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 & Cohen.

Why was there no informed consent? Didn't Mrs. Meador sign an informed-consent form?

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 of consortium?

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 trauma.

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 medicine?

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.