The American Psychiatric Association’s recent changes to the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) provide another arrow in the quiver for plaintiffs seeking recovery for psychological injury. These changes are especially relevant to insurers and businesses defending against personal injury claims where posttraumatic psychological disorders are at issue. Defending against claims for psychological injury can be a daunting task considering the subjective nature of these injuries. Unlike physical injuries or deformities, the fact that a plaintiff is depressed, anxious, fearful or withdrawn is usually not overtly recognizable during the course of a two or three day trial. That leaves plenty of room for jurors to speculate on the extent of the plaintiff’s psychological injury.
The DSM-5 manual will likely ease the task of proving the existence of a psychological injury by broadening the diagnostic criteria for many psychological disorders, such as acute stress disorder and posttraumatic stress disorder (PTSD). For example, persons allegedly suffering from PTSD are no longer required to prove that they experienced or witnessed a traumatic event first-hand. Now, plaintiffs could potentially use DSM-5 to support their claims of PTSD even if they experienced a traumatic event indirectly, such as through a phone call or watching a breaking news story about a loved one’s death or injury. In addition, PTSD is now considered “developmentally sensitive,” which means the diagnostic thresholds for diagnosing PTSD are lowered for children and adolescents.
In short, the revamped DSM-5 will likely provide plaintiff attorneys with more ammunition to prove that their clients have suffered an array of psychological injuries as a result of a traumatic event. To adequately defend against these claims, defense attorneys must familiarize themselves with the revised diagnostic criteria and try to use it to their advantage. This will require a more fact-intensive approach to defending against these claims by digging deeper into plaintiffs’ therapy records to prove that they are not suffering from any number of symptoms listed under a given psychological disorder. Although the revised DSM-5 will make psychological disorders easier to prove, the defense bar must use DSM-5's improved clarity to its advantage.