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"First, let me make it very clear, poor people aren't necessarily killers. Just because you happen to be not rich doesn't mean you're willing to kill."
Washington DC, 19 May, 2003

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10-12% of the US population suffers from a serious, diagnosable personality disorder which subtly impairs their judgement, relationships with others, and overall ability to cope. Lawyers, as a group, have not been trained to detect the presence of such disorders, and several lines of evidence suggest that an inordinate amount of ligitation is generated by and on behalf of individuals with these disorders; often with disastrous consequences for everyone involved.

Personality disorders are NOT psychotic disorders like schizophrenia or manic-depressive disorder, nor are they simply mild situational "disorders" that will respond to brief counseling. Personality Disorders involve an ingrained set of disordered traits that exhibit themselves in consistent behavior which causes serious difficulties for the patient and surrounding others, including litigants and attorneys.

Particularly problematic (and common) are two specific Personality Disorders which are subsumed under DSM-IV's unstable/acting-out group. This group includes Borderline Personality Disorder (BPD) and Anti-Social (formerly Psychopathic) Personality Disorder (ASPD). Individuals with these disorders are characterized by a manipulative, dramatic, and self-absorbed approach to coping with life and its problems. Both disorders are believed to stem from an interaction of genetics and childhood/adolescent experiences, and they are seen in all walks of life, across all ethnic and income groups, and in both the successful and the functionally debilitated. Incidence of Borderline Disorder is slightly higher in females, while Anti-Social Disorder is more common in males.

Borderline Personality Disorder

Individuals with Borderline Personality Disorder (BPD) are characterized by a common set of behavior and emotional patterns that include chronic rage, reckless and impulsive acts, a strong tendency to see people and events as all good vs. all bad, rapid mood reactivity (they love you one day, hate you, vengefully, the next), and pre-occupation with being abandoned. We frequently see frivolous malpractice actions filed by such people--after they inevitably become dissillusioned with their doctors (usually because they feel abandoned when the doctor expresses disapproval at their calling repeatedly, or otherwise fails to respond to their every demand). Then, the person with BPD focuses their life-long rage on the frequently surprised doctor.

Similarly, we sometimes see work site litigation in which an individual with BPD feels "abandoned" (for usually minor reasons) by a boss or co-worker and then copes with emotional pain by claiming to have been harrassed, abused, or even physically injured. All involved are shocked and surprised.

Borderlines are prone to self-damaging acts particuarly when feeling abandoned, and sometimes overdose or cut themselves, requiring hospitalization. They, then, vehemently blame their doctors and may take legal action to express (and cope with) their rage. The impulsivity of Borderlines (as well as their tendency toward substance abuse) makes them good candidates for injuries at work or in cars. Injuries allow them to blame and focus their rage on their company, their boss, the other driver, or the insurance carrier, all the while feeling fully entitled to be "taken care of" to their satisfacion.

Interestingly, our group's research at the University of Virginia shows quite clearly that BPD and similar patients are unlikely to respond to work rehab efforts, in part because their "injuries" (which may sometimes be real) provide solutions to too many of their pre-existing emotional, social, and occupational problems.

Individuals with BPD frequently fantasize sexual relationships with individuals to whom they have no real access: Hollywood stars, pro athletes, and, unfortunately, their physicians. If the Borderline individual, as is often the case, enters a "micro-psychotic" episode with delusions, or enters a dissociative state where memory becomes impaired or contaminated by dreams and fantasies, accusations of sexual contact with the physician can occur. It is worth noting that this highly suggestable group of patients has an extremely high rate of "recovered memories" of childhood sexual and physical abuse.

The Classic Sociopath

Individuals with Anti-Social Personality Disorder (ASPD) are characterized by a flagrant disregard for the rights or well being of others and will violate rules and laws (with varying degrees of caution) in order to have their needs met. Traditional conceptions of ASPD patients described them as having no conscience and no true loyalties to anything or anyone but themselves. While most ASPDs have the outward appearance of normality or even social skillfullness, others have overtly hostile dispositions. Some ASPDs are very bright and able to fake or engineer accidental injuries in order to gain money and control over others, especially others who have exerted control over them (e.g. their bosses or their companies). All ASPD individuals manipulate situations in which they find themselves in order to maximize any benefit which might accrue. Common examples include exaggeration of injuries in order to obtain compensation, avoid work and/or obtain narcotic drugs.

Problems for the Defense Attorney

A major problem faced by defense counsel when dealing with a case involving an individual with BPD is that of causation. Did the current injuries stem from an accident or event being litigated, or did the "injuries" or symptoms stem from a pre-existing problem associated with the personality disorder? The concept of the "egg shell plaintiff" comes into play here: was the plaintiff, due to having BPD, more prone to injuries from the event(s) being litigated? If so, was the defendent responsible for knowing about the plaintiff's difficulties (e.g. in a med/mal or work stress case)? These are basically issues of causation which become extremely complicated in cases where the plaintiff has a severe personality disorder.

Another complication for the defense lies in the fact that patients with BPD tend to have chaotic and dysfunctional lives and "life stories" which tend to elicit sympathy from juries. The defense will need to walk a thin line between articulating the plaintiff's characterologic role in his/her difficulties and avoiding contributing to the jury's perception of the person as a victim of life itself. If not careful, the defense attorney, in clearly presenting the BPD plaintiff's pre-existing "difficulties in living" and how they manifest themself in the present (and possibly become confounded with claimed injuries), may encourage the jury to take pity on the plaintiff and make an effort to "give him/her the benefit of doubt." For this reason, the articulation of the BPD plaintiff's history and its relation to current claims is usually best left to the psychiatric expert witness.

Problems for the Plaintiff Attorney

Obviously, plaintiff attorneys should think twice before taking a case if the plaintiff's history is strongly suggestive of serious Axis II pathology such as BPD, AND the injuries in the complaint appear to be inextricably intertwined with this pathology. Unfortunately, few attorneys have the skills to reliably detect BPD, and it is not cost effective to have every "suspicious" potential client thoroughly evaluated. However, the astute attorney might hesitate and re-evaluate any case where any of the following suggest relatedness to the current issue of complaint: 1) the plaintiff has a long history of jumping in and out of work and other relationships, and consistently exhibits rage and blaming toward their former co-workers, bosses, doctors or others; 2) the plaintiff has a long history of failed suicide attempts (e.g. overdosing, self cutting) which followed conflicts with lovers, co-workers, or health care providers; 3) the plaintiff has a consistent history of impulsive acts such as sexual promiscuity, running up large bills and failing to pay them off, or reckless driving, particularly under the influence of alcohol or drugs;

Another problem faced by the plaintiff attorney, if the client has BPD or ASPD, is that there may well be information about the person's past which is not forthcoming, but will make a strong impact on the case once it is presented in court. An example is a case where a plaintiff had a long history of impulsive but suble alcohol abuse, and failed to report this (including records of brief treatment) to the attorney who was representing her in a personal injury case. The alleged damages included chronic pain, depression and alcohol abuse "due to" pain stemming from injuries sustained in a car accident. When the prior, unreported alcohol abuse was brought out in court by an astute defense attorney, the plaintiff's case was lost. Had the plaintiff attorney or his expert dug deeply enough and known about the prior history, it could have been presented quite differently, and perhaps resulted in a different outcome.

Other problems faced by the plaintiff attorney with clients with BPD and ASPD include: the client tending to change their story with a suprising degree of fluidity, determining which injuries actually stem from the litigated event vs. prior difficulties, and coping with a client who may become extremely resentful if the attorney attempts to maintain an appropriate degree of objecivity in the case (the BPD plaintiff will accuse the attorney of "turning against" them in such cases). The plaintiff attorney should select a psychiatric expert who can not only evaluate the patient for Axis II and tease out past vs. current claim related problems, but can also provide consultative guidance on how to effectively handle situations such as these once they arise.

Summary and Conclusions

So, some individuals with personality disorders may try to manipulate the legal system (consciously or unconsciously) for their own emotional or financial gain. Some may use old, pre-existing physical and psychiatric symptoms as a basis for coping with current problems or achieving gain; others might develop pain or other legally significant symptoms as a way of coping with perceived abandonment, interpersonal stress, or as an expression of their intermittent rage.

On the other hand, there are unfortunate patients with BPD who receive REAL, new injuries that should be compensable. New injuries will thus need to be clearly and definitively separated out from old problems and long term difficulties that arise from BPD and not form the injurious event related to the claim. If the "new" compensable injuries and symptoms are not separated from the old characterological symptoms, and the court is not educated about the distinction thereof, the defense may have a literal heyday by convincingly making ALL of the plaintiff's symptoms appear to stem from pre-injury (non-compensable) events.

It is, thus, imperative that the presence of a personality disorder be detected and validated in order to assess a) the extent to which current complaints and disabilities are an outgrowth of pre-existing conditions vs. claim related injuries, b) whether complaints, accusations, and disabilities are a function of malingering, manipulative exaggeration, or outright falsification, and c) whether the plaintiff's characeriological condition (e.g. BPD) predisposes him/her to particularly severe sequelae of actual sustained injuries (e.g. does BPD worsen the plaintiff's prognosis for recovery from an injury?).

A specialized Independent Medical Examination (IME) is required to detect and validate the presence and influence of any of the DSM-IV Personality Disorders. This evaluation consists of a history and physical exam with distraction (to test for consistency of patient reports and assess for conscious symptom/sign generation), computerized psychological testing with subtle instruments with validity scales, an in-depth Psychiatric/Psychosocial history, and a structured Psychiatric Interview using rigorous DSM-IV criteria for diagnosis. If a personality disorder diagnosis is obtained, and it is judged to have a significant impact upon litigation issues, this information is invaluable to the court in its pursuit of a just solution to the problem being litigated. Our experience is that such information, when clearly articulated, usually results in rapid settlement of cases which would otherwise have tied up countless hours and resources.

References

  * Dr. Workman is Associate Professor at the Medical University of South Carolina and affiliated with Forensic Medicine Associates, Inc. He can be reached via internet at http://pages.prodigy.com/FORENSICS or by phone at 843-554-0557.

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