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.

Is a Settlement Trust Right for You?

Most people understand that when you are injured in an accident of some kind, you may have legal options for recovering all or part of your costs from someone else. For example, if someone hits you with their car while driving recklessly, there is a good chance that you’ll get a settlement from them -- or more typically from their insurance company, or that you’ll go to court and win an award against them for your damages. However, what exactly that award or settlement looks like in practice is less well understood. Winning an award in court is only part of the process of actually getting reimbursed for your injuries; you still have to collect the money you’re owed. I’ve written before about some of the reasons that some good cases just can’t be “won” in a practical sense because there simply isn’t any option for ultimately collection on your award. In this article I want to talk about some of the reasons why you might not want to take a big check from your defendant, and what you can do instead under certain circumstances.

Annuities

Put simply an annuity is merely a series of fixed payments stretching into the future. Sometimes defendants who are held liable by the court, or who voluntarily settle a case, just don’t have enough resources to pay you outright. In these situations, a defendant might offer to make payments to you, like payments on a house, until their obligation is “paid off”. There are lots of ways these kinds of structures can be set up, but essentially you get your money in regular chunks; not all at once.

Trusts

In some situations, your defendant might have enough cash on hand to pay your claim outright, such as an insurance company, but it might be in your best interest to take payments on the award rather than a large lump sum. Sometimes this is because accepting a large one-time payment might have adverse tax consequences. In other circumstances, a plaintiff might not be competent to handle a large lump payment; such as for very young children or disabled victims. In these cases, a trust can be created to handle the assets while still ensuring that the money, or the benefits of the trust, ultimately goes to the intended plaintiff; usually in the form of periodic payments. There are a number of different types of trusts, some of which have wide room to design the specifics to match a given situation, others of which are closely regulated by state or Federal law.

Voluntary Settlement Trusts
In some situations, the successful plaintiff might not want, or be able to, handle a single large payment. Children, for example, probably don’t have the experience or resources necessary to manage several hundred thousand dollars in settlement money. Even for adults, some people just aren’t great at managing their money and would prefer a stress free regular payment instead of the hassle of large asset management choices. In these circumstances, trusts can be created, with professional asset managers, to hold the settlement for the benefit of the injured plaintiff. These trusts are usually managed with an eye towards maximizing their value and the money is often invested at a profit; the trust ultimately becomes worth more than the original settlement. Payment of benefits can be structured in a number of different ways to meet a wide variety of objectives. For example, payments could be made to a child’s guardian until the child reaches 18 (or 21 or 35) at which time the balance of the trust might be paid out in full. Many other options exist.

Special Needs Trust
In some cases, an injured accident victim was previously eligible for public services such as Medicaid or Medicare and doesn’t want to lose that eligibility as a result of coming into a large sum of money. There are a number of legitimate reasons for this concern such as the long-term sustainability of care. Whatever the reason, the law provides for trusts to be created for just this situation. Though such trusts are highly regulated, and the benefits can be paid out only under certain circumstances; the assets of such trusts will not be counted against a person with regard to public benefits eligibility. The one major requirement is that the beneficiary be disabled.

Medicare Set Aside
A variation of the special needs trusts, Medicare Set Asides are designed to help keep an individual eligible for Medicare under certain circumstances. These trusts are complex and governed by an interlocking series of both Federal and State laws, but they are sometimes the best way to preserve settlement resources for certain classes of victims.

You need a lawyer

Trusts are not to be taken lightly. They involve complex financial decisions informed by even more complex legal questions. Done improperly, trusts have the potential to dilute assets dramatically. If you think that a trust of one kind or another might benefit your situation, you absolutely should speak to a qualified attorney about your case before making any final decisions. There are pros and cons to each type of settlement, from a lump-sum payment to a trust arrangement, and you’ll want to make sure that you’re fully informed about all of your options.

Confessing on Facebook: Social Media Self-Incrimination

Most people know that it’s easy to get in trouble on social media. Maybe you forgot to set your Facebook post to private, or perhaps you bad-mouthed your employer and were suspended. While these kind of indiscretions can be painful, there is an entirely worse way to get yourself in trouble on the internet; self-incrimination for criminal activity. There are any number of extreme examples - like the drug ring in New York that Police couldn’t crack until the group set up a Facebook page under the gang’s name and posted all of their nicknames, real names, and businesses addresses online for everyone to see -- but of more concern to most of you are the simple things you can do to get yourself into legal trouble; often without even realizing you’ve given the police anything of value.

Direct Admissions

The most direct route to legal trouble through social media is the obviously incriminating admission. It should go without saying, but posting something on your social media account stating that you committed, were involved in, knew about, supported, requested, saw, had friends involved with, or were in any way connected to illegal activity can absolutely get you in trouble; and, in case you were wondering, it’s not just text posts that can earn you a police visit. Pictures, videos, particularly videos’, and even likes or faves can all implicate you in a crime.

Associations and Affiliations

Even if you don’t directly admit your role in illegal activity, your friends might. If you are social-media connected with someone, that association can draw you into a criminal investigation; either under some form of criminal association charge (gang charge) or as a potential witness. It is even possible to be convicted for perjury if you tell police or a court that you don’t know someone and it later comes out that you are friends with them on a social account.

The same warnings hold true for possessions and property. Pictures showing you in, near, or in possession of suspect property or items can be just as damning as a direct admission. That picture of you with the stolen car, or of you standing outside the restaurant that was just busted for it’s grow operation can implicate you as a suspect. In fact, sometimes all police need in order to obtain a search warrant for your building is a picture of you hanging out at a suspect location.

Location

Perhaps the most subtle way of incriminating yourself on social media is through the location awareness features of most networks. You might have a great alibi who swears up and down that you were nowhere near the warehouse on the 2nd that night, but if you “checked into” the Starbucks down the street at 9:00 pm, good luck. What’s worse, you might not even know that you’re phone is tracking your location. Some apps have auto check-in features. Google Maps, for example, can be set to share your location with friends automatically. These examples are just the tip of the iceberg. The rapidly evolving nature of social media technology means that you may not even know exactly what your phone or other device is revealing about your location.

But only my friends see my posts, right?

Think your social media activity is private; too obscure for police to notice, protected by your constitutional rights. It might be, but I wouldn’t count on it. There are many ways for investigators to get the information you post. Police might be able to obtain a search warrant to collect the records directly from your social media provider, internet provider, cell service provider, etc. Even without a warrant, they can often simply friend you, under an alias of course, or perhaps just friend one of your friends; and thereby get what they want to know. Maybe your friend caves under interrogation and turns over their account to police who then have access to all of your posts. The list goes on almost forever. The point is, there is absolutely no guarantee that what you post online will remain safe or confidential; in fact, you’re virtually guaranteed that it won’t.

That isn’t a crime…

Even if you don’t think you’ve done anything wrong, be careful about what you say online. In one situation, a girl posted a comment on Twitter about how smashed she was -- not illegal in and of itself -- and later had to face that post in court when she was arrested for a drunk driving accident that occurred less than two hours after she made her drunken post. In other cases, people post things that, while not directly incriminating, may give police enough for a warrant to search the rest of your computer, home, or other property; during which search more substantive incriminating evidence may turn up.

It is always important to watch what you say; especially when your words, photos, videos, and locations may be forever recorded in the digital world.

Liable but broke: Why some legal battles aren’t worth fighting

While it may sound cynical, lawsuits are really about money. Injured people initiate lawsuits because they need money to cover their medical bills, help them cope with disabilities and time off work, and replace lost or damaged property. In fact, a basic principle of the tort legal system is that almost all injuries can be converted into a dollar amount. Of course, attorneys also need to be paid in order to keep their practices open and continue serving clients, and finally the legal system itself costs money to operate. As a result, after all the legal questions have been addressed, all the evidence gathered, lawsuits come down to a collection effort. The amount due, whether from an insurance settlement or a court ordered judgment, must be paid or the entire effort will have been for nothing. Unfortunately, some defendants simply don’t have any money, or at least not enough to pay for the damages they caused. Even where money is available on paper, actually getting those dollars to the proper person can sometimes be challenging.

Because of these issues, one of the factors that significantly impacts the viability of a lawsuit is the predicted ability to collect on any positive outcome; in short, the question of whether or not the plaintiff can actually get paid at the end. There are many reasons why collecting on a judgment might be difficult. Sometimes even the best cases, those with clear liability on the part of the defendant and serious damages to the plaintiff, are just not viable in practice.

Indigent Defendants

The most common of these heartbreaking cases involve situations in which the defendant simply does not have any resources from which to satisfy their legal obligations to the injured plaintiff. It might be that the at-fault driver of the car that caused the pile-up only carried state-mandated minimum levels of car insurance (currently a mere $15,000/$30,000); nowhere near enough to cover a prolonged hospital stay or major surgery for even one person, let alone several passengers. Or perhaps the responsible party is simply low-income and has neither property nor a steady source of revenue from which to pay a judgment. Whatever the circumstance, the collectability of a suit may make even good legal situations into poor practical cases.

Bankruptcy

The threat of paying out on a judgment or settlement may drive a defendant to seek refuge in the bankruptcy system. In bankruptcy, many legal judgments can be discharged for mere pennies on the dollar, or sometimes for nothing at all. The bankruptcy process essentially gathers all of a defendant’s assets into a single pool and uses that pool to pay as much of the defendant’s debts as possible. In other words, if a defendant has 100,000 worth of debt and only 50,000 worth of assets (property, savings, etc.), the bankruptcy courts will use their authority to distribute that 50,000 evenly among the creditors; each of whom will collect approximately 50 cents for every dollar they were originally owed. At the end of this process, each of the debts that were addressed by the court will be considered settled in full, thereby wiping out any further capacity to collect on those debts. In many bankruptcies, the debtor has so few assets that almost nothing is paid to creditors. Where those creditors include an injured plaintiff, even the best of legal judgments may not earn the plaintiff any real payment.

Medical Providers and other outstretched hands...

In many personal injury cases, a plaintiff is left with substantial medical bills. Even where some portion of these bills is covered by health insurance, the policies frequently include provisions which give the insurer some right to at least a part of any eventual legal settlement. Known as subrogation rights, these provisions may mean that a successful plaintiff obtains a settlement or judgment, collects the money, and then has to turn around and give a large portion of those dollars to an insurance company to repay them for the cost of earlier care. Where there is no insurance, medical providers may seek payment from a legal settlement directly. In some situations, cautious defendants will even seek to pay such providers directly, in others insures may get a court order to directly pursue some of the settlement or judgment. Effective attorneys understand when and how these kinds of subrogation and payment demands will develop and can advise a prospective client about the repercussions of the case right at the outset.

Costs of trial

Even where eventual payment seems likely given the resources of the defendant in question, the costs of running a trial to the point of collection can be prohibitive. Sometimes to win a trial money must be spent; occasionally large amounts of money. To make matters worse, some cases take many years to work their way through the courts. In these situations, someone has to cover the ongoing costs of managing the case. These costs don’t just include lawyer’s fees but can also stem from the charges of experts, document fees, or the costs of obtaining evidence. While many personal injury attorneys work on a retainer system under which they get paid only at the end of a successful case, the risks involved might be simply too high to merit a substantial up-front investment.

What it all means

In the end, what most plaintiffs really care about is being made whole for their injuries; about collecting money to cover their expenses, pain, and other losses. Unfortunately, even where there is a clear legal case, even experienced attorneys may sometimes be unable to take it because of the low probability of obtaining payment or because of the high costs of trial. While most personal injury attorneys really do understand and appreciate the pain and suffering of their clients, some cases just do not have a sufficient likelihood of a positive collection effort to be worth taking. No matter how much an attorney wants to take a case, no matter how sympathetic a client’s plight, if there is no way to get paid at the end, no one comes out better off from a fruitless legal battle.