Psychological Evaluations in Litigation: A Practical Guide for Attorneys and Insurance Adjusters. Bruce Leckart, Ph.D.

Transcription

1 Psychological Evaluations in Litigation: A Practical Guide for Attorneys and Insurance Adjusters Bruce Leckart, Ph.D. Professor Emeritus San Diego State University Licensed Psychologist State of California Qualified Medical Evaluator State of California Second Edition Copyright 2011 by Westwood Evaluation & Treatment Center Published by Westwood Evaluation & Treatment Center Olympic Boulevard Los Angeles, California All rights reserved. No part of this publication may be reproduced or transmitted in any form of printing or by any other means, electronic or mechanical, including but not limited to, photocopying, audiovisual recording and/or information storage, unless expressly given written permission by the publisher. ISBN

2 CHAPTERS Foreword Chapter 1 Introduction: An Overview of Some Cases and Concepts Chapter 2 The Five Sources of Information Chapter 3 The Most Frequently Diagnosed Disorders in Litigation Chapter 4 The Mental Status Examination Chapter 5 The Life History and Presenting Complaints Chapter 6 The Psychological Testing Chapter 7 The Most Frequently Used Psychological Tests in Litigation Chapter 8 The Review of the General Medical Records Chapter 9 The Review of Psychological and Psychiatric Records Chapter 10 The Summary and Conclusions Chapter 11 For Psychologists Only: How to Build a Practice Glossary 315 References 327 Index 334 2

3 TABLE OF CONTENTS Foreword Chapter 1: Introduction: An Overview of Some Cases & Concepts I. Personal Injury: Sally: A Case Study of a Physical Injury and a Psychological Injury II. On-the-Job Injury: Joe: A Case Study of a Pure Stress Injury III. Personal Injury and Workers Compensation Litigation IV. Psychologists and Psychiatrists V. Psychological and Psychiatric Injuries VI. The Standard for Defining Psychological Injuries: The American Psychiatric Association s Diagnostic and Statistical Manual of Mental Disorders VII. The Definition of a Psychological or Mental Disorder VIII. The Causes of Mental Disorders IX. The Five DSM-IV-TR Diagnostic Axes X. Psychology and Neuropsychology Chapter 2: The Five Sources of Information I. Mental Status Examination II. Life History and Presenting Complaints III. Psychological Testing IV. Review of Medical Records

4 V. Collateral Sources of Information Chapter 3: The Most Frequently Diagnosed Disorders in Litigation I. Adjustment Disorders Adjustment Disorder With Mixed Anxiety and Depressed Mood (309.28) Adjustment Disorder With Anxiety (309.24) Adjustment Disorder With Depressed Mood (309.0) II. Anxiety Disorders Generalized Anxiety Disorder (300.02) Posttraumatic Stress Disorder (309.81) Anxiety Disorder Not Otherwise Specified (300.00) Panic Attacks Agoraphobia Panic Disorder With Agoraphobia (300.21) Panic Disorder Without Agoraphobia (300.01) Specific Phobia (308.29) Social Phobia (300.2) Acute Stress Disorder (308.3) Agoraphobia Without History of Panic Disorder (300.22) Obsessive-Compulsive Disorder (300.3)

5 III. Mood Disorders Major Depressive Disorder Bipolar Disorders Bipolar I Disorder Bipolar II Disorder Depressive Disorder Not Otherwise Specified (311) Dysthymic Disorder (300.4) Mood Disorder Not Otherwise Specified (296.90) Cyclothymic Disorder (301.13) IV. Substance-Related Disorders Substance Abuse Disorders Substance Dependence Disorders Polysubstance Dependence (304.80) V. Personality Disorders Antisocial Personality Disorder (301.22) Avoidant Personality Disorder (301.82) Narcissistic Personality Disorder (301.81) Dependent Personality Disorder (301.6) Borderline Personality Disorder (301.83) Histrionic Personality Disorder (301.50)

6 7. Obsessive-Compulsive Personality Disorder (301.4) Paranoid Personality Disorder (301.0) Schizoid Personality Disorder (301.20) Schizotypal Personality Disorder (301.22) Personality Disorder Not Otherwise Specified (301.9) VI. Schizophrenia and Other Psychotic Disorders Diagnostic Criteria for all of the Five Forms of Schizophrenia Additional Diagnostic Criteria for Schizophrenia, Disorganized Type (295.10) Additional Diagnostic Criteria for Schizophrenia, Catatonic Type (295.20) Additional Diagnostic Criteria for Schizophrenia, Paranoid Type (295.30) Additional Diagnostic Criteria for Schizophrenia, Residual Type (295.60) Additional Diagnostic Criteria for Schizophrenia, Undifferentiated Type (295.90) Schizoaffective Disorder (295.70) VII. Sleep Disorders Primary Sleep Disorders a) Dysomnias (1) Primary Insomnia (307.42)

7 (2) Primary Hypersomnia (307.44) (3) Narcolepsy (347) (4) Breathing-Related Sleep Disorder (780.59)..101 (5) Circadian Rhythm Sleep Disorder (307.45) b) Parasomnias (1) Nightmare Disorder (307.47) (2) Sleep Terror Disorder (307.46) (3) Sleepwalking Disorder (307.46) Sleep Disorders Related to Another Mental Disorder a) Insomnia Related to Another Mental Disorder (307.42) b) Hypersomnia Related to Another Mental Disorder (307.44) Sleep Disorders Due to a General Medical Condition Substance-Induced Sleep Disorders (291.xx or 292.xx) VIII. Somatoform Disorders Somatization Disorder (300.81) Undifferentiated Somatoform Disorder (300.81) Conversion Disorder (300.11) Pain Disorders

8 a) Pain Disorder Associated With Psychological Factors (307.80) b) Pain Disorder Associated With Both Psychological Factors and a General Medical Condition (307.89) c) Pain Disorder Associated With a General Medical Condition Hypochondriasis (300.7) IX. Mental Disorders Due to a General Medical Condition Anxiety Disorder Due to a General Medical Condition (293.89) Mood Disorder Due to a General Medical Condition (293.83) Personality Change Due to a General Medical Condition (310.1) Sleep Disorders Due to a General Medical Condition Dementia Due to Head Trauma (294.1) Dementia Due to Other General Medical Conditions (294.1) Sexual Dysfunction Due to a General Medical Condition..121 a) Male Hypoactive Sexual Desire Disorder Due to a General Medical Condition (608.89) and Female Hypoactive Sexual Desire Disorder Due to a General Medical Condition (625.8) Mental Disorder Not Otherwise Specified Due to a General Medical Condition (293.9)

9 X. Eating Disorders Anorexia Nervosa (307.1) Bulimia Nervosa (307.51) XI. Dissociative Disorders Dissociative Amnesia (300.12) Dissociative Identity Disorder (300.14) Depersonalization Disorder (300.6) XII. Sexual and Gender Identity Disorders Sexual Dysfunctions a) Hypoactive Sexual Desire Disorder (302.71) b) Sexual Aversion Disorder (302.79) c) Female Sexual Arousal Disorder (302.72) d) Male Erectile Disorder (302.72) e) Female Orgasmic Disorder (302.73) f) Male Orgasmic Disorder (302.74) g) Premature Ejaculation (302.75) h) Dyspareunia (302.76) i) Vaginismus (306.51) Paraphilias a) Exhibitionism (302.4)

10 b) Fetishism (302.81) c) Frotteurism (302.89) d) Pedophilia (302.2) e) Sexual Masochism (302.83) f) Sexual Sadism (302.84) g) Transvestic Fetishism (302.3) h) Voyeurism (302.82) Gender Identity Disorder XIII. Factitious Disorders XIV. Conditions That May Be a Focus of Interest Psychological Factors Affecting Medical Condition (316.00) Parent-Child Relational Problem (V61.20) Partner Relational Problem (V61.10) Sibling Relational Problem (V61.8) Noncompliance With Treatment (V15.81) Malingering (V65.2) Borderline Intellectual Functioning (V62.89) Bereavement (V62.82) Occupational Problem (V62.2)

11 10. Identity Problem (313.82) Phase of Life Problem (V62.89) XV. Diagnosing No Disorders or Deferring Diagnosis No Diagnosis or Condition on Axis I (V71.09) No Diagnosis on Axis II (V71.09) Diagnosis or Condition Deferred on Axis I (799.9) Diagnosis Deferred on Axis II (799.9) Chapter 4: The Mental Status Examination I. Mental Status Examinations in Neurology and Psychology II. Contents of a Mental Status Examination III. The Patient s Orientation IV. The Patient s Physical Presentation V. The Patient s Mood VI. The Patient s Memory VII. Attention, Concentration and Cognitive Abilities VIII. Major Psychological Disorders Chapter 5: The Life History and Presenting Complaints I. The Major Questions to Be Answered

12 II. A Psychologist s Different Approaches to Normal Clinical and Medical- Legal Evaluations III. Patient Honesty and Plaintiff Attorney Coaching IV. The Major Sub-Sections of a Life History Places of Residence a) The Relevance of Gaps in a Patient s History b) Correcting Mistakes in History Taking Marital History Family of Origin Education through Junior High School High School Education College Education and Any Other Formal Educational Experiences Employment History of the Injury a) Two Different Kinds of Psychological Injuries b) Physical Injuries Leading to Psychological Injuries. 171 c) Psychological Injuries as a Result of Psychosocial Events Current and Past Complaints (Symptoms) Medical History

13 a) Separating General Medical Conditions and Psychological Disorders (1) Mental Disorders That Are Due to a General Medical Condition and Not Psychological Factors (2) Psychological Disorders That Present as Medical Conditions But The Persons Signs and/or Symptoms Cannot Be Explained By a Medical Illness (3) Psychological Factors Affecting a Medical Condition Substance Use History Psychological Treatment and/or Evaluations Miscellaneous Personal History Current Activities Chapter 6: The Psychological Testing I. Objectivity and Standardization II. Normative Testing Data III. Test Validity IV. Reliability V. What to Look For in Psychological Tests VI. The Doctor s First Responsibility: Measuring Credibility

14 VII. Validity Scales and Test Validity: Examinee Honesty and Attorney Coaching VIII. What Can Psychological Tests Measure? Chapter 7: The Most Frequently Used Psychological Tests in Litigation I. The Different Types of Tests Arizona Sexual Experiences Scale (ASEX) Babcock Story Recall Test Beck Anxiety Inventory Beck Depression Inventory Beck Hopelessness Scale Beck Scale for Suicide Ideation Bender-Gestalt Test California Psychological Inventory (CPI) Cattell Sixteen Personality Factor Test (16PF) Clinical Analysis Questionnaire (CAQ) Comrey Personality Scales (CPS) Coping Responses Inventory Adult Form Cornell Medical Index (C.M.I.) Cowboy Story Test

15 Credibility Scale Davidson Trauma Scale Digit Symbol Modalities Test See also Symbol Digit Modalities Test Edwards Personal Preference Schedule (EPPS) Folstein Mini-Mental Status Exam Forer Structured Sentence Completion Test Forer Vocational Survey Test (FVS) Graham-Kendall Memory for Designs Test Guilford-Zimmerman Temperament Survey (GZTS) Hamilton Anxiety Scale Hamilton Depression Scale Hilson Life Adjustment Profile (HLAP) Holmes-Rahe Social Readjustment Rating Scale Hooper Visual Organization Test (HVOT) House-Tree-Person Test (HTP) Inwald Personality Inventory Inwald Survey 5-Revised IPAT Anxiety Scale IPAT Depression Scale Malingering Probability Scale

16 McGill Pain Questionnaire Memory for Designs Test Mental Status Evaluation Checklist Miller Forensic Assessment of Symptoms Test (M-FAST) Millon Clinical Multiaxial Inventory-III (MCMI-III) Millon Index of Personality Styles (MIPS) Millon Behavioral Health Inventory (MBHI) Millon Behavioral Medicine Diagnostic (MBMD) Minnesota Multiphasic Personality Inventory (MMPI) Minnesota Multiphasic Personality Inventory (MMPI-2) MMPI MMPI Mooney Problem Checklist Multidimensional Pain Inventory Multiscore Depression Inventory NEO Personality Inventory-Revised (NEO PI-R) Neuropsychological Impairment Scale (NIS) Neuropsychological Questionnaire Neuroticism Scale Questionnaire Oars Multidimensional Functional Assessment Questionnaire OMFAQ)

17 Occupational Stress Inventory-Revised Personality Assessment Inventory (PAI) Pain Drawing Inventory Pain Patient Profile (P3) Penn Inventory for Posttraumatic Stress Disorder (Penn) Personal Problems Checklist for Adults Posttraumatic Distress Scale Quality of Life Inventory Raven s Progressive Matrices Rey 15-Item Memory Test Rorschach Inkblot Test Rosenzweig Picture Frustration Test Rotter Sentence Completion Test Rotter Internal-External Locus of Control Test Sentence Completion Tests Generic Shipley Institute of Living Scale (SILS) Simplified Rathus Assertiveness Schedule (SRAS) State-Trait Anxiety Inventory (STAI) Subjective Profile of Personal Effectiveness Suicide Probability Scale

18 Symbol Digit Modalities Test Symptom Checklist-90-Revised (SCL-90-R) Symptom Checklists - Generic Forms Taylor-Johnson Temperament Analysis Scale (T-JTA) Test of Memory Malingering (TOMM) Thematic Apperception Test Trail Making Test Trauma Symptom Inventory (TSI) Wahler Physical Symptoms Inventory Wechsler Adult Intelligence Scale-III (WAIS-III) Wechsler Memory Scale-Third Edition (WMS-III) West Haven-Yale Multidimensional Pain Inventory (WHYMPI) Wonderlic Personnel Test (WPT) Word Memory Test Zung Depression Scale II. Selecting a Test Battery Chapter 8: The Review of the General Medical Records I. General Medical Records from Treating Physicians II. General Medical Records - Medical-Legal Reports

19 III. Deposition Transcripts IV. Advice for Attorneys Taking Depositions V. Personnel Records VI. Investigative Reports VII. Job Descriptions or Job Analyses Chapter 9: The Review of Psychological and Psychiatric Records I. The Eight-Paragraph Review of Psychological and Psychiatric Reports Paragraph One: An Overview of the Report Paragraph Two: The Nature of Psychological Diagnoses Paragraph Three: A Discussion of the DSM-IV-TR Definition of the Doctor s Diagnosis Paragraph Four: A Discussion of the Correspondence Between the History Reported by the Doctor and the DSM-IV- TR Definition of the Disorder Diagnosed Paragraph Five: A Discussion of the Correspondence Between the Doctor s Mental Status Examination Data and the DSM-IV-TR Definition of the Disorder Diagnosed Paragraph Six: A Discussion of the Testing Data Support for the Doctor s Diagnosis Paragraph Seven: A Discussion of the Medical Records and Collateral Data Supporting the Doctor s Diagnosis

20 8. Paragraph Eight: A Statement of the Conclusions I Have Drawn From the Analysis of the Report II. Substantial Flaws Frequently Found in Psychological and Psychiatric Reports Inconsistencies Between the Doctor s Diagnosis and the Patient s History Incomplete Histories Inconsistencies Between the Doctor s Diagnosis and their Mental Status Examination Data Incomplete Mental Status Examinations Flaws in Psychological Testing a) The Use of Subjectively Interpreted Tests b) The Use of Tests That Are Lacking in Validity and/or Reliability c) The Use of Tests That Are Incapable of Assessing Credibility d) Failure to Administer Any Psychological Tests e) Failure to Report Psychological Testing Data f) The Misinterpretation of Attempts at Symptom Simulation g) Administering the Psychological Tests Under Non- Standardized Conditions h) Administering Tests That Were Not Designed to Measure Psychopathology

21 i) Errors in the Use of the MMPI (1) Errors in Scoring and/or Reporting Test Scores (2) The Misinterpretation of Validity Scale Test Scores (3) The Misinterpretation of Clinical Scale Test Scores (4) Failure to Interpret All of the MMPI Scores Inconsistencies in the Doctor's Report of the Patient's History Inconsistencies Between the Patient s Complaints and the Doctor s Observations Inconsistencies Between the Patient s Medical Records and the Doctor s Conclusions and/or Diagnosis The Use of Outdated Diagnostic Manuals Diagnosing Disorders That Do Not Exist Basing Conclusions on Outdated Psychological Testing Data Doctor-Made Statements Indicating They Have Not Collected Enough Data to Make a Diagnosis III. Treating Psychologists and Treating Psychiatrists Reports IV. Psychological Testing Reports V. Psychological and Psychiatric Reports Written by Non-Doctors

22 VI. The Meaning of Prescribing Psychotropic Drugs Chapter 10: The Summary and Conclusions Chapter 11: For Psychologists Only: How to Build a Practice Glossary References

23 Foreword This book is being written as a reference for attorneys and insurance adjusters. It is being written to help them evaluate the credibility of specific psychological and psychiatric reports and to make decisions about which doctors to hire. It is also being written to help them take more effective courtroom and deposition testimony from patients who are claiming psychological injuries and from doctors who are testifying as expert witnesses. If I achieve my goal, attorneys and insurance adjusters will be able to use this work to negotiate more just and favorable settlements of psychological claims and litigation. This is a book about adults who have filed litigation or a formal claim of a psychological injury with an insurance carrier or a private person. It is based on my 43 years of experience in psychology since receiving my Ph.D. at Michigan State University in It is also based on 30 years of teaching psychology at the university level and 32 years of private practice as a psychologist in Southern California. For more than two decades I have been working in the medical-legal area or what is sometimes called forensic psychology, which is the branch of psychology that deals with legal issues. Forensic psychologists provide services that often include writing reports of their examinations or evaluations and providing courtroom testimony in criminal cases, child custody hearings, involuntary hospitalizations, personal injury cases and work-related injuries. My specialty has been in personal injury and work-related injuries in adults. In the coming pages I will provide you with information that I have gleaned from my 23 years of experience working as the owner and president of the Westwood Evaluation & Treatment Center. During that time I have participated in the evaluation and/or treatment of thousands of people who have been referred for psychological evaluation and/or treatment as a result of a psychological injury. Some of the people I have evaluated were referred to me by their attorneys, while others were sent by an insurance company or a defense lawyer. Still others were sent to me by both parties who agreed to use me as the sole or agreed medical evaluator. Most of my recent referrals have come from the defense in conjunction with workers compensation claims. However, the information, 23

24 procedures, and principles of psychological evaluations and expert testimony discussed in this book are the same regardless of which side refers the case. Some people in the medical-legal community refer to doctors working as expert witnesses as hired guns, authorities expected to provide a report that will make the referral source happy by writing what the source wants to hear. However, it has always been my belief that doing so results in a short career, since besides one s knowledge and skill, the doctor s reputation is really the only thing he or she has that is valuable. Essentially, when that reputation is marred, by acting as a hired gun and producing opinions that cannot be supported by hard cold data, one s practice disappears. In this regard, I have adopted an attitude of I ll call it the way I see it and let the chips fall where they may. It seems to have worked for me for what I think is one good reason. I never ever say anything that I have not backed up with a considerable amount of factual data. Overall, with respect to making my referral sources happy, my attitude from Day One has been, If I ve drawn a conclusion that is not good for your side, unless I ve made an error, there s nothing I have to apologize for. On balance, what I think has made my practice successful, and what I am most proud of, is that I ve tried to produce the most thorough and detailed report possible that is based on thorough and detailed data that will stand up to the highest levels of scrutiny. I also believe that in getting to that place I have had a substantial advantage as a result of coming from an academic background, which is fundamentally very scientific and precise in data collection, analysis and interpretation. Thus, while I am aware that it may be somewhat arrogant to say so, If you can find the holes in my work bring it on! Overall, the major message of this book is that while the level of services provided by many psychologists, as well as related mental health professionals such as psychiatrists, meets or exceeds the standards in the community, there are many occasions when those standards are not met. In fact, while it is not my intent to insult my colleagues, I believe that the quality of reporting in forensic cases in workers compensation and personal injury is often quite poor. I think you can get an idea of just how poor it is by reading Chapter 9, where I discuss the major flaws to be found in psychological and psychiatric 24