Psychological Injury and Law

Psychological injury refers to psychological or psychiatric conditions associated with an event at claim. It may lead to a lawsuit in tort action or other legal-related claims, for example, in Worker Compensation, Veterans Affairs (VA), and Social Security Administration (SSA) cases. Typically, the events are negligent actions, such as a motor vehicle collision. Gerald Young and colleagues, as well as Andrew Kane and Joel Dvoskin, have provided useful background on the field.

Legally, psychological injury is considered a mental harm, suffering, damage, impairment, disability, or dysfunction, perhaps as an exacerbation of a preexisting condition. The negligence could be the direct result of some action or of a failure to act. The psychological injury, disability, or dysfunction must reach a degree of disturbance that interferes with the pre-event psychological or psychiatric state to a significant, important, or serious degree. Typically, the injury must persist up to and after a set time frame, such as 2 years, after which it is considered to have reached maximum recovery, or to be “permanent.” At that point, an individual may be able to sue for compensation or damages as a complainant or plaintiff.

Typically, a psychological injury may involve posttraumatic stress disorder (PTSD), traumatic brain injury (TBI), a concussion, chronic pain, or a disorder that involves mood or emotions (such as depression, anxiety, fear, or phobia, and adjustment disorder). These disorders may manifest separately or in combination (comorbidity).

As a scientific discipline, or practice area in psychology, psychological injury is related to multiple critical areas of psychology: law, forensic psychology, assessment, malingering, diagnosis, treatment, PTSD, chronic pain, TBI, disability, return to work, psychological tests and testing, causality, practice affairs, and model building.

Mental health professionals working in the field of psychological injury need to appreciate its association with legal research and practice. For example, they need to know evidence law, tort law, and insurance law, at both the national and the local (state, provincial) levels in their countries of practice. The association between psychological injury and law began to be recognized as a distinct academic and professional entity in the first decade of this century, in particular. Its growth has been highlighted by creation of the first scientific society (the Association for the Scientific Advancement of Psychological Injury and Law, or ASAPIL, http://www.asapil.net) and the first journal, Psychological Injury and Law, devoted exclusively to this topic.

This type of case is quite adversarial because psychological injury is associated with court. In addition, complainants might exaggerate or even feign and malinger symptoms outright, so that mental health professionals require specific expertise that the court expects in such forensic matters (also see various professional guidelines).

Mental health professionals could face legal challenges of the admissibility of their evidence presented to court; it could be dismissed as poor or “junk science.” Daubert v. Merrell Dow Pharmaceuticals, Inc. is the 1993 U.S. Supreme Court decision that provided a basis for determining acceptable science in court. Also, this decision required judges to function as “gatekeepers” for evaluating the probative or helpful value of the testimony for the case at hand compared with its prejudicial or nonrelevant value. [Page 483]Other cases that addressed expert testimony include those that collectively are referred to as the Daubert trilogy. Some states still function according general acceptance standards in determining admissibility of evidence to court. Also, the Federal Rules of Evidence provide expert evidence guidelines.

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