Civil Litigation

Civil Litigation

Tort Liability

The tort system is designed to compensate individuals or groups who are injured by the acts of other individuals or entities, in-cluding corporations and sometimes government agencies. As in malpractice cases (which are a category of tort), the four Ds (dereliction of a duty, directly causing damage) are the standard by which tort liability is assessed. Unlike most criminal cases, where the conduct of the victim is not relevant to the defendant’s guilt, the injured party’s (or plaintiff’s) conduct is often a factor in determining the legal result. Thus, in a motor vehicle case, if the plaintiff was also operating his or her vehicle negligently, and thus contributed to the accident, the defendant’s liability will be reduced in proportion to the plaintiff’s comparative negligence. Where a party’s mental state is at issue, or where there are claims for emotional damages, psychiatrists may be called upon to con-duct evaluations and testify.

Psychiatrists performing an evaluation for psychic harm must evaluate the person’s mental state before and after the act. For instance, if a person had a preexisting history of affective disorder and had recurrent episodes after an injury, that would be noteworthy for a psychic harm report. The question would be whether the traumatic event exacerbated the preexisting condi-tion. Not unlike criminal responsibility evaluations, these assess-ments may rely heavily on collateral documentation of the event and interviews with other witnesses. Emotional injury evalua-tions often focus heavily on functional deficits that the plaintiff may be exhibiting, since damages are related to loss of function; it is not sufficient to simply meet diagnostic criteria for mental illness. As in all such evaluations, especially where the subject is aware of the consequences of the process, malingering should always be considered.

Disability

Psychiatrists may perform disability evaluations for both work-ers’ compensation and Social Security disability claims. Workers’ compensation is an alternative system of compensation that doesnot involve the complexity of the tort system. Workers’ compen-sation, which is paid when a disabling injury occurs in the course of employment, is an exclusive remedy based on the worker’s prior salary and the degree and duration of disability. In general, there are no awards for pain and suffering as there are in tort cases. In this system, evaluations focus on functional limitations and require assessment of credibility, as well as corroboration of the person’s prior mental state and its connection to the work environment.

Since workers’ compensation systems are created by leg-islatures, it is important to know the statutory definitions of the conditions under evaluation; this is particularly true for mental disability. The typical categories of mental disability are as fol-lows: 1) physical trauma causing mental injury; 2) mental injury causing physical effects; and 3) mental stress causing mental injury.

Social Security Disability Insurance was established in 1956 for people who had contributed to the fund while working. Supplemental Security Income was developed in 1972 to estab-lish federal matching payment for state benefit programs for the disabled, regardless of work history. The Social Security disabil-ity programs use definitions of mental disorders that resemble, but are not identical with, those of the Diagnostic and Statisti-cal Manual of Mental Disorders, Fourth Edition (DSM-IV) (American Psychiatric Association, 1994). The evaluating clini-cian must determine whether a qualifying condition exists, and assess the degree of disability it produces, as measured against standards of the American Medical Association’s guidelines (Linda et al., 2001).