Most plaintiff and defense attorneys would likely admit that treatment of forensic psychological experts and posttraumatic stress disorder (PTSD) claims on behalf of their respective clients is difficult. For the defense of a personal injury claim involving PTSD, it is essential that defense counsel have a thorough understanding of the interaction between the DSM-5, standardized testing, how the testing was scored, whether the tests administered had validity scales, and what other personal historical factors and information the plaintiff’s examining physician had available to him or her. It is also important to determine whether the plaintiff’s expert considered other mental diseases or defects besides PTSD. All of this is necessary for thorough cross-examination of a plaintiff’s expert and attacking misdiagnosed claims of PTSD.
There is no single test that will clinically establish the presence of PTSD. Typically a number of tests such as the MMPI, the TSI or other standardized tests are administered. Defense counsel should understand whether there are validity scales and what they show and be prepared to cross-examine the plaintiff’s expert in that regard.
Defense counsel should also cross-examine the plaintiff’s expert on his or her awareness of recent longitudinal studies done on PTSD Defense counsel must determine whether the plaintiff’s expert is an experienced clinician. What clinical judgment did the plaintiff’s expert apply to reach his or her diagnosis? Did the plaintiff’s expert account for malingering? If so, how?
Defense counsel should also cross-examine the plaintiff’s expert extensively on key diagnostic criteria such as “life-threatening” and “persistence”.
Posttraumatic Stress Disorder (“PTSD”) (DSM-IV-TR Code 309.81) is categorized by the DSM-IV(TR) as an Anxiety Disorder.
Posttraumatic Stress Disorder (PTSD) will be included in a new chapter in DSM-5 on Trauma- and Stressor-Related Disorders. This move from DSM-IV, which addressed PTSD as an anxiety disorder, is among several changes approved for this condition that is increasingly at the center of public as well as professional discussion.
“The essential feature of PTSD is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person, or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate.” DSM-IV-TR at p. 463.
The response to the event must involve intense fear, helplessness, or horror. In children, the response must involve disorganized or agitated behavior. Characteristic symptoms include persistent re-experiencing of the traumatic event, persistence of stimuli associated with the trauma and numbing of general responsiveness and persistent symptoms of increased arousal. DSM-IV-TR also states that the full symptom picture must be present for more than one month and the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
A nonexclusive list of traumatic events that are experienced directly include military combat, violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, begin taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or manmade disasters, severe automobile accidents, or being diagnosed with a life-threatening illness. For children, sexually traumatic events may include developmentally inappropriate sexual experiences without threatened or actual violence or injury.
An individual will have persistent symptoms of anxiety or increased arousal that were not present before the trauma. These symptoms may include difficulty falling or staying asleep that may be due to recurrent nightmares during which the traumatic event is relived, hyper-vigilance, and exaggerated startle response. Some individuals report irritability or outbursts of anger or difficulty concentrating or completing tasks.
Associated Descriptive Features and Mental Disorders
Part of the difficulty in an accurate diagnosis of PTSD, is that it is associated with many other anxiety and other mental disorders. PTSD is also associated with increased rates of Major Depressive Disorder, Substance-Related Disorders, Panic disorder, Agoraphobia, Obsessive-Compulsive Disorder, Generalized Anxiety Disorder, Social Phobia, Specific Phobia, and Bipolar Disorder. These disorders can either precede, follow, or emerge concurrently with the onset of PTSD.
PTSD Prevalence Rates
The DSM-IV-TR discusses community-based studies which reveal a lifetime prevalence for PTSD of approximately 8% of the adult population in the United States. Information about general prevalence rates in other countries is not available. Studies of at-risk individuals yield variable findings, with the highest rates (ranging between one third and more than half of those exposed) found among survivors of rape, military combat and captivity, and ethnically or politically motivated internment and genocide.
The DSM-IV-TR emphasizes that with PTSD, the stressor must be of an extreme, (i.e., “life-threatening) nature. DSM-IV-TR at p. 467. In contrast, other mental disorders often mistakenly diagnosed as PTSD include Adjustment Disorder, where the stressor can be of any severity. The test also points out that not all psychopathology that occurs in individuals exposed to an extreme stressor should necessarily be attributed to PTSD and may be the result of many other mental disorders. Mentioned are Acute Stress Disorder, Obsessive Compulsive Disorder Schizophrenia and other Psychotic Disorders or Mood Disorders with Psychotic Features. Significantly, the test emphasizes that “[m]alingering should be ruled out in those situations in which financial remuneration, benefit eligibility, and forensic determinations play a role.” DSM-IV-TR at p. 467. Although a discussion of all diagnostic criteria is beyond the scope of this article, virtually each of the diagnostic criteria for PTSD emphasize that persistence of the symptoms, the re-experiencing of the event, and the avoidance of associated stimuli is essential.
Even a complete summary of the criteria and methodology for most effectively questioning or attacking a plaintiff’s claim of PTSD is far beyond the scope of this blog post. Defense counsel must undertake a thorough investigation and consultation with a qualified expert, preferably one who also maintains a clinical practice. When defense counsel is cross-examining plaintiff’s expert witness regarding a PTSD diagnosis, there is absolutely no substitute for thorough preparation and understanding of the DSM-IV criteria, clinical judgment, test results, current longitudinal or other studies and an awareness of all factors taken into account by plaintiff’s expert as the plain text of the DSM-IV-TR, and examples of the trauma and criteria typically associated with PTSD can often be easily contrasted with the data to disprove or minimize the emotional distress damages. Olson Brooksby often defends high-exposure personal injury or product liability cases where plaintiffs seek damages for emotional distress and claim PTSD. For more information, contact our office.