of better

understanding the way our biology interacts with

the environment, we can expect the empirical

basis of psychiatry to expand at an ever-increasing

pace.4 Like every other field of medicine, there is a

long way to go, but psychiatry has covered a great

deal of ground in the last quarter century. We can

meet the Daubert standard of a scientific basis for

our testimony—to a reasonable degree of medical

certainty.

So here we are: Do we get rid of psychiatric

testimony because of the multiple opportunities

for distortion and instances of abuse of the

privilege of testifying as an expert witness? And if

we do, are we not also depriving the justice system

of the possibility of gaining sound and specialized

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 information where it is needed? Should we throw

out the baby with the bath water?

In my opinion, we should not. As Weiner

stated, “To suggest that the possibility that some

will prostitute the profession is a reason not to

become involved in the courtroom setting is

analogous to suggesting that because some

psychiatrists have sex with their patients we

should never trust any psychiatrist to be alone
with a patient.”5

This leads to the next question: Can we

improve the performance of those who wittingly

or unwittingly distort their testimony? There are

several possible approaches: training in evaluation

of research, training in the legal issues, mentoring,

and peer review. All of these have their virtues and

their limitations.

The problem of junk science might be

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 confronted by teaching psy- chiatrists-in-training
to distinguish between good research and poor,

and to know how to draw a valid inference from

the research findings as they apply to the legal

case at hand. Would it help if psychiatrists were

trained in statistics and research evaluation

during their residency period? Perhaps so, but
maybe not. Clinical psychologists study statistics

and do research in order to get their Ph.D. degrees.

However, when on the witness stand, they, too,

may purvey junk science based on unvalidated

information.

Another approach might be to educate

psychiatrists-in-training about a few basic legal

principles of testimony, such as the meaning of

“reasonable degree of medical certainty,” or the
undesirability of speculation. They might be

exposed to how the special requirements of expert

testimony differ from those of lay witness

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 testimony, as described in Chapter 2. However, we

must heed Stone’s warning not to produce quasi

lawyers.6 When we testify, we are psychiatrists

operating in someone else’s field. It is important to

know the layout of that field, but it is more

important to be knowledgeable about the
substance of our testimony—the psychiatric

opinion and the data on which it is based.

Stone has raised a cogent concern about those

who specialize in forensic psychiatry (and I am

one of them). He fears that as such specialists get

more involved with learning about the legal

aspects, they may lose touch with psychiatry—

which, after all, is what we testify about.7 In 1984,

he pointed out how those who testify are tempted

to bend their ethics when they are “cajoled by the
lawyers, dazzled by the media spotlight, and paid

more than Blue Cross and Blue Shield allows.”8

Today, managed care pays even less, and I see

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 more and more psychiatrists opting for the more

lucrative and less managed field of forensic

psychiatry. Perhaps five or more years as a

practicing psychiatrist (after residency) should

precede admission into forensic training

programs. And the forensic psychiatrist should

continue to have some activity which brings him

or her into ongoing contact with clinical

psychiatry. Continuing educational activities
should be heavily weighted toward psychiatric

rather then forensic subjects. We should be

psychiatrists first and forensic second. However,

most of the depositions I review are given by

clinical rather than forensic psychiatrists. And

there’s still plenty of junk science.

Two types of consultation could be available to

colleagues who become involved with legal

testimony: mentoring and peer review. Mentoring

is a consultation to help prepare the testimony.

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 Peer review is an educational experience which

goes over testimony that has already been

presented in court.

Mentoring presents special problems involving

confidentiality. The psychiatrist who will be a

witness in the case has access to information

about the litigant which is not yet a matter of

public record. He or she does not have the right to

disclose to the mentor details of the case which
could lead to the identification of the litigant.

However, if the mentor makes the issue of

confidentiality clear (already an educational

process), the consultant can discuss the type of
case—workers’ compensation, insanity defense,

etc.—and orient the witness to the relevant legal

issues. The mentor can point out potential pitfalls,

such as role conflicts and testimony based on

speculation or ideology. The potential witness can

be directed to printed sources of information

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 relevant to the particular type of case, such as

those reported in a recent issue of Psychiatric

Clinics of North America.9 Even psychiatric aspects

of the case can be discussed, so long as the

discussion is general and no identifying

information is given. I have sought such
consultation from colleagues on quite a few

occasions. For example, one litigant was diagnosed

by another doctor as suffering from brain damage.

However, the behavior he exhibited didn’t fit well

with my understanding of what brain damage can

do. After reviewing several articles on the subject,

I became convinced that the diagnosis was

incorrect. Without mentioning any names, I

described the behavior to a colleague who

suggested that the symptoms fit better with a

diagnosis of anxiety. He recommended some

articles I might read. My mentor would have no
way of knowing whom I was talking about unless

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 the case came to trial, in which case the

information would be in the public domain. All of

us can use such consultation from time to time.

Of course, not all who undertake the mentoring

will benefit from it. Years ago, I was approached

by a young colleague whose patient claimed to

have been sexually harassed on the job. My

colleague was about to be to be deposed by the

company’s lawyers. We spent approximately two
hours together going over the parameters of

testimony in such a case. I told her about the

pitfalls of a treating psychiatrist on the witness

stand. We discussed the fact that while her patient

said she was harassed, the doctor could not state
definitively that the harassment took place. We

went over the patient’s current psychiatric

symptoms, and while we could connect them to

harassment if it did occur, the psychiatric injury

was modest. I directed her to some papers

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 describing womens reactions to sexual

harassment in the workplace.

After the deposition, the colleague phoned to

thank me for my help. She was exuberant, but

much of what she told me was contrary to what

we had discussed. She’d told the lawyers that she

knew her patient well and that her patient

wouldn’t lie. And because of the harassment, her

patient’s condition had deteriorated significantly.
My colleague must have thought she was being

gracious when she thanked me for helping her

patient! Even with mentoring, all the knowledge in

the world may fall prey to the role conflicts
described in Chapter 13.

Peer review comes after the testimony has

been given. Since the information about the

litigant is now in the public domain, confidentiality

is not an issue. A task force of the American

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 Psychiatric Association has developed a resource
document outlining guidelines which a peer

review committee could follow when discussing

the testimony with the psychiatric witness.10 The

American Academy of Psychiatry and the Law has

set up such peer review sessions twice yearly, but

it does not seem that at this point there are

widespread opportunities for such review.11

Both mentoring and the peer review process

are limited by the fact that those who testify must

volunteer to take advantage of such education. Not

all witnesses have a sincere desire to seek the

educational benefits. Prostitutes won’t bother with

this process. Ideologues will argue with the

reviewers. Hangmen will avoid review like the

plague. Well- intentioned prevaricators can always

justify their opinions. However, peer review could

be helpful to those who wish to improve their

skills as witnesses.

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 While we can expect continued progress in the

establishment of an empirical research base for

our opinions in court, and we can take steps to

improve the competence of those psychiatrists

who testify, we will always have an imperfect

system. But then, litigation and trials are also an
imperfect system. Remember, the courtroom is an

arena of persuasion, not of truth. Lay witnesses

may lie, jurors may be biased, judges may nod off

during the proceedings, attorneys often seek

strategic advantages in their legal combat in order

to mislead the jury.

Why does society put up with all that? Because

society needs a mechanism, however imperfect, to
settle disputes. And by the same token, often the

court needs the specialized information

psychiatrists can give—with all the warts and all

the beauty marks that come with expert testimony

— to help resolve the dispute being litigated.

www.freepsychotherapybooks.org 602
 Stone has also expressed concern that the

adversarial legal process nudges the forensic

psychiatrist to try to view the proposed testimony

in terms of the needs of the referring attorney

instead of what the psychiatric data show.12 There

is always the temptation to keep one’s eye on the

attorney instead of on the psychiatric issue. This is

the double-agent conflict discussed in Chapter 13.

In my view we can be a consultant to the attorney

so long as we realize our first allegiance is to the

court and we continue to assert the independence

of our opinions.

The adversarial legal process is a fact of life,

and so long as psychiatrists participate in it (and I

believe we should), we must accept it and try not

to be swept away by it. And what is the

alternative? Will the court hire one impartial

expert to speak for the profession? Where will we

find the “impartial expert” who satisfies everyone?

www.freepsychotherapybooks.org 603
 No, the saving grace of the adversary system is

that sometimes—only sometimes—distorted

testimony can be rebutted by the presentation of

sound testimony to a reasonable degree of medical

certainty. And that’s all we can ask for in an

imperfect world. We must not shoot for utopia,

because every time we do we end up with

unintended consequences.

Notes

1 American Psychiatric Association Council on Psychiatry and

Law: Peer review of psychiatric expert testimony. Bull.
Amer. Acad, psychiatry law 20: 343-352,1992

2 Weiner BA: Ethical issues in forensic psychiatry: From an

attorney’s perspective. Bull. Amer. Acad. Psychiatry Law
12: 253-291,1984

3 Sabshin M: Turning points in twentieth-century American

psychiatry. Amer. Journ. Psychiatry 147: 1267-
1274,1990

4 Sabshin M: The future of psychiatry. (In) Hales RE et al.

(eds.): The American Psychiatric Press textbook of
psychiatry (3rd. ed.). Washington: American Psychiatric
Press, 1999, pp. 1693-1701

www.freepsychotherapybooks.org 604
 5 Weiner: Ethical issues

6 Stone AA: The forensic psychiatrist as expert witness in

malpractice cases. Journ. Amer. Acad. Psychiatry Law. 27:
451-461,1999

7 Ibid.

8 Stone AA: The ethical boundaries of forensic psychiatry. Bull.

Amer. Acad. Psychiatry Law 12: 209-219,1984

9 Resnick PJ (ed.): The Psychiatric Clinics of North America:

Forensic psychiatry. 22:1. Philadelphia: W. B. Saunders
Co., 1999

10 American Psychiatric Association Task Force on Peer

Review of Expert Testimony: American Psychiatric
Association resource document on peer review of expert
testimony. Washington: American Psychiatric
Association. Unpublished document, 1996

11 Personal communication, Jacquelyn Coleman, Executive

Director of the American Academy of Psychiatry and the
Law

12 Stone AA: The forensic psychiatrist as expert witness

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