FORENSIC PSYCHOLOGIST | DR. MARK LERNER

EMOTIONAL DISTRESS CLAIMS

DR. MARK LERNER

EMOTIONAL DISTRESS CLAIMS

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FORENSIC EVALUATION &

PSYCH RECORD REVIEW

"Your meticulous work is invaluable for plaintiff and defense attorneys."

LAW NEWS TODAY

Psych Record Reviews

Forensic Evaluations

FORENSIC PSYCHOLOGICAL SERVICES

Focusing on Forensic Evaluation and

Psych Record Review

Forensic psychologists focus on the intersection of psychology and the legal system. Dr. Lerner specializes in three areas: 1. Emotional Distress Claims, 2. Fitness for Duty Evaluations, and 3. Fitness to Practice Evaluations.

"Psychological injuries"—often referred to as the negligent or intentional infliction of emotional distress, are frequently overlooked. These are the psychological and functional problems caused by another person's or entity's actions.

Today, there is an increasing awareness of the impact of emotional distress, as evidenced by the following:

• The United States spends more money treating mental disorders than any other disease or medical condition.

• Anxiety disorders are the most common mental health illness in the United States.

• Depression is now the leading cause of illness and disability worldwide.

Lawyers and pro se parties must determine whether an individual is grappling with emotional distress and, if so, how it is impacting the client's functioning.

Emotional Distress Claims

There is virtually no limit to the amount a jury may award for egregious emotional distress & pain, and suffering.*

Dr. Lerner specializes in emotional distress claims by providing:

1. Forensic Evaluation, and

2. Psych Record Review.

1. Forensic Evaluation

To substantiate the presence of egregious emotional distress, there must be supportive medical and/or psychological documentation. When there are a paucity of data concerning the severity and duration of a plaintiff's condition, Dr. Lerner may be called upon to conduct a Forensic Psychological Evaluation.

Psychological evaluation provides attorneys with a comprehensive report focusing on the reason for referral, an extensive discussion regarding the event(s) that prompted the evaluation, the plaintiff's history, their mental status, a review of their functioning, objective psychometric test results, current symptomatology, diagnostic impressions, the proximate cause of the plaintiff's distress, the prognosis, recommendations, etc.

By obtaining clinical and empirical (e.g., psychometric test) data, a forensic evaluation can empower counsel to prove or disprove claims of egregious emotional distress.

Dr. Lerner introduced the term "Personal Psychological Injury" to address the often overlooked and minimized psychological and functional damages caused by traumatic events. He has served as an expert witness for both plaintiffs and defendants in legal matters involving:

• bullying

• child abuse

• rape

• sexual assault

• sexual harassment

• defamation

• discrimination

• hostile work environments

• wrongful termination

• wrongful psychiatric hospitalization

• employment matters

• motor vehicle accidents

• train accidents

• personal injury

• dog bites

• medical malpractice, and

• other civil matters.

Due to licensing laws, Forensic Psychological Evaluations are conducted only when the client is in the State of New York.

2. Psych Record Review

Attorneys receive psychiatric, psychological, and other mental health evaluations—progress notes, medical records, education records, employment records, witness reports, police reports, and depositions.

Psych Record Review empowers attorneys to prove or disprove claims of emotional distress, and pain and suffering. This process can be instrumental in determining whether an event was the proximate cause of the plaintiff's alleged emotional and functional difficulties.

Dr. Lerner provides counsel with precise and impactful questions that can be posed to mental health professionals during depositions and trials.

Psych Record Review enables plaintiff or defense counsel to identify strengths and weaknesses in clinical documentation, understand empirical psychometric test results, pinpoint critical findings, and provide unsettling questions that mental health experts do not want to hear.

In just days, Dr. Lerner provided critical questions that reinforced our

legal strategy and obviated the need for costly protracted reevaluation."

Unlike a testifying expert or treating therapist, a forensic consultant functions under the cover of the attorney's work product. Since Psych Record Review does not involve evaluation, diagnosis, treatment, or prevention of disorders, it falls outside the realm of the professional practice of psychology.

With his unique understanding of emotional distress claims coupled with nearly four decades of experience, Dr. Lerner extends confidential consultation services to attorneys nationwide.

The Second Circuit Sorts Emotional Distress Into Three Categories:

“Garden-Variety,” Significant,” and “Egregious”

Garden-Variety emotional distress claims merit awards ranging from $30,000 to $125,000. Such awards have been rendered in cases where the evidence of harm was presented primarily through the testimony of the plaintiff in the absence of medical/psychological corroboration.

Significant emotional distress claims merit awards ranging from $50,000 to $200,000. These claims differ from garden-variety claims in that they are based on more serious/substantial harm or more offensive conduct and are often corroborated by witnesses and/or medical/psychological documentation.

Egregious emotional distress claims merit awards well in excess of $200,000. These claims differ from significant emotional distress claims when the defendant's conduct was “outrageous and shocking” or when the plaintiff’s physical health was significantly impacted.

In all cases, having psychiatric and/or psychological documentation that substantiates emotional and functional problems will increase the likelihood of an award for emotional distress & pain and suffering.

The “Egregious Emotional Distress” Checklist

Attorneys who observe emotional problems and functional impairment often question whether pursuing a claim of emotional distress is advisable.

While there are “garden-variety” and “significant” claims of emotional distress, cases involving “egregious” emotional distress often result in awards well over $200,000.

The following checklist is a "litmus test" to determine if you are experiencing egregious emotional distress. The more items endorsed, the greater the likelihood that you have such a claim.

You:

❏ are struggling with anxiety, anger, and/or depression.

❏ are having difficulty functioning.

❏ have been experiencing physical/health problems since the event.

❏ have turned to a mental health professional for help.

❏ have faced an experience that was outrageous or shocking.

❏ are grappling with another person's or entity's negligent or intentional actions.

❏ are experiencing sleep or eating problems.

❏ feel frequent heart pounding/racing.

❏ have nightmares.

❏ have difficulty concentrating.

❏ are withdrawing from others.

❏ created a journal describing what happened.

❏ have little or no energy.

❏ have family, friends, and/or coworkers who can attest to the event(s).

❏ feel embarrassed and/or humiliated.

❏ have lost self-confidence.

❏ are struggling with chronic headaches.

❏ are experiencing chest pain or stomach pain.

❏ experience panic attacks.

❏ feel jumpy or easily startled.

❏ feel like a failure.

❏ have difficulty remembering what happened.

❏ were prescribed psychotropic medication.

❏ have incurred medical bills and/or out-of-pocket medical expenses.

❏ have lost wages.

❏ are experiencing chronic pain.

❏ have frequent periods of crying.

❏ struggle with feelings of guilt.

❏ have lost interest in sex.

❏ have pursued medical treatment.

❏ have experienced self-destructive ideation.

❏ turned to alcohol or illicit substances.

❏ have become agitated or violent.

❏ have frequent recollections of the event(s).

❏ have text messages/email where you described what happened.

❏ are struggling with “triggers” of the event(s).

❏ have a loss of interest in activities that he/she enjoyed.

❏ are experiencing feelings of hopelessness.

❏ are hypervigilant (e.g., watchful, cautious, or on guard).

Egregious Emotional Distress:

Five Critical Questions

1. Were you harmed as a result of someone’s negligent or intentional actions?

2. Have you experienced an event that was outrageous and shocking?

3. Are you experiencing emotional and functional problems?

4. Are you facing health problems since the event?

5. Has your experience been documented?

Fitness for Duty Evaluations

Psychological Fitness for Duty evaluations are conducted to determine if an individual is mentally fit to perform the requisite functions of their job. These evaluations are typically required for employees in high-risk occupations, such as law enforcement, aviation, and national security, to ensure that they are not experiencing any psychological issues that could compromise their ability to work safely and effectively.

Dr. Lerner conducts detailed interviews, reviews collateral records, and administers psychological tests during these assessments. The purpose of these evaluations is to identify any mental health conditions that may impact the individual's job performance, such as depression, anxiety, or posttraumatic stress disorder (PTSD).

Dr. Lerner conducts fitness for duty evaluations for numerous professions, including candidates for law enforcement positions, police officers, correction officers, probation officers, school safety agents, traffic enforcement agents, and police communications technicians. He additionally evaluates emergency medical service and fire service candidates, including emergency medical technicians, paramedics, and firefighters.

Dr. Lerner additionally conducts Fitness for Duty Evaluations with diverse professions, including educators (e.g., teachers and university professors), construction workers and truck drivers, journalists and commentators, entertainers, professional athletes, etc. Finally, Dr. Lerner regularly conducts evaluations to determine the psychological suitability of civilians to obtain gun or firearm permits.

Fitness to Practice Evaluations

Psychological Fitness to Practice evaluations can be invaluable in medical malpractice cases as they provide insight into a healthcare professional's mental and emotional well-being. These evaluations can determine if the healthcare professional has any psychological conditions or impairments that could affect their ability to provide safe and effective care.

For example, an evaluation might uncover that a physician is significantly anxious or depressed, which could lead to negligence or errors in patient care. An evaluation might also uncover substance abuse issues that could impair a healthcare professional's judgment or ability to perform their duties.

In addition to assessing a healthcare professional's mental health, Psychological Fitness to Practice evaluations can also provide recommendations for treatment or intervention that could help prevent future malpractice incidents.

Overall, Psychological Fitness to Practice evaluations can be a valuable tool in medical malpractice cases to help determine the proximate cause of an incident and prevent future incidents from occurring.

Dr. Lerner has conducted Psychological Fitness to Practice evaluations with healthcare providers, including physicians, nurses, physician assistants, pharmacists, dentists, physical and occupational therapists, and mental health professionals.

Every Fitness for Duty and Fitness to Practice evaluation is tailored to meet the unique needs of the client, employer, and/or his or her attorney.

* While there is no cap on the amount a jury may award for emotional distress & pain and suffering in New York, there are caps in some states.

Forensic Psychological Evaluation with Plaintiffs

Who Have Experienced Emotional Distress

by Mark D. Lerner, Ph.D.
Clinical & Forensic Psychologist
Chairman, National Center for Emotional Wellness

When it comes to legal cases involving emotional distress, a Forensic Psychological Evaluation can be the key to persuasively demonstrating the significant and egregious impact experienced by the plaintiffs. By delving into the psychological and functional aspects of a plaintiff's life, this evaluation can add substantial value to their case.

First and foremost, a Forensic Psychological Evaluation enables plaintiffs to establish a firm connection between the traumatic event and the ensuing emotional distress. By employing a range of scientific methods, including interviews, psychometric testing, review of records, and observations, the forensic psychologist can uncover underlying psychological factors that contribute to the plaintiffs' distress. This evidence-based approach presents a compelling case, adding an objective and professional perspective to their subjective experiences.

Moreover, the Forensic Psychological Evaluation provides an opportunity for the plaintiffs to validate their emotional distress by having a trained expert attest to the legitimacy and severity of their psychological anguish. This validation is crucial because emotional distress can often be an invisible and intangible element of a claim, making it challenging to convince others of its impact. With the support of a thorough evaluation, plaintiffs can present undeniable evidence of their suffering, leaving no room for doubt.

Additionally, the Forensic Psychological Evaluation aids in quantifying the extent of emotional distress endured by the plaintiffs. By employing standardized tests and diagnostic criteria, forensic psychologists can assign a clinical diagnosis and objectively measure the severity of their client’s distress. This quantification adds a tangible and measurable element to the case, making it easier for legal professionals and juries to comprehend the true extent of the plaintiffs' emotional hardships.

In conclusion, a Forensic Psychological Evaluation can truly be a game-changer when it comes to showcasing the significant and egregious emotional distress experienced by plaintiffs. It introduces objectivity, validates the plaintiffs' experiences, and provides quantifiable evidence, ultimately adding substantial value to their case. Through this comprehensive evaluation, the plaintiffs' claims can gain the credibility they deserve, helping them seek justice for the emotional trauma they have endured.

Leveraging Psych Document Review & Forensic Evaluation:

Empowering Defense Attorneys Against Frivolous Emotional Distress Claims

by Mark D. Lerner, Ph.D.

Clinical & Forensic Psychologist

Chairman, National Center for Emotional Wellness

Defense attorneys often find themselves grappling with baseless claims of emotional distress—these claims, while burdensome and frivolous, can significantly impact the credibility and reputation of clients. However, defense attorneys now have a compelling strategy to effectively dismantle such allegations by incorporating Psych Document Review and Forensic Evaluation into their defense tactics.

Psych Document review involves meticulously scrutinizing relevant medical records, therapy notes, and other mental health reports to understand the claimant's mental state comprehensively. It helps defense attorneys identify any pre-existing mental health conditions, inconsistencies, or discrepancies that could cast doubt on the validity of emotional distress claims.

By combing through these documents, defense attorneys gain insights into the claimant's mental health history and potential misattributions of emotional distress and evaluate the severity and impact of any pre-existing conditions. Armed with this knowledge, defense attorneys can build a stronger defense by highlighting the lack of causation, exaggeration, malingering, or even providing an alternative explanation for the alleged emotional distress.

However, Psych Document Review is only half of the equation. Forensic Evaluation is crucial in bolstering a defense attorney's defense strategy. A forensic evaluation is conducted by qualified mental health professionals with expertise in assessing emotional distress claims in a legal context. These evaluations help determine the psychological impact, authenticity, and severity of alleged emotional distress.

During the Forensic Evaluation process, the mental health expert leverages their knowledge of criteria for diagnosing mental health conditions, evaluates the claimant's testimonies, and conducts thorough assessments to ensure credibility. This evaluation provides an objective analysis, allowing defense attorneys to effectively challenge exaggerated or fabricated emotional distress claims, ultimately weakening the opposing side's case.

Incorporating Psych Document Review and Forensic Evaluation into a defense strategy is a game-changer for defense attorneys facing frivolous emotional distress claims. Defense attorneys can dismantle such claims, protect their clients' reputations, and ensure a fair, just legal process by unearthing crucial evidence, inconsistencies, and expert evaluations.

In conclusion, defense attorneys can greatly benefit by incorporating mental health document review and forensic evaluation when defending against frivolous claims of emotional distress. This strategic approach equips attorneys with valuable insights, evidence, and expert opinions that can effectively challenge such claims' authenticity, severity, or causation, ultimately leveling the playing field in the courtroom and ensuring the best possible outcome for their clients.