Tuesday, February 18, 2014

New Ways to Prove Psych Injuries – DSM V

"Me thinks all the world mad but me and thee. And sometimes I wonder about thee." – Unknown Quaker Saying

While sometimes attributed to Robert Owen, a Welsh born social reformer of the late 18th century with a fascinating history of his own, the origins of this quote are not know with certainty so far as my limited research could discover. Nonetheless, the words, and a host of phrases of similar meaning, have a common ring and are often used as a euphemism for the fact that state of mind can be a very personal matter of perception. What to one individual seems completely crazy, may to another appear merely common practice. Most of us recognize this problem, but for the legal profession, leaving things lie with such loose definitions is impractical to say the least. Whether the stakes involve the capacity of a defendant to stand trial, the value of injuries to an abused child, or the capacity of testator to distribute of their worldly possessions by will; questions of the mind abound in the law and most, if not all, require some precision in definition.

For many years, the ability of an injured plaintiff to claim damages for mental injury related to a tort were severely limited by the understanding that traumatic mental harm, usually referred to as some variation of Post-Traumatic Stress Disorder (PTSD), required some personal exposure to the stressor in question. With the publishing of the first update to the Diagnostic and Statistical Manual (now DSM V) to come from the American Psychiatric Association in almost twenty years, proving real psychological damage to a tort victim may have just become a little more practical.

A decade of research

The DSM V, which was released in May of 2013, contains a number of dramatic changes over prior editions. I am not a psychologist or psychiatrist and so I usually leave these matters to the experts, but when changes to the most reputable guide to mental health diagnostics in existence possibly alters the nature of legal cases, I pay attention. Premised on many years of research by qualified experts in a wide range of fields, the APA’s DSM V serves as one of the definitive go-to sources for the details relating to mental health diagnoses. New in this edition is an added standard against which real mental trauma can be assessed. In prior editions of the DSM, and thus in much of the legal tradition which flows from the publication, PTSD was only recognized as a result of direct personal exposure to a traumatic stressor. New in version five is an added possible causal factor; indirect exposure to a traumatic stressor as a result of learning of the direct exposure of a close relative. In other words, in version four of the DSM; you had to be there to understand. In version five, learning that your child was there might be proof enough of your legitimate mental injury.

What this means for plaintiffs

For injured plaintiffs suing for mental health injuries, the standard of proof has potentially changed dramatically. We all recognize that a significant amount of damaging stress can result from learning that, for example, a child has been repeatedly abused at school, or that a loved one was brutally murdered in their nearby apartment. However, the legal profession has not always accepted these factors as sufficient evidence of actual mental harm. The DSM V stands to change all this. While it is not entirely clear how the law will adapt, it seems likely that many legitimately injured plaintiffs will now have at least some room to prove their damages using the new factors of the DSM V. Certainly, arguments can be made.

Not without controversy

Despite the potential good that can come from the new definition, there are voices of opposition. Some have taken the publication of a new DSM version as an opportunity to attempt to shout down the entire profession. Others have legitimate critiques of the both the association and the newest set of standards. In the end, however, most of these voices echo a deep rooted tradition of looking down on, shaming, and even discriminating against mental illness and injury. Some of this controversy will undoubtedly spill over into the legal profession in the form of defendant’s attorneys who may use such critiques to undermine the validity of damage claims. However, it seems likely that the APA, which has been steadfastly defending the legitimacy of the new definitions and the process by which they were formed, will ultimately prevail based on the strength of the underlying science and at the end of the day injured plaintiffs will have that much better a shot at being made whole after an incident.