Psychological Autopsy
Forensic psychiatrist Harold Bursztajn Princeton '72, Harvard Medical
School '76, acknowledges ambiguity in lawsuits
by Van Wallach
Princeton Alumni Weekly, September 8, 1999
Two malpractice suits involving informed consent show how forensic psychiatrist
Harold Bursztajn, M.D. Princeton '72, Harvard Medical School '76, evaluates
complex situations. In one, Meador v. Stahler and Gheridian, Bursztajn
testified in favor of a woman who had a Caesarean-section procedure against
her wishes, followed by serious complications. She had signed a consent
form, but Bursztajn, associate clinical professor in the department of
psychiatry at Harvard Medical School, argued that her doctors in fact
did not get her informed consent. A jury awarded her $1.5 million. In
another case, Drewry v. Harwell, he testified in favor of a doctor who
performed what a patient came to consider an unwanted hysterectomy and
abortion after she had given informed consent. In this episode, a 'psychological
autopsy' of the decisions made by the patient and doctor convinced Bursztajn
that the doctor had acted properly. A jury agreed unanimously.
Two cases, similar issues, but Bursztajn followed the facts and context
in different directions. In the first case he supported a patient's right
to make health-care choices, while in the second he protected a doctor's
ability to make choices given a patient's consent.
"If we don't have informed consent both as a clinical practice standard
and a potential defense, we don't have a respect for persons that's necessary
for medical practice," he explains. Evidence, rather than ideology,
guides him in these and other aspects of his work; sometimes he is retained
by the plaintiff, sometimes by the defense.
Bursztajn describes his work as "not helping people win but achieving
a just resolution by my ability to be both effective and ethical at the
same time. My job is to go beyond the adversarial relationship and try
to understand a case deeply enough so that ambiguity can be acknowledged
and people can reach a settlement."
A vast majority of cases on which he consults are settled before going
to trial. (Bursztajn's Website, www.forensic-psych.com,
defines a forensic psychiatrist as "a physician who integrates clinical
experience, knowledge of medicine, mental health, and the neurosciences
to form an independent, objective opinion.")
At a December speech at Harvard before 300 doctors, Bursztajn urged the
audience to maintain "mutual respect" with patients even under
trying circumstances, and guard against unconscious "abandonment" of
patients by not returning their phone calls or being late for appointments,
for example. Besides respect, justice is another concept that Bursztajn
often mentions. He credits his "love of freedom and justice" to
his parents, Polish Jews who were surviving members of the Resistance
in the Lodz ghetto. Twice, he recalls, ghetto doctors saved his father's
life, and their actions strongly influenced Bursztajn's career choices
and perspective.
The family moved from Poland to New Jersey in 1959. At Princeton Bursztajn
was a University Scholar and wrote his thesis on Wittgenstein and Husserl.
He attended Harvard Medical School, and now serves as codirector of the
Program in Psychiatry and the Law at the Harvard Medical School Department
at the Massachusetts Mental Health Center. Bursztajn maintains a private
practice in Cambridge as a psychoanalyst, psychiatrist, and primary care
physician. His wife, Patricia Illingworth, J.D., is a professor of ethics
at Northeastern University and they have a ten-year-old daughter, Zoe,
whom he describes as "both a wonderful joy and a teacher."