PTSD, the Traumatic Principle and Lawsuits

August 1, 1999

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).

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).

The stressor criterion, with its historical antecedents to war-related trauma from the Civil War, World War I and especially World War II, clearly infers that the stressor must come from the environment and that the individual must react with fear (acute activation of the sympathetic nervous system).

Diagnosis of PTSD

To test the applicability of the DSM-IV stressor event, the following clinical vignettes have been prepared. After perusing each brief summary, the reader should judge the adequacy of the stressor to initiate PTSD.

  • A patient was involved in an accident with several other vehicles, in which one person was killed and several others seriously injured. The patient miraculously did not suffer any physical injury, and his automobile sustained only minor damage. Could the unscathed victim develop PTSD following the accident?
  • An individual picks up the telephone and hears an airline official compassionately state that both of her parents have been killed in an airplane crash. Could this event precipitate PTSD?
  • You are at the bedside of your elderly mother who is recovering from a myocardial infarct when suddenly she grabs her chest, gasps, closes her eyes and stops breathing. The cardiac monitor triggers an alarm summoning emergency medical personnel. After a valiant effort, the doctor informs you that your mother has died. Can this experience precipitate PTSD?
  • If the accounts of sexual harassment brought by Anita Hill against Justice Clarence Thomas and Paula Jones against President Bill Clinton were true, could these incidents precipitate PTSD?
  • A middle-aged woman with a diagnosis of colon cancer submits to surgery, radiation and chemotherapy. Later, in the context of a malpractice suit, she claims that these stressors precipitated PTSD. Do you agree?

To assist in the evaluation of these vignettes, clinicians may find the traumatic principle helpful. Simply stated, the traumatic principle is: "Any environmental stimulus which poses a realistic threat to life or limb, if perceived by one or, more likely, a combination of the five sensory pathways to the brain, if cognitively interpreted as dangerous (a serious threat to life or physical integrity to self or others), and followed by intense stimulation of the sympathetic nervous system, whether it produces physical injury or not, can be regarded as a traumatic event which can precipitate PTSD in a vulnerable individual who is in the zone of danger" (Scrignar, 1996). Of course, genetics and developmental factors play a role in predisposition, and it appears that there is a relationship between vulnerability and the intensity of the stressor. Physical injury is not a prerequisite for PTSD; however, physical injury increases the probability that PTSD will develop. When the parameters of the traumatic principle are fulfilled, DSM-IV criteria for PTSD must be met before a diagnosis is finalized.

Discussion of PTSD Diagnosis

Although not physically injured, the man in the first vignette witnessed, experienced and was confronted with a situation that was potentially life-threatening, and he was quite frightened by the accident. One person was killed and several were seriously injured; therefore, the situation did pose a realistic threat to the patient, and he was in the zone of danger. As the accident developed, he thought he was going to die.

The patient clearly met the requirements of the traumatic principle, and the diagnosis of PTSD was substantiated from the history and mental status examination that revealed flashbacks, nightmares, fears about driving, numbing of responsiveness and anxiety symptoms that were not present before the accident. The judgment of some clinicians could have been swayed by the fact that the man was not physically injured and that his car sustained only minimal damage.

Vignettes two and three do not meet the DSM-IV stressor criteria for PTSD or the standard of the traumatic principle. These individuals were never threatened with injury to themselves, and they were not in the zone of danger. Grief, anguish and depression would be appropriate reactions to one's parents' deaths. The cases involving Anita Hill and Paula Jones may, if true, qualify for sexual harassment but certainly do not fulfill DSM-IV criteria for PTSD or the traumatic principle. The alleged actions of Judge Thomas and President Clinton perhaps can best be described as crude attempts at seduction that were magnified and distorted by political opponents. Only when sexual harassment takes the form of physical abuse or verbal threats of force or violence can PTSD be considered.

The final case, involving the woman with cancer, stirs controversy. The descriptive text (not in the diagnostic criteria) of DSM-IV states that "being diagnosed with a life-threatening illness" can precipitate PTSD. One can take issue with this statement since it is true that illnesses are traumatic in the general sense, and some illnesses end in death. However, the historical origins of PTSD stem from an environmental event-such as war or an accident-which may cause sudden death in an otherwise healthy individual. Physical illness caused by a pathological process within the body (internal event) can cause pain, discomfort or death. However, to equate environmental stressors to a disease process within the body does not seem logical. Also, while surgery, radiation and chemotherapy are no doubt traumatic in the general sense, they are therapeutic measures and should not be equated to stressors that can precipitate PTSD. Those who advocate the inclusion of disease or illness as a precipitant for PTSD stretch the definition of trauma. In the aforementioned case, after the woman's malpractice suit was concluded, she returned to work and her cancer was in remission five years after diagnosis.

In personal injury cases involving PTSD, the expert witness will be exhaustively questioned about the stressor criteria during depositions or at trial. Forensic psychiatrists who misinterpret the stressor criteria and underdiagnose PTSD may suffer embarrassment at the hands of a clever inquisitor. Alternatively, psychiatrists who expand the diagnosis of PTSD to include events that are traumatic in the general sense may stumble on the witness stand as a knowledgeable cross-examiner methodically probes into the life-threatening nature of the stressor event.

Dr. Scrignar is clinical professor of psychiatry at Tulane University School of Medicine, adjunct professor at the Tulane School of Social Work and, for over a decade, was adjunct professor of law and psychiatry at the Tulane Law School. He is the author of five books including Posttraumatic Stress Disorder: Diagnosis, Treatment, and Legal Issues, 3rd ed. (Bruno Press).

References

APA (1994), Diagnostic and Statistical Manual of Mental Disorders, 4th ed. Washington, D.C.: American Psychiatric Press Inc.

APA (1987), Diagnostic and Statistical Manual of Mental Disorders, 3rd ed., revised. Washington, D.C.: American Psychiatric Press Inc.

APA (1980), Diagnostic and Statistical Manual of Mental Disorders, 3rd ed. Washington, D.C.: American Psychiatric Press Inc.

APA (1968), Diagnostic and Statistical Manual of Mental Disorders, 2nd ed. Washington, D.C.: American Psychiatric Press Inc.

APA (1952), Diagnostic and Statistical Manual of Mental Disorders, 1st ed. Washington, D.C.: American Psychiatric Press Inc.

Hoffman BF, Spiegel H (1989), Legal principles in the psychiatric assessment of personal injury litigants. Am J Psychiatry 146(3):304-310. See comments.

Metzner JL, Struthers D (1994), Psychiatric disability determinations and personal injury litigation. In: Principles and Practice of Forensic Psychiatry. Rosner R, ed. New York: Chapman and Hall, pp 198-215.

Scrignar CB (1996), Posttraumatic Stress Disorder: Diagnosis, Treatment, and Legal Issues, 3rd ed. New Orleans: Bruno Press.

Slovenko R (1994), Legal aspects of post-traumatic stress disorder. Psychiatr Clin North Am 17(2):439-446.

Slovenko R (1973), Psychiatry and Law. Boston: Little, Brown.