When An Attorney Just Wants to Talk with You: Should You Get Involved in Ongoing Litigation?
By Michelle A. Birtja, Esq.
Wood, Smith, Henning & Berman

A good deed never goes unpunished. Gone are the days where assisting a friend or neighbor is second nature and done without a second thought of the impact it may have on you personally.  This change in society is not only occurring in daily life, but in the professional world as well. In today’s litigious society, it is becoming common practice for attorneys to reach out to a plaintiff’s or claimant’s treating physicians, including their psychiatrists, and request their assistance in a litigation. This request for help may be as simple as a request to discuss the treatment rendered to the patient, or as involved as acting as a medical expert on your patient’s behalf. Irrespective of the extent of the contribution, your participation is never as simple as the attorney will lead you to believe. As practitioners devoted to assisting your patients, your initial instinct is to help. However, while your intentions may be noble and admirable, you may be setting yourself up for unintended legal ramifications.

While understanding that the inevitable phone call from an attorney may occur, what should psychiatrists do once they receive the call?

First and foremost, before speaking to any attorney, court, third party, or responding to a subpoena for mental health records, it is vital that you remember behavioral health records are often afforded a higher privilege then most medical records under state laws, and cannot be released or discussed absent an executed authorization from the patient or a valid Court Order. Simply because an attorney represents to you that he or she is counsel for your patient does not mean you are authorized to speak to him or her. Even an inadvertent disclosure of information can create a grounds for a lawsuit against you. Thus, your first matter of business must always be to confirm that there is a valid Release or Order allowing you to discuss your patient’s treatment history.

Once it is confirmed that you have the authority to speak to an attorney, the question then becomes what is the risk to you. While the Release or Order may grant you authority to speak to or assist the attorney, it does not release you from any consequences that may arise attendant to your involvement in the litigation.

There are many different circumstances and roles in which a treating psychiatrist can become involved in litigation. Commonly, we see attorneys reaching out to psychiatrists to assist their attempts to substantiate a claim for emotional distress in a personal injury case, such as an auto accident, or to write an evaluation in favor of one parent over the other in a child custody hearing, or to assist in supporting their claim in a Worker’s Compensation claim. Additionally, to save on litigation costs, plaintiff’s firms have been trying to use a plaintiff’s treating physician as their expert, to avoid the cost of hiring and paying a retained expert to review all of the relevant medical records. Regardless of the actual role or title the psychiatrist assumes, inevitably what often occurs is that there is a negative outcome in the underlying litigation, and the patient ends up blaming the bad result on the psychiatrist. The patient’s anger results in the psychiatrist being sued or in some circumstances, reported to the physician’s governing administrative body, such as the Board of Medicine. Further, the statements or attestations offered by the treating physician impact the defensibility or damages in the underlying case, and the psychiatrist ends up being deposed or involved in some other form of discovery. No matter the outcome, the psychiatrist’s good intentions do not come without a price.

Therefore, despite what an attorney or even your patient may represent to you, there are considerable risks for getting involved in an underlying litigation. Appreciating the potential exposure, what can a psychiatrist do to limit any potential legal or other backlash against him?

As an initial response, with a valid authorization, you can offer to provide your patient chart to the attorney to utilize as a basis for their position in the litigation, in lieu of you actually authoring a Declaration, Affidavit, or letter, etc. Your chart will contain all the relevant information regarding your treatment, diagnosis and prognosis for future treatment. Further, it can be relied upon by any experts hired by the parties in the underlying case, thereby, hopefully, negating the need for any testimony from you. This approach would allow you to offer some assistance that would be supportive of your patient, without preparing any documentation that could later be problematic for you. Again, before providing your chart to anyone, confirm that there is a written executed release, authorizing such a production.

In the event you decide to take a more affirmative role in assisting your patient, be objective in asserting your opinions and findings and do not become an overly zealous advocate on behalf of your patient. Now this may seem contradictory to your normal role, wherein you are taught to fight and advocate for your patient. In this situation, to limit potential exposure, it is better to simply and matter-of-factly relay the treatment rendered to the patient. Defense attorneys often see documents such as Declarations, Affidavits, or letters that are clearly authored by plaintiff’s counsel and signed by the treating physician, enhancing and editorializing a plaintiff’s condition and his need for future care and treatment. The opinions and findings contained within the document are almost always unsupported by the facts contained within the psychiatrist’s records. In these circumstances, the psychiatrist has placed himself in a problematic position, as his own aversions and records contradict themselves.

Ultimately, the other side will want to undermine any biased or overly supportive testimony with a deposition or cross-examination that could negatively affect the psychiatrist’s credibility and reputation. Thus, to dissuade the opposing side from being inclined to depose you, putting forth an unbiased, objective recitation of the facts is in your best interest. Further, limiting your opinions or conclusions to those that can be supported by the records and stated to a reasonable degree of certainty will assist you in not only avoiding potential legal ramifications, but also the potential of negatively impacting your character in the community.

Further, more often than not, the most impactful or persuasive statements come from impartial treaters who relay information regarding the patient’s condition, past treatment, and need for future treatment without superlatives and enhancements. Therefore, in an effort to avoid inviting a deposition or some other form of discovery, stick to your chart and recordation without any enhancements. Acting as an impartial clinician may not only be in your best interest, but actually serve your patient’s best interest as well.

In circumstances, wherein you have two parents involved in litigation and they have taken positions contrary to one another, such as a divorce or child custody battle, remember to remain neutral and remember that, ethically, your obligation is to the patient. In this situation, it is especially important that you avoid taking sides and simply recite the facts as they have been presented to you. Further, it his highly important that you have an authorization from both parents when disclosing the treatment rendered to the patient.

Even in situations where you are designated as the Court Appointed Child Custody Evaluator (or Guardian Ad Litem), you have an obligation to provide the Court with an impartial review, and make an unbiased recommendation.

Finally, though this is probably the most basic rule and to a large extent common sense, provide honest and truthful testimony and statements regarding your treatment of the patient and the care rendered. So long as your accounts are truthful, even litigation is pursued against you personally, you will be in a much stronger position to defend yourself and your statements, than if you took liberties with your testimony. In fact, state licensing boards have the ability to sanction practitioners for providing false or misleading testimony.

In summary, to try to minimize exposure and risk to yourself, stick to your records and limit any statement to factual attestations of the treatment you have rendered and provide objective, truthful, unbiased, and impartial opinions and conclusion. While there is no true and fast rule to avoid any legal ramifications or general risk to yourself, the above are some ways to try to minimize any exposure.

Risk Management Tips

  • Verify signed authorizations or Court Orders
  • With a valid authorization or Court Order, provide the patient medical record, in lieu of actually authoring a Declaration, Affidavit, or letter, etc.
  • Use objective, neutral language when proffering opinions, testimony etc. regarding treatment rendered
  • Limit any opinions or conclusions to those which can be supported by the records and stated to a reasonable degree of certainty
  • Avoid using superlatives and enhancements when relaying information regarding the patient’s condition, past treatment, and need for future treatment
  • Consult your risk management professional or local attorney with any questions regarding an attorney request for information.

About the Author

Michelle A. Birtja is senior counsel at the Los Angeles office of Wood, Smith, Henning & Berman where her practice focuses on matters involving hospital care, psychiatry, elder care, radiology, emergency medicine, orthopedics, plastic surgery, urology, dentistry, chiropractic and physical therapy. She defends individuals, insurers and institutions facing claims of medical malpractice, elder abuse, negligence and fraud.
Michelle attended Western State University College of Law, graduating with an Exemplary Public Service Award and a Criminal Law Justice Center Award in 2011. Prior to law school, she received her undergraduate degree (B.A., History) from the Whittier College.