Issue No. 1:     To Touch  or Not to Touch

In the first session, Katherine engages in some touching of Adam’s arm. Generally , the issue of touch should be addressed at the  being or the first session, perhaps even in an informed consent.  In the movie, Adam e did not respond particularly positively and remarks that it feels like a seal flapping.  Katherine then suggests that perhaps she can touch him a little bit more softly and slower.  Rather than discussing the clinical Implications, the therapist engaged in  a demonstration of another type of touch. As noted by Zur (2007) touching can be appropriate in certain clinical situations.  However, was Katherine’s playful, almost frivolous touching entering into a zone of a boundary violation?

Issue No. 2 – Self-Disclosure:

There is a significant difference between personal and professional self-disclosure.  For example, it is perfectly appropriate for a psychologist or psychotherapist to indicate where they went to graduate school, what their major area of interest, particularly in research, may be.   In family therapy sessions it may be acceptable to mention marital status, children and so on.

Disclosing certain personal item’s such as an illness could display empathy, but on the other hand, it may be entering into an area of excessive self-disclosure.  It is a clinical judgment that needs to be done on a case by case basis.  At this point, based on the limited self-disclosure and perhaps the awkward touching alone, it cannot be said that Katherine has entered into committing a boundary violation.  Nevertheless, the Katherine was about to jump into the boundary violation pool when she disclosed that not only did she break up with her boyfriend, but apparently   kept looking him up on Facebook.

Issue No. 3 – Out of Office Contact

A therapist might   coincidentally be in the same bus, or eating at a restaurant at the same time as their patient. These chance encounters clearly are not boundary violations.

In the movie it is not clear if Katherine simply stumbled upon Adam waiting at the bus stop. He did not appear to be in any particular disrtress. Nevertheless, Katherine coaxed him into to lettingher drive him home.. In order  to ascertain  if this was a boudnayr violation, the question needs to be asked would Katherine offer rides to an elderly gentleman. Was this a chance observation, or did have a plan to drive him home?  Furthermore, there was inappropriate self-disclosure during the ride not only in terms of her verbal statements, but in terms of her messy car.  Was she really taking pity on him because he was taking a bus or was there some movement into a loss of objectivity on her part?  Thus, by the time she offers a ride to take him home, it certainly could be argued that she has entered  into what some have termed a slippery slope towards a boundary violation.  On the other hand, a very generous interpretation may be that she is being an extremely compassionate therapist and that the rules and regulations as to what is appropriate in therapy and outside of the office are way, way too strict.

Issue No. 4 – Giving out cell phone number and/or e-mail:

As technology has rapidly  evolved over the last decade. There are many ore opportunism for therapist and patients to interconnect. In the movie, Katherine tells him, “Here’s my cell phone number in case there is an emergency.”  The same holds true for giving e-mails and other types of personal information to a client.  For example, a client could be allowed onto one’s social media site or Facebook and so on.  The issue here is would she be likely to given an emergency number to an older gentleman?  Is she singling Adam out for special treatment?  If it is the latter again, we are getting into a zone where there is a loss of objectivity.  It should be noted that if the phone is to be used for emergency purposes only, it should be within a totally clinical context.  If a patient is making a statement which is expressing what could be termed transference, I wish you were my girlfriend, that the therapist should be able to gently deflect it.  This was an emergency situation in the movie and a therapist typically would not want to abruptly and abrasively shoot down the patient, particularly one who is about to have major surgery with life threatening implications.  By the time that he called her on the phone, it could be argued that she was on the precipice of a boundary violation.  As noted, some might call it counter-transference.  As such, she could not engage in prudent clinical interventions.

Issue No. 5 – Confidentiality:

One of the most sacrosanct rules in therapy  is to maitnian paitent confidentiality. There are several exceptions  such when  a  patient expresses  imminent  harm to themselves or others.

Katherine was very concerned about  Adam’s surgery  and entered the waiting room.  His mother was there as well as Adam’s best friend.  It  became apparent that  Katherine was Adam’s therapist.  Adam did  give consnet to even disclose that she was his therapist. They started to engage in some conversation, but it appears at this point, at the very least, Katherine appeared to be able to forestall any breach of confidential session material.  For the most part, she was able to maintain her clinical demeanor and did not disclose any conversations that she had with her patient.  It would be unethical for her to inform Adam’s mother what had transpired in therapy.

Issue 7. The Boundary Violation: The Date

Based on what has transpired so far, at the end of the movie, it will not come as much of a surprise that Adam has a date with Katherine.  It should be noted that although there does not appear to be any negligence involved in that there is no harm that appears to have been caused by her ethical violations and functioning below the standard of care.  However, by the time she shows up at Adam’s apartment with pizza, we now can see the full picture of the boundary violation.

 Issue No. 8 – Vicarious liability:

Although, we only see Katherine functioning as a therapist in training  it is implied that she must have a supervisor .  Based on the legal theory of vicarious liability, it would be her supervisor or the hospital who would be responsible for Katherine’s ethical breaches.  Hence, the hospital and/or her supervisor could be found liable for money damages in the event that several months later Adam finds out that the relationship was not all it was cracked up to be. Even though the supervisor or hospital might be held liable   even if not aware of the boundary violations.

References

Zur, O. (2007) Boundaries in Psychotherapy; Ethical and Clinical Explorations . Washington D.C. American Psychological Association.

Procedurally, Goldstein moved for summary judgment. This would essentially end the lawsuit. Goldstein argued that the Ewing’s action was barred by California Civil Code Section 43.92. This Code section provides, in part, that:

“There shall be no monetary liability on the part of, and no cause of action shall arise against, any… psychotherapist… in failing to warn of and protect patient’s threatened violence behavior or failing to predict and warn of and protect from a patient’s violent behavior except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.”

Goldstein’s argument was that he was not liable for failing to contact the police or Keith Ewing because the patient never directly disclosed to him his intention to seriously harm Ewing.

The trial court in this matter found that the Ewings did not satisfy the statutory requirements for liability, the reason being that the patient himself did not communicate the threat to the therapist as required in Section 43.92(a). The motion for summary judgment was granted. The Ewings thereafter appealed the matter.

After examining the legislative history and their intent, it was concluded that the communication from a patient’s family member to the patient’s therapist made for the purpose of advancing the patient’s therapy is to be considered a patient communication within the meaning of Section 43.92. In formulating their opinion, this Court felt the privacy interests did not supersede the disclosure of a patient’s confidence when it is necessary to avert serious physical harm to another person. Credibility of the information didn’t appear to be a factor that would preclude disclosure of the confidential information. The major issue is whether family members are to be construed as a patient communication. This court saw no reason why a communication from an immediate family member, who informs the therapist of an actual threat of grave bodily harm, should also not be considered a patient communication. In a footnote, the Court indicates that this ruling does not address whether non-family members would also prompt a duty to warn.

At the heart of this Court’s decision is the following:

“When the communication of the serious threat of physical violence is received by the therapist from a member of the patient’s immediate family and is shared for the purpose of facilitating and furthering the patient’s treatment, the fact that the family member is not technically a “patient” is not crucial to the Statute’s purpose.”

The essential holding was that the trial court erroneously refused to consider relevant family member information which was shared with the therapist. Hence, the summary judgment was reversed by the Appellate court.

FACTUAL AND PROCEDURAL BACKGROUND
OF EWING V. NORTHRIDGE HOSPITAL

Northridge Hospital brought a motion for non-suit which was granted just after the parents’ opening statement. The trial court had ruled that expert witness testimony is required in order to establish therapist immunity per Section 43.92. Secondly, the trial court found that the therapist must have been told of a threat by the actual patient and not by a relative.

As in the above case, the Ewings appealed.

Mr. Colello’s father took him to Northridge Hospital on June 21. They both met with Art Capilla, a licensed clinical social worker who was employed by the hospital. Capilla viewed the patient as angry, upset and hostile. Reportedly, Mr. Capilla asked assistance from the hospital security guards during the intake interview. Allegedly the patient told his father that he had threatened to kill the young man that Ms. Williams was now seeing. He further told Capilla that his son was likely to carry out the threat. However, Capilla denied ever being told about the threat, either by the patient or his father. Colello, was as noted, discharged from the hospital on June 22, 2001. The following day, Colello murdered Ewing, and subsequently committed suicide.

The complaint alleged a cause of action against the hospital and the treaters for wrongful death based on professional negligence. The allegation was that the patient posed a foreseeable danger to their son. Either directly or indirectly through third persons their son communicated to the hospital, namely Capilla and the doctors, his intention to kill or cause great bodily harm to their son. As such, the hospital and the treaters failed to discharge their duty to warn their son, as well as the police, of the risk of harm that the patient posed to their son.

In reaching their decision the Court concluded that a communication of the threat of physical violence need not come directly from the patient to the psychotherapist. Thus, Ewing v. Northridge Hospital reaches the same result as Ewing v. Goldstein.

The hospital’s motion for the non-suit at the trial court level was improperly granted and thus was reversed. When viewing the facts most favorable to the Ewings, it was concluded that the record contained enough facts from which a jury could decide that the parents actually believed or predicted Colello would fulfill his threat to kill their son.

IMPLICATIONS OF THE CASES

The rulings in the Ewing cases have greatly expanded the duty of psychotherapists to warn a third party who is in imminent danger of serious bodily harm. There are several issues that will enhance the risk to psychotherapist. Part of the risk to therapists has to do with the number of unanswered questions in the cases. Unfortunately, the Ewing cases do not answer the broad question as to the scope of the therapist’s duty to warn. In fact, the Ewing court does not address relevant issues that could have been raised in the case. Further, there are several indirect areas within the case that are left unanswered. What this does is to leave the therapist with little or no guidance as to how to proceed.

Facilitation of Psychotherapy

Part of the reasoning in this case is that the communication needs to be shared for the purpose of facilitating and furthering the patient’s treatment. It appears that the Court is assuming that virtually any communication is made for such a purpose. Unfortunately it is not always clear that pertinent information relayed by a third party is for this reason. There may be hidden agendas for the transmission of information to the therapist. Without knowing more about the source of the communication, it is not always obvious that the communication is for the purpose of facilitating the therapy. Simply receiving a phone call, e-mail or a fax in and of itself may not be enough to determine if the statements are valid. A clinician may not be able to independently determine whether such a communication is made for the purposes of assisting the therapy or for some other ulterior motive. Furthermore, without further probing, the therapist would need to make an instantaneous evaluation of a communication that suddenly arrives at the office.

The door now appears to be wider for bogus and opportunistic claims of a patient and/or their relative. This could include an attempt to induce a breach of confidentiality. If this were to occur, the patient could file a malpractice lawsuit. The relative might later state “ I never said that.” Might not this happen in custody disputes?

An unfortunate risk for therapists is that the third party informants may have ulterior motives. How can a therapist make an informed decision without having the time to interview the person? If the therapist obtains information and makes a report to the police and the intended victim, but the family member (or friend) claims to have not made the precise statement, the therapist will be in the middle of a breach of confidentiality lawsuit. On the other hand, if the therapist does not make the report, there is the risk of a wrongful death lawsuit.

The main problem is that it is not really clear when receiving a communication whether or not it is to facilitate the therapy. At a moment’s notice, it cannot necessarily be determined whether or not the third party informant has ulterior motives or a hidden agenda. Furthermore, the actual identity of the informant might not be immediately verifiable.

Third Party Contact

Related to the above point, it should be noted that the Ewing Court did not make a distinction between solicited and unsolicited information. In both of the Ewing cases, it appears that there was a release of information, either formal or otherwise, for the therapist to talk to the patient’s family member. What has not been clarified is, what does it mean when there is unsolicited information that is forthcoming to the therapist?

Clearly, if the patient’s relative is in the office, particularly with the patient, it is possible to assess the credibility of the relative at that point or subsequently. This is quite different from someone calling up and claiming to be a relative and offering indications that the patient is about to imminently inflict bodily harm on a verifiable third person. In the Ewing cases, it appears not to matter that the therapist has not had personal contact with the informants. Obviously this raises a level of uncertainty as to the validity of the forthcoming information. Under the approach of the Ewing Court, if the word “patient” should not be read literally, then it appears that the distinction as to how information is presented should also not be taken too literally.

It appears that the ruling under Ewing’s interpretation is that virtually any information, such as e-mail, telephone or fax, will need to be assessed and evaluated. It could be argued that an e-mail with the relevant statements of imminent harm is enough to prompt a warning.

The Ewing ruling means that the therapist is in the position of predicting dangerousness with less accurate data. The information that is streaming into the office may be unverifiable. It appears that the Court to some extent contradicts itself by expanding the scope of the duty to warn. In the Ewing v. Northridge Hospital Medical Center case, the difficulty in predicting dangerousness is correctly identified. However, if predictions of violence are not reliable, it seems contraindicated to introduce a rule that decreases the reliability of such predictions.

The Ewing case offers no clarification as to whether or not a patient’s relative must be in direct contact with the therapists. The Ewing cases were strictly decided on the fact presented. There is an implication that the therapist has a duty to protect only if they are in direct contact with the patient’s relative In both of the Ewing cases, the therapist either was given permission to talk to the father, or both father and patient were in the presence of the therapist. It remains unclear whether to take this scenario literally or not. The therapist is left to speculate whether the next court ruling would decide that there need be no direct contact with the third party informant. If so, then an appropriately worded anonymous letter might be enough to prompt a Tarasoff warning.

Horns of a Dilemma

Practicing psychotherapists may find themselves on the horns of a Catch-22 dilemma. That is, to disclose information or not. Which is the lesser of two evils, a breach of confidentiality or a wrongful death suit? If the communication is viewed by the jury as being ambivalent or ambiguous, but the therapist makes a report to the police and the intended victim, he or she might be liable under a medical malpractice lawsuit. This therapist might be sued for breach of confidentiality. On the other hand, if the therapist feels that any such third party information is not reliable, but then the patient kills an intended victim, the therapist might be drawn into a wrongful death lawsuit.

There is a statement in Ewing v Goldstein, that implies credibility of the communication apparently is not a preclusion to disclosure. This means that virtually any type of information such as an e-mail, fax, or message on an answering machine tape would be enough to prompt a Tarasoff warning. Further the Ewing court appears to assert, if taken at face value, that the disclosure is automatic even when there is no guarantee of verification of credibility. Under this scenario, the therapist may be exposed to a defamation or invasion of privacy lawsuit. There is no way to judge whether the next court or jury would rule that the therapist has immunity under section 43.92.

Because section 43.92 is silent on the issue of third party or non-patient communication, the Ewing case could lead the next trial court or jury to hold than any “useful” information should elicit a Tarasoff warning. The problem for the practicing psychotherapist is that he could be found to have overreacted to the information at hand. The opened ended nature of the Ewing cases leaves the therapist in a more vulnerable position.

The Professional Role of the Therapist

The court in Ewing appears on the one hand to impose a duty into the patient-therapist relationship, and on the other hand, seems to imply that therapists are similar to Good Samaritans. If, as the Ewing court believes, there is no professional standard of care in negligently failing to warn a third party, then why are psychotherapists given special legal requirements?

The question arises as to why these cases are brought under professional malpractice if there is no particular training or expertise that is needed to determine whether the patient poses a credible threat. If the issue only relates to the duty to warn when there is a specific threat, then psychotherapists should not be treated any differently than a Good Samaritan or a family member. This is particularly so since the Ewing court asserts that “The mind-set of a therapist can be evaluated by resort to common knowledge without the aid of expert testimony” (3).

If a non-patient is equally adept at ascertaining whether a patient is going to harm someone, why is there a difference in the duty imposed between the treating therapist and an informant? If there is no expertise needed to evaluate a threat, it appears that psychotherapists are held to a much higher philosophical and legal standard with respect to preventing harm to identifiable victims.

A Patient is Not Just a Patient

An interesting aspect is that in expanding the definition of the patient, the Appellate Court in the Ewing matter resorted to legislative history in formulating this new definition of “patient.” However, in a crisis situation a therapist would not have the luxury to go to the law library or make numerous phone calls to find out what the real meaning of a statute or a code is. Furthermore, if one actually were to assess the legislative history, it is quite possible that many therapists and attorneys would agree with the trial court in this manner; namely that a patient refers to a patient. How could one, by reviewing the legislative history, determine or ascertain that there should be an expansive definition of the word “patient.”

What is further alarming is that it is not even known what the actual meaning of “patient” refers to in the Ewing case itself. Thus, there is the additional ambiguity in that it is not known whether or not the expansion of the duty to warn extends beyond parents and the immediate family. Does the ruling mean that brothers, sisters, cousins, children, friends and teachers are to be considered part of the new equation in terms of duty to warn? Should all of these be considered a “patient?” The problem for therapists is that the Court offers no clue as to what the family members can refer to. Recall that a patient no longer means just a patient, but could mean immediate family members. That being the case, can family members also mean friends or other acquaintances?

What this means is that there is no real guidance as to what is the proper approach when a non-family member or somewhat distant family member provides credible information regarding the threat of physical harm on the part of the therapist’s patient. The Ewing Court implies not to take the word “patient” too literally. However, this Court refers to close or immediate family members. Did the Ewing Court mean to take immediate family members literally? For example, if a second cousin relayed information, would this be outside the purview of the Ewing scope?

If a therapist assumes that second cousins are within the Ewing ambit, unfortunately a jury or the next appellate decision could state that the Ewing Court refers only to close family members. On the other hand, a jury or court could decide in the opposite direction. Thus, the therapist is left to ponder the deeper linguistic and semantic implications emanating from the Ewing Court decision.

A Victim is Not Just a Victim

Under Tarasoff and Section 43.92, a warning is made if there is a “reasonably identifiable victim.” However, if a patient is not just a patient, might not the same hold true for a reasonably identifiable victim? The Ewing court rejects a literal interpretation of the term “patient.” Would another court follow in their footsteps with a similar line of reasoning with the term “identifiable victim?”

For example, assume that a patient tells the therapist that he intends to place a bomb at a local post office. The therapist also learns from the parent that the patient will, in fact, set off a bomb at a post office. The therapist does not know exactly which post office. Is there a duty to report and warn in this instance? Under a strict literal interpretation of Section 43.92, probably not. Under the expansive Ewing approach, there may be a duty to try to warn.

Investigation

To some extent, based on the rulings in the Ewing case, the therapist is put into the position of investigating the third party informant. This is especially the case when the communication may be ambiguous or one cannot fully accept it as reliable or credible. How much investigation is required? Assume an alarming fax is received at the office and is signed by a sibling. The therapist may need to contact the sibling in order to verify the reliability. Not investigating may open the therapist to other liability issues.

SUMMARY AND CONCLUSION

The Ewing cases have greatly expanded the duty to warn an intended victim of harm on the part of a therapist’s patient. As a result, a number of risks have emerged. Therapists will have increased exposure to liability. This is due in part to the lack of clarification by the Ewing Court as to what is meant by a close family member. Does the ruling apply to non-family members? It is not clear whether to take the Court literally or not. As noted, the Court emphasizes not to take the term “patient” too literally. Does it also follow that one should not take the term “close family members” or “identifiable victim” too literally? Therapists may now be in the throes of a Catch-22 dilemma. Not to report when there is a credible threat from a friend or teacher may expose the therapist to liability. Making a report, for example, on information that is obtained from a friend or a more distant relative may be outside the purview of the Ewing cases and thus expose the therapist to liability. In short, the indecision and lack of clarity has significantly interfered with the practice of psychotherapy.

REFERENCES

1.   Tarasoff v. Regents of University of California, 17Cal.3d 425 (1976)

2.   Ewing v. Goldstein, Ewing v. Goldstein, Cal. App. 4th No. B163112. Second Dist., Div. Eight, July 16, 2004

3.   Ewing v. Northridge Hospital Medical Center, 120 Cal.App.4th 1289 (2004)

ABOUT THE AUTHOR

Donald A. Eisner, Ph.D., J.D. is a licensed psychologist and attorney. He has represented plaintiffs in psychotherapy malpractice cases. Dr. Eisner has testified in state and federal court on mental health issues.

Expert witnesses face daunting challenges during deposition and cross-examination at trial. The opposing attorney is attempting to impeach the credibility of the expert. Areas that may be pursued include: 1) bias—including whether has the expert has a conflict of interest or stake in the outcome of the case; 2) qualifications and ethics—including who is actually providing the testimony and whether they are qualified to do so; 3) invasion of privacy—Must tax returns be turned over to the opposing attorney? What intrusive questions need to be answered? 4) hypothetical and difficult questions—The cross-examining attorney attempts to rattle and unnerve the expert. The implications for not avoiding impeachment can be serious in that there can be criminal and civil actions as well as administrative sanctions brought against a negligent and/or unethical expert witness.

An expert witness, defined under Federal Rule of Evidence 702, can be subjected to a wide array of questioning. At a deposition, the opposing attorney is given some latitude and may inquire into areas which may seem intrusive. The experience can be quite intense. A treating or percipient witness may not face some of the hurdles that confront an expert witness.

The expert witness, unlike the treating therapist, is called upon to render an opinion on issues such as standard of care, as well as various other medical legal issues. At a deposition, the opposing attorney may embark down several avenues in order to discredit or impeach the expert witness. At trial, the cross-examining attorney likewise attempts to impeach the credibility of the witness and bolster his side of the case. An expert witness may be engulfed in four main deposition traps: conflict of interest, credibility, invasion of privacy, and hypothetical and difficult questions. Even if nothing substantive emerges in the deposition, or under cross-examination, the expert witness who becomes agitated or unnerved is ultimately entrapped. The risks inherent in these traps are discussed. Several suggestions are offered on how to handle or avoid the traps.

CONFLICT OF INTEREST

An expert witness can be examined for bias. This can include a personal or social relationship with the hiring attorney. Bias may be explored by way of how many cases the expert has performed for a particular attorney, as well as whether the expert does only defense or plaintiff work. The nature of the expert’s forensic practice is a routine area of inquiry. The expert should be able to answer in a direct and nondefensive manner. Should there be some evasiveness, red flags may emerge, and lead to further questioning.

Another area of concern, which may have lessened in the last decade or so, has to do with the arrangement with respect to payment. A contingency fee arrangement generally is frowned upon and in many jurisdictions is prohibited. In First National Bank of Springfield v. Malpractice Research, Inc. (1), it was found that the contingency fee arrangement between the expert witness and a consulting group was void as contrary to public policy.

Furthermore, it should be noted that a split fee would also be frowned upon. An example might be an expert witness stating that he or she is willing to accept payment for $200 an hour, which is below his normal fee of $500, but in the event of a successful resolution of the case, in addition to the $200 per hour he would accept 10% of recovery.

Another potential bias trap is to accept a contingency fee as a consultant. In this instance, the expert would simply be reviewing records and deposition testimony, and offering other types of advice. Problems can occur if the consultant were to be designated in order to provide deposition or trial testimony. In this instance, obviously, the expert would have to disclose the nature of the contingency, or split fee arrangement, at the time of the deposition or at trial. Needless to say, the expert witness’ credibility would be severely undermined when admitting to having a stake in the outcome of the case. Even if the expert is not directly involved in different payment schemes, a case for bias could still be made. For example, if the attorney accepts the expert witness fee with a consulting company, it could be argued that the expert witness panel company may have an untoward stake in the outcome the case. Secondly, there may be a separate agreement between the expert panel and the attorney and the consulting company. The arrangement may be unknown to the expert witness. However, if the contingency fee arrangement is discovered in a deposition or at trial, it may prove to be somewhat uncomfortable for the witness.

Another aspect relating to bias or conflict of interest is when a treating therapist is called upon to perform expert witness testimony. As Gutheil and Hilliard (2) point out, the expert has different clinical, legal and ethical requirements. The distinction is so stark that Reid (3) suggests that nonforensic clinicians should not accept forensic referrals. At the very least, the issue of bias will emerge. The treating therapist may have an inclination to support the former or current patient. The witness may be seen an advocate rather than an impartial or neutral evaluator.

Several organizations have ethics restrictions regarding changing roles from treater to expert. The American Academy of Psychiatry and the Law states that a clinician who accepts an expert role can have a negative impact on the therapeutic relationship. The guidelines specifically state that “treating psychiatrists should generally avoid acting as an expert witness for their patients” in a forensic setting (4). The California Association of Marriage and Family Therapist Ethical Standards 8.3 relates to avoiding conflicts of interests in legal proceedings (5). Specialty Guidelines for Forensic Psychology (6) at 6.02 discusses this issue in the context of multiple relationships. There is recognition that providing forensic and therapeutic services to the same person as specified in ethics rule 6.02.01 is a “multiple relationship that may impair objectivity and/or cause exploitation or other harm.” A clinician who performs in both roles is supplying a tremendous amount of grist for the impeachment mill.

What happens if the treating therapist is an expert witness? It appears generally they cannot be compelled to offer testimony as an expert witness. For example, a radiologist made comments to a patient regarding issues related to her treatment. He was subpoenaed to testify and was asked questions that related to the standard of care (7). The radiologist made statements to the patient, who later was the plaintiff in the case, regarding the earlier treatment by another doctor. He did not have any further contact with the patient. However, eight months later, the radiologist received a letter indicating that a medical malpractice lawsuit was filed against the family doctor. The plaintiff’s attorney wrote to the radiologist and asked for a letter that documented his opinions. As a treating physician, this would have transformed the radiologist into that of an expert witness. The radiologist indicated in a letter that he did not want to get involved in the case and would not offer any opinions.

Probably not too surprisingly, the radiologist received a deposition subpoena. At the deposition, the physician refused to answer questions regarding negligence. There was a court hearing several weeks later and the judge ruled that the radiologist did not have to answer questions that related to expert witness opinions. Further, it was noted that the radiologist had fulfilled his duties as a percipient witness and did not have to act as an expert witness if he did not wish to do so. The latter portion of that statement by the judge is interesting in that if the radiologist did have a desire to express expert witness opinions as indicated above, this could greatly complicate one’s professional life from an ethical perspective.

Furthermore, there is case law that specifically indicates that expert witnesses cannot be forced to testify. In Glenn v. Plante (8), the treating doctor had criticized the treatment of another doctor. Words were used that implied standard of care issues, such as treatment being “unwarranted.” The case went to the appellate level in Wisconsin wherein the treating doctor was required to testify. The case was appealed to the Wisconsin Supreme Court where the Wisconsin Medical Society and the AMA filed a brief that opposed the appellate decision requiring the compulsion of the doctor’s testimony. As it turned out, the Wisconsin Supreme Court reversed the appellate decision and stated that if there is not a showing of compelling circumstances, the expert witness should be free from testifying against their will.

The forensic mental health expert can easily avoid the conflict between the clinical role and the expert role. The clinician can refuse to accept an expert witness referral related to their client and, if subpoenaed, can politely refuse at the deposition to answer questions that go beyond the scope of a treating clinician.

Regarding potential or actual bias, the expert can use a checklist in order to ascertain if any areas might be problematic. For example: Has the witness been retained in large number of consecutive cases by the same attorney? Is there an unusual fee arrangement? Is the expert planning on writing an article or book based on the case? Does the witness have a personal or family  connection with the attorney or the party to the case? Has the witness ever treated the plaintiff? Does the witness know the defendant?

QUALIFICATIONS AND ETHICS

In an attempt to impeach the expert witness, the opposing attorney may try to make a direct attack on credibility by examining qualifications and any ethical improprieties. At a deposition or a trial, this will take the form of an inquiry into the academic background of the witness. It is almost too obvious to mention that one’s résumé should be accurate. There are numerous instances where the purported expert has embellished or fabricated the résumé. This has led to disastrous consequences, including charges of perjury. Following is an example of what might appear to be minor puffery in one’s résumé:

The expert witness states in his résumé that he was a visiting professor at USC. The opposing attorney at the deposition of Dr. Smith asks:

Q: “Were you a visiting professor at USC?”

A: “Yes.”

As it turns out, this particular witness was not a visiting professor, but rather taught a continuing education class on posttraumatic stress disorder for three weekends. This witness has no other affiliation with USC. Needless to say, upon further questioning, the witness would need to maintain the fabrication or admit to embellishment of his résumé. In either case, his credibility is severely tarnished.

There are a number of real life examples of professionals getting into difficulty by not being accurate with respect to their résumés. For example, a clinical social worker who claimed to be an expert had testified in family court matters (9). In various correspondences, the expert identified himself as a doctor and stated he held a doctoral degree in clinical psychology. The university he cited denied ever awarding the witness a degree.

In California, a computer forensic expert pled guilty to federal perjury charges because of falsifying his résumé and lying in court about his credentials. This expert witness was involved in child pornography cases. Federal agents became suspicious about his résumé. He claimed he went to the California Institute of Technology and the University of California at Los Angeles. However, the degrees he claimed he had obtained were not offered by either school (10). When this witness was working on the child pornography cases, interestingly enough, he had already been qualified as an expert witness in computers and had submitted court testimony in several jurisdictions, including federal court in California and at least three California counties.

In Drake v. La Portuondo (11), the defendant was charged with murder and convicted in 1982. A purported psychologist stated that he was an expert in what was called “piquerism.” Allegedly, piquerism is a paraphilia in which sexual gratification occurs through penetrating someone else’s body by way of cutting or stabbing. The defendant, Drake, was convicted of two counts of murder and sentenced to prison. He appealed the decision, but it was affirmed. Ultimately, Drake was granted a new trial by the United States District Court of Appeals on January 23, 2009 (12).

Drake contended that the psychologist who testified against him at the trial on the so-called paraphilia had misrepresented his credentials. It was found that this expert’s qualifications were essentially perjured. Namely, his teaching experience and licensure were at question. Furthermore, the syndrome which he called piquerism does not appear to be an actual syndrome. The prosecutors in the case conceded that there was no record that this witness was ever an adjunct professor at Northern Michigan University and there was no prior record of him ever testifying as an expert witness as a psychologist in a criminal proceeding.

What if the expert does a slipshod job prior to offering deposition testimony or giving testimony at trial? There may be an increase in what is termed expert witness malpractice actions (13). It appears that the theory of expert witness liability is viable in some instances. Thus, the expert can no longer expect to not be involved in a negligence cause of action for offering negligent testimony. Furthermore, in Davis v. Wallace (14), the court indicates that there is an emerging body of case law, as well as articles, that question the granting of absolute immunity to expert witness testimony. This would include both in-court testimony and pretrial preparation.

At first glance, it appears that a witness might be found liable for changing position in midstream (15). A Federal District Court ruled that an expert witness in a medical malpractice case could be the proximate cause of the plaintiffs having their case dismissed. The plaintiffs had initially brought a case for wrongful death based on a premature release from the hospital. The retained expert opined in an affidavit that the treating doctor performed below the standard of care, and that the patient was likely to have survived, had she remained in the hospital. The plaintiffs claimed that the expert abruptly changed his opinion in favor of the defense. Thereupon, the plaintiffs sued the expert for seven causes of action: professional malpractice, fraud, negligent misrepresentation, breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent infliction of emotional distress. The Unites States District Court dismissed the plaintiffs’ action. The matter was brought to the United States Court of Appeals.

At the time of the expert witness deposition, the expert testified that he had not read the treating doctors deposition, or was aware that it had been taken. He had never testified at trial before. At the deposition, the expert’s opinion softened and seemingly was modified. He was no longer of the opinion that the patient would be alive within a reasonable degree of medical certainly had she been admitted to the hospital. It appeared that the witness found the opposing attorney to be what was described as “mean” and apparently was intimidated. Reportedly, the expert told the retaining attorney he did not want to lose his license. Subsequently, the retaining attorney sent the depositions from two nurses and the treating physician to the expert.

The expert then drafted an Addendum to his earlier deposition. Typically a percipient or expert witness makes a minimal correction for typographical errors, or may fill in some names. This Addendum directly contradicted his earlier opinion on causation and standard of care. Namely, he opined that there was no deviation from the standard of care in this matter. The expert sent the Addendum simultaneously via fax to the retaining and opposing attorney. The treating doctor moved for and was granted a summary judgment. Thereupon the plaintiffs sued the expert for the various causes of action. In a split decision, the case was considered viable by the Tenth United States District Court of Appeals. Whether there is immunity for expert witness was left undecided.

So can an expert change an opinion without risking a lawsuit? Yes, but not under the set of circumstances in Pace v. Swerdlow. In this matter, the witness could have reviewed the depositions and informed the retaining attorney in advance of the deposition about potential changes in his viewpoint. Second, there was an implication that the witness changed his testimony for reasons unrelated to the facts of the case, i.e., he was intimidated and perhaps changed his mind to avoid a medical board investigation. Obviously, that line of reasoning can subject a witness to liability and destroy his credibility. Third, without consulting the retaining attorney, the witness sent a document to the opposing attorney. If there is a complete turnaround in an expert’s opinion, the retaining attorney alone should be timely informed of any changes.

Ironically, the circumstance in Pace v. Swerdlow could lead to an ethics investigation. The witness needs to make a change in testimony on a good faith basis. For example, in one criminal case, the expert apparently was asked to alter his progress notes. He admitted to so doing. The state board revoked his license, stayed the revocation, and placed the mental health expert on three years probation (16).

What if the witness makes an unintentional error? Credibility can crumble under the weight of a good faith mistake. In General Medical Council v. Meadow (17), a British Court held that in the event of misstatements made during the course of litigation, the expert can be held accountable at a disciplinary hearing. The expert relied on a statistic he had gleaned from a report and in so doing miscalculated the rate of sudden infant death syndrome in two siblings. The case heightened the issue as to whether experts should be accredited by a governmental agency (18).

When allegedly factual opinions are presented, the information should be able to reasonably pass a Daubert (19) level of scrutiny. Following is an example where deposition testimony demonstrates a descent into an abyss. Assume the expert in a child custody evaluation administered the Rorschach and several other psychological tests. A diagnosis and conclusion was offered on the basis of the psychological tests and clinical interview.

Q:  “Did you administer any psychological tests?’

A:  “Yes.”

Q:  “Which tests did you administer?”

A:  “The Rorschach, Beck Depression Inventory, and Beck Anxiety Inventory.”

Q:  “What procedures did you use to score and interpret the Rorschach?”

A:  A combination of the Exner and Klopfer systems.”

Q:  “Any other scoring methods?”

A:  “I used some of my own scoring methods.”

Q:  “Have you published any articles on your own scoring methods?”

A:  “No.”

Further inquiry could examine the ethical aspects of using an idiosyncratic scoring system. Consequences could be exclusion excluding evidence, and referral for disciplinary actions. As noted above, if the witness or testimony is excluded, leading to a negative outcome, there could be a civil lawsuit brought against the expert.

Another area that could be problematic with respect to credibility concerns the identity of who actually did the forensic evaluation, including the administration of the tests, and review of the records. In a psychotherapy malpractice case handled by this writer, the expert had someone else collate and summarize a large amount of records. He did not mention this in his report or prior to the deposition. At the deposition, the expert witness confused the names of the co-defendants. This led to the discovery that he personally did not review the records.

If the witness were called to trial, the following might have occurred:

Q:  “Isn’t it true that in the deposition you testified that you spent 10 hours reviewing the records?’

A:  “Yes.”

Q:  “Isn’t it true that you charged your customary fee for the 10 hours of record review?”

A:  “Yes.”

Q:  “Isn’t it true that your office manager collated and summarized the records?”

A:  “Yes.”

Q:  “Isn’t it true that your office manager prepared a 5-page summary?”

A: “Yes.”

When the expert is asked, “What records did you review,” the clear implication is that he actually reviewed the records. If not, there should be a disclosure statement as to who actually reviewed the records. Furthermore, a licensed forensic specialist should do the review and summary. Should the expert not have done what he was hired to do, and was thereby subject to impeachment, or otherwise disqualified, there might be a basis for a civil lawsuit for negligence testimony or other causes of action.

In a workers’ compensation case reviewed by this writer, a number of applicants were evaluated at the same office. It seems unlikely that one evaluator could have performed the assessments in such a short period of time. The issue emerged as to whether psychological assistants had conducted extensive portions of these reports. Subpoenas were issued for the office personnel including the psychological assistants. The clinic director decided to abandon his requests for fees. The depositions were cancelled.

In a series of Florida capital murder cases (20), the use of psychological interns jeopardized the decisions. Trainees were used by the public defenders’ office in order to save money. They were supervised by a forensic psychologist. An intern had administered her first MMPI-2, followed by questioning the defendant on the critical items. A total of eight first-degree murder cases may be affected by this use of unlicensed individuals.

INVASION OF PRIVACY

A number of sensitive topics can emerge in the deposition of an expert witness. The areas may relate to one’s finances, religious background or drug and alcohol history.

There are several routine or preliminary questions that essentially need to be answered:

1.   “Are you currently in private practice?”

2.   “What is your psychotherapeutic orientation?”

3.   “Have you ever provided expert witness testimony before?”

4.   “Have you ever testified in trial as an expert witness?”

5.   “What percentage of your current practice is forensic or providing expert witness testimony?”

6.   “In the last five years, in what percentage of your cases were you hired by a plaintiff attorney?”

An opposing attorney may wish to probe a bit more deeply into the expert witness’ bias, including finances. For example, is the expert’s income essentially derived from one attorney firm, a marketing firm, consulting firm, or other business? In order to do so, the opposing attorney may request a copy of the expert’s income tax forms (21). The issue raised is: Does an expert witness have to routinely present income tax records? At least one case took a middle ground—Behler v. Hanlon (22). The Behler court ruled that prior to a deposition an expert should make a diligent search of the records which would allow him to present what percentage of gross income for the preceding five years is based on performing expert witness services. Additionally, the expert was to make a list of cases wherein he served as an expert witness during the last five years. The court further stated that after taking the deposition, if the plaintiff can demonstrate that more information is needed in order to engage in impeachment of the expert, they may seek relief from the court to gain additional discovery information.

The Alaska Supreme Court in Noffke v. Perez (23) required the expert to produce tax returns before he could testify. As it turned out, the expert was a part owner and worked for an independent medical evaluation company. The records from both the witness and his company would need to be disclosed in order to ascertain if there is potential bias. The court stated that if there is a “plausible argument that the witness generates such a significant portion of his or her income from a particular side or particular attorney, the expert’s impartiality can be reasonably questioned.” Despite a protective order, the records were not produced and the witness was not allowed to testify.

Examples of intrusive questions are described by Brodsky (24). He notes that experts can be confronted with materials or questions that are inaccurate, distorted, misleading or even untrue (p. 123). In a child custody matter, the witness could be questioned as follows:

Q: “Doctor, are you currently married?”

A: “No.”

Q: “Have you ever been divorced?”

A: “Yes.”

After the last question and answer, the expert and the retaining attorney will need to decide whether to allow a few more of these questions, or try to stop it at this point. Sometimes it may be helpful for the witness to see where the opposing attorney is going.

Q:  “Were you divorced more than one time?”

A1:            “Yes.”

A2:            “I’m not comfortable answering that question.”

As Brodsky further notes (24), there is a significant gender bias with respect to invasive questions (p. 126-130). There are a number of questions that male expert witnesses, for various reasons, are virtually never asked: Do you use illegal drugs? How do you discipline your children? Who else lives in your house with you?

If there is a probe of personal business activities, the witness may not need to answer. For example:

Q:  “How do you obtain referrals as an expert?”

A: “Newsletter, advertising and networking.”

Q: “What magazines do you advertise in?”

A: “I am not a liberty to disclose that. It’s proprietary information.”

The witness can simply state that the information is proprietary and may not have to disclose.

In the face of all this, the witness needs to maintain a calm demeanor. Furthermore, even if some of the negative history emerges at a deposition, the retaining attorney can attempt to exclude the information at trial. The expert should have a strategy that has been worked out in advance regarding potentially intrusive questions.

HYPOTHETICAL AND DIFFICULT QUESTIONS

The initial part of the deposition may seem cordial and friendly. The expert witness may be lulled into the proverbial false sense of security. Perfunctory questions about one’s background are followed by more intense, probing questions. After the preliminary and routine part of the deposition, the scenario changes. At times the questions may be on the order of hypothetical or seemingly difficult questions. The goal is to trap the expert in a labyrinth from which there may be little room to escape.

One of the ways that the opposing attorney may lead an expert into a cul-de-sac is by demonstrating that the expert never actually saw the party or the plaintiff. At times an expert witness may be asked to review series of records or documents and render an expert opinion. The following dead-end trap was presented by Brodsky (24, p. 216-220).

The expert was called to testify regarding nursing home quality and staffing. The case was her first courtroom presence as an expert. She was called on to testify whether there was any verbal abuse present at the nursing home. She read thousands of pages of progress notes in order to assist her in rendering an opinion. For reasons that are not mentioned, the direct examination lasted only five minutes.

Upon the cross-examination, the expert witness was asked if she had a particular form. She was unable to find the form and became unsettled. The downhill course started immediately after that when the witness was asked if she ever met the residents of the nursing homes who said they were abused. The witness stated, “No.” She was then asked if she did any additional assessments, other than looking at what was in the record. She answered, “No.” She was then asked whether she talked to any of the staff. She stated, “No.” At this point the witness was feeling trapped and miserable. Although one can certainly answer questions, yes or no, this was not the time to do so.

What might this witness have done in order to improve her courtroom performance? First, the witness should anticipate the questions that would emerge. Second, the witness may be bolstered by the knowledge that an expert witness does not actually have to see a patient or a plaintiff in order to render opinions. For example, in State of North Carolina v. Douglas McCall (25), the court ruled as follows: “The fact that the expert’s testimony took the form of hypothetical questions and was based on information related to her by a third party does not affect the admissibility of her opinion, but instead goes to the weight of the evidence.” The North Carolina court ruled that the expert testified that her opinion was not based upon actually conducting an evaluation of the child, and that the source of her information about the plaintiff did not reduce her qualifications as a psychologist or her expertise in treating the victims.

In the typical situation, the retaining attorney would have an opportunity to redirect; however, in the above nursing home matter, since the direct examination was so skimpy, it appears it was up to the expert to take it upon herself to deflect the impeachment type questions. In this scenario, the witness could have offered some possibly more helpful responses along these lines: “Although I did not meet any of the clients or talk to the staff, I did a comprehensive review of all of the progress notes and was able to reach my conclusions based on my review of 1000 pages.”

In another example where the opposing attorney tried to lock the witness into his version of the case, the author was deposed in a medical malpractice case. The plaintiff was involuntarily hospitalized under California Welfare and Institutions Code, Section 5150 for approximately three days. Statements were made that he was suspicious and thought that neighbors were harassing him and perhaps throwing things at his window. Because of the numerous complaints that he made regarding the neighbors, they apparently called the authorities. Subsequently, the police came to his house for a brief interview.

The plaintiff was questioned as to whether he owned guns. He answered, “Yes.” One of the officers asked the plaintiff, “What would you do if somebody were going to come directly into your house?” Since he had a gun in his house, he claimed that he would protect himself and his family. Thereupon he was taken to a psychiatric hospital. One of the issues that emerged during the deposition was whether the individual was psychotic at the time this occurred. It should be noted that the applicant was a 38-year-old male who was married and had three children. He had been actively working full-time for the past 10 years. There was no indication in the assessment and the related conclusion that this individual had any signs or symptoms of a psychosis. Following is a portion of the transcript:

Q: “If I was to say, hypothetically speaking, that in the middle of the night I am hearing voices outside my house, would that be a concern to you? You just mentioned one of the symptoms might be hearing voices. Would that concern you if, in fact, there was no one outside my house creating that noise, but I am saying I am convinced there are some noises outside?”

It was clear where the attorney was going with the question; namely, he wants to demonstrate that the plaintiff clearly is paranoid schizophrenic. The question was abstract, confusing, probably compound, and didn’t necessarily have to be answered as stated.

A:  “You mean if someone is coming into my office for a consultation? If so, I’d want to know a little bit more about it.”

Q:  “Okay, but my question is: If I was convinced that someone outside my house is making noises in the middle of the night when in fact there was nobody there, would you consider the hearing noises part of your symptom list?”

A:  “It depends on whether we have other constellation of symptoms. Again, in isolation, it may be the person has posttraumatic stress disorder, was in the Army and that’s why it happened. We are getting on the edge of what one can really answer with a degree of medical probability.”

Q:  “Okay. Can we agree, though, that paranoid schizophrenia is a possibility? I understand that what you are saying is that further investigation needs to be done. There needs to be a more definitive investigation, so to speak.”

There was, of course, no final question in this line of questioning. Furthermore, it appears that there were two previous questions before the last statement.

A:  “I would further state that unless I have further information I would be reluctant to say that this is a possibility based on that one isolated symptom you mentioned.” At this point, an unrelated topic emerged.

About twenty minutes later a misleading question was asked:

Q: “You have stated that you had concerns over whether the plaintiff was a danger to himself or others, correct?”

A: “No, I didn’t have the concern.”

Here is another sample scenario. The MMPI-2 is vital to the conclusions and opinions offered by the expert witness.

Q: “Can the MMPI-2 be faked?’

A1:            “Yes”

A2:            “Yes, but…”

A3:            “Although, the MMPI-2 can be faked, it is difficult to do so.”

With A1, the attorney will say “thank you”and move on. With A2, the attorney, will interrupt and say “thank you.” Thus, the witness may not be able to complete the answer, at least under cross-examination. With A3, it will seem rude if the attorney interrupts, and probably would not do so. With A3 the response is offered in a nondefensive and jargon free manner. Now the opposing attorney either has to delve into aspects of the MMPI-2 or persist with the original line of questions. If the latter, it might proceed as follows:

Q:  “ Can you answer the question yes or no?”

A:  “The question is somewhat complex, so it would be difficult to do.”

Q:  “So, under some circumstances, the MMPI-2- can be faked?”

A1:            “As I mentioned a moment ago …

A2:            “You must not have heard what I just said…

A3:            “The question has already been asked and answered.”

A4:            “Your honor, that is a trick question.”

A5:            “You mean will a psychopath try to outwit the MMPI-2?”

In the face of a barrage of questions, the expert needs, as noted above, to mains the calm demeanor throughout. Snide or sarcastic remarks are to be avoided (A2). The witness should not answer in the form legal objection (A3). Arguing with the attorney or even the judge usually is counterproductive (A4). Even jokes or attempts humor at can boomerang (A5).

DISCUSSION AND CONCLUSION

There are a number of potential pitfalls awaiting an expert witness who testifies at a deposition or trial. The opposing attorney will use every tool in his arsenal to try to impeach the witness. The opposing attorney will scrutinize the witness for potential or actual bias. If it can be shown that the witness is biased or has a stake in the outcome, then this will tend to destroy the witness’ credibility. The easiest way to avoid this problem is for the expert to review any source of bias. If red flags are present, the potential expert should refrain from taking the case.

In some instances there can be a very close examination of the expert’s résumé and academic background. It is imperative to make sure there are no questionable “typographical” errors. If the witness persists in the fabrication, the implications are quite serious. Namely, the witness could be charged with perjury. In a malpractice case, for example, if dismissed based on witness negligence, there could be a viable civil cause of action for negligent testimony. There is an emerging trend that does not offer expert witness immunity. Should the witness display unethical behavior during litigation, the matter could be turned over to a governmental board for disciplinary action. Examples include not being familiar with the basis for one’s opinion, arbitrarily changing an opinion, and administering and scoring tests without proper validation.

Regarding invasion of privacy with respect to income tax returns, if there is some reason to believe that the expert could be biased, the expert may have to release his or her taxes. Regarding other intrusive questions, if not directly relevant, the witness can refuse to answer. Even if a response is given, the retaining attorney can later offer a motion to exclude the answer. Whether to answer or not is a strategic issue, and should be discussed with the retaining attorney beforehand.

It can be anticipated that, during cross-examination, there will be intense questions that may seem to be a form of harassment, are repetitive, or difficult to answer with “yes” or no.” In the face of all this, the expert needs to maintain a calm and cool exterior.

REFERENCES 

1. First National Bank of Springfield v. Malpractice Research, Inc., U.S. Appellate Court, Fifth District, December, 1996 (No. 5-95-0701)
2. Gutheil TG, Hilliard JT: The treating therapist thrust into the role of expert witness. Psychiatric Services 2001; 52:1526-1527
3. Reid WH: Why forensic clinicians should decline forensic referrals. Journal of Psychiatric Practice 2003; 9:163-166
4. American Academy of Psychiatry and the Law: Ethics Guidelines for the Practice of Forensic Psychiatry, 2005
5. Ethical Standards, California Association of Marriage and Family Therapists at www.camft.org
6. Specialty Guidelines for Forensic Psychology, www.ap-ls.org
7. Berlin L: Can a radiologist be compelled to testify as an expert witness? American Journal of Roentgenology 2005; 185:36-42
8. Glenn v. Plante, 269 Wis. 2d. 575 (2004)
9. Gibbons M: Social worker admits in court he’s no doctor. The Intelligencer, April 24, 2009
10. Goodin D: Man faces 10 years for fudging computer credentials. The Register Co. UK, May 9, 2007
11. Drake v. La Portuondo, 321 F.3d 328 (2003)
12. Drake v. La Portuondo, State District Court of Appeals, Docket No. 06-1365-pr
13. Weiss SL: Expert witness malpractice actions: emerging trend or aberrations? ALI/ADA course of study, April 15-16, 2004, New Orleans, LA
14. Davis v. Wallace, WV SUP Ct No. 29966 (2002)
15. Pace v. Swerdlow, 519 F.3d 1067 (2008)
16. Medical disciplinary actions. Los Angeles Times, July 10, 1998
17. General Medical Council v. Meadow, EWCA, Civ 1390 (2006)
18. Devaney S: The loneliness of the expert witness. Medical Law Review 2007, 15:116-125
19. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
20. Bierman N: Nova Southeastern University psychology students help test some murder defendants and have put court rulings in jeopardy. Miami Herald, October 2, 2003 http://www.nlada.org/DMS/Documents/1066316798.02/6910728. htm
21. Gutheil TG, Simon SI, Simpson S: Attorney’s request for complete tax records from opposing expert witnesses: some approaches to the problem. Journal of the American Academy of Psychiatry and Law 2006; 34:518-522
22. Behler v. Hanlon, 199 F.R.D. 553 (D.Md. 2001)
23. Noffke v. Perez, 178, P.3d 1141(Alaska 2008)
24. Brodsky SL: Coping with Cross-Examination and Other Pathways to Effective Testimony. Washington D.C., American Psychological Press, 2004
25. State of North Carolina v. Douglas Oliver McCall, No. COA03-102 (2004)

ABOUT THE AUTHOR

Donald A. Eisner, Ph.D., J.D. is a licensed psychologist and attorney. He has testified in state and federal court as an expert and has represented plaintiffs in psychotherapy malpractice actions. Dr. Eisner is Dean, Eisner Institute for Professional Studies.

Recently, Dr.   Krop was gently cross examined  on the Dr. Drew Pinsky show  HLN.  After Dr. Krop was  challenged about his conclusions, he returned tot he show and  suggested that perhaps Ms. Casey Anthony may have some personality traits.

In order to ascertain if Ms. Anthony has a diagnosable mental disorder here are some hypothetical questions that might be asked at a deposition of Dr. Krop:

1. How may times did you administer the MMPI-2 to Ms. Anthony?  If more than once, what were the differences in the profiles?
2. Did Ms. Anthony do  any reading on the MMPI-2 while in jail?
3. Did you hand score the MMPI-2?
4. If the MMPI-2 was computer scored , did the printout offer a diagnosis?
5. Did you administer  the full MMPI-2?
6. Have you ever administered the  the  brief  MMPI-2?
7. Did Ms. Anthony score over 65T on the L or K scale?
8. Did Ms. Anthony score over 65 on any scale?
9. Did you score the other validity indicators from the MMPI-2?
10. What other tests did you administer to Ms. Anthony at any time?
11. Per the DSMIV-TR , did you conduct an assessment as to whether Ms. Anthony had  a Conduct  Disorder prior to age 15?
12. Per the DSMIV-TR are only three  criteria A  needed to make a diagnosis of Antisocial Personality Disorder?
13. Is failure to conform to social norms a symptom or criteria Antisocial Personality Disorder?
14. Is deceitfulness a criteria for Antisocial Personality Disorder?
15. Is reckless disregard for the safety of others a criteria for Antisocial Personality Disorder?
16. Is consistent irresponsibility such as failure to consistently  work or honor financial obligations a criteria of Antisocial Personality Disorder?
17. Is lack of remorse a sign of Antisocial Personality Disorder?
18. Did you conduct  2000 death penalty psychological evaluations in your career?
19. Did you provide psychotherapy for Ms. Anthony?
20. Did you charge your usual fee for this evaluation?

Don Eisner, Ph.D. J.D.

Plagiarism in professional, academic, and research arenas appears to be escalating. This article elaborates the parameters of intentional and inadvertent plagiarism. The penalties and repercussions are quite significant with respect to whether an article or book is alleged to have been either intentionally or inadvertently plagiarized.  There is an analysis of the signs and symptoms of both types of plagiarism.  Further, the underlying causes or etiology is discussed.  Lastly, the issue is whether there can be an accurate differential diagnosis between intentional and inadvertent plagiarism.

Background

The act of plagiarism is not of new vintage.   Plagiarism, simply put, is mischaracterizing someone else’s work as your own.  Someone who is plagiarizing does not offer references or citations to the original work.  The work of the plagiarist may be verbatim or can be done in a sophisticated, paraphrased manner.  The more crude method is simply to cut and paste from another article that may be on the internet.   This might include lifting significant portions of a book or blatantly reproducing data and verbatim material from another research article.  Excluded from this article is the topic of self plagiarism, where an author or scholar or writer simply uses or recycles their own previous comments or concepts.  The focus in this paper is the intentional or inadvertent use of someone else’s product. With the advent of the digital age and increasing technology, it appears that there is an acceleration of the opportunity as well as the instances of plagarism.  There is no shortage of individuals who intentionally copy others person’s work.

Plagiarism is widespread (Hayden, 2005) and worldwide (Vasconcelos, Leta, Costa, Pinto, & Sorenson 2009).   Franklyn-Stokes and Newstead, (1995) report that 66% of a sample of students in the United Kingdom admitted to paraphrasing without proper citation.  A study by Williams, Nathanson & Paulhus (2010) found that almost 40 % of college students admitted that they had plagiarized in high school. With the plethora of writing services, there is an abundance of what might be termed plagiarism by proxy.  In this case, a student, for example, can simply ask someone else to produce the product. As such the student is not the actual author.

Plagiarism is not limited to students, but can include professors as well as writers, scholars, musicians, artists and inventors. Although rampant in academic circles, plagiarism permeates across most areas of human endeavor including music, books, painting, cartoons, and business presentations. Plagiarism is a form of thievery. Another person’s thoughts and ideas are being appropriated. In the legal arena, there are number intellectual property cases where a plaintiff will bring a lawsuit against the alleged plagiarizer.

In the academic area, a student has access to unlimited sources including theses and dissertations.   However, the instructor has access to the internet and other tools as resources, and can detect striking similarities between what’s “out there” and the student’s presentation.

Not every single statement in a written document needs to be cited.  Where something is of common or general knowledge,   references would be somewhat cumbersome.  For example, it is accepted as fact, that the Capitol of the United States is Washington D.C.  Since it is generally well known that Freud discussed the id, ego and superego, a specific reference might not be necessary. On the other hand, if a writer is critiquing Freud, plus offering one’s own opinions, there needs to be references to Freud’s publications.

What is critical is to ascertain is the difference between intentional plagiarisms versus what might be called inadvertent plagiarism.  One reason for so doing is that it could make a significant difference in a person’s reputation as to whether they are seen as an intentional plagiarizer or copied something based on inadvertent processes. Other names for inadvertent plagiarism have been used in the past such as unconscious plagiarism (Bink, Marsh, Hicks, & Howard, 1999) or  cryptomnesia (Brown & Murphy, 1989).

This paper examines both intentional and inadvertent plagiarism.  The  signs and symptoms of both are analyzed in order to ascertain what an appropriate determination might be as to whether a case might be intentional versus  inadvertent plagiarism.  Some of the possible etiologies or causes of either type of plagiarism are also examined.  Finally, a so-called differential diagnosis is presented in order to ascertain if credible distinctions can be made between intentional and inadvertent plagiarism.  Using these clinical terms should not imply that plagiarism is a mental disorder, but on the other hand this may be a good platform for further debate and analysis.

Intentional  Plagiarism

Intentional plagiarism may  involve lifting significant portions of someone else’s  written work, essentially verbatim, and implanting it into the plagiarist’s own work. The same applies in the other fields such as art, music, painting, or inventions.  A rather graphic example of intentional plagiarism is offered by Kock (1999).   Kock discovered that a paper that was sent to a prestigious journal was essentially a copy of an article he had coauthored and had previously published in another journal several months prior.  The research that was done by Kock was  conducted in Brazil as well as New Zealand.  What Kock discovered in the alleged plagiarist’s paper is that 38 of 51 paragraphs were essentially sentence by sentence, word for word copies from his article.

The plagiarism was quite obvious when Kock placed the two publications side by side. However, there are some subtle and minor tweakages. Instead of mentioning the specific countries or names of companies, only general statements were made in the copied article. Thus, to the causal reader the striking similarities and virtual identicality might not be readily noticed. Of course, Kock (1999) knew exactly what he wrote. The intent to hide is evident  not only in  the selective partial citation, but on making  the subtle changes.

Signs and Symptoms of Intentional Plagiarism

A. Blatant copying/cut and paste

A person who cut and pastes displays an intentional act wherein the plagiarizer has taken a snippet or more off the internet or another source and  inserted it into his or  her own work  There may or may not be citation to the actual source. One can go to Ask.com or Wikipedia and find information on virtually anything. One of the more obvious signs of intentional plagiarism that occurs in a cut and paste scenario is where an actual hyperlink is put into the body of a document.  Thus, in this example of a cut and paste  the plagiarist does not even bother to re-type or attempt to delete  the   hyperlinks that are embedded within the original article.

Improper ongoing paraphrasing without citation is another sign of intentional plagiarism. There needs to be more than a sentence or two  in order to meet the bar of intentional plagiarism. A selective or systematic appropriation of materials that is continuous and over many pages  and sources  would be suggestive of intentional plagiarism (Roig, 2001.)  Directly copying the research data from another article would  generally constitute   a gross example of intentional plagiarism

B. Avoiding exposure

As discussed by Kock (1999), the plagiarist described in his article did not send the paper to the most logical journal, but rather submitted it to a slightly different type of journal.  The  apparent purpose is to avoid detection. Since the academic and scientific field is so incredibly splintered at the present time, it is less likely that many researchers and scholars will  notice what is published in different areas.   Ordinarily, an article is submitted to a journal that closely matches the topic at hand.  Interestingly enough, Kock (1999) who was cited in the  submitted plagiarized research, was not asked to review the article. Of course, had he been selected as a reviewer, Kock would have immediately been aware of the plagiarism.

1. Writing style  too sophisticated for the circumstances

Particularly in a graduate setting, it may be noticed that the writings are sometimes dramatically different  from earlier presentations.  In this type of instance, the student may  have plagiarized via cut and paste,  but also  used sophisticated alteration of some of the sentence structures.  Thus, the student paper may be reminiscent of a treatise on a particular topic.

In the legal arena, apparently due to time constraints, an attorney filed a too, well, written brief (Murphy, 2010). The judge’s suspicions were aroused by the exceptionally fine quality of the brief. As it turned out 17of 19 pages were copied verbatim from another   publication.

Etiology of Intentional Plagiarism

A. Achievement orientation

In some cultures, there may be  an element of enhanced  achievement orientation. The individual wants to succeed at virtually any cost.  The person is striving toward goals and objectives. This leads to pressure to get ahead. In academic and research circles, the pressure is sometimes known as “publish or perish.” Thus, a  researcher or scholar is intent on moving up the charts, and needs a number of published articles to move up a rung or two (Kock, 1999; Roig, 2010.)     Since  many scientific journals are  published in English, non-English speaking persons may have an uphill battle in presenting an acceptable original paper (Roig, 2010)  and may wish to  find a short-cut measure to achieve an acceptable presentation (Vasconcelos et al. 2009.)

In the quest for fame and fortune, rather than jumping over hurdles, some find it expeditious to avoid the obstacles.  A higher education degree can be earned faster.  After graduation,  engaging in plagiarism can result in a plethora of publications.  A British psychiatrist, for example, was accused of plagiarizing several articles that were in newspapers and medical journals (Grant, 2008.)  He blamed  the  plagiarism on mistakes  of subeditors, as well  as cut and paste errors (Batty, 2008.)

A study by Williams, Nathanson, and Paulhus (2010) examined some of the mediating  factors that might be related to cheating in  undergraduate students. As discussed below, Williams et al found that psychopathy as a personality trait is a useful concept as an underlying factor in explaining plagiarism.   As part of their investigation  they found that achievement  orientation was a relevant factor connected to cheating. Desiring a high grade or a scholarship   motivates some students to engage in dishonest acts.

B. Understanding the rules/  cultural differences

Kock (1999) mentions that some people may not really know exactly what plagiarism is.  Colleges and universities are going to great pains now to try to educate students as to what exactly plagiarism is.  Many students and others do not, for example, understand the difference between something as basic as secondary versus primary sources; namely, a secondary source is embedded in a primary source.  In order to save time by not going back to the original source, a writer may simply cite the secondary source as if it were in the  primary source article that is cited.

There are also cultural differences that may account for intentional plagiarism (Yang & Lin, 2009.) Some students in Eastern cultures may feel it is proper to copy the works of so-called experts or masters. To rewrite what is already written might seem inappropriate.  As discussed by Koul, Clariana, Jitgarun, & Songsriwittaya   (2010),   Eastern cultures may have a different perspective on what constitutes plagiarism. However, with acculturation or socialization into the American academic arena, international students did not differ in the amount of academic misconduct ( McCrink, 2010.)

C.   Lack of sanctions and repercussions

A third factor that may be associated with  intentional plagiarism are the difficulties in redressing it ( Kock, 1999).  Namely,  in many instances there is not much that can be done.  In  Kock’s own case, legal action was fraught with great difficulties, the least of which was that the alleged plagiarist, at least initially, threatened to sue him. A plaintiff could be subject to a countersuit.

There may be a perception by some individuals who believe that they can get away with acts of plagiarism without much in the way of repercussions.  The sanctions may be too lenient

(Woessner, 2004.) The time and energy that a university committee may need to deal with acts of alleged plagiarism may tend to hinder full-fledged investigations.  To say the least, it is not best use of  academic resources to wade into the muck and mire of disciplinary investigations or civil law proceedings.

D.  The  internet  and digital age

It virtually goes without saying that with the advent of the internet, it is quite simple to extract a variety of information from many sources, juggle them a little bit, and makes it appear as the writer has actually read, reviewed, analyzed, and critiqued 50 or more sources. As noted above, the ease with which a person can access material from the internet or  various  sites offers an abundance of material.  There is Wikipedia and Ask. com .  A treasure trove of previous work  includes dissertations and theses.  Copying from these sources may go undetected, unless the professor is diligent and eagled eyes.  Ironically, the dissertations themselves may be plagiarized (Pyle, 2010.)   Thus, over the generations, there can be exponential plagiarism, wherein a plagiarized article or study is plagiarized.

E. Personality characteristics.

A  fifth possible  causative element in intentional plagiarism  relates to personality factors.  A study by Willams et al. (2010) attempted to identify some of  the relevant personality characteristics that underlie cheating. In one of their experiments, college students were asked to write two essays. The subjects were told that the essays would be subjected to  a commercial  plagiarism  assessment service. One essay concerns a research project that was to be summarized. A second essay was deals with personal life experience. In order to assess personality  characteristics a number of psychological tests were administered. The test questions addressed  psychopathy, narcissism  and Machiavellianism. These three dimensions were described as the “Dark Triad”( Williams et al. 2010.)

The results indicated that at least 15 %  of the students plagiarized on at least one essay. The major finding is that the strongest relationship to cheating was based on the connection between indices of psychopathy and plagiarism. Overall, it was concluded that persons with psychopathic tendencies may commit other acts that violate societal norms.   This would include fraud  and other acting out behaviors such as alcohol and drug abuse.  However,  the term psychopathy, in this research arena, does not imply a clinical  or psychiatric diagnosis or have forensic considerations.

Inadvertent Plagiarism

In the case of inadvertent plagiarism, it is claimed that there is no conscious attempt to misappropriate someone else’s product.  The individual firmly and honestly belives that he or she has produced original material. Any plagiarism would be due to inadvertence. In the case of Richard Lewis on the Curb your Enthusiasm television program (2002), he  sincerely believed he originated  this expression: “ The nanny from hell.”  Thus, inadvertent plagiarism refers to a situation when the individual  believes that the work is theirs, and did not intend to copy.

A real life example of inadvertent plagiarism involves the well-known case of George Harrison and the “My Sweet Lord/He’s So Fine” legal suit (Self, 1993).  The record, “He’s So Fine” by the Chiffons, was a big hit in 1963.  George Harrison, formerly of the Beatles, produced “My Sweet Lord” for an album that came out at the end of 1970.  At issue was the alleged similarity of the music.

Looking at George Harrison, for example, we can see that over the course of 7 years, it is likely he was exposed to thousands and thousands of sounds and songs.  Thus, it would not be unusual to have a particular thought or song element  that is submerged deep into one’s memory bank.  There might not be  excellent recall as to where it may have originated.   The court in this case, (Self ,1993) ruled that the plagiarism heard in “My Sweet Lord” was subconscious plagiarism.

In  the case of  a poet, he was attempting to finish a poem (Campbell, 2007). He fell victim to what  was a case of  accidental  plagiarism or  what this article terms inadvertent plagiarism. He was familiar with another author who he had admired.  As it turned out,  Campbell did not recall that he had copied the last lines (12 words)  from that author into  his notebook  At a later point, in order to complete the poem, he looked through  the notebook which had the perfect words for  the ending. Campbell sent the poem off for publication.  The poem was rejected. Since he was surprised by  finding  the conclusion for the poem,  he began to see if he could locate its possible origin. He went through the other authors’ collections and  found that  the verbatim  12 words had been written by someone else. Campbell was shaken and surprised to learn that the other author had written  the exact same words.

Signs and symptoms of Inadvertent

A. No apparent attempt to hide

In the case of George Harrison, it would seem foolhardy to copy someone else’s product. His album would be heard by millions of listeners. The alleged plagiarism was quite open and obvious. In Campbell’s case  if the poem were published, the copied lines could be easily discovered.  However, in the Kock (1999) example, the plagiarist attempted to hide the blatant plagiarism by sending the article to a slightly different area of interest.  In an

attempt to make it appear that the rest of the article was original, the plagiarists cites Kock, but  then drops him as a reference in other parts of the publication.   Additionally, as noted,  subtle changes were made in the cited article to as to make it  seem  to be an entirely new production. Campbell (2007),  related another scenario wherein a well known writer was plagiarized was when the fake author sent the copied material to an obscure journal.  Contrastingly, an inadvertent plagiarist generally does not engage in measures that attempt to cover up or hide the plagiarism. Their productions may be exposed to a large audience with the attendant increased possibility of exposure.

B. The  ratio of plagiarized to non-plagiarized material is low

In the case of George Harrison, a very small part of the song was allegedly copied.  In a student paper, if one sentence was apparently copied, the  plagiarism ratio would be quite low. On the other hand, in a 20 page paper,  it would strain  credulity that one inadvertently  plagiarized 10 pages. In a picture or cartoon, if there is substantial  identicality with the original work, the implication is that the plagiarism is intentional.

C. No other instance of alleged plagiarism

It is likely that once an individual successfully plagiarizes, there would be other instances.         For example, a researcher very often has many other articles that contain fabricated data (Sox & Rennie, 2006).  The element of psychopathy  discussed above ( Williams et al. 2010) implies a general longstanding personality trait. Thus, it would not be unusual to see multiple examples of plagiarism within the   intentional realm.  In the case of Campbell  he uses the term “accidental” in his title. This suggests that it is a one-time only event. Similarly with George Harrison, apparently  there have been no other instances of  plagiarism.  Thus, in evaluating each case or example, there would be a search for other instances of  plagiarism.  Absent other examples lends some weight to the claim  of inadvertent plagiarism.

Causes of Inadvertent Plagiarism

There are several  potential etiological or explanatory factors that relate to inadvertent plagiarism.  One of the main explanations appears to  be memory problems. The overarching  cause of inadvertent plagiarism  may be source monitoring errors. Related to the source monitoring errors are the effects of age and affect.   Additionally, the possibility  of simultaneous emergence is considered.

With  inadvertent plagiarism, it is  as  if there is a mental blocking of the  identity of  the original source. The ideas, phrases, pictures, and so on may be embedded  into  long term memory, only to emerge at a later date.  When the thought or idea re-emerges and is recalled, there  is no conscious recognition of the  alleged or actual original source.   Everything appears new and original in the case of inadvertent plagiarism.

A. Source monitoring  errors

The last several decades has seen an abundance of research into the nature of inadvertent plagiarism.  The idea is to see if people who generate words, solve puzzles, or concepts can recall whether or not they in fact were the originators of the material at hand.  Source monitoring errors refers  to mistaking where the material  came from.

With inadvertent plagiarism, the subjects  in  various experiments wrongly believe that the solutions or concepts emanated from themselves. At  times, college students  believe that they, in fact, generated new material when in fact they did not. (Marsh, Landau & Hicks, 1997).   The subject is  first asked  to offer suggestions on reducing traffic accidents  and subsequently is asked for novel solutions.  College students erroneously believed that they had generated some of the novel responses, when in fact other participants had done so.  These sorts or errors were considered  demonstrations of unconscious or inadvertent plagiarism.

With elaborating of new materials, it appears there can even be increased enhancement of what was called unconscious plagiarism (Stark & Perfect, 2008). Subjects were asked to offer possible uses for common  objects such as a newspaper or brick. Later the subjects were asked to elaborate on their responses. The individuals in these studies seem to have had problems in discerning the original source of what they heard or experienced especially when they were  asked to improve or modify their initial contribution.  One implication   in  the academic  or business arena is there could be source monitoring errors  over time as to who actually originated a project or business plan.

B. Age and cognitive abilities

Secondly, both age and source monitoring errors  may be a factor in  eliciting inadvertent plagiarism.  By middle age not only is there likely to be cognitive overload , but at some point certain cognitive abilities may  have reached a plateau, or may show a decrease such as in delayed and immediate memory (Willis & Schaie, 2005.) In a source monitoring study, McCabe, Smith & Parks, 2007),  found that older adults, namely in their 70′s, were more likely to inadvertently plagiarize examples that they had encountered earlier.  However, it should be noted that with both of these possible explanations, the issue of generalizabilty   should be considered.  Although  based on laboratory studies,  they may offer some clues as to the etiology of inadvertent plagiarism.

C . Mood

How affective state  effects  inadvertent  plagiarism  was examined in a series of experiments   by Hege (2008.)    The college students were given a number of  word puzzles to solve along with a “partner” who was actually a computer. A typical source monitoring procedure  as described above was used. However,  Hege (2008) attempted to induce different mood states: a happy or a sad mood. This was accomplished by having the subjects write a happy or a sad personal experience story. The manipulation  appeared to be effective. Namely, the participants in  the sad group were more accurate compared  to the happy group, i.e. the sad group  produced fewer source monitoring errors. The implication was that the happy mood subjects were less able to focus and hence produced more instances of faulty memory.

D. Simultaneous emergence/coincidence

Another explanation of inadvertent plagiarism may be a simultaneous  or near-simultaneous emergence of the same product. Jung (1969) described the notion of the “collective unconscious.”    According to Jung, the collective unconscious can be  viewed as the mind being a repository or museum  of human history. For example, in various parts of the world, there are symbolic drawings that appear almost identical.  Created prior to intercontinental travel  it seems unlikely that there could have been intentional  reproductions.

A related explanation  for simultaneous occurrences  is that it may simply be the zeitgeist, where different people have the same thoughts. It is simply a coincidence.  In real  life, one person   may have coined the expression “nanny from Hell,”  but others may have also  independently  done so. Lending credence to the notion of coincidence would be if  the two individuals  did not speak the same language and had never communicated with  or contracted each other.  Obviously, a  verbatim or near  replica of the work would tend to negate this possibility.

Differentiating intentional versus inadvertent plagiarism

If intentional plagiarism is construed as a felony, then inadvertent plagiarism could be considered a misdemeanor.  Therefore, it is important to see if there can be a so-called differential diagnosis.  At present  there is no particular  psychological test  that has been given to alleged plagiarizers  to assess their  mental status or a psychiatric diagnosis.  The study by Williams et al (2010) , however, has  some interesting future implications. An extension of their study could incorporate additional psychological assesment tools. Would persons who show   symptoms of psychopathology or antisocial behavior on standardized testing be more prone to intentional plagiarism?  A forensic or incarcerated population might also yield some interesting  findings. A prediction is that persons who have been convicted of various crimes may be  more prone to acts of intentional  rather than inadvertent  plagiarism.

As noted above, intent is the major critical factor in differentiating between  the two forms of plagiarism.   Persons who are accused of plagiarism  are not  given a  psychological assessment or a polygraph examination.  There is no bright line test that definitively bifurcates intentional plagiarism from inadvertent plagiarism. However, there is an instructive case that may shine some light on separating the two types of plagiarism.  Namely, the Doris Kearns Goodwin matter.

At first glance, it would not seem to be a good idea that a scholar with the status of Doris Kearns Goodwin would resort to intentional plagiarism.  Similar to George Harrison, whose work would be  exposed to the mainstream, it was likely that her books would be read by thousands and thousands of individuals.  An article in the New York Times in 2002 summarizes the facts in this matter (King,  2002).  Kearns Goodwin denied plagiarizing and claimed that she simply made some  mechanical mistakes, namely she had delegated footnotes and other types of duties to a researcher.

One of the signs of inadvertent plagiarism is that there is no attempt to hide the reproduction. In the Doris Kearns Goodwin case, she actually cited the author, but later left out the correct citation.   According to a lawsuit that was filed, Kearns Goodwin allegedly copied 91 out of 240 pages.  Additionally, the copyright infringement lawsuit that was filed in this matter claims at least 45 out of 94 pages in her book contained copyright infringement material.  Perhaps not insignificantly, there was a settlement of the lawsuit wherein Kearns Goodwin paid out an undisclosed sum of money.   The switch from citation to non-citation is quite curious . It could be construed as an attempt to reduce reliance on a single author. Of course the major effect was to make it appear that the alleged plagiarizer is offering her own original ideas and thoughts.

Secondly, there is the issue of the proportion of plagiarized to non-plagiariezed material. Assume for the moment that a student turns in a 20 page term paper and properly cites accurate references on several pages.  However, the instructor discovers that half of the pages are actually from Wikipedia in a verbatim reproduction with numerous paragraphs  and pages never  cited.  It appears that the student is cleverly trying to show that  he or she did most of the work on an original basis and did not want to show that there was heavy reliance on just one source.  However, this is a diversionary tactic that makes it appear as if the uncited 10 pages are actually the  plagiarist’s original thoughts.  What is noteworthy that in the 20 page term paper, the ratio of cited to uncited  material is quite high, about 50% of the paper does not contain proper citation.  Thus, in the 20 page paper, if there was a sentence, or perhaps a paragraph, that appeared similar to some other source, this probably would not be particularly significant.  However,  10 uncited pages,  which is half of the entire product  copied from another source,  constitutes intentional plagiarism.   Thus although  there may not have been an intentional attempt to hide the plagiarism in the Kerns Goodwin book, the ratio of uncitied to cited material is quite high.

Looking back at George Harrison with respect to the three notes in his song, this is a small proportion of the entire song.  Secondly, viewing Campbell’s (2007) inadvertent or accidental plagiarism, several lines are placed in a longer poem.  The percentage was relatively small.  It is when the percentage of the uncited, unreferenced material becomes quite large that the evidence tends to point toward intentional plagiarism rather than inadvertent plagiarism.

Lastly, another indication as to whether there is inadvertent versus intentional plagiarism relates to whether or not an individual has other instances or episodes of alleged plagiarism.  In the Doris Kearns Goodwin case, according to King (2002), when another book was closely examined, other instances of alleged plagiarism emerged.  Thus, a close scrutiny of the overall facts and circumstances of each case is necessary in order to differentiate between what is intentional plagiarism versus. what is inadvertent plagiarism.

Conclusions

With the advent of the digital and internet age, the battle rages on between plagiarizers and methods of detecting plagiarism. There are different signs and symptoms that can serve to distinguish intentional versus inadvertent plagiarism. The rationale for examining the difference is that the penalties and sanctions may be different. As noted in the George Harrison case, a defense of unconscious or inadvertent plagiarism carries little weight.  However, outside the legal system, the significance may be important in terms of one’s reputation and credibility.

With intentional plagiarism there is a blatant and purposeful reproduction of another person’s product.  Once  an individual engages in plagiarism, it is not uncommon that multiple examples would be uncovered.. With  inadvertent  plagiarism, there may be no particular  attempt to hide the plagiarism. Looking at signs and symptoms, it may be possible to at least gain some understanding as to whether an alleged case is either intentional or inadvertent.  With intentional plagiarism one of the hallmark causes may an underlying psychopathy. However, it was noted that this personality trait does not necessarily rise to the level of a clinical diagnosis. With inadvertent plagiarism, it may be that there is a blockage with respect to the actual source.  Future lines of inquiry can assess personality and behavioral characteristics of actual or potential plagiarizers.

References

Batty, D. (2008). Raj Persaud: TV psychiatrist admits plagiarism  www.guaridan.co.uk/society/jun/16/mentalhealth/health.

Bink, M.L., Marsh, R.L., Hicks, J.L. & Howard, J.D. (1999), The Credibility of a Source Influences the Rate of Unconscious Plagiarism, Memory, 7, 293-308.

Brown, A.S. & Murphy, D.R. (1989), Cryptomnesia: Delineating Inadvertent Plagiarism, Journal of Experimental Psychology: Learning, Memory and Cognition, 15, 432-442.

Campbell, E  (Spring,2007) The accidental plagiarist: The trouble with originality  Virginia Quarterly ,  238-256.

Franklyn-Stokes,   A., & Newstead, S.E.  (1995) Undergraduate cheating: Who does what and why.  Studies in Higher Education 20, 159-172.

Grant, B  (23,June 2008)  UK psychiatrist suspended for plagiarism www.thescientist.com/blog/display/54763.

Hayden, J. (2005) Of Monsters, Muggles and Pink Monkeys: The Crisis of Plagiarism in Academia, The CEA Forum, 34.1 www2.widener.edu/~cea341hayden.htm.

Hege, A. C. G. (2008) The effect of affective state on inadvertent plagiarism. Doctoral Dissertation, University of Virginia.

Jung, C (1969)  Archetypes and the collective unconscious. Princeton: Princeton University Press.

Kaul , R, Clariana, R.B. Jitgarun, K. Songsrittaya, A. (2009) The influence of achievement goal orientation on plagiarism. Learning and Individual Differences, 19, 506-512.

King, P.H. (August 4, 2002), As History Repeats Itself, the Scholar Becomes the Story, Los Angeles Times. Articles.latimescom/2002//aug/o4/nationa/na-goodwin4.

Kock, N. (1999), A Case of Academic Plagiarism, Communications of the ACM, 42, 96-104.

Kock, N. & Davison, R. (2003), Dealing with Plagiarism in the Information Systems Research Community: A Look at Factors that Drive Plagiarism and Ways to Address Them, MIS Quarterly, 27, 511-532.

McCabe, D.P., Smith, A.D. & Parks, C.M. (2007) Inadvertent Plagiarism in Young and Older Adults: The Role of Working Memory Capacity in Reducing Memory Errors, Memory and Cognition, 35, 231-241

McCrink, A. Academic misconduct in nursing students: Behaviors , attitudes, rationalizations, and cultural identity,  Journal of Nursing Education  49, 653-659.

Murphy, P. Commentary: Lawyer nabbed for plagiarism. Lawyers USA October 18, 2010.

Pyle, E. (September 14, 2010)  Plagiarism a persistent problem on campuses. Columbus

Dispatch. www.dispatch.com/live/content/local_news/stories/2010/0914/plagiarism-persist…

Roig, M . (2001) Plagiarism and paraphrasing criteria of college and university professors.  Ethics and Behavior, 11, 307-323.

Roig, M. (2010) . Plagiarism and self-plagiarism: What every author should know. ­  Biochemica Medica, 20, 295-300.

Self, J.C. (1993), The “My Sweet Lord”/”He’s so Fine” Plagiarism Suit, http://abbeyrd.best.vwh.net/mysweet.htm.

Sox, H.C. & Rennie, D. (2006), Research Misconduct Retraction, and Cleansing the Medical Literature: Lessons from the Poehlman Case, Annals of Internal Medicine,  144, 609-613.

Stark, L. & Perfect, P.J. (2008), The Effects of Repeated Idea Elaboration on Unconscious Plagiarism, Memory and Cognition, 36, 65-73.

Vasconcelos, S., Leta, J. Costa, L., Pinto, A & Sorenson, M.M (2009)  Discussing plagiarism in Latin American science,  EMBO Reports 10, 677-682.

Woessner, M.C. (2004) Beating the house: How inadequate penalties for cheating make plagiarism an excellent gamble,  Political science, 37, 313-320.

Williams, K. M, Nathanson, C, & Paulhus, D. L. (2010.) Identifying and profiling scholastic cheaters: Their personality, cognitive ability, and motivation. ­ Journal of Experimental Psychology: Applied,  16, 293-307.

Willis, S. L. & Schaie, K.W. (2005) Cognitive trajectories in midlife and cognitive functioning in old age. In Wills, S.M Martin, M. (Eds.) Middle Adulthood: A life span perspective, pp. 243-275), Thousand Oaks:  Sage.

Yang, M & Lin, S. The perception of referencing and plagiarism amongst students coming from Confucian heritage cultures. ­Paper presented at the 4^th Asia Pacific Conference on Educational Integrity,   September 28-30, 2009, University of Wollongong, NSW, Australia.