Academic journal article Defense Counsel Journal

Compensation Neurosis Rides Again: A Practitioner's Guide to Defending PTSD Claims

Academic journal article Defense Counsel Journal

Compensation Neurosis Rides Again: A Practitioner's Guide to Defending PTSD Claims

Article excerpt

POST Traumatic Stress Disorder, known as PTSD, is demonstrating an ability to influence the current tort system, both economically and doctrinally. The diagnosis is being used to erode traditional legal restrictions and barriers to recovery.

Historically, the law and courts have resisted claims for psychological injuries, fearing a flood of litigation involving tenuous claims for mental disorders. As early as 1896, the New York Court of Appeals postulated..

If the right of recovery [for mental distress 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 the damages must rest on mere conjecture or speculation. The difficulty which often exists in cases of alleged physical injury, in determining whether they exist, and if so, were they caused by the negligent act of the defendant, would not only be greatly increased, but a wide field would be opened for fictitious, speculative claims. To establish such a doctrine would be contrary to principles of public policy.(1)

A bit before that, an English court voiced similar policy concerns:

Not only in such a case as at present, but in every case where an accident caused by negligence had given a person a serious nervous shock, there might be a claim for damages on account of mental injury. The difficulty which now often exists in cases of alleged physical injuries in determining whether they were caused by the negligent act would be greatly increased, and a wide field opened for imaginary claims.(2)

Beginning in the mid-20th century, a number of American states began removing the physical impact or injury limitation in actions for psychological damages. The law in a near majority of states now has moved toward recognizing claims without insisting either that victims feared for their own safety or even suffered physical injury.(3)

The ubiquitous post traumatic stress disorder claim is now well known to defense counsel. In most instances, PTSD exists in conjunction with a physical injury, but in cases in which the alleged emotional injury is not accompanied by a physical injury, defense counsel must determine if the claim is even cognizable in the applicable jurisdiction.

While a complete examination of the current status of the law is beyond the scope of this article, there are generally four tests adopted by various jurisdictions regarding the recovery of emotional injuries and the requirement, if any, of a physical component:

1. Physical injury or impact rule, which permits "recovery for emotional injury provided there is some physical contact";

2. Zone of danger rule, which provides recovery for emotional injuries absent any physical contact if the emotional injuries result "from the witnessing of peril or harm to another if the plaintiff is also threatened with physical harm as a consequence of the defendant's negligence";

3. Bystander proximity rule, which permits "recovery, even if one is not in the zone of danger, providing that the complainant: (1) is physically near the scene of the accident; (2) personally observes the accident; and (3) is closely related to the victim"; and

4. Full recovery rule, which allows recovery in a negligence action for infliction of serious emotional distress where a "reasonable person, normally constituted, would not be able to cope adequately with the mental distress occasioned by the circumstances."(4)

The U.S. Supreme Court adopted the zone of danger test for Federal Employers' Liability Act cases in Consolidated Rail Corp. v. Gottshall,(5) which contains an excellent discussion of the various tests and the jurisdictions that follow them.

Considering the potential abuse of PTSD claims as feared by the courts, a current commentator notes: "If mental disorders were listed on the New York [Stock] Exchange, PTSD would be a growth stock worth watching. …

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