Good Grief!

On May 18, 2013, the DSM-5, the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders was published replacing the DSM-4 which was last revised in 2000.

The book is primarily used by the psychiatrists in defining and diagnosing mental disorders.

The DSM-5 has received extensive criticism from the psychiatric industry with the National Institute of Mental Health cautioning physicians to “use the DSM-5 cautiously, if at all”.

Dr. Allen Frances, who chaired the task force for the DSM-4, reported in Psychology Today that the “saddest moment” of his 45-year career was when the Board of Trustees of the American Psychiatric Association gave “its final approval to a deeply flawed DSM-5 containing many changes that seem clearly unsafe and scientifically unsound.”

That said, it is likely that diagnoses based on the DSM-5 will continue to be advanced in the context of medical legal reports. This could have several implications on personal injury litigation:

The DMS-5 contains 15 new diagnoses and has expanded the criteria for diagnosis of several existing disorders. Accordingly, there is the possibility that the widening of diagnostic disorders identified in the DSM-5 will lead to an increase in conditions for which remedy is sought from the courts.

It is trite to say that a necessary element of any tort claim is that a plaintiff suffers damage. In the context of personal injury litigation this may involve proof of a recognizable psychiatric illness. This requirement was described in obiter by Madam Justice McLachlin in the Supreme Court of Canada decision of Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 who, while stating that she would “not purport to define compensable injury exhaustively”, noting that “psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset” and that “minor and transient upsets do not constitute personal injury, and hence do not amount to damage” [at para. 9].

Courts often turn to expert evidence from psychiatrists in order to make a determination of whether a plaintiff suffers from a psychological disturbance sufficient to constitute personal injury. In this regard, the Diagnostic and Statistical Manual of Mental Disorders provides a framework for diagnosing psychiatric illnesses. In fact, the British Columbia Court of Appeal in Young v. Borzoni 2007 BCCA 16, commented that “[r]ecognizable psychiatric illnesses, such as are defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) for example, amount to visible and provable illnesses for the purposes of the tort of the intentional infliction of mental suffering” [at para. 37].

One change introduced in the DSM-5 is the removal of the two-month qualifying cut-off known as the bereavement exclusion, which exempted grief lasting under two months as a criterion upon which to base a diagnosis of depression in situations involving the death of a spouse or a loved one. This will make it much easier for a person grieving to be diagnosed with depression. In fact, a person could accordingly be diagnosed with Major Depressive Disorder almost immediately after the loss of a loved one.

The courts have long held that grief and mental anguish suffered by the family member of a deceased are non-compensable, except in a claim under fatal accidents legislation which allows for recovery or if they form part of a recognized psychiatric or emotional condition upon which a nervous shock claim can be founded [Rhodes Estate v. C.N.R. 1990 CanLII 5401 (BCCA), Devji v. District of Burnaby 1999 BCCA 599]. This may be subject to the wording of the particular provincial legislation.

It may well be that the reclassification under the DSM-5 elevates “psychological upset” to the level of “psychological disturbance” so that it is possible that a mental state which prior to May 2013 would not have given rise to a claim for damages will now be considered an injury.

The DSM-5 contains a “cautionary statement for forensic use” in which it comments that when “used appropriately, diagnoses and diagnostic information can assist legal decision makers in their determinations”. However, this cautionary statement also provides that “it is important to note that the definition of mental disorder included in the DSM-5 was developed to meet the needs of clinicians, public health professionals, and research investigators rather than all of the technical needs of the courts and legal professions”.

This caution is especially warranted given the controversy surrounding the validity of the DSM-5. As noted by the Ontario Court of Appeal in Healey v. Lakeridge Health Corporation 2011 ONCA 55, the classification of a recognizable psychiatric illness is “dependent upon shifting medical opinion” [at para. 66]. Accordingly, this controversy may impact the weight to be given to an expert report which purports to rely upon DSM-5 classifications in the diagnosis of a psychological injury.

The true impact of the DSM-5 on personal injury litigation remains to be seen; however, as psychiatrists begin to utilize the DSM-5 in their expert reports these issues will soon be before the courts.

James Dowler is a partner and Krista Prockiw is an associate counsel with Alexander Holburn Beaudin + Lang LLP (a member firm of the ARC Group Canada).