Deirdre Smith (Maine) has a recent article that just came out in the Temple Law Review, "Diagnosing Liability: The Legal History of Posttraumatic Stress Disorder." While the whole article is fascinating the implications of PTSD on tort law, starting on page 41 was the most interesting to me. Smith’s following points particularly jumped out:
1. A psychiatrist observed that, by virtue of the A Criterion, “an external injury is by definition the explicit cause of this disorder,” which then operates to support “legal arguments regarding single and proximate causation of harm.”
2. The American Psychiatric Association’s recognition of PTSD led to many courts abolishing the prior requirement of “physical manifestation” as a prerequisite for claim of psychic injuries. Instead, injury lawsuits wherein PTSD is the primary claim of injury now, typically, only require expert medical or scientific proof to support the claim.
3. Malingering (symptom exaggeration), a favorite tool of defense attorneys to limit a plaintiff’s damages, has, because of PTSD’s ties to litigation, become a part of the DSM-IV diagnostic language, specifically stating “Malingering should be ruled out in those situations in which financial remuneration, benefit eligibility, and forensic determinations play a role.”
This last bit about malingering should leave plaintiff’s attorneys handling potential PTSD claims wary of the extent to which they get involved with a given therapist or psychiatric professional treating the client. Because it is clear that once the psych doctor is made aware that the mental injury may relate to a lawsuit, they will be more likely to add language to the treatment notes speculating about malingering. This, of course, is a case killer.
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