The recent surge of plaintiffs claiming psychological injury in personal injury litigation has resulted in an astonishing number of physically and mentally healthy individuals being forever exempt of responsibility from earning a living on psychiatric grounds. Today, the medicolegal system not only drains the resources necessary for the care of those genuinely psychologically disabled, but may encourage or even create disability where it would not have otherwise occurred.

Psychiatric syndromes such as post-traumatic stress disorder and post-traumatic depression have been increasingly claimed by plaintiffs in order to "add on" damages to a case involving physical injuries which are insufficient to justify a claim close to the policy limits of a defendant. There has been a trend to couple a claim of post-traumatic stress disorder with a claim of physical injury to target a larger settlement or verdict.

In order for a plaintiff to sustain such claims, a defendant's conduct must give rise to a defined clinical condition with well established scientifically recognized features of psychological injury. Compensable distress, as opposed to the stressors of everyday existence, manifests a specific set of psychological symptoms which fall into a recognized, definable psychiatric pattern.

Post-traumatic stress disorder and post-traumatic depression, largely subjective, are all too easily asserted. Defendants should require such claims to be documented by presentation of a definitive psychological syndrome, a recognized pattern of signs and symptoms exceeding the threshold of the emotional discomfort experienced by the general population, and which are separate, apart and distinguishable from a plaintiff's possible, lifelong, pre-existing problems.

Of the psychiatric disorders arising after trauma, post-traumatic stress disorder is the most troubling in insurance defense circles. A claim for post-traumatic stress disorder is troubling for several reasons, including that the diagnosis conveys that the trauma inducing event was severe and that the plaintiff has experienced a serious psychological problem proximately related in time to the alleged injury causing event.

Post-traumatic stress disorder is a syndrome consisting of several groups of symptoms. At its core, post-traumatic stress disorder involves a preoccupation with and reliving of the triggering traumatic event. According to the American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders [4th ed. rev.] [DSM IV], it is a fundamental axiom that persons who suffer from post-traumatic stress disorder persistently reexperience the traumatic event and often experience hypervigilence; anxiety; insomnia and recurrent nightmares; intrusive morbid thoughts; hyperarousal; difficulty concentrating; depression; psychic numbing; poorly controlled anger; and avoidance of actual or symbolic reminders of the traumatic events which might intensify symptoms. In New York, these rudimentary criteria were expressly recognized and adopted by the judiciary in Cooper v. State of New York, 150 Misc.2d 635 (Ct. Cl. 1991).

Posttraumatic stress disorder [is] ... a syndrome which consists of an identifiable pattern of responses which can follow an intensely stressful event. Victims will typically reexperience the traumatic event in a number of ways (dreams, flashbacks, hallucinations) and also experience intense distress at exposure to events that resemble or even symbolize the traumatic event. Eventually the victim will experience "persistent symptoms of increased arousal," such as sleep difficulty, outbursts of anger and /or difficulty concentrating. (American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders [3d ed. rev. 1987] [DSM III-R], p. 250) (emphasis added, citations omitted).

Cooper v. State of New York, 150 Misc.2d 635 (Court of Claims of New York 1991).

Apart from the above, there are several other requirements which must be met in order to satisfy a claim for post-traumatic stress disorder. These requirements can be found in DSM-IV. Both the plaintiff and defense bar should be aware of these criteria before attempting to establish or defend against a claim of post-traumatic stress disorder.

The principal cause of post-traumatic depression is loss. A number of people who have suffered even a trifling physical injury, or who make apparently good recovery from a more serious one, continue to complain unhappily of persistent disability. Post-traumatic depression is not a social term for vague dissatisfaction; rather, it refers to a group of definite psychiatric illnesses with well defined symptoms and signs. Post-traumatic depression is a disabling psychiatric disorder, replete with intractable melancholia, crying spells, suicidal thoughts, and disturbances in sleep, appetite, weight, and sexual function. These symptoms begin to appear weeks to months after the injury, often after the plaintiff has apparently made a full physical recovery.

It is extremely important, in the defense of claims of post-traumatic stress disorder and post-traumatic depression, to examine the pre-incident psychiatric history of the plaintiff. Damages for psychic injury may be significantly mitigated when it can be shown that the symptoms alleged to be caused by the defendant actually pre-existed the incident in question. Where a plaintiff psychologically collapses following physical injury but there has been good objective physical recovery, it is a good possibility that there were severe psychological problems prior to injury. The defense must demonstrate that the claimant was not merely predisposed or vulnerable prior to injury, but psychologically ill long before the allegedly precipitant event.

It is imperative for defense counsel to obtain the past medical records of the plaintiff in order to successfully control damages. Also potentially helpful to the defense of such claims include school, employment, pharmacy, and military records. Additionally, it is important to determine whether a plaintiff has experienced any other stressors since the alleged injury causing event which could account in whole or part for the reported symptoms. Invariably, there are other mitigating circumstances, another side of the story, which would limit a defendant's exposure to damages.

It is extremely important, in the defense of PTSD claims, to examine the pre-incident psychiatric history of the plaintiff. Damages for psychic injury may be significantly mitigated when it can be shown that the symptoms alleged to be caused by the defendant actually pre-existed the incident in question.

Robert I. Simon, M.D., The Defense of Post Traumatic Stress Disorder (PTSD) Claims, The Personal Injury Law Defense Bulletin (Med/Psych Corporation).

There also may exist a number of other valid explanations for plaintiff's alleged symptoms. For example, malingering is a deliberate fabrication or simulation of symptoms out of a conscious wish to deceive. Its essential feature is the intentional production of false or grossly exaggerated symptoms. It should be distinguished from functional physical complaints characteristic of the post-traumatic psychiatric disabilities, which, though having little or no organic basis, are very real to the person suffering them. Malingering can be an enticing occupation for accident victims who aspire to a higher standard of living. Fortunately, there are many clues for segregating would be deceivers from those suffering genuine post-traumatic stress disorders.

The most obvious cause for suspicion is the suffer's overriding preoccupation with cash rather than cure. The malingerer refuses treatment, especially if inconvenient, or agrees to it but then misses appointments. The malingerer, despite complaints of misery, manifests none of the classical signs or symptoms of depressive illness. There is a marked discrepancy between the claimed stress and the objective findings. The malingerer's physical complaints come and go, varying with the nature of his activities and the strength of the legal issues. The malingerer's symptoms are also often vague and difficult to pin down. The malingerer usually has a long history of drifting about accompanied by spotty employment.

Conversely, people developing true post-traumatic psychiatric maladies are usually uncommonly hard working and conscientious. Malingerers tend to refuse employment or partial disability adjudication. And interestingly, whatever claims of memory deficits they may have, malingerers will usually be able to describe the accident or other negligent acts of the defendant in full detail.

Damages may also be mitigated where it can be shown that a plaintiff "suffers" from "primary" or "secondary gain" rather than actual psychic injury. Primary gain is the compensation for a psychological problem by means of a physical disability. It is the unconscious creation of a substantial disability out of even minor physical injury.

Secondary gain is the care and solitude, freedom from responsibility, and/or financial compensation often obtained as a consequence of disability. It perpetuates existing illness. Secondary differs from primary gain in that it is more a consequence than a cause of disability. It serves as a "fringe benefit" to the disabled, which can make the prospect of continued illness quite attractive. Both primary and secondary gain create substantial unconscious obstacles to full recovery and resolution of symptoms despite a sincere desire to get better. Whether gain be primary or secondary, it not only costs the patient but the defendant as well.