Tag Archives: DSM-IV

Effective Cross-Examination of Plaintiff’s Psychological Expert Can Reduce or Eliminate Damages for Misdiagnosed Claims of PTSD

Jurors in the jury box

Post-Traumatic Stress Disorder (“PTSD”) is a mental disorder within the trauma and stressor-related disorders included in The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, or DSM-5.  It was previously categorized in the anxiety classification of disorders in the “DSM-IV”.

Personal injury, product liability, and aviation defense lawyers should be well prepared to cross-examine forensic psychologists who testify on behalf of plaintiffs that they suffer from PTSD.  Reasons for thorough preparation include the frequent lack of critical information regarding a plaintiff’s background, inadequate psychological testing, improper reading of validity scales, or an absence of reliance on any other data or criteria by the forensic psychologist testifying on behalf of plaintiff.  If defense counsel is thoroughly familiar with the DSM-5 (and its criteria and commentary on PTSD) and is prepared for an effective cross-examination of plaintiff’s treating or forensic psychologist, damages for emotional distress in PTSD claims can be significantly reduced or eliminated.

Olson Brooksby primarily defends product liability, higher exposure personal injury, and aviation cases.  Over the past few years, we have seen a trend developing whereby almost every plaintiff filing a personal injury lawsuit in such cases claims they suffer from PTSD as a consequence of the alleged injury, without regard for any other potential causes or their own overall life experience.  As a result, most plaintiffs seek emotional distress damages for PTSD as an element of damages in their personal injury lawsuits.

This being the case, there is no substitute for thorough preparation, in-depth knowledge of the material, and the ability to translate “psycho-speak” into plain language in order to mount an effective cross examination.  This preparation should start with a rigorous study of the DSM-5.

Effectively Challenging Plaintiff’s Allegation of PTSD Can Significantly Reduce or Eliminate Plaintiff’s Claim For Emotional Distress Damages

Most plaintiff and defense attorneys would likely admit that handling PTSD claims on behalf of their respective clients, and in particular, dealing effectively with forensic psychological experts, is difficult.  In defending a personal injury action where PTSD is claimed, 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 experts considered any other mental disease or defect, and, if so, how they reached their differential diagnosis of PTSD.  All of this is necessary for thoroughly cross-examining plaintiff’s experts and challenging misdiagnosed claims of PTSD.

There is no single test that will clinically establish the presence of PTSD.  Typically, tests such as the MMPI, the TSI, or other standardized tests are administered.  Defense counsel should know whether there are validity scales and what they show, and they should be prepared to cross-examine plaintiff’s expert on these issues.  Defense counsel should cross-examine plaintiff’s expert on his or her knowledge of recent longitudinal studies done on PTSD, many of which are authored or co-authored by members of the DSM-IV or DSM-IV-TR PTSD Work Group or other Task Force or advisors.

Other fertile strategies for cross-examination include probing the extent of the expert’s clinical experience, how they applied clinical judgment to reach the diagnosis, how they accounted for malingering, and extensive questioning regarding key diagnostic criteria such as “life-threatening” and “persistence.”

Essential Diagnostic Features of Post-Traumatic Stress Disorder (“PTSD”) 

“The essential feature of post-traumatic stress disorder (PTSD) is the development of characteristic symptoms following exposure to one or more traumatic events.  Emotional reactions to the traumatic event (e.g., fear, helplessness, horror) are no longer a part of Criterion A.  The clinical presentation of PTSD varies.  In some individuals, fear-based re-experiencing, emotional, and behavioral symptoms may predominate.  In others, anhedonic or dysphoric mood states and negative cognitions may be most distressing.  In other individuals, arousal and reactive-externalizing symptoms are prominent, while in others, dissociative symptoms predominate.  Finally, some individuals exhibit combinations of these symptom patterns.”  DSM-5 at p. 274.

The directly experienced traumatic events in Criterion A include, but are not limited to, exposure to war as a combatant or civilian, threatened or actual physical assault (e.g., physical attack, robbery, mugging, childhood physical abuse), threatened or actual sexual violence (e.g., forced sexual penetration, alcohol/drug-facilitated sexual penetration, abusive sexual contact, noncontact sexual abuse, sexual trafficking), being kidnapped, taken hostage, terrorist attack, torture, incarceration as a prisoner of war, natural or human-made disasters, and severe motor vehicle accidents.

For children, sexually violent events may include developmentally inappropriate sexual experiences without violence or injury.  A life-threatening illness or debilitating medical condition is not necessarily considered a traumatic event.  Medical incidents that qualify as traumatic events involve sudden, catastrophic events (e.g., waking during surgery, anaphylactic shock).  Witnessed events include, but are not limited to, observing threatened or serious injury, unnatural death, physical or sexual abuse of another person due to violent assault, domestic violence, accident, war or disaster, or a medical catastrophe in one’s child (e.g., a life-threatening hemorrhage).  Indirect exposure through learning about an event is limited to experiences affecting close relatives or friends and experiences that are violent or accidental (e.g., death due to natural causes does not qualify).  Such events include violent personal assault, suicide, serious accident, and serious injury.  The disorder may be especially severe or long-lasting when the stressor is interpersonal and intentional (e.g., torture, sexual violence).

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.  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.

An individual will have persistent symptoms of anxiety or increased arousal not present before the trauma.  These symptoms can include difficulty falling or staying asleep that may be due to recurrent nightmares during which the traumatic event is relived.  Other symptoms can include hyper-vigilance and exaggerated startle response.  Some individuals report irritability, outbursts of anger, or difficulty concentrating or completing tasks.

Associated Descriptive Features and Mental Disorders 

Developmental regression, such as loss of language in young children, may occur.  Auditory pseudo-hallucinations, such as having the sensory experience of hearing one’s thoughts spoken in one or more different voices, as well as paranoid ideation, can be present.  Following prolonged repeated and severe traumatic events (e.g., childhood abuse or torture), the individual may additionally experience dissociative symptoms, difficulties in regulating emotions, and/or difficulties maintaining stable relationships.

When the traumatic event produces violent death, symptoms of both problematic bereavement and PTSD may be present.  Part of the difficulty in accurately diagnosing PTSD is that it is associated with many other anxiety and mental disorders.  For example, 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 precede, follow, or emerge concurrently with the onset of PTSD.

PTSD Prevalence Rates

In the United States, projected lifetime risk for PTSD using DSM-IV criteria at age 75 years is 8.7%.  Twelve-month prevalence among U.S. adults is about 3.5%.  Lower estimates of 0.5%-1.0% are seen in Europe, Africa, and Latin America.  The DSM-IV discusses community-based studies that 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.

Differential Diagnosis

PTSD can occur at any age, beginning after the first year of life.  Symptoms usually begin within the first three months following the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met.  There is abundant evidence for what DSM-IV called “delayed onset” but is now called “delayed expression,” with the recognition that some symptoms typically appear immediately and that the delay is in meeting the full criteria.

The DSM-5 emphasizes that with PTSD, the stressor must be of an extreme, (i.e., “life-threatening) nature.  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.  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.


Scott Brooksby recently cross examined a plaintiff’s forensic psychologist in a high-exposure personal injury case he was defending.  Plaintiff’s expert typically diagnosed more than half of those he evaluated with PTSD.  On cross-examination, this expert was not familiar with the prevalence rates, the specific criteria, or the comorbidity issues associated with PTSD and published in the DSM.  Most significantly, he could not describe the single most important feature for a diagnosis of PTSD: a “characteristic set of symptoms following exposure to one or more traumatic events.”  Instead, the expert merely opined that, in so many words, plaintiff was unhappy, withdrawn, and appeared to be troubled by a series of events.  The expert could not describe the relative significance of the plaintiff’s life events or link them to the specific criteria needed to achieve an accurate PTSD diagnosis.

It is important that the cross-examination specifically pin down the basis for the expert’s diagnosis, especially now with the much more detailed DSM-5, and the breaking up of many of the negative cognition clusters and a much more specific list of negative experience categories.

Even a comprehensive summary of the methodology for most effectively questioning or challenging a plaintiff’s claim of PTSD is beyond the scope of this blog post.  However, when cross-examining plaintiff’s expert witness regarding a PTSD diagnosis, defense counsel should always keep in mind that the plain text of the DSM-5, and examples of the trauma and criteria typically associated with PTSD, can often be easily contrasted with the data to disprove or cast doubt on the PTSD diagnosis.

Key Changes to the DSM-5 for the Product Liability, Personal Injury, and Aviation Defense Lawyer

DSM-5 book

The creation of the fifth edition of Diagnostic and Statistical Manual of Mental Disorders (DSM-5) was a massive undertaking that involved hundreds of psychiatrists, psychologists, physicians, and other medical professionals working together over a 12-year period.  The DSM-5, which replaced the 2000 DSM-IV (TR), is the foundation for reliable diagnosis and treatment of psychological and mental disorders.  As with prior DSM publications, which now date back decades, it is not intended to be a substitute for sound, objective clinical judgment, training, and skill.

Reflecting and prompted by the many new longitudinal studies, research papers, and experimental treatment modalities that have appeared since 2000, this new DSM edition contains significant changes in the classification of some disorders, and the removal or addition of other disorders.  This discussion will provide a brief overview of some of the key changes to the DSM-V and will touch on issues of interest to legal professionals working in the areas of product liability, personal injury, and aviation defense.

In a trial setting, familiarity with the DSM-5 and the underlying literature will be critical to an effective cross-examination of plaintiff’s expert.  Often, with forensic psychologists, the defense can make significant inroads on the basis that plaintiff’s expert is not sufficiently familiar with the DSM or associated literature.  For example, a significant new body of literature related to “resiliency and benefit realization” after a traumatic experience is largely unknown to most plaintiffs’ forensic psychologists.

A substantial percentage of high exposure cases in those categories involve a diagnosis of PTSD by plaintiff’s expert and a Global Assessment of Functioning (GAF) score based on the five-level multiaxial system, with Axis 5 providing the GAF score.  This brief post will focus on the changes to ­– or more accurately, the elimination of – the multiaxial system, as well as the changes to the criteria, symptoms, and diagnosis of PTSD.

A subsequent post will deal specifically with the criteria for PTSD and will include suggestions for cross-examination of plaintiff’s diagnosing mental health professional.

Changes to the Multiaxial System in DSM-5

Despite its widespread use, particularly among some insurance agencies and the government, the multiaxial system in DSM-IV was not required to make a mental disorder diagnosis.  DSM-5 has moved to a nonaxial diagnostic model (formerly AXES I, II, and III), with separate notations for important psychosocial and contextual factors (formerly Axis IV) and disability (formerly Axis V).  The approach of distinguishing diagnosis from psychosocial and contextual factors is also consistent with established WHO and ICD guidelines, which consider the individual’s functional status separately from his or her diagnosis or symptom status.

DSM-IV Axis V consisted of the Global Assessment of Functioning (GAF) scale, representing the clinician’s judgment of the individual’s overall level of “functioning on a hypothetical continuum of mental health-illness.”  It was recommended that the GAF be dropped from DSM-5 for a number of reasons, including its conceptual lack of clarity (e.g., including symptoms, suicide risk, and disabilities in the descriptors) and questionable psychometrics in routine practice.  In order to provide a global measure of disability, the WHO Disability Assessment Schedule (WHODAS) is included in DSM-5 for further study.

Changes to PTSD in DSM-5

Post-Traumatic Stress Disorder (“PTSD”) is a Trauma- and Stressor-Related Disorder.  DSM-5 criteria for PTSD differ significantly from the DSM-IV.  The stressor criterion (Criterion A) is more explicit with regard to events that qualify as “traumatic” experiences.  Also, DSM-IV Criterion A2 (subjective reaction) has been eliminated.

Whereas there were three major symptom clusters in DSM-IV – re-experiencing, avoidance/numbing, and arousal – there are now four symptom clusters in DSM-5 because the avoidance/numbing cluster is divided into two distinct clusters: avoidance and persistent negative alterations in cognitions and mood.  The latter category, which retains most of the DSM-IV numbing symptoms, also includes new or re-conceptualized symptoms such as persistent negative emotional states.  The final cluster – alterations in arousal and reactivity – retains most of the DSM-IV arousal symptoms.  It also includes angry outbursts and reckless or self-destructive behavior.

PTSD is now developmentally sensitive in that diagnostic thresholds have been lowered for children and adolescents.  Furthermore, separate criteria have been added for children age 6 years or younger with this disorder.

The DSM-IV childhood diagnosis of reactive attachment disorder had two subtypes: emotionally withdrawn/inhibited and indiscriminately social/disinhibited.  In DSM-5, these subtypes are defined as distinct disorders: “reactive attachment disorder” and “disinhibited social engagement disorder.”

Olson Brooksby is a product liability, personal injury, and aviation defense firm.

The Newly-Released DSM-5 and Its Use in Personal Injury Cases

Olson Brooksby primarily defends high-exposure product liability and personal injury cases.  Over the past few years, it seems as though many of these cases involve personal injury claims for mental disorders, particularly Post-Traumatic Stress Disorder (“PTSD”), as a result of the alleged accident at issue in the lawsuit.

PTSD is a mental disorder within the anxiety classification of disorders in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, or “DSM”.  It is important to be familiar with the most recent version of the DSM when defending against a personal injury claim filed by a plaintiff who alleges a mental disorder.

In order to assist companies defending against personal injury claims requesting damages for various mental disorders, this article discusses the DSM and the recently-released DSM-5, and explains why it is important for personal injury defense lawyers to be familiar with the DSM-5 when defending against personal injury claims.

The DSM: The Single Most Authoritative Manual Regarding the Diagnosis of Mental Disorders

The DSM is universally recognized as the single most authoritative manual regarding the diagnosis of mental disorders.  The current version of the DSM, the DSM-5,was just released this week.  The previous version, the DSM-IV, was published in 1994 and the text was revised (DSM-IV-(TR)) in 2000.

The usefulness and credibility of the DSM for education, research, clinical, or forensic work depends upon the support of an extensive empirical foundation.  The DSM was created by the  American Psychiatric Association (APA) in order to provide a helpful guide to clinical practice with a uniform nomenclature that spans disciplines and purposes.  While a complete history of the development of the DSM-5 and earlier editions is far beyond the scope of this article, a short synopsis is crucial to the understanding of the universal acceptance of the text as authoritative.

The Principal Purpose of the DSM

The undisputed principal purpose of the DSM is to aid clinicians in the diagnosis of mental disorders, not for forensic purposes.  In fact, the DSM-IV and 5 both include disclaimers that spell out the significant risks that are present within the DSM categories, criteria, and textual descriptions when they are employed for forensic purposes.  The primary danger is that the diagnostic criteria will be misused or misunderstood.  This is because of the imperfect fit between the questions of ultimate concern to the law and the information used by clinicians to render a clinical diagnosis.

Additionally, in a forensic setting, nonclinicians should be cautioned that a diagnosis does not carry any necessary implications regarding the causes of the individual’s mental disorder or impairments.  The clinical diagnosis of a DSM mental disorder is not sufficient to establish the existence for legal purposes of a “mental disorder”.  In determining whether an individual meets a particular legal standard (e.g., a particular disability), additional information is usually required beyond the DSM diagnosis.

The DSM provides categorical classifications that divide mental disorders into types based on criteria sets with defining features.  It is a classification of mental disorders that was developed for use in clinical, educational and research settings.  The DSM is meant to serve as a guideline to be informed by clinical judgment and is not meant to be used in a cookbook fashion.  It is essential that the DSM not be applied by untrained individuals, since clinical training, judgment and experience are essential to proper diagnosis

The Development of the DSM-5

A Task Force and Work Groups made up of more than 160 world-renowned clinicians and researchers proposed the draft criteria for the DSM-5.  Those clinicians and researchers, all volunteers, consisted of experts in neuroscience, biology, genetics, statistics, epidemiology, social and behavioral sciences, nosology, and public health.

Applying Knowledge of the DSM-5 to Claims in Personal Injury Cases

Personal injury defense lawyers should be prepared to cross-examine forensic psychologists who testify on behalf of plaintiffs who allegedly suffer from any kind of mental disorder.  There are a number of reasons that extensive preparation is required when defending against personal injury claims for mental disorders, particularly claims for PTSD.  These include the nomenclature involved in the diagnosis, the relative complexity and universal acceptance of the DSM-5 as the authoritative source for the PTSD diagnostic criteria, and the dangers of malingering when financial remuneration is at issue.  Other reasons include what is typically a lack of the critical additional information regarding a plaintiff’s background, inadequate testing, improper reading of (or absence of) validity scales in a given standardized test, or an absence of reliance on any other data or criteria by the forensic psychologist testifying on behalf of the plaintiff.

If defense counsel is thoroughly familiar with the DSM-5, the DSM-5 criteria and commentary on the particular mental disorder at issue, and is prepared for an effective cross-examination of the plaintiff’s treating or forensic psychologist, the damages in cases involving personal injury claims for mental disorders can be significantly reduced or eliminated.