Diary of a Mad Shrink
Linda Grounds
( A modified version of this article appeared in the Oregon Psychological Association Bulletin and is reprinted with kind permission of it’s author. Eds.)
Typically, I begin my columns by talking about the fun I’m having watching one or another sports extravaganza. Recently however that has, sadly, not filled the happy place it usually does. And why is that, you ask?
Well, it’s mostly because of the Dreaded Subpoena. Two weeks ago after a successful meeting with an attorney representing a young woman who had been injured in a car accident, I heard the door to my waiting room open unexpectedly. I gazed through the peephole in my door and did not recognize the man sitting in my waiting room. For a moment I hesitated to go out, but he had an envelope in his hand and I thought he might be in the wrong office.
So, I opened my door and stepped out, and he asked, “Are you Dr. Grounds?” When I responded, “Yes?” he reached out with the envelope he had been holding and began to read from a script stating that my appearance being required in Such-and-Such Court, on a date ten days later in the So-and-So Matter. He then turned on his heels and left me standing there, holding the Dreaded Subpoena and the “required” check for $30, which is what “fact” witnesses get paid for spending hours entangled in the legal process.
To make matters oh-so-much-worse, this was an ugly domestic relations case involving a person I was treating and whose spouse was representing her/himself (think bad Court TV). Oh, and the date on which my attendance was required was Day Three of a scheduled, much needed vacation. Now most folks who know me well would say that I don’t have much of a temper and am pretty long suffering where others are concerned. I don’t know where that Linda went, but the Linda standing in the empty waiting room was instantly and seriously ticked off, I mean seriously. However, rather than process those feelings immediately (which I would get to later), and following frequently provided safety instructions, I marched back to my desk and called an attorney, who though out of the office on a case, called me back within 15 minutes and told me to fax the subpoena to his office. Thereafter, I was in the hands of his able and patient associate, who immediately began to attempt to quash the subpoena based on patient-therapist privilege.
In a multistep process, my attorney determined that it would not be possible to quash the subpoena because of an underlying court order, which was in place and had to do with the requirements of the custody evaluation that had taken place in the case. I had been interviewed by the Custody Evaluator and quoted in his report, and the court order specified that anyone interviewed by the custody evaluator could be required to testify. I told Dave I was certain there couldn’t be anything objectionable in my comments to the Custody Evaluator because I had (read ‘thought I had’) been meticulous in only talking about my patient, not being drawn into any opinion about the spouse or offering any opinion whatsoever about the custody questions.
But oh, no. my attorney obtained relevant portions of the Custody Evaluator’s report and there, in my own words in quotation marks, was the smoking gun phrase. In response to a statement by the Custody Evaluator regarding his/her concerns about the person issuing the subpoena, I was quoted as saying, “Well, based on what my client has said, I wondered about…,” and used clinical terms to describe a hypothesis I had held but not expressed. Now I was really mad. My own slip in the extreme restraint required by this situation had reached up and bitten me. And, I was to be examined on the stand by a spouse who was representing him/herself to whom I was informed the judge would give great leeway. And, all of this was going to take place while I was supposed to be on vacation and it was to some degree my own darn fault.
Ultimately and surprisingly, my attorney was able to get the self-representing spouse who sent the Dreaded Subpoena to agree to telephonic testimony so I could go on vacation. In the end, even this did not occur because the case settled, but not until a half-hour into the five hours I was required to be available by telephone. Then, my client left a message saying that s/he declined to pay for the professional time I had spent in responding to the subpoena in an attempt to protect his/her privilege (which did not include fees for legal services), and suggested that I bill the person who sent the subpoena. This of course was entirely inappropriate as I had no relationship with the subpoena-sender. Luckily, as per Paul Cooney and Eric Johnson’s oft-repeated recommendations, I have a section in my Informed Consent document that addresses unexpected legal charges. It’s not clear what the outcome will be on that issue, which, of course, adds to the countertransference issues that I need to explore. What I can say is that I plan to beef up the relevant section in my Informed Consent document considerably!
So what is the take-away message here from my “I am not a lawyer and this is not intended to be legal advice” perspective:
- Be wary of the unexpected stranger in your waiting room.
- Follow the oft-repeated advice. Don’t stall. Call your attorney immediately upon receiving a subpoena. S/he will walk you through this and it will take time.
- Make sure that your Informed Consent document lays out in detail how you will deal with subpoenas, being called to court, etc., and the client’s financial responsibility for that time. This may certainly not insure payment, but will give you grounds to negotiate with your client.
- If you are working with a client who has a difficult marriage including minor children, predict and plan for the eventuality that you may be called into court, even if you make every effort to avoid this eventuality.
- Lay out in detail in your informed consent documents how you will respond if called into court, e.g., not being able to offer opinion about spouse or custody.
- Be very attentive to what you say to a client or write in your clinical notes about the spouse. Your client may quote you and your notes may be discoverable.
- Be aware that if your client is involved in a custody dispute, you are likely to be interviewed by a Custody Evaluator and that s/he may quote you in their report. In some jurisdictions, as in this case, anyone interviewed by the Custody Evaluator can be required to testify. Among the other issues that this raises, it clearly poses risks to confidentiality of the person who may be in ongoing therapy with you.
- Ultimately, be resigned to the fact that the Dreaded Subpoena is a part of our business and attempt to adopt a phlegmatic attitude. Good luck with that. I’m still working on it!
