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A Guess Isn’t Good Enough for a Jury

If psychiatric damages are suspected, you will need solid medical information to present to a jury.

A lawsuit or criminal case is never simple where psychiatric factors are concerned. Training in the medical-legal aspects of investigation and forming conclusions are singular to a Forensic Psychiatrist. 

Why Choose a Forensic Psychiatrist?

A Forensic Psychiatrist has completed years of residency and fellowship training in diagnosis and treatment in the medical-legal context. This training is very different from that of a solely clinical psychiatrist.

Psychiatrists without forensic training may miss what is important in the medico-legal overlap.

Best Representation of Your Client

Cases can, and do, proceed without expert assessment. This decision deprives the triers of fact—and attorneys—of necessary information to understand damages and value the case going into trial or settlement discussions. How can a jury arrive at appropriate damages unless they know what is the injury and how easy or hard it will be to treat? 

A Forensic Psychiatrist is the qualified and skilled doctor to serve in this capacity in many cases about those topics discussed below.

We can help you evaluate your case if psychiatric conditions and damages are a concern.

Diagnosis: an informed attorney and trier of fact

Diagnosis of medical psychiatric conditions, causation and damages are intertwined.

Unpacking complex medical conditions starts with an accurate diagnosis by a physician after assessing information from medical and legal records, an IME and more.

The role of diagnosis in a legal matter can span psychiatric conditions, a litigant’s psychiatric and medical history and application of mental status to situations that end up in court, like those discussed below. 

The most common questions I am asked by attorneys to consider are:

  • Does the person have a psychiatric condition? Or, in the case of a will contest, did they have a condition when they were alive or signed a testamentary document?
  • When did it start?
  • Could it have preexisted an accident?
  • If found, did it occur during the event in question, e.g., an accident, or medical treatment resulting in fear of imminent death and trauma?
  • What happened later? Is there a new psychiatric condition such as clinical Anxiety or Depression? Was there a concussion, perhaps, followed by personality changes? PTSD?
  • If a condition exists, is it acute — immediate and short-lived, or chronic–continuing into the future?

I believe triers of fact are best served by expert testimony that informs and explains, without bias.

Prognosis

Prognosis in a legal case is more likely to speak to damages.

  • Might the condition be related to a point in time event? E.g. an MVA, or even a pre-existing trauma in the person’s past.
  • What is the treatment?
  • What do medicine and experience tell us about recovery?
  • How much is that treatment likely to cost?
  • What are the chances it will be effective? For example, PTSD is difficult to treat. However, Mild Depressive Disorder has proven responsive to medication and other therapies.

A clinician can speak to treatment, but they are not legal damages experts and will not consider something as specific as the legal concept of “pain and suffering” or the nuances of causative agents.

My interests in this regard are what led me to pursue a practice in Forensic Psychiatry.

A jury shouldn’t be asked to guess

Emotional Distress, Competency, Culpability

There is no “emotional distress” diagnosis

The presence or absence of a condition that causes one to be emotionally distressed is established by a physician. But the condition is not “emotional distress.”

Can Someone Assert Damages with Self-Diagnosis?

Plaintiffs may self-diagnose, presenting their attorney and opposing counsel with a conundrum.

Is the client qualified to know what is going on? Does it impact the value of the case? Could they be lying or exaggerating their symptoms? These are considerations for both Plaintiff or Defense. I am asked to assess these questions on a regular basis, most commonly in Personal Injury cases. (Dangers of Self-Diagnosis below)

The fact is that one person’s “distress” after a traumatic event might be PTSD, while another more resilient person is back to their “old life” quickly and without lasting consequences.

Emotional distress damages must be assessed through examination, reviewing records, sub-rosa video, or any evidence that guides the doctor to determine what, if any, condition exists, long before compensation is considered by the trier of fact.

Probate litigation presents other challenges.

Competency and Capacity

I have seen a jump in lawsuits about testamentary capacity. It could reflect the baby boomer population, many of whom are now approaching their late 70’s.

Age and ill health do not always go together. But when they do, questions of testamentary capacity or vulnerability to fraud or undue influence are assessed with an eye to medical conditions, medications, behavior, and decision-making capability.

Terms like Competency and Capacity apply to areas of the law where a person’s intact cognition impacts their ability to interpret the world around them, whether the issue is competency to stand trial or competency to sell a business. Legal thresholds differ. Medical criteria for diagnoses do not.

Types of cases where we have been asked to serve as Forensic Psychiatrists

  • Damages in civil litigation, psychiatric factors in behavior, psychiatric outcomes such as response to trauma and mitigating psychiatric factors
  • Testamentary capacity
  • Psychiatric disability: disability insurers, health insurers, the Social Security Administration, VA benefits
  • Fitness for duty and added considerations regarding ADA, EEOC and Title VII
  • Criminal competency to stand trial
  • Treatment plans, to assess costs and damages
  • Rehabilitation treatment in the case of brain injuries producing psychiatric symptoms
  • Clarification of mental status and state of mind associated with civil or criminal litigation
  • Diagnosis or ruling out of dementias/neurocognitive disorders in testamentary capacity
  • Diagnoses that indicate or do not indicate susceptibility to undue influence
  • Decision-making impairment or judgment in entering into a contract such as a revocable trust, real estate transaction, investment decisions
  • Restorability

How?

We synthesize a close review of the following information:

  • Medical records, doctor reports, clinical notes, and treatment reports, reviewed with a physician’s eye
  • Review of deposition testimony; statements by a party to an action or others may offer clues useful in forming medicolegal findings
  • Review of neuropsychological testing and neuroimaging
  • Independent medical evaluation (IME), face-to-face with the examinee, if indicated.
  • Interviews of collateral informants (e.g., spouses, partners, and friends who have knowledge of the individual’s psychiatric conditions, behavior, changes, or other observations relevant to a forensic opinion)
  • Develop a timeline to compare medical history and evidence about an event against the narrative supplied by the examinee

    Prognosis

    If the forensic psychiatrist finds psychiatric damages, they address prognosis and efficacy of treatment.  Can there be restoration of a psychiatrically injured party to mental health? What treatment is indicated? How much is it likely to cost?

    Collateral Damage: Family As Well As the Individual

    A psychiatric condition, when it begins and in the future, can impact an individual’s family, employment, and quality of life. For that reason, prognosis informs a network of legal and personal support. Don’t forget that the forensic psychiatrist is objective—”support” and “damages” are not presumed to be a plaintiff or a defense assessment.

Alarming Trends in Self-Diagnosis

Wikipedia doesn’t stand up in court

Buzzwords vs. Medical Diagnosis

A litigant has an emotional investment and may feel urgency to put into words what they believe they are experiencing—even if they don’t understand the words they are using. (Emphasis on “believe.”)

Attorneys for plaintiff and defense should be on the alert when they hear something like this from a party who is not an expert in psychiatry:

“I have depression.”
“I have PTSD.”
“I am afraid all the time.”
“I don’t remember things like I used to.”
“I’m an emotional mess, this has ruined my life.”
“Mom had dementia, she could never have changed her will.”
“He said he was too depressed to leave the house, but I heard he was at a party last week.”
“She’s crazy. She can’t be trusted to be responsible.”
“But for … I wouldn’t have these problems.”

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Brain Injury and Treatment

Brain function is complicated. Even a mild insult (a medical term for injury, e.g., concussion, traumatic brain injury) can have a psychiatric impact on the sufferer.

It became apparent in the medical community that specialized training was necessary to help doctors focus on distinct aspects of addressing a brain injury. In 2011 the Board-Certified subspecialty of Brain Injury Medicine (BIM) developed.

“…disorders encompass a range of medical, physical, cognitive, sensory, and behavioral disorders that result in psychosocial, educational, and vocational consequences.”

BIM is a Board-Certified subspecialty of both Psychiatry and Neurology, by the American Board of Psychiatry and Neurology, and Physical Medicine and Rehabilitation by the American Board of Physical and Medical Rehabilitation. 

The focus of BIM is patient care and recovery for Maximum Medical Improvement (MMI).

Treatment of brain diseases like dementia and Alzheimer’s disease is included in Brain Injury Medicine.

Understanding Dementia and Medical-Legal Implications by Dr. Adhia might be of interest.

Dr. Adhia’s Hybrid Specialization

Dr. Adhia developed his interest in Brain Injury Medicine when working on forensic cases where he suspected psychiatric conditions masked or were confused by a brain injury. He decided to pursue board certification in BIM because of his natural interest in the field and desire to treat patients with brain injuries. His BIM expertise enables him to conduct forensic evaluations with added skill.

Dr. Adhia has worked on a number of cases with complications associated with brain injury. In a case study on this site he was asked to assess a man who claimed incompetence to stand trial due to delusions. Dr. Adhia found the delusions were secondary to toxicity in the brain as a result of liver failure. Not all cases are that unusual, but it is one example in which Forensic Psychiatry and an understanding of brain function inspired Dr. Adhia to obtain credentials in BIM.

Who Is Qualified to Practice Brain Injury Medicine?

The short answer is that all psychiatrists receive training in brain injuries but not to the greater depth required to be Board-Certified in Brain Injury Medicine.

Psychiatrists and neurologists receive neurological education in medical school and residency. Similarly, neurologists receive some education in psychiatry. These are different disciplines that share the study of the brain and its impact on health and behavior.

Psychiatrists and neurologists do not receive extensive training in the treatment of brain-injured patients and rehabilitation, which is the focus of BIM.

This limits the psychiatrist or neurologist’s opinions about prognosis and necessary treatment and other factors that impact monetary damages in a lawsuit.

Dr. Adhia is asked to render expert opinions in cases where both brain injury and psychiatric injury are present. In some cases, a brain injury is not adequately addressed in the opinions of other experts or treating doctors.

Brain Injury and Forensic Psychiatry: Medical and Legal Records

Medical Records

A review of the medical records requires a physician’s qualifications. Medical records include hospitalization and treatment notes, radiology, MRIs and CT scans, test results, neurology reports and lab work. Drs. Adhia and Mendes are experienced in reviewing medical records with a Forensic Psychiatrist’s eye.

Dr. Adhia is also a Medical Review Officer and thus has additional qualifications to consider toxicology reports.

Legal Records

Legal records are also relevant and can contain clues helpful to Adhia & Associates’ work. For example, reviewing the deposition testimony of other medical experts addressing brain function can be revealing inasmuch as they may report medical information not found in other records and worthy of further investigation.

What if a Forensic Psychiatrist’s opinions are limited by a lack of deeper understanding of the brain?

Brain and Mood, Behavior and Mental Performance

A traumatic brain injury (TBI) or mild traumatic brain injury (mTBI, concussion) are the most common brain injuries.

TBI may not develop into a permanent condition, but any brain injury may accompany changes in behavior, mood and mental performance, including clarity of thought, decision-making and even interpretation of reality.

Common causes of TBI or mTBI are physical assault, accidents, falls, blows to the head or repeated concussion as seen in athletes in contact sports or victims of persistent physical abuse.

Brain Injury Medicine is described on the site of the American Board of Physical Medicine and Rehabilitation, which partners with the American Board of Psychiatry and Neurology to grant BIM board certification. 

Psychiatry and Forensic Psychiatry are different from Brain Injury Medicine.

Any board certification has a high threshold of training, but specialty training differs.

Psychiatry is an independent and primary specialty granted by the American Board of Psychiatry and Neurology (ABPN.) The ABPN also board-certifies neurologists.

Board examination in psychiatry follows a 4-year residency in psychiatry. If a physician passes their Psychiatry Board Certification, they are eligible to compete for a limited number of fellowships for further training in the subspecialty of Forensic Psychiatry.

Board certification in Forensic Psychiatry is granted after fellowship training and examination, which Dr. Adhia completed in 2014. A Forensic Psychiatrist must continue to complete a high standard of continuing education including familiarity with case law impacting expert testimony.

Brain Injury Medicine, as explained above, is a subspecialty that arose out of rehabilitation medicine—treating those recovering from a brain injury, stroke or brain disease. Board certification is governed by both the ABPN and ABPMR.

What is important to know about these three disciplines?

All three disciplines require study, passing the board exam and a rigorous regimen of continuing education.

Dr. Adhia’s training in Brain Injury Medicine, Psychiatry and Forensic Psychiatry enable him to identify crossover conditions, symptoms and treatments as they apply to matters adjudicated in the Court.

Physical Medicine and Rehabilitation doctors, including specialists in Brain Injury Medicine, are trained in long-term rehabilitation, useful in a forensic/legal setting to determine prognosis and address the costs of treatment, e.g., monetary damages, should liability be proven. Dr. Adhia’s training and credentials make him better suited to contribute this information to a trier of fact than someone who does not have this training and qualifications.

Psychopharmacology: Understanding Drugs, Prescription Medications, Interactions and Addiction

Dr. Adhia has treated and evaluated drug use and the impact of misusing doctor-prescribed and over-the-counter pharmaceuticals.

Drugs introduce symptoms that impact psychiatric diagnosis

Pharmaceuticals may interact with each other or with illegal substances in unexpected ways, as Dr. Adhia has seen in case after case.

Toxic substances can be developed by the body in response to a physical illness, impacting the brain. However, toxic substances need not be ingested to do damage. In a criminal matter described in a case study, an alcoholic’s liver failure and brain injury created a toxic and mentally impaired environment considered by Dr. Adhia as part of his competency evaluation.

Medical Malpractice and Prescription Medication

In clinical practice, a psychiatrist may prescribe medication as part of a treatment regimen. The licensing to prescribe is one of several distinctions between a psychiatrist and a psychologist. (Check out “Psychiatrist vs. Psychologist.”)

Drugs as a Weapon

Dr. Adhia’s article “Date Rape Drugs: Weaponized Chemistry” provides an interesting introduction to how drugs can be used to manipulate behavior and an overview of what drugs are most often used by perpetrators and how the drugs operate.

Addiction and Substance Abuse

Psychopharmacology is the underpinning of addiction medicine. Dr. Adhia has forensically evaluated, opined and treated substance users.

Some addictive drugs and substances:

  • Addictive pain medications (Oxycontin, Vicodin)
  • Addictive anxiolytic medications (benzodiazepines often used to treat anxiety,e.g. Xanaz, Valium and Clonazepam/Klonopin)
  • Opioids (pills, heroin)
  • Alcohol
  • Cocaine
  • Methamphetamines
  • Cannabis (marijuana and chemical variants of THC, also synthetic cannabinoids like k2, spice, kush)
  • Synthetics (bath salts, N-bomb)
  • Hallucinogens (LSD, Psilocybin, PCP)
  • Tobacco (cigarettes, cigars, chewing tobacco, e-cigarettes/vaping that contain a nicotine vapor)

Psychopharmacology is the study of the effects of drugs on the mind and behavior.

There are broad families of medications including:

  • Anti-depressants – for both depression and anxiety (e.g., Prozac).
  • Anxiolytics – for anxiety (e.g., Xanax)
  • Mood stabilizers – used in treating Bipolar I and II, impulse and anger regulation related disorders (e.g., Lithium); some mood stabilizers are used in treating epilepsy as well
  • Anti-psychotic – used in treating schizophrenia and mood disorders (e.g., Abilify)
  • Stimulants – used for ADHD (e.g, Adderall)

There are many categories and subcategories of medications. Illicit substances can also fall under the purview of psychopharmacology.

Experts in psychopharmacology include psychiatrists and pharmacologists who specialize in psychiatric medications.

Of interest: Frontiers in Psychiatry: Psychopharmacology

Prescribing Medication

Doctors must obtain federal authorization to prescribe medication under the Drug Enforcement Administration (DEA).

The DEA authorizes clearance to prescribe medications in Schedule levels 1-5 based on the addictive characteristics of a drug. See DEA Drug Scheduling https://www.dea.gov/drug-scheduling

Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Some examples of Schedule I drugs are… heroin, lysergic acid diethylamide (LSD), 3,4-methylenedioxymethamphetamine (ecstasy)…”

Schedule V drugs, on the other hand, are very different.

Schedule V drugs, substances, or chemicals are defined as drugs with lower potential for abuse… antidiarrheal, antitussive, and analgesic purposes. “

The US Department of Substance Abuse and Mental Health Services Administration issues a further waiver to prescribe the highly addictive substance Buprenorphine.

Dr. Adhia holds the Buprenorphine Waiver and is therefore legally approved to prescribe Buprenorphine if medically indicated.

What is a Buprenorphine Waiver? Learn more.

Physical Evidence

To prove the presence of drug use in an individual, a toxicology report may be indicated. This is typical in cases involving drug or alcohol abuse—most commonly with a DUI. However, when a victim is drugged, a toxicology report on the victim can reveal more about drug(s) used and enable a better understanding of the impact on the victim.

Criminal / Correctional

Psychiatric Care in Prison

Treating mentally ill and violent prisoners in the Texas Department of Justice, Dr. Adhia served as a psychiatrist at the Beauford H. Jester IV Psychiatric Unit, a correctional psychiatric hospital, where he treated incarcerated men, including those in isolation (ad. seg.). He also treated at the supermax Polunsky Unit, which houses death row and other offenders.

Psychiatric conditions were sometimes associated with imprisonment or may have contributed to committing a violent crime, including cellmate murder while imprisoned. Preexisting mental illness was also diagnosed and treated by Dr. Adhia.

Impulse disorders, while not exclusive to criminal behavior, are disproportionately present in a prison population compared to the general public. For this reason, an Impulse program was developed and Dr. Adhia served as the primary treating psychiatrist.

Dr. Adhia’s patients included those with unusual psychotic disorders such as schizophrenia with hallucinations and delusions.

Suicide and self-injurious behavior were significant concerns in prison, and Dr. Adhia treated inmates exhibiting self-injurious behavior and those with suicide attempts. Self-injurious behavior can be triggered by a personality disorder or psychosis. Self-injurious behavior can include cutting, banging one’s head against a wall or intentionally seeking pain. Dr. Adhia writes further about these issues, as well as malingering, in greater detail on this page. Go to section on Malingering.

Jail vs. Prison

“Jail” is a term used to describe short-term incarceration at a local law enforcement level correctional facility. Dr. Adhia’s experience includes the assessment of jailed individuals.

Violent Crime

Dr. Adhia has conducted more than 50 evaluations in criminal settings and is recognized for his skill in correctional psychiatry. He has worked on criminal cases in military court and criminal defense.

Dr. Adhia has found TBI to be a factor in some capital cases that resulted in men being placed on death row whom he treated.

A recent capital case

Dr. Adhia consulted in an unusually complex case including a Capital Public Defendant charged with a triple homicide, and a high-profile case of homicide (matricide).

Sexual Assault

Dr. Adhia has served as an expert witness in cases involving the use of date rape drugs and sexual assault in civilian and military courts.

Standard of Care in Prisons vs. Hospitals, Clinics or Private Care Facilities

Prisons and hospitals in the corrections system have unique institutional protocols and restrictions on treatment options. Read below about the standard of care in institutions and facilities that are not in the correctional setting.

Medical Malpractice and Standard of Care in Hospitals, Private Patient Care, In-patient and Out-patient Treatment

Examples of medical care facilities and institutions that must meet standards of care

  • Hospitals and urgent care centers
  • Addiction rehabilitation treatment centers
  • Out-patient behavioral health clinics
  • Assisted living facilities where medical or nursing services are provided onsite or on-call
  • “Wellness” centers or spas that offer medical treatment
  • In-patient mental health treatment centers

Post-operative recovery in a private clinic

Some private clinics may advertise recovery facilities that are in a hotel or luxury apartment with nursing and/or medical staff available.

Standard of care in a private facility offering patient care may be subject to different protocols and laws than in correctional institutions.

 

Privately owned facilities may include addiction and/or alcohol recovery rehabilitation centers. Those that are “live-in” or in-patient will differ in services offered from an outpatient program where patients live outside the facility and visit it for treatment.  Privately owned programs may differ from services offered at a public clinic or hospital.

Privately owned surgical centers

Plastic surgery private clinics may promote an experience of luxury and convenience, but medical staff credentials and treatment protocols in such facilities might not meet the acceptable standard of care. Many such facilities indeed do offer qualified staff, medical oversight, and adherence to state licensing and regulatory agencies and rules. However, this is not always the case.

Public Hospitals, Clinics and Treatment Programs

Public, city, county, or state hospitals, clinics and outpatient treatment centers are subject to regulatory oversight.

Rehab and Medical Malpractice: An Example

Legal concerns can arise in a privately owned addiction rehabilitation facility where a patient receives treatment that is not properly supervised by a physician. Treatment of addiction is especially sensitive if side effects from withdrawal create a medical emergency.

In addition, drugs used to treat withdrawal require an appropriately skilled and qualified doctor. Dr. Adhia holds a Buprenorphine Waiver, allowing him to treat opioid addiction with this controlled substance.

A hospital usually has strict treatment protocols which, if not followed, may impact the standard of care. Both public and private hospitals are subject to licensing and regulations as well as following best practices in medically ethical treatment.

The Doctor-Patient Relationship: Has Medical Malpractice Been Committed?

The relationship between doctor and patient is governed by ethical and legal obligations. Doctors are required to maintain professional “arm’s length” treatment. Crossing the boundary can include developing an emotional or sexual relationship between the treater and patient. In general patient care, touching not indicated by medical treatment (e.g., hugging) may not withstand scrutiny.

In some cases, individuals with certain psychiatric disorders or personality types may misinterpret what is appropriate treater behavior.  Also, professional standards of care are not always understood by patients. What they may think is malpractice in fact is within ethical and legal lines. Therefore, medical malpractice may not have been committed.

You can read some of the real-world medical malpractice cases in which Dr. Adhia has been retained in the Medical Lawsuits case study page on this site.  Learn More…

Trauma, Traumatic Experiences, Disability and PTSD

Trauma body and mind response to overwhelming traumatic event.

Each Person Copes with Trauma Differently

Resiliency vs. Fragility

A resilient person’s response to trauma can be quite different from someone whose emotional state is fragile. This distinction is important to consider when an individual experiences a traumatic event. Post-traumatic stress disorder (PTSD) is just one disabling response to trauma. It’s important to understand the differences between how humans absorb and respond to an overwhelming experience.

PTSD

PTSD is by no means a common response to violence or an accident. Nevertheless, the term is often used by laypeople to describe a range of behaviors and conditions. PTSD can be brought up in litigation and is a condition that is seen in cases in every jurisdiction. Exposure to trauma is required for its diagnosis, in contrast to other disorders.

Do You Suspect Your Client Has PTSD?

Posttraumatic Stress Disorder is a complicated disease. Some symptoms can mimic PTSD, as the disorder contains elements of other conditions.  Misdiagnosis is a danger. As a damages expert, Dr. Adhia has testified to diagnosis, prognosis and treatment of PTSD. In the DSM5, PTSD is no longer categorized as a form of anxiety disorder, as it was in the past. The features of PTSD include anxiety but become significantly more complex than anxiety alone. Hallucinations in the form of flashbacks, for example, are not symptoms of an anxiety disorder but can be symptoms of PTSD. There are other symptoms that require a skilled diagnosis from a psychiatrist trained in identifying PTSD. PTSD is difficult to treat and has a long trajectory of symptoms. For that reason, a Forensic Psychiatrist considers the implications of a difficult treatment regimen that may last years.

PTSD Treatment

Treatment for PTSD generally includes medication and a constellation of treatment modalities depending on the individual. One person with PTSD may display different symptoms than another person with PTSD. For example, a disabling fear of loud noises may or may not accompany hallucinations triggered by the loud noise. Examinees are unique and must be evaluated with an open mind.

Disabling Psychiatric Trauma and Collateral Family Damage

Psychiatric trauma impacts the individual and often those who live and work with the individual. The “collateral interview” is a tool Forensic Psychiatrists use when a family member or friend is impacted by or has observed behavioral and emotional changes in the examinee.

Not every person exposed to trauma becomes disabled or displays symptoms that change how a family or workplace functions, but collateral interviews can be a useful source of information. Dr. Adhia has observed those exposed to traumatic events and the emotional fallout on the person and their families. Outside of his private practice, he also provides pro bono forensic assessments for Physicians for Human Rights, evaluating victims of human trafficking, a severe relative of kidnapping. Victims isolated from their freedom and family may manifest a range of symptoms and severe psychiatric conditions, including PTSD.

Because collateral impact on the family of a PTSD sufferer is not uncommon, Dr. Adhia may request a collateral interview with a spouse or partner as part of his forensic assessment.

PTSD can impact a person’s objectivity and insight into their own experience of life. The observations of a spouse or family member can be invaluable when available.

Index of Suspicion

A Forensic Psychiatrist is objective and brings no plaintiff- or defense-weighted approach to evaluating the presence or absence of PTSD and its relationship to the legal matter at hand. For that reason, this discussion of PTSD is not intended to presume PTSD exists, or that it is causally related to one event, or that legal damages logically follow.

Malingering (lying for secondary gain) of symptoms of PTSD can happen. Whether the “gain” is financial or emotional, a Forensic Psychiatrist is trained and qualified to consider if an index of suspicion exists for malingering. Other non-causal considerations may be pre-existing traumatic response or possible exacerbation of a pre-existing condition.

Military and the Defense Base Act

Combat-related PTSD gets a lot of press, but that is only one type of setting where trauma and PTSD may occur.

Much of Dr. Adhia’s early psychiatric training took place in VA hospitals where he treated combat veterans with service-related PTSD.  Since then, he has evaluated individuals working for private contractors in combat zones. The Defense Base Act addresses compensation to private military contractors and their employees who may develop PTSD from events that take place in combat zones. Fitness for Duty evaluations where the employee’s ability to perform their job for a private military contractor has legal application in civil court, not military court. Unlike military court, the law related to claims of wrongful termination, discrimination, on-the-job harassment and other civil law issues are heard in civil court.

What Makes Someone “Vulnerable”

Those who arrive at an experience already fragile. For example:

  • Seniors with Age-Related Diseases. Elderly and/or physically incapacitated persons can be fragile, especially if they have Dementia or another condition. This is not to say there are not resilient seniors, only that age-related diseases (including psychiatric) may contribute to being unable to defend against elder abuse, manipulation, or even violence.
  • A person with an “Eggshell Psyche. Those vulnerable due to preexisting psychiatric conditions are sometimes referred to as having an “eggshell psyche.” Regardless of age, such a person may arrive at the traumatic experience with fewer coping resources. The speed and completeness of recovery is impacted in such a person.
  • Children and adolescents have different age-related vulnerabilities. Dr. Mendes, an adult, child, adolescent and forensic psychiatrist is trained in treating and assessing trauma as it impacts young people and individuals anywhere along their lifespan.

Response to trauma is experienced differently by each person.  Resilience can play a part, as can unusual vulnerability.  Vulnerability can include a limited ability to adapt to new circumstances, pain threshold, injuries, brain injuries, dementia or Alzheimer’s disease. For example, a mentally impaired elderly person exposed to trauma may be less able to cope.

Be on the alert for:

  • Personality changes
  • Social withdrawal
  • Debilitating fearfulness of objects and actions associated with the trauma (e.g., won’t drive, afraid to sleep, won’t go outside)
  • Rejection of support or treatment
  • Misperception of reality during a hallucination
  • Suicidal thoughts or actions

Learn more:
Understanding Dementia and Medical-Legal Implications

What Constitutes Emotional Distress? Understanding Mood Disorders / Anxiety Disorders

A Mood Disorder is a category of illness marked by an unexpected or serious change in mood.

A few of the most familiar types of Mood Disorders are discussed here. Note that Anxiety Disorders are not Mood Disorders but a separate diagnostic group of symptoms.

Can you “Diagnose” Emotional Distress?

“Emotional Distress” is used in a legal matter to describe the possibility a litigated event has triggered or caused a mental health condition. It is not a diagnosis.

A common type of damages asserted in a civil Complaint is “Emotional Distress.” Emotional Distress sounds broad.  However, the nature of “distress” that is “emotional” begs the question: has a Mood Disorder developed in response to the events that have led the matter to Court?  The presence of Emotional Distress is determined by a Forensic Psychiatrist as symptoms begin to tell the story.  Any medical condition is evaluated by a physician by “ruling in” or “ruling out” possible psychiatric diagnoses, a Mood Disorder is only one possible reason for symptoms. Therefore, there is no presumption that a condition exists, or is relevant in a medical-legal context.

Anxiety Disorders

Anxiety involves excessive worrying and fear.  Anxiety disorders include Generalized Anxiety Disorder marked by a general overarching worry even when worrisome situations or events are not present. Other Anxiety Disorders include Panic Disorder, and Social Anxiety Disorder. Anxiety Disorders and Major Depressive Disorder can occur together though they are not the same diagnostically.

Real-life examples of how an Anxiety Disorder might appear:

  • Job interview causes irrational level of fear (Social Anxiety Disorder).
  • Mild confrontation produces a fight or flight level of Panic Disorder.
  • Symptoms appear randomly, like a feeling that you can’t breathe.
  • Phobias, an extreme irrational fear of things or places.

Anxiety Disorders and their symptoms are described in nearly 100 pages of the DSM5. As a Forensic Psychiatrist, Dr. Adhia is trained to identify and diagnose Anxiety Disorders. In a forensic setting, Dr. Adhia has evaluated malingered Anxiety.

What you may think is going on

The layperson, (i.e. the public, a juror, an attorney) may be influenced by popular commentary about what Mood Disorders are common. (“Armchair Psychology” is discussed on this page.)  The frequency of a particular Mood Disorder in the population is not the same as the public perception.

Depression And Mood Disorders

After an injury, Depression and/or Anxiety can develop. This does not mean there is a cause and effect relationship.

Mood Disorders include Depression and Bipolar Disorders I and II.

Did You Know PTSD is NOT an Anxiety or Mood Disorder?

PTSD is a singular diagnosis under the diagnostic umbrella of Trauma and Stressor Related Disorders. Depression and anxiety may be among the constellation of conditions that can accompany PTSD. More about PTSD here.

Diagnosis is the first step. There may be no clinical depression, for example, though symptoms are reported. Misdiagnosis is a serious concern in rendering an Expert opinion and it is not uncommon for Experts to disagree about diagnosis. The degree of diagnostic experience, clinical and forensic skill, and training is significant.

Treatment options can minimize the long term impact on the plaintiff or defendant. Treatment can mitigate damages. Because many Mood Disorders respond to medication, a Psychiatrist may address medication in rendering a forensic opinion, while a Psychologist is not qualified to prescribe and has limited ability to opine about medication treatment.

What Can Worsen Depression or Anxiety?

Pain.  In the case of a personal injury, chronic pain can make recovery difficult and depression more disabling.

Preexisting vulnerability to depression or anxiety.  An “eggshell psyche” is a medical term for an individual who is at greater risk by virtue of a personality or mental health disorder.

Exacerbating events. An injury, motor vehicle accident, fall, assault, events with strong emotional impact, relationship problems, the death of a loved one.  Any of these and more can exacerbate existing conditions or initiate a psychiatric condition like Depression.  The law, unlike the clinician’s manual, attributes degrees of severity. In Wrongful Death cases, for example, watching the death of a loved one is considered by law as a separate category from losing a loved one alone. 

Bipolar Disorder I And II

Bipolar Disorders are Mood Disorders. They are marked by extreme highs and lows and are notoriously difficult to treat. Relatively recent scientific advances in neuroscience and medicine have produced medications to treat Bipolar Disorders.  Dr. Adhia diagnoses and treats patients with Bipolar Disorders in addition to medicolegal cases.

A Bipolar Disorder that is being managed with treatment can be derailed. Notably, once managed, an emotionally turbulent or stressful event can cause a Bipolar Disorder to again become disabling and resistant to a regimen of treatment that worked previously.

Any stressor, or trauma, can make a pre-existing Bipolar Disorder worse. Examples are motor vehicle accidents, divorce, abuse, sexual assault.

Features of Bipolar Disorder.

Mania (hyperactivity, inability to sleep, speaking fast, thinking unusually fast, rushing through things) Hypomania (a less severe mania) Depression Mixed Episode where features of Bipolar Disorder occur in close proximity, swinging between Mania or Hypomania and Depression.

Personality Disorders

Psychiatrically, a Personality Disorder is a diagnostic condition in which the individual’s personality is pathological or medically significant.

The DSM5 identifies 10 distinct Personality Disorders. To make a diagnosis, a psychiatrist considers if symptoms meet criteria that meet the diagnostic threshold. He or she relies on clinical evaluation and medical background. Malingering the symptoms is known to occur. Lastly, criteria and symptoms do not always reflect publicly-held assumptions. Common personality disorders encountered in medico-legal settings are Antisocial Personality Disorder and Borderline Personality Disorder.

Impulsive Behavior

Personality Disorders like Borderline Personality Disorder may accompany impulsive behavior.

In addition to those with BPD, Dr. Adhia has treated and diagnosed Impulse Disorders which are not Personality Disorders. Impulse Disorders are evidenced by a lack of control over emotions and behavior. 

EXAMPLE: What is Borderline Personality Disorder?

Borderline Personality Disorder includes a constellation of symptoms.  In the med-legal environment, Dr. Adhia is sensitive to all elements, if this is his Diagnosis.

BPD is marked by self-image issues, difficulty managing emotions and behavior, and a pattern of unstable relationships.  Often we see self-injurious behavior, anger, impulsivity and impaired interpersonal and occupational functioning. Frequent changes in jobs or inability to get along with co-workers appropriately may accompany BPD.  Self-injurious behavior can include cutting one’s self and non-lethal suicide attempts. Self-image and self-injurious behavior may combine to manifest as an eating disorder such as bulimia or intentional starvation to lose weight.

EXAMPLE: Paranoid Personality Disorder.

Misinterpretation of the actions of others through a paranoid lens might lead a person to seek litigation to prove their perceptions are accurate or punish another for actions that appear to them to be malicious. In some cases, Paranoid Personality Disorder may appear to be malingering (intentional lying) further discussed below.

PPD is better described as a closely held belief system that is not based in reality.

Malingering: Lying For Secondary Gain

What is Malingering?

“Malingering” is intentional lying, deceiving, distortinh or feigning a nonexistent disorder for personal gain. Common motivations are financial gain, to become enriched as the result of a lawsuit, for example.

An attorney or doctor should not assume all malingering is for self-gain, financial or emotional. Psychiatric conditions can cause a person to misinterpret or reinvent a closely held belief of what is “true.” Malingering is not always intentional or malicious. As discussed below, amnesias, Paranoid Personality Disorder, Factitious Personality Disorder, or even a brain injury could explain malingering that is not intentional or malicious.

Three categories of malingering include:

  • pure malingering (feigning a nonexistent disorder)
  • partial malingering (consciously exaggerating real symptoms)
  • false imputation (ascribing real symptoms to a cause the individual knows is unrelated to the symptoms).

Specific techniques are used by a Forensic Psychiatrist in this regard. For example, I consider if the examinee is consistent in explaining events, I observe behavior and emotional response to my questions. Records are valuable tools in the clinical examination if a specialist, for example, has documented something different than the plaintiff or defendant describes. 

Knowing the difference between malingering unintentionally or intentionally lying, and the reliability of the expert’s opinion, require a high level of forensic training. Clinicians do not receive medical training to assess malingering and its legal implications.

Case study:  In a high-profile case involving men who posted on YouTube video of their rape of young girls, Dr. Adhia was asked to evaluate one of the men regarding competency to stand trial. The man suffered a brain injury as a young child which he cited in the competency matter. After two examinations and extensive assessment, Dr. Adhia  concluded the man was malingering. Read more…

Other Conditions, Examples

Brain Injuries can impact a person’s ability to assess reality.

  • Amnesia, which can be short-term, long-term, permanent or undefined.
  • Psychosis (Schizophrenia, hallucinations)
  • Delusions

The most common explanation for malingering is greed, but it is not the only explanation.

Personality Disorders and Malingering: Diagnostic Concerns

Malingering: Lying vs. Perception vs. Reality

What appears to be malingering can instead be inconsistent statements due to other psychiatric conditions. This might look like lying.

Personality Disorders, for example, reflect behaviors and beliefs that can cause a distortion in how a person perceives the world. Malingering can reflect such a distortion.

It isn’t necessarily the most likely explanation, but it is one a Forensic Psychiatrist would consider if signs are present. For example, Paranoid Personality Disorder may produce unintentional or non-malicious report of a distortion of events, feelings and emotional reactions. PPD is the misinterpretation of the intent of others and their behavior. Such a person may believe they are telling the truth as they say it, but their perception itself is distorted.  However, Paranoid Personality Disorder can produce a driving need for validation which can only be resolved by a jury or judge. Such an individual is less likely to accept a settlement in lieu of a final judgment of “exoneration.”

The malingerer who seeks financial gain, on the other hand, will see settlement negotiations differently.

Who Has the Tools to Detect Malingering?

An examination by a Forensic Psychiatrist draws on tools and techniques to detect malingering (if present) which are an important part of Fellowship-training and a requirement for Board-Certification in Forensic Psychiatry after 1999.  (Earlier Psychiatrists were “grandfathered” in to Forensic Psychiatry Board-Certification.)  Attorneys who retain fellowship-trained Forensic Psychiatrists can be assured they are educated about detection of malingering.

Even many years after fellowship, this skill deepens with experience and in med-legal work, it is essential. Dr. Adhia has been assessing malingering for a decade in forensic  and clinical settings.

Suicide and Suicidology

Thinking about suicide or feeling hopeless?

There is help for you. Reach out!

Dial 988 or call 1-800-273-8255

Considerations: Legal Questions

At-risk. What makes a person at-risk to attempt suicide? Dr. Adhia has treated patients at high risk for Suicide or a Suicide attempt throughout his career. Complicating questions he considers, in addition to events that give rise to litigation or criminal behavior, are medications and pre-existing conditions such as Major Depressive Disorder (MDD) or Bipolar Disorder.
High-risk behavior. Russian Roulette is an example of high risk behavior. “Death-defying” acts are high-risk.  This does not mean the individual wants to commit suicide. For example, they  may have an Impulse Disorder.

Self-harm behavior, like “cutting,” or other non-suicidal self-injury (NSSI) can be confused with a suicide attempt. A forensic IME is necessary to make the right diagnosis. Self-harm is not always associated with suicidal intent, supported by clinical evidence and in Dr. Adhia’s clinical experience.

What is Suicidology?

Suicidology is a field of study about suicide. It addresses the nature of suicide and people who are at greatest risk for attempting suicide.  In litigation, someone who has attempted suicide may believe it is the result, or fault, of another’s actions and claim for recompense. When a person commits suicide, family members may sue for wrongful death.

Evaluating if a Mood Disorder exists is one piece of the Forensic Psychiatrist’s job in such cases. Certain mood disorders have been found to increase the risk for suicide attempts. Many people believe suicide is always and only associated with severe Depression.  This incorrect.

An attempted suicide is sometimes a “cry for help.” It may be a response to overwhelming grief and/or severe depression, for example.  That does not mean it is the inevitable outcome of circumstances giving rise to litigation.

Dr. Adhia assesses individuals who have attempted suicide. He may request an Independent Medical Examination.  On the other hand, where there is a completed suicide (death), records, history and observations are essential.  

Dr. Adhia notes that in a wrongful death lawsuit, if the cause of death is unclear and the circumstances suggest possible suicide, he is qualified, as a licensed physician, to review an autopsy report and other records to come to forensic conclusions about a person who is no longer alive to tell their own story.