Key Takeaway
Court rules psychologist from Ukraine incompetent to testify as expert witness due to lack of proper credentials in New York no-fault insurance case.
If you are going to spend money on a rebuttal, make sure (s)he has the proper credentials. As many people have told me in life, you get what you pay for. This case, a colossal disaster, proves that point. In fact, I am hoping Plaintiff appeals this…
Five Boro Psychological Servs. v GEICO Ins. Co., 2011 NY Slip Op 50882(U)(Civ. Ct. Kings Co. 2011)
“Plaintiff then called Vladimir Grinsberg (“Grinsberg”) as a rebuttal witness. Grinsberg was a clinical psychologist in the Ukraine where he worked for six years in a psycho – neurological clinic. He claims that he administered the five tests at issue while working in the Ukraine.
Upon arriving in America, he obtained a masters in social work from Adelphi University; he is not a clinical social worker, which requires a doctorate. Ten years ago, Grinsberg worked as a social worker with the Jewish Board of Family and Children’s Services ( “Jewish Board”) doing family psychotherapy and teaching families. While working at the Jewish Board, Grinsberg administered and implemented treatment plans for private patients. He treated patients from the beginning to the end, which included reviewing tests, writing reports and interpreting the results of the test. He got reimbursed by insurance companies as a private practitioner”
There is no talismanic rule defining whether a witness is an expert or not, as “various combinations of education , training, observation or experience” may suffice, although none of the aforementioned criteria, standing alone, are determinative. Mtr. Of R..M. Children, 165 Misc 2d 441 444 ( Family Ct., Kings Co. 1995). See, Steinbach, supra, 2 AD3d at 710. Thus, the fact that a proffered witnesses does not possess an advanced degree from a university that is nationally accredited does not disqualify him when he possesses a doctoral dissertation on the subject at issue (occultism) and has “more than ordinary knowledge of nontraditional groups and the occult. “ Echols v. State., 326 Ark. 917, 936 S.W. 2d 509 (Sup Ct. Ark. 1996). Similarly, the lack of a medical licenses does not, in and of itself, disqualify a witness from testifying as an expert on a medical question, Steinbach supra (podiatrist, while only licensed to treat below the ankles, established that he had professional experience in diagnosing and treating burns both above and below ankle and hence could offer expert testimony as to the respondent podiatrist’s alleged malpractice in treating the plaintiff’s burn injury on the calf). A witness need not possess a special license within a general licensed area in order to testify Smith v. City of NY, 238 AD2d 500 (2d Dept. 1997)(plaintiff’s doctor, while not a psychiatrist, had experience in the area of hysteria conversion and thus could testify about the subject; fact that he was not a psychiatrist went to the weight, but not admissibility of his testimony). Similarly the fact that a doctor obtained a degree in a foreign country as opposed to the U.S. does not constitute an automatic disqualifier. Meiselman v. Crown Heights Hospital, 285 NY 389 (1941).
Based upon the above, the court finds that Grinsberg does not possess the combination of long observation, real experience or sufficient education or training to be qualified as an expert on psychological testing. While Grinsberg testified that he administered the five tests at issue while working as a clinical psychologist in the Ukraine, he did not elaborate upon his experience with these psychological tests or at what frequency he utilized the tests. Although Grinsberg did not testify how long he has been in the United States, it is clear that he has not worked as a psychologist since coming to the United State which, according to his testimony, is at least 10 years . He did not indicate that his studies to earn a masters in social work gave him sufficient experience or familiarity with the psychological tests at issue. During these ten years, he has neither administered these tests nor conducted the diagnostic interviews which Dr. Porter testified are essential in order to ascertain the mental status of a given patient.
Off greater import, since commencing his work with All – Boro some six years ago, Grinsberg has not even worked in the capacity of a social worker but rather administered the day – day administrative aspects of the All – Boro. Furthermore, he blithely dismissed any differences between a psychologist or social worker in New York State although he admitted that he is not [*5]aware of what is required for to be a licensed psychologist in this state.
In fact, there are substantial differences in the licensure requirements and practice of a psychologist as compared to a social worker in this State. Compare Education Law §7601-a (definition of scope of practice of psychology) with Education Law §7701(1) (definition of scope of practice of licensed master social work) and Education Law §7701(2) (definition of scope of licensed clinical social work). See generally, People of State of NY v, RR, 12 Misc 3d 161 (Sup. Ct. NY Co. 2005).
Of even greater significance to the instant matter is the difference in scope of practice between a licensed master social worker and a licensed clinical social worker. Prior to 2002, New York State only protected the use of the titles of psychologist and certified social worker, which meant that anyone could legally practice psychology or social work so long as they did not hold themselves out as social workers or psychologists or describe their services as being psychological in nature. People of State of NY supra, 12 Misc 3d at 168. In 2002, the Legislature enacted news laws licensing the practice of psychology and social work and, in particular distinguished between licensed master social workers and clinical social workers. (Laws, 2002, Ch. 420, §1, eff. 9/1/04).
The social work statute contains “two tiers of social work so that the scope of practice of a licensed master social is included within the larger scope of practice of licensed clinical social work_. People of State of NY, supra,_ 12 Misc 3d at 171. See Education law 7701 (2)(1). “Whereas licensed clinical social workers are authorized to make and render diagnoses and the prognoses which flow from and are intimately related to them, administer and interpret tests and measures of psycho social functioning ( so called psycho diagnostic testing…), develop and implement assessment-based treatment plans and provide all forms of psychotherapy; licensed master social workers are only permitted to perform psycho social assessments and evaluations, and may not make or render diagnoses or prognoses , and may administer but not interpret tests and measures of psycho social functioning.” See Education Law §§7701 1(a) and 2(a). 12 Misc 3d at 172-74. A licensed master social worker may render the clinical functions and perform the clinical functions when then do so under the supervision of a licensed clinical social worker. Education Law §7701(d); 8 NYCRR 74.6 n 25.
It is clear that Grinsberg only possesses a master social worker license and hence is not qualified in this state to either make or render diagnoses or prognosis or interpret tests and measures of psycho social functioning. Hence, he does not possess the licensure or expertise which would qualify him to testify as an expert as to the merit or medical necessity of the five psychological tests at issue in general or how these tests pertained to the assignor. Furthermore, Grinsberg presented no testimony that he actually worked under the supervision of a licensed clinical social worker. In fact, it appears that his social worker license was irrelevant to his main job duty at Five – Boro – to supervise clinical paper work and process the claims.”
