Distorting Posttraumatic Stress Disorder for Court

Harvard Review of Psychiatry ISSN: 1067-3229 (Print) 1465-7309 (Online) Journal homepage: http://www.tandfonline.com/loi/ihrp20 Distorting Posttraumatic Stress Disorder for Court Ronald Schouten To cite this article: Ronald Schouten (1994) Distorting Posttraumatic Stress Disorder for Court, Harvard Review of Psychiatry, 2:3, 171-173 To link to this article: http://dx.doi.org/10.3109/10673229409017134 Published online: 03 Jul 2009. Submit your article to this journal Article views: 4 View related articles Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=ihrp20 Download by: [FU Berlin] Date: 14 December 2016, At: 05:52 Distorting Posttraumatic Stress Disorder for Court zyxwv zyxwv Ronald Schouten, JD, MD It is no secret that the true meaning of medical terms can be distorted when they are put to use in the legal setting. Informed attorneys eagerly adopt clinically useful ideas for use in the legal arena as soon as they appear in the medical literature. The result is often a twisting of the basic concept that renders it of maximum benefit to the litigators, but barely recognizable to clinicians. Posttraumatic stress disorder (PTSD) poses particular problems in this regard. No other diagnosis has been so warmly welcomed by plaintiffs’ attorneys or by clinicians who would venture into the courtroom on behalf of their patients. As a result, the concept and definition of PTSD have been distorted to the detriment of those who suffer from it, whether or not they are seeking redress in the courts. Since its inclusion in DSM-111, PTSD has attracted a wide following. The initial criteria required that the traumatic event be a “. . . recognizable stressor that would evoke significant symptoms of distress in almost everyone.”l Discussion in the text of DSM-I11 included the following: concomitant physical component to the trauma which may even involve direct damage to the central nervous system (e.g., malnutrition, head trauma). Thus, the criteria and the discussion call for a traumatic episode more severe than the physical bumps and emotional bruises encountered in everyday life. The definition of the precipitating traumatic episode was tightened in DSM-111-R,’ requiring: zyxwvutsrqp . . . an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone (e.g., serious threat to one’s life or physical integrity; serious threat or harm to one’s children, spouse, or other close relatives and friends; sudden destruction of one’s home or community; or seeing another person who has recently been, or is being, seriously injured or killed, as the result of an accident or physical violence). This definition of the stressor attempts to objectify the requirement to a greater extent than does the DSM-I11 definition and continues to require a significant level of trauma. The DSM-IV3criteria are even more restrictive, requiring that: zyxwvut zyxwvuts zyxwvuts zyxwvutsrq zyxwvutsrqp zyxwvutsrq The stressor producing this syndrome would evoke significant symptoms of distress in most people, and is generally outside the range of such common experiences as simple bereavement, chronic illness, business losses, or marital conflict. . . . Stressors producing this disorder include natural disasters (floods, earthquakes), accidental man-made disasters (car accidents with serious physical injury, airplane crashes, large fires), or deliberate man-made disasters (bombing, torture, death camps). Some stressors frequently produce the disorder (e.g., torture) and others produce it only occasionally (e.g., car accidents). Frequently there is a Reprint requests: Ronald Schouten, JD, MD, Law and Psychiatry Service, Massachusetts General Hospital, Fruit St., Boston, MA 021 14. HARVARD REVPSYCHIATRY 1994;2:171-3. Copyright 0 1994 by Harvard Medical School. 1067-3229/94/$3.00 + 0 3911157691 (1) The person has experienced, witnessed or been confronted with an event(s) that involved actual or threatened death or injury or a threat to the physical integrity of oneself or others. ( 2 ) The person’s response involved intense fear, helplessness or horror. In essence, the new definition of stressor codifies the explanation or the severity of the stressor contained in the text of DSM-111-R. The Committee seems to be hammering home the intent that PTSD be diagnosed only in connection with a severe stressor. That intent has been present since DSM-I11 but widely ignored by many. PTSD has had an extended run as “flavor of the month” for clinicians and attorneys. The attraction of PTSD to attorneys is twofold. First, it is a disorder that is causally linked to a certain event. Establishment of causation is an essential element of a personal injury suit. Second, the symptoms are well defined and common but not unique to 171 zyxwvutsr zyxwvu zyxwvutsrqp zyxwv zyxwvutsrq Harvard Rev Psychiatry September/October 1994 172 Schouten PTSD. That is, they are presented in a checklist fashion, found in a wide range of conditions, subjective, and readily attributed to a specific event regardless of the true relationship to that event. The symptoms of PTSD are easily feigned or at least subject to exaggeration. The only barrier to indiscriminate application of PTSD as a basis for emotional injury claims is the threshold stressor criterion. As the following two examples demonstrate, mental health professionals who are willing to distort diagnostic criteria have made this a barrier of little consequence. CASE 1 Mr. A. is a 57-year-old man who worked for XYZ, Inc., for 18 years. XYZ is a community-based business with very strong ties to the neighborhood. Mr. A. has a high school education and started with the company as a clerk. Although his technical skills are limited, his knowledge of the community made him a valuable employee, and he was promoted to assistant manager after 10 years. Three years ago, Mr. A. was promoted to manager of one of X m ’ s branch offices, in spite of limited experience and ability with personnel management. Shortly thereafter, XYZ was purchased by a larger company. Mr. A. kept his job, but the new owners instituted a policy of regular, written performance reviews, which XYZ had previously disregarded. Mr. A.’s first performance review came at the end of a year in which he had had some difficulties with his assistant manager, a young woman who hoped to advance in the company and pressured Mr. A. to accept her new ideas. In the performance review, Mr. A.’s difficulties with personnel management were noted as an area needing improvement, but he received a salary increase. Mr. A. was offended by receiving a less-than-perfect evaluation, was convinced that the company was pushing him out of the firm in favor of a younger employee, and left the job claiming that he had been presumptively discharged. He filed an age discrimination claim against the company and alleged intentional and negligent infiiction of emotional distress. Mr. A. began to visit a clinician at his attorney’s suggestion shortly after he left his job. In support of his emotional distress claim, Mr. A. offered the expert testimony of his treating clinician that he was suffering from PTSD as a result of an invalid evaluation and age discrimination. The case was ultimately settled out of court for a small amount. CASE 2 Ms. B. is a 26-year-old woman who sued her employer for sexual harassment, tortious interference with contract (maliciously interfering with her ability to get a job), and infliction of emotional distress (both negligent and intentional). She alleged that the director of her division tried to kiss her at a company party, attempted to pursue her romantically, and fired her without cause when she rejected his advances. Ms. B. had a highly successful academic career and claimed to have had no failures at any point in her professional life. She denied any history of sexual or other abuse or neglect. Ms. B. sought out a clinician who agreed to treat her and testify as an expert witness on her behalf. The clinician diagnosed Ms. B. as suffering from PTSD, stating that the accumulation of events at work-and not any specific event-had caused her symptoms. The clinician noted prominent symptoms of anxiety and depression and arranged for her to receive buspirone for anxiety. She was also seen in weekly psychotherapy. In court the clinician testified that Ms. B.’s recent divorce, which followed her 18-month affair with another supervisor (whom she later married), and the divorce of her parents in no way contributed to her stress. The jury found no credible evidence that events occurred as Ms. B. had claimed and reached a verdict for the defendants on all charges. Indeed, the judge specifically found the plaintiff to be delusional at the end of the trial. DISCUSSION The above cases illustrate several points. First, neither of these plaintiffs met the threshold criterion for PTSD under DSM-III-R. A poor performance review, or even a job termination, does not meet the criterion for the stressor. A single unwanted kiss, if it occurred, is unlikely to produce the necessary level of stress, absent a history of sexual trauma prior to the alleged incident. Second, the events alleged by these plaintiffs to have occurred were clearly distressing and could lead to symptoms of anxiety, depression, or both, as well as recurrent intrusive thoughts, avoidance of stimuli associated with the events, and even autonomic arousal. Such symptoms can form the basis for an emotional distress claim. A claim for emotional injury could be made without invoking PTSD and would have been more credible in both cases. Third, the clinicians were willing to mix the roles of treater and expert witness and to distort the criteria to fit the patients’ expressed legal needs. Fourth, while citing DSM-III-R as their source of diagnostic criteria, both clinicians misapplied the diagnostic criteria, instead choosing a definition that has grown in popularity: PTSD is any set of psychological symptoms occurring after any upsetting events, regardless of severity. The actions of the clinicians/experts in these cases is common and represents conscious and willful distortion of an important diagnosis. Certainly, DSM criteria are not written in stone and are open to dissent and modification. Yet these clinicians tied their diagnoses directly to DSMIII-R. Is such loose application of clinical criteria the product of a desire to help the specific patient or even all trauma zyxwvutsrqpo zyxwvutsrqpon zyxwvutsrqponm Harvard Rev Psychiatry Schouten 173 Volume 2,Number 3 victims? Is it part of an effort to sensitize clinicians to the plight of those who have suffered significant trauma? The inaccurate application of diagnostic criteria may be the result of poor training. On the other hand, it may be the product of simple greed by those who strive to give attorneys what they want to hear. The clinician who is willing and able to find a diagnosis to fit any injured patient or criminal defendant will find a demand for such services among some members of the legal community. At least one court has confronted this specific problem. In a case involving personal injury as a result of a contaminated water supply, the plaintiffs offered testimony that they suffered PTSD as a result of drinking contaminated water over an extended period of time. The court looked to the DSM-I11 and rejected this claim, stating: cations of such exclusion are open to speculation, but clinicians are more likely to interpret the criteria broadly. The medical-legal implications are a bit more ominous. Individuals with a previously valid diagnosis of PTSD may have trouble obtaining legal recourse because of the difficulty encountered in demonstrating “intense fear, helplessness or horror” in response to the traumatic event. Ironically, those who sought to broaden the concept of PTSD in the clinic and the courts may have provoked a backlash that excludes those with previously valid claims. Clinicians tend to fault the legal profession for the misuse and distortion of clinical concepts. The fault lies not with the lawyers but with those clinicians who would take useful ideas and pervert them to other ends. zyxwvutsrqpo zyxwvut zyxwvu Whereas consumption of contaminated water may be a n unnerving occurrence, it does not rise to the level of the type of psychologically traumatic event that is a universal stressor. . . . The court must demand that a plaintiff produce sufficient authority that the particular event constitutes a “recognized stressor” or a psychologically traumatic event which would produce significant symptoms of distress in almost everyone experiencing such an event.4 The adoption of a more restrictive stressor criterion for PTSD in DSM-IV appears to be a response to the overuse and distortion of PTSD in litigation. The end result may be that individuals who have suffered significant trauma will have a difficult time meeting the new criteria even though they met the criteria under DSM-111-R. The clinical impli- REFERENCES 1. American Psychiatric Association. Diagnostic and statistical manual of mental disorders, 3rd ed. Washington, DC: American Psychiatric Press, 1980. 2. American Psychiatric Association. Diagnostic and statistical manual of mental disorders, 3rd ed, revised. Washington, DC: American Psychiatric Press, 1987. 3. American Psychiatric Association. Diagnostic and statistical manual of mental disorders, 4th ed. Washington, DC: American Psychiatric Press, 1994. 4. Sterling u Velsicol Chemical Corporation, 855 F2d 1188,1210 (6th Cir 1988).