Insurers’ doctors tend to be predictable in the defenses they raise to a plaintiff’s (a person who has filed a lawsuit) claims of psychiatric (mental or emotional) injury. This predictability can work to your advantage if you are represented by an experienced personal injury lawyer who is willing to do the research necessary to challenge the defense expert. This article discusses several of the most common defenses and explains how a plaintiff’s personal injury lawyer might deal with them.
Junk defense #1: “There is nothing psychiatrically wrong.”
Typically, the insurer’s defense doctor determines there is nothing psychiatrically wrong with the plaintiff in personal injury case by not looking to find anything wrong – for example, by not testing for a particular conclusion; not asking questions about the symptoms; ignoring all other data to the contrary; or failing to conduct a complete examination.
A plaintiff’s personal injury attorney can expose the weak foundation of this defense by cross-examining the defense doctor with questions similar to the questions below. These questions assume the plaintiff is depressed, but your personal injury attorney can use this method of questioning for any psychiatric diagnosis. Note how the questions ask the defense doctor to show where this information is documented, not simply what he or she remembers (or claims to remember).
- Q: Doctor, did you conduct any personality assessment inventories?
Q: Please show me where you specifically tested for depression.
Q: Doctor, can you show me where, in the test manual, it indicates that this test you just pointed out was created to test specifically for depression?
Q: Doctor, did you go through the particular symptoms of depression with my client?
Q: Doctor, did you weigh my client?
Q: Did you ask my client if she was depressed?
Q: Did you administer any tests to determine if my client had a depressed mood?
Q: Doctor, show me where you documented that you asked my client how often she cries?
Q: Can you show me in your report where you discuss her family members’ statements about how my client has changed since the accident?
Q: Can you show me in your report where you asked my client how the accident affected her emotionally?
Q: Did you ask my client if she was taking any medication?
Q: You will agree, doctor, that the narcotics used to treat my client’s pain can also cause or increase depression, won’t you?
Q: Where did you document that in your report?
Q: Where did you document in your report or handwritten notes that you asked my client whether or not she was having any side-effects due to the medication?
Q: Did you ask my client about her hobbies before the incident?
Q: Were you aware that my client has a black belt in kung fu and played soccer every single weekend?
Q: Were you aware that my client’s orthopedic surgeon advised her to avoid those activities?
Q: Can we agree that it can be extremely depressing to give up a hobby that one loves?
Q: Show me where in your notes you documented that you asked my client how it made her feel to give up those hobbies.
Q: Doctor, isn’t it true that exercise can help reduce depression?
Q: Can you show me where in your report you discussed the fact that my client is no longer able to exercise in the same fashion and in the same manner because of her injury?
Q: Doctor, isn’t it true that if a person is able to exercise significantly and frequently and then is unable to exercise to any significant degree at all, this can increase or even cause depression?
Q: Doctor, if you were made aware of the fact that my client was busy, active and engaged in hobbies prior to the accident, and now rarely goes out, does not want to be with people, and frequently sits alone in a dark room, would you agree that is an indication of anhedonia—a pervasive lack of interest in the enjoyment of life?
Q: Doctor, isn’t it true that anhedonia is a symptom of major depression?
Q: Doctor, show me where you documented that you asked my client about her sleep patterns?
Q: Show me where you documented that you asked my client if she is experiencing fatigue.
Q: Show me where you documented that you asked about her feelings of worthlessness.
Q: Is my client having trouble concentrating?
Q: Show me where you documented that you administered any tests of concentration.
Q: Does my client have recurrent thoughts of death?
Q: Show me where you documented that you even asked this question.
Q: Did you ask my client if she was suicidal? [Even the most basic interview should include this. The defense doctor should ask about both active and passive suicidal ideation. Active: The patient has a plan to kill herself. Passive: The patient wishes she would not wake up in morning.]
Q: So, doctor, as I understand it, you concluded my client is not suffering from depression by: a) not testing her for it; b) not asking questions about the diagnosis of major depression; and c) ignoring the tests conducted by other physicians.
Junk defense #2: “Something is wrong, but it was not caused by the accident.”
The insurer’s defense doctor might claim that the source of the personal injury plaintiff’s problems is not the accident, but some other event that occurred in the plaintiff’s life which could also be expected to cause stress. For example:
- A death (friend or family, within two years)
- Divorce; spouse “stepping out”
- Spouse lost a job; plaintiff lost a job
- Postpartum depression
- Thyroid disorder
- Medication side-effect
- Problems with the plaintiff’s children – ADD, school problems, arrest
- Other physical problems serious enough to cause depression
- Being a party to a lawsuit
Even if there is no cause for depression apart from the accident injury, many defense doctors will presume there is, and will not even bother to ask the plaintiff what caused his or her depression – the accident or the unrelated event.
Here are some questions a plaintiff’s personal injury attorney might ask the defense doctor to uncover the weaknesses in this defense:
- Q: Doctor, show me, please, where you document that you actually asked my client if his divorce, three years prior, was causing him more distress than the chronic pain and limitations he has from the accident?
Q: Doctor, if someone is trapped in a bad marriage, isn’t it possible that a divorce will bring a sense of relief, rather than depression?
Q: Have you talked to any of my client’s friends or family?
Q: Doctor, can you explain why, in your opinion, the divorce is causing my client’s depression when he was asymptomatic before the accident and the symptoms occurred right after the accident?
Q: Doctor, isn’t it true that 80% of my client’s visits to his treating doctor have to do with his anxiety about his pain and limitation of function, and only 20% have to do with the divorce?
Q: Isn’t it true there are just two references out of eight that have anything to with his ex-wife?
Q: Other than these two references, he discussed the pain, the anxiety, and the loss of self-image he feels because of his limited function?
Q: Doctor, I counted the words used by my client to describe his problems at each visit to his treating doctor. He talked about pain using 352 words documented by his doctor. He talked about his divorce using only 20. The focus of the treating doctor and my client appears to have been more on pain than on his ex-wife, right?
Q: So almost 100% of my client’s complaints to his treating doctor had to do with the accident, yet you conclude there is some other cause for his depression? Is that right?
Q: Doctor, have you calculated the statistical probability that this complaint is due to a pre-existing, completely asymptomatic, condition?
Q: My client’s divorce is over, finalized, isn’t it?
Q: The chronic pain is not over, is it?
Q: So explain to me how the divorce is causing more problems in light of the fact that (a) you didn’t ask my client which caused him more distress, the divorce or the accident; (b) the vast majority of his visits to his psychiatrist have to do with pain, not the divorce; and (c) his divorce was finalized over 3 years ago, but he still experiences serious pain every single day.
What if there actually is another stressor in the plaintiff’s life that caused or is causing mental or emotional problems? If this is your situation, you should tell your personal injury attorney about it. If you try to hide it, or downplay or deny the effect of this other stressor, you will lose credibility. Think about this other stressor on a scale of 1-10, with “1” being rare stress from the event and “10” being so much stress that you cannot envision being able to feel any more stress or depression. How does this other stressor compare with the accident/injury? Just because one life-stressor caused you mental or emotional problems does not mean the accident injury did not also cause problems.
Junk defense #3: “The accident was too mild to cause this condition.”
You might call this “the defense doctor who knows everything” defense. Some defense doctors will reach far beyond their area of expertise and offer an opinion on a topic about which they have no business giving an opinion. Consider, for example, a traumatic brain injury. Even if the defense doctor has no formal training or education in accident reconstruction or G-forces or anatomy of injury, he might testify: “One reason I believe there to be no permanent traumatic brain injury is that this was such a mild accident; the force was not sufficient to have caused brain injury. I mean, just look at this picture of the plaintiff’s car. There is no damage.” Faced with this defense, a plaintiff’s personal injury attorney might respond as follows:
- Q: Doctor, are you an epidemiologist?
Q: Are you an accident reconstruction specialist?
Q: Have you calculated the G-force in this case?
Q: Doctor, being in an accident can cause a tremendous amount of anxiety, can’t it?
Q: Are you familiar with the “fight or flight” syndrome that can exist after trauma?
Q: Please explain that on a chemical basis.
Q: Walk me through what happens on a cellular level when an individual is engaging in flight or fight.
Q: Doctor, you would agree that an accident can cause anxiety in the moment of impact?
Q: You would agree that all people respond to trauma differently, wouldn’t you?
Q: You would agree that some people are more fragile than others?
Q: Some people have pre-existing problems or a chemical or organic makeup that makes them more susceptible to the development of psychiatric problems, correct?
Q: Doctor, if such an individual also has a physical problem which causes pain, requiring him to take narcotics, that medication can increase the probability of depression, correct?
Q: If this individual’s personality changes after an accident and remains changed after the accident, it would not be unreasonable to presume that the accident probably played some part in it, would it?
Q: Doctor, could we agree that initially the accident could have been responsible for some anxiety/depression in my client?
Q: Okay, doctor, tell me what you believe is the current cause of my client’s depression.
Q: Okay. Now tell me, please, at what exact point—what exact date, hour, and minute—did my client’s depression and anxiety stop being due to the car accident and start being due to his divorce, which was finalized more than 3 years ago?
Junk defense #4: “A normal Glasgow Coma Scale in the emergency room = no brain damage.”
The defense doctor may argue that because the plaintiff (the person who has filed a lawsuit, claiming to be injured) had a normal Glasgow Coma Scale in the emergency, he could not have suffered brain damage. The Glasgow Coma Scale (“GCS”) is a neurological scale used to measure brain injury. It gives points for various neurological abilities (e.g., the ability to open one’s eyes), verbal response, and motor response. A perfect score is l5. With the GCS, however, timing is everything. Often the GCS might not be assessed until minutes or hours after the accident. At the scene, the plaintiff might have been unconscious, but he may have regained consciousness by the time medical personnel arrived or he presented himself to an emergency room.
If your case involves a “normal GCS” defense, your personal injury attorney might challenge the defense doctor’s claims with the following cross-examination:
- Q: Doctor, my client scored a perfect 15 on the GCS when it was administered in the emergency room following this accident, correct?
Q: Doctor, what GCS would cause you to be concerned about future brain damage? [Most doctors will say a score of 12 or below indicates moderate brain damage.]
Q: What would my client’s GCS have been at the scene of the accident, if someone had assessed it then, when he was unconscious?
Q: So, at the scene, if someone had assessed his GCS, he would have scored below 8, right?
Q: That means that, at the scene of the accident, my client fell within the “severely brain injured” range, right?
Junk defense #5: “The patient has a personality disorder and was disturbed before the incident.”
We all have personality traits. You might not like your peas to touch your mashed potatoes. That can be an obsessive-compulsive personality trait. If, however, you would rather starve than eat mashed potatoes touching peas, this might be serious enough to be considered a personality disorder. A disorder, as opposed to a trait, interferes with one’s ability to function – to to sustain relationships, jobs, etc. – to a significant degree. An individual with a personality disorder has poor coping skills. Consequently, when someone with a personality disorder suffers an injury causing unremitting pain and depression, he will have a rougher time adjusting and may have more psychiatric impairments because of the pre-existing personality disorder.
Some defense medical experts will rely on a diagnosis of “pre-existing personality disorder” to avoid having the accident or incident be responsible for the plaintiff’s condition. A smart personal injury attorney might challenge this defense in two ways: (1) by gathering evidence to show that the plaintiff do not have a personality disorder, and (2) by using this diagnosis to the plaintiff’s advantage on cross-examination of the defense doctor.
Gather evidence to prove plaintiff does not have a personality disorder
An individual with a personality disorder will exhibit symptoms of the disorder by late adolescence or early adulthood. A 57-year-old man does not suddenly develop a personality disorder. Thus, if the defense doctor in your case tries to argue that you have a personality disorder, your personal injury attorney can counter that argument by gathering evidence of your past behavior. This evidence may take the form of: prior school records and grades; testimony from former employers, coworkers, and friends; testimony of your adult children and relatives; records from your family physician; employment evaluations and military service records. Did you belong to clubs or a church? Did you go out to social events regularly? Did you have hobbies? These are not the behaviors of someone with a personality disorder. People with this diagnosis have problems holding a job, staying married, maintaining friendships, etc.
Cross-examine the defense doctor
A “personality disorder” defense can be turned to the plaintiff’s advantage on cross-examination of the defense doctor. If the plaintiff truly has a personality disorder, then he or she is dealing with significant functional impairment or subjective distress and, clearly, has suffered damages; if the impairment or distress is not significant, then the plaintiff has a personality trait, not a disorder, and some other cause (like the accident) must be responsible for the plaintiff’s condition. Armed with this knowledge, a plaintiff’s personal injury attorney can use the testimony of the defense doctor to help establish the plaintiff’s damages. Consider the following sample cross-examination questions for the defense doctor:
- Q: Doctor, you claimed my client has a pre-existing personality disorder, correct?
Q: So we can agree that according to the Diagnostic and Statistic Manual a personality disorder carries with it significant interference in social and/or occupational functioning, correct?
Q: Doctor, I would like you to identify for me, please, each and every instance of significant interference in social and/or occupational functioning that existed prior to this accident that, in your opinion, is severe enough to be evidence of mental illness.
Q: What are the specific acts my client engaged in prior to this accident that are evidence of a personality disorder?
Q: If we agree that you are correct, and my client does have a pre-existing personality disorder, he would have poorer coping skills to deal with the [accident, malpractice, etc.] than someone who does not have a pre-existing personality disorder?
Q: Doctor, isn’t it true that treatment is more difficult if an individual has a pre-existing personality disorder? In other words, if you superimpose depression, a brain injury, etc., upon someone who is already mentally ill, it can make the treatment of subsequent mental illness even more difficult?