Posttraumatic Stress Disorder in Litigation: Guidelines for Forensic Assessment

Posttraumatic Stress Disorder in Litigation Guidelines for Forensic Assessment Second Edition

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Posttraumatic Stress Disorder in Litigation Guidelines for Forensic Assessment Second Edition Edited by

Robert I. Simon, M.D.

Washington, DC London, England

Note: The authors have worked to ensure that all information in this book is accurate at the time of publication and consistent with general psychiatric and medical standards, and that information concerning drug dosages, schedules, and routes of administration is accurate at the time of publication and consistent with standards set by the U. S. Food and Drug Administration and the general medical community. As medical research and practice continue to advance, however, therapeutic standards may change. Moreover, specific situations may require a specific therapeutic response not included in this book. For these reasons and because human and mechanical errors sometimes occur, we recommend that readers follow the advice of physicians directly involved in their care or the care of a member of their family. Books published by American Psychiatric Publishing, Inc., represent the views and opinions of the individual authors and do not necessarily represent the policies and opinions of APPI or the American Psychiatric Association. Copyright © 2003 American Psychiatric Publishing, Inc. ALL RIGHTS RESERVED Manufactured in the United States of America on acid-free paper 07 06 05 04 03 5 4 3 2 1 Second Edition American Psychiatric Publishing, Inc. 1400 K Street, N.W. Washington, DC 20005 www.appi.org Library of Congress Cataloging-in-Publication Data Posttraumatic stress disorder in litigation : guidelines for forensic assessment / edited by Robert I. Simon.—2nd ed. p. ; cm. Includes bibliographical references and index. ISBN 1-58562-066-1 (alk. paper) 1. Post-traumatic stress disorder—Diagnosis. 2. Post-traumatic stress disorder—Law and legislation. I. Simon, Robert I. [DNLM: 1. Stress Disorders, Post-Traumatic—psychology—United States. 2. Forensic Psychiatry—United States. 3. Jurisprudence—United States. WM 33 AA1 P75 2003] RA1152.P67 P67 2003 614¢.1—dc21 2002074564 British Library Cataloguing in Publication Data A CIP record is available from the British Library.

This book is dedicated to assisting all parties in psychic injury litigation by the provision of clinical guidelines for forensic assessment.

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Yet man is born unto trouble, as the sparks fly upward. —Job 5:7

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Contents

Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii Richard L. Goldberg, M.D.

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xv Robert I. Simon, M.D.

Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . .xvii Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xix Ralph Slovenko, L.L.B., Ph.D.

1

Persistent Reexperiences in Psychiatry and Law: Current and Future Trends for the Role of PTSD in Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Daniel W. Shuman, J.D.

2

Recent Research Findings on the Diagnosis of PTSD: Prevalence, Course, Comorbidity, and Risk . . . . . . . . . .19 Bonnie L. Green, Ph.D. Stacey I. Kaltman, Ph.D.

3

Forensic Psychiatric Assessment of PTSD Claimants . . .41 Robert I. Simon, M.D.

4

PTSD in Children and Adolescents: An Overview With Guidelines for Forensic Assessment . . . . . . . . . . .91 Diane H. Schetky, M.D.

5

Forensic Psychological Assessment in PTSD . . . . . . . .119 Terence M. Keane, Ph.D. Todd C. Buckley, Ph.D. Mark W. Miller, Ph.D.

6

Disability Determination in PTSD Litigation . . . . . . . .141 Albert M. Drukteinis, M.D., J.D.

7

PTSD in Employment Litigation . . . . . . . . . . . . . . . . . .163 Liza H. Gold, M.D.

8

Guidelines for Evaluation of Malingering in PTSD . . .187 Phillip J. Resnick, M.D.

9

Forensic Laboratory Testing for PTSD . . . . . . . . . . . . .207 Roger K. Pitman, M.D. Scott P. Orr, Ph.D.

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .225

Contributors Todd C. Buckley, Ph.D. Research Scientist, National Center for PTSD, Behavioral Science Division, VA Boston Healthcare System and Boston University School of Medicine, Boston, Massachusetts Albert M. Drukteinis, M.D., J.D. Adjunct Associate Professor of Psychiatry, Director of Forensic Psychiatry Training, Dartmouth Medical School; Director of New England Psychodiagnostics, Manchester, New Hampshire Liza H. Gold, M.D. Assistant Clinical Professor, Georgetown University School of Medicine, Washington, D.C. Richard L. Goldberg, M.D. Professor of Psychiatry, Vice President of Medical Affairs, Georgetown University Hospital, Washington, D.C. Bonnie L. Green, Ph.D. Professor of Psychiatry, Georgetown University Medical School, Washington, D.C. Stacey I. Kaltman, Ph.D. Assistant Professor of Psychiatry, Georgetown University Medical School, Washington, D.C. Terence M. Keane, Ph.D. Director, National Center for PTSD, Behavioral Science Division, VA Boston Healthcare System and Boston University School of Medicine, Boston, Massachusetts Mark W. Miller, Ph.D. Research Scientist, National Center for PTSD, Behavioral Science Division, VA Boston Healthcare System and Boston University School of Medicine, Boston, Massachusetts

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Scott P. Orr, Ph.D. Associate Professor of Psychology, Department of Psychiatry, Massachusetts General Hospital and Harvard Medical School, Boston, Massachusetts; Coordinator, Research Service, VA Medical Center, Manchester, New Hampshire Roger K. Pitman, M.D. Professor of Psychiatry, Department of Psychiatry, Massachusetts General Hospital and Harvard Medical School, Boston, Massachusetts Phillip J. Resnick, M.D. Professor of Psychiatry, School of Medicine, Case Western Reserve University; Director of Forensic Psychiatry, University Hospitals of Cleveland, Cleveland, Ohio Diane H. Schetky, M.D. Private practice of forensic psychiatry, Rockport, Maine; Clinical Professor of Psychiatry, The University of Vermont College of Medicine at Maine Medical Center, Portland, Maine Daniel W. Shuman, J.D. Professor of Law, Dedman School of Law, Southern Methodist University, Dallas, Texas Robert I. Simon, M.D. Clinical Professor of Psychiatry and Director, Program in Psychiatry and the Law, Georgetown University School of Medicine, Washington, D.C. Ralph Slovenko, L.L.B., Ph.D. Professor of Law and Psychiatry, Wayne State University Law School, Detroit, Michigan

Foreword Richard L. Goldberg, M.D.

Hundreds of millions of dollars are paid each year to psychological in-

jury claimants for injuries that include complaints of posttraumatic stress disorder (PTSD). In many instances, there are no guidelines for proper assessment of the psychological and psychiatric data involved in these claims. Thus, some seriously injured individuals are undercompensated, whereas others, who have no proximate relationship between their symptoms and behaviors and the legal cause of action, are improperly compensated. There are several problem areas in the forensic assessment of PTSD litigants. PTSD often occurs comorbidly with other psychiatric disorders, making differentiation very difficult. Preexisting traits and states may contribute to shaping PTSD. Individuals demonstrate various vulnerabilities for developing the full spectrum of signs and symptoms of this disorder. PTSD is a disorder that can be malingered. The phenomenon of PTSD and the course of illness may be very different in unique populations of individuals such as children. And, finally, the severity of disability resulting from PTSD can be difficult to quantify. Robert I. Simon, M.D., director of Georgetown University’s Program in Psychiatry and Law, has organized the PTSD in Litigation Project and obtained original contributions from national experts for the expanded second edition of Posttraumatic Stress Disorder in Litigation: Guidelines for Forensic Assessment. This work addresses a diverse audience of individuals with an interest in forensic psychiatry by shedding light on important issues relating to PTSD litigation. What has emerged are guidelines for forensic assessment that can serve both plaintiffs and defendants in litigation involving PTSD claims. I have no doubt that this book will serve as essential and comprehensive reading for all those interested in forensic psychiatry and, particularly, the growing field of psychological injury litigation.

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Preface Robert I. Simon, M.D.

W

hen the diagnosis of posttraumatic stress disorder (PTSD) was first officially created by DSM-III in 1980, few fully appreciated the impact it would have on psychic injury litigation. Since then, with the burgeoning of litigation, PTSD has become a growth industry. No diagnosis in American psychiatry has had such a profound influence on civil and criminal law. PTSD has been alleged in a wide variety of claims. Just a few examples include malpractice, personal injury, sexual harassment, child abuse, and as an insanity defense in criminal cases. Some commentators have dubbed PTSD the “black hole” of litigation, no doubt an exasperated exaggeration. PTSD lends itself to litigation. It is, by definition, incident specific, thus creating the impression that multiple causation seen in most other psychiatric disorders does not exist when PTSD is alleged. The allegations that a claimant is suffering from PTSD are relatively easy to assert but difficult to defend because the symptoms are subjective, except for behavioral reenactments of the trauma. In litigation, it is quite common to find the diagnosis of PTSD made without any attempt to follow the diagnostic criteria for this disorder. Moreover, the forensic examiner may rely totally on the subjective reporting of the claimant, failing to consult other sources of information. Cases are encountered in which the life of the claimant appears to begin with the litigation. In other words, no history before the alleged traumatic event is obtained. In assessing impairment and disability, one also encounters forensic examiners relying on personal impressions rather than established assessment methods. Thus, it is vitally important for all the legal parties involved that forensic examiners perform credible psychiatric or psychological examinations of PTSD claimants. The guidelines for evaluation of PTSD claimants proposed in this book are dedicated to that end. Favoring neither the plaintiff nor the defendant, this expanded second edition represents a concerted effort to bring direction and discipline to the assessment of PTSD in litigation. It is hoped that the second edition will continue the dialogue sparked

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by the first edition of this book among mental health professionals, the legal community, and third-party payers concerning ways to improve the psychiatric and psychological assessment of PTSD claimants. Both plaintiffs and defendants should benefit from the enlarged scope of the second edition. A credible forensic psychiatric evaluation obviously strengthens a plaintiff’s genuine PTSD claim. When a credible evaluation is performed, the defendant is also in a better position to fairly compensate a truly injured individual, while defending vigorously against the spurious claim.

Acknowledgments

The Program in Psychiatry and Law at Georgetown University School

of Medicine owes its existence to the unwavering support and encouragement of Richard L. Goldberg, M.D., professor and former chairman of the Department of Psychiatry. His foresight and leadership in helping launch the successful PTSD in Litigation Project led to the creation and publication of this book. This work is made possible by the scholarly contributions of my colleagues, who are nationally recognized experts in the forensic psychiatric, legal, and research aspects of PTSD. The quality and the singular importance of their chapters regarding PTSD in litigation are major contributions to the second edition. I hope that those who find this book useful will feel some of the same gratitude I now express in full measure for their excellent work. Many thanks go to my secretary, Ms. Polly Brody, for her able assistance in bringing forth the second edition. I want to express my personal gratitude to Robert E. Hales, M.D., editor in chief, and Claire Reinburg, former editorial director, of American Psychiatric Publishing, Inc., for their recognition of the broad relevance of the topic of PTSD in litigation and their enthusiastic support for publishing this expanded second edition.

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Introduction Ralph Slovenko, L.L.B., Ph.D.

This is the second edition of Posttraumatic Stress Disorder in Litigation:

Guidelines for Forensic Assessment. The first edition, published in 1995, was the outgrowth of a standards development conference on the forensic assessment of claimants of posttraumatic stress disorder (PTSD). The conference was held under the auspices of the Program in Psychiatry and Law at Georgetown University, under the leadership of Dr. Robert I. Simon. For this second edition, Dr. Simon returns as editor along with four of the five participants in the first edition and four new participants: Drs. Albert M. Drukteinis, Liza H. Gold, Diane H. Schetky, and Roger K. Pitman. The terrorist attack on September 11, 2001, on the World Trade Center turned posttraumatic stress disorder into a household word. Of course, what is now called PTSD has been a phenomenon since the beginning of time. In the 1666 diary of Samuel Pepys, 6 months after he survived the Great Fire of London, he wrote, “It is strange to think how to this very day I cannot sleep a night without great terrors of the fire; and this very night could not sleep to almost two in the morning through great terrors of the fire” (quoted in Daly 1983, p. 66). PTSD is the most recent of the many names, most of them in the common vernacular, that have been used to describe the mental suffering of victims of trauma. These terms include the following: neurosis following trauma, neurosis following accident, terror neurosis (schreckneurose), acute neurotic reaction, triggered neurosis, postaccident anxiety syndrome, posttraumatic hysteria, hysterical paralysis, social neurosis, personal injury neurosis, industrial neurosis, accident neurosis, occupational neurosis, litigation neurosis, justice neurosis, compensation neurosis, compensationitis, desire neurosis, unconscious malingering, retirement neurosis, pension neurosis, fate neurosis, and secondary gain neurosis. Standards are important in diagnosis, for without them the same condition may be given different labels, with the result that the clinician may overlook syndromes known to respond to other treatments and may be misleading to insurers and the courts. A diagnostic category, with its defin-

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ing elements, alerts the clinician to the possibility that a patient’s condition is unlike disorders subsumed under other categories. Questions have arisen, however, as to the validity of defining the cluster of symptoms following trauma as a distinct and unique entity. Stress or trauma has been generally presumed to increase the risk of all pathology, physical and mental. In a discussion in this book on new research and its implications for the diagnosis of PTSD, Dr. Bonnie L. Green notes the increasing evidence that exposure to multiple events is more common than previously thought and that multiple exposure increases the risk for the development of PTSD following the target event. In a following chapter, Dr. Simon elaborates on the development of guidelines for the forensic psychiatric examination of the PTSD claimant. He discusses the diagnostic criteria for PTSD and notes that with litigation burgeoning, PTSD has become a growth industry. The American Psychiatric Association’s first Diagnostic and Statistical Manual, published in 1952 (American Psychiatric Association 1952), listed stress response syndromes under the heading of “gross stress reactions.” In DSM-II, published in 1968 (American Psychiatric Association 1968), however, trauma-related disorders were conceptualized as just one example of situational disorders. The term traumatic neurosis, though not an official classification, gained currency, especially among forensic psychiatrists. Mainly at the persistence of forensic psychiatrists, DSM-III, published in 1980, listed PTSD. As the term neurosis was generally abandoned in DSM-III, it settled on PTSD as a subcategory under anxiety disorders. For the classification in DSM-III, there was intense controversy over whether PTSD was an anxiety or a dissociative disorder. For DSM-IV, published in 1994, the Advisory Subcommittee on PTSD was reportedly unanimous in classifying PTSD as a new stress response category. Under DSM-III, the cluster of symptoms that constituted PTSD included a distinctively etiological element, namely, a stressor of an extraordinary magnitude. For a diagnosis of PTSD, DSM-III specified a stressor that is “outside the range of usual human experience” and that would be “markedly distressing to almost anyone.” The manual gave examples of “common experiences” that do not qualify for PTSD: “simple bereavement, chronic illness, business losses, or marital conflict” (American Psychiatric Association 1980, p. 247). The other criteria set out in the manual were reexperiencing of the trauma in flashbacks or recollections, numbing of responsiveness, and any two symptoms from a list of predominantly anxious and depressive symptoms. The criteria of an extreme stressor and reexperiencing of the trauma do not explicitly appear in the definition of any other diagnosis in the DSM. A number of researchers have found patients who meet symptom

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criteria for PTSD without meeting the stressor criterion. Dr. Green, who served on the advisory committee for the PTSD diagnosis for DSM-III-R (American Psychiatric Association 1987) and on the DSM-IV PTSD advisory committee, reports that the most debate regarding this diagnosis centered on the definition of the stressor criterion and also on whether there should be additional diagnoses that reflect responses to traumatic events. DSM-IV omits the phrase “outside the range of usual human experience,” but like DSM-III-R it requires “an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others” (American Psychiatric Association 1994, p. 427; American Psychiatric Association 2000, p. 467). It retains the three categories of symptoms—an intrusive and vivid recall of the trauma, a numbing of feelings and a psychic dissociation from reality, and increased arousal (or hypersensitive nerves). On the basis of the duration of symptoms, DSM-IV distinguishes three subtypes of PTSD: acute, when the duration of symptoms is less than 3 months; chronic, when the symptoms last 3 months or longer; and delayed onset, when at least 6 months have passed between the traumatic event and the onset of the symptoms. The utility of the categories, however, is problematic, given that they depend on the passage of time. Waiting at least 30 days undercuts the proposition that early treatment is the most efficacious in treating PTSD. Should the therapist wait 30 days? In law, of course, it takes at least 30 days to get to the courthouse. Anyhow, symptoms not lasting more than 30 days do not make a meritorious lawsuit. The Veterans Administration (VA), since its authorization in 1980 of compensation and other benefits for PTSD, delayed onset, has received an increasingly large number of claims—mainly from Vietnam War veterans— for this disorder. Many ex-military individuals who are without insurance coverage have turned to the VA, alleging PTSD, with full awareness of the checklist of the diagnostic features of the disorder. In this situation, PTSD is often called a political diagnosis, one used in order to obtain medical care. Dallas stockbroker and Vietnam veteran B. G. Burkett, in his book Stolen Valor, provides embarrassing examples of veterans deceiving mental health professionals (Burkett and Whitley 1998). Or the latter acquiesces to the deception. He attacked the very foundation of the VA’s understanding of PTSD, the National Vietnam Veterans Readjustment Study, a 4-year project that cost $9 million to complete. That study concluded that when lifetime prevalence was added to current PTSD, more than half of male veterans and nearly half of female veterans had experienced clinically significant stress reaction symptoms. In criminal or civil cases, individuals may be highly motivated to malinger PTSD. Lawyers call them “designer” cases; forensic experts are ready to

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testify to PTSD—after all, who doesn’t suffer trauma? In civil cases, of course, the primary motivation to malinger is financial gain. In the criminal justice system, a PTSD diagnosis may serve as a basis for an insanity defense, reduction of charges, or mitigation of penalty. In particular, PTSD has been frequently claimed by Vietnam War veterans charged with crime. Evidence of PTSD may result in a holding of “not guilty by reason of insanity” or a finding of diminished capacity (Scrignar 1996; United States v. Cantu 1993). A 1983 article in the American Journal of Psychiatry by psychiatrist Landy Sparr and psychologist Loren Pankratz was apparently the first to describe the imitators of PTSD (Sparr and Pankratz 1983). The authors described five men who said they had been traumatized in the Vietnam War; three said they were former prisoners of war. In fact, none had been prisoners of war, four had never been in Vietnam, and two had never even been in the military (Sparr and Pankratz 1983). In this book, Dr. Albert Drukteinis discusses disability determinations (Chapter 6), Drs. Roger Pitman and Scott Orr discuss psychophysiological testing for PTSD (Chapter 9), Dr. Terence Keane and colleagues discuss psychological assessment of PTSD claimants (Chapter 5), and Dr. Liza Gold discusses PTSD in the workplace (Chapter 7). Dr. Diane Schetky evaluates PTSD in children and adolescents (Chapter 4)—although there is an extensive body of literature describing PTSD in adults, fewer studies of PTSD in children have been done. All these authors strive to transcend the uncertainty so routinely linked to the diagnosis of PTSD. Over the years, the law has been concerned about the potential flood of litigation if compensation were awarded in cases of negligence that result in mental distress without accompanying physical impact or injury. On the other hand, for intentional wrongdoing, as in cases of assault, defamation, false imprisonment, invasion of privacy, and malicious prosecution, the law provided a remedy for mental distress. As a New York court said in 1896 in Mitchell v. Rochester Railway Co., If the right of recovery [for mental distress in negligence cases without physical impact or injury] should be once established, it would naturally result in a flood of litigation in cases where the injury complained of may be easily feigned without detection, and where the damages must rest upon mere conjecture or speculation. The difficulty which often exists in cases of alleged physical injury, in determining whether they exist, and if so, whether they were caused by the negligent act of the defendant, would not only be greatly increased, but a wide field would be opened for fictitious or speculative claims. To establish such a doctrine would be contrary to principles of public policy.

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Since the mid-twentieth century, an increasing number of states, one by one, have removed the physical impact or injury limitation in negligence actions. The law in these states has moved from that of requiring physical impact or injury to allowing claims without insisting either that victims feared for their own safety or that they even suffered physical injury such as a heart attack or miscarriage. Claims are now allowed for mental distress arising from seeing a relative or other person injured or endangered. In all torts in which there is physical injury, damages are awarded for pain and suffering. In product liability cases, pain and suffering accounts for 50% of all damages. The awards are often absurdly high or pitifully low. Usually, juries simply award a plaintiff a multiple of the claimed medical expenses. As medical bills have mushroomed, so have payouts for pain and suffering. Large medical bills thus make out a strong case. Inflationary medical bills are to the advantage of a claimant (and the lawyer). Some reformers argue that pain-and-suffering awards should be abolished (or capped) and that only judgments based on economic loss should be allowed. In law, the term damage is used to describe the harm, and damages or recovery is used to indicate the award. Wholly aside from the question of how far the law should go in protecting against emotional disturbance, there are difficult evidentiary questions of fault, causation, and assessment of damages. The vulnerability of the victim is considered differently in each of these various elements that together constitute a tort. For fault, the risk reasonably to be perceived determines the duty of care. Foreseeability is the traditional test. Thus, a greater duty of care is imposed on a motorist when he or she sees a handicapped person or child crossing the street. When the vulnerability of a person is not reasonably apparent, he or she may fairly be assumed to be an ordinary individual. Negligence is failing to observe the care of a reasonable person in like circumstances. Instead of the standard of the reasonable person, the standard may be prescribed in a statute, as, for example, safety legislation. For tort liability, not only must there be damage (injury), but also it must have been caused by the defendant’s fault. In causation, the law looks for proximate cause. There is no litmus test for determining proximity, and there may be more than one proximate cause. Some courts use a foreseeability test, but usually the test is the natural and probable cause-and-effect relationship. In every case, the question arises as to what extent wrongdoers should have to answer for the consequences that their conduct has helped to produce. Some limitation must be placed on responsibility because the consequences of an act theoretically reach into infinity. A tugboat that hits a bridge may cause houses miles away to vibrate and collapse. Is there responsibility?

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Is the damage too remote? The connection between the wrongdoing and the harm done must be reasonable, the courts say. Also, in assessing causation, there is the well-known expression, “The tortfeasor must take his victim as he finds him,” so that peculiar vulnerability to harm does not excuse. However, it may be argued, sometimes successfully, that “the straw that broke the camel’s back” is not a proximate cause. So-called delayed PTSD may be the result of a cumulation of events resulting in a crisis. (In law, the time period in the statute of limitations begins when the injury is “made known.”) The proximate cause may arguably be either the earlier or a later event. The term proximate has connotations of nearness in time, but that is not its meaning in law. Legal cause and responsible cause are more appropriate terms, but those terms also leave much room for vagaries in decision making. In an increasing number of cases, the courts are saying that the determination of proximate cause is the province of judges not juries. In the DSM, PTSD is taken as the prototypical environmentally caused disorder, as it allegedly arises only in the aftermath of an environmental insult. DSM-III suggested that the symptoms of PTSD emerge from an event, a stressor that would evoke “significant symptoms of distress in most people” (American Psychiatric Association 1980, p. 236); emphasis added). DSM-IV omitted the phrase “outside the range of usual human experience,” but like DSM-III, it required “an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others” (American Psychiatric Association 1994, p. 427). In a review of the world literature on response to trauma, it was concluded that “toxic events are not reliably powerful in yielding a chronic, event-focused clinical disorder such as PTSD” (Bowman 1997). Indeed, most people do not respond to toxic events with persistent symptoms that would rise to the level of a diagnosable disorder like PTSD. Individuals who do are characterized by preexisting factors such as long-standing personality traits of emotionality and personal vulnerability, suggesting that their preevent factors contribute more to serious distress disorders than the toxic event (Pankratz 2001). Yet PTSD is a favored diagnosis by plaintiffs because the DSM sets it out as incident specific. It tends to rule out other factors important to the determination of causation. Thus, a plaintiff can argue that all of his or her psychological problems issue from the alleged traumatic event and not from myriad other sources encountered in life. A diagnosis of depression, on the other hand, opens the issue of causation to many factors other than the stated cause of action. In days gone by, when the term traumatic neurosis was used, psychiatrists distinguished between a true traumatic neurosis, in which a healthy

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individual suffers emotional distress as a result of an overwhelming stress, and a triggered neurosis, in which a vulnerable individual decompensates as a result of stress that would be quite inconsequential to a healthy individual. Theoretically, in law, however, the distinction is one without a difference, but in the case of a triggered neurosis, the argument is made that the proximate cause is not a triggering event. To be sure, trauma is a relative concept—stimulus in relation to the coping ability of an individual—yet when a stressor is not outside the range of common experience, as suggested in DSM-III-R, the evidence tends to support a finding that it is not the proximate cause. Also, when a stressor is not outside the range of common experience, it arouses suspicions of malingering or raises the issue of individual susceptibility and psychiatric comorbidity. Widespread job instability has led to mounting disability claims. At the same time, it has led to a tightening of the concept of causation in workers’ compensation. The Michigan Court of Appeals in 1991 ruled that mental disabilities are compensable only if “contributed to or aggravated or accelerated by the employment in a significant manner” and they arise “out of actual events of employment, not unfounded perceptions thereof” (Sobh v. Frederick & Herrud 1991). In the determination of causation under workers’ compensation, the Oregon Supreme Court observed the following: It seems that no problem in recent years has given courts and commissioners administering workers’ compensation more difficulty than onthe-job mental stress which results in either emotional or physical illness. The causal relationship between employment stress and a resulting mental or emotional disorder presents one of the most complex issues in workers’ compensation law. (McGarrah v. SAIF 1983, p. 161)

Teachers in public schools feel as though they are in combat. School teachers in Detroit (and elsewhere) say, “Why all the fuss about the PTSD of Vietnam War veterans? What about us?” In denying a teacher’s claim, the Michigan Court of Appeals concluded the following: Workers’ compensation benefits are not available just because a plaintiff established the existence of some incident or “event” which is upsetting to the plaintiff. There must be an injury. The Legislature has required the injury to be based upon “actual events” of employment. . . . This requirement would become meaningless if the ordinary, daily conditions of minutiae of employment were sufficient to support a mental disability claim. Thus, ordinary stresses of employment (existing in probably all jobs) are not sufficient to establish the required injury. . . . [The] plaintiff’s allegations involved general stressful conditions that are common to all teachers. (Boyle v. Detroit Board of Education 1992, p. 260)

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In assessing damages, testimony of the condition of the claimant before and after the occurrence of the stressor is crucial to the case. (Punitive damages are another matter.) The forensic examiners are called on to make a long-term assessment of impairment. The before-and-after testimony dwells on differences in personality, character traits, and behavior, such as outgoing vs. withdrawn, loving vs. indifferent, mild-mannered vs. abusive, reliable vs. erratic, and clean vs. slovenly. When preexisting psychological problems are aggravated, accelerated, or reactivated by trauma, a court may have qualms about ascribing the full injury to the defendant. As a matter of law, a jury is to discount what would have happened anyhow. Law professors like to discuss the case of Steinhauser v. Hertz Corp. (1970), a case that was settled on remand to the trial court for proper jury instruction. In this case, the plaintiff, a 14-year-old girl, was a passenger in a car that was sideswiped. She and the other occupants in the car suffered no bodily injury, but within a few minutes after the accident, she began to behave in an unusual way. Her parents observed her to be “glassy-eyed,” “upset,” “highly agitated,” “nervous,” and “disturbed.” In the following days, things became steadily worse. She thought that she was being attacked and that knives, guns, and bullets were coming through the windows. She was hostile toward her parents and assaulted them. Becoming depressed, she attempted suicide. After observation and treatment in several hospitals, she was given a diagnosis of schizophrenic reaction, acute undifferentiated. In later treatment, she was given the diagnosis of chronic schizophrenic reaction. Testimony at the trial was that the accident was “the precipitating cause” of her serious mental illness. According to the testimony, she had a “prepsychotic” personality prior to the accident but might nonetheless have been able to lead a normal life. The accident was “that last straw that breaks the camel’s back,” said one of the experts. As the recital makes evident, two issues were before the jury: 1) the existence of a causal relationship between a rather slight accident and the plaintiff’s undoubtedly serious illness, and 2) the assessment of harm. On the assessment of harm, the United States Second Circuit Court of Appeals specified what the jury should consider: Although the fact that [the plaintiff] had latent psychotic tendencies would not defeat recovery if the accident was a precipitating cause of schizophrenia, this may have a significant bearing on the amount of damages. The defendants are entitled to explore the probability that the [plaintiff] might have developed schizophrenia in any event. While the evidence does not demonstrate that [the plaintiff] already had the disease, it does suggest that she was a good prospect. . . . [We have said] that if a defendant “succeeds in establishing that the plaintiff’s preexisting condition was bound

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to worsen . . . an appropriate discount should be made for the damages that would have been suffered even in the absence of the defendant’s negligence . . .” . . . It is no answer that exact prediction of [the plaintiff’s] future apart from the accident is difficult or even impossible. However taxing such a problem may be for men who have devoted their lives to psychiatry, it is one for which a jury is ideally suited. (Steinhauser v. Hertz Corp. 1970, pp. 1173–1174)

Whatever the accuracy of the diagnosis, be it schizophrenia or PTSD, the question is what difference does a diagnosis make when before-andafter determines the measure of damage? A diagnosis is not necessary to establish what the claimant was able to do before and after the trauma. Lay witnesses can attest to that. Yet the DSM is state of the art, and the forensic expert is invariably asked to label the claimant’s suffering. Theoretically, a diagnosis informs about prognosis. In general, claimants have an obligation to minimize their damages. In some cases PTSD symptoms diminish over time, in association with many differing factors, whereas in other cases they do not diminish and in fact may worsen in the absence of treatment. A wide variety of factors may affect the course of PTSD, including coping mechanisms, social support, type and duration of stress, family functioning, personality, other disorders, and so on. Expert testimony is essential regarding the prognosis for alleviation of a claimant’s symptoms. The expert is called on to describe the various treatment alternatives and give indications of their likely results. A claimant has an obligation to minimize injury. Otherwise, the award of damages will be diminished. Dr. Simon notes that a variety of effective psychological and psychopharmacological treatments are available for individuals who have PTSD. There is divided opinion on the admissibility of syndrome evidence in criminal or civil cases to establish that a particular traumatic event or stressor actually occurred (Slovenko 1984). Is the credibility of a victim claiming rape, for example, supported by evidence matching her trauma with the trauma pattern of other rape victims? Is multiple personality (i.e., dissociative identity disorder) the result of child abuse? Is a single posttraumatic stress syndrome the pathway of a stressor? Do all victims of a particular stressor react in the same manner? What is the relation between symptoms and stressor? The presence of PTSD symptoms presumes, by definition, an antecedent traumatic stressor, but, as Dr. Simon points out in Chapter 3, arguing backward from the claimant’s PTSD to specific causes or events as a defense in criminal cases, or as a basis for a claim for damages in tort cases, is problematic. Various syndromes—rape trauma, battered spouse, child sexual abuse, and so forth—are not currently enumerated as separate syndromes or as sub-

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categories of PTSD in DSM, but forensic experts testify about them in court. Does a rape trauma syndrome, for example, accurately describe the behavior of women who have been sexually assaulted? Does that syndrome differ depending on the age, socioeconomic status, or other characteristics of the woman? Law professor Daniel W. Shuman has argued that psychiatry has an obligation to assist the courts in accurately evaluating the various syndromes. Otherwise, he says, psychiatry may well suffer a loss of credibility and the judicial system a loss of accuracy (Shuman 1989). In his chapter in this book (Chapter 1), Shuman discusses current and future trends in PTSD litigation. In past times, to provide relief from PTSD, the healers were wise elders, shamans, and community healers. In addition to rituals and uplifting ceremonies, they resorted to plants and herbs. Today, when a catastrophe occurs, practitioners who call themselves “debriefers” rush to the scene. They see their task as getting victims to express their feelings about the event—to cry and relive it as vividly as they can. These and other issues are richly discussed in this second edition. This book will be of much interest to a multidisciplinary audience.

References American Psychiatric Association: Diagnostic and Statistical Manual: Mental Disorders. Washington, DC, American Psychiatric Association, 1952 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 2nd Edition. Washington, DC, American Psychiatric Association, 1968 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 3rd Edition. Washington, DC, American Psychiatric Association, 1980 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 3rd Edition, Revised. Washington, DC, American Psychiatric Association, 1987 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition. Washington, DC, American Psychiatric Association, 1994 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 Bowman M: Individual Differences in Posttraumatic Response. Mahwah, NJ, Lawrence Erlbaum, 1997 Boyle v Detroit Board of Education, 197 Mich App 255 (1992) Burkett BG, Whitley G: Stolen Valor: How the Vietnam Generation Was Robbed of Its Heroes and Its History. Dallas, TX, Verity Press, 1998

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Daly RJ: Samuel Pepys and posttraumatic stress disorder. Br J Psychiatry 143:64– 68, 1983 McGarrah v SAIF, 296 Or 145, 675 P2d 159 (1983) Mitchell v Rochester Railway Co., 151 NY 107, 45 NE 354 (1896) Pankratz LD: Posttraumatic stress disorder. FMS Foundation Newsletter 10(6):8– 9, 2001 Scrignar CB: Post-Traumatic Stress Disorder: Diagnosis, Treatment, and Legal Issues, 3rd Edition. New Orleans, LA, Bruno Press, 1996 Shuman DW: The Diagnostic and Statistical Manual of Mental Disorders in the courts. Bull Am Acad Psychiatry Law 17:25–32, 1989 Slovenko R: Syndrome evidence in establishing a stressor. Journal of Psychiatry and Law 12:443–467, 1984 Sobh v Frederick & Herrud, 189 Mich App 24, 472 NW2d 8 (1991) Sparr L, Pankratz LD: Fictitious posttraumatic stress disorder. Am J Psychiatry 140:1016–1019, 1983 Steinhauser v. Hertz Corp, 421 F2d 1169 (2d Cir 1970) United States v Cantu, 12 F3d 1506 (9th Cir 1993)

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C H A P T E R

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Persistent Reexperiences in Psychiatry and Law Current and Future Trends for the Role of PTSD in Litigation Daniel W. Shuman, J.D.

In the days after the terrorist attacks, Representative Jim McDermott of Washington, the only psychiatrist in Congress, could not get his mind off the image of the plane crashing into the World Trade Center...and recognized the symptoms as posttraumatic stress disorder, a condition he first treated among Vietnam veterans as a psychiatrist in the Navy. Rosenbaum 2001, p. 16

I am curiously weak, weak as if recovering from a long illness. I begin to feel it more in my head. I sleep well and eat well; but I write a half a dozen words and turn faint and sick. —Charles Dickens’s reaction to the crash of a train in which he was traveling that killed and injured numerous other passengers but left Dickens without physical injury (quoted in Mendelson 1987, p. 48)

Diagnostic nomenclature and the law’s willingness to consider evidence

of psychiatric disorders shape the role of posttraumatic stress disorder (PTSD) in litigation. What is a compensable legal injury or an exculpating

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mental condition, and what evidence is admissible to support these psychiatrically based claims or defenses? As stated by Mendelson (1987), “One of the enduring problems in the practice of forensic psychiatry is that of nomenclature” (p. 45). The concept encapsulated by PTSD is not new. What we now think of as PTSD has been discussed in the psychiatric literature under various names for more than 100 years (Modlin 1985). Why, then, has the concept encapsulated by PTSD only recently come to play a role in litigation?

Past Limits to Posttraumatic Claims The diagnostic nomenclature of PTSD serves as a compelling example of the power of language and its role in shaping the course of history (White 1985). Consider some of the late-nineteenth-century and early-twentieth-century diagnostic nomenclature addressing what would now be regarded as PTSD, such as railway spine (Erichsen 1882) and shell shock (Mott 1917). That diagnostic nomenclature was narrow in scope and did not threaten to sweep much within its grasp. Only the self-contained universe of railroad passengers or combat veterans could fit within the diagnostic nomenclature. And the nomenclature implied a self-limiting disorder as well as a degree of blameworthiness or preexisting weakness of the victim that would likely limit the sympathy of a judge or jury. The early language of psychiatry did not facilitate claims or defenses grounded in what is now diagnosed as PTSD. The legal rules governing the admissibility of evidence through the first half of the twentieth century also served as a powerful limit on claims or defenses grounded in what is now diagnosed as PTSD. The rules of evidence were biased against the admissibility of expert testimony and favorable toward lay witness testimony. The role of the jury was to resolve cases on the basis of a factual presentation by lay witnesses, drawing any inferences or reaching any opinions necessary to the verdict guided by its own insights whenever possible. Expert testimony was admissible only when the evidence was thought to be beyond the capacity of the judge or jury to understand without expert assistance (Shuman 2001). Not only were courts reluctant to admit expert testimony, but only those proffered experts who based their testimony on theories generally accepted by the professions from which their expertise was derived could offer opinions as experts. Thus, innovative or expansive interpretation of the diagnostic nomenclature by an individual psychiatrist would likely not receive a sympathetic judicial reception. Tort damage law through the first half of the twentieth century also proved inhospitable to claims for what is now diagnosed as PTSD. Al-

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though recovery was available under tort law for negligently caused tangible physical injuries such as broken bones, lost wages, and damaged property, recovery for nontangible, nonphysical harm alone was generally not available. As noted in an 1861 decision, “Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone” (Lynch v. Knight 1861, p. 598). Tort law posited, implicitly, a mind–body duality that recognized physical and mental harm as separate and distinct. Physical damage claims were thought to involve real injury and to be subject to objective diagnosis, but mental damage claims were not. Courts feared that fraud and malingering would not permit them to adjudicate damage claims for nonphysical harm accurately, given the absence of accurate objective diagnostic criteria they assumed to exist for physical injury. Courts also feared that if they permitted recovery for nonphysical harm, they would be flooded with claims for bad manners and other minor annoyances that would be impracticable to administer. Moreover, courts fashioned rules on the assumption that normal people were thick-skinned and did not suffer injury from fright (Victorian Railway Commissioners v. Coultas 1888). Feminist scholars explain this judicial reaction as valuing property and physical security, traditionally managed and owned by men, more highly than human relationships and emotional security, traditionally managed by women (Chamallas and Kerber 1990). This duality is interesting not only in light of current thinking in psychiatry that rejects a rigid mind–body duality (Goodman 1991; Kendler 2001) but also in terms of the brain pathology model explanation for disordered behavior that existed when these rules were formulated in the nineteenth century. Consequently, courts fashioned rules that limited recovery for nonphysical harm. These rules were hardly consistent, however. Courts permitted recovery for nonphysical harm in cases of intentional torts such as assault, battery, and false imprisonment, because the number of these cases was thought to be smaller and the culpability of the defendant was regarded as greater than in the case of negligence, although the problems of valuation are no less difficult in these cases (Magruder 1936; Smith 1944). And courts later permitted recovery in cases of negligence when the nonphysical harm was parasitic to the physical impact or injury—for example, pain and suffering that resulted from physical harm caused by the defendant’s negligence. This linkage of nonphysical harm to physical harm was thought to provide some assurance that claims were not wholly fabricated or resulted from “ordinary commonsense reasoning” that physical trauma may have an emotional consequence (Perlin 1991). Claims for injuries now diagnosed as PTSD, standing alone, however, were not then welcome in the courts.

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In the second half of the nineteenth and first half of the twentieth century, the criminal law was also inhospitable to exculpatory evidence of the defendant’s mental condition being grounded in what is now diagnosed as PTSD. An insanity defense then existed. To meet the requirements of that defense the then-ubiquitous M’Naghten test, the accused had to be “laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he knew it, that he did not know he was doing what was wrong” (M’Naghten’s Case 1843). Satisfaction of M’Naghten would require not only that “shell shock” or “railway spine” be regarded as a disease of the mind but also that the condition would be found to result in a cognitive impairment that restricted the person’s knowledge of the nature and quality of his or her act or ability to know that it was wrong. M’Naghten imposed a daunting threshold for those seeking exculpation for crimes committed while suffering from conditions such as “shell shock” or “railway spine.”

DSM and Judicial Rules Revisions: Expansion of Litigation Changes in the legal rules in the 1960s and 1970s and recognition of the diagnostic nomenclature for PTSD in DSM-III (American Psychiatric Association 1980) in 1980 heralded a new generation of litigation.

DSM and the PTSD Diagnosis The law demands a nexus between cause and effect and is particularly suspicious about this nexus in the case of mental or emotional claims or defenses. PTSD posits a causal relationship between traumatic events and psychiatric disorder, seemingly offering to answer the law’s demand for a causal linkage. And PTSD sweeps much within its grasp. From combat stress (Atkinson et al. 1982) to sexual assault (Alphonso v. Charity Hospital 1982), natural and man-made disasters (Newman 1976), automobile accidents (Johnson v. May 1992), and industrial accidents (Carter v. General Motors 1961), the stressors that could trigger PTSD and the classes of victims who could suffer PTSD from those stressors dramatically expanded the horizons of civil and criminal litigation. Because the inclusion of PTSD in DSM-III was based on a consensus that “the stressor was the primary etiologic factor determining the symptoms that people develop in the setting of extreme adversity” (McFarlane 1990, p. 4) and does not imply a selflimiting disorder, in addition to appearing to provide a causal linkage to the defendant’s wrongful conduct, PTSD implies an absence of blame or fault

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on the part of the victim that is more likely to gain the sympathy of a judge or jury. The current language of psychiatry also facilitates claims and defenses grounded in PTSD. The expansive reach of PTSD in DSM-III (and DSM-III-R [American Psychiatric Association 1987]) and, subsequently, DSM-IV (American Psychiatric Association 1994) set in motion another facet of litigation. Using the same diagnostic nomenclature for the responses of an expanded group of people to an expanded panoply of stressors raises the question of whether all who suffer PTSD should be expected to respond similarly. Because neither DSM-III nor its successors, DSM-IV and the recently published DSM-IV-TR (American Psychiatric Association 2000), purport to distinguish the symptoms of PTSD in women who have been battered by a spouse (Walker 1976), for example, from the symptoms of PTSD in men who have witnessed relatives killed in a building collapse (Wilkinson 1983), a cottage industry of experts has developed to offer their services to litigants on these distinctions (Shuman 1989). And because the ability to convey technical information in a nontechnical fashion and to reach firm conclusions is often an important factor in jurors’ evaluations of the believability of expert testimony (Champagne et al. 1991), there is reason to doubt that the various syndromes accepted in court purporting to distinguish the symptoms of different categories of PTSD are invariably supported by methodologically sound research. The elimination in DSM-IV of the requirement that the stressor be outside the range of usual human experience provides an example of changes in legal claims precipitated by changes in the DSM. In the arena of workers’ compensation claims, DSM’s diagnostic language requiring exposure to a traumatic event in which a person witnessed death or serious injury and responded with intense fear or helplessness has broadened the field of workers’ compensation claimants. The impact of this change in the DSM on workers like law enforcement or firefighting personnel whose job requirements place them at daily risk of witnessing death or serious injury has resulted in many courts, fearing a flood of PTSD-grounded claims, raising threshold requirements (Anderson 2000).

Judicial Threshold Coincidental with the expansion of the diagnostic nomenclature, the judicial threshold for the admission of this evidence was lowered with the enactment of the Federal Rules of Evidence in 1974 and subsequently adopted state rules patterned after them. The federal rules reflected the opinion of many legal scholars that the previous common law rules were overly restrictive and that this restrictiveness excluded a great deal of helpful testimony. Rather

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than risk exclusion of potentially helpful evidence, a shift in the rules of evidence occurred, which resulted in a bias in favor of admission of relevant evidence, absent countervailing considerations, leaving it to the jurors to choose between competing experts (Barefoot v. Estelle 1983). At the same time, relevance, rather than general acceptance in the relevant professional community, gained support as the threshold for scrutinizing scientific evidence. Thus, expansive or creative interpretation of the diagnostic nomenclature by an individual psychiatrist was more likely to receive a sympathetic judicial reception. Another shift occurred, however, in the admissibility of scientific evidence, with a 1993 Supreme Court decision that requires trial judges to act as “gatekeepers” by independently assessing the validity of scientific evidence (Daubert v. Merrell Dow Pharmaceuticals 1993). The shift resulted in granting broad discretion to judges to determine not only the relevance but also the reliability of expert evidence (General Electric Co. v. Joiner 1997). Although not all state courts have adopted the federal standard, the emergence of Daubert reflects a broadly based demand for judges to play a greater role as gatekeepers in the admissibility of expert testimony. Daubert imposes two requirements for the admissibility of expert testimony in addition to establishing that the expert is qualified. First, the expert must testify as to reliable knowledge (Kumho Tire Co. v. Carmichael 1999). And, second, the expert’s testimony must be relevant to an issue before the trier of fact (Daubert v. Merrell Dow Pharmaceuticals 1993). The trial judge, as gatekeeper, must determine whether the expert’s opinions or inferences are grounded in knowledge derived by reliable methods and whether the testimony is relevant for the purpose for which it is offered. Daubert’s relevance and reliability standard raises interesting questions for the forensic use of the DSM generally and the diagnosis of PTSD particularly. Although the extensive research underlying the DSM’s diagnostic categories might seem to insulate it from a successful challenge on reliability grounds, abandonment of the Frye “general acceptance” test1 makes clear that the DSM or PTSD’s general acceptance in the mental health community provides no grant of immunity from judicial scrutiny on reli-

1

“Just when a scientific principle or discovery crosses the line between experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs” (Frye v. United States 1923).

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ability grounds. When faced with a admissibility challenge, courts are not precluded from critically examining the research that underlies the recognition of the diagnostic category for PTSD as well as the process that led to that categorical decision. In addition, Daubert’s relevance requirement presents a perplexing problem for any forensic use of a DSM diagnosis. The DSM’s cautionary statement serves as a reminder that the diagnostic criteria were designed to assist clinicians and researchers to communicate and that there is an “imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis” (American Psychiatric Association 2000, p. xxxiii). Both Daubert and the DSM make clear that it is not appropriate to assume that a psychiatric diagnosis is relevant to, let alone dispositive of, an issue in a case. In each case in which evidence of PTSD is offered, Daubert requires an assessment of the relevance of a diagnosis of PTSD to the issues presented in the case. How will a psychiatric label assist the fact finder (Fed. R. Evid. 702); will its helpfulness be outweighed by the danger of confusing or misleading the fact finder (Fed. R. Evid. 403)? Thus, even if evidence of PTSD is reliable, unless it is also relevant and helpful (i.e., the diagnosis informs the legal question on which it is offered), evidence of a PTSD diagnosis or any other psychiatric diagnosis, should not be permitted.

Current Scrutiny of PTSD Claims and Defenses Given the perception of increased frequency of PTSD claims and defenses, as well as increased challenges to the expert testimony presented in support of these claims, there is heightened criticism of PTSD claims and defenses. Recent commentary evidences a growing wariness of the forensic abuse of PTSD (Brown 1996). Because the criteria are set forth in the DSM and are seemingly capable of manipulation, some critics fear fraud or malingering (Speir 1989). Critics argue that PTSD “is the diagnosis for an age of disenchantment” (Summerfield 2001, p. 96). This concern stems, in part, from the fact that the DSM-IV radically expanded the criteria for what is sufficient for a traumatic stressor. More and more events that were once regarded as normal are now classified as traumatic events that satisfy the diagnostic criteria for PTSD. Also, there is a concern that society now finds utility in being victims rather than survivors of such events (Summerfield 2001).

Civil Cases Concurrently, tort rules governing recovery for nonphysical harm have become more malleable. Increasingly, proximate cause, rather than physical

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impact or injury, has defined the limits on recovery for nonphysical harm (Dillon v. Legg 1968). Proximate cause is an enigmatic phrase that is most often thought to turn on foreseeability. Liability is limited to the foreseeable consequences that flow from an act (Palsgraf v. Long Island R.R. 1928). The defendant is legally responsible only for the foreseeable consequences that his or her actions have caused. Although foreseeability is a prospective test to be applied from the perspective of the defendant at the time of the injury-producing conduct, its application at trial is affected by hindsight bias. Research on hindsight bias by cognitive psychologists reveals that people who know the outcome of an event view that outcome as more likely than people who have been asked to predict the occurrence without knowledge of its outcome (Fischoff 1975). Thus, for example, jurors asked to assess whether it is foreseeable that leaving a vacant apartment unsecured increases the likelihood that a young girl in the neighborhood will be raped by an assailant using the apartment as a secluded location are more likely to view that occurrence as a foreseeable risk having been told how the rape occurred (Nixon v. Mr. Property Management Co. 1983). Civil trials are rarely bifurcated, and jurors are typically informed of the outcome of the event whose foreseeability they have been asked to predict. Accordingly, whereas proximate cause might initially have been considered as a limitation on the consequences of an event to which liability might attach, hindsight bias may result in it having the opposite effect (Wexler and Schopp 1991). Although the law increasingly permits recovery for mental and emotional harm suffered in the absence of physical impact or injury, physical harm is still a precondition for seeking damages for mental or emotional distress in some settings. With reliance on research addressing biological and neurological changes in the body linked with severe trauma (Caldwell 1995; Fukuda et al. 2000; Yehuda 1997), PTSD has been used to satisfy the physical harm requirement for a claim for mental or emotional injury. For example, under the Warsaw Convention, compensation for mental or emotional harm sustained in international commercial aviation is available only if it arises from a bodily injury. In Weaver v. Delta Airlines, Inc. (1999), the court concluded that an airline passenger’s PTSD, resulting from an emergency landing in which she suffered no physical injury, was nonetheless “bodily injury” for the purposes of the Warsaw Convention because she experienced biochemical reactions that had a physical impact on her brain and neurological system. Other courts struggling with this issue have refused to disturb this dichotomy. For example, in Erie Ins. Co. v. Favor (1998), the court held that the language of an automobile liability insurance limiting uninsured motorist coverage to property damage and bodily injury did not cover the insured’s claim for PTSD suffered when a car driven by an un-

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known person crashed into the insured’s living room. Reflecting how research has transformed this debate, a dissenting judge in Erie noted “I believe that the traditional mind/body dichotomy is no longer tenable. The human brain is part of the human body. The human brain can be negatively affected without being physically struck. Recent studies of brain activity, using more sophisticated instruments and measuring devices than previously available, have demonstrated that traumatic events cause physical changes in the brain” (Erie Ins. Co. v. Favor 1998, p. 973).

Criminal Cases Just as civil plaintiffs have asserted claims for injuries diagnosed as PTSD, criminal defendants have asserted defenses based on PTSD in support of an insanity plea, diminished capacity defense, and self-defense. While many of the defendants relying on PTSD are combat veterans, others include battered women or rape victims. As early as 1978, a Vietnam veteran charged with the murder of a stranger succeeded in presenting evidence of his PTSD to convince the jury to reduce the offense, accepting his account that he was experiencing a rocket attack in Vietnam at the time of the shooting (Commonwealth v. Mulcahy 1978). The use of PTSD by criminal defendants gained ground when the American Psychiatric Association incorporated PTSD in DSM-III in 1980. Following this recognition, criminal defendants found a new basis for justifying or diminishing their blameworthiness for criminal acts. For example, in 1981, a Louisiana jury found a Marine combat veteran legally insane, concluding that he suffered a flashback following a stressful marital breakup when he shot and killed his brother-in-law (State v. Heads 1981). The jury was apparently convinced that the defendant’s flashback caused him to revert to combatlike behavior that made it impossible for him to distinguish right from wrong (Davidson 1988). Although not contained in the DSM nomenclature, battered woman syndrome, which purports to describe PTSD symptoms unique to women who have been repeatedly battered by their domestic partners, is also used in criminal litigation when the victim of battering kills her longtime abuser. There has been a vigorous debate about the scientific rigor of the research underlying battered woman syndrome; however, most courts have accepted evidence of this syndrome (Shuman 2000). Battered woman syndrome is used to put the defendant’s behavior in context to support a self-defense claim and to show the reasonableness of the defendant’s fear of serious bodily harm (State v. Kelly 1984). According to a landmark case for battered woman syndrome, expert testimony could serve at least two basic functions: to enhance the defendant’s credibility and to support the defendant’s testimony

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that the victim’s actions provoked a state of fear that led her to believe she was in imminent danger and that she thus responded in self-defense (IbnTamas v. United States 1979). The use of PTSD in the criminal law has not been restricted to defendants. Prosecutors have successfully offered evidence of PTSD to enhance the believability of a crime victim’s testimony. Although courts have proscribed expert testimony by a mental health professional opining that a victim is credible or should be believed, they have permitted the introduction of background or context information to assist the fact finder in assessing the believability of the witness. Thus, for example, expert testimony about child sexual abuse accommodation syndrome (claimed to describe PTSD in children who have been sexually abused) has been admitted in some courts to explain inconsistencies in the child’s allegations (State v. Huntington 1998). Similarly, expert testimony about the victim’s behaviors consistent with rape trauma syndrome (claimed to describe PTSD in women who have been sexually assaulted) has been admitted in some courts to respond to a defense of consent in sexual assault prosecutions (Arcoren v. United States 1991). Other courts have rejected these prosecution efforts, finding problems with the research on which these syndromes were based or the failure of the research to distinguish the behaviors of victims of sexual assault from the behaviors of persons who experience PTSD from other traumatic events (Shuman 2000).

The Future of PTSD in Litigation The role of PTSD in litigation in the future, as in the past and present, is a function of what occurs with the diagnostic nomenclature as well as the law’s willingness to consider evidence of psychiatric disorder in civil claims and criminal defenses. Because the role of PTSD in litigation turns, in part, on diagnostic nomenclature that psychiatry largely controls, psychiatry can influence this direction.

Psychiatric Nomenclature There are at least two alternatives for the psychiatric profession to provide greater guidance and to exercise greater control over the diagnostic nomenclature for PTSD. Clarification of the Diagnostic Nomenclature The first alternative addresses the nomenclature itself. Neither the DSM nor any other authoritative psychiatric source explicitly addresses legally

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relevant behavior. Are all who suffer PTSD expected to behave similarly? For example, does a rape trauma syndrome (Burgess 1983) exist for a subgroup of subjects with PTSD that accurately describes the behavior of women who have been sexually assaulted? Does that syndrome differ according to the age, ethnicity, or socioeconomic status of the woman assaulted or the degree of physical violence involved? Does the syndrome also describe the behavior of men who have been sexually assaulted? Is rape trauma syndrome similar to or different from PTSD in people who have experienced different stressors? Are children who experience the same stressor as adults expected to exhibit the same symptoms as adults (Saigh 1989)? These kinds of questions proliferate in the courts. Although the DSM raises these questions about legally relevant behavior through the use of broad diagnostic nomenclature, it offers little guidance in their resolution. Elsewhere, I (Shuman 1989) have argued that, either in the DSM or a separate document, the American Psychiatric Association should provide guidance to the courts in defining the boundaries of accepted professional knowledge about legally relevant behavior rather than leaving this to be defined in court on a case-by-case basis—decisions often based on less than all the best, most current research. This document might inform the courts, for example, whether a critical review of the literature yields a professional consensus that children who have been sexually abused respond similarly and, if so, what that similar behavior includes. When courts are proceeding without the boundaries of professional consensus, they would be alerted to be hypervigilant in their scrutiny of syndrome evidence purporting to describe common behavior of sexually abused children or some other PTSD group. Appropriate Use of the Nomenclature The second alternative involves the appropriate use of the nomenclature in individual cases. The DSM is not intended to be a forensic “cookbook” or a lay medical guide. Yet its diagnostic criteria are enticing to judges and lawyers as a lay guidebook to psychiatry for the unschooled and untrained. Guidelines for forensic evaluations may fill a gap in forensic practice left by the DSM and provide significant guidance in the competence and procedures necessary for the appropriate use of the nomenclature in individual cases. To aid in the forensic practice, it is important to address the following: • Competence of the evaluator • Establishment of the forensic relationship • Relevance and reliability of the methods and procedures for the evaluation

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• Information used in the evaluation • Presentation of the evaluation Competence of the evaluator. Qualification as an expert witness is not generic but rather issue specific. Recognition of a witness as an expert on one issue within the field of geriatric psychiatry, for example, says nothing about whether that person should also be recognized as an expert in child psychiatry. Licensure as a physician who practices psychiatry, or even board certification in psychiatry, should not, in and of itself, result in qualification as having expertise in PTSD. Competence to evaluate PTSD goes beyond qualifications to practice psychiatry. Qualification as an expert witness on an issue involving PTSD requires a demonstration of the education, training, and experience appropriate to evaluate PTSD in the context of that specific case (i.e., sexual assault in adults or children) (see Schetky, Chapter 4, this volume). Although this standard does not countenance an expert’s learning on the job, the law imposes no magic formula for expert qualification and instead approaches the question functionally: “What is required is that the offering party establish that the expert has ‘knowledge, skill, experience, training, or education’ regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject” (Broders v. Heise 1996, p. 153). Establishment of the forensic relationship. Establishment of the forensic relationship is different from establishment of the therapeutic relationship both because the forensic relationship may not be voluntary and because forensic opinions may be imposed on litigants in ways that therapists’ opinions are not. The opinions of forensic evaluators are used by judges and juries to award monetary judgments against defendants and confine people against their will. Thus, forensic evaluators must not only be competent; their judgment must not be undermined by a conflicting role. Interrelated with the evaluator’s competence is the evaluator’s capacity to apply his or her skill impartially. Even if an evaluator possesses the requisite education, training, and experience, he or she should not conduct an evaluation if other professional activities, personal views, or methods of compensation create conflicts that do not permit the evaluator to apply those skills impartially. One activity that conflicts with an impartial evaluation is providing therapy to the claimant. The roles of patient ally and impartial evaluator are inconsistent, and professionals who attempt to combine these roles risk unnecessary disclosure of confidential information. Therefore, a psychiatrist treating a claimant should not serve as a forensic examiner for that claimant (Greenberg and Shuman 1997). Establishment of the forensic relationship for a PTSD evaluation de-

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mands the same formalities as other forensic relationships. In the case of a court-ordered or opposing expert evaluation, if a party is represented by counsel, counsel should be notified of the evaluation; if a party is not represented by counsel, the evaluator should not proceed with the evaluation until the party has had the opportunity to retain counsel. As in all forensic evaluations, the examiner should proceed only under the authority of a written court order or obtain the informed consent of the client or party (American Psychiatric Association 1984). In the absence of either, or when the evaluator has doubts about the evaluee’s capacity to consent, the evaluator should seek clarification from the court and counsel before proceeding with the evaluation. Relevance and reliability of the methods and procedures for the evaluation. The methods and procedures for the forensic evaluation are not based on the consent of the parties, as they are in therapy, and parties are not free to terminate a forensic relationship with a court-appointed or opposing expert. Judicial proceedings in which life, liberty, and property hang in the balance demand a different level of scrutiny than therapeutic relationships. They are no place for antiquated or unproven modes of providing information that purport to be scientific. The rules of evidence demand that the methods and procedures utilized in a forensic evaluation be both relevant and reliable. No method of evaluation should be used in a forensic setting unless the evaluator can present good evidence, that would satisfy the most demanding of his or her professional peers, that the tools for the valuation are reliable and likely to yield information that is relevant to the issue the examiner has been asked to address. Whether Daubert scrutiny is ultimately applied, professional ethics and common sense demand that experts only present evidence that would satisfy its demands (Shuman and Sales 2001). Information used in the evaluation. The information used in the evaluation must be accurate and complete. Thus it should include, at minimum, 1) a detailed history of the event, its consequences to the claimant, changes in living patterns, and treatment efforts; 2) collateral information about the traumatic event, including witness statements and police reports, and interviews with family members; and 3) a psychiatric history, medical history, litigation history, and criminal record (see Resnick, Chapter 8, this volume; Simon, Chapter 3, this volume). It is in part because therapists rarely collect such information that their ability to address the forensic issues is constrained. The information used in the evaluation must also be obtained in an appropriate manner. Before any evaluation proceeds, the examinee must be

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informed of the purpose and intended use of the evaluation, the methods that will be used, and who has retained or appointed the evaluator (Shuman 1994). The evaluator must also be familiar with the rules of evidence such as privilege and hearsay that may limit the sources of information legally available to the evaluator. Finally, the evaluator should be familiar with the limits on privilege or confidentiality of the evaluation and seek to keep confidential information that is not germane to the evaluation. Presentation of the evaluation. The presentation of the results of the evaluation should address the competence of the evaluator, the process used to establish the forensic relationship, the methods and procedures used in the evaluation, the information used in the evaluation, and the evaluator’s findings and supporting reasoning. Because forensic evaluations are made with explicit knowledge of their intended use in an adversary setting in which the phrasing of a question or the tone of an answer are matters of great concern, evaluators are obligated to document accurately and to preserve completely the bases for their evaluation. This is particularly important in PTSD evaluations in which concerns with malingering and the reliability of information supplied by the client or party are widespread (Faust and Ziskin 1989). All tests or interviews should be preserved in the best manner available. When feasible, this may obligate forensic evaluators to consider videotaping evaluations (Weinstein 1991), although this may interject a new variable into the evaluation. An added advantage of videotaping evaluations is that it may alleviate the perceived necessity of many claimant’s attorneys to be present during the evaluation, which evaluators also claim to taint the evaluation, when the attorney’s concern is accurate reporting of the evaluation.

Legislative Changes The possibility for significant change that may affect the future of PTSD litigation is not limited to psychiatric nomenclature. At least at the federal level, the rules of evidence have been interpreted to require trial judges to play a more active role as a gatekeeper in the admissibility of expert testimony than had been taken at the time of their adoption 20 years ago (Daubert v. Merrell Dow Pharmaceuticals 1993). Federal judges have been instructed to scrutinize the reliability of expert testimony by taking into account, among other things, peer review and publication of the underlying theory or technique. The expansion of tort law in the 1960s and 1970s that favored plaintiffs in personal injury litigation has generally stabilized (Henderson and Eisenberg 1992). Courts that had interpreted foreseeability expansively now in-

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terpret foreseeability more restrictively to limit the liability issues that may be presented to a jury. And because nonphysical harm is often the largest portion of damage awards in a personal injury litigation, and because it has no natural limits, tort reform efforts have targeted damages for nonphysical harm (Carroll 1987). And, of course, it is impossible to predict what the scientific community will uncover regarding the biological and neurological implications of PTSD.

Conclusion Far from abating, the role of PTSD in litigation has increased, as has the the controversy surrounding its forensic application. Claiming to offer new information about the forensic relevance of PTSD, an increasing number of mental health professionals offer their services to the courts. Correspondingly, new claims and defenses relying on PTSD abound, as do new calls for the courts to review these claims and defenses as well as the expert testimony that supports them more carefully. The challenge is to treat those with PTSD fairly and accurately. It is by no means easily met. The forensic practice guidelines are a well-considered opportunity for psychiatry to raise the level of forensic practice and the quality of psychiatric input in PTSD litigation.

References Alphonso v Charity Hospital, 413 So2d 982 (La Ct App 1982) American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 3rd Edition. Washington, DC, American Psychiatric Association, 1980 American Psychiatric Association: Psychiatry in the Sentencing Process: A Report of the Task Force on the Role of Psychiatry in the Sentencing Process. Washington, DC, American Psychiatric Association, 1984 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 3rd Edition, Revised. Washington, DC, American Psychiatric Association, 1987 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition. Washington, DC, American Psychiatric Association, 1994 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 Anderson J: Former cop sues city for post-traumatic stress. Government Finance Review 16:4, 2000 Arcoren v United States, 929 F2d 1235, cert denied, 502 U.S. 913 (1991)

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Atkinson RM, Henderson RG, Sparr LF, et al: Assessment of Vietnam veterans for posttraumatic stress disorder in Veterans Administration disability claims. Am J Psychiatry 139:1118–1121, 1982 Barefoot v Estelle, 463 U.S. 880, 898 (1983) Broders v Heise, 924 SW2d 148 (Tex. 1996) Brown JT: Compensation neurosis rides again. Defense Counsel Journal 63:467– 482, 1996 Burgess AW: Rape trauma syndrome. Behavioral Sciences and the Law 1:97–113, 1983 Caldwell M: Kernel of fear. Discover, June 1995, p 96 Carroll SJ: Assessing the Effects of Tort Reforms. Santa Monica, CA, Rand, 1987 Carter v General Motors, 106 NW2d 361 (Mich 1961) Chamallas M, Kerber LK: Women, mothers and the law of fright: a history. Michigan Law Review 88:814–864, 1990 Champagne A, Shuman D, Whitaker E: An empirical examination of the use of expert witnesses in American courts. Jurimetrics Journal 31:375–392, 1991 Commonwealth v Mulcahy, No. 460-464 (Phila Ct CP Pa, Dec. 1978) Daubert v Merrell Dow Pharmaceuticals, 113 SCt 2786 (1993) Davidson MJ: Post-traumatic stress disorder: a controversial defense for veterans of a controversial war. William & Mary Law Review 29:415–440, 1988 Dillon v Legg, 441 P2d 912 (Cal 1968) Erichsen JE: On Concussion of the Spine. New York, W Woodward & Co, 1882 Erie Ins Co v Favor, 718 NE2d 968 (Ohio App 1998) Faust D, Ziskin J: Challenging post-traumatic stress disorder claims. Defense Law Journal 38:407–424, 1989 Fischoff B: Hindsight does not equal foresight: the effect of outcome knowledge on judgment under uncertainty. J Exp Psychol: Hum Perform Percept 1:288–299, 1975 Frye v United States, 293 F 1013, 1014 (D.C. Cir 1923) Fukuda S, Morimoto K, Mure K, et al: Effect of the Hanshin-Awaji earthquake on posttraumatic stress, lifestyle changes, and cortisol levels of victims. Arch Environ Health 55:121–125, 2000 General Electric Co v Joiner, 522 U.S. 136 (1997) Goodman A: Organic unity theory: the mind-body problem revisited. Am J Psychiatry 148:553–563, 1991 Greenberg S, Shuman D: Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research and Practice 28:50–57, 1997 Henderson J, Eisenberg T: Inside the quiet revolution in products liability. UCLA Law Review 39:731–810, 1992 Ibn-Tamas v United States, 407 A2d 626 (DC 1979) Johnson v May, 585 NE2d (Ill App Ct 1992) Kendler KS: A psychiatric dialogue on the mind-body problem. Am J Psychiatry 158: 989–1000, 2001 Kumho Tire Co v Carmichael, 526 U.S. 137 (1999) Lynch v Knight, 9 HL Cas 577, 598 (1861)

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Magruder C: Mental and emotional disturbance in the law of torts. Harvard Law Review 49:1033–1067, 1936 McFarlane AL: Vulnerability to posttraumatic stress disorder, in Posttraumatic Stress Disorder: Etiology, Phenomenology, and Treatment. Edited by Wolf ME, Mosnaim AD. Washington, DC, American Psychiatric Press, 1990, pp 3– 20 M’Naghten’s Case, 8 Eng Rep 718 (1843) Mendelson G: The concept of posttraumatic stress disorder: a review. Int J Law Psychiatry 10:45–62, 1987 Modlin HC: Is there an assault syndrome? Bull Am Acad Psychiatry Law 13:139– 145, 1985 Mott FW: Mental hygiene and shell shock. BMJ 2:39–42, 1917 Newman CJ: Children of disaster: clinical observations at Buffalo Creek. Am J Psychiatry 133:306–312, 1976 Nixon v Mr Property Management Co, 690 SW2d 546 (Tex 1983) Palsgraf v Long Island RR, 162 NE 99 (NY 1928) Perlin M: Pretextuality, psychiatry and law: of “ordinary common sense,” heuristic reasoning, and cognitive dissonance. Bull Am Acad Psychiatry Law 19:131– 150, 1991 Rosenbaum D: The psychiatrist in the house feels the nation’s trauma. New York Times, October 1, 2001, A16 Saigh PA: The validity of the DSM-III posttraumatic stress disorder classification as applied to children. J Abnorm Psychol 98:189–192, 1989 Shuman DW: The Diagnostic and Statistical Manual of Mental Disorders in the courts. Bull Am Acad Psychiatry Law 17:25–32, 1989 Shuman DW: The use of empathy in forensic examinations. Ethics and Behavior 3:289–302, 1994 Shuman DW: Psychiatric and Psychological Evidence, 2nd Edition. Eagan, MN, West Group, 2000 Shuman DW: Expertise in law, medicine, and health care. Journal of Health Politics, Policy and Law 26:267–290, 2001 Shuman DW, Sales BD: Daubert’s wager. J. Forensic Psychology Practice 1(3):69– 77, 2001 Smith H: Relation of emotions to injury and disease: legal liability for psychic stimuli. Virginia Law Review 30:193–317, 1944 Speir DE: Application and use of post-traumatic stress disorder as a defense to criminal conduct. Army Lawyer, 1989, pp 17–22 State v Heads, No. 106-126 (1st Jud Dist Ct Caddo Parish La, October 10, 1981) State v Huntington, 575 NW2d 268 (Wis 1998) State v Kelly, 478 A2d 364 (NJ 1984) Summerfield D: The invention of post-traumatic disorder and the social usefulness of a psychiatric category. BMJ 322:95–98, 2001 Victorian Railway Commissioners v Coultas, LR 13 App Cas 22, 8 Eng Rul Cas 405-PC (1888) Walker L: The Battered Woman. New York, Harper & Row, 1976

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Weaver v Delta Airlines, Inc, 56 FSupp2d 1190 (D Mont 1999) Weinstein JB: Rule 702 of the federal rules of evidence is sound: it should not be amended. Federal Rules Decisions 138:631–645, 1991 Wexler DB, Schopp RF: How and when to correct for juror hindsight bias in mental health malpractice litigation: some preliminary observation, in Essays in Therapeutic Jurisprudence. Edited by Wexler DB, Winick BJ. Durham, NC, Carolina Academic Press, 1991, pp 135–155 White JB: Heracles’ Bow: Essays on the Rhetoric and Poetics of Law. Madison, University of Wisconsin Press, 1985 Wilkinson CB: Aftermath of a disaster: the collapse of the Hyatt Regency Hotel skywalks. Am J Psychiatry 140:1134–1139, 1983 Yehuda R (response); Sapolsky RM (reply), Stress and glucocorticoid. Science, March 14, 1997, p 1662. Also see Summerfield D: Post-traumatic stress disorder in doctors involved in the Omagh bombing (letter). BMJ 320:1276, 2000

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Recent Research Findings on the Diagnosis of PTSD Prevalence, Course, Comorbidity, and Risk Bonnie L. Green, Ph.D. Stacey I. Kaltman, Ph.D.

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n this chapter we address recent research on posttraumatic stress disorder (PTSD) with regard to several issues, including epidemiology, course, comorbid psychopathology, and risk factors for the development of the disorder. Research on treatment, as well as the impact of litigation on PTSD, is briefly examined. Finally, future research directions are discussed.

Epidemiology of Trauma in the General Population Recent research has shown that up to three-quarters of the general population in the United States has been exposed to a traumatic event in their lifetime that might meet the DSM stressor criterion for PTSD. The landmark National Comorbidity Survey (NCS), the first nationally representative face-to-face general population survey of the prevalence of psychiatric disorders, demonstrated that 60.7% of men and 51.2% of women had experienced at least one traumatic event (Kessler et al. 1995). The majority of those who reported at least one traumatic exposure had actually experienced multiple traumatic events. The types of trauma reported most frequently included witnessing someone being badly injured or killed; being involved in a fire, flood, or natural disaster; and being involved in a life-

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threatening accident. Gender differences in trauma exposure were also observed. Significantly more men than women reported experiencing physical attacks, combat, and being threatened with a weapon, held captive, or kidnapped. Significantly more women than men reported experiencing rape, sexual molestation, childhood parental neglect, and childhood physical abuse. In Breslau et al.’s (1998) Detroit Area Survey, 89.6% of the sample reported exposure to any trauma; the average number of traumatic events experienced was 4.8. Resnick et al. (1993) found that 69% of a nationally representative sample of women reported exposure to at least one traumatic event. Thirty-six percent of the women reported crime victimization, and most had multiple victimization experiences. In a national telephone survey by Finkelhor et al. (1990), childhood sexual abuse was reported by 27% of women and 16% of men. High rates of domestic violence, predominantly spouse and child abuse, have also been reported on the basis of a national telephone survey (Straus and Gelles 1986), with severe abuse of children occurring at a yearly rate of about 11% and severe couple violence at about 6% yearly. Norris (1992) queried a community sample of male and female residents of four southeastern cities about their exposure to a variety of traumatic events (e.g., physical and sexual assault, tragic death, robbery, disaster, motor vehicle accidents with serious injury, fire, combat) and found a lifetime exposure rate to at least one event of 69%, with tragic death (via homicide, suicide, or accident; 30%), robbery (25%), and motor vehicle accidents with injury (23%) being reported most frequently. The prevalence of these events varies from study to study, depending on 1) the specific definitions of the events, 2) the population(s) studied, 3) whether questions are open ended or specific, and 4) whether the individual is interviewed by telephone or in person. There is also some empirical evidence to suggest that retrospective reporting of trauma exposure can be influenced by current PTSD symptomatology (Roemer et al. 1998). Thus, no absolute rates are available. However, it is clear that exposure to “traumatic” events is common in the lifetime of individuals. Although quite a few of these individuals go on to develop PTSD symptoms from their exposure, most do not. The factors associated with the development of this syndrome are reviewed later in this chapter.

Rates of PTSD Following Traumatic Exposure The NCS estimated the lifetime prevalence of DSM-III-R (American Psychiatric Association 1987) PTSD in the general population to be 7.8%, with women more than twice as likely as men to meet diagnostic criteria for

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lifetime PTSD (10.4% vs. 5.0%; Kessler et al. 1995). However, estimates of rates of PTSD are higher when samples of persons exposed to traumatic events are considered. Population studies of trauma and PTSD indicate that, on average, about a quarter of individuals who are exposed to a DSMIV (American Psychiatric Association 1994) criterion A–type event go on to develop the full-blown PTSD syndrome. In the Resnick et al. (1993) study mentioned earlier, 17.9% of the women with a history of any type of trauma had lifetime PTSD, and 6.7% had current PTSD. Thirty-nine percent of the women who had experienced physical assault developed PTSD, as did 32.0% of those who were raped. Of those who experienced traumatic bereavement, 22.1% developed PTSD, along with 30.8% of those who reported molestation or attempted sexual assault. Ursano et al. (1999a) found that 25.3% of those who reported being in a motor vehicle accident met criteria for PTSD 3 months after the accident. A new area of research has provided evidence that PTSD can develop in response to medical illness, especially in parents of children with cancer or other life-threatening illnesses (e.g., Breslau et al. 1998; Manne et al. 1998). Breslau et al. (1998) found a 9.2% probability of PTSD after trauma exposure, 13.0% in women and 6.2% in men. This finding of higher prevalence of PTSD after trauma exposure in women is a consistent finding across multiple studies (e.g., Breslau et al. 1997a). Persons who reported being mugged or threatened with a weapon showed PTSD rates of 8.0%; however, rape victims reported a PTSD lifetime prevalence of 49.0%. High prevalence of PTSD following rape is another common finding (e.g., Kessler et al. 1995; Rothbaum et al. 1992). Breslau et al. (1998) observed high conditional risks of PTSD associated with being held captive, tortured, or kidnapped (53.8%), being badly beaten up (31.9%), and being a victim of sexual assault other than rape (23.7%). It is noteworthy that Breslau et al. (1998) assessed PTSD with respect to a randomly selected trauma from each participant’s trauma history as opposed to the more common practice of referring to the participant’s self-identified worst trauma. As such, these data may provide a more accurate assessment of conditional risk of PTSD given specific trauma types. Kessler et al. (1995) observed that while men were more likely than women to experience at least one traumatic event, women were more likely to experience a trauma associated with a high likelihood of developing PTSD. PTSD rates in male Vietnam combat veterans from a recent national study (Kulka et al. 1990) were shown to be 31% for lifetime PTSD and 15% for current PTSD. For women, the figures were 27% lifetime and 9% current (Fairbank et al. 1993). The same study estimated current rates of PTSD in nonveterans to be 1.2% among men and only 0.3% among women.

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Following exposure to trauma, symptoms of PTSD are common. However, many individuals do not go on to develop the full PTSD syndrome. Recent research has demonstrated that partial or subthreshold PTSD is clinically relevant as well, because it is associated with significant functional impairment. For example, in a Canadian community sample, Stein et al. (1997) observed rates of current full PTSD to be 2.7% in women and 1.2% in men and rates of current partial PTSD to be 3.4% in women and 0.3% in men. Persons with partial PTSD exhibited more interference in occupational and social functioning than did trauma-exposed persons without PTSD. PTSD is not the only diagnosis associated with exposure to traumatic events (Green 1994). For example, major depression, alcohol abuse or dependence, drug abuse or dependence, and phobia diagnoses were all shown to be significantly higher (at least twice the rate) in general population respondents exposed to sexual assault as compared with respondents who did not report sexual assault (Burnam et al. 1988). Non-PTSD outcomes like depression, generalized anxiety, panic, and/or substance use disorders have also been shown to be associated with disaster exposure (e.g., Green et al. 1990b, 1990c) and with exposure to combat trauma (e.g., Green et al. 1990a). However, in the latter study, after PTSD was controlled for (with comorbid PTSD cases removed), the other diagnoses alone were not predicted from war stressors. Thus, studies examining non-PTSD outcomes need to examine whether the other diagnoses are comorbid with PTSD. Studies have indicated an association of certain types of traumatic events (particularly childhood sexual abuse) with personality disorders, especially borderline personality disorder (e.g., Herman et al. 1989), and dissociative identity disorder (formerly called multiple personality disorder) (e.g., Braun 1990).

PTSD Comorbidity With Other Diagnoses PTSD is rarely found alone, even in community samples. The NCS demonstrated that the majority of persons (88.3% of men, 79.0% of women) with lifetime PTSD also met lifetime criteria for another DSM-III-R disorder (Kessler et al. 1995). Fifty-nine percent of men with PTSD and 43.6% of women with PTSD met criteria for three or more comorbid diagnoses. These data suggest that only a minority of persons have PTSD alone. For men, frequent comorbid diagnoses included alcohol abuse/ dependence (51.9%), major depression (47.9%), conduct disorder (43.3%), and drug abuse or dependence (34.5%). For women, frequent comorbid diagnoses included major depression (48.5%), simple phobia (29.0%), social

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phobia (28.4%), alcohol abuse or dependence (27.9%), and drug abuse or dependence (26.9%). Kessler et al. (1995) suggested that PTSD was more often the primary diagnosis with respect to comorbid affective and substance use disorders, whereas it was likely to be secondary to comorbid anxiety disorders. In a community sample of women, Breslau et al. (1997b) found significant lifetime associations between PTSD and all diagnoses studied (anxiety disorders, major depression, and substance use disorders) except for cocaine abuse or dependence. The strongest associations were found for agoraphobia, generalized anxiety disorder (GAD), and major depression. The most frequently observed comorbid disorder was major depression (43.2% of women with PTSD also met lifetime criteria for major depression). PTSD was associated with increased risk for first-onset major depression and alcohol use disorders. While evidence suggests that major depression, substance use disorders, and anxiety disorders are most commonly comorbid with PTSD, recent research has begun to examine other less common conditions. For example, chronic PTSD has been shown to be associated with psychotic symptoms (Hamner et al. 2000). We (Green et al. 1992) compared patterns of comorbidity in a community sample of disaster survivors and a community sample of male Vietnam War veterans. Although both groups were in their second decade posttrauma, they differed in many ways, including age, gender mix, trauma type, and cultural characteristics, and the instruments used to assess the disorders also differed. However, their diagnostic profiles were quite similar. The base rates for PTSD were similar between the two groups (29% for veterans, 25% for disaster survivors), and PTSD was the most common diagnosis in both groups. Less than 6% of the individuals in each group had PTSD alone. The most common concurrent diagnoses with PTSD for both groups were major depressive disorder, phobic disorder, and GAD. Substance abuse was less common overall but more common in male veterans than in disaster survivors. Forty-two percent of individuals with PTSD in the disaster sample also had major depressive disorder, 42% had GAD, and 30% had phobia. Antisocial personality disorder was virtually nonexistent in the disaster survivor sample, although it occurred in 11% of the veteran sample, suggesting that age and gender may play a role in the symptom picture. From this study, we were not able to determine why such comorbidity exists. Potential reasons offered by investigators in the field include that the symptom/diagnostic criteria overlap, that the pattern of comorbidity may be related to the specific nature of the stressor or to historic or genetic factors, or that the other diagnoses result from (are a reaction to) the PTSD. For example, it has been suggested by a number of authors and studies that

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substance abuse is a reaction to the symptoms of PTSD serving as an attempt to counteract intrusive thoughts or high levels of arousal (e.g., Rheingold et al., in press). All of these explanations have some empirical support, but little research exists to sort out one possibility from any other. Comorbidity is a complex issue and is likely determined by multiple factors. However, it seems clear that patients presenting with PTSD are also likely to have other DSM diagnoses, particularly anxiety and depression disorders, and possibly substance abuse, although the latter diagnoses may be more common in certain subpopulations. Therefore, the presence of these diagnoses should not necessarily be seen as weakening the case for PTSD.

Health Outcomes and Functional Impairment In addition to comorbid psychiatric disorders, PTSD has been linked with other clinically relevant conditions and problems. A repeated finding has been the association of PTSD with poor health outcomes (Green and Kimerling, in press; Schnurr and Green, in press). PTSD has been shown to be associated with both medically explained and unexplained symptoms, chronic diseases, and poor self-perceived health. For instance, Boscarino (1997) demonstrated that a lifetime diagnosis of PTSD was correlated with increased risk for reported chronic disorders, including circulatory, digestive, musculoskeletal, endocrine, respiratory, and non-sexually transmitted infectious diseases. In a follow-up of the same sample, chronic PTSD was associated with electrocardiogram abnormalities, atrioventricular defects, and infarctions, even after other heart disease factors, including age, ethnicity, education, medications, substance use, and smoking, were controlled (Boscarino and Chang 1999). Another recent study showed that 80% of 129 consecutive outpatient combat veterans with PTSD reported suffering from chronic pain (Beckham et al. 1997). In examining how PTSD reactions might influence medical variables, Holen (1990, 1991) studied the insurance records of Norwegian oil workers who survived an oil rig collapse in the North Sea. Most of those on board died, and many of the survivors witnessed the deaths of their coworkers. The records of another group of Norwegian oil rig workers who were not in a rig collapse also were studied. Records of both groups were reviewed from 2 years before the incident to 8 years after it. As expected, the two groups differed significantly on almost all symptoms of PTSD. Particularly striking, however, were the data on sick leave and health problems in the survivors. Although there were no differences in use of sick leave prior to the event, the traumatized group, after the incident, had twice as many

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episodes of sick leave as the control subjects, and the mean number of weeks of leave was four times higher in the survivors. This effect continued throughout the 8 years of study and was accounted for primarily by psychiatric problems and by subsequent accidents. Another recent emphasis in the literature has been the examination of the functional impact of having PTSD. Zatzick et al. (1997a) found that male Vietnam combat veterans with PTSD were more likely to endorse indicators of functional impairment than were their counterparts without PTSD. For example, veterans with PTSD were more likely to report current unemployment, fair or poor health status, diminished well-being, any physical limitation, and perpetration of severe violence in the past month. A study of female veterans found similar levels of functional impairment (Zatzick et al. 1997b). In a community sample, Amaya-Jackson et al. (1999) demonstrated that posttraumatic stress symptoms were associated with functional impairment across multiple domains, including social, financial, physical, and psychological. Compared with controls, individuals with two or more posttraumatic stress symptoms were more likely to report impaired subjective social support, marital divorce/separation, insufficient income, receiving disability payments and food stamps, three or more chronic illnesses, increased bedtime in past 3 months, and suicidal thoughts and attempts in the past year. These studies suggest that PTSD has a clinically significant impact on multiple areas of functioning that greatly affect day-to-day living.

Course of Illness in PTSD Little research has been done on the longitudinal course of PTSD; however, the research that exists suggests that it may be a very long-lasting disorder. Using retrospective data from the NCS, Kessler et al. (1995) estimated the median time to remission of PTSD to be 36 months for participants who sought professional treatment and 64 months for participants who did not seek treatment. Regardless of treatment seeking, PTSD failed to remit in more than one-third of cases after many years. In a community sample, Breslau et al. (1998) used Kaplan-Meier survival methods to estimate time to remission of PTSD and found that 74% of individuals continued to meet diagnostic criteria at 6 months. This number decreased to 60% at 12 months. The estimated median time to remission was 24.9 months, with, again, more than one-third of cases failing to remit by 60 months or more. Several studies that used structured interviews to assess the lifetime and current prevalence of PTSD in certain survivor groups provide indi-

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rect information about the longitudinal course of the disorder. This indirect information is derived from estimates of the proportion of survivors developing the disorder who continue to have it at the time of interview, often many years later. The national Vietnam War veteran study (Kulka et al. 1990) noted earlier was of this type and indicated that 31% of the male sample had combat-related PTSD at some point. Half of these subjects (15%) continued to meet full (current) criteria 20 years or so after the war, when the study was conducted. For women, the comparable figures were 27% and 9%, respectively. A study of World War II prisoners of war (POWs) (Speed et al. 1989) showed a lifetime rate of 50% and a current rate of 29%, again suggesting that up to half of individuals who develop the disorder may still have it decades later. Resnick et al. (1993), in their crime victim study, showed a somewhat lower proportion of current, compared with lifetime, PTSD in their sample, ranging from about 17.8% for physical assault and 12.4% for rape to only 9% for traumatic bereavement. A few studies have examined the longitudinal course of PTSD prospectively. Rothbaum and colleagues (Rothbaum and Foa 1993; Rothbaum et al. 1992) studied a general sample of rape victims referred by police, emergency rooms, and mental health professionals. At 2 weeks, 94% of these 95 individuals met full PTSD symptom criteria, although they would not technically qualify for the diagnosis until 1 month. By 1 month, the current rate was 65%, at 2 months it was 53%, and at 3 months it was 47%. A 9month follow-up showed the same rate (47%) as at 3 months. This group of investigators, in a similar study of nonsexual criminal assault (including robbery), found that 65% of individuals exhibited PTSD at 1 week, 37% at 1 month, 25% at 2 months, and 12% at 6 months. At 9 months, none of the victims had PTSD. The fact that the rates differed in these two studies, and that PTSD persisted in one instance but not the other, was not explained by the authors but may have been due to the nature of the event. In a study of motor vehicle accident victims, 53% of individuals who had met PTSD diagnostic criteria 1 year after the accident continued to meet criteria into the fourth year postaccident (Koren et al. 2001). Gilboa-Schechtman and Foa (2001) compared patterns of recovery of female sexual and nonsexual assault victims in two prospective studies. In the first study, women were assessed within 1 month of the assault and were assessed weekly for 3 months. In the second study, women were assessed within 2 weeks of the assault and were assessed 1, 2, 3, and 6 months postassault. In both studies, sexual assault was associated with a more severe reaction (depression, anxiety, and PTSD symptoms) than nonsexual assault in terms of both initial and peak reactions. In the second study, which covered a longer span of time after the assault, the rate at which reactions dissipated over time was slower for victims of sexual assault. Analysis at the individual

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level suggested that the strength of the postassault reaction increased until the peak reaction and then gradually decreased over time. Delayed peak reactions were therefore associated with elevated symptoms at later assessment points. Solomon et al. (1989) studied Israeli combat veterans who had and had not experienced combat stress reactions (CSRs) during the Lebanon War over a 3-year period. As might be expected, soldiers who developed CSRs during battle were much more likely to develop PTSD in the subsequent 3 years (63% versus 14% at 1 year). However, tracking both groups, the authors found some, though not a dramatic, decrease in rates of PTSD over time. The rates at 1, 2, and 3 years for the CSR veterans were 63%, 57%, and 43%, respectively. For the non-CSR veterans, the figures were 14%, 17%, and 9%, respectively. Harvey and Bryant (1999) conducted a 2-year prospective study of motor vehicle accident victims to examine the relationship between acute stress disorder (ASD) and PTSD. Within the first month posttrauma, 13% of the sample met full ASD criteria and 21% met criteria for subsyndromal ASD. Six months posttrauma, PTSD criteria were met by 78% of the ASD group and 60% of the subsyndromal ASD group, but only 4% of the non-ASD group. Two years posttrauma, 63% of the ASD group, 70% of the subsyndromal ASD group, but only 3% of the non-ASD group met PTSD criteria. In a study of victims of violent crime, ASD diagnosis and high levels of reexperiencing or arousal symptoms independently predicted PTSD at 6 months posttrauma (Brewin et al. 1999). These and other studies suggest that the rates of PTSD usually decline over time. However, increased levels of PTSD have been documented in certain aging populations. Port et al. (2001) examined rates of PTSD in community-dwelling World War II and Korean War POWs (mean age of sample was 75.5 years). At the baseline assessment, the prevalence of PTSD was 27%. The prevalence of PTSD increased to 34% at the follow-up assessment 4 years later. The authors conducted a retrospective analysis of PTSD symptom course over seven time periods for the World War II POWs. This analysis suggested that PTSD symptoms were highest shortly after the war and then declined over several decades. This decline was followed by an increase in PTSD symptoms during the past two decades. Longdelayed onset PTSD was rare, suggesting that these findings cannot be accounted for by new cases of PTSD. Thus, there is clear evidence that PTSD is a long-lasting disorder in many individuals. Up to half of those who develop the disorder may continue to have it decades later without treatment. There is much less information regarding the severity of the disorder over time. In a study of survivors of a dam collapse (Green et al. 1990b, 1990c), we investigated the symptoms of PTSD and stress response. These data were collected in the

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context of a lawsuit at 2 years, whereas follow-up at 14 years was not done in this context and included both litigants and nonlitigants. The rate of “probable PTSD” (PTSD was not a diagnosis in 1974 when the first study was done; however, symptoms of “traumatic neurosis” and “gross stress reaction” were gathered systematically) decreased from 44% to 28% over 12 years, consistent with findings from other studies. It was interesting to note that the severity of the impairment associated with PTSD declined as well. The average global severity rating, when all symptoms and functioning were considered, decreased from 3.9 (moderate) in 1974 to 2.7 (mild) in 1986, suggesting that those individuals who had the diagnosis, on average, were less impaired at 14 years than they were at 2 years. Most longitudinal studies that do not specifically measure PTSD show these trends as well, although findings seem to relate to type of event. For example, in a comprehensive review of the disaster literature (Green and Solomon 1995), several longitudinal studies were found. Among the studies of natural disasters, particularly those with better samples and designs and/ or multiple assessments on the same person, reports tended to show a dropoff of symptoms in general community samples by 1–3 years. Technological disasters, however, showed effects that were more prolonged, although not many studies with long-term follow-up were found. These studies tended to show a decrease in symptoms as well but not to “normal” levels. In technological events, there is even some evidence that symptoms falling under the category of anger/irritability may increase over time. These technological events seem more likely to be associated with litigation. Thus, the course of PTSD symptoms, particularly in human-caused events, seems to be a sharp development or increase in the immediate aftermath and a decrease over time, but not necessarily to normal levels. Even the prognosis with treatment, particularly with chronic disorders, may be guarded.

Individual Differences in the Development of PTSD Stressor Severity The primary risk factor that has been associated empirically with the development of PTSD is the level or severity of exposure to stressors. Several reviews (Fairbank et al. 1993; Foy et al. 1987; March 1993) have indicated that most studies of Vietnam War veterans have found level of exposure (to combat and to abusive violence) to be associated with higher rates of PTSD. Premilitary factors have also been shown to predict PTSD, however, usually at a lower level. March (1993) reviewed 19 studies that quantified stressors

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suffered during combat, disaster, illness, injury, and crime and found that in 16 of 19 studies examining the question of stressor intensity, there was a dose-response relationship between stressor intensity and outcome. In a meta-analyis of 77 articles examining risk factors for PTSD, factors operating during or after the trauma, including stressor severity, were associated with the strongest risk for PTSD (Brewin et al. 2000). None of these studies identified a threshold effect. The threshold notion does pose some problems for the PTSD diagnosis in that severity of stressors is conceptually a continuum (Breslau and Davis 1987). A few studies have attempted to examine “ordinary” stressors to determine whether they can produce PTSD. Burstein (1985) found that 8 of 73 patients in an outpatient setting met symptom criteria for PTSD without meeting the stressor criterion. Events associated with PTSD symptoms in these individuals included marital disruption, children’s illegal activities, and death of a loved one. The field trial for DSM-IV investigated five different options for the definition of the stressor criterion in the PTSD diagnosis, including eliminating the definition altogether. As it turned out, these varied definitions had very little effect on the variation in prevalence rates for PTSD. Few people developed PTSD symptoms unless they had experienced extremely stressful events. Most of those who did had experienced a serious illness in self or family or the death of a family member (Kilpatrick et al. 1998). A variety of types of events have been associated with the development of PTSD: injury, violent or unexpected bereavement, witnessing of or participating in abusive violence, exposure to grotesque death, hearing about the death of another person, life threat, rape, and torture (Green 1990; March 1993). Most studies have found these associations, but a few have not. Injury (extent of) is one type of event that does not have consistent findings regarding its association with PTSD. However, most of these studies were of combat veterans, and therefore the independent effects of injury are difficult to parcel out. Even so, a number of investigators have found that extent of objective physical injury is not necessarily the best predictor of outcome (Landsman et al. 1990; Malt 1988; Malt et al. 1989). Perceived loss of function may play a greater role.

Other Risk Factors A community study of a variety of types of stressors (Breslau et al. 1991) identified several risk factors for both exposure to traumatic events and the development of PTSD after such exposure. Exposure was associated with low education, male gender, early conduct problems, extraversion, and family history of psychiatric disorders or substance abuse. Risk factors for PTSD

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after exposure to a traumatic event included female gender, early separation from parents, neuroticism, preexisting anxiety or depression, and family history of anxiety or antisocial behavior. It is noteworthy that exposure is not random, as many studies (e.g., Bromet et al. 1998) find risk factors for exposure. However, although numerous studies have explored risk for exposure to traumatic events, in this section we focus on risk for PTSD, since most litigants will already have been exposed to trauma. A study of crime victims in the community (Resnick et al. 1992) did not show an association between a precrime Axis I diagnosis and PTSD after crime victimization. However, the study did find an interaction in which the rate of PTSD was associated with prior depression in the high crime-stress exposure group but not in the low-exposure group. They concluded that precrime depression might constitute a vulnerability factor for development of PTSD under conditions of exposure to high crime stress. In a 2-year prospective study, the National Women’s Study investigated risk factors for PTSD due to rape and PTSD due to physical assault in a nationally representative sample of women (Acierno et al. 1999). History of depression, alcohol abuse, and injury during the rape were identified as risk factors for PTSD following rape. History of depression and lower education were identified as risk factors for PTSD following physical assault. In a sample of motor vehicle accident victims, Ursano et al. (1999b) examined peritraumatic dissociation as a risk factor for PTSD 1 month and 3 months after the accident. They found that individuals who reported peritraumatic dissociation were 4.12 times more likely to meet criteria for PTSD at 1 month and 4.86 times more likely to meet diagnostic criteria at 3 months. Shalev et al. (1996) assessed a sample of individuals hospitalized with physical injury 1 week and 6 months after exposure to the traumatic event. At the 6-month assessment, 25.5% of the sample met criteria for PTSD, and peritraumatic dissociation was predictive of PTSD at 6-month follow-up. It is useful to note at this point that few studies in the literature have been prospective. The large-sample community studies referred to because of their comprehensiveness and nonbiased nature are essentially retrospective; that is, the person is recalling symptoms that he or she had prior to the target event. It can be argued that it may not be that individuals with prior psychiatric problems are more likely to develop PTSD, but that individuals who currently suffer from PTSD are more likely to recall earlier symptoms. There is increasing evidence that exposure to multiple events is more common than previously thought and that prior traumatic exposure increases the risk for the development of PTSD following the target event. In a community sample, Breslau et al. (1999) found that a history of prior

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trauma exposure conferred greater risk for PTSD from the index event. Multiple prior events were associated with a stronger effect than a single prior event, and previous trauma involving assaultive violence was also associated with stronger effects. In a sample of college women, experiencing multiple traumatic events was associated with much greater symptom severity than any event, or type of event, alone (Green et al. 2000). In the meta-analysis referred to earlier, Brewin et al. (2000) identified three categories of risk factors. First, psychiatric history, childhood abuse, and family psychiatric history emerged as the risk factors with uniform predictive effects across studies. Second, gender, age at time of trauma, and race were predictive of PTSD only in some studies. Third, education, previous trauma, and general childhood adversity usually predicted PTSD, but effect sizes varied across studies of different populations and methodologies.

Treatment Recent years have witnessed a sharp rise in the number of published studies examining the efficacy of various treatments for PTSD. Comprehensive descriptions of interventions, as well as evidence of their efficacy, have been reviewed recently (Foa et al. 2000) and are beyond the scope of this chapter. Briefly, in terms of psychosocial treatments, cognitive-behavioral therapies are the interventions with the most empirical support. Exposure therapy, in which individuals confront their memories of the experienced traumas, has been subjected to the most rigorous scientific evaluation. Wellcontrolled studies have demonstrated that exposure therapy has been effective in the treatment of both veteran and civilian trauma victims (e.g., Foa et al. 1991; Keane et al. 1989). Other cognitive-behavioral techniques that have shown promise include cognitive therapy and cognitive processing therapy (Rothbaum et al. 2000). Other psychosocial treatments, including psychodynamic treatment, eye movement desensitization and reprocessing (EMDR), and hypnosis, have been less studied but also have some empirical support and warrant closer examination. In terms of pharmacotherapy, most types of psychotropic agents have been prescribed in an attempt to alleviate the symptoms and distress associated with PTSD (Friedman et al. 2000). Despite recent advances in understanding the psychobiology of PTSD, pharmacological treatment of PTSD has been guided primarily by clinical evidence of symptom reduction in affected patients. Recently, a number of randomized, controlled drug trials investigating the use of antidepressants in the treatment of PTSD have yielded positive effects. Specifically, treatment with selective serotonin reuptake inhibitors (SSRIs) has been shown to reduce PTSD

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symptomatology and to produce global improvements (Brady et al. 2000; Davidson et al. 1996). Although the recent gains in the development and evaluation of psychosocial and pharmacological treatments are promising, this research is in its infancy. In addition, despite the fact that cognitive-behavioral interventions and treatment with psychotropic agents have demonstrated efficacy in rigorous empirical investigations, treatment responsiveness is not universal. Many patients, even after treatment, do not experience sufficient improvement in symptoms. Thus, refinement of extant treatments, as well as the development of new treatments, is needed. Issues of diagnostic comorbidity, generalizability to various trauma-exposed populations, tolerability of treatment, and heterogeneity of symptom clusters and associated problems challenge this process.

Impact of Litigation on PTSD The terms accident neurosis and compensation neurosis have been used to suggest that a condition (e.g., PTSD) for which compensation is sought will resolve once the litigation is settled. A small body of literature has examined the impact of litigation and its settlement on PTSD symptomatology and impairment. Blanchard et al. (1998) interviewed victims of motor vehicle accidents shortly after the accident and then 6 and 12 months later. Levels of PTSD symptoms were compared among individuals who had initiated litigation that was settled within the 12 months of the study, individuals who had initiated litigation that was still pending, and individuals who had not initiated litigation. Individuals who had initiated litigation, regardless of litigation status, had more severe injuries and higher initial levels of PTSD symptoms than individuals who did not initiate litigation. All three groups of accident victims showed improvements in PTSD symptoms and role functioning over the 12-month study. No significant differential decline in symptoms was observed among the three groups. In addition, a majority of the individuals with litigation pending were working full or part time during the study. These results suggest that PTSD symptoms are not maintained by the litigation process and argue against the notion of “compensation neurosis.” Other studies have found similar results (Green et al. 1990b; Grunert et al. 1991; Mendelson 1995).

Conclusion and Research Directions Research indicates that traumatic events, when defined according to objective criteria, are relatively common in the general population. Although

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PTSD is not the only diagnosis that has been linked to traumatic event exposure, in studies that have examined a variety of diagnoses, it is usually the most common. Other diagnoses that have been associated with trauma include major depression, substance abuse, and other anxiety disorders. Studies of patient populations also link trauma with borderline personality disorder and dissociative identity disorder. It is not clear whether these other (particularly Axis I) disorders are produced directly from exposure to the trauma or stem more from living with the chronic condition of PTSD, but anxiety and depression diagnoses, in particular, are often comorbid with PTSD. The personality disorders are usually assumed to result from repeated traumatic exposure in childhood, but research specifically addressing this assumption is sparse. Among those exposed to a traumatic event, rates of PTSD average around 25% in the general population, although certain types of exposure (e.g., rape) routinely produce much higher rates. A number of studies have shown that up to half of individuals with PTSD continue to have it for many years. Even many patients treated for PTSD continue to meet full criteria for the diagnosis at termination. On the other hand, prevalence rates do decrease over time, even without treatment intervention, and, for some types of events, may virtually be reduced to zero. Much more research is needed to define this area. With regard to severity, average levels of symptoms decline in groups of exposed individuals over time. It is not known whether this is because all individuals show some symptom reduction or whether some individuals become symptom free, whereas others maintain high levels of distress. One study showed that impairment of functioning was reduced over a 12-year period, on average, even in those individuals who continued to meet full diagnostic criteria. Conversely, another study showed that indicators of dysfunction (sick leave) were maintained over an 8-year period, with no decrease. Development of PTSD has been clearly linked with level of exposure to objective aspects of the stressor experience, usually in a dose-response fashion. Thus, intensity of exposure is a clear-cut risk factor for the development of PTSD. Other risk factors, noted in several studies, are low education/social class, preexisting psychiatric symptoms or diagnoses, prior history of trauma, and a family history of psychiatric problems. Women develop PTSD at higher rates than do men. This may be a function of different expressions of psychopathology (women have higher rates of anxiety and mood disorders, whereas men have higher rates of substance use disorders and antisocial personality disorder). Or it may be that the types of events to which women are exposed are somehow more “toxic” (e.g., the highest rates of PTSD tend to be found with rape, a trauma experienced almost exclusively by women).

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Ongoing research is addressing several areas. One is the impact of multiple exposures to traumatic events. Prior research focused primarily on a single target event without assessing exposure to prior traumas. Yet recent findings indicate that exposure to multiple traumatic events increases the risk for PTSD. More longitudinal studies are also being conducted, in which attempts are being made to recruit subjects early and to trace the waxing and waning of symptoms over time. A few studies of disaster have fortuitously been able to obtain prospective data by virtue of having conducted epidemiological studies in a geographic area that later experienced a disaster. A few recent studies have begun to compare different types of traumatic events to determine differences and similarities in outcomes (not just PTSD) across event type. Investigators have also begun to examine life-threatening illness (e.g., cancer) from a trauma or PTSD perspective. Although not addressed here, biological studies of trauma and PTSD have also been much more common in recent years (e.g., Friedman 1999; Friedman et al. 1995; Yehuda and McFarlane 1997). Biological abnormalities found in these studies include hyperreactivity in several physiological systems, an excessive startle reflex, and disrupted sleep. Systems that mediate the response to stress are also dysregulated, with changes including alterations in neurotransmitter/neuroendocrine activity involving the hypothalamicpituitary-adrenal (HPA) system, adrenergic mechanisms, neuropeptide Y, endogenous opioids, the hypothalamic-pituitary-thyroid (HPT) axis, the hypothalamic-pituitary-gonadotropic (HPG) axis, and the immune system. These studies are attempting to describe the psychobiology of PTSD and to differentiate PTSD from other disorders. It is hoped that this research will suggest additional pharmacological treatments that would be efficacious. More studies are needed in the area of treatment interventions for this disorder.

References Acierno R, Resnick H, Kilpatrick DG, et al: Risk factors for rape, physical assault, and posttraumatic stress disorder in women: examination of differential multivariate relationships. J Anxiety Disord 13:541–563, 1999 Amaya-Jackson L, Davidson JR, Hughes DC, et al: Functional impairment and utilization of services associated with posttraumatic stress in the community. J Trauma Stress 12:709–724, 1999 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 3rd Edition, Revised. Washington, DC, American Psychiatric Association, 1987 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition. Washington, DC, American Psychiatric Association, 1994

Recent Research Findings on the Diagnosis of PTSD

35

Beckham JC, Crawford AL, Feldman ME, et al: Chronic posttraumatic stress disorder and chronic pain in Vietnam combat veterans. J Psychosom Med 43: 379–389, 1997 Blanchard EB, Hickling EJ, Taylor AE, et al: Effects of litigation settlements on posttraumatic stress symptoms in motor vehicle accident victims. J Trauma Stress 11:337–354, 1998 Boscarino JA: Diseases among men 20 years after exposure to severe stress: implications for clinical research and medical care. Psychosom Med 59:605–614, 1997 Boscarino JA, Chang J: Electrocardiogram abnormalities among men with stressrelated psychiatric disorders: implications for coronary heart disease and clinical research. Ann Behav Med 21:227–234, 1999 Brady K, Pearlstein T, Asnis GM, et al: Double-blind placebo-controlled study of the efficacy and safety of sertraline treatment of posttraumatic stress disorder. JAMA 283:1837–1844, 2000 Braun BG: Dissociative disorders as sequelae to incest, in Incest-Related Syndromes of Adult Psychopathology. Edited by Kluft RP. Washington, DC, American Psychiatric Press, 1990, pp 227–245 Breslau N, Davis GC: Posttraumatic stress disorder: the stressor criterion. J Nerv Ment Dis 175:255–264, 1987 Breslau N, Davis GC, Andreski P, et al: Traumatic events and posttraumatic stress disorder in an urban population of young adults. Arch Gen Psychiatry 48:216– 222, 1991 Breslau N, Davis GC, Andreski P, et al: Sex differences in posttraumatic stress disorder. Arch Gen Psychiatry 54:1044–1048, 1997a Breslau N, Davis GC, Peterson EL, et al: Psychiatric sequelae of posttraumatic stress disorder in women. Arch Gen Psychiatry 54:81–87, 1997b Breslau N, Kessler RC, Chilcoat HD, et al: Trauma and posttraumatic stress disorder in the community: the 1996 Detroit Area Survey of Trauma. Arch Gen Psychiatry 55:626–632, 1998 Breslau N, Chilcoat HD, Kessler RC, et al: Previous exposure to trauma and PTSD effects of subsequent trauma: results from the Detroit Area Survey of Trauma. Am J Psychiatry 156:902–907, 1999 Brewin CR, Andrews B, Rose S, et al: Acute stress disorder and posttraumatic stress disorder in victims of violent crime. Am J Psychiatry 156:360–366, 1999 Brewin CR, Andrews B, Valentine JD: Meta-analysis of risk factors for posttraumatic stress disorder in trauma-exposed adults. J Consult Clin Psychol 68:748– 766, 2000 Bromet E, Sonnega A, Kessler RC: Risk factors for DSM-III-R posttraumatic stress disorder: findings from the National Comorbidity Survey. Am J Epidemiol 147:353–361, 1998 Burnam MA, Stein JA, Golding JM, et al: Sexual assault and mental disorders in a community population. J Consult Clin Psychol 56:843–850, 1988 Burstein A: Posttraumatic stress disorder (letter). J Clin Psychiatry 46:300–301, 1985

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Davidson JRT, Malik ML, Sutherland SM: Response characteristics to antidepressants and placebo in post-traumatic stress disorder. Int Clin Psychopharmacol 12:291–296, 1996 Fairbank JA, Schlenger WE, Caddell JM, et al: Post-traumatic stress disorder, in Comprehensive Handbook of Psychopathology, 2nd Edition. Edited by Sutker PB, Adams HE. New York, Plenum, 1993, pp 145–165 Finkelhor D, Hotaling G, Lewis IA, et al: Sexual abuse in a national survey of adult men and women: prevalence, characteristics, and risk factors. Child Abuse Negl 14:19–28, 1990 Foa EB, Rothbaum BO, Riggs DS, et al: Treatment of posttraumatic stress disorder in rape victims: a comparison between cognitive-behavioral procedures and counseling. J Consult Clin Psychol 59:715–723, 1991 Foa EB, Keane TM, Friedman MJ (eds): Effective Treatments for PTSD: Practice Guidelines From the International Society for Traumatic Stress Studies. New York, Guilford, 2000 Foy D, Sipprelle R, Ruger D, et al: Etiology of posttraumatic stress disorder in Vietnam veterans: analysis of premilitary, military and combat exposure influences. J Consult Clin Psychol 43:643–649, 1987 Friedman MJ (ed): Progress in the psychobiology of post-traumatic stress disorder. Semin Clin Neuropsychiatry 4(4):230–316, 1999 Friedman MJ, Charney DS, Deutch AY: Neurobiological and Clinical Consequences of Stress: From Normal Adaptation to Post-Traumatic Stress Disorder. Philadelphia, PA, Lippincott-Raven, 1995 Friedman MJ, Davidson JRT, Mellman TA, et al: Pharmacotherapy, in Effective Treatments for PTSD: Practice Guidelines From the International Society for Traumatic Stress Studies. Edited by Foa EB, Keane TM, Friedman MJ. New York, Guilford, 2000, pp 84–105 Gilboa-Schechtman E, Foa EB: Patterns of recovery from trauma: the use of intraindividual analysis. J Abnorm Psychol 110:392–400, 2001 Green BL: Defining trauma: terminology and generic stressor dimensions. Journal of Applied Social Psychology 20:1632–1642, 1990 Green BL: Psychosocial research in traumatic stress: an update. J Trauma Stress 7:341–362, 1994 Green BL, Kimerling R: Trauma, PTSD, and health status, in Physical Health Consequences of Exposure to Extreme Stress. Edited by Schnurr PP, Green BL. Washington, DC, American Psychological Association (in press) Green BL, Solomon SD: The mental health impact of natural and technological disasters, in Traumatic Stress: From Theory to Practice. Edited by Freedy JR, Hobfoll SE. New York, Plenum, 1995, pp 163–180 Green BL, Grace MC, Lindy JD, et al: Risk factors for PTSD and other diagnoses in a general sample of Vietnam veterans. Am J Psychiatry 147:729–733, 1990a Green BL, Grace MC, Lindy JD, et al: Buffalo Creek survivors in the second decade: comparison with unexposed and nonlitigant groups. J Appl Soc Psychol 20: 1033–1050, 1990b

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Green BL, Lindy JD, Grace MC, et al: Buffalo Creek survivors in the second decade: stability of stress symptoms. Am J Orthopsychiatry 60:43–54, 1990c Green BL, Lindy JD, Grace MC, et al: Chronic posttraumatic stress disorder and diagnostic comorbidity in a disaster sample. J Nerv Ment Dis 180:760–766, 1992 Green BL, Goodman LA, Krupnick JL, et al: Outcomes of single versus multiple trauma exposure in a screening sample. J Trauma Stress 13:271–286, 2000 Grunert BK, Matloub HS, Sanger JR, et al: Effects of litigation on maintenance of psychological symptoms after severe hand injury. Journal Hand Surg [Am] 16A:1031–1034, 1991 Hamner MB, Rueh C, Ulmer HG, et al: Psychotic features in chronic posttraumatic stress disorder and schizophrenia. J Nerv Ment Dis 188:217–221, 2000 Harvey AG, Bryant RA: The relationship between acute stress disorder and posttraumatic stress disorder: a 2-year prospective evaluation. J Consult Clin Psychol 67:985–988, 1999 Herman JL, Perry JC, van der Kolk BA: Childhood trauma in borderline personality disorder. Am J Psychiatry 146:490–495, 1989 Holen A: A Long-Term Outcome Study of Survivors From a Disaster. Unpublished doctoral dissertation, University of Oslo, Oslo, Norway, 1990 Holen A: A longitudinal study of the occurrence and persistence of post-traumatic health problems in disaster survivors. Stress Medicine 7:11–17, 1991 Keane TM, Fairbank JA, Caddell JM, et al: Implosive (flooding) therapy reduces symptoms of PTSD in Vietnam combat veterans. Behavior Therapist 20:245– 260, 1989 Kessler RC, Sonnega A, Bromet E, et al: Posttraumatic stress disorder in the National Comorbidity Survey. Arch Gen Psychiatry 52:1048–1060, 1995 Kilpatrick DG, Resnick HS, Freedy JR, et al: Posttraumatic stress disorder field trial: evaluation of the PTSD construct—criteria A through E, in DSM-IV Sourcebook, Vol 4. Edited by Widiger TA, Frances AJ, Pincus HA, et al. Washington, DC, American Psychiatric Association, 1998, pp 803–844 Koren D, Arnon I, Klein E: Long term chronic course of posttraumatic stress disorder in traffic accident victims: a three-year prospective follow-up study. Behav Res Ther 39:1449–1458, 2001 Kulka RA, Schlenger WE, Fairbank JA, et al: Trauma and the Vietnam War Generation. New York, Brunner/Mazel, 1990 Landsman IS, Baum CG, Arnkoff DB, et al: The psychosocial consequences of traumatic injury. J Behav Med 13:561–581, 1990 Malt U: The long-term psychiatric consequences of accidental injury. Br J Psychiatry 153:810–818, 1988 Malt UF, Blikra G, Hoivik B: The three-year biopsychosocial outcome of 551 hospitalized accidentally injured adults. Acta Psychiatr Scand Suppl 355:84–93, 1989 Manne SL, Du Hamel K, Ballelli K, et al: Posttraumatic stress disorder among mothers of pediatric cancer survivors: diagnosis, comorbidity, and utility of the PTSD checklist as a screening instrument. J Pediatr Psychol 23:357–366, 1998

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March JS: What constitutes a stressor? The “criterion A” issue, in Posttraumatic Stress Disorder: DSM-IV and Beyond. Edited by Davidson JRT, Foa EB. Washington, DC, American Psychiatric Press, 1993, pp 37–54 Mendelson G: ‘Compensation neurosis’ revisited: outcome studies of the effects of litigation. J Psychosom Res 39:695–706, 1995 Norris FH: Epidemiology of trauma: frequency and impact of different potentially traumatic events on different demographic groups. J Consult Clin Psychol 60: 409–418, 1992 Port CL, Engdahl B, Frazier P: A longitudinal and retrospective study of PTSD among older prisoners of war. Am J Psychiatry 158:1474–1479, 2001 Resnick HS, Kilpatrick DG, Best CL, et al: Vulnerability-stress factors in development of posttraumatic stress disorder. J Nerv Ment Dis 180:424–430, 1992 Resnick HS, Kilpatrick DG, Dansky BS, et al: Prevalence of civilian trauma and posttraumatic stress disorder in a representative national sample of women. J Consult Clin Psychol 61:984–991, 1993 Rheingold A, Acierno R, Resnick HS: Trauma, PTSD, and health risk behaviors, in Physical Health Consequences of Exposure to Extreme Stress. Edited by Schnurr PP, Green BL. Washington, DC, American Psychological Association (in press) Roemer L, Litz BT, Orsillo SM, et al: Increases in retrospective accounts of warzone exposure over time: the role of PTSD symptom severity. J Trauma Stress 11:597–605, 1998 Rothbaum BO, Foa EB: Subtypes of posttraumatic stress disorder and duration of symptoms, in Posttraumatic Stress Disorder: DSM-IV and Beyond. Edited by Davidson JRT, Foa EB. Washington, DC, American Psychiatric Press, 1993, pp 23–35 Rothbaum BO, Foa EB, Riggs DS, et al: A prospective examination of post-traumatic stress disorder in rape victims. J Trauma Stress 5:455–475, 1992 Rothbaum BO, Meadows EA, Resick P, et al: Cognitive-behavioral therapy, in Effective Treatments for PTSD: Practice Guidelines From the International Society for Traumatic Stress Studies. Edited by Foa EB, Keane TM, Friedman MJ. New York, Guilford, 2000, pp 60–83 Schnurr PP, Green BL: Understanding relationships among trauma, PTSD, and health outcomes, in Physical Health Consequences of Exposure to Extreme Stress. Edited by Schnurr PP, Green BL. Washington, DC, American Psychological Association (in press) Shalev AY, Peri T, Canetti L, et al: Predictors of PTSD in injured trauma survivors: a prospective study. Am J Psychiatry 153:219–225, 1996 Solomon Z: Psychological sequelae of war: a 3-year prospective study of Israeli combat stress reaction casualties. J Nerv Ment Dis 177:342–346, 1989 Speed N, Engdahl B, Schwartz J, et al: Post-traumatic stress disorder as a consequence of the POW experience. J Nerv Ment Dis 177:147–153, 1989 Stein MB, Walker JR, Hazen AL, et al: Full and partial posttraumatic stress disorder: findings from a community survey. Am J Psychiatry 154:1114–1119, 1997 Straus MA, Gelles RJ: Societal change and change in family violence from 1975– 1985 as revealed by two national surveys. J Marriage Fam 48:465–479, 1986

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Ursano RJ, Fullerton CS, Epstein RS, et al: Acute and chronic PTSD stress disorder in motor vehicle accident victims. Am J Psychiatry 156:589–595, 1999a Ursano RJ, Fullerton CS, Epstein RS, et al: Peritraumatic dissociation and posttraumatic stress disorder following motor vehicle accidents. Am J Psychiatry 156: 1808–1810, 1999b Yehuda R, McFarlane AC (eds): Psychobiology of posttraumatic stress disorder. Ann N Y Acad Sci, Vol 821, 1997 Zatzick DF, Marmar CR, Weiss DS, et al: Posttraumatic stress disorder and functioning and quality of life outcomes in a nationally representative sample of male Vietnam veterans. Am J Psychiatry 154:1690–1695, 1997a Zatzick DF, Weiss DS, Marmar CR, et al: Post-traumatic stress disorder and functioning and quality of life outcomes in female Vietnam veterans. Mil Med 162: 661–665, 1997b

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C H A P T E R

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Forensic Psychiatric Assessment of PTSD Claimants Robert I. Simon, M.D.

Posttraumatic stress disorder (PTSD) holds a prominent place in psychic

injury litigation. Stone (1993) observed that “[n]o diagnosis in the history of American psychiatry has had a more dramatic and pervasive impact on law and social justice than posttraumatic stress disorder” (p. 23). With litigation burgeoning, PTSD has become a growth industry. Traditionally, PTSD has been applied to personal injury claims on the basis of the psychological consequences of automobile and public carrier accidents, home and industrial accidents, and mass disasters. A few notable examples of mass disasters include the Buffalo Creek flood in West Virginia, the collapse of the Hyatt Regency Hotel skywalk in Kansas City, the Three Mile Island nuclear accident, and war-related injuries of the Vietnam War and previous wars. The terrorist attacks on the World Trade Center and the Pentagon caused severe psychological injury to surviving victims, their families, rescue workers, and countless others who witnessed the death and destruction. Many of these individuals have experienced symptoms of acute and chronic PTSD (Galea et al. 2002). In litigation, PTSD is being alleged as a consequence of all types of accidents and human mishaps (Slovenko 1994). In the criminal law, defendants have pled not guilty by reason of insanity secondary to PTSD (Sparr 1990). The diagnosis of PTSD has been alleged in criminal proceedings by prosecutors to bolster the credibility of the victim or by experts who attempt to argue retrospectively from PTSD symptoms to establish the occurrence of a traumatic stressor (e.g., rape). Victims of criminal acts who develop PTSD or other psychiatric disorders may sue under criminal injuries compensation acts. PTSD has bolstered the advocates of “victim rights,” whose advocacy poses a threat to the constitu-

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tional rights of defendants (Stone 1993). A study by Appelbaum et al. (1993) found that, contrary to concerns, PTSD was associated infrequently with an insanity defense. Defendants with a PTSD diagnosis were no more likely to succeed than defendants with any other diagnosis, differing little from other insanity defendants. The fear that PTSD would be widely misused in connection with the insanity defense was not corroborated. A brief history of PTSD reveals that, in earlier incarnations, it was diagnosed as “railway spine” in the nineteenth century. Such injuries were particularly common with the burgeoning of railroads. It was thought that concussion of the spine with concomitant injury to the sympathetic nervous system caused the observed traumatic neurosis (Trimble 1981). In World Wars I and II, traumatic stress disorders were called variously shell shock, battle fatigue, traumatic neurosis, and concentration camp syndrome. With the advent of the DSM (American Psychiatric Association 1952), the disorder was labeled gross stress reaction. In DSM-II (American Psychiatric Association 1968), it was named adjustment reaction of adult life. Finally, with the publication of DSM-III (American Psychiatric Association 1980), the diagnosis of PTSD was created. In DSM-IV (American Psychiatric Association 1994), PTSD underwent further modification in diagnostic criteria. The DSM-IV Text Revision (DSM-IV-TR; American Psychiatric Association 2000) contains limited revisions to the text sections such as “Associated Features and Disorders” and “Prevalence.” No substantive changes in the diagnostic criteria were considered. Thus, DSM-IV is still used when referring to diagnostic criteria in this chapter. Four out of every 10 Americans have been exposed to a major traumatic event by the age of 30 (Davidson 1991). PTSD develops in approximately one-quarter of the trauma-exposed population, making it the most common preventable major mental illness. The incidence of PTSD is much higher in victims of rape and sexual abuse. Moreover, a significant increase in suicide, drug abuse, and other psychiatric disorders is associated with PTSD. Chronic physical conditions, including hypertension, peptic ulcers, and bronchial asthma, also have a higher association with the diagnosis of PTSD.

The Forensic Evaluation There are five basic questions that the forensic examiner should consider in the evaluation of the PTSD claimant: 1. Does the alleged PTSD claim actually meet specific clinical criteria for this disorder? 2. Is the traumatic stressor that is alleged to have caused the PTSD of sufficient severity to produce this disorder?

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3. What is the preincident psychiatric history of the claimant? 4. Is the diagnosis of PTSD based solely on the subjective reporting of symptoms by the claimant? 5. What is the claimant’s actual level of functional psychiatric impairment? Each question will be explored and guidelines will be proposed (Table 3–1) for the forensic psychiatric examination of the PTSD claimant. The proposed guidelines are not intended to be proscriptive. Rather, these guidelines provide reasonable clinical latitude for performing a credible forensic examination. The importance of clinical experience and sound judgment is presumed and, therefore, not explicitly stated within the proposed guidelines. TABLE 3–1. Guidelines for the forensic psychiatric examination of posttraumatic stress disorder (PTSD) litigants 1. In evaluating the diagnostic criteria for PTSD, the forensic examiner should be guided by official diagnostic manuals, the professional literature, and current research. Idiosyncratic definitions of PTSD must be avoided. If official diagnostic criteria are not used, the burden of proof is placed on the forensic examiner to provide the scientific evidence for the diagnosis of PTSD. 2. In assessing the sufficiency of traumatic stressors for the diagnosis of PTSD, the forensic examiner should be guided by official diagnostic manuals, the professional literature, and current research. The possible contributions of multiple stressors to the PTSD claimant’s clinical picture also should be evaluated. 3. A credible forensic psychiatric evaluation of a PTSD claimant requires a thorough examination of the claimant’s psychiatric and medical history, including review of prior medical, psychiatric, and other pertinent records. 4. Relying exclusively on the subjective reporting of symptoms by the PTSD claimant without considering additional sources of information is insufficient. As a corollary, treater and forensic roles should not be mixed in the forensic examination of the PTSD claimant. 5. Standard assessment methods should be used in evaluating the level of functional psychological impairment of PTSD claimants. The examiner should not rely exclusively on clinical experience or subjective or idiosyncratic criteria in assessing psychological impairment.

Diagnostic Criteria for PTSD In DSM-IV, PTSD is defined according to specific stressor (criterion A) and symptom criteria (criteria B, C, and D) (Table 3–2). Repeated reexperiencing of the traumatic event—through recurrent nightmares; distressing, intrusive recollections; or flashback experiences—is the hallmark feature of PTSD (criterion B).

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TABLE 3–2. DSM-IV criteria for posttraumatic stress disorder (PTSD) A. The person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. (2) the person’s response involved intense fear, helplessness, or horror. Note: In children, this may be expressed instead by disorganized or agitated behavior. B. The traumatic event is persistently reexperienced in one (or more) of the following ways: (1) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed. (2) recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognizable content. (3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children, trauma-specific reenactment may occur. (4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. (5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following: (1) efforts to avoid thoughts, feelings, or conversations associated with the trauma (2) efforts to avoid activities, places, or people that arouse recollections of the trauma (3) inability to recall an important aspect of the trauma (4) markedly diminished interest or participation in significant activities (5) feeling of detachment or estrangement from others (6) restricted range of affect (e.g., unable to have loving feelings) (7) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span) D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following: (1) difficulty falling or staying asleep (2) irritability or outbursts of anger

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TABLE 3–2. DSM-IV criteria for posttraumatic stress disorder (PTSD) D. (continued) (3) difficulty concentrating (4) hypervigiliance (5) exaggerated startle response E. Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month. F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. Specify if: Acute: if duration of symptoms is less than 3 months Chronic: if duration of symptoms is 3 months or more Specify if: With delayed onset: if onset of symptoms is at least 6 months after the stressor Source. Reprinted from American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition. Washington, DC, American Psychiatric Association, 1994, pp. 427–429. Used with permission.

Although flashbacks are an essential part of the total symptom picture in PTSD, flashbacks alone are also found among well-adjusted people. They are not, per se, evidence of organic or functional psychopathology (Spiegel 1991). Moreover, flashbacks may be a manifestation of normal memory and attention processes (McGee 1984). Unlike the hallmark reexperiencing of symptoms of criterion B, symptoms in criteria C and D are not unique to PTSD but may overlap with other psychiatric disorders. For example, in criterion C, numbing phenomena are specified, including detachment from others, loss of interest in life events, loss of ability to feel or experience normal emotions, and a sense of a foreshortened future. Combined with the criterion D symptoms of sleeplessness, difficulty concentrating, anger, and hostility, this complex of symptoms becomes very difficult to distinguish from symptoms of depression. In delayed PTSD, reexperiencing symptoms may develop months (more than 6 months) or years after the trauma. The forensic examiner must be careful to rule out the occurrence of a subsequent, unrelated traumatic stressor as the proximate cause of the alleged delayed PTSD. PTSD symptoms of less than 1 month’s duration are very common but do not meet the duration criteria for this disorder. In DSM-IV, the diagnosis of acute stress disorder is made in persons with PTSD who have dissociative symptoms lasting between a minimum of 2 days and a maximum of 4 weeks beginning within 4 weeks of the traumatic event (Table 3–3). The diagnosis of chronic PTSD

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TABLE 3–3. DSM-IV criteria for acute stress disorder A. The person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. (2) the person’s response involved intense fear, helplessness, or horror. B. Either while experiencing or after experiencing the distressing event, the individual has three (or more) of the following dissociative symptoms: (1) a subjective sense of numbing, detachment, or absence of emotional responsiveness (2) a reduction in awareness of his or her surroundings (e.g., “being in a daze”) (3) derealization (4) depersonalization (5) dissociative amnesia (i.e., inability to recall an important aspect of the trauma) C. The traumatic event is persistently reexperienced in at least one of the following ways: recurrent images, thoughts, dreams, illusions, flashback episodes, or a sense of reliving the experience; or distress on exposure to reminders of the traumatic event. D. Marked avoidance of stimuli that arouse recollections of the trauma (e.g., thoughts, feelings, conversations, activities, places, people). E. Marked symptoms of anxiety or increased arousal (e.g., difficulty sleeping, irritability, poor concentration, hypervigilance, exaggerated startle response, motor restlessness). F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning or impairs the individual’s ability to pursue some necessary task, such as obtaining necessary assistance or mobilizing personal resources by telling family members about the traumatic experience. G. The disturbance lasts for a minimum of 2 days and a maximum of 4 weeks and occurs within 4 weeks of the traumatic event. H. The disturbance is not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition, is not better accounted for by brief psychotic disorder, and is not merely an exacerbation of a preexisting Axis I or Axis II disorder. Source. Reprinted from American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, pp. 431–432. Washington, DC, American Psychiatric Association, 1994. Used with permission.

was added to DSM-IV if the duration of symptoms is 3 months or more. A diagnosis of acute PTSD is made if the duration of symptoms is less than 3 months. In DSM-IV, clinicians are encouraged to consider specific culture and age features that influence the diagnosis of PTSD.

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Unless the criteria sufficient for the diagnosis of PTSD are present, the basis for the claimant’s diagnosis of PTSD is not valid. It is not unusual, when investigating a claim of PTSD, to find that the clinical criteria for a PTSD diagnosis are not fulfilled. Instead, one may find the continuation of unrelated, chronic Axis I clinical syndromes or Axis II personality disorders, their exacerbation, or the development of entirely new but totally different psychiatric disorders. Forensic examiners must be careful not to overreach in order to diagnose PTSD. Claimants who experience a significant trauma may not necessarily develop PTSD. There may be other disorders that are both related and unrelated to the traumatic stressor in question that should be diagnosed. For example, Davidson (1993) notes the existence of 10 traumarelated disorders other than PTSD found in DSM-III-R: brief reactive psychosis, multiple personality disorder (called dissociative identity disorder in DSM-IV), dissociative fugue, dissociative amnesia, conversion disorder, depersonalization disorder, dream anxiety disorder, somatization disorder, borderline personality disorder, and antisocial personality disorder. Credibility is severely compromised if an examiner attempts to force the diagnosis of PTSD when the criteria for this disorder are not fulfilled. If only a few PTSD criteria are met, a diagnosis of anxiety disorder not otherwise specified may be appropriate. Because PTSD is trauma specific, it has been a favorite diagnosis in litigation, creating a presumption of causation. When other psychiatric disorders are diagnosed, causation of harm may be much more difficult to prove. Multiple psychosocial stressors unrelated to the legal cause of action may be operative in producing a psychiatric disorder. Other options should be considered when symptoms of PTSD do not rise to a level sufficient to meet DSM-IV criteria for a PTSD diagnosis. The diagnosis of subthreshold PTSD is discussed later in this section. The examiner also may decide to merely describe the existing symptoms while clearly stating that DSM criteria are not met fully for PTSD. Some of the symptoms of a claimant’s PTSD may resolve over time, no longer meeting the parsimonious criteria for diagnosis of this disorder. The absence of PTSD symptoms at the time of examination may be a function of the phasic nature of this disorder. Clinicians frequently observe that patients experience alternating dominant phases or cycles of hyperarousal-intrusion and numbing-constriction (Horowitz 1976). When the initial numbing-constriction phase is of long duration, a delayed PTSD may be appropriately diagnosed. However, it is important to distinguish delayed onset from delayed recognition. The presence of severe avoidant symptoms may mask the diagnosis of PTSD (Epstein 1993). Pitman (1993) stated that PTSD consists of a combination of bimodal tonic and phasic features. Tonic

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features are present all or most of the time. Phasic features generally manifest from time to time, usually when evoked by salient environmental stressors. This psychological model parallels Selye’s (1950) biophysiological general adaptation syndrome that follows three stages: 1) alarm, 2) resistance, and 3) exhaustion when bodily resources have been depleted. It may be, however, that hyperarousal-intrusion symptoms are the direct result of the traumatic stressor, whereas the numbing-constriction symptoms are a defense or reaction to the primary symptoms of PTSD. Other factors may contribute to missing the diagnosis of PTSD. False negatives may arise when a person denies symptoms of PTSD because of shame or because of a desire to avoid reexperiencing the traumatic event. Also, cultural differences may cause the forensic examiner to overlook the diagnosis of PTSD. Although the human response to severe traumatic events does exhibit some universal features, ethnocultural factors can play an important part in an individual’s susceptibility to PTSD as well as in the expression of PTSD symptoms and response to treatment (Marsella et al. 1993). Hyperarousal-intrusive symptoms include hyperactivity, explosive violent outbursts, increased startle response, and unbidden recollections of the trauma in the form of nightmares, flashbacks, and reenactment of the traumatic experience. Numbing-constriction symptoms involve denial, social isolation, emotional constriction, withdrawal, avoidance of family responsibilities, anhedonia (loss of pleasure), and estrangement from others. Thus, the forensic examiner must inquire about all PTSD symptoms that have occurred, not merely the current symptoms described by the claimant. Otherwise, the examiner may obtain an incomplete clinical picture and may miss the diagnosis of PTSD. Misinterpreting PTSD symptoms is another cause for diagnostic error. PTSD, classified as an anxiety disorder, is dominated by dissociative symptoms. Evidence is accumulating that a link exists between trauma and dissociative symptoms. Studies have shown that veterans with PTSD are more hypnotizable than normal control subjects (Spiegel 1991). Dissociative processes are a prominent component of the response to trauma (Spiegel and Cardeña 1990). For example, reexperiencing phenomena are essentially dissociative in that they involve some disturbances or alteration in memory or consciousness. PTSD reexperiencing symptoms occur in a hierarchy from intrusive imagery to major dissociative enactments in which contact with contemporary reality and orientation is lost (Loewenstein 1991a). Blank (1985) has identified four types of intrusive recall in PTSD: 1) vivid dreams and nightmares of traumatic events; 2) remaining under the influence of vivid dream content after awakening, with difficulty in making contact with reality; 3) conscious flashbacks experienced as intrusive, vivid halluci-

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nations (any or all of the senses) with or without loss of contact with reality; and 4) unconscious flashbacks felt as sudden, discrete experiences leading to actions that repeat or re-create a traumatic event. Awareness that a connection exists between the action and the past traumatic event is absent. Reexperiencing phenomena involve recurrent, intrusive, distressing, often visual reexperiencing of the traumatic event. The claimant, for example, may describe a depersonalization event in which he or she sees and relives the traumatic event in graphic, vivid detail, as if watching a movie. Thus, merely thinking or reflecting anxiously about the traumatic event usually is not sufficient to meet reexperiencing criteria. Most often, it is the reexperiencing of feelings associated with traumatic events, not the contents of the memories per se, that persons with PTSD find so excruciating. Generally, the more dissociative the quality of the reexperiencing phenomenon described by the claimant, the more likely it solidly meets the hallmark criterion B for PTSD. The magnitude of the acute dissociative response has important prognostic significance, requiring early and effective intervention (Davidson et al. 1989). Short-term memory deficits have been described in persons diagnosed with PTSD (Bremner et al. 1993c). In claimants alleging PTSD and mild head injury, an overlapping of symptoms may occur (Table 3–4). For example, the forensic examiner must be careful to distinguish the cognitive impairments of PTSD (difficulty concentrating and selective psychogenic amnesia) from cognitive impairment secondary to mild traumatic brain injury and the postconcussive syndrome. As a rule, postconcussive symptoms, including memory impairment, start immediately after the injury and improve over the next few months. However, PTSD symptoms may become more evident or may manifest a delayed onset (McAllister 1994). The loss of memory in PTSD primarily involves the circumscribed aspect of a traumatic event, usually the most psychologically painful part. In amnesia secondary to head injury, memory is lost for the entire traumatic event, including some time before and after the head injury (retrograde and anterograde amnesia). When PTSD and head injury are alleged to occur together, it is a serious error to confound the cognitive impairments of PTSD with those of a brain injury. Each disorder must be investigated separately and thoroughly. Finally, some of the reexperiencing symptoms are more resistant to distortion over time than others. For example, flashback symptoms tend to replay the trauma with visual fidelity over long periods of time. The intensity of the flashback, however, may diminish. On the other hand, recurrent nightmares manifest distortion of the traumatic event in the dream content within days to a few weeks. Nightmares occur throughout the sleep cycle. Recurrent posttraumatic nightmares during rapid eye movement (REM)

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TABLE 3–4. Criteria for PTSD and symptoms of postconcussive syndrome PTSD

Postconcussive syndrome

Reexperiencing trauma Recurrent intrusive recollections of traumatic event Recurrent distressing dreams of traumatic event Flashbacks of traumatic event Intense distress triggered by symbolic remindersa Physiological reactivity upon exposure to events resembling trauma

Hypochondriacal concerns Headache Dizziness

Avoidance Efforts to avoid thoughts or feelings associated with event Efforts to avoid activities that arouse event Inability to recall aspect of event (psychogenic amnesia)a

Memory deficitsa

Markedly diminished interest in activities

Fatigue

Feelings of detachment Restricted range of affect A sense of foreshortened future Increased arousal

Difficulty falling or staying asleepa Irritability or outbursts of angera Difficulty concentratinga Hypervigilance Exaggerated startle responsea

Increased sensitivity to noisea Photophobia Insomniaa Irritabilitya Decreased concentrationa Anxietya

aSymptoms and criteria that overlap between postconcussive syndrome and posttraumatic stress disorder. Source. Reprinted from Epstein RS, Ursano RJ: “Anxiety Disorders,” in Neuropsychiatry of Traumatic Brain Injury. Edited by Silver JM, Yudofsky SC, Hales RE. Washington, DC, American Psychiatric Press, 1994, p. 293. Copyright 1994, American Psychiatric Press. Used with permission.

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sleep recapitulate the trauma theme but rarely play back the traumatic incident in exact detail. Since a certain degree of distortion of dream content occurring later during REM sleep is inevitable, malingering should be considered in claimants who report recurrent dreams months later that replay the traumatic event in exact detail. Should forensic examiners be required to follow DSM-IV criteria exclusively in making the diagnoses of PTSD? Do these criteria define PTSD symptoms too narrowly? Generally, the answer to the first question is yes. The answer to the second question is maybe. One study (Schottenfeld and Cullen 1985), for example, asserts that a somatoform version of this disorder exists and is often missed. Other PTSD variants not reported in DSM-IV include posttraumatic depression (Davidson and Fairbank 1993); posttraumatic stress syndrome (Blank 1993) (when full criteria are not met); and the sequelae of prolonged and repeated trauma, referred to as disorder of extreme stress not otherwise specified (Herman 1993). Courts have been divided on requiring the use of DSM criteria (Simon 1988). The California Workers’ Compensation rating system requires the use of DSM diagnoses (Enelow 1991). Attorneys, because they lack clinical training, often approach DSM-IV in a formalistic and literal fashion. DSM-IV clearly warns, “It is important that DSM-IV not be applied mechanically by untrained individuals. The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion” (American Psychiatric Association 1994, p. xxiii). DSM-IV criteria reflect the “prototypical case” and offer a certain diagnostic latitude for cases that are less clearly defined (Frances 1990). Persons sharing a diagnosis are likely to be heterogeneous, differing clinically in important ways. Symptoms also may overlap with a number of other diagnostic categories. In the clinical setting, DSM-IV possesses important clinical utility in assisting diagnosis and treatment. DSM-IV is the best clinical diagnostic instrument we have to date for PTSD. It provides clear-cut operational definitions for the stressor criterion in PTSD while adding new information about primary and secondary symptomatology found in a wider range of populations (Wolfe and Keane 1990). In addition, the DSM-IV multiaxial system provides a comprehensive approach to psychiatric evaluation. It has gained acceptance in the mental health community and among forensic experts (Scrignar 1988, pp. 211–213). In California, a retired judge who presided over the Los Angeles Workers’ Compensation Appeals Board emphatically stated, “Accordingly, for the legal system, the DSM-III-R was a heaven-sent aid to achieving an effective degree of uniformity and objectivity for evaluating psychiatric claims” (quoted in Lasky 1991, p. 19). He went on to state that although DSM-III-R

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may not be totally accurate and needs improvement, this does not negate its utility as a practical aid in resolving disputes. Construct and discriminant validity studies of PTSD (diagnostic criteria accurately define the disorder and distinguish it from other disorders) are evolving rapidly (Wolfe and Keane 1990). Reliability (interrater agreement) studies for DSM-III were conducted by the National Institute of Mental Health (NIMH) in a series of field trials (American Psychiatric Association 1980). Davidson et al. (1989) demonstrated high interrater and test-retest reliability for DSM-III criteria for PTSD. PTSD is classified under anxiety disorders in DSM-IV. The coefficients of agreements were good for anxiety disorders (American Psychiatric Association 1980) for phases I and II of field trials. NIMH-sponsored field trials for DSM-IV were run specifically for the diagnosis of PTSD (American Psychiatric Association, Task Force on DSM-IV 1991, pp. H:15– H:19). Moreover, the laborious and painstakingly careful work done by competent researchers and clinicians working through 26 advisory committees in establishing the diagnostic criteria for psychiatric disorders gives DSM-IV substantial credibility. DSM-IV contains clear cautionary statements concerning the relevancy limitations of this manual in legal settings. Nevertheless, these DSM caveats do not negate the considerable value in assessing the litigant along all five axes. Perr (1988) noted that the misuse of the PTSD diagnosis in litigation is striking, often bearing no relationship to the requirements of the current diagnostic system. A clear example of the misuse of DSM-IV occurs when the psychiatrically uninformed attorney approaches diagnostic criteria as if he or she were reading a statute. DSM-IV can be wittingly or unwittingly distorted in the course of litigation to serve the purposes of one side or the other. Some attorneys, for example, cloak the DSM in the trappings of absolute authority, tending to view DSM-IV diagnostic criteria as “black letter law.” Often overlooked is the fact that the DSM reflects a consensus about the classification and diagnosis at the time of publication. Increased understanding of the mental disorders occurs as new knowledge is generated by clinical experience and research. Attorneys lack the training, skill, and experience to appreciate the protean clinical presentations of a disorder within the prototypical diagnostic criteria described in the DSM. Moreover, specific diagnostic criteria for each mental disorder are offered only as guidelines to clinicians for making diagnoses. When DSM criteria are approached legalistically, they rarely fit real-life patients. Lawyers should seek competent clinical assistance when using the DSM so as not to misinterpret or misuse it in the legal context. The alternative to using DSM criteria for PTSD is the potential for re-

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liance on highly variable or even idiosyncratic PTSD criteria established according to the clinical bias and legal agenda of the forensic examiner. Unfortunately, the standard criteria for the diagnosis of PTSD are ignored by some mental health practitioners who enter the legal arena. Juries and judges are frequently confused by the babble of testimony presented concerning what is and what is not PTSD. Testimony that lacks a scientific basis undermines the credibility of the testifier as well as that of his or her profession. The ensuing harm done to claimants as well as defendants can be great. The following clinical vignette illustrates the peril of ignoring basic criteria in the diagnosis of PTSD: A 43-year-old woman suffers multiple arm and leg fractures during an airplane crash. Loss of consciousness occurs for approximately 10 minutes, with significant retrograde and anterograde amnesia. The woman’s memory is continuous only up to the time of arrival at the airport. She has a history of brief psychiatric treatment for generalized anxiety that was resolved. On one occasion, she returns to view the site of the accident with her family. At the time of trial, her expert asserts that she suffers PTSD secondary to the catastrophic trauma of the airplane crash. However, no reexperiencing, avoidance, or numbing symptoms are noted in the examination conducted by the expert months after the accident. Symptoms of moderate anxiety and depression are present. The expert asserts that delayed PTSD will eventually emerge, given the catastrophic nature of the traumatic stressor. The expert’s testimony is severely undercut on crossexamination when he is forced to admit that since no memory for the plane crash exists, no PTSD could develop from the accident itself.

The vignette illustrates that improbable testimony can result from an expert’s attempt to overreach the clinical data. Some forensic examiners disregard or run fast and loose with established clinical criteria to arrive at a spurious diagnosis of PTSD. No symptom criteria for PTSD were manifested by the claimant in the clinical vignette. It is likely that the claimant suffered from an adjustment disorder with mixed emotional features or the recrudescence of the former anxiety disorder. On the other hand, Epstein (1993) reported a case in which the diagnosis of PTSD was missed because it was mistakenly believed that the patient had been unconscious during the accident. Although an individual may be unconscious during an extremely traumatic event, PTSD symptoms may nevertheless develop. The individual may regain consciousness in a hospital to find that heroic emergency efforts are being administered and that his or her life is in peril. The subsequent PTSD symptoms reflect the events surrounding the resuscitation rather than the original traumatic event.

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Subthreshold PTSD Subthreshold conditions in medicine and psychiatry are common and often cause significant impairment. For example, in medicine, a patient may have some but not all of the clinical symptoms necessary to make a diagnosis of migraine headache but is nonetheless debilitated by the pain. In psychiatry, subsyndromal symptoms of major depression can be disabling (Broadhead et al. 1990; Judd et al. 2000). Similarly, subthreshold social phobia can be associated with severe limitations (Davidson et al. 1994). Subthreshold psychiatric conditions may not fit into categorical diagnostic classifications but may nonetheless cause impairment. For example, subthreshold PTSD, although often causing substantial impairment, is not recognized in DSM-IV (American Psychiatric Association 1994). Subthreshold PTSD is recognized in the professional literature (Blanchard et al. 1994; Schutzwohl and Maercker 1999; Stein et al. 1997). It is common in Vietnam veterans (Warshaw et al. 1993; Weiss et al. 1992) and is highly represented among sexual abuse survivors and in other traumatized persons (Blanchard et al. 1996; Carlier and Gersons 1995). Individuals with subthreshold PTSD and PTSD may exhibit similar levels of impaired function (Stein et al. 1997). In a large epidemiological sample, Stein et al. (1997) determined the prevalence rate of full PTSD (all DSM-IV criteria are met) and partial PTSD following trauma exposure. The criteria for partial PTSD were that the individual met DSM-IV PTSD criteria except that he or she lacked one or two of the necessary three criterion C symptoms and/or lacked one of the necessary two criterion D symptoms. According to their criteria, persons had at least one symptom in each category to qualify for the diagnosis of partial PTSD. The study concluded that persons with subthreshold PTSD exhibit clinically significant levels of functional impairment associated with their symptoms. The DSM-IV criteria for the diagnosis of PTSD have been extensively researched. The diagnosis has a high degree of reliability. Nonetheless, it is well documented that individuals can develop many of the symptoms of PTSD after exposure to a traumatic event without meeting DSM-IV’s requisite number of symptoms for a formal diagnosis of PTSD. Such individuals may qualify for the diagnosis of subthreshold PTSD (Schutzwohl and Maercker 1999; Weiss et al. 1992). A recent large epidemiological study found significant impairment in individuals who met partial as well as full criteria for PTSD (Stein et al. 1997). Subthreshold PTSD may apply to persons who are newly diagnosed or those in the process of recovery. It may also persist over many years. A study by Marshall et al. (2001) looked at comorbidity impairment and suicidality in a cohort of adults with subthreshold PTSD. They found that impairment, number of comorbid disorders,

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rates of comorbid major depressive disorder, and current suicidal ideation increased linearly and significantly with each increasing number of subthreshold PTSD symptoms. This finding is important in assessing damages in forensic evaluations. One study, which estimated the lifetime prevalence of PTSD to affect 9% of the population in the United States, concluded that if subthreshold cases were added, the combined lifetime prevalence would increase to 14%–15% (Rothbaum and Foa 1996). The diagnosis of a subthreshold condition requires careful evaluation and must be clinically justified. DSM-IV stresses that the diagnostic criteria for any disorder are meant to serve as guidelines to be informed by clinical judgment and training in the diagnosis of psychiatric illness. It allows that the exercise of clinical judgment may justify giving a certain diagnosis to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis, as long as the symptoms that are present are persistent and severe. A classification system based on categories with static definitions works best when all members of a diagnostic class are homogeneous and when there are clear boundaries between classes. DSM-IV acknowledges that psychiatric disorders do not always meet these optimal conditions: [T]here is no assumption that each category of mental disorder is a completely discrete entity with absolute boundaries dividing it from other mental disorders or from no mental disorder. There is also no assumption that all individuals described as having the same mental disorder are alike in all important ways. The clinician using DSM-IV should therefore consider that individuals sharing a diagnosis are likely to be heterogeneous even in regard to the defining features of the diagnosis. (American Psychiatric Association 2000, p. xxxi)

Subthreshold PTSD is the type of condition to which this statement in the DSM refers. For example, an individual who demonstrates only two criterion C avoidance symptoms, rather than the requisite three, or who complains of prominent nightmares, increased arousal, heightened startle responses, and poor concentration but who demonstrates minimal avoidance behavior may be considered to have subthreshold PTSD, if he or she meets all the other criteria. If subthreshold PTSD is diagnosed, the forensic evaluator should carefully assess whether the individual meets the criteria for other DSM diagnoses, particularly anxiety disorder NOS (not otherwise specified) and whether these diagnoses are more appropriate and accurate. A number of the symptoms of PTSD overlap with the symptoms of certain other mood and anxiety disorders. These disorders can be influenced by a variety of external events. Many of these disorders have a higher incidence of occur-

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rence following a traumatic exposure than does PTSD. In addition, they may be comorbid with PTSD (Gold and Simon 2001). Most importantly, DSM-IV warns that “lack of familiarity with DSM-IV or excessively flexible and idiosyncratic application of DSM-IV criteria or conventions substantially reduces its utility as a common language for communication” (American Psychiatric Association 2000, p. xxxii). Any assessment of PTSD, even one that finds a diagnosis of subthreshold PTSD, must adhere to DSM criteria to be credible. The further a diagnosis of subthreshold PTSD deviates from the diagnostic criteria of PTSD, particularly from criteria A and F, the less likely it is accurate. A diagnosis of subthreshold PTSD cannot be made on the basis of clinical judgment only. It must be supported by research and the professional literature. The clinician must demonstrate that the DSM diagnostic criteria were carefully considered. The claimant bears the burden of proof for establishing the validity of the subthreshold PTSD diagnosis (Gold and Simon 2001). Schutzwohl and Maercker (1999) point out that, across study groups, the percentage of participants meeting the DSM-IV reexperiencing or hyperarousal criterion is much greater than the percentage who meet the avoidance criterion. They conclude that persons who have genuine PTSD symptoms are often excluded from the diagnosis of PTSD because of the absence of the requisite three avoidant symptoms. Experts must be able to provide a solid clinical rationale for a diagnosis of subthreshold PTSD, as well as cite the pertinent professional literature.

Guideline In evaluating the diagnostic criteria for PTSD, the forensic examiner should be guided by official diagnostic manuals, the professional literature, and current research. Idiosyncratic definitions of PTSD must be avoided. If official diagnostic criteria are not used, the burden of proof is placed on the forensic examiner to provide the scientific evidence for the diagnosis of PTSD.

Evaluating the Traumatic Stressor The professional literature clearly demonstrates that the stressor dose is a major risk factor in the development of PTSD, determined in part by life threat, physical injury, object loss, and the grotesqueness of the traumatic event (March 1993). Thus, the initial traumatic psychological response is

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predicated on the severity of the stressor. The subsequent adaptational response varies according to the psychological meaning of the experience to the individual rather than the precise nature of the traumatic event. It is not surprising that considerable variation exists in the risk of PTSD across trauma types. Sociodemographic predictors of PTSD are associated much less with trauma exposure than with risk of PTSD after exposure (Kessler et al. 1999). The definition of the traumatic event is of critical importance to the diagnosis of PTSD. This criterion (criterion A) in DSM-IV serves as the gatekeeper to the diagnosis of PTSD (Davidson and Foa 1991). The stressor criteria for PTSD in DSM-IV are slightly but significantly different from the criteria in DSM-III-R. The normative aspects of the DSM-III-R definition (American Psychiatric Association 1987, p. 247), such as “a psychologically distressing event that is outside the range of usual human experience” and “the stressor producing this syndrome would be markedly distressing to almost anyone,” were deleted for DSM-IV. The stressor criteria definition was broadened, introducing a subjective component. DSM-IV also dropped the distinction between stressors of acute and enduring duration. As a consequence, individuals with extreme reactions to minor trauma may pass through the wider gate of the DSM-IV traumatic stressor criteria (Pilowsky 1992). The “extreme traumatic stressor” as defined by DSM-IV that is most commonly associated with PTSD is serious threats to the life or bodily integrity of the person, his or her spouse, children, close relatives, or friends (American Psychiatric Association 1994, p. 424). Sudden destruction of a person’s home or community and witnessing the injury or death of another through accident or violence constitute traumatic stressors frequently associated with the development of PTSD. Stressors caused by man appear to have a greater traumatic impact than natural events. The injured person usually feels that a manmade stressor is preventable, whereas natural disasters are unavoidable acts of God. Feelings of rage, retribution, and vengeance are commonly experienced. Litigation, which frequently occurs, further exposes the person to the psychological trauma of an adversarial system. Torture frequently will produce severe PTSD symptoms. By contrast, commonly occurring car accidents without significant physical injury are less likely to produce PTSD symptomatology. McFarlane (1988) reported that the best clinical predictor of later PTSD development was an initial disturbance in concentration and memory. In a study of the survivors of the 1991 Oakland/Berkeley firestorm (Koopman et al. 1994), dissociative symptoms strongly predicted posttraumatic stress symptoms measured 7–9 months after the firestorm. On the other hand, data from DSM-IV field trials indicate that the clinical constellation of PTSD symptoms remains relatively constant across

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a spectrum of traumatic stressor definitions (Green 1992). Thus, the stressor criterion does not appear to be as critical as originally thought. In the forensic context, however, the use of broadly framed definitional criteria for the traumatic stressor raises concerns about the abuse of the PTSD diagnosis in litigation, particularly since PTSD symptom evaluation relies almost entirely on the subjective reporting of the claimant. Breslau et al. (1991) compared the prevalence of PTSD by type of event. They found that sudden injury or a serious accident was associated with a lower rate of PTSD (11.6%) than was physical assault (22.6%). In fact, the rate of PTSD varied only a little over a spectrum of events such as seeing someone killed or seriously hurt (23.6%), news of sudden death or accident of a close relative or friend (21.1%), or threat to life (24.0%). Only women who reported rape had a significantly higher rate of PTSD (80%). In the National Comorbidity Survey, rape was the most common cause of PTSD, accounting for 29.9% of cases among women (Kessler et al. 1999). The most brutalized prisoners of war experienced a lifetime PTSD prevalence of greater than 90% (Sutker et al. 1991). With the exception of rape, less than 25% of those exposed to typical PTSD stressors developed this disorder. Within the population studied, the majority of men acquired PTSD through combat experience or civilian physical attack. Most women developed PTSD symptoms following sexual assault or victimization through crime. Helzer et al. (1987) reported a lifetime PTSD rate of 9.3% in Vietnam War combat veterans and 3% in persons who were mugged 18 months before being interviewed. The highest PTSD rate of 20% was found in the subgroup of wounded veterans. A lifetime prevalence for PTSD of 1.3% was found in a community survey in North Carolina, “placing it above panic disorder, bipolar disorder, and schizophrenia with respect to lifetime frequency in the population sampled” (Davidson et al. 1990, p. 259). Symptoms of PTSD that do not meet the full criteria for the diagnosis of PTSD (subthreshold PTSD) are quite common. Traumatic stress studies generally indicate that even devastating, extremely traumatic events usually do not lead to more than 50% of the exposed population developing PTSD (Green 1982; Lystad 1988). Thus, examiners should not automatically assume that a PTSD qualifying stressor will necessarily cause PTSD. The presence of a PTSD qualifying stressor should lead the examiner to search for PTSD symptoms but not blindly conclude that PTSD must be present in the absence of qualifying diagnostic criteria. PTSD studies, however, may not accurately describe the typical person with PTSD. Most persons with PTSD do not seek professional help or come to research attention (Tomb 1994). Persons with PTSD avoid thinking or talking about their trauma and symptoms. Thus, the subset found in research studies may not be typical of the majority.

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In DSM-IV, the normative criterion of the “average” person is eliminated. The requirement that the traumatic stressor must have occurred within a year prior to the evaluation is no longer hard and fast in DSM-IV. The exact DSM-IV language states that “the clinician may choose to note psychosocial and environmental problems occurring prior to the previous year if these clearly contribute to the mental disorder or have become a focus of treatment . . .” (American Psychiatric Association 1994, p. 29). The effect of liberalized language changes from DSM-III-R is to implicitly expand the subjective aspects of the definition of traumatic stressors. In DSM-IV, the person’s psychological susceptibility to developing PTSD after exposure to a defined traumatic stressor is a valid consideration. The definition of the traumatic stressors in normative terms comes closest to a pure stressor model of PTSD. Defining the stressor criteria reasonably narrowly prevents trivializing the diagnosis of PTSD through unwarranted widespread use. Nevertheless, a stressor-susceptibility model of PTSD accords more credibly with clinical reality. No PTSD criteria for individual susceptibility to stress are present in DSM-IV. By removing the normative language, however, DSM-IV implicitly expands the subjective component in defining a traumatic stressor. Clinical experience and the psychiatric literature do support the proposition that certain people, because of specific vulnerabilities, are more susceptible to the development of PTSD, including its chronic form. A study of twins clearly identified genetic susceptibility for the development of PTSD symptoms (True et al. 1993). Bremner et al. (1993b) found that patients who sought treatment for combat-related PTSD had higher rates of childhood physical abuse than combat veterans without PTSD. The existence of prior or concomitant psychiatric disorders potentiates the internal perception of the danger posed by the traumatic event. Generally, clinicians take an interactional approach, assuming that neither personality characteristics nor aspects of the traumatic stressor alone determine outcome (Green et al. 1985c). Clinically, personality and the individual meaning of the stressor must be understood before the clinician can properly assess and treat the patient (McFarlane 1990). Individual perception determines reality for the victim. Stressor research has not clarified whether a minor stress, if experienced long enough, can produce sufficient traumatic stress to cause PTSD. Risk factors for exposure to traumatic events have been identified. In one study (Breslau et al. 1991), male sex, less than a college education, extraversion, neuroticism, a history of three or more early conduct problems, and a family history of psychiatric disorder or substance abuse problems were shown to significantly increase the risk of exposure to traumatic events. Risk factors for the development of PTSD after exposure to traumatic

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stress included female sex, neuroticism, early separation, preexisting anxiety, depression, family history of anxiety, and family history of antisocial behavior (Breslau et al. 1991). A number of factors affect the duration and severity of the response to the traumatic stressor, including the severity and duration of the stressor, genetic predisposition, developmental phase, age, prior traumatization, preexisting personality, and social support system (van der Kolk 1987). Litigation also may contribute adversely to the duration and severity of PTSD symptoms. In persons who developed PTSD that lasted longer than 1 year, the specific factors of a history of an antisocial family and female sex further identified this group (Breslau and Davis 1992). Comorbidity also appears to be associated with the development and maintenance of PTSD symptoms (Breslau and Davis 1992). The nature of the association is unclear. Hypotheses include the following: 1) the presence of comorbid conditions increases susceptibility and reactivity to traumatic stressors, 2) comorbid conditions are a complication of PTSD, and 3) comorbid conditions contribute to maintaining PTSD symptoms. Other predisposing vulnerability factors include locus of control, heavy alcohol or drug use, and recent life stresses. The perception of less psychological support shortly after a trauma was predictive of PTSD on follow-up assessments, whereas more severe injury did not predict PTSD (Perry et al. 1992). Thus, patients with less severe injuries and less psychological support were more likely to meet criteria for PTSD. Empirically, clinicians have known that psychological support mitigates the severity of psychological responses to traumatic stress. For example, experience with Vietnam War veterans and rape victims clearly shows that the presence of a support system markedly improves the clinical prognosis for these people. Raifman (1983) pointed out that one of the qualifying factors in determining whether a traumatic stressor is “outside the range of common experience” is the absence in society of organized rituals or support systems to help the traumatized person to cope with his or her experience. Overwhelming trauma damages basic trust in ourselves and in the world. Thus, individuals who already are impaired in basic trust are particularly vulnerable to this damaging trauma effect. Exposure to life-threatening trauma damages basic life assumptions, such as the world is a predictable and rational place, bad things do not happen to good people, persons in the position of authority will act responsibly, and we are in full control of our lives. Without some level of belief in these assumptions, we could not leave home or cross a street. In the law, the issue of a litigant’s vulnerability in personal injury cases usually is considered under the heuristic construct of the so-called eggshell

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skull or eggshell psyche plaintiff (Gammons v. Osteopathic Hospital of Maine, Inc. 1987; Keeton et al. 1984; Salley v. Childs 1988). An eggshell plaintiff is a person who is extremely vulnerable to even a minor trauma but has remained asymptomatic prior to the injury. The actor who cracks a plaintiff’s eggshell skull, even if the trauma is minimal, is legally responsible for the damages that ensue. He or she cannot complain that the injured person was not a perfect specimen (Kionka 1977). On the other hand, in Theriaulta v. Swan (1989), the Supreme Judicial Court of Maine distinguished between an ordinarily sensitive person and a supersensitive plaintiff: In order to recover for either negligent or reckless infliction of emotional distress, a plaintiff must demonstrate that the harm alleged reasonably could have been expected to befall the ordinarily sensitive person [citations omitted]. When the harm reasonably could affect only the hurt feelings of the supersensitive plaintiff—the eggshell psyche—there is no entitlement to recovery. If however, the harm reasonably could have been expected to befall the ordinarily sensitive person, the tortfeasor must take his victim as he finds her, extraordinarily sensitive or not.

Using the eggshell skull hypothesis solely as a metaphor for the generically vulnerable plaintiff blurs the important distinction between a preexisting asymptomatic state and a symptomatic state. Mental functioning is a dynamic process, not a static structure like a skull. For example, the psychological resistance to trauma may vary over a 24-hour cycle. In forensic practice, it is rare to find a person alleging psychological injuries who has not had some prior relevant psychological symptoms, especially triggered by fatigue, physical illness, or other stress factors. Thus the legal concept of the eggshell plaintiff, although essential to the deliberations of the law, appears to be an exception in forensic practice. Claimants who do not have a history of psychiatric disorders can often experience an acute, circumscribed PTSD without significant functional impairment, appearing to have a normal response to an abnormal stressor. Some experts view PTSD symptoms as normal trauma-related reactions from which the vast majority of people improve without treatment (Cohen 1992). The problem arises in distinguishing who will or will not ultimately develop persistent, pathological posttrauma symptoms. Blank (1993) observes that posttraumatic stress symptoms not adding up to PTSD are quite common and may represent normal responses to catastrophic situations that should be identified in the diagnostic nomenclature as a V code (i.e., conditions not attributable to a mental disorder). On the other hand, many claimants with prolonged, debilitating PTSD have a psychopathological response to a similar traumatic stressor that appears to be influenced largely by preexisting psychiatric impairments.

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Although PTSD is incident specific, the forensic examiner must consider the existence of comorbid conditions and diagnose them if they are present. Persons who react to a minor stressor with PTSD symptoms are relatively rare. In such cases, other causes of the PTSD should be suspected and investigated. Usually, the symptom response is not diagnosable as PTSD but as another Axis I or Axis II disorder. Under DSM-IV, the subjective component of the definition of a traumatic stressor implicitly takes into account individual susceptibility. Nonetheless, the development of PTSD following low-magnitude stressors has been reported in the professional literature. Burstein (1985) reported that 8 of 73 PTSD cases developed following a low-magnitude or usual event, such as marital disruption, illegal acts, arrests of teenage children, failed adoption plans, and death of a loved one. Helzer et al. (1987) found that events cited by women that precipitated PTSD included a spouse’s affair, a poisoning, and a miscarriage. These studies did not attempt to specifically rule out reactivated PTSD symptoms from previous traumas or from other current sources. “Cryptotrauma” and “invisible trauma” have been described that purportedly lead to PTSD (Scrignar 1988, pp. 63–79). Cryptotrauma does not produce PTSD. Rather, the forensic examiner does not appreciate the full impact of the traumatic stressor for the litigant. With invisible trauma, the traumatic stressor cannot be perceived by the senses (e.g., toxic substances) but nevertheless purportedly produces stress through the knowledge of its presence. In tort cases involving toxicity, litigants may claim that they develop PTSD on learning that they have been unwittingly exposed to toxic substances during some period of time in the past. Hindsight traumatization of prior perceived nontraumatic events does not accord conceptually with PTSD stressor criteria. The traumatic stressor either produces or fails to produce PTSD at the time the stressor is experienced, even in delayed PTSD. When a person experiences stress by discovering frightening information that permits previous nontraumatic events to be viewed as traumatic, the stressor ordinarily is not of sufficient strength to produce PTSD. However, another psychiatric disorder may develop. If PTSD does develop, the symptom content should reflect the stressful events surrounding being informed of the danger. Pseudo-PTSD may arise in tort litigation involving toxicity. A reasonable fear of increased risk of cancer or other diseases after a toxic incident may be erroneously diagnosed as PTSD. The stressor necessary to produce PTSD is defined in DSM-IV as acutely life threatening, producing terror, intense fear, helplessness, and horror. Combined with the ubiquity of toxic agents ever present in our environment, the psychological stress related to a toxic event may not rise to an immediate life-threatening status. Perr

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(1993), in a review of 48 cases of claims of psychic injury due to exposure to asbestos, found that 19% alleged PTSD as a basis for damages. Perr concluded that the application of the PTSD concept to chronic illness was inappropriate because it does not meet the symptoms or stressor criteria for PTSD. If, on the other hand, toxic exposure occurs in association with an explosion or other life-threatening event, then the likelihood increases that the exposed person may develop PTSD. In Sterling v. Velsicol Chemical Corp. (1988), the Sixth Circuit Court of Appeals concluded that the alleged causes of PTSD must be closely scrutinized: Plaintiffs’ drinking or otherwise using contaminated water, even over an extended period of time, does not constitute the type of recognizable stressor identified either by professional medical organizations or courts. Examples of stressors upon which courts have based awards for PTSD include rape, assault, military combat, fires, floods, earthquakes, car and airplane crashes, torture, and even internment in concentration camps, each of which are natural or man-made disasters with immediate or extended violent consequences. Whereas consumption of contaminated water may be an unnerving occurrence, it does not rise to the level of the type of psychologically traumatic event that is a universal stressor. A plaintiff’s claim that a particular event or series of events caused him PTSD must be subjected to the closest scrutiny. The court must demand that a plaintiff produce sufficient authority that the particular event constitutes a “recognized stressor” or a psychologically traumatic event which would produce significant symptoms of distress in almost everyone experiencing such an event. In the instant case, the plaintiffs produced none, and this court can identify no relevant authority that the consumption of contaminated water is a recognized stressor upon which an award of PTSD can rest. Additionally, plaintiff’s experts presented no evidence establishing that any of the plaintiffs were, in fact, “retraumatized” through recurrent and intrusive recollections or dreams of drinking the contaminated water. Plaintiff Johnson’s nightmares about “what was happening to [his] children and [constant preoccupation] with what their condition was and . . . might be in the future” merely describe his reasonable fear of increased risk of cancer and other disease. Since each plaintiff failed to satisfy all of the criteria necessary for a diagnosis of PTSD, we reverse the district court’s award of damages.

Arguing retrospectively from the claimant’s PTSD to specific causes or events as a defense in criminal cases or as a basis for a claim for damages in tort cases is problematic. Courts have given a mixed reception to inferring from the diagnosis of PTSD that an alleged traumatic event occurred. Thus, in State v. Kim (1982), a child psychiatrist was permitted to testify concerning rape trauma syndrome to establish that rape had occurred by a family member. The expert said that the complainant child’s symptoms were “consistent with” symptoms in his other cases of child rape by a family

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member. Conversely, in Spencer v. General Electric Co. (1988), the court rejected the admission of a PTSD diagnosis to establish the disorder’s triggering event, in this case that an alleged prior rape had occurred. The court noted the division of authority regarding the admission of PTSD testimony: “PTSD is simply a diagnostic category created by psychiatrists . . . to help identify, predict and treat emotional problems experienced by the counselors, clients or patients. It was not developed or devised as a tool for ferreting out the truth in cases where it is hotly disputed whether the rape occurred.” The presence of PTSD symptoms presumes, by definition, an antecedent traumatic stressor. Clinically, this presumption is accepted as a matter of course. In litigation, courts may find that it lacks probative value. The following vignette illustrates the problems that arise concerning the sufficiency of traumatic stressors: A 43-year-old married corporate executive is involved in a minor traffic accident. His car is struck from behind at approximately 4 mph, producing a loud bang but only superficially denting the bumper and breaking the left rear taillight. After the accident, recurrent dreams and flashbacks begin and become prominent symptoms. His treating physician makes the diagnosis of PTSD. A lawsuit is filed against the defendant on the grounds of negligence causing psychological injury. The claimant is examined by a forensic psychiatrist, who learns that the executive’s father committed suicide 9 months prior to the accident. Moreover, the father, who was intoxicated at the time, placed a gun in his mouth and shot himself in front of his son. Past history reveals that the son experienced severe child abuse at the hands of his father. Shortly after the auto accident, the executive is bothered by auditory flashbacks of the gun being fired. He begins to gradually experience, for the first time, recurrent dreams containing vivid visual images of expanding pumpkin heads and gory scenes. Before his father’s death, the claimant was prudent in his actions and morally scrupulous. After the father’s suicide, he neglected his duties, spent money frivolously, had an affair, and began to gamble. He complains that he experiences feelings of detachment from others, guilty thoughts that he failed to save his father, and feelings that his life will be over soon. He has lost 15 lbs. and has trouble falling asleep. Formerly of placid temperament, he flies into rages at coworkers. Proceedings were under way before the accident to relieve the claimant of his corporate position and to try to persuade him to seek professional help. The forensic psychiatrist makes the diagnosis of delayed PTSD but relates it to the executive’s witnessing his father’s suicide rather than the car accident. It also is determined that the claimant was work disabled well before the car accident by typical prodromal symptoms of PTSD.

This vignette illustrates the importance of thoroughly investigating the traumatic stressor. Minor stressors that allegedly cause PTSD must be met

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with commonsense skepticism. In this case, the court will determine whether the minor car accident was the “final straw” that triggered the full-blown PTSD or whether the PTSD would have emerged anyway. As part of a credible forensic examination, other stressors in the claimant’s life need to be considered. Everyone lives in a world of multiple stressors. The forensic examiner must consider but not be deterred from fully investigating the claimant’s assertions about the cause of psychological impairment. Comorbid disorders associated with multiple psychological stressors may contribute significantly to the clinical picture (Breslau et al. 1991). Trauma-associated narcissistic symptoms also may mimic PTSD symptoms, confronting the examiner with a diagnostic challenge (Simon 2002). For PTSD claimants, a thorough exploration of Axis IV psychosocial and environmental problems in DSM-IV must be conducted to rule in or out superseding, intervening traumatic events that break the chain of causation between the alleged traumatic stressor and the development of PTSD symptoms (Keeton et al. 1984). The proximate cause of the PTSD symptoms may be another traumatic event that occurred either before the alleged incident took place or before the emergence of the PTSD symptoms.

Guideline In assessing the sufficiency of traumatic stressors for the diagnosis of PTSD, the forensic examiner should be guided by official diagnostic manuals, the professional literature, and current research. The possible contributions of multiple stressors to the PTSD claimant’s clinical picture also should be evaluated.

Preincident Psychiatric History It is obvious that a claimant’s psychiatric history must be explored. Yet it is remarkable to observe how often psychiatric and psychological evaluations of PTSD claimants do not proceed beyond the claimant’s allegations. It is as if the claimant’s life began at the time of the alleged traumatic event. No forensic psychiatric examination is credible without a thorough investigation of the claimant’s past. Accordingly, attempts to restrict or constrain development of detailed historical information by either party to a litigation must be challenged by the examiner.

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In the evaluation of the PTSD claimant, the prior existence of PTSD must be considered. In one study, the lifetime prevalence of PTSD was found to be 9.2% (Breslau et al. 1991). Thus, a substantial base rate for PTSD exists in the population from which the PTSD claimant emerges. Moreover, as noted in the previous section, certain risk factors increase a person’s exposure to traumatic events. Other risk factors increase the vulnerability to developing PTSD once exposure to traumatic events occurs. These risk factors usually are diagnosable as part of other Axis I and Axis II psychiatric disorders. There is considerable evidence connecting personality and PTSD (Schnurr and Vielhaver 1999). Neuroticism and its associated states are consistently associated with PTSD (Clark et al. 1994). Personality traits and disorders influence not only the individual’s response to traumatic stress but also the exposure to risk factors for PTSD. An observable deficiency in a number of forensic evaluations of PTSD claimants is the absent assessment of Axis II personality disorders that may be clearly germane to the claimant’s current clinical picture. Also, traumatic stressors may not produce PTSD but may instead exacerbate or reactivate preexisting Axis I and II psychiatric disorders or contribute to the development of a new mental disorder. To complicate matters further, PTSD has been reported to mimic personality disorders (Van Putten and Emory 1973; Walker 1981). Consistent with the increased awareness of comorbid conditions by clinicians, Green et al. (1985b) found that antisocial personality disorder and alcohol and drug dependence were diagnoses consistently associated with PTSD. Others have observed the coexistence of PTSD with antisocial, borderline, and mixed personality disorders (Embry 1990). There are 10 personality disorder diagnoses in DSM-IV. An 11th diagnosis, personality disorder not otherwise specified, is a category for disorders of personality functioning that are not classifiable as a specific personality disorder. One of the most common personality disorder diagnoses seen in litigation (and for that matter in clinical practice) is borderline personality disorder (BPD). The incidence of physical and sexual abuse in persons diagnosed with BPD is 67%–86% (Herman and van der Kolk 1987). In dissociative identity disorder (formerly called multiple personality disorder) (an Axis I diagnosis), 98% of the patients report histories of severe childhood abuse beginning before the age of 5 (Briere and Zaida 1989; Bryer et al. 1987; Loewenstein 1991b). On careful questioning, 50%–60% of psychiatric inpatients, 40%–60% of psychiatric outpatients, and 70% of psychiatric emergency room patients report childhood histories of physical or sexual abuse or both (Herman 1992). Many of these persons developed PTSD as children because of abuse (Eth and Pynoos 1985).

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In survivors of prolonged, repeated trauma, a spectrum of conditions (what Herman [1992] has proposed to call complex posttraumatic stress disorder), rather than a single disorder, is produced. The consistent reports of high rates of childhood trauma in borderline patients suggest that BPD may be a posttraumatic disorder (Ross 1991). On the other hand, Gunderson and Sabo (1993) concluded that borderline psychopathology develops from a history of abusive experiences joining other factors that shape enduring aspects of character. They assert that BPD and PTSD are clinically distinguishable disorders that often occur together and have certain overlapping symptoms. BPD is considered to be a vulnerability factor for the development of PTSD. In her studies of the Chowchilla school bus kidnapping, Terr (1983) noted that the aftermath of the psychic trauma caused by the incident produced permanent personality changes in the children. The presence of early trauma tends to produce a symptom complex that includes self-abuse, dissociative phenomena, and chronic mood and personality changes rather than the classic PTSD symptoms of adults. The coexistence of PTSD with personality disorders is noted in the psychiatric literature (Southwick et al. 1993b). Because of the unfortunately high incidence of childhood physical and sexual abuse, forensic examiners should consider the presence of childhood PTSD as a precursor to any personality disorder, not just BPD, and assess its possible contribution to the claimant’s current clinical presentation. Moreover, some claimants with alleged PTSD who appear to have functioned well prior to exposure to a traumatic event experience reactivation of nightmares and flashbacks of childhood abuse. A consequent deterioration in their functioning ensues. The commingling of current PTSD symptoms and resurrected traumatic memories from the past can present an extremely complicated clinical picture. Trying to separate past from present symptomatology can be a daunting task. The developmental psychopathology of children and adolescents exposed to traumatic stress is described by Pynoos (1993). Preexisting medical disorders and drug treatment for both psychiatric and physical disorders (especially associated with physical injury and pain) may complicate or worsen the claimant’s clinical picture. Breslau et al. (1991) found in their sample of 1,007 young adults that a high incidence of other psychiatric disorders coexisted with PTSD. The adjusted odds ratio that another psychiatric disorder coexisted in persons with PTSD versus those with no PTSD is shown in Table 3–5. In another study, it was found that cocaine-opiate users are more than three times as likely as comparison subjects to report a traumatic event and to report more symptoms and events, and are more likely to meet diagnostic criteria for PTSD (Cottler et al. 1992). Antidepressant, antipsychotic, antianxiety, and sleep medications can produce anxiety, depression,

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TABLE 3–5. Adjusted odds ratio (OR) that another psychiatric disorder coexisted in persons with PTSD versus those with no PTSD Disorder Obsessive-compulsive disorder

Adjusted ORa 10.28

Agoraphobia

6.42

Dysthymia

6.11

Mania

6.05

Panic

5.70

Major depression

4.39

Generalized anxiety disorder

2.75

Drug abuse or dependence

2.75

Alcohol abuse or dependence

2.23

Any substance abuse or dependence

2.86

Any disorder

6.30

a

Odds ratio adjusted for sex. Source. Adapted from Breslau et al. 1991.

and nightmares. Pain medications are notorious for the exacerbation or induction of a depressive disorder. In DSM-IV, Axis III is used to indicate a current physical disorder or condition that is relevant to the understanding or management of a case. With the odds so high that another psychiatric disorder coexists with PTSD, the forensic psychiatrist must attempt to rule out other conditions when a diagnosis of PTSD is made. The high likelihood that other Axis I, II, and III disorders and conditions coexist makes it difficult to identify pure PTSD cases. This fact has confounded and limited biological research on PTSD. No forensic evaluation can be credible without a thorough examination of the claimant’s psychiatric history. The following vignette describes a litigant’s complex psychiatric case and the importance of obtaining a detailed history: A 26-year-old, single secretary is electrically shocked when she touches a copying machine. The electrical jolt causes her to drop her papers. Immediately thereafter, she is unable to work. She cannot leave the house in the morning because she is afraid to turn on the toaster, to throw light switches, or to use her hair dryer. She cannot drive her car because she is afraid to turn on the ignition. She remembers her traumatic event frequently, but she does not display any intrusive, unbidden thoughts or memories associated with intense feelings. Recurrent nightmares depicting sadistic abuse of children are reported. These dreams also occurred less intensively before the traumatic event. A forensic examiner makes the initial diagnosis of PTSD but does not evaluate her past history.

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When additional medical records become available, the forensic examiner discovers that the woman has a significant psychiatric history. He decides to inquire further. She was hospitalized twice for major depression at ages 17 and 20. In the hospital records, a concurrent Axis II diagnosis of BPD was found. Work records reveal sporadic employment with poor peer relationships. School records show frequent absences. It is stated in the school records that the patient frequently stayed home by herself. A psychiatrist’s note to the school describes mood instability and social withdrawal. Moreover, her mother died 2 months prior to the electric shock incident. The mother was physically and sexually abusive to her between ages 3 and 9. Her recurrent nightmares of children being abused relates to childhood abuse. The electrical shock became the “straw” that resurfaced a number of early abuse experiences involving being tied up and beaten with an electrical cord. The forensic examiner revises the diagnosis to simple phobia, due to the almost total avoidance of electrical devices and the absence of PTSD symptoms. An Axis II diagnosis of BPD (exacerbated) is made along with the diagnoses of PTSD from childhood, manifesting currently as recurrent nightmares of her child abuse and BPD.

The defendant in this case may be held responsible for the simple phobia and the exacerbation of the BPD but not the childhood PTSD. Diagnostic clarification by the forensic examiner allows for reasonable allocation of damages, treatment recommendations such as referral of the claimant to a phobia clinic, and an appropriate period of psychotherapy (Nally and Saigh 1993). Attorneys often refer to the psychologically vulnerable litigant described above as an “egg shell” plaintiff. A relatively minor trauma appears to cause major functional impairment.

Guideline A credible forensic psychiatric evaluation of a PTSD claimant requires a thorough examination of the claimant’s psychiatric and medical history, including review of prior medical, psychiatric, and other pertinent records.

Subjective Reporting of PTSD With the possible exception of behavioral reenactments of the traumatic events, few objective clinical signs and symptoms exist for PTSD. Thus, the forensic examiner cannot rely solely on the subjective reporting of the claimant. Additional sources of information must be obtained. The possi-

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bility of malingered PTSD in litigation should always be considered. In PTSD, the trauma becomes the central issue in the individual’s life. Life is structured around avoiding stimuli that cause psychophysiological arousal (fear and terror). Collateral sources of information can help confirm or deny the centrality of PTSD in the person’s life. The subjective nature of PTSD symptoms, as with many other psychiatric disorders, presents special problems in litigation. Psychophysiological studies hold out the promise of providing more objective data in the evaluation of PTSD symptoms (Bremner et al. 1993a; Charney et al. 1993; Southwick et al. 1993a; see also Pitman and Orr, Chapter 9, in this volume). Short-term and long-term neurobiological consequences of severe, overwhelming stress have been identified by psychobiological research. In the forensic context, Pitman and Orr (1993) found that the differences in physiological responses to “imaginal stimuli” between persons suffering from PTSD and control subjects varied significantly. Measurements of heart rate, sweat gland activity, and facial muscle tension were significantly higher in PTSD patients. Laboratory testing may have an important impact in PTSD litigation when its presence or absence is at issue. Although psychophysiological testing of PTSD may be skeptically looked on as a magical “black box” of forensic psychiatrists, it may prove useful as an adjunct to more traditional methods of psychiatric evaluation. Nonetheless, informed clinical knowledge, judgment, and experience remain the best tools for the diagnosis of PTSD. For example, the natural progression of emotional reactions following trauma typically move from anxiety to depression or to a combination of anxiety and depression. Embellishers usually reverse the sequence or emphasize anxiety or depression to the exclusion of the other. Issues of admissibility of such evidence in civil and criminal litigation remain. So far, only one court has allowed graphs of the plaintiff’s psychophysiological responses to be presented to the jury as evidence that the psychophysiological reactivity criteria for PTSD were met. No court has allowed psychophysiological results in establishing the diagnosis of PTSD (Pitman et al. 1994). If psychophysiological testing of PTSD is viewed similarly to the methods of the polygrapher, such evidence may not be held to be admissible. Psychiatrists who venture into the legal arena must be aware of the fundamentally different roles that exist between a treating psychiatrist and the forensic psychiatric expert (Strasburger et al. 1997). Treatment and expert roles do not mix. For example, unlike the orthopedist who possesses objective data such as an X ray of a broken limb to demonstrate damages in court, the treating psychiatrist–turned–expert relies heavily on the subjective reporting of the patient. In the treatment context, psychiatrists are interested primarily in the patient’s perception of his or her difficulties, not

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necessarily the objective reality. The DSM, for example, encourages clinicians to make diagnoses on the basis of the self-reports of patients regardless of their accuracy. Many treating psychiatrists do not speak to third parties or check pertinent records to gain additional information about a patient or to corroborate the patient’s statements. The law, however, is interested only in that which can reasonably be established by facts. Uncorroborated, subjective patient reporting is invariably attacked in court as being speculative, self-serving, and unreliable. The treating psychiatrist cannot effectively counter these charges. Credibility issues also abound. The treating psychiatrist is, and must be, an ally of the patient. This bias toward the patient is a proper treatment stance that fosters the therapeutic alliance. Furthermore, for the psychiatrist to effectively treat the psychiatric patient, the patient needs to be “liked” by the psychiatrist. A practitioner cannot treat a patient for very long whom he or she dislikes. Moreover, the psychiatrist looks for mental disorders to treat. This is a very different role from that of the expert. In court, credibility is a critical commodity to possess when testifying. Opposing counsel will take every opportunity to portray the treating psychiatrist as a subjective mouthpiece for the patient-litigant—which may or may not be true. Also, court testimony by the treating psychiatrist may compel the disclosure of information that may not be legally privileged but nonetheless is considered intimate and confidential by the patient. This disclosure in court by the previously trusted therapist is sure to cause damage to the therapeutic relationship (Strasburger 1987). In addition, psychiatrists must be careful to inform patients about the consequences of releasing treatment information, particularly in legal matters. Section 4, Annotation 2 of the Principles of Medical Ethics: With Annotations Especially Applicable to Psychiatry (American Psychiatric Association, Ethics Committee 2001, p. 7) states: The continuing duty of the psychiatrist to protect the patient includes fully apprising him/her of the connotations of waiving the privilege of privacy. This may become an issue when the patient is being investigated by a government agency, is applying for a position, or is involved in legal action.

Finally, when the treating psychiatrist testifies concerning the need for further treatment, a conflict of interest is readily apparent. In making such treatment prognostications, the psychiatrist stands to benefit economically from his or her recommendation of further treatment. Although this may not be the intention of the psychiatrist, opposing counsel is sure to point out that the psychiatrist has a financial interest in the case. In its ethics statement, the American Academy of Psychiatry and the Law advises that “a treating psychiatrist should generally avoid agreeing to

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be an expert witness or to perform an evaluation of his patient for legal purposes because a forensic evaluation usually requires that other people be interviewed and testimony may adversely affect the therapeutic relationship” (American Academy of Psychiatry and the Law 1995, p. xii). The treating psychiatrist should attempt to remain solely in a treatment role (Simon 2000). If it becomes necessary to testify on behalf of the patient, the treating psychiatrist should testify only as a fact witness rather than as an expert witness. As a fact witness, the psychiatrist will be asked to describe the number and length of visits, diagnoses, and treatment. Generally, no opinion evidence will be requested concerning causation of the injury or the extent of damages. In some jurisdictions, however, the court may convert a fact witness into an expert at the time of trial. Psychiatrists must remain ever mindful of the many double-agent roles that can develop when mixing psychiatry and litigation (Simon 2001). The forensic expert, on the other hand, is usually free from these encumbrances. No doctor-patient relationship, with its attendant treatment biases toward the patient, is created during the forensic evaluation. The expert can review a variety of records and can speak to a number of people who know the litigant. Furthermore, the forensic expert is not as easily distracted from considering exaggeration or malingering because of a clear appreciation of the litigation context and the absence of treatment bias (Simon 2000). Finally, the forensic expert is not placed in a conflict-ofinterest position of recommending treatment from which he or she might personally benefit. The forensic expert, however, is frequently viewed by opposing counsel as a biased “hired gun.” The following vignette illustrates the different roles of the treating psychiatrist and forensic examiner in the evaluation of the subjective reporting of PTSD symptoms: A 44-year-old transit worker states that he witnessed a subway collision in which a number of passengers were killed. Thereafter, he was unable to work. He is seen in brief psychotherapy. Because of “classic” PTSD symptoms, the clinician does not hesitate to make the diagnosis of PTSD. The diagnosis is duly recorded in the treatment record. Three months after the accident, the claimant reports recurrent nightmares that replay the traumatic event in faithful detail. The claimant also mentions that he is avoiding friends and social events. Examination by a forensic examiner reveals a history of juvenile delinquency. Classic textbook PTSD symptoms are reported by the claimant. Military records indicate that the claimant was dishonorably discharged after serving time in the brig for breaking and entering. A military psychiatrist diagnosed antisocial personality. Moreover, witnesses place the claimant at 1,000 feet from the crash site where a curve in the tunnel obstructs the view of the crash. Video surveillance evidence shows that the

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claimant is dating, playing basketball, and going away on weekend excursions. A witness testifies that the claimant recently obtained a copy of the DSM. The forensic examiner makes the diagnosis of malingering.

An obvious problem for the treating psychiatrist in this case was the total lack of suspicion concerning malingering. This is not unusual in the treatment context because the treating psychiatrist assumes that the patient has come for help rather than to build a legal case. It is assumed that the person has a wellness agenda, not a legal agenda. In the litigation context, however, the possibility of malingering always must be considered. For example, in 1980, the Veterans Administration announced that “PTSD delayed type” was a compensable disorder. Psychiatric examiners were inundated by claimants who presented with a symptom checklist that had been published previously (Goodwin and Guze 1984). Some claimants who were never in Vietnam gave elaborate stories of combat (Kinzie 1989).

Guideline Relying exclusively on the subjective reporting of symptoms by the PTSD claimant without considering additional sources of information is insufficient. As a corollary, treater and forensic roles should not be mixed in the forensic examination of the PTSD claimant.

Assessing Functional Impairment In personal injury cases, the PTSD claimant seeks monetary damages for psychic injury and the consequent impairment inflicted by the alleged negligence of another party. The forensic examiner must be able to conduct a competent assessment to determine the presence or absence of a litigant’s functional impairment. In DSM-IV, the diagnosis of PTSD contains an additional criteria for “clinically significant distress or impairment in social, occupational, or other important areas of functioning” (American Psychiatric Association 1994, p. 429). The forensic examiner is presented with a number of unique problems when conducting the psychiatric or psychological examination of the claimant. Because of the adversarial context and the stated lack of confidentiality of forensic examinations, self-disclosure by the claimant is generally inhibited. Scheduling of the examination also can become a problem. Some experts recommend conducting the entire interview at one sitting, thus allowing the examiner to assess the claimant’s ability to function in a worklike situation

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(Enelow 1991). With PTSD claimants, however, it may be necessary to have several time-limited interviews. Discussing the litigant’s traumatic experience may evoke intense symptoms that can be managed more comfortably over the course of shorter interviews. Further, marathon interviews tend to be fatiguing and counterproductive for both the claimant and the examiner. Lengthy interviews may be viewed by the claimant as harassing. Psychological testing can be an important adjunct to a comprehensive forensic examination. The use of self-report instruments provides a structured protocol for obtaining the patient’s complaints. However, self-report instruments are not psychological tests, nor are the collected data scientifically defensible as anything other than the subjective reporting of the litigant (Enelow 1991). Grossly inaccurate or biased courtroom testimony by psychiatric expert witnesses may be related, in part, to the widespread use of shortcut diagnoses by checklists that have largely replaced descriptive psychiatry (Sparr and Boehnlein 1990). The use of structured interviews and psychometric measures for PTSD in the litigation context is discussed in Chapter 5 of this volume. Standardized psychological tests may provide additional important data, especially when the claimant is unable to articulate his or her difficulties or appears to lack credibility. Psychological testing also can be valuable in detecting Axis II personality disorders that may be causing or contributing to the claimant’s impairment. The forensic examiner may not be able to spend sufficient time with the claimant that usually is required to make the diagnosis of a personality disorder. The forensic examiner should have a working knowledge of the reliability, validity, and limitations of the psychological tests administered. It is the examiner’s responsibility to integrate and explain the summary findings of psychological testing with the data and conclusions from the psychiatric examination. In conducting a forensic assessment of functional impairment, a few general concepts should be kept in mind. First, the presence of psychological symptoms does not necessarily equate with functional impairment. The examiner must find actual evidence of impairment through the claimant’s psychiatric history, behavior, and the examination findings. Second, disability should be expressed quantitatively if the assessment method provides for a percentage or numerical evaluation. Third, the concept of convenient focus must be considered in every evaluation (Lasky 1991). The concept of convenient focus states that a preexisting disorder is uncovered by stress rather than created by it. Fourth, when an individual is not working, certain secondary effects occur. The various beneficial aspects of work are unavailable. Often, financial and marital difficulties ensue. The examiner should distinguish impairment that is a response to PTSD from the secondary consequences of not working.

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Axis V of DSM-IV, the Global Assessment of Functioning (GAF) Scale, provides a measure of an individual’s psychological, social (including leisure activities), and occupational functioning on a scale of 0 to 100. Axis V reasonably measures adaptive functioning, though it is limited partly by its modest reliability (Goldman et al. 1992). No matter how ominous a psychiatric diagnosis may appear on its face, courts rely on the claimant’s actual level of functioning in assessing damages. For example, some chronic schizophrenic patients with long-standing hallucinations and delusions can take reasonable care of themselves and remain employable. A specific diagnosis, by itself, does not imply a given level of impairment. For additional assessment of functional impairment, Axis V of DSM-IV may be used with Guides to the Evaluation of Permanent Impairment published by the American Medical Association (AMA) (2001). The forensic examiner should be knowledgeable in the use of the AMA Guides and should be able to explain the general principles, their applicability, and the limitations in reliability and validity. The latest edition of the AMA Guides should be used, unless otherwise specified by state statute, in workers’ compensation cases. Some states mandate use of specific editions. If the AMA Guides are not used, the forensic examiner’s testimony may be found to lack probative value and be stricken (Zebo v. Houston 1990). It is not sufficient to rely on the forensic examiner’s “clinical experience” in rendering impairment assessments of claimants. Such judgments can be idiosyncratic or even deviant when subject to litigation biases. Special considerations arise in the forensic psychiatric assessment of functional impairment, such as medications and situational effects. Frequently, claimants are taking medications. The effects of medications on various tasks used in assessing impairment must be considered. Medication may improve symptoms, but functional impairments may persist. Second, the side effects of medication may produce significant impairment. For example, a number of psychotropic medications can cause depression directly and produce side effects that are depressing. What is the effect of the setting where the claimant is being assessed? Impairment assessments may be very difficult to conduct in noisy, distracting, or public settings, possibly leading to spurious results. Examinations conducted in the absence of privacy may compromise confidentiality and vitiate examination findings. Generally, the presence of third parties distorts the interviewing process. Psychiatrists and other mental health professionals usually conduct patient interviews in a private setting. In litigation, attorneys or their representatives may request to be present during the forensic evaluation. The presence of third parties is distracting to the intimate interactional process of interviewing (Simon 1996).

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The following vignette demonstrates the use of standard methods of assessment of functional psychiatric impairment: A 36-year-old landscape contractor accidentally cuts an underground electrical cable with a post hole digger. He is electrically shocked and knocked to the ground. There is no loss of consciousness. He is hospitalized briefly for observation. PTSD symptoms develop fully 5 weeks after the accident. Recurrent flashbacks and nightmares of the traumatic event are prominent. He withdraws from his family and friends. On examination 1 year later, his activities of daily living have returned to preincident levels. He returns to full-time work 3 months after the accident. His relationships with family and friends also are at preincident levels. Golf and tennis are enjoyed again. As the time of trial approaches, flashbacks and nightmares recur that had been quiescent. The examiner, using Axis V of DSM-IV and the AMA Guides to the Evaluation of Permanent Impairment, finds mild impairment in functioning. Using the AMA Guides, the forensic examiner finds the claimant’s concentration to be good. Activities of daily living show no permanent impairment. Social functioning is at preincident levels. Persistence (the ability to complete tasks) is good. Pace (finishing tasks in a timely manner) is unimpaired. The capacity to manage stress without deterioration or decompensation (adaptation) is normal except when litigation issues arise. A recrudescence of brief, low-intensity flashbacks and occasional nightmares secondary to the litigation produces temporary, moderate anxiety and withdrawal from relationships. The forensic examiner concludes that the claimant’s overall impairment is mild.

Also, with the DSM-IV GAF Scale (Axis V), a rating is made for two time periods: current (time of examination) and past year (highest level of functioning for at least a few months during the past year) (American Psychiatric Association 1994, p. 30). In DSM-IV, the evaluation of GAF during the past year is made optional. For PTSD claimants whose symptoms have existed for more than 1 year, preincident functional assessment also should be performed. The current GAF generally reflects the present need for treatment or care. The highest GAF has prognostic significance because an individual usually returns to a previous level of functioning after an episode of illness. The forensic examiner rates the current GAF at 80 (mild impairment) and the highest GAF at 90 (slight impairment). The lower current GAF rating reflects mild exacerbation of PTSD symptoms paralleling increased activity in the litigation process.

Prognostic Considerations The determinants of acute, delayed onset, and chronic PTSD have been examined by Robins et al. (1981). The acute PTSD group (duration of symp-

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toms less than 6 months) had no major vulnerability factors or coexistent psychiatric disorder. The chronic PTSD group (duration of symptoms longer than 6 months) scored significantly higher on a number of vulnerability factors, including concurrent psychiatric disorder, family history of psychiatric disorder, avoidance personality traits, and being older. The norm is for acute PTSD to improve but for chronic PTSD to worsen over time. In a rare prospective study of PTSD, Rothbaum et al. (1992) examined 95 female rape victims soon after assault. Subjects were assessed weekly for 12 weeks. Ninety-four percent of the women met PTSD criteria at the initial assessment, with the percentage decreasing to 65% at assessment 4 and 47% at the final assessment (assessment 12). PTSD symptoms decreased sharply between assessments 1 and 4 for all women. Women whose PTSD persisted throughout the 3-month study did not show improvement after assessment 4. Women who did not meet PTSD criteria 3 months after the assault showed steady improvement over time. The study suggests that not all rape victims may require treatment because approximately one-half are expected to recover spontaneously. Rape victims with PTSD 2 months after assault appear unlikely to recover spontaneously. The responses and avoidance symptoms reported by all victims at 12 weeks after the assault indicate that anxiety symptoms may persist after PTSD symptoms improve or even remit. Green et al. (1990b) reported a 12-year follow-up study of 120 survivors of the 1972 Buffalo Creek flood disaster in West Virginia. Between 1974 and 1986, the PTSD prevalence rate dropped from 44% to 28%. Symptom severity and levels of impairment declined significantly between 1974 and 1976. In general, most studies indicate that PTSD symptoms and impairment decline in severity over time (Hendin et al. 1984). Even if untreated, some PTSD claimant’s symptoms will decrease over time, although a relapse is always possible. In a study by Breslau and Davis (1992), approximately 50% of the PTSD group studied had total remission of symptoms at 1 year following the traumatic event. This also was true for rape victims who had a PTSD development rate of 80% following trauma. At 3 years posttrauma, approximately one-third continued to manifest PTSD symptoms. In others, PTSD symptoms do not diminish but worsen in the absence of treatment or even with treatment. Hendin et al. (1984) found that 20% of a sample of 100 Vietnam War veterans with PTSD had chronic reexperiencing episodes. Kulka et al. (1990) found a PTSD prevalence rate of 15% in Vietnam War veterans in 1987–1988, approximately 19 years after exposure to war zone traumatic stress. Kluznik et al. (1986) found a PTSD prevalence of 47% among World War II veterans 40 years after combat duty and confinement in prison camps.

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Rarely is a person totally impaired, either physically or mentally. The effects of rehabilitation and treatment are critical in determining permanent levels of impairment, if any. Assessments of permanent impairment usually must await the outcome of adequate rehabilitation and treatment. Motivation for recovery is difficult to assess in the legal context. The claimant’s concern about damaging the standing of his or her own legal case may inhibit motivation for improvement or recovery. Moreover, recounting the traumatic event in the course of litigation generally exacerbates PTSD symptomatology. Minimal impairment may lead to permanent disability when motivation for recovery is lacking. The level of motivation as a function of the mental disorder or of other factors such as litigation is an important determination. The forensic examiner, in making long-term assessments of impairment, must distinguish between the PTSD claimant’s continuing nonintrusive memory of and reflection upon a traumatic event and disruptive dissociative reexperiencing phenomena. The PTSD claimant will always remember the traumatic event. As memory, the event can be important in molding a new adaptive worldview. Moreover, the presence of actual PTSD symptoms years later may not necessarily cause impairment. Although approximately 30%–50% of natural disaster victims continue to manifest PTSD symptoms over time, the level of functional psychiatric impairment usually declines significantly (Green et al. 1985a, 1990b). Studies have demonstrated that PTSD is compatible with good functional recovery (Goldstein et al. 1987; Roca et al. 1992). Blank (1993) noted that most studies of persons with PTSD have shown a degree of disjunction between the presence of the disorder and level of functioning. It is common to observe individuals with significant PTSD symptoms who function well. On the other hand, severe PTSD is associated with significantly elevated risks for substance abuse, depression, anxiety disorders, self-destructive acts, family and other interpersonal disruption, and occupational impairment. Studies show that chronic combat-related PTSD frequently is associated with other psychiatric disorders. Coexisting phobias, major depression, and panic disorder may develop after the onset of the PTSD (Mellman et al. 1992). These disorders may be a reaction to PTSD symptoms rather than to the original traumatic event. Again, the examiner must make a judgment call after careful assessment concerning the likelihood of chronic symptoms versus continuing improvement of PTSD symptoms. It is reasonably well established that persons with the persistent (chronic) form of PTSD likely will show a tendency toward deleterious personality change over time with severe functional incapacity (Reich 1990). McFarlane (1989), examining the predictors of chronic PTSD, found that the role of the trauma itself diminished over time and was eclipsed by premorbid

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variables such as neuroticism, prior adverse life events, and previous psychiatric disorder. McFarlane (2000) further identified prior trauma, prior psychiatric history, peritraumatic dissociation, acute stress symptoms, the nature of the biological response, and autonomic hyperarousal as risk factors in the longitudinal course of PTSD. However, Kulka et al. (1990) found that although personal characteristics played a significant role in chronicity, exposure to extreme events made a significant contribution to chronicity that was independent of background variables. Sutker et al. (1993) assessed current and long-term psychiatric sequelae of World War II Pacific theater combat trauma in veterans and prisoners of war (POWs) 40 years later. Among the POW survivors, 70% met current criteria for PTSD, and 78% met criteria for a lifetime diagnosis of PTSD. The combat veterans compared at 18% and 29%, respectively. Freedman et al. (1999) found that the occurrence of depression during the months that follow a traumatic event is an important mediator of chronicity in PTSD. In considering the PTSD claimant’s prognosis and future treatment needs, the forensic examiner must weigh both the impact event and personal factors in arriving at a final opinion. A number of posttrauma factors play a significant role in prognosis. For example, favorable factors include early treatment with sharing and validation of the victim’s experience, early and continuing social support, exposure to therapeutic groups with other PTSD patients, avoidance of retraumatization, and avoidance of activities that interrupt or prevent treatment (Tomb 1994). If possible, early reestablishment of a sense of community is essential when the sense of community has been damaged or lost. The availability of a supportive recovery environment is an important factor in the prognosis of persons with PTSD (Frueh et al. 1996). Less psychological support, both perceived and received, shortly after a trauma (but not more severe injury) has been found to predict PTSD on follow-up assessments (Perry et al. 1992). Perceived support is support thought to be available, if needed; received support is support obtained at the actual time of need in the aftermath of a traumatic event. Generally, longitudinal studies indicate that many individuals with PTSD recover or improve over time, although their symptoms do not necessarily disappear (Green 1996). However, a number of risk factors may be associated with chronic PTSD. A PTSD Prognostic Checklist can assist the examiner in rating risk and associated factors for chronic PTSD (Simon 1999).

Treatment Claimants are required to mitigate their damages (Dohmann v. Richard 1973). The meter cannot run forever against the defendant. Claimants with

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PTSD may resist obtaining psychiatric treatment because of a fear of worsening their symptoms by talking about the traumatic event. A variety of other reasons also may exist for not obtaining appropriate treatment, including concerns about jeopardizing the claimant’s legal case. The forensic examiner is commonly confronted by the anomalous situation of a significantly impaired claimant who has not obtained recommended treatment or who has been noncompliant with treatment recommendations. Numerous effective psychological and psychopharmacological treatments are available for persons with PTSD (Foa et al. 1999). Decreasing physiological arousal (fear and terror) is a core issue in treatment. The assessment of permanent impairment is most reliable after the claimant has received a sufficient trial of appropriate treatment or after the PTSD has sufficiently stabilized. A number of factors must be considered by the forensic examiner when called on to give opinions about prognosis and future needs of the litigant for treatment (Table 3–6). These opinions need to be grounded in available scientific data. For example, the psychiatric literature indicates that cognitive-behavioral therapy and medications are effective for intrusive symptoms, whereas psychodynamic therapy, both individual and group, is useful for symptoms of avoidance and social isolation (Green 1992). Prognostic statements that analyze factors in the PTSD litigant’s personality and life situation that both favor and impede clinical improvement are more credible. Inappropriate treatment will likely worsen prognosis. Realistic therapy goals aimed at restoring functional capacity rather than eliminating all symptoms will make for a shorter, more effective treatment. Also, it will not burden the patient-litigant with an impossible task. TABLE 3–6. Factors influencing the prognosis of a litigant with PTSD Dose level of trauma Nature of trauma (e.g., grotesqueness, physical/sexual abuse) Susceptibility (preexisting psychiatric history) Comorbidity (current and lifetime) Acuteness or chronicity of symptoms at time of evaluation Concurrent life stressors Family history (antisocial behavior, anxiety) Appropriate treatment Availability of support (received and perceived) Status of litigation Level of functional impairment

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Comorbid conditions may mask, mimic, maintain, or exacerbate PTSD symptoms. The treatment of comorbidity is essential in decreasing the chronicity and impairment associated with PTSD. If another condition is mimicking PTSD, adequate treatment will likely reveal the correct diagnosis. The correct diagnosis informs both treatment and litigation. PTSD is not the only consequence of psychological trauma. For example, traumaassociated narcissistic symptoms may closely mimic PTSD (Simon 2002). The examiner also should identify factors that favor recovery; these include the passage of time, social supports, absence of comorbidity, no psychiatric history, no physical injuries or illnesses, and effective treatment (see also Table 3–6). “Anchoring life events” (new life events that increase psychosocial support) and “fresh start life events” (new job, new relationships, improved marriage, new baby) may facilitate recovery (Dr. Allan White, personal communication, January 2, 2002). The type, frequency, and length of treatment usually depend on the treatment philosophy and approach of the treater as well as the clinical needs of the patient. Since it is often difficult to give an informed opinion about the actual frequency and length of time needed for future treatment, a range should be provided. Such information is important for calculating the claimant’s damages. Attorneys usually question the forensic expert on this issue, invariably asking about the costs of therapy, medication, or future hospitalization. However, it is appropriate to testify that “I don’t know” when reliable clinical information needed to form a reasonable opinion is unavailable. For example, a court-ordered, time-limited examination may not permit the examiner to gather sufficient information to reasonably address future treatment. It is not the forensic psychiatrist’s role to recommend treatments to the claimant.

Litigation Effect The effect of litigation on PTSD symptomatology and impairment must be considered. Sales et al. (1984) found heightened symptoms among sexual assault victims at follow-up if their cases had been tried, as compared with those who had not gone to trial. Unfortunately, the study does not clarify whether participation in litigation exacerbates symptoms or whether those with greater symptom severity sue. Green et al. (1990a), in a 14-year follow-up of survivors of the Buffalo Creek dam collapse of 1972, found no significant clinical differences between the litigant and nonlitigant survivor groups. On the other hand, Gleser et al. (1981) found clear relief among Buffalo Creek litigants after settlement, as reflected in global test scores at 4 years postflood and 2 years postsettlement. One-third of subjects at early

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follow-up ascribed their improved mental functioning to a successful outcome or termination of litigation. Involvement in litigation can be a major psychological stressor. For the PTSD claimant, litigation stirs up painful memories or induces flashbacks and nightmares of the traumatic event. Clinical regression occurs with some frequency. Secondary gain (seeking a favorable litigation outcome) may be a significant factor in maintaining PTSD symptoms and impairment. PTSD claimants often do poorly in litigation because of the adversarial context. Among friends or in therapy, the PTSD patient usually receives support and empathy. The traumatic experience is validated. Empathy provides a powerful healing experience. In litigation, cross-examination may have the effect of invalidating the traumatic experience and subsequent symptoms of the PTSD claimant. Dramatic worsening of the PTSD claimant’s psychological condition may occur as a result.

Guideline Standard assessment methods should be used in evaluating the level of functional psychological impairment of PTSD claimants. The examiner should not rely exclusively on clinical experience or subjective or idiosyncratic criteria in assessing psychological impairment.

Conclusion DSM-IV, published in early 1994, is the primary diagnostic reference manual into the twenty-first century. DSM-IV contains expanded diagnostic criteria for PTSD. The evolution of guidelines for the forensic psychiatric evaluation of PTSD claimants may assist in preventing the misuse of this diagnosis in litigation. The development of guidelines for the forensic psychiatric examination of PTSD claimants will help ensure fairness to all parties in litigation. A credible forensic examination will assist meritorious claims of PTSD, while also protecting defendants against spurious claims. Thereby, those who are truly injured will be appropriately compensated. Defendants, including insurers, also will have the confidence that they have received fair protection from unwarranted claims.

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References American Academy of Psychiatry and the Law: Ethical Guidelines for the Practice of Forensic Psychiatry. Bloomfield, CT, American Academy of Psychiatry and the Law, 1995 American Medical Association: Guides to the Evaluation of Permanent Impairment, 5th Edition. Edited by Cocchiarella L, Andersson GBJ. Chicago, IL, American Medical Association, 2001 American Psychiatric Association: Diagnostic and Statistical Manual: Mental Disorders. Washington, DC, American Psychiatric Association, 1952 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 2nd Edition. Washington, DC, American Psychiatric Association, 1968 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 3rd Edition. Washington, DC, American Psychiatric Association, 1980 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 3rd Edition, Revised. Washington, DC, American Psychiatric Association, 1987 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition. Washington, DC, American Psychiatric Association, 1994 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 American Psychiatric Association, Ethics Committee: The Principles of Medical Ethics: With Annotations Especially Applicable to Psychiatry. Washington, DC, American Psychiatric Association, 2001 American Psychiatric Association, Task Force on DSM-IV: DSM-IV Options Book. Washington, DC, American Psychiatric Association, 1991 Appelbaum PS, Jick RZ, Grisso T, et al: Use of posttraumatic stress disorder to support an insanity defense. Am J Psychiatry 150:229–234, 1993 Blanchard EB, Hickling EJ, Taylor AE, et al: Psychological morbidity associated with motor vehicle accidents. Behav Res Ther 32:283–290, 1994 Blanchard EB, Hickling EJ, Barton KA, et al: One-year prospective follow-up of motor vehicle accident victims. Behav Res Ther 10:775–786, 1996 Blank AS: The unconscious flashback to the war in Vietnam veterans: clinical mystery, legal defense, and community problem, in The Trauma of War. Edited by Sonnenberg SM, Blank AS, Talbott JA. Washington, DC, American Psychiatric Press, 1985, pp 293–308 Blank AS: The longitudinal course of posttraumatic stress disorder, in Posttraumatic Stress Disorder: DSM-IV and Beyond. Edited by Davidson JRT, Foa EB. Washington, DC, American Psychiatric Press, 1993, pp 3–22 Bremner JD, Davis M, Southwick SM, et al: Neurobiology of posttraumatic stress disorder, in American Psychiatric Press Review of Psychiatry, Vol 12. Edited by Oldham JM, Riba MB, Tasman A. Washington, DC, American Psychiatric Press, 1993a, pp 183–204

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Bremner JD, Southwick SM, Johnson DR, et al: Childhood physical abuse and combat-related posttraumatic stress disorder in Vietnam veterans. Am J Psychiatry 150:235–239, 1993b Bremner JD, Scott TM, Delaney RC, et al: Deficits in short-term memory in posttraumatic stress disorder. Am J Psychiatry 150:1015–1019, 1993c Breslau N, Davis GC: Posttraumatic stress disorder in an urban population of young adults: risk factors for chronicity. Am J Psychiatry 149:671–675, 1992 Breslau N, Davis GL, Andreski P, et al: Traumatic events and posttraumatic stress disorder in an urban population of young adults. Arch Gen Psychiatry 48:216– 222, 1991 Briere J, Zaida LY: Sexual abuse histories and sequelae in female psychiatric emergency room patients. Am J Psychiatry 146:1602–1607, 1989 Broadhead WE, Blazer DG, George LK, et al: Depression, disability days, and days lost from work in a prospective epidemiological survey. JAMA 264:2524–2528, 1990 Bryer JB, Nelson BA, Miller JB, et al: Childhood sexual and physical abuse as factors in adult psychiatric illness. Am J Psychiatry 144:1426–1430, 1987 Burstein A: Posttraumatic stress disorder (letter). J Clin Psychiatry 46:300–301, 1985 Carlier IV, Gersons BP: Partial posttraumatic stress disorder (PTSD): the issue of psychological scars and the occurrence of PTSD symptoms. J Nerv Ment Dis 183:107–109, 1995 Charney DS, Deutch AY, Krystal JH, et al: Psychobiologic mechanisms of posttraumatic stress disorder. Arch Gen Psychiatry 50:294–305, 1993 Clark LA, Watson D, Mineka S: Temperament, personality, and the mood and anxiety disorders. J Abnorm Psychol 103:103–116, 1994 Cohen RE: Twenty years and twenty post-trauma clinical lessons: from macro events to micro application. American Psychiatric Association’s Simon Bolivar Lecture. Presented at the 145th Annual Meeting of the American Psychiatric Association, Washington, DC, May 4, 1992 Cottler LB, Compton WM, Mager D, et al: Posttraumatic stress disorder among substance users from the general population. Am J Psychiatry 149:664–670, 1992 Davidson JRT: Issues in the diagnosis of posttraumatic stress disorder, in American Psychiatric Press Review of Psychiatry, Vol 12. Edited by Oldham JM, Riba MB, Tasman A. Washington, DC, American Psychiatric Press, 1993, pp 141– 155 Davidson JRT: Clinical efficacy shown in pharmacologic treatment of post-traumatic stress disorder. Psychiatric Times, September 1991, pp 62–63 Davidson JRT, Fairbank JA: The epidemiology of posttraumatic stress disorder, in Posttraumatic Stress Disorder: DSM-IV and Beyond. Edited by Davidson JRT, Foa EB. Washington, DC, American Psychiatric Press, 1993, pp 147–189 Davidson JRT, Foa EB: Diagnostic issues in posttraumatic stress disorder: considerations for DSM-IV. J Abnorm Psychol 100:346–355, 1991 Davidson JRT, Smith RD, Kudler HS: Validity and reliability of DSM-III criteria for posttraumatic stress disorder: experience with a structured interview. J Nerv Ment Dis 177:336–341, 1989

Forensic Psychiatric Assessment of PTSD Claimants

85

Davidson JRT, Kudler HS, Smith RD, et al: Treatment of posttraumatic stress disorder with amitriptyline and placebo. Arch Gen Psychiatry 47:259–266, 1990 Davidson JRT, Hughes DC, George LK, et al: The boundary of social phobia: exploring the threshold. Arch Gen Psychiatry 51:975–983, 1994 Dohmann v Richard, 282 So2d 789 (La Ct App 1973) Embry CK: Psychotherapeutic interventions in chronic posttraumatic stress disorder, in Posttraumatic Stress Disorder: Etiology, Phenomenology, and Treatment. Edited by Wolf ME, Mosnaim AD. Washington, DC, American Psychiatric Press, 1990, pp 226–236 Enelow AJ: Psychiatric disorders and work function. Psychiatric Annals 21:27–35, 1991 Epstein RS: Avoidant symptoms cloaking the diagnosis of PTSD in patients with severe accidental injury. J Trauma Stress 6:451–473, 1993 Eth S, Pynoos RS (eds): Posttraumatic Stress Disorder in Children. Washington, DC, American Psychiatric Press, 1985 Foa EB, Davidson JRT, Frances A (eds): The Expert Consensus Guideline Series. Treatment of Posttraumatic Stress Disorder. J Clin Psychiatry 60 (suppl 16), 1999 Frances AJ: Conceptual problems of psychiatric classification. Paper presented at the 143rd Annual Meeting of the American Psychiatric Association, New York, NY, May 15, 1990 Freedman SA, Brandes D, Peri T, et al: Predictors of chronic post-traumatic stress disorder: a prospective study. Br J Psychiatry 174:353–359, 1999 Frueh BC, Smith DW, Barker SE: Compensation seeking status and psychometric assessment of combat veterans seeking treatment for PTSD. J Trauma Stress 9:427–439, 1996 Galea S, Ahern J, Resnick H, et al: Psychological sequelae of the September 11 terrorist attacks in New York City. N Engl J Med 346:982–987, 2002 Gammons v Osteopathic Hospital of Maine, Inc., 534 A2d 1282, 1285 (Me 1987) Gleser G, Green BL, Winget C: Prolonged Psychosocial Effects of Disaster: A Study of Buffalo Creek. New York, Academic Press, 1981 Gold LH, Simon RI: Posttraumatic stress disorder in employment cases, in Mental and Emotional Injuries in Employment Litigation, 2nd Edition. Edited by McDonald JJ, Kulick FB. Washington, DC, Bureau of National Affairs, 2001, pp 502–573 Goldman HH, Skodol AE, Lave TR: Revising Axis V for DSM-IV: a review of measurers of social functioning. Am J Psychiatry 149:1148–1156, 1992 Goldstein G, van Kammen W, Shelly C, et al: Survivors of imprisonment in the Pacific theater during World War II. Am J Psychiatry 144:1210–1213, 1987 Goodwin DW, Guze SB: Anxiety neurosis (panic disorder), in Psychiatric Diagnosis, 3rd Edition. New York, Oxford University Press, 1984 Green BL: Assessing the levels of psychiatric impairment following disaster. J Nerv Ment Dis 170:544–552, 1982 Green BL: New research: implications for the diagnosis of PTSD. Panel discussion at The Development of Standards for the Forensic Examination of Post-Traumatic Stress Disorder Claimants. Washington, DC, Georgetown University, November 19, 1992

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Green BL: Traumatic stress and disaster: mental health effects and factors influencing adaptation, in International Review of Psychiatry, Vol 2. Edited by Mak FL, Nadelson CC. Washington, DC, American Psychiatric Press, 1996, pp 177– 209 Green BL, Grace MC, Gleser GC: Identifying survivors at risk: long-term impairment following the Beverly Hills Supper Club Fire. J Consult Clin Psychol 53:672–678, 1985a Green BL, Lindy JD, Grace MC: Post-traumatic stress disorder: toward DSM-IV. J Nerv Ment Dis 173:406–411, 1985b Green BL, Wilson JP, Lindy JD: Conceptualizing post-traumatic stress disorder: a psychosocial framework, in Trauma and Its Wake: The Study and Treatment of Post-Traumatic Stress Disorder. Edited by Figley CR. New York, Brunner/ Mazel, 1985c, pp 53–69 Green BL, Grace MC, Lindy JD, et al: Buffalo Creek survivors in the second decade: comparison with unexposed and nonlitigant groups. J Appl Soc Psychol 20:1033–1050, 1990a Green BL, Lindy JD, Grace MC, et al: Buffalo Creek survivors in the second decade: stability of stress symptoms. Am J Orthopsychiatry 60:43–54, 1990b Gunderson JG, Sabo AN: The phenomenological and conceptual interface between borderline personality disorder and PTSD. Am J Psychiatry 150:19–27, 1993 Helzer JE, Robins LN, McEvoy L: Post-traumatic stress disorder in the general population: findings of the Epidemiologic Catchment Area survey. N Engl J Med 317:1630–1634, 1987 Hendin H, Haas AP, Singer P: The reliving experience in Vietnam veterans with posttraumatic stress disorder. Compr Psychiatry 25:167–173, 1984 Herman JL: Trauma and Recovery. New York, Basic Books, 1992 Herman JL: Sequelae of prolonged and repeated trauma: evidence for a complex posttraumatic syndrome (DESNOS), in Posttraumatic Stress Disorder: DSM-IV and Beyond. Edited by Davidson JRT, Foa EB. Washington, DC, American Psychiatric Press, 1993, pp 213–228 Herman JL, van der Kolk BA: Traumatic antecedents of borderline personality disorder, in Psychological Trauma. Edited by van der Kolk BA. Washington, DC, American Psychiatric Press, 1987, pp 111–126 Horowitz MJ: Stress Response Syndromes. New York, Jason Aronson, 1976 Judd LL, Paulus MJ, Schettler PJ, et al: Does incomplete recovery from first lifetime major depressive episode herald a chronic course of illness? Am J Psychiatry 157:1501–1504, 2000 Keeton WP, Dobbs DB, Keeton RW, et al: Prosser and Keeton on the Law of Torts, 5th Edition. St Paul, MN, West Publishing, 1984, p 292 Kessler RC, Sonnega A, Bromet E, et al: Epidemiological risk factors for trauma and PTSD, in Risk Factors for Posttraumatic Stress Disorder. Edited by Yehuda R. Washington, DC, American Psychiatric Press, 1999, pp 23–59 Kinzie JD: Posttraumatic stress disorder, in Comprehensive Textbook of Psychiatry, 4th Edition, Vol 1. Edited by Kaplan HI, Sadock BJ. Baltimore, MD, Williams & Wilkins, 1989, pp 1000–1008

Forensic Psychiatric Assessment of PTSD Claimants

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Kionka EJ: Torts: Injuries to Persons and Property. St. Paul, MN, West, 1977, p 359 Kluznik J, Speed N, Van Valkenburg C, et al: Forty-year follow-up of United States prisoners of war. Am J Psychiatry 143:1443–1446, 1986 Koopman C, Classen C, Spiegel D: Predictors of posttraumatic stress symptoms among survivors of the Oakland/Berkeley, Calif., firestorm. Am J Psychiatry 151:888–894, 1994 Kulka RA, Schlenger WE, Fairbank JA, et al: Trauma and the Vietnam War Generation. New York, Brunner/Mazel, 1990 Lasky H: Psychiatric disability evaluation of the injured worker: legal overview. Psychiatric Annals 21:16–22, 1991 Loewenstein RJ: An office mental status examination for complex chronic dissociative symptoms. Psychiatr Clin North Am 14:567–603, 1991a Loewenstein RJ: Psychogenic amnesia and psychogenic fugue: a comprehensive review, in American Psychiatric Press Annual Review of Psychiatry, Vol 10. Edited by Tasman A, Goldfinger SM. Washington, DC, American Psychiatric Press, 1991b, pp 189–222 Lystad M (ed): Mental Response to Mass Emergencies. New York, Brunner/Mazel, 1988 March JS: What constitutes a stressor? The “criterion A” issue in PTSD, in Posttraumatic Stress Disorder: DSM-IV and Beyond. Edited by Davidson JRT, Foa EB. Washington, DC, American Psychiatric Press, 1993, pp 37–54 Marsella AJ, Freidman MJ, Spain EH: Ethnocultural aspects of posttraumatic stress disorder, in American Psychiatric Press Review of Psychiatry, Vol 12. Edited by Oldham JM, Riba MB, Tasman A. Washington, DC, American Psychiatric Press, 1993, pp 157–181 Marshall R, Olfson E, Hellman F, et al: Comorbidity, impairment and suicidality in subthreshold PTSD. Am J Psychiatry 158:1467–1473, 2001 McAllister TW: Mild traumatic brain injury and the postconcussive syndrome, in Neuropsychiatry of Traumatic Brain Injury. Edited by Silver JM, Yudofsky SC, Hales RE. Washington, DC, American Psychiatric Press, 1994, pp 357–392 McFarlane AC: The phenomenology of posttraumatic stress disorders following a natural disaster. J Nerv Ment Dis 176:22–29, 1988 McFarlane AC: The aetiology of post traumatic morbidity: predisposing, precipitating and perpetuating factors. Br J Psychiatry 154:221–228, 1989 McFarlane AL: Vulnerability to posttraumatic stress disorder, in Posttraumatic Stress Disorder: Etiology, Phenomenology, and Treatment. Edited by Wolf ME, Mosnaim AD. Washington, DC, American Psychiatric Press, 1990, pp 3– 20 McFarlane AL: Posttraumatic stress disorder: a model of the longitudinal course and role of risk factors. J Clin Psychiatry 61 (suppl 5):15–20, 2000 McGee R: Flashbacks and memory phenomena. J Nerv Ment Dis 172:273–278, 1984 Mellman TA, Randolph CA, Brawman-Mintzer O, et al: Phenomenology and course of psychiatric disorders associated with combat-related posttraumatic stress disorder. Am J Psychiatry 149:1568–1574, 1992

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Nally RJ, Saigh PA: On the distinction between traumatic simple phobia and posttraumatic stress disorder, in Posttraumatic Stress Disorder: DSM-IV and Beyond. Edited by Davidson JRT, Foa EB. Washington, DC, American Psychiatric Press, 1993, pp 207–212 Perr IN: Claims of psychiatric injury after alleged false arrest. J Forensic Sci 33:21– 34, 1988 Perr IN: Asbestos exposure and post-traumatic stress disorder. Bull Am Acad Psychiatry Law 21:3:331–344, 1993 Perry S, Difede MA, Musngi G, et al: Predictors of posttraumatic stress disorder after burn injury. Am J Psychiatry 149:931–935, 1992 Pilowsky I: Minor accidents and major psychological trauma: a clinical perspective. Stress Medicine 8:77–78, 1992 Pitman RK: Biological findings in posttraumatic stress disorder: implications for DSM-IV classification, in Posttraumatic Stress Disorder: DSM-IV and Beyond. Edited by Davidson JRT, Foa EB. Washington, DC, American Psychiatric Press, 1993, pp 173–189 Pitman RK, Orr SP: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. Bull Am Acad Psychiatry Law 21:37–52, 1993 Pitman RK, Saunders LS, Orr SP: Psychophysiologic testing for posttraumatic stress disorder. Trial, April 1994, pp 22–26 Pynoos RS: Traumatic stress and developmental psychopathology in children and adolescents, in American Psychiatric Press Review of Psychiatry, Vol 12. Edited by Oldham JM, Riba MB, Tasman A. Washington, DC, American Psychiatric Press, 1993, pp 205–238 Raifman LJ: Problems of diagnosis and legal causation in courtroom use of posttraumatic stress disorder. Behavioral Sciences and the Law 1:115–130, 1983 Reich JH: Personality disorders and posttraumatic stress disorder, in Posttraumatic Stress Disorder: Etiology, Phenomenology, and Treatment. Edited by Wolf ME, Mosnaim AD. Washington, DC, American Psychiatric Press, 1990, pp 64–79 Robins LN, Helzer JE, Croughan J, et al: National Institute of Mental Health Diagnostic Interview Schedule. Arch Gen Psychiatry 38:381–389, 1981 Roca RP, Spence RJ, Munster AM: Posttraumatic adaptation and distress among adult burn survivors. Am J Psychiatry 149:1234–1238, 1992 Ross CA: Epidemiology of multiple personality disorder and dissociation. Psychiatr Clin North Am 14:567–603, 1991 Rothbaum BO, Foa EB: Cognitive behavioral therapy for posttraumatic stress disorder, in Traumatic Stress: The Effects of Overwhelming Experience on Mind, Body and Society. Edited by van der Kolk B, McFarlane AC, Weisaeth L. New York, Guilford, 1996, pp 491–509 Rothbaum BO, Foa EB, Riggs DS, et al: A prospective examination of post-traumatic stress disorder in rape victims. J Trauma Stress 5:455–475, 1992 Sales E, Baum M, Shore B: Victim readjustment following assault. Journal of Social Issues 40:117–136, 1984 Salley v Childs, 541 A2d 1297, 1300 n 4 (Me 1988)

Forensic Psychiatric Assessment of PTSD Claimants

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Schnurr PP, Vielhaver MJ: Personality as a risk factor for PTSD, in Risk Factors for Posttraumatic Stress Disorder. Edited by Yehuda R. Washington, DC, American Psychiatric Press, 1999, pp 23–59 Schottenfeld RS, Cullen MR: Occupation-induced posttraumatic stress disorders. Am J Psychiatry 142:198–202, 1985 Schutzwohl M, Maercker A: Effects of varying diagnostic criteria for posttraumatic stress disorder are endorsing the concept of partial PTSD. J Trauma Stress 12:155–165, 1999 Scrignar CB: PTSD: Diagnosis, Treatment and Legal Issues, 2nd Edition. New Orleans, LA, Bruno Press, 1988 Selye H: The Physiology and Pathology of Exposure to Stress. Montreal, Canada, Acta, 1950 Simon RI: Cancerphobia: myth or malady in psychic injury litigation. Trauma 29: 43–60, 1988 Simon RI: “Three’s a crowd”: the presence of third parties during the forensic psychiatric examination. Journal of Psychiatry and Law 24:3–25, 1996 Simon RI: Chronic posttraumatic stress disorder: a review and checklist of factors influencing prognosis. Harv Rev Psychiatry 6:304–312, 1999 Simon RI: Legal issues in psychiatry, in Comprehensive Textbook of Psychiatry, 7th Edition. Edited by Sadock BJ, Sadock VA. Philadelphia, PA, Lippincott Williams & Wilkins, 2000, p 3288 Simon RI: Concise Guide to Psychiatry and Law for Clinicians, 3rd Edition. Washington, DC, American Psychiatric Press, 2001 Simon RI: Distinguishing trauma associated narcissistic symptoms from posttraumatic stress disorder: a diagnostic challenge. Harv Rev Psychiatry 10:28–36, 2002 Slovenko R: Legal aspects of post-traumatic stress disorder. Psychiatr Clin North Am 17:439–446, 1994 Southwick SM, Krystal JH, Morgan CA, et al: Abnormal nonadrenergic function in posttraumatic stress disorder. Arch Gen Psychiatry 50:266–274, 1993a Southwick SM, Yehuda R, Giller EL: Personality disorders in treatment-seeking combat: veterans with posttraumatic stress disorder. Am J Psychiatry 150: 1020–1023, 1993b Sparr LF: Legal aspects of posttraumatic stress disorder: uses and abuses, in Posttraumatic Stress Disorder: Etiology, Phenomenology, and Treatment. Edited by Wolf M, Mosnaim A. Washington, DC, American Psychiatric Press, 1990, pp 234–264 Sparr LF, Boehnlein JK: Posttraumatic stress disorder in tort actions: forensic minefield. Bull Am Acad Psychiatry Law 18:283–302, 1990 Spencer v General Electric Co, 688 F Supp 1072, ED VA 1988 Spiegel D: Dissociation and trauma, in American Psychiatric Press Review of Psychiatry, Vol 10. Edited by Tasman A, Goldfinger SM. Washington, DC, American Psychiatric Press, 1991, pp 261–275 Spiegel D, Cardeña E: Dissociative mechanisms in posttraumatic stress disorder, in Posttraumatic Stress Disorder: Etiology, Phenomenology, and Treatment. Edited by Wolf ME, Mosnaim AD. Washington, DC, American Psychiatric Press, 1990, pp 22–34

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State v Kim, 64 HAW 598, 645 P2d 1130, 1982 Stein MB, Walker JR, Hazen AL, et al: Full and partial posttraumatic stress disorder: findings from a community survey. Am J Psychiatry 154:1114–1119, 1997 Sterling v Velsicol Chemical Corp, 855 F2d 1188 (6th Cir 1988) Stone AA: Post-traumatic stress disorder and the law: critical review of the new frontier. Bull Am Acad Psychiatry Law 21:23–36, 1993 Strasburger LH: “Crudely, without any finesse”: the defendant hears his psychiatric evaluation. Bull Am Acad Psychiatry Law 15:229–233, 1987 Strasburger LH, Gutheil TG, Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. Am J Psychiatry 154:448– 456, 1997 Sutker PB, Winstead DK, Galina ZH, et al: Cognitive deficits and psychopathology among former prisoners of war and combat veterans of the Korean conflict. Am J Psychiatry 148:62–72, 1991 Sutker PB, Allain AN, Winstead DK: Psychopathology and psychiatric diagnoses of World War II Pacific theater prisoner of war survivors and combat veterans. Am J Psychiatry 150:240–245, 1993 Terr L: Chowchilla revisited: the effects of psychic trauma four years after a school bus kidnapping. Am J Psychiatry 140:1543–1550, 1983 Theriaulta v Swan, 558 A2d 369, 372 (Me 1989) Tomb DA: The phenomenology of post-traumatic stress disorder. Psychiatr Clin North Am 17:237–250, 1994 Trimble MR: Post-Traumatic Neurosis: From Railway Spine to the Whiplash. New York, Wiley, 1981 True WR, Rice J, Eisen SA, et al: A twin study of genetic and environmental contributions to liability for posttraumatic stress symptoms. Arch Gen Psychiatry 50:257–264, 1993 van der Kolk BA: The psychological consequences of overwhelming life experiences, in Psychological Trauma. Edited by van der Kolk BA. Washington, DC, American Psychiatric Press, 1987, pp 1–30 Van Putten T, Emory WH: Traumatic neurosis in Vietnam returnees—a forgotten diagnosis? Arch Gen Psychiatry 29:695–698, 1973 Walker JI: Vietnam combat veterans with legal difficulties: a psychiatric problem. Am J Psychiatry 138:1384–1385, 1981 Warshaw MG, Fierman E, Pratt L, et al: Quality of life and dissociation in anxiety disorder patients with histories of trauma or PTSD. Am J Psychiatry 150: 1512–1516, 1993 Weiss DS, Marmar CR, Schlenger WE, et al: The prevalence of lifetime and partial posttraumatic stress disorder in Vietnam theater veterans. J Trauma Stress 5: 365–376, 1992 Wolfe J, Keane TM: Diagnostic validity of posttraumatic stress disorder, in Posttraumatic Stress Disorder: Etiology, Phenomenology, and Treatment. Edited by Wolf ME, Mosnaim AD. Washington, DC, American Psychiatric Press, 1990, pp 48–63 Zebo v Houston, 800 P2d 245 (Okla 1990)

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PTSD in Children and Adolescents An Overview With Guidelines for Forensic Assessment Diane H. Schetky, M.D.

The forensic assessment of the impact of trauma in children is more

complex than that in adults, for whom risk factors and damages relate primarily to the dimensions of the traumatic event and factors within the victim that affect response to the trauma. Added dimensions in children’s responses to trauma include parental response to the trauma, the impact of the trauma on the child’s development, and the possibility of delayed-onset PTSD symptoms. In addition, PTSD in children may not look like PTSD in adults.

Overview Manifestations of PTSD in Children PTSD may manifest itself differently in children than in adults, and there is debate as to whether children must have the requisite symptoms in each category to qualify for the diagnosis. The PTSD diagnosis relies on subjective symptoms, the reporting of which requires language and cognitive skills and the awareness of feelings. Thus, it is difficult to elicit symptoms in very young children or in children with developmental delays or poor language skills. For example, the author once evaluated a 2½-year-old girl named Chelsea who, in the author’s office playroom, spontaneously performed fellatio on an anatomically correct male doll, then passed the doll

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on to the author, saying, “Your turn.” Although Chelsea was not able to explain what she was doing, her motions and the sounds she made left no doubt that she had at least witnessed, if not participated in, such an act. Chelsea’s mother later admitted that she used to make her daughter relieve her when she was taking cigarette breaks from performing fellatio on her husband, thereby confirming that Chelsea’s behavior was, indeed, a traumatic reenactment. Forensic examiners and clinicians rely on parents to provide valuable history on their children. Some parents may not be the best observers of changes in their children’s behaviors or may tend to minimize symptoms. Very young children often react to traumatic events with nonspecific symptoms such as sleep disturbance, anxiety, fearfulness, regression, and separation problems. For example, a 10-year-old girl who had been sexually abused but dared not disclose it began clinging to her mother, who drove the school bus. Whereas in the past she would get dropped off at her home, she now insisted on riding the entire route with her mother rather than be left home alone. Reenactment of a trauma in drawings or play is also common. For instance, Timmy, whose father had broken into their home in the middle of the night and killed his mother, began pretending that he had a gun, and while riding the school bus, he would point his finger at other children and say, “Bang, you don’t have a mother.” Posttraumatic play often has a repetitive and compulsive quality to it. The child may identify with the perpetrator or victim and monotonously play out the traumatic scene. Such play, in contrast to therapeutic play, is usually not helpful because the child ends up stuck in one role or the other and fails to achieve resolution of the trauma. Children may not show the avoidant and numbing symptoms typically associated with PTSD but may become constricted in play, withdrawn, and restricted in affect and may even experience feelings of estrangement (Scheeringa et al. 1995). Their recollections of trauma are more likely to consist of daydreams or fantasies rather than the visual flashbacks that adults experience. Terr (1991), a pioneer in the study of PTSD in children, observed cognitive changes following trauma, finding a sense of a foreshortened future, belief in omens, and distortions of time and visual perceptions during trauma in the young subjects she studied who had been kidnapped and buried in a bus. However, she noted that the children tended not to be amnestic for sudden, acute traumas. Scheeringa et al. (1995) have argued that the current DSM-IV-TR (American Psychiatric Association 2000) criteria for PTSD are not sensitive enough to make this diagnosis in infants and toddlers, as many of the diagnostic criteria require verbal descriptions of experiences and internal states from patients. These authors have proposed alternative criteria for PTSD in early infancy and early childhood that they

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have found to be more reliable and valid in diagnosing PTSD in children under 48 months of age. These criteria involve more behavioral manifestations and rely less on subjective descriptions. Symptoms of increased arousal may mimic attention-deficit/hyperactivity disorder (ADHD) and lead to an erroneous diagnosis. Children may throw themselves into schoolwork or their social life in hopes that a whirl of activity will help them avoid thinking about the traumatic event. Alternatively, attention to schoolwork may falter if they are continually scanning their environment for potential danger or attending to internal emotional states. Hypervigilance may be associated with persistent high levels of arousal. For instance, following the murder of his mother, Timmy would make early-morning patrols around his grandmother’s home while everyone else was asleep. He would startle at the sound of snow being shoveled outside, thinking it was someone trying to break into his home. He would also engage in counterphobic play and commented to his psychiatrist, “If you scare someone enough, they’ll get used to it.” Terr (1991) made a distinction between Type I and Type II trauma. Type I refers to an isolated trauma resulting in the typical reexperiencing, numbing, and avoidant symptoms associated with PTSD. Type II refers to repeated traumas, which, Terr found, were more likely to be associated with denial, numbing, dissociation, and rage. Children with histories of sexual abuse report significantly higher levels of disassociation when compared with children who have experienced other types of trauma (Kisiel and Lyons 2001). Those who have experienced repetitive traumas (e.g., ongoing incest) may have difficulty delineating separate episodes. This difficulty may relate to the fact that they learn to engage in dissociation as a survival tool to help them endure the abuse and not feel the pain. However, they do so at the expense of not having full recall of events. Frequent use of dissociation may also interfere with learning and avoiding future abuse. As children get older, symptoms of PTSD become more similar to those seen in adults who suffer from this disorder and include flashbacks and intrusive recall, which is less frequent among younger children. Some children may show delayed-onset PTSD, which may occur if they have successfully repressed symptoms or relied on dissociation. A trigger in their environment may bring about a flood of traumatic memories. Such was the case in the terrorist attacks on the World Trade Center and the Pentagon, which many children viewed on television. While viewing the attacks remotely was in itself traumatic, for some children it became a catalyst for personal traumatic losses with which they had not yet dealt. Often, children who live in unstable homes may not start to deal with their traumas until they are in a safe and supportive environment.

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Acute Stress Disorder The diagnosis of acute stress disorder may be applied to persons whose symptoms are a direct response to trauma but do not extend beyond 4 weeks’ duration. The diagnosis has the same threshold criteria as PTSD but slightly different criteria within each category of symptoms. A diagnosis of acute stress disorder is thought by some to be a risk factor for subsequent development of PTSD (McFarlane 1999).

Subthreshold PTSD Although not in DSM-IV-TR, subthreshold PTSD is a useful term for symptoms that fall short of meeting all of the criteria of PTSD. This may apply to persons who are newly diagnosed or those in the process of recovery. Marshall et al. (2001), in a study examining comorbidity, impairment, and suicidality in a cohort of adults with subthreshold PTSD, found that impairment, number of comorbid disorders, rates of comorbid major depressive disorder, and current suicidal ideation increased linearly and significantly with each increasing number of subthreshold PTSD symptoms. This finding is important in assessing damages in forensic evaluations.

Other Sequelae of Trauma in Children Children, like adults, may experience guilt for not having prevented a trauma, even though it would not have been feasible, as in the case of Timmy. In another case, a 9-year-old girl who had dared not disclose intrafamilial sexual abuse for fear of breaking up the family later blamed herself for the subsequent abuse of her little sister by the same perpetrator. Children experience a loss of trust when the perpetrators of sexual or physical abuse are persons who were supposed to have cared for and protected them. This loss of trust may have adverse impacts on subsequent relationships, including those with a therapist. Low self-esteem is common in children who have experienced abuse, be it physical, sexual, or emotional. Many internalize the derogatory comments of their perpetrators or blame themselves for their abuse in an attempt to make sense of it or regain a sense of control. Sadly, perpetrators often perpetuate this notion with comments such as “You asked for it” or “You deserve this” or “You’ll never amount to anything.” Closely linked is the feeling of being damaged, which can interfere with self-esteem and future intimacy. Self-mutilation may be seen, particularly in victims of sexual abuse. It may serve to relieve tension or to stimulate and bring them out of their numbness and feelings of being shut down. Self-mutilation is often a form of internalized anger, as well.

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Shame is a common sequela of abuse that may delay disclosure. As is well known, shame is often the precursor of violence, and the shame–violence cycle all too often is recapitulated in correctional settings when sadistic punishment is emphasized over rehabilitation. Loss of faith and a shattered view of the world is also reported among trauma survivors. For example, following the Challenger space shuttle explosion in 1986, Terr found that adolescents’ expectations for the future diminished and that these diminished expectations, along with lingering fears, remained a year later (Terr 1999). Such children may have difficulty planning long-term goals for themselves and may become fatalistic.

Common Causes of PTSD Sexual abuse is by far the most common cause of PTSD in women and female children. Other common causes of PTSD in children are witnessing or being victimized by violence and experiencing accidental injuries. Although these are the types of trauma most likely to lead to litigation, severe emotional trauma occurs in many other settings, including war, acts of terrorism, natural disasters, and exposure to violence within the community, school, or home. Community violence is common in many neighborhoods where children regularly witness drive-by shootings, rapes, and gang violence. A survey of schoolchildren in grades 6 through 10 in New Haven found that 40% had witnessed at least one violent crime within the previous 12 months (Marans and Cohen 1993). A large study of African American youth ages 10–19 years found that 75% of the boys and 10% of the girls had witnessed serious violence (Shakoor and Chalmers 1991). Children may be emotionally close to the victims, which compounds their trauma (Jenkins and Bell 1997). Many such children grow up in an environment of fear and unpredictability, with stressed parents who may not be available to them emotionally (Al-Mateen 2002). Further cumulative risk occurs when these children live in poverty in single-parent homes and receive inadequate medical and mental health interventions. Yet another etiology of PTSD is the impact of growing up amid domestic violence, which often spills over from spouses to children, who also become abused. A national survey of family violence estimated that 3.3 million children in the United States are at risk for witnessing violence between their parents (Straus et al. 1980), and many will witness the murder of a parent as well. In contrast to community violence, which tends to occur in urban poor settings, domestic violence knows no such limits and may be found in all cultures and socioeconomic levels. Children who are bystanders to trauma often experience a sense of helplessness, and, as noted by Pynoos

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and Eth (1985), they may feel more of the full emotional impact of violence than an injured child, who becomes more focused on physical pain. PTSD in children has also been reported following invasive medical procedures or life-threatening illness (Nir 1985) and in childhood cancer survivors (Stuber et al. 1997).

Prevalence and Course of PTSD Figures on the prevalence of PTSD in children and adolescents vary greatly according to the populations studied, types of trauma, methods used, and intervening years between trauma and the study. As might be expected, rates of PTSD following extreme trauma are very high (Yehuda et al. 2001). McLeer et al. (1992) found PTSD in 42% of girls who had been sexually abused and found no relationship between the length of time since trauma and the diagnosis. Interestingly, rates of PTSD related to childhood sexual abuse are higher for adults than for children, which raises the possibility of a “sleeper effect,” particularly when there has been no intervention (Beitchman et al. 1992). Issues of betrayal and lack of protection may not affect the victim until he or she is much older. Some children may mask their distress with externalizing behaviors. Female victims remain at risk for revictimization either as children or as adults; hence, there may be cumulative damages. Pelcovitz et al. (1994) found that physically abused adolescents were at more risk for behavioral problems, generalized emotional disturbances, and social difficulties than for PTSD. This finding is in contrast to the earlier work of Green (1985). Possible explanations for the low incidence of PTSD in physically abused adolescents are the lack of secrecy and shame surrounding such abuse, in contrast to sexual abuse. Other factors are the more public nature of the sequelae of physical abuse, the predictability of the abuse, and the possibility that some victims normalize physical abuse or do not see it as life threatening. However, a delayed effect may also be operative, given that research by Bremner et al. (1993) found that patients seeking treatment for combat-related PTSD had higher rates of childhood physical abuse than did combat veterans without PTSD. MacMillan et al. (2001), in a retrospective study of adults, found that a history of abuse in childhood increased the likelihood of lifetime psychopathology and that the association was stronger in women than men. Physical abuse in childhood was associated with anxiety disorder in 22% of male respondents and 39% of female respondents. Some of the earliest studies of PTSD in children dealt with their responses to natural disasters. Green et al. (1991) studied children’s responses to the Buffalo Creek dam collapse and found that 37% of the children eval-

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uated met “probable” DSM-II (American Psychiatric Association 1968) criteria for PTSD. At follow-up to 2 years later, the number of affected children had declined to 7%. One might expect that victims of natural disasters are likely to receive support from family and community unless the community is devastated. Furthermore, traumas related to natural disasters do not bear the same stigma as child sexual abuse, nor is there the need for secrecy or self-blame. However, most studies report persistence of PTSD symptoms in children in a variety of settings, including in children exposed to a fatal school sniper shooting (Pynoos et al. 1987), to an Australian bush fire (McFarlane 1987), to the Armenian earthquake (Goenjian et al. 1995), and to Hurricane Andrew (Shaw et al. 1995). Children and adolescents living in war-torn nations may experience cumulative and chronic trauma. Preschoolers appear to be most sensitive to the effects of war and least able to process them (Gabarino and Kostelny 1997), and children exposed to war become more aggressive. Numerous studies have documented persistent symptoms of PTSD in children exposed to war or abuse in labor camps (Arroyo and Eth 1985; Hubbard 1995; Kinzie et al. 1986; Laor et al. 2001; Macksoud and Aber 1996).

Mediating and Risk Factors The age of the child at the time of trauma may affect which symptoms occur but not symptom severity (Foy et al. 1996). Foy et al. (1996) note that data in regard to gender differences in PTSD severity also appear to be inconclusive, although many studies report higher distress scores in females (Helzer 1987). Girls who witness violence between their parents are more likely to respond with withdrawal, depression, and passive behavior, whereas boys tend to externalize and become more aggressive (Fantuzzo et al. 1991). However, PTSD in boys may be masked by externalizing and risk-taking behaviors or substance abuse. Dose of trauma is consistently related to severity of PTSD symptoms in children, as is also the case for adults. Ethnicity and culture as variables have not been well researched. Studies tend to agree that three factors—severity of the trauma, temporal proximity to the trauma, and parental responses to the trauma—mediate the development of PTSD in children and have strong bearing on the development of symptoms (Foy et al. 1996; Laor et al. 2001). Parents who have also developed PTSD in response to the same trauma may be less able to help their children deal with it. Furthermore, children may be adversely affected by the parents’ high level of anxiety and may model their behavior on their parents’ behaviors. Among children who are sexually abused, parental support is a pivotal factor that can contribute to a more favorable outcome. Jenkins and Bell (1993) cited proximity, relationship with the vic-

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tim, gender, and other stressors as mediating the effects of violence. They noted the need to also consider protective factors that might lessen the chances of maladaptive responses to trauma, such as parental support and calm response, a stable home life, community involvement, and individual factors such as internal locus of control, good social and problem-solving skills, and a sense of competency (Jenkins and Bell 1997). Prior exposure to trauma in children may sensitize them, thereby increasing their vulnerability to subsequent stress (Garrison et al. 1993). In retrospective studies of adults, prior psychiatric history and low educational levels are often cited as risk factors for the development of PTSD (March 1993). Low cognitive functioning may predispose to PTSD owing to increased risk for exposure because of poor judgment and decreased coping skills. Genetic predisposition was found to account for 30% of the liability for developing certain PTSD symptoms in a twin study of Vietnam veterans (True and Lyons 1999).

Neurobiological Correlates of PTSD It is well known that acute stress increases adrenocorticotropic hormone (ACTH) levels and, in turn, cortisol secretion from the adrenals. The body typically responds by becoming alert, goal directed, and ready for action. Thinking may become overly focused on the traumatic event but incomplete at the expense of not noticing peripheral details or even an assailant’s face. In extreme stress, thinking may be chaotic and coping responses may become ineffective, and some individuals may respond with dissociative behavior. New research has found neurophysiological changes in children with PTSD that likely explain the chronic course this disorder often takes. Perry (2002) notes that the brain’s impulse-mediating capacity is related to the ratio between the excitatory activity of the lower and more primitive portions of the brain and the modulating activity of the higher cortical areas. Any factors that increase the activity or reactivity of the brainstem or decrease the moderating capacity of the limbic or cortical areas will increase an individual’s aggression, impulsivity and capacity to be violent. (p. 192)

Cortical activity might be diminished because of mental retardation, brain injury, neglect, or malnutrition. Brain-stem activity can be increased in chronic traumatic stress, leading to symptoms such as hypervigilance and increased arousal seen in PTSD. Perry further observes that threats can activate brain-stem activity and neurobiology, which in turn can have permanent effects on the developing brain. Such changes may include alterations

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in synaptic number and microarchitecture, dendritic density, and enzymes and neurotransmitter systems. Damage to the hippocampus—and, in turn, memory—may also occur in chronic exposure to stress (McEwen 1999). Perry (2002) notes that dissociative responses often predominate in very young children exposed to trauma and that these responses correspond to defeat behaviors exhibited in animals. Dissociative reactions are mediated by circulating epinephrine, stress steroids, and opioids. Perry concludes that if these specific responses are activated long enough, they may result in molecular structural and functional changes in these systems, causing the child to be vulnerable to persistent hyperarousal-related symptoms and disorders. Teicher et al. (1996) found abnormal electroencephalograms in 60% of inpatient children with histories of either physical or sexual abuse, as compared with 43% of those without abuse histories. An abnormal startle response developing within a few months of a traumatic event has been found to be a biological marker for chronic PTSD (Shalev et al. 2000). Ornitz and Pynoos (1989) provided preliminary evidence that loss of inhibitory control over this reflex could interfere with the acquisition of other skills in children, such as control over activity level and ability to self-reflect and focus. It is speculated that the anterior cingulate normally exerts an inhibitory effect on the amygdala and other parts of the brain involved in the fear response but that trauma lessens the inhibitory effect. Reduced blood flow in this region has been demonstrated in several studies of trauma-exposed subjects (Yehuda et al. 2001). A few studies have documented altered hypothalamic-pituitary-adrenal (HPA) axis functioning in children exposed to chronic stress. De Bellis et al. (1994a, 1994b) found greater catecholamine synthesis in sexually abused girls compared with control subjects. This was also true of subjects who did not manifest full-blown PTSD. In a later study, De Bellis and colleagues (1999) found smaller intracranial and cerebral volumes in these girls compared with control subjects. In addition, Perry (2002) found altered cardiovascular regulation in traumatized children. A few authors have suggested that sexual abuse may bring about early onset of puberty in females (Herman-Geddes et al. 1988; Putnam and Trickett 1993).

Comorbidity Many studies have noted the comorbidity between PTSD and major depressive disorder, but it is not clear whether major depression is a precursor that contributes to the development of PTSD or whether it results from PTSD. Anxiety disorders are often comorbid with PTSD, as is substance abuse. In many cases, the latter may result from attempts to self-medicate

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and dampen the symptoms of PTSD. However, persons who drink heavily may also engage in risk-taking and violent lifestyles that may lead to the development of PTSD. In addition, substance abuse may sensitize an individual to PTSD because it can lead to high levels of arousal and anxiety (Jacobsen et al. 2001). A study of chemically dependent adolescents found that the risk of developing PTSD was 41.6% for females, which was 1.7 times the rate for males. The traumas experienced by females most often involved rape, witnessing a killing or physical assault, or threat of injury. The authors found that females were more likely to have experienced PTSD prior to the onset of chemical dependency, whereas males were more likely to have developed PTSD after the onset of chemical dependency (Deykin and Buka 1997). As with major depression, controversy exists as to whether symptoms of ADHD predispose to PTSD or in some cases are caused by it. McLeer et al. (1994) found a high incidence of ADHD among sexually abused children and speculated that impulsivity and poor judgment associated with this disorder may put these children at higher risk for sexual abuse. As noted earlier, it is easy to mistake one disorder for the other, as both entail high levels of arousal. Cognitive problems may occur in traumatized children as a result of hypervigilance and distractibility or via emotional shutdown and dissociative responses, which divert attention from learning. Children who experience visual flashbacks must contend with the ensuing feelings of helplessness and fear that go along with visual memories of the trauma. Several authors have suggested that PTSD may heighten impulsivity and aggression, thereby contributing to the development of conduct disorders and externalizing behaviors (Arroyo 2001; Arroyo and Eth 1985; Green 1985; Steiner et al. 1997). Grief reactions often follow trauma, particularly if the trauma involves loss of a loved one, home, or value system. The latter was evident nationwide as citizens of the United States grappled with the September 11, 2001, terrorist attack. Grief usually follows a typical course starting with denial and progressing to numbness, anger, sorrow, and gradual acceptance. However, children’s grief tends to be more on and off and often needs the support of adults and a secure environment in which to fully unfold. A useful distinction between grief and trauma symptoms can be made: the bereaved person is usually preoccupied with the lost person, whereas the traumatized person is usually preoccupied with the scene of the trauma and the violent encounter with death (Jacobs 1999). However, when a loved one’s death is traumatic, the two will overlap as memories of the deceased become paired with distressing visual memories of the trauma. Grief and PTSD may be masked by externalizing behaviors. For example, 14-year-

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old Morgan was alone with his father when that parent suddenly died. He felt bereft, without a rudder, and at a loss to deal with the world, and he no longer cared about himself or others. His life seemed pointless, and he took his rage out on society, engaging in reckless antisocial behavior that landed him in the youth detention center.

Developmental Impact of Trauma on Children Age and developmental level are important variables in how a child responds to trauma. Children go through sequential stages of development, and failure to master the tasks of one stage of development may interfere with subsequent stages of development. In addition, trauma takes on new meaning as the child progresses intellectually and begins to think more abstractly and less egocentrically. For a preschooler, a terrorist attack will impact on concrete issues such as separation, loss of home, and concerns about safety and being fed. In contrast, such an attack confronts the adolescent with issues of morality, ethics, his or her own views on killing, his or her mortality and the future, fears of having to enlist, financial insecurities, and lingering questions of “why.” He or she is likely to experience sorrow for victims and their families and fear of losing friends. In addition to looking at the impact of PTSD on development, one needs to weigh the impact of comorbid conditions. Preschool Children Developing trust is one of the early developmental tasks of children that colors all future relationships. Certain types of abuse undermine trust and can cast a long shadow on the child’s development in this regard. Abuse by a trusted person outside of the home may lead to avoidant behaviors that may interfere with the child’s sense of autonomy and developing sense of confidence. Abuse within the family may lead to secrecy, loyalty conflicts, and fear of repercussions for disclosing and interferes with the child’s developing sense of integrity. In general, younger children will receive more protection from adults around them. However, given their dependency on adult caretakers, they are more likely to experience separation anxiety or avoidant symptoms in response to trauma than are older children, who in turn are more likely to experience symptoms of arousal and intrusive recall (Schwarz and Kowalski 1991). Separation from parents at the time of a natural disaster has been associated with more symptom development than was exposure or loss (McFarlane 1987).

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School-Age Children Work, integrity, and developing social skills are the tasks of latency. Cognitive symptoms of PTSD may impede learning and, in turn, self-confidence, leading to a sense of inferiority. This child will not experience the joys of discovery and producing things. Lingering anxieties and separation problems and concerns about parental safety will adversely affect the child’s social life, which is so critical to the child’s developing sense of self and ability to separate from parents. On the other hand, some children whose parents have failed to protect them may become pseudo-mature and develop survival skills in an attempt to convince themselves that they do not need the protection of parents. If a child suffers a comorbid condition (e.g., depression) in addition to PTSD, this will also take a toll on learning and socialization. Adolescents Adolescents struggle with identity formation. If they have had abusive or neglectful role models, their task will be difficult, as they may have internalized parental negative self-fulfilling prophecies. As they contemplate their own future and parenthood, they may fear repeating the abuse that they have experienced. For example, trauma resulting in physical disfigurement or impairment will also affect a female adolescent’s sense of self and concerns about others’ reactions to her. This could lead to avoidant behaviors or use of sex to convince herself that boys find her attractive. The impact of abuse will color the child’s feelings about herself and may cause her to be avoidant of the opposite sex, either because she feels damaged and dirty or because she is apprehensive about repeated abuse, particularly as she begins dating. Sexual intimacy in adolescents may trigger old memories of sexual abuse and cause the victim to be very anxious and uncomfortable in these situations. An adolescent girl may shy away from sharing her abuse history with her partner out of shame or fear of being rejected. Some victims enter into abusive relationships, repeating rather than working through prior traumas. The task of separating and individuating from parents is recapitulated in adolescence and may be affected by trauma. An adolescent may feel overly responsible for a parent who has been disabled by injury or PTSD and may feel the need to stay close to home. Conversely, parents may be overprotective because of PTSD-related anxiety and have heightened concerns about their adolescent’s safety, not allowing the distance he or she craves. Some adolescents who are concerned about being too dependent on their parents may seek to emancipate themselves through risk taking and the pseudo-trappings of maturity, such as substance abuse and smoking.

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The adolescent who still harbors anger about his abuse or traumatic losses may express narcissistic rage, have feelings of entitlement, and engage in vindictive behavior. Increased access to drugs, alcohol, and weapons may put him at risk for harming others. Such youths are often diagnosed as having mere conduct disorders and unless questioned about PTSD symptoms, that diagnosis may be overlooked. The adolescent with PTSD may experience a foreshortened sense of future, which, as noted, affects the ability to plan ahead and may lead to risktaking behaviors or the need for instant gratification. Negative expectations will impede the adolescent’s ability to set goals for himself or herself or make career plans. Those who have experienced war or natural disaster may have a bleak outlook on the future and be expecting disaster to strike again. As noted by Pynoos et al. (1996), as children mature, they become better able to appreciate and articulate the developmental impact of trauma on their lives. Pynoos and colleagues also noted that those victims who experience intrusive memories of trauma recall not just the visual experience but also the affective components of fear, helplessness, and terror, which continue to shape their minds, perceptions of the world, and expectations over time. Some studies suggest that traumatic exposures in childhood may contribute to the development of subsequent personality disorders (Guzder et al. 1996; Pynoos et al. 1996).

Treatment Treatment modalities for young victims of trauma may include individual play or psychotherapy, depending on the age of the child, as well as stress management techniques, cognitive therapy that attempts to correct the child’s distortions and faulty attributions regarding the trauma, and most often a combination of these techniques. Cohen and Mannarino (1996) studied treatment outcomes of sexually abused preschoolers and found that specific cognitive-behavioral treatment adapted for sexually abused preschool children was more effective than nondirective supportive therapy. The work of Deblinger (1996) also supports the use of cognitive-behavioral treatment in this population. Goenjian et al. (1997) conducted one of the few controlled studies of efficacy of brief intervention in alleviating symptoms of PTSD. Using a school-based intervention, they offered traumaand grief-focused brief therapy to adolescent survivors of the Armenian earthquake. They found that severity of PTSD symptoms significantly decreased in those receiving psychotherapy but worsened in the control group. There was no change in severity of depression in the treatment group, whereas depression worsened among the students who did not receive treatment.

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Group therapy has also been used as an intervention, although controlled studies and data on efficacy are lacking. Group therapy has the potential to retraumatize children when they are exposed to other children’s traumas. Some children may not feel comfortable sharing their experiences with other children. An additional risk is the suggestibility of young children, who may incorporate experiences of other children into their own trauma histories. If such exposure occurs prior to litigation, a child’s testimony may become contaminated. Straus (1999) cautions that some children may not respond to traditional talk therapy because they have been too traumatized and that, as a result of the trauma, they may have cognitive delays and attachment issues and may be too fragile, oppositional, or disorganized and consequently unable to verbally process their trauma experiences. She stresses therapy that relies more on nonverbal techniques and focuses on allowing children to feel safe, develop “islands of competence,” and restore hope and confidence in themselves and their shattered worlds. Medication may be helpful in decreasing levels of arousal and facilitating sleep. Parents will often need services, as well, to help them understand the nature of PTSD, deal with symptoms in their children, and provide emotional support to them. Parents may require individual therapy if they have also been traumatized or even if they have experienced vicarious traumatization (e.g., recurrent images of their child being raped, even if they did not witness it). Finally, school-based interventions following a trauma may be helpful in promoting recovery. For a more detailed discussion of treatment modalities, the reader is referred to the American Academy of Child and Adolescent Psychiatry’s (1998) “Practice Parameters for the Assessment and Treatment of Children and Adolescents With Posttraumatic Stress Disorder.”

The Forensic Examination Becoming Involved The forensic psychiatrist needs to ask whether he or she is qualified to offer expert testimony in cases dealing with traumatized children. Evaluations of children require specialized interviewing skills, experience with victimized children, knowledge of the literature on PTSD in children and adolescents, and awareness of the manifestations and developmental impact of PTSD in children. These skills are best gained through formal training in child and adolescent psychiatry. Even if the plaintiff is an adolescent, it is important to be aware of developmental issues that bear on issues of vulnerability and subsequent symptom development. In addition, the expert should be versed in

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the principles of forensic child and adolescent psychiatry. Board certification in both child and adolescent psychiatry and forensic psychiatry is preferable. Therapists are often asked by attorneys or the court to testify regarding damages and may acquiesce to such requests in the mistaken belief that they are being helpful to their patient or the court. To do so represents role confusion and is laden with pitfalls. The expert witness needs to strive for objectivity, a near-impossible task for the therapist whose role is that of patient advocate. The therapist, who has usually only relied on subjective information from the patient and family to reach his or her opinions, also lacks the broader data base of the forensic psychiatrist. Patients or family members who waive privilege may not have full knowledge of potentially damaging information in their medical records. Disappointment with the therapist’s testimony could jeopardize the therapeutic alliance between the child psychiatrist and his or her patient and family and even lead to discontinuation of treatment. In addition, when the therapist becomes immersed in legal issues, this often derails therapy. For these reasons, it is recommended that therapists refrain from offering forensic opinions and that such forensic evaluations be conducted by persons qualified to do so who do not have a conflict of interest (Schetky 2002a; Strasburger et al. 1997). Exceptions may exist in areas where there are no qualified mental health professionals to perform a forensic exam. Before accepting a case, the forensic child and adolescent psychiatrist needs to consider whether there are any potential conflicts of interest that might taint objectivity and preclude involvement in the case. Such conflicts might include social or professional involvement with the plaintiffs or their relatives or financial investments in cases involving product liability.

Legal Issues When the forensic psychiatrist is initially contacted by an attorney, it is important to find out whether the case is civil or criminal and which party the attorney represents. The expert should be aware of the relevant law in the jurisdiction where the case will be heard and clarify what aspect of the case the attorney would like him or her to address. It is also useful to determine whether the parents are co-plaintiffs and whether the attorney also wants them evaluated. In some defense cases, it may not be possible to have access to the plaintiff. If plaintiff’s attorney refuses to allow the plaintiff to be examined, the expert may be limited to offering opinions based only on record review. Such opinions should always be qualified with a statement regarding the limiting factors. If the request comes from an attorney in a state in which the expert is not licensed, he or she must determine whether or not that state requires

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local licensure in order to give expert testimony there. Whereas in some states this issue is clear, in many others the issue remains cloudy and may require clarification by the court involved. Some liability carriers will not provide coverage in states that require licensure for expert testimony unless the expert is licensed there. Simon and Shuman (1999) and Reid (2000) offer further guidance on this complex issue. The statute of limitations for minors is tolled and does not begin to run until they reach the age of majority. The time allotted in which they may bring suit beyond this varies from state to state and may depend on the type of action brought—for example, civil or criminal, professional negligence or more general tort litigation. In some states there is no limit as to when actions based on sexual abuse of minors may be commenced. In those states where there are limitations, forensic psychiatric experts may be asked to determine whether there were circumstances present that might extend the statute of limitations.

Special Forensic Issues With Children Special Challenges The forensic evaluation of PTSD in children poses many challenges because one is dealing not just with an isolated trauma but with an event that affects the child’s development and family dynamics. Furthermore, the trauma may have changing ramifications over the ensuing years. Allocation of damages is difficult because of the complex interplay between PTSD and comorbid conditions and the need to consider mediating factors such as parental response to the trauma. In addition, one needs to consider secondary trauma above and beyond the trauma that caused the PTSD. For example, the painful treatment of extensive burns in a child whose pajamas caught fire, isolation on a burn unit far from home, prolonged hospitalization, and separation from peers are all likely to affect that child’s social and academic development. Obtaining a History In contrast to the evaluations of adults for PTSD, one is much more dependent on caretakers and parents for obtaining a history. Their history may be skewed by the need to minimize symptoms if they are feeling guilty for not having protected their child or by the need to exaggerate symptoms for financial gain. Efforts to interview parents should be made in nearly all cases unless they are unavailable or uncooperative. School records often prove useful for assessing current functioning, although many children may succeed in hiding their subjective distress or may be unwilling or afraid to talk about it.

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Memory Infants and toddlers have difficulty encoding and organizing memories. Recall for familiar events may be present, but it is generally agreed that children of this age lack the neurological maturity to have explicit (narrative) memory for particular events in their lives. Clark (Clark and Clark 2002) suggests that adults’ or older children’s memories of events occurring prior to age 3 should be viewed with skepticism. She further notes that by age 3, verbal abilities become more complex, and memory will be affected by contextual situations. Encoding skills, particularly for short-term memory, improve, and children are able to retrieve memories in response to questions or cues. However, it is not until about age 6 that children develop strategies to help them store and remember things. The ability to provide an autobiographical narrative is also mediated by the amount of dialogue a child routinely has with her caregivers and by his or her degree of attachment to them (Oppenheim et al. 1997). As children mature, they develop scripts to help their recall of familiar events; however, as noted by Clark (2002), the risk exists that scripts may interfere with their recalling specific memories that have become melded into the scripted event. In contrast, she notes that some older children may actually remember novel events better because they fall outside of the familiar scripts. Passage of time affects recall in both children and adults. Memories may fade or be revised as the child incorporates new information. Another difficulty is source misattribution, in which children confuse what they have been told with what they actually experienced or what they imagined with what actually happened. For instance, children who feel guilty about how they failed to respond to a trauma may modify their scripts and depict themselves performing heroic deeds and blur fantasy with reality. Studies have demonstrated that children may come to believe that false events are real events, and they may even cling to these notions after being debriefed, at least in research situations (Ceci et al. 1994). Controversy exists as to whether trauma or stress enhances or interferes with memory. Contradictory findings likely relate to whether a child responds to trauma with heightened arousal (which is likely to enhance some aspects of memory) or with dissociation (which interferes with full recall of events) and whether the trauma is an isolated event or cumulative (Terr 1991). Bruck et al. (1999) found that mothers’ memories of conversations with their preschoolers were not necessarily accurate. Mothers tended to be confused as to whether utterances from their children were prompted or spontaneous, and there was a low confidence–accuracy relationship. These findings are important because the forensic evaluation of children places a great deal of weight on observations and history provided by parents.

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Suggestibility There is an extensive body of research on the suggestibility of children, including in forensic contexts, where there is risk that children may respond to suggestive interviewing and give inaccurate reports. Although preschoolers are particularly susceptible to leading questions, age differences are only a matter of degree: older children and adults are also suggestible. Children may feel the need to please the adult interviewing them by giving the desired response, and they may be influenced by faulty interviewing techniques, exposure to the testimony of other children, or the impact of multiple interviews (which the child may interpret as a demand for more or new information). Some children may become permanently tainted by suggestive interviews to the point that they lose all credibility in court (see, e.g., Massachusetts v. Amirault Le Fave 1998; State v. Michaels 1994). The issue of suggestibility has been extensively reviewed by Ceci and Bruck (Bruck and Ceci 2002; Ceci and Bruck 1995). Nonetheless, when properly interviewed, many children are capable of providing reliable reports and giving effective testimony. Some children may be very resistant to suggestive questioning and are likely to be more so when the trace memory for the trauma is strong. Countertransference Forensic examiners may err by not pushing for enough detail. This may occur when the examiner is concerned about retraumatizing the child or when there are personal issues related to unresolved traumas that make it difficult to hear horrific details. There is also the risk of feeling the need to comfort the hurting child or to be overly reassuring. Such impulses can easily lead an examiner to slide into a therapeutic rather a than forensic role, which is both inappropriate and confusing to the child.

Conducting the Forensic Exam Document Review Prior to the evaluation, relevant records should be requested from the retaining attorney and reviewed. These might include police records, emergency medical treatment records if there has been an accident, medical and hospital records, mental health records, and school records. Typically, the attorney will handle requests for the needed materials.

Recording the Evaluation The interview should be recorded in some form, with notes, audiotapes, or videotapes. The latter two can be problematic with young children, as dis-

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cussed by Schetky (2002b), and if these forms are used, permission should be obtained from parents or guardians.

Parents With young children it is preferable to see the parents first to obtain background information on the child and help them prepare the child for the interview. As with any psychiatric evaluation of a child, one needs to obtain a developmental history and some family history as well. In the forensic exam, the examiner will be alert to the child’s level of functioning prior to the trauma and any prior trauma history, including witnessing trauma, that might be contributing to the present symptoms. Parental concerns about the child should be elicited, and it may be fruitful to inquire about their motives for bringing suit. These may range from the altruistic (e.g., not wanting other patients to be exposed to the type of treatment their child received from a physician) to the vindictive (e.g., “He should pay for what he did to my child”). It is also useful to find out how much parents know about PTSD—whether they are truly naive or well versed in the literature. With the advent of the Internet, many parents are well acquainted with this disorder and may be looking for symptoms in their child and even overreacting following a trauma. It may be useful to speak with others who have a significant role in the child’s life, such as teachers, baby-sitters, or grandparents. For instance, a mother alleged that her daughter had been sexually abused during nap time at daycare and now had a severe sleep disorder. The defense expert spoke with the teacher at the child’s new day care, who said that the child had no difficulty whatsoever at nap time.

Interviews With the Child It is often informative to ask the child what his understanding is as to why he is being seen and whether anyone has told him what he should say. The child needs to be told, in age-appropriate language, the purpose of the evaluation and with whom results will be shared. He should also be told that the examiner will only be seeing him for a few times and will not be offering him treatment. Appointments should be scheduled at times when the child is likely to be most cooperative and rested, and the child should be offered breaks as needed. In most cases, examination of the child can be completed within 2–4 hours (over several sessions), depending on the age of the child and the complexity of the case. The presence of a parent or attorney in the room is distracting to both the child and the examiner, and the child may turn to that person for guidance on how to respond to questions. Thus, the child will usually need be seen alone unless separation anxiety, very young age, or developmental de-

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lays preclude this. Time needs to be spent putting the child at ease and developing a relationship. Disclosures about the trauma will usually be most accurate if the child is allowed to relate what happened in narrative form. However, some severely traumatized children have difficulty organizing narrative material and will instead engage in “chaotic narrative construction” (Osofsky 1993). Too many questions from the examiner can feel like an interrogation, and too much jumping around is confusing to the child, who may have trouble with tracking. As noted earlier, leading questions or selective reinforcement of information should be avoided. It may be necessary to ask direct questions about certain symptoms of PTSD if they are not volunteered by the child and to explore preexisting symptoms. Children may not equate certain symptoms with trauma and may fail to see their relevance. On the other hand, a mildly retarded teenager with fetal alcohol syndrome spontaneously spoke of his “backflashes.” He had learned about intrusive recall while watching a TV show on Vietnam veterans and was able to give a fairly good description of the phenomenon. It is important to have the child give specific examples and to record them in the child’s own words. The child’s play and drawings will often reveal trauma themes and provide clues as to how the child is dealing with the trauma. Repetitive themes in play may often be a red flag for traumatic experiences. Inquiries should also be made into how the child views himself and about his outlook on the future. It is important not just to deal with symptoms, but rather to find out what is going well for the child and what coping skills and supports are at his disposal. The examiner should also be mindful of other areas of functioning impacted by trauma, such as issues of betrayal and trust and cognitive problems. The examiner may observe signs of heightened arousal within the interview (e.g., fearfulness, startling in response to noises outside the room, extreme aggressiveness in play). Difficulty modulating emotions may also be seen along with regressed behavior, although neither of these is specific for PTSD. Other children may deal with reminders of the trauma with dissociative responses, which may sometimes be observed within the interview.

Differential Diagnosis Malingering should always be considered in forensic evaluations. Although it is rare in young children, parents may coach them to, for instance, “Be sure to tell the doctor about your bad dreams about Uncle John.” Parents may also have influenced their perceptions of events through suggestive and repetitive questioning. Teenagers may sometimes malinger symptoms of PTSD in hopes of going to a mental hospital rather than facing incarceration. They usually have more difficulty simulating negative symptoms than positive ones, and the latter are likely to be stereotypic.

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Factitious disorder by proxy with predominantly psychological signs and symptoms is rare, but a few cases have been reported. These cases differ from malingering in that the secondary gain is not financial but rather a perverse need on the part of the parent (usually the mother) to be in a relationship with medical staff or the center of attention. Hence, such persons are not likely to present for litigation over PTSD, although it is conceivable that they could become defendants in suits by insurance companies for fraudulent use of medical services. As noted above, disorders that may mimic or be comorbid with PTSD include ADHD, anxiety disorders, and grief reactions. The relationship of substance abuse to PTSD should also be considered where appropriate.

Psychometrics Psychological testing is useful in PTSD, as courts and jurors tend to be skeptical about purely subjective symptoms. Many tools are available that are designed to help with the forensic assessment of children and adolescents, although few are specific to PTSD. The downside of testing may be the misuse of psychological data by attorneys in court. For extensive reviews on available psychological tests for children and adolescents and their reliability and validity, the reader is referred to Drake et al. (2001) and Clark and Clark (2002).

The Written Report Typically, depending on questions raised by the referent, the report will address 1) diagnoses and degree of impairment, 2) issues of causality linking present symptoms and diagnoses to the trauma in question, 3) treatment needs and recommendations and opinions regarding likely duration and frequency of treatment, and 4) prognosis for recovery from symptoms. It may be helpful to organize one’s thoughts by attempting to tease out preexisting conditions, predisposing risk factors, precipitating events, and then conditions that may be perpetuating symptoms. If there has been prior trauma or psychiatric history, the examiner needs to consider to what extent either may have predisposed the child to developing PTSD and whether it potentiated symptoms. Under the law, the defendant must take the vulnerable (eggshell) plaintiff as he or she finds him, sensitive or not (see Simon, Chapter 3, in this volume). The relationship of comorbid disorders to the perpetuation of PTSD symptoms should also be addressed along with risk factors. Current functioning needs to be documented and summarized in terms of emotional well-being and how the child is doing in school, within

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the family, and with peers. As noted, the developmental impact of trauma and the likelihood of delayed effects should be covered as well. The report should be balanced, noting resiliency, protective factors, and support systems along with the deleterious effects of trauma. Treatment recommendations should be tailored to the child’s needs and developmental level and should be feasible and available within the child’s community. The written report should include the foundations for the examiner’s opinions and the weight placed on various factors. Comments about why the examiner did or did not find the child’s or parents’ history to be credible may also be included, although credibility is a matter for jurors or the court to decide on. A thorough evaluation with a well-written report may often lead to out of court settlement. If not, it becomes the basis for the examiner’s deposition and will be used in court. It is useful for the examiner, prior to submitting the report, to review it from the vantage point of the other side, looking for its weaknesses and, when possible, rectifying these deficiencies.

Criminal Cases The expert needs to be aware that in criminal cases the court requires a higher standard of proof, beyond a reasonable doubt, than in civil cases, which require, in most instances, only a preponderance of the evidence. The elements of criminal responsibility include demonstrating that the defendant committed a criminal act (actus reus) and that there was criminal intent (mens rea). When the diagnosis of PTSD was introduced in 1980, there was concern that the legal system would be flooded with cases in which PTSD would be invoked for the insanity defense or as a mitigating circumstance. Appelbaum et al. (1993) surveyed records from 49 counties and 8 states and found that, contrary to previously expressed concerns, PTSD was infrequently invoked in the insanity defense. Generally, the diagnosis of PTSD does not rise to the threshold of a severe mental disease or defect that impairs appreciation of the wrongfulness of one’s conduct. However, dissociative states related to PTSD may sometimes be invoked to explain a defendant’s criminal behavior. In some states, the insanity test has a volitional component as well, and PTSD may be invoked to explain why a defendant was unable to control his or her behavior at the time of the offense. In most jurisdictions, mental conditions that do not qualify for an insanity defense may be introduced to demonstrate diminished capacity to form intent to commit a crime. Self-defense may also be invoked, as is common in cases involving victims of abuse. The diagnosis of PTSD may be used to bolster the defendant’s claim of ongoing abuse or to explain over-

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TABLE 4–1. Guidelines for forensic assessment of children 1. Be aware that forensic assessment of the impact of trauma in children is more complex than that in adults and requires an expert with specialized training. 2. Screen cases for potential conflicts of interest. 3. Be conversant with the literature on memory and the suggestibility of children. 4. Avoid rendering forensic opinions on patients; rather, if forced to testify, attempt to limit yourself to factual information. 5. Make an effort to obtain background history from parents before interviewing a child. 6. Consider other stressors or preexisting conditions that may be contributing to the child’s symptoms. 7. Do not automatically equate a trauma history with the presence of PTSD. 8. Make sure that the trauma in question satisfies the threshold criteria in DSM-IV-TR. 9. Make sure the written report addresses legal issues and questions asked by referent and that report includes basis for one’s opinions. 10. Consider each case individually and do not rely too heavily on statistics when making prognoses. 11. Strive to maintain objectivity and do not succumb to pressures from attorneys to minimize or exaggerate damages.

reaction to provocation or threats. Among juveniles, this is probably the most common use of PTSD as a defense in criminal acts (e.g., adolescents who have killed abusive parents or who are charged with assault on corrections officers in juvenile facilities). Among rape victims, the diagnosis of PTSD has been used to show lack of consent in the victim but not as proof of the crime. Expert testimony on rape trauma syndrome and PTSD may be required to familiarize jurors with these disorders. On the other hand, some argue than introduction of rape trauma syndrome is prejudicial and that it may open the doors to crossexamination about personal details of the victim’s life (Frazier and Borgida 1985).

Conclusion The diagnosis of PTSD and establishment of causality in forensic evaluation is a very complex process requiring a thorough assessment of the child and review of corroborative information and relative family information. The forensic assessment guidelines in Table 4–1 can be used as a checklist by the examiner. The research in the area is rapidly evolving, and the fo-

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rensic clinician must keep abreast of both epidemiological and biological studies in the area. Finally, consideration should be given to establishing separate diagnostic criteria for PTSD in children that reflect the unique manifestations of the disorder in this age group.

References Al-Mateen C: Effects of witnessing violence on children and adolescents, in Principles and Practice of Child and Adolescent Forensic Psychiatry. Edited by Schetky DH, Benedek EP. Washington, DC, American Psychiatric Press, 2002, pp 213–224 American Academy of Child and Adolescent Psychiatry: Practice parameters for the assessment and treatment of children and adolescents with posttraumatic stress disorder. J Am Acad Child Adolesc Psychiatry 37 (suppl):4S–26S, 1998 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 2nd Edition. Washington, DC, American Psychiatric Association, 1968 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 Appelbaum PS, Jick RZ, Grisso T, et al: Use of posttraumatic stress disorder to support an insanity defense. Am J Psychiatry 150:229–234, 1993 Arroyo W: PTSD in children and adolescents in the juvenile justice system, in PTSD in Children and Adolescents (Review of Psychiatry Series, Vol 20, No 4; Oldham JM and Riba MB, series editors). Edited by Eth S. Washington, DC, American Psychiatric Press, 2001, pp 59–86 Arroyo W, Eth S: Children traumatized by Central American warfare, in Posttraumatic Stress Disorder in Children. Edited by Eth S, Pynoos R. Washington, DC, American Psychiatric Press, 1985, pp 101–120 Beitchman J, Zucker K, Hood J, et al: A review of the long-term effects of child abuse. Child Abuse Negl 16:101–118, 1992 Bremner J, Southwick S, Johnson D, et al: Childhood physical abuse and combatrelated posttraumatic stress disorder in Vietnam veterans. Am J Psychiatry 150: 235–239, 1993 Bruck M, Ceci S: Reliability and suggestibility of children’s statements: from science to practice, in Principles and Practice of Child and Adolescent Forensic Psychiatry. Edited by Schetky DH, Benedek EP. Washington, DC, American Psychiatric Press, 2002, pp 137–148 Bruck M, Ceci A, Francouer E: The accuracy of mothers’ memories of conversations with their preschool children. J Exp Psychol Appl 5:1–18, 1999 Ceci S, Bruck M: Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony. Washington, DC, American Psychological Association, 1995 Ceci S, Crotteau-Huffman M, Smith E, et al: Repeatedly thinking about non-events. Consciousness and Cognition 3:388–407, 1994

PTSD in Children and Adolescents

115

Clark B: Developmental aspects of memory in children, in Principles and Practice of Child and Adolescent Forensic Psychiatry. Edited by Schetky DH, Benedek EP. Washington, DC, American Psychiatric Publishing, 2002, pp 129–135 Clark B, Clark C: Psychological testing in child and adolescent forensic evaluations, in Principles and Practice of Child and Adolescent Forensic Psychiatry. Edited by Schetky DH, Benedek EP. Washington, DC, American Psychiatric Press, 2002, pp 45–58 Cohen J, Mannarino A: A treatment outcome study for sexually abused preschool children: initial findings. J Am Acad Child Adolesc Psychiatry 35:42–50, 1996 De Bellis M, Chrousos G, Dorn L, et al: Hypothalamic-pituitary-adrenal axis dysregulation in sexually abused girls. J Clin Endocrinol Metab 78:249–255, 1994a De Bellis M, Lefter L, Trickett P, et al: Urinary catecholamine excretion in sexually abused girls. J Am Acad Child Adolesc Psychiatry 33:320–327, 1994b De Bellis M, Baum A, Birmaher B, et al: A.E. Bennett Research Award. Developmental traumatology, part I: biological stress symptoms. Biol Psychiatry 45: 1259–1270, 1999 Deblinger E: Cognitive Behavioral Interventions for Treating Sexually Abused Children. Thousand Oaks, CA, Sage, 1996 Deykin E, Buka A: Prevalence and risk factors for posttraumatic stress disorder among chemically dependent adolescents. Am J Psychiatry 154:752–757, 1997 Drake E, Bush S, van Gorp W: Evaluation and assessment of PTSD in children and adolescents, in PTSD in Children and Adolescents (Review of Psychiatry Series, Vol 20, No 4; Oldham JM and Riba MB, series editors). Edited by Eth S. Washington, DC, American Psychiatric Press, 2001, pp 1–32 Fantuzzo J, Depaola L, Lambert L, et al: Effects of interparental violence on the psychological adjustment and competencies of young children. J Consult Clin Psychol 59:258–265, 1991 Foy DW, Madvig BT, Pynoos RS, et al: Etiologic factors in the development of posttraumatic stress disorder in children and adolescents. Journal of School Psychology 34:133–145, 1996 Frazier P, Borgida E: Rape trauma syndrome evidence in court. Am Psychol 40: 984–993, 1985 Gabarino J, Kostelny K: What children can tell us about living in a war zone, in Children in a Violent Society. Edited by Osofsky JD. New York, Guilford, 1997, pp 32–42 Garrison CZ, Weinrich MW, Hardin SB, et al: Posttraumatic stress disorder in adolescents after a hurricane. Am J Epidemiol 138:522–530, 1993 Goenjian A, Pynoos R, Steinberg A, et al: Psychiatric comorbidity in children after the 1988 earthquake in Armenia. J Am Acad Child Adolesc Psychiatry 34:1174– 1184, 1995 Goenjian A, Karayon I, Pynoos R, et al: Outcome of psychotherapy among early adolescents after trauma. Am J Psychiatry 154:536–542, 1997 Green AH: Children traumatized by physical abuse, in Posttraumatic Stress Disorder in Children. Edited by Eth S, Pynoos R. Washington, DC, American Psychiatric Press, 1985, pp 133–154

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Green B, Korol G, Vary M, et al: Children and disaster: age, gender and parental effects on PTSD symptoms. J Am Acad Child Adolesc Psychiatry 30:945–951, 1991 Guzder J, Paris J, Zelkowitz P, et al: Risk factors for borderline pathology in children. J Am Acad Child Adolesc Psychiatry 35:26–33, 1996 Helzer JE, Robins LN, McEvoy L: Posttraumatic stress disorder in the general population. N Engl J Med 317:1630–1634, 1987 Herman-Geddes M, Sandler A, Friedman N: Sexual precocity in girls: an association with sexual abuse? Am J Dis Child 142:431–433, 1988 Hubbard J, Realmuto GM, Northwood AK, et al: Comorbidity of psychiatric diagnoses with posttraumatic stress disorder in survivors of childhood trauma. J Am Acad Child Adolesc Psychiatry 34:1167–1173, 1995 Jacobs A: Traumatic Grief: Diagnosis, Treatment and Prevention. New York, Brunner/ Mazel, 1999 Jacobsen L, Southwick S, Kosten R: Substance use disorders in patients with posttraumatic stress disorder: a review of the literature. Am J Psychiatry 158:1184– 1190, 2001 Jenkins E, Bell C: Exposure and response to community violence among children and adolescents, in Children in a Violent Society. Edited by Osofsky JD. New York, Guilford, 1997, pp 9–31 Kisiel CL, Lyons JS: Dissociation as a mediator of psychopathology among sexually abused children and adolescents. Am J Psychiatry 158:1034–1039, 2001 Kinzie JD, Sack W, Angell R, et al: The psychiatric effects of massive trauma on Cambodian children, I: the children. J Am Acad Child Adolesc Psychiatry 25: 370–376, 1986 Laor N, Wolmer L, Cohen DJ: Mothers’ functioning and children’s symptoms 5 years after a SCUD missile attack. Am J Psychiatry 158:1020–1026, 2001 Macksoud MS, Aber JL: The war experience and psychosocial development of children in Lebanon. Child Dev 67:70–88, 1996 MacMillan H, Flemming J, Steiner D, et al: Childhood abuse and lifetime psychopathology in a community sample. Am J Psychiatry 158:1878–1883, 2001 Marans S, Cohen D: Children and inner-city violence: strategies for intervention, in Psychological Effects of War and Violence on Children. Edited by Leavitt L, Fos N. Hillsdale, NJ, Lawrence Erlbaum, 1993, pp 281–302 March JS: What constitutes a stressor? The “criterion A” issue in PTSD, in Posttraumatic Stress Disorder: DSM-IV and Beyond. Edited by Davidson JRT, Foa EB. Washington, DC, American Psychiatric Press, 1993, pp 37–54 Marshall R, Olfson E, Hellman F, et al: Comorbidity, impairment and suicidality in subthreshold PTSD. Am J Psychiatry 158:1467–1473, 2001 Massachusetts v Amirault Le Fave, 424 Mass 618, 1998 McEwen B: Stress and hippocampal plasticity. Annu Rev Neurosci 22:103–133, 1999 McFarlane A: Posttraumatic phenomena in a longitudinal study of children following a natural disaster. J Am Acad Child Adolesc Psychiatry 26:764–769, 1987 McFarlane A: Risk factors for acute biological and psychological response to trauma, in Risk Factors for Posttraumatic Stress Disorder. Edited by Yehuda R. Washington, DC, American Psychiatric Press, 1999, pp 170–171

PTSD in Children and Adolescents

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McLeer S, Deblinger E, Atkins M, et al: Posttraumatic stress disorder in sexually abused children: a prospective study. J Am Acad Child Adolesc Psychiatry 27: 650–654, 1992 McLeer S, Callaghan M, Henry D, et al: Psychiatric disorders in sexually abused children. J Am Acad Child Adolesc Psychiatry 33:313–319, 1994 Nir Y: Posttraumatic stress disorder in children with cancer, in Posttraumatic Stress Disorder in Children. Edited by Eth S, Pynoos R. Washington, DC, American Psychiatric Press, 1985, pp 121–132 Oppenheim D, Nir A, Warre S, et al: Emotion regulation in mother-child narrative co-construction: associations with children’s narratives and adaptation. Dev Psychol 33:284–294, 1997 Ornitz E, Pynoos R: Startle modulation in children with post-traumatic stress disorder. Am J Psychiatry 146:866–870, 1989 Osofsky J: Applied psychoanalysis: how research with infants and adolescents at high psychosocial risk informs psychoanalysis. J Am Psychoanal Assoc 41:193– 207, 1993 Pelcovitz D, Kaplan S, Goldenberg B, et al: Posttraumatic stress disorder in physically abused adolescents. J Am Acad Child Adolesc Psychiatry 33:302–312, 1994 Perry B: Neurodevelopmental impact of violence in childhood, in Principles and Practice of Child and Adolescent Forensic Psychiatry. Edited by Schetky DH, Benedek EP. Washington, DC, American Psychiatric Press, 2002, pp 191–204 Putnam F, Trickett P: Child sexual abuse: a model of chronic trauma. Psychiatry 56:82–95, 1993 Pynoos R, Eth S: Children traumatized by witnessing acts of personal violence: homicide, rape, or suicidal behavior, in Posttraumatic Stress Disorder in Children. Edited by Eth S, Pynoos R. Washington, DC, American Psychiatric Press, 1985, pp 17–44 Pynoos R, Frederick C, Nader K, et al: Life threat and posttraumatic stress in school-age children. Arch Gen Psychiatry 44:1057–1063, 1987 Pynoos R, Steinberg A, Goenjian A: Traumatic stress in childhood and adolescence: recent developments and current controversies, in Traumatic Stress: The Overwhelming Experience on Mind, Body and Society. Edited by van der Kolk B, McFarlane A, Weisaeth L. New York, Guilford, 1996, pp 331–359 Reid W: Licensure requirements for out of state forensic examinations. J Am Acad Psychiatry Law 28:433–437, 2000 Scheeringa M, Zeanah C, Drell M, et al: Two approaches to the diagnosis of posttraumatic stress disorder in infancy and early childhood. J Am Acad Child Adolesc Psychiatry 34:191–200, 1995 Schetky D: Forensic ethics, in Principles and Practice of Child and Adolescent Forensic Psychiatry. Edited by Schetky DH, Benedek EP. Washington, DC, American Psychiatric Press, 2002a, pp 15–20 Schetky D: Introduction to forensic evaluations, in Principles and Practice of Child and Adolescent Forensic Psychiatry. Edited by Schetky DH, Benedek EP. Washington, DC, American Psychiatric Press, 2002b, pp 21–32

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Schwarz E, Kowalski J. Malignant memories: PTSD in children and adults after a school shooting. J Am Acad Child Adolesc Psychiatry 30:936–944, 1991 Shakoor B, Chalmers D: Co-victimization of African-American children who witness violence: effects on cognitive, emotional, and behavioral development. J Natl Med Assoc 83(3):233–238, 1991 Shalev AY, Peri T, Brandes D, et al: Auditory startle response in trauma survivors with posttraumatic stress disorder: a prospective study. Am J Psychiatry 157: 255–261, 2000 Shaw J, Applegate B, Tanner S, et al: Psychological effects of Hurricane Andrew on an elementary school population. J Am Acad Child Adolesc Psychiatry 34: 1185–1192, 1995 Simon R, Shuman D: Conducting forensic examinations on the road: are you practicing your profession without a license? J Am Acad Psychiatry Law 27(1):75– 82, 1999 Steiner H, Garcia IG, Matthews Z: Posttraumatic stress disorder in incarcerated juvenile delinquents. J Am Acad Child Adolesc Psychiatry 36:357–365, 1997 Strasburger LH, Gutheil TG, Brodsky A: On wearing two hats: role conflict in serving as both psychotherapist and expert witness. Am J Psychiatry 154:448– 456, 1997 State v Michaels, 136 NJ 299, 6421372, 1994 Straus M: No-Talk Therapy for Children and Adolescents. New York, WW Norton, 1999 Straus M, Gelles R, Steinmetz S: Behind Closed Doors. New York, DoubledayAnchor, 1980 Stuber M, Kazak A, Meeske K, et al: Predictions of posttraumatic stress symptoms in childhood cancer survivors. Pediatrics 100:958–964, 1997 Teicher M, Ito Y, Glod C, et al: Neurophysiological mechanisms of stress response in children, in Severe Stress and Mental Disturbance in Children. Edited by Pfeffer C. Washington, DC, American Psychiatric Press, 1996, pp 59–84 Terr L: Childhood traumas: an outline and overview. Am J Psychiatry 148:10–20, 1991 Terr L: Children’s symptoms in the wake of Challenger: a field study of distant traumatic effects and an outline of related conditions. Am J Psychiatry 156:1536– 1544, 1999 True W, Lyons M: Genetic risk factors for PTSD: a twin study in risk factors for posttraumatic stress disorder, in Risk Factors for Posttraumatic Stress Disorder. Edited by Yehuda R. Washington, DC, American Psychiatric Press, 1999, pp 61–78 Yehuda R, Spertus I, Golier J: Relationship between childhood traumatic experiences and PTSD in adults, in PTSD in Children and Adolescents (Review of Psychiatry Series, Vol 20, No 4; Oldham JM, Riba MB, series editors). Edited by Eth S. Washington, DC, American Psychiatric Press, 2001, pp 117–158

C H A P T E R

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Forensic Psychological Assessment in PTSD Terence M. Keane, Ph.D. Todd C. Buckley, Ph.D. Mark W. Miller, Ph.D.

Since the inclusion of posttraumatic stress disorder (PTSD) in the third

edition of the Diagnostic and Statistical Manual (DSM-III; American Psychiatric Association 1980), tremendous progress has been made in our understanding, assessment, and treatment of this disorder (see Keane and Barlow 2002 for a review of recent literature). In addition, the proliferation of traumatic events, highlighted by the terrorist attacks on the World Trade Center in New York City and the Pentagon in Washington, has yielded a recognition and appreciation for the psychological impact of traumatic events unprecedented since the disorder was officially recognized. As a function of these occurrences, there is heightened recognition of the role of traumatic events in the lives of people exposed to them and, consequently, an unavoidable and appropriate increase in PTSD-related litigation in courts of law. The forensic implications of the disorder are clear: PTSD can be both an important component of the assessment of damages for individuals exposed to traumatic events and a defense in criminal cases in which questions of the individual’s sanity have arisen. Furthermore, PTSD has been employed in the adjudication of sentencing for convicted criminals in an effort to reduce sentencing or promote psychological and psychiatric care. The purpose of this chapter is to present a multidimensional approach to the psychological assessment of PTSD, with a particular emphasis on reviewing the extant psychological tests and diagnostic interviews, as well as the data substantiating their use in the measurement of PTSD. Issues of

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etiology, causality, severity, and course generally are prominent in forensic examinations, but with respect to PTSD, these factors assume increasing importance and salience. Procuring information and data that bear on each of these dimensions is a primary goal of the comprehensive assessment of PTSD recommended in this chapter. Accordingly, appropriate psychological assessment for PTSD involves a series of integrated steps for the clinician. To obtain needed information from which the clinician can draw reliable and valid conclusions regarding the diagnosis of PTSD and its impact, the following steps should be considered when possible: 1. Performance of a standard comprehensive clinical examination that focuses on family and developmental history and preevent and postevent factors related to current functioning (This examination necessarily involves the procurement of information on the traumatic event itself in considerable detail.) 2. Use of a validated diagnostic interview specifically developed for the assessment of PTSD symptoms and their impact on the life of the individual (e.g., Clinician-Administered PTSD Scale [CAPS; Blake et al. 1990; Weathers et al. 2001]) 3. Use of a structured diagnostic interview that provides an opportunity to explore the range of possible Axis I and Axis II diagnoses that may be applicable to the individual (e.g., Structured Clinical Interview for DSMIII-R [SCID; Spitzer et al. 1990]) 4. Use of general personality questionnaires to provide information on functioning more broadly (e.g., Minnesota Multiphasic Personality Inventory–2 [MMPI-2; Hathaway and McKinley 1989]) 5. Administration of specific tests that directly measure PTSD and its associated clinical features (e.g., Mississippi PTSD Scale [Keane et al. 1988a]; PTSD Checklist [Weathers et al. 1993]) 6. Inclusion of measures of social role functioning to determine the extent of social and vocational impairment (e.g., Social Adjustment Scale [Weissman et al. 1990]) Clinical judgment is required when evaluating and integrating the data from all of these measures and in adjudicating information that is discrepant regarding the presence or absence of PTSD. Although measures of PTSD and dysfunction frequently operate in concert with one another, occasions exist in which these vectors of information diverge. When this occurs, clinical judgment and experience are required to properly reconcile the discrepant components of information in the assessment tools used. When the disorder of PTSD was initially recognized in 1980, research centered on creating and validating appropriate measurement strategies. In

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the intervening years, considerable progress has been made in PTSD assessment; these advances have been driven by conceptual models regarding the assessment of psychopathology generally, and PTSD specifically (Keane et al. 1987; Sutker et al. 1991). These models have emphasized the importance of a comprehensive evaluation of 1) the nature of traumatic events (e.g., intensity, frequency, duration, detailed descriptors), 2) the characteristics of the person exposed (e.g., demographic data, personality factors, pretrauma vulnerabilities and strengths), and 3) the expression of symptoms by a person in certain ideographic patterns following exposure. The conceptual approaches advocated by clinicians for the assessment of PTSD are at once dynamic and interactive, placing a greater emphasis on longitudinal rather than cross-sectional views in understanding the many possible psychological outcomes associated with exposure to traumatic stressors. These conceptual models offer an excellent premise and foundation for the psychological assessment of PTSD in the forensic arena. In addition to the conceptual models for assessing PTSD, Keane et al. (1987) also recommended that clinicians secure information from people other than the individual under examination and from as many sources as possible. Use of multiple methods of data collection within a measurement domain (e.g., psychological testing) was also recommended. Thus, information from the informant, collateral sources (e.g., family, friends, neighbors, employees), structured clinical interviews, psychometric measures, and even psychophysiological assessment creates vectors of convergence from which the clinician can draw conclusions regarding the presence or absence of PTSD and its impact on social, marital, and vocational functioning. Given the imperfect nature of any single measure of PTSD (or of any psychological disorder, for that matter), it is important that the clinician apply such a multidimensional approach to the assessment of PTSD.

Issues in the Psychological Assessment of PTSD As stated in Chapter 2–4 of this book, the proper evaluation of PTSD contains many dimensions for the clinician to consider. Perhaps the most frequent error made by clinicians conducting psychological assessments for PTSD, is assuming that PTSD is the sole, or most probable, consequence of trauma exposure. The research literature clearly suggests that PTSD is only one of many possible posttraumatic responses (Keane and Wolfe 1990; Kessler et al. 1995). Other disorders such as depression, generalized anxiety disorder, substance abuse, and panic disorder are also common after

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traumatic exposure. As a result, it is critical to determine the extent to which PTSD is present or absent in the subject examined. It is of the utmost importance to establish that PTSD, when it is observed, is secondary to the traumatic event in question. As our society enters an increasingly technological era, the possibilities for exposure to highmagnitude stressors over the course of the lifetime expand. Coupled with the dramatic rise in violence, in particular sexual assault and domestic battering, there is a distinct possibility that a person can be exposed to multiple traumatic events. Indeed, epidemiological studies have estimated that 40%– 90% of the general population will experience a traumatic event meeting the PTSD stressor criterion in DSM-IV (American Psychiatric Association 1994) at some point in their lifetime (Breslau et al. 1998; Kessler et al. 1995; Norris 1992). Thus, it is not surprising that the development of PTSD in response to a given trauma can often be related to a prior history of trauma (e.g., Helzer et al. 1987; Kilpatrick et al. 1992; Kulka et al. 1990). These research findings compel clinicians to examine patients for a range of traumatic events beyond the target event in litigation. Efforts to attribute psychological functioning to a single event will be significantly diminished if examinations by others indicate the presence of exposure to additional high-magnitude life events that could themselves yield PTSD. Assessment of social role functioning before and after the event in question is of paramount importance in understanding the role of the targeted event in the life of the person. Another factor that is important to evaluate in the forensic PTSD assessment is the presence of a previously existing psychological disorder. Research to date indicates that one of the major vulnerabilities in the development of PTSD once an individual is exposed to a traumatic stressor is the existence of preexisting psychopathology (Helzer et al. 1987; Keane et al. 1993; Kessler et al. 1995; Kulka et al. 1990). If preexisting psychopathology is evident, the clinician should evaluate the extent to which the symptoms of the disorder was exacerbated by the addition of PTSD comorbidity. Moreover, deterioration in psychosocial functioning that may be apparent in the interpersonal, social, marital, parental, or, most important, vocational domains would then assume increased importance. Identification of changes in functioning concurrent with the traumatic exposure, always important in litigation, is crucial when a psychiatric history is present. Moreover, the addition of a concurrent disorder (in this case, PTSD) to the preexisting condition unquestionably leads to a more severe psychological condition, which should be reflected in clinician ratings on Axis IV (i.e., psychosocial stressors’ severity) and Axis V (i.e., global assessment of functioning). Such information would be clearly relevant to the forensic case at hand.

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Comorbid conditions are always important to assess. Even in cases in which there is no previous psychological disorder, the presence of PTSD is often complicated by the emergence of other disorders concurrently or over time. In particular, disorders such as major depression and substance abuse can obfuscate the clinical picture and confuse even the most discerning eye. With respect to major depression, the clinician is most often struck by the unremitting course of the disorder since the occurrence of the traumatic event. Unlike other forms of depression seen in the absence of PTSD, depression, when combined with PTSD, seems to remain relatively constant, and sometimes in the most nefarious cases it is even exacerbated over time. Phenomenologically, the depressive state appears more as a “double depression,” bearing characteristics of both a major depressive episode and longer-standing dysthymia. If substance abuse is involved, it is important to clarify the onset of the alcohol or drug use. Most often in cases of trauma, the substance abuse is an effort to self-medicate the anxiety, depression, and emotional numbing of PTSD (Keane et al. 1988b). This pattern obviously contributes to the complexity of the case, because the substance abuse, seen as secondary to the development of PTSD, contributes to the downward spiral in life functioning across multiple domains. Attention to each of these issues during assessment can help the clinician avoid later problems during litigation. A comprehensive history, noting onset of problems and their phenomenological course, can promote optimal understanding of the person being evaluated and the legitimacy of his or her claim and case. Failure to appreciate the interrelationship of the disorders and issues highlighted above can undermine the arguments proffered by the clinician and lawyer.

Common Problems in the Forensic Psychological Assessment of PTSD A number of problems associated with the psychological assessment of PTSD commonly arise in the forensic arena, but there are more specific pitfalls that the knowledgeable clinician should avoid. Faust and Ziskind’s (1988) blistering criticisms of failures in the courtroom focused on many of these weaknesses. Specifically, they chided the field in general for lacking reliable and valid diagnostic criteria, but in particular they criticized practitioners for abuse of the diagnostic tools that are available. In addition, Sparr (1996) attributed the problems that he has observed surrounding the PTSD diagnosis in legal settings to failure on the part of the clinicians.

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Similarly, we have observed five common problems in the forensic assessment of PTSD. First, practitioners often do not conduct a comprehensive evaluation of the claimant. Many evaluations rely exclusively on a brief clinical interview that focuses only on the claimant and includes few, if any, external corroborative sources of information. Second, practitioners frequently fail to apply the specific diagnostic criteria of PTSD to the claimant or to provide specific examples of how the claimant meets a particular symptom criterion. Third, mental health experts often assume an advocacy posture rather than a scientific or objective approach to cases. Fourth, the relationship between the diagnosis and the details of a criminal case is left unaddressed. For instance, the presence of PTSD does not necessarily imply that a defendant was in a dissociative state at the time of the alleged crime. The details of the case must fit with the known scientific evidence about the nature of the disorder in question. Fifth, exclusive reliance on the claimant as the sole source of information in criminal cases yields limited information. Use of external sources is essential. Verification of the trauma, when possible, is clearly important if the traumatic event alleged to be the source of the disorder is remote in time (as in the case of child abuse). Examination of work records, performance evaluations, and functioning across various roles in life can all provide information on the severity of the disorder and the level of dysfunction associated with it. The use of psychological testing is a valuable addition to any forensic case in which the question of the presence of the disorder is fundamental. For example, one can use tests such as the MMPI-2 to learn about testtaking style, overreporting, defensiveness and underreporting, and other indicators of validity. Tests such as the MMPI-2 can help one assess the extent to which malingering is applicable to the particular case and the severity of the symptoms associated with a number of different syndromes such as PTSD. Other psychological tests can be used to assess dimensions of psychopathology and dysfunction that cannot be assessed within the limits of a diagnostic evaluation. In addition, ruling out competing disorders or assessing the level of comorbidity present in the claimant is fundamental to the level of certainty that one can claim in the courtroom. Knowing the full extent and history of psychological problems and psychiatric care are key to a comprehensive understanding of the individual being evaluated. Our approach to the process of psychological assessment addresses each of these problems; if followed, it will enhance the quality of any forensic examination conducted (see Keane et al. 2000, Litz et al. 2002, or Wilson and Keane 1997 for a more exhaustive review of psychological assessment of PTSD).

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Psychological Assessment of PTSD The purpose of this section is to provide empirical information regarding psychometric characteristics of structured clinical interviews that have been developed for the measurement of PTSD and psychological tests that have been especially developed for assessing PTSD. Each of the assessment instruments included in this section has been selected on the basis of substantive research, and although the list included here is not exhaustive, it provides an excellent starting point for clinicians who are interested in evaluating clients for the presence of PTSD

Structured Interviews The SCID (Spitzer et al. 1990) is the interview most frequently employed to date in the evaluation of PTSD. The SCID provides a comprehensive evaluation of all Axis I and Axis II psychiatric diagnoses. The PTSD module is concise and relatively easy to administer and score and addresses the major diagnostic features of the disorder. Kulka et al. (1990), in their study of Vietnam War veterans, found that the SCID had a kappa interrater reliability score of .93 when a second clinician listened to audiotapes of the target interview and then made independent diagnoses. McFall et al. (1990) reported 100% diagnostic reliability between two clinicians who completed independent SCID assessments on 10 subjects. Keane et al. (1998) observed a kappa of .68 for PTSD SCID diagnoses derived from two independent clinicians who individually interviewed the same patients (N=39). Kulka et al. (1990) also found the SCID diagnosis to be strongly correlated with other psychometrically sound indices of PTSD (i.e., Mississippi PTSD Scale, Impact of Event Scale, and Keane PTSD Scale of the MMPI). These results suggest that the PTSD module of the SCID is a measure with respectable reliability and validity. The instrument does, however, have limitations. The SCID yields only dichotomous information about the presence or absence of each of the symptom criteria for the disorder. Consequently, measures of disorder severity and changes in symptom level over time cannot be easily detected with the SCID. Yet this instrument is clearly the most widely used measure for evaluating PTSD and accompanying disorders and has significant value in terms of its structured nature in guiding a clinician’s evaluation for PTSD. The Diagnostic Interview Scale (DIS-NIMH; Robins et al. 1981) is a highly structured interview that can be administered by either technicians or clinicians. Providing a comprehensive examination of the diagnostic categories, this instrument has been used in many epidemiological studies

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across the world. In a review of the literature on PTSD assessment, Watson et al. (1991) noted that the PTSD-DIS functioned well in clinical settings, correlating highly with other known measures of PTSD. However, Kulka et al. (1991) indicated that when used with a community sample in which the base rate of PTSD was low, the DIS performed poorly, with estimates of .23 for sensitivity (i.e., the proportion of true cases identified by the test) and .28 for kappa (i.e., the proportion of agreement above chance levels). The use of this highly structured instrument for making diagnoses in field studies has, therefore, been challenged, and additional work is needed to substantiate its utility in those settings. Data on its use in clinical settings seem to more strongly support its usefulness. As a structured interview, the DIS also suffers from the same limitation as the SCID in that the presence or absence of a particular symptom is rated dichotomously—a feature that reduces the capacity of the clinician to distinguish symptom and disorder severity. The PTSD Interview (Watson et al. 1991) yields both dichotomous and continuous scores, thus addressing some of the limitations of the SCID and DIS-NIMH. Reports of high test–retest reliability (.95), internal stability (i.e., a test’s internal reliability) (a=.92), sensitivity (i.e., the proportion of true cases correctly identified by a test) (.89), specificity (i.e., the proportion of noncases correctly identified by a test) (.94), and kappa (.82) recommend this instrument for use in diagnosing PTSD. This instrument differs, however, from other clinical instruments in that it asks the subjects to make their own rating of symptom severity rather than requiring this task of the clinician. This self-rating minimizes the role of the experienced clinician in the diagnostic process. It also minimizes the experience that the clinician has in comparing symptom severity from one case of PTSD to others that he or she may have seen in clinical practice. Davidson et al. (1990) offer the Structured Interview for PTSD (SIPTSD) as an alternative to the SCID and DIS. This instrument also contains continuous and dichotomous symptom ratings, and the researchers have found that it is a psychometrically sound instrument. Measures of excellent test–retest reliability (.71), interrater reliability (.97–.99), and perfect diagnostic agreement (N=34) were reported in the preliminary article by Davidson and colleagues. More comprehensive utility analyses revealed a sensitivity of .96, a specificity of .80, and a kappa of .79 when compared with diagnoses by clinicians using the SCID. The Clinician-Administered PTSD Scale (CAPS; Blake et al. 1990) was developed to address the limitations of previous clinical interviews for assessing PTSD. Available in both lifetime and current version, the CAPS contains diagnostic symptoms of PTSD, the associated features of PTSD, symptom severity measures, indices of impairment in social and occupa-

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tional functioning, and an assessment of validity and degree of confidence by the clinician in the patient’s responses. The CAPS also provides continuous and dichotomous scores to suit the needs of the clinician or the research investigator. Results from a sophisticated psychometric assessment of its properties (Weathers et al. 2001) indicate that the CAPS is an outstanding measure with excellent diagnostic reliability and validity as well as good sensitivity, specificity, and kappa. Perhaps the major advantage of the CAPS in a forensic setting is that it not only requires the clinician to evaluate the presence and severity of various symptoms associated with PTSD but also provides an opportunity for the clinician to evaluate the impact of the symptoms on an individual’s social and vocational function. Impact on these domains is a key determinant of damages by plaintiffs in civil litigation suits. The CAPS assesses all 17 criterion-related symptoms of PTSD, as well as many of the frequently observed associated features. Also contained in the CAPS are ratings for social and occupational functioning and interviewer ratings of the validity of symptom reports by the patient. (We recently developed a 17-item Life Events Checklist as a self-report companion to the CAPS, aimed at helping to identify exposure to potentially traumatic experiences and establishing criterion A for the diagnosis.) Unique features of the CAPS include its separate ratings for the frequency and intensity of each symptom and its behavioral anchors for both rating scales and probe questions. Clinical training, judgment, and experience are important for proper CAPS administration because interviewers are required to generate their own follow-up questions aimed at clarifying responses. Clinical judgment is the foundation for translating patients’ report into scaled ratings. If administered in its entirety (i.e., all questions regarding associated features, functional impairments, validity ratings), the CAPS takes approximately 1 hour. If only the 17 diagnostic symptoms are assessed, the time for administration is more than cut in half. Like other diagnostic interviews, the CAPS can provide both a dichotomous diagnosis and a continuous score to reflect PTSD severity (Weathers et al. 1999). Clearly, this instrument has major advantages for use in the clinic setting and is an excellent prototype for use when making PTSD diagnoses in the forensic setting.

Psychometric Measures Numerous questionnaires and self-report measures of PTSD have been developed and enjoy widespread use in clinical, research, and forensic settings. Each measure has diagnostic utility as well as the capacity to assess the severity of the disorder. The major advantage of the use of psychomet-

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ric measures is that the clinician can compare scores on these measures of PTSD for the person being evaluated against scores of hundreds and sometimes even thousands of people on which the norms for these questionnaires have been based. Each of the measures described below has diagnostic utility, and because these measures are relatively inexpensive to employ, several are frequently administered in conjunction with the clinical interview to provide multiple indices of PTSD. As mentioned in the introductory section, no single measure of PTSD is perfectly reliable and valid; therefore, the use of multiple measures is important to the clinician to ensure that the conclusions made clinically are supported by data obtained from multiple methods of study. The Keane PTSD Scale of the MMPI (Keane et al. 1984) consists of 49 items from the 399 Form-R version of the MMPI. These 49 items were found to differentiate a PTSD sample from non-PTSD patients in both a test sample and a cross-validation sample of veterans. Eighty-two percent of 200 subjects were correctly classified when a cutoff score of 30 was used. Subsequent studies have not found the same diagnostic hit rate—a problem that might be due to varying base rates of PTSD in the sample under study, different diagnostic methods for arriving at cases and noncases, or the overreliance on a single cutoff score to make the diagnosis. In a study of forensic cases, Koretsky and Peck (1990) found that a cutoff score of 20 or higher was strongly correlated with a diagnosis of PTSD among people who were exposed to life-and-death situations, such as train crashes, car wrecks, and industrial accidents. Because few studies have been conducted on this measure with multiple trauma categories, it is impossible to arrive at one single cutoff score that may reflect PTSD. Rather, the clinician is encouraged to consider the PTSD scale of the MMPI as a continuous measure of “PTSDness,” indicating the extent and severity of PTSD, rather than a rigid, dichotomous measure of PTSD. With the publication of the MMPI-2, Lyons and Keane (1992) described the use of the Keane PTSD Scale within the context of the improved overall instrument. For the most part, the scale remains unchanged in terms of the specific wording of items; however, three repeated items have been deleted, as were all repeated items on the test (Lyons and WheelerCox 1999). The performance of the Keane PTSD Scale in the National Vietnam Veterans Readjustment Study (NVVRS; Kulka et al. 1990) indicates that the MMPI-2 modifications have not altered the general interrelationship of the scale with other measures of PTSD. Recent studies with military combat trauma survivors provide support for the Keane PTSD Scale of the MMPI-2 (Engdahl et al. 1996; Keane et al. 1998). These findings are wholly consistent with the results of the initial evaluation of the scale. However, recent applications of the Keane PTSD

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Scale to civilian trauma have yielded inconsistent results. For example, whereas Perrin et al. (1997) and Gaston et al. (1996, 1998) found that the Keane PTSD Scale and the MMPI-2 were valuable in the assessment of PTSD in civilian survivors of traumatic events, an excellent study by Scheibe et al. (2001) questioned the applicability of the Keane PTSD Scale to a sample of male, compensation-seeking, workplace accident victims. Clearly, more work needs to be done to validate the use of the Keane PTSD Scale and its diagnostic cutoff points for use with populations other than those exposed to military combat trauma, the original validation population. The Mississippi PTSD Scale (Keane et al. 1988a) is available in both civilian and combat versions. It is a 35-item instrument that has high internal consistency (a=.94), test–retest reliability (.97), sensitivity (.93), and specificity (.89). This instrument has performed effectively in both clinical settings (e.g., McFall et al. 1990) and field settings (e.g., Kulka et al. 1990), an unusual finding for any psychological test. These results indicate general utility for measuring PTSD across settings and for different purposes. The Mississippi PTSD Scale measures the diagnostic criteria from the DSM as well as the associated features of PTSD. It is self-administered by the patient, and its scoring and interpretation are relatively straightforward. Numerous research studies from different laboratories have concluded that the Mississippi PTSD Scale is an excellent instrument for assessing PTSD across clinical and research settings (Keane et al. 1988a; McFall et al. 1990; Watson 1990). The Impact of Event Scale (IES; Horowitz et al. 1979) focuses on the assessment of the intrusions and avoidance or numbing symptoms of PTSD. Designed prior to the inclusion of PTSD in DSM-III, the IES does not contain a comprehensive evaluation of PTSD and its associative features. Despite this limitation, the IES is perhaps the single most widely used instrument for assessing the psychological consequences of traumatic events. Not surprisingly, studies have found that the IES is correlated with other diagnostic measures of PTSD, even though the IES does not contain all of the symptoms associated with PTSD. These findings are indicative of the central importance of the intrusive or reliving symptoms and the avoidance/numbing symptoms in the PTSD diagnosis. The IES has been found to have strong internal consistency (.78 for intrusion; .82 for avoidance) and test–retest reliability (.89 for intrusion; .79 for avoidance). Used in conjunction with other, more comprehensive measures of PTSD, the IES is an excellent choice for evaluating the subjective distress related to a specific stressful event in a person’s life. Not surprisingly, recent reviews of the literature indicate that the IES is not a particularly good measure of PTSD (Joseph 2000), although it is a good measure of the key symptoms of intrusion and avoidance. The IES actually preceded the development of the di-

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agnostic criteria for PTSD, so its modest correlations with these diagnostic criteria are to be expected. Recent modifications of the IES by Weiss and Marmar (1997) provide additional items to more comprehensively measure the PTSD content domains. Additional research on this modification (IES–Revised) is needed to determine its utility in predicting the presence or absence of PTSD. The 17 symptom items of the Posttraumatic Diagnostic Scale (PDS; Foa et al. 1997) directly reflect the DSM-IV criteria for PTSD. The PDS begins with a 12-question checklist to assess the traumatic events to which an individual may have been exposed. Next, the patient is asked to indicate which of the events experienced has been most troubling during the past month. The patient then rates his or her reactions to the event at the time of its occurrence in order to determine whether the event fulfills criteria A1 and A2 of the PTSD diagnosis. Subsequently, the patient rates, on a single 4-point scale, the intensity and frequency of each of the 17 symptoms of PTSD experienced in the past 30 days. The final section of the scale asks for self-ratings of impairment across nine areas of life functioning. The PDS has been validated with several populations, including combat veterans, accident victims, and survivors of sexual and nonsexual assault. The psychometric analyses for the PDS also proved to be strong. For internal consistency, the coefficient alpha was .92 overall; test–retest reliability for the diagnosis of PTSD over a 2- to 3-week interval was also high (k=.74). For symptom severity, the test–retest correlation was .83. When the PDS assessment was compared with a SCID diagnosis of PTSD, a kappa coefficient of .65 was obtained, with 82% agreement; the sensitivity of the test was .89, and its specificity was .75. Clearly, this self-report scale functioned well in comparison with the clinician ratings obtained with the SCID, and it appears to have considerable potential as a self-report and screening device for measuring PTSD and its symptom components. Developed by researchers at the National Center for PTSD in Boston, the PTSD Checklist (PCL; Weathers et al. 1993]) comes in versions designed for civilians and for military personnel. The scale contains the 17 DSM-IV diagnostic criteria rated on a 5-point Likert scale. Weathers et al. (1993) examined the psychometric properties of the PCL and found excellent internal consistency (a=.97), excellent test–retest reliability over a 2to 3-day period (.96), and strong correlations with other measures of PTSD. Associations of the PCL with the Mississippi PTSD Scale (.93) (Keane et al. 1988a), the Keane PTSD Scale of the MMPI (.77) (Keane et al. 1984), and the IES (.90) (Horowitz et al. 1979) have been determined. Blanchard et al. (1996) used the PCL in their studies of motor vehicle accident victims and found that its correlation with the CAPS was .93 and its overall diagnostic efficiency was .90. The properties of the PCL when used

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with other populations are now being explored, and findings to date are extremely encouraging. The PCL’s main advantages are its ease of use and administration and its strong relationship to the diagnostic interviews with which it has been compared.

Psychophysiological Studies of PTSD The search for biological measures of a psychological disorder transcends the study of PTSD and has been the focus of considerable interest of psychobiologists and biological psychiatrists. Early work in the area of PTSD indicated that a psychological challenge (i.e., exposure to cues of a traumatic event) can provoke systematic physiological responses across several measurement domains (e.g., heart rate, skin conductance, electromyelogram, blood pressure). Blanchard et al. (1982) and Malloy et al. (1983) found that this reactivity predicted the PTSD diagnosis when auditory and audiovisual cues were used to stimulate reactivity. Some years later, Pitman et al. (1987), using personal scripts of traumatic events that were then read to subjects, observed the same reactivity. These studies all observed robust physiological reactivity when combining the presentation of a psychologically meaningful cue and concurrently measuring psychophysiological responses. This challenge model for assessing PTSD may help us to identify other psychophysiological parameters associated with this disorder. Confirmation of these findings occurred in the largest study of psychophysiological reactivity ever conducted in a psychiatric setting when Keane et al. (1998) published the results of a multisite examination of cued reactivity in PTSD. The assessment of psychophysiological reactivity during presentation of ideographic cues stemming from the traumatic incidents may provide a useful additional source of diagnostic information in forensic assessments of PTSD. It can also provide important biological information regarding the actual physiological effects of an assault, an accident, or another form of disaster. Use of this approach to assessing PTSD in courtroom settings has been reported by Pitman et al. (1993, 1996) and is supported by the aforementioned research. Pitman et al. (1994) have recommended the use of psychophysiological measures to verify the presence of one dimension of the disorder—to assess reactivity to cues reminiscent of the trauma—and to measure the presence of PTSD. The use of psychophysiological procedures for the first purpose above has been universally acceptable to courts. The last-mentioned use remains an open empirical question; however, the association between physiological responding and diagnostic status may always be imperfect. Numerous variables, including participant compliance with protocol demands, the ap-

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propriateness of trauma cue stimuli, and the presence of pharmacological agents (e.g., benzodiazepines, b-blockers), contribute to variability in responses, as do personality traits that influence the physiological response to aversive stimuli (e.g., Miller et al. 1999). With this in mind, it is important to consider that physiological reactivity to cues reminiscent of the traumatic event remains only one data source in the complex algorithm of psychological tests, structured interviews, and clinical interviews conducted by the clinician. All tests bear imperfection, and differences in the vectors for PTSD must always be reconciled through clinical judgment. This judgment is best informed through the comprehensive history, a complete review of the medical records, and a thorough understanding of the circumstances surrounding the traumatic event and the person’s role and reactions in that event. As is readily observed by the results of this review on the psychological assessment of PTSD, progress in this arena has been rapid since the inclusion of this diagnosis in DSM-III in 1980. Clinicians and researchers are now in an excellent position to conduct meaningful evaluations of their patients. Evaluations that include information from structured interviews and psychological tests can be informed by any of a number of outstanding instruments developed specifically to measure PTSD, its associated features, and the impact of these symptoms on multidimensional life functioning. Although PTSD is a disorder with a short history in the diagnostic manual, the current measures of PTSD, in terms of number and quality, now rival or exceed those available for assessing major depression, schizophrenia, the anxiety disorders, and the personality disorders. Indeed, appropriate assessment of PTSD should now include one or more of these standardized and validated instruments for use in forensic settings. These instruments can readily inform the clinician about the status of PTSD in an individual client compared with others with similar exposure and symptom complaints.

The Forensic Psychological Report Perhaps the most critical piece of the forensic psychological examination is the report. Therein, the clinician records the nature and purpose of the examination and integrates the data obtained from all sources. Most important is the conceptual formulation of the case and its bearing on the legal points in question. Regardless of whether the report is written for criminal or legal proceedings, it should contain coverage of specific topics. Table 5–1 provides an example of the format to be used in completing a forensic psychological report. Each section of the report is explained in the following discussion.

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TABLE 5–1. Template for use in preparing a report for forensic psychological examination Forensic Psychological Report 1. Referral source and referral questions 2. Limits of confidentiality 3. Review of records (list and document): Medical Legal/police Psychological Social/vocational 4. Methods of assessment (list, date, duration): Relevant history Mental status examination Structured interview Psychological tests Neuropsychological tests Physiological tests (e.g., CT or MRI scan, psychophysiological exams) 5. Results of examination and special test 6. Collateral reports (relationship, dates of inquiry) 7. Forensic case formulation 8. Diagnostic formulation/multiaxial classification Note.

CT=computed tomography; MRI=magnetic resonance imaging.

Referral Source and Referral Questions The clinician specifies in this section the purpose for which he or she conducted the examination and assessment. In addition, the source of the referral should be specified in the report, whether it be another health care professional, a lawyer, or a self-referral.

Limits of Confidentiality Reports written for forensic purposes are usually disseminated to the lawyers involved in the case, the court, jury members, and other health care professionals involved in the case. The clinician should explain these limits on confidentiality to the client in clear language. The clinician should also include an estimate of the client’s comprehension of these limits in the body of the report.

Review of Records The clinician should list in the text of the report all records he or she reviewed that influenced the opinion on the case. Such records could include

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but are not necessarily limited to the following: 1) medical records, 2) legal records, 3) police documents, 4) psychological records and reports, and 5) social and vocational records that can assist the clinician in documenting preand postevent functioning. The records should be listed by date and name so that they can be readily identified by the reader. These records can detail the event, and in the case of a public disaster, media reports can be included from printed or televised sources.

Methods of Assessment To provide the reader with an understanding of the nature and extent of the psychological examination, the clinician should include in this section a listing of the many methods he or she employed in arriving at the opinion on the case. Interviews, their dates of occurrence, and their duration provide data on the opportunity to sample the examinee’s behavior across settings and time. The greater the number of interviews, the larger the sample of behavior and, thus, the more reliable the findings. If specialized tests are employed, these should be incorporated into this section of the report, and if the examiner ordered but did not conduct these tests him- or herself, the responsible or administering clinician, as well as the location of the testing laboratory, should be identified.

Results of Examination and Special Test In this section of the report, the clinician should incorporate the precise results obtained from the clinical interview, the structured interview, the psychological tests, and the physiological tests if any were employed. The groundwork for the expert opinion is laid in this section of the report, and, correspondingly, considerable attention to detail and accuracy is required. The interrelationship of the various measures of PTSD and social functioning should be highlighted and the conceptual integration of results provided. Also in this section, the clinician provides relevant demographic, family, marital, and developmental information as it pertains to the issue in question. Previously existing psychological conditions or vulnerabilities should be identified here so that a more complete understanding of the examinee is possible in view of the legal question under scrutiny. A special section of the results should be dedicated to explicating the findings from the mental status examination.

Collateral Reports When it is possible and valuable to obtain information from collateral sources (e.g., family members, friends, neighbors, employees) for purposes of doc-

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umenting a decline in social or vocational functioning or for verifying symptom complaints, the clinician should include in the report a listing of these interviews as well as their results. These data are particularly useful in documenting changes in social or vocational functioning concomitant with the traumatic event per se.

Forensic Case Formulation In this section, data from all sources are integrated into a conceptual framework from which statements can be made regarding the specific legal standards that are relevant to the case. Avoiding psychological jargon whenever possible, the examiner provides the most sophisticated conceptual analysis possible given the extant data. The clinician should clearly present the basis for the expert opinion and should organize all relevant information in such a way that it is understandable to other health professionals, lawyers, the court, and, if relevant, the jury. Questions of damages, causation, and sanity, when they arise, should be clearly stated in this section, and the opinion should be stated unmistakably in language that meets the pertinent legal standard involved. One fundamental portion of the report addresses how the diagnosis of PTSD relates to the questions raised by the litigation. In criminal cases, for example, how does the presence of PTSD pertain to the activities associated with the crime? Relating the diagnosis to the case using known features (i.e., scientifically established facts) of the disorder to explain the disorganized behavior of the individual is central to a successful formulation.

Diagnostic Formulation/ Multiaxial Classification DSM-III (American Psychiatric Association 1980), DSM-III-R (American Psychiatric Association 1987), and DSM-IV (American Psychiatric Association 1994) all employ a multiaxial classification scheme. In the final section of the report, the clinician should include diagnostic formulations for Axes I through V. A report including only Axis I and Axis II is necessarily incomplete, and all reports should contain information for all five axes, even if the opinion on a particular axis is deferred for insufficient information. Some individuals will meet criteria for multiple psychiatric diagnoses, and these diagnoses can be listed on Axis I or II. The primary diagnosis of relevance to the case can, accordingly, be listed first within an axis if there are multiple comorbid diagnoses on the same axis (e.g., PTSD and substance abuse).

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Conclusion Forensic psychological examinations can be of unique value to the court in deciding the outcome of a variety of complex cases involving PTSD. The current availability of excellent structured interviews for PTSD and a number of psychological tests expressly developed for assessing the presence and the severity of PTSD lends increased credibility in the courtroom to the clinician who chooses to use these contemporary methods. Data on the presence or absence of any psychiatric disorder are usually based on self-report and thus warrant some skepticism in courtroom situations. The opinion of the informed clinician who relies on the use of multiple sources of information over time, who uses collateral informants, who assiduously peruses all pertinent records, and who employs psychological, neuropsychological, and physiological tests with sound psychometric properties merits the attention of all those involved in the case and minimizes the skepticism often associated with less thorough and competent psychological assessment. The use of these more contemporary methods in conjunction with a skillful and intuitive clinical examination is the hallmark of an outstanding psychological examination. Since the initial edition of this text, research on the assessment and the diagnosis of PTSD has confirmed the relative strength of many of the diagnostic tools advocated originally. Attention to matters of reliability and validity as well as to questions of utility (i.e., sensitivity, specificity, positive predictive power, negative predictive power) will ensure that the assessment of PTSD continues to be scientifically driven (Weathers et al. 1997). Even with this caveat, the quality of the tools used for assessment of PTSD is equal to the quality of the assessment instruments for any disorder in the DSM and far better than the quality of tools available for the vast majority of psychiatric disorders. The uniform use of these tools in the forensic setting will do much to enhance the judicial process and to further enhance the credibility of mental health clinicians working in forensic settings.

References American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 3rd Edition. Washington, DC, American Psychiatric Association, 1980 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 3rd Edition, Revised. Washington, DC, American Psychiatric Association, 1987 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition. Washington, DC, American Psychiatric Association, 1994

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Blake DD, Weathers FW, Nagy LM, et al: A clinician rating scale for assessing current and lifetime PTSD: the CAPS-1. Behavior Therapist 18:187–188, 1990 Blanchard EB, Kolb LC, Pallmeyer TP, et al: A psychophysiological study of posttraumatic stress disorder in Vietnam veterans. Psychiatr Q 54:220–229, 1982 Blanchard EB, Jones-Alexander J, Buckley TC, et al: Psychometric properties of the PCL checklist. Behav Res Ther 34:669–673, 1996 Breslau N, Kessler RC, Chilcoat HD, et al: Trauma and posttraumatic stress disorder in the community: the 1996 Detroit Area Survey of Trauma. Arch Gen Psychiatry 55:626–632, 1998 Davidson J, Kudler H, Smith R, et al: Treatment of posttraumatic stress disorder with amitriptyline and placebo. Arch Gen Psychiatry 47:259–266, 1990 Engdahl BE, Eberly RE, Blake JD: Assessment of posttraumatic stress disorder in World War II veterans. Psychological Assessment 8:445–449 1996 Faust D, Ziskin J: The expert witness in psychology and psychiatry. Science 241:31– 35, 1988 Foa EB, Cashman L, Jaycox L, et al: The validation of a self-report measure of posttraumatic stress disorder: the Posttraumatic Diagnostic Scale. Psychological Assessment 9:445–451, 1997 Gaston L, Brunet A, Koszycki D, et al: MMPI profiles of acute and chronic PTSD in a civilian sample. J Trauma Stress 9:817–832, 1996 Gaston L, Brunet A, Koszycki D, et al: MMPI scales for diagnosing acute and chronic PTSD in civilians. J Trauma Stress 11:355–365, 1998 Hathaway SR, McKinley JC: Minnesota Multiphasic Personality Inventory–2. Minneapolis, University of Minnesota, 1989 Helzer JE, Robins LN, McEvoy L: Post-traumatic stress disorder in the general population: findings of the Epidemiologic Catchment Area survey. N Engl J Med 317:1630–1634, 1987 Horowitz MJ, Wilner NR, Alvarez W: Impact of Event Scale: a measure of subject stress. Psychosom Med 41:209–218, 1979 Joseph S: Psychometric evaluation of Horowitz’s Impact of Event Scale: a review. J Trauma Stress 13:101–113, 2000 Keane TM, Barlow DH: Posttraumatic stress disorder, in Anxiety and Its Disorders. Edited by Barlow DH. New York, Guilford, 2002, pp 418–453 Keane TM, Wolfe J: Co-morbidity in post-traumatic stress disorder: an analysis of community and clinical studies. J Appl Soc Psychol 20:1776–1788, 1990 Keane TM, Malloy PF, Fairbank JA: Empirical development of an MMPI subscale for the assessment of combat-related post-traumatic stress disorder. J Consult Clin Psychol 5:888–891, 1984 Keane TM, Wolfe J, Taylor KL: Post-traumatic stress disorder: evidence for diagnostic validity and methods of psychological assessment. J Clin Psychol 43:32– 43, 1987 Keane TM, Caddell JM, Taylor KL: Mississippi Scale for Combat-Related Posttraumatic Stress Disorder: three studies in reliability and validity. J Consult Clin Psychol 56:85–90, 1988a

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Keane TM, Gerardi RJ, Lyons JA, et al: The interrelationship of substance abuse and PTSD: epidemiological and clinical considerations, in Recent Developments in Alcoholism, Vol 6. Edited by Galanter M. New York, Plenum, 1988b, pp 27–48 Keane TM, Zimering RT, Knight JA, et al: Post-traumatic stress disorder, in Psychopathology in Adulthood: An Advanced Text. Edited by Bellack A, Hersen M. Needham, MA, Allyn & Bacon, 1993, pp 147–163 Keane TM, Kolb LC, Kaloupek DG, et al: Utility of psychophysiological measurement in the diagnosis of posttraumatic stress disorder: results from a Department of Veterans Affairs Cooperative Study. J Consult Clin Psychol 66: 914– 923, 1998 Keane TM, Weathers FW, Foa EB: Diagnosis and assessment, in Effective Treatments for PTSD: Practice Guidelines From the International Society for Traumatic Stress Studies. Edited by Foa EB, Keane TM, Friedman MJ. New York, Guilford, 2000, pp 18–36 Kessler RC, Sonnega A, Bromet E, et al: Posttraumatic stress disorder in the National Comorbidity Survey. Arch Gen Psychiatry 52:1048–1060, 1995 Kilpatrick DG, Edmunds CN, Seymour AK: Rape in America: A Report to the Nation. Arlington, VA, National Victims Center, 1992 Koretsky MB, Peck AH: Validation and cross-validation of the PTSD scale of the MMPI with civilian trauma victims. J Clin Psychol 46:296–300, 1990 Kulka RA, Schlenger WE, Fairbank JA, et al: Trauma and the Vietnam War Generation. New York, Brunner/Mazel, 1990 Kulka RA, Schlenger WE, Fairbank JA, et al: Assessment of posttraumatic stress disorder in the community: prospects and pitfalls from recent studies of Vietnam veterans. Psychol Assess 3:547–560, 1991 Litz BT, Miller MW, Ruef AM, et al: Exposure to trauma in adults, in Handbook of Assessment and Treatment Planning for Psychological Disorders. Edited by Antony MM, Barlow DH. New York, Guilford, 2002, pp 215–258 Lyons JA, Keane TM: Keane PTSD scale: MMPI and MMPI-2 update. J Trauma Stress 5:111–117, 1992 Lyons JA, Wheeler-Cox T: MMPI, MMPI-2 and PTSD: overview of scores, scales, and profiles. J Trauma Stress 12:175–183, 1999 Malloy PF, Fairbank JA, Keane TM: Validation of a multimethod assessment of post-traumatic stress disorders in Vietnam veterans. J Consult Clin Psychol 51:488–494, 1983 McFall ME, Smith DE, Mackay PW, et al: Reliability and validity of Mississippi Scale for combat-related posttraumatic stress disorder. Psychological Assessment 2:114–121, 1990 Miller MW, Kaloupek DG, Keane TM: Antisociality and physiological hyporesponsivity during exposure to trauma-related patients with PTSD. Psychophysiology 27:S81, 1999 Norris FH: Epidemiology of trauma: frequency and impact of different potentially traumatic events on different demographic groups. J Consult Clin Psychol 60: 409–418, 1992

Forensic Psychological Assessment in PTSD

139

Perrin S, Van-Hasselt VB, Hersen M: Validation of the Keane MMPI-PTSD Scale against DSM-III-R criteria in a sample of battered women. Violence Vict 12: 99–104, 1997 Pitman RK, Orr SP, Forgue DF, et al: Psychophysiologic assessment of posttraumatic stress disorder imagery in Vietnam combat veterans. Arch Gen Psychiatry 44:970–975, 1987 Pitman RK, Orr SP, Bursztajn HJ: Vinal v. New England Telephone: admission of PTSD psychophysiological test results in a civil trial. American Academy of Psychiatry and the Law Newsletter 18:67–69, 1993 Pitman RK, Saunders LS, Orr SP: Psychophysiologic testing for post-traumatic stress disorder. Trial, April 1994, pp 22–26 Pitman RK, Sparr LF, Saunders LS, et al: Legal issues in posttraumatic stress disorder, in Traumatic Stress: The Effect of Overwhelming Experience on Mind, Body, and Society. Edited by van der Kolk B, McFarlane AC, Weisaeth L. New York, Guilford, 1996, pp 378–397 Robins L, Helzer J, Croughan J, et al: NIMH-Diagnostic Interview Schedule: its history, characteristics, and validity. Arch Gen Psychiatry 38:381–389, 1981 Scheibe S, Bagby, RM, Miller LS, et al: Assessing posttraumatic stress disorder with the MMPI-2 in a sample of workplace accident victims. Psychological Assessment 13:369–374, 2001 Sparr LF: Mental defenses and posttraumatic stress disorder: assessment of clinical intent. J Trauma Stress 9:405–425, 1996 Spitzer RL, Williams JBW, Gibbon M, et al: Structured Clinical Interview for DSMIII-R. Washington, DC, American Psychiatric Press, 1990 Sutker PB, Uddo-Crane M, Allain AN: Clinical and research assessment of posttraumatic stress disorder: a conceptual overview. Psychological Assessment 3: 520–530, 1991 Watson CG: Psychometric posttraumatic stress disorder measurement techniques: a review. Psychological Assessment 2:460–469, 1990 Watson CG, Juba MP, Manifold V, et al: The PTSD interview: rationale, description, reliability, and concurrent validity of a DSM-III-based technique. J Clin Psychol 47:179–188, 1991 Weathers FW, Litz BT, Herman DS, et al: The PTSD Checklist: reliability, validity and diagnostic utility. Paper presented at the annual meeting of the International Society for Traumatic Stress Studies, San Antonio, TX, October 1993 Weathers FW, Keane TM, King LA, et al: Psychometric theory in the development of posttraumatic stress disorder tools, in Assessing Psychological Trauma and PTSD. Edited by Wilson J, Keane TM. New York, Guilford, 1997, pp 98–135 Weathers FW, Ruscio AM, Keane TM: Psychometric properties of nine scoring rules for the Clinician Administered Posttraumatic Stress Disorder Scale. Psychological Assessment 11:124–133, 1999 Weathers FW, Keane TM, Davidson JR: Clinician-Administered PTSD Scale: a review of the first ten years of research. Depress Anxiety 13:132–156, 2001

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Weiss DS, Marmar CR: The Impact of Event Scale—Revised, in Assessing Psychological Trauma and PTSD. Edited by Wilson J, Keane TM. New York, Guilford, 1997, pp 399–411 Weissman MS, Paykel ES, Prusoff BA: Social Adjustment Scale Handbook: Rationale, Reliability, Validity, Scoring, and Training Guide. New York, College of Physicians and Surgeons of Columbia University, 1990 Wilson J, Keane TM (eds): Assessing Psychological Trauma and PTSD. New York, Guilford, 1997

C H A P T E R

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Disability Determination in PTSD Litigation Albert M. Drukteinis, M.D., J.D.

The threat of death or serious physical injury can shatter one’s sense of

self, leading to aftershocks now labeled as posttraumatic stress disorder (PTSD). The criteria constituting this disorder are well defined and include possible impairment in occupational functioning (American Psychiatric Association 2000). How PTSD impairs occupational functioning or when it leads to disability is not so well defined. Disability determinations, therefore, may suffer from a lack of an objective foundation for assessment. To help address these issues, this chapter explores what is known about the occupational effects of PTSD, guidelines for assessment, factors affecting impairment, forensic considerations, and ways of objectifying impairment.

Occupational Effects of PTSD Increasingly, research has shown that persons with PTSD can experience distressing symptoms for protracted periods of time, sometimes up to decades after the causal event (Blank 1993; Kulka et al. 1990; Speed et al. 1989; see also Green and Kaltman, Chapter 2, in this volume). However, the course of PTSD varies, and a clear association with work impairment or disability has not been consistently demonstrated (Blank 1993; Zeiss and Dickman 1989). Studies of Holocaust survivors, for example, have documented psychological effects years later while not necessarily showing any severe impairment in functioning (Eaton et al. 1982). Similarly, U.S. survivors of Japanese imprisonment during World War II reported symptoms of PTSD 40 years later but, nevertheless, lived relatively successful and effective lives without disability (Goldstein et al. 1987). Australian survivors

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of Japanese imprisonment also showed long-term emotional symptoms but no disability (Tennant et al. 1986). A study of adult burn victims noted that even severe PTSD is compatible with remarkable functional recovery, and often there is little relationship between symptoms and impairment (Roca et al. 1992). In the National Vietnam Veterans Readjustment Study, Kulka et al. (1990) showed that although significant numbers of veterans had symptoms of PTSD and comorbid disorders, only 4% applied for disability compensation (Department of Veterans Affairs 1989). Later examination of these data according to measures such as general health status and current employment did suggest poor functional outcome generally for these PTSD subjects (Zatzick et al. 1997). However, conclusions about PTSD disability from this study may be limited because the study relied on selfreports, only reflected an isolated period of time, and did not distinguish between other concurrent causes of disability (e.g., physical limitations). More recent studies have also pointed to work impairment as a manifestation of PTSD but have not objectively demonstrated the extent of potential disability. From a community sample in the Piedmont region of North Carolina, where a number of PTSD subjects were identified, there was some evidence of greater job instability but no less full-time employment (Davidson et al. 1991). Among the survivors of the Oklahoma City bombing, those with PTSD expressed greater dissatisfaction with their work performance after the disaster (North et al. 1999), but there is no report of any prolonged disability. The disabling effects of PTSD have been claimed in two studies of Bosnian refugees, among whom about one-quarter reported having a significant disability (Mollica et al. 1999, 2001). However, the measure of disability used in these studies was based on a self-report questionnaire (Stewart 1988)—such self-reported measures have been shown to have questionable reliability (Coyne 1994; Enelow 1991)—and it focused primarily on health and physical functioning. Only 2 of the 20 items on the questionnaire specifically addressed work functioning: “Does your health keep you from working at a job, doing work around the house or going to school?” and “Have you been unable to do certain kinds of work or amounts of work, housework or schoolwork because of your health?” (Stewart and Stewart 1988). The data from these studies may have epidemiological value but do not provide direct evidence of a disability. Furthermore, the studies have been criticized because the sample was of poorly educated and, presumably, impoverished refugees displaced to a foreign location, with high numbers of disabled elderly persons and an unknown proportion of former soldiers; and because the refugees’ recent experiences likely mean a high misattribution of physical disability to psychiatric conditions (Coyne and Kagee 2000).

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Work impairment from PTSD has been hypothesized from data taken out of the National Comorbidity Survey, where work loss due to psychiatric disorders generally is shown (Brunello et al. 2001; Davidson 2001; Kessler and Frank 1997). In their original study, however, Kessler and Frank (1997) pointed out that the results of these analyses hinge on retrospective selfreports of work impairment and could be tainted by distorted perceptions of people with psychiatric disorders. Moreover, even if the results are valid, they point only to a relative impairment in work functioning and do not document the extent or duration of disability. In a similar attempt to show disability from PTSD, Breslau (2001) reported that in their worst month, PTSD subjects were unable to do their job or had to reduce their activities due to symptoms. Here, too, however, the worst month does not necessarily provide information on the longitudinal course of disability. Therefore, although research to date shows that PTSD can have a protracted course and may include relative work impairment or inefficiency for periods of time (at least according to self-reports), extended or total disability has not been clearly shown as the natural course of the disorder. In addition, more recent conclusions about disability are inconsistent with the results of many earlier studies that found relatively preserved functioning. Yet claims of extended total disability are common in litigation and in compensation proceedings. In assessing these claims, a scheme for organizing the parameters of disability must be established and the factors influencing disability must be scrutinized.

Guidelines for Assessing Work Impairment The American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, Fifth Edition (American Medical Association 2001) makes a distinction between impairment and disability. Impairment is defined as “a loss, loss of use, or derangement of any body part, organ system, or organ function” (p. 2). Such alteration of an individual’s health status is assessed by medical means. On the other hand, a disability is an “alteration of an individual’s capacity to meet personal, social, or occupational demands or statutory or regulatory requirements because of an impairment” (p. 8). The latter is said to be assessed by nonmedical means. By this distinction, impairment may or may not result in a disability. Practically, however, the terms are often used interchangeably. For example, once a medical opinion is offered about work impairment, more than a medical consideration is involved. Routinely, medical opinions are offered on disability as well, including both its degree and its expected duration. While the final determination of disability is made by a fact-finder (e.g., the court,

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a governmental agency, an insurance company panel), medical opinions on disability are not necessarily inappropriate. When those opinions are given, though, there needs to be an understanding that conclusions do involve more than a medical consideration of symptoms and health status. Specifically, there needs to be identification of how and why the capacity to meet an occupational demand is altered. There also needs to be a clear understanding of why the disability is judged partial or total, temporary or permanent. Because of the subjective nature of mental disorders such as PTSD, psychiatric opinions about impairment or disability are particularly challenging. Under criterion F for PTSD in DSM-IV-TR (American Psychiatric Association 2000), in order to make the diagnosis, the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Detailed symptom descriptions of PTSD and associated features are provided, but there is little guidance for assessing impairment. The Global Assessment of Functioning (GAF) Scale, Axis V, used in conjunction with the multiaxial system of evaluation in DSM-IV-TR, provides a means of reporting occupational impairment on a scale from 0 to 100 but not assessing it. For example, a GAF score of 41–50 connotes serious symptoms or any serious impairment in social, occupational, or school functioning. Inability to keep a job would certainly qualify, but the presence of even serious symptoms does not automatically equate with serious occupational impairment. In addition, a history of not keeping a job may justify a GAF score of 41–50, but it does not help in making the assessment of whether the person was, in fact, unable to keep the job as opposed to merely not keeping it. The AMA Guides offers a breakdown of impairment—based on four categories of functional limitation—that can be used in assessment (American Medical Association 2001). Use of the AMA Guides has become so prevalent that it has even led some courts to exclude psychiatric testimony if they were not used in the evaluations (Zebo v. Houston 1990). Such a requirement appears overly restrictive, given that other means of assessing impairment may be of comparable value or a unique set of symptoms could result in an impairment that does not easily fit into these categories. Nonetheless, a psychiatric disability evaluation that has not referenced the AMA Guides may need to be strongly defended. The four categories for evaluating psychiatric impairment of function in the AMA Guides are 1. 2. 3. 4.

Activities of daily living Social functioning Concentration, persistence, and pace Deterioration or decompensation in complex or worklike settings

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The AMA Guides provides a number of examples of impairment in each category and also a system for classification of impairment that ranges from class I (no impairment) to class V (extreme impairment). The focus is said to be on impairment and not specifically on disability or work disability assessment. At the same time, for example, class V is considered to be a level that significantly impedes useful functioning. Certainly, it might be inferred that someone with impairment in this class is disabled from work. Also, by going beyond a medical consideration of symptoms and health status to specific work circumstances, these classifications of impairment are tantamount to an opinion on disability. The Social Security Administration uses categories similar to those outlined in the AMA Guides. Because the determination is for total disability, the descriptions of impairment are enhanced as follows (Social Security Administration 1986): 1. Marked restriction in activities of daily living 2. Marked difficulties in maintaining social functioning 3. Deficiencies of concentration, persistence, or pace, resulting in frequent failure to complete tasks in a timely fashion in work settings 4. Repeated episodes of deterioration or decompensation in work or worklike settings that cause the individual to withdraw from the situation or to experience exacerbation of signs and symptoms (which may include deterioration of adapted behaviors) Another system of classifying impairment was developed by an advisory committee for workers’ compensation in the state of California; the results of the committee’s efforts have often been used by major private disability insurance companies in the United States (Enelow 1991). In this system, the degree of impairment is determined by assessing the evaluee’s ability to 1. 2. 3. 4. 5. 6. 7.

Comprehend and follow instructions Perform simple and repetitive tasks Maintain a work pace appropriate to a given workload Perform complex or varied tasks Relate to other people beyond giving and receiving instructions Influence people Make generalizations, evaluations, or decisions without immediate supervision 8. Accept and carry out responsibility for direction, control, and planning These classification systems for impairment, and others that may be used throughout the United States, show considerable overlap while at the same

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time offering unique parameters for evaluation. For the most part, they are viewed as means of assessing impairment and/or disability. As with the GAF Scale, however, they are really a means of reporting impairment, rather than assessing it, by subdividing impairment into distinct features. The assessment of impairment, however, is a preliminary step. By way of illustration, if an individual with PTSD is reported as not being able to concentrate well at work or as deteriorating in a work setting, that individual may have a work impairment and/or disability. However, the task of the forensic evaluator is to assess whether concentration was in fact affected or whether deterioration in fact occurred, and, if so, whether either was actually from PTSD. The presence of symptoms may be important, but it is not conclusive. Various examples that are listed, especially in the AMA Guides, provide some assistance, but the assessment of the subject making such claims requires other tools. Before proceeding to look at those tools, it is important to address various factors that can affect impairment from PTSD and contribute to claims of disability.

Factors Affecting Impairment Although the focus in this chapter is on work impairment and disability from PTSD, all of the perpetuating or ameliorating factors of the disorder conceivably influence work impairment as well. Among these factors, it has been shown that nonavoidant coping styles are associated with better adjustment (Wolfe et al. 1993). Combat veterans, for example, who endorsed externalization, wishful thinking, and extreme avoidance were significantly more symptomatic than those who relied on more active forms of coping. In other studies, self-confidence, an easygoing disposition, and family support resources predicted psychological and physical resistance to symptoms (Holahan and Moos 1990). Several other studies have found that this type of active rather than passive approach to problem solving contributes to a greater level of stress resistance (Borus 1973; Holahan and Moos 1990; McCrae 1984). The severity of symptoms may also be related to the type of trauma and its intensity (Helzer et al. 1987), as well as to neuroticism, adverse life events before the trauma, a history of a treated psychiatric disorder, and avoidance of thinking through negative experiences (McFarlane 1989). Beyond these general stress-resistance variables, more specific aggravating factors have frequently been cited. Numerous studies have found that the presence of comorbid conditions affects the course of PTSD (Davidson et al. 1991; Helzer et al. 1987; Shore 1986; Solomon and Bleich 1998) and, therefore, could magnify work impairment. The percentage of comorbidity reported has ranged from 50%

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to more than 90% of all PTSD subjects. Frequently seen are anxiety disorders, including panic disorder, phobias, and obsessive-compulsive disorder; various forms of depression; somatization disorder; schizophrenia; and substance abuse problems. The reasons for the high comorbidity rates are not entirely clear. It has been hypothesized that they could represent preexisting disorders, disorders that are subsequent complications of PTSD, disorders that share the same risk factors, or some type of measurement artifact (Solomon and Bleich 1998). Because the symptoms of PTSD can overlap with other disorders, once PTSD is diagnosed, the chances of another diagnosis may be higher from that alone. On the other hand, it may be that either premorbid or subsequent complication factors are operative. Comorbidity of PTSD is of particular concern because greater disability is associated with comorbidity in psychiatric disorders generally (Olfson et al. 1997; Ormel et al. 1994). At the same time, there is no reason to believe that Holocaust or Japanese imprisonment survivors would not have been prone to comorbid disorders too. Yet, their functioning has been reported as remarkably good (Eaton et al. 1982; Goldstein et al. 1987; Tennant et al. 1986). Personality disorders have also been found in high association with PTSD. Individuals with prominent passive-aggressive, antisocial, and borderline personality features have more difficulty in posttrauma adjustment (Roca et al. 1992). It is not likely that background characteristics can alone explain persistent PTSD (Kulka et al. 1990), but the interaction of personality and trauma may need to be conceptualized together. To the extent that personality factors are associated with a worse prognosis, it may be erroneous to view them as merely creating a vulnerability to PTSD. Personality disorders, unlike Axis I conditions, represent an individual’s pattern of behaving and interacting with the world and thus imply a more active role in maintenance of symptom claims rather than just a preexisting weakness. Animal studies have shown that repeated trauma in the face of an inescapable laboratory setting can extinguish active efforts to escape (Overmier and Seligman 1967). This type of operant conditioning has been labeled learned helplessness and is a model that has been applied to some psychiatric disorders, including PTSD (Kolb 1987; van der Kolk 1987). Learned helplessness may explain why some individuals with PTSD become more passive and accepting of an invalid role. This behavioral model is often combined with biochemical models to suggest the inescapable course of some individuals with PTSD (Pitman 1993; van der Kolk et al. 1984). Again, however, the validation of these models of impairment would require an explanation of why survivors of very serious trauma have historically not shown high degrees of functional impairment, and, therefore, what independent variables may lead to the appearance of learned helplessness.

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With the growing recognition that PTSD is a greater mental health problem than was formerly believed, and the knowledge that one of the main features of PTSD is avoidance of traumatic issues, proactive therapeutic intervention has been advocated (Joseph et al. 1997; van der Ploeg and Kleijn 1988). A popular approach of debriefing victims has been widely advocated and is commonly employed in the wake of public tragedies and disasters (Brom and Kleber 1989; Manton and Talbot 1991; Mitchell 1983). The risk, however, with aggressive therapeutic intervention is that of pathologizing natural human suffering and inadvertently reinforcing helplessness. In some instances, such intervention can lead to an iatrogenic origin or enhancement of PTSD. Many of these treatment approaches have been criticized as encouraging a sick role rather than guiding individuals to understand that they have the ability not only to survive traumatic events but also to achieve greater personal strength, awareness, and purpose from such events (Antonovsky 1987; Violanti 2000). Because trauma is so ubiquitous, these critics argue, it should be viewed as an opportunity to learn resourcefulness and to direct positive change (Meichenbaum 1985). When well-meaning therapists discourage activity for the sake of healing, they may foster impairment and disability. It is known that survivors who are overwhelmed with traumatic recollections can benefit from planning activities, structuring their day, and establishing a manageable “normal” pattern of exposure and avoidance to the traumatic stimuli (Joseph et al. 1997). This alternative approach, which deemphasizes pathology, is consistent with the research reported above, that active rather than passive coping increases stress resistance (Borus 1973; Holahan and Moos 1990; McCrae 1984). In disability evaluations, therefore, the potential for iatrogenic reinforcement of impairment should be considered.

Proposed Guideline 1 Although PTSD can have a protracted course that may include relative or temporary work impairment, permanent total disability has not been empirically shown as a natural course of the disorder. Therefore, such claims should be supported by unusual circumstances or complicating factors outside of the plaintiff’s control.

Forensic Considerations Disability determination arises as an issue typically in the context of litigation or compensation claims. This presents unique problems that are not rou-

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tinely part of a clinical assessment of functioning. The forensic examiner must be aware of the factors that can impinge on the reliability of information gathered, as well as the legal standards that govern decision making. Malingering of PTSD symptoms is discussed in Chapter 8 and will not be reviewed in detail here. That PTSD symptoms are not difficult to simulate is evidenced by studies that show that 86% of untrained experimental subjects were able to endorse correct symptoms on checklists sufficient to meet diagnostic criteria for PTSD (Lees-Haley and Dunn 1994). From the standpoint of disability, it is self-evident that identification of malingered PTSD should negate assertions of disability. Yet, practically, most clinicians are reluctant to diagnose malingering. To be reasonably certain that someone was malingering almost requires an admission of faking or an observation of flagrant contradiction to claims of impairment (Hurst 1940). Neither occurs often. The diagnosis of malingering also has a pejorative quality that may be distasteful, if not dangerous, to clinicians. Most importantly, however, it is likely that only a small percentage of individuals claiming PTSD actually are malingering, so that great efforts to uncover the malingerer may not be very fruitful. It is far more important to identify exaggeration, inconsistency, or lack of objective measures of disability—all of which are quite common. PTSD victims do not invariably assert the diagnosis or make claims of impairment. Studies show that they commonly avoid dealing with their disorder and do not seek mental health treatment (Amaya-Jackson et al. 1999). By contrast, this phenomenon does not automatically legitimize the claims of those that do seek help. Entering into litigation or making a compensation claim inherently has the potential to distort the history of impairment. In PTSD litigation, for example, the bulk of a damage award comes from economic loss due to disability. Damages will also include payment for mental health treatment and nonspecific aspects of emotional suffering (Speiser et al. 1985), but these are relatively minor. Barring an outrageous circumstance of the trauma itself, which might result in a punitive damage award, it is disability that will lead to the greatest financial gain. Similarly, in compensation claims, the award is almost directly linked to the level of disability. Therefore, it is not uncommon for a plaintiff or claimant to emphasize, if not magnify, his or her level of impairment and disability. The subjective nature of symptoms and impairment in PTSD requires a forensic examiner to do more than just accept the assertion of an individual as a reasonable possibility or to make an intuitive judgment of the individual’s credibility. Impairment must be measured objectively, and the level of disability must be properly categorized. In the workers’ compensation system, for example, levels of disability are broken down into the following (Metzner et al. 1994):

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Temporary partial Temporary total Permanent partial Permanent total

A temporary disability may be understandable in the aftermath of some traumatic experiences, but a permanent one may not be. Considering that few studies convincingly show long-term disability, even if relative work impairment can be present, a finding of permanent total disability should require some extraordinary circumstances or complicating factors. In a treatment setting, one of the tools that the clinician uses to help the healing process is assuming an empathic role. This validates the patient’s distress and difficulty in functioning and helps create a therapeutic alliance. Unfortunately, this approach is an obstacle to the forensic examiner in forming objective assessments of impairment. It may seem appropriate to give the claimant the benefit of the doubt, but it is not objective. In personal injury litigation and in most compensation claims, the burden of proof is on the plaintiff or claimant (Speiser et al. 1985). While this refers to a legal standard that the fact-finder must apply, and not one for forensic opinion, it is at least analogous to the standard of reasonable medical certainty. Before a forensic examiner gives an opinion within reasonable medical certainty that a level of disability exists, therefore, the plaintiff should have demonstrated that it is more likely than not present. This means that a determination of disability is not one based on mere possibility derived from broad, generalized assertions, but one that is specific and convincing. In the absence of such a demonstration, the forensic examiner need not conclude that the individual is not disabled, but only that he or she has not sufficiently demonstrated such disability in an objective way. In contrast, when an individual does objectively demonstrate disability, the forensic opinion has credibility because it is not offered as intuition or inference from subjective symptoms alone or based only on possibility. An ancillary issue in tort law is the need for plaintiffs to mitigate damages (Speiser et al. 1985). Sometimes called the doctrine of avoidable consequences, this requires that plaintiffs take care to protect their interests as a reasonable person would and to minimize their damages (Slovenko 1998). With regard to disability claims in PTSD, it is the plaintiff’s responsibility not only to follow medical treatment that might reduce symptoms of PTSD but also to attempt to maximize his or her work functioning. This may include returning to the same type of work as soon as possible, actively seeking alternative work, or participating in vocational rehabilitation efforts. Because it is established that passivity reinforces illness and is deleterious to the individual with PTSD, no medical or legal basis exists for a person

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with PTSD to expect or to resign himself or herself to chronic disability. There is also little empirical evidence for concluding that this is the natural longitudinal course of PTSD. Claims of permanent total disability, therefore, should be very clearly supported, and the reasons for lack of mitigation should be credibly explained.

Proposed Guideline 2 In personal-injury litigation and in most compensation claims, the burden of proof is on the plaintiff. By analogy, an opinion within reasonable medical certainty about disability should be based on more than a generalized assertion. The plaintiff needs to convincingly demonstrate impairment and the reasons for lack of mitigation.

Objectifying Impairment To avoid intuitive judgments about work impairment and disability, a systematic approach to assessment should be employed. The first step in the process, of course, is to identify whether PTSD and/or any comorbid conditions are present. Detailed questioning is necessary to ascertain whether DSM-IV-TR criteria A through F for PTSD are met (American Psychiatric Association 2000). The use of scales such as the Clinician-Administered PTSD Scale (CAPS-1; Blake et al. 1990) or the Structured Interview for PTSD (Davidson et al. 1997) may be helpful. The Minnesota Multiphasic Personality Inventory–2 (MMPI-2; Hathaway and McKinley 1989) or other testing instruments that have a validity measure are also useful. Any evidence of exaggeration or inconsistency should be noted. Exaggeration on the MMPI-2, for example, could infer exaggeration on claims of impairment as well. Even if the criteria for PTSD are satisfied, it is essential to understand that this does not equate to disability. Objectifying impairment requires effective interviewing techniques, probing categories of function, and obtaining adequate corroboration. It should also address the nature of the trauma leading to alleged disability, the nature of the work, the timing of impairment, and alternative explanations for claims.

Interviewing Techniques As with all forensic evaluations, rapport must be established with the claimant to allow the natural flow of information and an accurate assessment of the individual’s mental state. Confrontational or overly challenging inter-

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view techniques are not called for and will impede the gathering of information. Certainly, questioning about all the criteria for PTSD is required, but care must be taken not to lead an individual, who might be intent on endorsing pathology, to concur about symptoms that are not existent or not sufficiently troubling to be spontaneously recalled. It is better to begin exploration of PTSD with open-ended questions and only later inquire from a checklist of PTSD criteria or functional parameters. In addition, all claimed symptoms and impairments must be dissected in detail. This is sometimes a cumbersome process that is not comfortable for evaluees who may not want their assertions questioned, but it is the only way to approach objectivity. Conclusory general statements such as “I can’t concentrate” or “I can’t be around people” should not be accepted at face value, since they are not literally accurate. The circumstances, degree, frequency, and context of those complaints must be ascertained. The adage that a picture is worth a thousand words applies here. If plaintiffs are unable to give reliable examples of impairment, are evasive, or can only discuss impairment in vague generalities, then they have not sufficiently demonstrated a disability. On the other hand, striking examples of impairment can be compelling and are less likely to be contrived. The mental status examination is also an important component of the interview to assess impairment. A dramatic or histrionic presentation, or one that is inconsistent with the history of complaints, can raise doubts about the severity of PTSD. An angry, belligerent presentation can at times lead an evaluator to conclude that the individual is very symptomatic, when it actually represents a defensive posture to avoid scrutiny. Similarly, observations of ease in interview participation and dialogue, as well as more formal testing of mental processes, can be useful in assessing claims of poor cognitive functioning. More formal psychological testing, in some instances, may be useful as well. The mental status examination can help identify comorbid conditions that complicate the course of PTSD or personality factors that affect motivation to recover.

Probing Categories of Function The categories of function outlined by the AMA Guides are not necessarily all-inclusive, but they serve as a road map to accepted functional parameters that should be measured in order to assess impairment and disability (American Medical Association 2001). Each of the categories of function can be subdivided into activities or behaviors that further delineate that function. Hypothetically, there exists an infinite number of such activities, and also specific activities within each category of function that may be more relevant to the issue of disability. Some states, such as Colorado, have

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formally identified relevant activities within each of the categories of function and have proposed a scheme of quantification that leads to an overall impairment rating (Colorado Department of Labor and Employment 1996). For example, under Social Functioning, they list several activities, including getting along with others without behavioral extremes. Under Thinking, Concentration, Persistence and Pace, activities such as applying common sense to carry out a task and performing activities on schedule; being punctual are listed. A number of examples are provided to assist in the rating. Each activity is then numerically scored as to the level of impairment, totaled, and calculated by a formula to result in the overall impairment rating (Department of Labor and Employment 1996). These activities may delineate important parameters of functioning, but no matter which activities are considered, the critical issue is measuring how well or poorly the individual actually performs that activity. For example, this scheme does not address how a forensic evaluator determines at what level a person can actually get along with others without behavioral extremes, apply common sense to carry out a task, or perform activities on schedule; be punctual. It is likely that without more information, an evaluator will be guessing on the level of impairment of each of these activities or using intuition from nonspecific symptoms and mental status observations. Furthermore, although quantification may have the appearance of objectivity, it is imprecise and not endorsed even by the AMA Guides (American Medical Association 2001). Nevertheless, addressing delineated activities can provide a format for interviewing that improves on simple intuitive conclusions. The forensic examiner should understand that all purported measures of psychiatric impairment are only an approximation of disability. Without following individuals in their everyday lives and monitoring their activities, it is impossible to completely understand the totality of their functioning or lack thereof. The approximation can be enhanced, however, by probing categories of function in some detail, seeking clear examples of impairment, and obtaining reliable corroboration.

Corroboration Corroboration of disability can be either internal (i.e., within the history of the person being evaluated and mental status observations) or external (i.e., from outside sources such as reports of family, friends, employers; or other witness observations). Medical and psychiatric records, employment files, and tax returns can help chronicle a person’s functioning. The reliability of all sources of information must be taken into account. For example, family members may be as equally vested in a disability claim as the person asserting

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it and may distort the history in support of the claim. On the other hand, a defendant in a disability action, such as an employer from whom workers’ compensation is sought, may provide misleading information about the functioning of the employee to show that the claim of disability is fabricated. The inherent bias of all informants, as well as the consistency of reported information, must be scrutinized. Just as with the individual who is alleging PTSD disability, specific and graphic examples of impairment carry more weight than conclusory statements for or against disability. One method of obtaining internal corroboration from the plaintiff is to survey a typical day in that person’s life. Tracing the day, hour by hour, can sometimes reveal areas of preserved functioning that demonstrate the potential for work or rehabilitation. Questioning a person in detail about his or her typical day makes it more difficult for the person to rely on sweeping descriptions of impairment. The person’s hobbies, recreation, and social interaction can be a rich source of information. A full schedule of personal activities can demonstrate a lack of credible impediment to work. The absence of any activity may reveal someone who is passively accepting an invalid role. Surveillance is a controversial area. Even in instances of alleged physical injury, surveillance pictures or films within a discrete period of time may not accurately reflect the individual’s overall functional ability. By necessity, many disabled people must exert themselves briefly beyond their actual capability and then pay the physical consequence afterward. With psychiatric disorders, it is even more difficult to assume that a discrete period of surveillance is representative of total functioning ability. A surveillance camera cannot capture internal emotional states. In some instances, however, if a person has represented that certain activities are impossible or never performed, then a surveillance camera may be able to disprove this representation. Surveillance is a limited tool, though, which should not be overly credited with importance.

Nature of the Trauma Although the psychological response to trauma is variable, there is evidence that more severe traumatic experiences have a greater damaging effect and result in increased symptoms (March 1993). By inference, increased symptoms could result in greater impairment. Another interpretation of the evidence may be that more severe, grotesque, or prolonged traumas are more likely to lead forensic examiners to affirm claims of disability. It may be that sympathy for an individual who has undergone such a trauma drives the opinion more than any other factor. Recognizing the potential impact of severe trauma is important, but it should not obviate the need for an objec-

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tive measurement of impairment. Significant numbers of people who have experienced even catastrophic events show no symptoms, and many more function relatively well in spite of lingering symptoms (Eaton et al. 1982; Goldstein et al. 1987; Tennant et al. 1986). Understanding the nature and severity of the trauma, as well as ascertaining whether a traumatic event even occurred, is important. A percentage of PTSD claims are based on misrepresentation of trauma (e.g., false reports of combat experience or rape). Not uncommonly, individuals claim more severe trauma than actually occurred, as when, for example, an auto accident victim describes the speed and damage of the crash in blatant contradiction to police reports. It is therefore extremely important to obtain verification of the nature of the trauma. Police and traffic accident reports, witness statements, photographs, military records, and early emergency department and other treatment notes can be extremely informative in assessing the extent of trauma. Because all historical accounts evolve and are reconstructed over time, verification that severe trauma occurred can help validate a claim of disability, whereas exposure of exaggeration of trauma can raise suspicion of a spurious claim.

Nature of the Work Although permanent total disability is infrequent in PTSD, impairment for some types of work is not unusual. Analysis of the nature of the trauma, in combination with an understanding of the nature of the work, can show that an individual cannot or should not continue performing his or her previous work duties (e.g., a firefighter who has PTSD from a near-death experience becomes too anxious to go into a burning building; a flight attendant whose plane dropped 1,000 feet in an air pocket becomes frightened of flying). At times, mild PTSD symptoms can compromise essential aspects of the job (e.g., a correctional officer who is beaten by inmates no longer projects confidence because of hyperarousal, thereby becoming vulnerable to further assaults). In some instances, the work setting where trauma occurred triggers PTSD symptoms because of unique environmental features (e.g., a foundry worker who accidentally poured molten metal into his boot top, seriously injuring his foot, now fears being near the furnaces; a woman who lost fingers in a press becomes extremely tense around any machinery noise). There are, on the other hand, claims of disability under work circumstances that may be poorly justified and unrealistic (e.g., a woman who was sexually assaulted by her boss says that she can no longer work for any employer because she does not trust people). Suffice it to say that when a triggering of PTSD symptoms could occur, it can be dependent on the essential duties of the plaintiff’s work and its environmental circumstances.

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Timing The timing of the impairment in relation to the trauma and the course of the illness is especially complicated in PTSD. This is because PTSD has such a variable course. Some individuals will experience symptoms in the acute stages that continue indefinitely; progress or diminish; or disappear, only to reappear again in the future. Others will have a delayed onset that may arise by so-called triggers of PTSD. In light of this variability, it is necessary to recognize that when work impairment exists, it, too, can be variable with regard to its degree and duration. Temporary partial or temporary total disability following an acute catastrophic event is more understandable than permanent partial or permanent total disability years later. Permanent disability must also be weighed against the efforts at rehabilitation. Did the person ever try to return to work? Did he or she participate in vocational rehabilitation efforts, retraining, or educational opportunities? Is there evidence of compliance with treatment? What has been the motivation to recover? These issues are particularly called into question when claims of disability do not coincide with the course of purported symptoms. Sometimes, for example, work impairment is noted prior to the trauma. In other situations, a relatively minor trigger is claimed to result in a major impairment. Depending on the circumstances, either of these is possible, but it must be demonstrated with sufficient reliability before a conclusion of impairment from PTSD is made. A careful and detailed inquiry into the sequence of symptoms and the timing of impairment can frequently provide validating or refuting data about disability.

Alternative Explanations If a person claims to have disability from PTSD but cannot adequately demonstrate it, there may be alternative explanations unrelated to PTSD. The issue of malingering has already been discussed, but, more commonly, there may be circumstances or conditions in the person’s life for which a claim of disability from PTSD becomes a convenient solution. These are not necessarily overt fabrications, because individuals can honestly believe that PTSD has created their limitations. They may have found difficulty in functioning due to a number of unrelated or accumulating factors (e.g., social consequences of personality disorders, substance abuse, economic hardship, or personal and family stressors). When PTSD is said to arise in an employment setting, personnel factors may also be operative (Drukteinis 1997). Not uncommonly, an employee facing a negative personnel action or job uncertainty may seek a disability claim (e.g., a secretary, anticipating a layoff, claims PTSD from her boss’s sexual harassment). Em-

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ployment situations that can prompt such claims include an employee’s performance problems; lack of work motivation that resulted in a negative personnel action; employment insecurity because of potential layoffs, lack of promotion, or a demotion; and personality disturbance or employee misconduct that led to disciplinary proceedings. Outside the work setting, many personal life crises can present unresolvable conflicts for which a face-saving solution through a legitimized disability is sought. If an individual has in fact been traumatized, he or she may feel a sense of entitlement that justifies a disability claim as a substitute for dealing with a personal crisis (e.g., a woman operated on for breast cancer claims PTSD disability from a relatively minor motor vehicle accident, denying the catastrophic effects of the cancer on her life). A thorough personal history, together with adequate corroborative background information, may show the inconsistency in a PTSD disability claim and uncover alternative explanations. Such evaluations are difficult for the forensic examiner, because the person making an erroneous claim may genuinely be suffering. However, a thorough understanding and elimination of these potential factors is necessary in order to validate a claim of PTSD disability.

Proposed Guideline 3 All disability determinations are an approximation, since a forensic examiner can never completely understand an individual’s everyday functioning. More objective approximation is achieved by identifying clear examples of impairment within various categories of function. The evaluation should include reliable corroboration and an understanding of all the circumstances surrounding the trauma and the individual’s life in relationship to it.

Conclusion A proper assessment of PTSD disability requires an understanding of the natural course of work impairment in traumatized individuals. Symptoms of PTSD are variable and often chronic, but long-term disability, at least permanent total disability, is unusual. Surprisingly, many symptomatic individuals lead relatively normal lives. A number of factors that can affect the course of impairment need to be assessed as possible complications. The evaluation of PTSD disability requires reliable information both from the claimant and from corroborating sources. Just as the burden of proof in

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the legal context rests on the plaintiff, the individual being evaluated forensically must demonstrate his or her disability in an objective way before an opinion within reasonable medical certainty is made. Whichever guidelines are used for assessment of impairment, it should be recognized that an evaluator can never obtain a complete understanding of a person’s functional ability and must approximate. However, intuitive leaps by the evaluator on the basis of symptom presentation or sympathy for the trauma are not objective. Specific examples of impairment, consistency of the history with all available information, and elimination of alternative explanations for disability claims are essential in this challenging process.

References Amaya-Jackson L, Davidson JRT, Hughes DC, et al: Functional impairment and utilization of services associated with posttraumatic stress in the community. J Trauma Stress 12:709–724, 1999 American Medical Association: Guides to the Evaluation of Permanent Impairment, 5th Edition. Edited by Cocchiarella L, Andersson GBJ. Chicago, IL, American Medical Association, 2001 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 Antonovsky A: Unraveling the Mystery of Health: How People Manage Stress and Stay Well. San Francisco, CA, Jossey-Bass, 1987 Blake DD, Weathers FW, Nagy LM, et al: A clinician rating scale for assessing current and lifetime PTSD: the CAPS-1. Behavior Therapy 18:187–188, 1990 Blank AS: The longitudinal course of posttraumatic stress disorder, in Posttraumatic Stress Disorder: DSM-IV and Beyond. Edited by Davidson JRT, Foa EB. Washington, DC, American Psychiatric Press, 1993, pp 3–22 Borus JF: Reentry, II: “making it” back in the states. Am J Psychiatry 130:850–854, 1973 Breslau N: Outcomes of posttraumatic stress disorder. J Clin Psychiatry 62 (suppl 17): 55–59, 2001 Brom D, Kleber RJ: Prevention of post-traumatic stress disorders. J Trauma Stress 2:335–351, 1989 Brunello N, Davidson JRT, Deahl M, et al: Posttraumatic stress disorder: diagnosis and epidemiology, comorbidity and social consequences, biology and treatment. Neuropsychobiology 43:150–162, 2001 Colorado Department of Labor and Employment: Permanent Impairment Rating Guidelines. 19 Colorado Rules 8 (1996) Coyne JC: Self-reported distress: analog or ersatz depression? Psychol Bull 116:29– 45, 1994 Coyne JC, Kagee A: Mental health among Bosnian refugees (letter). JAMA 283:55, 2000

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Davidson JRT: Recognition and treatment of posttraumatic stress disorder. JAMA 286:584–588, 2001 Davidson JRT, Hughes D, Blazer DG, et al: Post-traumatic stress disorder in the community: an epidemiological study. Psychol Med 21:713–721, 1991 Davidson JRT, Malik MA, Travers J: Structured interview for PTSD(SIP): psychometric validation for DSM-IV criteria. Depress Anxiety 5:127–129, 1997 Department of Veterans Affairs: Post traumatic stress disorder in Vietnam veterans. Congressional Research Service Report #89-368SPR7. Washington, DC, Library of Congress, June 1989 Drukteinis AM: Personnel issues in worker’s compensation claims. Am J Forensic Psychiatry 18(3):3–23, 1997 Eaton WW, Sigal JJ, Weinfeld M: Impairment in holocaust survivors after 33 years: data from an unbiased community sample. Am J Psychiatry 139:773–777, 1982 Enelow AJ: Psychiatric disorders and work function. Psychiatric Annals 21:27–35, 1991 Goldstein G, van Kammen W, Shelly C, et al: Survivors of imprisonment in the Pacific theater during World War II. Am J Psychiatry 144:1210–1213, 1987 Hathaway SR, McKinley JC: Minnesota Multiphasic Personality Inventory–2. Minneapolis, University of Minnesota, 1989 Helzer JE, Robins LN, McEvoy L: Post-traumatic stress disorder in the general population: findings of the Epidemiologic Catchment Area survey. N Engl J Med 317:1630–1634, 1987 Holahan CJ, Moos RH: Life stressors, resistance factors, and psychological health: an extension of the stress-resistance paradigm. J Pers Soc Psychol 58:909–917, 1990 Hurst AF: Medical Diseases of War. London, Edward Arnold, 1940 Joseph S, Williams R, Yule W: Understanding Post-traumatic Stress: A Psychosocial Perspective on PTSD and Treatment. Chichester, England, Wiley, 1997 Kessler RC, Frank RG: The impact of psychiatric disorders on work loss days. Psychol Med 27:861–873, 1997 Kolb LC: A neuropsychological hypothesis explaining post-traumatic stress disorders. Am J Psychiatry 144:989–995, 1987 Kulka RA, Schlenger WE, Fairbank JA, et al: Trauma and the Vietnam War Generation. New York, Brunner/Mazel, 1990 Lees-Haley PR, Dunn JT: The ability of naïve subjects to report symptoms of mild brain injury, post-traumatic stress disorder, major depression, and generalized anxiety disorder. J Clin Psychol 50:252–256, 1994 Manton M, Talbot A: Crisis intervention after an armed holdup: guidelines for counselors. J Trauma Stress 3:507–522, 1991 March JS: What constitutes a stressor? The “criterion A” issue in PTSD, in Posttraumatic Stress Disorder: DSM-IV and Beyond. Edited by Davidson JRT, Foa EB. Washington, DC, American Psychiatric Press, 1993, pp 37–54 McCrae RR: Situational determinants of coping responses: loss, threat, and challenge. J Pers Soc Psychol 46:919–928, 1984 McFarlane AC: The aetiology of post traumatic morbidity: predisposing, precipitating and perpetuating factors. Br J Psychiatry 154:221–228, 1989

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Meichenbaum D: Stress Inoculation Training. New York, Pergamon, 1985 Metzner JL, Struthers DR, Fogel MA: Psychiatric disability determinations and personal injury litigation, in Principles and Practice of Forensic Psychiatry. Edited by Rosner R. London, Arnold, 1994, pp 232–241 Mitchell JT: When disaster strikes . . . The critical incident stress debriefing process. J Emerg Med Serv JEMS 8:36–39, 1983 Mollica RF, McInnes K, Sarajlic N, et al: Disability associated with psychiatric comorbidity and health status in Bosnian refugees living in Croatia. JAMA 282:433–439, 1999 Mollica RF, Sarajlic N, Chernoff M, et al: Longitudinal study of psychiatric symptoms, disability, mortality, and emigration among Bosnian refugees. JAMA 286:546–554, 2001 North CS, Nixon SJ, Shariat S, et al: Psychiatric disorders among survivors of the Oklahoma City bombing. JAMA 282:775–762, 1999 Olfson M, Fireman B, Weissman MM, et al: Mental disorders and disability among patients in a primary care group practice. Am J Psychiatry 154:1734–1740, 1997 Ormel J, VonKorff M, Ustun TB, et al: Common mental disorders and disability across cultures: results from the WHO Collaborative Study on Psychological Problems in General Health Care. JAMA 272:1741–1748, 1994 Overmier JB, Seligman MEP: Effects of inescapable shock upon subsequent escape and avoidance learning. J Comp Physiol Psychol 63:28–33, 1967 Pitman RK: Biological findings in posttraumatic stress disorder: implications for DSM-IV classification, in Posttraumatic Stress Disorder: DSM-IV and Beyond. Edited by Davidson JRT, Foa EB. Washington, DC, American Psychiatric Press, 1993, pp 173–189 Roca RP, Spence RJ, Munster AM: Posttraumatic adaptation and distress among adult burn survivors. Am J Psychiatry 149:1234–1238, 1992 Shore JH: The Mt Saint Helen’s stress response syndrome, in Disaster Stress Studies: New Methods and Findings. Edited by Shore JH. Washington, DC, American Psychiatric Press, 1986, pp 78–97 Slovenko R: Duty to minimize damages. Journal of Psychiatry and Law 26:579– 594, 1998 Social Security Administration: Disability Evaluation Under Social Security. SSA Publication #64-039. Washington, DC, U.S. Department of Health and Human Services, 1986 Solomon Z, Bleich A: Comorbidity of posttraumatic stress disorder and depression in Israeli veterans. CNS Spectrum 3(7):16–21, 1998 Speed N, Engdahl B, Schwartz J, et al: Post-traumatic stress disorder as a consequence of the POW experience. J Nerv Ment Dis 177:147–153, 1989 Speiser SM, Krause CF, Gans AW: The American Law of Torts, Vol 2. Deerfield, IL, Clark Boardman Callaghan, 1985 Stewart AL, Hays RD, Ware JE: The MOS Short-Form general health survey: reliability and validity in a patient population. Med Care 26:724–732, 1988 Tennant CC, Joulston KJ, Dent OF: The psychological effects of being a prisoner of war forty years after release. Am J Psychiatry 143:618–621, 1986

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van der Kolk BA: Psychological Trauma. Washington, DC, American Psychiatric Press, 1987 van der Kolk BA, Boyd H, Krystal J, et al: Post-traumatic stress disorder as a biologically based disorder: implications of the animal model of inescapable shock, in Post-traumatic Stress Disorder. Edited by van der Kolk BA. Washington, DC, American Psychiatric Press, 1984, pp 124–134 van der Ploeg HM, Kleijn WC: Being held hostage in the Netherlands: a study of long-term aftereffects. J Trauma Stress 2:153–169, 1988 Violanti JM: Scripting trauma: the impact of pathogenic intervention, in Posttraumatic Stress Intervention: Challenges, Issues, and Perspectives. Edited by Violanti JM, Paton D, Dunning C. Springfield, IL, Charles C Thomas, 2000, pp 153–165 Wolfe J, Keane TM, Kaloupek DG, et al: Patterns of positive readjustment in Vietnam combat veterans. J Trauma Stress 6:179–193, 1993 Zatzick DF, Marmar CR, Weiss DS, et al: Posttraumatic stress disorder and functioning and quality of life outcomes in a nationally representative sample of male Vietnam veterans. Am J Psychiatry 154:1690–1695, 1997 Zebo v Houston, 800 P2d 245 (Okla 1990) Zeiss R, Dickman H: PTSD 40 years later: incidence and person-situation correlates in former POWs. J Clin Psychol 45:80–87, 1989

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C H A P T E R

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PTSD in Employment Litigation Liza H. Gold, M.D.

Claims of emotional injury associated with the diagnosis of posttrau-

matic stress disorder (PTSD) have been encountered with increasing frequency in all types of litigation since the inclusion of this diagnosis in DSM-III (American Psychiatric Association 1980) (Simon 1995; Slovenko 1994; Sparr and Boehnlein 1990; Stone 1993). Employment litigation, which encompasses a wide array of highly complex legal, statutory, and administrative arenas, is no exception to this trend. Claims of PTSD are often made in relation to a broad spectrum of work-related circumstances, ranging from occupational injury and workplace violence to harassment and discrimination. Complaints against employers can be made under federal laws and regulations such as the Americans with Disabilities Act (ADA) (1990), Title VII of the Civil Rights Act (CRA) of 1964, or parallel state legislation or regulations, public or private disability insurance, workers’ compensation, or common law. Most federal claims also include allegations under state regulations and statutes, or tort theories such as violation of public policy or intentional infliction of emotional distress damages (McDonald and Kulick 2001). Employment-related litigation can result in significant compensation or awards for emotional losses, pain, or lost earning potential. Such litigation not infrequently results in huge legal fees, administrative and court costs, and lost work time for many employees. People are often less hesitant to bring a suit or claim against an employer than they would be against another individual. A large company or corporation in particular is easily perceived and portrayed as an impersonal entity that should bear responsibility for injustice or harm incurred in the workplace. Moreover, it is often believed that these companies can afford

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to pay large awards without incurring the significant financial loss that such damages would represent to an individual person. Mental and emotional injuries constitute the bulk of exposure in many types of employment litigation. For example, virtually every federal employment discrimination lawsuit now contains an allegation that the plaintiff suffered mental and emotional distress at the hands of the defendant employer (McDonald and Kulick 2001). PTSD is a favored diagnosis in such claims. A PTSD diagnosis carries a legal and moral implication that someone else is responsible for an event so overwhelming that anyone could develop a potentially severe psychiatric disorder as a result. In addition, an external injury is by definition the explicit cause of this disorder, supporting legal arguments regarding single and proximate causation of harm. Thus, the diagnosis serves to shift the focus of inquiry from the complainant to the employer and the workplace events. This may be particularly helpful to a plaintiff in cases in which the plaintiff’s behavior or negligence may decrease or remove the liability of the employer. Finally, a PTSD diagnosis implies a significant level of injury and related disability, which is essential in demonstrating entitlement to compensation or award of damages. However, the implications of single causation, liability, and disability that accompany a diagnosis of PTSD are often misleading in employment litigation. In claims arising from acts of workplace violence or physical injury due to accident, a diagnosis of PTSD and its implication of single causation may actually be relatively straightforward. Nevertheless, in many claims associated with a diagnosis of PTSD, such as wrongful discharge or harassment, the nature of the injury is less tangible. In these cases, a diagnosis of PTSD may imply a severe injury and provide a medically sanctioned expression of proximate cause, thus supporting plaintiff’s arguments regarding liability and compensation. It may also allow arguments regarding damages or compensation to focus simply on the existence of the diagnosis, rather than on the actual degree of current and future functional impairment. Employment-related claims of PTSD are often referred to psychiatrists for evaluation. Forensic experts may be asked to assess whether a diagnosis of PTSD is appropriate and accurate and, if so, its causation and the associated degree of current and future disability. Expert testimony or opinions are not necessary to establish certain aspects of claims of emotional injury in many types of employment litigation (McDonald 2001). However, expert evaluations may help either party involved in such litigation to prove or defend against claims of emotional harm. An expert’s diagnosis of a DSM disorder such as PTSD helps the plaintiff establish both the existence and the severity of emotional distress. Conversely, the defendant’s argument that the plaintiff has suffered very little or no emotional distress

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may be more convincing if supported by an expert’s testimony that the plaintiff has no diagnosable disorder or has only a minor and easily treated disorder. The focus of forensic evaluations of PTSD claims will differ depending on the nature of the legal claim. Considerable overlap exists in the various types of employment litigation. However, the relevant legal issues in any case may differ depending on the type of claim. For example, in tort and workers’ compensation claims, liability is not relevant, but causation is a critical and often hotly contested issue. In contrast, neither liability nor causation is relevant in public or private disability insurance claims. In these types of cases, the primary issues tend to be degree and duration of disability. Moreover, even when liability is not contested or as a matter of law is strictly assumed by the employer, the amount of the award or compensation in a claim of PTSD may depend on assessment of current and future functional impairment. A detailed examination of each type of employment litigation claim is beyond the scope of this discussion. The following case vignettes will provide examples how the relevant issues in forensic evaluations of PTSD differ depending on the type of litigation with which such claims are associated.

PTSD, Criterion A, and Causation in Employment Litigation Case 1 Ms. Smith has been head of the supply department in a hospital for 12 years and is the only female head of a department when a new CEO is hired. The new CEO is abrasive and sarcastic. He is also belittling when others fail to meet his expectations. Two months after his arrival, when Ms. Smith arrives late to a meeting, the CEO pointedly asks her to leave if she cannot be on time. Ms. Smith feels humiliated in front of her coworkers. She approaches the CEO to talk to him about her feelings regarding his management style. He yells at her that her department has been one of the worst offenders in terms of going over budget, and that he is not going to put up with her attitude or incompetence anymore, and then throws some papers at her. Ms. Smith is extremely upset. She consults a psychiatrist, who tells her that she has PTSD. Ms. Smith files a complaint with the Equal Employment Opportunity Commission (EEOC) and subsequently brings federal charges, claiming violation of Title VII and accompanying charges related to emotional injury. She charges that the CEO discriminated against her because of her sex and that, as a result of his behavior, she developed PTSD. Forensic evaluation determines that Ms. Smith does not meet the criteria for any DSM-IV disorder, including PTSD. Her allegation that the

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CEO’s throwing papers and yelling at her was a traumatic stressor could not be supported either subjectively or objectively. Her treating physician’s diagnosis of PTSD was not made on the basis of DSM criteria. Review of deposition testimony reveals that the new CEO treated everyone the same way. The hospital board received multiple complaints about him, and he was ultimately reprimanded for his management style. The forensic examiner comes to the conclusion that the dynamics of the workplace resulted in a stressful interpersonal conflict that Ms. Smith perceived as discrimination on the basis of gender.

Claims related to violation of antidiscrimination laws and statutes constitute a large portion of employment litigation. For example, discrimination based on mental impairments has come to account for the largest category of charges filed with the EEOC (Creighton 2001). Title VII of the CRA of 1964 banned discrimination based on race, color, religion, sex, or national origin. The ADA, passed in 1990, prohibits discrimination against persons with disabilities in all stages of the process of employment. However, prior to the CRA of 1991, plaintiffs in federal employment discrimination cases could not recover for emotional distress or other forms of compensatory damages. The CRA of 1991 provided plaintiffs the right to recover damages for emotional distress of up to $300,000 in addition to punitive damages and traditional remedies for lost wages and benefits and attorneys’ fees (McDonald 2001). The availability of compensatory damages, the passage of the ADA, and the increased awareness of sexual harassment in the workplace following the Clarence Thomas Supreme Court nomination hearings have resulted in a burgeoning of discrimination claims. Ms. Smith is required by law to first file her complaint with the EEOC. The EEOC may directly sue an employer for a violation on its own behalf, independent of any private plaintiff, or may sue on behalf of an individual plaintiff. It can also seek to join a lawsuit filed by a private individual. The Supreme Court has recently ruled that the EEOC may sue an employer and seek damages for alleged violations of an employee’s civil rights even when the employee has agreed to submit job disputes to arbitration (EEOC v. Waffle House 2002). Nevertheless, the EEOC litigates very few of the charges of discrimination it receives. In 2000, the EEOC litigated only 402 (0.5%) of the 79,896 charges of job discrimination (Lane 2002). If the EEOC determines that there is no reasonable cause to believe the charge is true, or if it chooses not to litigate, then the charging party will receive a “right-to-sue letter” (Lindemann and Kadue 1992; Strubbe et al. 1999). Receipt of this letter allows a complainant to file a private suit under federal laws as well as through other tort remedies. Discrimination claims are one form of litigation in which a claim of emotional injury or harm is not legally required to meet the criteria of a

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DSM diagnosis to be demonstrable. Emotional harm, in such cases, may be demonstrated in various ways, for example, as sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of selfesteem, excessive fatigue, or a nervous breakdown, as well as diagnosable disorders (Goodman-Delahunty and Foote 1995). One commonly used definition of emotional distress is “all highly unpleasant mental reactions, such as fright, nervousness, grief anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain” (McDonald 2001, p. 1). Moreover, the Supreme Court has ruled that a demonstration of emotional injury is not required for a plaintiff to recover monetary damages under Title VII (Harris v. Forklift Systems Inc. 1993). Nevertheless, claims of emotional harm routinely accompany such charges and often include an allegation of PTSD. Thus, psychiatrists are often asked to provide evaluations of such claims and to address issues of diagnosis, causation, and damages. Causation is a central issue in the determination of liability and damages in many types of employment litigation related to civil rights and common law. An award for emotional harm or entitlement to benefits is warranted only if there is sufficient causal connection between the employer’s actions and the complainant’s injury. One of the most critical aspects of a diagnosis of PTSD in employment litigation when causation is a legally relevant issue is that it implies single and obvious causality (see Simon, Chapter 3, in this volume). The issues of diagnosis and causation are intimately related in the diagnosis of PTSD. This relationship has sometimes resulted in the legal use of this diagnosis as “syndrome evidence.” Employment litigation related to claims of sexual harassment and assault, for example, frequently must be litigated in the absence of corroborative witness testimony and physical evidence. Such cases often come down to a “he said, she said” situation. A court may consider a diagnosis of PTSD equivalent to syndrome evidence when no other evidence of the alleged traumatic exposure exists. Thus, a diagnosis of PTSD may be disallowed as a means of proving the occurrence of any specific traumatic exposure. In Spencer v. General Electric Co. (1988), a rape victim sued under Title VII and state tort law, alleging that her supervisor had sexually harassed, assaulted, and raped her. The supervisor denied that any rape had taken place. The plaintiff offered into evidence a psychiatrist’s opinion that the plaintiff suffered from PTSD whose symptoms were consistent with exposure to the trauma of assault and rape. The court concluded that evidence of PTSD is not a scientifically reliable means of proving that a rape occurred, and testimony regarding PTSD was disallowed on this basis. Whether such evidence is allowed by the court or not, psychiatrists are obligated to carefully assess whether an individual has a diagnosis of PTSD.

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When causation is at issue, this assessment must include a specific evaluation of the traumatic event. Criterion A of the DSM definition of PTSD, which defines the subjective and objective elements of a traumatic exposure, is that part of the definition of PTSD that supports arguments of proximate causation. DSM-IV-TR (American Psychiatric Association 2000) provides examples of the types of events that, if experienced, witnessed, or learned of, meet criterion A’s definition of a traumatic stressor. Many events that may occur in the workplace easily fit the DSM-IV definition of a traumatic stressor. Certain types of occupational injury may result in PTSD. Workplace violence is increasingly common (Warchol 1998). Threats, physical intimidation, assaults, murder, and terrorist attacks can have extreme emotional consequences for victims and witnesses, including the development of PTSD. Extreme forms of sexual harassment, such as sexual assault and rape, will clearly meet the criteria of a traumatic stressor. A previously wellfunctioning individual with no prior psychiatric history or history of other traumatic experience can develop PTSD following such experiences (van der Kolk and McFarlane 1996). However, in employment litigation, PTSD is often alleged to have developed as a result of events that do not meet the DSM-IV definition of a traumatic stressor. In such cases, the evaluation of causation becomes more complex. People rarely develop PTSD without exposure to highly stressful events as presently defined by criterion A, unless they have preexisting vulnerabilities. Nevertheless, nontraumatic but distressful work-related events, such as unexpected job termination, most forms of discrimination or harassment, and interpersonal conflict, are claimed to have resulted in PTSD in otherwise healthy individuals. Clinicians who assess individuals involved in such workplace conflict often diagnose PTSD, mistaking the stress and distress that follows exposure to any adverse event for this disorder (Long 1994; Rosen 1995). Attorneys will use such assessments to argue that unfair treatment in the workplace is so stressful and psychologically harmful that it results in posttraumatic injury. Such arguments are motivated at least in part by the observation made by Simon (Chapter 3, in this volume): “When other psychiatric disorders are diagnosed, legal causation may be much more difficult to prove.” Psychiatrists who make a diagnosis of PTSD in such circumstances are often found to have ignored the criteria for the definition of a traumatic stressor. Ms. Smith’s case is a typical example of the inaccurate legal and psychiatric use of a diagnosis of PTSD. All traumatic experiences are indeed stressful; however, not all stress is traumatic. There is no doubt that Ms. Smith was very distressed and stressed by the events in her workplace and the interpersonal conflicts that accompanied them; people do not typically file formal charges or complaints lightly. However, even if the CEO’s behavior

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was motivated by gender discrimination and therefore constituted illegal sexual harassment, it does not meet the criteria of a traumatic exposure. When these errors are explained to the finder of fact, attorneys may be hard pressed to justify their arguments regarding proximate cause of injury. When a stressor does not meet the definition of a traumatic event, the evidence tends to support a finding that it is not the proximate cause (Slovenko 1994). DSM’s list of traumatic stressors was not meant to be exclusive. The development of PTSD following low magnitude and atypical stressors is reported in the professional literature. Some individuals under certain circumstances can develop PTSD without meeting the stressor criterion. For example, exposure to multiple events appears to increase the risk for the development of PTSD, even if the last stressor does not meet all the elements of criterion A. The more vulnerable the victim, the less severe is the stressor needed to precipitate PTSD (Simon 1995). Typically, however, the further the traumatic event strays from acknowledged criterion A traumatic stressors, the greater the burden for demonstrating both the subjective and objective traumatic nature of the exposure. Psychiatrists should thoroughly evaluate all claims of traumatic exposure, including atypical DSM events such as harassment, discrimination, or wrongful termination. Nevertheless, most sexual and gender-based harassment experiences are more akin to the daily frustrations of life than to traumatic events (Fitzgerald et al. 1997). The same is generally true of other forms of discrimination or job frustration. Such experiences are more realistically conceptualized as a particularly noxious form of occupational stress (Fitzgerald et al. 1997). They may result in emotional distress, sometimes rising to the level of certain diagnosable mood or anxiety disorders. However, such experiences do not typically meet the definition of a criterion A stressor. Such events are therefore unlikely to be the direct cause of PTSD in an individual with no prior trauma exposure or preexisting vulnerability. Generally speaking, an individual must meet all the DSM-IV criteria of PTSD for an accurate diagnosis of PTSD to be made. The exercise of clinical judgment may justify assigning a given diagnosis even though the clinical presentation falls just short of meeting the full set of DSM criteria, particularly if the symptoms that are present are persistent and severe (American Psychiatric Association 1994). It is well documented that individuals can develop many of the symptoms of PTSD after exposure to a traumatic event without meeting DSM-IV’s requisite number of symptoms for a formal diagnosis of PTSD. Such individuals may be diagnosed with “subthreshold PTSD” (Schutzwohl and Maercker 1999; Weiss et al. 1992). For example, an individual who demonstrates only two criterion C avoidance symptoms, rather than the requisite three, may be considered to have subthreshold PTSD if he or she meets all the other criteria. However, the

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use of a diagnosis of subthreshold PTSD should be limited to deviations in criteria B, C, and D, which define the number and kind of symptoms associated with PTSD, as opposed to deviations in criterion A, the definition of a traumatic stressor and traumatic stress response. When the traumatic stressor alleged to be the cause of PTSD does not meet the criterion A definition, examiners must consider other possible explanations for the symptom presentation, even symptoms consistent with a diagnosis of PTSD. For example, the events that occurred involving Ms. Smith did not constitute a criterion A traumatic exposure. If she had, nevertheless, met all the other symptom criteria for PTSD, the forensic examiner must consider the possibility that she had preexisting PTSD or other disorder. Many Axis I diagnoses commonly occur in the general population. PTSD itself has a lifetime prevalence of 7%–12% (Kessler et al. 1995). Preexisting illness may result in a recurrence of symptoms following a workplace stressor and is also a risk factor associated with the increased likelihood of developing PTSD following exposure to trauma (Breslau 2001; Yehuda and Wong 2001). Ms. Smith might also have been exposed to an alternative criterion A traumatic stressor, either before or concurrent with the workplace events in question. Approximately 40%–90% of adults in the community have been exposed to trauma (Yehuda and Wong 2001). Attorneys may use such information to argue either for or against the plaintiff’s claims. Regardless of legal arguments, if Ms. Smith’s diagnosis of PTSD was accurate, a determination of causation would certainly be less straightforward than the obvious causation implied by the diagnosis of PTSD associated with her claim of gender-based discrimination. Claims of PTSD resulting from atypical traumatic stressors underscore the need for psychiatrists to refrain from assuming a causal relationship between an alleged event and the development of PTSD in employment litigation. No diagnosis, including that of PTSD, definitively establishes proximate causation in litigation, even in cases where exposure to more typical traumatic experiences has occurred. Psychiatrists should always consider the possibility that an individual making a claim of PTSD might have a past or concurrent alternative trauma exposure or a preexisting illness. An individual with such a history may also have a more profound reaction to stressful events or conflict and may develop a recurrence or new onset of PTSD after exposure to a minor stressor. The presence of a disorder predating the onset of a new diagnosis of PTSD or exposure to an alternative trauma will make proof of a causal connection between the employment events and the mental injury more difficult. However, failure to consider these possibilities may result in the false attribution of current symptoms to the traumatic event being litigated or failure to consider apportionment of causation.

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Workers’ Compensation and Causation Case 2 Ms. Jones is a 32-year-old woman who works as a midlevel supervisor at a manufacturing facility. She has a diagnosis of PTSD resulting from childhood abuse by her violent and alcoholic father and has been in treatment for many years. Her disorder has never affected her functioning and never resulted in any work-related impairments. A male employee comes to work one day intoxicated and begins to disrupt the workplace. While trying to address the situation, Ms. Jones is shoved by the intoxicated employee, falls down, and sustains a minor head injury. Ms. Jones brings charges for assault and battery against the co-worker. However, after the incident, her PTSD worsens. Ms. Jones is unable to tolerate the stress of even routine work activities and is clearly no longer able to supervise others. She becomes suicidal and requires repeated hospitalization. Forensic examination finds that Ms. Jones is now beset by panic attacks, flashbacks, and intrusive images of both the recent incident and past trauma. Despite appropriate treatment, these symptoms persist and when frequent or intense, trigger suicidal ideation. Although Ms. Jones has the option of filing a civil suit against her employer, she does not believe she could tolerate the stress of prolonged litigation. She therefore chooses to file a workers’ compensation claim. Ms. Jones’s employer claims that so minor an event in the workplace should not have resulted in such severe symptoms and dysfunction. He argues that Ms. Jones’s preexisting PTSD obviously made her so sensitive to stress that her illness would have worsened anyway. However, review of her personal, employment, and psychiatric history demonstrates no other sources of stress that would account for the severe deterioration in her functioning. Despite her well-established history of PTSD, Ms. Jones receives workers’ compensation benefits.

Workers’ compensation is a no-fault system that was designed to provide medical treatment, disability benefits, and, if necessary, rehabilitation services for workers who have suffered a work-related injury or illness. Tort law may provide awards for any and all losses associated with an injury. In contrast, workers’ compensation provides payments intended only to compensate for lost wages and associated medical costs due to disability. To receive benefits, workers must typically demonstrate that they have suffered an unanticipated or “accidental” event that results in injury or disability and that has arisen out of and in the course of employment. Compensation usually requires medical documentation of the claimant’s injury or illness and its effects. If any part of the worker’s claim alleges emotional stress or the presence of a mental disorder, the claimant is commonly referred for evaluation to a mental health professional. Individuals who file a workers’ compensation claim typically waive their rights to file civil claims. In doing so, however, they also generally

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avoid the prolonged and stressful process often associated with civil litigation. In contrast with tort law, workers’ compensation ignores the potential fault of the injured party and instead provides compensation for all injuries, provided that they arose out of employment. If employees are able to demonstrate their claims, they are guaranteed to receive benefits that are specified by statute and case law and are based on a fixed schedule. Nevertheless, to be compensable, the injury must be related to earning power. Thus, certain types of injuries that might be compensable in tort law, such as pain and suffering, have been held noncompensable under workers’ compensation. Examiners providing evaluations in workers’ compensation cases should understand that the “no-fault” component of such claims indicates only that a finding of fault or liability is not required as a prerequisite to awarding benefits. All other aspects of a workers’ compensation claim may be and often are disputed and litigated. One obstacle frequently encountered in claims of psychological injury is the historical reluctance of the workers’ compensation system to accept claims of “mental injury.” The success of a such a claim often depends on its character. Mental injury claims are typically divided into three categories. In a physical-mental claim, a physical injury is alleged to have led to an emotional injury, such as a head injury leading to depression. In a mental-physical claim, an emotional problem is said to have led to a physical problem, such as stress leading to heart attack. Mental-mental injuries, such as stress resulting in a psychiatric disorder, may be more difficult to demonstrate. In addition, recovery for these injuries is limited in ways that recovery for physically related injuries is not (Melton et al. 1997). Another obstacle to the success of a workers’ compensation claim based on emotional or psychological injury is the question of whether the injury arose “out of and in the course of employment.” The employee must establish a causal relationship between the employment and the injury. This issue is often the center of dispute and litigation in workers’ compensation cases. Most jurisdictions now allow that the only connection of the employment with the injury is that it occur within the time and place of employment. However, when a mental disorder is claimed, the causal relationship between the psychiatric disorder and the workplace may be more easily contested. An employer may argue that the worker’s emotional condition was not caused or aggravated by the work but rather was the result of events or preexisting psychiatric history unrelated to his or her employment. The use of a diagnosis of PTSD overcomes a variety of legal obstacles encountered by individuals filing workers’ compensation claims beyond its implication of a direct causal connection with a workplace event. PTSD also often includes symptoms that are construed as physical rather than men-

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tal injury, such as insomnia, thus reducing the suspicion associated with a purely mental-mental claim. In some states, workers’ compensation for mental injury is limited by qualifying the definition of an acceptable stimulus causing injury to a sudden stimulus, such as fright or shock, rather than routine job stress. PTSD is, by definition, not caused by the ordinary stresses and strains of employment and will meet this requirement. Another method of limiting compensation for claims of emotional injury used in workers’ compensation acts is raising the causation threshold for a workrelated injury. For example, California law provides that when the injury results from being a victim or witness of a violent act, the event must be responsible for at least 35%–40% of the causation, considering all causes combined (Melton et al. 1997). The implication of single and obvious causality of a PTSD diagnosis is helpful in meeting this requirement as well. Nevertheless, Ms. Jones’s preexisting PTSD makes a demonstration of causation of her psychiatric symptoms and functional decompensation with the workplace more difficult. If a workplace injury aggravates or accelerates an existing disease, the worker is entitled to compensation. However, if the injury was not caused, aggravated, or accelerated by the workplace but existed and worsened independently of work, the claimant is not entitled to compensation (Melton et al. 1997). Clearly, Ms. Jones’s PTSD was caused not by the events in the workplace but by distant childhood events. However, the confrontation and relatively mild physical injury that “arose out of the course of her employment” appear to have been the “straw that broke the camel’s back.” The workplace events precipitated a deterioration from a manageable illness that did not affect functioning to a severe disorder associated with significant impairment. Thus, Ms. Jones was entitled to and received benefits.

PTSD, Functional Impairment, and Damages in Employment Litigation Case 3 Mr. Black’s co-worker, Ms. White, has been involved in a difficult divorce from her abusive husband. Mr. White has been calling the workplace daily, threatening both Ms. White and Mr. Black, whom Mr. White knows to be his wife’s friend. Ms. White and Mr. Black report the threats to the Human Resources department. The company makes no response and takes no action. Shortly thereafter, Mr. White shows up at the workplace with a gun. He kills Ms. White and two other co-workers before killing himself. Mr. Black was able to hide under a desk and so was unharmed. However, he witnessed all three murders as well as Mr. White’s suicide. Mr. Black files a suit for negligence and wrongful infliction of

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emotional distress against his employer. He claims that he has developed PTSD. He also asks for a large award of damages, claiming that he is no longer able to work because he can no longer feel safe from serious harm in any employment environment. Mr. Black’s psychiatric evaluation reveals that he does meet the criteria for a diagnosis of PTSD causally related to the violence at the workplace. He has not received treatment for his disorder. Mr. Black also has a specific phobia regarding returning to the site of the violence. However, this phobia does not appear to be generalized. Mr. Black does not have difficulty going anywhere else, including other environments where people are working. Although other symptoms of PTSD are present, no other work-related areas of functioning are affected. The examiner concludes that Mr. Black’s prognosis is good, assuming appropriate treatment is obtained, given the lack of complicating factors, the lack of previous psychiatric history, good premorbid functioning, and a good employment history.

In this case, the employer was held liable, but the damage award was significantly less than that sought by the plaintiff. This reduced award was based in part on the expert psychiatrist’s opinion that Mr. Black’s sole work disability was related to returning to the site of the violence and that he was otherwise not disabled. In addition, Mr. Black had not yet received treatment. His symptom presentation was such that, assuming appropriate treatment, he should be able to regain a good part, if not all, of his working capacity, despite his claims to the contrary. Even if Mr. Black remained phobic as to the specific site of the incident and had some residual PTSD symptoms, his work-related functioning would not be significantly affected. Translating specific impairments directly and precisely into functional limitations and determining the prognosis of a disorder is a complex process, regardless of diagnosis. When PTSD is alleged, psychiatrists must first determine the relevant definition of disability at issue. They must then make a specific assessment of functional impairment and disability related to PTSD, structured to meet the requirements of the type of litigation involved. These assessments must consider a multitude of factors, including those related to treatment and prognosis. An opinion that an individual has a disability or impairment related to PTSD must correlate the impairment to the specific work function that is affected. Degree of impairment and disability are critical legal issues in almost all types of employment litigation or claims. In workers’ compensation, the benefit schedule hinges on the degree of disability and, specifically, how the impairment affects earning capability. Under Social Security Disability Insurance (SSDI) regulations, an individual will not be eligible for public insurance benefits unless the impairment is so severe that the claimant is unable

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to engage in any substantial gainful work. In federal and tort law, an individual’s level of impairment is the aspect of any psychiatric disorder most closely associated with assessment of damages (McDonald and Kulick 2001). Expert testimony in regard to diagnosis and associated disability is often a guide to the amount of damages that the complainant may recover. For example, in the case cited earlier (see “PTSD, Criterion A, and Causation in Employment Litigation”), Spencer v. General Electric Co. (1988), although expert testimony that the plaintiff had PTSD was excluded as proof that the rape actually occurred, it was, nevertheless, admitted to establish damages. However, claims for emotional injury unaccompanied by physical injury have historically been viewed with suspicion by the legal system (Shuman 1995). Demonstrating that emotional distress has resulted in a disability has certain inherent difficulties. As a result, proof of emotional distress damages or entitlement to benefits will often involve psychiatric evaluation and testimony (McDonald 2001). In some employment cases, a diagnosis is a threshold requirement for compensation. In SSDI claims, for example, a diagnosis of PTSD establishes that the claimant has a “listed” or acknowledged mental impairment, without which further assessment of disability will not go forward. A psychiatric diagnosis may not be necessary to establish damages or entitlement in all types of employment litigation. Nevertheless, it may be difficult for a claimant to justify a claim of extreme distress or impairment due to emotional injury if the symptoms complained of do not meet DSM criteria for a psychiatric diagnosis such as PTSD. For example, claims of “wrongful infliction of emotional distress” often accompany federal complaints. To obtain direct recovery in claims of intentional infliction of emotional distress (IIED) or negligent infliction of emotional distress (NIED), the plaintiff must prove that he or she has suffered severe emotional distress. Such claims must also generally be accompanied by objective symptomatology for the plaintiff to prevail. A diagnosis of PTSD arguably establishes the existence of a severe and compensable psychic injury for purposes of both types of claims. The substantial incidence of PTSD following traumatic events supports arguments regarding foreseeability, the most liberal standard for direct and indirect injury in an NIED claim. The “physical” symptoms of PTSD, such as sleep disturbance, loss of appetite, and exaggerated startle response, satisfy the law’s desire, if not the requirement, that such claims be accompanied by objective, “physical,” symptoms. Finally, a PTSD diagnosis is often used to infer a significant degree of disability. All of these aspects of PTSD helped Mr. Black present his case for NIED. A diagnosis of PTSD may indeed involve impairment in functioning. However, this is not always the case. Diagnosis is only one factor that must

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be considered in assessing the severity and possible duration of an impairment or disability (American Medical Association 2000). The assignment of a particular diagnosis does not imply a specific level of impairment or disability (American Psychiatric Association 2000). More information besides diagnosis is needed to establish disability or impairment (Gold 2002; Halleck et al. 1992). Diagnoses will provide guidance for assessing the types and extent of an individual’s impairment, since a given illness may be more typically associated with certain types of impairments. Nevertheless, impairments, abilities, and disabilities vary widely within each diagnostic category. Loss of function may be greater or less than a given diagnosis might imply, and an individual’s performance may fall short of or exceed that usually associated with that diagnosis. The degree of functional impairment is not even necessarily directly proportional to the severity of the disorder, even PTSD. Therefore, no level of disability should be directly or indirectly associated with a diagnosis of PTSD. Among all persons with mental conditions, persons with anxiety disorders such as PTSD were found to have employment rates that are comparable to those of persons without anxiety related symptoms (Pryor 1997). Mr. Black claimed total impairment on the basis of his PTSD, supporting his claim for a high damages award. Rarely, however, is a person totally impaired, either physically or mentally (see Simon, Chapter 3, in this volume). The condition of the claimant before and after the occurrence of the incident in question or the onset of PTSD must be compared. This provides information that is significantly more informative in the assessment of disability than is any diagnosis alone. The strongest predictor of work outcomes for individuals with mental illness is not diagnosis, but, rather, previous employment history and work-adjustment skills. Nevertheless, some individuals who develop PTSD, particularly PTSD resulting from employment-related events, may develop symptoms that severely compromise one or more aspects of their work functioning. Thus, an assessment of work disability requires that examiners first determine whether the individual has a work-related impairment caused by PTSD. The possibility that impairment may be due to other problems, such as concurrent illnesses (e.g., substance abuse or depression), or the stress of litigation should be considered. Malingering to obtain a damage award or disability benefits and degree of motivation for improvement must also always be considered. In addition, individuals engaged in employment litigation are often no longer working. Certain secondary effects, including financial, marital, and social difficulties, often occur because of the lack of the various beneficial aspects of work. The examiner must distinguish impairment that is a response to PTSD from secondary consequences of not working (Goodman-Delahunty and Foote 1995).

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If an impairment due to PTSD is identified, psychiatrists must then determine whether the impairment results in one or more specific disabilities. This determination may be informed by the requirements of the type of litigation involved. An individual might be disabled for purposes of entitlement to workers’ compensation benefits or private disability insurance but may not be disabled according to SSDI criteria. For example, some types of private disability insurance allow that an individual is entitled to benefits if he or she cannot perform any function necessary to his or her profession. However, under SSDI regulations, an individual will not be eligible for public insurance benefits unless the impairment is so severe that the claimant cannot work at his or her former job or any other type of gainful employment. Moreover, a demonstration of such severity for purposes of an SSDI claim requires a structured evaluation of four areas: restriction of activities of daily living; difficulties in maintaining social functioning; deficiencies of concentration and persistence, resulting in failure to complete tasks; and episodes of deterioration or decompensation in work or worklike situations that cause the individual to withdraw from that situation or experience exacerbation of signs and symptoms (American Medical Association 2000). The evaluation of disability related to PTSD must also include an assessment of the severity of symptoms, the effect of those symptoms in all spheres of the claimant’s functioning, and the likely effects of treatment. The relationship between impairment and disability depends on the abilities and functional limitations of the individual as well as on the employment environment and the demands of particular job (Bonnie 1997). An assessment of the ability to perform activities at work requires the evaluation of those particular abilities, along with the unique skills of the individual and requirements and flexibility of the workplace. Symptoms such as decreased concentration and explosive outbursts might limit vocational and social activities. If the PTSD resulted from a work-related accident, the claimant may have a phobia that could be disabling. Inattentiveness, lack of concentration, and generalized anxiety may impair work performance and result in disability. In dangerous industrial work settings, workers suffering from such symptoms may endanger not only themselves but also co-workers. When physical injury and PTSD coexist, chronic pain or physical incapacity may prevent a return to work. Although such an evaluation may establish current disability, examiners are frequently asked for opinions regarding future degree of recovery or disability. Duration of impairment may also be a significant factor in the determination of damage awards or entitlement to benefits. By definition, the majority of PTSD cases meet the DSM definition of chronicity, that is, duration of symptoms of 3 months or longer (Breslau 1998). Nevertheless, improvement is common, both for chronic and acute PTSD. Most pro-

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spective studies suggest that after a traumatic experience, many individuals show a spontaneous, gradual diminution of symptoms over months to years (Breslau 2001; Kessler et al. 1995; Shalev and Yehuda 1998). Prognostic assessments require a careful review of the mental disorder, the history of the individual’s ability to function over time, his or her response to treatment or rehabilitation, and the influence of other work- and nonwork-related factors (Brodsky 1987). A good prognosis for a diagnosis of PTSD is predicted by a rapid onset and short duration of symptoms (less than 6 months); good premorbid functioning; strong social supports; the absence of other psychiatric, medical, or substance-related disorders; and good response to treatment. Assessments of disability or impairment in many types of employmentrelated litigation may not be required to be as structured as SSDI evaluations. In addition, in many types of claims, a specific standard of disability may not be specified. Nevertheless, the use of a structured exam format may still provide a degree of objectivity that can support conclusions regarding degree of disability. Psychological testing can be an important adjunct in this process and may provide useful additional data, particularly regarding cognitive impairments such as those of attention, comprehension, or memory. Assessment of functional impairment related to disability should also include use of one or more of the widely available scales designed for this purpose (Gold and Simon 2001). These include the rating scales found in the American Medical Association (2000) Guides to the Evaluation of Permanent Impairment, the Global Assessment of Functioning (GAF) Scale (American Psychiatric Association 2000), and the Social and Occupational Functioning Assessment Scale (SOFAS; American Psychiatric Association 2000). The ways in which such impairment-rating guidelines apply to the evaluation of mental impairments has not been systematically examined (Pryor 1997). Nevertheless, the use of such scales minimizes the influence of examiners’ biases related to beliefs regarding the differences between “can’t work” and “won’t work.”

Before Litigation: PTSD and the Americans with Disabilities Act Case 4 Mr. Mitchell, a security guard working alone on a night shift, is physically assaulted during an attempted robbery. After the assault, he develops a paralyzing anxiety about being alone at night. His physical injuries are such that Mr. Mitchell probably could receive workers’ compensation or SSDI benefits; however, he wants to return to work. When he is physically able to do so, he invokes the protection of the ADA. He advises his

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employer that he has PTSD and requests accommodation for this disability by not being assigned to work the night shift anymore. Management knows that this will create bad feelings among the other security staff, because the night shift is the least desirable assignment and not optional. The employer refers Mr. Mitchell for psychiatric evaluation to determine diagnosis and degree of impairment and to see if any other types of accommodation can be recommended. Evaluation reveals that Mr. Mitchell meets the DSM-IV-TR criteria for a diagnosis of PTSD. His anxiety regarding remaining alone at night occurs both at home and at work. This significant impairment has resulted in a work-related disability, since Mr. Mitchell’s job specifically requires that he work alone at night. The psychiatrist also determines that although Mr. Mitchell has received some nonspecific counseling for his anxiety, he has not received appropriate medication or behavior therapy. The psychiatrist advises the employer that if Mr. Mitchell were to work the night shift in his current state, he would experience an exacerbation of his PTSD, leading to further deterioration of function. The psychiatrists believes that from a psychological perspective, an accommodation that involves avoidance of the night shift is appropriate. However, the psychiatrist also suggests that the employer consider offering medical leave with benefits and directing Mr. Mitchell toward appropriate treatment. If treatment were effective, Mr. Mitchell might be able to return to his job without the need of a disruptive accommodation. Moreover, a review of Mr. Mitchell’s employment history reveals other work skills. The psychiatrist recommends that the employer discuss an accommodation with Mr. Mitchell that involves reassignment to another job that can utilize these skills and that does not require a night shift while treatment is obtained. If Mr. Mitchell still desires to return to work as a security guard, the psychiatrist recommends reevaluation after Mr. Mitchell receives treatment.

This case provides an example of an employment-related psychiatric evaluation that takes place before litigation is involved. The ADA was designed to enable individuals with disabilities to work. People who invoke the protection of the ADA are typically seeking to maintain employment. An employer may not be able to require disabled employees to obtain treatment to keep their jobs (Creighton 2001). Mr. Mitchell could refuse the recommended accommodations and treatment, continue in his untreated state, and file a complaint with the EEOC, alleging discrimination under the ADA. Nevertheless, unlike individuals with other types of employment claims in which they are seeking compensation because they cannot work, individuals invoking the ADA are often attempting to remain in the work force. Such individuals may be highly receptive to suggestions regarding treatment. By affirming Mr. Mitchell’s impairment and offering a possible solution to the problem, the psychiatrist was able to assist both the company and Mr. Mitchell.

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Companies refer individuals for psychiatric evaluation under circumstances such as those described here in an attempt to determine the nature of their legal obligations under the ADA. The ADA requires employers to provide a reasonable accommodation to enable a qualified individual with a disability to perform essential job functions, unless such an accommodation imposes an undue hardship on the employer. Such an evaluation may help avert a confrontation that can lead to a claim of discrimination on the basis of a mental disability. It may also result in suggestions that can improve the mental health of the employee and facilitate the continued employment of a valuable worker. However, employers attempting to meet ADA requirements are faced with difficult decisions in regard to individuals with mental or emotional disorders. The ADA’s regulations were designed to apply to physically disabled workers. Adapting its regulations to mental disabilities has created challenges for employers. Providing a ramp to facilitate access for someone who needs a wheelchair is straightforward; providing a “less stressful” environment, for example, for someone with a psychiatric disorder is less so. Moreover, unlike many physical disabilities, identifying a mental disability itself may be difficult. How can an employer tell whether an individual’s poor job performance or workplace misconduct is due to a psychiatric illness that must be accommodated or to poor work and interpersonal skills that require discipline? Psychiatrists are generally not in a position to offer opinions on many of the issues raised when the ADA is invoked for a mental disability. For example, the ADA’s protection is limited to individuals with a disability. The ultimate determination of whether a particular condition is a “disability” covered under the ADA is a complex legal process that requires a multistep analysis. A diagnosis of PTSD made according to DSM-IV-TR (American Psychiatric Association 2000) criteria by a qualified mental health professional will meet the definition of a mental impairment under the ADA. However, some courts have found that PTSD is not substantially limiting for purposes of the ADA (Creighton 2001). A variety of other issues related to legal disability, substantial limitation or impairment, and reasonable accommodation are subject to legal dispute. Nevertheless, employers will often ask psychiatrists to provide opinions regarding whether a limitation is substantial or whether a requested accommodation is reasonable, despite the fact that many disagreements on these issues cannot be settled by psychiatric opinion. Indeed, such differences of opinion form the basis of much ADA-related litigation and must be settled by the courts. However, psychiatric opinions can provide valuable information in ADA-related assessments. Once an employee makes a request for accommodation, the employer must engage in an “interactive process.” The em-

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ployer and employee are required to work together to clarify what the disabled individual needs and to identify the appropriate reasonable accommodation as quickly as possible. Any unnecessary delay in addressing the request for accommodation may create liability. Psychiatric assessment, including a diagnostic evaluation, assessment of functional impairment and disability, and, if requested, recommendations for accommodation, may therefore become part of the interactive process. This information can assist both employer and employee in coming to a determination regarding what is in the best interest of both parties as they engage in the required negotiations regarding reasonable accommodation. Under the best of circumstances, these psychiatric opinions help realize the goals of the ADA. The employee is able to remain in the work force, and the employer retains the employee’s services (and avoids formal charges of discrimination which can lead to costly litigation.) As in all types of employment litigation, diagnostic assessment requires adherence to the DSM-IV-TR criteria. However, as noted earlier, a diagnosis of PTSD alone is not enough to prove the existence of a disability for the purposes of the ADA. By statutory definition, a covered disability is one that substantially limits one or more major life activities as a result of a physical or mental impairment. (Individuals may also qualify for protection if they have a record of such impairment or of being regarded as having such impairment). A recent unanimous Supreme Court decision (Toyota v. Williams 2002) narrowed this definition even further: the claimed disability must have a substantial effect on a person’s daily life, and not just a workrelated function, to qualify for protection under the ADA. Thus, the psychiatrist must focus evaluation on the degree of dysfunction due to the diagnosis of PTSD and how the dysfunction affects all spheres of the individual’s functioning. In Kvintus v. R. L. Polk & Co. (1998), for example, a plaintiff who suffered from PTSD (among other disorders) claimed that he had slept on average less than 4 hours a night for the last 30 years. The court concluded that neither the plaintiff nor his doctor had demonstrated how his lack of sleep interfered with the plaintiff’s work or any other activities. Thus, his claim of discrimination on the basis of a disability was denied. The legal determination of whether a disability creates a substantial limitation for the purposes of the ADA requires that the psychiatrist provide a careful assessment of the individual’s functioning in all spheres. Moreover, a determination of occupational disability and accommodations that might allow the individual to compensate for this impairment will depend on the job requirements as well as the individual’s symptomatology. For example, PTSD symptoms related to isolation or avoidance may not create a work-related impairment in an individual who works out of the home and does not need to interact with others on a regular basis. However,

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symptoms of irritability and outbursts may create a work-related impairment in an individual who has to deal with the public. Flashbacks, intrusive images, and panic attacks in a heavy equipment operator might result in a work-related impairment that endangers the safety of the employee and others. Finally, the psychiatrist may also make recommendations regarding accommodations for an employee with PTSD. These recommendations must be based on clinical judgment regarding the individual’s symptoms and severity of PTSD, and informed by an understanding of the individual’s work situation. From a legal standpoint, reasonable accommodations for persons with mental disabilities may include restructuring the job, modifying work schedules (including offering a change to part-time), acquiring or modifying equipment, changing test or training materials, reassigning to a vacant position, or providing unpaid leave (Creighton 2001). In the case of Mr. Black, most courts have been unreceptive to claims that inability to work a night shift is a substantial limitation. An employer is not obligated under the ADA to create a day-shift-only position for an employee with a disability. Nevertheless, psychiatrists should make any suggestions regarding accommodations that they feel might assist in maintaining the individual’s employment. Individuals who remain in the work force provide for themselves and their families, which benefits the individuals, their employers, and society. Psychiatrists, therefore, potentially provide an invaluable service by offering recommendations for treatment and suggestions for accommodation, without regard to the legal arguments that might accompany them. Whether such accommodations are implemented is up to the employer or, ultimately, the courts.

Conclusion Psychiatric experts evaluating claims of PTSD and work-related disability in employment claims or litigation must make specific assessments of the circumstances alleged in each claim. Accuracy of diagnosis, causation, and associated disability must be thoroughly assessed. True traumatic injury resulting in PTSD may occur in the workplace. PTSD may also result in work-related disabilities that entitle a claimant to compensation either in the form of damages in tort litigation or as benefits derived from workers’ compensation or public or private disability insurance. However, any diagnosis, including one of PTSD, must be made according to DSM criteria. In claims of PTSD, this includes the requirement that the claimant be exposed to a criterion A traumatic stressor. Many of the experiences alleged

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to be traumatic stressors in employment litigation are stressful and upsetting. However, many are not traumatic stressors that can result in the development PTSD in the absence of some vulnerability. Examiners cannot assume the obvious causation implied by a claim of PTSD and must evaluate the possibility of alternative trauma exposure or preexisting illness. In addition, disability assessments in claims of PTSD must be undertaken specifically with regard to the unique circumstances of every individual case. Degree of disability cannot be inferred on the basis of a diagnosis of PTSD alone. A diagnostic label does not by itself provide sufficient information as to how the claimant has been affected and whether he or she will be permanently or temporarily disabled. The claimant’s degree of impairment and the relationship of impairment to disability must be considered in light of occupation, degree of illness, response to treatment, prognosis, and motivation for recovery, among other factors. Past and present functioning must be compared, and the role of personal, family, or occupational support or conflict in ameliorating or exacerbating disability must also be assessed. The following guidelines are suggested to assist in evaluating claims of PTSD in employment litigation: 1. Determine the legal issues and standards relevant to the type of litigation, and structure the evaluation accordingly. 2. Establish or refute a diagnosis of PTSD based on DSM-IV-TR criteria, with particular attention to criterion A. The individual must have experienced both the requisite objective traumatic exposure and the subjective traumatic response. 3. Base opinions regarding causation on a thorough evaluation of the incident in question as well as on prior psychiatric and trauma history. Carefully consider the possibility of preexisting disorder and past or present alternative trauma exposure. 4. Base opinions regarding disability on a comparison of the individual’s level of functioning before and after the onset of PTSD. Such a comparison requires correlation of the individual’s PTSD-related symptom that creates the impairment to the specific area of work functioning affected. 5. Use standard methods of forensic and clinical assessment in determining diagnosis and causation and in evaluating the level of functional psychiatric impairment of PTSD claimants. These methods include supporting opinions with documented evidence from review of records, testing when indicated, using standardized scales when available, and personally evaluating the claimant.

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References American Medical Association: Guides to the Evaluation of Permanent Impairment, 5th Edition. Chicago, IL, American Medical Association, 2000 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 3rd Edition. Washington, DC, American Psychiatric Association, 1980 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition. Washington, DC, American Psychiatric Association, 1994 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 Bonnie RJ: Work disability and the fabric of mental health law: an introduction, in Mental Disorder, Work Disability and the Law. Edited by Bonnie RJ, Monahan J. Chicago, IL, University of Chicago Press, 1997, pp 1–12 Breslau N: Epidemiology of stress and posttraumatic stress disorder, in Psychological Trauma. Edited by Yehuda R. Washington, DC, American Psychiatric Press, 1998, pp 1–29 Breslau N: Outcomes of posttraumatic stress disorder. J Clin Psychiatry 62 (suppl 17): 55–59, 2001 Brodsky CM: Factors influencing work-related disability, in Psychiatric Disability: Clinical, Legal and Administrative Dimensions. Edited by Meyerson AT, Fine T. Washington DC, American Psychiatric Press, 1987, pp 49–65 Creighton MK: Mental disabilities under the Americans with Disabilities Act, in Mental and Emotional Injuries in Employment Litigation, 2nd Edition. Edited by McDonald JJ, Kulick FB. Washington, DC, Bureau of National Affairs, 2001, pp 659–776 EEOC v. Waffle House, Supreme Court No 99-1823 (2002) Fitzgerald LF, Dragow F, Hulin DL, et al: Antecedents and consequences of sexual harassment in organizations: a test of an integrated model. J Appl Psychol 82: 578–589, 1997 Gold LH: Psychiatric diagnoses and the retrospective assessment of mental states, in Retrospective Assessment of Mental States in Litigation: Predicting the Past. Edited by Simon RI, Shuman DW. Washington DC, American Psychiatric Press, 2002, pp 335–367 Gold LH, Simon RI: Posttraumatic stress disorder in employment cases, in Mental and Emotional Injuries in Employment Litigation, 2nd Edition. Edited by McDonald JJ, Kulick FB. Washington, DC, Bureau of National Affairs, 2001, pp 502–573 Goodman-Delahunty J, Foote W: Compensation for pain, suffering and other psychological injuries. Behav Sci Law 13:183–206, 1995 Harris v. Forklift Systems Inc, 510 U.S. 17, 114 S Ct 367 (1993) Halleck SL, Hoge SK, Miller RD, et al: The use of psychiatric diagnoses in the legal process: task force report of the American Psychiatric Association. Bull Am Acad Psychiatry Law 20:481–499, 1992

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Kessler RC, Sonnega A, Bromet E, et al: Posttraumatic stress disorder in the National Comorbidity Survey. Arch Gen Psychiatry 52:1048–1060, 1995 Kvintus v. RL Polk and Co, 3 FSupp2d 788 (ED Mich 1998) Lane C: High court backs EEOC suits in bias cases. Washington Post, January 16, 2002, A1, A4 Lindemann B, Kadue DD: Sexual Harassment in Employment Law. Washington DC, Bureau of National Affairs, 1992 Long BL: Psychiatric diagnoses in sexual harassment cases. Bull Am Acad Psychiatry Law 22:195–203, 1994 McDonald J: The legal context, in Mental and Emotional Injuries in Employment Litigation, 2nd Edition. Edited by McDonald JJ, Kulick FB. Washington, DC, Bureau of National Affairs, 2001, pp 1–49 McDonald JJ, Kulick FP: Preface: the rise of the psychological injury claim, in Mental and Emotional Injuries in Employment Litigation, 2nd Edition. Edited by McDonald JJ, Kulick FB. Washington, DC, Bureau of National Affairs, 2001, pp xxxvi–xlv Melton GB, Petrila J, Poythress NG, et al. (eds): Psychological Evaluation for the Courts: A Handbook for Mental Health Professionals and Lawyers, 2nd Edition. New York, Guilford, 1997 Pryor ES: Mental disabilities and the disability fabric, in Mental Disorder, Work Disability and the Law. Edited by Bonnie RJ, Monahan J. Chicago, IL, University of Chicago Press, 1997, pp 153–198 Rosen GM: The Aleutian Enterprise sinking and posttraumatic stress disorder: misdiagnosis in clinical and forensic settings. Professional Psychology: Research and Practice 26:82–87, 1995 Schutzwohl M, Maercker A: Effects of varying diagnostic criteria for posttraumatic stress disorder are endorsing the concept of partial PTSD. J Trauma Stress 12: 155–165, 1999 Shalev AY, Yehuda R: Longitudinal development of traumatic stress disorders, in Psychological Trauma. Edited by Yehuda R. Washington, DC, American Psychiatric Press, 1998, pp 31–66 Shuman DW: Persistent reexperiences in the law and psychiatry, in Posttraumatic Stress Disorder in Litigation: Guidelines for Forensic Assessment. Edited by Simon RI. Washington, DC, American Psychiatric Press, 1995, pp 1–12 Simon RI: Toward the development of guidelines in the forensic examination of posttraumatic stress disorder claimants, in Posttraumatic Stress Disorder in Litigation. Edited by Simon RI. Washington, DC, American Psychiatric Press, 1995, pp 31–84 Slovenko R: Legal aspects of posttraumatic stress disorder. Psychiatr Clin North Am 17:439–446, 1994 Sparr LF, Boehnlein JK: Posttraumatic stress disorder in tort actions: forensic minefield. Bull Am Acad Psychiatry Law 18:283–302, 1990 Spencer v. General Electric Co, 697 FSupp 204 (ED Va 1988), aff’d, 894 F2d 651 (4th Cir 1990)

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Stone AA: Post-traumatic stress disorder and the law: critical review of the new frontier. Bull Am Acad Psychiatry Law 21:23–36, 1993 Strubbe MR, Lindemann B, Kadue DD: Sexual Harassment in Employment Law: 1999 Cumulative Supplement. Washington, DC, Bureau of National Affairs, 1999 Toyota v. Williams, Supreme Court No 00-1089 (2002) United States Merit Systems Protection Board: Sexual Harassment in the Federal Workplace: Trends, Progress, Continuing Challenges. Washington, DC, U.S. Government Printing Office, 1994 van der Kolk BA, McFarlane AC: The black hole of trauma, in Traumatic Stress: The Effects of Overwhelming Experience on Mind, Body and Society. Edited by van der Kolk BA, McFarlane AC, Weisaeth L. New York, Guilford, 1996, pp 3–23 Warchol G: National Crime Victimization Survey: Workplace Violence, 1992–96 (National Center for Justice Publ No 168634). Washington, DC, U.S. Dept of Justice, Bureau of Justice Statistics, 1998 Weiss DS, Marmar CR, Schlenger WE, et al: The prevalence of lifetime and partial posttraumatic stress disorder in Vietnam theater veterans. J Trauma Stress 5: 365–376, 1992 Yehuda R, Wong CM: Etiology and biology of post-traumatic stress disorder: implications for treatment. Psychiatric Clinics of North America: Annual of Drug Therapy 8:109–134, 2001

C H A P T E R

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Guidelines for Evaluation of Malingering in PTSD Phillip J. Resnick, M.D.

The clinician who in a legal context evaluates a claimant for posttrau-

matic stress disorder (PTSD) must consider the possibility of malingering. Separate small clues that would lead to a more detailed investigation may otherwise be overlooked. The diagnosis of PTSD is based almost entirely on the claimant’s report of subjective symptoms. The accessibility of specific DSM-IV (American Psychiatric Association 1994) criteria permits the resourceful malingerer to easily report the “right” symptoms. Hiding or minimizing symptoms, neither of which is addressed in this chapter, should be also kept in mind by the clinician, especially in shame-sensitive persons. The primary motivation to malinger PTSD is financial gain. It is the rare person who is not influenced to some degree by the possibility that an injury may lead to financial benefit (Keiser 1968). Schafer (1986) believes that having a compensable injury promotes a “little larceny” in most litigants. In addition to financial compensation, sympathy and social support may be consciously sought by malingerers (Keiser 1968). Few personal injury cases reach the courts without an expressed or implied allegation of malingering (Lipman 1962). Suspicions of malingering help to explain why damages awarded for PTSD are substantially less than those for physical injury, despite the fact that limitations on the claimant’s life may actually be greater (Trimble 1981).

Portions of this chapter are adapted from Resnick PJ: “Malingering of Posttraumatic Disorders,” in Clinical Assessment of Malingering and Deception. Edited by Rogers R. New York, Guilford, 1988, pp. 84–103. Used with permission.

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The concept of traumatic neuroses first arose from the belief that an accidental concussion to the spine caused abnormalities of the sympathetic nervous system (Clevenger 1889). The disorder was quickly seized on by dishonest litigants seeking compensation after accidents (J.E. Hamilton 1906). PTSD has been given many labels since 1889, many of which suggest malingering (see Table 8–1). TABLE 8–1. Names used to describe PTSD Accident neurosis

Postaccident anxiety syndrome

Accident victim syndrome

Postaccident syndrome

Aftermath neurosis

Posttraumatic syndrome

American disease

Profit neurosis

Attitudinal pathosis

Railway spine

Compensation hysteria

Rape trauma syndrome

Compensationitis

Secondary gain neurosis

Compensation neurosis

Traumatic hysteria

Fright neurosis

Traumatic neurasthenia

Greenback neurosis

Traumatic neurosis

Justice neurosis

Triggered neurosis

Litigation neurosis

Unconscious malingering

Mediterranean back

Vertebral neurosis

Neurotic neurosis

Whiplash neurosis

Source.

Adapted from Mendelson 1984.

The introduction of PTSD as an official diagnosis in DSM-III (American Psychiatric Association 1980) caused a sharp increase in clinicians’ sensitivity to this disorder and heightened concern about potential malingering.

Definitions Malingering is listed in DSM-IV as a condition not attributable to a mental disorder. It is defined as the “intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as . . . financial compensation” (American Psychiatric Association 1994, p. 683). In contrast, a factitious disorder involves the intentional production of symptoms due to the internal motivation to assume a patient role. Both disorders require a deceitful state of mind.

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Several other terms are useful in the description of malingering phenomena. Pure malingering is the feigning of disease when it does not exist at all. Partial malingering is the conscious exaggeration of existing symptoms or the fraudulent allegation that prior genuine symptoms are still present. In addition, the term false imputation refers to ascribing actual symptoms to a cause consciously recognized as having no relationship to the symptoms. For example, authentic psychiatric symptoms due to clearly defined stresses at home may be falsely attributed to a traumatic event at work in order to gain compensation.

Incidence The incidence of malingered psychiatric symptoms after injury is unknown. Estimates vary from 1% (Keiser 1968) to over 50% (Henderson 1986; Miller and Cartlidge 1972), depending on whether those providing the information work for insurance companies or plaintiffs’ attorneys. The frequency of the diagnosis varies with the astuteness and skepticism of the clinician. The U.S. General Accounting Office, in a follow-up study of persons considered 100% disabled, found that approximately 40% of those studied showed no disability whatsoever 1 year after their disability determinations (M.T. Maloney, A. O. Glaser, M. P. Ward, unpublished observations, 1980). Pure malingering is uncommon in PTSD cases, but exaggeration of symptoms is quite common (Jones and Llewellyn 1917; Trimble 1981).

Reluctance to Diagnose Malingering Even though court testimony about malingering is often protected by immunity, concern over legal liability is a major reason for clinicians’ hesitancy to label someone a malingerer (RESTATEMENT OF TORTS 1938). Most authors conservatively suggest that the clinician should only state that there is no objective evidence to support the claimant’s subjective complaints (e.g., Davidson 1950). The possibility of provoking a physical assault by calling a person a malingerer is another source of concern (Hofling 1965). Hurst (1940) suggested that there are only two situations in which a diagnosis of malingering can be confirmed with certainty: 1) when malingerers think they are unobserved and are caught in the act, and 2) when malingerers actually confess that they are faking. Unless the clinician has substantial evidence, it is usually best to state that it is not possible to reach a firm conclusion. When clear evidence is present, however, the diagnosis of malingering should be made.

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Guidelines for Evaluation Guidelines for the evaluation of malingering in claimants reporting symptoms of PTSD address 1) collateral data, 2) information obtained from the claimant, 3) the clinician’s interview style in examining the claimant, 4) assessment of the differential diagnosis of malingered PTSD, and 5) threshold for a full assessment of malingering. Special guidelines for assessing PTSD in combat veterans are also proposed.

Guidelines for Collateral Data Collateral information should include police reports about the traumatic incident, witness statements, and any past psychiatric records of the claimant. The examiner should interview at least one family member or close associate of the claimant—preferably in person but at least by telephone.

A thorough collection of collateral data is critical because of the subjective nature of PTSD symptoms. Complete progress notes of therapists, rather than summary letters, should always be reviewed. If the clinician possesses more factual information about the case than the claimant believes, it helps the examiner to assess the claimant’s veracity. Records should be carefully reviewed before the clinical examination so that the claimant can be confronted with any contradictions between his or her history and the records. Interviewing a family member, such as a spouse, provides valuable information to corroborate or contradict the claimant’s version of his or her symptoms. The assertion that a claimant dreams or thinks about a traumatic event should be verified by relatives who have heard him or her talk about it in situations that are not related to the litigation. Such issues as the claimant’s body movements during dreams, patterns of sleep, and changes in sexual interest can also be addressed.

Guidelines for Information Obtained From the Claimant The clinician should take a detailed history of the traumatic event itself, the claimant’s psychiatric symptoms, treatment efforts, and living patterns. The clinician should inquire about whether the claimant has filed any prior workers’ compensation claims or lawsuits or has any arrests for criminal charges.

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In assessing malingering, it is useful to know whether the claimant is familiar with the diagnostic criteria for PTSD. The clinician should inquire about whether the claimant saw the trauma coming. Persons who feel helpless while anticipating a traumatic event are more likely to develop PTSD symptoms. The clinician should also inquire about the details of traumatic dreams and the capacity of the claimant to be able to work and enjoy recreation. The clinician should obtain a detailed history of the claimant’s living patterns preceding the stressor. Symptoms such as difficulty concentrating or insomnia may have been present before the traumatic event. Baseline activity in a typical week before the stressor should be compared with reported impairment at the time of the evaluation. Clinicians who simply inquire about specific symptoms of PTSD and other diagnostic criteria in DSM-IV will be easily fooled. Lees-Haley and Dunn (1994) found that 97% of untrained college students were able to endorse symptoms of checklists to meet the citeria for major depression and generalized anxiety disorder, while 86% were able to meet the criteria for PTSD.

Guidelines for the Clinician’s Interview Style in Examining the Claimant While taking the history, the clinician should not communicate any skepticism or give any clues about how genuine PTSD manifests itself. The clinician should insist on detailed illustrations of PTSD symptoms. Collateral informants should be seen separately from the claimant.

If the clinician begins the evaluation in a challenging manner, it may cause the claimant to think that he or she must exaggerate symptoms in order to be believed. The examiner should be particularly careful to ask openended questions and let the claimant tell his or her complete story with few interruptions. Details can be clarified with specific questions later. The clinician should insist on a detailed illustration of PTSD symptoms. Coached claimants may know which PTSD symptoms to report but may not be able to elaborate on them with convincing personal life details. Invented symptoms are more likely to have a vague or stilted quality (Pitman et al. 1996). The examiner should see whether the litigant minimizes other causes of his or her symptoms or exaggerates the severity of the compensable accident. The clinician should also look for actual evidence in

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the mental status exam of irritability, difficulty concentrating, and an exaggerated startle response. Third parties should be excluded from the clinical evaluation of the claimant for two important reasons. First, the presence of relatives precludes using them to verify the accuracy of symptoms. Second, should the clinician wish to gently confront the claimant with the possibility of malingering, the absence of a third party will reduce loss of face.

Guidelines for Assessing the Differential Diagnosis of Malingered PTSD In deciding whether symptoms of PTSD are malingered, the clinician should have a good understanding of the phenomenology of genuine PTSD. The clinician must carefully examine the appropriateness of the relationship between the symptoms and the stressor, the time elapsed between the stressor and symptom development, and the relationship between any prior psychiatric symptoms and current impairment.

Psychiatric disorders that occur after trauma include PTSD, malingering, depressive disorders, anxiety disorders, conversion disorders, postconcussive syndromes, and psychoses. In cases of PTSD that follow accidents, the clinical picture may be complicated by physical symptoms, pain, and the sequelae of concussion. Some malingered claims of psychic damages originate after claims for physical injury are unsuccessful (Henderson 1986). PTSD is often seen after vehicular accidents that cause head injury and concussion. Postconcussive syndrome is manifested by headaches, increased anxiety, emotional lability, concentration deficits, and memory problems (Lishman 1978). Even without loss of consciousness, head injuries may cause symptoms that can be easily confused with PTSD (Trimble 1981). Malingerers may overact their part by describing PTSD symptoms in a dramatic manner. All malingerers are actors who portray their illness as they understand it (Ossipov 1944). They are more eager to call attention to their symptoms than are persons with genuine PTSD. Malingerers may seem evasive during the interview and may be unwilling to make definite statements about returning to work or anticipation of financial gain. A person who has always been a responsible and honest member of society is less likely to malinger PTSD (Davidson 1965). Malingerers are more likely to be marginal members of society with few binding ties or committed, long-standing financial responsibilities, such as home owner-

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ship (Braverman 1978). They may have a history of spotty employment, previous incapacitating injuries, and extensive absences from work. Malingerers frequently depict themselves and their prior functioning in exclusively complimentary terms (Layden 1966). The malingerer may assert both the inability to work and the capacity for recreation. In contrast, the claimant with genuine PTSD is more likely to withdraw from recreational activities as well as work. The malingerer may pursue a legal claim tenaciously while alleging depression or incapacitation due to symptoms of PTSD (Davidson 1965). Malingerers are unlikely to volunteer information about sexual dysfunction (Chaney et al. 1984; Sadoff 1978), although they generally are eager to emphasize their physical complaints. Malingerers are also unlikely to volunteer information about nightmares unless they have been coached or have read the diagnostic criteria for PTSD. When asked details about traumatic dreams, malingerers frequently may reply, “I don’t know.” Genuine nightmares experienced by civilians (not veterans) after trauma usually show variations on the theme of the traumatic event (Garfield 1987). For example, a woman who was raped may have dreams in which she feels helpless and is tortured without being raped. The malingerer who does not know the expected dream patterns may claim repetitive dreams that always reenact the traumatic event in exactly the same way. In posttraumatic nightmares of civilian adults, there is usually a fairly rapid fading of nightmares especially with psychotherapy. Posttraumatic nightmares, as contrasted with lifetime nightmares unrelated to trauma, are almost always accompanied by considerable body movement (van der Kolk et al. 1984). Persons who have had true PTSD may exaggerate their symptoms or allege that symptoms persist when they no longer do. These are the most difficult cases to accurately assess because falsehood is never more persuasive than when it baits its hook with truth. Claimants who have had some genuine PTSD symptoms in the past have the advantage of knowing how to give accurate descriptions of PTSD symptoms.

Threshold Guidelines for a Full Assessment of Malingering If the claimant shows one or more of the eight criteria listed in Table 8–2, the clinician should thoroughly investigate the possibility that a person is malingering PTSD. Special interview techniques, psychological testing, and, occasionally, inpatient evaluation should then be considered.

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TABLE 8–2. Threshold model for the evaluation of malingered PTSD Any one of the following criteria: Poor work record Prior “incapacitating” injuries Discrepant capacity for work and recreation Unvarying, repetitive dreams Antisocial personality traits Overidealized functioning before the trauma Evasiveness Inconsistency in symptom presentation

In my opinion, the clinician who suspects malingering may use certain interview stratagems because the use of subterfuge in assessing deceit is justified. Insurance companies routinely make surreptitious videotapes of suspected malingerers (Schafer 1986). When inquiring about the symptoms of PTSD, the clinician may ask about symptoms that are not typically seen in this disorder. For example, inquiry could be made about symptoms such as increased talkativeness, inflated self-esteem, or decreased need for sleep. Within earshot of the claimant, mention could also be made of a very atypical symptom, implying that it is usually present; the clinician can then see if the claimant complains of this symptom. In particularly difficult assessments, inpatient observation may be helpful in monitoring alleged symptoms, such as social withdrawal, sleep disturbance, or exaggerated startle reactions. The Minnesota Multiphasic Personality Inventory (MMPI; Hathaway and McKinley 1943) and MMPI-2 (Hathaway and McKinley 1989) are the most validated psychological tests for ascertaining malingered mental illness. Chaney et al. (1984) found that the MMPI can be helpful in distinguishing claimants with true PTSD from those with functional disorders. The MMPI profiles of persons with PTSD more closely resemble those of persons who have organic disease, with pain caused by organic pathology, than the profiles of persons with psychogenic pain and/or hypochondriasis. Clayer et al. (1984) developed an instrument, the Illness Behavior Questionnaire, that could distinguish among neurotic subjects, psychiatrically healthy subjects, and individuals told to exaggerate their injury symptoms. After completing a detailed examination and psychological testing, the clinician may decide to confront a claimant with his or her suspicions of malingering. Expressing a sympathetic understanding of the temptation to exaggerate symptoms of PTSD increases the likelihood that a claimant will

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acknowledge it; trying to shame the person is likely to increase anger and denial. The malingerer should be given every opportunity to save face. Once a person denies malingering, there is a risk that it will be harder to admit later. It is better to say “You haven’t told me the whole truth” than “You have been lying to me” (Inbau and Reid 1967).

Guidelines for Assessment in War Veterans In 1979, the United States government initiated Operation Outreach to handle readjustment and psychiatric problems of Vietnam War veterans (Lynn and Belza 1984). Malingering PTSD became much easier after lists of PTSD symptoms were widely distributed by national service organizations (Atkinson et al. 1982). In addition, contact with veterans with true PTSD at veterans centers and Veterans Administration (VA) hospitals provided other veterans with opportunities to become aware of PTSD symptoms (Lynn and Belza 1984). Estimates of the prevalence of PTSD among Vietnam veterans have ranged from 20% to 70% (Ashlock et al. 1987; Friedman 1981; J.P. Wilson, unpublished observations, 1981). Gold et al. (1996) examined distributions of MMPI-2 validity scale scores and estimated the base rate of malingering in VA PTSD outpatient clinics to be about 20%. The incidence of malingered or factitious PTSD in the Reno, Nevada, VA hospital was 7 of 125 patients hospitalized for PTSD in a 5-month period (Lynn and Belza 1984). This estimate (approximately 6%) may be conservative because only persons with “severe” PTSD were hospitalized. Veterans may be motivated to malinger PTSD for three primary reasons: 1) to obtain compensation, 2) to be admitted to a VA hospital, or 3) to reduce punishment for criminal conduct. Since the VA accepted the delayed type of PTSD as a potentially compensable disorder in 1980, obtaining compensation has been the primary motive for veterans to malinger PTSD (Bitzer 1990). When PTSD is malingered for the purpose of gaining hospital admission, it must be distinguished from factitious PTSD. In factitious disorders, a person intentionally produces symptoms because of a psychological need to assume a sick role rather than for external gain. Factitious PTSD allows a veteran to assume the patient role, whereas malingered PTSD serves other goals, such as providing refuge or documentary support for seeking compensation. The following special guidelines for evaluating malingered PTSD in combat veterans should be considered in addition to the general guidelines already suggested for civilians.

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Special Guidelines for Collateral Data Military records and eyewitness accounts are critical because they provide the only independent substantiation of the validity of the stressor. The veteran’s spouse and/or relatives should be interviewed to validate current PTSD symptoms and assess premilitary behavioral adjustment.

It is often difficult to acquire third-party documentation of exposure to combat or other stresses during combat. Personnel files are often not revealing. A veteran’s unit history files (unit logs) and data from other members of the same unit are better resources. One simple procedure is to see whether the veteran’s discharge papers (Form DD 214) indicate overseas service. Although discharge papers should also include campaign and service articles (Lynn and Belza 1984), the record of awards is not always complete (Early 1984). Because the veteran’s discharge papers may be falsified, it is best to obtain a copy from the U.S. Department of Defense (Sparr and Atkinson 1986). VA medical centers have a national register that can supply information about prisoners of war with one phone call. Graphic stories of battle are not conclusive proof of PTSD. The accounts presented by veterans malingering PTSD can be just as vivid and detailed as those presented by veterans with the genuine disorder (J.D. Hamilton 1985). Consultation with actual combat veterans can help pinpoint a veteran’s lack of knowledge of the geography and culture of Vietnam or other war zones (Lynn and Belza 1984). Ashlock et al. (1987) noted that some veterans with malingered PTSD were able to pass multiple screening interviews by both Vietnam veterans and staff. Several, however, were discovered by group members within the first 2 days of their program.

Special Guidelines for Information Obtained From the Claimant The clinician should take a detailed military history and obtain details of military traumas; civilian stressors should also be reviewed.

For an individual to receive VA compensation, the severity of the stressor must be rated as “catastrophic” (Atkinson et al. 1982). The events most highly correlated with PTSD in combat veterans are participation in atrocities and exposure to a high number of combat stressors (Breslau and Davis 1987).

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Special Guidelines for the Clinician’s Interview Style Clinicians evaluating PTSD in war veterans must exercise extra care to maintain their objectivity.

Powerful emotions in clinicians may occur because of strong feelings for or against a particular war. Recounting of gruesome events, expressions of painful affect, and outbursts of anger can be stressful for both claimants and clinicians (Atkinson et al. 1982). Some clinicians feel moved to diagnose PTSD on the basis of fragmentary symptoms because they feel a sense of moral responsibility for the Vietnam veteran as a victim (Atkinson et al. 1982; Pankratz 1985). The antipathy many Vietnam veterans feel toward the federal government may interfere with the evaluation process (Atkinson et al. 1982). Some veterans find it very difficult to discuss their traumatic, painful memories—even with a sympathetic clinician. Authoritarian clinicians are especially unlikely to gain access to such data. Some veterans try to minimize their difficulty; other veterans exaggerate actual symptoms of PTSD for fear of failing to receive treatment or compensation (Fairbank et al. 1986).

Special Guidelines for Assessing the Differential Diagnosis of Malingered PTSD The differential diagnosis of malingered combat PTSD should include antisocial personality, factitious disorder, and genuine PTSD due to civilian stressors.

The differential diagnosis between antisocial personality disorder and PTSD may be difficult. Although the presence of antisocial personality disorder does not rule out PTSD, it should increase the clinician’s index of suspicion regarding malingering. Unfortunately, many persons with PTSD have symptoms consistent with antisocial traits—such as an inconsistent work pattern, poor parenting, repeated legal difficulties, inability to maintain an enduring attachment with a sexual partner, episodes of irritability, reckless behavior, failure to honor financial obligations, and a history of impulsive behavior (Walker 1981). Veterans with PTSD may also show substance abuse, rage, and suspiciousness. Identification of developmental symptoms

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of antisocial personality disorder (i.e., before age 15) is critical. School records and family interviews are necessary to validate veterans’ recollections. New life stressors, such as divorce, unemployment, or legal problems, may occur after military discharge. The clinician must discern whether a claimant’s PTSD is the result of the combat experience or a nonmilitary stressor. A coexisting mental disorder, such as psychosis or depression, may further complicate the assessment (Atkinson et al. 1982). Melton (1984) suggested several factors that help to differentiate the veteran with true PTSD from the malingerer. Whether the veteran attributes blame to self or others is one good discriminator. Veterans with true PTSD are likely to feel intense levels of guilt and perceive themselves as the cause of their problems; they seem hesitant to blame their problems on their combat experience. In contrast, malingerers are more likely to present themselves as victims of circumstance. They are likely to begin the session with statements that imply that their life predicaments are a direct result of their war experience; they condemn authority and the war. In the first visit, veterans with true PTSD are often resistant to openly admitting that their problems may be related to their combat experience. They are likely to present for treatment because of family members’ insistence or because of recurrent loss of employment, depression, outbursts of anger, or substance abuse (Melton 1984). A common chief complaint in veterans with malingered PTSD is fear that they might lose control and harm others (Pankratz 1985); the expression of this fear is likely to gain them admission to psychiatric hospitals. Malingerers tend to overplay their war experience. They might say, “I’ve got PTSD. I’ve got flashbacks and nightmares. I’m really stressed out” (Merback 1984). Veterans with true PTSD are more likely to downplay their combat experience, such as by saying, “Lots of guys had it worse than me.” In veterans’ posttraumatic nightmares, the encapsulated traumatic scene may become isolated; when activated, it runs off in an almost identical fashion for many years. After the fading of the initial posttraumatic nightmares, the veteran may begin to wake up terrified and report that he has dreamed of the horrible event exactly or almost exactly as it happened (van der Kolk et al. 1984). The themes of intrusive recollections and dreams are different in true and malingered PTSD. Veterans with PTSD often report themes of helplessness, guilt, or rage. Dreams in true PTSD generally convey a theme of helplessness with regard to the particular traumatic events that occurred during combat. In malingered PTSD, the theme of intrusive recollections is more often anger toward generalized authority; dreams emphasize themes of grandiosity and power (Melton 1984).

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Differences have been observed between veterans with true and malingered PTSD in their expression and acknowledgment of feelings. In true PTSD, the veteran often denies or has numbed the emotional impact of combat. In malingered PTSD, the veteran will often make efforts to convince the clinician how emotionally traumatizing war was for him by “acting out” the alleged feelings. The true PTSD veteran generally downplays symptoms, whereas the malingerer overplays them. For instance, veterans with true PTSD try not to bring attention to their hyperalertness and suspicious eye movements. In contrast, PTSD malingerers present their suspiciousness with a dramatic quality, as if they were trying to draw attention to it. As a further example, PTSD malingerers may volunteer that they think of nothing but the war and “relish” telling combat memories (Melton 1984). An important characteristic of PTSD is the avoidance of environmental conditions associated with the trauma. For example, the PTSD veteran may stay home on hot rainy days because of the resemblance to Vietnam weather. Camping may be avoided because the veteran finds himself looking for trip wires in the bush. In addition, crowds may be avoided because combat usually occurred “in a crowd.” In malingered PTSD, the veteran is unlikely to report having such postcombat reactions to environmental stimuli (Melton 1984). Other characteristics have been noted that differentiate between actual and malingered PTSD in combat veterans. These characteristics, shown in Table 8–3, include the ways in which guilt and anger are experienced. These clinical indicators for malingered combat PTSD are based primarily on case reports and must therefore be considered tentative. TABLE 8–3. Clinical indicators of malingered combat PTSD Genuine PTSD

Malingered PTSD

Minimize relationship of symptoms to combat

Emphasize relationship of symptoms to combat

Blame themselves

Blame others

Dream themes of helplessness or guilt

Dream themes of grandiosity or power

Deny emotional impact of combat

“Act out” alleged feelings

Are reluctant to tell combat memories

“Relish” telling combat memories

Have survivor guilt related to specific incidents

Have generalized guilt over surviving the war

Avoid environments that resemble combat

Do not avoid environments that resemble combat

Show anger at helplessness

Show anger at authority

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Special Guidelines for Threshold for Full Evaluation If one or more indicators of malingered PTSD are evident (see Table 8–3), a more specialized assessment of malingering should be made. This assessment should include detailed interviewing and psychological testing.

Psychological tests typically are designed to evaluate response styles more generally and focus comparatively little attention to specific disorders, such as PTSD. The MMPI-2 has two scales designed to assess combat-related PTSD: the PK (Keane et al. 1984) and PS (Schlenger and Kulka 1987) scales. Both scales have substantial overlap with each other and general clinical scales (scales 2, 3, 4, 7, and 8). According to Greene (1991), the two scales appear to measure general maladjustment and emotional distress. Thus, their ability to assess PTSD, genuine or feigned, is brought into question. Keane et al. (1988) developed the Mississippi Scale for Combat-Related PTSD (MS-PTSD), a 35-item, 5-point scale for assessing DSM-IIIR criteria and associated features. Although the MS-PTSD appears to be useful in assessing PTSD in Vietnam veterans, recent studies have clearly demonstrated its vulnerability to feigning. More specifically, three studies found that non-PTSD and noncombat veterans could easily fake on the MS-PTSD (Dalton et al. 1989; Frueh and Kinder 1994; Lyons et al. 1994). Clinicians should be aware that response bias is often seen in PTSD claimants and should not rely only on self-report inventories or other assessment procedures that may be vulnerable to symptom overreporting. Psychometric studies have consistently shown that combat veterans evaluated for PTSD exhibit 1) extreme and diffuse levels of psychopathology across instruments measuring different domains of mental illness and 2) extreme elevations on the validity scales of the MMPI or MMPI-2 in a “fakebad” direction (Frueh et al. 2000). Frueh et al. (1996) examined scores on psychological measures in a group of veterans divided into two groups: 1) those currently seeking government disability payments for combat-related PTSD and 2) those not intending to seek compensation for their symptoms of PTSD. The compensation-seeking group produced significantly more pathological scores on all measures (selected MMPI-2 clinical and validity scales [F, K, F-K] and other measures of severity for PTSD, depression, and dissociative experiences). Although findings of dramatic validity index elevations in

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combat veterans do not indicate malingering per se, the extreme patterns obtained resemble those produced by a community sample of noncombat veterans instructed to fake PTSD on the MMPI-2 (Wetter et al. 1993). In major evaluation centers, audiotapes of combat sounds should be considered as an assessment device to assess malingering. Blanchard et al. (1982) reported that they could discriminate with 95.5% accuracy between veterans with genuine PTSD and a control group by playing an audiotape of combat sounds. They measured veterans’ heart rates, systolic blood pressures, and muscle tension with a forehead electromyelogram. Measure of the heart rate alone allowed correct classification of 90.9%. Other studies have also been encouraging (Orr et al. 1990; Pitman et al. 1987). However, Orr and Pitman (1993) found that 25% of non-PTSD subjects were able to simulate the physiological responses of PTSD subjects. Pitman et al. (1994) reported that one trial judge ruled against a challenge to the admission of psychophysiological assessment data to prove the PTSD criterion of “physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.” Such a procedure may be impractical for the individual clinician but could be quite helpful to professionals making frequent decisions about PTSD compensation. Psychophysiological test results cannot be used alone to show the truth of PTSD. However, they may be very helpful along with other information in a forensic evaluation.

Special Guidelines for Veterans Facing Criminal Charges In assessing the validity of the relationship between PTSD and a crime, the clinician should consider whether the crime scene re-creates the combat trauma, whether there was evidence of dissociation at the time of the criminal conduct, and whether there was a rational alternative motive for the crime.

In the criminal justice system, the diagnosis of PTSD may serve as a basis for an insanity defense, a reduction of charges, or mitigation of penalty. Veterans who are charged with serious crimes may consequently be highly motivated to malinger PTSD or to falsely impute a causal link between a crime and genuine PTSD. Three clinical presentations have led to successful insanity defenses. First, a veteran may enter into a dissociative state due to a flashback and resort to survivor skills learned in combat. Second, a veteran with severe survivor guilt may commit acts designed to result

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in his death in order to be reunited with buddies killed in action. This is sometimes known as “suicide by cop.” Third, a veteran may engage in sensation-seeking behavior, such as drug trafficking, to relive combat excitement (J.P. Wilson, unpublished observations, 1981).

Conclusion The assessment of malingered psychiatric symptoms after traumatic events is difficult because reports of subjective symptoms are difficult to verify. Clinicians must be thoroughly grounded in the phenomenology of PTSD and be aware of the common differences between those with genuine symptoms and their malingering counterparts. The guidelines that are proposed in this chapter emphasize the need for detailed history taking and independent corroboration to assess the possibility of malingering in PTSD claimants.

References American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 3rd Edition. Washington, DC, American Psychiatric Association, 1980 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition. Washington, DC, American Psychiatric Association, 1994 Ashlock L, Walker J, Starkey TW, et al: Psychometric characteristics of factitious PTSD. VA Practitioner 4:37–41, 1987 Atkinson RM, Henderson RG, Sparr LF, et al: Assessment of Vietnam veterans for post-traumatic stress disorder in Veterans Administration disability claims. Am J Psychiatry 139:1118–1121, 1982 Bitzer R: Caught in the middle: mentally disabled veterans and the Veterans Administration, in Strangers at Home: Vietnam Veterans Since the War, 2nd Edition. Edited by Figley CR, Leventman S. New York, Brunner/Mazel, 1990, pp 305–323 Blanchard EB, Kolb LC, Pallmeyer TP, et al: A psychophysiological study of posttraumatic stress disorder in Vietnam veterans. Psychiatr Q 54:220–229, 1982 Braverman M: Post-injury malingering is seldom a calculated ploy. Occup Health Saf 47:36–48, 1978 Breslau N, Davis GC: Post-traumatic stress disorder: the etiologic specificity of wartime stressors. Am J Psychiatry 144:578–583, 1987 Chaney HS, Cohn CK, Williams SG, et al: MMPI results: a comparison of trauma victims, psychogenic pain, and patients with organic disease. J Clin Psychol 40:1450–1454, 1984 Clayer JR, Bookless C, Ross MW: Neurosis and conscious symptom exaggeration: its differentiation by the Illness Behavior Questionnaire. J Psychosom Res 28: 237–241, 1984

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Clevenger SV: Spinal Concussion. London, FA Davis, 1889 Dalton JE, Tom A, Rosenblum ML, et al: Faking on the Mississippi Scale for Combat-Related Posttraumatic Stress Disorder. Psychological Assessment 1:56–57, 1989 Davidson HA: Malingered psychosis. Bull Menninger Clin 14:157–163, 1950 Davidson HA: Forensic Psychiatry, 2nd Edition. New York, Ronald Press, 1965 Early E: On confronting the Vietnam veteran (letter). Am J Psychiatry 141:472– 473, 1984 Fairbank JA, McCaffrey RJ, Keane TM: On simulating post-traumatic stress disorder (letter and reply). Am J Psychiatry 143:268–269, 1986 Friedman MJ: Post-Vietnam syndrome: recognition and management. Psychosomatics 22:931–943, 1981 Frueh BC, Kinder BN: The susceptibility of the Rorschach inkblot test to malingering of combat-related posttraumatic stress disorder. J Pers Assess 62:280– 98, 1994 Frueh BC, Smith DW, Barker SE: Compensation seeking status and psychometric assessment of combat veterans seeking treatment for PTSD. J Trauma Stress 9:427–439, 1996 Frueh BC, Hamner MB, Cahill SP, et al: Apparent symptom overreporting in combat veterans evaluated for PTSD. Clin Psychol Rev 20:853–885, 2000 Garfield P: Nightmares in the sexually abused female teenager. Psychiatric Journal of the University of Ottawa 12:93–97, 1987 Gold PB, Frueh BC, Chobot K, et al: Detection of malingered PTSD in a sample of combat veterans. Poster presented at the annual meeting of the American Psychological Association, Toronto, Ontario, Canada, August 1996 Greene RL: The MMPI-2: An Interpretive Manual. Boston, Allyn & Bacon, 1991 Hamilton JD: Pseudo post-traumatic stress disorder. Mil Med 150:353–356, 1985 Hamilton JE: Railway and Other Accidents. London, Bailliere, Tindall, 1906 Hathaway SR, McKinley JC: The Minnesota Multiphasic Personality Inventory. Minneapolis, University of Minnesota, 1943 Hathaway SR, McKinley JC: Minnesota Multiphasic Personality Inventory–2. Minneapolis, University of Minnesota, 1989 Henderson J: Psychic trauma claims in civil and administrative law. Panel presentation at the American Academy of Psychiatry and the Law meeting, Philadelphia, PA, October 18, 1986 Hofling CK: Some psychologic aspects of malingering. General Practitioner 31:115–121, 1965 Hurst AF: Medical Diseases of War. London, Edward Arnold, 1940 Inbau FE, Reid JE: Criminal Interrogation and Confessions, 2nd Edition. Baltimore, MD, Williams & Wilkins, 1967 Jones AB, Llewellyn J: Malingering. London, Heinmann, 1917 Keane TM, Malloy PR, Fairbank JA: Empirical development of an MMPI subscale for the assessment of combat-related posttraumatic stress disorder. J Consult Clin Psychiatry 52:888–891, 1984

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Keane TM, Caddell JM, Taylor KL: Mississippi Scale for Combat-Related Posttraumatic Stress Disorder: three studies in reliability and validity. J Consult Clin Psychol 56:85–90: 1988 Keiser L: The Traumatic Neurosis. Philadelphia, PA, JB Lippincott, 1968 Layden M: Symptoms separate hysteric, malingerer. Psychiatric Progress 1:7, 1966 Lees-Haley PR, Dunn JT: The ability of naive subjects to report symptoms of mild brain injury, post-traumatic stress disorder, major depression, and generalized anxiety disorder. J Clin Psychol 50:253–256, 1994 Lipman FD: Malingering in personal injury cases. Temple Law Quarterly 35:141– 162, 1962 Lishman WA: Organic Psychiatry. Oxford, UK, Blackwell Scientific, 1978 Lynn EJ, Belza M: Factitious post-traumatic stress disorder: the veteran who never got to Vietnam. Hosp Community Psychiatry 35:697–701, 1984 Lyons JA, Caddell JM, Pittman RL, et al: The potential for faking on the Mississippi Scale for Combat-Related PTSD. J Trauma Stress 7:441–445, 1994 Melton R: Differential diagnosis: a common sense guide to psychological assessment. Vet Center Voice Newsletter V:1–12, 1984 Mendelson G: Follow-up studies of personal injury litigants. Int J Law Psychiatry 7:179–187, 1984 Merback K: The Vet Center dilemma: post-traumatic stress disorder and personality disorders. Vet Center Voice Newsletter V:6–7, 1984 Miller H, Cartlidge N: Simulation and malingering after injuries to the brain and spinal cord. Lancet 1:580–585, 1972 Orr SP, Pitman RK: Psychophysiologic assessment of attempts to simulate posttraumatic stress disorder. Biol Psychiatry 33:127–129, 1993 Orr SP, Claiborn JM, Altman B, et al: Psychometric profile of posttraumatic stress disorder, anxious, and healthy Vietnam veterans: correlations with physiologic responses. J Consult Clin Psychol 58:329–335, 1990 Ossipov VP: Malingering: the simulation of psychosis. Bull Menninger Clin 8:31– 42, 1944 Pankratz L: The spectrum of factitious post-traumatic stress disorder. Paper presented at the annual meeting of the American Psychiatric Association, Dallas, TX, May 18–24, 1985 Pitman RK, Orr SP, Forgue DF, et al: Psychophysiologic assessment of posttraumatic stress disorder imagery in Vietnam combat veterans. Arch Gen Psychiatry 44:970–975, 1987 Pitman RK, Saunders LS, Orr SP: Psychophysiologic testing for post-traumatic stress disorder. Trial, April 1994, pp 22–26 Pitman RK, Sparr LF, Saunders LS: Legal issues in post-traumatic stress disorder, in Traumatic Stress: The Effects of Overwhelming Experience on Mind, Body, and Society. Edited by McFarlane AC, van der Kolk BA, Weisaeth L. New York, Guilford, 1996, pp 378–397 RESTATEMENT OF TORTS § 588 (1938) Sadoff RL: Personal Injury and the Psychiatrist (Lesson 38). Weekly Psychiatry Update Series. Princeton, NJ, Biomedia, 1978

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Schafer E: Workers compensation workshop at the American Academy of Psychiatry and the Law meeting, Philadelphia, PA, October 18, 1986 Schlenger WE, Kulka RA. Performance on the Kean-Fairbank MMPI scale and other self-report measures in identifying post-traumatic stress disorder. Paper presented at the annual meeting of the American Psychological Association, New York, NY, August 1987 Sparr LF, Atkinson RM: Post-traumatic stress disorder as an insanity defense: medicolegal quicksand. Am J Psychiatry 143:608–613, 1986 Trimble MR: Post-Traumatic Neurosis From Railway Spine to the Whiplash. New York, Wiley, 1981 van der Kolk B, Blitz R, Burr W, et al: Nightmares and trauma: a comparison of nightmares after combat with lifelong nightmares in veterans. Am J Psychiatry 141:187–190, 1984 Walker JI: Vietnam combat veterans with legal difficulties: a psychiatric problem? Am J Psychiatry 138:1384–1385, 1981 Wetter MW, Baer RA, Berry DT, et al: MMPI-2 profiles of motivated fakers given specific symptoms information: a comparison to matched patients. Psychological Assessment 5:317–323, 1993

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C H A P T E R

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Forensic Laboratory Testing for PTSD Roger K. Pitman, M.D. Scott P. Orr, Ph.D.

Of all the problems posed by posttraumatic stress disorder (PTSD) in

the courtroom, the most daunting is the subjective nature of the disorder’s symptomatic manifestations. As Raifman (1983) noted, “Although the assessment of [PTSD-specific] symptoms is the most crucial link in the chain of proximate causation, it remains uniquely vulnerable because of its dependence upon the veracity of the complainant" (p. 124). Even in the majority of civil cases in which there is little evidence that the plaintiff is intentionally being untruthful, there is still a serious question as to how accurately plaintiffs can report their own mental states, given the complex incentives, emotions, and stresses that typically surround litigation. Biologic measurement has the potential to redeem the PTSD diagnosis from its subjectivity and to help separate the wheat from the chaff in the forensic evaluation of PTSD claims (Pitman and Orr 1993). The body of psychobiologic research data regarding PTSD is growing rapidly (for reviews, see Friedman 1999). The transition from scientific experiment in a group of research subjects to forensic use with a given plaintiff, however, is a demanding one. In this chapter, we designate the steps involved in this transition with the terms reliability, validity, applicability, comprehensibility, feasibility, availability, and admissibility. Although there have been reports of many varied psychobiologic abnormalities in PTSD, to our knowledge only two—psychophysiologic responses during script-driven traumatic imagery and psychophysiologic responses to sudden, loud (startling) tones—have come close to negotiating these seven stages to forensic implementation.

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Psychobiologic Responses in PTSD: Script-Driven Traumatic Imagery and Sudden, Loud Tones Psychophysiology may be methodologically defined as the measurement of inferred mental processes through their bodily manifestations. The scriptdriven imagery technique was originally developed by Lang (1985) as a tool for studying the psychophysiologic responses that accompany phobias. Our group was the first to apply Lang’s procedure to the study of PTSD (Pitman et al. 1987). Application of the script-driven imagery technique to PTSD involves the preparation of “scripts” portraying in a subject’s own words his or her past personal experiences, including the traumatic experience(s) that serves as the potential basis for PTSD. A virtue of the personal imagery approach is that it is applicable to the study of almost any traumatic experience. Any event that a person is capable of narrating may be used as the basis for a script. The scripts are read one at a time to the subject in the psychophysiology laboratory, and the subject is instructed to imagine the events the scripts portray while physiologic measures, including heart rate, skin conductance (i.e., sweatiness of the palms), and facial electromyographic activity (i.e., forehead muscle tension), are recorded. The average value of each physiologic variable during a rest period preceding the reading of each script is subtracted from the average value during mental imagery of the script, yielding a physiologic response score for that script. The data are analyzed by means of multivariate and univariate techniques and discriminant analysis. It is essential to keep in mind that psychophysiologic testing for PTSD is designed to provide an ancillary measure of an individual’s symptomatology; it is not a measure of truthfulness. Unlike the script-driven imagery approach, the sudden, loud tone procedure does not employ stimuli related to the traumatic event. Rather, this technique measures the subject’s general “defensive” response to mildly aversive stimuli through exposure to a series of sudden, loud tones presented over headphones (Shalev et al. 1992). These tones typically elicit a startle response on initial presentation. The data-analytic technique is similar to that employed in the script-driven imagery procedure.

Stages in Forensic Implementation of Psychobiologic Research on PTSD Reliability The medical or psychological use of the term reliability is narrower than the legal use. The medical or psychological meaning is synonymous with “re-

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producibility” or “replicability.” These terms can apply either to an experimental finding in a group of individuals or to a laboratory result in a given individual. The two laboratory tests for PTSD described above are the most highly replicated tests in the psychobiologic research literature on PTSD. Heightened physiologic responses during personal traumatic imagery have been demonstrated in several different laboratories in individuals with PTSD resulting from a wide range of traumatic events, including experiencing military combat, various civilian events (including terrorist attacks in Israel), childhood sexual abuse, and automobile accidents (reviewed in Pitman et al. 1999); nursing severely wounded individuals (Carson et al. 2000); and receiving a diagnosis of cancer (Pitman et al. 2001). Such responses to personal traumatic imagery have also been shown to significantly predict who will develop chronic PTSD after automobile accidents (Blanchard et al. 1996). Increased physiologic responses to sudden, loud stimuli have also been reported by several laboratories in studies of persons with PTSD resulting from military combat, civilian traumatic events, childhood sexual abuse, and sexual assault (reviewed in Pitman et al. 1999). Among the various physiologic response measures, the most consistent results in the sudden, loud tone procedure have been obtained with heart rate. Reliability also refers to the reproducibility of a laboratory test result for a given individual. When subjects are tested at two different times, the concordance of their results is designated by the term test-retest reliability. A potential problem with the two psychophysiologic laboratory tests discussed in this chapter is habituation between testing sessions. In other words, a subject who becomes accustomed to a test the first time it is administered may show smaller responses the second time. This was evident for the script-driven imagery procedure in 178 retested subjects participating a large-scale, multisite psychophysiologic study of combat-related PTSD (Keane et al. 1998). However, the results obtained during the first and second testing sessions for the same subject were highly correlated. Within-subject test-retest correlations were also highly significant for the sudden, loud tone procedure in a longitudinal psychophysiologic study (A.Y. Shalev, unpublished data, 2000).

Validity Validity is a more complex topic that has been dealt with in detail elsewhere (e.g., Anastasi 1988; Nunnally and Bernstein 1994). Simply put, validity involves whether and how well a test measures what it purports to measure. The most typical forensic application of a laboratory test for PTSD, and indeed of the PTSD diagnosis itself, lies in the assessment of mental dam-

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ages resulting from a traumatic event. Here, the assumption behind a valid test is that the traumatic event causes the abnormal test result. However, just because PTSD, which is defined in DSM-IV (American Psychiatric Association 1994) as resulting from a traumatic event, is accompanied by an abnormal test result does not necessarily imply that any given abnormality found in individuals with PTSD resulted from the traumatic event. Correlation is not tantamount to causation. Indeed, one can think of at least five alternative origins of an observed association between a laboratory abnormality and PTSD: 1. The abnormality was preexisting and increased the risk of exposure to the traumatic event. 2. The abnormality was preexisting and increased the vulnerability to developing PTSD after exposure to the traumatic event. 3. The traumatic exposure caused the abnormality, and the abnormality caused the PTSD. 4. The traumatic exposure caused the PTSD, and the chronic stress of having PTSD caused the abnormality. 5. The traumatic exposure caused the PTSD, and the PTSD in turn led to sequelae or complications (e.g., increased alcohol intake) that caused the abnormality. Of these five possible origins of a laboratory abnormality in PTSD, only origin 3 involves direct causation by the traumatic event. Abnormalities with this origin have the greatest potential value in establishing and quantifying mental damages. Under origin 4, the abnormality is a direct result of a sequel of the traumatic event (PTSD) and still would be of use in establishing mental damages. Under origin 5, the abnormality is a result of a sequel of a sequel of the traumatic event and still might useful in establishing mental damages, providing that foreseeability can be established. Origins 1 and 2, under which the abnormality is not a result of the traumatic event, have the least potential value in establishing mental damages. Demonstration of either of these origins for the abnormality, however, might still be helpful in explaining why a predisposed plaintiff developed PTSD from a traumatic event, especially an event of apparently low severity. Unfortunately, the origins of most laboratory abnormalities that have been found to be associated with PTSD are unknown, and their value as forensic tests is therefore severely compromised. In some cases, the unknown origin of an abnormality may even make it forensically dangerous. An example is the finding of diminished hippocampal volume in PTSD. The hippocampus is a structure within the limbic system of the brain, best known for its role in declarative memory (i.e., the conscious recall of learned ma-

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terial). Animal research has provided evidence that exposure to severe and chronic stress can damage this brain structure through a neurotoxic process. This evidence has led to the provocative notion that a similar process may occur in human beings with PTSD. Several magnetic resonance imaging (MRI) studies have reported lower hippocampal volume in subjects diagnosed with PTSD (reviewed in Bremner 1999), although this finding has not always been replicated (Bonne et al. 2001; De Bellis et al. 2001). These findings raise the possibility that psychological trauma may induce neurologic damage in humans (for discussion, see series of articles and comments in Hippocampus 11:73–91, 2001). Needless to say, the potential forensic ramifications are dramatic. To show that a negligently or intentionally inflicted psychologically traumatic event caused injury to the victim’s brain would be a Holy Grail for plaintiffs’ attorneys. Any legal requirement of physical injury in order to recover (which still sometimes applies in certain matters and jurisdictions) would immediately be satisfied. Juries would likely multiply damages if they believed the plaintiff had suffered brain damage. However, the availability of a theoretically attractive explanation of the association between PTSD and lower hippocampal volume does not necessarily mean that it is the correct explanation. The reported studies to date have been cross-sectional (i.e., correlative), and as noted earlier, correlation does not necessarily imply causation. To conclusively show that traumatic events cause atrophy, or shrinkage, of the hippocampus in humans would require evidence from a longitudinal study. Because no such evidence exists, it is premature to conclude that psychological trauma causes brain damage in humans. It is also premature to argue in court that a certain psychological trauma has caused brain damage in a certain human being, regardless of what the MRI shows. If a plaintiff were to prevail on this score, and it subsequently were to be shown that smaller hippocampal volume in PTSD is not the result of the traumatic event, a miscarriage of justice would have occurred. Although longitudinal studies are critical for demonstrating a causal connection, they are very difficult to perform because they require screening large numbers of individuals prior to the occurrence of a traumatic event, with the expectation that only a small percentage will be exposed to such an event and that an even smaller number will go on to develop PTSD. An alternative approach is to study pairs of identical twins who are discordant for traumatic exposure—that is, pairs in which one twin experienced a traumatic event but his or her identical co-twin did not. This cotwin control design has successfully been used to study the origin of PTSD itself (Goldberg et al. 1990). Recently, our group used this design to resolve competing explanations of the origin of some laboratory abnormalities that have been found in PTSD. If an abnormality is genetic or due to environ-

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mental influences shared by twins during their rearing—that is, if the abnormality is a “familial,” pretrauma vulnerability factor—then it should also be found in the non-trauma-exposed identical co-twins of trauma-exposed twins with PTSD. On the other hand, if the abnormality results from an environmental factor unique to exposed twins—for example, a traumatic event—then their unexposed co-twins should not share the abnormality. One of the abnormalities investigated by our group with the identical co-twin control design is hippocampal volume. In this study, hippocampal volume was measured by MRI in identical twin pairs discordant for combat exposure during the Vietnam War (M. W. Gilbertson, M. E. Shenton, A. Ciszewski, et al., manuscript submitted for publication). The ClinicianAdministered PTSD Scale (CAPS; Weathers et al. 2001) was used to classify subjects on the basis of their symptom reports into PTSD and non-PTSD groups and to generate a continuous measure of PTSD symptom severity. The sample comprised twin pairs in which the combat-exposed brother met current DSM-IV criteria for chronic PTSD and twin pairs in which the combat-exposed brother had never developed PTSD. We found, as in most previous studies, that the combat veterans with more severe PTSD had lower mean total hippocampal volume than the combat veterans without PTSD. However, the non-combat-exposed co-twins of the combat veterans with more severe PTSD also had comparably low mean hippocampal volume, which was significantly lower than that of the non-PTSD combat veterans’ non-combat-exposed co-twins. We also found that PTSD severity, as measured by total CAPS score, in combat-exposed PTSD twins was negatively correlated with these subjects’ own total hippocampal volume. In other words, the smaller a combat veteran’s hippocampi, the more severe his PTSD. More importantly, we found a significant and comparably strong negative correlation between CAPS score in combat-exposed twins and total hippocampal volume in their non-combat-exposed co-twins; the smaller a non-combat-exposed co-twin’s hippocampus, the more severe was his combat-exposed brother’s PTSD. The results above replicate previous findings in nontwin studies of lower hippocampal volume in persons with PTSD. However, the pattern of the results in the non-combat-exposed co-twins does not support the proposition that lower hippocampal volumes found in persons with PTSD are the result of their combat exposure or of their PTSD. If such were the case, they should have had lower hippocampal volumes than their own noncombat-exposed brothers. As a measure of the effect of traumatic exposure, hippocampal volume lacked “criterion validity,” because it failed to distinguish between combat-exposed PTSD veterans and their non-combatexposed co-twins. This finding rules out origins 3, 4, and 5 described earlier. Because hippocampal volume also was not correlated with degree of

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combat exposure in this study, origin 1 is unlikely, leaving origin 2 as a viable explanation—namely, smaller hippocampi constitute a preexisting familial vulnerability factor for the development of PTSD in trauma-exposed individuals. Although these conclusions are only from a single study, until evidence is produced favoring a different conclusion, the results show how hippocampal volume would not appear to be a valid forensic test for mental, or neurological, damages from a psychologically traumatic event. As noted earlier, increased heart rate response to a series of sudden, loud tones is one of the most reliable (i.e., best replicated) laboratory measures of PTSD. We also examined this laboratory test for PTSD in our identical co-twin controlled study (R. K. Pitman, L. J. Metzger, N. B. Lasko, et al., manuscript submitted for publication). The results provide an informative contrast to the results obtained with hippocampal volume. In this work, total CAPS score in combat-exposed twins was positively and significantly correlated with total average heart rate response to the sudden, loud tones—that is, the larger a combat veteran’s heart rate response to the tones, the more severe his PTSD symptoms. However, there was no significant correlation between the CAPS scores of combat-exposed twins and the average heart rate responses of their non-combat-exposed co-twins. In addition, the combat veterans with PTSD had higher mean average heart rate responses than the combat veterans without PTSD, but their non-combatexposed brothers did not; rather, the latter’s responses were comparable to the mean average heart rate response of the non-PTSD combat veterans and their non-combat-exposed co-twins. These results replicate previous findings in nontwin studies of higher heart rate responses to sudden, loud tones in persons with PTSD. However, the pattern of results obtained for this PTSD laboratory abnormality was quite different than that found for hippocampal volume. Heart rate response to sudden, loud tones possessed the criterion validity that hippocampal volume lacked—namely, the researchers were able to distinguish the responses of PTSD combat veterans from the responses of their noncombat-exposed co-twins. Because the heart rate responses of veterans with PTSD were larger than those of their non-combat-exposed, identical co-twins, origins 3, 4, and 5, discussed earlier, are not ruled out. On the other hand, because the heart rate responses of the non-combat-exposed, identical co-twins of the veterans with PTSD were not higher than the heart rate responses of the non-combat-exposed, identical co-twins of the veterans without PTSD, origins 1 and 2 are ruled out. Specifically, increased risk of exposure to the traumatic event, or increased vulnerability to developing PTSD after exposure to the traumatic event, on the basis of heredity or environmental influences shared by the twins cannot explain the pattern of the above findings. Rather, the higher

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heart rate responses in the PTSD veterans must reflect the contribution of some unique environmental factor(s) present in the PTSD combat veterans but absent in their non-combat-exposed brothers. A limitation of the co-twin control design is that it cannot identify the specific unique environmental difference(s) between the combat-exposed and non-combat-exposed twins responsible for the abnormality. However, because the most salient, common difference was the presence of combat-related PTSD in the twins with the larger heart rate responses, and because in this study the effect remained significant after the potential contributions of numerous potentially confounding variables were considered, it is highly likely that the larger heart rate responses in the combat veterans with PTSD were a consequence of their traumatic combat exposure. Nevertheless, further research in nontwin studies is necessary in order to fully tease apart the contributions of origins 3, 4, and 5. The conclusion that increased heart rate responses to sudden, loud tones are acquired following the traumatic event along with PTSD is supported by results of a longitudinal study involving Israeli civilians who had experienced acute psychologically traumatic events (Shalev et al. 2000). Those who went on to develop PTSD had heart rate responses to sudden, loud tones that were comparable to individuals who did not go on to develop PTSD 1 week after the traumatic event but had larger heart rate responses 1 and 4 months later. This finding suggests a progressive posttraumatic sensitization in persons who go on to develop PTSD. Virtually no alcoholism or substance abuse was found in the Israeli subjects, making these potentially confounding factors unlikely causes of this laboratory abnormality. Overall, the results of Shalev et al.’s study and of the twin study described earlier converge on the conclusion that larger heart rate responses to sudden, loud tones represent an acquired sign of PTSD. Therefore, this abnormality, in contrast with lower hippocampal volume, is likely to be a valid forensic laboratory test. Unfortunately, co-twin control or longitudinal approaches are unsuitable for studies that employ responses to stimuli resembling or symbolizing an aspect of the traumatic event. The reason for this is that the co-twins would not have experienced the event, nor even would the trauma victims themselves prior to the event’s occurrence. Nevertheless, by their nature, responses to trauma-related stimuli are the prima facie result of the traumatic event. Validity might be challenged on the possibility that a subject with high physiologic responses to a trauma-related stimulus would be highly responsive to stimuli associated with any stressful life event or scene. This possibility has been addressed in script-driven imagery studies. These studies allow measurement of response to a variety of personal and standard scripts within the same session. A consistent finding in nearly all published

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psychophysiologic script-driven imagery studies is that PTSD subjects’ responses during mental imagery of their traumatic event are larger than their responses during imagery of their most stressful other life events. Whereas the former distinguish subjects with and without PTSD, the latter typically do not. These findings strongly suggest that, but for the occurrence of the traumatic event, the subject would not have developed the abnormally high responses, and they thereby support the validity of these physiologic responses to trauma-related stimuli as consequences of the traumatic event. It is possible during a single laboratory session to measure a plaintiff’s responses during script-driven imagery of the event that forms the putative basis for the claim of mental damages and the plaintiff’s responses during imagery of other personal stressful life events. If the former were no greater than the latter, the validity of the plaintiff’s claim of emotional damages specific to the index traumatic event would be undercut.

Applicability Another dimension of validity is so-called external validity, or applicability. For purposes here, external validity involves the degree to which the results of a study performed in research subjects in a laboratory setting are applicable to persons outside that setting. In the case of a forensic laboratory test for PTSD, we are especially interested in how well the test characterizes PTSD among plaintiffs who are seeking recovery for mental damages from a traumatic event. More specifically, we are interested in how well the test discriminates plaintiffs who qualify for the PTSD diagnosis on the basis of their reported symptoms from plaintiffs who do not. Testing this is a demanding step, because it requires applying the test to real-world plaintiffs. Simulations are unlikely to be acceptable, because it would be impossible to reproduce in an artificial laboratory setting all the complex incentives, emotions, and stresses that typically surround litigation. Performing the test in vitro (i.e., in a manner that would not potentially impact the results of the litigation) poses several problems. First, the investigator may not be able to guarantee that the result of the test could be kept confidential (i.e., that it would not be discoverable and thereby potentially influence the outcome of the litigation). Second, even if confidentiality could be guaranteed, some plaintiffs would not believe that it could be. Third, if plaintiffs were to believe that the test result was confidential, they might respond differently than they would have otherwise, thereby reducing the applicability of the test to the real forensic situation. Applying the test in vivo (i.e., as part and parcel of the forensic evaluation process) is the best way to test the applicability of a forensic test for

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PTSD. However, there are several obstacles to this approach. First, someone has to pay the expense of the test. In the absence of third-party funding, this means either the plaintiff or the defendant. To pay for the test, the party has to believe that the cost of the test is worth the potential benefit. Second, the plaintiff or claimant has to be willing to undergo the test. Plaintiffs may be suspicious of a test that the defendant desires to have performed and may refuse to undergo it simply because the defendant asks for it. Confronted with an unfavorable test result at their own instigation, plaintiff’s counsel may be able to conceal it by not using the expert who performed the test as a witness, whereas the defendant has to live with an unfavorable test result. These considerations mean that the party contracting for the test is more likely to be the plaintiff than the defendant. The most favorable circumstances of all, of course, would be that both sides assign the highest priority to obtaining the most comprehensive and accurate evaluation in the interests of justice, that both sides consider that the test would advance this objective, and that both sides agree to have the test done. Large insurance companies with deeper financial resources may be more willing to try the test in cases they are defending, even if it potentially means losing some cases because of unfavorable individual results, on the grounds that promoting a meritorious test would further the ultimate goal of enhancing the objectivity of the forensic evaluation of mental damages, which would ultimately benefit their mission. In our forensic work to date, we have performed forensic psychophysiologic testing with the script-driven imagery procedure with 16 PTSD plaintiffs and the sudden, loud tone procedure with 15 of these plaintiffs. All were negligence tort actions. In 14 cases, we were retained by the plaintiff, and in two cases we were retained by the defense. According to the CAPS, 11 plaintiffs met DSM-IV criteria for current PTSD and 3 met the criteria for past PTSD; 2 never met the criteria for PTSD. In addition to using the CAPS to make these categorical diagnostic classifications, we used total CAPS score as a continuous measure of overall PTSD symptom severity. We also calculated CAPS subscores for the two individual PTSD symptoms that the script-driven imagery and sudden, loud tone procedures, respectively, most directly assess: “physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event” (DSMIV criterion B.5) and “exaggerated startle response” (DSM-IV criterion D.5). To analyze the physiologic script-driven imagery data in these 16 plaintiffs, we first took the heart rate, skin conductance, and lateral frontalis electromyogram responses during personal traumatic imagery of 178 survivors of a wide variety of traumatic events whom we had studied in our laboratory over the past 15 years. Of these 178 research subjects, 92 had

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current PTSD, and 86 never had PTSD. We used a statistical discriminant analysis procedure to derive the function, incorporating all three dependent physiologic measures, that best discriminated the two research groups. This a priori discriminant function was then used to calculate the probability, on the basis of physiologic reactivity alone, that each of the 16 plaintiffs would be classified as having current PTSD. The success of applying this function in the forensic setting was tested in several ways. First, we calculated the correlation between a plaintiff’s physiologic probability of being classified with current PTSD and the plaintiff’s total CAPS score. Second, we used the Student t test to compare physiologic probability scores in the 11 plaintiffs who were clinically diagnosed with PTSD at the time of the testing with the five plaintiffs who were not. Third, we identified the probability cut-off score that best separated these two groups of plaintiffs and examined the statistical significance of the resulting 2 ´ 2 classification table with the Fisher exact test. Fourth, we calculated the correlation between a plaintiff’s physiologic probability of being classified with PTSD and the plaintiff’s DSM-IV PTSD criterion B.5 CAPS subscore. All of these tests yielded statistically significant results in the predicted direction (R. K. Pitman and S. P. Orr, manuscript in preparation). The conclusion from these analyses is that the psychophysiologic script-driven imagery laboratory test for PTSD can be validly applied to plaintiffs in civil tort actions. The major limitations of the work to date are nonrandom selection of plaintiffs and small sample sizes, especially the small number of plaintiffs studied who did not have PTSD. The same strategy was used to analyze the results of the physiologic sudden, loud tone test in the 15 plaintiffs to whom it had been administered (11 with current PTSD, 2 with past PTSD, 2 without PTSD current or past). For this analysis, an a priori discriminant function employing three physiologic response measures—heart rate, skin conductance, and orbicularis oculi electromyogram (blink response)—was derived from data for 70 PTSD and 79 non-PTSD laboratory research subjects. We also derived an a priori discriminant function for heart rate alone. In these analyses, for both a priori discriminant functions, neither the correlation between a plaintiff’s physiologic probability of PTSD and his total CAPS score, nor the t test comparing the 11 plaintiffs with current PTSD at the time of the testing with the 4 plaintiffs without PTSD, nor the Fisher exact test on the cut-off classifications yielded statistically significant results. However, the correlation between the plaintiff’s probability of PTSD based on the a priori discriminant function employing all three variables and the plaintiff’s DSM-IV PTSD D.5 criterion score nearly achieved statistical significance in the predicted direction. For the a priori discriminant function using heart rate alone, this correlation was statistically significant in the predicted direc-

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tion. The conclusion of these analyses is that the psychophysiologic sudden, loud tone test procedure has not been shown to be a valid measure for assessing the overall PTSD diagnosis in the forensic setting, but it does appear to be a valid measure for assessing the specific PTSD symptom “exaggerated startle response.” The same ascertainment and sample size limitations described earlier for script-driven imagery studies apply for sudden, loud tone test studies. It is important to note that a discrepancy between a self-reported symptom and a laboratory test result does not necessarily imply that the test result is wrong. Let us say, for example, that during a CAPS interview, a trauma victim reports subjectively experiencing physiologic reactivity whenever he or she is reminded of the traumatic event, but when tested in the laboratory the individual shows no signs thereof. If the CAPS were chosen as the “gold standard,” then the laboratory result would be regarded as a false negative. However, if the laboratory result were taken as the gold standard, then the individual’s report of this PTSD symptom would become a false positive. Juxtaposing the negative test result with the positive symptom report may have the (not necessarily unjustified) effect of calling into question the validity of the claimed PTSD symptom. Conversely, a trauma victim might deny becoming physically upset when reminded of the traumatic event, but the laboratory result may demonstrate otherwise. Ultimately, in the case of conflicting results, a jury may need to decide which it finds more believable: the “subjective” symptom or the “objective” sign.

Comprehensibility A desirable feature of a reliable and valid forensic laboratory test for PTSD is that the fact finder be able to understand what an abnormal result on the test means. Suppose, for example, that the level of an obscure chemical in the blood were found to be reliably associated with PTSD and to be the result of exposure to the traumatic event, but its role in the pathophysiology of the disorder were unknown. Jurors would have difficulty integrating the meaning of the blood test result into their understanding of the facts of the case, and the expert who performed the test would be unable to assist them. They would be left to accept the test result on blind faith in an incomprehensible scientific process. Even if they were to do so, it is unlikely they would assign to the test result as much weight as they would if it made sense to them. Fortunately, the meaning of increased physiologic responses during script-driven recollection of a traumatic event is intuitively obvious. If an expert can show through laboratory testing that a plaintiff’s heart rate, skin conductance level, and facial electromyographic activity rise substantially

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when he or she thinks of the accident, jurors can readily understand that the memory of the accident is still alive in the victim’s mind and that the victim gets emotionally upset when thinking about it. More sophisticated jurors and judges may also be able to understand a conditioning model, through which stimuli that symbolize, resemble, or are otherwise associated with a traumatic event acquire the capacity to subsequently evoke strongly conditioned emotional and physiologic responses in individuals who develop PTSD. Although not as immediately intuitive, the comprehensibility of increased physiologic responses to sudden, loud tones is facilitated by presenting them as indicators of the startle response. Most jurors will readily understand that nervous individuals are more “jumpy” and startle more easily. Many will also recognize an increased startle response as a classic sign of combat fatigue, as in the combat veteran who ducks for cover whenever he oe she hears a loud noise, and they will be able to generalize from this response to increased startle response as a consequence of other, noncombat traumatic events.

Feasibility Tests that have successfully negotiated the stages described in the preceding sections will be of little use if their implementation is not feasible. Tests that involve more than minimal risk, physically painful procedures, or invasive techniques are unlikely to gain widespread acceptance. Cost-benefit ratio considerations may also enter into the picture, especially in legal cases in which the stakes are not high. For example, plaintiffs, defendants, or their attorneys may be unwilling to pay for a neuroimaging procedure that costs thousands of dollars to perform if the investment is unlikely to pay off, even if the test result turns out as the party would like.

Availability Another hurdle to forensic use is the availability of the test. A blood test for PTSD, if one were to be found that passed the stages described earlier, might be implemented anywhere, especially if the blood sample could be mailed to the laboratory performing the test. The psychophysiologic tests described earlier have the disadvantage of presently being performed in only a single location. Conducting these tests requires that the plaintiff travel. In some cases, this may violate cost-benefit considerations. In other cases, plaintiffs may be unwilling or unable to travel, especially to fly, if they are severely psychologically distressed or physically ill. Establishing additional laboratories at new sites to perform the testing is feasible, but the

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set-up and training expenses would be substantial. Bringing a portable laboratory to the plaintiff is also possible, but the expense would be considerable and might be justified only in cases in which a group of plaintiffs are located in one area.

Admissibility Even if a laboratory test for PTSD has successfully negotiated the preceding six stages of development, it is of no forensic use if the jury is barred from learning its result for a given plaintiff. Since 1993, the admissibility of scientific evidence in federal courts, and by now in many state jurisdictions as well, has been governed by the U.S. Supreme Court’s landmark opinion in Daubert v. Merrell Dow Pharmaceuticals (1993). Under Daubert, it is up to the trial judge to determine whether proferred scientific evidence is sufficiently reliable to be admitted for the jury’s consideration. As noted earlier, the legal notion of reliability is broader than the medical or psychological notion and roughly comprises the medical notions of reliability and validity. The Daubert decision cited five guidelines by which the reliability of expert scientific testimony should judged: 1) falsifiability (i.e., the theory is capable of being, and has been, scientifically tested), 2) established standards for administering the scientific test or procedure, 3) the test’s or procedure’s known error rate, 4) publication of the test in peer-reviewed journals, and 5) general acceptance of the test in the relevant scientific community. Importantly, the focus of the inquiry must be solely on a test’s underlying principles and methods, not on the conclusions it generates in a given case. In the following, we illustrate the application of the Daubert guidelines to the two psychophysiologic tests described earlier in the chapter. With regard to falsifiability, both tests are capable of being disproven in quantitative scientific experiments. Each has been subjected to falsification in several experiments (reviewed in Pitman et al. 1999) and has withstood the research. Each remains a scientifically credible and viable marker of PTSD as a whole and of specific PTSD symptoms, although as noted earlier, in the forensic setting this is not (at least not yet) true for the sudden, loud tone procedure as a measure of overall PTSD. Each test has published standards (i.e., established methodologies for its administration). The error rate of each procedure is designated by the known sensitivity and specificity of the research samples used to derive the discriminant functions described earlier. Each test has been published in several peer-reviewed journal articles. The general acceptance of the psychophysiologic script-driven imagery procedure is attested to by its codification in DSM-IV under PTSD criterion B.5. Exaggerated startle response as a feature of PTSD is codified as

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DSM-IV criterion D.5. The general acceptance of the psychophysiologic sudden, loud tone procedure as a means of assessing startle response relies on several published studies and the lack of substantial criticism directed at their results. Of the 16 cases involving the plaintiffs in whom these tests have been performed, 2 have gone to trial. In both cases, the results were challenged by the defense, and in both cases the judge admitted the evidence. Because neither decision to admit was appealed, there is no published legal precedent. One of the two cases (Vinal v. New England Telephone 1993) has been described in the forensic psychiatric literature (Pitman et al. 1993). The other case (Jiron-Waldron et al. v. Southland Corp. 1994) had an interesting facet. The state in which it was tried had statutory limits for pain and suffering damages. However, counsel argued that the psychophysiologic test results established that the plaintiff had sustained a “physical injury” during the traumatic event (in which she watched her husband stabbed to death) and therefore that she should not be subjected to the pain and suffering damages cap. The defense contested this, but plaintiff prevailed. In another case, plaintiff failed to prove negligence in a bifurcated trial, so damages were not considered. Two other cases are still pending. In the remaining 11 cases, the test results for or against PTSD influenced the amount of the settlements to varying degrees.

Criminal Law Considerations Although the two laboratory tests for PTSD described in this chapter have fared reasonably well in negotiating the required stages for a forensic test in civil cases, there, unfortunately, is little to report on their use in criminal cases, in which they have not been applied. Although the utility of laboratory tests for PTSD in criminal cases is conceivable, there is a formidable additional hurdle. In civil cases, establishing the presence of PTSD often suffices to establish mental damages. In criminal cases, however, establishing the presence of PTSD alone is insufficient to exonerate, because there is a long leap from the mere presence of PTSD to a causal connection between the PTSD and the criminal act in question. Often the prosecution will not challenge the diagnosis but will challenge its role in the mens rea element of a crime and its sufficiency to relieve an individual from criminal responsibility. Nevertheless, establishing the existence of PTSD may be helpful in some insanity or diminished-capacity defenses or in sentencing considerations. Should the prosecution dispute the diagnosis in a claimant, laboratory testing could be helpful in supporting or refuting it. The PTSD diagnosis may also enter into self-defense defenses (e.g., “battered woman”).

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Conclusion With advances in the medical sciences, so-called evidence-based medicine is increasingly becoming the standard that guides good medical and psychiatric practice, including the diagnosis and treatment of PTSD (Foa et al. 2000). Although legal “evidence” can be of many and varied kinds, reliable scientific evidence as defined by the U.S. Supreme Court in Daubert may be regarded as a legal counterpart of evidence-based medicine. It has been nearly 20 years since Raifman (1983) proposed that expert witness testimony regarding PTSD should be “increasingly supported by empirically based research data” (p. 115). Data obtained through laboratory testing have the potential to enhance expert testimony in the area of PTSD. Current applications, however, are limited and require careful scrutiny to avoid misuse. Continuing to develop reliable, valid, and applicable laboratory tests for PTSD and other mental disorders represents an exciting frontier of forensic psychiatry.

References American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition. Washington, DC, American Psychiatric Association, 1994 Anastasi A: Psychological Testing. New York, Macmillan, 1988 Blanchard EB, Hickling EJ, Buckley TC, et al: Psychophysiology of posttraumatic stress disorder related to motor vehicle accidents: replication and extension. J Clin Consult Psychol 64:742–751, 1996 Bonne O, Brandes D, Gilboa A, et al: Longitudinal MRI study of hippocampal volume in trauma survivors with PTSD. Am J Psychiatry 158:1248–1251, 2001 Bremner JD: Alterations in brain structure and function associated with post-traumatic stress disorder. Semin Clin Neuropsychiatry 4:249–255, 1999 Carson MA, Paulus LA, Lasko NB, et al: Psychophysiologic assessment of posttraumatic stress disorder in Vietnam nurse veterans who witnessed injury or death. J Consult Clin Psychol 68:890–897, 2000 Daubert v Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) De Bellis MD, Hall J, Boring AM, et al: A pilot longitudinal study of hippocampal volumes in pediatric maltreatment-related posttraumatic stress disorder. Biol Psychiatry 50:305–309, 2001 Foa EB, Keane TM, Friedman MJ (eds): Effective Treatments for PTSD. New York, Guilford, 2000 Friedman MJ (ed): Progress in the psychobiology of post-traumatic stress disorder. Semin Clin Neuropsychiatry 4(special issue):230–316, 1999 Goldberg J, True WR, Eisen SA, et al: A twin study of the effects of the Vietnam War on posttraumatic stress disorder. JAMA 263:1227–1232, 1990

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Jiron-Waldron et al v Southland Corp, Denver, Colorado District Court, 1994 Keane TM, Kolb LC, Kaloupek DG, et al: Utility of psychophysiological measurement in the diagnosis of posttraumatic stress disorder: results from a Department of Veterans Affairs Cooperative Study. J Consult Clin Psychol 66:914– 923, 1998 Lang PJ : The cognitive psychophysiology of emotion: fear and anxiety, in Anxiety and the Anxiety Disorders. Edited by Tuma AH, Maser J. Hillsdale, NJ, Erlbaum, 1985, pp 131–170 Nunnally JC, Bernstein IH. Psychometric Theory. New York, McGraw-Hill, 1994 Pitman RK, Orr SP: Psychophysiologic testing for post-traumatic stress disorder: forensic psychiatric application. Bull Am Acad Psychiatry Law 21:37–52, 1993 Pitman RK, Orr SP, Forgue DF, et al: Psychophysiologic assessment of posttraumatic stress disorder imagery in Vietnam combat veterans. Arch Gen Psychiatry 44:970–975, 1987 Pitman RK, Orr SP, Bursztajn HJ: Vinal v New England Telephone: admission of PTSD psychophysiologic test results in a civil trial. American Academy of Psychiatry and the Law Newsletter 18:67–69, 1993 Pitman RK, Orr SP, Shalev AY, et al: Psychophysiologic alterations in post-traumatic stress disorder. Semin Clin Neuropsychiatry 4:234–241, 1999 Pitman RK, Lanes DM, Williston SK, et al: Psychophysiologic assessment of posttraumatic stress disorder in breast cancer patients. Psychosomatics 42:133– 139, 2001 Raifman LJ: Problems of diagnosis and legal causation in courtroom use of posttraumatic stress disorder. Behav Sci Law 1:115–131, 1983 Shalev AY, Orr SP, Peri P, et al: Physiologic responses to loud tones in Israeli posttraumatic stress disorder patients. Arch Gen Psychiatry 49:870–875, 1992 Shalev AY, Peri T, Brandes D, et al: Auditory startle responses in trauma survivors with PTSD: a prospective study. Am J Psychiatry 157:255–261, 2000 Vinal v New England Telephone, Massachusetts Superior Court, Lowell, MA, 1993 Weathers FW, Keane TM, Davidson JR: Clinician-administered PTSD scale: a review of the first ten years of research. Depress Anxiety 13:132–156, 2001

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Index Page numbers printed in boldface type refer to tables. Accident neurosis, 32 Acute PTSD duration of symptoms and diagnosis of, 46 prognosis for, 76–77 subtypes of PTSD and, xxi Acute stress disorder (ASD), 27, 46, 94 Adjustment reaction of adult life, 42 Admissibility. See Evidence Adolescents, and developmental impact of trauma, 102–103. See also Children Adrenocorticotropic hormone (ACTH), 98 Affective disorders, comorbidity with PTSD, 23 African Americans, and children as witnesses of violence, 95. See also Race Age, and PTSD. See also Adolescents; Children prevalence of in veterans, 27 risk factors for in children, 97 symptoms of in children, 93 American Academy of Child and Adolescent Psychiatry, 104 American Journal of Psychiatry, xxii American Medical Association. See Guides to the Evaluation of Permanent Impairment Americans with Disabilities Act (ADA 1990), 163, 166, 178–182 Amnesia, 49 Anger, and PTSD in adolescents, 103 Animal studies of laboratory tests for PTSD, 211 of operant conditioning and learned helplessness, 147 Antidepressants, 31

Antisocial personality disorder comorbidity with PTSD, 23, 66 differential diagnosis of PTSD and, 197–198 Anxiety disorder NOS (not otherwise specified), 55 Anxiety disorders classification of PTSD in DSM-IV and, 52 comorbidity with PTSD, 23, 24, 147 employment rates and, 176 traumatic exposure and, 33 Applicability, of laboratory tests for PTSD, 215 Armenia, and earthquake, 103 Arousal. See also Hyperarousalintrusive symptoms postconcussive syndrome and, 50 PTSD in children and, 110 symptoms of PTSD and, 47, 48 Asbestos, and claims of psychic injury, 63 Assault, patterns of recovery from sexual vs. nonsexual, 26–27 Attention-deficit/hyperactivity disorder (ADHD), 93, 100 Attorneys, misuse of DSM-IV diagnostic criteria by, 52 Audiotapes, and malingered combatrelated PTSD, 201 Australia, prisoners of war and functional impairments, 141–142 Availability, of laboratory tests for PTSD, 219–220 Avoidable consequences, doctrine of, 150–151 Avoidance, and symptoms of postconcussive syndrome, 50 of PTSD, 47, 199

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Battered woman syndrome, 9–10. See also Domestic violence Battle fatigue, 42 Biologic studies, of trauma and PTSD, 34. See also Psychophysiologic responses Biophysiologic general adaptation syndrome, 48 Borderline personality disorder comorbidity with PTSD, 66 PTSD and preexisting, 69 traumatic exposure and, 22, 33, 66– 67 Bosnian refugees, and disabling effects of PTSD, 142 Buffalo Creek flood (West Virginia), 41, 77, 81–82, 96–97 Burkett, B. G., xxi California, and workers’ compensation, 51–52, 145, 173 Canada, and prevalence of PTSD following trauma, 22 Case formulation, and forensic evaluation, 135 Case studies, of PTSD diagnostic criteria and, 53 employment litigation and, 165– 166, 173–174, 178–179 functional impairment and, 76, 173–174 psychiatric history and, 68–69 subjective reporting of symptoms and, 72–73 sufficiency of traumatic stressors and, 64–65 workers’ compensation and causation, 171 Categories of function, and disability assessment, 152–153 Causation correlation and, 210 employment litigation and PTSD claims, 165–170 legal definition of, xxiii–xxiv

PTSD as trauma specific and, 47 workers’ compensation and forensic evaluations, 171–173 Challenger space shuttle explosion (1986), 95 Chaotic narrative construction, and children, 110 Child abuse. See also Sexual abuse dissociative identity disorder and, 66 PTSD in children and, 96 as risk factor for PTSD, 31, 66–67 Children, and PTSD. See also Age; Child abuse; Preschool children acute stress disorder and, 94 common causes of, 95–96 comorbidity and, 99–101 developmental impact of trauma, 101–104 forensic evaluations and, 104–113 manifestations of, 91–93 neurobiologic correlates of, 98–99 prevalence and course of, 96–97 risk factors for, 97–98 sequelae of trauma in, 94–95 subthreshold PTSD and, 94 treatment of, 103–104 Child sexual abuse accommodation syndrome, 10 Chowchilla school bus kidnapping, 67 Chronic pain, 24, 177 Chronic PTSD duration of symptoms and, 45–46 prognosis for, 77, 78–79 psychotic symptoms and, 23 subtypes of PTSD and, xxi Civil cases. See also Litigation present status of PTSD claims, 7–9 workers’ compensation and, 171– 172 Civil Rights Act of 1964, 163, 166 Clinical indicators, of malingered combat PTSD, 199

Index Clinician-Administered PTSD Scale (CAPS), 126–127, 151, 212, 213, 216, 217, 218 Cognitive-behavioral therapy, for PTSD, 31, 80, 103 Cognitive functioning, and PTSD in children, 92, 98, 100, 102, 107 Collateral data, and forensic evaluations, 134–135, 190, 196. See also Third parties Colorado, and categories of function, 152–153 Combat stress reactions (CSRs), 27 Comorbidity, of PTSD with other diagnoses children and, 99–101 development and maintenance of PTSD symptoms and, 60 disability and work impairment, 146–147 forensic evaluations and, 62, 66, 81 prevalence of, 22–24, 67 prognosis and, 78 psychological assessment and, 122– 123 subthreshold PTSD and, 54–55 treatment and, 81 Compensation neurosis, 32 Competence, and qualification as expert witness, 12 Complex posttraumatic stress disorder, 67 Comprehensibility, and laboratory tests for PTSD, 218–219 Concentration camp syndrome, 42 Conceptual models, for assessment of PTSD, 121 Conduct disorders, 103 Confidentiality, and forensic evaluations, 133 Consciousness, during traumatic event and development of PTSD, 53 Convenient focus, forensic evaluations and concept of, 74

227 Coping styles, and work impairment, 146, 148 Corroboration, of disability, 153–154 Cortical activity, and PTSD in children, 98 Cost-benefit analysis, and laboratory tests for PTSD, 219 Countertransference, and forensic evaluations of children, 108 Course of illness, in PTSD, 25–28, 33, 96–97 Credibility, of children, 108 Criminal cases. See also Assault; Litigation; Rape diagnosis of in victims and, 41–42 laboratory tests for PTSD and, 221 malingered PTSD in veterans and, 201–202 present status of PTSD claims in, 9–10 PTSD in children and, 112–113 Cryptotrauma, 62 Cultural differences, in symptoms of PTSD, 48 Damage awards. See also Financial compensation; Tort law assessment of and definitions of legal terms, xxiii, xxvi for economic loss due to disability, 149 functional impairment and employment litigation, 173– 178 Daubert v. Merrell Dow Pharmaceuticals (1993), 6–7, 13, 220, 222 Debriefing, of trauma victims, 148 Delayed-onset PTSD in children, 93 duration of symptoms and, 47 reexperiencing symptoms and, 45 subtypes of PTSD and, xxi Depression. See also Major depression comorbidity with PTSD, 24, 147 pain medications and, 68

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Detroit Area Survey, 20 Development, and impact of trauma on children, 101–104 Diagnosis, of PTSD. See also Differential diagnosis accuracy of as issue in litigation, xxvii acute stress disorder in children and, 94 employment litigation and, 165– 170 forensic evaluations and, 43–53, 82, 135, 165–170 in infancy and early childhood, 92– 93 judicial rule revisions and, 4–7 malingering and, 189 psychological assessment and, 120, 121–123 subthreshold PTSD and, 54–56 Diagnostic Interview Scale (DIS), 125–126 Differential diagnosis of malingered PTSD, 192, 197 of PTSD in children, 110–111 Disability, determination of in PTSD litigation. See also Functional impairments forensic evaluations and, 148– 157 guidelines for assessment of impairments, 143–146, 148, 151, 157 occupational effects of PTSD and, 141–143, 146–148 Discrimination, and employment litigation, 166–167 Disorder of extreme stress not otherwise specified, 51 Dissociation, and symptoms of PTSD, 48–49, 57, 93, 99 Dissociative identity disorder, 22, 33, 66 Document review, and forensic evaluation, 108, 133–134

Domestic violence battered woman syndrome and criminal cases, 9–10 children and PTSD, 95 Dose-response relationship, between stressor intensity and PTSD, 29, 33 Double depression, 123 Drawings, and reenactment of traumas by children, 92, 110 DSM-I, and PTSD, xx DSM-II, and PTSD, xx DSM-III classification of PTSD in, xx, 42, 188 diagnosis of PTSD and, 4–7, 135 interrater reliability studies and, 52 stressor criterion for PTSD and, xxiv DSM-III-R stressor criterion for PTSD and, xxi, xxv, 57 trauma-related disorders other than PTSD and, 47 DSM-IV classification of PTSD in, xx, 9, 42 diagnosis of acute stress disorder and, 46 diagnosis of PTSD and, 5, 44–45, 51–52, 73, 82, 135, 169–170, 191, 210 laboratory tests for PTSD and, 220 malingering and, 187 personality disorders and, 66 stressor criterion for PTSD and, xxi, xxiv, 57–58, 59, 65, 168– 169 subthreshold PTSD and, 54, 55, 56 DSM-IV-TR criteria for PTSD in children and, 92 diagnosis of PTSD and, 5, 42, 151, 180, 181 distress or impairment as criterion for PTSD in, 144 stressor criterion for PTSD in, 168

229

Index Duration delayed PTSD and, 45–46 of response to traumatic stressor, 60 of symptoms of PTSD, xxi, 45–46, 47, 60 of work impairment, 177–178 Earthquake, in Armenia, 103 Educational level, and risk factors for PTSD, 31 “Eggshell psyche” plaintiff, 60–61 Electroencephalograms, and PTSD in children, 99 Emotions definition of emotional distress, 167 malingered PTSD and expression of, 199 Employment, and PTSD. See also Disability; Work; Workers’ compensation discrimination litigation and, 165– 170, 178–182 functional impairment and damages in litigation, 173–178 guidelines, forensic evaluations, 183 Environmental conditions, PTSD and avoidance of, 199 Epidemiology, of trauma in general population, 19–20 Equal Employment Opportunity Commission (EEOC), 166 Erie Ins. Co. v. Favor (1998), 8–9 Error rates, and laboratory tests for PTSD, 220 Evidence, rules for admissibility of, xxvii–xviii, 2, 5–7, 220–221 Exaggerated startle reflex, and biologic studies of PTSD, 34, 99, 208, 218, 219, 220–221 Expectations, PTSD in adolescents and negative, 103 Expert testimony legal rules for admissibility of evidence, 2, 6–7 qualification of, 12

Exposure therapy, 31 Extreme stressor. See Stressors Factitious disorders definition of, 188 factitious disorder by proxy and children, 111 malingered PTSD compared with, 195 False imputation, and malingering, 189 False negatives, and symptoms of PTSD, 48 Falsibility, of laboratory tests for PTSD, 220 Family history, and risk factors for PTSD, 31 Fault, legal definition of, xxiii Feasibility, of laboratory tests for PTSD, 219 Federal Rules of Evidence, 5–7 Financial compensation, as motive for malingering, 187. See also Damage awards Flashbacks, as symptom of PTSD, 45, 49 Forensic evaluations, of PTSD. See also Guidelines accuracy of information used in, 13–14 basic questions for, 42–43 children and, 92, 104–113 diagnostic criteria and, 43–53 employment litigation and, 165– 170, 173–182 establishment of forensic relationship, 12–13 functional impairment and, 73–76, 173–178 litigation and, 81–82 occupational effects and disability determination, 141, 148–157 presentation of, 14 prognosis and, 76–79 psychiatric history and, 65–69

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Forensic evaluations, of PTSD (continued) psychological assessment and, 119– 136 reliability of methods and procedures for, 13 subjective reporting and, 69–73 subthreshold PTSD and, 54–56 traumatic stressors and, 56–65 treatment and, 79–81 workers’ compensation and causation, 171–173 Foreseeability, and proximate cause, 8, 14–15 Frye v. United States (1923), 6 Functional impairments. See also Disability forensic evaluation and, 73–76 health outcomes of PTSD and, 24– 25 subthreshold PTSD and, 22 Gender exposure to trauma and, 20 rates of PTSD following trauma and, 20–21 risk factors for development of PTSD and, 31, 33, 97 Generalized anxiety disorder, comorbidity with PTSD, 23 Genetic predisposition, for development of PTSD, 59, 98 Georgetown University, Program in Psychiatry and Law, xix Global Assessment of Functioning (GAF) Scale, 75, 76, 144, 146, 178 Grief, and PTSD in children, 100–101 Group therapy, 104 Guidelines, for forensic evaluations. See also Forensic evaluations children and, 113 employment litigation and, 183 general issues and, 43, 56, 65, 69, 73, 82

malingering and, 190–202 work impairment and disability, 143–146, 148, 151, 157 Guides to the Evaluation of Permanent Impairment (American Medical Association 2001), 75, 143, 144– 145, 146, 152, 153, 178 Guilt, and malingered PTSD, 198 Head injury overlapping of symptoms with PTSD, 49 PTSD following accidents causing, 192 Health care, and PTSD in children, 96. See also Medical disorders Health outcomes, of PTSD, 24–25 Heart rate, and physiologic responses of PTSD subjects, 201, 209, 213– 214 Hippocampus, and neurobiologic correlates of PTSD, 99, 210– 213 Historical accounts, and nature of trauma, 155 Holocaust survivors, and functional impairment, 141 Hyatt Regency Hotel skywalk (Missouri), 41 Hyperarousal-intrusive symptoms, of PTSD, 47, 48. See also Arousal Hyperreactivity, and biologic studies of PTSD, 34 Hypervigilance, and PTSD in children, 93 Hypothalamic-pituitary-adrenal (HPA) axis, and neurobiologic correlates of PTSD, 34, 99 Illness Behavior Questionnaire, 194 Immune system, and response to stress, 34 Impact of Event Scale (IES), 129–130 Impairment, definition of, 143. See also Functional impairments

Index Individual differences, in development of PTSD, 28–31 Insanity defense, and PTSD, 42, 112, 201 Intentional infliction of emotional distress (IIED), 175 Interviews, and forensic evaluations children and, 109–110 disability assessment and, 151–152 malingering and, 191, 194, 197 Invisible trauma, 62 Israel, and studies of psychological effects of traumatic events, 27, 214 Jiron-Waldron et al. v. Southland Corp. (1994), 221 Judicial threshold, for admissibility of evidence, 5–7 Keane PTSD Scale, 128 Korean War, aging and prevalence of PTSD in veterans of, 27 Kvintus v. R. L. Polk & Co. (1998), 181 Laboratory testing, and PTSD admissibility of, 220–221 applicability of, 215–218 availability of, 219–220 comprehensibility of, 218–219 criminal law considerations and, 221 feasibility of, 219 litigation and, 70 reliability of, 208–209 script-driven imagery and sudden loud tones, 208, 213–214, 215 validity of, 209–215 Law. See also Criminal cases; Civil cases; Litigation; Supreme Court; Tort law current scrutiny of PTSD claims and defenses, 7–10 definitions of fault, causation, and assessment of damages, xxiii– xxiv

231 forensic evaluations of children and, 105–106 future legislative changes affecting PTSD litigation, 14–15 judicial rule revisions and diagnosis of PTSD, 4–5 negligence and claims for mental distress, xxii–xxiii past limits to posttraumatic claims and, 2–4 Learned helplessness, 147 Learning, and PTSD in children, 102 Legal cause, definition of, xxiv. See also Causation Liability, diagnosis of malingering and legal, 189 Life crises. See also Stressors disability claims and, 157 malingered PTSD in veterans and, 198 Life Events Checklist, 127 Litigation, and PTSD claims. See also Civil cases; Criminal cases; Law accuracy of diagnosis and, xxvii admissibility of evidence on trauma syndromes, xxvii–xxviii duration and severity of symptoms, 60 “eggshell psyche” plaintiff and, 60– 61 employment issues and, 163–183 forensic evaluations and, 81–82 impact of on PTSD, 32, 57, 82 laboratory testing and, 70 malingering and, xxi–xxii minor stressors and, 64–65 misuse of DSM-IV diagnostic criteria, 52–53 occupational effects and disability determination, 141–158 psychological assessment and, 136 subjective nature of PTSD and, 207 trends in, 1–15 Longitudinal studies, on type of event and course of PTSD, 28

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Louisiana, and claims of PTSD by criminal defendants, 9 Magnetic resonance imaging (MRI), 211, 212 Maine, and sensitive vs. supersensitive plaintiffs, 61 Major depression. See also Depression comorbidity with PTSD, 23 subsyndromal symptoms of, 54 traumatic exposure and, 33, 123 Malingering, and PTSD children and, 110–111 definition of, 188 disability determinations and, 149 employment litigation and, 176 incidence of, 189 reluctance to diagnose, 189 Medical disorders. See also Health care health outcomes of PTSD and, 24– 25 PTSD and preexisting, 67 Memory, and symptoms of PTSD, 49, 107 Mental injury, and workers’ compensation, 172–173 Mental status examination, and disability assessment, 152 Michigan, and concept of causation in workers’ compensation, xxv Mind-body duality, in tort law, 3 Minnesota Multiphasic Personality Inventory (MMPI), 124, 128–129, 151, 194, 200–201 Mississippi PTSD Scale, 129 Mississippi Scale for Combat-Related PTSD (MS-PTSD), 200 Mitchell v. Rochester Railway Co. (1896), xxii M’Naghten test, 4 Motivation for malingering, 187 for recovery from PTSD, 78 Multiple exposures, to traumatic events, xx, 30–31, 34, 65

Narcissistic symptoms, traumaassociated, 65, 81 National Center for PTSD (Boston), 130 National Comorbidity Survey (NCS), 19, 20, 25, 58, 143 National Institute of Mental Health (NIMH), 52 National Vietnam Veterans Readjustment Study (NVVRS), xxi, 128, 142 National Women’s Study, 30 Natural disasters impact of compared with manmade stressors, 57 PTSD in children and, 96–97 Natural and probable cause-and-effect relationship, and causation, xxiii Negligence, and claims for mental distress, xxii–xxiii Negligent infliction of emotional distress (NIED), 175 Neurobiologic consequences of PTSD in children, 98–99 of severe stress, 70 Neuroticism, and PTSD, 66 Nightmares, as symptom of PTSD, 49, 51, 193, 198 Noise, and laboratory tests for PTSD, 208, 209, 213–214, 217–218, 219, 221 Noncompliance, with treatment of PTSD, 80 North Carolina job instability in PTSD subjects and, 142 lifetime prevalence of PTSD in, 58 Norway, and health outcomes of PTSD, 24–25 Numbing-constriction phase, of PTSD, 47, 48 Oakland/Berkeley firestorm (California), 57 Occupational effects, of PTSD, 141– 158. See also Work

Index Oklahoma City bombing, 142 Operant conditioning, 147 Operation Outreach, 195 Oregon, and concept of causation in workers’ compensation, xxv Pain medications, and depression, 68 Pain and suffering, awards for, xxiii Pankratz, Loren, xxii Parents forensic evaluations of children and, 92, 107, 109 PTSD in adolescents and, 102 response to trauma and risk of PTSD in children, 97 treatment of PTSD in children, 104 Partial disability, 150, 156 Partial malingering, 189 Partial PTSD DSM-IV diagnostic criteria and, 54 prevalence of, 22 Patient history. See Psychiatric history Pepys, Samuel, xix Peritraumatic dissociation, 30 Permanent disability, 150, 151, 156 Personality, and PTSD, 66, 78–79 Personality disorders. See also Antisocial personality disorder; Borderline personality disorder comorbidity with PTSD, 147 forensic evaluations of PTSD, 66 psychological tests and, 74 traumatic exposure and, 22, 33 Pharmacotherapy forensic assessment of functional impairment in PTSD and, 75 forensic evaluations and treatment of PTSD, 80 for PTSD in children, 104 recent research on PTSD and, 31–32 Phasic features, of PTSD, 48 Phobias comorbidity with PTSD, 23 psychophysiologic responses and, 208

233 PTSD and preexisting, 69 work-related accidents and, 177 Physical harm, and requirements for claim of mental or emotional injury, 8 Physical-mental claims, and workers’ compensation, 172 Play, and trauma exposure in children, 92, 110 Postconcussive syndrome, 49, 50, 192 Posttrauma factors, and prognosis of PTSD, 79 Posttraumatic Diagnostic Scale (PDS), 130 Posttraumatic stress disorder (PTSD) . See also Acute PTSD; Chronic PTSD; Comorbidity; Forensic evaluations; Litigation; Risk factors; Subthreshold PTSD; Symptoms; Treatment in children and adolescents, 91–114 employment litigation and claims of, 163–183 epidemiology of, 19–34 exposure to multiple events and, xx, 30–31, 34, 65 extreme stressor as diagnostic criteria for, xx–xxi forensic laboratory testing for, 207– 222 forensic psychological assessment in, 119–136 impact of litigation on, 32, 57, 82 malingering and, xxi–xxii, 187–202 occupational effects of, 141–158 subtypes of, xxi terminology for, xix, 2, 10–12, 42, 188 trends for role of in litigation, 1–15 Practice Parameters for the Assessment and Treatment of Children and Adolescents With Posttraumatic Stress Disorder (American Academy of Child and Adolescent Psychiatry 1998), 104

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Preschool children developmental impact of trauma, 101 effects of war on, 97 memory and, 107 Presentation, of forensic evaluation for PTSD, 14 Prevalence of comorbidity of PTSD with other diagnoses, 22–24 of exposure to trauma, 19–20, 122 of malingered PTSD, 189, 195 of PTSD in children, 96–97 of PTSD by type of event, 58 of PTSD following traumatic exposure, 20–21, 33, 66, 170 of subthreshold PTSD, 55 Prisoners of war (POWs) functional impairment and disability, 141–142 lifetime vs. current rates of PTSD in, 26, 58 prognosis of PTSD in, 79 Problem solving, and work impairment, 146 Prognosis, of PTSD employment litigation and, 178 forensic evaluations and, 76–79, 80 Protective factors, and PTSD in children, 98 Proximate cause, legal definition of, xxiv, 7–8 Pseudo-PTSD, 62–63 Psychiatric disorders. See also Comorbidity other than PTSD associated with traumatic exposure, 22, 33, 47 PTSD and preexisting, xxvi–xxvii, 122, 170 Psychiatric history children and, 106 forensic evaluations and, 65–69, 106 as risk factor for PTSD, 31 Psychiatrists, and forensic evaluations, 70–71

Psychobiologic responses. See Psychophysiologic responses Psychodynamic therapy, 80 Psychological testing, and PTSD children and, 111 common problems in, 123–124 diagnostic issues and, 120, 121–123 litigation and value of, 136 malingering and, 194, 200–201 psychometric measures, 127–131 psychophysiologic studies and, 131–132 reports on, 132–135 structured interviews and, 125–127 Psychometric measures, of PTSD, 127–131 Psychophysiologic responses, and PTSD criminal law considerations and, 221 diagnostic criteria for PTSD and, 70 psychological assessment and studies of, 131–132 script-driven traumatic imagery and sudden, loud tones, 208, 209, 213–214, 216–219, 221 stages in implementation of laboratory testing for, 208–221 Psychosocial treatments, for PTSD, 31 Psychotic symptoms, and chronic PTSD, 23 PTSD Checklist (PCL), 130–131 PTSD Interview, 126 Pure malingering, 189 Race, and risk factors for PTSD, 31. See also African Americans Railway spine, 2, 4 Rape. See also Rape trauma syndrome forensic evaluations and, 63–64 lifetime vs. current rates of PTSD, 26 prevalence of PTSD following, 21, 58

Index prognosis of PTSD following, 77 PTSD and lack of consent by victim, 113 risk factors for PTSD following, 30 support system and development of PTSD, 60 Rape trauma syndrome, xxvii–xxviii, 10, 11, 113 Recording, of forensic evaluation, 108–109. See also Videotaping Reexperiencing, of trauma as symptom of PTSD, xx, 45, 49, 51 Referrals, sources of for forensic evaluations, 133 Refugees, and disabling effects of PTSD, 142 Regression, and impact of litigation on PTSD, 82 Reliability DSM-III and interrater, 52 of laboratory tests for PTSD, 208– 209 of methods and procedures of forensic evaluation of PTSD, 13 Reports, on forensic psychological assessment, 132–135. See also Selfreports; Subjective reporting; Written reports Responsible cause, xxiv Risk factors, for development of PTSD, 29–31, 33, 59–60, 97–98 Schizophrenia, 75, 147 School-age children, and developmental impact of trauma, 102 Schools, and PTSD in children, 93, 103 Scripts forensic evaluations of children and, 107 laboratory tests for PTSD and scriptdriven traumatic imagery, 208, 215, 216–217, 218–219

235 Selective serotonin reuptake inhibitors (SSRIs), 31–32 Self-defense, and criminal cases, 112 Self-esteem and self-mutilation, and child abuse, 94 Self-reports forensic evaluations and, 74 laboratory test results and, 218 work functioning and, 142 September 11, 2001 (terrorist attacks), xix, 41, 93, 100, 119 Setting of employment and work-related trauma, 155 for forensic assessment of functional impairment, 75 Sexual abuse. See also Child abuse PTSD in children and adolescents, 66–67, 91–92, 93, 94, 95, 96, 97, 102 subthreshold PTSD and, 54 Sexual dysfunction, and malingering, 193 Sexual harassment, and employment litigation, 166, 167, 168 Shame, and child abuse, 95 Shell shock, 2, 4, 42 Short-term memory deficits, and PTSD, 49 Sleep, PTSD and disturbed, 34 Social and Occupational Functioning Assessment Scale (SOFAS), 178 Social phobia, subthreshold, 54 Social Security Administration, 145 Social Security Disability Insurance (SSDI), 174–175, 178 Somatization disorder, 147 Somatoform version, of PTSD, 51 Source misattribution, by children, 107 Sparr, Landy, xxii Spencer v. General Electric Co. (1988), 64, 167, 175 Standards, for laboratory tests of PTSD, 220

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Startle reflex. See Exaggerated startle reflex State v. Kim (1982), 63–64 Steinhauser v. Hertz Corp. (1970), xxvi– xxvii Sterling v. Velsicol Chemical Corp. (1988), 63 Stolen Valor (Burkett and Whitley 1998), xxi Stress. See also Stressors hippocampus and, 211 immune system and, 34 Stressors. See also Life crises; Stress; Trauma DSM-IV definition of, 168–169 forensic evaluations and, 56–65 severity of and development of PTSD, 28–29 Stressor-susceptibility model, of PTSD, 59 Structured Clinical Interview for DSM-III-R (SCID), 125 Structured Interview for PTSD (SI-PTSD), 126, 151 Structured interviews, 125–127, 134 Subjective reporting, and forensic evaluations of PTSD, 69–73. See also Reports Substance abuse disorders comorbidity with PTSD, 23, 24, 100, 123, 147 traumatic exposure and, 33, 67, 123 Subthreshold PTSD children and, 94 DSM-IV and diagnosis of, 169–170 forensic evaluations and, 54–56 functional impairment and, 22 Sudden, loud tones, 208, 209, 213– 214, 217–218, 219, 221 Suggestibility, and forensic evaluations of children, 108 Suicide, and PTSD in veterans, 201–202 Support system development of PTSD and, 60 prognosis of PTSD and, 79

Supreme Court employment discrimination claims and, 181 sexual harassment and, 166 Surveillance, and corroboration of disability, 154 Symptoms, of PTSD. See also Arousal; Avoidance; Dissociation; Flashbacks; Nightmares; Reexperiencing in children, 93 comorbidity and, 60 cultural differences in, 48 duration of, xxi, 45–46, 47, 60 false negatives and, 48 head injury and, 49 memory and, 49, 107 psychotic, 23 subjective reporting of, 72–73 Syndrome evidence, and employment litigation, 167 Teachers, and PTSD claims, xxv Temporal proximity, to trauma and risk of PTSD in children, 97 Temporary disability, 150, 156 Terrorism. See September 11, 2001 Theriaulta v. Swan (1989), 61 Third parties, and forensic evaluations. See also Collateral data children and, 75 corroboration of disability and, 153–154 functional impairment and, 75 malingered PTSD and, 196 Thomas, Clarence, 166 Three Mile Island nuclear accident (Pennsylvania), 41 Threshold effect, for stressor severity and PTSD, 29 Threshold model, for evaluation of malingered PTSD, 194 Timing, of work impairment, 156 Title VII of Civil Rights Act (CRA) of 1964, 163, 166

Index Tonic features, of PTSD, 48 Tort law. See also Damage awards; Law; Litigation doctrine of avoidable consequences, 150–151 past limits to posttraumatic claims and, 2–3 reform of, 15 workers’ compensation and causation, 171 Total disability, 150, 151, 156 Toxic substances, PTSD and exposure to, 62–63 Trauma. See also Stressors developmental impact of on children, 101–104 disability assessment and nature of, 154–155 multiple events and development of PTSD, 30–31, 34, 65 personal imagery of, 208, 209, 213, 216–217, 218–219 prevalence of, 19–20 psychiatric disorders other than PTSD associated with, 22, 33, 47 as relative concept, xxv sequelae of in children, 94–95 specific syndromes and, xxvii–xxviii Type I and Type II, 93 Traumatic neurosis, xx, xxiv–xxv, 42, 188 Treatment, of PTSD in children and adolescents, 103– 104 coping styles and alternative approach to, 148 forensic evaluation and, 79–81 recent research on, 31–32 roles of treating psychiatrist and forensic expert, 70–71 Triggered neurosis, xxv True traumatic neurosis, xiv–xxv Trust children and, 94, 101 exposure to trauma and, 60

237 Twin studies, and laboratory test for PTSD, 211–212, 213–214 Type I and Type II trauma, 93 U.S. Department of Defense, 196 U.S. General Accounting Office, 189 Validity, of laboratory tests for PTSD, 209–215 Veterans Administration (VA), xxi, 73, 195 Victim rights movement, 41–42 Videotaping, of forensic evaluations, 14, 108–109, 194 Vietnam veterans disability claims by, 142 functional impairment in PTSD and, 25, 142 malingered PTSD in, 195, 197 prevalence of PTSD in, 21, 26, 58 prognosis for PTSD in, 77 PTSD and comorbidity, 23 stressor severity and development of PTSD, 28 subthreshold PTSD and, 54 support system and development of PTSD, 60 Vinal v. New England Telephone (1993), 221 Violence, in workplace, 168. See also Criminal cases; Domestic violence; War and war veterans Warsaw Convention, 8 War and war veterans. See also Prisoners of war; Vietnam veterans; World War II combat stress reactions (CSRs) and, 27 malingered PTSD in, 195–202 PTSD in children and, 97 Weaver v. Delta Airlines, Inc. (1999), 8 Work. See also Occupational effects; Workers’ compensation functional impairment and, 74

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Work (continued) malingering and, 193 setting of and nature of trauma, 155 violence in workplace, 168 Workers’ compensation causation and, 171–173 classification of impairments and, 145–146, 149–150 concept of causation and, xxv DSM-IV and diagnosis of PTSD, 5 rating system and DSM-IV, 51–52

World Trade Center. See September 11, 2001 World War II. See also War and war veterans aging and prevalence of PTSD in veterans of, 27 prognosis for PTSD in veterans of, 77, 79 Written reports, and forensic evaluations of children, 111–112. See also Reports