Defending Claims for Psychological Damages as Part of a Medical Malpractice Lawsuit

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1 Defending Claims for Psychological Damages as Part of a Medical Malpractice Lawsuit Leslie C. O Toole Brian C. Vick Ellis & Winters, LLP Post Office Box Raleigh, North Carolina Page 1

2 Leslie C. O Toole is a partner in the Raleigh office of Ellis & Winters LLP. She received her A.B. degree, magna cum laude, from Brown University and her J.D. degree, with high honors, from The University of North Carolina School of Law. Ms. O Toole practices in the areas of civil litigation, products liability (including drugs and medical devices), and medical malpractice defense. Ms. O Toole has also been part of a regional and trial counsel team in the breast implant litigation, as well as other drug and medical device litigation. Ms. O Toole currently serves as Executive Vice President of the North Carolina Association of Defense Attorneys, and is Vice Chair of the Drug, Device and Biotechnology Section of the FDCC for She is also the Board Chair for Special Olympics North Carolina. In addition, Ms. O Toole has given numerous presentations on Daubert, trial skills, company documents, and other topics for organizations such as the North Carolina Association of Defense Attorneys, DRI, the FDCC, The North Carolina Bar Association, and the National Institute for Trial Advocacy. Brian C. Vick is an associate in the Raleigh office of Ellis & Winters LLP. He received his B.A. degree from Vassar College, and his J.D. Degree summa cum laude from the University of Georgia School of Law. Following graduation, Mr. Vick served as a law clerk to the Honorable Joel F. Dubina on the United States Court of Appeals for the Eleventh Circuit. Brian Vick practices in the area of civil litigation, including products liability (including drugs and medical devices), catastrophic injury, medical malpractice defense and satellite piracy. At the University of Georgia School of Law, Mr. Vick was a member of the editorial board and a notes editor for the Georgia Law Review. He was also elected to the Order of the Coif. Mr. Vick is currently a member of the North Carolina Bar Association and the North Carolina Association of Defense Attorneys. Page 2

3 Defending Claims for Psychological Damages as Part of a Medical Malpractice Lawsuit I. Introduction Leslie C. O Toole Brian C. Vick Ellis & Winters, LLP Post Office Box Raleigh, North Carolina Medical negligence cases often involve claims of psychological damages or injuries. Defending against such claims can be difficult due to the inherently subjective nature of psychological injuries and mental disorders. However, sufficient preparation and planning by defense counsel can reduce the impact of such claims by either exposing their weaknesses or raising significant questions about their merit. A psychological injury can be associated with a physical injury, or may be the only claimed injury in the case. Typically, the psychological injury will be part of a set of claimed injuries, both physical and psychological. However, the psychological component of damages may become more significant as the case develops if the physical injuries start to improve or are shown not to be disabling. The mere fact that psychological damages are not alleged early in a case should not be taken as a sign that no such damages will be claimed. If the possibility of a psychological damages claim exists, defense counsel should take steps throughout the case to prevent such a claim from arising or negate such a claim when alleged. The types of psychological damages or injuries involved in medical negligence cases can range from depression to anxiety disorders to post traumatic stress disorder. This paper focuses on post traumatic stress disorder ( PTSD ) as an exemplary injury because it is prevalent in medical, as well as non-medical, negligence cases and it provides a good example of how to defend against most claims of psychological damage. II. The Example of Robert M. This paper uses the case of Robert M. as an illustrative example at various points in the discussion. These examples are drawn from an actual case, but certain facts have been changed to protect the identity of the parties involved. Robert M. was a middle-aged man who developed pneumonia, and subsequently acute respiratory distress syndrome (ARDS). His illness required him to be hospitalized for several months with a significant portion of that time in the intensive care unit connected to a ventilator. Page 3

4 Robert M. brought suit against several of his physicians alleging that their failure to properly diagnose his pneumonia caused it to be significantly worse that it otherwise would have been. He claimed that he suffered both a physical injury of impaired respiratory functioning as a result of the failure to diagnose, and a psychological injury of post traumatic stress disorder from his stay in the hospital and a rehabilitation center. His case illustrates many of the topics discussed in this paper. III. How Psychological Disorders Are Diagnosed The psychological injuries most commonly alleged in medical malpractice cases will almost invariably have been diagnosed using the Diagnostic and Statistical Manual of Mental Disorder, Fourth Edition ( DSM-IV ). AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed., text rev. 2000) [hereinafter DSM-IV]. The DSM-IV is the Bible of psychological disorders and is almost universally used by clinicians in diagnosis. It provides both a general framework for assessing an individual s overall well-being and criteria for diagnosing specific psychological disorders. The DSM-IV is so widely used and accepted that it will rarely, if ever, be called into question either by a plaintiff s treating physician or expert. Before delving into a case involving psychological damages, defense counsel should be familiar with both the general assessment framework and the specific diagnostic criteria for the mental disorder involved in his or her case. A. General Assessment Framework The DSM-IV utilizes a multi-axial assessment model to aid clinicians in diagnosing a patient s condition, determining the patient s prognosis and developing a treatment plan. Each of these five axes focuses on a separate area of an individual s mental health state, physical health state, and level of functioning. One goal of this model is to help clinicians develop a global picture of a patient s state of well-being by looking beyond his or her current symptoms or condition. This approach benefits defense counsel by developing information that be used to undermine both the severity of the plaintiff s alleged injury and to frame alternate causation arguments. The following is a list of the five axes used in the DSM-IV assessment model: 1. Axis I Clinical Disorders / Other Conditions That May Be a Focus of Clinical Attention Axis I is used to gather information about the mental disorders or conditions that an individual is currently suffering. This assessment will Page 4

5 often include the psychological injury underlying the lawsuit. In some cases, the Axis I assessment will also list mental disorders unrelated to the events underlying the plaintiff s injuries. Such disorders should be evaluated to determine whether they contribute to or are a cause of the plaintiff s alleged psychological injuries. The Axis I assessment will also often specify either the principal diagnosis for the plaintiff or the principal reason for the plaintiff s visit to the psychiatrist. It is helpful to the defense when a plaintiff s alleged psychological injury does not fit into either of these categories. Such circumstances can be used to cast doubt on the severity of the alleged psychological injury or to bolster an alternate causation argument. 2. Axis II Personality Disorders / Mental Retardation Axis II is used to gather information about any personality disorders or mental retardation that an individual may suffer. These conditions can, and often do, pre-date the Axis I disorders or the trauma underlying a plaintiff s claim and can be used to support alternate causation arguments. In addition, the Axis II diagnoses may be listed as the primary diagnosis or reason for the visit and can be used to question the severity of the alleged psychological injury. 3. Axis III General Medical Conditions Axis III is used to gather information about an individual s general state of health and any non-psychological/psychiatric medical conditions. These medical conditions merit close scrutiny by defense counsel to determine whether and how they are related to the alleged psychological injury. In some instances, defense counsel may find that a medical condition underlying a plaintiff s psychological injury is unrelated to the actions of the defendant or that the psychological injury is caused by a medical condition entirely different from that alleged by the plaintiff. In less ideal cases, defense counsel may find that a plaintiff s Axis I diagnosis is assessed by a psychiatrist as being directly related to a general medical condition caused by the defendant s actions. 4. Axis IV Psychosocial and Environmental Problems Axis IV is used to gather information about psychosocial and environmental problems that may affect the diagnosis, prognosis or treatment of an individual s current mental disorder. This information is beneficial to defense counsel because it highlights factors that can be argued to cause, contribute to or exacerbate the alleged psychological injury. Problems commonly assessed under this axis include: negative life events, lack of social support, problems with family or interpersonal relationships, educational problems, personal problems, work problems, Page 5

6 housing problems, problems with access to health care, economic problems, and legal problems. Supra DSM-IV, at Axis V Global Assessment of Functioning Axis V provides the clinician an opportunity to assess an individual s global level of functioning, or GAF. The GAF focuses solely on psychological, social and occupational functioning without regard to physical or environmental limitations. The GAF has been described by one commentator as a psychological impairment rating. James T. Brown, Compensation Neurosis Rides Again: A Practitioner s Guide to Defending PTSD Claims, 63 DEF. COUNS. J. 467, 471 (1996). The GAF is based on a 100 point scale that is broken into ten discrete ranges of functioning: 1-10: Persistent danger of severely hurting self or others... OR persistent inability to maintain minimum personal hygiene OR serious suicidal act with clear expectation of death : Some danger of hurting self or others... OR occasionally fails to maintain minimal personal hygiene... or gross impairment in communication : Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgments... OR inability to function in almost all areas : Some impairment in reality testing or communication... OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood : Serious symptoms OR any serious impairment in social, occupational, or school functioning : Moderate symptoms... OR moderate difficulty in social, occupational, or school functioning : Some mild symptoms OR some difficulty in social, occupational, or school functioning..., but generally functioning pretty well, has some meaningful interpersonal relationships : If symptoms are present, they are transient and expectable reactions to psychosocial stressors... no more than slight impairment in social, occupational, or school functioning : Absent or minimal symptoms..., good functioning in all areas : Superior functioning in a wide range of activities. Supra DSM-IV, at 34. A GAF of between is beneficial to the defense because it indicates that the plaintiff s own treating physician or expert has Page 6

7 determined that the plaintiff s condition is mild and that he or she is functioning at a reasonable level. A GAF score in that range can cast serious doubt on a plaintiff s claim that he or she is unable to work or is suffering from a severe and long-term psychological injury. The GAF score is a not a static assessment and will often be assessed differently at different points in time (i.e. immediately posttrauma, pre-trauma, at discharge, etc.). Defense counsel should pay close attention to all assessments of the plaintiff s GAF and track any changes in the score in relation to the events underlying the lawsuit. In some instances, the plaintiff s GAF will not drastically change after a traumatic event. That fact can be effectively used by the defense to demonstrate that the impact of the defendant s actions on the plaintiff did not have a significant impact on the plaintiff s ability to function. B. DSM-IV Diagnostic Criteria In addition to the multi-axial assessment model, the DSM-IV sets out specific criteria that are used in diagnosing individual mental disorders. These criteria reflect the various psychological or behavioral components of a given disorder. The application of these criteria vary from disorder to disorder. It is important for defense counsel to pay close attention to these criteria and the specified method of their application to develop a clear understanding of which factors must be present to diagnose a mental disorder. The DSM-IV contains a prefatory caution that the criteria should not be treated as a checklist and that clinical judgment should be exercised in assessing and diagnosing a patient. Supra DSM-IV, at xxxii. However, this caution does not free a plaintiff s treating physician or expert from the DSM-IV framework because the DSM-IV also warns that excessively flexible and idiosyncratic application of DSM-IV criteria or conventions substantially reduces its utility. Id. Therefore, care should be paid to how much a physician or expert deviates from the DSM-IV criteria. While some deviation is allowable, there are bounds on how far a physician can stretch the DSM-IV criteria. In the case of PTSD, the DSM-IV sets out six criteria used to diagnose the disorder: A. The person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was 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 (2) the person s response involved intense fear, helplessness, or horror. Page 7

8 B. The traumatic event is persistently reexperienced in one (or more) of the following ways: (1) recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions. (2) Recurrent distressing dreams of the event. (3) Acting or feeling as if the traumatic event were recurring (4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. (5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following: (1) Efforts to avoid thoughts, feelings, or conversations associated with the trauma (2) Efforts to avoid activities, places, or people that arouse recollections of the trauma (3) Inability to recall an important aspect of the trauma (4) Markedly diminished interest or participation in significant activities (5) Feeling of detachment or estrangement from others (6) Restricted range of affect (7) Sense of foreshortened future D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following: (1) Difficulty falling or staying asleep (2) Irritability or outbursts of anger (3) Difficulty concentrating (4) Hypervigilance (5) Exaggerated startle response E. Duration of the disturbance is (symptoms in Criteria B, C, and D) is more than 1 month F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. Supra DSM-IV, at These criteria provide fertile ground for the defense of a claim of PTSD and demonstrate how the diagnostic framework of the DSM-IV can be used to defend against other claims of psychological damage. For Page 8

9 example, if discovery were to reveal that a plaintiff did not experience intense fear, helplessness or horror, he or she would not meet the A criterion for PTSD. Similarly, if it can be shown that the plaintiff does not re-experience the traumatic event or does so only on occasion, she would not meet the B criterion. While a savvy physician or expert may attempt to explain away or justify the failure of a plaintiff to strictly meet a specific criterion, such a failure provides ready means to attack the merit of a PTSD claim. In the case of Robert M., the plaintiff claimed to have PTSD, but failed to meet certain aspects of the C criterion. He claimed that his PTSD arose following an extended illness and stay in both a hospital and rehabilitation center. However, following his recovery from the illness, he returned to both the hospital and rehabilitation center on multiple occasions, going so far as to teach a class at the rehab center. These visits not only failed to meet, but were wholly inconsistent with, the avoidance criterion and provided a strong basis to call his PTSD claim into question. C. The Self-Imposed Limitations on the Legal Relevance of a DSM-IV Diagnosis The DSM-IV provides its own warning about the limitations of its relevance in the legal context: In most situations, the clinical diagnosis of a DSM-IV mental disorder is not sufficient to establish the existence for legal purposes of a mental disorder, mental disability, mental disease, or mental defect. In determining whether an individual meets a specified legal standard... additional information is usually required beyond that contained in the DSM-IV diagnosis. Supra DSM-IV, at xxxiii. Thus, a physician or expert relying on the DSM- IV is limited to testimony regarding the clinical diagnosis of mental disorders. This fact can be used to great effect where a plaintiff s treating physician or expert attempts to go beyond the diagnosis of a specific condition and use the DSM-IV to justify a legal conclusion. In addition, the DSM-IV offers a specific cautionary statement on issues of causation and liability: It is to be understood that inclusion [in the DSM-IV], for clinical and research purposes, of a diagnostic category... does not imply that the condition meets legal or other non-medical criteria for what constitutes mental diseases, mental disorder, or mental disability. The clinical and scientific considerations involved in categorization of these conditions as mental disorders may not be wholly relevant to legal judgments, for example, that take into account such issues as individual responsibility, disability determination, and competency. Page 9

10 Supra DSM-IV, at xxxvii. Defense counsel should use both of these selfimposed limitations of the DSM-IV when confronting a physician or expert who is attempting to use the DSM-IV to justify opinions or conclusions that fall outside of its bounds. D. Challenging Methodology Used to Diagnose Psychological Injury Although most psychological injuries that a plaintiff may claim will be mental disorders that are well recognized by the medical community, the methodology used in their diagnosis may not meet the legal standard for the admission of scientific or expert testimony. The evidentiary standard set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct (1993) is well-known. Under this standard, which has been adopted by numerous states, scientific or expert testimony must meet a minimum standard of reliability to be admissible into evidence. Id., at Although many mental disorders will easily meet the Daubert standard, defense counsel may confront a situation where a plaintiff may attempt to draw a novel and unfounded connection between a defendant s actions and an alleged psychological injury. In Isley v. Capuchin Province, 877 F. Supp (E.D. Mich. 1995), the defendant challenged expert testimony that the plaintiff suffered from PTSD as a result of sexual abuse. Although PTSD is a recognized mental disorder, the defendant argued that it did not meet the reliability standard in Daubert. In Isley, the court required the plaintiff to establish each of the elements set out in Daubert as a foundation for their expert testimony. Although the court in Isley admitted the expert testimony proffered by the plaintiff, the court s requirement that the plaintiff s expert satisfy Daubert demonstrates that defense counsel should not merely assume that testimony on a wellrecognized mental disorder is admissible without question. Each claim of psychological injury should be analyzed on its own and in the context of the case in which it arises to determine whether its diagnosis would be reliable and admissible. For example, if Robert M. had alleged that he developed a personality disorder, instead of PTSD, as a result of the defendants actions and had been able to produce an expert to offer an opinion on that fact, the defense would have included a challenge to the admission of any such testimony. Although personality disorders are well recognized in the field of psychiatry and psychology, they are generally described as chronic behavioral disorders that are pervasive, arise during adolescence or early adulthood and are stable over time. Supra DSM-IV, at 685. Thus, although such disorders are well-recognized, their clinical criteria and presentation are not consistent with a single incident of medical negligence. Had Robert M. offered expert testimony that he developed a personality disorder as a result of a single incident of medical negligence, Page 10

11 it is unlikely that the methodology used by such an expert would meet the criteria set out by Daubert. While this is an extreme example, it highlights the possibility of mounting a challenge to the admissibility of expert testimony. IV. Practical Methods for Defending against Post Traumatic Stress Disorder Claims There are three general methods of defending against PTSD claims: (1) questioning the existence of the condition (is the plaintiff lying, malingering, or exaggerating), (2) raising questions about the severity of the condition (is it as bad as the plaintiff says), or (3) raising questions about the cause of the condition (is my client the cause of the PTSD). The unique facts of a given case will generally drive which of these strategies presents a viable defense, but each should be explored as the case develops. Perhaps the most critical elements of a successful defense is early and vigorous preparation. Defense counsel should move aggressively to begin preparing the defense against a claim of PTSD where it is included in or suggested by the initial pleadings and discovery. The following are practical areas and approaches that can be effectively used to defend against PTSD claims. A. Using Discovery to Explore the Plaintiff s Presentation of PTSD The plaintiff s deposition and written discovery submitted to the plaintiff should focus on an examination of the various elements of PTSD. Because the DSM-IV provides the diagnostic framework for the disorder, defense counsel should pay close attention to the diagnostic criteria and explore the facts underlying each element of the disorder. For example, plaintiff should be questioned extensively about the traumatic event, particularly if it extended over a prolonged period of time. If the plaintiff s testimony reveals that he or she did not feel intense fear, helplessness, or horror in response to the traumatic event, any diagnosis of PTSD can be called into question. In addition to exploring each of the PTSD criteria, defense counsel should explore all other traumas that the plaintiff may have experienced in his or her life. Discovery may reveal that the plaintiff either has a prior history of PTSD or has exhibited symptoms of PTSD that pre-date the event underlying the lawsuit and have gone unnoticed. For example, in the case of Robert M., discovery revealed indications of familial abuse and elements of PTSD that pre-dated the traumatic event underlying that lawsuit. These facts were explored and provided a strong basis to argue alternate theories of causation. Any deposition testimony of the plaintiff should be videotaped to record his or her description of the facts outside the presence of a jury or Page 11

12 physician. Often, plaintiffs will view their deposition very differently than an examination by a physician or testimony before a jury. While a plaintiff may become overwhelmed when recounting the traumatic event before a jury or to a physician, he or she may describe the same event dispassionately to an attorney. Such a difference in affect can be used effectively before a jury or with a defense expert to demonstrate that the plaintiff is exaggerating his or her condition. Defense counsel should establish a clear timeline of the onset and treatment of the plaintiff s PTSD. Because PTSD can be used to prop up cases where physical injuries either resolve or are not as severe as initially thought, the onset and treatment of the PTSD can arise under dubious circumstances. In some instances, an attorney may have referred the plaintiff to a mental health provider. Accordingly, it is important for defense counsel to pin down when, by whom and under what circumstances the plaintiff was first diagnosed with PTSD. The fact that a plaintiff did not receive treatment for PTSD until referred to a psychiatrist by his or her attorney can be used to great effect, particularly before a jury. Where PTSD is not alleged in the initial pleadings, but may arise later in the case, defense counsel should use discovery as a prophylaxis against such a claim. It is important to assess the facts of the individual case to determine whether they could support a PTSD claim. This is particularly true where the plaintiff s physical injury is one that is likely to improve over time or not be debilitating. One effective way to prepare such a defense is to explore the DSM-IV criteria with the plaintiff during discovery. For example, if defense counsel suspected that a plaintiff might later attempt to add a PTSD claim to his or her case, it would be wise to question the plaintiff on his or her reaction to the traumatic event to establish the absence of the response required by the DSM-IV A criterion. If the plaintiff should then attempt to complain of PTSD, his or her previous testimony can be used to undermine any such allegation. B. Using the Plaintiff s Medical Records to Undermine Allegations of PTSD Defense counsel should make sure to collect all of the plaintiff s prior medical records, including all billing and insurance claim records. Such records may reflect facts regarding the plaintiff s condition or opinions of the plaintiff s physicians that are inconsistent with either the fact or severity of the plaintiff s PTSD. Such facts can be effectively used to cast doubt both on the severity of the plaintiff s condition and the plaintiff s credibility. In reviewing the medical records, careful attention should be paid to notes or other information about the plaintiff s state of well-being prior to the events underlying the lawsuit. Such a comparison may reveal that s the plaintiff s overall condition did not change dramatically following the Page 12

13 traumatic event. For example, in the case of Robert M., the plaintiff s psychologist listed a global assessment of functioning of 55 in an insurance billing record submitted prior to the traumatic event in that case. However, in notes following the incident, the same psychologist listed the plaintiff s global assessment of functioning as 50. Such a slight decrease in this assessment was inconsistent with the near total incapacity that the plaintiff claimed he experienced as a result of the traumatic event. As records are collected, particular attention should be paid to treating physicians, particularly mental health providers, who are not voluntarily identified by the plaintiff. By working back through the medical records, defense counsel can uncover either traumatic events or symptoms of PTSD that pre-date the events underlying the lawsuit. In addition, such records can uncover other diagnosed mental disorders or facts indicative of undiagnosed mental disorders that can provide alternate theories of causation. For example, in the case of Robert M., an independent medical expert determined that the plaintiff likely suffered from anti-social personality disorder, a condition with which he had not been diagnosed, after reviewing the extensive records on the plaintiff s mental health treatment. In addition, defense counsel should pay close attention to any indication of how the plaintiff s psychiatrist came to believe the plaintiff suffered from PTSD. In some instances, the medical records may reflect that the plaintiff, rather than the doctor, was the person who raised the issue of PTSD. Records such as these raise the possibility that someone other than a medical professional suggested that the plaintiff may suffer from PTSD. Influence of this type can be used by the defense to call the plaintiff s condition into question before the jury. C. Placing the Plaintiff under Surveillance Depending on the specific facts of a plaintiff s PTSD claim, defense counsel should consider the possibility of placing the plaintiff under some type of surveillance. Such a defense strategy is beneficial where it is possible to observe the plaintiff engaging in activities that are inconsistent with his or her PTSD or that directly contradict the plaintiff s sworn testimony. PTSD involves some level of impairment of basic functioning, as do most psychological injuries. To the extent that surveillance observes the plaintiff engaging in activities he or she claims are traumatic, without impairment, it can cast a long shadow on the plaintiff s allegations. Surveillance without a clear goal of this sort, however, often is not worthwhile. D. Confronting the Plaintiff s Expert Witnesses Any expert witnesses retained by the plaintiff should be approached with the realization that psychiatrists and psychologists are difficult Page 13

14 subjects for effective cross-examination. Such mental health professionals are highly trained and knowledgeable in their subject matter. Given the highly subjective nature of their substantive testimony, their opinions are often easy to defend and hard to deflate. In order to prepare for an effective cross-examination, defense counsel should have a basic understanding of the field and a good understanding of the diagnostic criteria for PTSD. Although a plaintiff s experts may be difficult to cross-examine, there are several areas where defense counsel should be able to extract concessions that can limit the damage of their testimony. First, defense counsel should get the plaintiff s expert to concede that the information used to diagnose PTSD, or other psychological injuries, is subjective and largely gathered from self-reports of the plaintiff. Further, the expert should be asked to concede that malingering, false reporting of symptoms or exaggeration of symptoms is difficult for mental health professionals to detect and that such professionals can be fooled by patients. These concessions allow the defense to argue that whatever opinions the expert offers are based solely on what the plaintiff told the expert or another physician. The key point to stress to the jury is that there is no objective way to determine the plaintiff s condition there is no blood test, x-ray, MRI or other objective diagnostic test that can reveal PTSD or many of the other common psychological injuries alleged in medical malpractice cases. Second, defense counsel should get the plaintiff s expert to concede that the plaintiff s condition will improve and the plaintiff will get better if he or she commits to therapy. By and large, the psychological injuries that arise in medical malpractice cases, including PTSD, will improve with time and therapy. To the extent that the expert concedes that the plaintiff s condition will improve, the damages are limited. Should the expert maintain that the plaintiff s condition will not improve, defense counsel may be presented with an opportunity to undermine the credibility of the expert or argue that the plaintiff is not committed to improving his or her condition, depending on the circumstances. Third, defense counsel should get the plaintiff s expert to concede that, where applicable, the cost of treating the plaintiff s condition is low. Defense counsel should develop a clear picture of the treatment the plaintiff s condition will require and how much that treatment will cost. The cost of treating psychological injuries, including PTSD, can be relatively low when compared with other types of injuries. A concession to that effect by an expert can reduce any damages awarded to the plaintiff for such injuries. Finally, defense counsel should pay close attention to all expert reports and confront the designated experts with any stressors in the plaintiff s life that have been overlooked or ignored. In addition, defense counsel should ask the expert about all of the areas of psychosocial stressors in the plaintiff s life that were not considered or investigated when the expert formed his or her conclusion. Often, an expert or treating Page 14

15 physician will not have all of the information that an attorney can assemble through discovery. To the extent that the expert lacked information that is significant to the plaintiff s condition, he or she should be confronted with such information. Defense counsel should be on guard for any attempts by the plaintiff to turn her treating physicians into experts. Often, plaintiff s counsel will try to elicit opinion testimony from the plaintiff s treating physicians that are called to testify. Although rules regarding experts vary from jurisdiction to jurisdiction, they invariably require the designation of witnesses who intend to offer expert opinions and various disclosures to accompany such designations. See Fed. R. Civ. P. 26. Where such designation and disclosures has not been made, it is improper for plaintiff s counsel to attempt to elicit expert opinion. If plaintiff s counsel should attempt this, defense counsel should object and, through crossexamination, establish that the treating physician has not been retained to offer expert opinions. Beyond the legal limitations on offering expert opinions into evidence, the psychiatric community has recognized that it is improper for a physician to act as a treater and an expert witness. When a psychiatrist is treating a patient, his or her role is to assess and treat the patient based on the patient s perception of his or her condition and symptoms. A treating psychiatrist, thus, acts on the patient s subjective self-reports without independent corroboration, rather than on the basis of an objective assessment of their condition. This approach is encouraged by the DSM- IV and the American Academy of Psychiatry and the Law. E. Defense Expert Witnesses Aside from concessions extracted from the plaintiff s witnesses, expert testimony is the primary method of defending against claims of PTSD. Where a case either does or may involve a PTSD claim, defense counsel should move quickly to secure a qualified expert, preferably one who is versed in forensic psychiatry or psychology. Not only will such an expert aid the defense by offering opinions at trial, but he or she can also help guide discovery and provide recommendations on how to approach the plaintiff s claims. This expert can synthesize all of the information regarding the plaintiff s condition and either point to alternate causes or offer opinions that the plaintiff is not as incapacitated as he or she may claim. One strategic question the defense will have to confront is whether to present expert testimony that labels the plaintiff a malingerer. This is a case-specific determination that should be carefully weighed. The primary concern is that an allegation of malingering can cast the defendant in a negative light to the jury where the plaintiff s condition appears credible on the stand. Page 15

16 Often the best approach is not to have a defense expert challenge the plaintiff s symptoms, but, rather, to have him or her testify that the plaintiff s PTSD was caused by something other than the defendant s actions. In addition, a defense expert should offer testimony on the prognosis of the plaintiff s condition and how soon it will improve. Many cases of PTSD are not chronic or untreatable and will improve over time. This fact should be stressed to the jury as it undermines a larger damage award that the plaintiff may be seeking. Finally, care should be used when deciding whether to take advantage of discovery rules that allow a defense expert to examine the plaintiff. See Fed. R. Civ. P. 35. Such procedures allow a physician retained by the defense to examine the plaintiff and explore his or her medical condition. An examination holds the possibility of revealing additional weaknesses in the plaintiff s claims of incapacity or injury. In addition, where the plaintiff exaggerates his or her symptoms, such an examination provides an opportunity to draw a strong contrast with how the plaintiff described their injury and the underlying trauma during their deposition. If the examiner reaches conclusions that are positive to the defense, invocation of this procedure can be beneficial. However, defense counsel runs the risk of helping the plaintiff prove his or her case if the examiner reaches conclusions similar to those reached by the plaintiff s treating physician or expert. The risk is giving plaintiff s counsel the opportunity to stand before the jury and proclaim: The defendant s own expert says that my client suffers from PTSD! F. Assemble All Psychological Testing Data on Plaintiff In most cases where a plaintiff claims PTSD, he or she will have undergone some type of psychometric analysis, such as the Millan Clinical Multi-axial Inventory III (MCMI-III) or Minnesota Multi-phastic Personality Inventory 2 (MMPI-2) test. Where such tests have been conducted, defense counsel should endeavor to obtain all of the results and raw data from the tests. Such data can be useful in a number of ways. For example, some tests will reveal Axis II personality disorders that are not included in a patient s assessment. Such disorders generally pre-date the events underlying the lawsuit and can contribute to or cause the plaintiff s psychological problems. This information provides additional grounds to offer alternate theories of causation. In addition, the MMPI-2 test is widely recognized in the psychiatric field as the most useful tool to detect malingering. One problem that defense counsel may face in attempting to obtain raw data is resistance on the part of mental health professionals to release such information on ethical grounds. However, under Ethical Principle 9.04 of the American Psychological Association, psychologists are allowed to distribute such information, except in certain limited circumstances. Page 16

17 Available at There is no corresponding ethical rule binding psychiatrists. Where such an objection is raised, defense counsel should inform the practitioner of his or her ethical responsibilities and, if that approach proves unsuccessful, move the court for an order compelling disclosure of the data. G. Raising Questions about the Plaintiff s Credibility The inherent subjectivity of PTSD and the diagnostic reliance on the plaintiff s self-reporting also presents a possible defense against PTSD claims. Diagnosis of PTSD is inherently subjective. A mental health provider must rely on the subjective self-reports of their patient. There is often no objective means to test or verify a plaintiff s complaints underlying a diagnosis of PTSD. Given this subjective nature, the plaintiff s credibility, or lack thereof, may present defense counsel an opportunity to attack either the presence or severity of PTSD. Such frontal attacks can be difficult to mount, primarily because of the lack of objective evidence and the fact that a plaintiff s complaints are generally supported by his or her treating physician and expert. However, defense counsel should be careful not to overlook the possibility of calling the entire condition into question when the means present themselves. V. Assessing the Legal Requirements of the Plaintiff s Claim Although the foregoing discussion provides a general framework for defending PTSD claims, the specific legal theory relied on by a plaintiff can provide additional grounds for defense. Plaintiffs can seek psychological damages under a variety of different legal theories, including intentional infliction of emotional distress, negligent infliction of emotional distress and common negligence. Certain of these legal theories have specific requirements that must be met to state a valid claim for relief. For example, different jurisdictions apply a variety of different rules to claims for negligent infliction of emotional distress. Some jurisdictions require that the plaintiff suffer some level of physical contact or impact in order to state a valid claim for negligent infliction of emotional distress. See Plaisance v. Texaco, Inc., 937 F.2d 1004, (5th Cir. 1991) (summarizing the various approaches to negligent infliction of emotional distress claims). Other jurisdictions apply the zone of danger rule where the plaintiff can recover damages that result from the witnessing of peril or harm to another if the plaintiff is also threatened with physical harm as a consequence of the defendant s negligence. Id. While an exhaustive description of the myriad different requirements to state valid claims for emotional distress in the various jurisdictions around the country is beyond the scope of this paper, defense counsel should pay close attention to the legal requirements underlying the legal theory that a plaintiff uses to recover psychological damages. Page 17

18 VI. Conclusion Although allegations of psychological damage can be daunting to defend against, careful preparation and attention to detail while preparing a case for trial can often reveal various weaknesses in the plaintiff s claim that can be effectively used by the defense. Bibliography AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed., text rev. 2000). James T. Brown, Compensation Neurosis Rides Again: A Practitioner s Guide to Defending PTSD Claims, 63 DEF. COUNS. J. 467 (1996). Debra S. Katz and Lynne Bernabei, Damages Issues in Employment Discrimination Cases: Expert Testimony in Sexual Harassment and Other Employment Discrimination Cases After Daubert v. Merrell Dow Pharmaceuticals, Inc., SD06 ALI-ABA 603 (1998). Karl Kirkland, Post-Traumatic Stress Disorder vs. Pseudo Post-Traumatic Stress Disorder, 56 ALA. LAW. 90 (1995). Paul R. Lees-Haley, Pseudo Post-Traumatic Stress Disorder, TRIAL DIPLOMACY J., Winter 1986/87, at 19. Amihay Levy, Compensation Neurosis Rides Again, 6 BRAIN INJURY 401 (1992). Mark I Levy, Stressing the Point: Post Traumatic Stress Disorder Claims, FOR THE DEFENSE, Nov. 1995, at 27. Nicholas J. Motherway, Post-Traumatic Stress, 49 AM. JUR. Proof of Facts 2d 73 (2004). L. A. Neal, The Pitfalls of Making a Categorical Diagnosis of Post Traumatic Stress Disorder in Personal Injury Litigation, 116 MED. SCI. L. 117 (1994). Pinchas Noy, New Views of Psychotherapy of Compensation Neurosis: A Clinical Study, in NEW DIMENSIONS IN PSYCHIATRY: A WORLD VIEW (John Wiley & Sons 1975). Page 18

19 Phillip J. Resnick, Guidelines for the Evaluation of Malingering in Post Traumatic Stress Disorder, in POST TRAUMATIC STRESS DISORDER IN LITIGATION (Robert I. Simon ed., 1995). Gerald M. Rosen, Post Traumatic Stress Disorder, Pulp Fiction, and the Press, 24 BULL. AM. ACAD. PSYCHIATRY & L. 267 (1996). Ralph Slovenko, Legal Aspects of Post-Traumatic Stress Disorder, 17 PSYCHIATRIC CLINICS OF N. AM. 439 (1994). Page 19

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