The Role of PTSD in Litigation

December 1, 2005
Liza H. Gold, MD

Volume 23, Issue 14

Attempting litigation based on a claim of posttraumatic stress disorder can be difficult. What is the proper DSM definition of PTSD and in what ways can and can't it be used in court to properly defend a client? What should the role of the psychiatrist be in this process?

The use of the diagnosis of posttraumatic stress disorder in litigation hasbeen called "a forensic minefield" (Sparr and Boehnlein, 1990). Since its inclusion in the DSM-III, PTSD has been increasinglyutilized over the past decades in both civil and criminal litigation (Slovenko, 1994; Sparr and Boehnlein 1990)--so much so that the provision of PTSDtestimony into the legal system has been characterized as "a cottage industry"(Stone, 1993).

Attorneys introduce PTSD arguments into legal cases through the use ofexpert testimony. A diagnosis of PTSD can provide advantages in litigation. Incivil litigation, it creates an assumption of obvious causation. It alsocarries a legal and moral implication that someone else is responsible for anevent 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 classof victims who could suffer PTSD from those stressors have expanded thehorizons of tort litigation (Shuman, 2003). Posttraumatic stress disorder isalso increasingly used in criminal cases, typically in arguments ofjustification or mitigation in sentencing. In these circumstances, attorneysargue that anyone exposed to the trauma the defendant suffered might findthemselves committing similar crimes under similar circumstances.

Common misconceptions about the nature of trauma and PTSDsare partially responsible for the increased frequency of a PTSD diagnosis inlitigation. 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 ofstress as a synonym for trauma with the medical concept of a specificpsychiatric disorder that may occur following exposure to a true traumaticevent.

Credible Expert Testimony

At times, clinical and forensic psychiatrists ignore the requisitediagnostic criteria and regard as PTSD any emotional disturbance that followsan adverse stressful event. To maintain credibility when providing diagnosticassessments of PTSD in litigation, psychiatrists should be familiar with the definitionof this disorder and the types of traumatic stressors that can precipitate it.The DSM-IV defines PTSD as a disorderfor which six criteria must be met. These include specific symptoms and adegree of functional impairment.

The most important of these in the context of litigation is Criterion A: aperson must have been exposed to a traumatic event or stressor. Criterion Adefines a traumatic stressor as consisting of an objective and subjectiveelement. Both elements must be met for an event to constitute an emotionalstressor that can cause PTSD. In the objective element, the person must haveexperienced, witnessed or have been confronted with an event or events thatinvolved actual or threatened death or serious injury, or a threat to thephysical integrity of self or others. These include such experiences as combat,violent personal assault, terrorist attack, being kidnapped, being diagnosedwith a threatening illness and automobile accidents, among others. Thesubjective element of Criterion A requires that the person's response must haveinvolved intense fear, helplessness or horror.

However, even if both elements of the traumatic exposure are present, notevery traumatic event causes PTSD in every individual exposed to that event.Epidemiological studies suggest that only 15% to 24% of adults exposed toCriterion A trauma develop PTSD (Breslau,2001). The risk of developing PTSD also varies by type of trauma and stressorintensity 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 ofdeveloping 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 thedevelopment of PTSD should not be used to discount the inherently traumaticnature of many events. Regardless of pre-existing vulnerabilities, PTSD canoccur in those without significant risk factors in the face of a high magnitudeor intensity traumatic exposure. A previously well-functioning adult canexperience 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, muchless a stressful situation that does not meet Criterion A, will necessarilyproduce PTSD.

It is possible for individuals to develop PTSD without meeting the stressorcriterion. For example, exposure to multiple events appears to increase therisk for the development of PTSD, even if the last stressor does not meet allthe elements of Criterion A. Similarly, individuals may be diagnosed with subthreshold PTSD after exposure to a traumatic event ifthey do not meet the DSM-IV requisitenumber 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 stressorcriterion of serious threat to life or bodily integrity and a correspondingreaction of fear, terror or helplessness occur, the diagnosis of PTSD shouldnot be made without substantial justification and support from the literature. Otherwise,opposing counsel will, without doubt, question the reliability and credibilityof the expert offering the testimony.

In the event of a recognizable traumatic exposure and the presence ofpsychological symptoms that do not meet the criteria for PTSD, the forensicevaluator should carefully assess whether the individual meets the criteria forother DSM diagnoses. Forensicclinicians should consider whether other mood or anxiety diagnoses are moreappropriate (Simon, 2003). These disorders can also be influenced by externalevents, and many have a higher incidence following a traumatic exposure thandoes PTSD, and a number of the symptoms of PTSDoverlap considerably with the symptoms of such disorders.

Lack of familiarity with DSMdiagnostic criteria or excessively flexible and idiosyncratic application ofdiagnostic criteria or conventions substantially reduces the utility ofpsychiatric diagnoses. Any assessment of PTSD, even one that concludes in adiagnosis of subthreshold PTSD, must adhere to DSM criteria in order to be credible.

Misdiagnosis of PTSD

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

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

Indirect Assessments

Attorneys frequently attempt to use psychiatric testimony to make indirectstatements regarding a plaintiff's credibility. As a rule, expert evidence onthe credibility of a witness is not permitted. Nevertheless, attorneys may tryto use psychiatric terminology and diagnoses to introduce indirect credibilityassessments through expert testimony.

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

Use of Syndrome Evidence

In recent years, attorneys have also increasingly sought expert testimonyabout various trauma-related syndromes, such as battered woman syndrome, rapetrauma syndrome or battered child syndrome. Syndrome diagnoses are based on thepresence of constellations of certain symptoms and have been offered in bothcivil and criminal cases. In civil cases, the presence of a syndrome may beused 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 thedefendant may serve as justifications for criminal acts or mitigation ofsentence.

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

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

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

Conclusion

Although imperfect and subject to continuous updating and refinement, the DSM is regarded by mental healthprofessionals and the courts alike as a generally valid and reliable diagnosticsystem (Shuman, 1989). The diagnostic criteria and research supporting adiagnosis of PTSD is extensive. However, the tactical legal exploitation of thediagnosis 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 orclaim.

References:

References



1.

Blank AS (1993), The longitudinal course ofposttraumatic stress disorder. In: Posttraumatic Stress Disorder: DSM-IV andBeyond, Davidson JRT, Foa EB, eds. Washington, D.C.:American Psychiatric Press, Inc.

2.

Boeschen LE, Sales BD, Koss MP (1998), Rapetrauma experts in the courtroom. Psychology, Public Policy and Law4:414-432.

3.

Breslau N (1998), Epidemiology of trauma and posttraumatic stress disorder.In: Psychological Trauma, Yehuda R, ed. Washington, D.C.:American Psychiatric Press, Inc., pp1-29.

4.

Breslau N (2001), The epidemiology of posttraumaticstress disorder: what is the extent of the problem? J ClinPsychiatry 62(suppl 17):16-22.

5.

Breslau N, Chilcoat HD, Kessler RC, Davis GC(1999), Previous exposure to trauma and PTSD effectsof subsequent trauma: results from the Detroit Area Survey of Trauma. Am J Psychiatry 156(6):902-907.

6.

Breslau N, Davis GC, Andreski P, Peterson E(1991), Traumatic events and posttraumatic stress disorder in an urbanpopulation of young adults. Arch Gen Psychiatry 48(3):216-222.

7.

Briere J (1997), Psychological Assessment of AdultPosttraumatic States. Washington, D.C.: American PsychologicalAssociation.

8.

Gold LH (2003), Posttraumatic stress disorder inemployment litigation. In: Posttraumatic Stress Disorder in Litigation:Guidelines for Forensic Assessment, 2nd ed., Simon RI, ed. Washington, D.C.:American Psychiatric Press, Inc., pp163-186.

9.

Gold LH, Simon RI (2001), Posttraumatic stress disorder inemployment cases. In: Mental and Emotional Injuries in EmploymentLitigation, 2nd ed., McDonald JJ, Kulick FB, eds.Washington, D.C.: Bureau of National Affairs, pp502-573.

10.

Green BL, Kaltman SI (2003), Recentresearch findings on the diagnosis of posttraumatic stress disorder:prevalence, course, comorbidity and risk. In:Posttraumatic Stress Disorder in Litigation: Guidelines for ForensicAssessment, 2nd ed., Simon RI, ed. Washington, D.C.: American Psychiatric Press,Inc., pp19-39.

11.

Halleck SL, Hoge SK,Miller RD et al.(1992), The use of psychiatric diagnoses in the legalprocess: task force report of the American Psychiatric Association. Bull Am Acad Psychiatry Law 20(4):481-499.

12.

Massaro TM (1999), Rape trauma syndrome evidence.In: Feminist Jurisprudence, Women and the Law: Critical Essays, ResearchAgenda, and Bibliography, Taylor B, Rush S, Munro RJ, eds. Littleton, Colo.:FB Rothman, pp315-322.

13.

Melton GB, Petrila J, PoythressNG, Slobogin C, eds. (1997), Psychological Evaluationfor the Courts: A Handbook for Mental Health Professionals and Lawyers, 2nd ed.New York: Guilford Press.

14.

Orenstein A (1999), Feminism and evidence. In: Feminist Jurisprudence, Womenand the Law: Critical Essays, Research Agenda, and Bibliography, Taylor B, RushS, Munro RJ, eds. Littleton, Colo.: FB Rothman, pp507-538.

15.

Pitman RK, Sparr LF, SaundersLS, McFarlane AC (1996), Legal issues in posttraumatic stress disorder.In: Traumatic Stress: The Effects of Overwhelming Experience on Mind, Body andSociety, van der Kolk BA,McFarlane AC, Weisaeth L, eds.New York: Guilford Press, pp378-397.

16.

Rosen GM (1995), The Aleutian Enterprise sinking and posttraumatic stressdisorder: misdiagnosis in clinical and forensic settings. ProfessionalPsychology Research and Practice 26:82-87.

17.

Schutzwohl M, Maercker A(1999), Effects of varying diagnostic criteria for posttraumatic stressdisorder are endorsing the concept of partial PTSD. JTrauma Stress 12(1):155-165.

18.

Shuman DW (1989), The diagnostic and statisticalmanual of mental disorders in the courts. Bull Am AcadPsychiatry Law 17(1):25-32.

19.

Shuman DW (2003), Persistent reexperiences inpsychiatry and law: current and future trends for the role of PTSD inlitigation. In: Posttraumatic Stress Disorder in Litigation: Guidelines forForensic Assessment, 2nd ed., Simon RI, ed. Washington, D.C.:American Psychiatric Press, Inc., pp1-18.

20.

Simon RI (2003), Forensic psychiatric assessment of PTSD claimants. In:Posttraumatic Stress Disorder in Litigation: Guidelines for ForensicAssessment, 2nd ed., Simon RI, ed. Washington, D.C.: American Psychiatric Press,Inc., pp41-90.

21.

Simon RI, Gutheil TG (1997), Ethical and clinicalrisk management principles in recovered memory cases: maintaining therapistneutrality. In: Trauma and Memory: Clinical and Legal Controversies, Appelbaum PS, Uyehara LA, Elin MR, eds. New York: OxfordUniversity Press, pp477-495.

22.

Slovenko R (1995), Psychiatry and Criminal Culpability. New York: Wiley.

23.

Slovenko R (1994), Legal aspects of posttraumaticstress disorder. Psychiatr ClinNorth Am 17(2):439-446.

24.

Sparr LF, Boehnlein JK(1990), Posttraumatic stress disorder in tort actions: forensic minefield. BullAm Acad Psychiatry Law 18(3):283-302.

25.

Stein MB, Walker JR, Hazen AL et al. (1997), Full and partial posttraumaticstress disorder: findings from a community survey. AmJ Psychiatry 154(8):1114-1119.

26.

Stone AA (1993), Post-traumatic stress disorder and the law: critical reviewof the new frontier. Bull Am Acad Psychiatry Law21(1):23-36.

27.

van der Kolk BA, McFarlane AC, WeisaethL, eds. (1996), Traumatic Stress: The Effects of Overwhelming Experience onMind, Body and Society. New York: Guilford Press.

28.

Weiss DS, Marmar CR, SchlengerWE et al. (1992), The prevalence of lifetime andpartial post-traumatic stress disorder in Vietnam theater veterans. J TraumaStress 5:365-376.