After a particularly traumatizing accident or injury, a personal injury claimant may be able to recover compensation for post traumatic stress disorder (PTSD). But making this kind of claim without proper proof—usually that means a diagnosis or at least corroborating testimony from a qualified mental health expert—is almost always a bad idea. This article discusses how to substantiate a plaintiff's PTSD claim in a personal injury case.
It's a time-tested legal principle that in any kind of civil lawsuit, when a fact issue is beyond the comprehension of the average juror, an expert witness is required to testify to explain the issue and, depending on the case, give an opinion as to whether the issue does or not does exist in the case.
Post-traumatic stress disorder (PTSD), although part of common knowledge generally, is not understood in all its specifics by the average juror. In other words, the average juror is not qualified to assess whether a plaintiff suffers from PTSD as part of his or her overall personal injury losses (damages), so an expert witness is needed to do the assessing for them. Aside from cross-examining the plaintiff’s expert witness, a defendant will often hire his or her own expert witness to give competing testimony and a different expert opinion. In other words, the defendant in a personal injury lawsuit will try to refute the plaintiff's claims and to demonstrate that he or she is not suffering from PTSD.
It is not always enough for an expert witness to testify as to their qualifications to diagnose PTSD (although that matters), and then give a diagnosis.
An expert must explain to the jury what is required to diagnose PTSD and whether the plaintiff, or a person with the same signs and symptoms as the plaintiff, has PTSD. Other witnesses may, and often do, give additional testimony about whether the plaintiff has the signs and symptoms the expert witness has described as necessary for a positive PTSD diagnosis. These are generally referred to as fact witnesses.
In other words, the expert is not necessarily giving testimony about the fact that the plaintiff has PTSD, but is testifying about what facts must be proven to establish PTSD. The only situation in which additional testimony from fact witnesses or other evidence is not necessary is when the expert witness is the plaintiff’s treating therapist and has personally witnessed the plaintiff exhibiting all of the necessary symptoms or the plaintiff has described the symptoms to the therapist/expert for the purposes of treatment. In that case, the therapist is both an expert witness and a fact witness.
Bottom line: The more credible sources a plaintiff has to prove the facts of a PTSD claim, the stronger the case will be. Learn more about how the type of medical treatment a plaintiff receives can affect a personal injury case.
The expert witness will testify first to his or her qualifications as an expert in the field of mental health, and on PTSD in particular. After that, he or she will testify to the nature, signs and symptoms of PTSD. These are usually defined as:
If the expert witness was also the treating therapist, he or she will testify to whether or not the plaintiff sufficiently exhibited these symptoms to warrant a positive PTSD diagnosis.
If the expert was not the treating therapist, he or she could be asked whether the evidence presented by other witnesses or some clinical assessment of the plaintiff suggests the plaintiff, in his or her opinion, suffers from PTSD.
Depending on the circumstances of the case and the state where the case is being litigated, an "ultimate opinion" from the expert on whether the plaintiff has PTSD might not be allowed, and the question may be left entirely to the jury to decide, based on the facts before them.
Learn more about catastrophic injury lawsuits for severe and long-term injury.