Defenses relied upon by insurers’ doctors to undermine claims of psychiatric harm in personal injury lawsuits

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).

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”
Moving
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:

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:

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:

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: