The following paper by Dr. Cochrane was published in the trial lawyers of B.C. journal, The Verdict, in September, 2008.

PSYCHOLOGY AND THE DETERMINATION OF DAMAGES:
WHAT WE KNOW AND WHAT WE KNOW THAT ISN'T SO

By
Dr. Gordon Cochrane, R. Psych.

Lawyers are frequently called upon to predict the functional future of their clients. In personal injury law, malpractice law, divorce and family law, employment law and criminal law, lawyers must gather comprehensive and accurate information so they can determine the full range of damages suffered by each of their clients; then, they must project the probable impact of these damages into each client's future. Psychological factors frequently constitute key pieces of a client's damages-mosaic and therefore, lawyers need to have confidence in the validity of the psychological information that goes into their projections.

Psychology is about people and the intriguing ways we live our lives. Consequently, most people are interested in psychology and most feel that they know a lot about psychology. However, as Will Rogers once quipped:

"Often it's not what we don't know that causes problems; it's what we know that isn't so that causes problems."

This paper discusses common misconceptions about psychology and illustrates how these misconceptions can influence the assessment of short term and long-term damages in a variety of legal contexts.

Psychology and Damages: What We Know That Isn't So

If a psychological test is widely used, it must be valid.

The information derived from psychological testing is frequently used by lawyers as they determine damages and formulate a recovery prognosis for their clients. If the profiles and reports derived from psychological tests didn't have an impact on the lives of your clients, it wouldn't matter whether these tests actually measure what the test publishers claim they measure. When there is agreement among the test experts that a specific psychological test does measure what the manual says it measures, the test is deemed to have construct validity. Whereas construct validity is essential for any psychological test, the test must also have a standardized base to be truly valid. A standardized base makes it possible to compare your client's responses to those of large samples of people who actually have the disorders being measured. For example, your client either responds to the test items in the same way as the sample of people who are definitely depressed or anxious or who struggle with some other DSM-1V-TR disorder, or they respond differently. If they respond differently, they do not have the disorder being assessed. Instruments that lack construct validity also, by definition, lack a standardized base. Consequently, if your clients have been given an invalid test, their responses are profiled on the basis of some unsubstantiated and highly contested theory. An example of this type of measure is the Myers-Briggs Type Indicator.

Employment lawyers will be interested in the Myers-Briggs Type Indicator because it is the most widely used test in the corporate world. It is frequently used in hiring, placement, promotion and termination decisions yet it has no construct validity whatsoever and without construct validity it can't have a standardized base.

Like the Myers-Briggs Type Indicator, personality tests have no place in any form of psychological assessment or employment decision-making. No personality test has construct validity or an acceptable standardized base because there is no agreed upon definition of personality. Subsequently, one test attempts to measure one theoretical form of personality while others attempt to measure different forms of personality. Sadly, some health professionals sometimes seem to forget their graduate training in research design, statistics and testing and they include personality testing in our formal assessment process. If one of your clients undergoes a psychological assessment that includes a measure of personality, you definitely have grounds to challenge the assessment.

In employment law, it is probably a good idea to find out what assessment measures were used in the hiring, promotion or termination decisions made by your client's employer. In their 2008 paper, High stakes testing in higher education and employment: Appraising the evidence for validity and fairness, published in The American Psychologist, Sackett et al conclude that tests designed to measure specific learned abilities for specific job tasks are valid whereas character, personality or type assessments are neither valid or fair.¹ It is also worth noting that some employment-testing providers choose aptitude tests and other tests for their brevity rather than their validity. Brevity reduces validity. Brevity is for the convenience of the person scoring the instrument; validity is for the benefit of your client.

It should go without saying that projective tests such as the Rorschach ink blot test, which is still used by some health professionals, are completely invalid. Those who still use this instrument are probably among those who also believe that uncorroborated memory, hypnosis-enhanced memory, hand-writing analysis, dream analysis and lie-detector tests are valid. Of course, none of these are valid.^2,3

By going on-line and typing in Buros Mental Measurement Yearbook and then typing in Myers-Briggs Type Indicator, or the title of any psychological test of interest, you can read the professional reviews. As you will see, the Myers-Briggs Type Indicator and all personality tests are given consistently negative reviews for a multitude of appropriate reasons.⁴

The Minnesota Multiphasic Personality Inventory-2 is a personality test

Most personal injury lawyers, family and divorce lawyers, employment lawyers, malpractice lawyers and criminal lawyers are familiar with the MMPI-2 and its role in determining psychological damages. The MMPI-2 is, according to separate reviews by A.P. Archer and D.S. Nichols in the 2004 edition of Buros Mental Measurement Yearbook, the most valid and reliable measure of mental health currently available. No competing psychological assessment device has stronger credentials for clinical assessment. In spite of its name, the MMPI-2 is most definitely not a personality test. The word personality in the title obviously creates some confusion. It is possible that the University of Minnesota has considered alleviating the confusion by changing the name of their MMPI-2 to something like MMHM for Minnesota Multiphasic Mental Health Measure but the MMPI-2 has been around a long time and changing the name at this point could add new problems. When Hathaway and McKinely originally developed the MMPI, almost 70 years ago, they did not anticipate a problem with the word personality and when revisions were undertaken over the years, a name change was not seriously considered.

The MMPI-2 is based on the psychological disorders described in the Diagnostic and Statistical Manual of Mental Disorders commonly known as the DSM-1V-TR. It has validity scales that reliably screen for honesty of response, malingering, and inconsistent or random responding. It has ten clinical scales and three sub scales. The subscales currently do not have the high degree of validity and reliability found in the clinical scales.

The responses of the person taking the 567-item MMPI-2 are compared to the responses of the standardized sample for each clinical scale. If, for example, the person taking the MMPI-2 responds to the depression scale items in the same general way as the depressed individuals in the sample group, the person's score on the depression scale will be elevated. If his or her score on the depression scale is above the 65th t, the test taker is given a diagnosis of depression and the higher the t-score the greater the severity of the depression.

If a person has an elevated score on one scale, it is not uncommon for other scales to also be elevated. For example, anxiety and depression are often related. Chronic anxiety, or anything that is chronic and negative for that matter, eventually becomes depressing. Your client's MMPI-2 profile can be a key factor in determining both the damages and the treatment required to address these damages. However, even though the MMPI-2 is justifiably well respected, it is not infallible. When the health professional scores your client's answer sheet, he or she enters the raw scores on a profile sheet that shows whether your client's responses on one or more of the ten clinical scales falls below the 65th t, which is the normal range, or above the 65th t. If your client does have one or more elevated scales, the health professional then looks at a fairly extensive list of symptoms for each of the clinical scales. No individual is likely to exhibit all of the symptoms for a given clinical scale and the health professional must determine, usually through a clinical interview, which symptoms apply to your client and which do not. Also, if more than one scale is elevated, the health professional will need to determine if there is an interaction effect among the symptoms on the elevated scales. It is evident that a psychological assessment that includes a standardized instrument such as the MMPI-2 is superior to an assessment based on a clinical interview and professional opinion or an assessment based on a clinical interview and invalid assessment instruments.

When determining psychotherapy costs for your clients, it is easy to identify the type of psychotherapy and the number of sessions needed

When determining the psychological damages suffered by your client, a valid diagnosis is important but an awareness of probable psychotherapy outcomes is also important. Psychotherapy is expensive and the number of sessions required for the recovery of any given individual can be difficult to predict, in spite of the brief therapies frequently recommended by insurance companies.

Whereas research in psychology has identified therapy models that are effective for specific problems, the term, "effective" can be misleading. In psychotherapy research the term effective means that a particular therapy model has generated better positive results for some of the subjects than the results found in a control group whose members receive no therapy of any kind. Effective does not mean that the therapy model in question works in the same manner as an antibiotic or other form of medical treatment. It does not mean, for example, that everyone who utilizes Cognitive Behavioral Therapy for depression gets better and stays better. Even though research confirms the value of CBT for depression, a recent meta-review of 1,880 depressed people who received CBT was undertaken by Vittengl, Clark, Dunn and Jarrett and published in the Journal of Consulting and Clinical Psychology in June, 2007.⁵ Their study showed that one year after therapy 29% of those who had improved had relapsed and after two years, 54% of the original group had relapsed. However, they found that the relapse rates for those who were given antidepressants instead of CBT were even worse. Another large study led by Irving Kirsch at the University of Hull in England was completed in February, 2008 and shows that antidepressants were not significantly better than a placebo for treating people who suffered from situational depression. Situational depression arises from difficult-to-resolve, chronically negative situations in life that anyone would eventually find depressing.

These outcomes may seem gloomy but they simply reflect some psychotherapy realities. People expend differing levels of effort in therapy; they have differing levels of self-efficacy and they experience differing degrees and durations of depression and anxiety. Anything that threatens a person's livelihood generates anxiety. The combination of the original problem, such as a serious injury, plus the anxiety arising from that problem often leads to depression. Many depressed people live with very difficult negative situations such as physical limitations resulting from their injuries, injury-related pain and economic worries about their ability to earn a living in the future. These factors illustrate that disorders such as depression and anxiety are not the same for everyone and subsequently, the odds for a positive outcome and the amount of psychotherapy needed are not the same for everyone.

Psychotherapy models need to be based on scientific research and psychotherapy research is science but it is not the same as the science involved in testing surgical procedures, medications, chemical interactions, metallurgy and other constants. Psychotherapy is about people and people are definitely not constants. We perceive reality. We worry. We have feelings. We subjectively and selectively remember. We replace ambiguities with attributed meaning. We avoid and we deny. In fact, we are so subjective and so entrenched in our perceived realities that it is sometimes surprising that anyone makes real and lasting personal changes. In reality, many people don't, but many do.

Psychotherapy research then does not demonstrate whether a therapeutic approach works or does not work nor does it show that a given method works for all people in a given time period. With an antibiotic treatment it is appropriate to ask, does this treatment work? In psychotherapy, asking if a therapeutic response works is like asking if education works. The answer to questions about the effectiveness of a therapeutic treatment model over a given period of time for a specific individual clearly is; it depends. It depends on many factors. Psychotherapy helps many people but there is no therapeutic ideal and certainly there is no specific time-frame within which your client will recover. Psychotherapy is about helping human beings deal with life and all human beings, including your clients, are creative, active-information-processing beings for whom reality is unique.

Do not succumb to declarations, usually based on selected information or misinformation, that your client will certainly recover and will do so within a specified time. That kind of certainty is simply not possible.

The occurrence, severity and duration of Posttraumatic Stress Disorder can reliably predicted

Since the author's article on PTSD was published in the Ontario Trial Lawyers Association journal, The Litigator in 2006, a number of additional PTSD studies have been published. Some of these will be of particular interest to personal injury lawyers. Earlier research⁶ showed that the probability of a person developing PTSD after a potentially traumatizing experience is increased by prior adverse experiences. Another study⁷ reported that some sufferers of PTSD recover within six months and others within two years but approximately one fifth of them never fully recover. Yet another study with 5,877 subjects⁸ found that 50% of the PTSD sufferers also succumbed to substance abuse and depression. More recently, a study by Breslau and Anthony⁹ found that women who have been assaulted are sensitized to the PTSD effects of subsequent traumatic events of lesser magnitude. Bonanno et al¹⁰ found that predicting who will and who won't suffer PTSD following a potentially traumatizing event is very difficult because a mosaic of factors, including the creative imaginations of the persons involved, come into play. Bryant and Guthrie¹¹ added to this mosaic with their finding that an individual's pre-trauma self-appraisal and self-efficacy are significant predictors of PTSD onset, severity and recovery.

Victims of a MVA, assault or other trauma-inducing situation often comment on their new realization of how quickly life can change. Healthy denial allows all of us to live our lives with a sense of general safety, personal control and a predictable personal future. When these perceptions are shaken by a serious accident or assault, victims are faced with a new reality that makes it difficult for them to sustain their day-to-day faith that all is well. They often feel vulnerable to real and imagined threats that seem more evident following their traumatizing experience than they were before the experience. When they are told by well-meaning professionals and concerned family members that there is a low statistical probability that they will suffer further harm, they are not convinced. They have been harmed and experience trumps statistics. These individuals have looked into the abyss and they now appreciate the precariousness of our existence. Some withdraw from perceived risks and their quest for safety can significantly reduce the quality of their life.¹² The perceptions of the victim make it very difficult to predict how long it will take for a the traumatized individual to feel strong enough and confident enough to begin the therapeutic process, consisting of CBT plus exposure, let alone predict how long it will take this individual to recover.

Personal injury lawyers have no illusions about the benevolence of insurance companies and will therefore appreciate the following illustration of why it is important to ensure that the correct diagnostic terms are used when determining your client's psychological damages. The author was recently contacted by a health professional who is employed by an insurance company. The client covered by the insurance company had been very badly injured in a fall. This client initially experienced a wide range of severe PTSD symptoms but had gradually reduced the symptom cluster to recurring nightmares about falling and severe panic reactions to heights. The insurance company health professional strongly and repeatedly pressured the author to shift the diagnosis from PTSD to a phobia. Of course, this insurance company does not cover phobias. This diagnosis shift did not happen.

Physicians are well trained in psychotherapy and psychotherapy research

Respectfully, physicians are trained and licensed in the practice of medicine, not the practice of psychology. They are trained in the medical model of diagnosis and focused treatment. However, when applied to psychological problems such as situational depression and the spectrum of anxiety disorders that include PTSD, the medical model converts psycho-emotional problems into illnesses for which specific, but often erroneous, time-limited treatments are prescribed. Pharmaceutical companies and insurance companies embrace the medical model because it benefits them. It does not always benefit your clients because declared recovery times do not always correlate highly with actual recovery times.

Conclusions

On behalf of your clients, be cautious about the "what we know that isn't so" aspect of professional psychology. Your clients, like all of us, are creative, active, information-processing beings for whom reality is unique. Subsequently, if a client of yours has experienced an assault, accident, malpractice or other traumatizing situation, the nature, severity and duration of your client's damages will also be unique. Insist on validity. Insist that only valid assessment tools be used in the diagnostic process. Insist that your client's prognosis be based on the full range of researched outcome probabilities rather than an arbitrarily determined time-frame. Psychology research is conducted with groups of people and the outcomes are expressed as probabilities. Your client is not a group. Your client is an individual who may or may not reflect the group norm. Psychotherapy will definitely help many of your clients but it must be adapted to the unique reality of each individual. Therefore, when developing your proposal for psychological damages, give your clients enough time to engage and utilize the recovery tools that valid psychotherapy offers.

References

1. Sackett, P.R.; Borneman, M.J.; Connelly, B.S. (2008) High stakes testing in higher education and employment: Appraising the evidence for validity and fairness. American Psychologist, Vol. 63, 4, 215-227.
2. Cochrane, G.J. (2002) Psychology and the law: What's credible, what's questionable and what's junk? The Advocate, Vol. 60, Part 6, 871-876.
3. Cochrane, G. J. (2001) Psychology, Expert Testimony and the Law. Washington State Bar News, Spring, 25-32.
4. Cochrane, G. J. (2004) Psychology and the law: Assessments and common myths. The Verdict. Issue 102, 60-62.
5. Vittengl, J.R.; Clark, L.A.; Dunn, T.W.; Jarrett, R.B. (2007) Reducing relapse and recurrence in unipolar depression: A comparative meta-analysis of cognitive behavioural therapy's effects. Journal of Consulting and Clinical Psychology. Vol. 75, 3, 475-488.
6. Brewin, C.R. (2001) A cognitive neuroscience account of posttraumatic stress disorder and its treatment. Behavior Research and Therapy, 39 (4), 373-393.
7. Morgan, L.; Scourfield, J.; Williams, D.; Jasper, A.; Lewis, G. (2003). The aberfam disaster: 33-year follow-up of survivors. British Journal of Psychiatry, 182, 532-536.
8. Kessler, R. C.; Sonnega, A.; Bromet, E.; Hughes, M.; Nelson, C.B. (1995). Posttraumatic stress disorder in the National Comoribidity Survey. Archives of General Psychiatry, 52, 1048-1060.
9. Breslau, N.; Anthony, J. C. (2007) Gender differences in the sensitivity to posttraumatic stress disorder: An epidemiological study of urban young adults. Journal of Abnormal Psychology, Vol. 116, 3, 607-611.
10. Bonnano, G. A.; Galea, S.; Bucciarelli, A.; Vlaho, D. (2007) What predicts psychological resilience after disaster? The role of demographics, resources and life stress. Journal of Consulting and Clinical Psychology. Vol. 75, 5, 671-682.
11. Bryant, R. A.; Guthrie, R. M. (2007) Maladaptive self appraisals before trauma exposure predict posttraumatic stress disorder. Journal of Consulting and Clinical Psychology, Vol. 75, 5, 812-815.