Civil Forensic Psychiatry
Forensic Neuropsychiatry in Civil Litigation
Dr. Datta has served as a court appointed expert and worked with attorneys in state and federal courts, providing his expertise on a range of psycho-legal matters. He has also published and presented on such topics in peer reviewed journals and national conferences.
As a neuropsychiatrist, Dr. Datta has particular expertise in cases involving neuropsychiatric disorders such as Traumatic Brain Injury, Dementia, Functional Neurological Disorder, PTSD, Somatoform Disorders, and psychiatric manifestations of neurological disease (e.g. stroke, epilepsy, movement disorders, COVID-19, tumors, autoimmune encephalitis). He has consulted on cases involving conservatorship, undue influence, testamentary capacity, psychiatric malpractice, personal injury, workplace harassment and discrimination amongst other things.
Civil Competencies
Common civil competencies include:
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that they are making a will
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the natural objects of their bounty and claims upon them
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the general nature and extent of their property
To have medical decision making capacity, an individual must be able to:
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Communicate a choice
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understand the relevant information
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Appreciate the situation and its consequences
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Rationally reason about treatment options
The best paper on medical decision-making capacity by Applebaum can be found here.
It is important to note that no diagnosis alone precludes civil competencies and an individual may be competent to make one decision but not another. Even patients with mild to moderate dementia may be able to make decisions for themselves. Common diagnoses that can affect one's mental capacity include dementia (e.g. Alzheimer's Disease, Dementia with Lewy Bodies, Vascular Dementia), delirium, schizophrenia, bipolar disorder, intellectual disability, and taking high doses of opiates or other psychotropic drugs. Additionally, performance on neuropsychological testing or bedside cognitive testing alone cannot be used to determine competency, though this information is often helpful as part of a comprehensive evaluation. Finally, competency to make decisions is specific to the time at which the individual is making the decision. Civil competencies can fluctuate over time. Individuals with many medical conditions can rapidly fluctuate in their mental capacities.
Having the autonomy to make our own decisions is foundational to a free society. It is generally presumed that individuals are competent to make their own decisions. However, when this is called into question, forensic psychiatrists and psychologists may be asked to opine on whether an individual has the capacity to make these decisions.
Common civil competencies include:
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testamentary capacity (the ability to make a valid will)
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contractual capacity (the ability to enter into contracts)
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medical decision-making capacity (the ability to provide valid consent to and refuse treatment)
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matrimonial capacity (the ability to enter into marriage)
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competency to testify (the ability to testify in a court of law)
Of these, medical decision-making capacity and testamentary capacity are the most commonly encountered types of assessment. Typically, medical decision-making capacity assessments happen in a clinical setting. Conversely, testamentary capacity assessments happen in a legal setting. With many baby boomers dying having accumulated significant wealth and often experiencing cognitive decline at the end of life, will contests calling into question the testator's ability to make a valid will are increasingly common.
Testamentary capacity evaluations are particularly noteworthy because in the majority of cases, the testator is already dead at the time a doubt of their competency is raised. This makes an examination impossible and the forensic evaluator must rely on retrospective review of medical records, legal records, the testator's personal records, and collateral interviews in order to opine on whether the testator had the capacity to make a valid will at the time it was executed. In many cases, there is insufficient information to be able to opine one way or another.
Undue Influence
Most commonly, forensic psychiatrists are asked to opine on the alleged victim's susceptibility to undue influence. Less commonly, they may also provide their expertise to assess the tactics used by the alleged influencer and their impact on the alleged victim.
As with testamentary capacity itself, questions about undue influence are most commonly raised after the testator has died. However, it is usually much easier to form a retrospective opinion on whether the testator was susceptible to undue influence than to make a determination of their testamentary capacity.
Another issue that is commonly raised in will contests is that of undue influence. According to the California Welfare and Institutions Code, "undue influence":
"means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity."
According to California's Welfare and Institutions Code 15610.70, all of the following must be considered in determining whether a decision resulted from undue influence:
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The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.
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The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.
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The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:
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Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.
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Use of affection, intimidation, or coercion.
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Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.
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The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.
Personal Injury
While courts have long recognized the need to compensate victims for physical damages related to the tortious conduct of another, there has been less willingness to compensate victims for emotional damages or psychic injury. Nevertheless, it is now widely recognized that victims can be compensated for emotional damages. However, skepticism regarding such claims, and the potential for exaggeration, or less commonly, outright fabrication of psychiatric symptoms, mean forensic psychiatrists serve as essential experts for the courts in personal injury cases.
In addition to claims of PTSD and other emotional damages, courts now frequently deal with claims related to traumatic brain injury (TBI). Neuropsychiatric complications of TBI include cognitive impairment, mood disorders, anxiety, PTSD, mania, psychosis, seizures, headaches, tinnitus, vertigo, balance problems, visual problems, functional neurological symptoms, neck pain, fatigue and so on. In many cases, neuroimaging or quantitative EEG are used to bolster plaintiff's claims of brain damage and ongoing symptoms. In most cases, the head injury was mild. While it is true that a myriad of cognitive, behavioral, emotional, and physical symptoms can occur following even a so-called mild head injury, which of those symptoms is actually caused by the head injury itself versus other factors is often at issue. Forensic neuropsychiatrists (who are few and far between), often in conjuction with neuropsychologists, bring the requisite expertise in these cases. Comprehensive validity testing is essential to assess the veracity of psychiatric symptoms which are otherwise based on self-report alone.
Other special examples of personal injury cases include worker's compensation evaluation, Social Security Disability evaluations, private neuropsychiatric disability evaluations, and Compensation & Pension Evaluations for Veterans.
Dr. Datta co-authored a paper on the Forensic Assessment Functional Neurological Disorders published in Behavioral Sciences & The Law. FND is a common, but underdiagnosed disorder in personal injury cases.
Psychiatric Malpractice
The most common claims in psychiatric malpractice cases include:
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Patient suicide or attempted suicide
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Wrongful treatment
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Confidentiality breach
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Medication errors
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Wrongful diagnosis
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Boundary violations
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Failure to discharge duty to warn or protect
In addition to facing claims of medical malpractice in court, psychiatrists may also face medical board complaints including a hearing in administrative court. Board complaints may also include professional misconduct claims unrelated to negligence. In both malpractice claims and medical board complaints, psychiatric experts are essential to opine on whether there were departures from the standard of care.
Medical malpractice is a special form of negligence. In recent years, the fallibility of the medical profession has come under scrutiny with recognition of the significant human and societal cost of medical errors. Psychiatrists are the least likely of all medical specialists to be sued for malpractice. This is probably related to the lack of invasive procedures performed by psychiatrists as well as the importance of the therapeutic relationship to psychiatric practice. Nevertheless, claims of medical negligence are not infrequently brought against psychiatrists and the institutions in which they work.
In order to prove medical negligence, the "4 Ds" must be present:
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There was a duty of care
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There was a dereliction from that duty
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There were damages
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Those damages were directly caused by the dereliction
For a malpractice claim to prevail, it must be proved that the plaintiff’s injuries were proximately caused by the defendant’s conduct and that the conduct fell below what an ordinary, prudent practitioner would do in similar circumstances.
Fitness for Duty Evaluations
These evaluations may involve a review of prior medical and mental health records, lab tests including urine toxicology, comprehensive examination, psychological and/or neuropsychological testing, brain imaging, collateral interviews, review of job description, review of any performance evaluations and disciplinary action.
Understandably, individuals who are mandated to undergo a FFDE are usually unhappy about it or fear losing their livelihoods. While the focus of the evaluation is related to any impairments that may impact their work performance, a comprehensive evaluation necessarily involves inquiry on sensitive matters that the evaluee may object to. There may also be concerns about sensitive information being shared with employers or other professional bodies. Psychological testing can be helpful as a measure of response style, especially where there are concerns the evaluee may be minimizing the extent of their difficulties.
Employers may request Fitness for Duty Evaluations (FFDEs) for employees where their are concerns about the employee's ability to perform their job safely and effectively. In addition, professional boards may request an FFDE for a licensee when concerns are raised regarding the licensee's ability to safely and effectively practice their profession. Dr. Datta has conducted physician FFDEs for the Medical Board of California.
Common reasons for psychiatric FFDEs include:
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Suspected substance use disorder
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Disruptive behaviors in the workplace
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Signs concerning for serious mental illness
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Signs concerning for significant cognitive impairment
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Disclosure of a diagnosis or treatment that may impair the ability to discharge one's duties
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Workplace violence