A GUIDE TO THE ASSESSMENT OF EMOTIONAL DAMAGES CLAIMS Jerome H. Poliacoff, Ph.D., P.A.

Emotional disorder defined: An emotional disorder is a clinically significant behavioral or psychological syndrome, or, pattern of interpersonal behavior, that occurs in a person and is associated with [a] present distress [a painful symptom, or symptoms] and or [b] disability [impairment in one or more important areas of functioning]. In contrast a psychological reaction would not be considered a mental or emotional disorder if the behavior or symptoms were simply an expectable reaction to a particular event. For a mental disorder to be properly diagnosed there must be evidence of a behavioral, psychological, or biological dysfunction in the person. It is helpful to understand that when a claimant, having claimed to be suffering emotional distress as a consequence of anothers actions [or inactions] is assessed, by either a psychiatrist or psychologist, for the Court, the assessment 1 is made across a variety of parameters, or, from a variety of perspectives, or axes, referred to in the Diagnostic and Statistical Manual of Mental Disorders 2 4th Edition, Text Revision 3 [a/k/a DSM IV TR] as a multiaxial diagnosis 4. This multiaxial diagnosis is useful in understanding, and determining, what influences exist that would effect, and explain, the claimants emotional status. As well, in the conduct of an evaluation for the courts there are specific guidelines 5 and authoritative texts 6 describing the nature, process, and purpose of evaluations for the Courts. Numerous authors have written about the development, evolution, and application of these guidelines 7. Of specific concern for forensic psychologists when conducting assessments for use by the Courts are issues related to the assessment of malingering 8, the use of collateral information 9, and ethical concerns about the conduct of such evaluations 10, including the dilemma of treating clinicians serving as experts, a conflict in role referred to in the literature and in ethical guidelines 11 as a dual role conflict 12. Levels of analysis: One can conceptualize, based on the authoritative texts referenced above, a three [3] level hierarchy of an experts presenting and affirming [or challenging], the veracity or psychological certainty [or lack thereof] of a plaintiffs claim of emotional distress in litigation 13, each with diminishing utility and validity: Level 1: The first, and most robust, would be a complete psychological evaluation including an extended interview of the plaintiff following the administration of various psychological tests.

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A GUIDE TO THE ASSESSMENT OF EMOTIONAL DAMAGES CLAIMS Jerome H. Poliacoff, Ph.D., P.A.
Tests, such as the MMPI-2, the Malingering Probability Scales, the Trauma Symptom Inventory, are used to [1] Assess current impairment in interpersonal and social functioning owing to the presence of symptoms consistent with a diagnosis of some emotional condition [depression, post-traumatic stress disorder, etc.], [2] Assess the contribution of the plaintiffs personality functioning 14 to the claimed injury, and [3] Rule out the presence of malingering 15. Along with the interview and testing would be a review, where possible, of collateral sources of information, including but not limited to transcripts of depositions of the plaintiff and others, medical and psychiatric records, personnel and other legal files. Level 2: The second level of presenting and affirming, or challenging, the veracity of a plaintiffs claim of emotional distress in litigation would be a review of the psychiatric and psychological records of the plaintiff in lieu of testing and an interview with, or review of the deposition of, a treating mental health professional. The problem with this level of presentation is that the treating mental health professional is more likely than not to be just that, a treating mental health professional, not an evaluator familiar with the framework of what constitutes a forensic assessment. The differences can be seen in the accompanying chart 16. This is an inherently poor assessment methodology for a host of ethical and practical reasons. To be admissible, an expert opinion must be reliable and valid to a reasonable degree of scientific certainty [a metric for scrutinizing the certainty of expert testimony as a condition of its admissibility]. It is improper for the therapist to offer an expert opinion that an alleged action on the part of [in this case] an employer is the proximate cause of his or her impairments rather than [for instance] divorce, bereavement, or personality dysfunction. This is true for two reasons: First, the type and amount of data routinely observed in therapy is rarely adequate to form a proper foundation to determine the psycho-legal [as opposed to the clinically assumed] cause of the litigant's impairment, nor is therapy usually adequate to rule out other potential causes. Second, such testimony engages the therapist in conflicting roles with the patient. Common examples of this role conflict occur when a patient's therapist testifies to the psycho-legal issues that arise in competency, personal injury, worker's compensation, and custody litigation. The dilemma for the plaintiff, and the plaintiffs counsel, is that asking a treating mental health professional to opine about both diagnosis and
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A GUIDE TO THE ASSESSMENT OF EMOTIONAL DAMAGES CLAIMS Jerome H. Poliacoff, Ph.D., P.A.
causality is to place the treating mental health professional in the awkward, if not unethical, position of being in a dual role conflict. Level 3: Finally, the level of presentation with the least likely chance of being acceptable by a trier of fact, because it is neither reliable nor valid, is the mere assertion of emotional distress without either substantiating evidence or, the complaining party having sought treatment for the ostensible emotional injury. While one is able to bring suit against a defendant by claiming, without supporting documentation, the presence of emotional distress, this is often a he said she said situation, at best. At worst it involves asserting claims that are without foundation because [a] they lack the specificity of meeting diagnostic criteria [symptoms are not well described], [b] malingering and other, alternative, sources of distress have not been ruled out [the litigant can only make vague statements regarding symptoms], and [c] there is often little in the way of collateral support for the claim. Presen t Level 1 Criteria For Evaluation Impaired social functioning Impaired vocational functioning Collateral source[s] of observation, or confirmation [e.g., Spouse, physician, other report] Complaint meets specific criteria found in DSM-IV-TR Treatment sought Extended evaluation: Including interview[s] Extended evaluation: Including review of documents Testing: Symptoms Testing: Personality Testing: Rule out Malingering Alternative causes examined and ruled out
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Absen t

N/A

Comment

A GUIDE TO THE ASSESSMENT OF EMOTIONAL DAMAGES CLAIMS Jerome H. Poliacoff, Ph.D., P.A.
Level 2 Claimant sought psychotherapy If yes: Psychotherapist as expert Trained in forensic psychology Performed evaluation consistent with legal criteria Consulted collateral sources [i.e., relied on claimants report] Provided informed consent Ruled out malingering Ruled out personality disorder Ruled out alternative causal factors Assessed social impairment, if any Assessed vocational impairment, if any Provided diagnosis Level 3 Self report: Symptom report vague Did not seek treatment despite complaints Able to work Able to maintain social relationships

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See for instance: Practice guideline for psychiatric evaluation of adults [1995]. American Journal of Psychiatry. 152 [11 Supplement] p. 63-80. [Also: Washington (DC): American Psychiatric Press, Inc.]: A general psychiatric evaluation has as its central component a face-to-face interview with the patient. The interview-based data are integrated with data that may be obtained through other components of the evaluation, such as a review of medical records, a physical examination, diagnostic tests, and history from collateral sources. A general evaluation usually takes more than 1 hour to complete, depending on the complexity of the problem and the patient's ability and willingness to work cooperatively with the psychiatrist. Several meetings with the patient may be necessary. Evaluations of lesser scope may be appropriate when the psychiatrist is called on to address a specific, limited diagnostic or therapeutic issue. From the American Psychiatric Association web site, http://www.psych.org: DSM stands for "Diagnostic and Statistical Manual of Mental Disorders" and is published by the American Psychiatric Association, the professional membership organization representing United States psychiatrists. It is utilized by mental health professionals from a variety of disciplines and backgrounds for a wide range of purposes, including clinical, research, administrative, and educational.
2

The DSM is a manual that contains a listing of psychiatric disorders and their corresponding diagnostic codes. Each disorder included in the manual is accompanied by a set of diagnostic criteria and text containing information about the disorder, such as associated features, prevalence, familial patterns, age-, culture- and gender-specific features, and differential diagnosis. No information about treatment or presumed etiology is included. Diagnostic criteria have been included in the DSM because their provision has been shown to increase diagnostic agreement. It is important to understand that the appropriate use of the diagnostic criteria requires clinical training and that they cannot be simply applied in a cookbook fashion. The primary purpose of the DSM is to facilitate communication among mental health professionals. The diagnostic terms in the manual provide a convenient shorthand when communicating about patients. For example, when a clinician making a referral uses the term "Major Depressive Disorder" to indicate the patient's diagnosis, he or she is communicating in three words a great deal of clinical information. One can expect that the patient's primary complaint is a sustained period of depressed mood or loss of interest in activities and that a number of other symptoms may occur as part of the depression, including sleep disturbances, changes in appetite or weight, low energy, difficulty concentrating, and very low self-esteem. The clinician should also be on the alert to look for suicidal ideas or plans because this feature is often present in patients with this diagnosis. Furthermore, use of the diagnostic term "Major Depressive Disorder" also indicates what NOT to expect. For example, using this term indicates the absence of significant manic periods now or in the past; otherwise, the clinician would have used the term Bipolar Disorder. Another important aspect of the DSM diagnostic system is that the diagnoses are described strictly in terms of patterns of symptoms that tend to cluster together; the symptoms can be observed by the clinician or reported by the patient or family members. Since the cause of most mental disorders is currently unknown and subject to much

speculation, the DSM avoids incorporating unproven theories in its diagnostic definitions. This feature has been an important element in the widespread acceptance of the DSM. Clinicians from widely differing theoretical orientations can still use the DSM because it focuses on manifest symptoms.

This is also an important limitation of the DSM system. Patients sharing the same diagnostic label do not necessarily have disturbances that share the same etiology nor would they necessarily respond to the same treatment. It is therefore critical to understand that the diagnostic terms and categories in the DSM represent only our current knowledge about how symptoms cluster together.
3

American Psychiatric Press; ISBN: 0890420254; 4th edition [June 15, 2000].
4

Axis I Axis Axis Axis Axis II III IV V

Clinical Disorders &Other Conditions That May Be a Focus of Clinical Attention Personality Disorders General Medical Conditions Psychosocial and Environmental Problems Global Assessment of Functioning

Axis I refers to the primary psychological problem, or symptom presentation. The features and dynamics of the Axis I clinical syndromes may arise in response to external precipitants but are likely to reflect and accentuate several of the more enduring and pervasive aspects of the plaintiffs basic personality makeup. Axis II refers to personality disorders or developmental disorders that have existed since childhood and subtle chronic conditions that may be considered as enduring characteristics of the person and determine the style of his or her interpersonal relationships and characteristic ways of seeing the world and ones self. Personality disorders are enduring and pervasive personality traits that underlie a persons emotional, cognitive, and interpersonal difficulties. Unlike the largely transitory symptoms that make up Axis I clinical syndromes, personality disorders are the habitual and maladaptive methods of relating, behaving, thinking, and feeling. Axis III refers to physical disorders that may exacerbate a psychiatric condition or may mimic a psychiatric condition. Axis IV refers to psychosocial stressors that are current in a patients life [loss of a job, birth of a baby, financial or vocational problems, etc.] And, finally, Axis V is the clinicians judgment, referred to as Global Assessment of Functioning, at present, and for the past year, rated numerically in a range of 1 to 100.
5

American Educational Research Association, American Psychological Association, & National Council on Measurement in Education. (1999). Standards for educational and psychological testing ((3rd ed.). Washington, DC: American Educational Research Association).

Committee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15, 655-665.
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Blau, T. H. (1998). The psychologist as expert witness (2nd ed.). New York, NY, US: John Wiley & Sons, Inc. Emiley, S. F. (2002). Forensic psychological evaluations: Back to basics. Forensic Examiner, 11, 31-36. Ewing, C. P. (1985). Psychology, psychiatry, and the law: A clinical and forensic handbook. (Sarasota, FL: Professional Resource Press) Grisso, T. (in press). Evaluating competencies: Forensic assessments and instruments ((2nd ed.). New York: Kluwer/Plenum) Heilbrun, K. (2001). Principles of forensic mental health assessment. (New York: Kluwer/Plenum) Hess, A. K.(Ed), & Weiner, I. B.(Ed) (1999). The handbook of forensic psychology (2nd ed.). New York, NY, US: John Wiley & Sons, Inc. Melton, G. B., Petrila, J., & Poythress, N. G. (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers. 2nd Edition. New York, NY, US: Guilford Press. Ziskin, J. (1975). Coping with psychiatric and psychological testimony. (Los Angeles: Law & Psychology Press) Ziskin, J. (1995). Coping with psychiatric and psychological testimony ((5th ed.). Los Angeles: Law & Psychology Press)
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Gacono, C. B. (2002). Forensic psychodiagnostic testing. Journal of Forensic Psychology Practice, 2, 1-10. Hambacher, W. O. (1994). Expert witnessing: Guidelines and practical suggestions. American Journal of Forensic Psychology, 12, 17-35. Maffeo, P. A. (1990). Substantiating psychological injury under the Federal Employees' Compensation Act. Behavioral Sciences & the Law, 8, 435-445. Simon, R. I., & Wettstein, R. M. (1997). Toward the development of guidelines for the conduct of forensic psychiatric examinations. Journal of the American Academy of Psychiatry & the Law, 25, 17-30. Zonana, H. (1994). Daubert v. Merrell Dow Pharmaceuticals: A new standard for scientific evidence in the courts? Bulletin of the American Academy of Psychiatry & the Law, 22, 309-325.
8

Rogers, R. (1987a). Clinical assessment of malingering and deception. (New York: Guilford Press)
9

Heilbrun, K., Rosenfeld, B., Warren, J. & Collins, S. (1994). The use of third-party information in forensic assessments: A two-state comparison. Bulletin of the American

Academy of Psychiatry and the Law, 22, 399-406.

10

Butcher, J. N., & Pope, K. S. (1993). Seven issues in conducting forensic assessments: Ethical responsibilities in light of new standards and new tests. Ethics & Behavior, 3, 267-288. Knapp, S., & VandeCreek, L. (2001). Ethical issues in personality assessment in forensic psychology. Journal of Personality Assessment, 77, 242-254. Rogers, R. (1987b). Ethical dilemmas in forensic evaluations. Behavioral Sciences and the Law, 5, 149-160. Schetky, D. H. (1992). Ethical issues in forensic child and adolescent psychiatry. Journal of the American Academy of Child & Adolescent Psychiatry, 31, 403-407.
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The most simply stated of ethical proscriptions a psychologist refrains from taking on professional or scientific obligations when preexisting relationships would create a risk of such harm [Standard 1.17(b) the Ethical Principles of Psychologists and Code of Conduct] and Forensic psychologists recognize potential conflicts of interest in dual relationships with parties to a legal proceeding. [Standard IV,D Specialty Guidelines for Forensic Psychologists] and intuitively the clearest and most comprehensible are also, when ignored, the ones which most frequently compromise psychologists proffer of expert testimony. Both psychological and psychiatric organizations have sought to limit circumstances when dual functions are performed by a single professional. The Ethical Guidelines for the Practice of Forensic Psychiatry [American Academy of Psychiatry and the Law, 1989] state: A treating psychiatrist should generally avoid agreeing to be an expert witness or to perform an evaluation of his patient for legal purposes because a forensic evaluation usually requires that other people be interviewed and testimony may adversely affect the therapeutic relationship. In a similar fashion, the Specialty Guidelines for Forensic Psychologists denotes the following: Forensic psychologists avoid providing professional services to parties in a legal proceeding with whom they have personal or professional relationships that are inconsistent with the anticipated relationship. [p. 659]. The Ethical Principles of Psychologists and Code of Conduct of the American Psychological Association exhorts that "In most circumstances, psychologists avoid performing multiple and potentially conflicting roles in forensic matters" [p. 1610]. Finally, the most recent and the most specific of these codes, the American Psychological Associations [1994] Guidelines for the Conduct of Child Custody Evaluations emphatically states: Psychologists generally avoid conducting a child custody evaluation in a case in which the psychologist served in a therapeutic role for the child or his or her immediate family or has had other involvement that may compromise the psychologist's objectivity.In addition, during the course of a child custody evaluation, a psychologist does not accept any of the involved participants in the evaluation as a therapy client. Therapeutic contact with the child or involved participants following a child custody evaluation is undertaken with

caution.
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Greenberg, S. A., & Shuman, D. W. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research & Practice, 28, 50-57. Iverson, G. L. (2000). Dual relationships in psycholegal evaluations: Treating psychologists serving as expert witnesses. American Journal of Forensic Psychology, 18, 79-87. Strasburger, L. H., Gutheil, T. G., & Brodsky, A. (1997). On wearing two hats: Role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry, 154, 448-456.
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The most widely disseminated set of guidelines for the conduct of psychologists acting in the role of expert may be found in the Ethical Principles of Psychologists and Code of Conduct [American Psychological Association, 1992]. There are four standards of professional conduct that appear clearly applicable to a psychologists' expert testimony:

Standard 1.06, "Basis for Scientific and Professional Judgments", charges psychologists to rely on scientific and professionally derived knowledge in their practice. Standard 2.02, "Competence and Appropriate Use of Assessments and Interventions", requires psychologists to select assessment instruments on the basis of research indicating the appropriateness of the instruments for the specific issue at hand and directs psychologists to actively work to prevent misuse of those instruments. Standard 2.04, "Use of Assessment in General and With Special Populations", prescribes familiarity with the psychometric properties and limitations of assessment instruments used in the practice of psychology. Standard 2.05, "Interpreting Assessment Results", requires psychologists to directly state reservations they may have about the accuracy and limitations of their assessments. In addition to the Ethical Principles of Psychologists and Code of Conduct the Specialty Guidelines for Forensic Psychologists [Committee on Ethical Guidelines for Forensic Psychologists, 1990] address similar issues from a specialized perspective. Although only the Ethical Principles of Psychologists and Code of Conduct are enforceable by the American Psychological Association, both sets of principles and guidelines provide the ethical basis for many of the practical challenges to psychological expert testimony. Expert testimony should be based on adherence to the following practical and easily discernable parameters: 1. Data should be gathered using the most scientifically reliable and valid assessment tools available. Psychologists, and the attorneys who cross examine them, should be acutely aware of the limitations of assessment tools from both a theoretical and psychometric perspective, particularly those that are not standardized or that have limited scientific research findings documenting their reliability or validity.

It is also important for psychologists to recognize that assessment instruments may be inadequate not only because they fail to measure a particular construct adequately, but because the construct itself may be theoretically inadequate, poorly defined, or so broad as to be meaningless. 2. Conclusions should be drawn based on theories having scientific validity. There are many competing theories of behavior from which diagnoses and treatment recommendations may be drawn. There is also a large scientific literature that has addressed empirically testable predictions based on those theories. However, many theoretical constructs are presented by psychologists in expert testimony for which there is no scientific validation, or for which the scientific basis is very slim. The current emergence of syndrome testimony is a case in point. Although the fit between syndrome theories and particular legal questions may be good, these theories have not been scientifically tested. This lack of scientific testing makes any conclusions or accounts of events that are based on syndrome theories problematic. Even if the data relied upon are gathered using scientifically valid methods, if the theoretical explanation underlying the data is flawed, the data may be presented in a way that misleads the trier of fact. 3. Testimony should be presented based on both the sufficiency of the theory and the underlying empirical data as it applies to the legal questions to be addressed. Many of the concerns before the Court have not been specifically or adequately studied in the scientific literature, or if they have, the data are equivocal or inadequate. In Daubert the court specifically cites evidence of the scientific reliability and validity of the methods and theories on which expert testimony is based as touchstones for determining whether particular testimony is admissible. 4. Data gathering methods [tests, interviews] need to be psychometrically sound. Psychologists as experts need to be aware of the psychometric properties of the instruments they use and the strengths and limitations of those instruments. More importantly they may need to adequately justify their use of less psychometrically valid instruments over ones that have better psychometric properties.
14

Personality disorders often cause interactions between people that later are alleged to have been imposed on the plaintiff by others. The plaintiff with a personality disorder may not be the mere victim of another, rather his or her own irritability, perfectionism, manipulation of others may be the beginning of a chain of events that leads to claim of wrongful termination. Personality disorders may cause a person to interpret events in a distorted fashion and then seek to rationalize their own irrational or unreasonable behavior. Courts have begun to recognize the role personality disorders play in the genesis of disputes involving workplace discrimination, to wit:

In Lowe v. Philadelaphia Newspapers, Inc., 594 F. Supp 123-126, 54 FEP Cases 167 [E.D. Pa 1984], a racial harassment case, the court admitted testimony that because of a personality disorder the plaintiff was oversensitive to ordinary criticism.

In Stutledge v. Reno, 63 FEP cases 1257 [W.D. Mo. 1994] the court admitted extensive psychiatric testimony concerning the effect of personality disorders on perception. That court held that although the plaintiff may have felt subjectively harassed, such was the result of her abnormal sensitivity caused be her personality disorder. In Pascouau v. Martin Marietta, 994 F. Supp. 1276, 76 FEP Cases 651 [D. Colo. 1998], affd in relevant part, 185 F.3rd 874 (10th Cir. 1999), the court concluded that the conduct that could be described as harassment was not based on gender, but rather on Plaintiffs demonstrated lack of interpersonal skills. In Newberry V. East Texas State University, 161 F.3rd 276, 8 AD Cases 1595 [5th Cir. 1998], an ADA case in which the plaintiff suffered from Obsessive Compulsive Personality Disorder. This disorder interfered with Plaintiffs relationships with others because of his rigid perfectionism and rigidly ethical behavior.

15

In any circumstance where there is a financial incentive to be ill, or to claim injury, such as litigation in the civil court system, the intentional production of symptoms must be assessed. Malingering is not an inconsequential problem. A 1994 survey estimated that malingering occurs in 15.7% of forensic cases. Feigned neuropsychological impairment, as estimated by practitioners, may occur in as many as half of those being evaluated for cognitive disabilities. 20.8% of those being evaluated for insanity were suspected of malingering or were definitely malingering. While under some circumstances, such as feigning illness while a captive of the enemy during wartime, malingering may represent adaptive behavior. However, in the context of litigation it is best understood as a type of response that distorts the production of an accurate record. The DSM-IV authors suggest that malingering should be strongly suspected if any combination of the following is noted: 1. The medicolegal context of presentation (e.g., the person is referred by an attorney to the clinician for examination), and, or 2. A marked discrepancy between the person's claimed stress or disability and objective findings, and, or 3. A lack of cooperation during the diagnostic evaluation or in complying with a prescribed treatment regimen, and, or 4. The presence of Antisocial Personality Disorder
16

From: Greenberg, Stuart A.; Shuman, Daniel W. [1997]. Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research & Practice. Feb Vol 28(1) 50-57. Conflict domainClinicalForensicWhose client is it? Client of the psychologistClient of the attorneyLegal protection against disclosure

Psychologist-patient privilegeAttorney-client and attorney-work-product privilegesEvaluative attitude Psychologist: Supportive, accepting, and empathicForensic evaluator: Assessor, usually neutral, objective, and detachedAreas of professional competencyPsychologist must be competent in clinical assessment and treatment of the patient's impairmentForensic evaluator must be competent in forensic evaluation procedures and relevant psycholegal issuesApplication of expertisePsychologist uses expertise to test rival diagnostic hypotheses to identify appropriate therapeutic interventionForensic evaluator tests different sets of rival psycholegal hypotheses generated by the elements of the law applicable to the caseDegree of scrutiny to which information is subjectedTherapy is based on information from the person being treated, that may be incomplete, grossly biased, or honestly misperceivedForensic examiner offers opinions regarding historical truth and validity of the psychological aspects of a litigant's claimsAssessment procedure and degree of structurePsychological evaluation is less complete and less structured. Patient provides structure. Patient and psychologist work to define the goals of interaction.Forensic evaluators conduct highly structured assessments using structured interviews supplemented with a battery of psychological testsAdversarial aspectPsychotherapeutic process is rarely adversarialForensic evaluation is adversarial in that evaluator seeks information that both supports and refutes litigant's legal assertionsGoals of the relationshipPsychotherapy is predicated on a working alliance, geared to the patients benefit A forensic evaluation strives to obtain objective information that may ultimately aid a trier of factEffect of examiners attitudePositive relationship between the success of the therapist-patient alliance and success in therapyForensic examiner must be detached, skeptical, and must carefully question what the litigant presents. It is less likely that his or her judgment-laden testimony would cause serious or lasting emotional harm to the litigant