Addiction Medicine Practitioner as Expert Witness - PowerPoint Presentation

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Addiction Medicine Practitioner as Expert Witness

A Clinical Master Class

David Kan, MD

VA

Medical Center, San FranciscoHealth Sciences Assistant Clinical Professor of Psychiatry, UCSF Executive Board, California Society of Addiction Medicine

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Disclosure

No relevant financial relationship with commercial interests.

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Why Forensics?Already part of practice

Change of paceNever a dull momentPayment comes from another pocket

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Case Example

46-year-old womanClaims emotional damages from workplace harassmentHer psychologist testifies that her depression was caused by hostile work environmentYou (as expert) diagnose Borderline Personality Disorder and alcoholism

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Case ExampleAt Trial:

Attorney: Do you claim to know more about the plaintiff than her treating psychologist who has seen her more than 60 times?You (expert): Yes.Attorney: Could you explain how that is possible?

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Expert WitnessWhat makes you an expert?

What is your role?VOLUNTEERS

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What Makes You an Expert?

KNOWLEDGE AND EXPERIENCEQualificationsASAM/ABAMBoard Certification

Society membershipFaculty appointmentPublicationsResearch

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Expert vs. Advocate

Although it is Appropriate for Treating Clinicians to

Advocate

for Their Patients…Independent Experts should NEVER “Play Lawyer” and Advocate for Plaintiff or Defendant.

Independent Experts should only Advocate for their own Evidence-Based Opinions – Nothing More, Nothing Less.8Slide9

Forensic EthicsNo doctor-patient relationship

Not “primum non nocere”Lacks confidentialityInformed consent applies

Lacks peer reviewIs it the practice of medicine?

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Forensic Ethics

Striving for objectivityBias universalFull databaseYou know what you know based upon what you know

Contingency Fees No! No! No!Treater vs. Expert

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Common Ethical ProblemsHired gun

Opinion for saleProblem honest disagreementEmotional involvementTestimony vs. Time

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Common Ethical Problems

Being the DoctorForensic-to-treatment mindsetWarnings not issuedConfidentiality limitsSide of case

Refusal to answer questionsBreaks allowed

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Advocacy

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Often Physicians Confuse Their Roles as Treating Clinicians with Their Roles As Independent Experts, Creating…Slide14

The

Problem of Wearing Two Hats

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The Problem is DUAL AGENCY

…and

ROLE CONFUSION

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The Legal System

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The Legal SystemCase Law

Stare decisis – “let the decision stand”Common LawDefines most crime

Defines civil actions“The legal system is not logical, it is legal” – Wm. Brandeis

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Judicial ProcessAdversarial vs. Inquisitional

Criminal LawState v. DefendantCivil LawPlaintiff v. Defendant

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Matters of Fact vs. Matters of Law

MATTERS OF FACT MATTERS OF LAW

Ascertained by sensesWitness described what they have perceivedTrials establish facts then apply “the law”

Trier of FactJuryJudgeWhat is decided by application of:Statutes

Principles of lawJudge decides what is/is notONLY issues of law may be appealed19Slide20

Burden of Proof

CriminalProsecutionExcept Insanity – Burden of Proof shifts to defendant

Civil One Party > Than the OtherWorker’s CompensationNone per se

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Criminal Procedure

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Criminal Procedure

Actus Rea - Bad ActMens Rea - Guilty MindPurposely – conduct conscious object

Knowingly – aware of circumstancesRecklessly – conscious disregard

Negligently – not criminal unless by statute No intent to do harmSpecific Intent includes 1-2General Intent includes 1-3

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Criminal ProcedureMisdemeanor

<12 month sentencesLocal jailFelonies >12 month sentenceState prison

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Criminal PunishmentDeterrence – setting example

Retribution – just dessertsRehabilitationRemoval of Offender

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Affirmative DefensesBurden of production and proof is on defendant

ExcuseSelf-defense – justifiableDuressInsanity

AutomatismEntrapmentNecessity – cabin in the snow

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Intoxication in Criminal Defense

Voluntary intoxication excludedMay influence Actuality/CapacitySettled PsychosisMay be exculpating

DUIPer se violation

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Case Example

50-year-old man assaults wifeShot her after argumentClaim: Intoxicated and can’t rememberHx

of Bipolar, family testifies not symptomaticHeavy drinker, 3 DUIsThreatens her – “you don’t have the balls to pull the trigger” – defendant then shoots wife

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Case Example

Voluntary IntoxicationAlcoholic blackoutBipolar DisorderNo evidence of symptoms

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Civil ProcedureDiscovery – exchange information

InterrogatoriesRequests for documents (subpoena)DepositionsMental and Physical Examinations

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Tort Law

Tort = Civil wrongTort law is attempt to make injured party “whole”

Shifts financial loss from injured partyBlameworthiness is not necessary

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Intentional TortsIntentional – acts where damage should be expected

Assault and batteryMedicalFalse imprisonmentViolate civil rights

Sex with patients31Slide32

Unintentional Torts

Negligence – unreasonable risk of causing harmMedical NegligenceDutyDerelictionDirect Cause

Damages32Slide33

Damage Types

Actual – compensatory for lossSpecial – out-of-pocket expenses for injuredPunitive – punish defendant; requires willful, malicious, wanton behaviorPain and Suffering – physical and mental discomfort

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Addiction in LawInvisibility

Reluctance to disclose or discover34Slide35

Standard of Evidence

Beyond a Reasonable DoubtCriminal>95%Clear and Convincing Evidence

Civil Commitment (Conservatorships / Sexually Violent Predator)>75%Preponderance of the Evidence

Most Civil Cases50%+135Slide36

Example

49-year-old male accused of murdering ex-wife and boyfriend; no witnesses; lots of forensic evidenceCriminalNot guiltyCivilJudgment goes against him

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The Life of a Case

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The Life of a CaseInitial Inquiry (typically phone call)

Attorney presents their construction of caseDiscussion usually ensuesThey want to know your feeThey ask for your CV

Conflicts of interest38Slide39

The Initial Call

Get their name, number, and e-mailFind out the calendar of the caseGive:Fee and Retainer agreementCV

Information that helps them (e.g., article, PowerPoint)

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The Initial Call

Ask for all relevant informationMedical & Psychiatric RecordsDrug TestsCriminal Reports

Job ReviewsDepositionsInterrogatories

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Working with Attorneys

They are advocates for their client/causeThey may be used to working with expertsThey generally care about your opinion

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Assessment

Review all recordsMay want to dictate record reviewInterviewInformed consentRecord interview (video best, audio OK)

Observe behaviorRelevant history – medical/psych, work, functional, recreational

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Behavior during the Assessment

Behavior occurring during the clinical evaluation can provide valuable information. This may include:

Unusual emotional states that seem strange or inappropriate to the situation

Unusual or atypical motor behavior restlessness startle reactionsunusual or poor use of arms/hands/legs

unusual gait or postureunusual or inappropriate facial expressionsPoor attention and concentrationApparent lack of effort or fluctuating effort levels43Slide44

Evaluating Addiction in Litigation

Drug / Alcohol Testing

Different detection windowsMultiple drug testing technologiesBlood – current intoxicants

Urine – recent useSaliva – recent use; not good for CannabisHair – up to 3 monthsInvasiveness

How much and diagnoses are far less important than impact of use44Slide45

Evaluating Addiction in Litigation

Indirect Laboratory TestingBlood count, liver function tests

Physical Examination / ObservationSweating, pupillary

dilation, agitationSequelae of Alcoholism Alcohol on breathRosacea, Angiomata

Co-Occurring Physical Conditions45Slide46

Evaluating Addiction in Litigation

Psychological SymptomsIntoxication vs. Withdrawal

Toxidromes mimic psychiatric disordersDepression

ManiaAnxiety statesHigh rates of co-occurring disorders with addictionCognitive Abnormalities

Intoxication vs. Kindled damage46Slide47

Report Writing

Report is meant to help legal disposition of disputeStages

Gathering informationConsider audienceOrganize and outlineFine tuning

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Federal Rule of Civil Procedure Rule 26

Written reportComplete statement of opinionsBasis and reasoningQualifications – CV is sufficient

Publications in last 10 yearsFeesList of cases depo/testified for 4 years

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Report WritingLabel sections

Short paragraphsExecutive summaryReport should be self-sufficientReasoning is most critical part!

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Report ContentIdentifying Information

Case number, charges or allegationsSource of ReferralReferral IssueSources of InformationInterviews

Documents50Slide51

Report Content

QualificationsStatement of Non-ConfidentialityPast Personal HistoryFamily HistorySexual and Marital History

Educational History51Slide52

Report Content

Employment HistoryRelevant Medical HistoryDrug and Alcohol HistoryLegal History

Juvenile arrestsPrior litigationWorker’s Compensation

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Report Content

Psychiatric HistoryRelationship of Plaintiff/DefendantRelevant Events Preceding CrimeDefendant’s Account of CrimeWitness Accounts

Mental Status Examination/Physical Examination

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Report Content

Summary of Psychological TestingCompetency AssessmentPsychiatric DiagnosisOpinionReasonable medical or psychological certainty

Avoid hedging – “it seems, I think, I believe”

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Attorney Control over Reports

May not want reportAvoid cross examinationBrief reportKeep costs down, keep information confidentialDon’t keep drafts

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Report Writing Don'tsBe snide/snarky

Make personal attacksUse legal terms generallyUse terms as draft/confidential/work product!, ____, Bold, Italics

http://gunning-fog-index.com/

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Testimony

Deposition vs. TrialBothExpect an oathSubpoena Duces

TecumBring your documentsVoir Dire

Number of times contrary constructionAnticipate and spell technical terms57Slide58

Deposition

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What gets Covered in Deposition

Qualifications?

Compensation?Expert’s experience including % plaintiff vs. % defense?What was assignment?

What work was done to fulfill assignment?59Slide60

What gets Covered in Deposition

Reviewing Expert’s file material

Opinions formed?Basis for each opinion? Additional work requested, if any?

Whether changing particular facts would change Expert’s opinions?60Slide61

DepositionCross examination

Provide opinions and basis for themFor the recordSpeak clearly and slowlyUnderstand questionFeel free to repeat

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Deposition

Answer question askedFeel free to refer to documentsDon’t banterPaymentPaid by opposing counsel for time allotted

Paid by your counsel for travel and expenses62Slide63

Deposition Don’t guess

“I don’t recall” is a fair answerObjectionsListen carefullyAnswer question unless instructed not to

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Deposition Attorney Tricks“Let’s have a conversation”

Scrambling the orderThe Rhythm MethodMaking you guessPersonal questions

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Trial Testimony – 6 P’s

PreparationPlanningPractice

Pretrial ConferencePitfalls

Presentation65Slide66

Testimony Example Direct

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Testimony Example Cross

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Attorney PreparationEducate

Diagnosis, psycho/pharmacotherapyDemystificationLimits of dataBe aware of ex-ference

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Trial TestimonyDirect Examination

Your attorney makes the caseYou can help prepare your attorney for directCross ExaminationOpportunity for opposing counsel to poke you

Don’t be rattled69Slide70

Trial TestimonyDress conservatively

Explain medical terminologyThink about answer firstObjections:Wait for instructions from judge

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Trial TestimonySpeak

directly to the fact-finder (i.e., judge, jury)Make eye contact with every member of jury

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Trial Attorney Tricks

“Isn’t it possible?”“You’re being paid $X for your testimony?”“You’re saying you know this case better than the treating physician?”“Have you done a complete and thorough review?”

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Trial Attorney TricksMisquoting testimony

“Never” and “Always”Simple harassmentTreat attorney like a Borderline patientImpugning pretrial preparationPatient is present

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Expert Advice“Based upon knowledge, training, experience”

Concede valid points“Your honor may I explain?”“My job is educator”“I’m here to advocate for my opinion”

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Starting and Growing Your PracticeAdvertising

ConsultationFee and Retainer AgreementsSample included in CDGetting paid

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Getting Your Name Out

AdvertisingGoogleCall local DA/PD to offer discounted workEducational talksPublish in law journals

Local bar association publications76Slide77

Getting Your Name Out Redacted reports

Never eat lunch aloneConnect with experienced forensic practitionerWorker’s Compensation

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Practice ManagementBilling software

TimeslipsiBizStoring RecordsAsk permission prior to shredding

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Money10 hour retainer

Nonrefundable?Keep attorney appraised of costStop work when money is outTime estimates are not NTE quotes

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Money10 hour per diem

Minimum ½ day for deposition/trialTravel payExpenses

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Selected TopicsCompetency

MalpracticeChild CustodyDram ShopDrug-Free Workplace

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Selected TopicsImpaired Professional

Prescription Drug AbuseToxidromes

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CompetencyTo do what?

TestamentaryKnow natural heirs, make appropriate decisionStand TrialKnow charges and court procedure

Fitness for dutyPettus v. ColeLimits disclosure

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Malpractice

Duty, Dereliction, Direct, DamagesStandard of CareWhat a reasonable practitioner would do similarly situatedGuidelines

Hindsight BiasPerfect vs. Single lesionWhat was not written didn’t happen?

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Child CustodyBest interests of child

Parent is accused of addictionEvaluationLabs, testingRecommendationsTreatment,

disulfiram, naltrexone

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Dram Shop Defendant walks into bar

Three drinksDUI.08 vs. .25Bar owner sued

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Drug Free Workplace Act 1988

TITLE 41 >

CHAPTER 10 > § 701 Prohibit use on job

Prohibit working under the influenceProvides employee notification requirementsProhibits unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance

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ADA Title I and V

Section 12114c

Drug addiction may be a "disability" if it "substantially limits one or more ... major life activities." 42 U.S.C. Section 12102(2)Current use of illegal drugs does not make “qualified individual with disability”

Can be qualified individual with disabilityCompleted program and is now drug-freeParticipating in supervised rehabilitation program and is now drug free

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Addiction and Americans with Disabilities Act

Brown v. Lucky Stores, 246 F.3d 1182

Employer permitted to terminate an alcoholic employee for violating a rational rule of conduct even if the misconduct was related to the employee's alcoholism Hernandez v. Hughes Missile Systems Co.,

DJDAR 6518 (9th Cir. June 11, 2002)Hernandez fired after cocaine+ on UtoxHernandez went to rehabilitation9

th Circuit ruled that Hernandez qualified as an individual with a disability, and that history of addiction alone, even related to reason for termination, was not grounds not to rehire89Slide90

Workplace Drug Testing

Workplace Drug Testing Is not considered a medical examination

Alcohol TestingIs considered a medical examination and thus must meet need and necessity

Individuals with current alcohol-related disorders are protected under the ADAADA does not conflict with DOT or other Federal RegulationADA trumps state/local law when conflict arises

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Workplace Drug Testing

Pre-employment examinationPeriodic random testing

Post-incident/accidentFor reasonable cause

Random testing (safety/security sensitive positions)Work fitness examinationsJob transfer examinationsContinuing-care testing (workers in treatment where testing is a condition of continuing employment)

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Impaired ProfessionalRegulatory

DiversionConstraints of safe practiceMonitoring

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Prescription Drug AbuseMalpractice claim

DocumentationGood faith H&PRisks and BenefitsAppropriate treatment planMonitoring

Universal precautions?93Slide94

Prevalence

Among full-time workers aged18 to 64 (NSDUH 2004-5)8.8 percent reported current heavy alcohol use

8.2 percent reported current illicit drug use~30% overlap

In the past year 7.4 percent of these workers were dependent on or abusing alcohol1.9 percent were dependent on or abusing illicit drugs

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Affected Industries

Highest rates of current illicit drug useAccommodations and Food Services industry (16.9%)

Construction industry (13.7%)Highest rates of current heavy alcohol use Construction industry (15.9%)

Arts, Entertainment, and Recreation industry (13.6%) Mining industry (13.7%) 95Slide96

Impact of Addiction

Illicit Drug Users1.5x likely to miss 2 or more days of work in last month due to illness/injury

2.6x more likely to skip 1+ days of work in last month1.6x more likely to have left employer in last year

1.9x as likely to have been terminatedHeavy Alcohol Users1.5x likely to miss 2 or more days of work in last month due to illness/injury

2.2x more likely to skip 1+ days of work in last month1.3x more likely to have left employer in last year1.6x as likely to have been terminatedSAMHSA 1999 Data96Slide97

Impact of Addiction

Lost Productivity (deBenardo 2001)25-33% lowerSick Leave

300% higher health insurance ratesWorker’s Compensation ClaimsAddiction linked to 40% of industrial fatalities and 47% of industrial injuries

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Addiction Myths

Myth of Self MedicationMyth of DetoxificationMyth of Character Weakness

Myth of Treatment Ineffectiveness

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Alcohol

Most prevalentIntoxication effects well knownProblem drinking

Deleterious effects women > menPatterns of absenteeism

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Cannabis

Prop 215 contradicts Federal Law“Medicinal marijuana”Paranoia, psychosis, anxiety

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Cocaine + Amphetamine

Central Nervous System stimulantsHigh doses and/or prolonged use can produce psychosis, agitation, anxiety, anger

Cessation of use associated with dysphoria

Amphetamine epidemic problematic, but somewhat overstated101Slide102

Opiates

Non-prescribed use growingChronic opiates

rx’d for pain conditions generally NOT impairing when taken as prescribedLook for early refills, lost rx

, multiple prescribersDOJ CURES formMethadone / Buprenorphine treatment of choiceDetoxification of limited long-term efficacy

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Other Issues

TestimonyOrders in

limineReport WritingEditor

CALJIC/CALCRIMHindsight bias

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Discussion

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