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Has he suffered Post Traumatic Stress Disorder? A Review of Medico-Legal Issues
  • May 18, 2020
  • Latest Journal

by Hugh Koch, Clinical Psychologist and Visiting Professor in Law and Psychology to Birmingham City University (BCU)
Kirsten Nokling, Georgina Browne & Lisa Nolan, Clinical Psychologists with HK Associates
Michael Davies, Lecturer in Tort Law at Birmingham City University

A recent publication (Koch 2019) in this journal summarises the several medico-legal evidential issues in a contemporary assessment of Post-Traumatic Stress Disorder (PTSD). This paper discusses several of the themes outlined in that paper in terms of diagnostic criteria, illustrative vignettes and key practical issues when assessing trauma and anxiety-related psychological injuries.

The unifying factor in many debates between experts, barristers and the judiciary about psychological diagnosis is that ‘something traumatic or stressful’ in the claimant’s history has been partly or wholly responsible for the cluster of psychological symptoms that have allegedly developed.

Whatever diagnosis is arrived at, the key questions for the Court are: -
1. Did the claimant at any time develop a recognised psychological disorder? That is, was there a cluster of valid and reliably presented psychological symptoms which were disruptive socially, psychologically and/or occupationally, and which met the criteria for one (or more) diagnoses in either of the two main classification schemes, DSM-5 (APA (2013)) and ICD-10 WHO (1992)).
2. Can this disorder be attributed to a given index event, or did it pre-date or post-date the index event? For a practitioner this is the crucial issue. Given the “all of nothing” approach as to the proof of causation, the onus is to prove, on a balance of probabilities, that the index event caused the disorder if this cannot be established, then the case fails. Therefore, there is a requirement to demonstrate (or not) that the Claimant’s symptoms meet the relevant diagnostic criteria.

The group of diagnoses typically considered in civil cases where there has been a significant single event with or without physical injury include the following: -
Post-Traumatic Stress Disorder (DSM-V 309.81)
Acute Stress Disorder (DSM-V 308.3)
Adjustment Disorder (DSM-V 309.28)
Other Specified Trauma or Stressors – related disorders (DSM-V 309.89)

Other diagnoses whose symptoms include but are not necessarily dominated by trauma-bases symptoms frequently include:
Somatic Symptoms Disorders (DSM-V 300.82)
Specific Phobia Disorder (DSM-V 300.29)    
Generalised Anxiety Disorder (DSM-V 300.02)

The reader is referred to either of the two classification schemes or to other relevant texts (Koch, 2016, Koch 2018) for in-depth discussions of these disorders. A summary of the main criteria for each of these six disorders given in a practical and differentiative manner is shown below alongside a stylised or anonymised case history for each disorder to aid clarity and understanding.

Post-Traumatic Stress Disorder (DSM-V 309.81)
After a distressing event, the claimant experiences the following (Morrison 2014):
• Repeatedly relives the event, in nightmares (upsetting dreams), or in intrusive mental images or dissociative flashbacks. With reminders of the event evoking physical sensations (racing heart, shortness of breath) or distress.
• Takes steps to avoid the horror and fear: refusing to watch films or television or to read accounts of the event, or pushing thoughts or memories out of consciousness.
• Becomes negative in their thinking: with persistently negative moods, gloomy thoughts (e.g. “I’m useless,” “The world’s a mess”). They may lose interest in important activities and feel detached from other people. Some experience amnesia for aspects of the trauma; others become numb, feeling unable to love or experience joy.
• Experiences symptoms of hyperarousal: irritability, excessive vigilance, difficulties concentrating, insomnia or a heightened startled response.
This cluster of experiences lasts larger than 1 month and disrupts their psychological, social or occupational life. Occasionally there can be delayed expressions of these symptoms until six months after the event. They can be accompanied by dissociative symptoms of depression or detachment and/or derealisation in which the claimant seems distant and unreal. There is considerable controversy over the concept of “delayed expression.”

James A:
A motorcyclist riding along a motorway at 70mph was in collision with a lorry who had suddenly, without warning, changed lanes blocking his path. James had approximately three seconds to anticipate this high-speed collision without ability to avoid it. He remained conscious after the collision and was hospitalised for one week during which he was told he might lose his left leg. After discharge, he had 6 weeks’ convalescence at home where his sleep was disturbed with accident-related nightmares (not just lorry and motorbike related), hyper-arousal to loud noises (e.g. traffic outside his home). Despite a sympathetic family, he had great difficulty discussing the circumstances of the accident with them and preferred to keep his feelings hidden from them. Even when he had physically recovered, he avoided leaving the house, riding his second motorbike or driving his car. He found that his thoughts were negative, both about himself and his social situation. He became critical and distant, increased his alcohol intake and felt estranged from his wife.

Acute Stress Disorder (DSM-V 308.3)
The criteria for ASD are similar to those required for PTSD (Morrison 2014) namely: -
• Exposure to an index event that threatens body integrity or death.
• Reexperiencing the index event.
• Avoidance of stimuli associated with the index event.
• Negative changes in mood and thought.
• Increased arousal and reactivity.
• Distress or impairment.
If symptoms last 4 weeks or longer, then the PTSD diagnosis is used.

Rob M.
A car driver on a busy A road went around a right-hand bend at the 60mph limit and was faced by an oncoming van on his side of the road. Within one second, they had collided, and he was pushed back and off the road into a 3-foot ditch. He had significant chest injuries from the steering wheel and was hospitalised. During the hospital stay and when he returned home, he reportedly had nightmares where he relived the road traffic trauma. This also occurred when awake and daydreaming. He was unable to drive for 2 weeks but avoided driving for a further week. Apart from being driven to/from hospital, he could not tolerate being a passenger either. He felt useless and unable to do anything, and his mood was low with tearfulness. He was irritable with his family. He stayed off work for three weeks. After three weeks, many of these symptoms receded and he no longer met the criteria for ASD.
Adjustment Disorder (DSM-V 309.28)
Whether the index event is, or is not, as life-threatening as it is in PTSD or ASD, a person who experiences a significant ‘stressor’ can develop symptoms of depression (mood and sleep disturbance, tearfulness, low self-esteem), anxiety (focused or generalised, physiological or emotional) and behavioural symptoms of avoidance and poor performance. This overall cluster exceeds what would be expected for most people in similar circumstances. It typically starts within 3 months of the index event, and stops within 6 months of the stressor’s end. During this time, the person’s psychological, social and/or occupational life is adversely affected.

The quality of this disorder is different than that of PTSD or ASD and is typically seen as less severe. This is reflected in the prognosis.

Persistent stressors may include ongoing travel, litigation and nightmares, and therefore in such circumstances symptoms may persist longer than 6 months.

Gemma S
Gemma had been working in the same job for ten years when it was suddenly announced that she was being made redundant. The unexpectedness of this information coupled with the realisation that her world had suddenly and irrevocably changed made her extremely distressed. She relied on her job income and managed her family, as a single mother with a handicapped child and could not, immediately, perceive how she would be able to cope. She developed sleeping problems often ruminating at night about how to cope, both financially and psychologically.  She became depressed, sad and tearful. She felt useless and pessimistic about how she would get another job. She had been dating prior to this redundancy but felt lacking in confidence to continue. This exacerbated her loneliness and her self-esteem. She went to her GP who prescribed antidepressants and referred her for counselling.

Other Specified Trauma- or Stressor Related-Disorder (DSM-V 309.89)
This diagnosis is used when there is an evidential stressor or trauma which has caused significant distress or impairment in social, occupational or psychological areas, but the other criteria for an Adjustment Disorder, PTSD or ASD are not necessarily met.

Examples include delayed onset (although this concept is controversial); prolonged duration beyond 6 months and persistent complex behavioural disorder (with severe and persistent grief and mourning).

Harry S
Harry had been working in a factory operating a wood cutting machine when the cutting blades had malfunctioned and two fingers on his left hand had been severed. At the time there was significant loss of blood but, fortunately, his level of pain was manageable. He was hospitalised and had surgery on his hand. He returned home to convalescence for two months. During this time, he watched TV and walked both alone and with his partner. His sleep was relatively undisturbed after the first 3-4 days.
On his return to work two months later, he was put on light duties but the noise and smell of the wood cutting machine agitated him and he noticed that both back at work and when he returned home, he was upset, felt low and tearful and his sleep was immediately disturbed by nightmares and auditory flashbacks to the sound of the machinery. Although he was not pressured to return to operating the wood cutting machine, he found he could not tolerate being in a noisy factory environment and he resigned his job. His GP prescribed him beta-blockers for his anxiety.

Somatic Symptoms Disorder (DSMV 300.82)
Pain is a frequently presented symptom in personal injury claims. For many, pain is distressing but after the initial shock and treatment, people usually adjust to the experience of pain and cope well i.e., without undue anxiety or disturbance to activities of daily living.
However, with a proportion of clients a more problematic presentation is seen which consists of:
• Pain that seems excessive and chronic
• Complaining of isolated, non-specific symptoms that seem to have no medical cause
• Chronic, multiple symptoms in the absence of an adequate medical explanation
• Pain that doesn’t improve despite treatment that helps most patients
• Excessive concern and pre-occupation with pain
• Magnified behavioural expression of pain

It is apparent in these presentations that there is a pronounced interaction between the physical and psychological aspects of pain, including self-perpetuating fearful beliefs about ongoing pain.

The main criteria for SSD is a single somatic symptom causing distress or markedly impairing the patient’s functionality. The patient expresses a high level of health anxiety, investing excessive time in health care or being excessively worried about the seriousness of symptoms. Other descriptions include persistent chronicity of pain.  

Jenny F
Jenny F has been involved in a significant multiple car pileup on the M4 but had fortunately emerged with left arm injuries only and no apparent psychological trauma apart from initial shock. Over the following months, she had many medical investigations of her ongoing pain which had now spread to her shoulder and neck. She became increasingly preoccupied by this pain and how it adversely affected her dexterity and agility. On meeting people, she would concentrate on telling others about the pain and also illustrate this by her facial expression and “holding” her arm to protect it. On one occasion, when being assessed by the orthopaedic surgeon, she was asked to draw on an outline person sketch exactly where her pain was – she drew this pain throughout the left arm and outside the arm – an anatomical impossibility.

Specific Phobia (DSMV 300.29)
Following a road traffic accident, some claimants develop a significant fear of aspects of road travel e.g. driving on motorways, driving at night, being a passenger or being a pedestrian. The anxiety produced by being in any of these situations can take the form of panic-based symptoms or as a generalised sensation of anxiety.

Once established, it is typically manifested and reinforced by avoiding the situation that makes the person afraid.

It is also maintained by irrational (albeit understandable) fear of increased likelihood of another similar accident. For example, a phobic driver may think the chance of another accident is 50/50 – such beliefs are highly likely to cause symptoms of anxiety when on the road again.

Peter M
Peter M had been cycling along the road in a designated lane when a car changed lanes suddenly and knocked him off his bike and threw him into a lamppost. He suffered significant leg injuries which took 3 months to heal. He had a second bike but couldn’t face riding this. He used public transport instead which adversely affected his ability to get to/from work efficiently. He no longer cycled in his local cycling club, gained weight and generally felt at a low ebb emotionally.

Generalised Anxiety Disorder (DSM-V 300.02)
Some claimants develop excessive anxiety and worry which they find difficult to control and which cause significant distress and/or impairment in social or occupational areas. It is not typically focussed on any one specific area of concern.

Medico-Legal Postulates
Mary P
Following her accident in which she was knocked over at a pedestrian crossing, Mary developed restlessness, irritability, sleep disturbance and muscular tension in a number of different situations e.g., travelling in a car, crossing roads, leaving the house, being in meetings.
She needed CBT to help her control and manage this generalised anxiety.

The diagnosis of trauma-related psychological symptoms is multi-faceted; obtaining reliable and valid evidence to produce a robust clinical opinion, using various assessment methods including an analysis of self-report, contemporaneous independent information, medical records and behavioural indications of level of disruption, and includes the ‘but for’ test of causation. These are embodied in the medico-legal postulates (Koch, (1916, 1918) summarised below and amended for the context of trauma assessment.

Koch’s Medico-Legal Postulates
I. A robust opinion about trauma should address diagnosis, causation and attribution, duration and prognosis.
II. A robust opinion about trauma will, whenever possible, include more than one type of evidence. An opinion based on claimant self-report only may still be valid but is not considered as robust as an opinion derived from several sources of data (e.g., self-report, medical records, impact upon activities of daily living) in medico legal terms.
III. Determining the appropriate diagnosis according to the DSM and ICD forms part of an expert’s opinion  on trauma – this systematic check of relevant criteria should be balanced by wider clinical judgment and contemporaneous records, if available.
IV. The expert’s Mental State Examination of the claimant, should be consistent with the claimant’s description of currently active symptoms – a clear discrepancy reduces the robustness / strength of an opinion.
V. Wherever possible, GP computerized consultation records should be made available to the expert. The subsequent analysis (i.e., evidence of or lack of corroborative data) will increase the strength or reliability of the opinion given. Attendance where trauma has been discussed add considerable weight to the claimant’s narrative.

Other Relevant Postulates
• A robust opinion should give particular emphasis to the 12-month period prior to and post the index event, but not to the exclusion of earlier or later history.
• An expert’s opinion should be the ‘best fit’ professional view of all available data at that time, and should be modified, if appropriate, as and when new data becomes available.
• Irrespective of the prognosis for organically mediated pain, psychologically mediated ‘overlay’ can have a positive prognosis especially with pain-related CBT therapy resulting in increased pain coping and adjustment.
• Expert Witnesses should help the Court identify and understand inconsistency, leaving the Court to be the final arbiter of veracity.
• The claimant’s self-report is essential but must always be balanced by contemporaneous medical or occupational records, when possible. Great care must be taken not to overemphasise the claimant’s self-report.

Assessing trauma requires a logical and impartial approach to understanding what the claimant has experienced. It must also investigate whether the claimant was already suffering a pre-existing psychological disorder or had a vulnerability to developing a trauma-related disorder, which affected their reaction or recovery following a traumatic index accident.

Being involved in a  non-fault significant traumatic event is very distressing and all parties involved in discussing the event and related litigation with the claimant, whether they be medico-legal experts, lawyers or barristers, have a duty to be empathetic to the claimant’s experience as well as  a duty to the Court to produce independent opinions that are robust, reliable and valid.

Koch, HCH., Adeleye, N., Willows, J. & Harrop, C. (2019). Post Traumatic Stress Disorder – Contemporary analysis of medico-legal evidential issues. Expert Witness Journal, Summer 42-5.
Morrison, J. (2014). DSM-V Made Easy: The clinician’s guide to diagnostics. Guildford Press- New York.
Koch, HCH,. (2016). Legal Mind: Contemporary Issues in Psychological Injury and Law. Expert Witness Publications. Manchester.
Koch, HCH. (2018). From Therapist’s Chair to Courtroom: Understanding Tort Law Psychology. Expert Witness Publications. Manchester.
Zytert, C. & Becker, C.B. (2020). Cognitive-Behavioural Therapy for PTSD. Guildford- New York
Taylor, S. (2017). Clinician’s guide to PTSD. Guilford. New York