Preventing "critogenic" harms:
minimizing emotional injury from civil litigation
By Thomas G. Gutheil, M.D., Harold Bursztajn M.D., Archie Brodsky, B.A.,
and Larry H. Strasburger, M.D.
Litigation is always stressful for the parties involved, and certain
emotional injuries from litigation itself termed "critogenic"
(law-caused) harms, can be identified to aid attorneys in recognizing
them. These harms include delay, adversarialization, retraumatization,
violation of boundaries, loss of privacy, and arrested healing. After
discussing critogenic benefits of litigation for balance, the authors
offer approaches for minimizing the impacts of the above harms on clients.
Authors' note: The authors thank Professor Hilary Putnam for his inspiration;
members of the Program in Psychiatry and the Law, Massachusetts Mental
Health Center, Harvard Medical School, for the dialogue that defined
and elaborated the concept of critogenesis; and Steven Behnke, J.D.,
Ph.D., for critical review. Some points made in this paper were alluded
to in the Manfred S. Guttmacher Award lecture, American Psychiatric
Association, May 31, 1998.
When action by a physician results in illness or injury, those harms may
be described by the familiar term "iatrogenic,"
meaning "physician caused" (iatros, physician; genic,
sprung from, Greek). Thus, when a patient's pneumonia is treated with
penicillin and the patient experiences an allergic reaction to the drug,
the pneumonia is a bacterial illness with a particular medical origin,
while the allergic reaction is an iatrogenic illness.
Experience in the forensic realm reveals that there has been a need for
a comparable term to describe emotional harms resulting from the legal
process itself-harms that are widely recognized [1,2]
but are commonly treated as invisible to and by the law, as though the
plaintiff's or defendant's progress through the legal system were an
emotional nullity.
The Program in Psychiatry and Law uses the adjective "critogenic"
(to convey "law-caused") and the corresponding noun
"critogenesis." [3,4] The
terms are analogously based on Greek roots: crites, judge (compare
English "critic") and genic, sprung from.
The present article explains and applies the terms and demonstrates their
utility in understanding the emotional impact of civil litigation. Note
for clarity that these terms are not intended to refer to the
vicissitudes of the law when it is working badly: antiquated, unfair
laws; corrupt, venal attorneys; incompetent, biased or alcoholic judges;
or prejudiced jurors. Those regrettable situations describe themselves.
Rather, critogenesis relates to the intrinsic and often inescapable
harms caused by the litigation process itself, even when the process
is working exactly as it should.
For balance we might identify critogenic benefits: the emotional gains
accruing from litigation. It is interesting that these gains do not require
winning—emotional benefits may flow simply from bringing a case.
Such benefits might include empowerment and the sense of being heard;
relief from traumatic helplessness by bearing witness; making someone
aware of having wronged or injured you; satisfaction at overcoming another's
denial; and calling attention to a social or civil problem in need of
remedy. Such potential benefits may be explicitly sought and even be
cited as inducements to litigate by attorneys, friends, relatives and
the media. The present discussion aims at reducing the harms and fostering
the benefits.
Libel suits proffer a special case of emotional (as well as more tangible)
benefit. A legal scholar noted that in most litigation one sues to win;
however, with libel suits, one wins by suing. [5] That
is, while libel suits are notoriously difficult procedures for plaintiffs
to prevail in, the publicity around the suit itself can actually help
to remedy the injury done to the reputation by the alleged libel in the
first place: the public supposedly reasons, "Since they are boldly
and openly suing for libel, they must indeed have been wronged by the
press."
On the other hand, such suits may express a plaintiff's guilty need for
attention and publicity, disguised as a display of victimhood.
The issues here addressed would apply equally to plaintiffs and defendants.
However, since plaintiffs initiate suit and have various wishes and fantasies
about the outcome, some of these points may apply more directly to them;
defendants, of course, must participate in civil litigation willy-nilly,
if only by refusal to settle the case promptly.
The context
In the current American climate, citizens appear to regard the right to
sue someone for an injury (or even an imagined injury) as sacred, perhaps
even a duty. [6] Many of those wouldbe litigants, however,
have only the faintest sense of what being a plaintiff actually entails,
a sense gained mostly from highly publicized (and thus atypical) trials
and the fictionalizations of the dramatic media such as movies and television.
More significantly, consultative experience in hundreds of cases reveals
that although some attorneys are both willing and able to give potential
clients clear ideas of what to expect from the legal process, often this
preparation is directed toward the events to be expected (interrogatories,
depositions, etc.) or outcomes ("We might lose or get less
of an award than we expect"). Unfortunately large numbers of attorneys
fail to prepare their clients for the emotional burdens of the
litigation process itself-win, lose or settle. This matter could be portrayed
as an issue of the attorney's failing to envision and obtain what would
be seen in medicine as fully informed consent.
There are several possible reasons for this failure. First, though many attorneys
understand from medical cases the importance of physicians' obtaining informed
consent to medical treatment, they often do not see the parallel ethical
need in their own profession—a need not codified in any formal guidelines,
but arising from clients' ignorance and vulnerability and the lawyer-client
power asymmetry. Since, as with medicine, lay persons are entirely unequipped
to understand and hence unprepared to face the realities of the course on
which they are about to embark, the professional, who has the knowledge,
acquires a broad ethical duty to inform the client of the costs and benefits
of going forward with the case, including its emotional costs and benefits.
As is discussed below, this may be particularly relevant to cases of post-traumatic
stress disorder and "recovered memory."
Second, since the subject of the emotional costs of litigation might constitute
a deterrent to bringing suit, an attorney might be reluctant to discuss
the "cost" side of the equation with plaintiffs lest they lose
motivation for the suit, or with defendants lest they be moved to capitulate.
Note that this last point is entirely independent of the strength of
the merits of the case in question: Even a highly meritorious case with
clear-cut issues may be emotionally stressful to undertake or defend.
Note also how this issue parallels physicians' fears of deterring patients
from consenting to needed treatment by reviewing daunting side effects.
Third, although many attorneys are appropriately empathic with their clients'
suffering from their original alleged injury, a surprising number
of attorneys appear not to recognize, or to lose sight of, the difference
between their own comfort in their natural legal environment and the
disorienting novelty, occasional overt hostility, and unexpected intrusiveness
of that same environment as perceived by the client. An attorney thus
could not be expected to prepare a client for a stress of which the attorney
is simply unaware. Attorneys may also underestimate the impact on the
client of the "other side's"
aggressive tactics.
The above factors and others make it important to explore the concept
of critogenic benefits and harms from at least two points of view. First,
by employing the approaches described herein, attorneys may benefit from
better relations with clients and clients' better emotional outcomes
of suits. Second, expert witnesses assessing emotional injuries in any
forensic context may become better able to more accurately factor out
those stresses deriving from the original alleged injury from those intrinsic
to the litigation process. Third, referral for treatment can be made
early in the litigation process to minimize the amplification of harms
from the stresses of being a party to litigation.
Critogenic benefits
These benefits, as noted above, extend beyond the simple aim of compensation
in money. For example, a patient in a psychiatric sexual misconduct suit
was delighted with a trivial and inadequate jury award because, in mediation
negotiations early in the process, the doctor had refused to apologize
and admit how he had harmed the plaintiff. Deprived of this intently
sought response, the plaintiff felt validated by the jury, who formally
acknowledged wrongdoing by the doctor.
A second plaintiff expressed it thus: "What had meaning for me was
that the jury, a group of twelve people, stood with me and said this
was abuse and the defendant was responsible." [7]
Strasburger noted: "While a sexual harassment victim may not be able
to require the abuser to come to her therapy, she can force him to respond
to interrogatories, submit to depositions and appear for trial." [8]
Describing litigation after a child's death from failures of managed care,
Welch, a psychologist and attorney, suggests [9] that
benefits of litigation include the cathartic expression of rage, with
anger focused on the real and external enemy. He notes:
. . . oftentimes the litigation becomes a part of the grieving process.
For many [parent-litigants] the litigation is more akin to building a
memorial to their child, enabling them to psychologically visit the child's
gravesite. [10]
Since the potential benefits are more readily identifiable, we here focus
more on the critogenic harms. These harms merit attention in addition
because of their apparent frequent invisibility (and unspeakability)
to those who work within the legal system.
Critogenic harms
There is an inherent irony in the judicial system in that individuals
who bring suit must then endure injury from the very process through
which they seek redress; the legal process itself is a trauma. Both plaintiff
and defendant are confronted with the challenge of managing the emotional
burdens of litigation.
"Contemplating, undergoing or having undergone a suit is distressing
and disruptive. It saps energy and distracts from the normal daily preoccupations
that we call 'life.'" [11]
Symptoms such as sleeplessness, anger, frustration, headaches, inability
to concentrate, humiliation, anxiety, loss of self-confidence, isolation
and helplessness are not uncommon. These signs of distress are intensified
by the common phenomenon of "resource burnout": Peers, friends
and family members may find their tolerance exhausted for the litigant's
need for connection and for opportunities to talk about the experience.
Such burnout, in turn, can amplify pre-existing distress. Sadly, the
judicial system itself is ill-equipped to provide the sympathetic understanding
that patients may seek. [12] "Litigation is not
for the faint-hearted." [13]
The stresses mentioned above are, in one sense, generic; they are common
to all forms of litigation and draw from many sources of stress. However,
certain harms derive more specifically from the inherent structure and
progression of a suit. Those specific critogenic harms here examined
are: delay; adversarialization; splitting or elimination of ambivalence;
retraumatization; boundary violation; loss of privacy; and prolongation,
vitiation or even arrest of the emotional resolution or healing process
from a claimed injury.
Delay
Anyone familiar in the least with the legal process understands the ubiquitousness
of delay. Courts are crowded, different schedules of judges and attorneys
have to be choreographed and coordinated, and unexpected interruptions
and postponements are common. In medical malpractice cases, a seven-year
interval between filing and trial is not uncommon. In sum, the Constitutional
ideal of a "speedy trial" has become an oxymoron.
The emotional impact on each party varies considerably. Any expectation
of resolution of the litigated issue is agonizingly prolonged. Repeated
scheduling of trial dates arouses hope of a day in court—hopes
that may be as repeatedly dashed with each postponement or continuance.
This cyclical rise and fall of hope may lead clients to become emotionally
numb as a way of coping with this cycle.
In contrast, another plaintiff may report some positive "numbing
out" effect from delay, with a decrease in perceived acute pain
and the gain of some emotional perspective.
The separation in time of the injury from its legal resolution also may
decrease and may even prevent emotional closure on the matter when the
case is finally resolved. Even winning your case, ten years after the
incident that is being litigated, may feel like a hollow victory, since
the intense wishes for satisfaction, retribution, revenge, justice or
closure—the emotional wellsprings of the litigation—may have
become dry over the years.
In her important autobiographical narrative, Defendant, Dr. Sarah
Charles noted: "I experienced . . . no sense of victory after the
trial. . . .There is always too much sadness and disruption for everyone
concerned on both sides of the case." [14]
Adversarialization
American law, of course, is an adversarial process. This structural feature
may have destructive emotional impacts as well. Since litigation may
have many affective goals beyond simple financial compensation—to
get the other side to admit wrongdoing, to wring an apology from someone,
to prove oneself right in a dispute—the "other side" of
the case may not necessarily be hated or despised. Indeed, the litigant
may explicitly want a continuing relationship with the defendant.
An example in practice occurs when a patient sues a doctor for malpractice
but wishes to continue in that doctor's care. This is a logical paradox
but not a clinical one. The litigation may be expressing goals and attitudes
other than cessation of treatment. However, the adversarialization of
a suit would probably preclude such an arrangement in practice. Defendant
physicians are advised not to continue to treat patients who are suing
them, but to make appropriate referrals.
Another example may occur when an adult during therapy recovers memories
of childhood sexual abuse and attempts to deal with this clinical issue
by legal means [15]—i.e., by suing the alleged
parental perpetrator. On clinical grounds and in the patient's interests,
such issues are best resolved in the therapeutic context: working through
the past experience, dealing with the troubling symptoms, and going on
with one's life. Litigation, however, precludes such an approach by shifting
the venue to an adversarial setting that may well prevent, for example,
such constructive approaches as working with the family in therapy together.
Splitting or elimination of ambivalence
In a reciprocal fashion, litigation can function as a zero sum game in
which all ambivalences are split apart and located on opposite sides
of the case: "pro" on one side, "con" on the other.
[16] Since most real human feelings are mixed, this
restructuring removes the case from real human experience: The other
side becomes "all bad," and the legal efforts are consistent
with—indeed, reinforce—the litigant patient's desire to see
the situation in black and white. As with the untreated borderline patient
who must employ splitting as a defense, the patient is deprived of the
growth opportunity to master and contain ambivalence in mature fashion.
Retraumatization
When litigation has followed on some trauma, each stage of the legal process—designing
and filing a complaint; answering what may be repeated waves of interrogatories;
depositions; and the trial itself—may all be occasions to reawaken
the original traumatic event in the plaintiff's mind, to force reexperiencing
it and thus to produce a retraumatization. The cumulative effect of what
amounts to serial trauma may be severely damaging in the very area where
compensation is sought, if the therapy pays insufficient attention to
the plaintiff's sensibilities.
Pittman has commented [17] in this connection that for
patients with post-traumatic stress disorder involved in lawsuits, the
psychological defense of avoidance (of the traumatic experience and its
memories) is thwarted by the obligatory interviews with attorneys and
experts, depositions, and courtroom testimony. This failure of avoidance
causes a resurgence of intrusive traumatic ideation and increased arousal.
[18]
The above formulation does not address, however, the possibility of a
victim's desensitization by repeated exposure to discussion of the trauma,
an outcome that may foster clinical improvement when such exposure occurs
in a context where the victim is no longer alone and helpless—e.g.,
is in a supportive therapeutic relationship.
Boundary violation
Through the extensive amount of personal exposure and forced public disclosure
of personal information associated with litigation, the legal system
may violate boundaries, fostering feelings that the world is an unsafe
place and sometimes recapitulating past traumatic boundary violations
that may have been the occasion for the suit itself, as in this example:
A patient sought help for dissociative disorder; her psychiatrist
initiated a sexual relationship. During the resultant malpractice trial,
large sections of her chart were read into the court record. Asked what
it was like having her personal chart read in open court with reporters
present, the patient confessed that she coped with this by spending the
entire court day in a dissociated state—the very problem for which
she had first sought help.
Loss of privacy
Halleck has noted [19] that litigation counts among
its many stresses for plaintiffs the profound loss of privacy that comes
with the exposure of discovery. The effects of this loss include altered
relationships and the inherent stress of revelation of conflicted or
shameful material as part of the case.
Arrested healing
In close conjunction with the above problem, litigation routinely (but
not inevitably) delays healing. Any emotional wound approached by litigation
is kept open by and during that process. In some cases consultative evidence
suggests that litigation can operate as a kind of developmental arrest;
a person in therapy for an emotional injury who is simultaneously suing
for damages may be unable to make progress in the therapy because of
this human response. We are not here suggesting the malingered continuation
of illness so as to remain "compensable" until the trial is
over. Rather, we suggest that conscious distraction, fixations created
by the legal process, and the conscious or unconscious location of an
issue in an external (legal) setting may interfere with personal and
internal growth in therapy.
In another context, Strasburger has noted:
. . . the statute of limitations may have rushed the patient
into litigation before he or she was psychologically ready to face an
adversarial proceeding. . . . litigation may be seen as a developmental
process out of phase with other development, even holding [the latter]
hostage. [20]
Note here that an "informed consent" process with the attorney
may be of critical importance in helping the prospective plaintiff make
sound decisions about whether and when to sue in a given case. Consultation
with a mental health professional may concretely assist the attorney
in this decision.
Note also the paradox implied in the above point: In terms of the emotional
readiness of the litigant to bring suit, the law may be too slow (i.e.,
through delay) and too fast (i.e., through precipitous or premature
confrontation with the painful issue, compelled, perhaps, by considerations
of statutes of limitations).
Some thoughts on "therapeutic jurisprudence"
The term "therapeutic jurisprudence," devised by law professors
David Wexler and Bruce Winick, [21-23] points to the
fact that the law can, indeed, serve therapeutic ends, although, in an
adversarial system, we suggest that this is only half of the story. The
law can effect significant social change and protection of rights that
may be therapeutic even at the individual level—but it is a blunt
instrument. As we suggest above, the law can be harmful as well as helpful
in achieving therapeutic goals such as resolution, tolerance, restoration
of perspective, personal growth, and mature acceptance of loss.
Conclusion and recommendations
That litigation is stressful is widely recognized and accepted. The specific
mechanisms are less widely known, in part, as suggested here, because
they blend into the background, as it were, of the normal functioning
of the legal process. Certain harms that we have termed "critogenic" may
flow from the normal course of the law, to the detriment of litigants.
Similarly, the strategies outlined above, including informed consent
in this novel context, coupled with awareness of the related issues described
above, may aid considerably in decreasing this human cost of litigation.
As Bursztajn has noted, [24] everyone is phobic about
taking the witness stand, including the parties. Much of this fear can
be alleviated by planning, by consultation, but first by awareness that
the litigation process is an affective experience, not only for the jury
but for claimants, defendants and witnesses.
Early referral for treatment (if this is not already in place) may be
highly beneficial for both plaintiffs and defendants in civil actions.
While the literature alludes to supportive therapy for defendants,
(e.g., Charles [25]), plaintiffs can also benefit from
this resource. Such treatment may be appropriately aimed at both the
original harms at issue in the suit and the harms amplified or caused
by litigation itself. Of course, because of role conflicts, this treating
clinician should not serve as an expert witness in the case. [26,27]
By maintaining clear role distinctions, even from the outset; by engaging
the patient in informed consent; and by attending to the dynamics of
litigation itself, potential benefits of such treatment may be maximized,
and potential harms of litigation—the critogenic harms—may
be minimized.
Notes
-
Lees-Haley PR: Litigation response syndrome:
How stress confuses the issues. Defense Counsel Journal Jan: 110-114,
1989.
-
Charles SC, Kennedy E: Defendant: A Psychiatrist
on Trial for Medical Malpractice. New York: Free Press, 1985.
-
Bursztajn HJ: More
law and less protection: "Critogenesis," legal-
"iatrogenesis," and medical decision making. J Geriatr Psychiatry
18:143-153, 1985.
-
Gutheil TG, Bursztajn HB, Brodsky A, Alexander
V: Decision Making in Psychiatry and Law. Baltimore: Williams and
Wilkins, 1991.
-
Bezanson RP, Cranberg G, Soloski J: Libel
and the press: Setting the record straight. 1985 Silha Lecture, University
of Minnesota Silha Center for the Study of Media Ethics and the Law,
May 15, 1995.
-
Gonzalez ML: Medical Professional Liability
Claims and Premiums, 1985-1995. Socioeconomic Characteristics of
Medical Practice. Chicago: American Medical Association, 1997.
-
Strasburger LH: Manfred S. Guttmacher Award
Lecture, annual meeting, American Psychiatric Association, Toronto,
May 31, 1998.
-
Strasburger, supra note 7.
-
Welch B: The anatomy of a managed care lawsuit.
Psychiatric Times, Sept. 1998, pp. 11-12.
-
Strasburger, supra note 7, at 11.
-
Strasburger, supra note 7.
-
Pittman RK, Sparr LF, Saunders LS, McFarlane
AC: Legal issues in post-traumatic stress disorder. In: Van der Kolk
BA, McFarlane AC, Weisaeth L (eds.): Traumatic Stress: Effects of
Overwhelming Stress on Mind, Body and Society. New York: Guilford
Press, 1996.
-
Strasburger, supra note 7.
-
Charles, supra note 2, at 176.
-
Gutheil TG, Simon RI: Clinically based risk
management principles in recovered memory cases. Psychiatr Services
48:1403-1407, 1997.
-
Gutheil TG, Magraw R: Ambivalence, alliance
and advocacy: Misunderstood dualities in psychiatry and the law.
Bull Am Acad Psychiatry Law 12:51-58, 1984.
-
Pittman, supra note 12.
-
Ibid.
-
Halleck SL: Perils of being a plaintiff:
Impressions of a forensic psychiatrist. Clin Orthopaedics and Related
Research 336:72-78, 1997.
-
Strasburger, supra note 7.
-
Wexler DB: Therapeutic jurisprudence and
changing conceptions of legal scholarship. Behav Sci Law 11:17-29,
1993.
-
Patry MW, Wexler DB, Stolle DP, Tomkins
AJ: Better legal counseling through empirical research: Identifying
psycholegal soft spots and strategies. California Western Law Rev
34:439-455, 1998.
-
Wexler DB: Applying the law therapeutically.
Applied & Preventive Psychol 5:179-186, 1996.
-
Bursztajn HJ: The
phobic in court. Phobia Forum Spring/Summer: 2-3, 1992.
-
Charles, supra note 2.
-
Strasburger LH, Gutheil TG, Brodsky A: On
wearing two hats: Role conflict in serving as both psychotherapist
and expert witness. Am J Psychiatry 154:448-456, 1997.
-
Bursztajn HJ, Scherr AE, Brodsky A: The
rebirth of forensic psychiatry in light of recent historical trends
in criminal responsibility. Psychiatr Clinics North Am 17:611-635,
1994.