The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (review)

Danuta Mendelson. The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock). Medico-Legal Series. Aldershot, U.K.: Ashgate, Dartmouth, 1998. xxi + 319 pp. $68.95.

The Interfaces of Medicine and Law chronicles the efforts of the legal systems of four English-speaking countries--Australia, the United Kingdom, Canada, and the United States--to develop statutes and procedures for dealing with cases of psychiatric injury and severe emotional distress caused by negligence. The book's subtitle refers to "nervous shock," and most of its chapters are concerned with disorders that are explained by this etiology. Litigation relating to nervous shock is based on a body of common law and the tort of negligence, whose origins Danuta Mendelson traces, in her first chapter, to the fourteenth century. The first candidate for nervous shock is a Count de Lordat who, in 1761, fell victim to a "palsy attended by unusual symptoms" after a riding accident (p. 26). A century later, John Erichsen diagnosed a similar syndrome, railway spine, and a similar etiology, in which a relatively minor shock was said to produce invisible pathological alterations in the spinal cord and brain stem. Erichsen's diagnosis marked the beginning of the golden age of posttraumatic litigation. His patients were the victims of railway accidents and, more significantly, of railway companies that might be held liable for compensation. Mendelson devotes two chapters to litigation involving nineteenth-century railway accidents, the efforts that were made to distinguish between nervous (organic) shock and mental (psychogenic) shock, and the medical controversies that emerged in connection with these cases. Here and throughout the book, her eye is fixed firmly upon the legal issues and debates surrounding nervous shock. Medical matters are discussed mainly in the context of their impact on litigation and, more especially, on case law relating to negligence.

Mendelson's carefully documented book includes an interesting section on the legal debate earlier in this century concerning diatheses. The issue at hand: if a man is negligently run over and then claims damages, can the defendant argue that the actual injury would have been less serious had it not been for the fact that the victim had an unusually thin skull or an unusually weak heart? Can the answer to this question be extended to cases in which the patient's predisposition consists of a "neurotic personality" and his injury is in the form of a mental shock? The courts adopted an "egg-shell skull" rule to address these questions. The rule: a plaintiff's predisposition to a psychiatric illness does not relieve the defendant of responsibility for negligent behavior, but it can be considered when awarding damages. This controversy was the tip of a juridical iceberg that grew exponentially as the twentieth century wore on. Given that a single traumatic experience is sufficient to produce a compensable disorder, what about multiple shocks or stressors of subtraumatic intensity? Can the act of witnessing a traumatic event be sufficient to produce a compensable disorder? And if this is so, what does "witnessing" imply? Must one be physically present at the time and place of the event, or is it enough to witness the event "live" on television, as in the case of the Hillsborough Stadium tragedy, where ninety-six soccer fans were crushed to death? Will any witness qualify for compensation, or must this person have a close relationship to the primary victim? How close? Is a cousin or an estranged spouse close enough?

In 1980, the American Psychiatric Association adopted the diagnostic category of Posttraumatic Stress Disorder (PTSD) as part of the official nosology. For the first time, psychiatrists and the courts had available a standardized classification, cut along strictly empiricist lines, and diagnosed with reasonable reliability. (Initially an American diagnosis, PTSD...