By Dr. Sasha Berger, PhD (Clinical Psychology Expert Witness)
When legal teams are evaluating Posttraumatic Stress Disorder (PTSD) claims, the process is often oversimplified: a traumatic event happened, symptoms followed, and damages are assumed. In practice, PTSD evaluations are more nuanced. Planning for, and incorporating, these complexities will allow for a comprehensive and thorough report and more airtight deposition/testimony.
For attorneys, this matters because PTSD claims often turn on timeline, causation, baseline functioning, differential diagnosis, and whether the alleged symptoms are consistent with the event at issue.
As a trauma-focused clinical psychologist in active practice, here’s what I look for when I approach a case:
1. What was the nature of the trauma or stressor?
In approaching PTSD, context is key. Understanding the nature of the incident or stressor can provide valuable input about what information is most likely to be useful, in both record review and clinical assessment. I would expect to see different presentations depending on the nature and duration of the stressor in question. For example, someone who experiences an assault or is the victim of an accident will likely have a different symptom profile and presentation than someone who has endured a prolonged period of bullying or abuse. Likewise, if a trauma was witnessed, or the trigger was a threat of harm versus an actual incident, this would also affect how we might expect to observe impact.
This matters in litigation because the nature of the stressor affects what symptoms would be expected and what records should be reviewed.
It is important to note that no manifestation is more “legitimate” than another; we are interested in symptom profiles as a complete picture, and presentations can differ. Long gone are understandings of PTSD solely as a combat disorder with dramatic flashbacks; the field has grown significantly since then in its understanding, and application of diagnostic criteria.
2. What records help establish baseline and functional change?
Records are important in cases involving PTSD, and will do much to strengthen a report. When choosing which records to send over, it is helpful to err on the side of overinclusion. As PTSD can have a global impact on functioning, it is useful to gather as much context as possible for current difficulties. What may seem irrelevant may be an important part of the picture. Comprehensive records will allow for the establishment of a timeline and description of symptoms, help define impact, and allow for conclusions that reflect reasonable opinions on cause and effect. From a case evaluation standpoint, incomplete records can make it difficult to distinguish a new injury from a preexisting condition, an exacerbation of prior symptoms, or symptoms better explained by other diagnostic considerations.
Some of the most helpful records, predictably, are prior reports from other mental health professionals. These more comprehensive documents may include intake reports (either in an inpatient or outpatient setting); discharge summaries (from a partial/full hospitalization or an intensive outpatient program); treatment summaries from current and past mental health providers; and formal psychological or neuropsychological reports (in a forensic or lay context).
Notes from psychiatric treatment providers are also useful: both those providing therapy as well as those managing medication. The level of detail in these varies, of course; as clinicians we try to maintain the utmost privacy for our patients, and that includes the clinical record. But even the barest-boned notes can provide insight, and key opportunities for follow up. The presence of a medication adjustment, a change in mental status, fluctuation in symptoms, or heightened risk assessment are all important flags.
It is important to note that all medical records should be sent, not just ones centering psychiatric concerns, as behavioral or mental health information are often referenced in general medical settings as well. Records are also helpful in establishing a pattern of baseline versus deficits in functioning. An important aspect of diagnosing PTSD (or any other disorder) is the concept of functional impairment: has someone’s ability to function been affected significantly? Records that may be helpful in shedding light on this question include occupational and/or academic reports, as well as collateral information obtained from loved ones or colleagues. This is especially important when damages are tied to functional loss.
3. What does a trauma-informed forensic evaluation require?
When approaching the evaluation, clinical sensitivity is key. Someone with potential symptoms of post-traumatic stress should be treated in a way that will minimize distress and potential retraumatization. A clinician/expert who is well-versed working with individuals with trauma should conduct the evaluation. Preparation for potential increased distress associated with the evaluation should also be undertaken. This may mean breaking up the evaluation into shorter segments, being judicious with language and efficient with questioning, inquiring about social and therapeutic support following the evaluation, having a safety plan in place in the event of an escalation of risk to self or others, and making sure to clarify the nature of the relationship between examinee and evaluator. For these reasons it is vital to allow enough time in the litigation process for the evaluation to proceed at a reasonable pace.
The evaluator should have an expertise in treating and assessing trauma, and be able to understand and execute the distinction between clinical treatment and forensic evaluation.
This also affects expert selection. The evaluator should have an expertise in treating and assessing trauma, and be able to understand and execute the distinction between clinical treatment and forensic evaluation. As the evaluation is underway, detailed history matters. While records are useful, the evaluator should use the examinee’s own words and current perspective to create a linear and holistic assessment.
Context is especially important in complicated PTSD cases. A comprehensive psychosocial history helps the evaluator understand whether the person had prior vulnerabilities. Even if certain events do not have immediate impact, they can result in a vulnerability to developing PTSD from future stressors. Indeed, seminal research has shown that childhood experiences such as sexual abuse, violence in the home, or parental mental illness can increase later risk for adverse outcomes, including PTSD (e.g., Felitti et al, 1998).
In legal terms, prior trauma does not automatically defeat a PTSD claim. It may instead affect vulnerability, baseline functioning, apportionment, or the explanation of why a particular person developed symptoms after a later event.
In addition to developmental history, it is also important to gather other details related to current and past difficulties. A key question may involve premorbid versus postmorbid functioning: how was the examinee functioning before versus after the alleged incident(s) in question? A thorough clinical interview can help identify some of these factors, and will strengthen the clarity of the clinical picture.
4. Are the symptoms best explained by PTSD, another diagnosis, or both?
When making a diagnosis of PTSD, at times a clinical interview may be enough, while other instances may call for a more formal assessment. This decision can be made collaboratively with the attorney(s) and experts depending on the scope of the evaluation and the positioning of a diagnosis PTSD (versus simply emotional distress) within the case. When choosing measures of PTSD, as well as other indices of emotional distress (such as depression or anxiety) it is essential to choose well-validated and empirically supported instruments.
In litigation, the choice of assessment tools matters because the expert may need to explain why those measures were appropriate, what research supports their use, and how the results support or weaken the PTSD opinion.
It is also important for an evaluation to include measures that assess symptom validity, response style, and possible exaggeration. All of these steps strengthen the report and the conclusions drawn.
Once the information has been gathered, it becomes important to determine whether diagnostic criteria has been met, and, if so, for which disorder(s). PTSD has notable clinical overlap with other disorders, including depression, anxiety, and, in some cases, dissociative disorders. It is entirely possible for these disorders to exist either alongside, or instead of, PTSD. For attorneys, this distinction matters because emotional distress and PTSD are not interchangeable. It’s important to systematically rule out alternative explanations for symptoms and functional impairment. That diagnosis can affect causation, damages, expert selection, and how the claim should be framed.
Finally, the examinee may still show signs of emotional distress, such as subclinical or clinical levels of anxiety or depression, but not meet full criteria for PTSD. In those cases, the clinical opinion should clearly explain what diagnosis, if any, is supported; and how the symptoms may be connected, or not, to the event at issue.
Attorney Snapshot
Key Questions When Evaluating PTSD Claims:
- How is the trauma or stressor being defined?
- What was the examinee’s pre-incident psychological and functional baseline?
- Are there prior diagnoses, stressors, or vulnerabilities that need to be addressed?
- Do the records show a clear timeline of symptom onset and change?
- Is the expert experienced in trauma-informed evaluation and assessment?
- Has the expert considered depression, anxiety, dissociation, substance use, or other possible explanations for the current symptoms?
- Does the clinical opinion clearly address causation, baseline functioning, functional impairment, and alternative explanations?
PTSD claims require more than confirming that a traumatic event occurred and symptoms followed. A strong evaluation should define the stressor, establish baseline functioning, review the full record, assess functional change, consider alternative explanations, and explain the clinical reasoning clearly.
In litigation, that level of analysis helps attorneys understand whether the PTSD claim is well supported, overstated, or better explained by another condition. A clinician specializing in trauma and PTSD is best positioned to use both the records and the evaluation to reach an informed conclusion, write a comprehensive report, and deliver clear deposition or trial testimony.
Need an expert for your next case?
PTSD claims require a nuanced understanding of trauma, baseline functioning, and causality. If you are preparing for litigation involving complex psychological claims, contact High Rock Experts® today to consult with a forensic expert who can help you build a comprehensive clinical framework for your case.
About the Author
Dr. Sasha Berger is a Columbia-trained licensed clinical psychologist specializing in the assessment and treatment of complex trauma. Dr. Berger has held appointments at Columbia University Medical School, City University of New York, Mount Sinai Medical Center and the National Institute for the Psychotherapies. She leverages 15 years of elite academic and clinical experience to provide attorneys with rigorous, evidence-based consultation on the impact of trauma, PTSD, and dissociation.
Contact Dr. Berger:
Email: [email protected]
Direct: (646) 580-1052