Regulating damage claims for emotional injuries before the First World War

During the late 19th century, as a result of litigation following railway accidents, damage claims for emotional injuries became a medico-legal issue. Efforts to find fair and socially acceptable means of settling such claims involved an interaction between medical theory and legal rules. Between 1866 and 1890 doctors debated the significance of ‘nervous’ symptoms, which resulted from accidents in which Little or no physical damage occurred. They rejected a strictly somatic interpretation of these symptoms and replaced it with a psychosomatic interpretation. Hoping to prevent a fiood of ‘false claims’, Anglo-American courts initially rejected this psychosomatic interpretation, and ruled against damages in cases where fear without physical impact was the cause of the plaintiffs symptoms. Later, common law courts accepted the psychosomatic perspective and granted damages for physical illnesses in which fear was ‘one link in the chain of causation’. While early appeals under workers' compensation laws followed these later courts, worries about the social consequences ofthese rulings were also evident in the years before the First World War.     

An economic analysis of the medical malpractice system

The purpose of professional liability is viewed as the deterrence of negligence. Conditions necessary for the malpractice system to provide appropriate incentives for injury prevention are described. The operation of the system is compared to this theoretical ideal. Evidence is presented on the number of claims relative to injuries; the disposition of claims through the courts; the effects of tort reforms: the efficiency of insurance mechanisms; and causes and solutions of the 1975 malpractice insurance crisis. The overall efficiency of the system is evaluated and proposals for reform are discussed.     

Emotional distress in tort law

Although judges and legislators increasingly provide compensation for claims of emotional injury, laws have evolved in an arbitrary and inflexible fashion. A number of judicial barriers to these claims have been developed and applied in ways that unfairly prevent compensation. Likewise, frivolous claims are occasionally granted. Judicial and legislative approaches to this problem should involve enough flexibility to accommodate the facts peculiar to each case. A flexible approach is also responsive to the rapid developments that are occurring in the behavioral and medical sciences which are often consulted in solving disputes involving claims for emotional distress.     

Whose harm? Which metaphysic?

Douglas Diekema has argued that it is not the best interest standard, but the harm principle that serves as the moral basis for ethicists, clinicians, and the courts to trigger state intervention to limit parental authority in the clinic. Diekema claims the harm principle is especially effective in justifying state intervention in cases of religiously motivated medical neglect in pediatrics involving Jehovah’s Witnesses and Christian Scientists. I argue that Diekema has not articulated a harm principle that is capable of justifying state intervention in these cases. Where disagreements over appropriate care are tethered to metaphysical disagreements (as they are for Jehovah’s Witnesses and Christian Scientists), it is moral-metaphysical standards, rather than merely moral standards, that are needed to provide substantive guidance. I provide a discussion of Diekema’s harm principle to the broader end of highlighting an inconsistency between the theory and practice of secular bioethics when overriding religiously based medical decisions. In a secular state, ethicists, clinicians, and the courts are purportedly neutral with respect to moral-metaphysical positions, especially regarding those claims considered to be religious. However, the practice of overriding religiously based parental requests requires doffing the mantle of neutrality. In the search for a meaningful standard by which to override religiously based parental requests in pediatrics, bioethicists cannot avoid some minimal metaphysical commitments. To resolve this inconsistency, bioethicists must either begin permitting religiously based requests, even at the cost of children’s lives, or admit that at least some moral-metaphysical disputes can be rationally adjudicated.

     

Psychiatrists' duty to warn of a dangerous patient: A survey of the law

The leading court cases that decide under what circumstances a duty to warn a third person about the potential dangerousness of a patient will be imposed on a psychiatrist or therapist, and in what manner the discharge of that duty will be judged to be sufficient is discussed and analyzed. A survey indicates that courts regard the duty to warn to be only part of a larger duty to control a dangerous patient. Thus, even if there is no duty to warn, courts may nevertheless impose liability for injuries to third persons predicated on acts of nonfeasance or misfeasance in diagnosing, treating, or controlling a dangerous patient. Lastly, the impact that various patient confidentiality laws have on the duty to warn are discussed.     

Organizational injury rate underreporting: the moderating effect of organizational safety climate

The goals of this study were (a) to assess the extent to which construction industry workplace injuries and illness are underreported, and (b) to determine whether safety climate predicts the extent of such underreporting. Data from 1,390 employees of 38 companies contracted to work at a large construction site in the northwestern United States were collected to assess the safety climate of the companies. Data from the Occupational Safety and Health Administration (OSHA) logs kept by the contractors allowed for calculation of each company's OSHA recordable injury rate (i.e., the reported injury rate), whereas medical claims data from an Owner-Controlled Insurance Program provided the actual experienced rate of injuries for those same companies. While the annual injury rate reported to OSHA was 3.11 injuries per 100 workers, the rate of eligible injuries that were not reported to OSHA was 10.90 injuries per 100 employees. Further, organizations with a poor safety climate had significantly higher rates of underreporting (81% of eligible injuries unreported) compared with organizations with a positive safety climate (47% of eligible injuries unreported). Implications for organizations and the accuracy of the Bureau of Labor Statistics's national occupational injury and illness surveillance system are discussed. (PsycINFO Database Record (c) 2008 APA, all rights reserved).     

Qualitätssicherung bei der betreuungsrechtlichen Begutachtung

Quality assurance in the field of medico-legal assessment for civil courts has not developed as far as in other legal fields, especially in criminal law. This also applies to assessments in cases of guardianship and custody even though assessments for these cases are much more frequent than in other areas of law. Efforts to achieve quality assurance should rely on quality standards which have been developed both in criminal law and in social law. A large proportion of these standards are suitable for all expert assessments. In addition to the specific statutory requirements in the law on the procedure in family cases and in matters of voluntary jurisdiction (FamFG), the specifications of the particular jurisdiction and especially the needs of those assessed and the courts concerned with them have to be observed. Building on the already published proposals this article attempts to systematize procedures, drafting of the assessment and the written report so that the quality of the work of the expert can be checked by those concerned.     

Jurors' Use of Standards of Proof in Decisions about Punitive Damages

Standards of proof define the degree to which jurors must be satisfied that a fact is true, and plaintiffs in civil lawsuits assume the burden of proving their claims to the requisite standard of proof. Three standards—preponderance of evidence, clear and convincing evidence, and beyond a reasonable doubt—are used by different jurisdictions in trials involving liability for punitive damages. We investigated whether individual mock jurors apply these standards appropriately by instructing them to read two personal injury trial summaries and to use one of three standards in either qualitative or quantitative format when deciding punitive liability. Results showed that jurors tended not to incorporate the standard into their judgments: defendants were just as likely to be found liable when the plaintiff's burden was high (“beyond a reasonable doubt”) as when the burden was low (“preponderance of evidence”). The format of the instruction also had a negligible effect. We suggest that nonuse of the standard of proof is related to jurors' preferences for less effortful or experiential processing in situations involving complicated or ambiguous material. Copyright © 2012 John Wiley & Sons, Ltd.     

Presumed consent for organ preservation in uncontrolled donation after cardiac death in the United States: a public policy with serious consequences

Organ donation after cessation of circulation and respiration, both controlled and uncontrolled, has been proposed by the Institute of Medicine as a way to increase opportunities for organ procurement. Despite claims to the contrary, both forms of controlled and uncontrolled donation after cardiac death raise significant ethical and legal issues. Identified causes for concern include absence of agreement on criteria for the declaration of death, nonexistence of universal guidelines for duration before stopping resuscitation efforts and techniques, and assumption of presumed intent to donate for the purpose of initiating temporary organ-preservation interventions when no expressed consent to donate is present. From a legal point of view, not having scientifically valid criteria of cessation of circulation and respiration for declaring death could lead to a conclusion that organ procurement itself is the proximate cause of death. Although the revised Uniform Anatomical Gift Act of 2006 provides broad immunity to those involved in organ-procurement activities, courts have yet to provide an opinion on whether persons can be held liable for injuries arising from the determination of death itself. Preserving organs in uncontrolled donation after cardiac death requires the administration of life-support systems such as extracorporeal membrane oxygenation. These life-support systems can lead to return of signs of life that, in turn, have to be deliberately suppressed by the administration of pharmacological agents. Finally, allowing temporary organ-preservation interventions without expressed consent is inherently a violation of the principle of respect for a person's autonomy. Proponents of organ donation from uncontrolled donation after cardiac death, on the other hand, claim that these nonconsensual interventions enhance respect for autonomy by allowing people, through surrogate decision making, to execute their right to donate organs. However, the lack of transparency and the absence of protection of individual autonomy, for the sake of maximizing procurement opportunities, have placed the current organ-donation system of opting-in in great jeopardy. Equally as important, current policies enabling and enhancing organ procurement practices, pose challenges to the constitutional rights of individuals in a pluralistic society as these policies are founded on flawed medical standards for declaring death.     

Federal District Court Decision Making in Public Forum and Religious Speech Cases, 1973–2001

This article investigates federal district court decision making in First Amendment lawsuits concerning religious expression and public forums. As trial courts, district courts are the first to adjudicate claims concerning religious speech in public places and thus they determine whether a public forum is open to expression in general, as well as grant or deny access to that forum for a religious speaker. With a comprehensive database of all district court cases concerning religious expression and public forum doctrine, we use logistic regression to measure the significance of several legal and extra-legal variables in order to explain district court outcomes.     

Addressing confounding errors when using non-experimental, observational data to make causal claims

In their recent book, Is Inequality Bad for Our Health?, Daniels, Kennedy, and Kawachi claim that to “act justly in health policy, we must have knowledge about the causal pathways through which socioeconomic (and other) inequalities work to produce differential health outcomes.” One of the central problems with this approach is its dependency on “knowledge about the causal pathways.” A widely held belief is that the randomized clinical trial (RCT) is, and ought to be the “gold standard” of evaluating the causal efficacy of interventions. However, often the only data available are non-experimental, observational data. For such data, the necessary randomization is missing. Because the randomization is missing, it seems to follow that it is not possible to make epistemically warranted claims about the causal pathways. Although we are not sanguine about the difficulty in using observational data to make warranted causal claims, we are not as pessimistic as those who believe that the only warranted causal claims are claims based on data from (idealized) RCTs. We argue that careful, thoughtful study design, informed by expert knowledge, that incorporates propensity score matching methods in conjunction with instrumental variable analyses, provides the possibility of warranted causal claims using observational data.     

ASSESSING CONTENT VALIDITY: STANDARDS SET BY THE COURT1

Thirty-one court cases were reviewed in order to determine the standards set by the court in their assessment of the content validity of paper-and-pencil tests. The findings indicate that the courts have not acted upon a uniform set of standards. In some instances, tests are judged solely on the basis of their “face validity;” in others, extensive evidence is required. The discussion centered on the failure of the courts to consistently apply professionally developed selection guidelines. The implications for practitioners and psychologists were discussed.     

Compensation for pain,suffering, and other psychological injuries: The of Daubert on employment discrimination claims

The Daubert standard for admitting expert testimony places increased emphasis on the scientific basis for professional opinions. This article identifies factors mental health professionals should consider to meet that standard and Federal Rule of Evidence 702 when evaluating claims of psychological injuries as authorized by the Civil Rights Act of 1991, in cases of sexual harassment, retaliation, and other forms of employment discrimination. First, the contribution experts can make by presenting a framework to assess and understand the nature, duration, intensity and severity of emotional injuries is outlined. Specialized knowledge helpful in assessing these claims is reviewed in light of the scientific literature on stressors, anxiety disorders, somatoform disorders, depression, posttraumatic stress disorder, and ways in which related symptoms manifest regarding events in the workplace or following loss of employment. Second, the role of qualified experts to facilitate determinations of causation is discussed, highlighting factors that bear on preexisting harm, intervening injurious events, the exclusion of alternate sources of mental distress, emotional harm and humiliation, and mitigation of damages.     

A look at the AMA Guides to the Evaluation of Permanent Impairment: Problems in workers' compensation claims involving mental disability

Mental disability claims for workers' compensation are troublesome for courts and clinicians. The overall pattern is one of a chaos of state legislative and judicial restrictions on recovery. A notable exception to this chaos is the use in the majority of American jurisdictions of the uniform system for determining mental impairment contained in the American Medical Association's Guides to the Evaluation of Permanent Impairment. The use of the Guides seems to have promoted uniformity among jurisdictions and greater acceptance of mental disability claims. A new problem with the Guides may lay ahead as the courts try to apply the third edition. This recent revision does not contain a percentage rating system for mental impairment. The availability of this system, and in the first edition of a diagnostic system, has long been attractive to courts, although it has undermined the AMA's goal of objective evaluation.     

Substantiating psychological injury under the federal employees' compensation act

This paper examines the administration of the Federal Employees Compensation Act by the Office of Workers' Compensation Programs (OWCP). It examines compensation claims originating at a large federal agency with a psychological component as either cause or consequence of a work-related injury. Patterns of case outcomes are noted to be similar to those in other jurisdictions, and are discussed in terms of dirticdty of proof and policy preferences. Possible anomalies in the administration of the statutes are noted. The paper describes difliculties for mental health professionals attempting to substantiate psychological injuries, and addresses ethical issues related to tension between the nature of science and the requirements of administrative systems. Knowledge regarding idormational requirements and evaluative criteria used by OWCP is necessary to effectively substantiate the work-relatedness of an injury. The paper provides guidelines concerning these requirements and criteria.     

Taking time seriously. A theory of socioemotional selectivity

Socioemotional selectivity theory claims that the perception of time plays a fundamental role in the selection and pursuit of social goals. According to the theory, social motives fall into 1 of 2 general categories--those related to the acquisition of knowledge and those related to the regulation of emotion. When time is perceived as open-ended, knowledge-related goals are prioritized. In contrast, when time is perceived as limited, emotional goals assume primacy. The inextricable association between time left in life and chronological age ensures age-related differences in social goals. Nonetheless, the authors show that the perception of time is malleable, and social goals change in both younger and older people when time constraints are imposed. The authors argue that time perception is integral to human motivation and suggest potential implications for multiple subdisciplines and research interests in social, developmental, cultural, cognitive, and clinical psychology.     

On the controllability of evaluative-priming effects: Some limits that are none

Two experiments examined recent claims of uncontrollability of the evaluative-priming effect. According to these claims, imposing an adaptive 600 ms response deadline prevents successful faking (Degner, 2009). Furthermore, strategic control attempts have been argued not to reduce the priming measure's sensitivity to spontaneous evaluations so that correlations of evaluative-priming effects with external criteria are not affected by attempts to fake (Bar-Anan, 2010). Here, we show that faking is possible even with an adaptive 600 ms response deadline when faking instructions do not conflict with speed pressures imposed thereby (Experiments 1 and 2). In addition, suitable faking instructions substantially affect the predictive validity of priming effects in terms of their correlations with (non-faked) self-report measures and the Implicit Association Test (Experiment 2). The previous claims about the uncontrollability of the evaluative-priming effect may thus have been premature.     

The changes in psychological characteristics and reactions of elite athletes from injury onset until full recovery

Abstract

The purpose of this investigation was to describe the psychological characteristics and reactions of injured athletes and to examine the changes in these reactions throughout their rehabilitation. This study examined 136 elite injured athletes from 25 sports at four phases: upon injury, partial recovery, semi-recovery, and full recovery. Injury appraisal, athlete's demographics, and emotional and psychological variables were measured. Duration of injuries ranged from 4 to 99 weeks (M = 19 weeks). Changes were examined through a series of repeated measure MAN-OVAs with polynomial contrasts. Findings were typically as expected: increased confidence and vigor and decreased negative emotional responses over the recovery period. The changes over the recovery period were not always at a constant rate. Confidence of adhering to rehabilitation, passive, and emotion-focused coping, remained stable over time. The initial injury appraisal, regarding anticipated loss of time and the psychological impact of this, needs to be examined further. The psychological state of the athlete at the various stages of recovery has important implications for those diagnosing injuries and implementing rehabilitation programs.     

Personality Changes Associated with Localized Brain Injury in Elderly Populations

Emotional disturbances following brain damage have been frequently reported in the literature. However, systematic investigation of these disorders and their specific causes were not common until the last 30 years. However, the number of research studies into this area remains slight compared to the voluminous literature on the cognitive effects of brain injury. The completed research has fallen into 3 major areas: (1) The study of clients with localized brain injuries to evaluate whether the site of the injury predicts the emotional reactions; (2) the effect of time poststroke on personality changes; and (3) the relation of neuropsychological deficits to emotional changes. This paper provides a comprehensive review of the research that has been completed in this area with elderly subjects along with an analysis of the current state of the knowledge in this area. Future directions for research to further our understanding are discussed.     

The role of competency to stand trial in mental health courts

Concerns have been raised in the literature about the competency to stand trial and competency to make treatment decisions of defendants referred to mental health courts. However, there is little information reported about the evaluation and prevalence of incompetence, characteristics of incompetent mental health court defendants, and disposition of mentally ill defendants too disturbed to be diverted from the criminal justice system through mental health courts. This study reports on the 85 potential mental health court defendants referred for trial competency evaluations during the first three years of operation of the Akron Ohio Mental Health Court. Of the 80 defendants who could be located for evaluation, 77.5% were found incompetent, and 53% of the incompetent defendants were not restored to competence even after an average of 49 days of treatment in a state psychiatric hospital. The implications of these findings in terms of the diversion potential of mental health courts for the severely mentally ill are discussed.