Personal Injury and Discrimination in Civil Law

Personal Injury and Discrimination in Civil Law

Overview

• Context: Final chapter focusing on civil aspects of forensic psychology

• Previous Content: Review of forensic assessment, treatment, consultation, expert testimony, forensic practices in violence, criminal law, mental health law, and child issues.

• Focus: Personal injury lawsuits and employment discrimination, interacting significantly with forensic psychology.

• Challenges: Unique challenges posed by civil law requirements on forensic practice.

Chapter Objectives

1. Summarize tort law.

2. Explain the role of the forensic psychologist in personal injury claims.

3. Understand workers’ compensation claims in forensic context.

4. Describe forensic psychology in sexual harassment claims.

Key Aspects of Civil Law

• Forensic psychologists must understand various aspects of civil law relevant to evaluations such as:

  • Worker’s compensation claims.

  • Independent medical evaluations.

  • Sexual harassment.

  • Employment discrimination claims.

• Critical knowledge areas include:

  • Tort law basics.

  • Differences between negligence, intentional torts, and strict liability.

  • Therapeutic vs. forensic assessments and assessment for malingering.

  • Awareness of scope of practice to avoid misapplication of assessment methodologies.

Legal Bases for Personal Injury Cases: Torts and Civil Law

• Definition of Torts: Civil wrongs causing physical or psychological damage with four foundational elements:

  1. Duty or Obligation: Legal requirement for individuals to act in a socially responsible way.

  2. Violation of Duty: Determining if a violation occurred, which involves examining negligence, intentional torts, and strict liability.

  3. Damages: Ensuring that injury or damage occurred, which can include physical and psychological injuries (e.g., pain and suffering).

  4. Proximate Cause: Establishing that damages were directly caused by the violation of the duty.

• Examples of Legal Duties:**

  • Homeowners keep properties maintained to prevent guest injuries.

  • Drivers owe duties to fellow motorists (e.g., obey traffic laws).

Elements of a Tort

1. Legal Duty or Obligation:

   • Requirement to conduct oneself in a certain manner.

   • Example: Responsibility of a homeowner to clear snow from sidewalks.

2. Violation of Duty:

   • Lack of reasonable conduct leading to damage.

   • Negligence: No intention to cause harm but failure to act responsibly.

     • Example: If a driver causes an accident due to negligence, intent does not need to be proven.

   • Intentional Torts: Involves deliberate actions that cause harm.

     • Example: Shooting a squirt gun and hitting someone unintentionally could still be intentional if it was foreseeable.

   • Strict Liability: Liability regardless of intent, usually related to dangerous activities.

     • Example: A person using explosives could be held liable for injuries caused by unintended explosions regardless of intent.

3. Injury or Damage:

   • Physical or psychological harm recognized as recoverable.

   • Economic damages (e.g., lost wages, medical expenses) vs. noneconomic damages (e.g., pain and suffering).

4. Proximate Cause:

   • Immediate cause of damage must be established.

   • Test used: "But for" test, determining causation.

     • Example: If a person's actions directly led to an injury, they are the proximate cause of that damage.

Types of Damages

• Compensatory Damages: Restitution to make plaintiffs whole after injury.

• Punitive Damages: Designed to punish the defendant's behavior, typically awarded for egregious actions.

• Legal Systems: Many states limit punitive damages to control excessive claims.

  • Example: In the case of Liebeck v. McDonald's, initial punitive damages were reduced from $2.9 million to $640,000 after public outcry regarding jury awards.

General Forensic Practice in Personal Injury Cases

• Tasks for Forensic Psychologists:**

  1. Establish Baseline Functioning: Understanding pre-incident psychological health.

  2. Nature and Severity of Distress: Determine psychological injuries; vital for assessing damages.

  3. Extent of Impairment: Assess functional impairments resulting from injury.

  4. Psychological Causes: Investigate causes of impairments.

  5. Possible Interventions: Explore therapeutic methods to mitigate psychological injuries.

• Distinction between forensic and therapeutic assessments is crucial, particularly concerning client relationships and expectations of the evaluations.

Malingering in Personal Injury Cases

• Understanding Malingering:

  • Malingering: Conscious exaggeration of symptoms for personal gain.

  • Differentiation from exaggeration: Exaggeration may not be intentional.

• Statistical Evidence:**

  • Studies indicate varying degrees of suspected malingering, ranging from 2% to 64% of claimants potentially exaggerating symptoms.

  • High prevalence of malingering in chronic pain and brain injury cases.

  • Coaching by Attorneys: Attorneys sometimes prepare clients for assessments, which raises ethical concerns.

Types of Typical Injuries in Personal Injury Claims

• Posttraumatic Stress Disorder (PTSD):

  • Common psychological disorder claimed; more tangible due to diagnostic criteria requiring a triggering event.

  • Symptoms:

    • Criterion A: Traumatic event exposure.

    • Criteria B, C, D: Symptom clusters including re-experiencing, avoidance, and heightened arousal.

• Neuropsychological Damage:

  • Traumatic Brain Injury (TBI): Defined by severity based on unconsciousness, amnesia, and brain injury presence.

  • Assessment Tools: Glasgow Coma Scale (GCS) is used to classify levels of injury severity.

• Chronic Pain:

  • Major factor in claims; subjective experience with psychological and cognitive influencing factors.

  • Assessment Process: Focus on psychological variables, personality, and cognitive factors affecting pain perception.

Workers’ Compensation

• Definition: Compensation for work-related injuries, typically regardless of fault.

• Legal Framework: Streamlined process for employee claims without tort defenses but also limits legal rights of both parties.

• Role of Forensic Psychologist: Similar assessment areas as personal injury, focusing on psychological symptoms impacting the ability to function in employment.

Psychological Independent Medical Evaluations (IMEs)

• Definition: Assessments requested by insurance companies to verify disability claims, lacking need for proximate cause evaluation.

• Considerations for Forensic Psychologists: Ensure assessment for malingering and adherence to ethical standards and legal requisites.

Sexual Harassment and Employment Discrimination

• Definition of Discrimination: Negative treatment based on gender, race, religion, and other protected classes.

• Types of Claims: Discriminatory effects (impacting groups) vs. discriminatory treatment (individual harm), including various modes of harassment.

• Role of Forensic Psychologists: Assess psychological impacts, define damages, and establish the occurrence and effects of discrimination or harassment. Familiarity with social science literature on these topics is vital.

Reflection and Review Questions

1. What are the four elements of a tort?

2. How must forensic psychologists assess work-related claims?

3. Why is assessing malingering critical in personal injury claims?

4. What is the difference between discriminatory effects and discriminatory treatment?

Key Terms

• Assault, Intentional Torts, Battery, Legal Disability, Compensatory Damages, Negligence, Discriminatory Effects, Punitive Damages, Discriminatory Treatment, Quid Pro Quo Harassment, Factual Disability, Social Disability, Fixed Battery Approach, Strict Liability, Flexible Process Approach, Hostile Work Harassment.

class notes:

if you get into a car accident someone can not only sue car but also house insurance