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Post Traumatic
Stress Disorder (PTSD) In Litigation
©Vicky Campagna,
PhD
For a pdf file of
this article, click here
PTSD
is a mental disorder that is frequently part of tort litigation. Yet
few disorders are subject to as much misunderstanding and misuse. It is
far from a new disorder, however. In fact, the phenomenon has been
recognized by the general public for some time, just under different
names. At various times, PTSD has been called “compensation neurosis,”
“shell shock,” and “battle fatigue. ” The criteria which make up the
diagnosis is made have also evolved over time. Currently, DSM-IV, that
compendium of diagnostic criteria, states that to qualify as a diagnosis
of PTSD, the individual must have been exposed to a traumatic event in
which both of the following have occurred: 1) the person
“experienced, witnessed or was actually 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” AND the
person’s response to that event “involved intense fear, helplessness or
horror.”
Assuming the above occurred, the trauma must be persistently
re-experienced in one or more of these ways:
1)
recurrent and intrusive
memories of the event
2)
recurrent and distressing
dreams of the event
3)
acting or feeling as
though the event was re-occurring (“flashbacks”)
4)
intense emotional upset
when exposed to cues that symbolize aspects of the original trauma
5)
bodily reactivity when
exposed to cues that symbolize aspects of the original trauma
Moreover, the subject must persistently avoid stimuli connected
with the original trauma, and have a decrease in responsiveness, as
indicated by 3 or more of these:
1)
attempts to avoid
thoughts, feelings or conversations associated with the trauma
2)
attempts to avoid
activities, places or people that bring back memories of the trauma
3)
inability to remember
important aspects of the trauma
4)
reduced involvement or
interest in significant activities
5)
feeling detached from
other people
6)
reduced range of
emotional responsiveness
7)
feeling that one’s future
is foreshortened
But
wait! There’s more to the diagnosis! Additionally, the individual must
display persistent indications of “increased arousal” with 2 or
more of these symptoms:
1)
problems with sleep
(falling or staying asleep)
2)
irritability
3)
problems with
concentration
4)
exaggerated alertness to
threats in the environment
5)
exaggerated “jumpiness”
A
shorthand way of remembering all this is to recall that PTSD requires a
major trauma and 2 A’s and an R: major trauma + avoidance and arousal + re-experiencing of the original trauma.
All of
the above need to have been present for more than one month and
must cause significant impairment or distress in the individual’s
functioning. If the symptoms have a shorter duration, the correct
diagnosis is “acute stress disorder.”
The
first important thing to understand is that the original trauma must
be a genuinely dangerous event. No matter how anxious the
individual is currently, no matter how many symptoms s/he is displaying,
if that first criterion is not met, there cannot be a diagnosis of PTSD!
If, for instance, someone is phobic about heights and finds himself on
the rooftop of a tall building and subsequently displays the symptoms of
PTSD, that diagnosis cannot be made because the initial event does not
qualify as truly dangerous. That initial event must be
objectively life-threatening or at least extremely dangerous.
Of course, the jury's perception of what constitutes "life-threatening
or at least extremely dangerous" is something which can be greatly
impacted by your litigating skills!
If
you’re defending against a claim of PTSD, it’s important to know that
the diagnostic criteria are very subjective and rely to a great extent
on patient self-report and clinical judgment. (For suggestions on how
to combat the latter, see my article “Challenging the Mental Health
Witness” and “Is Diagnosis Useless in Litigation,” both on this
website.) There is no psychological test that can prove that any
observed or reported symptoms are due to a specific event. Nor are there
any that can prove that the individual is being truthful---or that s/he
is lying, for that matter! If Mary is displaying symptoms, how do we
know that they’re due to this particular trauma and not to a
long-standing (but totally unrelated) emotional problem? And how do we
know that her symptoms are genuine and not exaggerated, if not outright
feigned? Her therapist is not a good source of information: for the
reason why, read “Why Your Client’s Therapist Is The Worst Possible
Expert for Your Case” on this website. That said, there are
tests that can provide an educated guess as to the truthfulness of the
symptoms reported---they're just not infallible measures.
The
consensus in the field is that an approach called “multi-trait, multi-method” is the most comprehensive way to determine if there is
true PTSD. What this means is integrating data from a variety of
sources rather than only from the client’s self-report. Testing (such
as using the MMPI) and possibly structured interviews, combined with reports
from the claimant’s family and associates will provide a fuller,
potentially more objective conclusion than client interview alone.
A good
way to think of the genuine PTSD client is to say that s/he is “stuck in
time:” they continually re-experience their trauma, replete with all the
emotional side-effects of that experience. The PTSD sufferer is
consumed with a need for safety and self-protection. This need can
become more important than the need for human connection and major
deficits in interpersonal trust are common. PTSD can be hard to
diagnose, because some people will understandably shy away from bringing
up very painful memories. Some researchers have found that true PTSD
can exist for over 50 years! And PTSD is commonly found along with
other emotional problems (common ones are depression, anxiety and
substance abuse), thus further complicating the diagnosis.
PTSD
is a genuine emotional disturbance, one that causes a great deal of
distress and can be incapacitating. However, it is also true that it is
a diagnosis that has become well known in the lay community and can be
abused in litigation. For further clarification of this conundrum, just
give me a call at 650-368-8318 or email me at drvicky@rcn.com.
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