A Medico-Legal Guide to Somatoform Disorders
Personal injury lawyers will from time to time encounter clients who present or continue to present with physical symptoms, perhaps of pain, discomfort or immobility, following an index event causing trauma which a medical expert cannot account for. Often the client was asymptomatic prior to that index event. This situation is not uncommon. It can follow a whiplash injury arising from a ’bog standard’ road traffic accident just as easily as a personal injury caused during complex spinal surgery leading to a medical negligence claim. The nature of the trauma is often unimportant.
Cases like this present claimant personal injury lawyers with their own unique challenges. The client will often insist that the adverse symptoms complained of must have been caused by the defendant’s negligent act(s) and that they should be fully compensated accordingly. The medical expert might be equally adamant that the symptoms do not or cannot exist given the mechanism of the accident or the limited organic nature of the initial injury caused. The defendant’s personal injury lawyer will be keen to use the absence of a known or likely organic cause for the adverse symptoms to their client’s advantage. It might be suggested that the claimant’s symptoms were not in fact caused by the index event at all but rather by a condition that pre-dated it for example. Alternatively it might be alleged that the claimant is simply exaggerating or even faking his or her condition to maximise the value of his or her claim.
Each personal injury claim will obviously turn on its own facts, but in the absence of any corroborating facts to support a suspicion of dishonesty or malingering on the client’s part, their personal injury lawyer ought to be alive to the possibility of an alternative medical explanation for her client’s condition which is attributable to the index event. It is possible for example that the claimant might be suffering from a somatoform disorder.
The Medical Definition of Somatoform Disorders
Somatoform disorders include several mental health disorders. In some, sufferers report physical symptoms that suggest but are not fully explained by an underlying physical disorder or traumatic injury. Historically, the condition was vaguely defined as ‘hysteria’ or ’Briquet’s hysteria’ until the arrival of advances in psychiatric medicine in the nineteenth and twentieth centuries which lead to a more analytical classification of both symptom and cause.
The diagnostic criteria for somatoform disorder is given in DSM-IV (300.81) and ICD-10 (F 45.0) . I summarise the former (which are generally preferred by the courts) as follows:-
A. There needs to be a history of many physical complaints beginning before the age of 30 years that occurred over a period of several years and resulted in treatment being sought or significant impairment in social, occupational, or other important areas of functioning. (However cases involving only one complaint and / or complaints suffered over a shorter timeframe are not specifically excluded. The DSM allows scope to potentially classify these as an ‘undifferentiated’ somatoform disorder).
B. There are individual symptoms occurring at any time during the course of the disturbance. These are sub-categorised as pain related, gastrointestinal, sexual, or pseudo neurological in nature.
C. Either 1 or 2
1. After appropriate investigations, each of the symptoms in criterion B cannot be fully explained by a known general medical condition or effects of a substance
(such as medication or drug abuse).
2. Where there is a related general medical condition, the physical complaints or resulting social or occupational impairment are in excess of what would be
expected from the history, physical examination, or laboratory findings.
(C2 arises in the context of personal injury claims since there will have been an initial identifiable traumatic injury, forming the basis of the claim in the vast majority of cases. This should, according to the medical expert, have fully resolved within a specified timeframe but has not done so or has gone on to develop in an untoward and inexplicable manner).
D. The symptoms are not intentionally produced or feigned (as in factitious disorder or malingering).
A Somatoform disorder is a recognised psychiatric condition and personal injury in its own right for which compensation can potentially be recovered in a personal injury claim . The diagnosis may be hard to come by however.
Typically, the claimant’s personal injury lawyer will have initially instructed a medico-legal expert (such as an orthopaedic consultant) to prepare a condition and prognosis report which will be unfavourable to the client. If the expert is of the view that the claimant presents as a reliable historian and believes that a psychiatric opinion is, on the facts, indicated this can present the claimant’s personal injury lawyer with a second ‘opportunity’ to try and medically evidence the scope of the index injury forming the basis of her client’s case.
The Legal Hurdles – Case Law
There is well established case law authority for the ‘eggshell skull’ rule meaning that the Defendant must take their victim as they find them. This in effect means that the Defendants are liable for the full extent of all the consequences of a personal injury, even if aggravated by previous health problems.
Defendants have however in the past made attempts to limit the scope of this rule in claims involving unusual psychiatric injuries resulting from tortuous accidents, including somatisation disorders by attempting to argue that:-
a) It is not a foreseeable injury;
b) That ultimately, the Claimant’s predisposition was factually causative of
her condition and that it would have been triggered by another future occurrence
in any event.
These arguments have been considered in a number of key cases over the past 15 years or so.
1. Page v Smith (1996)
In this key House of Lords case it was ruled that reasonable forseeability of psychiatric injury is no longer required where the Claimant is within the range of reasonable physical injury.
It was further held by the Lords that as long as the Claimant was a primary victim of the tortious act, they were not even required to overcome the ‘reasonable fortitude test’.
2. Julie Ann Giblett (Nee Bridges) v P & N E Murray Ltd (1999)
The principle established by the House of Lords in Page v Smith was applied and then developed in this subsequent case by the Court of Appeal.
The case involved a 36-year old female victim of a road traffic accident awarded £25,344.31 for a whiplash injury. The impact was of a relatively minor nature. According to the treating orthopaedic medical expert, her symptoms should have fully resolved within 18 months to 2 years of the date of the accident. However the claimant perceived her symptoms to be grossly disabling (she described her condition as ’total body pain’). This simply could not be accounted for by the orthopaedic consultant purely on an organic or clinical basis.
It was accepted however that these symptoms existed and persisted as a result of the claimant’s diagnosed psychiatric condition of a Somatisation disorder. Amongst these symptoms was the claimant’s temporary inability to have sexual relations and thus start a family which had been her intention prior to the accident.
The judge at first instance held that the defendant was not liable for damage of a kind which a reasonable person would not have foreseen even though the scale of such damage may have far exceeded what could have been foreseen.
The Court of Appeal found that the judge had erred in finding that the Claimant’s inability (as a result of her psychiatric illness deriving from the accident) to have a family was, as a matter of law, too remote a consequence of a minor car accident. Psychiatric illness was reasonably foreseeable and the form it took was immaterial.
It was accepted by the claimant that she had a pre-existing psychiatric condition of neurosis which had been exacerbated by the accident.
It was held by the Court of Appeal that the test for causation was simply to ask – “Did the accident, on the balance of probability, cause or materially contribute to or materially increase the risk of the development or prolongation of the symptoms of the pre-existing psychiatric illness?”
If the claimant passed this test of causation, she would be entitled to damages for the sequelae which were a natural consequence of the more acute condition. However it is was also ruled that it was still open to the Judge to find that on the facts certain sequelae would, on the balance of probabilities, have occurred in any event.
Defendants have increasingly relied on the factual causation argument as a means to counteract these claims or at least to limit their potential size by asserting that the disorder would have been triggered by another event at a future point in time.
In considering this argument, ultimately every case will turn on its facts and a claimant with a known propensity to psychiatric collapse after past emotionally or physically traumatic events will have a more difficult time proving that the index tortious event was any different to one of these.
However the subsequent Court of Appeal case of X v Brown in 2003 does provide some common law authority to personal injury lawyers who find themselves facing this argument from the other side.
This case involved a claimant who was participating in a karate class. She was kicked in the face and suffered a broken nose, nausea, and dizziness. She went on to become a shadow of her former self. The claimant’s personal injury lawyer obtained expert neuropsychiatric evidence to say that she had suffered a somatisation disorder as a result of the personalinjury and the defendant’s expert agreed, with the caveat that in his view, the claimant would have gone on to develop a collapse of personality because of her ’fragile nature’ within a year of the incident in any event.
The trial judge preferred the defendant’s expert’s evidence, thereby severely limiting the potential value of the claim.
The claimant successfully appealed. It was held by the Court of Appeal that the judge was wrong to find that the defendant’s expert evidence justified his prediction that X had a fragile and already damaged personality whose collapse, assuming that it resulted from the karate kick, would in all probability have been triggered shortly by some other, possibly quite minor trauma. It was held that this prediction was ultimately fallacious because it assumed the very thing that had to be established, namely that X was predisposed to a disabling psychogenic illness. In the Court’s view, there was no independent evidence capable of justifying this assumption. The experts agreed that predisposition to Somatisation disorder was not diagnosable. A similar (not minor) traumatic event would have been highly likely to produce a similar syndrome but the chance of it occurring was not the certainty which the judge held it to be. (i.e. in practical terms, the Court was saying that by all means reduce the future multiplier if causation evidence is not ultimately supportive but do not have an assumed short cut off point to the length of the claim). The Court duly reduced the claimant’s personal injury damages award by one third to reflect her predisposition.
The Medical Hurdles
From a factual perspective, perhaps the easiest way for a defendant to rebut a claim for a Somatoform based psychiatric injury is to cast doubt upon the claimant’s credibility and to suggest that the symptoms complained of are purely fictional. After all, there will already be an anomaly in the medical evidence which is there for them to build on.
The medical term for faking symptoms to maximise the potential of a claim for compensation is ‘malingering‘. The more politic terminology used to describe malingering by some medical experts is ‘functional overlay’. Malingering appears in the DSM-III and DSM – IV. The defining criteria are defined as follows:-
‘The essential feature of malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as….obtaining financial compensation’.
The neurologist Michael Trimble considers that malingering should be strongly suspected if any combination of the following arise:-
1. A medicolegal context of presentation (e.g. if the person is referred by a personal injury lawyer to the clinician for examination);
2. A marked discrepancy between the person’s claimed stress or disability and the objective findings;
3. Lack of co-operation during the diagnostic evaluation and in complying with the treatment regimen;
4. The presence of an antisocial personality disorder
The author would advise approaching this list of guidelines with some caution however. He has experienced dealing with clients who have insisted upon using interim payments to fund the cost of privately funded treatment outside of the UK which both their treating and expert orthopaedic clinicians could not recommend (and indeed on occasion strongly disapproved of). On first reading this would be suggestive of the behaviour mentioned in heading 3 above but on the other hand it would hardly improve their financial position since they will not reasonably recover the cost of that treatment (which might be very expensive given its unorthodox nature) from the defendant at the end of the case.
Orthopaedic surgeons often use the Wadell signs as a means to interpret and isolate behaviour that would lead them to suspect malingering. These include an obvious overreaction to mild palpation, widespread superficial tenderness, and the classic finding on formal testing of severely limited straight-leg raising in a patient who was in fact sitting down in the consultant’s waiting room chair minutes before the test with their legs extended and were not showing any obvious sign of pain or discomfort then.
As mentioned above, any suggestion that the claimant had a pre-existing psychiatric vulnerability could have a bearing on the size of the claim, notwithstanding the egg-shell skull rule. The claimant’s medical records should be considered very carefully by their personal injury lawyer in a case where a Somatisation disorder is going to be used to explain the medical basis for her ongoing condition. As Michael Trimble correctly points out,
“It is only by taking into account the life history of the claimant that one may come to appreciate that the apparent injury was but one of numerous sufficient causes for the clinical presentation, and that the vulnerability to breakdown so great, the propensity to sink into a state of dependence so well ingrained into the injured personality, that the accident has hardly altered the prognosis of the patient at all’
When the time arrives for Part 36 Offers to be received and considered, clearly the personal injury lawyer with the client who has suffered multiple documented psychiatric setbacks in her life, amongst which the accident is only one, is going to be looking at the defendant’s first offer and the possibility of early settlement with rather more scrutiny and concern than the personal injury lawyer of the client with no or very little documented psychiatric medical history until the date of the index traumatic event.
By way of conclusion, the following suggested guideline bullet points are made by way of practical advice for personal injury lawyers facing these sorts of cases:
- Remember to ask the original medical expert whether there might be a psychiatric basis for any ongoing symptoms if they cannot otherwise be accounted for. You are entitled to clarify the expert’s medical evidence under Part 35 of the Civil Procedure Rules and you should not automatically assume that the Claimant is trying to make more of her condition to maximise the value of her claim
- Where a Somatisation disorder is suspected – always check the medical records and make sure that you are fully au fait with the Claimant’s relevant pre-medical history. If a predisposition to psychiatric harm is indicated in the records, obtain clear lay witness evidence from the Claimant (and possibly family and friends) to explain why in her and their view, the index trauma was distinct in terms of damage caused in comparison to past traumas and possible future ones.
- Remember to be compassionate and attentive to your client’s needs. In all likelihood they are just as bewildered and unhappy about the lack of clear diagnosis as you are. They are not going to accept the fact that their ongoing condition has been defined as ‘psychiatric’ lightly. The last thing they need to hear from you is incredulity. It goes without saying that acting in their best interests will involve turning every corner to build a credible case that translates the scale of the suffering caused by the trauma into a reciprocal award of damages.