Finding Trauma: Advances in Brain Scan Technology Has Implications for Emotional Distress Recovery
PTSD diagnosis remains overwhelmingly the purview of psychologists and psychiatrists and continues to suffer under the skepticism that accompanies any purely psychological disorder. Recent advances in brain scan technology, however, have uncovered a truly objective technique for identifying and measuring PTSD and have the potential to drastically affect the ability of plaintiffs to recover for emotional distress.
For as long as humans have been exposed to brutality and terror, the result has been lasting psychological damage.1 In the last 100 years, this damage has gained public recognition and been identified as a psychologically diagnosable disorder. In World War I it was dubbed ‘shell shock,’ in World War II it was called ‘battle fatigue,’ and during the Vietnam War era it received its current name, posttraumatic stress disorder (“PTSD”).2
In the United States PTSD is most prevalent within the military context—nearly a third of American Vietnam veterans were diagnosed as having suffered PTSD in their lifetime with 80% reporting PTSD symptoms at some point in the 20-25 years after their deployment.3 However, PTSD can also result from experiencing, or even witnessing, any sort of physical, emotional or sexual abuse.4
Because of this skepticism, attempts have been made to objectively diagnose PTSD. The methods used, however, were result-driven and potentially limited to identifying only combat-related PTSD.7 Thus, diagnosis remains overwhelmingly the purview of psychologists and psychiatrists and continues to suffer under the skepticism that accompanies any purely psychological disorder. Recent advances in brain scan technology, however, have finally uncovered a truly objective technique for identifying and measuring PTSD.8 While these developments will hopefully remove the stigma from PTSD, they also have implications that will rumble the foundations of tort law and plaintiffs’ ability to recover damages for pure emotional distress.
Courts historically refused to impose liability on tort-defendants for infliction of emotional harm.9 Eventually, “the impact rule” emerged: plaintiffs can recover for emotional damages once they have identified physical harm, no matter how slight.10 This exception was expanded to become today’s “zone of danger” rule, allowing for recovery even where the plaintiff suffered no physical harm; the plaintiff must nonetheless be able to prove that the defendant’s conduct placed them in immediate danger of bodily harm and that they (the plaintiff) have suffered a physical manifestation of their resulting emotional distress.11
The underlying purpose for requiring a physical manifestation is clear: courts want to limit liability for emotional distress to those scenarios in which damages are credible and verifiable. Toward this end, courts have been skeptical (and inconsistent) when determining whether PTSD qualifies as the requisite physical manifestation.12 In fact, the Supreme Court recently ruled that the Privacy Act’s requirement of “actual damages” would not authorize damages where the plaintiff could not show pecuniary harm.13 Their skepticism is understandably exacerbated by the ambiguous nature of PTSD diagnoses. The court’s determination, however, gets substantially easier if it can rely on an objective indication of the existence of PTSD. The new brain scan technology offers that ability.
During the one-minute test, “[s]ubjects lay supine … and fixated their eyes on a spot … in front of them” allowing readings to be taken from the subjects’ idly resting, non-stimulated brains.19 For those subjects previously diagnosed with PTSD, the scan exhibited increased communication among portions of the brain associated with memory, indicating “overactive, over-connected memory sites in the brain.”20 (One of the symptoms necessary for a PTSD diagnosis is repeated, involuntary “re-experiencing” of the traumatic event.)21
The MEG scan correctly identified 72 of the 74 PTSD subjects (97%).22 With that degree of accuracy it seems forgone that the MEG test could quickly become the standard for legal determinations of PTSD. One of the benefits of MEG scans is that it exhibits degrees of severity rather than the mere existence of an abnormality.23 The specificity offered by the MEG test eliminates the fear that plaintiffs will be able to recover on fraudulent or exaggerated claims.
The potential uses for MEG scans outside the legal realm are encouraging and exciting. Perhaps foremost among them is the ability to put hard science behind pain and suffering that has been plaguing humanity for as long as there has been suffering. But for the courts, the magnetoencephelography scans bridge a gap that has long been troubling. In a field too often plagued by uncertainties and the amorphous ‘reasonable person’ standard, we should be glad for a little precision.
- Lynn Malcolm, When trauma tips you over: PTSD Part 1, transcript of radio broadcast, All in the Mind, Australian Broadcasting Commission, Oct. 9, 2004. available at http://www.abc.net.au/radionational/programs/allinthemind/when-trauma-tips-you-over-ptsd-part-1/3426554 (explaining that “reports of stress associated with battle appear as early as the 6th century BC”)
- Nancy C. Andreasen (Feb 19, 2004). Brave New Brain: Conquering Mental Illness in the Era of the Genome. New York: Oxford University Press. p. 303.
- Jennifer L. Price, Findings from the National Vietnam Veterans’ Readjustment Study (Jan. 1, 2007), available at http://www.ptsd.va.gov/professional/pages/vietnam-vets-study.asp
- National Institute of Mental Health (NIMH), Post-Traumatic Stress Disorder (PTSD), http://www.nimh.nih.gov/health/publications/post-traumatic-stress-disorder-ptsd/what-is-post-traumatic-stress-disorder-or-ptsd.shtml [hereinafter NIMH].
- Robert W. Butler et al., Physiological Evidence of Exaggerated Startle Response in a Subgroup of Vietnam Veterans With Combat-Related PTSD, 147:10 Am. J. Psychiatry 1308, 1308 (Oct. 1990) (explaining that, even 10 years after PTSD entered the “psychiatric nomenclature” there remained “conflicting opinions over the validity of the diagnosis”).
- Id. at 1309-10 (describing a study by which researchers measured the amplitude of eye-blink responses to auditory stimulation in subjects pre-diagnosed with combat-related PTSD).
- A. P. Georgopoulos et al., The synchronous neural interactions test as a functional neuromarker for post-traumatic stress disorder (PTSD): a robust classification method based on the bootstrap, 7 J. Neural Eng. 1 (2010).
- American Law Institute, Restatement (Third) of Torts: Liability for Physical and Emotional Harm (Tentative Drafts), Comment b. History, 2012.
- Compare Falzone v. Busch, 45 N.J. 559 (1965) (allowing recovery for negligent infliction of emotional distress where plaintiff suffered physical effects of distress after witnessing her husband struck by an automobile while she was in the zone of danger) with Metro North v. Buckley, 117 S.Ct. 2113 (1997) (denying recovery for an employee who had been repeatedly exposed to asbestos and suffered emotional distress but had not yet developed any physical manifestations of illness).
- See, e.g. Ware v. Anw Special Ed. Coop. no.603, 39 Kan.App.2d 397 (2008) (denying recovery for emotional distress when plaintiff’s only physical injury was symptoms of PTSD); Eastern Airlines, Inc. v. Floyd, 111 S.Ct. 1489 (1991) (holding that Article 17 of the Warsaw Convention, which sets forth conditions under which an international air carrier can be held liable for injuries to passengers, does not allow recovery for mental or psychic injuries unaccompanied by physical injury or physical manifestation of injury); Doe v. United Airlines, Inc., 160 Cal.App.4th 1500 (2008) (finding that changes in an individual’s brain and nervous system, characteristically tied to post-traumatic stress disorder, do not constitute “bodily injury,” as is required under Warsaw Convention for an air carrier to be liable for passenger injury). But see, e.g. Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 929 (1980) (“the notion that physical harm includes “shock to the nervous system” is an accepted aspect of our law of negligence”); Trinh v. Allstate Ins. Co., 109 Wash. App. 927 (2002) (finding that physical manifestations of PTSD qualify as “bodily injury” for purposes of insurance recovery).
- F.A.A. v. Cooper, 566 U. S. ____ (2012) (slip opinion).
- Carina Storrs, Brain Scan Offers First Biological Test in Diagnosis of Post-Traumatic Stress Disorder, Scientific American (Jan. 22, 2010), http://www.scientificamerican.com/article.cfm?id=ptsd-diagnosis-brain-imaging-meg-neural-communications.
- Andrew Czyzewski, Nuclear neurons, The Engineer (March 5, 2012), http://www.theengineer.co.uk/in-depth/the-big-story/nuclear-neurons/1011917.article.
- Storrs, supra note 14.
- Georgopoulos et al., supra note 8 at 2.
- Brian Engdahl, Minnesota Public Radio interview, Magnetoencephalography as An Objective Test for PTSD (Jan. 22, 2010), http://medgadget.com/2010/01/magnetoencephalography_as_an_objective_test_for_ptsd.html.
- NIMH supra note 4.
- Storrs, supra note 14 (explaining that, while 31 of the 250 “healthy” patients had abnormal scan results (12.5%), the MEG researchers were going to have those 31 patients reevaluated on the theory that the “supposedly healthy patients might have PTSD”).
- Georgopoulos et al., supra note 8 at 7.