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Law Considers Post Traumatic Stress Disorder


Q: What is PTSD?
A:
 Post Traumatic Stress Disorder (PTSD) is a mental disorder or illness triggered by major trauma, generally an event that is not normally part of one’s culture or personal development.  Events such as rape and domestic abuse, wartime atrocities, a terrorist’s act, a devastating natural disaster, and a catastrophic accident can adversely affect a person permanently. Even the death of a loved one, a “normal” event, sometimes triggers PTSD.

Signs of PTSD arise after the traumatic event just as though the event is still happening. They include fear and anxiety; anger and irritability sometimes so severe that it leads to violent and frightening behavior; depression; hyperalterness; guilty feelings; increased substance abuse; nightmares and flashbacks; sight, sound and smell recollection; avoidance of situations that evoke the event; negative world view; and decreased sexual activity.  These behaviors may display themselves within a few months of the trauma or even decades later, depending upon how a person is able to cope and fight against the reactive feelings. Not every person who experiences a traumatic event experiences PTSD, and personality and genetic makeup has some bearing on the chances of developing PTSD.

Q: How is PTSD diagnosed?
A:
 The American Psychiatric Association includes PTSD in its Diagnostic and Statistical Manual of Mental Disorders (DSM), a handbook listing the criteria for most mental illnesses that is used worldwide by the medical profession.  The DSM describes PTSD as an extreme reaction to “an event outside the range of usual human experience and that would be markedly distressing to almost anyone,” and that creates intense fear, terror and helplessness involving a threat to oneself or others.  In order to be medically diagnosed with PTSD, the patient must exhibit many of its symptoms.

Q: What does PTSD have to do with the law?
A:
 The law recognizes that mental illness can limit the mental capacity of a person to act responsibly.  Now that mental health professionals have come to recognize PTSD as a mental illness and personality disorder, the law also recognizes that PTSD can diminish a person’s mental capacity.  This means that the law may treat a person diagnosed with PTSD as having a mental illness.  Such a person would qualify to be judged with a different, more lenient, standard from persons who are considered “sane.” 

PTSD can be used as a defense in both civil and criminal law.  For example, in civil cases, a diagnosis of PTSD can apply to a workers’ compensation claim, a personal injury lawsuit, and disability insurance litigation.  A complaint can be made against an employer for creating a hostile work environment or not providing reasonable accommodation for an employee afflicted with PTSD as required by the Americans with Disabilities Act (ADA).  An employer’s negligence or wrongdoing in this regard may lead to a claim of “wrongful discharge” that might include allegations of harassment, severe emotional distress, or even workplace violence.

In criminal cases, an accused person can enter a defense of “battered woman syndrome,” or “rape trauma syndrome” or insanity.  In fact, Ohio law now recognizes the “battered woman” defense. These defenses are all based on findings of PTSD and are used to prove the diminished capacity of a person who claims to have been provoked to commit a criminal act because of previous trauma.  The courtroom testimony of a reliable expert witnesses can help determine whether a finding of PTSD has merit in a particular case.

Q: What is controversial about how the law addresses PTSD?
A:
 Claims of PTSD impairment have been increasing.  Judges’ skepticism about the validity of PTSD has also risen because the many factors involved in a diagnosis make it possible to manipulate a PTSD claim.  Difficulties in validating PTSD claims range from pinpointing the traumatic event to proving delayed onset PTSD to and identifying the various symptoms.  Also, events that society once regarded as “normal,” such as the death of a family member, have now been classified as potentially “traumatic.”  For these reasons, judges look for a direct link between the disorder and the claim; proof of PTSD can be admitted into evidence, but it must be shown that actual relevant PTSD symptoms affect the case.

Q: What are some trends in the law regarding PTSD? 
A:
 PTSD is already widely used as a defense or extenuating or mitigating factor in criminal cases, and it is increasingly being applied to civil law where there are money damages. Courts are considering these types of claims because psychological injuries are now recognized as being just as devastating and debilitating as physical injuries, and PTSD, in its own right, is gaining popular recognition and acceptance.  Since psychiatric expert testimony has become more reliable now that the medical community agrees on how to diagnose PTSD, these claims are more difficult to fake today and, when brought to court, are taken ever more seriously.

9/8/2008

This “Law You Can Use” column provided was by the Ohio State Bar Association (OSBA).  It was prepared by Nancy Fioritto Patete, a Cleveland  attorney.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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