Cases involving psychiatric injuries are complex in nature and require a defense team knowledgeable in the relevant areas of law and medicine. With thorough preparation and well-planned discovery, these cases can be evaluated quickly and the claim/legal defense team can determine which cases should be settled quickly and which should be tried.
The most common psychiatric injuries are physical injuries causing psychiatric conditions, and traumatic experiences causing psychiatric conditions. Physical injuries causing psychiatric conditions include Traumatic Brain Injury (TBI) and chronic pain. Traumatic experiences causing psychiatric conditions include Posttraumatic Stress Disorder (PTSD), depression, anxiety, fear or phobia, and adjustment disorder.
Discovery Plan
Developing a discovery plan is an important part of the overall strategic plan for the case. You should seek to understand the plaintiff’s condition prior to the event giving rise to an alleged psychiatric injury, the plaintiff’s course of treatment, the plaintiff’s post-treatment condition, and engage an expert early and involve the expert in crafting a discovery plan.
- Pre-existing Conditions—Obtain the plaintiff’s pre-existing medical/mental health records. Conduct a criminal/civil background check. Obtain the plaintiff’s pre-incident education and employment records. Identify potential witnesses concerning the plaintiff’s pre-existing condition. Obtain the plaintiff’s social media posts prior to the incident.
- The course of Treatment—Obtain the plaintiff’s medical records following the incident paying particular attention to: Glasgow Coma Scores, MRI and diffusion tensor imaging (DTI), CT scans, Medication,
- Post Treatment Condition—Obtain the plaintiff’s medical records through the date of the suit (obtain updated records as the case progresses). Obtain post-incident education and employment records. Obtain social media posts and conduct regular reviews of social media as the case progresses. Consider surveillance. Consider an independent medical examination.
Experts in Psychiatric Injury Cases
Engage experts at the earliest opportunity. Neurologists/neurosurgeons may diagnose the injury and may offer opinions concerning the nature of the injury. Neuroradiologists evaluate diagnostic scans and render findings based on the scans while neuropsychologists can determine whether the injury caused cognitive impairment, impaired memory (frontal lobe), and or impaired auditory memory (frontal lobe). Depending upon the claimant’s emotional state, or claims, a psychologist or psychiatrist may be warranted. Biomechanics experts determine the amount of force imparted to the skull from a particular accident. Lifecare planners should be used with care and likely only engaged to rebut the plaintiff’s life care planner if one is presented.
Defense Strategies
Analyze the plaintiff’s pre-incident condition. Consider:
- Poor pre-incident educational performance.
- Poor pre-incident employment history.
- Prior head/neck injuries, including workers comp claims, disability claims, auto accidents, and sports injuries.
- Prior mental health issues or learning disabilities.
- Pre-incident social media behavior.
Analyze the plaintiff’s course of treatment. Consider:
- Minor physical injuries.
- Very little damage to the vehicle in the automobile accident cases.
- No loss of consciousness.
- Lack of reporting of the brain injury in early medical records.
- Plaintiff may have said they were ok at the scene of the accident.
- No TBI diagnostic criteria present at or near the time of the incident.
- Delayed diagnosis of the injury.
- Major depressive syndrome has similar symptoms to post-concussion syndrome.
- Changing and evolving medical histories.
- Concussions symptoms are non-specific requiring the physician to rule out other possible causes through differential diagnosis.
- Temporary dysfunction – not permanent brain damage.
- Attorney referrals for medical care.
- No witnesses, friends, or family to corroborate the plaintiff’s claims.
Analyze the plaintiff’s post-treatment condition. Consider:
- Malingering and secondary gain issues.
- Surveillance.
- Post-incident social media behavior.
- Post-incident educational performance.
- Post-incident employment history.
- Subsequent psychiatric injuries unrelated to the incident at issue.
Undermine the plaintiff’s expert by engaging your expert to assist with undermining the plaintiff’s expert testimony. Depose the plaintiff’s expert with an eye on a Daubert or Frye challenge. Question the plaintiff’s expert on the subjective nature of psychiatric testing. Question the plaintiff’s expert on the reliability of testing and on the plaintiff’s use of medication and how that may mask/skew results.
Question the plaintiff’s expert on why the expert selected each test. Did the plaintiff’s expert use appropriate normative data when comparing the plaintiff’s test results? Did the plaintiff’s expert assess the plaintiff’s effort in responding to test questions? Did the plaintiff’s expert consider other factors that could have affected test performance? Question the plaintiff’s expert on his/her method of test interpretation. Defense counsel should be prepared to address and attack the plaintiff’s expert’s methodology and scientific validity of the conclusions derived from functional imaging.
Special Considerations in Psychiatric Injury Cases
A mentally incompetent (or minor) person cannot file a suit in his/her own name. Courts generally require a parent, guardian, or another judicially appointed person, such as a guardian ad litem, to sue on behalf of the incompetent/minor. Consult your local rules to determine if the plaintiff is competent to sue on his/her own behalf. If the plaintiff is not competent, move for dismissal or move for an order substituting the proper party plaintiff. In a deposition involving alleged psychiatric injuries, it may be helpful to ask questions aimed at evaluating the plaintiff’s competency. Consult with your expert before the deposition.
An incompetent person (or minor) cannot bind himself or herself to settlement agreements. Most states have a process through which the trial court, probate court, or court of equity enters a judgment in favor of the incompetent plaintiff against the defendant binding the parties to the settlement. The role of the Court is to determine if the settlement is in the best interest of the incompetent person. Often the court will appoint a guardian ad litem to evaluate the settlement terms.
Conclusion
Psychiatric injury cases are complex. Although psychiatric injuries are often subjective, these injuries cannot be taken lightly. Such injuries can significantly and permanently impact a plaintiff’s quality of life and may require expensive future medical care. So, defending these claims requires experienced defense counsel, a well-thought-out discovery plan, and a multi-disciplinary expert strategy.
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