The use of the diagnosis of posttraumatic stress disorder in litigation has
been called "a forensic minefield" (Sparr and Boehnlein, 1990). Since its inclusion in the DSM-III, PTSD has been increasingly
utilized over the past decades in both civil and criminal litigation (Slovenko, 1994; Sparr and Boehnlein 1990)--so much so that the provision of PTSD
testimony into the legal system has been characterized as "a cottage industry"
(Stone, 1993).
Attorneys introduce PTSD arguments into legal cases through the use of
expert testimony. A diagnosis of PTSD can provide advantages in litigation. In
civil litigation, it creates an assumption of obvious causation. It also
carries a legal and moral implication that someone else is responsible for an
event so overwhelming that anyone could have developed PTSD as a result.
Finally, it provides strong support for arguments regarding damages (Gold,
2003; Gold and Simon, 2001). The stressors alleged to cause PTSD and the class
of victims who could suffer PTSD from those stressors have expanded the
horizons of tort litigation (Shuman, 2003). Posttraumatic stress disorder is
also increasingly used in criminal cases, typically in arguments of
justification or mitigation in sentencing. In these circumstances, attorneys
argue that anyone exposed to the trauma the defendant suffered might find
themselves committing similar crimes under similar circumstances.
Common misconceptions about the nature of trauma and PTSDs
are partially responsible for the increased frequency of a PTSD diagnosis in
litigation. The terms trauma and stress are routinely used synonymously.
All traumatic experiences are stressful. However, not all stress is traumatic.
Lawyers, laypeople and clinicians all frequently confuse the popular concept of
stress as a synonym for trauma with the medical concept of a specific
psychiatric disorder that may occur following exposure to a true traumatic
event.
Credible Expert Testimony
At times, clinical and forensic psychiatrists ignore the requisite
diagnostic criteria and regard as PTSD any emotional disturbance that follows
an adverse stressful event. To maintain credibility when providing diagnostic
assessments of PTSD in litigation, psychiatrists should be familiar with the definition
of this disorder and the types of traumatic stressors that can precipitate it.
The DSM-IV defines PTSD as a disorder
for which six criteria must be met. These include specific symptoms and a
degree of functional impairment.
The most important of these in the context of litigation is Criterion A: a
person must have been exposed to a traumatic event or stressor. Criterion A
defines a traumatic stressor as consisting of an objective and subjective
element. Both elements must be met for an event to constitute an emotional
stressor that can cause PTSD. In the objective element, the person must have
experienced, witnessed or have been confronted with an event or events that
involved actual or threatened death or serious injury, or a threat to the
physical integrity of self or others. These include such experiences as combat,
violent personal assault, terrorist attack, being kidnapped, being diagnosed
with a threatening illness and automobile accidents, among others. The
subjective element of Criterion A requires that the person's response must have
involved intense fear, helplessness or horror.
However, even if both elements of the traumatic exposure are present, not
every traumatic event causes PTSD in every individual exposed to that event.
Epidemiological studies suggest that only 15% to 24% of adults exposed to
Criterion A trauma develop PTSD (Breslau,
2001). The risk of developing PTSD also varies by type of trauma and stressor
intensity or magnitude. Specific risk factors associated with victim characteristics,
such as gender, age, race, socioeconomic class, family dysfunction, comorbid psychopathology or a history of psychopathology,
and a previous history of trauma, are also associated with the likelihood of
developing PTSD following trauma exposure (Breslau, 2001, 1998; Breslau et al.,
1999, 1991; Briere, 1997; Green and Kaltman, 2003).
Epidemiological statistics and identification of risk factors for the
development of PTSD should not be used to discount the inherently traumatic
nature of many events. Regardless of pre-existing vulnerabilities, PTSD can
occur in those without significant risk factors in the face of a high magnitude
or intensity traumatic exposure. A previously well-functioning adult can
experience a sharp deterioration in functioning after exposure to severe trauma
(van der Kolk et al.,
1996). However, an examiner should not assume that any traumatic stressor, much
less a stressful situation that does not meet Criterion A, will necessarily
produce PTSD.
It is possible for individuals to develop PTSD without meeting the stressor
criterion. For example, exposure to multiple events appears to increase the
risk for the development of PTSD, even if the last stressor does not meet all
the elements of Criterion A. Similarly, individuals may be diagnosed with subthreshold PTSD after exposure to a traumatic event if
they do not meet the DSM-IV requisite
number of symptoms for a formal diagnosis of PTSD (Blank, 1993; Schutzwohl and Maercker, 1999;
Stein et al., 1997; Weiss et al., 1992). Nevertheless, unless the stressor
criterion of serious threat to life or bodily integrity and a corresponding
reaction of fear, terror or helplessness occur, the diagnosis of PTSD should
not be made without substantial justification and support from the literature. Otherwise,
opposing counsel will, without doubt, question the reliability and credibility
of the expert offering the testimony.
In the event of a recognizable traumatic exposure and the presence of
psychological symptoms that do not meet the criteria for PTSD, the forensic
evaluator should carefully assess whether the individual meets the criteria for
other DSM diagnoses. Forensic
clinicians should consider whether other mood or anxiety diagnoses are more
appropriate (Simon, 2003). These disorders can also be influenced by external
events, and many have a higher incidence following a traumatic exposure than
does PTSD, and a number of the symptoms of PTSD
overlap considerably with the symptoms of such disorders.
Lack of familiarity with DSM
diagnostic criteria or excessively flexible and idiosyncratic application of
diagnostic criteria or conventions substantially reduces the utility of
psychiatric diagnoses. Any assessment of PTSD, even one that concludes in a
diagnosis of subthreshold PTSD, must adhere to DSM criteria in order to be credible.
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