IV. Litigation and Post Traumatic Stress Disorder
This is the final post in my series on Post Traumatic Stress Disorder. Last week we looked at Treatment for Post-Traumatic Stress Disorder. Today we will look at how the disorder and litigation relate.
In law, trauma which produces post-traumatic stress disorder is referred to as a tort. For many years only physical injury related to a trauma could form the basis of a lawsuit since it was observable and quantifiable. As the behavioral sciences gained ground, the concept of “traumatic neurosis” emerged and by the 1940s, testimony relevant to this psychiatric syndrome was accepted in many courts. By 1980, post-traumatic stress disorder found its way in the Diagnostic and Statistical Manual – the DSM – and the condition became a source of monetary damages to one so inflicted.
The legal cause of action for emotional distress and psychiatric disorder including post-traumatic stress is readily accepted by courts for the person involved in the physical trauma. However the only time one not involved in the physical trauma can recover for emotional distress or post-traumatic stress disorder is if they were within the “zone of danger.” Please refer to my previous post.
The Zone of Danger Rule - The Zone of Danger Rule, applied in almost every jurisdiction, allows a plaintiff to recover for emotional distress caused by a defendant’s negligent conduct if the plaintiff was in a location where the defendant’s conduct could have caused physical harm to the plaintiff.
The theory supporting this doctrine is that the likely truth of a claim of emotional distress is increased if the person making the claim came close to suffering physical harm from the conduct that caused the person’s emotional distress.
Predisposition to PTSD is frequently contested. Whether a person’s personality type gave way to PTSD where others with other personality types would have avoided the disorder is bandied about in trials. The question of predisposition has puzzled doctors over the years. Not all soldiers in the same battle, passengers in the same automobile accident, or workers exposed to the same industrial calamity develop PTSD. A dispute often arises in my practice over how a driver or passenger in the same car crash could develop PTSD while the other does not. Why certain individuals are vulnerable to PTSD must have something to do with heredity (genetics), environmental factors (family upbringing) together with the nature and impact of the trauma.
Since my legal practice is significantly defined by the many traumatic brain injury cases I handle and have handled over many years, I come in contact with the PTSD diagnosis quite frequently. It is my experience that the condition is typically disputed and attempts are made to relate any psychiatric injury claims to predisposing factors.