Personal Injury and Emotional Distress

Personal injury and emotional distress claims are civil court matters in which psychologists may become involved in several ways. A claim of psychological injury or emotional distress resulting from the intentional or reckless actions of another sets in motion the collection of data to buttress or refute the claim. Treatment providers, whose interventions occur in a helping context, may offer an opinion to the court about the nature, causation, and consequences of the psychological injury. A more objective, investigatory, and wide-ranging investigation offers greater utility to the fact finder, however, and this is the primary contribution of the forensic psychologist in court. This examination may be accomplished at the request of the plaintiff’s or the defendant’s counsel, and it is characterized by multiple sources and methods of data collection, reliance on reliable and valid measures and techniques, and respect for the limits of psychological expertise in determining matters of interest to the law.

Context of Personal Injury and Emotional Distress

Personal injury claims (also known as tort claims) are made in civil court when one party, usually an individual (the plaintiff), seeks compensation from another party, an individual, a corporation, or an agency (the defendant), for an injury allegedly suffered because of the negligent act of the defendant. This process of tort litigation exists to make whole again those who are damaged by the willful action of another. This allows society to protect its members from exploitation by others’ intentional actions or their failure to take reasonable steps to avoid doing harm. The legal system is called on to first determine whether the defendant had a duty of some sort to the plaintiff. Second, the legal system must determine whether the duty was breached— that is, whether the defendant failed to fulfill its responsibility to the plaintiff. Third, the court must determine whether the plaintiff was harmed by the breach of responsibility. Fourth, the court must determine whether that harm suffered by the plaintiff was reasonably foreseeable—that is, whether the defendant knew, or should have known, that by its negligent action the plaintiff was likely to suffer damage.

Different categories of personal injury or tort litigation include claims against providers of professional services (malpractice cases); claims against employers for discriminatory hiring processes, negligent treatment, workplace harassment, or physical injury on the job (including workers’ compensation cases); and claims against manufacturers or suppliers of products (product liability cases). Claims may be made directly by an injured individual or on behalf of an injured dependant, including a child or an adult who lacks competency to manage personal affairs. Suits may be brought on behalf of groups or classes of people, such as all people who received certain services from a provider or all people who purchased a defective product; these are referred to as class action suits. If the class of plaintiffs prevails, the awards are split, after payment of attorneys’ fees, among the plaintiffs.

Psychologists’ Role in Personal Injury and Emotional Distress

Psychologists may become involved in personal injury claims at any of several points. The most common application in forensic psychology is when the plaintiff claims mental health injury beyond that which would normally be expected to occur under the alleged circumstances. The plaintiff generally offers expert testimony to support that claim. The treating mental health professional’s testimony may be offered, by affidavit or in person, to support the claim that the plaintiff has suffered psychological injury. On notice of this offer, the defendant may seek to have its own expert examine the plaintiff, which is often referred to as an independent medical examination (IME). Whether or not the plaintiff intends to offer expert testimony to buttress a claim of mental anguish or other psychological injury, the claim itself is often sufficient to trigger a compelled mental health examination.

The forensic psychologist retained by the plaintiff or the defense conducts a comprehensive examination of the plaintiff to determine whether there is clinical evidence of psychological injury and what data exist to support or refute the claim that that injury was caused by the alleged wrong. This examination, when sought by the defense, may be resisted on the ground that it will further traumatize the plaintiff or that it is unnecessary because the defendant can probe the same areas of inquiry through cross-examination of the plaintiff’s treating experts. However, there are often limitations to the information that can be derived from treatment professionals, and forensic examination may make a significant contribution to the fact finder’s deliberation.

The treating professional may accept the plaintiff’s reports with less scrutiny, may not seek verification or refutation of reported functioning, and may fail to explore other potential contributors. In contrast, the forensic examiner may develop opinions based on wide-ranging, investigative examination employing multiple data sources and assessment methods. This reliable testimony is useful to the court in establishing causation. Finally, forensic examiners are mindful of the need to stop short when they lack the data to make assertions; clinical practitioners may not fully grasp the implications of offering opinions on matters of causation.

Focus of Examination

To determine whether the plaintiff suffered psychological injury, the forensic psychologist explores the plaintiff’s functioning across three periods of time— before, during, and immediately following the alleged event—and then considers how the plaintiff may be expected to function in the future. Of particular interest to the court is whether there will be a need for ongoing mental health treatment and, if so, the type and frequency or duration of that treatment. Other factors or events in the life of the plaintiff may have contributed to the changes in psychological functioning or may account for the plaintiff’s future need for treat-ment. If it is found that the plaintiff was significantly psychologically injured before the instant event, the psychologist will attempt to determine whether the earlier injury wholly accounts for the plaintiff’s present psychological injury. Alternatively, the earlier event may have increased the plaintiff’s vulnerability to the present injury. This previously injured plaintiff is sometimes called an “eggshell” plaintiff. It is often difficult to clearly determine the contribution of this psychological vulnerability to the present symptom picture or to future treatment needs. While the law must attempt to make such fine distinctions in causation, psychological expertise can provide only some assistance to the fact finder in the search for causation.

The stress of litigation alone may add to the litigant’s suffering. The plaintiff may lack financial resources, while the defense, possibly an insurance company or a large corporation, may be able to afford extended litigation with a team of experts. The plaintiff’s counsel may pay for the expertise out of its own pocket or have experts work under a letter of protection, to be paid only if and when the case is settled in the plaintiff’s favor. There are potential ethical implications in such arrangements, specifically regarding compromised objectivity, and forensic psychologists decline such engagements. An exception may be warranted when the forensic psychologist is retained as a nontestifying trial consultant whose objectivity will therefore not be relied on by the court.

Informed Consent

When the examination of the plaintiff is compelled rather than voluntarily sought for treatment purposes, the process of informed consent becomes particularly significant. The court order makes the assessment involuntary, so the plaintiff, by definition, cannot “freely and voluntarily consent.” The psychologist nevertheless notifies the plaintiff or the authorized legal representative, or both, of the purpose of the assessment, the range of potential consequences, the party responsible for payment for the examiner’s time, and the absence of confidentiality in the process.

Observers

The plaintiff may request an observer, such as the attorney, a therapist, or a family member, in the examination. This is especially likely when the plaintiff is a child. In some jurisdictions, the law clearly permits this accompaniment, and the examiner may have limited options to oppose it; in other jurisdictions, the matter of an observer may be decided on a case-by-case basis.

One concern about observation of the examination is that it renders the administration of some instruments a nonstandard administration and may affect the outcome in unknown ways. Some efforts have been made to assess the effects of observers or of audio recording on tests of cognitive functioning, and although there have been mixed results, there appears to be a modest impact on performance in some cognitive domains.

Second, the presence of an observer who has a stake in the outcome may significantly affect the plaintiff’s presentation. The plaintiff may be less able to answer questions honestly or spontaneously when someone else is in the room. The effect of the observer on the outcome may be particularly powerful when the plaintiff is a child and the observer is the therapist or a parent who has a distinct opinion about what happened and how it affected the child. The child may be aware of the parent’s or therapist’s view and may capitulate to it in any case, but it is possibly more likely to do so when the parent or the therapist is in the room.

Third, observers sometimes have difficulty remaining passive or silent. They may attempt to contribute to the discussion, speaking for the plaintiff. Indirectly, they may telegraph their attitudes to the plaintiff and affect the plaintiff’s answers to questions. When multiple interviews occur, observers may intervene between interviews by pointing out to the examinee any problem areas and suggesting alternative answers to questions.

Examiners may, for all of these reasons, object to the presence of an observer or may attempt to structure the observation. This structuring might include, for example, offering to audio or video record the examination (possibly through an observation window) in lieu of having an observer in the room, requesting a neutral observer whose input is limited to ending the interview if the plaintiff seems to be in need of such protection, or seating the observer outside the line of vision of the examiner. Ultimately, however, the court may override these requests in favor of unrestricted observation.

Techniques Used in Personal Injury Assessment

The techniques and instruments that may be useful in personal injury assessment are as varied as the nature of the claimed psychological injury. Often the data collected by the forensic examiner through interview or questionnaires address day-to-day functioning. The examiner may ask for collateral data in the form of documents, records, or interviews with people who would have relevant information about the plaintiff’s past and present lifestyle. Information is gathered regarding how the plaintiff lived before, including the interests, activities, and pleasure in life that are reflected in collateral information. Also explored are the plaintiff’s coping resources as manifested in the handling of previous crises or trauma.

Testing may include formal assessment of any claimed loss in cognitive function, as well as assessment of general personality functioning, response style, or impression management and in-depth exploration of specific reported symptoms. While there is a proliferation of instruments designed to assess trauma or posttraumatic stress, face validity may render these instruments so vulnerable to dissimulation that their utility is limited for forensic purposes. Similarly, checklists without well-designed measures of response style may generate unreliable results regarding depression or anxiety. Multisource, multimethod assessment accomplished with reliable tools leads to robust psychological findings that are useful to the court.

Report of Findings

Ordinarily, the referring attorney is given the findings of an examination, and then, he or she determines whether they are sufficiently useful to justify calling the psychologist to testify. If the psychologist is designated as a testifying expert, opposing counsel may request a deposition to determine what opinions will be offered and the foundation for those opinions. Personal injury matters are often, but not always, resolved at some point before the case is set for trial. If settlement efforts fail and the case goes to court, the expert may testify to the findings of the examination. The fact finder (generally a jury but sometimes a judge alone) makes the determination about whether the defendant owed a duty, whether that duty was breached, whether the plaintiff was injured as a result of the breach, and what the defendant owes to make the plaintiff whole. This determination may be reached, at least in part, by relying on expert testimony, but the expert does not make the determination. Rather it is a matter for the fact finder to decide.

References:

1. Boccaccini, M. T., & Brodsky, S. L. (1999). Diagnostic test usage by forensic psychologists in emotional injury cases. Professional Psychology: Research and Practice, 30, 253-259.
2. Foote, W. E., & Shuman, D. W. (2006). Consent, disclosure and waiver for the forensic psychological evaluation: Rethinking the roles of psychologist and lawyer. Professional Psychology: Research and Practice, 37, 437—145.
3. Goldberg, M. A. (2006). Examining children in personal injury claims. In S. N. Sparta & G. P. Koocher (Eds.), Forensic mental health assessment of children and adolescents (pp. 245-259). New York: Oxford University Press.
4. Greenberg, S. A. (2003). Personal injury examinations in torts for emotional distress. In A. M. Goldstein (Ed.), Comprehensive handbook of psychology: Vol. 11. Forensic psychology (pp. 233-257). New York: Wiley.
5. Greenberg, S. A., & Shuman, D. W. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research and Practice, 28, 50-57.