Challenging Clinical Judgment
We look for what we know,
We find what we look for......
Goethe
Overview
When testifying in legal proceedings, mental health professionals frequently express opinions based on their “clinical judgment.” They often preface their conclusions saying, “In my clinical opinion...,” or “Based on my clinical judgment ...” It might seem reasonable to assume that the education, training, and accumulated experience of these professionals confer expertise on their clinical judgments. Nevertheless, this assumption is more often mistaken than not[1]
Clinical judgment refers to the subjective impressions and opinions mental health professionals develop over years of treatment work.[2] In response to their therapy endeavors, they formulate intuitive theories about their patients and the problems they present. Unfortunately, clinical judgment typically involves biased notions and skewed expectations reflecting the preconceived thinking of the therapist.[3] Consequently, we at LitigatorsHandbook.com feel it is altogether necessary to ask: “Do opinions based upon clinical judgment, actually assist a trier of fact’s decision-making?” [4]
Stop and think for a moment about the sources of clinical judgment. Who are these mental health professionals seeing day-after-day? They work with people presenting various kinds of psychological problems and related distress. The basis of their clinical judgment is built upon years of experience with this particular sample of folks. Because they work primarily with a clinical population, mental health professionals cannot claim expertise with normal populations.
Overlooking Normalcy
In a 1976 study, a group of mental health professionals, and a group of undergraduate college students, observed 1‑minute videotape segments of 10 different children[5]. Five of these children were intellectually normal, and five of them were intellectually impaired or developmentally disabled. The observers were asked to estimate the level of intellectual functioning of each child.
Compared to the college students, the mental health professionals reported lower estimates of intellectual functioning for all the children. The college students also made more accurate estimates for the normal children. Because their work typically confines itself to a maladjusted population, mental health professionals’ exhibit an exaggerated sensitivity to deficits or shortcomings. This kind of sensitivity leads them into underestimating the strengths and capacities of normal populations.
In seeking evidence of maladjustment or psycho-pathology, mental health professionals frequently ask themselves why someone could be disturbed. Speculating about why some condition exists, leads people into unwarranted confidence that the condition does exist. At LitigatorsHandbook.com we consider, for example, a 1977 study in which participants read a story about a hypothetical person, “Shirley K.”[6] After reading the story about “Shirley K”, some of the participants were asked to explain why she might have committed suicide. Other participants were asked to explain why she might have contributed financially to the Peace Corps. The participants were informed that these events ‑ suicide or financial contributions ‑ were entirely hypothetical. Whether or not such events had actually transpired remained unknown.
After explaining why “Shirley K” might have engaged in some hypothetical action ‑ suicide or financial contributions ‑ the participants were asked to assess the likelihood of the event they had explained. Compared to other hypothetical events they had not explained, the participants rated the event they had explained as much more likely to have occurred. In other words, participants who explained why “Shirley K” might have committed suicide, rated suicide as a more likely event in her life. Participants who explained why “Shirley K” might have made financial contributions to the Peace Corps, rated these financial contributions as a more likely event in her life.
At LitigatorsHandbook.com we realize that like the participants in the “Shirley K” study, mental health professionals frequently ask themselves why a patient exhibits some presumed condition. They ask themselves, for example, “Why is this person depressed, or anxious, or thought disordered?” These very questions, can profoundly bias their conclusions. The questions themselves create biased expectations. Determined in their quest to ascertain why a patient exhibits the presumed condition, they overlook an alternative hypothesis ‑‑ The patient does not exhibit the condition at all.
At LitigatorsHandbook.com we understand that mental health professionals also evaluate patients by judging the extent to which their symptoms correspond to the diagnostic criteria for some disorder. These symptoms, however, also frequently occur in normal populations. For example, personality traits such as repression, displacement, and isolation are considered signs of psycho-pathology. Nevertheless, those traits cannot reliably discriminate between maladjusted and normal males because both groups exhibit them almost equally.[7] Unfortunately, mental health professionals commonly ignore this kind of data; and as a result, they can see abnormality anywhere and everywhere even when evaluating normal people[8]. They frequently find evidence of maladjustment not because it really exists, but merely because they expect to discover it.
Cross‑examining the Disregard of Normalcy
1. Your waiting room is not exactly cluttered with normal people who are well‑adjusted ‑‑ Correct?
2. Dr. X, would you agree that mental health professionals do not know a lot about normal, well‑adjusted people?
3. Because when all is said and done, normal, well‑adjusted people typically don't need your services ‑‑ Correct?
4. In your practice, you are exposed to maladjustment and psychopathology much more often than to normal and well‑adjusted people ‑‑ Correct?
5. Therefore, you must agree that mental health professionals are not exactly experts about people who are normal and well‑adjusted ‑‑ Correct?
6. Because being normal and well‑adjusted involves much more than the absence of maladjustment or psychopathology ‑‑ Correct?
[USE THE 22 FOUNDATIONAL QUESTIONS FROM PREVIOUS POSTS
IF YOU HAVE NOT YET DONE SO]
7. The Journal of Consulting and Clinical Psychology is a generally recognized and accepted, peer‑reviewed journal in your field ‑‑ Correct?
8. And a 1976 article in the Journal of Consulting and Clinical Psychology ‑ titled “An Experimental Videotape Technique Evaluating Trainee Approaches to Clinical Judging" ‑ authored by Garner and Smith could be relevant to your opinions in this case ‑‑ Correct?
9. Concerning this research, I’d like to ask you this hypothetical question which involves these five steps:
[Consider printing these five steps on a piece of paper you can hand to the witness]
(1) A group of mental health professionals, and group of undergraduate college students, observed 1‑minute videotape segments of 10 different children.
(2) Five of the children were intellectually normal, and five of the children were intellectually impaired or developmentally delayed.
(3) The observers were asked to estimate the level of intellectual functioning for each child.
(4) Compared to the college students, the mental health professionals made less accurate estimates of the intellectual functioning of the normal children.
(5) Compared to the college students, the professionals reported lower estimates of the intellectual functioning of the normal children.
And now my question: this 1976 article demonstrates that because mental health professionals see cases of maladjustment and psychopathology so frequently, they underestimate the strengths of normal populations ‑‑ Correct?
10. Have you published any data in a peer‑reviewed journal necessitating we reconsider the 1976 findings of Garner and Smith?
11. Can you cite any data published in a peer‑reviewed journal necessitating we reconsider the 1976 findings of Garner and Smith?
12. Without the availability of other data necessitating reconsideration of the 1976 findings of Garner and Smith, their results ‑ published in a generally recognized and accepted peer‑reviewed journal ‑ are regarded by your profession as generally recognized and accepted ‑‑ Correct?
13. In other words, your profession generally recognizes and accepts that mental health professionals underestimate the strengths of normal populations ‑‑ Correct?
14. You came to the conclusion that Mr. Smith exhibits _____, ____, and _____ ‑‑ Correct? [Simply fill in the blanks with the terms corresponding most closely to Dr. X's conclusions]
15. And in arriving at your conclusions, you asked yourself ‑ as any responsible mental health professional would do ‑ why is Mr. Smith _____, _____, and _____ ‑‑ Correct?
16. And you probably entertained various possibilities as to why Mr. Smith is _____, _____, and _____ ‑‑ Correct?
17. Are you aware that asking yourself why some condition exists can mistakenly lead you into assuming that the condition does exist ‑‑ when in fact it does not?
18. The Journal of Personality and Social Psychology is a peer‑reviewed journal that is generally recognized and accepted by your profession ‑‑ Correct?
19. And a 1977 article titled “Social Explanation and Social Expectation: Effects of Real and Hypothetical Explanations on Subjective Likelihood” ‑ authored by Ross and his colleagues ‑ that appeared in the Journal of Personality of Social Psychology could be relevant to your opinions in this case ‑‑ Correct?
20. Concerning this research, I=d like to ask you this hypothetical question which involves these eight steps:
[Consider printing these eight steps on a piece of paper you can hand to the witness]
(1) In this study, often called the “Shirley K” study, all the participants read the same story about a young woman named Shirley K.
(2) After reading the story, some of the participants were asked to explain why Shirley K might have committed suicide
(3) Another group of participants in the experiment were asked to explain why Shirley K might have made financial contributions to the Peace Corps
(4) The events they attempted to explain ‑ suicide or financial contributions ‑ were purely hypothetical events that may or may not have happened
(5) And then the participants who explained why Shirley K might have committed suicide were asked to rate the likelihood that she actually did commit suicide.
(6) Compared to other hypothetical events, these participants rated suicide as a much more likely event in Shirley K’s life.
(7) And the participants who explained why Shirley K might have made financial contributions to the Peace Corps were asked to rate the likelihood that she actually made those contributions.
(8) And compared to other hypothetical events, these participants rated contributions to the Peace Corps as a much more likely event in Shirley K’s life.
Now my question: - Attempting to explain why some event might have occurred leaves people more convinced that the event did occur ‑‑ Correct?
21. Have you published any data in a peer‑reviewed journal necessitating we reconsider the 1977 findings of Ross and his colleagues?
22. Can you cite any data published in a peer‑reviewed journal necessitating we reconsider the 1977 findings of Ross and his colleagues?
23. In other words, your profession generally recognizes and accepts that attempting to explain why some event might have occurred leaves people more convinced that the event did occur ‑‑ Correct?
24. And you previously indicated asking yourself why is Mr. Smith _____, _____, and _____ ‑‑ Correct? [See Question #15]
25. Therefore, asking yourself why Mr. Smith might be _____, _____, and _____ could have mistakenly persuaded you that Mr. Smith is _____, _____, and _____ ‑‑ Correct?
[1]. Faust, D. & Ziskin, J. (1988). The expert witness in psychology and psychiatry. Science, 241, 31-35.
[2]. See generally: Sales, Shuman & O=Connor (1994) Admissibility into evidence of child sexual abuse memories, 2 Shepard’s Expert and Sci. Evid. Q. 389.
[3]. Courts have responded to this dilemma under a relevancy approach by admitting opinion testimony if it is relevant to an issue in dispute in litigation, if the proposed witness had the qualifications to be labeled by the court as an expert on the issue, and if it can help the jury in its determination.
[4]. See, ie: Dawes, R.M. (1994). House of cards: Psychotherapy built on myth. New York: Free Press.
[5]. Garner, A.M. & Smith, G.M. (1976). An experimental videotape technique evaluating trainee approaches to clinical judging. Journal of Consulting and Clinical Psychology, 44, 945-950.
[6]. Ross, L., Lepper, M.R., Strack, F. & Steinmetz, J.L. (1977). Social explanation and social expectation: Effects of real and hypothetical explanations on subjective likelihood. Journal of Personality and Social Psychology, 35, 817-829.
[7]. Vaillant, G.E. (1985). Archives of General Psychiatry, 42, 107-118.
[8]. Livermore, J.M., Malmquist, C.P. & Meehl, P.E. (1968). On the justifications for civil commitment. University of Pennsylvania Law Review. 117.
