Ask the Expert
New Developments in the Role of Post-Traumatic Stress Disorder in Civil
and Criminal Law: A Case of Medical Malpractice Illustrates the Growing
Importance of Informed Consent
Harold J. Bursztajn, MD
Dr. Harold J. Bursztajn, Associate Clinical Professor and Co-Director,
Program in Psychiatry and the Law, Harvard Medical School at the Massachusetts
Mental Health Center, practices both as a clinician and as a forensic
psychiatrist consulting to attorneys and institutions.
Post-Traumatic Stress Disorder seems to be coming up more and more in
both civil and criminal law. In what kinds of legal actions does it arise?
Post-Traumatic Stress Disorder (PTSD), originally identified as a neuropsychiatric
reaction to combat stress, has been applied more and more broadly since
it was officially recognized as a psychiatric diagnosis in 1980. In criminal
law it has been used successfully to support claims of self-defense --
for example, where the Battered Woman Syndrome is invoked. It also has
been used as a mitigating factor when an issue of diminished capacity
arises during the trial or sentencing phases in both white-collar and
violent crimes, in state as well as federal court.
By now PTSD is a commonly alleged form of emotional harm in civil litigation.
PTSD may occur as a result of a threat to safety, including the risk
of physical injury, or actual physical injury. As such, it can be the
basis of damage claims in cases of alleged harm caused by acts of violence,
sexual abuse, workplace harassment, or negligence, as in automobile accidents,
medical malpractice, or breach of contract. PTSD can also result when
a person is forced to be a bystander while the safety of a loved one
is threatened -- for example, a mother watching horrified as a truck
careens toward her child crossing a rainy street.
What is necessary to prove that my client suffers from PTSD as a result
of the cause of action?
An objective forensic psychiatric evaluation is essential. This evaluation
cannot be conducted by the treating psychiatrist, since it must be independent
of the patient-centered treatment relationship. It may entail multiple
examinations, microanalysis of the data thereby gathered, and review
of corroborative data sources such as medicolegal records, collateral
witnesses, and site visits.
How does PTSD come into play in medical malpractice litigation?
A good example is provided by a recent case in which I testified, Meador
v. Stahler and Gheridian (Middlesex Superior Court C.A. No.
88-6450, Mass. 1993). This was the case in which a woman, Mary Meador,
and her family were awarded approximately $1.5 million for damages
resulting from a cesarean section which Meador claimed she neither
wanted nor needed. The initial reports in the press focused on the
novelty of obstetricians being successfully sued for doing -- rather
than for not doing -- a cesarean section. But the deeper
significance of the case, I believe, is to demonstrate that engaging
in an informed-consent process with the patient is now part of the
standard of care in medicine, and that PTSD can result when a patient
and family are denied the chance to give or withhold informed consent.
Who was the plaintiff's attorney?
Michael S. Appel, of the Boston firm of Sugarman, Rogers, Barshak
Why was there no informed consent? Didn't Mrs. Meador sign an informed-consent
She did, after being told (she claimed) that the surgery would be done
only in case of an emergency. Her case shows how little such pro
forma informed consent means in the absence of a true process of
informed consent. For Meador did not have the benefit of a dialogue to
help her and her family understand and participate in the decision to
have the surgery. On the contrary, Meador testified that the physicians
denied her the chance to give birth vaginally and disregarded her expressed
wish to do so even when she was well into labor.
Did the case go to the jury, then, on a theory of informed consent?
No, because it did not meet the technical requirements set by Harnish
v. Children's Hospital Medical Center (387 Mass. 152; 1982). Harnish established
for Massachusetts a pro forma standard of informed consent
-- namely, that the physician must obtain the patient's consent after
informing the patient of the material risks of the proposed procedure.
Meador's physicians did meet this minimal requirement. For this reason,
the case went to the jury only on a theory of negligence.
How, in your view, did the lack of an informed-consent process contribute
to the judgment that malpractice had occurred?
The lack of such a process resulted in the actions which constituted
the allegedly negligent medical practice. No evidence was presented that
the cesarean section was negligently performed.
What about the post-traumatic stress in this case? Wasn't the trauma
Meador experienced just a reaction to the chronically disabling physical
condition that resulted from the surgery?
No, it was more than that. On the basis of an extended forensic psychiatric
evaluation, I testified that the primary stressor was the sudden, devastating
loss of control Meador felt when the surgery was performed against her
wishes, which led to feelings of helplessness, horror, and fear perpetuated
by the ongoing reminder of her residual physical complications. Had she
suffered the same physical consequences after having given informed consent,
I concluded that it was unlikely, by virtue of her character, good coping
skills, and level of knowledge, that she would have suffered the severe
PTSD that she in fact did.
What can we infer from the jury's award to the Meador family for loss
First, although the jury did not make a separate award for emotional
harm for Mrs. Meador, the relatively high award ($275,000) for loss of
consortium strongly suggests that the jury took seriously the personal
and emotional consequences of the traumatic event. Second, the family,
too, needs to be involved in the informed-consent process. When family
members are not involved, and are therefore left feeling helpless and
powerless in the face of a bad outcome, family relationships may be undermined.
So there was a lot more to this case than just the "damned if you
do, damned if you don't [perform the cesarean]" reaction that some
physicians understandably have had.
Yes, this was neither an expedient lawsuit nor an arbitrary outcome.
This case was about the kind of decision-making process a physician engages
in with the patient and family, and the consequences that process can
have for the illness, the patient, and the family. The process, every
bit as much as the clinical outcome, determines the initiation and disposition
of malpractice actions.
What can a thorough forensic psychiatric evaluation contribute to the
adjudication of a complicated malpractice case such as this one?
A forensic psychiatrist with a background in medical decision making
can reconstruct both the patient's and physician's decision making and
testify as to the adequacy of the informed-consent process and its effects
on the patient's and family's emotional condition. Having helped the
jury evaluate the patient's credibility by reporting on any evidence
of faking, malingering, or exaggerating, the forensic expert can assess
any emotional harms, including PTSD, claimed by the patient or family
in the context of their life histories. This assessment includes determining
the nature of any preexisting psychiatric conditions and identifying
prior experiences that can make a person especially vulnerable to a particular
What positive lessons can plaintiffs' attorneys learn from this case?
Meador confirms in the legal arena what medical ethicists
and decision-making specialists have said for some time: that informed
consent is a process, not just a formality, and that engaging in that
process is of the essence of good medical care. Moreover, the jury's
apparent responsiveness to Meador's claim that alternative procedures
were misrepresented suggests that even patients who have had radical
procedures (e.g., breast or penile implants, plastic surgery) performed
at their own request may have grounds to sue if the physician did not
propose consideration of noninvasive options such as psychotherapy.
Will the sizable damages in this case, where lack of informed consent
and PTSD were central, necessarily lead physicians to practice defensive
No. The best risk-management strategy is good clinical care, including
a thorough and ongoing informed-consent process. When physicians engage
in such a process with patients and families, it is less likely that
a bad outcome will lead to intense grief, misplaced blame, and feelings
of helplessness, powerlessness, and abandonment -- the major precipitants
of lawsuits. And when a groundless legal action is initiated, evidence
of an adequate informed-consent process can serve as a good defense.
Copyright on this material is retained by Harold
J. Bursztajn, M.D. Permission is granted by Dr. Bursztajn to
reprint this article in its entirety, including this copyright notice
and the by-line, for educational purposes only. Expressed written
consent from Dr. Bursztajn must be obtained before reproduction of
this article for any other purpose.