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Bulter, Jane; Reutens, Sharon; Dandolo, Christopher --- "Psychiatric injuries flowing from expert evidence" [2023] PrecedentAULA 8; (2023) 174 Precedent 34

PSYCHIATRIC INJURIES FLOWING FROM EXPERT EVIDENCE

By Jane Bulter, Dr Sharon Reutens and Christopher Dandolo

This article examines expert evidence as a particular aspect of the litigation process that can cause acute distress and psychiatric injury to a plaintiff who hears or reads the expert evidence. We examine the concept of secondary psychiatric harm in relation to expert liability and quantum evidence. We also consider steps that may be taken to reduce the possibility of a plaintiff suffering harm as a result of exposure to expert evidence. Lastly, we consider whether the solicitor is exposed to any liability through secondary psychiatric harm suffered by the plaintiff, together with the impact of such harm on limitational issues.

Expert evidence is a necessary component of any medical negligence claim as it is essential to prove that there was a breach of the duty of care that was causative of the injury, together with the nature and extent of the injury. However, it is important to consider the impact of expert evidence on the plaintiff and their family. In particular, a medical negligence claim concerning injuries suffered by a mother or a baby demands careful and sensitive management throughout the claims process.

The concept of therapeutic jurisprudence recognises the impact the legal system can have on a plaintiff’s wellbeing – be it positive, negative or neutral.^[1] The application of this concept informs diversional systems and dispute resolution. It is generally accepted that litigation is stressful for both plaintiffs and defendants and has psychological consequences.^[2]

Our collective experience, as a solicitor who acts for injured people and as a psychiatrist who assesses injured people, has shown that when a plaintiff reads the expert evidence procured by their legal team and/or the defendant’s legal team, it can result in a new, discrete psychiatric injury or an exacerbation of an existing psychiatric injury.

While medical and legal practitioners generally view medicolegal reports dispassionately, focusing on the diagnosis, severity, treatment options and prognosis, plaintiffs are likely to focus on the assessment of the severity of the injury, opinions regarding the standard of medical care, and the cost and practicalities of the treatment of the injury. In our experience, vulnerability to secondary psychiatric injury is more common in cases of loss of fertility, gynaecological injury – particularly those suffered during childbirth – and cosmetic surgery injury. This vulnerability extends to the parents of a baby who was injured or died during childbirth.

LIABILITY EVIDENCE

In order to understand the impact of expert evidence, it is necessary to consider the backstory of the plaintiff in a medical negligence context. Most medical negligence plaintiffs initially approach a law firm because they suspect that something went wrong in their treatment or care. To begin with, the solicitor will simply investigate the case by instructing an independent expert to review the facts and advise on liability.

The plaintiff’s liability expert is necessarily independent: the expert’s report will often be the first independent review of the facts of the plaintiff's case. The plaintiff’s expert liability report/s will discuss whether the standard of care afforded to the plaintiff and/or their family was below the standard that might reasonably have been expected, resulting in a breach of duty of care. The report/s will further discuss whether the breach caused the plaintiff’s physical and/or psychiatric injuries. It is this expert liability report that can be particularly emotionally difficult for the plaintiff to read.

While the plaintiff may have suspected that they or a member of their family received substandard medical treatment, news that the independent liability expert has confirmed their suspicion that the injury could have been avoided can be a traumatic event in itself. It is particularly traumatic where the steps to avoid the injury would have been relatively simple and the injury suffered by the plaintiff and/or their family member is serious.

The counterfactual scenario is an important part of the expert liability report. The expert will consider what was likely to have happened ‘but for’ the breach of the duty of care. In an obstetrics and gynaecology case, the counterfactual scenario is often the difference between life and death.

For example, where an earlier caesarean section would have likely resulted in the birth of a healthy baby rather than a deceased or profoundly disabled baby, conveying the news to the parents that, had a different course of action/s been undertaken, their child would have lived or not been injured is a delicate process. The parents in such a scenario are likely to be upset and distressed that they have a case, as it means that their child’s death or injury occurred due to negligence and was therefore preventable.

As another example, a plaintiff who has been through a radical surgery which has resulted in the loss of her fertility is likely to feel devastated by the news that she would have retained her fertility had she been offered conservative treatment.

It is important to appreciate that there is a difference in the mind of a plaintiff between a suspicion of harm and the confirmation of that suspicion by expert evidence. The confirmation is often deeply traumatic and has the potential to exacerbate a pre-existing psychiatric condition or result in the development of a new discrete psychiatric condition.

Conversely, where the expert evidence reveals that the death or injury was not caused by a breach of duty of care and would have happened even in the best of hands, the plaintiff or the parents can be at least somewhat comforted by the knowledge that the death or injury was not preventable.

QUANTUM EVIDENCE

Quantum assessments are a further area of concern. The ‘once and for all lump sum’ nature of medical negligence disputes requires solicitors to ask quantum experts to consider the future in terms of all further medical treatment that a plaintiff requires, whether a plaintiff can ever return to work, and whether the plaintiff is likely to recover from their injuries. The picture of the plaintiff’s future painted by the quantum report can seem very bleak. For example, a plaintiff who has suffered a fourth-degree tear following a forceps delivery may suffer from mild faecal incontinence. If the quantum expert opines that this injury and the degree of faecal incontinence will likely worsen as the plaintiff ages, the plaintiff will be confronted with a prospect that she is likely to find upsetting and possibly traumatic.

A further example is a plaintiff who has suffered severe nerve damage after a forceps delivery and has gone on to develop a centralised pain syndrome. The expert quantum evidence in such a case will likely report that the plaintiff will always suffer from debilitating pelvic pain – while there are some treatments that will help her deal with the pain, they will not cure it. A plaintiff in such a case will likely already have vulnerable mental health as a result of being in such severe pain and is likely to be greatly affected by such a dismal prognosis. This may be further exacerbated if the report recommends future surgery.

SECONDARY PSYCHIATRIC HARM

Litigation is stressful. The term ‘litigation response syndrome’ encompasses emotional reactions of anxiety, anger and depression in plaintiffs undergoing this process.^[3] The psychological effects of revelations of negligence can cause additional damage to an already vulnerable plaintiff who, in addition to their litigation-induced symptoms, may be experiencing a psychiatric condition as a result of the initial injury.

The opinions contained in expert reports are provided some time after the initial injury, and it is not uncommon for plaintiffs to experience a relapse of the psychiatric symptoms they experienced in relation to the primary injury. Alternatively, if they were unaware of the nature or extent of the negligence, these plaintiffs may experience the onset of a psychiatric condition after learning the expert’s opinion. In our experience, the psychiatric manifestations are usually mood and anxiety disorders or exacerbations of post-traumatic stress disorder, intermixed with delayed grief for the loss of an alternate outcome. Vulnerable plaintiffs with a history of substance use are prone to relapse, particularly if they have not developed alternative coping skills to deal with stressful events.

The plaintiff frequently develops a mistrust of health professionals that affects their future interactions with health services, as well as anxiety resulting from the realisation of potential ramifications for other areas of their life, such as future offspring in the case of genetic misdiagnoses. Obtaining subsequent medical reports can be emotionally onerous for the plaintiff because they are repeatedly required to recount their distressing experience, causing further distress, and if the doctor practises in the same field as the one who caused the injury the appointment can trigger unhappy memories.

While it is understandable that the content and opinions held within a report can be traumatic, medical experts and lawyers need to be cognisant that medical terminology and comments may compound the distress – for example, using words such as ‘in the worst category’ or ‘surgical castration’. Lawyers tend to use such language in pleadings to emphasise the level of harm that has occurred. While medical terminology is required to accurately convey a diagnosis and summarise clinical findings, medical professionals can be encouraged to clarify these terms to diminish the potential for distress; for instance, instead of using the term obesity, referring to a person’s body mass index, or referencing a staging system, for example, fourth-degree perineal tear.

There is scant literature pertaining to the emotional effects on patients when they are provided with their expert reports. A literature search did not find studies specifically pertaining to medicolegal reports, although there are studies on the emotional ramifications on patients having access to their clinical notes.^[4] One study found that 8 per cent of patients reported distress at reading their clinical notes and that patients with post-traumatic stress disorder experienced higher levels of negative emotional responses.^[5]

NOVUS ACTUS INTERVENIENS

As we are examining examples where a plaintiff has developed a new psychiatric injury upon reading expert evidence, it is important to consider where the liability for that new injury lies and whether the act of the solicitor sending an expert evidence report to the plaintiff could be construed to be a novus actus interveniens, which would render the solicitor liable for the new psychiatric harm.

Experienced solicitors are aware that plaintiffs in medical negligence cases tend to blame themselves and ruminate on the circumstances of the events in their case. Imagine a hypothetical case involving the death of a baby, where the expert evidence has confirmed that the hospital breached its duty of care due to its failure to recognise the fact that the mother’s obesity made the birth high risk, and that had more stringent monitoring been employed the baby would have survived. The mother is likely to become distressed when she reads the expert report and potentially attach undue significance to the contribution of her obesity to her baby’s death. She may blame herself and develop a serious psychiatric injury as a result. If the mother’s distress is so profound that she commits suicide, the question would arise whether the solicitor’s act of posting the report to the mother with only cursory advice and without a phone call could be considered an intervening act that broke the chain of causation.

While the solicitor’s conduct was unfortunate, it is unlikely to be regarded as gross negligence^[6] as it was not such egregious conduct that it destroyed the link between the hospital’s conduct in actually causing the death of the child and the development of the psychiatric condition.^[7] Even though a new psychiatric injury occurred at the later stage, it was inextricably linked to the original events.

While it is possible to establish a new and discrete psychiatric injury, which has occurred as a result of the mother being informed that her baby’s injuries and death were preventable and that they occurred due to negligence, this is unlikely to be related to a new breach of the duty care. Rather the original breach has been extended until such a time that it was discovered by the plaintiff. It is their discovery of the truth that causes their psychiatric injury, almost like a latent defect case.

The solicitor in the above example should have, however, recognised the plaintiff’s vulnerability, as she had just suffered a significant bereavement. It was likely that such a plaintiff would react badly to the expert report and it would have been good practice for the solicitor to have taken steps to protect the plaintiff from suffering further harm.

REDUCING THE RISK OF PSYCHIATRIC HARM

In a situation where a solicitor needs to inform the plaintiff about the opinions of the expert witnesses who have reviewed the case, it would be prudent for the solicitor to carefully read the expert report and consider how the plaintiff may react and whether the plaintiff is in fact in a fit state to read the report. If the solicitor is concerned about how the report will be received, the solicitor should take steps to reduce the risk of the plaintiff suffering further psychiatric harm. Such measures could include:

• arranging a meeting with the plaintiff and also counsel, either in person or via audio-visual technology, to explain the relevance of the report, instead of sending the actual report;

• drafting an advice to the plaintiff which summarises the relevant parts of the report, rather than sending the actual report;

• sending the report to the plaintiff’s treating general practitioner or psychologist and requesting that they go through the report with the plaintiff to ensure that the plaintiff is supported when she receives the information;

• sensitively dealing with any references or connection to obesity;

• explaining that the plaintiff’s weight made the birth higher risk, but the responsibility was on the hospital to take steps to mitigate the higher risk; and

• explaining that ‘obesity’ is a medical term, the meaning of which is different from common parlance, similar to the use of terms like ‘depression’ and ‘manic’.

The manner in which the contents of a report are relayed can cushion the effects on the plaintiff. This consideration is particularly relevant in the post-COVID era, when many lawyers and experts are working remotely. When working remotely (which can be necessary especially in rural locations), certain safeguards, such as ensuring that a plaintiff is advised to have a support person present and avoiding telephone calls in favour of video conferences, are prudent.

There is a tension within a plaintiff’s relationship with their solicitor, as although expert evidence can be upsetting, there is an obligation on the solicitor to properly apprise the plaintiff of their legal position. This is important if, for example, a plaintiff needs to provide instructions to the solicitor in relation to settlement offers at mediation. If a plaintiff does not understand their legal position, they will be unable to properly decide whether to accept a settlement offer or instruct their solicitor to run their case to a contested hearing. There is no blanket solution that resolves this tension, instead the solicitor should tread carefully and apply the various techniques suggested above to prepare and assist the plaintiff to deal with the expert evidence.

LIMITATION ISSUES

For cases that have limitation problems, the emergence of a new injury many years after the event can be useful from a legal perspective. The date of injury would be the date of the new psychiatric injury, but it would be linked with the original act or omission that caused the primary injury.^[8]

A plaintiff who is presented with new expert evidence many years after the original injury may start to grieve the counterfactual scenario and this process could lead to a separate psychiatric injury. For example, a plaintiff who was rendered sterile by a traumatic childbirth might have accepted this initially as bad luck. However, the knowledge that the injury was avoidable and that she could have had more children may cause the plaintiff significant distress and mean that she develops a major depressive disorder, where she mourns the family that could have been if the hospital had not been negligent. The damages that flow from the new psychiatric disorder would be unaffected by limitation concerns provided the original injury occurred within 12 years of the original act or omission that caused the primary injury (if the primary injury occurred in NSW), as the new psychiatric injury would not have been discoverable at an earlier point as it had not occurred.^[9]

CONCLUSION

Further research is required to summarily define the extent of the damage to a plaintiff following the receipt of expert evidence in their case. There are, nonetheless, ramifications for both medical and legal practice. Doctors undertaking medicolegal reports need to be conscious of the potential psychological impact of the report and their own role in perpetuating or exacerbating the injury by virtue of their demeanour, writing style and comments. This should not, however, prohibit a frank assessment of the injury.

Legal practitioners, who are also required to view medicolegal reports dispassionately, should be cognisant of their responsibility as authoritative guiding figures and the trust and reliance a plaintiff has on them. This gives rise to the importance of therapeutic jurisprudence as a necessary exploration for the benefit of both the practitioner and the plaintiff.

Jane Bulter is the principal solicitor at Remedy Law Group, practising in medical law. EMAIL jane@remedylaw.com.au.

Sharon Reutens is a psychiatrist in private practice, and PhD candidate with the school of Public Health, Faculty of Medicine, University of New South Wales. EMAIL drreutens@gmail.com.

Christopher Dandolo is a university student. EMAIL cidandolo@gmail.com.

^[1] D Wexler, ‘Therapeutic jurisprudence: An overview’, Thomas M Cooley Law Review, Vol. 17, 2000, 125.

^[2] LH Strasburger, ‘The litigant-patient: Mental health consequences of civil litigation’, Journal of the American Academy of Psychiatry and the Law, Vol. 27, No. 2, 1999, 203.

^[3] ME Tumelty, ‘Exploring the emotional burdens and impact of medical negligence litigation on the plaintiff and medical practitioner: Insights from Ireland’, Legal Studies, Vol. 41, No. 4, 2021, 633–56.

^[4] MA Bruno, JM Petscavage-Thomas, MJ Mohr et al, ‘The “open letter”: Radiologists' reports in the era of patient web portals’, Journal of the American College of Radiology, Vol. 11, No. 9, 2014, 863–7; LM Denneson, JI Chen, M Pisciotta et al, ‘Patients’ positive and negative responses to reading mental health clinical notes online’, Psychiatric Services, Vol. 69, No. 5, 2018, 593–6; A Shachak and R Shmuel, ‘The impact of electronic medical records on patient–doctor communication during consultation: A narrative literature review’, Journal of Evaluation in Clinical Practice, Vol. 15, No. 4, 2009, 641–9; T Wibe and L Slaughter, ‘Patients reading their health records – what emotional factors are involved?’, Studies in Health Technology and Informatics, Vol. 146: Connecting Health and Humans, IOS Press, 2009, 174–8.

^[5] Denneson et al, above note 4, 595.

^[6] Aquilina v NSW Insurance Ministerial Corporation (formerly GIO (NSW)) (1994) 157.

^[7] Wright v Cambridge Medical Group [2011] EWCA Civ 669; [2012] 3 WLR 1124.

^[8] Woods v Lowns (1995) 36 NSWLR 344.

^[9] Limitation Act 1969 (NSW), s50C(1)(b).