- 1 Scope
- 2 Psychological injury and law
- 3 Assessment and malingering
- 4 Diagnosis and treatment
- 5 Major psychological injuries
- 6 Disability and return to work
- 7 Psychological testing
- 8 Causality
- 9 Value of the field and validity of the injuries
- 10 References
"Psychological injury" refers to psychological or psychiatric conditions associated with an event that leads, or may lead, to a lawsuit in tort action or other legal-related claims, for example, in workers' compensation, United States Department of Veterans Affairs (VA) disability benefits claims, and Social Security Administration (SSA) disability cases. Claimable injuries might result from events such as a motor vehicular collision or other negligent action, and cause impairments, disorders, and disabilities perhaps as an exacerbation of a pre-existing condition (e.g., Drogin, Dattilio, Sadoff, & Gutheil, 2011; Duckworth, Iezzi, & O'Donohue, 2008; Kane & Dvoskin, 2011; Koch, Douglas, Nicholls, & O'Neil, 2006; Schultz & Gatchel, 2009; Young, 2010, 2011; Young, Kane, & Nicholson, 2006, 2007).
Legally, psychological injury is considered a mental harm, suffering, damage, impairment, or dysfunction caused to a person as a direct result of some action or failure to act by some individual. The psychological injury must reach a degree of disturbance of the pre-existing psychological/ psychiatric state such that it interferes in some significant way with the individual's ability to function. If so, an individual may be able to sue for compensation/ damages.
Typically, a psychological injury may involve posttraumatic stress disorder (PTSD), traumatic brain injury (TBI), a concussion, chronic pain, or a disorder that involves mood or emotions (such as depression, anxiety, fear, or phobia, and adjustment disorder). These disorders may manifest separately or in combination (co-morbidity). If the symptoms and effects persist, the injured person may become a complainant or plaintiff who initiates legal action aimed at obtaining compensation against whomever is considered responsible for the injury.
In the following, psychological injury is discussed in relation to the law, forensic psychology, assessment, malingering, diagnosis, treatment, PTSD, chronic pain, TBI, disability, return to work, psychological tests and testing, and causality.
Psychological injury and law
Research and practice in the scientific field of psychological injury are predictably and intimately associated with legal research and practice. For example, workers in the field need to know evidence law, tort law, and insurance law, both at the national and local (state, provincial) levels in their countries of practice. This association between psychological injury and law began to be recognized as a distinct scholarly and professional entity in the first decade of this century, in particular, as the result of the development of the first scientific society, the Association for the Scientific Advancement of Psychological Injury and Law (ASAPIL), and the first peer-reviewed academic journal devoted exclusively to the topic, Psychological Injury and Law.
This type of case is quite adversarial, because psychological injury is associated with court, and because complainants might exaggerate or even feign symptoms outright. Psychologists and other mental health professionals must be well trained in legal matters, knowledgeable regarding forensic psychology, and qualified to conduct appropriate diagnostic and other assessment procedures (Boone, 2007; Larrabee, 2007). Also, see various professional guidelines, such as American Psychological Association, 2002, Committee on the Revision of the Specialty Guidelines for Forensic Psychology, 2011; and Pope and Vasquez, 2011.
When mental health professionals fail to undertake comprehensive, impartial, and scientifically informed assessments, they risk challenges to the admissibility of the evidence that they present to court and having it dismissed as poor or "junk science." The decision of the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) provided a basis for determining acceptable science in court, and required judges to function as "gatekeepers" for evaluating the probative or helpful value of the testimony for the case at hand. Two additional, related U.S. Supreme Court cases—General Electric Co. v. Joiner (1997) and Kumho Tire Co. v. Carmichael (1999)- may be added to comprise what is often referenced as the "Daubert trilogy." These decisions have been incorporated into Federal Rules of Evidence 702. A Canadian case that addresses many of the same issues is R. v. Mohan (1994). Some U.S. jurisdictions follow the Frye standard to determine admissibility of expert witness testimony.
Note that psychological injury, as presently defined, is treated in court uniquely in civil cases. In this sense, although the area of psychological injury and law is related to forensic psychology, it does not relate to the criminal component of this area. Matters important to forensic psychology, such as adopting the correct procedures in practice, being an expert witness, and understanding the relationship of psychology and court, are also essential to practice in the area of psychological injury and law.
Assessment and malingering
Psychologists are trained and expected to be comprehensive, scientific, and impartial in conducting their assessments (Heilbrun, Grisso, & Goldstein, 2009). Such assessments involve (a) interviewing (of the person being assessed, and perhaps involving family, work, and professionals), (b) document review (e.g., other reports; about school, work), and (c) psychological testing. The tests they use either directly assess—or include scales that assess—various signs of psychological injuries, and many are sensitive to malingering (conscious fabrication of symptoms for monetary or other personal gain, or symptom feigning, though this is not very common) and other response biases (Rogers, 2008).
For example, rather than engaging in malingering, a complainant might be exaggerating excessively, or catastrophizing, out of an unconscious "cry for help" for not having been "heard" in prior assessments or for having her pains and other symptoms continue to limit her life activities. The validity of the complainant's presentation, whether physical or psychological, needs to be determined by comprehensive assessments that can help discern threats to validity such as these. Psychologists should not arrive at facile conclusions either way along these lines. They must resist the pressure of the adversarial divide and the referral source, as well as other sources of undue influences on their professional judgment, in order to arrive at unbiased conclusions (see Berry and Nelson, 2011).
Diagnosis and treatment
Psychologists and psychiatrists are those professionals typically qualified by their regulating or licensing bodies or boards to diagnose and treat psychological injuries. Psychologists are trained in the study of behavior and its assessment, diagnosis, and treatment. Many psychological tests are limited in their use to psychologists, as psychiatrists are unlikely receive substantial training in test administration and interpretation. However, being medical professionals, psychiatrists have skills and a knowledge base not typically available to psychologists. The Diagnostic and Statistical Manual of Mental Disorders—now in its fourth edition (DSM-IV-TR, American Psychiatric Association, 2000)—will soon be updated by a fifth edition slated for publication in 2013 (see Young and First, 2010, for a critique). This Manual is prepared under the aegis of the American Psychiatric Association, but psychologists contribute to this process by participating in its working groups.
Rehabilitation and other clinical psychologists—such as trauma psychologists—may be in professional contact with injured survivors at the onset injury, shortly thereafter, and throughout the course of recovery, such that these professionals, too, need to know about the legal ramifications of the field. They may employ cognitive behavioral approaches to help their patients deal with any physical injuries, pain experience, PTSD, mood, and effects of their brain injuries (Young, 2008b). They may assist the families of the injured, including spouses and children. They typically adopt a systems approach, working as part of rehabilitative teams. Their hardest cases occur when there is a death in the family as a result of the event for which legal action is involved and therapy is needed. These clinical, rehabilitation, and trauma psychologists refer to treatment guidelines in preparing their treatment plans, and attempt to keep their practices evidence-based when feasible.
Major psychological injuries
Posttraumatic stress disorder
The field of psychological injury is beset by controversies. In this regard, the three major diagnoses in the DSM–IV-TR most central to this area are often criticized for their definition, validity, and usefulness in court, and for their ease in feigning or malingering without detection. For example, PTSD is diagnosed based on 17 major symptoms (e.g., flashbacks, startling, nightmares, fears), but these often are placed on attorneys' websites under clear headings such as, "Do you have these symptoms of PTSD?", with the result that plaintiffs can be coached all the easier in how to present with this disorder. Moreover, the diagnosis may be given inappropriately to individuals based upon the slightest of traumatic events, even though it was meant originally for quite severe ones. There has been an explosion in cases involving the diagnosis of PTSD, and even in the military the diagnosis may be given too easily without careful assessment. In cases of valid presentation of PTSD, psychologists can help patients deal with their condition by applying specialized cognitive behavioral techniques, such as systematic desensitization and exposure therapy (see Frueh and Wessely, 2010).
Chronic pain is another controversial psychological condition, labeled in the DSM-IV-TR as Pain Disorder Associated with Psychological Factors (with or without a Medical Condition). The "biopsychosocial approach" recognizes the influence of psychological factors (e.g., stress) on pain. It was once thought that chronic pain could be the result of a "pain-prone personality" or that it is "all in the head." Contemporary research tends to dismiss such conceptualizations, but they continue persist and cause distress to patients whose pain is not recognized as real. Psychologists have an important role to play in helping patients in pain by providing appropriate education and treatment (for example, about catastrophizing or fearing the worst), and by using standard cognitive and behavioral techniques (such as breathing exercises, muscle relaxation, and dealing with cognitive distortions) (see Gatchel, Peng, Fuchs, Peters, and Turk, 2007; Schatman and Gatchel, 2010).
Traumatic brain injury (TBI)
TBI refers to mild to severe pathophysiological effects in the brain and central nervous system due to strong impacts, such as severe blows to the head and penetrating wounds that might take place in accidents and other events at claim. Neuropsychological deficits associated with TBI include those relating to memory, concentration, attention, processing speed, reasoning, problem solving, planning, and inhibitory control. When these effects persist, other psychological difficulties might arise, even in mild cases (such as concussions). However, the underlying reason for the perpetuation of the symptoms beyond the expected time frame might be due to associated factors, such as poor sleep, fatigue, pain, headaches, and distress. Psychologists can help patients with TBI by guiding them in cognitive remediation and dealing with family. When the effects are serious and even devastating, the degree of care from the team may be intensive, covering multiple aspects of daily living (see Ruff and Richards, 2009).
People of both sexes and all types of backgrounds, races, ages, and disability status are injured physically and psychologically in events at claim and in other situations. However, the research does not always consider these differences, and often the diagnostic manuals, psychological tests, and therapeutic protocols in use in the area also lack differentiation along these lines.
Disability and return to work
When psychological injuries compromise daily activities, psychologists need to address the degree of disability (see Schultz, 2009; Schultz & Rogers, 2011). Patients express symptoms that might be accurately diagnosed as PTSD, Pain Disorder, and/or TBI. However, the critical issue is the degree of impairment, limitation, and participation restriction in daily activities in which patients would normally participate at work, at home, in childcare, and in schooling. When the patient cannot undertake the functions involved in these important roles, the psychologist or other mental health professional may conclude that a disability is present, but this cannot be ascertained by the mere presence of a diagnosis of one sort or another. Rather, the psychologist must demonstrate that the person is disabled from the essential duties, tasks, or activities of the role at issue. For example, a forefinger injury leading to chronic pain might mean relatively little to an investment banker—as long as medications control it and other areas of functioning are not greatly affected—but might be devastating to a violinist. Psychologists may refer to the American Medical Association's Guides to the Evaluation of Permanent Impairment (Rondinelli, Genovese, Katz, Mayer, Müller, Ranavaya, & Brigham, 2008) in arriving at disability determinations, which addresses mental health, neuropsychological, and pain issues. However, like the DSM-IV-TR, this compendium is sometimes questioned for its scientific validity and usefulness.
Tort actions and other civil actions are often based on serious, permanent and important psychological injuries that create disabilities of a substantial nature in other areas, such as leisure activities, home care, and family life. Often, psychologists in court lock horns over the degree to which the event at claim and its psychological effects have created serious and potentially permanent psychological disabilities—in part, because there is no one test that can measure "disability," per se.
Treating psychologists try to help clients return to work (RTW) or to their other functional roles and activities of daily living (ADLs). Clients are expected to adhere to treatment regimens, or be compliant with treatment recommendations. Partly, this serves to mitigate their losses, or attempt to return to their pre-event physical and psychological condition. When they reach or are progressing to their maximum medical recovery (physical and psychological/ psychiatric recovery), RTW might be attempted on a modified, part-time, or accommodated basis, and treatment might continue to help full re-integration into the workforce or other daily roles, and to maintain gains and avoid deterioration. Or, clients might be sent for training or education, based on their transferable skills residual to the event at claim and its effects. For those who do not make full recovery and remain disabled because of their permanent barriers to recovery, the goals of rehabilitation include optimizing adjustment, quality of life (QOL), residual functionality, and wellness.
Psychologists need to use the most appropriate tests available for detecting feigning, malingering, and related response biases. In addition, psychologists need to be able to arrive at scientifically-informed conclusions in their evaluations that will withstand the rigors of scrutiny by psychologists on the opposing side and of cross-examination in court.
In terms of their education and training, psychologists need to be able to address the full array of areas under discussion, especially in forensic, rehabilitation, and trauma areas. They must become experts in assessment and testing, especially regarding (a) personality tests (e.g., the MMPI-2; Butcher, Dahlstrom, Graham, Tellegen, & Kaemmer, 1989; Butcher, Graham, Ben-Porath, Tellegen, Dahlstrom, & Kaemmer, 2001; and the revision the MMPI-2 RF; Ben-Porath & Tellegen, 2008; as well as the PAI; Morey, 2007), and their embedded validity scales, such as the F family of scales in the MMPI tests, and (b) stand-alone symptom validity tests (e.g., the TOMM; Tombaugh, 1996; WMT; Green, 2005; SIRS; Rogers, Bagby, & Dickens, 1992; and the revision SIRS-2; Rogers, Sewell, & Gillard, 2010). The key factors in the development of tests that are acceptable to psychologists and to court is that the tests should have acceptable psychometric properties, such as reliability and validity. Also, such tests must be standardized by using populations that make sense for the area of psychological injuries, such as accident survivors experiencing pain and other trauma victims.
Another aspect important for psychologists to consider is the degree of influence of mental health conditions already present prior to the event at claim. Just as one might have a pre-existing back injury that a whiplash injury in an accident did not make worse, it could be that pre-existing psychological disorders were not worsened by the effects of an event at claim, no matter how traumatic. Therefore, in some cases—such as those involving a serious pre-existing schizophrenia or brain damage—it is possible that the event that had occurred did not actually exacerbate what had existed prior to the event at issue, or make things any worse. In other cases, by contrast, the person might have pre-existing psychological or psychiatric vulnerabilities, or relatively mild psychological or psychiatric conditions, and the event at issue brought to the surface the vulnerabilities or made the pre-existing conditions clearly worse. These are sometimes labeled "thin skull" or "egg-shell psyche" cases, and are the most intriguing and difficult to manage because of the potential "gray zones" in their causal interpretation (Young, 2008c). Extraneous stresses, such as job loss due to worksite bankruptcy, might also complicate causal determination. Ultimately, the mental health professional considers the full range of pre-event, event, and post-events factors in apportioning or deciding upon causality.
Note that "litigation distress" refers to one source of stress for complainants or litigants; it concerns iatrogenic or stressful factors in the insurance and legal process that add to their stresses and complicate their recovery and psychologists' understanding of the causality behind their injuries. Indeed, their injuries have been referred to as a result of "compensation neurosis;" however, there is little evidence to support this claim. For example, their injuries generally do not magically heal after they receive their financial settlements.
Value of the field and validity of the injuries
Psychological injury and law is a discipline that stands at the intersection of forensic psychology, rehabilitation psychology, trauma psychology, and the law. It is at times controversial, but is constantly being researched and refined. Practitioners must remain abreast of related scientific, regulatory, and ethical developments or risk being challenged in court for the admissibility of their evidence, and even exposing themselves to malpractice claims for negligence.
Psychological injuries remain contested disorders and conditions, especially because of their association with court and related venues. However, psychologists and other mental health professionals who use state-of-the-art knowledge and procedures can help ascertain when they are valid.
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