SPECIFIC DEFINITIONS RELATED TO PSYCHOLOGICAL INJURY AND LAW
Gerald Young, Ph.D.
Psychological Injury. As described in Young, Kane, and Nicholson (2006, 2007), the area of psychological injury concerns “damage or dysfunction in one’s thinking, feeling, and behaving” causally related to an event at claim for damages (Schultz & Brady, 2003). Koch, Douglas, Nichols, and O'Neill (2006) add that the injury should "impair" both "function" and "well-being". The harm reaches critical thresholds of disturbing "mental" or "emotional" "tranquility". The individual's degree of pre-existing psychological difficulties presents a baseline. For thresholds to be met, the claimed psychological injury must be harmful or serious enough. Koch et al. conclude that the term "psychological injury" still is met with skepticism in law, requiring extra burdens of proof.
There are three types of psychological injuries according to Schultz and Brady (2003): (a) mental or physical-mental ones, such as Posttraumatic Stress Disorder, or depression, due to, for example, the loss of part of the body, (b) neuropsychological ones, and (c) pain-related ones. Craig (2005) presented a slightly different typology, focussing on worker's compensation claims: (a) physical-mental, in which there is an actual injury or disease compounded by psychological factors further disabling the individual; (b) mental-physical, in which a psychological factor such as excessive stress induces a physical problem; and (c) mental-mental, e.g., a reaction to a trauma.
Young (2007) continues that controversy abounds in the scientific literature in each if the three areas, complicating tort and related action. For example, in terms of the three areas, Posttraumatic Stress Disorder has become a major focus in tort action yet as a diagnosis it has been criticized. As for chronic pain, pain experience is not easily documented, nor is it necessarily correlated with known pathological effects or even having them evident. Finally, in mild traumatic brain injury, standardized neuropsychological evaluation does not typically support the presence of persistent post-concussive effects, especially ones that can be tied to persistent pathophysiology in the brain.
Forensic Psychology is the application of the scientific, technical, or specialized knowledge in psychology and its professional practice to questions and issues relating to law and the legal system, (according to the website of the division of psychology and law of the American Psychological Association; downloaded in September, 2007). As an example, it refers to the application of scientific principles and practices to “litigation” in the adversarial legal process, to “determination proceedings” related to disability, and so on, where "expert" opinion in testimony offered after psychological evaluation in cases of personal injury, employment injury, and mental disability can play a constructive role. In terms of other relationships to the area of psychological injury and law, the practice of forensic psychology also includes research and consultation on psychological issues impacting the legal process, and teaching, training, and supervision of graduate students, interns/ residents, and law students.
Rehabilitation Psychology. Scherer, Blair, Banks, Brucker, Corrigan, and Wegener (2007, in an article found on the Division 22 website of the APA; downloaded August, 2007), describe that rehabilitation psychologists, at the level of primary care, provide to individuals with disability integrated, holistic, and interdisciplinary-coordinated services throughout the lifespan and, as needed, to their families. They assist individuals with disability to cope with and adjust to the disability, attempting to increase function and reduce disability and its activity limitations and societal participation restrictions. Rehabilitation psychologists espouse a biopsychosocial model. In addition, Scherer et al. indicate that rehabilitation psychologists provide expert legal testimony and undertake insurance assessments, and consult, in general, on disability and health issues. As such, they need to be well-versed in the field of psychological injury and law.
Scherer et al. describe the various conditions with which rehabilitation psychologists may deal. Although only a few of these relate to tort law, the full list concerns possible cases in the social security and disability realms. Among others, the conditions may include: spinal cord injury; brain injury; stroke; amputations; neuromuscular disorders; medical conditions such as cancer, AIDS, or multiple sclerosis; chronic pain; developmental disorder including mental retardation; psychiatric disability; substance abuse; impairments in sensory functioning; burns and/or disfigurement; deafness and hearing loss; and blindness and vision loss.
In preparation of cases that may be applicable to the field of psychological injury and law, in keeping with the concern expressed about clinical evidence and psychologists being unprepared for court, I remind that the rehabilitation psychologist needs to engage in comprehensive assessments once a referral has been made, in order to establish the degree of impairments and disability, if any, and to rule out or at least consider the impact of symptom exaggeration and malingering in determining whether psychological and legal thresholds of impairments, disorders, and disabilities have been met. In addition, in cases of ascertained malingering, and other compromises of validity, persons falsely claiming conditions that are disabling should have these conclusions put on the table. Another variable to consider is that rehabilitation psychologists, perhaps in conjunction with an interdisciplinary team, may succeed in returning an individual with disability to a productive, functional lifestyle, whether in terms of work, school, caregiving, or other daily activities and participations, preventing development of a permanent disability. In other cases, significant progress may be made in optimizing residual functioning, putting in place compensatory and assisted devices, and so on, leading the disabled person to mitigate to some extent her or his losses.
Trauma. The ISTSS (International Society for Traumatic Stress Studies) is an international, multidisciplinary, professional membership organization that seeks to promote scientific advancement and exchange of knowledge related to "severe stress and trauma" (downloaded in September, 2007). The events are individually experienced, with reactions ranging from relatively mild to emotionally overwhelming and debilitating.
Stress can be considered the glue that binds the various conditions with which rehabilitation psychologists deal (Young et al., 2006). Stress may serve to maintain, exacerbate, and prolong psychological conditions, and even initiate them. In the biopsychosocial model, all disorders are considered to have a psychosocial component, and one way to understand this is that psychosocial factors may act as stressors on the expression of disorder. Stress leads to important psychophysiological consequences, including the release of cortisol, epinephrine or adrenaline, and when stress is chronic it has deleterious effects on the recovery from potentially disabling injury or disease. Psychologists in the field of psychological injury need to carefully examine for the presence of ongoing stressors, and determine their origins. For example, at one extreme, all stressors may relate to a trauma and its consequences. At the other extreme, pre-existing stress, psychopathology, and other factors may have been so pervasive and profound, that no additional stress could have been added to the individual's psychological condition by any trauma. A less extreme version of this doctrine is that the individual comes into the trauma with a "thin skull", or "eggshell psyche", where predisposing factors may heighten and prolong the reaction to a trauma. This complicates the legal picture in terms of compensation but, ordinarily, the law indicates that the negligent party must take the victim as she or he is found, and additional treatment beyond the presumed norm may be needed to return the victim to the pre-existing state.
Law. The field of Psychological Injury and Law is a subfield of forensic psychology, as well as reaching into areas of rehabilitation and trauma psychology. All these areas of psychology function at the intersection of the areas of evidence law, tort law, and personal injury law. On the one hand, laws in these areas impact both directly and indirectly the activities of psychologists. For example, in 1993, the U.S. Supreme Court ruled in Daubert v. Merrell Dow Pharmaceuticals that judges constitute gatekeepers of the reliability of trustworthiness of evidence proffered to court and, at the same, time offered criteria aimed at differentiating acceptable science from junk science. These criteria included the previously emphasized “general acceptance” standard of Frye v. U.S., but added criteria such publication in peer-reviewed journals and falsifiability. In general, psychologists underscore that scientific evidence must be both reliable and valid, or replicable and trustworthy. This would apply to the tests used in assessment, the DSM IV (Diagnostic and Statistical Manual of Mental Disorders, 4th edition, Text Revision, 2000, American Psychiatric Association) diagnostic categories used to qualify individuals with disability, the research supporting our understanding of the diagnoses and psychopathology, the construction of the tests, and so on, i.e., the research at the population (group) level. Also, psychologists seek reliability and validity in their comprehensive assessments of individuals, that is, in the data gathered at the individual or idiographic level. Other relevant evidence laws elaborated Daubert, are referred to as the Daubert trilogy. In Canada, criteria of admissibility are based on R. v. Mohan, the equivalent ruling of the Canadian Supreme Court (1994). Note that Frye is still the applicable ruling in some American states, and Daubert has not provided a list of clear, detailed criteria of the nature of good science admissible to court. Therefore, psychologists in the area of psychological injury and law need to keep abreast of developments in the field. This association is dedicated to that objective.
In the area of tort law, causality is established according to tests such as "material contribution", "proximate causation", and the "but for" criterion. Had the trauma contributed at least in part to the purported compensable negligence? Once it has been established that there has been a dereliction of duty and resultant harm, does the claimed injury reach legal thresholds of compensation, being: important, substantial, significant, permanent, catastrophic, and so on. The psychologist must be able to translate the legal thresholds in a case into psychological concepts, and then provide a comprehensive assessment that addresses the issue of disability. The psychologist must carefully document how the psychological impairments at least partially caused by the negligent or intentional action has compromised the individual's functional activity, whether it be at work, at school, at home, in the family, or in other spheres, if at all. For example, an individual who had sustained a serious back injury and has little education, training or experience outside construction may be evaluated as totally disabled, whereas a banker with an equivalent injury, and consequent depression, may be successfully treated, and returned to her or his pre-accident/ trauma vocation.
American Psychiatric Association. (2000). Diagnostic and statistical manual ofmental disorders: Text revisions (4th ed.). Washington, DC: Author.
Craig, R. J. (2005). Personality-guided forensic psychology. Washington, DC: American Psychological Association.
Daubert v. Merrell Dow Pharmaceuticals, Inc. 113 S. Ct. 2786 (1993).
Koch, W. J., Douglas, K. S., Nicholls, T. L., & O’Neill, M. L. (2006). Psychological injuries: Forensic assessment, treatment, and law. Oxford, U.K.: Oxford University Press.
Schultz, I. Z., & Brady, D. O. (Eds.). (2003). Psychological injuries at trial. Chicago, IL. American Bar Association.
Schultz, I. Z., & Gatchel, R. (2005). Handbook of Complex Occupational Disability Claims. New York: Springer.
Young, G., Kane, A. W., & Nicholson, K. (Eds.). (2006). PsychologicalKnowledge in Court: PTSD, Pain, and TBI. New York: Springer.
Young, G., Kane, A. W., & Nicholson, K. (2007). Causality in PsychologicalInjury: Presenting Evidence in Court. New York: Springer.