When the attorney for a person allegedly injured in an accident filed his lawsuit, he would almost without exception, include claims for anxiety, stress and depression, i.e., mental pain and suffering. This was common practice for decades. In conjunction with bringing these allegations, the attorney would schedule his client to be examined by a psychologist or psychiatrist (mental health professional) (MHP) who would inevitably proceed to see the client once or twice a month until the lawsuit was concluded. Ninety-nine percent of the time, the MHP would issue report after report opining that his client is so emotionally damaged by his experience that he is unable to work and/or will require continued therapy for years to come. When confronted with this situation, the attorney for the person or company being sued has no choice but to have the claimant examined by a MHP of his choice to rebut or debunk the opposition’ opinion. At trial or at mediation it boils down to a swearing match contest between the MHP’s, the winner being the one the judge or jury finds more credible.
In recent years plaintiff’s attorneys have latched onto the diagnosis de jour, post-traumatic stress disorder. The American Psychiatric Association has since the 1980’s recognized Post Traumatic Stress Disorder (“PTSD”) as a legitimate anxiety disorder. As stated in the Diagnostic and Statistical Manual of Mental Disorders IV, “the essential feature of PTSD is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity; or witnessing an event that involves death, injury or threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm or threat of death or injury experienced by a family member or other close associate. Symptoms include persistent re-experiencing of the traumatic event (nightmares, dreams), persistent avoidance of stimuli associated with the trauma (fear of being on boats/water) and persistent symptoms of increased arousal (difficulty sleeping ,outbursts of anger, difficulty concentrating, hyper vigilance, and exaggerated startle response). MHP’s traditionally associated a diagnosis of PTSD with traumatic events such as military combat, violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, terrorist attack, torture, incarceration as prisoner of war or in a concentration camp, natural or manmade disasters (earthquake, flood, volcano eruption) or severe automobile accidents.
However, what we in the legal profession are seeing more frequently are lawsuits for personal injury that do not involve the extreme traumatic events required for the diagnosis which include a claim for total and permanent disability due to PTSD. Any event that can result in anxiety is now the incubator for a PTSD claim. In the past, most people outside the medical/legal community had never heard of PTSD. Since the 1990’s, when our country began its war on terror, many of our combat veterans have returned and have been diagnosed with PTSD as a consequence of their very real experiences. It is a subject of daily discussion on television and the internet. Most people have at least a layman’s understanding of what PTSD is and its symptoms. Plaintiff’s attorneys have co-opted PTSD, and when given the opportunity will make it the centerpiece of their claim. This is especially true when the client has no obvious sign of injury.
To make a diagnosis of PTSD, the MHP has to rely on the truthfulness of the client. The MHP will take the subjective statements of the client and apply them to the objective criteria. If there is enough to correlate, the diagnosis of PTSD is made. The problem is that anyone who can click on and search the internet can find article after article which spell out the symptoms. All that person has to do is tell his psychologist what he needs to hear in order to meet the diagnosis. There is much to be gained. It has been described as a “money spinner.” If you have the prospect of significant monetary reward by continuing to claim to experience anxiety, flashbacks, depression, etc., many people may not find it easy to relinquish those symptoms.
The Minnesota Multiphasic Personality Inventory-2 (MMPI-2) is the test commonly used by MPH’s to assess PTSD. However, it is not fool proof. Studies have shown that persons with a layman’s understanding of the symptoms can utilize that knowledge to assist them to develop a test profile that is consistent with PTSD. If individuals are able to fake PTSD successfully on the MMPI-2, monetary incentives will benefit not only the attorneys and their clients, but also those who develop strategies designed to inform individuals of ways to fake certain disorders. Studies have shown that persons involved in litigation report they are suffering from PTSD four times more often than those who are not.
How can the faker be revealed? Thorough investigation of the claimant’s prior medical history and employment history is the first step. Does he have a history of making claims? A criminal history? Family or domestic problems? History of mental health care? Surveillance can be a useful tool. What is the claimant doing with his time? Are his daily living activities consistent with someone who claims to be so mentally and emotionally challenged? Retain a MHP (who has no stake in the outcome) with experience in the diagnosis of PTSD to conduct an objective evaluation. Look for signs of malingering and evidence of secondary gain.
There are legitimate cases of PTSD. However, the litigation industry has taken this real illness and used it to manufacture claims. This has resulted in increased costs and, on occasion, unwarranted money judgments. Perhaps the worst consequence is that now virtually all litigation PTSD claims are treated with cynicism and skepticism, and the person really suffering with PTSD may not be justly compensated.