A.  When Can a Person Recover for a Psychological Injury?

    The law in California allows the recovery for psychological injuries, even in the absence of a physical injury.

    Frequently, a person will receive a psychological and physical injury as a result of the same     trauma. In that situation, both aspects of the injury are compensable.

    Psychological injury cases can stem from many different types of torts including vehicle accidents, aviation accidents, train accidents, serious falls, construction accidents, medical malpractice, psychiatric malpractice, sexual abuse, sexual battery and many other forms of negligent and intentional misconduct.

    The spouse of the injured plaintiff can also bring their own lawsuit for loss of consortium damages; that is, damages for the loss of society, comfort and care of the injured plaintiff. See the section on Damages in this article.

    B.  What Is the Difference Between a Psychological Injury          and a Traumatic Brain Injury?

    Sometimes, when somebody has received a head injury, it is difficult to determine whether the person is suffering from a psychological injury or a traumatic brain injury. Frequently, testing by a neuropsychologist will be able to help make the diagnosis. However, symptoms of psychological injury and traumatic brain injury often overlap.

    Basically, a psychological injury is an injury to the “mind” which does not also involves injury to the brain.

    C.  Psychological Injury Stemming from Patient Exploitation.

    One of the most frequent causes of psychological injury stems from the sexual abuse by a person in power over a person who is more vulnerable. This occurs in cases in which doctors, psychotherapists or other health care providers take advantage of and sexually abuse their adult patients. The psychological effects of this abuse are devastating and can lead to lifelong injury and treatment.

    D.  Psychological Injury Stemming from Child Abuse.

    Another common source of psychological injury are cases involving abuse, particularly sexual abuse of children. Frequently this type of abuse occurs in settings where parents are trusting adults to take care of their children, such as day care centers and schools. Generally speaking, the victim of such abuse can sue the wrongdoer and recover damages. This abuse also causes devastation, lifelong problems and makes the children more susceptible to abuse as adults and impairs their ability to form loving, trusting relationships.

    E.  Psychological Injury Stemming from Sexual Harassment and Discrimination.

    Psychological injury can also stem from workplace sexual harassment and discrimination. Discrimination and sexual harassment in the workplace often destroys an employee’s peace of mind and ability to work. This creates anxiety and depression and can lead to serious psychological injury. Generally speaking, an employee can sue an employer for psychological injury caused by employment discrimination and sexual harassment.

    F.  Psychological Injury Stemming from Negligent Infliction of Emotional Distress.

    Under the law in California, a person who witnesses another person going through a severe trauma may also be able to recover for his or her own psychological injury. However, there are special limitations on these type of cases. They are called “negligent infliction of emotional distress” or “bystander liability” cases. In order to bring this type of case, the witness must be a close family member to the person who was injured in the accident or trauma, the witness must be at or near the scene of the accident and the witness must actually observe the trauma and injury take place.

    G.  Is the Testimony of an Expert Psychologist Necessary at Trial to Prove Psychological Injury?

    Although there is no requirement that someone suffering from a psychological injury actually receive psychotherapeutic treatment, generally speaking, the plaintiff must present the testimony of a psychiatrist or psychologist in order to win a severe psychological injury case and prove the injury. The key here is whether the plaintiff is merely suffering from an expected level of emotional distress as opposed to a diagnosable severe mental disorder. If the person has a severe disorder, it is probably necessary to retain an expert psychotherapist.

    The expert psychotherapist can then testify to the psychological dynamics by which someone who is exposed to a trauma has his or her psychological defense mechanisms broken down and becomes injured. A good law firm will have the expert psychotherapist focus on the vulnerability of the particular plaintiff which resulted in a serious psychological injury once the plaintiff was exposed to the trauma involved in the case. However, some cases, such as airplane accidents and major catastrophes would be sufficient to cause anybody to have some psychological injury. Still it is useful to have testimony that the extent of the plaintiff’s reaction was a more severe reaction than would be expected even from a major trauma.

    H.  What Damages are Recoverable in a Psychological Injury Case?

    A person who suffers a psychological injury as the result of somebody else’s fault is entitled to the same elements of economic recovery as a person with a physical injury. This would include recovery for past and future medical and psychological bills and hospitalization, past and future wage loss and past and future pain and suffering.

    I.  Claim for Loss of Consortium.

    A plaintiff’s spouse can also sue and recover damages for “loss of consortium.” A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse’s unavailability due to the injury and having to watch the plaintiff suffer. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.

    There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.

    J.  Punitive Damages.

    Under California law, if a plaintiff can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable, he or she is entitled to recover punitive damages which are intended to punish the wrongdoer and provide an example for the rest of society. The focus of this type of case is generally on the wrongdoing of the defendant, rather than on the injury to the plaintiff. The amount of punitive damage will vary depending upon the heinousness of the defendant’s misconduct and its economic status. The law recognizes that large companies have to pay more money in punitive damages to be adequately punished than small companies or individuals. In motor vehicle cases, punitive damages are most frequently awarded against drunk drivers.

    K.  Can Pain and Suffering From Psychological Injury Be Greater than Pain and suffering from Physical Injury?

    It can be argued that the pain and suffering stemming from a psychological injury is actually greater than the suffering which stems from a physical injury because psychological injuries are harder to cure and can destroy a victim’s peace of mind. Lawyers knowledgeable on this subject matter often make the point during jury argument that someone could have a severe physical injury and still maintain happiness, while if somebody is suffering from a psychological injury, his or her life can become meaningless. Further, most physical injuries are cured quickly while psychological injuries can take years or never resolve.

    L.  What is Post Traumatic Stress Disorder?

    The most frequent psychological injury found in legal cases is post traumatic stress disorder. Post traumatic stress disorder is a mental disorder in which somebody who has undergone a severe trauma develops a constellation of symptoms which are consistent with this diagnosis. These symptoms include things like fear of re-experiencing the trauma, generalized increased fear, sleep disturbance including nightmares, avoidance of reminders of the trauma and sometimes avoidance of people in general; symptoms of anxiety and depression and disturbance in relationships. Not all of the above symptoms have to be present for the diagnosis of post traumatic stress disorder to be made.

    M.  Is Post Traumatic Stress Disorder the Only Mental Disorder That Can Follow a Trauma?

    Not all people who are in accidents or suffer trauma should necessarily be diagnosed with a post traumatic stress disorder. Frequently trauma victims will develop other disorders such as adjustment disorders, one of the various forms of serious depression, one of the anxiety disorders or even psychosis. It is important for the treating and expert psychotherapist in a psychological injury case to make the right diagnosis to increase the believability of the case and provide the correct treatment for the plaintiff. At trial, however, jurors will not be focused on diagnoses as much as on the plaintiff’s suffering. Further, as will be seen, there are rigid requirements for the diagnosis of post traumatic stress disorder -- if the plaintiff tries to jam his or her case into this diagnosis, he or she will unnecessarily lose credibility and confuse the jury.

    N.  What Are the Diagnostic Criteria for a Post Traumatic Stress Disorder?

    As previously mentioned, post traumatic stress disorder is a very specific psychological diagnosis which should only be made in cases which clearly fit the diagnosis. There are many other appropriate mental disorders that can be diagnosed that are caused by trauma.

    According to the Diagnostic and Statistical Manual of Mental Disorders, 4^th Edition, Text Revision (DSM-IV-TR):

“The essential feature of post traumatic stress disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity; or witnessing an event that involves death, injury or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate. A person’s response to the event must involve intense fear, helplessness, or horror (or in children, the response must involve disorganized or agitated behavior). Characteristic symptoms resulting from the exposure to the extreme trauma include persistently re-experiencing of the traumatic event, persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, and persistent symptoms and increased arousal. The full symptom picture must be present for more than one month and the disturbance must cause clinically significant distress or impairment in social, occupational or other important areas of functioning.”

    The first requirement for the diagnosis of a post traumatic stress disorder, the “exposure to an extreme stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity ...” or witnessing such an event, causes plaintiffs, plaintiffs’ attorney and plaintiffs’ experts the most tactical problems in psychological injury cases.

    The defense in a psychological injury case in which the plaintiff is claiming a post traumatic stress disorder usually focuses the attack on the plaintiff’s case on this “severe stressor” requirement for the diagnosis of a post traumatic stress disorder. In most cases, the defense will claim that the trauma to which the plaintiff was exposed was not a sufficient stressor to make the diagnosis of a post traumatic stress disorder; therefore, the trauma was insufficient to cause a post traumatic stress disorder. The defense will make this claim even if the plaintiff has every single symptom of a post traumatic stress disorder.

    Generally what occurs in these situations is that a treating psychotherapist will recognize the fact that the plaintiff has every symptom of a post traumatic stress disorder and will make the diagnosis without really caring whether or not the severe stressor requirement is met. For treatment purposes, it would not really make any difference. This fuels the attack for the defense who will claim that the treating therapist is incompetent and misdiagnosed the patient.

    The sad truth of the matter is that for years the psychotherapeutic community has understood that people react to trauma in very different ways and, depending upon their vulnerability, will either have a severe, moderate, mild or no reaction to a particular trauma. It is accepted in the psychotherapeutic community that a seemingly objectively minor trauma can cause a severe mental disorder, including a mental disorder that mimics all the symptoms of a post traumatic stress disorder if the person is particularly vulnerable to that trauma.

    Problems with a diagnosis of post traumatic stress disorder also come up in cases of sexual exploitation of adult patients, parishioners and other adults who are sexually abused by professionals who are supposed to be looking after their best interests.

    These people will frequently develop what to all the world, the treating psychotherapist and even the expert psychotherapist looks like a post traumatic stress disorder. However, except in rare situations, the trauma to which they have been exposed, i.e., an inappropriate, but sometimes not unwelcome sexual relationship, does not fit the DSM-IV severe stressor requirement.

    Fortunately, there is a growing body of psychiatric literature which recognizes that sexual exploitation of adults can lead to post traumatic stress disorder. Some specialists in the area call it “complex post traumatic stress disorder.”

    However, since the DSM-IV-TR remains the “bible” for psychological diagnoses, the plaintiff’s attorney who is going to attempt to present a post traumatic stress disorder case at trial, in a case that does not meet the DSM-IV-TR severe stressor requirement must have his or her expert armed with all of the relevant psychological and psychiatric literature which states that this diagnosis is appropriate even if it does not fulfill the “severe stressor” requirement in DSM-IV-TR.

    O.  The DSM-IV-TR Menu for a Post Traumatic Stress Disorder.

    The DSM-IV-TR lists out specific diagnostic criteria in “menu” form for each of the diagnoses in the manual. It is useful to visualize this form to understand how the diagnostic criteria can be utilized to prove a plaintiff’s case or are manipulated by the defense to disprove it. The menu reads like this:

“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. In children this may be expressed instead by disorganized or agitated behavior.

“B. The traumatic event is persistently re-experienced in one (or more) of the following ways:

“(1) Recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions. In young children, repetitive play may occur in which themes or aspects of the trauma are expressed.

“(2) Recurrent distressing dreams of the event. 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 disassociative flashback episodes, including those that occur on awakening or when intoxicated). 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 events.

“(5) A feeling of detachment or estrangement from others.

“(6) Restricted range of affect (e.g., unable to have loving feelings).

“(7) Sense of 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.

“(3) Difficulty concentrating.

“(4) Hypervigilance.

“(5) Exaggerated startle response.

“E. Duration of the disturbance (symptoms in criteria B, C and D) is more than one month.

“F. The disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.”

    Thus, if the plaintiff attorney is going to claim that the plaintiff is suffering from a post traumatic stress disorder diagnosed under the above criteria, the attorney must make sure that the expert witness has thoroughly questioned the plaintiff on each and every one of the “menu choices” and that the plaintiff fits the description. The attorney can then at trial create a large poster for the jury listing all of these criteria and the symptoms which the plaintiff has that fit within the criteria.

    P.  Diagnoses Other than the Post Traumatic Stress Disorder Which Should Be Considered in Psychological Injury Cases.

    As previously mentioned, there are dozens of diagnoses, some just as serious or even more serious than a post traumatic stress disorder which a plaintiff may fit in a psychological injury case. Under the anxiety disorder category, they include panic disorder, acute stress disorder, generalized anxiety disorder, anxiety disorder due to a general medical condition (this diagnosis is particularly useful when the plaintiff did not develop the psychological injury at the time of the accident, but rather developed it as a result of his or her severe physical injury which over time set off a psychological reaction), anxiety disorder not otherwise specified.

    In cases in which the plaintiff’s psychological symptoms mainly manifest themselves as physical symptoms or in a case in which a person continues to suffer from physical symptoms long past the time in which a treating medical doctor would expect it, the following somatoform disorders should be considered (the common feature of the somatoform disorders is the presence of physical symptoms that suggest a general medical condition and are not fully explained by a general medical condition or by another medical disorder): somatization disorder, undifferentiated somatoform, conversion disorder, pain disorder or somatoform disorder not otherwise specified.

    It is also quite possible that the plaintiff will develop a mood disorder immediately after a trauma or as a result of the physical injury caused by the trauma. The most common trauma related mood disorders include major depressive disorder, single episode; major depressive disorder, recurrent; disthymic disorder; and depressive disorder not otherwise specified.

    In rare cases, a trauma can “cause” a bipolar disorder (normally thought of as manic depression) or aggravate an already existing bipolar disorder or set off a manic or depressive episode in a person already suffering or predisposed to bipolar disorder.

    Although it is rare, trauma can cause one of the psychotic disorders including schizophrenia, delusional disorder, brief psychotic disorder or a psychotic disorder due to a medical condition.

    Q.  Can a Plaintiff Recover If They Already Had a Mental Disorder Before the Trauma, but it Was Made Worse by the Trauma?

    Under the law in California, a defendant takes a victim “as he or she finds him.” This means that a vulnerable plaintiff is just as entitled to monetary recovery as a person who is psychologically stronger.

    Thus, a plaintiff may be suffering from a long standing personality disorder or a preexisting mental disorder and still recover damages for any “aggravation” or “exacerbation” of the symptoms of that disorder.

    What can sometimes happen in a case is that a person will be suffering from a personality disorder or mental disorder prior to a trauma; however, he or she will be functioning fairly well in most or all aspects of life. In these situations, it has taken all of the energy that a plaintiff can muster to hold it together and continue functioning. Then, the trauma that is the subject of the lawsuit comes along and breaks down the plaintiff’s psychological defense mechanisms and coping mechanisms and the plaintiff can no longer function.

    If plaintiff can prove that the trauma was a substantial factor in aggravating a preexisting condition and causing a loss of function, then plaintiff should be able to recover substantial damages to compensate them for this severe psychological injury.

    R.  When must a Psychological Injury Case Be Brought?

    Because psychological injuries can be caused by so many different types of wrongful acts, there are many different potential statute of limitations that might apply to a psychological injury case depending upon which trauma caused the injury. That is why it is important to consult with an attorney as soon as possible to determine which statute of limitations applies to any given case.

    Some of the more important statute of limitations that will apply to a psychological injury case are:

    The general one-year statute of limitations in personal injury claims, which states that an adult must file a case for personal injury within one year of the date of the trauma. However, late discovery of the harm or the injury, which is something that frequently occurs in psychological injury cases may extend this one-year time period.

    Any claim against a government entity must be brought within six months of the date of the trauma.

    Sexual harassment or employment discrimination cases must generally be brought within one year of the date of the trauma, or at least the last trauma.

    Psychological injuries stemming from medical malpractice or therapist abuse must be brought within one year of the date of the discovery of harm or three years at the latest. There are many exceptions to these rules; therefore, to be safe the case should be brought as soon as possible, but even if the malpractice or abuse occurred more than three years ago, a potential plaintiff should still consider seeking the advice of an attorney.

    The statute of limitations for minors generally allows children to bring a case until their 19^th birthday no matter how young they were at the time of the trauma. However, in medical malpractice cases, this time period is severely shortened and the parents should seek the advice of an attorney immediately after they suspect that there may have been malpractice.

    Further, in cases of sexual abuse of a minor, the minor has until his or her 26^th birthday or three years from the date of the discovery of the wrongdoing and harm, whichever is later, to bring a case.

1. Most legal questions require complex answers. The answers provided here may not be complete or fully accurate but attempt to provide consumers with abbreviated answers. For more detailed answers to these questions, a consumer should check out other articles in this section of this web site, research other legal articles and texts on the subject matter or consult with an attorney.