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Understanding and Evaluating Mental Damages

Understanding and Evaluating Mental Damages

Unlike a pure psychiatric disability evaluation, mental and emotional damage claims require an assessment of causation. Today, treating psychiatrists are increasingly asked to provide this assessment, since mental and emotional damages are widely claimed in the United States as a remedy in legal actions. Such claims are driven by a number of factors: (1) employment stress is a routine component of workers' compensation claims; (2) intentional or negligent infliction of emotional distress is frequently seen in personal injury litigation; (3) federal claims of discrimination and harassment often have an emotional damage component; and (4) when there are claims of physical injury, psychological or emotional factors may be associated either as a consequence of the injury or as generating poorly explained physical symptoms.

Not every claim of mental or emotional damages requires a psychiatric evaluation. For example, in personal injury litigation, the law permits plaintiffs to raise issues of pain and suffering, loss of enjoyment of life, and loss of consortium as part of their suits because they can testify about their own subjective distress. Concomitantly, lay jurors are assumed to be capable of assessing the reasonableness of such claims based on ordinary experience. In contrast, plaintiffs may not testify about their diagnosis without expert testimony, because that does not fall within the realm of ordinary experience and therefore requires professional clarification.1

In general, when psychiatrists testify about their patient's condition, prognosis, and the type of treatment necessary, they do not need a sophisticated understanding of the law. Because they regularly address opinions about impairment and disability as well, these issues should also fall within the scope of usual psychiatric practice. Specifically, to the extent that treating psychiatrists confine themselves to such opinions and qualify their testimony by stating that it is based primarily on the patient's account and their own limited observations, further investigation of mental damage issues may not be necessary.

However, while psychiatrists may be asked or subpoenaed to testify about their personal knowledge of the patient's condition by virtue of their treatment relationship, there are ethical guidelines that discourage this. Specifically, the American Academy of Psychiatry and the Law points out that in a forensic evaluation, such as one that addresses mental damages, it may be necessary to interview other parties (or obtain corroborating information) and that testimony may affect the therapeutic relationship.2

Disability and causation
A comprehensive assessment of disability and causation can be perplexing without an understanding of both the law and the principles of a forensic psychiatry evaluation. This is seen in workers' compensation claims, in which causation depends on whether the psychiatric injury arose out of and in the course of employment.3 This general language is expanded and modified in various ways depending on the jurisdiction. For example, there may be an exclusion if the psychiatric injury does not involve physical impact or a physical manifestation; if it is a result of a personnel action; or if it is not caused by a clearly identified stressful circumstance. Some jurisdictions will not allow a claim if the stress is considered part of the ordinary stresses of the employment.

Evaluating whether a psychiatric injury was work-related involves more than accepting the common-sense meaning of that language, and raises a number of possible questions. Is the stress of losing a promotion work-related? Or the shock of being fired? Or the aggravation of bipolar disorder because of job stress? Thus, it is in the best interest of psychiatrists called to testify to familiarize themselves with the workers' compensation laws in their jurisdiction to ensure that their opinions on causation are consistent with the respective legal definitions.

Cause in fact
In personal injury litigation that is not part of workers' compensation, the most frequent claims of mental damage are intentional or negligent infliction of emotional distress, emotional effects of a physical injury, stress as a result of discrimination or harassment, emotional harm from defamation and libel, and the psychological impact of malpractice. A scientific connection must be established between the defendant's conduct and the mental damage. It cannot be only a possibility; such a connection must be shown to exist.4 The threshold question is: was there a cause in fact, a threshold causal connection, that rests on a but-for analysis, (ie, but for the defendant's conduct, the plaintiff would not have been harmed.)

Alternatively, a cause in fact may depend on whether the defendant's conduct was a substantial factor (a necessary element). It may be difficult to show that an alleged cause was really necessary for a particular consequence rather than just something that preceded it.

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