Psychological Personal Injury Evaluations, Trauma, and Post Traumatic Stress Disorder
This article reviews best practices for conducting psychological personal injury evaluations in civil proceedings. It may be useful for attorneys to review in order to understand the components of an effective personal injury evaluation and to prepare for the cross-examination of opposing psychological experts.
During personal injury evaluations, the primary issue at hand is not the plaintiff’s current psychological functioning, but the extent, if any, to which the plaintiff’s psychological status has changed and/or deteriorated as a result of the alleged traumatic event. Thus, the forensic psychologist must establish a clear picture of the plaintiff’s pre-injury psychological functioning through a review of pre-injury records and collateral interviews with medical and non-medical individuals who can provide insight into the plaintiff’s functioning before and after the alleged traumatic event. The most useful individuals to interview are those who have had significant contact with the plaintiff, before and after the alleged traumatic event, but have no personal stake in the outcome of the plaintiff’s legal proceedings. It is highly useful for the forensic psychologist to create a timeline of major life events and stressors prior to the alleged trauma.
Importantly, research suggests that even well-meaning and honest plaintiffs tend to report a more superior degree of pre-injury psychological functioning than they in fact demonstrated. The propensity of plaintiffs to intentionally or unintentionally exaggerate their pre-injury psychological adjustment, often labeled the “good old days” phenomena, necessitates that the forensic psychologist synthesizes multiple sources of information in determining pre-injury psychological functioning, rather than relying upon the plaintiff’s self-report alone.
CONSIDERATION OF BASE RATES OF SYMPTOMS AND DISORDERS:
Base rates refer to the frequency that a symptom or disorder occurs within a given group of individuals. In order to opine regarding whether an alleged trauma resulted in a given psychological condition, it is useful to review research determining the frequency that similar events result in this outcome.
Given the frequency of post-traumatic stress disorder (PTSD) claims in personal injury proceedings, an understanding of the base rates of PTSD is particularly critical. Although research has established that trauma often does result in PTSD, the majority of traumatic events do not cause PTSD. As an illustration of research in this area, Kilpatrick et al., (2013) found that while 89.7% of the U.S. census match population reported exposure to trauma, figures as low as 7.3% of U.S. individuals meet the criteria for post-traumatic stress disorder, with interpersonal violence and combat resulting in the highest rates of PTSD.
Psychological testing, a critical component of personal injury evaluations, may be characterized as objective, projective, neuropsychological, or self-report inventories.
Objective psychological testing aims to provide a picture of the plaintiff’s current psychological functioning, independent of the plaintiff’s biases in self-reporting. Objective psychological tests include validity scales, which measure consistency of responding, symptom exaggeration and fabrication, and defensiveness or symptom minimization. Scales have known error rates, which may and should be considered when forming interpretive hypotheses.
During projective testing, the plaintiff responds to ambiguous stimuli in a manner that elucidates their psychological functioning. While certain projective tests have an inadequate research basis to utilize in forensic psychological evaluations, the Rorschach Performance Assessment System has a substantial and updated empirical basis and may meet admissibility standards.
Neuropsychological tests assess an individual’s intelligence and cognitive functioning in domains including concentration, memory, executive functioning, language, and visuospatial abilities. Even when a neurological condition or brain injury is not being alleged, neuropsychological testing may be utilized to assess cognitive impairment, such as reduced concentration, resulting from psychological conditions including post-traumatic stress disorder.
Finally, there are a wealth of self-report symptom checklists that may be utilized in a personal injury evaluation as an adjunct to the clinical interview, in order to gain additional relevant data. Nevertheless, these tests are not objective, do not include validity scales, and can easily be invalidated if the plaintiff chooses to exaggerate or minimize symptoms. Thus, they should be interpreted with a significant degree of caution.
ASSESSMENT OF MALINGERING:
Malingering, the intentional production or fabrication of symptoms for an external gain, should be assessed in all personal injury evaluations. Indeed, plaintiff-retained experts who do not comprehensively assess malingering face significant vulnerability during cross-examination.
There are several features of malingering that warrant mentioning. First, malingering is not a static condition, but a behavior which will be performed in certain contexts for specific purposes. For instance, an individual in a personal injury proceeding may malinger in attempt to maximize his award, yet respond honestly in a co-occurring custody evaluation during which he wants to be perceived as psychologically healthy. Thus, malingering needs to be assessed in all evaluations, and a plaintiff’s history of malingering does not necessitate that he will malinger again in the future. Second, malingering does not preclude genuine disorders, and indeed a subset of individuals with genuine psychological impairment will malinger symptoms due to a variety of factors, including a fear that their distress will not be taken seriously. Finally, the DSM 5 criteria for malingering is highly unreliable in detecting actual malingering. Research by Rogers and Shuman (2005) found that the DSM-IV criteria for malingering was inaccurate four out of five times in forensic settings.
Research suggests that psychologists are highly inaccurate in identifying malingering with their clinical impressions alone. Aamodt and Custer (2006) conducted a meta-analysis of 193 studies and found that psychologists were only slightly more accurate in deception detection than student research participants. Nevertheless, forensic psychologists may effectively aid the court in identifying malingering through the use of objective tests, designed to detect malingering, which have relatively high accuracy rating. These test results may be used in combination with an analysis of risk factors for malingering and the use of multiple sources of information to corroborate key data points.
The ultimate task of a forensic psychologist during a personal injury evaluation is an analysis of causation. As noted previously, the forensic psychologist must first determine the plaintiff’s pre-injury psychological functioning. Next, current psychological impairment is assessed though a detailed clinical interview, psychological testing, a review of recent records, an analysis of malingering, and collateral interviews. If current psychological impairment exists which represents a decline from pre-injury psychological functioning, the forensic psychologist must then determine the cause of this psychological deterioration. Kane and Dvoskin (2011) identified five primary causation hypotheses that may be considered.
1. The alleged trauma is the sole cause of the psychological impairment.
2. The alleged trauma was the proximate cause of a psychological injury and, but for the psychological injury, the person would not have his or her present level of psychological impairment.
3. The alleged trauma materially contributed to the current psychological impairment, but was not the primary cause.
4. The alleged trauma had little identifiable effect on the individual.
5. The alleged trauma had no identifiable effect on the individual.
Factors to consider when analyzing the above causation hypotheses include: the specific symptoms that currently exist and their likely relation to the alleged trauma, the progression of psychological symptoms, base rate research (as previously described), the presence or absence of co-occurring stressors or traumas, and whether the change in psychological functioning was temporally close to the alleged traumatic event. It is important for the forensic psychologist to consider contextual and iatrogenic factors. Social support, occupational support, and overall life satisfaction all contribute to a positive adjustment to traumatic events. In contrast, the litigation process may exacerbate psychological symptoms. For instance, Binder et al. (1991) found that shorter intervals between a trauma and settlement in tort cases resulted in less psychological impairment than longer intervals. It is critical to consider the plaintiff’s pre-injury psychological vulnerabilities in addition to the expected progression of the applicant’s pre-injury psychological impairment independent of the traumatic event. In “thin skull” cases, a plaintiff may suffer an unusually high level of psychological damage from a traumatic event due to a preexisting psychological vulnerability. In contrast, in “crumbling skull” cases, an individual with a preexisting disorder would have demonstrated increased impairment over time independent of the traumatic event.
Dr. Teo Ernst is a clinical and forensic psychologist, licensed in California and Washington State. He is one of fewer than 35 psychologists in California who have undergone the rigorous training and examination process necessary to obtain Board Certification in Forensic Psychology from the American Board of Professional Psychology. Dr. Ernst is an Assistant Clinical Professor in the UCSF Department of Psychiatry where he provides clinical training and supervision on a volunteer basis. Dr. Ernst has specialized expertise in the Assessment of Post Traumatic Stress Disorder, Occupational Evaluations, and the Assessment of Competency. He is additionally frequently retained to conduct a diverse range of civil evaluations and criminal evaluations.
Copyright Teo Ernst, Psy.D., ABPP
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.