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MEDICINE FOR LAWYERS—2011
PAPER 3.1
Mental Disorders in Litigation
These materials were prepared by Dr. Roy J. O’Shaughnessy, Psychiatrist, Clinical Professor, Department of
Psychiatry, Faculty of Medicine, University of British Columbia, Vancouver, BC, for the Continuing Legal
Education Society of British Columbia, January 2011.
© Dr. Roy J. O’Shaughnessy
3.1.1
MENTAL DISORDERS IN LITIGATION
I.
What is a Mental Disorder? .............................................................................................................................1
II.
Classification of Mental Disorders .................................................................................................................2
III.
Definition of Mental Disorder.........................................................................................................................3
IV.
Cautions in Court Settings...............................................................................................................................5
V.
Mental Disorders in Civil Litigation ...............................................................................................................5
VI.
Other Anxiety Disorders ..................................................................................................................................9
VII.
Mood Disorders .................................................................................................................................................9
VIII.
Somatoform Disorders .....................................................................................................................................9
IX.
Somatization Disorder ...................................................................................................................................10
X.
Conversion Disorder .......................................................................................................................................11
XI.
Disorders from Mild Traumatic Brain Injury .............................................................................................12
XII.
Reference...........................................................................................................................................................13
This discussion will focus on basic psychiatric disorders commonly seen in civil litigation. I will address
definitions of “mental disorder,” classification of mental disorder, and proposed changes to diagnostic
approaches and criteria that will be forthcoming in DSM-V. A full discussion of this very complicated and
complex subject is well beyond the scope of this seminar. It involves core discussions on philosophy of science
that have been debated extensively for decades and discussed rationally in a number of learned texts and
treatises both in psychiatry and in philosophy. Given the nature of this seminar, I will focus primarily on
descriptive issues to assist the practicing lawyer how to recognize possible mental disorders in litigants and to
refer such matters to appropriate sources for evaluation, management, or consultation.
I.
What is a Mental Disorder?
Since Descartes, there has been an ongoing debate over “mind” versus “body” in thinking through
psychological or mental disorders as well as physical ailments. The determination as to what belongs to the
“mind” or to the physical self has narrowed substantially with the advent of new advances in brain science and
in particular expanded discoveries from research in neurotransmitters, neurophysiology and neuroanatomy.
Despite extraordinary advances in research and understanding of brain biology, chemistry, and functioning,
there remains a healthy skepticism in the public as to the nature of “mental disorders” and in particular the
role of mental health care providers in diagnosing and treating such disorders. It is also evident, however, that
many “mental disorders” currently diagnosed or often proposed by many advocacy groups lack a clear
underlying biological basis, at least as far as our current methodology can explain.
3.1.2
During the “anti-psychiatry movement” of the 1960s and 70s, there was substantial criticism of the process of
diagnosing mental disorders and in particular the institutionalization of mentally disordered individuals who
were treated against their wishes. Thomas Szasz, a psychiatrist, was one of the leading proponents of the antipsychiatry movement. He argued that there was no such thing as a “mental disorder” and in fact, stated
psychiatric illnesses were merely deviants from norms and not actual medical problems. He chose to argue
that mental disorders were substantially different from physical disorders, which he described as caused by
structural or functional abnormalities of the human body. Psychiatric disorders were labeled more “myths”
that were defined more by social and moral value terms than by underlying biological and medical terms.
Critics of Szasz even then recognized that he was simply incorrect in his assumptions that there was no
underlying biological basis to many of the mental disorders. Subsequent research has in fact confirmed that
the major mental disorders have abnormalities in physiological functioning that is clearly biological in nature.
Many of the critics of Szasz, in fact, state that he has encouraged the dualism previously addressed by
Descartes (i.e., separating mind and body), by arguing that mental disorders do not have any biological base.
While the anti-psychiatry movement has more or less faded from our current awareness, philosophers of
science have continued to challenge some of the concepts underlying “mental disorders” as being less science
and more value statements. In particular, philosophers of science have noted that it is difficult at times to
distinguish what is a value or moral value from what is a “fact” or sign of biological dysfunction. It is noted that
some of the actual criteria we employ in coming to diagnoses are in fact departures from moral and/or social
norms as opposed to true signs of a physical abnormality. As an example, the diagnostic criteria of Antisocial
Personality Disorder specifically state the person must depart from normal social convention and norms on a
consistent basis to meet the threshold criteria. Similar issues are found in other diagnostic entities (e.g., the
Paraphilias or deviant sexual drive categories in which the criteria are based in large measure on simply
breaching age or social norms in terms of sexual object choice). In addition, they note that many of our
“diagnoses” run very close to what are seen as moral conditions (e.g., “alcoholism” is in fact very similar to
“drunkenness”). Some critics would argue that almost any feature of human nature that deviates from social
norms could be argued to be evidence of a mental disorder. In some circumstances, persons suffering from the
effects of social deviation are the most vigorous in arguing for their particular problem to be included as a
“disorder.” Once so classified, a “disorder” mat allow insurance coverage for treatment by a mental health
provider, perhaps led to greater sympathy from others who previously were critical of “bad behavior” but now
perceive the behavior to be a product of “mental disorder” etc.
The intensity of this philosophical debate is not lost on the psychiatric profession and has been addressed very
clearly in articles, books, and debates over the last 5 decades. It should be noted, however, that similar
philosophical issues also apply to “physical” or medical disorders. As our research literature develops, it has
become abundantly clear that large numbers of people present to doctors with “physical complaints” for
which no actual physical anomaly or malady is found. While recent research has certainly found a great deal of
“physical” abnormalities in “mental disorder,” it is also clear that there is a great deal of “mental” elements to
“physical disorders.” While the Cartesian dualism of “mind” versus “body” persists to some extent, most
scholars recognize that for many physical and mental disorders there are combined psychological and
physiological elements.
II.
Classification of Mental Disorders
There are two currently accepted classification strategies for mental disorders. Often used in Europe and other
countries, the International Classification of Disease (“ICD”) sponsored by the World Health Organization is
currently in its 10th iteration, and contains all medical and mental disorders. The Diagnostic and Statistical
Manual (“DSM-IV”) published by the American Psychiatric Association is now in its 4th iteration, and is the
leading diagnostic manual used in North America. The DSM-V, the fifth iteration, is currently underway with
preliminary diagnostic criteria sent out for discussion and critique. It is scheduled for publication in May 2013.
3.1.3
In previous iterations of the DSM’s the American Psychiatric Association recognizes many of the philosophical
issues touched upon in the preceding paragraphs and embarked with advent of DSM-III on a methodology to
classify mental disorders that departed from previous attempts. The goal of the DSM-III and continued in
DSM-IV was to provide descriptive diagnostic criteria of different mental disorders without reference to any
underlying theoretical belief as to the nature or causation of these disorders. The goal was to develop a
nomenclature that allowed clinicians and researchers to define mental disorders in a way that was
reproducible and could facilitate further research into causes and treatments of mental disorders. They
utilized a complicated methodology. They started by appointing expert panels in different areas of disorders.
The panels gathered the highest quality research for each of the broad categories of mental disorder (e.g.,
Mood Disorders, Anxiety Disorders, etc.). The working groups then devised criteria consistent with the
research. During the initial evaluation process in DSM-III they sent the working criteria for field review in a
variety of locations to determine consistency and reliability as well as utility of the criteria. The DSM-IV
revision built on the work completed in DSM-III and was able to deal with some of the inconsistencies that
arose with the DSM-III criteria.
Lawyers frequently refer to the DSM-IV as the “Bible” of psychiatry, when in truth; it should be seen more as a
“work in progress.” Each of the iterations of the DSM reflects the state of the art of existing research literature at
the time it was developed. We are in the process of a massive updating in research literature both in terms of the
genome projects as well as in new techniques to evaluate biochemical functioning in the brain. New
developments will form the research base to modify diagnostic nomenclature in the upcoming DSM-V. Even now,
some of the diagnostic entities in DSM-IV have come under fire. As an example, the section on Personality
Disorders will likely undergo a major revision in light of research evidence indicating these disorders are better
understood as being on a continuum as opposed to the current classification using categorical definitions.
Nonetheless, the DSM-IV does reflect the state of the art of the profession at the time of its publication and
continues to be an “authoritative text.” The DSM-IV is not perfect. Educated clinicians can find significant fault
with many of the defined criteria and give rational arguments why they have rejected them even in court cases.
III.
Definition of Mental Disorder
The authors of the DSM-IV are well aware of the philosophical difficulties in defining mental disorders that I
touched on above. DSM-IV in fact provides a relatively narrow definition but also readily acknowledges in the
introduction that there is a large element of abstraction involved in defining mental disorder. They note,
however, that similar abstractions are found in our definitions of more traditional medical or physical
disorders. It was clearly recognized that reaching operational definitions of mental disorders is challenging and
that no single operational definition can be employed in all conditions. It was recognized that the
differentiation from “normal” to “mental disorder” could be challenging due to the grey area between normal
states and mental disorders that may defy any simple classification.
In DSM-IV, mental disorders are defined as:
… a clinically significant behavioral or psychological syndrome or pattern that occurs in an
individual and that is associated with present distress (e.g. a painful symptom) or disability
(i.e. impairment in one or more important areas of functioning) or with a significantly
increased risk of suffering death, pain, disability, or an important loss of freedom. In
addition, this syndrome or pattern must not be merely an expected and culturally
sanctioned response to a particular event, for example, the death of a loved one. Whatever
its original causes, it must currently be considered a manifestation of a behavioral,
psychological, or biological dysfunction in the individual. Neither deviant behaviors (e.g.
political, religious, or sexual) nor conflicts that are primarily between the individual and
society are mental disorders unless the deviance or conflict is a symptom of a dysfunction in
the individual as described above.
3.1.4
The DSM-IV utilizes what are termed “categorical” approaches to diagnosis similar to diagnostic approaches
for medical disorders. These approaches are very effective when there is a substantial separation between
different types of disorders (e.g., infectious diseases versus cancers). Unfortunately, in mental disorders, the
boundaries and distinctions between different types of disorders and between “normal” functioning and
‘Mental disorder” are not as robust as they can be in some medical disorders. In many ways, ‘Mental disorders’
are ‘dimensional disorders’ in which the differences are shades of grey as opposed to sharply demarcated
delineations. As an example, to meet diagnostic criteria for a Major Mood Disorder, the person must satisfy a
minimum of 5 out of 9 descriptive symptoms. The difference between a person who meets 4 out of 9 versus a
person meeting 5 symptoms is very slight. The categorical approach is largely maintained because of the
inherent difficulty in implementation of a dimensional model of diagnosis and the associated lack of utility but
there should be clear recognition and understanding of the inherent limits of a ‘categorical’ methodology of
diagnosis.
DSM-V will also build on previous editions and modify the definitions. The following framework is taken from
the proposed DSM-V criteria [American Psychiatric Association, 2010]:
Definition of a Mental Disorder
A proposed revision for the definition of a mental disorder is being addressed by select members of
the Anxiety, Obsessive-Compulsive, Posttraumatic, and Dissociative Disorders Work Group, a member
of the Mood Disorders Work Group, and additional individuals (see Stein DJ et al: What is a
Mental/Psychiatric Disorders? From DSM-IV to DSM-V; Psychological Medicine, 2010; in press)
Features
A. A behavioral or psychological syndrome or pattern that occurs in an individual
B. That reflects an underlying psychobiological dysfunction
C. The consequences of which are clinically significant distress (e.g., a painful symptom) or disability
(i.e., impairment in one or more important areas of functioning)
D. Must not be merely an expectable response to common stressors and losses (for example, the loss
of a loved one) or a culturally sanctioned response to a particular event (for example, trance states in
religious rituals)
E. That is not primarily a result of social deviance or conflicts with society
Other Considerations
F. That has diagnostic validity on the basis of various diagnostic validators (e.g., prognostic
significance, psychobiological disruption, response to treatment)
G. That has clinical utility (for example, contributes to better conceptualization of diagnoses, or to
better assessment and treatment)
H. No definition perfectly specifies precise boundaries for the concept of either “medical disorder” or
“mental/psychiatric disorder”
I. Diagnostic validators and clinical utility should help differentiate a disorder from diagnostic “nearest
neighbors”
J. When considering whether to add a mental/psychiatric condition to the nomenclature, or delete a
mental/psychiatric condition from the nomenclature, potential benefits (for example, provide better
patient care, stimulate new research) should outweigh potential harms (for example, hurt particular
individuals, be subject to misuse)
3.1.5
IV. Cautions in Court Settings
The DSM-IV is purely a clinical tool to assist physicians communicating with each other. DSM-IV was not
devised for use in forensic settings. Legal criteria for “mental disorder” or similar terms such as “nervous shock”
are very different from medical criteria and should not be confused. As an example, legal notions of “nervous
shock” are not found in any diagnostic nomenclature medically. While one could easily argue that any DSM-IV
diagnosis may well meet the threshold of a “nervous shock,” it is equally clear that courts can find evidence of a
“nervous shock” in individuals who may not meet threshold criteria for mental disorder under DSM-IV. What
is perhaps more helpful in judicial determinations of whether or not people suffer mental damages from a
traumatic event is the description of the symptoms and how they impair and/or cause disability in the
person’s life more than whether they meet the diagnostic criteria of DSM-IV.
A further caveat needs to be stressed regarding the use of the manual for diagnosis. DSM-IV is a collation of
the criteria that have been found to be effective in distinguishing mental disorders based on review of
research literature and clinical literature. It is not a diagnostic process. The manual assumes you have been
adequately clinically trained on how to diagnose mental disorder through a detailed elicitation of symptoms
through either trained interview or psychometric testing. It was never designed to be simply a “check list” in
which people ask the plaintiff whether they have symptoms in the various different criteria of DSM. While I
have certainly seen this approach utilized by ill-trained individuals, it is ineffective as a diagnostic process
and may in fact contaminate the presentation in such a way to make adequate assessment more
challenging. In virtually all criteria in DSM, the terms require further understanding and definition and may
not coincide with what the non-professional thinks the terms may mean. Only those properly trained in the
process of diagnosis of disorders and trained in utilizing the DSM-IV should use DSM-IV. I wish to note that
many “counselors” and other mental health providers simply lack the training to adequately diagnose
mental disorders or use DSM-IV. Over the years I have seen numerous examples of grievous errors made by
ill-trained persons misunderstanding or misusing DSM-IV. While this can have some embarrassing
consequences in terms of the litigation process, it can also cause much more serious damages to the plaintiff
who has been “misdiagnosed” by untrained people and told they have disorders they in fact may not have.
V.
Mental Disorders in Civil Litigation
I am taking a very narrow focus on only a few disorders that frequently are seen in the context of litigation for
tortious events. I am specifically not discussing broad areas of psychiatric nomenclature or disorder that may
well be relevant in certain cases but are not commonly seen. I am specifically going to comment on disorders
in the following groups:
1.
Anxiety Disorders;
2.
Mood Disorders;
3.
Somatoform Disorders;
4.
Disorders associated with mild traumatic brain injury.
As noted above, while these disorders are discreetly defined entities, there is significant overlap both in
symptoms and in meeting the respective criteria. Many individuals may in fact meet the criteria of multiple
disorders (e.g., an Anxiety Disorder, a Mood Disorder, and a somatoform illness). These are not mutually
exclusive and in fact more commonly than not are co morbid.
I will also comment on proposed changes to PTSD and Cognitive Disorders, Not Otherwise Stated as these
entities have such common relevance to civil litigation.
3.1.6
Anxiety Disorders, as the name implies, are those disorders where the primary presenting symptom is
anxiety. Within the Anxiety Disorders classification are multiple sub-classifications that have clear
definitions in DSM-IV. I will not describe each of the separate sub-classifications, but will focus on the
following:
1.
Acute Stress Disorder;
2.
Post-Traumatic Stress Disorder;
3.
Phobias;
4.
Generalized Anxiety Disorder.
Acute Stress Disorder and Post-Traumatic Stress Disorder are closely linked. They are the only disorders in
DSM-IV in which an actual etiological cause is specified (i.e., both disorders are in direct response to a
traumatic event). The Acute Stress Disorder defines symptoms that occur in the immediate aftermath of a
traumatic event and consist of symptoms of “dissociation” (i.e., that psychological phenomenon in which there
is a disjunction in the normal integration of identity, memory, and awareness). It is perceived in such
circumstances often to be a “defense” or response to overwhelming stress that in turn leads to significant
changes in brain chemistry and psychological functioning. There is a time limit (i.e., the symptoms must begin
within two days and not last more than four weeks). If the symptoms in fact last more than four weeks, we
diagnose Post-Traumatic Stress Disorder.
The diagnostic criteria for Post-Traumatic Stress Disorder must meet four criteria. First, the traumatic event
triggering the PTSD must not be trivial and in fact is defined as an event that has or could cause serious injury
or death. Additionally, the person must respond with intense fear, helplessness, or horror. Much of the PTSD
literature arises from studies of combat veterans and in particular, many studies have emerged since the
Vietnam War. The increased interest in PTSD was driven by the large number of Vietnam vets presenting with
symptoms of PTSD coupled with an increase in research funds available for the study of PTSD. Initially the
DSM-III criteria for PTSD were quite restrictive in terms of the trauma stressor variable, but this has been
widely broadened in DSM-IV resulting in an increased number of persons diagnosed with PTSD. This is not
without controversy and concern and may well change with DSM-V.
The other three diagnostic criteria employed are descriptive criteria for the type of symptoms commonly seen in
PTSD. The first of these can be seen as repetitive symptoms (i.e., the involuntary and distressing repetition of the
traumatic event through nightmares, flashbacks, or intrusive memories that cannot be suppressed). The third
criteria can be understood as the individual’s response to the elements of the second criteria. These include
attempts to avoid thinking, talking about or experiencing the traumatic event or, in extreme cases, the individual
experiences “psychic numbing or emotional numbing” in which they literally shut down all emotional responses
to both good and bad experiences.
The fourth criteria are symptoms of emotional dysregulation (e.g., inability to sleep, complaints of irritability,
anxiety and panic attacks, hyper vigilance and increased startle response, etc.). The latter symptoms clearly
reflect a great deal of dysregulation in brain functions and in particular, this has been seen in areas of
dysfunction in the amygdala and hippocampus in the brain with alterations in functions of neurotransmitters
in the serotonin, norepinephrine, and glutaminergic systems.
Unquestionably, PTSD does occur but there is substantial question as to the frequency and severity of
symptoms, especially in litigants. The most common cause of Post-Traumatic Stress Disorder in women is
sexual assault involving penetration with or without accompanying physical violence. The most common
cause of PTSD in men in North America is physical assault. PTSD is commonly seen in cases involving severe
natural disasters (earthquakes, fires, floods), and battle. What becomes more problematic in litigation is when
PTSD is claimed following much less frightening events (e.g., rear-end collisions or events that would not
normally trigger severe emotional responses in the average
3.1.7
individual). Symptoms of Post-Traumatic Stress Disorder are easily exaggerated or feigned. The information is
readily available on the Web and other sources to describe symptoms of PTSD making it easy for plaintiffs to
describe these to treating or evaluating mental health professionals.
There are techniques that have been refined to detect malingering in individuals complaining of symptoms of
Post-Traumatic Stress Disorder. Often, however, clinicians and even forensic evaluators may be unaware of the
methodology or simply do not utilize it to assess exaggeration of complaints. The forensic psychiatric
examination of persons claiming symptoms of Post-Traumatic Stress Disorder does demand interview style
and strategies that are not commonly utilized by clinical psychiatrists engaged in providing treatment to
individuals with PTSD.
The proposed changes to diagnosing PTSD in DSM-V may have a significant impact in civil litigation as it is
likely there will be substantially higher numbers of people meeting the criteria.
The following are the proposed criteria [APA August 20 2010]:
Posttraumatic Stress Disorder *
A. The person was exposed to one or more of the following event(s): death or threatened death, actual
or threatened serious injury, or actual or threatened sexual violation, in one or more of the following
ways: **
1.
Experiencing the event(s) him/herself
2.
Witnessing, in person, the event(s) as they occurred to others
3.
Learning that the event(s) occurred to a close relative or close friend; in such cases, the actual
or threatened death must have been violent or accidental
4.
Experiencing repeated or extreme exposure to aversive details of the event(s) (e.g., first
responders collecting body parts; police officers repeatedly exposed to details of child abuse); this does
not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is
work related.
B. Intrusion symptoms that are associated with the traumatic event(s) (that began after the traumatic
event(s)), as evidenced by 1 or more of the following:
1.
Spontaneous or cued recurrent, involuntary, and intrusive distressing memories of the
traumatic event(s). Note: In children, repetitive play may occur in which themes or aspects of the
traumatic event(s) are expressed.
2.
Recurrent distressing dreams in which the content and/or affect of the dream is related to the
event(s). Note: In children, there may be frightening dreams without recognizable content. ***
3.
Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic
event(s) were recurring (Such reactions may occur on a continuum, with the most extreme expression
being a complete loss of awareness of present surroundings.) Note: In children, trauma-specific reenactment may occur in play.
4.
Intense or prolonged psychological distress at exposure to internal or external cues that
symbolize or resemble an aspect of the traumatic event(s).
5.
Marked physiological reactions to reminders of the traumatic event(s).
C. Persistent avoidance of stimuli associated with the traumatic event(s) (that began after the
traumatic event(s)), as evidenced by efforts to avoid 1 or more of the following:
3.1.8
1.
Avoids internal reminders (thoughts, feelings, or physical sensations) that arouse recollections
of the traumatic event(s).
2.
Avoids external reminders (people, places, conversations, activities, objects, situations) that
arouse recollections of the traumatic event(s).
D. Negative alterations in cognitions and mood that are associated with the traumatic event(s) (that
began or worsened after the traumatic event(s)), as evidenced by 3 or more of the following: Note: In
children, as evidenced by 2 or more of the following:****
1.
Inability to remember an important aspect of the traumatic event(s) (typically dissociative
amnesia; not due to head injury, alcohol, or drugs).
2.
Persistent and exaggerated negative expectations about one’s self, others, or the world (e.g., “I
am bad,” “no one can be trusted,” “I’ve lost my soul forever,” “my whole nervous system is
permanently ruined,” “the world is completely dangerous”).
3.
Persistent distorted blame of self or others about the cause or consequences of the traumatic
event(s).
4.
Pervasive negative emotional state—for example: fear, horror, anger, guilt, or shame.
5.
Markedly diminished interest or participation in significant activities.
6.
Feeling of detachment or estrangement from others.
7.
Persistent inability to experience positive emotions (e.g., unable to have loving feelings,
psychic numbing).
E. Alterations in arousal and reactivity that are associated with the traumatic event(s) (that began or
worsened after the traumatic event(s)), as evidenced by 3 or more of the following: Note: In children,
as evidenced by 2 or more of the following:****
1.
Irritable or aggressive behavior
2.
Reckless or self-destructive behavior
3.
Hypervigilance
4.
Exaggerated startle response
5.
Problems with concentration
6.
Sleep disturbancefor example, difficulty falling or staying asleep, or restless sleep.
F. Duration of the disturbance (symptoms in Criteria B, C, D and E) is more than one month.
G. The disturbance causes clinically significant distress or impairment in social, occupational, or other
important areas of functioning.
H. The disturbance is not due to the direct physiological effects of a substance (e.g., medication or
alcohol) or a general medical condition (e.g., traumatic brain injury, coma).
Changes from DSM-IV include widening the criteria defining exposure to traumatic events to include hearing
about a trauma to a loved one and expanding and clarifying the clinical symptom criteria. From my experience
and review of the criteria, I would suggest that there will be substantial numbers of people involved in MVA’s
that may meet the DSM-V criteria for PTSD that currently would not satisfy the criteria.
3.1.9
VI. Other Anxiety Disorders
Post-Traumatic Stress Disorder is not the only trauma-related Anxiety Disorder. Although other Anxiety
Disorders do not specifically contain traumatic etiology in their diagnostic criteria, research literature on the
outcome of trauma documents clearly that many individuals complain of symptoms not meeting the
threshold of PTSD but meeting the criteria of other Anxiety Disorders. These have been variously called “subthreshold Post-Traumatic Stress Disorder” or “Anxiety Disorder NOS.” Other Anxiety Disorders such as
Obsessive-Compulsive Disorder may not be directly caused by traumatic events but can certainly be
significantly aggravated and/or individuals may go from mild or sub-clinical signs to full clinical ObsessiveCompulsive Disorder. Likewise, traumatic events will generally aggravate any Anxiety Disorder such as
Generalized Anxiety Disorder, Agoraphobias, etc. By nature, Anxiety Disorders tend to be highly reactive to
stresses in general and certainly to traumatic stressors.
VII. Mood Disorders
The principal symptom in Mood Disorders is alteration in mood (i.e., either depressed or elevated moods).
There are multiple subtypes of Mood Disorders including Major Depressive Episodes, Bipolar Affective
Disorder, Dysthymia, etc. Mood Disorders may be triggered by traumatic events and/or general stresses and in
particular when there are also co-occurring significant physical injuries limiting abilities to work or engage in
normal functions or activities of living.
Mood Disorders are quite common with lifetime prevalence rates at around 20% for all the Mood Disorders
combined and around 5% for more serious Mood Disorders such as Major Depressive Episodes. By nature,
Mood Disorders such as Bipolar Affective Disorder or Major Depressive Episodes are repetitive and cyclical
disorders with a tendency to reoccur. Individuals who have suffered a Major Depressive Episode have an
estimated 50% likelihood of recurrence. The rate of recurrence increases with each further episode of
depression such that by the time an individual has had three separate clear episodes of Major Depressive
Disorder there is a 90% chance of relapse. Relapse rates have obvious implications regarding issues of causation,
especially when there is a pre-existing Mood Disorder. They also have significant implications regarding future
care costs given that depressions triggered by traumatic events such as injury or psychological trauma may
lead to a recurrent illness with significant impairment and disability.
The diagnosis of Clinical Depression in individuals who have suffered significant physical trauma is often
challenging and complicated. Frequently various clinicians simply diagnose it with instruments such as the
Beck Depression Inventory, a screening test for depression that simply lists symptoms that are affirmed by
patients. This is inadequate for the general assessment of depression, but particularly so for individuals who
have significant physical injuries given the clear overlap between the effects of pain, medications, and sleep
disturbances with those of depression. As in Post-Traumatic Stress Disorder, depression is also an illness that
can be easily feigned or exaggerated. A suggestion of depression in the absence of symptoms in the medical,
psychiatric, or psychological records should be suspect. In any situation where depression is claimed there
should be review of previous medical records to rule out a pre-existing condition.
VIII. Somatoform Disorders
Somatoform Disorders are a group of disorders in which the primary presenting symptoms appear to be
physical or medical but in which the underlying cause is psychological. There are again groups of varying
disorders within the Somatoform Disorder classification that have relevance to medical legal evaluations.
3.1.10
Pain Disorder is perhaps one of the most common somatoform illnesses following traumatic injury. By definition,
a Pain Disorder is a Somatoform Disorder in which the principal presenting complaint is pain but where there is
believed to be significant psychological factors playing a role in either the onset or genesis of the pain or its
perpetuation. Three subtypes are broadly defined. The first is Pain Disorder caused by psychological factors
alone, the second is Pain Disorder caused by physical factors, and the third is Pain Disorder caused by a
combination of physical and psychological factors. A Pain Disorder caused by physical factors alone is not
considered a mental disorder whereas the other two subtypes are considered mental disorders. The most
common is the combined physical and psychological causation. Pain Disorders are commonly seen following soft
tissue injuries such as whiplash injuries where individuals continue to complain of pain long after the tissue injury
has healed.
Pain Disorders have relevance in medical legal evaluations and in litigation as a proper and thorough
evaluation of a person complaining of chronic pain may reveal significant psychological factors that can help
explain what otherwise appears to be a gross exaggeration of a complaint. The most common “psychological
factors” associated with Pain Disorder are in fact other psychiatric illnesses and in particular Mood Disorders
and Anxiety Disorders. Mood Disorders are the most common co-occurring psychiatric illness triggering Pain
Disorders. Post-Traumatic Stress Disorder coupled with physical injury has been well studied and
demonstrates high rates of increased impairment and disability as well as prolonged recoveries. Other
psychological factors other than other mental disorders have also been implicated in Pain Disorders including
distortions in thought process such as catastrophic thinking, invalidism, etc. Personality styles and/or
disorders have been significantly implicated (e.g., individuals who have obsessional orientations and then tend
to dwell and ruminate over their pain, causing them to focus on the injury and disability that in turn leads to
greater morbidity). Hosts of psychological factors have been identified as predisposing individuals to
developing Pain Disorder (e.g., childhood histories of abuse or trauma, previous mental disorders and/or
psychological dysfunction, etc.). The presence of these mental disorders and/or psychological dysfunctions
may help explain what appears to be rather unusual or aberrant behavior in individuals who otherwise would
be seen to be consciously or grossly exaggerating their pain complaints.
It should be noted that individuals with Pain Disorder truly believe that they have the pain they say they have.
In contrast to malingerers who simply put on a show with pain behavior and reported disability when formally
examined, individuals with a true Pain Disorder continue to experience pain at all times and in different
settings. This becomes readily apparent on videotape surveillance. In cases of malingering, the reported
disabilities and/or dysfunctions quickly disappear when the person does not think they are being watched.
Individuals with Pain Disorder, however, continue to demonstrate the same type of behavior (e.g., grimacing
and guarding, limited movements or activities etc., which they describe to physicians).
IX. Somatization Disorder
A Somatization Disorder is one of the somatoform illnesses in which individuals complain of multiple areas of
physical complaint without any underlying medical or organic basis. The criteria to define Somatization
Disorder are quite strict and demand a number of different areas of dysfunction including at least four pain
symptoms, two gastrointestinal symptoms, one sexual or genitourinary symptom, and at least one pseudoneurological or conversion symptom. By nature, individuals with Somatization Disorder are highly resistant to
perceiving themselves as having any psychological disturbance. They perceive their symptoms and complaints
of pain or dysfunction to be physically based and resent any suggestion otherwise. As a result, many such
patients are difficult to diagnose based on interview or cross-sectional presentation. It generally requires
review of extensive medical records over a period to document the multiple numbers of complaints and to
ensure that the medical evaluations have not demonstrated a medical or organic basis for these complaints.
3.1.11
The relevance of Somatization Disorder to civil litigation focuses heavily on issues of causation. Individuals
may certainly complain of multiple physical complaints following a traumatic event that on the surface appear
to be triggered by the accident or assault etc. If past records then demonstrate multiple somatic complaints
without organic basis after appropriate medical tests and investigations, the issue of Somatization Disorder
must be considered. It then becomes a difficult challenge to determine whether the current complaints can be
seen as being caused by the traumatic event in question or whether they are part of a pre-existing
Somatization Disorder.
X.
Conversion Disorder
A Conversion Disorder is one of the somatoform illnesses in which the presenting complaint is pseudoneurological in nature (e.g., pseudo-seizures, complaints of paresis, paralysis, or sensory loss, etc.). Conversion
Disorders are a complicated group and the research on Conversion Disorders is wanting. In many Conversion
Disorders, there are underlying conflicts or stresses precipitating the symptoms. In other situations, they may cooccur with other mental disorders such as depression. At the core of any Conversion Disorder, however, is a false
belief by the person that they have a neurological condition. The person then behaves as if he/she has the
disorder or what is thought the disorder should produce. People without sophistication present with symptoms
that are very real in their mind but not consistent with the actual neurological disorder they believe themselves
to have. As in the other somatoform illnesses, the person believes him or herself to be disabled and acts as such
at all times and in all settings. While the symptoms may not be the same all the time, there will always be some
evidence of impairment. Individuals with Conversion Disorder who are placed under surveillance will
demonstrate the same impairment but possibly not to the same extent as when being formally examined in a
medical office. Individuals who fail to demonstrate the impairment while under surveillance generally would not
be seen as having a true Conversion Disorder and malingering must be suspected.
In DSM-V there will be major revisions in the Somatoform Disorders including elimination of ‘Pain Disorder’
and ‘Somatization Disorder’ and subsuming it with other disorders into ‘Complex Somatic Symptom Disorder.’
[American Psychiatric Association Updated October-25-2010 ]
Complex Somatic Symptom Disorder (includes previous diagnoses of Somatization Disorder,
Undifferentiated Somatoform Disorder, Hypochondriasis, Pain Disorder Associated With Both
Psychological Factors and a General Medical Condition, and Pain Disorder Associated With
Psychological Factors)
To meet criteria for CSSD, criteria A, B, and C are necessary.
A. Somatic symptoms:
One or more somatic symptoms that are distressing and/or result in significant disruption in daily life.
B. Excessive thoughts, feelings, and behaviors related to these somatic symptoms or associated health
concerns: At least two of the following are required to meet this criterion:
(1) High level of health-related anxiety.
(2) Disproportionate and persistent concerns about the medical seriousness of one's symptoms.
(3) Excessive time and energy devoted to these symptoms or health concerns.*
C. Chronicity: Although any one symptom may not be continuously present, the state of being
symptomatic is chronic (at least 6 months).
3.1.12
For patients who fulfill the CSSD criteria, the following optional specifiers may be applied to a
diagnosis of CSSD where one of the following dominates the clinical presentation:
XXX.1
Predominant somatic complaints (previously, somatization disorder)
XXX.2
Predominant health anxiety (previously, hypochondriasis). If patients present solely with
health-related anxiety with minimal somatic symptoms, they may be more appropriately diagnosed as
having an anxiety disorder.
XXX.3
Predominant Pain (previously pain disorder). This classification is reserved for individuals
presenting predominantly with pain complaints who also have many of the features described under
criterion B. Patients with other presentations of pain may better fit other psychiatric diagnoses such
as adjustment disorder or psychological factors affecting a medical condition.
XI. Disorders from Mild Traumatic Brain Injury
It is not possible to adequately address issues raised by allegations of mild traumatic brain injury in this
particular article or seminar. The most common sequelae following concussions or mild traumatic brain injury
are non-specific in nature and have often been grouped together under a term “Post-Concussion Syndrome.”
These symptoms again are non-specific and consist of things such as irritability, concentration difficulties,
depressed mood, headache, dizziness or loss of balance, etc. There is a tendency for some individuals to think
because the term “Post-Concussion Syndrome” has been coined that it means a direct causal connection. The
actual clinical evidence, however, indicates that virtually all the symptoms of “Post-Concussion Syndrome” can
be seen in individuals who have never had a concussion. Commonly the same symptoms are seen in individuals
on various types of medications, in individuals with depression, and individuals who have sleep disturbances as
well as in individuals who complain of chronic pain and/or simply have been through a traumatic experience.
There is nothing pathognomonic or specific about these symptoms and the presence of such symptoms does
not mean the person has had an injury to the brain.
Mental disorders can be triggered by traumatic brain injury and are related to the severity of the traumatic
brain injury and whether or not focal findings have been evident. We generally measure severity of
concussions by a number of behavioral parameters including whether or not there has been a loss of
consciousness, the Glasgow Coma Scale score, the reported retrograde and post-traumatic amnesia, etc. The
reliability of these indices diminishes substantially with time; i.e. you want to obtain the records as soon after
the incident as possible and not rely on subjective reports weeks or months later. Obtaining ambulance crew
reports and emergency room records is vital in order to make a determination of whether or not a person had
a concussion. Concussions diagnosed weeks or months after an event are highly suspect in the absence of
evidence of concussion from the ambulance crew report or emergency room records.
Symptoms such as irritability, depressed mood, impaired concentration, dizziness, and headaches are very
common sequelae of a wide variety of problems that can occur in traumatic events. Individuals who have pain,
in particular when taking pain medications, muscle relaxants, or other medications will frequently complain of
the same symptoms. Likewise, individuals who have sleep disturbances, whether or not related to pain and/or
medications, will similarly complain of virtually the exact same symptoms. There is a significant iatrogenic risk
involved in the assessment of such individuals and in particular, when individuals complaining of these
symptoms are told that they may have had a concussion or brain injury even though there is no actual
evidence of it. Individuals told that they have a brain injury based on symptom description are understandably
distressed and in fact may start interpreting what are essentially relatively normal lapses or symptoms as being
confirmatory evidence that they have a brain dysfunction. This can indeed lead to significant morbidity and
actual disability in some persons when they lose their self-confidence and perceive themselves to be impaired.
3.1.13
At the opposite extreme, many individuals who have had a legitimate or true concussion or traumatic brain
injury was not appropriately assessed or diagnosed in the emergency room. This is particularly evident in cases
where there is impairment in communication such as with a language barrier or where the person is
intoxicated and their symptoms can be easily masked. Further, intoxicated persons are not generally welcome
in emergency rooms with the result that they may not have as thorough an evaluation as warranted. I have
seen a number of cases in which severely brain-injured people were quite literally turned away due to their
intoxication resulting in their the failure to diagnose obvious brain injuries that were later affirmed through
development of epidural or subdural hematomas or on radiological imaging.
The adequate and thorough assessment of complaints following concussions demands a very thorough
assessment including review of all the records and possibly MRI studies, neuropsychological evaluations, and
psychiatric examinations and neurological examinations.
The vast majority of individuals who have had a concussion have full recovery within weeks. In those who have
ongoing symptoms, they usually have co-occurring psychiatric illnesses, most commonly Mood Disorders and
Anxiety Disorders.
In DSM-IV, ‘Post Concussion Syndrome’ is classified as ‘Cognitive Disorder, Not Otherwise Classified.’ With
DSM-V there will be a revision to subsume it under a new category called’ Minor Neurocognitive Disorder.’
Minor Neurocognitive Disorder [APA 2010]
A. Evidence of minor cognitive decline from a previous level of performance in one or more of the
domains outlined above based on:
1. Reports by the patient or a knowledgeable informant, or observation by the clinician, of minor
levels of decline in specific abilities as outlined for the specific domains above. Typically these will
involve greater difficulty performing these tasks, or the use of compensatory strategies.
AND
2. Mild deficits on objective cognitive assessment (typically 1 to 2.0 SD below the mean [or in the
2.5th to 16th percentile] of an appropriate reference population (i.e., age, gender, education,
premorbid intellect, and culturally adjusted). When serial measurements are available, a significant
(e.g., 0.5 SD) decline from the patient’s own baseline would serve as more definitive evidence of
decline.
B. The cognitive deficits are not sufficient to interfere with independence (Instrumental Activities of
Daily Living are preserved), but greater effort and compensatory strategies may be required to
maintain independence.
C. The cognitive deficits do not occur exclusively in the context of a delirium.
D. The cognitive deficits are not wholly or primarily attributable to another Axis I disorder (e.g., Major
Depressive Disorder, Schizophrenia)
XII. Reference
Diagnostic and Statistical Manual of Mental Disorders, 4th edition, American Psychiatric Association,
Washington, DC, 2000.