Car Accident Leads To $150K Award For 'PTSD' Damages
Lawyers Weekly, 12/10/01
Bodily Injury Not Needed For Trial Wins
Post-traumatic stress disorder damages are typically associated with unusually horrifying events, but a Boston lawyer recently obtained an arbitration award for $150,000 in PTSD damages arising out of a car accident.
Kenneth I. Kolpan, counsel for the injured plaintiff, said that post-traumatic stress usually involves with rape, war or other extreme events, such as the Sept. 11 attacks.
"People don't usually associate it with auto accidents," he said.
But he noted that physicians have found that 9 percent of the survivors of serious auto accidents also develop significant post-traumatic stress symptoms.
Kolpan said that $125,000 of the award was given to the 14-year-old passenger who hit her head on the windshield of her mother's car.
The young victim suffered some degree of post-concussion syndrome and head injury, but Kolpan suggested that her most significant and lasting injury was post-traumatic stress.
Donald L. Gibson of Marshfield, who has handled many personal injury and medical malpractice cases, said that "lawyers should consider and evaluate post-traumatic stress as part of their initial case analysis."
But Gibson also cautioned that "there are not many post-traumatic stress cases without a significant bodily injury component, and lawyers need to be sure the elements of proof are present before making a stress claim."
Kolpan agreed, and noted that this case contained the classic elements for a post-traumatic stress claim.
He said the young victim experienced lasting depression, a sense of constant threat, loss of control, and other symptoms of post-traumatic stress listed in the Diagnostic and Statistical Manual of the American Psychiatric Association.
The case of Jane Doe v. Arbella Ins. Co. was submitted to arbitration pursuant to the underinsured motorist provisions of the claimant's policy.
The verdicts and settlements report for the case can be found on the site here >>
Loss Of Control
On Aug. 30, 1997, Jane Doe was a 14-year-old passenger in her mother's car traveling southbound on Route 24 when another vehicle, traveling southbound in an adjacent lane, cut in front of their vehicle.
Jane and her mother, each testified that the other vehicle caused their car to veer into the guardrail.
When her mother lost control of the vehicle, it began spinning, slid across three lanes of traffic and struck a boulder off the road.
Jane struck her head on the dashboard, broke a tooth, and "starred" the car window.
The neuropsychologist expert for the claimants, Dr. Thomas Deters of Boston, diagnosed Jane as having post-traumatic stress disorder.
The insurance company took the position that the accident was not traumatizing, and presented no threat of serious harm, but a company letter stated that Jane was in a "serious accident."
The insurance company offered expert testimony by Nancy Hebben, Ph.D. and Robert A. Levine, M.D. that Jane did not suffer from post-traumatic stress disorder.
The arbitrator, Robert G. Larkin Jr. of Charlestown, awarded $125,000 to Janeand $25,000 to her mother for injuries sustained in the accident.
Finding Post-Traumatic Stress
Kolpan suggested that lawyers should be aware of the possible signs of post-traumatic stress injuries because clients may not be aware of the problem.
"In this case, the claimant had difficulty sleeping, and lost some mental and social ability. She had an awareness of not being the same person, but did not really know why. She thought it might be fatigue," said the trial veteran.
Kolpan asserted that slow-developing but serious accidents that cause a person to feel "out of control" are most often the source of post-traumatic stress.
He noted that serious injuries and a lingering fear after the accident were common markers as well.
Gibson affirmed that "lingering fears may cause some people not to drive or not to be passengers, or just to be nervous." He added that others often can not return to the scene of the accident.
According to Kolpan, the DSM and the American Academy of Family Physicians have both published criteria for diagnosing post-traumatic stress disorder.
The published criteria include: recurrent and intrusive recollections; distressing dreams; reliving the experience by flashback or illusion; and intense distress upon exposure to triggering stimuli.
Kolpan pointed out that the victim might also show certain outward signs of affliction, such as difficulty sleeping, outbursts of anger, difficulty concentrating and hypervigilance.
Physicians have reported that the disturbance causes clinically significant distress and impairment in social and occupational areas as well.
Both Kolpan and Gibson cautioned that the duration of the disturbance must be significant in order to make a sound case.
"There are some people who can just tough it out, while others are permanently damaged," Kolpan noted.
He pointed to medical literature which emphasized that some factors predispose people to this disorder. Those factors include a history of prior trauma or psychiatric disorders.
Kolpan also advised personal-injury lawyers to consider a battery of accepted psychological testing for "malingerers" to eliminate consideration of unworthy clients.
Proving The Case
Kolpan noted both difficulties and advantages to proving post-traumatic stress allegations.
"In this case, the passenger was unrestrained. While the insurance company had to prove that a seat belt would have reduced physical injury, there is no evidence that a seat belt would have made any difference to the post-traumatic stress injury," said Kolpan.
Kolpan said this type of injury is no longer greeted with severe skepticism in light of the well-studied history of Vietnam flashbacks and suffering of rape victims.
Gibson agreed that "this is a well-recognized complication now, but you must demonstrate the 'loss of control' feeling and the trauma which rarely arises without a physical injury."
Kolpan said he focused on demonstrating each of the ways in which his client's life was different after the accident, and he tied those differences to his expert's analysis of symptoms and results of post-traumatic stress disorder.
He explained that his client "was a young woman who had confidence and was comfortable displaying her talents in beauty shows and social activities prior to the accident."
He noted that she was "slow, anxious and depressed" after the accident and displayed classic symptoms of post-traumatic stress disorder
The result was "she could not even go to college without special accommodations," her counsel argued.
Kolpan urged that lawyers should get their clients to appropriate specialists in psychiatry or neuropsychology for diagnosis if possible symptoms persist after the accident.
He recommended MCLE seminars on traumatic brain injuries and a book by Dr. Muriel Lezak on "Neuropsychological Assessment."