PTSD, the Traumatic Principle and Lawsuits
PTSD, the Traumatic Principle and Lawsuits
August 1999, Vol. XVI, Issue 8
The most common psychiatric sequelae following trauma include major depressive disorder, somatoform pain disorder, adjustment disorder and posttraumatic stress disorder (PTSD). In law, trauma that precipitates PTSD is viewed as a tort, which stems from the root word "torquere" (to twist), as does the word torture. In a sense, plaintiffs do allege torture in personal injury cases. A tort constitutes a civil or private wrong, as opposed to a criminal wrong, and rests on the general principle that every act of a person causing damage to a legally protected interest of another obliges that person, if at fault, to repair the damage (Slovenko, 1973).
PTSD and the Courts
With its inclusion into the third edition of the Diagnostic and Statistical Manual of Mental Disorders in 1980, PTSD has become the basis of many tort actions. Plaintiff lawyers particularly favor the concept of PTSD because it is incident-specific (caused by an identifiable environmental stressor), and can be easily presented in court (Slovenko, 1994). Ordinarily, psychiatrists do not participate in the determination of liability or fault; however, their testimony is extremely important when determining proximate cause, assessing credibility of the plaintiff and establishing a realistic prognosis that will assist in the awarding of damages (Hoffman and Spiegel, 1989; Metzner and Struthers, 1994).
In lawsuits involving PTSD, the plaintiff claims that a mental disorder resulted from the defendant's intentional and wrongful action or negligence. Psychiatrists must answer the following three basic questions during expert testimony:
- Does the plaintiff have a mental disorder (psychic injury)?
- Is the mental disorder related to a specific incident (causation)?
- What is the estimated cost of psychiatric treatment and the prognosis (damages)?
Fundamentally, the answers to these questions depend upon a comprehensive psychiatric evaluation including a mental status examination leading to a DSM diagnosis.
Depending upon their interpretation of the stressor criterion, psychiatrists tend to underdiagnose or overdiagnose in PTSD cases. The "big boom" adherents insist that only huge traumas such as wars, explosions or natural disasters can precipitate PTSD and typically assert that plaintiffs who have not been subjected to an enormous trauma are most likely malingerers. At the other end of the spectrum are psychiatrists who were wedded to a generic definition of trauma, and who frequently diagnose minor insults to the personality as PTSD, thereby broadening the definition beyond DSM criteria. These divergent opinions set the stage for so-called battles of the experts that foster, in the minds of the public and the courts, the notion that psychiatry is unscientific. What measures can a psychiatrist take to ensure a correct diagnosis of PTSD, leading to testimony that will be of maximum value to the court?
PTSD in the DSM
When a psychiatrist follows the DSM criteria guidelines for PTSD, arriving at a diagnosis is straightforward. Essentially, the Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (American Psychiatric Association, 1994), lists five basic criteria for PTSD: stressor event (the precipitant), re-experiencing symptoms (flashbacks, ruminations about the trauma, nightmares and so on), avoidance behavior (traumatic phobia), numbing of general responsiveness (depression) and arousal (anxiety). In addition, the disturbance must cause clinically significant distress or impairment in significant areas of life.
As mentioned, the most common mistake made in the diagnosis of PTSD centers on the interpretation of the stressor event. In DSM-I (APA, 1952), stress following exposure to an environmental trauma was listed as "gross stress reaction" under the heading of transient situational personality disorders. This trend continued in the second edition of DSM (APA, 1968) where transient situational disturbance was described as "reserved for...an acute reaction to overwhelming environmental stress."
A radical revision of the DSM occurred in 1980 and, for the first time, the diagnosis of PTSD was accepted by the APA as an official diagnostic entity. The stressor event in DSM-III was "existence of a recognizable stressor that would evoke significant symptoms of distress in almost everyone." Later, in DSM-III-R (APA, 1987), the stressor criterion was expanded: "A person has experienced an event that is outside the range of usual human experience and that would be markedly distressing to almost everyone." This statement's lack of precision led to numerous debates among psychiatrists, lawyers and other mental health professionals. Disagreements were resolved in DSM-IV (APA, 1994) when the stressor event was revised to its present form.
In DSM-IV, the stressor event must fulfill two basic requirements: 1) "The person experienced, witnessed, or was confronted with an event(s) that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and 2) the person's response involved intense fear, helplessness, or horror" (APA, 1994).