Interesting Case for Custody Evaluator Lawsuit / Immunity Rebuttal

Davis v Medical Evaluation Specialists  

(I’m only going to copy over the relevant parts – see the bold / underlined parts of what I have copied)
Appellant pleaded that local plaintiffs attorneys had detected a bias against claimants by doctors affiliated with MES. For example, appellant’s pleadings alleged that when MES physicians were involved, the reports allegedly all read the same, and the result was allegedly almost always a 0% impairment rating. Appellant thus alleged that MES and its physicians were not participating in good faith in evaluating workers’ compensation claims.(FN2) Appellant contends that MES was subverting the TWCA by recruiting physicians who would ignore the American Medical Association (AMA) guidelines and knowingly assign false and fraudulent impairment ratingsthat would attract insurance company business.  

The TWCC then designated another doctor to evaluate appellant (A Second Opinion). The new designated doctor examined appellant and assigned an impairment rating of 21% under the AMA guides.  (second opinion was in disagreement with the bias doctor)  

(The bias doctors) moved for summary judgment, claiming absolute derived judicial immunity and qualified “good faith” immunity.   ( The trial court granted immunity) 

In point of error one, appellant contends it was error for the trial court to grant the summary judgment motions of MES, Dr. DeFrancesco, and Dr. Dozier based upon either absolute derived judicial immunity or qualified “good faith” immunity.    These appellees rely heavily on Delcourt v. Silverman (which Sherry relies heavily on)

(The second opinion) affidavit created a fact issue as to whether Dr. DeFrancesco and Dr. Dozier acted in bad faith when they assessed appellant
These appellees rely on Putthoff v. Ancrum, 934 S.W.2d 164, 166-67 (Tex. App.–Fort Worth 1996, writ denied), in which the plaintiffs complained that a negligent autopsy prevented them from proving their daughter was murdered. The pathologists claimed qualified judicial immunity, and their motion for summary judgment was denied.  

In City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex. 1994), the supreme court adopted a good faith test consisting of “objective legal reasonableness.” This standard applies in all qualified or official immunity cases. Murillo v. Garza, 881 S.W.2d 199, 202 (Tex. App.–San Antonio 1994, no writ). The element of good faith is satisfied when it is shown that a reasonably prudent person in the same or similar circumstances would have taken the same actions. City of Houston v. Newsom, 858 S.W.2d 14, 18 (Tex. App.–Houston [14th Dist.] 1993, no writ). To controvert summary judgment proof on good faith, the plaintiff must do more than show a reasonably prudent person would not have taken the same action; “the plaintiff must show that ‘no reasonable person in the defendant’s position could have thought the facts were such that they justified defendant’s acts.‘” City of Lancaster, 883 S.W.2d at 657 (emphasis added).  (No reasonable person like the list of a dozen experts that have come in behind Sherry with second opinion reports??)
plaintiffs did not lose because the defendants’ affidavits were unassailable. They lost because their own controverting affidavit was inadequate. All it stated was that the defendant doctors were negligent; it wholly failed to say that they acted in bad faith. See id. at 173.  

“We must also bear in mind that it is not appellees’ burden to disprove good faith, but merely to raise a fact issue.” Murillo v. Garza, 904 S.W.2d 688, 692 (Tex. App.–San Antonio 1995, writ denied).  

The appellees claim that (the second opinion) affidavit was conclusory and unsupported by any medical or other objective data. We (the appellate court) disagree.  We sustain the first point of error.

Delcourt, 919 S.W.2d at 787. This argument must fail because we have found above that the physicians in question are not immune if they acted in bad faith, and a fact issue was raised on this question. Unlike the court-appointed psychiatrist and the attorney ad litem defendants in Delcourt, and unlike the corrupt judge in the Delcourt hypothetical, appellees are not entitled to common-law absolute derived judicial immunity. They are immune by statute only for their acts “in good faith.” For acts in bad faith, they have no immunity. Tex. Lab. Code Ann. §§ 413.054(a), 402.010(b). These appellees’ contention that they derive immunity from Dr. Dozier and Dr. DeFranceso fails for the same reason.  
We sustain the second point of error.

We reverse the judgment and remand the cause.  

Arguments for Custody Evaluator Immunity in Lawsuit

Sherry cites Jones vs Sherry case in support for her immunity  cases.justia.com/texas/third-court-of-appeals/2019-03-18-00279-cv.pdf?ts=1561724417  Quotes from that appeal:
“When a person is entitled to derived judicial immunity, he or she receives the same absolute immunity from liability for acts performed within the scope of his or her jurisdiction as that of a judge. Dallas County v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002) (concluding that court reporter was not entitled to derived judicial immunity)” 
“Applying the functional approach and considering Dr. Sherry’s relationship to the judicial process in the underlying divorce proceedings, we conclude that Dr. Sherry is entitled to derived judicial immunity for any acts performed within the scope of her delegated authority ” 

Most importantly Sherry violated the Texas Family Code (§107.108) to abide by all standards of care and all ethical standards guidelines ;
AFCC Rules –  Model Standards of Practice for Child Custody Evaluation
www.afccnet.org/Portals/0/ModelStdsChildCustodyEvalSept2006.pdf5.1 ESTABLISHING THE SCOPE OF THE EVALUATION 
The scope of the evaluation shall be delineated in a Court order or in a signed stipulation by the parties and their counsel.

At no point does the Jones appeal discuss the fact that Sherry did not perform within the scope of her delegated authority, and does not mention that Sherry did not follow the laws and codes as stated in Sherry’s own signed stipulation by the parties.   Sherry citing the Jones appeal is irrelevant because the cases are brought about on totally different claims.   Sherry’s scope of the evaluation was delineated in the signed agreement between the parties that stated

  1. Alissa Sherry and her corporation would, and were required to abide by the ethical standards of Psychologists, The Texas Psychologists Licensing Act, and the rules of the Texas State Board of Examiners of Psychologists.  
  2. Forensic assessments conducted through Legal Consensus PLLC are conducted with the highest regard for the ethical standards for licensed psychologists and the ethical standards for forensic psychologists
  3. Alissa Sherry and her corporation would be as legally, professionally, and financially independent of the parties as possible.  In this way the examiner maintains his/her personal integrity
  4. Alissa Sherry and her corporation would provide an independent, neutral, objective examination

Sherry specifically did not complete her contract within the above scope of the evaluation by violating the following laws and codes:

The Relevant and Controlling Statutes and Board Rules

  • The determination of whether or not Legal Consensus fulfilled or breached its contractual obligations requires the Court to consider the applicable contract terms, the relevant statutes, Board rules, and the American Psychological Association (“APA”) Ethical Principals and Code of Conduct applicable to the Legal Consensus Fee Agreement:

  • Tex. Fam. Code:
    • §107.0512. SOCIAL STUDY EVALUATOR: CONFLICTS OF INTEREST AND BIAS.
      • (a) A social study evaluator who has a conflict of interest with any party in a disputed suit or who may be biased on the basis of previous knowledge, other than knowledge obtained in a court-ordered evaluation, shall: (1) decline to conduct a social study for the suit; or (2) disclose any issue or concern to the court before accepting the appointment or assignment.
      • b) A social study evaluator who has previously conducted a social study for a suit may conduct all subsequent evaluations in the suit unless the court finds that the evaluator is biased.
    • §107.0513. GENERAL PROVISIONS APPLICABLE TO CONDUCT OF SOCIAL STUDY AND PREPARATION OF REPORT.
      • (a) Unless otherwise directed by a court or prescribed by a provision of this title, a social study evaluator’s actions in conducting a social study shall be in conformance with the professional standard of care applicable to the evaluator’s licensure and any administrative rules, ethical standards, or guidelines adopted by the state agency that licenses the evaluator.
      • (c) A social study evaluator shall follow evidence-based practice methods and make use of current best evidence in making assessments and recommendations.
      • (e) To the extent possible, a social study evaluator shall verify each statement of fact pertinent to a social study and shall note the sources of verification and information in the report.
    • §107.0514. ELEMENTS OF SOCIAL STUDY.
      • (a) The basic elements of a social study under this subchapter consist of:
        • (2) an interview, conducted in a developmentally appropriate manner, of each child at issue in the suit who is at least four years of age;
        • (7) assessment of the relationship between each child at issue in the suit and each party seeking possession of or access to the child.
      • (b) The additional elements of a social study under this subchapter consist of:
        • (1) balanced interviews and observation of each child at issue in the suit so that a child who is interviewed or observed while in the care of one party to the suit is also interviewed or observed while in the care of each other party to the suit;
        • (2) an interview of each individual residing in a residence subject to the social study;
        • (3) evaluation of the home environment of each party seeking conservatorship of a child at issue in the suit or possession of or access to the child, regardless of whether the home environment is in dispute.
      • (c) A social study evaluator may not offer an opinion regarding conservatorship of a child at issue in a suit or possession of or access to the child unless each basic element of a social study under Subsection (a) has been completed.
    • §107.107 provides that: “before accepting appointment as a child custody evaluator, the person must disclose to the court, the parties’ attorneys, any conflict of interest, any relationship or confidence or trust the person believes the person has with an attorney in the suit, and or any other information relating the persons relationship with an attorney in the suit that could affect the ability of the person to act impartially in conducting the child custody evaluation. After appointment, the person shall immediately disclose to the court any conflict of interest.”
    • §107.108
      • §107.108(a) provides that: A child custody evaluator’s actions must be in conformance with the professional standard of care applicable to the evaluator’s license and any ethical standards or guidelines of the licensing authority that licenses the evaluator.
      • §107.108(c) provides that: A child custody evaluator shall follow evidence-based practice methods, and make use of current best evidence in making assessments and recommendations.
      • §107.108(d) provides that: A child custody evaluator shall disclose to each attorney of record any communication regarding a substantive issue between the evaluator and an attorney of record representing one of the parties. 
      • §107.108(e) provides that: A child custody evaluator shall verify each statement of fact pertinent to a child custody evaluation and shall note the sources of verification and information in the report.
      • §107.108(f) provides that: A child custody evaluator shall state the basis of the evaluator’s conclusions, in the extent to which the information obtained limits the reliability and validity of the opinion and the conclusions and recommendations of the evaluator.
    • §107.109(d) provides that: The additional elements of a child custody evaluations consist of balanced interviews and observations of each child.
    • §107.112 (c) provides that: Except for records obtained from the department in accordance with Section 107.111, a private child custody evaluator shall, after completion of an evaluation and the preparation and filing of a child custody evaluation report under Section 107.113, make available in a reasonable time the evaluator’s records relating to the evaluation on the written request of an attorney for a party, a party who does not have an attorney, and any person appointed under this chapter in the suit in which the evaluator conducted the evaluation, unless a court has issued an order restricting disclosure of the records.
    • §107.115 provides that: The court shall award the person a reasonable fee for the preparation of the evaluation that shall be imposed in the form of a money judgment.
  • Texas Board Psychology Rules (Tex. Admin. Code Title 22 part 21 §461.1 et seq) 
    • 463.8- Licensed Psychological Assistant
      • must practice under the supervision of a licensed psychologist and may not practice independently, unless meet certification standards
  • 465.9 Competency

(a) Licensees maintain current knowledge of scientific and professional information that ensures competency in every area in which they provide services.

(b) Licensees provide services in an unfamiliar area or involving new techniques only after first undertaking appropriate study and training, including supervision, and/or consultation from a professional competent to provide such services.

(c) In emerging areas in which generally recognized standards for preparatory training do not exist, licensees take reasonable steps to ensure the competence of their work and to protect patients,clients, research participants, and other affected individuals from the potential for harm.

(d) Licensees are responsible for ensuring that all individuals practicing under their supervision are competent to perform those services.

(e) Licensees who delegate performance of certain services such as test scoring are responsible for ensuring that the entity to whom the delegation is made is competent to perform those services.

(f) Licensees who lack the competency to provide particular psychological services to a specific individual must withdraw and refer the individual to a competent appropriate service provider.

(g) Licensees refrain from initiating or continuing to undertake an activity when they know or should know that there is a substantial likelihood that personal problems or conflicts will prevent them from performing their work-related activities or producing a psychological report in a competent and timely manner. When licensees become aware of such conflicts, they must immediately take appropriate measures, such as obtaining professional consultation or assistance in order to determine whether they should limit, suspend, or terminate the engagement in accordance with Board rule §465.21 of this title (relating to Termination of Services)

  • 465.10 provides that: Basis for Scientific and Professional Judgments:
    • Licensees rely on scientifically and professionally derived knowledge when making professional judgments.”

  • 465.11- Informed Consent.

(a) Except in an inpatient setting where a general consent has been signed, licensees must obtain and document in writing informed consent concerning all services they intend to provide to the patient, client or other recipient(s) of the psychological services prior to initiating the services, using language that is reasonably understandable to the recipients unless consent is precluded by applicable federal or state law.

(b) Licensees provide appropriate information as needed during the course of the services about changes in the nature of the services to the patient client or other recipient(s) of the services using language that is reasonably understandable to the recipient to ensure informed consent.

(c) Licensees provide appropriate information as needed, during the course of the services to the patient client and other recipient(s) and afterward if requested, to explain the results and conclusions reached concerning the services using language that is reasonably understandable to the recipient(s).

(d) When a licensee agrees to provide services to a person, group or organization at the request of a third party, the licensee clarifies to all of the parties the nature of the relationship between the licensee and each party at the outset of the service and at any time during the services that the circumstances change.

(f) At any time that a licensee knows or should know that he or she may be called on to perform potentially conflicting roles, the licensee explains the conflict to all affected parties and adjusts or withdraws from all professional services in accordance with Board rules and applicable state and federal law. Further, licensees who encounter personal problems or conflicts as described in Board rule 465.9(i) of this title that will prevent them from performing their work-related activities in a competent and timely manner must inform their clients of the personal problem or conflict and discuss appropriate termination and/or referral to insure that the services are completed in a timely manner.

  • 465.13
  • 465.13(a) In General:
    • 465.13(a)(1) provides that: Licensees refrain from providing services when they know or should know that their personal problems or a lack of objectivity have the potential to impair their competency or harm a patient, client, colleague, student, supervisee, research participant, or other person with whom they have a professional relationship.
    • 465.13(a)(3) provides that: Licensees do not exploit persons over whom they have supervisory evaluative, or other authority such as students, supervisees, employees, research participants, and clients or patients.
    • 465.13(a)(4) provides that: Licensees refrain from entering into any professional relationship that conflicts with their ability to comply with all Board rules applicable to other existing professional relationships.
    • 465.13(a)(5) provides that: Licensees withdraw from any professional relationship that conflicts, or comes into conflict with, their ability to comply with Board rules relating to other existing professional relationships.
  • 465.13(b) Dual Relationships:
    • 465.13(b)(1) provides that: A licensee must refrain from entering into a dual relationship with a client, patient, supervisee, student, group, organization, or any other party if such a relationship presents a risk that the dual relationship could impair the licensee’s objectivity, prevent the licensee from providing competent psychological services, or exploit or otherwise cause harm to the other party.
    • 465.13(b)(2) provides that: A licensee must refrain from a professional relationship where pre-existing personal, financial, professional, or other relationships have the potential to impair the licensee’s objectivity or have any other potential to harm or exploit the other party.
    • 465.13(b)(5): provides that A licensee considering a professional relationship that would result in a dual or multiple relationship shall take appropriate measures, such as obtaining professional consultation or assistance, to determine whether there is a risk that the dual relationship could impair the licensee’s objectivity or cause harm to the other party. If any potential for impairment or harm exists, the licensee shall not provide services regardless of the wishes of the other party.
    • 465.13(b)(6) provides that: A licensee in a potentially harmful dual or multiple relationship must cease to provide psychological services to the other party, regardless of the wishes of that party.
  • 465.15- Fees and Financial Arrangements
    • (a) (3) Licensees shall not withhold records solely because payment has not been received unless specifically permitted by law.
    • (b) Ethical and Legal Requirements.
    • (2) Licensees do not misrepresent their fees.
    • (3) Licensees do not overcharge or otherwise exploit recipients of services or payers with respect to fees.
  • 465.16
    • 465.16(b)(1) provides that: “Licensees verify… that every evaluation… recommendation… evaluation statement… is based on information and techniques sufficient to provide appropriate substantiation for its findings.”
    • 465.16(b)(3) provides that: “Licensees who… utilize psychological assessment techniques… do so in a manner and for purposes for which are professional or scientific-based.”
    • 465.16(c)(1) provides that: “Licensees include all information that provides the basis for their findings in any report in which they make findings or diagnoses about an individual.”
    • 465.16(c)(2) provides that: “Licensees identify limits to the certainty with which diagnoses, judgments, or predictions can be made about individuals.”
    • 465.16(c)(3) provides that: “Licensees identify various test factors and characteristics of the person being assessed that might affect their professional judgment… when interpreting assessment results, including automated interpretations.”
    • 465.16(c)(5) provides that: “Licensees provide opinions of the psychological characteristics of individuals adequate to support their statements or conclusions…”
  • 465.17
    • 465.17(e)(4)(A) Disclosure of Conflict and Bias provides that: “Licensees shall comply with all disclosure requirements set forth in Tex. Fam. Code Ann. §107.107.”
    • 465.17(e)(5)(A) Elements of Child Custody Evaluation provides that: “Licensees shall comply with Tex. Fam. Code Ann. §§ 107.108, 107.109, and 107.1101 when conducting child custody evaluations.”
  • 465.18
    • 465.18(a)(3) provides that: All forensic opinions, reports, assessments, and recommendations rendered by a licensee must be based on information and techniques sufficient to provide appropriate substantiation for each finding.
    • 465.18(b)(1) Limitation on Services- A licensee who is asked to provide an opinion concerning an area or matter about which the licensee does not have the appropriate knowledge and competency to render a professional opinion shall decline to render that opinion.
    • 465.18(c)(4) provides that Describing the Nature of Services. A licensee must document in writing that subject(s) of forensic evaluations or their parents or legal representative have been informed of the following:… (4) The identity of the party who will pay the psychologist’s fees and if any portion of the fees is to be paid by the subject, the estimated amount of the fees…
    • 465.18(c)(7) The approximate length of time required to produce any reports or written results
    • 465.18(e)(6)(A) provides: (A) Licensees shall comply with the requirements of Tex. Fam. Code Ann. §107.112  regarding:
  • (i) the disclosure of communications between evaluation participants;
  • (ii) the creation and retention of records relevant to the evaluation; and
  • (iii) access to evaluation records
  • 501.351- General Authority to Delegate

A- A psychologist licensed under this chapter may delegate to a provisionally licensed psychologist, a newly licensed psychologist who is not eligible for managed care panels, a person who holds a temporary license issued under Section 501.263…

B- Delegating psychologist remains responsible. Individual administering the test must inform each patient that the person is being supervised by a licensed psychologist.

C- The board may determine whether the test/service may be properly and safely delegated.

Custody Evaluator Immunity Exceptions

see attached:  Appellate court determined that an amicus attorney was immune but only as long as there were no exceptions to immunity (bad faith, malice, willfully wrongful, fraudulent).  This person lost however only because they didn’t produce any evidence that would prove the exception.  
         On appeal, Black argues that Tanner had no right to sue her because she had immunity. Section 107.009 provides that ” an amicus attorney” appointed to assist the court is immune from liability for civil damages ” arising from an action taken, a recommendation made, or an opinion given in the capacity of . . . amicus attorney.” Tex. Fam. Code § 107.009(a). However, this statutory grant of immunity is not absolute; an exception to immunity exists for a recommendation made or an opinion given ” (1) with conscious indifference or reckless disregard to the safety of another; (2) in bad faith or with malice; or (3) that is grossly negligent or willfully wrongful.” Id. § 107.009(b). Immunity under section 107.009 is an affirmative defense. See Tex. R. Civ. P. 94; Zeifman v. Nowlin322 S.W.3d 804, 808 (Tex.App.–Austin 2010, no pet.); Kabbani v. Papadopolous, No. 01-07-00191-CV, 2009 WL 469546, at *2–4 (Tex.App.–Houston [1st Dist.] Feb. 26, 2009, pet. denied) (mem. op.). A defendant raising an affirmative defense must plead and prove all elements of the affirmative defense in order to be entitled to judgment in his favor. See, e.g.,McIntyre v. Ramirez109 S.W.3d 741, 748 (Tex. 2003); Vu v. ExxonMobil Corp., 98 S.W.3d 318, 320–21 (Tex.App.–Houston [1st Dist.] 2003, pet. denied).  

Once Nowlin conclusively established as an affirmative defense that she was entitled to the statutory immunity afforded an amicus attorney, the burden of production shifted to Zeifman to present evidence sufficient to create a fact issue on at least one element of either the affirmative defense or an exception to the affirmative defense. SeePalmer v. Enserch Corp.,728 S.W.2d 431, 435 (Tex.App.-Austin 1987, writ ref’d n.r.e.) (citing Moore Burger, Inc. v. Phillips Petroleum Co.,492 S.W.2d 934 (Tex.1972)). Zeifman did not produce or file any summary judgment evidence at all in response to Nowlin’s motion, relying instead solely on the allegations contained in his petition.

Psychologist Can’t Be One Sided Expert

CHILD CUSTODY – EVIDENCE – PSYCHOLOGICAL EXAM

Kelly v. Kelly
No. 46748
(Idaho Supreme Court, September 10, 2019)
The magistrate court abused its discretion by permitting husband to retain psychologist to perform a parenting time evaluation as his expert, in divorce proceeding when child custody was a contested issue; parenting time evaluators can be selected only by stipulation of the parties or by appointment of the court, in either case, the chosen expert must be neutral, and not beholden to either side, and psychologist was ultimately paid over $105,000 to conduct the parenting time evaluation on behalf of husband. Further, the magistrate court abused its discretion when it ordered wife to undergo a psychological evaluation and counseling, as recommended by psychologist, husband’s expert, during child custody portion of divorce trial; a judge had no authority to order medical or psychological treatment in a child custody case unless there was direct testimony that such treatment would be in the best interest of the child, and there was no language indicating a psychological evaluation was in the best interests of child

Can My Experience with Child Custody Experts Help Others? - My Advocate Center

Can My Experience with Child Custody Experts Help Others? – My Advocate Center

Have you faced family conflict in Georgia that resulted in child custody litigation?

If you have, then the chance is pretty high you have something to say about your experience and may even want your experience to be useful in improving the process for others.

If you believe the process is overused and/or can be improved for the sake of increasing safety, peace of mind and availability of nurturing parents for children, your answers are especially important.

Regardless of where you are in the process, what the outcome has been, or even if it is not your experience but that of a family member or friend, your input is valuable in shaping the future of conflict resolution.

Please complete the form below and use the Contact Us form if you have any questions. Thank you!

Read More –>

Can My Experience with Child Custody Experts Help Others?

Can My Experience with Child Custody Experts Help Others?

Have you faced family conflict in Georgia that resulted in child custody litigation?

If you have, then the chance is pretty high you have something to say about your experience and may even want your experience to be useful in improving the process for others.

If you believe the process is overused and/or can be improved for the sake of increasing safety, peace of mind and availability of nurturing parents for children, your answers are especially important.

Regardless of where you are in the process, what the outcome has been, or even if it is not your experience but that of a family member or friend, your input is valuable in shaping the future of conflict resolution.

Please complete the form below and use the Contact Us form if you have any questions. Thank you!

Read More –>