What Psychological Factors Drive Civil Litigation?

What Drives Litigation? How Forensic Psychiatrists and Psychologists Assess Motivation

by Mark Levy, M.D.,

Forensic psychiatry and psychology is the application of psychiatric and psychological clinical knowledge and research to the practice of law where plaintiff’s (or criminal defendant’s) mental status is at issue. The forensic psychiatrist is an expert at making diagnostic and prognostic judgments that are informed by scientific research and clinical experience about whether a plaintiff’s subjectively experienced emotional distress and/or functional impairment can be plausibly related to the alleged accident, injury, or tort. In addition, the forensic psychiatrist considers whether and to what degree other factors (the patient’s pre-existing condition, the plaintiff’s motivation to seek compensation or to punish the defendant, the plaintiff’s legitimate righteous indignation at being wronged with an appropriate wish to seek justice and reparation, or some combination of any of the above) are entering into the plaintiff’s assertion that (s)he has been psychologically damaged and, were it not for the defendant’s action or conduct, the plaintiff would not be suffering from the particular condition that (s)he has alleged.

Forensic Psychiatry and Civil Law: Motivation

In addition to expertise in diagnosing mental disorders, the forensic psychiatrist has expertise in assessing motivation. A plaintiff’s motivation might be to seek damages to obtain necessary medical care and, as much as possible, restore his or her life to its pre-injury status and/or to punish the party that has injured him. At the opposite end of the spectrum, some plaintiffs engage in outright malingering (faking an injury or psychiatric illness) to make money. Sometimes, a plaintiff who is compelled to litigate, despite reasonable efforts at settlement, is driven by the desire to have his suffering witnessed (and thereby validated) on the stage of litigation while attempting to externalize all responsibility and punish the defendant whom he regards as responsible for all of his suffering. Not infrequently, various combinations of these factors are at work motivating the litigation. Teasing out the plaintiff’s motivation requires a considerable amount of clinical experience, skill, and acumen, as well as a familiarity with applicable state and federal law. A prospective client tells you he has suffered severe emotional stress (with or without physical injury) as a result of a car accident, or his employer’s actions, or his insurance company, or his doctor, or a drunk driver, or anyone who may have damaged, hurt, or injured him by accident through intentional or negligent conduct or for a variety of reason. If you are the attorney representing him, or if you are defending your client against his claim of personal injury, how do you assess whether or not the plaintiff is indeed suffering from a psychiatric disorder or injury and, if he is, whether it was causally related to the incident or alleged misconduct by the defendant? In essence, in order to adequately represent him (or defend against his allegations) the attorney seeks evidence based expert opinion to assess what is true and what is not about injuries and causation.. How do you determine what is the truth?

Questions to be Addressed by a Forensic Psychiatrist and Psychologist:

Only a forensic psychiatrist (or forensic psychologist) has the necessary training and experience to assess the plaintiff’s current psychological and psychiatric diagnosis, to make inferences about the plaintiff’s emotional state at the time of the accident or injury, and to determine if there is a plausible connection between that accident or injury and the plaintiff’s current mental state. The forensic psychiatrist has additional expertise to assess the possible medical (including medication) dimensions of the complaint. The forensic psychologist has unique training and experience to conduct objective psychological (and, if indicated, neuropsychological) tests of the plaintiff’s personality and, if appropriate, neurocognitive functioning. These two highly trained professionals work together in a complimentary fashion carefully seeking accurate, evidence based, diagnostic opinions and conclusions.

Among the questions usually addressed by a forensic psychiatrist conducting an IME in civil litigation are the following:

  1. Is this particular plaintiff suffering from a recognized mental disorder? That is, what is the diagnosis, according to the Diagnostic and Statistical Manual of Psychiatric Disorders, Fourth Edition, Text Revision, 2000 (DSM-IV(TR)?
  2. If (s)he is indeed suffering from a disorder, was that disorder caused or exacerbated by the events, incidents, or issues under dispute in the present lawsuit?
  3. Were there pre-existing psychological problems or psychiatric illnesses in the plaintiff’s medical history that were likely to have caused present symptoms of “damages,” even if the event(s) under dispute had never occurred?
  4. Specifically, does the plaintiff have a pre-existing personality disorder or other mental condition that predisposes the plaintiff to their current psychiatric symptoms and that may be at least as much the proximate cause of the current symptoms as were the incidents under dispute?
  5. Or, was the plaintiff functioning adequately prior to the event and, were it not for the disputed incident(s) or event(s), would still be functioning adequately and without significant impairment? • What is the most appropriate type and duration of treatment recommended for the plaintiff’s mental disorder(s)? • What is the likely cost of such treatment?
  6. To what extent (if any) and in what manner should the liability (and cost) of the plaintiff’s damages and future treatment be apportioned among various defendants, or between pre- and post-incident causative factors?

These can be weighty questions with significant financial and emotional consequences for both parties within a dispute. It goes without saying that the forensic psychiatrist must proceed cautiously and comprehensively when evaluating the entire range of data relevant to the plaintiff’s psychological complaints, including all medical records (including those predating the dispute), all relevant deposition transcripts, and other documentary evidence. Ultimately, the forensic psychiatrist must present the data and his conclusions with “reasonable medical probability” or “certainty” (i.e., with at least more than a fifty percent probability of accuracy).

Psychological Testing:

Psychological (and, when indicated, neurocognitive) testing is of enormous diagnostic value when conducting a forensic assessments. In our civil forensic practice, regardless of which side has retained us, virtually all plaintiffs are administered a battery of psychological tests including both “endorsement” type personality tests (such as the Minnesota Multifactorial Personality Inventory -2, the Personality Assessment Inventory, and others), and a projective test (The Rorschach Inkblot Test). Many examinees are also administered cognitive screening tests (such as selected subtests from the Wechsler Adult Intelligence Scale). Those who present with overt complaints of cognitive impairment or those for whom head trauma and possible traumatic brain injury are features of their medical history, are also administered a battery of neurocognitive tests. All of the psychological and neurocognitive test data is carefully analyzed by a forensic psychologist and/or neuropsychologist. An active process of collaboration between the forensic psychiatrist and psychologist (known colloquially as “case conferencing” in medicine) enables the forensic psychiatrist or psychologist to provide, evidence-based diagnostic conclusions with a high level of specificity and accuracy. The expert who has arrived at diagnostic conclusions in this manner is well prepared to confidently testify about evidence based diagnostic, causal and prognostic conclusions.

Mark Levy, M.D., a Distinguished Life Fellow of the American Psychiatric Association, is a psychoanalyst and, for more than thirty years, has been in full-time private practice of general and forensic psychiatry in Mill Valley, California. He is the medical director of Forensic Psychiatric Associate Medical Corporation (www.fpamed.com) and is certified by the American Board of Psychiatry and Neurology in both General Psychiatry and Forensic Psychiatry. He is an assistant clinical professor within the Department of Psychiatry at the University of California-San Francisco, where he teaches in the Forensic Psychiatry Fellowship. He can be reached at email hidden; JavaScript is required and welcomes your inquiries.

Subsequent posts to “What’s News” will, among other topics, feature psychological and neuropsychological discussions about the utility and limitations of particular psychological and neuropsychological test instruments.