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Harassment and intimidation of forensic psychiatrists: an update
International Journal of Law and Psychiatry 26 (2003) 437 – 445
Harassment and intimidation of forensic psychiatrists: an update Donna M. Norrisa,1, Thomas G. Gutheilb,* a
b
Clinical Assistant Professor, Harvard Medical School, Boston, MA 02115, USA Professor of Psychiatry, Psychiatry and the Law Program, Harvard Medical School, Massachusetts Mental Health Center, 74 Fenwood Road, Boston, MA 02115, USA
1. Introduction Among the concerns faced by forensic psychiatrists in their practices—besides logistical problems, hurry-up-wait scheduling, and fierce cross-examination—is harassment and intimidation during their service by various parties in the cases. Forensic psychiatrists work within an adversarial system, which may regularly challenge their findings. These challenges, whether verbal or nonverbal, will be quite heated and are an expected part of the work. The authors suggest that certain behaviors, however, are outside of this expected professional exchange and milieu. The impetus for this updated study of forensic experience follows threats received by one of the authors. Webster defines harassment as the act of annoying persistently and intimidation as the process of compelling or deterring by threats. This review will present and discuss various forms of harassment and intimidation of expert witnesses and their apparent origins, as well as some suggestions for the management of these occupational hazards. Significantly, this self-selected study group provided their own definition of harassment/intimidation by the submission and explanation of their personal experiences for this article.
2. Special aspects of the role of forensic psychiatry There is a large corpus of work on threats, intimidation, and violence by psychiatric patients directed against their treating psychiatrists. (Bernstein, 1981; Calof, 1998; Dubin & * Corresponding author. Tel.: +1-617-626-9659; fax: +1-617-738-1736. E-mail addresses: [email protected] (D.M. Norris), [email protected] (T.G. Gutheil). 1 Tel.: +1-781-237-1778; fax: +1-781-235-2954. 0160-2527/03/$ – see front matter D 2003 Elsevier Science Inc. All rights reserved. doi:10.1016/S0160-2527(03)00042-6
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Lion, 1992; Eichelman, 1995; Hoge & Gutheil, 1985; Lion, 1995; Lion & Herschler, 1998; Lion & Reid, 1983; Madden, Lion, & Penna, 1976). Little has been written about the forensic expert’s experience with harassment/intimidation outside of the courtroom by nonpatient litigants and others involved in the court process (Miller, 1985). An important early study, Miller’s (1985) article addressed the harassment of forensic psychiatrists outside of court using a questionnaire survey of members of the American Academy of Psychiatry and the Law, the national forensic psychiatric organization. Forty-two percent (171) of 408 respondents reported some form of harassment, 17% (68) had been threatened with physical harm, 21 respondents had been harassed more than five times with a majority of assaults (including threats of physical harm) occurring in criminal cases. Forty-seven percent of those harassed took some precautions in their work as a result, including unlisted phone numbers, refusing certain types of cases, and quitting forensic work entirely. Our study noted, as does Miller’s, that attorneys were the harassers in a number of cases. This article presents an update of the forensic expert’s experience with this professional liability. Forensic psychiatry differs from general clinical psychiatry in a number of ways, one of which is the absence of the traditional doctor–patient relationship. An important implication of this altered relationship is that traditional malpractice remedies are unavailable to complainants because of the lack of a duty. The forensic psychiatrist’s duty is not to the patient (more properly, the examinee), but to the retaining agency, typically a court, an attorney, an insurer or others. (Strasburger, Gutheil, & Brodsky, 1997). While not immune to party complaints, the judiciary generally enjoys various forms of immunity from civil litigation, and attorneys are difficult to sue for malpractice or for inadequate representation. Hence, an individual disgruntled with the outcome of some legal proceeding may focus on the expert witness as the cause of the bad result and, therefore, attempt to fix the blame on that individual. The disgruntlement in question may settle on the expert’s testimony itself, which is perceived as unhelpful, demeaning, or narcissistically injurious, or negative feelings may be displaced onto the expert from the attorneys, the judge, or the opposing party. What potential pathways exist for such blaming? The absence of a doctor–patient relationship is no bar to two major venues for complaint. (An expert may, of course, be sued for alleged malpractice, even without a basis in duty). The first is the ethics committee of the witness’s professional association. An ethics complaint may ‘‘charge’’ the expert with ethical violations in any one of a number of forms. A second venue for protest is a complaint to the state board of registration or licensure. Such a complaint challenges fitness to practice medicine in broad terms, which do not require that a specific doctor–patient relationship exists. More seriously, complaints to the board may become listed in the National Practitioner Data Bank (in the United States), to be addressed at every future employment-credentialing encounter for the clinician. In addition to these major pathways for complaints, other possible actions include claims of fraud, breached scope of practice, civil rights arguments, consumer complaints, charges of criminal conduct, breach of contract, and involvement of the particular state’s attorney general. All of these mature and at least theoretically appropriate remedies, however, may be rejected in favor of less formal responses in the form of harassment and intimidation, the subject of our present review.
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3. Method The authors solicited examples of harassment in forensic practice by means of the American Academy of Psychiatry and the Law Newsletter, coupled with their own experiences and the reports of peers and colleagues. These responses served as the database for an initial descriptive study. There was no formal structured survey of the experts. Some colleagues referred us to other experts who had not initially reported their experiences. Those experts were contacted directly by the authors and their stories included in the results. The authors did not receive reports of no harassment from any of the respondents.
4. Results 4.1. Case type A total of 14 forensic physicians, representative of different ages, gender, ethnic groups, and geographic areas of the United States, submitted written/or verbal summaries of their forensic experiences accounting for a total of 34 complaint cases. Several forensic matters had more than one complaint. Significantly, one third of the complaints related to custody issues. Seven of the total number related in some manner to financial issues: fraud by the expert, allegedly exorbitant fees, conflict of interests, or ‘‘expert’s interference with the client’s obtaining a higher financial settlement.’’ A number, but not all, of threat/intimidation actions appeared when the expert’s opinion was contrary to the lawyer’s expectations. A minority of the threats originated from individuals diagnosed as mentally ill, but about a third of the threats of violence came from this group. Total number of experts Total number of cases
14 34
Chart 1 Categories of forensic cases involved: 1. Commitment 2. Forensic evaluations Capital cases 3. Custody/divorce
1 15 2 11
4.2. Type of threat The types of threats ranged from threats of harm, serious bodily injury, or death, legal action or harassment, libel suits, board of licensure complaints, ethics complaints, and
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malpractice claims. Some parties elicited multiple complaints. We could identify some of the cases as follows:
Chart 2 Types of threats against forensic experts: 1. 2. 3. 4.
Intimidation/legal action Complaints to the licensing Boards of Registration/Ethics Committees Threatened breach of other patients’ confidentiality Threats to experts/other professionals/judge of bodily injury/death
15 14 1 8
Chart 3 Actions initiated by: 1. Plaintiffs 2. Lawyers/district attorneys 3. Mental illness plaintiffs
17 9 4
4.3. Actual physical harm A litigant physically slapped one expert. We did not have any report of serious injury or death. 4.4. Emotional harms No matter how old the case, all experts recalled their associated affective responses to threats and harassment. These ranged from mild irritation to serious traumatization and considerable impairment of functioning, some for significant periods of time. An extreme result was the expert’s refusal to be involved in certain forensic cases. 4.5. Monetary issues Seven out of 12 independent medical examination cases related to monetary awards seemed to lead to harassment when the complainants felt they were entitled to more money. For example, in one case, the award was reduced from US$1 million to US$100,000.
5. Case examples The following cases are excerpted in brief, and when possible, utilize the experts’ own words to describe their perceptions of the experience of harassment and intimidation.
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5.1. Custody matters 1. Following a recommendation by the forensic expert that physical custody of the minor children should be changed to the father, the expert was the focus of a series of harassing actions. Since court records in this state publicly identify the attorneys in the cases, the mother solicited the names of all cases evaluated in this court by the expert under the guise of a potential class action suit alleging bias and billing fraud. On one occasion, a local television station was on hand in open court to document the abuse of the plaintiff by the expert. This action was followed by a complaint to the board of registration in medicine. After a prolonged process of investigation, the complaint was subsequently dismissed. In a related case, a mentally ill father solicited by this same complainant had lost custody of the minor children, but was permitted supervised visitation. He filed a complaint with the medical licensure board against this same expert. During the process of this evaluation, the clinical data revealed that numerous guns and brass knuckle knives (outlawed in this country) were found in the rafters and floorboards of the family home. The mother indicated, and the child confirmed, that the father had taught him to load his toy gun with real bullets. The father did not deny this report. A complaint against the expert was filed with the medical board of licensure. It was threatening and disorganized to such a degree that the board immediately called the expert, who informed the state and local police. This complainant made no further contact with the expert. This Board complaint process was ongoing for over 2 years with serial complaints from these parties. 2. One expert was retained to evaluate an issue of custody involving ‘‘an extremely wealthy couple who had divorced five years previously with great acrimony.’’ The evaluation recommended that it was in the children’s best interest to remain with the mother and that protracted litigation be avoided. Further, it was noted that if the father had prevailed for only 2 h per week, it would have been added to their time with him. The father’s attorney yelled and complained of the expert’s allegedly unethical behavior and asked if there was an awareness of how long a man with US$25 million could keep an expert tied up in court. Other irregularities were observed. The attorney addressed the judge on a first name basis and may have had some influence in the judge’s appointment process. Further, the plaintiff’s counsel threatened that the expert would never do another case in this large metropolitan city. In response, the expert retained his own attorney. Following the trial, the father persisted, and the expert’s telephone records for 6 months were subpoenaed. At this point, and with significant risks to the confidentiality of psychiatric patients, the expert recalled feeling harassed. This process ceased not via the courts but through an informal contact related to the plaintiff’s continued financial liquidity. 3. In a parental fitness determination, the expert found that both parents were unfit, and the child was surrendered for adoption. The father, with an extensive history of psychiatric disturbance, violence, alcoholism, and underlying brain damage, worked as a security guard and made threats to kill the judge, the lawyer who represented him, and the expert, who had recommended against his receiving custody. The father mentioned to a number of
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people that he was looking to purchase a 9 mm-caliber handgun. The expert immediately called his housekeeper to advise her to be careful. She informed the expert that a man had called asking for the names of his children and the location of their schools. The man was arrested, pled guilty to obstruction of justice, and was detained for 6 months, after which he received 3 years probation under the condition that he not contact his intended victims. 4. An expert evaluated a former Viet Nam veteran who had taught his 5-year-old child how to fire a .22-caliber handgun. He was involved in a custody process and threatened to blow up the offices of the social services agency and to harm the social workers and the therapist. Since this incident, the expert acknowledged her fearfulness and her decision to not evaluate cases of termination of parental rights in her office, nor will she see custody cases in the same small-town community. 5.2. Civil matters In this personal injury matter, the plaintiff alleged that he was slandered and defamed while running for the presidency of his union. The case had gone to trial previously and a verdict of US$1 million was received. Following trial, the defamation and slander were upheld but the award reversed. The expert was asked by the defense to evaluate the plaintiff who, considering psychological damages, had retained his own psychiatrist. The expert found the plaintiff significantly less impaired than did his own psychiatrist. The jury award was reduced to US$100,000. There followed a series of death threats and harassing telephone calls from the plaintiff. The local police and the plaintiff’s attorney warned the plaintiff of further legal action. No further threats were received. 5.3. Criminal matters 1. In a pretrial evaluation, the expert saw the complainant who faced many charges including those related to the rape of seven women. This man was found guilty and is currently serving time in a federal prison. Over the years of his time in prison, he has sued the expert for malpractice in Superior Court, has appealed the case to the Federal Court, and was heard in the U.S. Supreme Court (certiorari was denied). 2. This is a case, which the forensic psychiatrist noted, she has never forgotten. Early in the expert’s career, a man who allegedly had been connected to 21 organized crime-related deaths, was found not guilty by reason of insanity and hospitalized. The expert believed that the man met the civil commitment standard and would likely kill again. This man made vague threats to harm all of the doctors on the case. Nevertheless, he was released and within 1 month had stomped his wife to death. The expert was fearful for her life. Only later did she discover that this man lived in her community and within one block of her home. 3. In this matter the courts were never involved. The forensic expert, who taught a course on family violence in a local university, received a letter from a man, which detailed his own abuse as a child and asked that the expert ‘‘save’’ him. The expert did not respond. The man again wrote and threatened to shoot the expert, detailing that the expert would wind up in a body bag. Since the U.S. mail was used to transmit the threats, the Federal Bureau of
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Investigation was involved. This process went on for 6 months. The man was identified as a former Viet Nam veteran, who had been discharged from the service for psychiatric reasons, had a current history of violence, and was considered by the FBI as dangerous. Although the man never made or attempted to carry through with further threats, the forensic expert considered himself severely compromised by these events and suffered anxiety attacks.
6. Discussion Forensic work, rigorous and demanding, requires full and dispassionate attention to the process and details of the evaluation and report. Distractions from an orderly investigation of the issues compromise the findings and impinge on the evaluative conclusion and its subsequent presentation of testimony at court. The authors have presented scenarios of behavior, which have been self-identified by the study experts as harassment and/or intimidation. While the forensic expert is not naive to the world of harassment in the courtroom, and under certain circumstances may enjoy the professional challenge of a strong cross-examination, certain experiences of intimidation with the potential for violence may engender feelings of anxiety, fearfulness, and worry for one’s personal safety and that of one’s family. Following the presentation of the forensic investigation and testimony, some litigants may become so angry about the results that they respond with maladaptive behaviors. In our expert survey group, only a minority of their total forensic caseloads involved intimidation practices as described in this paper. Most litigants manage to contain their outrage and utilize more appropriate methods of protest. The process of intimidation noted by several experts ranged in duration from the time period of the case to several years after the case had been adjudicated. Most studies and research reports of threats and violence in the mental health field have involved patients and their therapists. One important distinction regarding harassment by a forensic examinee compared to that by a patient in psychotherapy is that the ambivalence and division of duty and loyalty are altered. In a psychotherapy relationship, an angry patient is a problem for the treatment, which is based on helping an ill person; here, the patient is the employer. In the forensic setting, once the expert’s role in court is completed, he/she reverts to the role of an ordinary citizen, wherein responses to inappropriate behavior are both more straightforward and less conflicted. In this instance, a harassing examinee interferes with a professional business relationship, often with the employer being someone else, usually an attorney or the court. In custody matters, the parties may be asked to share the costs equally and are parties in the business arrangement. In this study, sexual harassment and child custody litigation appeared the most common arenas for harassment complaints. While threats did issue from individuals with clear mental illnesses, an equal number were initiated or fueled by attorneys who were not identified as mentally ill. Seven of 12 evaluations did, indeed, have potentially negative financial consequences for the plaintiffs represented by those particular attorneys. The reputation of the expert may be tarnished by such complaints, with the possible result of the loss of professional referrals impacting financial stability.
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There is also a personal cost to consider. One expert spoke about the emergence of clinical symptoms of anxiety, and for a time, the disruption of concentration and ability to maintain the focus on work. Another commonly expressed concern of experts, who received licensing or Board of Registration complaints, was the worry that their peers would question their competence and integrity. Yet others regretted the time utilized in responding to such complaints and the often insensitive manner whereby a Board completed its investigation—a process which often seemed unrelated to whether the complaint was transparently a product of distortion and abnormal thought processes. One such complaint letter to the Board was so disorganized that only the threat of harm to the expert was intelligible. The judiciary is also not immune to the complaint process. Following a long series of intimidating episodes, one expert noted that numerous complaints soon focused on the sitting judge. Thereafter, the expert noted a cessation in her referrals from this court. This study primarily addressed issues related to forensic experts, but as a by-product, we learned that the milieu of harassment may frequently spill over onto family members. In more than one case, the expert, the judge, and/or family members were included in the threats. The manner in which these forensic professionals responded to the perceived threats varied from doing nothing, changing their schedules and routes of daily travel, and informing colleagues and the law enforcement authorities, to obtaining instructions on the handling of a gun and a permit for carrying a concealed weapon. In our view, the character of the response depended on the expert’s assessment of the likelihood of harm, the presence of an organized plan, the potential presence of a weapon, as a means, and the professional’s own personality traits. While the literature does identify the resultant injury and death of persons involved in forensic work, there are clearly many more threats than actual events. What can professionals do to protect themselves? Eichelman (1995) and Lion (1995) have identified a plan of response for mental health professionals when there is a risk or likelihood of harm from patients. While the forensic expert recognizes the different boundaries of the forensic evaluation compared to those of the patient–doctor relationship, these limitations may be forgotten by the examinee. Even within the bounds of this professional forensic relationship, the individual being assessed may believe that he or she has been unfairly maligned and may seek retribution. It is important to review repeatedly with the examinee the limits of confidentiality and the exact limits of the assessment for the court. Following threats, the professional expert must recognize the seriousness of the problem and the need for action in considering and managing it. Denial of the issue may result in harm to the expert and/or others. In this study, significant numbers of threatening individuals were plaintiff’s attorneys. We believe that this offers suggestive evidence that the forensic setting is representative of society. In addition, harassment of forensic experts outside of the courtroom by attorneys may be an overt attempt to undermine the professional credibility of experts. When threats are made against the forensic expert, we suggest the following considerations: 1. Inform a colleague and obtain regular consultation on the case. 2. Alert the appropriate court officials, law enforcement agencies, attorneys, and the expert’s office staff. Include the family in a review of cautions.
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3. Be observant of home and work surroundings, and consider varying one’s route of travel. 4. If the harassing nature of the behaviors continue, obtain legal counsel and consider appropriate court action. It is important and perhaps reassuring to remember that these examples of harassment and intimidation represented a small percentage of the total caseloads of these experts, and in most instances, were resolved and quiescent within a short period following the conclusion of the matters before the court.
Acknowledgements This paper was presented at the annual meeting of the International Academy of Law and Mental Health, Toronto, Canada, June 1999. The authors thank the forensic psychiatrists who contributed candid and courageously revealing case examples for this study.
References Bernstein, H. (1981). Survey of threats and assaults directed towards therapists. American Journal of Psychotherapy, 35, 542 – 549. Calof, D. L. (1998). Notes from a practice under siege: harassment, defamation, and intimidation in the name of science. Ethics & Behavior, 8(2), 161 – 187. Dubin, M. D., & Lion, J. R. (1992). Clinician safety. Report of the American Psychiatric Association Task Force on Clinician Safety. Eichelman, B. (1995). Strategies for clinician safety. In B. Eichelman, & A. C. Hartwig (Eds.), Patient violence and the clinician ( pp. 139 – 154). Washington, DC: American Psychiatric Press. Hoge, S. K., & Gutheil, T. G. (1985). The prosecution of psychiatric patients for assaults on staff: a preliminary study. Medicine, Science and the Law, 25, 288 – 294. Lion, J. R. (1995). Verbal threats against clinicians. In B. Eichelman, & A. C. Hartwig (Eds.), Patient violence and the clinician ( pp. 34 – 52). Washington, DC: American Psychiatric Press. Lion, J. R., & Herschler, J. (1998). The stalking of clinicians by their patients. In J. R. Meloy (Ed.), The psychology of stalking, clinical and forensic perspectives ( pp. 163 – 173). New York: Academic Press. Lion, J. R., & Reid, W. H. (1983). Assaults within psychiatric facilities. New York: Gune and Stratton. Madden, D. J., Lion, J. R., & Penna, M. W. (1976). Assaults on psychiatrists by patients. American Journal of Psychiatry, 133, 422 – 425. Miller, R. D. (1985). Harassment of forensic psychiatrists outside of court. Bulletin of the American Academy of Psychiatry and the Law, 13, 337 – 343. Strasburger, L. H., Gutheil, T. G., & Brodsky, A. (1997). On wearing two hats: role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry, 154, 448 – 456.
Harassment and intimidation of forensic psychiatrists: an update Donna M. Norrisa,1, Thomas G. Gutheilb,* a
b
Clinical Assistant Professor, Harvard Medical School, Boston, MA 02115, USA Professor of Psychiatry, Psychiatry and the Law Program, Harvard Medical School, Massachusetts Mental Health Center, 74 Fenwood Road, Boston, MA 02115, USA
1. Introduction Among the concerns faced by forensic psychiatrists in their practices—besides logistical problems, hurry-up-wait scheduling, and fierce cross-examination—is harassment and intimidation during their service by various parties in the cases. Forensic psychiatrists work within an adversarial system, which may regularly challenge their findings. These challenges, whether verbal or nonverbal, will be quite heated and are an expected part of the work. The authors suggest that certain behaviors, however, are outside of this expected professional exchange and milieu. The impetus for this updated study of forensic experience follows threats received by one of the authors. Webster defines harassment as the act of annoying persistently and intimidation as the process of compelling or deterring by threats. This review will present and discuss various forms of harassment and intimidation of expert witnesses and their apparent origins, as well as some suggestions for the management of these occupational hazards. Significantly, this self-selected study group provided their own definition of harassment/intimidation by the submission and explanation of their personal experiences for this article.
2. Special aspects of the role of forensic psychiatry There is a large corpus of work on threats, intimidation, and violence by psychiatric patients directed against their treating psychiatrists. (Bernstein, 1981; Calof, 1998; Dubin & * Corresponding author. Tel.: +1-617-626-9659; fax: +1-617-738-1736. E-mail addresses: [email protected] (D.M. Norris), [email protected] (T.G. Gutheil). 1 Tel.: +1-781-237-1778; fax: +1-781-235-2954. 0160-2527/03/$ – see front matter D 2003 Elsevier Science Inc. All rights reserved. doi:10.1016/S0160-2527(03)00042-6
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Lion, 1992; Eichelman, 1995; Hoge & Gutheil, 1985; Lion, 1995; Lion & Herschler, 1998; Lion & Reid, 1983; Madden, Lion, & Penna, 1976). Little has been written about the forensic expert’s experience with harassment/intimidation outside of the courtroom by nonpatient litigants and others involved in the court process (Miller, 1985). An important early study, Miller’s (1985) article addressed the harassment of forensic psychiatrists outside of court using a questionnaire survey of members of the American Academy of Psychiatry and the Law, the national forensic psychiatric organization. Forty-two percent (171) of 408 respondents reported some form of harassment, 17% (68) had been threatened with physical harm, 21 respondents had been harassed more than five times with a majority of assaults (including threats of physical harm) occurring in criminal cases. Forty-seven percent of those harassed took some precautions in their work as a result, including unlisted phone numbers, refusing certain types of cases, and quitting forensic work entirely. Our study noted, as does Miller’s, that attorneys were the harassers in a number of cases. This article presents an update of the forensic expert’s experience with this professional liability. Forensic psychiatry differs from general clinical psychiatry in a number of ways, one of which is the absence of the traditional doctor–patient relationship. An important implication of this altered relationship is that traditional malpractice remedies are unavailable to complainants because of the lack of a duty. The forensic psychiatrist’s duty is not to the patient (more properly, the examinee), but to the retaining agency, typically a court, an attorney, an insurer or others. (Strasburger, Gutheil, & Brodsky, 1997). While not immune to party complaints, the judiciary generally enjoys various forms of immunity from civil litigation, and attorneys are difficult to sue for malpractice or for inadequate representation. Hence, an individual disgruntled with the outcome of some legal proceeding may focus on the expert witness as the cause of the bad result and, therefore, attempt to fix the blame on that individual. The disgruntlement in question may settle on the expert’s testimony itself, which is perceived as unhelpful, demeaning, or narcissistically injurious, or negative feelings may be displaced onto the expert from the attorneys, the judge, or the opposing party. What potential pathways exist for such blaming? The absence of a doctor–patient relationship is no bar to two major venues for complaint. (An expert may, of course, be sued for alleged malpractice, even without a basis in duty). The first is the ethics committee of the witness’s professional association. An ethics complaint may ‘‘charge’’ the expert with ethical violations in any one of a number of forms. A second venue for protest is a complaint to the state board of registration or licensure. Such a complaint challenges fitness to practice medicine in broad terms, which do not require that a specific doctor–patient relationship exists. More seriously, complaints to the board may become listed in the National Practitioner Data Bank (in the United States), to be addressed at every future employment-credentialing encounter for the clinician. In addition to these major pathways for complaints, other possible actions include claims of fraud, breached scope of practice, civil rights arguments, consumer complaints, charges of criminal conduct, breach of contract, and involvement of the particular state’s attorney general. All of these mature and at least theoretically appropriate remedies, however, may be rejected in favor of less formal responses in the form of harassment and intimidation, the subject of our present review.
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3. Method The authors solicited examples of harassment in forensic practice by means of the American Academy of Psychiatry and the Law Newsletter, coupled with their own experiences and the reports of peers and colleagues. These responses served as the database for an initial descriptive study. There was no formal structured survey of the experts. Some colleagues referred us to other experts who had not initially reported their experiences. Those experts were contacted directly by the authors and their stories included in the results. The authors did not receive reports of no harassment from any of the respondents.
4. Results 4.1. Case type A total of 14 forensic physicians, representative of different ages, gender, ethnic groups, and geographic areas of the United States, submitted written/or verbal summaries of their forensic experiences accounting for a total of 34 complaint cases. Several forensic matters had more than one complaint. Significantly, one third of the complaints related to custody issues. Seven of the total number related in some manner to financial issues: fraud by the expert, allegedly exorbitant fees, conflict of interests, or ‘‘expert’s interference with the client’s obtaining a higher financial settlement.’’ A number, but not all, of threat/intimidation actions appeared when the expert’s opinion was contrary to the lawyer’s expectations. A minority of the threats originated from individuals diagnosed as mentally ill, but about a third of the threats of violence came from this group. Total number of experts Total number of cases
14 34
Chart 1 Categories of forensic cases involved: 1. Commitment 2. Forensic evaluations Capital cases 3. Custody/divorce
1 15 2 11
4.2. Type of threat The types of threats ranged from threats of harm, serious bodily injury, or death, legal action or harassment, libel suits, board of licensure complaints, ethics complaints, and
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malpractice claims. Some parties elicited multiple complaints. We could identify some of the cases as follows:
Chart 2 Types of threats against forensic experts: 1. 2. 3. 4.
Intimidation/legal action Complaints to the licensing Boards of Registration/Ethics Committees Threatened breach of other patients’ confidentiality Threats to experts/other professionals/judge of bodily injury/death
15 14 1 8
Chart 3 Actions initiated by: 1. Plaintiffs 2. Lawyers/district attorneys 3. Mental illness plaintiffs
17 9 4
4.3. Actual physical harm A litigant physically slapped one expert. We did not have any report of serious injury or death. 4.4. Emotional harms No matter how old the case, all experts recalled their associated affective responses to threats and harassment. These ranged from mild irritation to serious traumatization and considerable impairment of functioning, some for significant periods of time. An extreme result was the expert’s refusal to be involved in certain forensic cases. 4.5. Monetary issues Seven out of 12 independent medical examination cases related to monetary awards seemed to lead to harassment when the complainants felt they were entitled to more money. For example, in one case, the award was reduced from US$1 million to US$100,000.
5. Case examples The following cases are excerpted in brief, and when possible, utilize the experts’ own words to describe their perceptions of the experience of harassment and intimidation.
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5.1. Custody matters 1. Following a recommendation by the forensic expert that physical custody of the minor children should be changed to the father, the expert was the focus of a series of harassing actions. Since court records in this state publicly identify the attorneys in the cases, the mother solicited the names of all cases evaluated in this court by the expert under the guise of a potential class action suit alleging bias and billing fraud. On one occasion, a local television station was on hand in open court to document the abuse of the plaintiff by the expert. This action was followed by a complaint to the board of registration in medicine. After a prolonged process of investigation, the complaint was subsequently dismissed. In a related case, a mentally ill father solicited by this same complainant had lost custody of the minor children, but was permitted supervised visitation. He filed a complaint with the medical licensure board against this same expert. During the process of this evaluation, the clinical data revealed that numerous guns and brass knuckle knives (outlawed in this country) were found in the rafters and floorboards of the family home. The mother indicated, and the child confirmed, that the father had taught him to load his toy gun with real bullets. The father did not deny this report. A complaint against the expert was filed with the medical board of licensure. It was threatening and disorganized to such a degree that the board immediately called the expert, who informed the state and local police. This complainant made no further contact with the expert. This Board complaint process was ongoing for over 2 years with serial complaints from these parties. 2. One expert was retained to evaluate an issue of custody involving ‘‘an extremely wealthy couple who had divorced five years previously with great acrimony.’’ The evaluation recommended that it was in the children’s best interest to remain with the mother and that protracted litigation be avoided. Further, it was noted that if the father had prevailed for only 2 h per week, it would have been added to their time with him. The father’s attorney yelled and complained of the expert’s allegedly unethical behavior and asked if there was an awareness of how long a man with US$25 million could keep an expert tied up in court. Other irregularities were observed. The attorney addressed the judge on a first name basis and may have had some influence in the judge’s appointment process. Further, the plaintiff’s counsel threatened that the expert would never do another case in this large metropolitan city. In response, the expert retained his own attorney. Following the trial, the father persisted, and the expert’s telephone records for 6 months were subpoenaed. At this point, and with significant risks to the confidentiality of psychiatric patients, the expert recalled feeling harassed. This process ceased not via the courts but through an informal contact related to the plaintiff’s continued financial liquidity. 3. In a parental fitness determination, the expert found that both parents were unfit, and the child was surrendered for adoption. The father, with an extensive history of psychiatric disturbance, violence, alcoholism, and underlying brain damage, worked as a security guard and made threats to kill the judge, the lawyer who represented him, and the expert, who had recommended against his receiving custody. The father mentioned to a number of
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people that he was looking to purchase a 9 mm-caliber handgun. The expert immediately called his housekeeper to advise her to be careful. She informed the expert that a man had called asking for the names of his children and the location of their schools. The man was arrested, pled guilty to obstruction of justice, and was detained for 6 months, after which he received 3 years probation under the condition that he not contact his intended victims. 4. An expert evaluated a former Viet Nam veteran who had taught his 5-year-old child how to fire a .22-caliber handgun. He was involved in a custody process and threatened to blow up the offices of the social services agency and to harm the social workers and the therapist. Since this incident, the expert acknowledged her fearfulness and her decision to not evaluate cases of termination of parental rights in her office, nor will she see custody cases in the same small-town community. 5.2. Civil matters In this personal injury matter, the plaintiff alleged that he was slandered and defamed while running for the presidency of his union. The case had gone to trial previously and a verdict of US$1 million was received. Following trial, the defamation and slander were upheld but the award reversed. The expert was asked by the defense to evaluate the plaintiff who, considering psychological damages, had retained his own psychiatrist. The expert found the plaintiff significantly less impaired than did his own psychiatrist. The jury award was reduced to US$100,000. There followed a series of death threats and harassing telephone calls from the plaintiff. The local police and the plaintiff’s attorney warned the plaintiff of further legal action. No further threats were received. 5.3. Criminal matters 1. In a pretrial evaluation, the expert saw the complainant who faced many charges including those related to the rape of seven women. This man was found guilty and is currently serving time in a federal prison. Over the years of his time in prison, he has sued the expert for malpractice in Superior Court, has appealed the case to the Federal Court, and was heard in the U.S. Supreme Court (certiorari was denied). 2. This is a case, which the forensic psychiatrist noted, she has never forgotten. Early in the expert’s career, a man who allegedly had been connected to 21 organized crime-related deaths, was found not guilty by reason of insanity and hospitalized. The expert believed that the man met the civil commitment standard and would likely kill again. This man made vague threats to harm all of the doctors on the case. Nevertheless, he was released and within 1 month had stomped his wife to death. The expert was fearful for her life. Only later did she discover that this man lived in her community and within one block of her home. 3. In this matter the courts were never involved. The forensic expert, who taught a course on family violence in a local university, received a letter from a man, which detailed his own abuse as a child and asked that the expert ‘‘save’’ him. The expert did not respond. The man again wrote and threatened to shoot the expert, detailing that the expert would wind up in a body bag. Since the U.S. mail was used to transmit the threats, the Federal Bureau of
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Investigation was involved. This process went on for 6 months. The man was identified as a former Viet Nam veteran, who had been discharged from the service for psychiatric reasons, had a current history of violence, and was considered by the FBI as dangerous. Although the man never made or attempted to carry through with further threats, the forensic expert considered himself severely compromised by these events and suffered anxiety attacks.
6. Discussion Forensic work, rigorous and demanding, requires full and dispassionate attention to the process and details of the evaluation and report. Distractions from an orderly investigation of the issues compromise the findings and impinge on the evaluative conclusion and its subsequent presentation of testimony at court. The authors have presented scenarios of behavior, which have been self-identified by the study experts as harassment and/or intimidation. While the forensic expert is not naive to the world of harassment in the courtroom, and under certain circumstances may enjoy the professional challenge of a strong cross-examination, certain experiences of intimidation with the potential for violence may engender feelings of anxiety, fearfulness, and worry for one’s personal safety and that of one’s family. Following the presentation of the forensic investigation and testimony, some litigants may become so angry about the results that they respond with maladaptive behaviors. In our expert survey group, only a minority of their total forensic caseloads involved intimidation practices as described in this paper. Most litigants manage to contain their outrage and utilize more appropriate methods of protest. The process of intimidation noted by several experts ranged in duration from the time period of the case to several years after the case had been adjudicated. Most studies and research reports of threats and violence in the mental health field have involved patients and their therapists. One important distinction regarding harassment by a forensic examinee compared to that by a patient in psychotherapy is that the ambivalence and division of duty and loyalty are altered. In a psychotherapy relationship, an angry patient is a problem for the treatment, which is based on helping an ill person; here, the patient is the employer. In the forensic setting, once the expert’s role in court is completed, he/she reverts to the role of an ordinary citizen, wherein responses to inappropriate behavior are both more straightforward and less conflicted. In this instance, a harassing examinee interferes with a professional business relationship, often with the employer being someone else, usually an attorney or the court. In custody matters, the parties may be asked to share the costs equally and are parties in the business arrangement. In this study, sexual harassment and child custody litigation appeared the most common arenas for harassment complaints. While threats did issue from individuals with clear mental illnesses, an equal number were initiated or fueled by attorneys who were not identified as mentally ill. Seven of 12 evaluations did, indeed, have potentially negative financial consequences for the plaintiffs represented by those particular attorneys. The reputation of the expert may be tarnished by such complaints, with the possible result of the loss of professional referrals impacting financial stability.
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There is also a personal cost to consider. One expert spoke about the emergence of clinical symptoms of anxiety, and for a time, the disruption of concentration and ability to maintain the focus on work. Another commonly expressed concern of experts, who received licensing or Board of Registration complaints, was the worry that their peers would question their competence and integrity. Yet others regretted the time utilized in responding to such complaints and the often insensitive manner whereby a Board completed its investigation—a process which often seemed unrelated to whether the complaint was transparently a product of distortion and abnormal thought processes. One such complaint letter to the Board was so disorganized that only the threat of harm to the expert was intelligible. The judiciary is also not immune to the complaint process. Following a long series of intimidating episodes, one expert noted that numerous complaints soon focused on the sitting judge. Thereafter, the expert noted a cessation in her referrals from this court. This study primarily addressed issues related to forensic experts, but as a by-product, we learned that the milieu of harassment may frequently spill over onto family members. In more than one case, the expert, the judge, and/or family members were included in the threats. The manner in which these forensic professionals responded to the perceived threats varied from doing nothing, changing their schedules and routes of daily travel, and informing colleagues and the law enforcement authorities, to obtaining instructions on the handling of a gun and a permit for carrying a concealed weapon. In our view, the character of the response depended on the expert’s assessment of the likelihood of harm, the presence of an organized plan, the potential presence of a weapon, as a means, and the professional’s own personality traits. While the literature does identify the resultant injury and death of persons involved in forensic work, there are clearly many more threats than actual events. What can professionals do to protect themselves? Eichelman (1995) and Lion (1995) have identified a plan of response for mental health professionals when there is a risk or likelihood of harm from patients. While the forensic expert recognizes the different boundaries of the forensic evaluation compared to those of the patient–doctor relationship, these limitations may be forgotten by the examinee. Even within the bounds of this professional forensic relationship, the individual being assessed may believe that he or she has been unfairly maligned and may seek retribution. It is important to review repeatedly with the examinee the limits of confidentiality and the exact limits of the assessment for the court. Following threats, the professional expert must recognize the seriousness of the problem and the need for action in considering and managing it. Denial of the issue may result in harm to the expert and/or others. In this study, significant numbers of threatening individuals were plaintiff’s attorneys. We believe that this offers suggestive evidence that the forensic setting is representative of society. In addition, harassment of forensic experts outside of the courtroom by attorneys may be an overt attempt to undermine the professional credibility of experts. When threats are made against the forensic expert, we suggest the following considerations: 1. Inform a colleague and obtain regular consultation on the case. 2. Alert the appropriate court officials, law enforcement agencies, attorneys, and the expert’s office staff. Include the family in a review of cautions.
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3. Be observant of home and work surroundings, and consider varying one’s route of travel. 4. If the harassing nature of the behaviors continue, obtain legal counsel and consider appropriate court action. It is important and perhaps reassuring to remember that these examples of harassment and intimidation represented a small percentage of the total caseloads of these experts, and in most instances, were resolved and quiescent within a short period following the conclusion of the matters before the court.
Acknowledgements This paper was presented at the annual meeting of the International Academy of Law and Mental Health, Toronto, Canada, June 1999. The authors thank the forensic psychiatrists who contributed candid and courageously revealing case examples for this study.
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