Our clientele over the last few years have reported medical diagnosis’ of Post Traumatic Stress Disorder (PTSD) more often that at any times in my 34 years of employment law practice. This is a highly contested area of damages, and most defense counsel will bring in experts to testify that our employee-plaintiff was suffering from some “minor” depression (at worst!). You should be prepared to work with your attorney such as at San Francisco employment attorneys to best present your PTSD claims to the arbitrator or jury. Here are some guidelines that we’ve learned to follow:
1. Assume the jury is suspicious of a PTSD claim. Most folks think of PTSD as arising from a military, combat-situation. This view does not reflect changes in the DSM criteria, expanding the view of this diagnosis from a “single episode” to one which may include “multiple episodes”, such as might occur in continuing quid pro quo sexual harassment in the workplace. Work to find jurors who can understand trauma occurring outside of the military battle field. Ask if any of their family or friends have had such a diagnosis. What behavior changes have they seen?
2. Enlist the aid of an expert witness such as from a service like ALMExperts.PTSD is a medical diagnosis and should be opined on as such by an MD or psychiatrist. This will be especially important if defense is presenting a higher-level expert than your (say) clinical psychologist. Be sure to have your expert examine the plaintiff using their own standardized tests and interpretations so that they can’t be questioned on the possible short-comings (out of date?) tests of another doctor. Where possible, your expert should be able to find test results in defendant’s own testing (don’t ever, ever let them call the defense exam an “Independent Medical Exam”, its anything but that!) that supports his conclusions. A great question to ask opposing experts his “Dr, you would agree that other, well-qualified experts might disagree with your conclusion, correct?).
3. Focus on the symptoms, not the label. How does the PTSD actually affect your client? Medications with side effects that interfere with a normal day’s work may be one problem. Not knowing what a particular symptom might recur could be another. Are the symptoms getting better, staying the same, or getting worse? Can you show a real effort to “get over” the problems? California Jury Instruction CACI 3905A allows for loss of enjoyment of life,, physical impairment, inconvenience, grief, anxiety and humiliation.
4. Should you ask for a specific dollar amount of damages? That really depends on the make up of the jury, how well your plaintiff and/or treating doctors and witnesses testified, etc. Judges instruct juries routinely that argument is not evidence, and the jury may well disregard what you say. In some cases, we have seen jurors carry real anger and award a sum higher than we might have suggested in closing argument. Lots of good resources to check out recent verdicts like VerdictSearch.
Finally, an employment attorney can and should review all of your medical records (same privilege of privacy applies as if showing them to your spouse or doctor) to determine whether symptoms of PTSD or other outside factors played a determining role in your employment related emotional distress. San Francisco employment attorneys can help. Call us at 877 789 9707.