The Role of PTSD in Litigation

Diagnoses of PTSD are commonly made inaccurately in litigation contexts. Clinicians treating trauma survivors or retained as experts by such individuals when they become plaintiffs tend to overdiagnose PTSD (Rosen, 1995). Defense experts in civil litigation and experts retained by the prosecution may tend to underdiagnose the disorder.

Misdiagnosis may occur for reasons other than misunderstanding the nature of the disorder or misapplication of diagnostic criteria. Adversarial bias, that is, conscious or unconscious pressure to formulate an opinion favorable to the retaining party, may exert a profound influence in some cases. At times, a misapplied diagnosis of PTSD can represent a vehicle for promoting the forensic psychiatrist's values of support for victims' rights (Stone, 1993). Conversely, antipathy toward the diagnosis and its implications may result in the misinterpretation or overlooking of genuine posttraumatic symptomatology (Briere, 1997; Pitman et al., 1996).

Attorneys frequently attempt to use psychiatric testimony to make indirect statements regarding a plaintiff's credibility. As a rule, expert evidence on the credibility of a witness is not permitted. Nevertheless, attorneys may try to use psychiatric terminology and diagnoses to introduce indirect credibility assessments through expert testimony.

Certain diagnoses lend themselves to this type of misuse. A diagnosis of PTSD in a plaintiff carries implications that the plaintiff's allegations are true. Certain personality disorder diagnoses, such as borderline or histrionic personality disorder, carry the implication that the plaintiff's allegations are not credible. The use of psychiatric diagnoses to indirectly establish the credibility of a legal claim should be viewed as a misuse of psychiatric expertise (Halleck et al., 1992).

In recent years, attorneys have also increasingly sought expert testimony about various trauma-related syndromes, such as battered woman syndrome, rape trauma syndrome or battered child syndrome. Syndrome diagnoses are based on the presence of constellations of certain symptoms and have been offered in both civil and criminal cases. In civil cases, the presence of a syndrome may be used in attempts to establish that a particular stressor actually occurred, thus establishing witness credibility (Simon and Gutheil, 1997). In criminal cases, arguments for the presence of a syndrome in the defendant may serve as justifications for criminal acts or mitigation of sentence.

Although they may have some relation to the diagnosis of PTSD, syndromes are not formal DSM diagnoses. The description of certain syndromes may serve a variety of clinical and sociopolitical purposes, but their utilization in litigation requires careful consideration. The use of a claimant's psychological symptoms in the form of syndrome evidence (or even an established DSM diagnosis) to establish the occurrence of a traumatic event generally has not found favor with the courts (Boeschen et al., 1998; Slovenko, 1995). However, by offering such testimony that a complainant is or is not suffering rape trauma syndrome, battered woman syndrome or some other type of psychological syndrome, the expert's testimony may arguably be characterized or construed as testifying to the truthfulness of the complainant or the presence of mitigating circumstances for a crime. Almost all states refuse to admit this level of testimony (Boeschen et al., 1998).

These and other concerns have resulted in courts taking a purpose-specific, qualified approach to syndrome testimony. Courts most often accept syndrome evidence by experts where the defense argues that the woman did not act the way a "real" survivor of rape would, or where the defense argues that if her domestic situation had really been that bad, she would have left. Courts are more divided on whether to allow syndrome evidence where there is no overt need to rebut the defense's reliance on myths about women (Orenstein, 1999).

Courts have been most sympathetic to syndrome testimony when the expert spoke generally about typical responses to sexual assault rather than offering an opinion regarding whether the particular woman suffered from a specific posttraumatic syndrome. Most are also receptive to syndrome evidence when it is offered to dispel myths about behaviors associated with sexual assault, domestic violence or child abuse (Massaro, 1999; Melton et al., 1997).

Although imperfect and subject to continuous updating and refinement, the DSM is regarded by mental health professionals and the courts alike as a generally valid and reliable diagnostic system (Shuman, 1989). The diagnostic criteria and research supporting a diagnosis of PTSD is extensive. However, the tactical legal exploitation of the diagnosis of PTSD most often arises from the use of DSM diagnoses for nonclinical purposes. Psychiatrists who enter the legal arena are well advised to provide reliable, credible testimony if the diagnosis of PTSD is raised as a legal defense or claim.