Independent Examiners Meet Managed Care?

In the past the ability of independent examiners or expert witnesses to write their own contracts and set their own terms has pulled psychiatrists away from clinical work burdened by third-party intrusions and low reimbursement. My recent experience with the Department of Health of the State of Washington suggests forensic clients have started to "manage" in similar ways.

The state Department of Health recently asked me to perform an independent psychiatric examination of a healthcare licensee. According to my custom I asked for a signed copy of my retainer agreement. Not only did I not receive my retainer agreement, but instead I received several department documents that I must sign in order to proceed. A few of these deserve comment. 

One document entitled "Convenience Contract for Expert Services" included this paragraph:

"IX. INDEMNITY

"Pursuant to statute and case law, EXPERT, in performing this contract, releases and agrees to hold DOH harmless from any claims, demands, loss of any nature, and all other causes of action, at law or equity, arising out of EXPERT or EXPERT’s employees, agents, or subcontractors willful or negligent acts, errors, or omissions."

This may sound "harmless" enough to the uninitiated, but what it really means is that if the state has to pay damages in a lawsuit that can be attributed to my negligence I must reimburse the state. It is more or less equivalent to paying damages in a professional malpractice suit. An examinerl might assume her professional liability insurance would cover this kind of risk. However, a quick call to my malpractice insurer confirmed that my policy specifically excludes coverage for such "indemnification." Since I am hardly wealthy enough to thus indemnify the great state of Washington I declined to take the case.

But that was not the only problem. Another document included this "Protocol for Conducting a Mental/Physical Health Evaluation for a Nurse" listing expectations of what I should evaluate:

"Appropriate and sufficient evaluation and testing to fully assess Respondent's physical and mental condition, including but not limited to:

1. Cognitive ability: Practicing as a nurse requires the ability to analyze and synthesize complex scientific, clinical, diagnostic, quantitative, and qualitative data quickly and accurately. Evaluation should include Respondent's critical thinking skills, judgment and problem-solving ability, decision-making, prioritization, and organizational skills;

2. Mental acuity, alertness, memory: Ability to be present and aware; to observe and rapidly assess a situation and develop a reasonable plan of action; divided attention skills. Ability to retain and recall essential and pertinent information;

4. Ethics and moral character: Truthfulness, compassion, empathy, selflessness, ability to maintain professional boundaries;

6. Physical ability: Physical strength and stamina, manual dexterity, mechanical ability"

Items 1 and 2:

In my opinion these items exceed the scope of a psychiatric evaluation as they require assessment of professional skills.

Item 4:

Judgments regarding ethical conduct properly belong in the jurisdiction of the respective professional association. The judgments regarding morality might better be made by a priest, mullah or rabbi.

Item 6:

This is a psychiatric examination, right? When I brought these problems to the attention of the department, state staff attorney Miranda Bayne wrote in an e-mail, "I was surprised to see your concerns..." and "You are not being asked to assess her ability to perform specific nursing tasks, except as may be implicated by her mental state. The protocol is also a standard document, and we have not had challenges from other experts in the past, to my knowledge."

Indeed, it would appear that most "experts" either do not understand concepts like indemnification or are simply willing to sign whatever agreement a client puts in front of them in order to generate revenue. We can hardly fault the department for trying to protect the state financially with the indemnification agreement, but I am left with the impression that this involves exploitation of ignorance and greed. However, I would question the ethics of any physician who undertakes to opine as to the ethical or moral characteristics of another professional.

Just like the corresponding trend in clinical medicine, until psychiatric independent examiners have the courage and integrity to refuse this kind of exploitation it will likely increase, and as more experts agree to work only on their own terms the quality of experts will deteriorate. Let us give staff attorneys more surprises. Let us disabuse them of the notion that "standard" means acceptable, and that bureaucrats or attorneys can decide what physicians will and will not do for money.

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