In civil litigation, a mental health expert can serve as a consultant, a treatment provider or a forensic evaluator. For example, a plaintiff sues his/her employer for emotional damages and a mental health professional is sought to treat these emotional injuries. The attorney may ask the treating professional to prepare a report summarizing the emotional distress, the treatment provided, the response to the treatment, the prognosis for partial or complete recovery and the nature and cost of any future treatment. In many jurisdictions, these professionals can be designated as “treating” experts and testify in depositions and trial.
A mental health expert can also conduct a forensic evaluation. After an in-depth interview with the patient and sometimes other concerned parties, the forensic evaluator typically prepares a report based on the information obtained and can testify in depositions and trial. The mental health professional designated as a forensic evaluator does not typically provide any type of treatment.
Attorneys must be cognizant of the fact that a treatment provider and a forensic evaluator differ on important procedural and methodological grounds. These differences will play a role in the admissibility of the expert’s opinions and vulnerability to Daubert challenges.
The treatment provider is more likely to be biased in favor of the patient/plaintiff, placing importance upon the maintenance of an effective therapeutic relationship and the avoidance of ethical problems concerning potential conflicts of interest. A single method approach to assessment is generally employed, with clinical interviews as the primary vehicle for data collection. Psychological testing is seldom employed, except for purposes of treatment planning. Collateral information from other sources is rarely obtained, and if so, is only relevant to treatment planning.
While treatment providers supply a psychological diagnosis for insurance and other administrative purposes, their use of standard guidelines will vary greatly. Covering case-related and noncase-related causal and contributory factors is not important, unless they aide in treatment planning.
On the other hand, the forensic evaluator adopts an impartial stance, favoring neither the plaintiff nor defendant. A multi-method approach to assessment includes conducting forensic clinical interviews and reviewing medical records and other case documents. The evaluator will obtain information from third party sources that ideally have knowledge of the plaintiff’s emotional state before, during and after the alleged cause of action. This collateral information is then used to supplement and corroborate a plaintiff’s self-reports. Psychological testing is employed, such as the MMPI-II, which uses objective assessments with built-in validity indicators. These indicators are examined to detect inconsistent responding, possible malingering and defensive underreporting of symptoms and/or exaggeration. Forensic evaluators also examine the consistencies and discrepancies of the information gleaned from other sources to further vet the plaintiff’s self-report.
The forensic evaluator obtains a snap shot of the plaintiff’s state of mind at the time of the evaluation. Retrospective and prospective judgments about the course of symptom changes over time are inferred from the information obtained. Possible pre-existing psychological problems, timing of symptom onset and fluctuating symptom severity are also important to explore in relation to case events. Lastly, issues of causation are important to address. Case-related and noncase-related factors are thoroughly examined to help establish both probable cause as well as alternative causation.
Mental Health professionals play a critical role in civil litigation involving alleged emotional injuries. Understanding the differences between experts who serve in the clinical and the forensic fields can significantly impact case success or failure.