Compensation neurosis rides again: a practitioner's guide to defending PTSD claims.

• Author: Brown, James T.
• Position: Post traumatic stress disorder

POST Traumatic Stress Disorder, known as PTSD, is demonstrating an ability to influence the current tort system, both economically and doctrinally. The diagnosis is being used to erode traditional legal restrictions and barriers to recovery.

Historically, the law and courts have resisted claims for psychological injuries, fearing a flood of litigation involving tenuous claims for mental disorders. As early as 1896, the New York Court of Appeals postulated..

If the right of recovery [for mental distress negligence cases without physical impact or injury] should be once established, it would naturally result in a flood of litigation in cases where the injury complained of may be easily feigned without detection, and the damages must rest on mere conjecture or speculation. The difficulty which often exists in cases of alleged physical injury, in determining whether they exist, and if so, were they caused by the negligent act of the defendant, would not only be greatly increased, but a wide field would be opened for fictitious, speculative claims. To establish such a doctrine would be contrary to principles of public policy.(1)

A bit before that, an English court voiced similar policy concerns:

Not only in such a case as at present, but in every case where an accident caused by negligence had given a person a serious nervous shock, there might be a claim for damages on account of mental injury. The difficulty which now often exists in cases of alleged physical injuries in determining whether they were caused by the negligent act would be greatly increased, and a wide field opened for imaginary claims.(2)

Beginning in the mid-20th century, a number of American states began removing the physical impact or injury limitation in actions for psychological damages. The law in a near majority of states now has moved toward recognizing claims without insisting either that victims feared for their own safety or even suffered physical injury.(3)

The ubiquitous post traumatic stress disorder claim is now well known to defense counsel. In most instances, PTSD exists in conjunction with a physical injury, but in cases in which the alleged emotional injury is not accompanied by a physical injury, defense counsel must determine if the claim is even cognizable in the applicable jurisdiction.

While a complete examination of the current status of the law is beyond the scope of this article, there are generally four tests adopted by various jurisdictions regarding the recovery of emotional injuries and the requirement, if any, of a physical component:

1. Physical injury or impact rule, which permits "recovery for emotional injury provided there is some physical contact";

2. Zone of danger rule, which provides recovery for emotional injuries absent any physical contact if the emotional injuries 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";

3. Bystander proximity rule, which permits "recovery, even if one is not in the zone of danger, providing that the complainant: (1) is physically near the scene of the accident; (2) personally observes the accident; and (3) is closely related to the victim"; and

4. Full recovery rule, which allows recovery in a negligence action for infliction of serious emotional distress where a "reasonable person, normally constituted, would not be able to cope adequately with the mental distress occasioned by the circumstances."(4)

   The U.S. Supreme Court adopted the zone of danger test for Federal Employers' Liability Act cases in Consolidated Rail Corp. v. Gottshall,(5) which contains an excellent discussion of the various tests and the jurisdictions that follow them.

   Considering the potential abuse of PTSD claims as feared by the courts, a current commentator notes: "If mental disorders were listed on the New York [Stock] Exchange, PTSD would be a growth stock worth watching."(6) Dr. Gerald M. Rosen notes that traumatic events can be staged, people can pretend they were at events when they were not, and symptoms of PTSD can be easily coached and simulated. Unfortunately, when individuals and their counsel take advantage of these ploys, they trivialize the meaning of PTSD and diminish concern for the real-life survivors of significant trauma.(7)

   HISTORY OF PTSD: THE NAME HAS

   CHANGED, BUT THE DISORDER

   IS THE SAME

   The current prevalence of PTSD claims should not be taken as an indication that it is a newly discovered disorder. Trauma-induced stress disorders have been studied since the Civil War, albeit under different names. During the Civil War, stress disorders suffered by combatants were called "irritable heart" or "disorderly action of the heart." During World War I, it was diagnosed as "shell shock," and in World War II, it was known as "war neurosis" or "combat fatigue."(8) The modem label, PTSD, is a by-product of the Vietnam War.

   Although die disorder has a long and interesting history, every definition of it has had one fundamental characteristic: "hysterical" physical symptoms such as anxiety that can be expressed through various physiological complaints without actual physical injury.(9)

   Names used to describe PTSD arising from non-combat situations have included "aftermath neurosis," "attitudinal pathosis," "compensation hysteria," "compensationitis," "greenback neurosis," "justice neurosis," "litigation neurosis," "Mediterranean back," "secondary gain neurosis" and "compensation neurosis."(10)

   Dr. Amihay Levy comments that post traumatic syndromes are making a comeback after it seemed they had been laid to rest by the famous Miller study of 1961, which concluded that patients presenting psychological symptoms following accidents or traumas were suspicious and should have their legal processes concluded as quickly as possible, as they would then "miraculously convalesce."(11)

   The Miller study was produced by Dr. Henry Miller, a distinguished neurologist who published a two-part paper in the British Medical Journal based on his personal experience and examination of 4,000 patients for medical-legal assessment.(12) His findings powerfully influenced the medical community and English courts for some time. Experts describe the Miller study as the "first and most influential study of accident neurosis" that courts considered authoritative.(13)

   Miller's study of patients claiming psychological injuries revealed frequent clinical findings of anxiety-depressive or hysterical symptoms and, less frequently, phobic disorders. These symptoms also are frequently encountered today by American lawyers defending against a PTSD claim. Miller also found that "gross dramatization of symptoms was an important feature, as was self-pity." He viewed "compensation neurosis" not as a result of the accident, but as a concomitant of compensation, a sort of manifestation of hope for financial gain. He believed the condition was not incarnate where the hope of financial gain did not exist, or where the hope of such gain had been satisfied or dissipated. Miller noted, "Compensating a man financially because he is stated to be deceiving himself, as well as trying to deceive others, is a strange equity and stranger logic."

   In his critical review of Miller's study, Dr. Levy observes that Miller argues from a purely medical standpoint that it is better to regard compensation neurosis as a "noncompensable disability" and to build a system for rehabilitation through work rather than financial compensation. On practical grounds, Levy notes early settlement is crucial: "Compensated or not, he [Miller] implies, let them have their legal processes swiftly terminated, and they will miraculously improve. Miller's work, it seemed, was the coup de grace for this ill-defined diagnosis."(14) Levy concludes that Miller's studies have been challenged and are, at least in part, emotionally laden, and he cautions that health care professionals should become sensitized to the re-entry of, compensation neurosis into the psychiatric realm.

   More recently in the United States, Dr. Rosen notes that while PTSD can be easily coached or simulated, no one questions that PTSD can be a valid diagnosis in many instances.(15) Indeed, Vietnam veterans previously stigmatized by a demoralizing war were transformed from social outcasts into victims as their plight was viewed from the PTSD perspective.(16)

   Cynicism aside, given the extreme subjectivity of the claim and its symptoms, spurious PTSD claims often must be sorted out by the legal, as opposed to the medical, profession - a job left to defense counsel. This postulation seems to make sense considering the ethical duties and role of the treating psychiatrist, who is in many ways bound to accept the patient's version of "reality" (including causation, symptoms, etc.) in order to render proper treatment. It makes sense that a treating physician's "bias toward the patient is a proper treatment stance that forces a therapeutic alliance. The treating psychiatrist must be an ally of the patient."(17)

   Indeed, numerous studies indicate that litigation itself can cause anxiety and depression, and that these symptoms usually resolve on settlement or verdict, no matter whether favorable or not to the plaintiff.(18)

   DEFENDING AGAINST PTSD CLAIMS:

   YOU SNOOZE, YOU LOSE

   The most important factor in defending against a PTSD claim is to start the defense early and immediately. If it isn't stated directly in plaintiff's complaint, an intent to assert a PTSD claim can sometimes be gleaned from early review of medical records, discovery responses and deposition answers. As soon as a potential PTSD claim is discerned, defense counsel should include an aggressive attack on the claim in their over-all case strategy. Early assessment of symptoms and a vigorous investigation into the actual proximate cause of the symptoms are crucial.

   The attack begins with the retention of a qualified expert. A psychiatrist...