PTSD as Bodily Injury 2015

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Transcript of PTSD as Bodily Injury 2015

  • VIEWPOINT | ISSUE IV | 2015

    1715

    Its not often that a ruling by an Australian state court will cause a stir in U.S. legal circles.

    But, a July 2015 ruling by the supreme court of New South Wales has renewed concerns that U.S. insurers may face claims for bodily injury identified as post-traumatic stress disorder (PTSD).

    The ruling came in a case brought by a nurse who sued an air carrier for injuries and trauma she suffered during a charter flight that had to touch down at sea while she was helping to evacuate a patient.

    The air carrier readily conceded to compensate the nurse for her physical injuries and the emotional distress that followed immediately upon those injuries. However, the air carrier resisted paying for her claims of PTSD.

    In denying the PTSD claim, the air carrier argued that PTSD, as a mental condition removed in time from the trauma in question, fell outside the terms of the Montreal Convention of 1998, which governs international understandings of air carrier liability. (The Montreal Convention is the latest update of the better-known Warsaw Convention of 1929.)

    The U.S. is a party to the Montreal Convention, so its provisions have the status of law in the U.S. Interpretations of the convention have been cited in U.S. court rulings unrelated to aviation.

    The Montreal Convention, like the Warsaw Convention before it, draws a distinction between compensable injuries to the physical body and non-compensable injuries to a non-corporeal mind.

    In the New South Wales case1, the judge ruled that the PTSD which [the claimant] developed and continues to suffer is not merely the result of an injury to her mind. [The claimants] PTSD also involves an injury to her brain and other parts of her body involved in normal brain function.

    Continuing, the judge added that the ongoing dysfunction of the plaintiffs brain...is consistent with chemical changes in her brain and body and in her brains neurotransmitter pathways, which have prevented a return to normal brain function.

    ResearchThe ruling in Australia reflects a reaction in law, one

    with potential international implications, to the progress of research in neuroscience as it identifies physical markers in the organic brain for conditions long regarded as diseases and disorders of the mind.

    Over the past three decades the growth of the biological PTSD literature has been explosive, wrote Dr. Roger K. Pitman and a team of Harvard Medical

    LIABILITY

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    Scars On the Brain Is post-traumatic stress disorder a form of bodily injury?

    ...the growth of biological PTSD literature has been explosive...

    Harvard Medical School researchers

  • VIEWPOINT | ISSUE IV | 2015

    School researchers in a 2012 article.2 The impact of an environmental event, such as a psychological trauma, must be understood at organic, cellular and molecular levels.

    According to Pitmans team, PTSD was regarded with skepticism in 1980 when it was first recognized as a diagnosable condition in the American Psychiatric Associations Diagnostic and Statistical Manual of Mental Disorders, known as DSM.

    Early on, the condition was conceptualized almost entirely in psychological terms, but the identification by researchers of biomarkers has provided an objective basis for diagnosing and treating the condition.

    Neuroscientists have identified three organic conditions as particularly prominent among the physical manifestations of PTSD: A reduction in size of the hippocampus, a part of the

    brain associated with conscious memories; Increased activity of the amygdala, a region of the

    brain that affects emotional responses to sensory experiences; and

    A reduction in volume of the prefrontal cortex, a part of the brain that affects cognitive functioning.

    InjuryResearch into PTSD has been driven, in large part, by

    widespread support for veterans of military combat, some of whom have reported experiencing the symptoms of PTSD. Those symptoms include recurrent and intrusive recollection of traumatic events and an increased sense of arousal and hypervigilance, to the point where the condition affects social and occupational functioning.

    Jonathan Shay, a psychiatrist at a Veterans Affairs outpatient clinic in Massachusetts, bristles at the use of disorder to describe post-traumatic stress reactions, and makes a morally compelling case that PTSD is an injury with a biological basis, with or without an accompanying physical injury.

    We are dealing with an injury, he wrote in 20113, not an illness, malady, disease, sickness, or disorder.

    My insistence comes from an awareness that within military forces it is entirely honorable to be injured, he added. The primary psychological injury from war is the persistence into civilian life (or life in garrison) of the valid physiological, psychological, and social adaptions that promoted survival in the face of other human beings trying to kill you.

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  • VIEWPOINT | ISSUE IV | 20151717

    Shay concluded by saying: I want to dispute the habitual mind-body distinction...This distinction is often useful, but at its root, incoherent...The body codes moral injury as physical attack and reacts with the same massive mobilization.

    If Shays position regarding PTSD as an injury prevailsand concern for veterans strongly influences how society regards PTSDthe law on what constitutes bodily injury could be profoundly affected.

    The LawA transformation may already be underway in

    criminal law, writes University of Minnesota law professor Francis X. Shen. In a 2013 article, he wrote that policymakers and the public increasingly recognize the biological basis for, and the gravity of, mental and emotional disabilities.4

    As a result, he adds, neuroscientific evidence is rapidly becoming more prevalent and prominent in criminal proceedings across the country.

    If PTSD and other mental conditions come to be commonly regarded as forms of bodily injury, Shen believes there will be a tremendous expansion of criminal liability because of the generally more severe charges and sentencing handed down for bodily as opposed to purely mental or emotional injury. He questions if jurors will be able to make the traditional distinction between physical and mental injury if they are presented evidence from neuroscience.

    At the same time, objective evidence of mental impairment may help criminal defendants win acquittal or avoid the harshest sentences. Shen cites an example where a Florida jury gave an offender a life sentence rather than the death penalty on the basis of evidence produced by electroencephalography.

    As for civil law, Shen finds that neuroscientific understandings of mental injury are having an effect

    in efforts to remove the distinction between mind and body from considerations of tort recovery and liability insurance coverage.

    Few courts have found that mental harm, on its own, constitutes bodily injury, he writes, but most seem to agree that mental harm accompanied by physical manifestations can be sufficient to trigger insurance coverage.

    LiabilityTo illustrate the progression in legal thinking, the

    Connecticut Supreme Court stated back in 2000 that the majority rule nationally is that bodily injury does not include emotional distress unaccompanied by physical harm, even though emotional distress often has physical manifestations.

    Fourteen years later, another Connecticut court ruled that claims for the physical manifestations of emotional distress, such as sleeplessness, may constitute a bodily injury under a policy.

    Thus, there are two scenarios today where a claimant has some chance of success in claiming that emotional distress falls under coverage for bodily injury: In situations where the emotional distress directly

    accompanies or arises from bodily injuries as traditionally understood; and

    In situations where emotional distress is manifested in objectively identifiable physical symptoms and directly connected to tortious acts of another.Recent cases concerning PTSD essentially seek to

    add a third dimension to the consideration of mental injury as a form of bodily injury. Drawing on advances in neuroscience, some claimants argue that PTSD, in itself, is a form of physical injury to the organic brain compensable under liability coverage for bodily injury.

    Claims of PTSD impairment are increasing, writes the Ohio State Bar Association in a posting on its website, adding that Ohio judges are generally skeptical

    Claims of PTSD impairment are increasing.

    Ohio State Bar Association

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  • VIEWPOINT | ISSUE IV | 2015 1818VIEWPOINT | ISSUE IV | 2015

    of PTSD claims, and look for direct evidence of the disorder and its connection to an occurrence.5

    BystanderStandard liability insurance policies have long defined

    bodily injury to be physical harm only, and have excluded mental or emotional injury not caused by a physical injury from that definition.

    In recent years, the scope of these definitions have been tested by bystander claims from people who claim to suffer from PTSD after witnessing traumatic events in which they were not physically injured as traditionally understood.

    Two well-known cases reached the Michigan Supreme Court, with different results.

    In 2008, that court held that PTSD suffered by a train engineer who struck a school bus might be compensable as a bodily injury, and remanded the case back to the original trial court, which had originally ruled that PTSD did not constitute bodily injury.6

    The engine