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Recommended Reading: “Diagnosing Liability: The Legal History of Posttraumatic Stress Disorder”

Posted Apr 06 2011 11:19pm

kate-comp-for-blog In her fascinating article Diagnosing Liability: The Legal History of Posttraumatic Stress Disorder (forthcoming in the Temple Law Review and available on SSRN), Deirdre Smith describes the role that legal considerations–of eligibility for benefits and liability for harm–played in the development of the posttraumatic stress disorder diagnosis, from its earliest roots in the mid-1800s, when the term “railway spine” was coined to describe post-traumatic symptoms in survivors of train accidents, to its eventual inclusion in the Diagnostic and Statistical Manual of Mental Disorders in 1980.  Concluding that “[t]he line between law and medicine is not merely blurred in PTSD; it is absent,” Professor Smith contends that courts should consider “PTSD’s development and long-standing association with assigning legal responsibility” when determining whether to admit evidence that a criminal complainant or civil plaintiff was so diagnosed.

As Professor Smith explains, when veterans of the Vietnam War “began to seek treatment and compensation for their persistent psychiatric difficulties, there was no diagnosis that clearly captured their symptomatology.”  They were diagnosed with “‘character disorders’ or schizophrenia, either of which would rule out any ’service-connected’ disability compensation.”  It was at least in part a desire to eliminate barriers to care and compensation for these veterans that persuaded the American Psychiatric Association to include the PTSD diagnosis in the DSM-III.   And, it worked.  “With a diagnosis built around their experiences, veterans [of the Vietnam War] were indeed more successful in obtaining, not only health coverage and disability benefits, but also validation from the United States government itself that they had endured an experience that transformed a ‘normal’ person into one who was ill and in need of care and compassion.”  (This history provides an interesting context for the current controversy over the diagnosis of mild traumatic brain injury in veterans of the wars in Iraq and Afghanistan, which I discussed here .)

To be diagnosed with PTSD , individuals must meet a number of criteria.  The “A” or “stressor” criterion requires that the person being evaluated have been exposed to a traumatic event.  The remaining criteria relate to the existence, duration, and functional significance of symptoms experienced in the wake of, and presumably as a result of, the trauma.   Professor Smith focuses on “two contexts in which courts have permitted PTSD, and particularly the A criterion, to take a critical role in establishing liability: (1) to prove that a criminal complainant or civil plaintiff was subjected to a traumatic event, such as child sexual abuse; and (2) in tort cases, to establish liability for [emotional distress in the absence of physical injury].”  She argues persuasively against using the diagnosis in these ways.  To do so creates a “problem of circularity” because “[c]linicians cannot apply the PTSD diagnostic criteria without opining about the nature, extent, or even the existence of a reported or purported stressor event.”  Judicial findings that suggest otherwise notwithstanding, one cannot determine based on a given cluster or presentation of symptoms that an individual has been exposed to a particular traumatic event.

Professor Smith’s article brings to mind the important work that Joan Kaufman and colleagues have done documenting the underdiagnosis of PTSD in the child welfare system.  Dr. Kaufman’s data demonstrate the limits of a number of potential sources of information about a child’s trauma history, including the children themselves, their parents, their protective service workers, and their protective service case records.  She argues that mental health professionals should use multiple sources to build the complete trauma histories that are key to both accurate diagnosis and effective treatment.  Notably, Dr. Kaufman does not suggest that a child’s symptoms be used to divine his or her history.  To the contrary, she observes that “[w]ithout knowledge of children’s trauma experiences, trauma-related symptoms can appear to reflect manifestations of other diagnoses.”

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