psychiatric–legal considerations in providing mental health assistance to disaster survivors

Psychiatr Clin N Am 27 (2004) 559–570

Psychiatric–legal considerations inproviding mental health assistance to

disaster survivors

Stuart B. Kleinman, MDa,*, Larry Stewart, Esqb

aColumbia University College of Physicians and Surgeons, 315 Central Park West,

Suite 9, New York, NY 10025, USAbAssociation of Trial Lawyers of America, 1050 31st Street NW, Washington, DC 20007, USA

Disasters frequently mobilize people to action. Their horror oftentransforms, even if only temporarily, observers into actors. Idly watchingothers suffer can be very distressing. Doctors both want to help, and oftenfeel compelled ethically to do so. Providing help may benefit both giver andrecipient, as (altruistic) activity may facilitate coping with fear-inducingevents.

Physicians who lend emergency assistance may assume obligations ofwhich they are not aware, or which in ‘‘the heat of battle’’ they do notappreciate adequately and inadvertently may transgress. The rules govern-ing operating in disasters generally are not taught in residencies, nor, as theyare not part of most psychiatrists’ regular practice, known by most. Lack ofknowledge of these rules ironically may result in the psychiatrist attemptingto assist those confronting peril, placing him/herself in another (ie, legal)type of danger.

Generally, one who takes steps to rescue an individual in peril and unableto adequately protect himself or herself, has a duty to act reasonably underthe circumstances. This means that the rescuer must act to protect the personbeing rescued during the course of the rescue and that the termination ofthe rescue not leave that person worse off than when the rescuer initiatedhis/her efforts. In some ways, this is akin to a custodial relationship, inwhich the rescuer has custody of the person being rescued during the time ofthe rescue.

If the rescuer is a medical professional, and the professional not onlyrescues the individual but also undertakes to render professional help to the

* Corresponding author.

E-mail address: [email protected] (S.B. Kleinman).

0193-953X/04/$ - see front matter � 2004 Elsevier Inc. All rights reserved.

doi:10.1016/j.psc.2004.03.008

mailto:[email protected]

560 S.B. Kleinman, L. Stewart / Psychiatr Clin N Am 27 (2004) 559–570

person being rescued, he or she should assume that by doing so he or shehas created a doctor–patient relationship. The tenure and nature of anintervention, even when brief and of limited scope, generally do not precludethe formation of such a relationship.

The legal rules regulating rescuer liability are state-based, and thereforecan vary from state-to-state. Because of concerns that liability exposurecould discourage medical emergency aid, beginning in 1959, most statesbegan enacting so-called ‘‘Good Samaritan’’ laws that provide somelimitations on liability for medical personnel and others who respond andrender aid in emergency circumstances. Typically, the ‘‘Good Samaritan’’laws only apply to the original medical emergency or treatment relatedthereto. Once the original emergency situation has been stabilized, ordinaryrules of liability apply. Likewise, the ‘‘Good Samaritan’’ laws also typicallydo not apply to treatment unrelated to an original emergency.

These laws vary in the classes of persons and type of aid covered, theduration of protection extended, and the standards required. The lattergenerally require that care be provided in ‘‘good faith,’’ and the laws donot cover acts that constitute gross negligence or reckless conduct. Forexample, the New York statute, applicable to the Sept. 11, 2001, terroristsattacks on the World Trade Center, Public Health Law § 3000-a, is typical.It provides immunity for injuries from first aid or emergency treatmentoutside of a hospital or doctors office so long as they were not the result ofgross negligence by the provider [1]. Additionally, many courts have heldthat the statutes do not apply to providers with a pre-existing duty torender care such as emergency medical technicians (EMTs) or emergencyroom doctors.

Apart from liability limitations under ‘‘Good Samaritan’’ laws, theformation of a doctor–patient relationship produces responsibility foradhering to generally recognized standards of care. Health care profes-sionals are obligated to exercise the level of care, skill, and treatment thatis recognized as professionally acceptable and appropriate. That obliga-tion generally is owed to the patient, but, in the case of mental healthprofessionals, this can extend to third parties. Contrary to the profession-based ethical requirement to maintain patient confidentially, in the leadingcase of Tarasoff versus Regents of the University of California [2], it washeld that mental health professionals also owe a duty to third parties whomthe patient might foreseeably harm. This decision has been accepted byvirtually all courts in the United States. There is, however, state-to-statevariation in its application. Some courts, for example, have required therebe a specific threat by the patient or explicit knowledge of the patient’sdanger before any duty arises. Additionally, some courts have limited dutyto third parties to only provide a warning, while others have held that thehealth care professional has to provide appropriate treatment, includingvoluntary or involuntary commitment. Most states have adopted laws whichin some way codify this duty [3,4].

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Description of methodologies for assisting disaster survivors is beyondthe scope of this article. Regardless of the type of methodology em-ployed, however, the intervening psychiatrist should be reasonably knowl-edgeable regarding its potential adverse effects. Talking interventions, aswell as medications, may have adverse effects. For example, studiesindicate that one commonly used technique, psychological debriefing,may not only not help prevent development of post-traumatic stress dis-order (PTSD), but also may adversely affect its recipients [5–7]. VanEmmerik et al write: ‘‘However, claims that single-session psychologicaldebriefing can prevent development of chronic negative psychologicalsequelae are empirically unwarranted’’ [8]. Additionally, Gist and Devillywrite:

The implications for practice are unequivocal. Calls for caution andrestraint have been heard from many responsible scientists and practi-tioners, and are underscored in conclusions from consensus panels and

empirically based practice guidelines that have recommended limitation orcontraindication. But despite direct and published warnings from well-established researchers in trauma response intervention, reports from New

York City after the attacks on the World Trade Center indicated that morethan 9000 purveyors of debriefing and other popularized interventions—more than three counselors for every person believed to have died in the

attack—swarmed there, advocating intervention for any person evenremotely connected to the tragedy [9].

Benzodiazepines, which are used commonly to relieve acute distress, havenot been demonstrated to be reliably effective in treating acute PTSD, andthey may exert negative effects [10,11]. Gelpin et al noted that benzodi-azepines may reduce anxiety ‘‘while barely protecting the patient fromdeveloping PTSD,’’ and they observed:

Neurophysiologic models such as memory consolidation and locusceruleus–norepinephrine activation have been cited in support of admin-

istering benzodiazepines to recent trauma survivors in an attempt toprevent PTSD. . .Moreover, recovery from trauma should not be equatedwith forgetting, but rather with adaptation, reappraisal, and learning.

Administered during the recovery phase, benzodiazepines may, in fact,interfere with such learning [12].

Patients, and if deemed clinically appropriate (ie, if there is concern thata patient’s mental state substantially impairs his or her ability to [further]process new information), significant others, should be warned of thepotential adverse effects of treatments proffered. The nature of a warningshould be determined by the situation in which treatment is offered (ie,demands of time and need and magnitude of potential negative impact). Forexample, in emergencies—when the need to act is immediate, or minimaltime is available because of the number of individuals requiring help—itgenerally will not be feasible to give a detailed, exhaustive warning.


Documentation

A chart should be created any time medical care is administered, anda doctor–patient relationship established. A chart’s complexity generallyneeds only to be commensurate with the nature of and context in whichtreatment is provided. It may be impractical, and even seem irrelevant, whenattempting to minister to overwhelmed individuals in the midst of over-whelming circumstances, to make a chart. Nevertheless, an earnest effortshould be made to document treatment given. Ideally, the nature oftreatment provided and the thinking processes employed in providing itshould be documented.

Important factors that influence trauma response—and potentially risk ofsuicide—may be unknowable (eg, genetic-based resilience) or unknown (eg,history and mode of coping with prior trauma or immediate pretraumastressors). Other factors may not exist yet, or have not developed fully yet(eg, death of initially injured loved ones, loss of job, or loss of home). Becausedisasters are dynamic, evolving events, and many internally and externallybased variables complexly interact to affect afflicted individuals’ mentalstates, risk of self-destructive behavior should be considered carefully. Insome tragic circumstances, individuals assessed as not imminently suicidalsubsequently commit suicide. Demonstration that a reasonable—as definedby context—conscientious analysis of an individual’s safety was performedat the time of contact can shield against claims of negligent care.

Family members may direct their hurt, particularly rage, at being unableto directly confront the forces (eg, terrorists or nature) responsible for theirloved one’s suffering, toward people, or entities most accessible to them, andseek redress for a loved one’s suicide from his or her treaters.

Confidentiality and the media

Observers of disasters commonly experience identification-based distress,particularly anxious feelings of powerlessness, and, especially if an event is,or at least perceived as, caused by man-made forces, rage. Such feelings,particularly the former, induce a thirst for information, and consequently,keen interest in media reports. Knowing can mitigate feelings of powerless-ness. The media can help both bystanders, by disseminating informationregarding unfolding events, and survivors, by educating others regardingpotential psychological responses to trauma. The public, however, can beoverdosed with information (ie, given too much data too quickly toassimilate), resulting in intensified anxiety, including reliving and reprocess-ing phenomena such as intrusive thoughts and images.

The media tend to tell a disaster story by focusing on individualexperiences. Consequently, mental health professionals commonly are askedspecific questions about specific individuals they have tended. Unlessexpressly granted permission to do so, interviewees should not provide


information reasonably likely to identify their patients. Although psychia-trists keenly appreciate the importance of maintaining confidentiality ofpatient communications, those with limited media experience do notnecessarily appreciate how tempting it may be to respond to media questions.Particularly when in acute rescuer mode, psychiatrists want to help in anyway they can, including by letting others know what has happened, andexplaining survivors’ suffering and how to help them. Psychiatrists, however,should be wary of ‘‘rescuer hubris,’’ (ie, a sense of being part of somethinghorrible, yet also unique and, thus, in a sense special). When of moderateintensity, this sentiment can fuel self-sacrifice. Feeling like a hero can induceheroic behavior. Unchecked heroic feelings, however, may result in self-serving, self-aggrandizing responses, and correspondent clouding of judg-ment and crossing of boundaries.

The lack of structure attendant disaster sites or situations also cancontribute to compromising of judgment regarding confidentiality. Theabsence of typical treatment parameters (eg, scheduled appointments,sessions in offices, team meetings) may be somewhat disorienting, especiallyif combined with physical–psychological exhaustion. Being approachedby the media under such circumstances may lead the usual circumspectpsychiatrist to uncharacteristically respond inappropriately volubly.

Despite confidentiality requirements, psychiatrists can interact with themedia in ways that benefit survivors and the general public. Detailedhypothetical or composite scenarios, for example, can be used to transformsuffering that seems too great to grasp other than abstractly, into somethingreal and empathetically comprehendible. Such comprehension may facilitatemore, and more effective, helping efforts.

Role maintenance

Psychiatrists should be aware that even providing casual advice maycreate legal responsibility. Because of the professional mantle they wear, anyadvice they give is liable to be construed as treatment. Once treatment isinitiated, a doctor–patient relationship is generated, and certain responsi-bility created. This responsibility generally includes reasonably attemptingto perform a reasonably comprehensive evaluation. The reasonableness ofthe type of evaluation conducted largely depends on the nature of, andcircumstances in which, a problem is addressed. If one is not in a position todo an appropriate evaluation, one should consider avoiding offering advice,or at least recognize the potential consequences of doing so. Followinga disaster, psychiatrists commonly are asked by friends and family membersof those they have never met what to do, for example for: a spouse who hasnot slept for a week, a daughter who will hardly leave the house, a bestfriend who won’t stop crying, or a brother who won’t stop talking aboutdeath.


One means of addressing such requests, which is helpful, but does notcreate a doctor–patient relationship, is to assist with triage (ie, providea referral). A humane and prudent rejoinder to those asking for help onbehalf of third parties is to (1) explain that the individual described deservesgood care, and that such care can best be provided only after he or she isevaluated thoroughly by an appropriate professional, and (2) offer a sitewhere such care may be available.

Compensation potentially available to disaster survivors

Normally, natural disasters do not invoke opportunities for compensa-tion beyond government assistance programs, which typically are limited inamount and duration. When, however, there are man-made causes fora disaster, there are usually multiple potential sources of compensation,many of which require appropriate documentation for eligibility and benefitpurposes. These sources range from private and employer insurance,including workers compensation, to government compensation and assis-tance programs, to traditional tort litigation. For example, many victims ofthe Sept. 11, 2001, terrorist attacks were entitled to workers compensationbenefits, had their own and employer-provided life and disability insurance,and were eligible for social security benefits, state crime victim programaid, and the federal Victims’ Compensation Program. Victims who weregovernment employees also were eligible for line-of-service death benefits.Additionally, all victims had the potential of pursuing private tort litigationagainst either the terrorists or, if they elected to forego the federal Victims’Compensation Program, the airlines, aircraft manufacturers, airport secu-rity firms, Port Authorities who owned and operated the airports fromwhich the airplanes departed, or the owners and lessees of the World TradeCenter.

Documentation of the nature, magnitude, and treatment of mental healthconditions stemming from a disaster is generally necessary for (potential)receipt of compensation.

Record keeping

Disasters, particularly when man-made, commonly have many legalramifications, including potentially even criminal charges, in which psy-chiatrists’ records may play a central role. It is in the interest of all par-ties, especially patients, that records not only accurately reflect patients’conditions, but do so in a manner that allows them to be used accurately innonmedical settings. Accurately recording initial entries, such as historicaldata and presenting complaints, is particularly important, as they not onlyare relied on by subsequent medical personnel, but tend to be repeatedverbatim in latter records.


Remembering/considering the following will facilitate the accuracy ofpatient records:

1. Diagnosis and disability are not synonymous. Lay people readingpsychiatric records may, for example, misinterpret the major in majordepression or traumatic in PTSD as indicating disability or globalimpairment. They may not recognize that identical diagnoses can varygreatly in magnitude, or that a condition can compromise somefunctions significantly, but not others. For example, an individual withPTSD might not be able to leave home alone at night and work a nightshift, but might be able to perform cognitive tasks competently ina reasonably secure setting. Conversely, the debilitating impact of someconditions may not be understood. For example, the potentiallyparalyzing impact of severe, generalized agoraphobia amongst thosewith panic disorder with agoraphobia may not be appreciated. Opti-mally, notes should describe signs and symptoms of a condition andspecify any ways it limits particular activities (eg, working, parenting,or functioning as a spouse).

Disability may be defined in varying ways. For example, certaindisability policies define it as an inability to perform the specific duties ofone’s occupation, the Social Security Administration defines it as aninability to perform substantial gainful employment, and juries usediffering constructions, based on jurors’ personal understanding,opposing attorneys, instructions from presiding judges, and opinionsof expert witnesses.

2. Diagnoses should be able to withstand scrutiny in the legal arena.Speculative or lax diagnosing potentially harms patient interest. Inclinical practice, strict adherence to the Diagnostic and StatisticalManual of Mental Disorders, Fourth Edition, Text Revision (DSMIV-TR) diagnostic system may not be vital. In legal settings, such is notso. If diagnoses are not DSM-based, their validity may be impugnedseverely, potentially minimizing a patient’s genuine trauma-induceddistress. Unless there are solid, explainable grounds for not makinga DSM diagnosis (eg, no DSM diagnosis adequately describes aparticular patient’s condition, so that being restricted to a DSM diag-nosis risks significant misunderstanding of the patient’s mental state),diagnoses should be DSM-based. When non-DSM diagnoses aremade, the focus in a legal setting may shift from an individual’s men-tal state to a somewhat abstract discussion/debate regarding howthe individual was diagnosed, including the meaning of the proffereddiagnosis. Additionally, jurors may come to question the acumen ofa treating psychiatrist and the accuracy of his or her conclusions, if themethodology used in diagnosing his or her patient is shown to beidiosyncratic or unreliable. The psychiatrist who has not used a DSMdiagnosis should expect to be asked if he or she recognizes the American


Psychiatric Association (APA)-produced DSM as a generally accepteddiagnostic text. If he or she responds affirmatively, he or she then willhave to defend having made a non-DSM diagnosis. If he or she testifieshe or she does not recognize it as a generally accepted diagnostic text, heor she will have to defend rejecting it.

When making a DSM diagnosis that may be examined in a legalsetting, it is imperative to carefully attend to its diagnostic criteria.Common problems include making diagnoses despite a patient’s signsand symptoms: not meeting, or at least not being documented asmeeting, the number of signs and symptoms required for a particularcondition, or not satisfying the duration criterion.

3. Causation may be understood very differently in clinical and legalsettings. The DSMIV-TR is neutral about cause of psychologicalconditions, except regarding acute stress disorder (ASD), PTSD, ad-justment disorder, and brief psychotic disorder with marked stressors(brief reactive psychosis), the very conditions (particularly PTSD) whichfrequently are of legal import, especially in tort litigation (The DSMIV-TR also references causation by substances, medical conditions, andhead trauma; the latter also may be legally relevant.). With disasters,there generally will be little question that an individual presenting fortreatment, assuming he or she actually was in the event, or was in itin the way he or she reports having been, suffered something satisfyingthe DSMIV-PTSD stressor criterion A-1. Further assuming that theindividual acutely presented for treatment with a genuine, pressingneed, he or she likely also experienced the event in a manner satisfyingPTSD stressor criterion A-2. The DSMIV-TR helps define eventssatisfying criterion A-1, using the term extreme traumatic stressor andproviding examples of such a stressor: ‘‘military combat, violent per-sonal assault (eg, sexual assault, physical attack, robbery, or mugging),being kidnapped, being taken hostage, terrorist attack, torture, incar-ceration as a prisoner of war or in a concentration camp, natural orman-made disasters, severe automobile accidents, or being diagnosedwith a life threatening illness [13].

In some circumstances, but not typically when an individual has been ina disaster, it is not clear whether an event satisfied PTSD stressor criterionA-1, particularly when what transpired is controverted and involved anunwitnessed event (eg, interpersonal encounter) without associated physicalinjuries. Should a treater become involved in a patient’s litigation, it shouldbe remembered that the standard employed in determining causation isgenerally different in legal and treating settings. For the purpose oftreatment, a psychiatrist generally—except prominently, for example, ininstances in which significant paranoia is suspected/present—accepts anindividual’s recitation of events as (basically) factually accurate, anddiagnosis without attempting to independently corroborate a patient’s


report (eg, by reviewing records such as police reports or depositiontestimony, or conducting collateral interviews). In legal settings, a diagnosisresting upon an uncorroborated report is potentially vulnerable. A treaterdiagnosing PTSD may not find it necessary to carefully ascertain exactlyhow his or her patient contemporaneously experienced the treatmentprecipitating event. The fact that the patient sought help may be deemedsufficient evidence that he or she experienced the event in a way whichfulfilled PTSD stressor criterion A-2. In legal settings, however, because thediagnosis of PTSD may influence jurors, whether an individual’s peri-eventmental state truly satisfied criterion A-2 may be scrutinized closely. Toestablish whether an individual’s mental state did so, techniques notcommonly used in treatment settings may be employed (eg, reviewingreports of witnesses, interviewing (disinterested) parties, or examiningcontemporaneous patient behaviors that may reveal how he or she per-ceived the event). A patient’s attorney may be a very helpful source ofcorroborative data. When performing such an assessment, one should not,however, consider data sources to be limited to those provided by anattorney, and one should make a reasonable effort to obtain neededinformation.

Determination of causation may be particularly complex when majordepression or panic disorder has been diagnosed following a traumaticevent. Clinically significant depression may result not only from a disasterevent itself, but also from its aftershocks (eg, financial problems froma downturn in the local economy following an earthquake or terroristattack). Assignment of percent responsibility of particular disaster generatedevents is not typically a fundamental treatment concern, but it is a commonlegal one. For example, the architecture or construction firm responsible forensuring a building complied with anti-earthquake codes may be responsiblefor depression arising from damage to a building that did not meet requiredspecifications, but not for depression from job loss because of regionaleconomic dislocation.

Compensation-related paperwork

Treating psychiatrists should consider that any information in a patient’schart or that they provide a third party may be employed in any disaster-related litigation. Descriptions of symptoms, especially those consistentlyverified by observation, are probably the least controvertible/problematicdata to provide third parties. Opinions beyond diagnosis, particularly if theybroach the issue of liability, are especially prone to be challenged. Editorialcomments, such as ‘‘the horribly negligent building construction producedMs. X’s terrible suffering,’’ or ‘‘the building’s unconscionably lax securitycaused Ms. Y’s sad impairment,’’ may reflect a treater’s alliance with his orher patient (or countertransference), but within a litigation setting, this may


be portrayed as evidence of bias and indication that the treater cannot giveaccurate, untainted testimony about his or her patient.

When completing paperwork for a third party, it is generally in a patient’sbest interest to be succinct, limiting responses to the questions specificallyasked, and avoiding speculation. The latter may be depicted as indicatingthat the treater lacks certainty, or is willing to offer opinions with limitedsupport, about his or her patient’s condition, a portrayal that maycontaminate perceptions of the treater’s well-grounded opinions or findings.Responsible, thoughtful (creative) speculation that constructively informstreatment may in a legal setting be understood erroneously, or misrepre-sented to bolster a particular position.

Report preparation

A patient’s attorney may ask a treater to prepare a written report. Doingso can create conflicts that may affect treatment adversely. For example,a treater may possess information that would embarrass the patient ifpublicly revealed or be problematic to the patient’s legal position. Provisionof such information may cause a patient to feel angry with, even betrayedby, the treater, and thereby strain the therapeutic alliance. Additionally, byoffering a report, a treater (significantly) increases the likelihood of beingcalled as a witness in a patient’s litigation. During associated proceedingssuch as trial or deposition, the treater may be asked questions that requirehim or her to discuss a patient’s mental state in a manner, or at a time,which may be countertherapeutic.

The therapeutic risks created by participation in legal proceedingspotentially may be avoided by splitting treatment and legal roles andreferring a patient to a forensic psychiatrist, whose responsibility would beto address psychiatric–legal questions. Such a split may help preservea treater’s therapeutic relationship [14].

Potential influence of litigation upon an individual’s mental state

and treatment

Individuals enmeshed in litigation often both consciously and uncon-sciously possess powerful incentives for distortedly representing their mentalstate. That does not mean that they generally or necessarily do so, but onlythat the reality is that some do so.

Treaters, because they: typically assume patients engage in treatmentfrom a desire to be helped, do not wish to potentially compromise theirefforts by allowing an adversarial attitude into their treatment relationship,or lack training in detecting malingering, generally do not assess malinger-ing, or do so in methodologically unsound ways.

The most common form of malingering by patients who pursue treatmentfollowing a traumatic event seems to be (intentional/conscious) exaggeration


of genuine problems, rather than fabrication of entirely nonexistent ones.Consequently, assuming he or she has not destroyed credibility orthoroughly alienated a jury, an individual potentially can receive compen-sation – for genuine damages, even while misrepresenting aspects of his orher condition. There are genuine reasons why an individual with authenticpost-traumatic problems may not seek treatment immediately/shortly fol-lowing a disaster. Malingering, should, nevertheless, be suspected in suchcircumstances.

Secondary gain (ie, unconscious, often self-defeating magnification of theseverity or prolongation of an underlying condition) produced by benefits(eg, disability payments) accruing from a genuine disorder, is often morecomplex, and perhaps more common, than malingering, and may contributeto an individual’s symptoms. Those injured as a result of others’ actualor perceived malfeasance, be it acts of commission or omission, typicallyfeel enraged and desire, although they may not acknowledge so to them-selves, a measure of revenge. Even when they do not feel enraged, they com-monly fear that the magnitude of their psychological injuries will notbe appreciated sufficiently and that they will, resultantly, be denied themonetary compensation they need, or to which they feel entitled. By un-consciously holding on to their symptoms, they support their claims forcompensation (and any request for punitive damages [ie, damages forgrossly negligent/malicious conduct]). Although the ‘‘greenback poultice’’(ie, the belief that slapping a wad of dollar bills upon a plaintiff’s head willcure him or her of any ills) long was ago demonstrated to be largelyinaccurate, an individual’s response to treatment within the context ofongoing litigation may be influenced substantially by secondary gain [15].

Summary

Disasters may produce special psychiatric needs requiring special treat-ment interventions. The circumstances attendant these needs also may createspecial psychiatric–legal considerations. These include treater liability,interaction, through the media, with the general public, and participation,be it direct or indirect, in legal proceedings. Appreciation of, and judiciousactions in conjunction with these considerations will enable the treater tobetter help patients while also safeguarding his or her own practice.

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