PTSD and Employment Litigation:
When will the Debate Begin?
Stress Disorder Damages often based
on Dubious Assumptions
Is Sexual Harassment the same
as Roadside Bomb in Iraq?
This generation has witnessed the continuing expansion of post-traumatic stress disorder in the arsenal of weapons at the disposal of plaintiff’s lawyers. Particularly in harassment cases, the victim of unwelcome sexual or other illegal workplace conduct seeks the treatment of a psychologist and/or psychiatrist, who diagnoses the patient with PTSD. Since 1980 the Diagnostic and Statistical Manual of Mental Disorders, bible to the American Psychiatric Association, has officially recognized this condition.
This was the third edition of the DSM, and its influence in the identification and diagnosis of mental conditions has been enormous. DSM III standardized diagnosis by including a checklist of symptoms for each illness and divided up broad diagnostic categories into multiple ailments. It also rolled out 112 new disorders. The DSM III represented an indirect boon for the drug companies.
It also did wonders for post-traumatic stress disorder. The disorder, according to the DSM III, may develop thirty days or so after a person “experiences a life-threatening event that engenders extreme feelings of helplessness, fear, or horror.” Although the DSM III says nothing about treatment, its adoption of PTSD came with criteria that permitted wide latitude for diagnosis and treatment to practitioners. The disorder gradually reached far beyond combat trauma (the prime source of this pathology). The disorder, it seemed, could apply to all sorts of situations.
Richard McNally, a Harvard psychologist, criticizes the presumption of parity that underlies the application of PTSD to events that occur over a wide spectrum. He believes it is illogical and bad science to lump them together – because they are different and call for diverse therapies. Within the Veteran’s Administration there is debate – unfortunately politicized - about how far to go with the PTSD approach to returning Iraq and Afghanistan soldiers suffering from post-combat problems.
If the VA has the courage to question the degree to which PTSD applies to these problems, the legal community should confront the abuse of this diagnostic tool as well.
Despite court decisions that cast serious doubt on “reverse causation”, plaintiffs present evidence of their PTSD to prove – albeit indirectly - that the event giving rise to the disorder happened in the first place, e.g., sexual harassment. See, e.g., Spencer v. General Electric Co., 668 F.Supp. 1072 (E.D. Va. 1988). A member of the jury would conclude that the plaintiff must have been subjected to a hostile working environment, otherwise why would she come to court and make up her stress symptoms, her therapy, her medication, etc.
As the abuse of punitive damage awards has led to reforms, the exaggerated and far-flung use of post-traumatic stress disorder needs to be put in check.