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Personal Injury and Discrimination in Civil Law

This chapter discusses the legal basis for personal injury cases, including the elements of a tort and the types of damages. It also explores the general forensic practice in personal injury cases and the issue of malingering. The chapter further examines common injuries involved in personal injury claims, such as PTSD and traumatic brain injury, as well as approaches to neuropsychological assessment. It also covers chronic pain, psychological independent medical evaluations, and workers' compensation. Lastly, it discusses sexual harassment and employment discrimination, including the Civil Rights Act of 1964.

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Personal Injury and Discrimination in Civil Law

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  1. Personal Injury and Discrimination in Civil Law Chapter 13

  2. Legal Basis for Personal Injury Cases: Torts and Civil Law • Torts are a civil wrong that one person commits against another and results in either physical or psychological damage • Elements of a tort: • Duty or obligation • Violation of that duty • Damages resulted from the violation of the duty • Violation was the proximate cause of the damages

  3. Damages • Compensatory Damages • Compensating for the damages suffered by the plaintiff • Punitive Damages • Punishing the defendant for his behavior

  4. General Forensic Practice in Personal Injury Cases • Establish a baseline level of psychological functioning • Determine the nature and severity of distress • Determine the extent and severity of any impairment in functioning • Determine the psychological cause of the impairments • Determine the psychological interventions that may reduce the psychological injury

  5. Malingering in Personal Injury Cases • May be a heightened risk for malingering when there are financial incentives • Lees-Haley (1997) found that 20-30% of plaintiffs exhibited possible malingering • Many attorneys coach witnesses • Measures in personal injury evaluations used to asses malingering • MMPI • MMPI-2 • SIRS

  6. Typical Injuries Involved in Personal Injury Claims • Post-traumatic Stress Disorder (PTSD) • Neuropsychological damage • Chronic Pain

  7. PTSD • Largest psychological disorder for plaintiffs (DSM) • May have greatest impact on the court system • Requires specific triggering event • Suggests causal relationship, providing an avenue for proximate cause • Must present symptoms for at least a month to be diagnosed • Four groups of criterion (A, B, C, & D) • New research suggests multiple causes for PTSD

  8. Traumatic Brain Injury (TBI) • Severity generally determined by • Length of time unconscious • Extensiveness of associated amnesia • Penetrating damage to skull • Glasgow Coma Scale (GCS) • Difficulty evaluating TBI • Intelligence scales • Memory scales • WMS-R • TOMM

  9. Approaches to Neuropsychological Assessment • Fixed battery approach • Examiner administers a standardized set of psychological tests in an identical manner • Flexible process approach • Examiner uses more discretion by only selecting tasks and administering tests related to the area of possible impairment

  10. Chronic Pain • Psychological experience of pain • May contribute to pain experience • May be a result of the pain • Assess for relevant cognitive factors • Beck Depression Inventory • Symptom Checklist-90-Revised • Assess motivation • Influence of secondary gains

  11. Psychological Independent Medical Evaluation • Requested by insurance companies in ongoing disability claims • Similar to a personal injury evaluation, but do not require any opinion about proximate cause • Assess the ongoing symptoms and treatment effectiveness in relation to the person’s ability to function in his or her place of employment • Nature of disabilities • Factual disability • Social disability • Legal disability

  12. Independent Medical Evaluation Steps • Conduct a thorough investigation • Identify any deficits impairing the person’s ability to perform their job • Base opinion on objective data • Especially consider malingering or exaggeration

  13. Workers’ Compensation • Worker Compensation laws • Both parties (employees and employers) relinquish certain legal rights • Intended to make up for lost earnings and any other expenses caused by the work-related injury

  14. Sexual Harassment and Employment Discrimination • Civil Rights Act of 1964 identified gender, race religion, and national origin as protected classes for employment discrimination • Discrimination results from • Discriminatory effects • Discriminatory treatment • Sexual Harassment • Quid pro quo • Hostile work • Forensic psychologist must determine: • Whether harassment or discrimination occurred • Why it occurred • Effects on the defendant

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