The Remote Expert Witness
by Sanjay Adhia, M.D., MRO, Forensic Psychiatrist at Forensic Psychiatry Now
The COVID-19 pandemic has upended and disrupted many industries. Healthcare is no exception. Similar to most medical Expert Witnesses, I am engaged in clinical care, specializing in forensic psychiatry.
Psychiatry is naturally well-suited for remote telemedicine. Telepsychiatry involves remote psychiatric examinations utilizing video-conferencing or sometimes a telephone. Prior to the pandemic, telepsychiatry was already becoming more common because it provides greater access to care and is more convenient.
My experience with telepsychiatry began while working in the Texas prison system. I previously covered the Polunksy prison unit remotely via telemedicine one day a week in addition to my primary on-site role at a psychiatric prison unit. Both of my current clinical roles have transitioned to telepsychiatry, which is considered to be a “validated and effective practice of medicine,” by the American Psychiatric Association (APA). Telepsychiatry provides insight into one area often overlooked by allowing psychiatrists to obtain data about a patient’s home environment.
Parallel to my experience with clinical care, I had utilized videoconferencing technology as an expert witness prior to the pandemic. I once conducted an independent medical examination of a defendant in an Arizona case while she was in Panama. For the defendant to travel to Houston, Texas (where I am located), or for me to travel to Panama, would have been cost-prohibitive and highly inconvenient. Despite the remote Independent Medical Examination, the plan was to provide on-site testimony in Arizona. At the last minute, the prosecution offered the defendant a favorable settlement and my testimony was no longer required.
With the growing use of telepsychiatry clinically, one can anticipate that it will be used with increased frequency in medical malpractice cases. Many jurisdictions require the same standard of care necessitated for in-person care to be applied to telepsychiatry.
After the onset of the pandemic in 2020, both remote Independent Medical Examinations and video testimonies became more readily accepted. Due to health concerns, I have been completely socially distanced and currently only work remotely. I have been involved in over a dozen Independent Medical Examinations since the pandemic began with only one requiring an on-site examination, which I declined. I once testified in court remotely, as well.
Despite these benefits, remote forensic evaluation does present several drawbacks. The evaluator will no longer have control of the environment of the examinee. For example, there may now be a correctional officer present when examining an incarcerated defendant. Additionally, psychological testing may not be able to be utilized remotely. There are some assessments, however such as the Montreal Cognitive Assessment (MoCA), that have virtual versions. It is recommended to indicate the remote nature of the exam in a forensic report.
There are several considerations for remote depositions and testimonies, as well. The parties would have to consider whether everyone will be able to see each other on video. There should be an agreement on when expert witnesses can review documents. Pre-testimony preparation will also need additional consideration.
I have had a favorable experience working remotely as an expert witness. With the arrival of the COVID-19 vaccine bringing eventual herd immunity, I anticipate many Independent Medical Examinations, depositions, and in-court testimonies will return to in-person, particularly in complex or high-profile cases. However, I believe many attorneys and other entities will more readily accept and sometimes even prefer virtual Independent Medical Examinations and video testimony due to the convenience and reduced cost.
