Plaintiff's Physical Injuries May Have Psychogenic Origins

By Kenneth Mauro & Caryn L. Lilling

In recent years, there has been a surge of personal injury plaintiffs who claim to suffer psychological injuries in connection with physical harm. Psychiatric syndromes such as post-traumatic stress disorder and post-traumatic depression have been increasingly asserted 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. The defense bar and the insurance industry have begun to appreciate the need to mount an aggressive defense of such claims.

Less attention, however, has been given to those plaintiffs who exhibit physical symptoms which suggest a medical disorder but for which there is no diagnosable medical condition to fully account for the physical symptoms. Such medically unexplained physical symptoms may be accounted for by one of the Somatoform Disorders specifically recognized by the American Psychiatric Association.¹

According to the DSM IV, the common feature of the Somatoform Disorders is the presence of physical symptoms that suggest a medical disorder but are not fully explained by either a general medical condition, by the direct effects of a substance, or by another mental disorder.² Although these patients are convinced their suffering comes from some type of presumably undetected and untreated bodily ailment, "the relationship of their underlying psychiatric disorder to their perceived injuries, however, requires careful examination to determine the extent to which physical suffering can be explained by a preexisting psychiatric condition."³

The two dominant characteristics of these disorders are "somatic complaints that suggest major medical maladies yet have no associated serious, demonstrable, peripheral organ disorder," and "psychological factors and conflicts that seem important in initiating, exacerbating, and maintaining the disturbance."⁴ These disorders are psychiatric conditions that result in physical disorders for which there are not demonstrable findings. Somatoform Disorders must be distinguished from Factitious Disorders or Malingering, in that the physical symptoms are not feigned or intentionally produced in order to assume the sick role. Unlike in cases of malingering, the claimant does not control the production of symptoms.

Somatoform Disorders exemplify the impact of psychological needs that are expressed in physical symptoms. Stated another way, physical disorders are often psychogenic in origin. For example, physical injuries, such as hypertension, coronary heart disease, backache, and certain chronic skin conditions are disorders in which the psychological causative factors are as important as the physical ones.⁵

Indeed, it has been noted that in order to make a diagnosis that a physical disorder is psychogenic in origin the following factors should be considered:

When Is A Plaintiff's Psychiatric History Admissible?

Generally speaking, all relevant evidence is admissible unless it violates some exclusionary rule, or its prejudicial impact outweighs its probative value, or it would tend to mislead the jury. With regard to evidence pertaining to a plaintiff's pre-existing psychological condition, a plaintiff, in general, cannot be compelled to disclose psychological, psychiatric or counseling records where there is no claim for emotional or psychological injury, or aggravation of a preexisting emotional or mental condition.

Recently, however, one New York State court rejected plaintiffs' attempts to avoid disclosure of their psychiatric history or records where their claimed injuries have a "marked psychological or functional overlay."⁷ In Carr v. Broadway Associates, the plaintiffs complained of personal injury from exposure to toxic substances in the workplace. When the defendant demanded release of psychological records, the plaintiffs withdrew their claims for emotional injuries, including depression and anxiety. Holding that defendant was entitled to discovery of psychological records dating back to the onset of plaintiffs' claimed injuries, the Appellate Division in New York stated:

Normally, a plaintiff cannot be compelled to disclose psychological, psychiatric or counseling records where there is no claim for emotional or psychological injury (citation omitted), or aggravation of a preexisting emotional or mental condition (citation omitted), although symptoms such as "insomnia, irritability, fatigue and weight loss" may bear "a marked psychological or functional overlay" (citation omitted). Despite respondents' efforts to avoid affirmatively placing their mental conditions in issue, they nonetheless continue to allege ... some or all of these symptoms as part of the injuries for which compensatory damages are sought.⁸

In general, however, courts have noted and recognized the significance of a plaintiff's pre-injury psychological state and the recognition of a plaintiff's pre-existing psychiatric condition as contributing to injuries claimed. For example, in Korek v. United States, the Second Circuit considered a "possible psychogenic basis of plaintiff's problem."⁹ Plaintiff, a male patient, claimed that he was impotent because of a negligently performed urological resection operation. Although the defendant failed to present significant evidence that plaintiff's pre-existing psychological problems were a cause of his impotence, the Second Circuit noted that it would not "preclude the government from attempting to show on retrial that plaintiff's pre-existing medical and psychological problems caused impotence before the surgical operations."¹⁰

Moreover, in Ruperd v. Ryan, plaintiff sued her plastic surgeon for medical malpractice based upon injuries allegedly sustained as a result of the surgical removal of warts on her right foot in January of 1990. Two weeks after foot surgery, plaintiff noticed that her foot was swollen and that it "hurt a lot." She returned to the defendant, Dr. Ryan, who told her to soak her foot in warm soapy water, elevate her foot, and to schedule further follow-up visits. By March of 1990, plaintiff was concerned because the pain had not subsided since the surgery.

By the end of March 1990, Dr. Ryan diagnosed plaintiff with a condition known as reflex sympathetic dystrophy (RSD) -- her nerves were "misfiring" and sending signals to her nervous system that she was in pain. At trial, plaintiff described that at times she experience such horrendous pain that she would "see stars" and black out. On March 29, 1990, an ankle block was performed to relieve the pain. Upon returning home after the ankle block, she stated that her foot "really started hurting" and began swelling. According to plaintiff, she was terrified because at that point her entire foot hurt, whereas before her pain was limited to the area where her warts had been.

In April of 1990, plaintiff was referred to a Dr. Haq. Dr. Haq administered epidural blocks to plaintiff's right foot. Plaintiff testified that at first her pain disappeared after the epidural blocks, but that on one occasion, she began getting "electrical charges over the left knee cap" and her "left leg went dead." She said that Dr. Haq tried to perform the block again, but that she then experienced pain in her right leg. Plaintiff was admitted to the hospital at that time. While in the hospital, plaintiff was referred to a Dr. Hogan for further treatment. On April 25, 1990, Dr. Hogan administered a block to plaintiff's ankle which, according to plaintiff, created a horrendous burning pain. Thereafter, Dr. Hogan referred plaintiff to a pain center at the University of Chicago Pain Clinic.

In May of 1990, plaintiff visited the pain clinic and received an epidural block on her right foot. According to plaintiff, the block relieved the pain in her foot, but a few hours later the pain returned. After several blocks, plaintiff saw a Dr. Galo Tan for a further opinion. Pursuant to Dr. Tan's opinion, plaintiff continued receiving the epidural blocks at the Pain Clinic every two weeks.

At the end of July 1990, plaintiff received a different type of block that was intended to provide her with longer relief. Plaintiff stated that the block caused horrendous pain, and that a few days after the block she went back to the hospital, at which time another epidural block was performed. By September of 1990, plaintiff was readmitted to the hospital to be taken off the narcotic drugs that had been repeatedly prescribed to her for her pain. After her stay at the hospital, plaintiff continued to receive blocks.

After several referrals to other physicians, plaintiff discussed surgery options with a Dr. Christopher Zarins in March of 1991. A surgical sympathectomy was performed which relieved her pain for approximately three months. According to plaintiff, when the pain returned, it started traveling up her leg. In May of 1991, plaintiff described the pain in her leg as so severe that she received a five-day continuous epidural block and was given morphine.

In August of 1991, plaintiff saw a gynecologist, a Dr. Hubbell, for groin pain. Dr. Hubbell performed a laparoscopy, but plaintiff testified that the surgery did not relieve her pain. By April of 1992, although several medications were attempted, none of the medications were successful. At that time, plaintiff was referred to an anesthesiologist and a psychologist.

By September of 1993, a morphine pump was implanted in plaintiff's body so that she could receive doses of the drug Dilaudid throughout the day. At the time of trial, she was still using the pump. In addition, plaintiff was taking Vicodin, Xanax, Dexedrine, Desyral, Lasix, and Catemine to help alleviate the pain in the rest of her body.

Defendant, Dr. Ryan, denied any wrongdoing in performing plaintiff's surgery. Instead, defendant's expert explained that plaintiff suffered from Somatization Disorder, a mental disorder that results in various physical symptoms. At trial, the defendant's experts explained that plaintiff's medical history, including over 20 prior hospitalizations, supported their theory that Dr. Ryan did not perform the surgery negligently but that plaintiff's foot problems were simply a result of her disorder.

The jury returned a verdict in favor of the defendant and plaintiff appealed, arguing, among other things, that the trial court erred in admitting evidence of plaintiff's past medical history. Specifically, the plaintiff contended that the defendants's defense, that plaintiff had preexisting Somatization Disorder, was an "ingenuous scheme" that destroyed plaintiff's credibility and made her appear as a liar and a malingerer. Upon Appeal, the Appellate Court of Illinois disagreed with plaintiff's characterization of the defense. Recognizing the validity of Somatization Disorder, the Appellate Court found that Somatization Disorder was a recognized medical condition that reasonably refuted the plaintiff's claim of medical malpractice. Accordingly, the Appellate Court held that the trial court did not abuse its discretion by allowing the defense to admit plaintiff's medical history as evidence that her foot problems were the result of her condition instead of Dr. Ryan's negligence.

In Martin v. Volvo Cars of North America, the defendant was permitted to present medical evidence that the plaintiff did not sustain a brain injury, but, rather, that she suffered from a Conversion Disorder -- that her personality made her more prone to convert stress into physical illness than the average person.¹¹ According to the medical evidence presented by defendant, plaintiff's disability appeared to have a significant psychogenic component. In defendant's expert's opinion, plaintiff had a predisposed mental fragility caused by her stressful life before the accident, and her physical disability would have occurred without the accident.

In DeMilt v. Moss,¹³ plaintiff entered the hospital for induction of labor and delivery of her fourth child. Plaintiff delivered a 10 pound, 4 ounce baby following a fourth degree episiotomy performed by the defendant. Upon discharge from the hospital, plaintiff claimed to experience "lower female pain, soreness, stomach soreness ... hemorrhoids, headaches, and nerves." She also experienced a recurring urinary tract infection, irregular and lengthened menstrual periods, difficulty with bowel movements, and fecal incontinence. Holding the trial court properly instructed the jury in regarding preexisting conditions, the Court of Appeals of Tennessee held that the record contained competent testimony from defendant's expert who testified that plaintiff had a preexisting Somatization Disorder which could have been aggravated by the trauma of the childbirth and any alleged medical malpractice.

Moreover, in Cooper v. The State of New York, the New York State Court of Claims noted that there was "competent evidence that [plaintiff] exhibited [fears, repressions and phobias] prior to her injury."¹⁴ Similarly, the relevance of a plaintiff's psychiatric history was also appreciated in Kenyon v. Karuso, where the court concluded that the defendant was entitled to discover information contained in plaintiff's psychiatric and psychological records, noting that "plaintiff's wide-ranging pre-existing psychological problems were relevant to her claims of injury."¹⁵

In Sica v. New York State Employees' Retirement System, the New York State Appellate Division found that there was substantial evidence to support the finding that the disability of the employee was not causally related to his back striking a guard rail, but was rather the result of a psychiatric problem that pre-existed the incident.¹⁶ Likewise, in Murphy v. Estate of Vece, the New York State Appellate Division noted that the evidence supported the conclusion that the plaintiff's back and psychiatric injuries were not caused by a relatively minor auto collision, but was rather caused by a pre-existing psychiatric disorder.¹⁷

And finally, in Starobin v. Hudson Transit Lines Inc., the plaintiff claimed that she had developed pain in her lower back and legs following a minor accident while riding as a passenger in a commuter bus.¹⁸ The New York Appellate Division, however, noted that "plaintiff had a history of psychosomatic problems, and all of the experts who testified at trial agreed that she suffered from a profound personality disorder and that her physical symptoms were emotionally based."¹⁹ Notably, the jury credited the opinions of the defendant's expert "to the effect that the plaintiff, because of her personality disorder, was using the fortuitous occurrence of the accident as a 'socially acceptable method of ... expressing her general discontent'. In [the expert's] opinion, plaintiff was causing her own disability, and using the accident as the explanation therefor."²⁰

More attention must be given to the possibility that there is often an alternative basis for the origin of a plaintiff's claimed physical injuries. The importance of the use of forensic psychological experts in the defense of personal injury actions cannot be overemphasized as such experts are critical to evaluate and, where appropriate, expose the baseless nature of fraudulent or exaggerated claims.