Direct Depo Questions
Attorneys should only question the doctor about their report and never about the patient. This approach will ensure that no new "evidence" can find its way into the doctor’s testimony and the outcome will most likely be far superior than asking the doctor about the patient. If you ask the doctor about the patient this allows them to provide information of questionable validity that is not their report that could conceivably support their conclusions.
Attack the Diagnosis
When cross-examining psych doctors, attorneys should focus their questioning on the weakest part of the doctor’s report, which is their diagnosis. When effectively done this approach will force the doctor to testify that there were insufficient data in his or her report to support their diagnosis. Once this has been done all of the other conclusions about things like causality, disability, prior pathology and the need for treatment fall by the wayside like a collapsing house of cards.
Support for the Diagnosis
The most frequent and substantial flaw in psych reports is the doctor’s diagnosis. Simply put, there must always be data or evidence that supports the diagnosis. Thus, the first thing to do is to obtain the diagnostic criteria from the DSM-IV-TR or the DSM-5, whichever is applicable in your jurisdiction. Then look at the doctor’s history. At that point you just ask yourself, “Do the data support the diagnosis”? If the history is deficient in providing information about the symptoms in terms of their qualitative nature as well as their frequency, intensity, duration, onset or course over time there is no support for the doctor’s diagnosis.
Credibility is Key
The first responsibility of any medical-legal evaluator is to demonstrate the patient’s credibility. One measure of credibility is the objective psychological test scores in the doctor’s report. There are three psychological tests often found in medical-legal reports that are capable of providing such data: the Minnesota Multiphasic Personality Inventory (MMPI), the Cattell Sixteen Personality Factor Test (16PF) and the Millon Clinical Multiaxial Inventory (MCMI). A discussion of these tests can be found in my book Psychological Evaluations in Litigation: A Guide for Attorneys and Insurance Adjusters that can be read or downloaded for free at www.drleckartwetc.com where you can also find copies of my monthly newsletters addressing psychological testing in detail. An attorney can prepare for a deposition or trial by determining if the scores indicate that the patient was exaggerating, embellishing, over-reporting or attempting to simulate symptoms or telling the truth.
Mental Status Examinations
Information about a patient's credibility can be found in the doctor's report of their face-to-face Mental Status Examination (MSE). An MSE provides a set of observations of the patient that are made by the doctor employing a relatively standard set of examination techniques and observations. At the very least the data in the MSE should be consistent with the data found in the doctor's history, the psychological testing, and the patient's medical records. The MSE should also contain information about the doctor's observations of the patient' consistency vs. inconsistency and vagueness vs. clarity both of which speak to the patient's credibility. A complete description of MSE's can be found in my book Psychological Evaluations in Litigation: A Guide for Attorneys and Insurance Adjusters that can be read or downloaded for free on my website. You can also find copies of my monthly newsletters further addressing MSE's.
Persistence is Key
Under cross-examination, psych doctors sometimes answer questions with technical jargon or are non-responsive in other ways. Sometimes that behavior is deliberate and sometimes it is just how the doctors think and express themselves. Regardless, when that occurs you may not have the foggiest idea of what the doctor is talking about. One simple solution is to be persistent! When the doctor is indirect or obscure just go back to your same simple question and repeat it until you get your clear simple answer.
Watch your Phraseology!
Every credible psych report contains a complete history of the patient's symptoms or complaints. Similarly, every credible psych report describes the results of a Mental Status Examination. A Mental Status Examination produces a set of observations of the patient, which are made by the doctor during a face-to-face meeting, using a relatively standard set of examining techniques and questions. Accordingly, there will be times when a patient complains of memory problems. One of the cognitive processes measured during a Mental Status Examination is memory. Always check to see if the patient's complaints are consistent with the doctor's Mental Status Examination results. If not, there is trouble in River City.
Revealing Patient Honesty
Check to see that the test results reveal patient honesty. There are literally thousands of psychological tests. However, only a very few of them have validity scales for determining if the patient answered the questions in an honest and forthright manner. When reading the psychological testing section of a psych report be sure to determine what those tests reveal about the patient's credibility during the doctor's examination. If the tests indicate that the patient wasn't truthful, how did the doctor explain those data?
Check to see if the history is complete
One of the cornerstones of every psych report is the doctor's history of the patient's symptoms or, as they are sometimes called, complaints. A complete history of those symptoms is needed in order to diagnose correctly any psychological disorder. In turn, the doctor must present information about each symptom’s qualitative nature as well as its frequency, intensity, duration, date of onset and course over time. Without a complete history that provides those data there is no support for the doctor's diagnosis.
Using the Beck Tests in Psych Evals
Dr. Aaron Beck is a clinical psychologist who has had a significant impact in the way psychotherapists provide treatment. He is also the creator of the Beck Anxiety Inventory, the Beck Depression Inventory, the Beck Hopelessness Scale and the Beck Scale for Suicide Ideation. While those tests provide treating doctors with information about their patient’s symptoms, none of them have any validity scales for determining if the patient answered the questions in an honest and forthright manner. In most treatment situations one can assume that a person seeking help is telling the truth. However, that is not true in medical-legal evaluations where the first responsibility of every medical-legal evaluator is to determine if the patient is being honest. Since none of the Beck tests have any measure for determining credibility, those results cannot be accepted at face value in a medical-legal context and used to support the doctor’s diagnoses or other conclusions unless there is independent evidence from a test such as the MMPI indicating that the patient was being honest.
Getting Help from an Expert
Got a psych depo coming up? Need to plan your strategy and devise questions? Need to write a brief on a flawed psych report? Not sure how to achieve your goals? Not sure where the report is vulnerable? Not sure what questions to ask or where to attack? You know the report is flawed but you’re not sure where? You need an expert witness. Check out my website at drleckartwetc.com and learn about Apricots™.
Gambling During a Depo
Apricots™ are for when you don’t want to gamble on the outcome of a psych doctor’s deposition. Life can be boring or exciting. But you don’t want excitement if you’re taking a psych doctor’s deposition. You want it boring, to the point and a good result. If you have a psych doctor’s report that is substantially flawed I can find the flaws and tell you how to get them into the record. Settling a case, taking a doctor’s deposition or going to trial without taking a critical look at the doctor’s diagnosis is gambling. You need an Apricot™ if you don’t want to gamble on the outcome of a psych doc’s deposition.
Deciding which Questions to Use in Cx
What kinds of Cx questions do I provide in an Apricot™? They are questions I would not want asked of me if I were the doctor being deposed. No telling what effect they will have on the doctor being deposed but they are questions that would make me feel embarrassed and humiliated if I wrote their report. Most importantly, an Apricot™ provides the attorney with all of the information that they need to back up their questions and get to a point where it is obvious that the conclusions in the doctor’s report are flawed.
Get Questions To Ask The Doctor
What kinds of Cx questions do I provide in an Apricot™? They are questions I would not want asked of me if I were the doctor being deposed. No telling what effect they will have on the doctor being deposed but they are questions that would make me feel embarrassed and humiliated if I wrote their report. Most importantly, an Apricot™ provides the attorney with all of the information that they need to back up their questions and get to a point where it is obvious that the conclusions in the doctor’s report are flawed.
How to decide if that psych report is really as bad as you think
Ask yourself? Does the doctor’s description of the patient describe enough symptoms to conform to the diagnostic manual’s definition of the disorder? Did the doctor describe enough Mental Status Examination to support their diagnosis? Do the psychological testing scores demonstrate the patient was both truthful and disordered? Asking the right questions is the first step to understanding that psych report.
The Diagnosis is Crucial
In writing an Apricot™ for use in cross-examining a psych doctor the focus is most often on the diagnosis, which is the major problem found in most psych reports. Doing this is conceptually very simple. Just match up the diagnostic criteria found in the Diagnostic and Statistical Manual of Mental Disorders (DSM) with the data found in the doctor’s report to see if the report lacks sufficient data to support the diagnosis. Once it has been demonstrated that the diagnosis is unsupported, there is absolutely no support for the conclusion that the patient has a psychiatric injury, a psychiatric disability or a need for treatment.
DSM-IV-TR vs. DSM-5
Although the most recent version of the American Psychiatric Association’s diagnostic manual is the DSM-5, it has been soundly rejected by an overwhelming number of mental health professionals, including Dr. Allen Frances, the former chairperson of the DSM-IV and DSM-IV-TR Task Force, and Dr. Thomas Insel, the Director of the National Institute of Mental Health for over a decade. Dr. Insel has openly stated that the weakness of the DSM-5 is “its lack of validity.” Thus, The Center for Medicare and Medicaid Services (CMS) along with tens of thousands of mental health professionals have decided to use the DSM-IV-TR or have made “other arrangements.”
Check out the Doctor’s History
One of the first steps in reviewing a psych report is seeing if the doctor took a complete history of the patient’s symptoms or complaints to indicate that their diagnosis is correct. The history section is only complete once the doctor has sufficient data about each symptom's qualitative nature, including its frequency, intensity, duration, onset and course over time.
The Mental Status Examination (MSE)
A Mental Status Examination (MSE) produces a set of observations made by the doctor during a face-to-face meeting. An MSE should contain a description of the patient’s appearance and social behavior, observations about the patient’s credibility, statements made by the patient indicative of any possible psychopathology, observations of mood or affect, and measurements of the patient’s memory, concentration, insight, and judgment. Without MSE data supporting the doctor’s diagnosis the report falls by the wayside.
Measuring Patient Credibility
The first responsibility of any medical-legal evaluator is to determine the patient’s credibility. Most psychological tests do not have validity scales capable of measuring truthfulness and therefore are useless in medical-legal examinations. Keeping that in mind, the first step in preparing to Cx a psych doctor is to evaluate the psychological testing data to determine if the doctor has used the appropriate tests and the data show the patient was being honest during the examination.
The Review of Medical Records
The patient’s medical records can speak volumes about an examinee’s credibility, can be used in conducting an examination, and may be valuable in drawing conclusions about a psychiatric injury and/or in apportioning psychiatric disability. Attorneys should examine the doctor’s review of medical records to determine if they cited any documents that support their diagnosis. When there are no such records from a mental health practitioner that is one less data source bolstering the doctor’s final conclusions.
Stick to Questioning The Report
A common mistake made by attorneys when cross-examining a psych doctor is asking questions about the patient. The only relevant information is the content of the doctor’s report. Unfortunately, if the attorney asks about the patient, the doctor is free to provide information that is not in their report that may justify their conclusions. Obviously, that information may be correct for a variety of reasons. However, if the attorney confines their questions to the contents of the report no “new evidence” can find its way into the testimony.
Persistence in Questioning
Cross examinations of doctors work best with a series of simple questions that mostly can be answered either “yes” or “no” that will expose all the flaws in the doctor’s report. An attorney should always pay attention when the doctor goes off the “deep end” and gives a long-winded discussion that contains unresponsive answers, incomprehensible jargon or “word salad.” This is a sign that the doctor is backed up against a wall. When this occurs the attorney should just go back to their original simple question and keep asking it until the doctor provides a clear answer.
When you see that a doctor has diagnosed a Major Depressive Disorder, check to see if the diagnosis is complete. The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) indicates that in order to diagnose any form of a Major Depressive Disorder correctly it is necessary to specify whether the disorder has been of the Single Episode or the Recurrent variety and also to specify the severity of the disorder. In fact, the DSM indicates that not only must the doctor verbally describe these factors but they must also provide numerical diagnostic codes to unambiguously identify the specific Major Depressive Disorder they wish to diagnose. When you see that the doctor has provided an incomplete Major Depressive Disorder, you should ask them where in their report they provided the information about their diagnosis as required by the DSM and of course, you should always make sure that the doctor has provided enough information in their report to indicate that all of the diagnostic criteria were satisfied.
Absence of MMPI Scores
The Minnesota Multiphasic Personality Inventory (MMPI) is an instrument that is widely accepted by psychologists and psychiatrists as being capable of measuring any existing psychopathology and an individual’s test-taking attitudes or credibility. For some unknown reason, many psych doctors choose to omit MMPI scores from their report. The absence of those scores means that the reader of their report cannot verify the basis for their summary conclusions. When you see that a psych doctor has declined to provide the patient’s MMPI scores in their report, you should ask them if there is anything in their report that would allow the reader of that document to confirm the conclusions they drew from the patient’s MMPI.
Where is the MMPI?
The Minnesota Multiphasic Personality Inventory (MMPI) is an instrument that is widely accepted by the psychological community as being capable of assessing psychopathology and an individual’s test-taking attitudes or credibility. In fact, the MMPI is the cornerstone of virtually every credible forensic psychological testing battery. When you see that a doctor has declined to administer an MMPI, you should ask them where in their report they provided their explanation for not doing so.
For some unknown reason, some psych doctors choose to make up their own diagnoses by “creating” modifiers or specifiers. These doctors take it upon themselves to add modifiers or specifiers where such modifiers or specifiers are not outlined in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). The use of modifiers or specifiers created by the doctors results in a situation where their diagnosis is ambiguous as those creations have no generally understood meaning. When you see a diagnosis in the doctor’s report that does not exist in the DSM, you should ask the doctor where in the DSM you can find the diagnosis they provided in the manner that they verbally described that disorder. If you’ve done your homework correctly the doctor really doesn’t have an acceptable answer.
Cry For Help
Psych reports often contain the classic phrase “a cry for help” as an explanation of psychological testing that reveals that the patient was attempting to simulate symptoms or was “faking.” In this regard it is important to note that the notion of “a cry for help” is simply an explanation or a theory of why an individual might be attempting to simulate symptoms. It does nothing to change the fact that the individual was attempting to simulate symptoms or “fake.” Thus, the theory of a “cry for help” is no more tenable than the tongue-in-cheek theory of “a plea for unwarranted economic benefits.”
Sleep problems are often reported in psych reports as support for a clinical depression, a PTSD or some other form of psychopathology including one of the many Sleep Disorders. When determining the credibility of a psych report it is necessary to check that report to be sure the doctor has provided a history of the patient’s sleeping behavior at a time prior to their reported injury date that includes data about the number of hours of sleep they were getting per night, the time it normally was taking the patient to fall asleep, a history of any middle of the night awakening, and a history of any early morning awakening. In the absence of a complete history of the patient’s pre-injury baseline for comparison purposes, there is no support to indicate that the patient’s sleeping behavior at the time of the doctor’s examination had changed due to the patient’s reported injury.
DSM-IV vs. DSM-IV-TR
For some unknown reason, psych doctors writing medical-legal reports state they have used the DSM-IV. The fact is that the DSM-IV-TR was published in May, 2000, rendering the DSM-IV obsolete at that time. Accordingly, the use of the DSM-IV anytime after May, 2000 is a substantial flaw in the doctor’s report. While many of the diagnostic criteria for disorders found in the DSM-IV-TR are the same as those found in the DSM-IV there are substantial difference in the two diagnostic manuals as summarized on pages 829 through 843 of the DSM-IV-TR. I mention this in the event that you encounter the argument that the two diagnostic manuals are the same. In fact, not only are multiple diagnoses different but the discussion of the various disorders are also dissimilar in a multitude of fashions. For example, not only were a majority of the paragraphs in the DSM-IV revised to provide up-to-date information about the various disorders, information needed to make correct diagnoses, but the instructions for arriving at a GAF score were greatly expanded. Additional information about the differences between the DSM-IV and the DSM-IV-TR can be found on the American Psychiatric Associations website (http://www.psychiatry.org). The bottom line here is that the DSM-IV is not an appropriate diagnostic manual to use for reports written after May, 2000.
The Beck Anxiety Inventory
The Beck Anxiety Inventory is a self-report rating scale on which the individual is asked to use a 4-point rating scale to describe him or herself on 21 items that are assumed to be common symptoms of anxiety. It should be noted that this is a self-report questionnaire that has no validity scales for assessing the individual’s test-taking attitudes or credibility. Since the first responsibility of a medical-legal examiner is to determine the credibility of the individual’s self-report, this test should not be used in a medical-legal context.
Major Depressive Disorder
A Major Depressive Disorder is a serious mood disorder that is characterized by a depressed mood and associated symptoms. According to the DSM-IV-TR, to diagnose a Major Depressive Disorder correctly, the individual must present with at least five of nine symptoms. In addition to having at least five of nine symptoms, the patient must present with Symptom 1 and/or Symptom 2. An inspection of the DSM-IV-TR reveals that the nine symptoms are as follows:
1. A depressed mood that is present most of the day and every day or nearly every day.
2. A markedly diminished interest or pleasure in all, or almost all, activities most of the day, every day or nearly every day.
3. A significant weight loss or weight gain while not dieting and/or a decrease or increase in appetite every day or nearly every day.
4. Insomnia or hypersomnia every day or nearly every day, which is a lack of restorative sleep or an overabundance of restorative sleep.
5. Psychomotor agitation or retardation, that is, excessive motor activity or a slowing of body movements, respectively, every day or nearly every day.
6. Fatigue or a loss of energy every day or nearly every day.
7. Feelings of worthlessness and/or excessive or inappropriate guilt every day or nearly every day.
8. Diminished ability to think or concentrate or indecisiveness, every day or nearly every day.
9. Recurrent thoughts of death, recurrent suicidal thoughts without a specific plan, or a suicidal attempt, or a specific plan for committing suicide.
Violence in the workplace has many faces and is the cause of a very large number of psychiatric claims in the workers’ compensation and personal injury arenas. In this regard, workplace violence is defined as “physical assaults or threats of assault directed towards employees” whereas aggression is a more general term that is defined as “behavior that is intended to physically or psychologically harm an individual.”
Research has shown that in any given year, anywhere from 1% to 5% of employees are victims of a physical assault at work, while anywhere from 9% to 70% of employees are the victim of nonphysical aggression in the workplace, such as verbal abuse, emotional abuse, and/or sexual harassment (Barling, J., Dupre, K. E., & Kelloway, E. K. (2009). Predicting workplace aggression and violence. Annual Review of Psychology, 671-692). Worse yet, according to a 2011 report by the Occupational Safety and Health Administration (OSHA), workplace homicide accounts for 11% of all fatal workplace injuries in the United States. In fact, the leading cause of workplace death for women in the United States is homicide. the rates of violence across numerous occupations are highly similar (e.g., LeBlanc, M. M., & Kelloway, E. K. Predictors and outcomes of workplace violence and aggression. Journal of Applied Psychology, 2002, 87, 444-453). Believe it or not, a coal miner, a police officer and a university professor have approximately the same chance of being physically or non-physically assaulted by a coworker.
From a risk management point of view, how can individuals be identified who are likely to act out violently? One obvious recommendation is to avoid hiring individuals who either have a history of acting out or possess characteristics that are associated with behaving violently. Depending on the employer’s Human Resources budget, it may be reasonable to do background checks on prospective employees or even pay for a pre-employment psychological evaluation. Another loss-preventative measure is to continually assess employees for their potential to act out and to provide counseling programs for individuals who show characteristics likely to lead to workplace violence, helping them deal with their personal problems without compromising the organization.
In developing a strategy to reduce workplace violence, it is often cost effective to hire specialists in industrial-organizational psychology. These individuals can assist any employer in selecting workers who are less likely to perpetrate or to be the “victims” of violence, can set up programs to monitor for the warning signs of aversive events, and are able to provide plans for taking counter measures to defuse situations.
A Panic Disorder is diagnosed correctly when the individual presents with recurrent and unexpected Panic Attacks. These attacks must be shown to have been followed by one month or more of either persistent concern about having additional attacks, worry about the implications of the attacks or the consequences, or a significant change in behavior related to the attacks. In addition, the DSM specifies that a Panic Attack is not a disorder in and of itself and is characterized by a discrete period of intense fear or discomfort in which four or more of 13 symptoms occur that develop abruptly and reach a peak within minutes. These symptoms are: palpitations; a pounding heart or accelerated heart rate; sweating; trembling or shaking; sensations of shortness of breath or smothering; feelings of choking; chest pain or discomfort; nausea or abdominal distress; feeling dizzy, unsteady, lightheaded or faint; feelings of unreality or of being detached from oneself; fear of losing control or going crazy; fear of dying; numbness or tingling sensation and chills or hot flushes.
Measurements During a Mental Status Examination
A Mental Status Examination produces a set of observations of the patient that are made by the doctor, during their face-to-face meeting, using a relatively standard set of examining techniques and questions that yield easily reported upon objective data. Those doctor-made observations are called “signs,” and should not be confused with the patient-made complaints, since they are often different. The nature of the techniques used by doctors is most easily understood in talking about the patient’s memory, concentration, insight and judgment. These processes are easily measured during the course of a Mental Status Examination with such techniques as asking the patient to recall a series of numbers, asking them to count backward by 7’s or asking them to provide interpretations of proverbs or to describe in what way an elephant is similar to a whale. For instance, if the doctor diagnoses some form of depression, individuals who are clinically depressed will often have signs, or observable behaviors, of dysfunctions in these areas.
Describing the Patient’s Complaints
In a psychological examination report, it is simply not enough to provide a listing of the patient’s complaints or their direct statements. Specifically, the doctor has to describe the qualitative nature of those complaints as well as their frequency, intensity, duration, onset and course of those complaints. Think of this as a series of questions that have to be answered: What does it feel like when you are depressed? (qualitative nature). How often do you feel/think that way? (frequency). How severe is this problem for you on a 10-point scale? (intensity). When you feel depressed, how long does the feeling last? (duration). When did you start feeling depressed? (onset). Has your depression been getting better or worse and can you describe its presence over time? (course). One example, in cases where the doctor diagnoses some form of a Major Depressive Disorder, the provision of this information, especially the data about frequency, is quite crucial since eight of the nine complaints must be found to be present at least “nearly every day.”
Psychological evaluation reports often contain a section dedicated to a review of the patient’s medical records. That section usually reveals that physicians in a wide variety of medical specialties often make comments, and even diagnoses, in their records indicating that the patient may be depressed, anxious or was having other psychological problems or disorders. However, with all due respect to my colleagues in the various medical fields, a psychological diagnosis offered by, let’s say, an orthopedist, is no more credible than a psychologist’s diagnosis of an orthopedic condition.
The Wahler Physical Symptoms Inventory
The Wahler Physical Symptoms Inventory often appears in a psychological test battery of medical-legal evaluators in psychology and psychiatry. In this regard, the Wahler is a self-report inventory in which the individual is asked to state how frequently they have a variety of physical symptoms or complaints such as "headaches, difficulty sleeping and backaches." Unfortunately, a reading of the testing manual indicates that there are no validity scales for this instrument (Wahler, H. J., Wahler Physical Symptoms Inventory Manual, Los Angeles: Western Psychological Services, 1983). Accordingly, there is no way of detecting individuals who are endorsing complaints that do not exist. In the absence of test results from the evaluator’s battery that establish that the patient completed the testing in an honest and forthright manner, no conclusions can be drawn from the Wahler Physical Symptoms Inventory. Additionally, the use of this test in a medical-legal examination is inappropriate as the presentation of the test items can be an encouragement to claim symptoms or complaints that do not exist.
Two Steps to Interpreting an MMPI
The interpretation of an MMPI, an MMPI-2 or an MMPI-2-RF is a two-step process. The first step involves interpreting the validity scales, which are used to determine if the individual has completed the test in an honest and straightforward manner that allows for the interpretation of the remainder of the scales. Once that hurdle has been overcome, it is reasonable to interpret the patient’s clinical scale scores, which can provide information about any possible psychopathology and the individual’s personality characteristics. If that hurdle of the validity scales is not overcome, no statements can be made about the clinical scales or the patient’s psychological status.
Psychological Testing Standards
Reports of psychological and psychiatric evaluations typically contain data from various sources. Usually, the only form of objective data that is open to public inspection and can be presented to the court is the psychological testing data. Accordingly, the manner in which those data are obtained, scored, analyzed and interpreted are of primary importance. Clearly, the first hurdle that must be overcome in assessing the credibility of the psychological testing data is the manner it was collected. At the very minimum, all psychological testing should be administered under the supervision of a licensed mental health professional who may employ a test proctor to monitor the psychological testing and guard against any irregularities, including the possibility that the testing was not taken by the person to whom it was intended to be administered.
Causation of Mental Disorders
In order to more effectively deal with medical-legal psych cases it is important to understand the cause of pathology. In the most general sense, there are four sets of circumstances that can produce mental disorders or psychological injuries. First, biological factors are known to produce some disorders. A second set of mental disorders is produced as a result of a physical injury. The third type of injury is what has sometimes been called a “pure stress injury.” This is the type of injury where some aversive psychological circumstances in the person’s environment have produced a DSM-IV-TR psychological disorder. And, of course, there is a fourth set of circumstances, which is simply a combination of the first three factors.
Psychological Factors Affecting Medical Condition
In order to determine if a person has had a psychological injury that determination typically rests on an evaluating physician’s diagnosis of a DSM disorder. In reading medical-legal reports one sometimes encounters the “diagnosis” of Psychological Factors Affecting Medical Condition. Unfortunately, this is not a DSM-IV-TR mental disorder. In contrast, it is considered to be a condition that may become a focus of clinical interest, namely, it might require some attention or perhaps counseling. Regardless, this condition is specified correctly when one or more psychological or behavioral factors have affected a general medical condition found in the patient. In order to use this category, there must be information in the form of medical records and psychological data showing that the individual’s signs and/or symptoms are indicative of a specific medical condition and are not completely understandable in terms of the underlying physical pathology and/or an attempted simulation of symptoms. So, if a physician in a medical discipline, such as orthopedics or internal medicine, has determined that all of the individual’s complaints are understandable in terms of their underlying physical pathology it is not appropriate to specify Psychological Factors Affecting Medical Condition.
In every medical-legal case the first responsibility of every examiner is to determine the examinee’s credibility. Sometimes that credibility is simply not there and it is appropriate to diagnose Malingering (V65.2). Malingering is specified correctly when an individual has intentionally produced false or grossly exaggerated signs and/or symptoms of a physical and/or psychological nature, and that deliberate misrepresentation is motivated by external incentives such as obtaining financial compensation, avoiding work, or evading military duty. According to the DSM-IV-TR, Malingering should be strongly suspected if there is a combination of any of the following:
A. An attorney refers the individual for an evaluation and/or treatment.
B. There is a marked discrepancy between the individual’s claimed stress or disability and the objective findings.
C. There is a lack of cooperation with the evaluator’s procedures and/or the treatment prescribed.
D. The individual presents with an Antisocial Personality Disorder.
Psychological Testing Reports
Psychological testing reports are generally written by a psychologist and provide only psychological test results and interpretations that can be used in arriving at conclusions about the patient’s mental status. Typically, these reports are written at the request of a psychiatrist, who for one reason or another does not feel comfortable or competent to administer and/or interpret the results of psychological testing. In addition to taking a history, administering a Mental Status Examination and reading the patient’s medical records these psychiatrists refer the patient for testing to provide them with objective information about the patient’s psychological status. Essentially, it is the responsibility of the psychologist to use valid and reliable tests; administer, score and interpret the tests in a standardized fashion; determine if the patient took the tests in a credible manner; and draw conclusions about the patient consistent with the psychological testing literature published in peer-reviewed journals. If the psychologist has not done these four things their report is flawed and incapable of providing any meaningful psychological information about the patient.
Biofeedback requires the use of biomechanical electronic transducers for measuring physical processes, which the individual tries to modify in order to achieve some psychotherapeutic effect. It should be noted that biofeedback therapists are “certified” by private organizations such as the Biofeedback Society of California and the Biofeedback Certification Institute of America. All biofeedback training has four common features. First, in all biofeedback procedures the subject or patient is made aware of various physiological functions that they normally might not be conscious of, such as their heart rate or brainwaves. Second, this awareness is produced by using various electronic instruments that provide measures of the activity of those systems. Third, those measurements are provided as information or feedback to the subject or patient either visually, auditorily, or possibly in the tactile modality. Fourth, the patient is instructed, asked to, or taught to control those functions under the assumption that gaining that control will alleviate psychological symptoms. If all of these conditions have not been met then the patient has not received psychotherapeutic biofeedback training.
The Team Approach to Medical-Legal Evaluations
Medical-legal reports signed by the appointed physician may also be signed by a second or third physician who participated in the evaluation’s procedures. If the law has intended to have a single physician conduct a medical-legal evaluation, the use of the “team approach” may constitute a violation of the law and by itself question the substantiality and admissibility of the doctors’ report. At the very least, the “team approach” makes it difficult to decide who to contact and who to depose in the event that there is some ambiguity in the evaluative report.
Collateral Sources of Information in Psych Reports
Collateral sources of information are found in the form of interview data collected from friends, relatives and/or co-workers or business associates of a patient undergoing a medical-legal examination. However, only rarely are collateral sources of information available and used in evaluations for the court. Most typically this occurs when there is some barrier to collecting data such as might occur with a person who is developmentally disabled, deceased, or who might be unable to communicate if, for example, they have suffered a severe cerebral stroke or other mentally debilitating central nervous system injury.
One thing never to ask a doctor during a depo or trial
In cross-examining a doctor it is never a good idea to ask a question about the patient! It is strongly recommended that all the questions you ask be directed at the doctor’s report or other medical records. For example, instead of asking the doctor to describe what they observed that led them to conclude that the patient was suffering from a disorder they diagnosed, it is much better to ask them where in their report or their treatment notes you can find the data indicating that they made sufficient observations of the patient to warrant their diagnosis. The reason for this is quite simple. If you ask the doctor about the patient they can feel free to provide information not in their records that may justify some of their conclusions. Obviously, those comments may or may not be correct for a variety of reasons.
The Correct Diagnostic Procedure for Discussing the Global Assessment of Functioning
The Global Assessment of Functioning (GAF) scale is found in the DSM-IV-TR, but was eliminated from the largely discredited and ignored DSM-5. When assigning a GAF score the doctor is required by DSM-IV-TR protocol to provide both the current GAF score and the highest GAF score the patient achieved in the previous 12 months. If the doctor has not done so they have left out some important and required information about the patient.
Testing Always Requires a Test Proctor or Supervision
Of all the five sources of information that are obtained about individuals undergoing psychological evaluations, the only form of objective data that is usually open to public inspection and can be presented to the court is the psychological testing data. Accordingly, the manner in which those data are obtained, scored, analyzed and interpreted are of primary importance. For example, the testing manual for the MMPI-2 provides information on the administration of the test, including the required testing conditions on pages 8 through 10 of that manual (Butcher, J.N., Graham, J.R., Ben-Porath, Y.S., Tellegen, A., Dahlstrom, W.G. & Kaemmer, B. MMPI-2 (Minnesota Multiphasic Personality Inventory-2) Manual for Administration, Scoring, and Interpretation, Revised Edition, Minneapolis, University of Minnesota Press, 2001). The manual very explicitly states that the MMPI-2 should not be given to the test-taker to complete at home and that the instrument should be administered with supervision by a qualified professional. Most generally, similar “rules” should be followed for all other tests in order to guarantee the credibility of the doctor’s conclusions.
Sadness and Crying are Normal and Not Necessarily Indicative of Psychopathology
In reading medical-legal reports one frequently finds that physicians will list complaints and observations of the patient that are made during the face-to-face interview that include sadness and tearfulness. In this regard, it should be noted that a reading of page 355 of the DSM-IV-TR and page 168 of the DSM-5 reveals that those manuals explicitly state that, “periods of sadness are inherent aspects of the human experience.” As such, any observations of sadness and related behaviors are not necessarily indicative of psychopathology. Clearly, while it may be tempting to equate sadness, tearfulness and crying with psychopathology, it should be noted that these behaviors are well within the realm of normal human behavior and not necessarily indicative of pathology. Individuals may cry for a variety of reasons, including being reasonably, normally, understandably, and expectably upset by physical difficulties, occupational problems and life circumstances.
Deciding between a Psychologist or a Psychiatrist for Medical-Legal Evaluations
The major differences between psychologists and psychiatrists are their training in psychological tests and psychotropic medications. Psychologists typically have considerably more training and experience in administering and interpreting psychological tests. Those tests are invaluable in providing data and insights into an individual’s credibility and possible psychopathology. If you are concerned with the diagnosis of a mental disorder, the psychologist is in a better position to provide objective data concerning the person’s psychological status by using psychological tests. However, once you know that a person has a specific disorder that is amenable or treatable with medication, the psychiatrist is the person who can intervene to provide that care.
Identifying an Incomplete Major Depressive Disorder Diagnosis
In order to diagnose a Major Depressive Disorder correctly it is necessary to specify whether the disorder is of the Recurrent or Single Episode variety and to record the severity of the disorder. In Diagnostic and Statistical Manual of Mental Disorders (DSM) terminology the doctor is also required to provide a 5-digit numerical diagnostic code that allows the reader to work backwards and determine the full nature of the disorder if not described verbally. Thus, when a doctor provides a diagnosis of a Major Depressive Disorder, but declines to state if that disorder is of the Single Episode or Recurrent variety and/or declines to record the severity of the Major Depressive Disorder, then their diagnosis is incomplete.
Doctor-Created Diagnostic Ambiguity
When doctors take it upon themselves to add a modifier or specifier to their diagnosis where such a modifier or specifier is not permitted by the Diagnostic and Statistical Manual of Mental Disorders (DSM) all they have succeeded in doing is creating ambiguity in their opinions. The use of modifiers or specifiers created by the doctors results in a situation where their diagnosis is ambiguous as those creations have no generally understood meaning in DSM terminology.
Psychological Testing Standards
Of all the five sources of information that are obtained about individuals undergoing psychological evaluations, the only form of objective data that is open to public inspection and can be presented to the court is the psychological testing data. Accordingly, the manner in which those data are obtained, scored, analyzed and interpreted are of primary importance. Clearly, the first hurdle that must be overcome in assessing the credibility of the psychological testing data is the manner in which it was collected. At the very minimum, all psychological testing should be administered under the supervision of a licensed mental health professional who may employ a test proctor to monitor the psychological testing and guard against any irregularities, including the possibility that the testing was not taken by the person to whom it was intended to be administered.
The MMPI Taken at Home
The MMPI-2 is the most frequently used version of the MMPI. The testing manual for the MMPI-2 provides information on the administration of the test, including the required testing conditions on pages 8 through 10 of that manual.
An inspection of page 8 of the testing manual indicates that it reads in part,
“Supervision by a fully qualified professional is essential in using the MMPI-2”
Page 8 goes on to state,
“It is strongly recommended that the MMPI-2 not be administered without proper supervision and that it not be given to test-takers to complete at home.”
Page 10 further emphasizes this point when it states,
“To repeat a point made earlier, administration of the MMPI-2 should always be supervised.”
Thus, when a doctor allows the patient to take the MMPI-2 at home, it is not possible to interpret any of the test data obtained as providing any credible information about the patient’s psychological status.
The Five Axes Diagnostic System
Doctors often provide their diagnosis using the five axes diagnostic system. Axis I is reserved for diagnosing most psychological disorders, one exception being Personality Disorders, which are diagnosed on Axis II. The reader of the report should look for Axes III, IV and V where the doctor normally provides information about the individual’s general medical conditions, psychosocial and environmental problems and levels of Global Assessment of Functioning (GAF). The GAF score is especially important in medical-legal cases since it provides information about the individual’s level of functioning that may be relevant to the court’s decisions about disability. As per the DSM, it is also important that the doctor specify an individual’s GAF score at both the time of the evaluation and the highest GAF score they obtained during the past year.
Specifying Personality Traits on Axis II
Personality traits or features are enduring patterns of perceiving, relating to and thinking about the environment and oneself that are exhibited in a wide range of social and personal contexts but are not sufficiently maladaptive to warrant concluding that the individual suffers from one of the Personality Disorders. It is only when those traits lead to clinically significant distress or impairment in social, occupational or other important areas of functioning that it is reasonable to diagnose a Personality Disorder. Information about personality traits is typically provided by the doctor to give the reader what they believe is significant information that will be helpful in understanding the patient. However, since everyone has personality traits, the specification of those traits in a medical-legal report is not especially meaningful if one is concerned with using that report to determine if the person has suffered a psych injury.
Administering Psychological Tests
The circumstances under which psychological tests are administered can be crucial for the outcome of those tests. Generally, it is important for tests to be administered under standardized conditions that guarantee that the testing environment provides adequate seating and lighting, privacy, ventilation and an absence of distractions such as noise. It is also important to have a test proctor oversee the process and make sure that the examinee is completing the tests in the prescribed manner and not, for example, responding randomly, making errors as a result of a lack of understanding of the instructions, or obtaining assistance in completing the tests from an unauthorized person or persons who could deliberately or inadvertently grossly distort the test’s results.
Story of the Apricot™
An Apricot™ is a clearly written work product privileged report that describes all of the substantial flaws in a psych report in jargon-free language and discusses specific techniques to cross-examine the doctor. An Apricot™ also provides a list of simple questions to ask the doctor that will reveal the flaws found in their report. The name Apricot™ comes from the color of paper available in our office. The story goes that since the 1980s any referral for an evaluation of an applicant received in my office is printed on bright orange paper. The bright-colored paper is easily identifiable in the patient’s chart. As a result, my office staff calls any referral for a workers’ compensation evaluation an “orange.” Similarly, referrals for the evaluation of a personal injury psych evaluation are printed on lime-colored paper and called a “lime.” In 2009 I began to assist attorneys with written pre-deposition / pre-trial consultation reports. I quickly realized that “pre-deposition / pre-trial consultation report” is a mouthful, and a simpler, shorter name was needed. I decided to go with Apricot™.
When you want an Apricot™, simply call my office or email the psych report to me with a brief cover letter.
Own the Diagnostic and Statistical Manual of Mental Disorders (DSM)
The most current version of the Diagnostic and Statistical Manual of Mental Disorders (DSM), the DSM-5, was published by the American Psychiatric Association in 2013. The DSM-IV-TR was published in 2000. Before that, the DSM-IV was published in 1994. Moreover, when you are reading a psych report, find the area in the report where the doctor stated which version of the DSM they used in arriving at their diagnostic conclusions. It is also strongly recommended that you take a copy of the DSM to the cross-examination and display that manual in a prominent position. As of this writing, some electronic copies of the DSM are available on the Internet for as little as $0.99.
Sentence Completion Tests
Sentence Completion Tests are instruments in which the individual is given the first part of a sentence that they are asked to complete in any manner in which they deem appropriate. The doctor then “interprets” what they feel is the meaning of the individual’s productions. Unfortunately, there are absolutely no standards for interpreting the results of Sentence Completion Tests, resulting in a situation in which this type of test has absolutely no validity or reliability with regard to assessing psychopathology. Clearly, Sentence Completion Tests have no known use in medical-legal evaluations.
Use of the Epworth Sleepiness Scale
The Epworth Sleepiness Scale is a self-report instrument that asks the test-taker to rate themselves on a 4-point scale describing their impression of the likelihood of their “dozing or sleeping” under eight circumstances such as sitting and reading, watching television, lying down in the afternoon or stopped in traffic for a few minutes. The test-taker can receive a total score of between 0 and 24, with a higher score indicating that they believe they are more likely to fall asleep or doze under the stated circumstances. It is advised that a score greater than 10 indicates that the test-taker should consider whether they are obtaining adequate sleep or need to see a sleep specialist. Unfortunately, there are no validity scales included in the test to determine whether the test-taker has completed the items in an honest and frank manner and therefore the test is completely useless for medical-legal evaluations.
Apricots™ help prepare a brief for the court
An Apricot™ contains information about the significant flaws in a psych report in a clearly written work product privileged report. An Apricot™ is written in jargon-free language. In situations where discovery has closed or the psych doctor will not be cross-examined, an Apricot™ contains all the psychological information needed to prepare a brief for the court if the attorney decides that they wish to petition to have the court throw out the doctor’s report.
Severe With Psychotic Features
The modifier or specifier “Severe With Psychotic Features” may be used when diagnosing a Major Depressive Disorder if the individual presents with delusions and/or hallucinations. Typically, the content of those delusions and/or hallucinations is mood-congruent, which means that their content is consistent with themes of depression found in the patient’s narrative. When you have a psych report, you should look for information where the doctor reported that the individual complained of hallucinations and/or delusions. You should also look for information in the doctor’s Mental Status Examination where they may have commented on observing hallucinations and/or delusions during their face-to-face interview with the patient. When the doctor has failed to put that information into their report there is no data to support their use of the modifier or specifier of “Severe With Psychotic Features.”
Posttraumatic Stress Disorder
A Posttraumatic Stress Disorder (PTSD) is commonly diagnosed in medical-legal evaluations. This disorder is diagnosed correctly when an individual has been exposed to an extreme life-threatening traumatic stressor that has led to the development of a set of characteristic signs and/or symptoms. Such traumatic events include, but are not limited to, military combat, violent personal assault, being kidnapped, being taken hostage, terrorists attack, torture, incarceration as a prisoner of war, natural or manmade disasters, severe automobile accidents or being diagnosed with a life threatening illness.
Dysphoria used to support a clinical depression
Psychological evaluation reports written for the court often contain a description of the patient using the term “dysphoria” or “dysphoric.” It should be noted that “dysphoria” is a term used to describe any uneasiness or discomfort. However, that descriptive term is not necessarily indicative of a clinical depression. In this regard, individuals who are clinically depressed often present with observable behaviors of psychomotor retardation or agitation, reduced cognitive functioning, deficits in attention, irritability, indecisiveness and social withdrawal. Simply reporting that the individual appeared “dysphoric” is not tantamount to stating that the individual appeared clinically depressed.
The MMPI F Scale
The Minnesota Multiphasic Personality Inventory (MMPI) is the keystone of almost all psychological test batteries in the medical-legal arena. There are a number of different versions of the MMPI but the most frequently used version is the MMPI-2. The MMPI-2, like all the other MMPI’s contains validity scales and clinical scales. Interpretation of the validity scales are used to determine if the individual has completed the test in an honest and straightforward manner that allows for the interpretation of the clinical scales used to make comments about the individual’s psychological status. According to the psychological literature, any MMPI-2 score at or above the level of 65 is interpretable. In this regard, the F Scale is one of the validity scales of the MMPI. For over 70 years the F Scale has been known to be an effective device in detecting attempted simulators or what some might call “fakers” or “Malingerers.”
Apricots™ on the mind
If you're cross-examining a psych doctor without my help you're leaving money on the table. I can show you how to get it.
Do you have a psych report that is not in your favor? In almost every case I can and will identify all of the flaws in the report, and provide you with a list of simple questions to use in cross-examination of the psych doctor. Using the questions I provide you in an Apricot™ will expose the flaws in the doctors report and get those flaws on the record, which will ultimately save the carrier money on the psych claim.
The Minnesota Multiphasic Personality Inventory-2-Restructured Form (MMPI-2-RF)
The Minnesota Multiphasic Personality Inventory-2-Restructured Form (MMPI-2-RF) is a fairly new test that was created from the MMPI-2 and published in July, 2008. The MMPI-2 is a test that was published in 1989 and was created from the original MMPI. Following the initial publication of the MMPI-2 it was generally accepted by both psychologists and psychiatrists. However, since that time there have been some problems with that MMPI-2. In this regard, multiple studies have been published indicating that the MMPI-2 does not present as accurate a picture of the patient’s psychological status as the original MMPI. Accordingly, it appears likely that one reason for the creation of the MMPI-2-RF was to correct this problem. Unfortunately, the MMPI-2-RF has not been available for a sufficient period of time for the needed process of independent research that needs to be conducted by professionals who are not associated with the publication, distribution, marketing or sale of any of the MMPI-2 or MMPI-2-RF products. Accordingly, the MMPI-2-RF has yet to show that it can provide an accurate portrayal of an individual’s psychological status.
The MMPI Lie (L) Scale
The major test in every medical-legal psychological evaluation test battery is the Minnesota Multiphasic Personality Inventory (MMPI). There are several different versions of the MMPI dating back to over 70 years ago. The most frequently used version is the MMPI-2, which was published in 1989. The MMPI-2, and all other versions of that test, contains validity scales and clinical scales. Every validity and clinical scale performance on the MMPI-2 is described with a T-Score. All T-Scores on the validity scales and the clinical scales on the MMPI-2 have a mean of 50 and a standard deviation of 10. In this regard, it should be noted that it is well known and universally accepted that T-Scores of 65 or larger are clinically significant or interpretable. In this regard, the Lie (L) Scale is one of the validity scales of the MMPI. Scores 65 or higher on the Lie Scale are characteristic of individuals who are not being honest and straightforward during the examination’s procedures.
When reading a psych report you may find a “Deferred” diagnosis on Axis II. According to the DSM-IV and the DSM-IV-TR a “Deferred” diagnosis is only used when the doctor has “Information inadequate to make any diagnostic judgment about an Axis II diagnosis.” In this regard, as I discussed in Tip #58, Axis II is the axis on which Personality Disorders are diagnosed. Personality Disorders are lifelong patterns of perceiving, relating to, and thinking about the environment and oneself that cause significant impairment in social and/or occupational functioning and/or subjective distress. Individuals with occupational or personnel problems and/or those who present with psychological signs and/or symptoms often have Personality Disorders that cause those employment issues to arise. Accordingly, it is difficult to understand just why a doctor would chose to write their report without adequate information concerning the possible presence of a Personality Disorder. However, it is apparent that writing a comprehensive medical-legal report without that adequate information constitutes a substantial flaw in that document
“Rule Out” Diagnoses
When reading a psych report you may find that the doctor provided “Rule Out” diagnoses. “Rule Out” diagnoses are used only when there is diagnostic uncertainty. With all due respect to the psych doctor who authored the report with “Rule Out” diagnoses, this indicates that they are unsure whether these diagnoses truly exist. Accordingly, it is unclear why a doctor would choose to write a comprehensive report without obtaining sufficient information to be certain about their diagnosis. However, it is clear that by adding “Rule Out” diagnoses to their diagnostic categories, the doctor has clouded the issue concerning the patient’s psychological state.
The Symptoms Checklist-90-R (SCL-90-R)
The Symptom Checklist-90-Revised (SCL-90-R) is simply a symptom checklist in which the individual is presented with a list of symptoms or complaints that they can either endorse or deny. However, this test has no method for detecting an individual who is attempting to embellish or simulate their complaints. Further, the use of a symptom checklist is inappropriate in a medical-legal examination where the presentation of the list itself can be an encouragement to endorse items that do not reflect the individual’s status.
Observations of Clinical Depression
Depression can be observed in a variety of ways during a face-to-face interview. Specifically, clinically depressed individuals typically present with narrative statements such as those that express feelings and thoughts of worthlessness, hopelessness, helplessness, incompetence, self-reproach or guilt, pessimism, failure, anhedonia, lowered self-esteem and/or demoralization. These individuals also frequently exhibit cognitive dysfunction in such areas as memory, concentration or attention, insight and judgment. In assessing the credibility of a psych report, you should check to see if the doctor provided a description of any such observations or any of the patient’s narrative statements supporting a clinical depression in their report.
Observations of Pathological Anxiety
Pathological anxiety can be observed in a variety of ways during a face-to-face interview. Specifically, pathologically anxious individuals typically can be observed to exhibit a variety of narrative statements that express danger, threat, unpredictability, uncertainty and/or terror. Moreover, on direct observation their behavior is often characterized by jumpiness, restlessness, hand wringing, a strained voice, tremulousness, tension, motor hyperactivity, fidgeting, autonomic hyperactivity, vigilance, scanning and/or poor reality testing. In assessing the credibility of a psych report, you should check to see if the doctor provided a description of any such observations or any of the patient’s narrative statements supporting a pathological anxiety in their report.
Instructions for Finding Out if an MMPI-2 T-Score is Possible
As I mentioned in Tip #56, the MMPI-2 is the most frequently used version of the MMPI. In this regard, you should examine the MMPI-2 scores provided by the doctor in their report to determine if the scores are possible for the patient based on their gender. The numbers within the table appearing on pages 54 and 55 of the MMPI-2 testing manual contain all of the possible T-Scores that can be gotten on the MMPI-2. Those tables are reproduced in my newsletter from May, 2010, available for download at my website, www.DrLeckartWETC.com. Once you have determined that the doctor has reported a score that is not possible it is reasonable to conclude the doctor has made a monumental error in the scoring and/or the reporting of the patient’s MMPI-2 scores. Clearly, in this instance something is serious amiss with the doctor’s methodology. However, regardless of how this error was made, it is obvious that such an error constitutes a substantial flaw in the doctor’s report.
Major Depressive Disorder - most of the day, nearly every day
According to the Diagnostic and Statistical Manual of Mental Disorders (DSM), a Major Depressive Disorder is a severe Mood Disorder that is characterized by a pervasive clinical depression and a series of associated symptoms. In order to diagnose this disorder correctly, the patient must present with either 1) depressed mood, or 2) markedly diminished interest or pleasure in all, or almost all, activities. In addition, both criterion 1 and/or 2 must be present “most of the day, nearly everyday.” If the doctor has not provided information in their report indicating that the patient had criterion 1 and/or 2 “most of the day, nearly everyday” then the patently obvious conclusion is the there is no agreement between the doctor’s history of the patient’s symptoms or complaints and the DSM criteria for a Major Depressive Disorder
Recent, Remote, and Long-term memory Tasks
During the course of a Mental Status Examination, it is standard procedure to measure an individual’s memory. These processes are easily measured with a variety of objective techniques that yield easily reported upon observational data. For example, to measure long-term or remote memory the doctor typically asks the patient to recall such verifiable personal information as their Social Security number and/or their California driver's license number. When the doctor has not described their observations of the patient’s long-term or remote memories when taking the doctor’s testimony during a trial or deposition you should ask the doctor; “Doctor, will you please tell me where in your report of your Mental Status Examination you provided your measurements of the patient’s performance on relatively standard examining techniques in the areas of remote, and long-term memory?”
Use of the Pain Patient Profile (P3)
The Pain Patient Profile is a self-rating instrument that purports to provide measures of an individual on their credibility as well as any possible depression and anxiety in addition to the level of physical symptoms that are produced by psychological factors or variables. A reading of the psychological literature fails to demonstrate that this instrument has any validity or reliability with regard to assessing psychopathology or providing any information about a patient’s test-taking attitudes or credibility. Thus, any conclusions drawn from a patient’s performance on this “test” is entirely arbitrary and unsupportable and the use of this instrument in a medical-legal context is a substantial flaw in the psych doctor’s report.
Hamilton Anxiety Scale
The Hamilton Anxiety Scale (HAS) is frequently cited in psychological testing sections of psychological reports. However, the HAS is not a psychological test since it does not administer any physical material to the person being “tested” (Hamilton, 1959). The HAS is simply a list of what was accepted in 1959 as fourteen frequently accepted symptoms or complaints of anxiety. Instead of presenting the patient with any material to respond to, as is done with a psychological test, the doctor examining the patient simply rates the patient on a five-point scale according to how extensively the doctor believes the patient is experiencing each of the thirteen symptoms. As such, the HAS does not obtain any objective measures of the patient but is simply an alternate way of the doctor subjectively stating their opinion that the patient has anxiety. In a medical-legal context, the Hamilton Anxiety Scale has no known objective relationship to the existence of any DSM psychological disorders.
Activities of Daily Living Questionnaire a psychological test?
The Activities of Daily Living Questionnaire (ADL Questionnaire) is frequently cited in psychological testing sections of psychological reports. However, the ADL Questionnaire is not a psychological test in the sense that it is administered to a patient. This measure is simply a list of six functions, “bathing, dressing, toileting, moving, continence and feeding.” Instead of presenting the patient with any material to respond to, as is done with a psychological test, the doctor examining the patient simply rates the patient either “Yes” or “No” according to what the doctor believes is true about the six functions. Clearly, the ADL Questionnaire does not obtain any objective measures of the patient but is simply an alternate way of the doctor subjectively stating their opinion about the patient. Accordingly, in a medical-legal context, the ADL Questionnaire has no known objective relationship to the existence of any DSM psychological disorders.
The DSM-IV-TR describes four classes of sleep disorders and categorizes them by their cause. The four classes are: Primary Sleep Disorders, Sleep Disorders Related to Another Mental Disorder, Sleep Disorders Due to a General Medical Condition and Substance-Induced Sleep Disorders. When the doctor diagnoses a disorder under any of these categories, you should review their report to determine if they discussed the qualitative nature, frequency, intensity, duration, onset and course of the patient’s sleeping complaints over time. Unfortunately, you will likely find that the doctor did not provide any information about what the patient’s sleeping behaviors were like prior to their claimed injury so that the reader has absolutely no idea if the sleep disturbance reported by the doctor represented a change in functioning over time or was simply the patient’s normal sleep pattern.
The Somatoform Disorders are characterized by the presence of physical signs and/or symptoms that suggest that the individual has a general medical condition accounting for the signs and/or symptoms but those signs and/or symptoms cannot be fully explained by a general medical condition, the direct effects of a substance or another mental disorder. Essentially, the person presents with medically unexplained physical signs and/or symptoms and there is reason to suspect that their complaints are due to psychological factors or variables and that the individual is not faking or Malingering (V65.2). The most frequently diagnosed Somatoform Disorders are: a Somatization Disorder, an Undifferentiated Somatoform Disorder, a Conversion Disorder, Pain Disorders, and Hypochondriasis. It is important that the doctor diagnosing a Somatoform Disorder explicitly state what evidence they have, in the form of medical records and/or the patient’s clinical presentation at their examination, that indicates that psychological factors or variables are producing the patients symptoms or complaints. In situations where the doctor has not provided such information in their report, you should ask the doctor, “Where in your report did you cited medical records from such professionals as orthopedists, chiropractors, neurologists and/or physical therapists who stated that not all of the patient’s complaints of pain are completely understandable as being the result of underlying physical pathology?”
According to the DSM-IV-TR, the Dissociative Disorders are characterized by prominent features of dissociation or a disruption in the integration of consciousness, memory, identity and/or sensation or perception. In this regard, dissociation is the partial or total disconnection or dissociation between past memories, awareness of one’s identity, awareness of immediate sensations or perceptions, and the control of body movements. All of these conditions are thought to be the result of traumatic experiences. When you have a report where the doctor diagnosed a Dissociative Disorder you should review their report to determine if they discussed the qualitative nature, frequency, intensity, duration, onset and course of the patient’s complaints over time with regard to memory, identity, sensation or perception. You should also review the Mental Status Examination report to determine if the doctor provided observational data in these areas from their face-to-face interview.
Pain Disorder Associated With a General Medical Condition
The DSM-IV-TR is very clear in stating on page 499 that a Pain Disorder Associated With a General Medical Condition is a disorder in which there is pain that results from a general medical condition. The DSM-IV-TR is also very explicit in stating, “This subtype of Pain Disorder is not considered a mental disorder and is coded on Axis III.” Accordingly, if one is concerned with the possibility of an individual having had a psychological disorder, the specification of a Pain Disorder Associated With a General Medical Condition is clearly not relevant since this condition is not a mental disorder.
Primary Sleep Disorders
Primary Sleep Disorders involve disturbances of sleep that are not due to another mental disorder, a general medical condition or a substance. Primary Sleep Disorders are classified as either Dyssomnias, in which the person exhibits abnormalities in the amount, quality or timing of sleep, or Parasomnias, in which they show abnormal behaviors and/or physiological events during sleep. When the doctor provides a diagnosis under this category, you should examine their report to see if the doctor provided information in their report about what the patient’s sleeping behavior was like prior to their reported injury. If no such information exists in the doctor’s report then there is no basis for comparison and concluding that the patient’s sleeping behavior has changed after the claimed injury.
Female Sexual Arousal Disorder
When the doctor diagnoses a Female Sexual Arousal Disorder (302.72), be sure to look for the data in their report that shows the patient met the diagnostic criteria for that disorder. In this regard, according to the DSM-IV-TR, the essential feature of a Female Sexual Arousal Disorder is a persistent or recurring inability to attain or maintain an adequate lubrication-swelling response of sexual excitement until completion of the sexual activity. Simply losing interest in sexual activity for such reasons as having too much pain from a physical injury is insufficient to meet the diagnostic criteria, which are presented below.
- A persistent or reoccurring inability to attain or to maintain “an adequate lubrication-swelling response of sexual excitement” until the completion of the sexual activity.
- The inability described in Criterion A causes marked distress and/or interpersonal difficulty.
- The inability described in Criterion A is not better accounted for by another Axis I disorder, except another Sexual Dysfunction, and is not due exclusively to the direct physiological effects of a substance and/or a general medical condition.
Male Hypoactive Sexual Desire Disorder Due to a General Medical Condition
When the doctor diagnoses a Male Hypoactive Sexual Desire Disorder Due to a General Medical Condition, be sure to look for the data in their report that shows the patient met the diagnostic criteria for that disorder. According to the DSM-IV-TR, in order to diagnose correctly either Male Hypoactive Sexual Desire Disorder Due to a General Medical Condition (608.89) it is necessary to show that there is a deficit or absence of sexual fantasies as well as a lack of a desire for sexual activity that is judged to be entirely due to the direct physiological effects of a general medical condition. As such, there must be evidence from the history, physical examination or laboratory findings that the dysfunction is fully explained by the direct physiological effects of an existing general medical condition. As specified in the DSM-IV-TR, there are a variety of neurological, endocrine, vascular, and genitourinary conditions such as multiple sclerosis, diabetes mellitus and urethral infections that can produce sexual dysfunction in this manner. However, simply not wanting to engage in intercourse or other sexual behavior because of pain or some other physical condition does not meet the DSM-IV-TR criteria for establishing that there is dysfunction as a result of a direct physiological mechanism.
The MMPI-370 is a shortened version of the MMPI-2 that is analogous to the MMPI-168. Like the MMPI-168, the MMPI-370 is not a “test” in and of itself but a particular use of the MMPI-2 that has some serious problems. The MMPI-370, as the name implies, involves administering the first 370 questions of the MMPI-2. This allows for the scoring of the Lie Scale, the F Scale, the K Scale, the F-K Scale or Index and the 10 basic clinical scales. If you assume that the MMPI-2 is a valid and reasonable instrument to use, the scoring of these scales may be acceptable in a general clinical practice where it can be assumed that the person does not have a deviant test-taking attitude. However, in a medical-legal context this is not a reasonable assumption and it is necessary to score at least the F(p) Scale, the F(Back) Scale, the VRIN Scale and the Revised Dissimulation Scale to determine if the person is responding in an honest and frank manner and not attempting to simulate dysfunction. Unfortunately, it is not possible to score these scales if the person responds to only the first 370 items on the MMPI-2. Therefore, the MMPI-370 is virtually useless in forensic circumstances.
Refrain From Asking Open-Ended Questions
During cross-examination of a psych doctor, the attorney can ask questions in a variety of ways. One strategy to avoid when questioning the psych doctor is asking open-ended questions. An example of an open-ended question used during cross-examination of a psych doctor is, Doctor, you mentioned that the patient complained of depression. Will you please tell me about the patient’s depression at the time of your examination? Questioning the doctor in this manner opens the proverbial door for the doctor to provide information that is not in his or her report that could conceivably support their conclusions. Obviously, the information provided by the doctor’s response may or may not be correct for a variety of reasons and it would be difficult to verify that information. A recommended alternative is to ask questions that are directed at the doctor’s report. For example, Doctor, will you please tell me where in your report you stated the frequency of the patient’s symptom of depression or how often the depression occurs? Questioning the doctor using this method will help expose the report’s lack of evidence supporting the doctor’s diagnosis.
The Millon Clinical Multiaxial Inventory-III (MCMI-III)
The Millon Clinical Multiaxial Inventory-III (MCMI-III) is the most recently revised version of the Millon Clinical Multiaxial Inventory devised by Dr. Theodore Millon, a specialist and pioneer in the area of Personality Disorders. The MCMI-III contains a variety of scales which include four validity scales. The Debasement Scale is a validity scale that measures an individual’s “inclination to deprecate or devalue oneself by presenting more troublesome emotional and personal difficulties than are likely to be uncovered upon objective review.” On the MCMI-III a BR score of 75 or more is sufficient to conclude that the individual was attempting to simulate symptoms, fake or malinger. It also should be noted that when an individual is found to be attempting to fake that all further interpretation of the psychological meaning of their scores on the MCMI-III must cease and nothing further can be said about their psychological status beyond the fact that they were trying to appear to have symptoms that do not exist.
Psychiatrist v. Psychologist when considering patient’s credibility
Psychologists typically are trained and have more experience in administration, scoring and interpretation of psychological tests than psychiatrists. This may be an important factor to consider in medical-legal cases where psychological test data is often the only form of objective information that can be presented for public inspection in open court and is useful in determining the patient’s credibility. Point in case, a recent deposition transcript reveals a psychiatrist’s response to a question about the Minnesota Multiphasic Personality Inventory-2 (MMPI-2). This is approximately what the doctor said during his/her depo, “I really don’t know much about the MMPI-2. I’m not a specialist in testing or I would have interpreted the results. Maybe what you should do is have somebody else provide you with that information, I don’t.” The MMPI-2, of course, is a version of the Minnesota Multiphasic Personality Inventory, a test that is the gold standard of psychological test batteries for medical-legal examinations. In fact, the principal method for assessing the patient’s credibility is an objective psychological test battery containing such instruments as the MMPI that are capable of generating objective test scores that can be presented to the court to provide information both about the patient's credibility and any possible psychopathology. For the reasons described above, considering the use of a psychologist for your medical-legal evaluations is strongly recommended.
Multiple Sources of Data
Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnoses are made after considering as many as five different sources of information collected by the evaluating doctor at the time of the examination. These sources of information are: the patient’s life history and their presenting complaints or symptoms, the doctor’s report of their face-to-face Mental Status Examination, the objective psychological testing data, the patient’s medical records and any collateral sources of information in the form of interviews with the patient’s friends, relatives and/or co-workers. By no means whatsoever should a DSM diagnosis be arrived at by simply considering the psychological testing data. In fact, a review of page xxxii of the DSM-IV-TR explicitly states, “Assessments that rely solely on psychological testing not covering the criteria content (e.g., projective testing) cannot be validly used as the primary source of diagnostic information.” Thus, if you encounter a psychological evaluation report where the diagnostic conclusions were arrived at solely based on psychological testing data, you should ask the doctor where in their report they considered the patient’s life history and their presenting complaints, the face-to-face Mental Status Examination data, the patient’s medical records or the contents of page xxxii of the DSM-IV-TR.
Deviating from DSM Terminology
The Diagnostic and Statistical Manual of Mental Disorders (DSM) provides a variety of mental disorders with a wide variation of modifiers or specifiers that may be applied to the specific disorder diagnosed. In addition to modifiers and specifiers, diagnostic codes are also required in association with the diagnosis. According to page 1 of the DSM-IV-TR and page 23 of the DSM-5, diagnostic codes are essential for increased specificity in identifying the intended diagnosis. Unfortunately, some psych doctors choose to deviate from DSM terminology and create their own diagnosis by adding modifiers or specifiers that are not outlined or permitted by the DSM. Further, for some unknown reason, some psych doctors decline to provide a diagnostic code or, even worse, provide diagnostic codes that do not match their verbal diagnosis which results in a situation where their diagnosis is ambiguous. In situations where the doctor has created diagnostic uncertainty, during their deposition you should ask the doctor where in their report they provided the information about their diagnosis as required by the DSM.
Read the Apricot™ and Apply the Advice
I’ve been writing Apricots for about eight years. Apricots™ are work-product privileged reports designed to help attorneys cross-examine mental health professionals such as forensic psychologists, forensic psychiatrists, psychotherapists, social workers etc. An Apricot™ describes all of the substantial flaws in a psych report in jargon-free, non-technical language. An Apricot™ also provides a list of questions and techniques that will help get those flaws on the record despite what might be the doctor’s evasive or non-co-operative behavior. In this regard, any attorney who has commissioned an Apricot™ is strongly urged to read it’s complete contents and to apply the advice I’ve given in the Apricot™ for the best possible outcomes with the case. I intentionally put strong emphasis on reading the contents and apply the advice. For instance, you’ll find in the contents of my Apricots™ the recommendation that you focus your questioning on the weakest part of the doctor’s report, which is their diagnosis. If you don’t take this advice and pursue a different line of questioning on cross-examination you’ve wasted the your client’s money that paid for the Apricot™!
Neuropsychological Medical-Legal Evaluations
Neuropsychology is both an academic discipline and one of the applied medical arts, often called clinical neuropsychology. Neuropsychologists are psychologists who have taken postdoctoral training in the area of neuropsychology. In the forensic cases they are typically given referrals by neurologists who depend on their psychological testing to assess neurological decrements not revealed by the neurologist’s tools. While neuropsychological testing can provide the neurologist with valuable information about a patient’s neurological condition, to use those testing results to support the conclusion of a “neuropsychological injury” is to open the door to a double recovery for a single neurological injury.
Use of The Oswestry Pain Questionnaire
The Oswestry Pain Questionnaire (OPQ) is a 10-item questionnaire that asks an individual to describe their behavior on ten different variables: Pain Intensity, Personal Care, Lifting, Walking, Sitting, Standing, Sleeping, Sex Life, Social Life, and Traveling. In each of the above noted areas, the test-taker is asked to choose one of the following categories for themselves: “I can tolerate the pain I have without having to use pain killers,” “the pain is bad but I manage without taking pain killers,” “pain killers give complete relief from pain,” “pain killers give very little relief from pain,” and “pain killers have no effect on the pain and I do not use them.” Clearly, the OPQ is a self-report questionnaire that has no validity scales for assessing the individual’s test-taking attitudes or credibility, rendering it useless in a medical-legal context.
The MMPI F(P) Scale
The Minnesota Multiphasic Personality Inventory (MMPI) is the gold standard of psychological test batteries used for medical-legal purposes. The MMPI-2 is the 1989 revision of the original MMPI that dates back more than 70 years and has many proponents who depend on the test’s validity scales to provide information about the individual’s test-taking attitudes and credibility. The MMPI-2 is also the most commonly used version of the MMPI by psychologists and psychiatrists. With regard to the MMPI-2, every validity and clinical scale performance is described with a T-Score. All T-Scores on the validity scales and the clinical scales on the MMPI-2 have a mean of 50 and a standard deviation of 10. In this regard, it should be noted that it is well known and universally accepted that T-Scores of 65 or larger are clinically significant or interpretable. In this regard, the F(P) Scale is one of the validity scales of the MMPI-2. Scores 65 or higher on the F(P) Scale are characteristic of individuals who are “overreporting psychopathology” and attempting to portray themselves as having symptoms that do not exist.
Absence of MCMI-III Scores
The Millon Clinical Multiaxial Inventory-III (MCMI-III) is the most recent revision of that test. It contains four scales capable of providing information about the validity of the test-taker’s responses. The data from the four validity scales assess: (1) “Validity” - Did the individual understand and attend to the content of the questions? (2) “Debasement” - Did the individual attempt to portray him or herself as having more troublesome emotional and personal difficulties than exist? (3) “Desirability” - Did the individual attempt to portray him or herself as being more morally virtuous, socially attractive and more emotionally well composed than they are? and, (4) “Disclosure” - Was the individual inclined to be frank and self-revealing or more likely to be secretive? The MCMI-III is similar to the MMPI-2 in that the test can only be interpreted to provide information about the individual’s psychological status if their validity scale scores indicate they completed the test in an honest and straightforward manner. However, when the doctor’s report lacks the actual MCMI-III scores the reader of their report does not know if the test-taker completed the test in an honest and straightforward manner or attempted to distort their true presentation. Thus, when you encounter a psych report that is devoid of the patient’s MCMI-III validity scale scores, you should ask the psych doctor on cross-examination if there is anything in their report that would allow the reader of that document to confirm the conclusions they drew from the patient’s MCMI-III.
The Med-Legal Psych Professor
If you are reading this, chances are that you are an attorney or an insurance professional who has education, training and experience in those areas. Further, chances are that you do not have education, training or extensive experience as an expert in psychology or psychiatry. As such, you are probably relatively inexperienced about the intricacies of psychological diagnoses and psychological or psychiatric treatment, which puts you at a disadvantage when deciding the best route to take when handling psych reports that are not in your favor. No need to worry any longer. You can access an array of information that will be useful to you in reading psych reports and cross-examining psych doctors who have produced reports not in your favor. Simply subscribe to the Med-Legal Psych Professor blog where you will find over 100 tips with information about psych reports and taking a psych doctor’s testimony.
Identify Inconsistencies in Psych Reports
Medical-legal psych reports can be lengthy and expensive. They can also contain multiple inconsistencies, flaws, or as some might call them, ERRORS! Those inconsistencies are often confusing and typically decrease the report’s credibility. Knowing how to identify inconsistencies in psych reports may require a special skill set that can be acquired from experience reading psych reports written for the courts or perhaps from completing a graduate degree in the mental health field. When you have a problematic psych report but you don’t have a graduate degree in the mental health field and/or extensive experience reading psych reports, no need to fret. Simply take advantage of the self-help resources I provide for free on my website (http://drleckartwetc.com/freeresources) to help you identify inconsistencies in psych reports and question the doctor on cross-examination.
Operating from the Same Copy of the Report
Cross-examining a psych doctor is typically no simple task. You definitely don’t want to add unnecessary challenges to the cross-examination process. Therefore, during cross-examination it is imperative that you confirm that the doctor is using the same copy of the report that he/she submitted to the court. If even one word is different it could mean that a sentence or a whole section might have an entirely different meaning than what was originally produced by the doctor. Further, allowing the doctor to use a different copy of their report will cause significant confusion during the cross-examination process and result in a delay in the proceedings. Thus, if it is discovered that the doctor is operating from a different copy of their report than what was originally submitted to the court, despite however minor the differences are portrayed, you should immediately halt the cross-examination and insist that the doctor use the official version of his/her report to testify. Otherwise you are comparing apples and oranges.
Which MMPI Was Used by the Examiner?
The Minnesota Multiphasic Personality Inventory (MMPI) is the keystone of all clinical psychological test batteries where the major question concerns the presence or absence of a Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnosis. In this regard, the MMPI is considered the gold standard for psychological test batteries in medical-legal cases because it is capable of providing information not only about psychopathology but about the test-taker’s basic personality, their attitude and credibility, as well as how they are functioning in the world. The MMPI was published in 1943 and has been widely researched for over 70 years. In 1989, the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) was published in response to a growing demand for an MMPI with updated wording and phrasing. Subsequently, the Minnesota Multiphasic Personality Inventory-2-Restructured Form (MMPI-2-RF), that was created from the MMPI-2, was published in July, 2008, in part, to correct some problems identified with the MMPI-2. When you are reviewing a psych report it is important to determine which MMPI was used by the examiner and to obtain the patient’s MMPI test scores from the doctor if those scores do not appear in the report.
MMPI F(Back) Scale
Every validity and clinical scale performance on the Minnesota Multiphasic Personality Inventory (MMPI) is described with a T-Score. All T-Scores on the validity scales and the clinical scales on the MMPI have a mean of 50 and a standard deviation of 10. In this regard, it should be noted that it is universally accepted that T-Scores of 65 or larger are clinically significant or interpretable. There are many books and journal articles on the MMPI that make this point. In this regard, one of the validity scales on the MMPI is the F(Back) Scale or what is often called the F(b) Scale. The F(b) Scale is a validity scale that is analogous to the F Scale, except that the items on the F(b) Scale are placed in the last half of the test, hence the name “F(b)” representing an F-like scale at the back of the test. A score of 65 or higher on the F(b) Scale is indicative of a high probability the patient was trying to appear to have symptoms that do not exist. In these situations, you should look for the place in the doctor’s report where he/she discussed that the patient’s F(b) Scale score showed they were attempting to simulate symptoms, or what some mental health practitioners would call “faking” or “Malingering.”