Nearly every day, in my work as a forensic psychology expert, I am asked to review the medical records of litigants who are claiming mental impairments in Worker's Comp, Personal Injury and Disability cases. Sometimes, the request for me to review records is made by an attorney, although I am also referred litigants and their medical records for evaluation by insurance companies and Independent Medical Exam companies. While studying these medical records, I see a number of errors being made in determining the authenticity of the mental impairment claim that can have a significant impact on the outcome of the claim.
One significant error is made, in my opinion, when the notes of treating doctors' are relied upon as a database for decision-making in legal cases.
Treating doctor's notes are just that: they are the record of the conceptualizations, diagnoses, treatment plans and prognoses. The problem begins when the treatment notes of the psychologist, psychiatrist or social worker are brought into the legal system because the legal system has different rules with which the treating mental health professional may not be familiar.
Take the example of a patient who is being treated for the psychological aftereffects of a motor vehicle accident. I may be provided with psychotherapy treatment notes covering a period of six months or more for review. I might also be retained to conduct a face-to-face examination of the litigant, but for the purposes of this discussion I will focus only on the review of the medical records.
The purpose of my review of the medical records is usually to determine the following:
1. Does the litigant have a mental impairment?
2. What is the severity of the impairment?
3. To what extent is the impairment related to the trauma in question (an MVA, for example)?
4. Does the impairment result in disability for work or other severe loss of capacity to function?
5. What is the prognosis? Is the litigant still exhibiting mental impairment now?
Treating doctors (and I include psychologists, psychiatrists, social workers and other types of mental health professionals) have a tendency to bond with their patients. This is normal and is a useful part of the treatment process. Mental health professionals may, in fact, usefully enter into the psychic world of their patients in order to better understand and treat their patients. This means that treating mental health professionals have a tendency to accept what their patients say as true in an uncritical manner. I think that most treating mental health professionals would consider this attempt to understand their patient to be a critical part of the healing process. I also believe that most psychotherapy patients would find this caring and empathetic approach to be a necessary characteristic of their doctor and would probably consider dropping out of treatment if they felt their doctor did not make an attempt to understand and accept them and their symptoms.
The treatment process comprised of, among other elements, empathy, uncritical acceptance and bonding can work well in psychotherapy treatment. Yet, there are implications of this approach and the written process or progress notes that the treating doctor enters into the record that are problematical once the patient moves into the legal arena of the personal injury, Worker's comp or disability claim.
Treating doctors tend to see many patients in a day. Notes of the treatment process and progress must be made in order to document that treatment has occurred. Time taken to make these notes must be subtracted from the treatment hour, resulting in the traditional 50 minute psychotherapy session. One implication of this time crunch is that treating psychotherapist may not have or take the time to carefully document the full criteria of the mental disorder which is the focus of treatment. Mental disorders, despite the myth, are carefully defined in the "Bible" of mental disorders which is also known as the Diagnostic and Statistical Manual of Mental Disorders or DSM-IV. Yet, I frequently note that treating mental health professionals use a kind of shorthand when documenting, for example, Posttraumatic Stress Disorder (PTSD). Rather than carefully recording in the notes how the patient meets each of the requirements for PTSD, the treating mental health professional may save time by noting that the patient experienced a stressful event, avoids the place where the trauma occurred and now has some problems with sleep. Although this formulation may be found in treating mental health professional's progress notes, it absolutely does not document the full criteria of the PTSD and, therefore, is subject to critical analysis within the context of a forensic psychological exam and in cross-examination should the case proceed to deposition or trial.
Another common mistake of the treating mental health professional is to fail to rule out malingering. Malingering is defined in the DSM-IV as "...the intentional production of false or greatly exaggerated physical or psychological symptoms, motivated by external incentives...".
In some mental disorders, according to the DSM-IV, including PTSD, malingering must be ruled out before a diagnosis can be made. I rarely see any attempt to rule out malingering documented in a mental health professional's progress notes. As I noted in article I published on my website entitled "The Importance of Using Psychological Tests to Identify Faked, Exaggerated or Malingered Symptoms in Litigation: An Introduction for Attorneys", an interview alone is not a robust method of accurately identifying or ruling out malingering. A much better method of doing so involves the use of psychological tests designed for this purpose. Yet, it is rare for treating mental health professionals to employ psychological testing as a part of the typical treatment process.
More information about the issues raised in this post are available at my website.