|
|
Although physical injury is usually
necessary to recover for emotional distress in maritime
claims, several categories outlined by the Fifth Circuit
Court of Appeals have been offered as a means of establishing
legitimate causation. These are: (1) physical impact
followed by emotional distress; (2) no physical impact
but plaintiff was in the zone of danger; (3)
the bystander rule, where the plaintiff is
physically near someone who is injured, personally observes
it, and is closely related to the victim; (4) the
full recovery rule in which a reasonable person,
normally constituted would not be able to cope adequately
with the mental distress occasioned by the circumstances.
From a psychological standpoint these causal situations
can be divided broadly into those in which there is
physical impact and those in which there is no physical
impact.
A. Physical Impact
The requirement of a physical impact
for emotional distress claims springs from public policy
concerns which support limiting emotional distress recovery
generally. Among those concerns are: (1) the difficulty
of identifying false claims; (2) the potential for unlimited
defendant liability to multiple plaintiffs; and (3) the
potential for a flood of superfluous litigation. Emotional
or stress-related illness claims have always been looked
at skeptically because of their subjective nature. A
physical connection is thought to help establish
objectivity, whether the trauma that is the precipitant
of an emotional injury is a physical one or, as in mental-physical
claims in workers' compensation actions, the consequence
of the injury is a physical one. The premise is that there
is something observable and the claim does not rely on
unverifiable descriptions of the plaintiff. But a physical
connection may not be as objective as presumed, since
in many cases the illness that follows a physical injury
is psychologically generated, and, where physical symptoms
are claimed, they are often merely the subjective experience
of the sufferer. The popularly dubbed chronic pain
syndrome is a good example of this phenomenon. While
physical trauma can at times have such a profound effect
on the psyche that the individual deteriorates emotionally
and physically as a consequence of the trauma, in other
instances the traumatic event may have merely served as
an opportunity for pre-existing psychological processes
to become operative and manifest themselves as physical
illness. Here, the traumatic event is only incidental.
Pre-existing personality predisposition, psychiatric illness,
or psychosocial and environmental factors may be the actual
cause of pain, i.e. the force producing its effect.
In addition, trivial physical impact
can at times be followed by dramatic out-of-proportion
illness consisting of both physical and emotional symptoms.
In these cases, a physical connection to the degree
of distress cannot be established just because a physical
impact preceded it. Psychological factors no different
than in pure emotional or non-physical impact claims
are the primary, if not sole, cause of the illness.
Again, if an opportunity was needed for the expression
of psychological and social conflict, the physical impact
provided it. Therefore, even in physical impact cases
where a physically traumatic event can be identified,
the subjective account of pain, suffering, and distress
can dominate the clinical presentation.
B. No Physical Impact
Subjectivity is highest in non-physical
impact claims. Yet, where they are allowed, some attempt
is often made to try to objectify the experience by requiring
a recognizable traumatic event that has an understandable
consequence. So, if someone was in the zone of danger,
at least the danger was known to exist in close proximity
to the plaintiff and some psychic effect is understandable.
Historically, in workers' compensation claims where mental
stress was allowable, there was often a requirement that
it be in the form of a nervous shock. This implied
that a circumscribed incident of an intense nature had
occurred whose effects were not ambiguous. In more recent
years, as mental stress claims have moved to allow cumulative
emotional trauma, this attempt at objectivity has become
eroded.
Even if a distinct event which produces
nervous shock or fright can be identified and understandable,
this does not mean that it necessarily leads to lasting
effects or illness. The popular and growing diagnosis
of Post-Traumatic Stress Disorder (PTSD) is
a good example of that. In spite of its frequent use
in litigation today, researchers have observed that
the disorder is relatively rare following exposure to
trauma, and risk factors other than the trauma are a
greater predictor of who will have symptoms. Certainly,
it is known that stress can lead to maladaptive response
patterns, deterioration of coping mechanisms, mental
and physical exhaustion, and possibly a mental or physical
disorder.
Studies have shown that a marked
excess of certain stressors, particularly involving
loss and disappointment, can precede depression, and
some researchers have shown that individuals who undergo
a great many life changes, positive or negative within
a short period of time, are more prone to develop physical
and mental disorders. But, stress, distress, and disease
are not easily distinguished. Stress by itself is a
difficult concept to define, since it is so tied up
with normal human experience. It is commonly assumed
that stress means strain or some disruption of harmony
or peace within the individual. However, in fact, stress
is not really pathological but an inevitable consequence
of interacting with one's environment.
Even the stress response, which
includes central nervous system and hormonal arousal,
is not pathological but serves both a defensive and
a growth purpose for the organism. Where stresses are
perceived as undesirable or threatening, they have the
capacity to elicit distress, but even where a psychiatric
disorder such as depression may be preceded by stress,
the correlation between the two will always be small
because stress is so much more common than depression.
Furthermore, the relationship between stress and mental
disorder is strongest in mild cases which may not seek
psychiatric help at all, compared to the more severe
ones which do. This latter group of more severe and
disabling cases are very likely to fall into categories
of endogenous disorders (springing from within) or biological
illness. So, the presence of stress and distress does
not define disease and should not necessarily imply
emotional damage.
C. Other Factors
Mental disorders by their very nature
interfere with an individual's social and occupational
functioning. Of course, mental disorders can have many
possible sources, including biological defects, psychological
conflict, or environmental stresses totally unrelated
to a work situation. When the disorder becomes full blown,
it may invade all aspects of the individual's life, including
family, friendships, recreation, and work. When coping
mechanisms deteriorate, the individual is no longer able
to have an adaptive stress response and every demand that
life brings becomes an overwhelming burden. Often, the
work becomes too much. The more that work performance
is affected by illness, the more desperate an individual
may become, seeking to blame what is convenient for the
distress. This typically and erroneously can include family,
friends, or workplace. With time, poor work performance
actually creates new burdens since there can be a threatening
employer response, fear of reprimand or demotion, or even
termination. Of course, this leads to low self-esteem,
financial hardship, and further aggravation of the mental
disorder.
Again, in workers' compensation
cases, some jurisdictions have described the doctrine
of active vs. passive role of employment, which
attempts to shift analysis from a subjective to a more
objective test. The determination here is whether the
employment itself was a positive factor influencing
the course of disease, as distinguished from a mere
stage for the event, an after-the-fact rationalization,
or a mere passive element on which a non-industrial
condition happened to have focused. When employees who
are suffering from mental disorders have difficulty
in performing their job or relating to others at work,
this can be a source of stress. But the work is only
a convenient focus or a retrospective rationalization
which is later blamed for all the problems.
Among the most difficult issues
in industrial stress claims is that of warranted administrative
or personnel actions by the employer. For example, it
is understandable that if an employee is given a warning
or reprimand for poor performance, that this would be
stressful, but that stress is not a personal injury
arising out of employment conditions nor is it rightfully
due to the employer's actions. Instead, if the employer
has acted in good faith, the employee's own behavior
has led to the employer's response with its stressful
consequences. In addition, stress of a potential layoff
or termination can greatly affect employees. Even when
employees are engaged in deliberate misconduct or criminal
activity for which they are sanctioned or terminated,
this too is stressful but may not be a proper basis
for an industrial claim. These organizational dynamics
often form the framework in which an unrelated incidental
injury or stress claim is made.
The subjective nature of industrial
stress claims allows many of these anomalous assertions
to flourish. The stress of any event is usually validated
by self report alone. With a sudden, single event such
as nervous shock, there may be independent observers
to provide corroboration. But with chronic stressful
events, there may be no corroboration, and adverse circumstances
routinely fluctuate in severity making quantification
difficult. Also, there is inevitably a reciprocal relationship
between the nature of the claimed stress and the ineffectual
coping mechanisms of the individual. In addition, an
individual's account may not fit the true sequence of
events, and must be scrutinized as to the timing of
those claimed events in relationship to the distress.
It is clear that people have a need to attribute causation
to things that provide meaning to their perspective.
Therefore, the individual's own assessment of the impact
of an event may distort the history. Many of these assessments
are culture bound or tied to a particular context, not
the least of which is the presence of litigation. Finally,
individuals forget events and, later, either supplement
their memory with necessary information or extinguish
information from memory which is not compatible
with their perspective. None of this should imply that
the individual is necessarily fabricating an account,
but only that the account may not be reliable.
One of the fundamental misconceptions
in pure emotional stress claims is that the process
of damage is always analogous to that seen in physical
injuries. While it is true that in many instances a
stressful situation can create a weakening of an individual's
coping mechanisms and thereby make that person vulnerable
to the development of a mental or nervous disorder,
the nature of the disorder in light of all the circumstances
must be examined more closely. Prior to the turn of
the century, common law both in Great Britain and America
routinely denied recovery for damages based on fright
or nervous shock on the theory that such damages were
too remote. If damages flowed from such a shock, they
were not considered the probable or natural consequences
of a person of ordinary physical and mental vigor.
In essence, the fright was considered
an independent intervening cause and any further
consequences were unforeseeable. Subsequently, courts
have taken the position that if the defendant could
have foreseen that the wrongful act was likely to frighten
the plaintiff, liability should rest for all the consequences
resulting in a regular chain of causation from the fright,
regardless of whether the particular consequences should
have been foreseen or not. However, unlike physical
injury to a bodily organ where the degree of damage
and the natural healing process follow a measurable
course, mental injuries can often stimulate the person
to consciously or unconsciously use the incidents to
promote personal and psychological needs.
So, for example, in a condition
such as Conversion Disorder, the mind literally
creates physical symptoms which serve a psychological
purpose totally unrelated to the injury. Although this
may be on an unconscious level, the person is still
actively generating the condition. In other conditions,
there is dramatic exaggeration of symptoms and magnification
of impairment for personal gain. The distinction between
the conscious and unconscious activity of the mind in
these situations is easily blurred. In either case,
this active generation of symptoms should be considered
an independent intervening cause, and the mental injury
which stimulated it is merely a passive and incidental
circumstance.
<<PREVIOUSNEXT>>
back to the top...
Return
to Online Library...
|
|