HEALTH LAW SUPPLEMENT Winter 2006

Changing the structure of a professional practice: At year-end, we get calls from clients considering changing the structure of their practices, usually from a sole proprietorship to a professional corporation (PC). The most commonly asked question is, Will changing to a PC protect me from potential personal liability for professional negligence (or malpractice)? The answer is “No,” and that’s why all professionals, regardless of the structure of their practices, maintain professional liability insurance. There are some legal advantages of a PC over a sole proprietorship, including: protection from other types of claims that don’t involve professional acts or omissions such as car accidents in a corporate car, claims by creditors, slip and falls at the office; if the relationships are structured properly, protection from malpractice by professional associates and subordinates; and, if the relationships and appearances are suitably structured and presented, some protection against claims based on allegations that a suitemate is a partner or that a contractor is an employee. Of course, there can be financial and tax advantages of PC’s too, and sometimes related types of entities such as professional limited liability companies (PLLC’s) and registered limited liability partnerships (RLLP’s) offer similar or even more benefits.

Doctors usually win in malpractice cases: Physicians Insurers Association of America, a consortium of medical malpractice carriers, released data on claims from 1985 to 2003, that showed that:
●63% of claims were settled out of court with no compensation to the plaintiff;
●5% of claims were litigated and the doctor won;
●29% of claims were settled out of court with compensation to the plaintiff; and
●1% of claims were litigated and the plaintiff won.
These figures jibe with our own experience. When there are no allegations of deliberate wrongdoing and no clear evidence of incompetence, a well-spoken and well-intentioned doctor is a powerful witness with juries when testifying on his or her own behalf.

Psychotherapists as fact witnesses: Most of the time legal actions are settled without trials and many times attorneys who subpoena therapists’ records believe that the information they need for discovery in the case is adequately supplied by the written record. Other times, less frequently, therapists will be required to testify at a deposition or trial. When that happens, therapists must be clear about their role. Some attorneys will attempt to persuade or intimidate treating therapists into serving as expert witnesses. But treating therapists should resist such pressure and limit their role to that of fact witness.
Fact witnesses may testify only as to events they have personally heard or seen; they, unlike expert witnesses, may not give their opinions about the ultimate issue in the legal proceeding, e.g., which parent is the better custodial parent, whether a spouse was exposed to cruel and inhuman treatment (a ground for divorce), whether an accident caused a psychological injury, whether a mentally ill person was responsible for his or her acts, or whether a person is competent in any of a variety of ways. However, therapists are a different type of fact witness from those without professional expertise, for example, witnesses at car accidents.
As part of their direct clinical observations from firsthand knowledge, therapists do make certain judgements that can be considered opinions, e.g., diagnoses, prognoses, precipitating stressors of mental illness and level of functioning. As fact witnesses they may testify as to these judgements, and indeed, sometimes these allowable judgements may seem indistinguishable from disallowed expert opinions. For example, if the sole precipitating stressor for a major depression appears to have been a car accident that caused disability, then cannot the treating therapist state that the accident caused the depression? The therapist may have to rely on what seems a semantic nuance, but still should avoid giving an expert opinion on this legal issue: the therapist should speak of the connection in terms of stressors (a medical term), not causal events (a legal term). If questioned closely in cross-examination, the therapist may allow that for treatment purposes, the therapist believed that the accident “caused” the depression, but then should stress that judgements of a treating therapist are different from those made by a forensic mental health expert witness.
The rationale for treating therapists not serving as expert forensic witnesses is an ethical and professional one: it is a conflict of roles. A forensic expert is objective: a therapist is supportive and more or less accepts the patient’s subjective reality. A forensic expert investigates using techniques and tests unused and often unknown to treating therapists. A forensic expert as an examiner may assume an adversarial role with an examinee; a therapist does not. Perhaps most importantly, a therapist has a primary obligation not to harm patients; an expert witness’ primary obligation is to get as close as possible to truth, to give opinions with a degree of “medical certainty.” These two goals, patient welfare and objective truth as seen by an evaluator, are at odds. Indeed, lawyers who ask treating therapists to serve as expert forensic witnesses are attempting to use this conflict to their advantage by finding an “objective” forensic witness with a subjective bias toward helping their clients which arises because of the prior or existing treatment relationship. (Such lawyers may also be trying to avoid the significant cost of a forensic expert witness.)
Professional organizations of psychiatry, psychology and social work have recognized the inherent conflict between therapeutic and forensic roles. All have discouraged treating therapists from becoming expert witnesses on cases in which they have served as psychotherapists.
There are some disadvantages to therapists limiting their roles and refusing to serve as forensic expert witnesses. Experts are paid before expending their time, often considerable amounts. Treating therapists when they testify as fact witnesses may ask their patient to pay them their professional rate for their time but they cannot require such payment and are entitled to only a minimal statutory fee
($15 -$25). (In personal injury cases, however, treating therapists may ask to place a contingency lien on the case for their time and expenses. Also, a contract to pay the therapist in full for any time expended in the future for legal involvement signed by a patient at the start of treatment may be enforceable.) Expert witnesses are called to testify when it is convenient for them and cannot be subpoenaed, while fact witnesses may be subpoenaed to testify at inconvenient times, and may wait long periods to testify at a trial.
In dealing with requests or demands to testify, it is often helpful for the therapist to consult with a healthcare attorney versed in mental health treatment both to assist in negotiations and arrangements with the parties’ attorneys, and to review the limitations of testimony as they apply to the particulars of the case. Only in unusual circumstances is it necessary for the therapist to retain an attorney to represent him or her in the court proceeding.

WELCOME TO NEW MEMBERS OF THE NCPA LEGAL PLAN!

INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING THE SPECIFICS OF YOUR SITUATION.

𝄞 HAPPY THANKSGIVING, CHANUKAH, CHRISTMAS AND NEW YEAR TO ALL! 𝄞

WE WISH YOU PEACE AND PROSPERITY AND THANK
YOU FOR YOUR TRUST AND BUSINESS DURING THE PAST YEAR!

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