[Plaintiff] v. United States of America
U.S. District Court, District of Massachusetts

Experts retained by defense included:
Harold J. Bursztajn, M.D. (forensic psychiatry)
Associate Clinical Professor
Co-founder, Program in Psychiatry and the Law
Department of Psychiatry
Beth Israel Deaconess Medical Center
Harvard Medical School
96 Larchwood Drive
Cambridge, MA 02138
ph. 617-492-8366
e-mail: harold_bursztajn@hms.harvard.edu


A plaintiff was struck by a U.S. government-owned vehicle while running across the street outside a major teaching hospital in a high-traffic area of Boston. Plaintiff brought a civil action in federal district court against the U.S. government, claiming that the traumatic brain injury caused by the accident had left him with ongoing cognitive deficits, psychiatric symptoms, lost income, family conflicts, reduced enjoyment of life, and emotional distress.

Among the expert witnesses retained by the U.S. Attorney’s Office of the District of Massachusetts was forensic neuropsychiatrist Harold J. Bursztajn, M.D., of Harvard Medical School. He reviewed clinical records indicating that the plaintiff had suffered a relatively minor brain injury—specifically, a small right parietal epidural hematoma accompanied by some contusion in the left frontal lobe—which resolved in a rapid and uncomplicated manner after some initial expansion of the hemorrhage. An expert in neurosurgery opined that such an injury was not likely to result in impairment of memory, language use, or executive functions. Although such an injury might result in some impairment of affect, attention, or judgment, in examination Dr. Bursztajn found no significant impairment in these areas.

In examination, plaintiff did not manifest the degree of cognitive impairment that he claimed (including the need for an English-language interpreter). On the contrary, his self presentation as impaired had at times a deliberate quality consistent with impression management. Plaintiff’s performance in psychological testing was likewise consistent with unreliability in his self reports. These examination findings were consistent with five years of clinical records documenting claimed impairments out of proportion to the expected effects of the brain injury. Clinicians who treated or evaluated the plaintiff saw indications of somatization (i.e., experiencing psychological distress in the form of physical symptoms) and of self-dramatization as a victim.

Dr. Bursztajn found these data to be consistent with Factitious Disorder (one variation of which has been known as Munchausen syndrome)—that is, the intentional production, feigning, or exaggeration of symptoms in order to assume a sick role. He opined that the plaintiff’s claims of impairment were largely an expression of sick role adaptation to the dislocations and deprivations (emotional as well as material) he and his family had suffered since they immigrated to the United States. These losses, compounded by difficulties in cultural assimilation, undermined plaintiff’s traditional role as family head and provider. In Dr. Bursztajn’s opinion, it was likely that the plaintiff was using his alleged accident related injuries and impairments as a passive and convenient focus of blame for a preexisting and persisting family crisis that underlay his vulnerability to symptom exaggeration and misattribution. Thus, the accident gave the plaintiff a simple medical explanation for a psychosocial catastrophe.

In a bench trial, the judge took all expert testimony (direct examination) in the form of affidavits submitted before trial. After rigorous questioning of witnesses in the liability phase, the finder of fact entered judgment in favor of the defendant on the basis of his finding that the plaintiff, by the way he ran out into the street from between cars, was entirely at fault for the accident. Thus, the testimony with respect to causation and damages did not directly bear upon the verdict. Nonetheless, the prior submission of this testimony may have provided the court with a context for evaluating the plaintiff’s reliability as an informant about the facts of the accident as well as about the damages allegedly resulting from it.