Antitrust attorneys

The Journal of the American Academy of Psychiatry Law 41:1:134-136 (March 2013), authors Dor Marie Arroyo-Carrero, MD, and Charles Dike, MD, MPH, MCRPsych, wrote a fascinating article regarding a Missouri wrongful death matter and the admissibility of psychiatric testimony. The crux of the issue involves the American Psychiatric Association’s (APA’s) “bible,” Diagnostics and Statistical Methods IV (DSM IV).

The importance of the DSM IV cannot be overstated. It is the sine qua non for much of prescriptive medicine and analysis for mental disorders today. When it was first published in 1952, it contained 102 diagnoses in 130 pages.  DSM II was published in 1968, listed 182 disorders, and was a svelte 134 pages long. By 1980, the DSM-III grew to 494 pages and listed 265 diagnostic categories. The current edition, DSM IV published in 1994, (allegedly soon to be replaced by the DSM V), has ballooned to 297 disorders in 886 pages.

Unless you’re of the opinion that as a nation we’ve nearly tripled the number of disorders from which we are suffering (an interpretation perhaps more common than I care to admit), it would appear that the APA has done two things: identified behaviors that in the past were not classified as aberrant, and discovered that certain broadly defined mental illnesses should be reclassified into many sub-categories.

Why is this important? Because the increase in categories has rendered “non-specific” aberrant behavior in limbo, often described nebulously as uncategorized. Unfortunately, there are courts that, if they are told that certain behavior cannot be categorized, conclude that the behavior must be, ipso facto, “normal” behavior.

This issue has confused some courts with respect to the admissibility of expert testimony. Case in point: 331 S.W.3d 299 (Mo. 2011).

In January 2005, the plaintiff underwent surgery to correct his spinal curvature. After surgery, he was paralyzed from the waste down and suffered from constant pain. The pain persisted even with a surgically implanted morphine pump, an antidepressant and two antianxiety medications. In July 2005, he commenced a lawsuit for medical negligence. Eight months later he committed suicide and his wife and daughter added an action for wrongful death.

In this new cause of action, the plaintiffs retained the services of a psychiatric expert who testified at his deposition that plaintiff’s suicide was the direct result of his pain and suffering from the allegedly botched surgery.

However, the psychiatrist could not identify a specific diagnosis within the DSM IV that fit the plaintiff’s mental illness.

The trial court refused to allow the plaintiff’s psychiatrist to testify because the court found that there was no factual or scientific basis to form an expert opinion. “[T]o be qualified as an expert, he needed to rely on facts and data that were reasonably relied on by experts in the field and the facts and data needed to be otherwise reasonably reliable” (Kivland, p 312).  In other words, the court held that as a result of the absence of a diagnosis from the DSM IV, the psychiatrist could not “be qualified as an expert”, because he was unable to “rely on facts and data that were reasonably relied on by experts” (Kivland, p 312).

On appeal, the Missouri Supreme Court reversed, stating that “recovery for negligence leading to the victim’s death by suicide should perhaps, in some circumstances, be had even absent proof of a specific mental disease . . . provided there is significant causal connection between the injury and the suicide” (Kivland, p 308). The nexus between the surgery and the suicide was a matter of fact that would be decided by a jury.

Had this case occurred while an earlier version of the DSM was in print, there is reason to believe that the plaintiff’s psychological disease would have been easily subsumed in the more general categories of the earlier edition.  Problem solved.

In no way am I suggesting that we return to the days of generic diagnoses. Quite the contrary, it is both impressive and enormously helpful to be able to identify with greater clarity the distinctions between one disorder and another.

The problem arises when, as in Kivland, we presume that behavior not specifically referenced in this rapidly expanding diagnostic bible is ipso facto not a disorder. In other words, the absence of a diagnosis does not mean a concomitant absence of a disorder.

Fortunately, the Missouri Supreme Court understood the benefits as well as the limitations of the DSM. But there remains a looming issue before us: will we soon be confronted with judicial requirements that each expert be hyper-focused on a niche subject and is thus unqualified to testify about a larger or related topic?

Choose your experts wisely. Having general knowledge hasn’t been sufficient for years. And it appears that the definition of “expert” is becoming more arcane than germane.

By: Ian Heller, Attorney at Law