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Medical Negligence Attorneys
Philadelphia, Pennsylvania
MEDICAL EXPERTS - WHEN & HOW THEY HELP YOU WIN
By, Norman Perlberger, Esquire1
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VI. Proving Psychological Damages
Until recent years, personal injury claims generally alleged orthopedic injuries from automobile, industrial or slip and fall accidents. A small portion alleged neurological injuries, but those involving the brain were limited to closed head injuries and brain trauma: mental trauma, i.e., psychological injury, was rarely a basis for litigated claims.
However, the recent change in our cultural and social attitudes has resulted in an epidemic of psychological injury claims not only in connection with personal injury suits but also as a by-product of “repressed memory/false memory” hysteria as well as in the field of employment law where sexual harassment and discrimination claims alleging PTSD are growing with leaps and bounds. The dramatic size of several recent psychological injury/ sexual harassment awards (e.g. $7 million punitive damages against the San Francisco law firm Baker and Mckenzie) has not escaped the attention of trial attorneys. As a result, the plaintiff’s bar is developing increased psychological sophistication, both in selecting cases and litigating them. Consequently, in both Personal Injury and Employment Law, Psychological Injuries now comprise an important component of claims. This change in the litigation climate makes it essential for both insurance and employment law defense counsel, as well as claims adjusters, to become knowledgeable about the medical-legal concept of mental trauma.
Among the various psychiatric diagnoses found in psychological injury claims, the major stress diagnosis, PTSD, is one of the most highly compensated. Consequently, in recent years natural disasters (such as earthquakes, floods or fires) or man-made disasters (such as airplane crashes, industrial accidents, assault, rape) as well as workplace allegations of discrimination, abuse or sexual harassment, have generated a rising tide of psychological damage claims with allegations of PTSD. As a result, in order to properly manage these claims, both defense counsel and insurance claims adjusters require a sophisticated and detailed understanding of the psychiatric diagnosis of PTSD: what it is, and -- possibly more importantly -- what it is not.
The diagnostic criteria for PTSD are complex encompassing event, re-experiencing and numbing phenomena. Although some claimants unquestionably meet these criteria, other individuals may not. Knowing how to distinguish between the two groups will make it easier for a defense team to defeat inappropriate claims as well as rapidly settle and avoid costly litigation of claims that are clearly legitimate.
Since many members of the plaintiff’s bar remain unsophisticated in their understanding of how to assess and litigate psychological injuries (as opposed to the more concrete closed head injuries), the defense team with a good understanding of the nature of this type of injury will have a decided advantage.
