Category Archives: Traumatic Disorders

The Use of Medical Testimony in Personal Injury Cases

Coal-miner Thomas Brennan appeared before the Court of Session in Edinburgh in 1955 to seek £3,000 reparation from his employer, the National Coal Board (NCB), whom he claimed had failed to adequately protect his safety. Brennan referred to an incident that had occurred in a coal-mine five years previously. On 10th February 1950, Brennan had been proceeding to his place of work via an underground roadway owned and operated by the NCB. Yet the roadway was slippery and steep, according to Brennan, and it was because of this, he claimed, that he fell with such force that he sustained a hernia. He further averred that he had developed traumatic neurasthenia following the accident, characterised, according to Brennan’s GP, by nervousness, insomnia, hand tremors and dizziness. The NCB disputed Brennan’s account, arguing that there were inconsistencies in the claimant’s story and that his hernia had, in fact, pre-dated his fall by around a decade.

Cases like this are central to my PhD. I focus on the medico-legal sequelae of traumatic accidents in twentieth-century Britain, pivotal to which are concepts like traumatic neurasthenia, neurosis or hysteria — labels which, though marked by considerable semantic slippage, were normally used in this period to refer to the sequelae of industrial or road traffic accidents by the numerous medical professionals who treated, examined and assessed accident-victims. Such accidents typically produced physical injuries of a mild or moderate nature, it was argued, yet also vague and long-lasting symptoms like headaches, dizziness, mood changes, restlessness, sleeplessness, gastric disturbance, social withdrawal or lack of appetite, libido or concentration. Often, these symptoms were causally attributed by psychiatrists, neurologists, orthopaedic surgeons and general practitioners to the systems of compensation and insurance made prevalent by private motorcar ownership and heavy industry. The thinking ran that post-accident symptoms, whilst often understandable, were unconsciously exaggerated or prolonged by the sufferer through the effort required to make and sustain a claim for compensation. As one neurologist commented in the 1940s: ‘The cumbersome machinery [of compensation] itself involves endless delays during which the workman’s symptoms, originally a “traumatic neurosis,” become transformed into a “condition neurosis” in the sustained effort required in a fight for compensation.’[1]

One theme that I am particularly interested in is the use of expert medical testimony in personal injury cases, and especially when claimants allege long-term traumatic sequelae. Brennan’s trial had no shortage of medical testimony, including from his GP, two psychiatrists and the NCB’s own doctor. Much of it related to whether or not Brennan had a hernia prior to his fall. But doctors were also asked to account for the claimant’s psychological sequelae. His GP, Dr. Robert Aitken, explained:

During the time [Brennan] was coming to me while he was still at work he was developing a condition — a hysterical condition. It was a form of traumatic hysteria. He said he was dizzy but we could find nothing wrong with his brain. He said he felt the skin on his legs and thigh was dead and he made all sorts of complaints for which we could find no organic cause. This condition is described as traumatic neurasthenia. I found no physical cause for this condition. […] I think that the man’s troubles are, as we say, upstairs. I am satisfied that the man’s condition prevented him from doing his work. There is no doubt about that.[2]

 

The involvement of medical experts in civil litigation has aroused little attention from historians and legal scholars, most of whom are more interested in criminal than civil law (or in PTSD and shell-shock than whiplash and traumatic neurosis). Those few studies to examine personal injury litigation have related the involvement of expert medical witnesses to the desire, on the part of insurers, to identify malingers, or else to the need for courts to deduce any motives on the part of the claimant.[3]

These arguments have some merit, but I think could be extended, following Jane F. Thrailkill’s suggestion, to include further reference to the unconscious: for, from the nineteenth century onwards, physicians argued they had privileged insight into the claimant’s unconscious, and could use this to illuminate not only motive but also offer an explanation of how the claimant’s post-accident sequelae had developed.[4] This assisted courts in several ways, not least in assessing the severity of the claimant’s disability. But medical testimony was also useful, I want to suggest, because of the perceived imperfections of the claimant’s memory.

I think it’s helpful at this stage to introduce a conceptual framework to understand the relationship between courts and memory. I want to suggest that, at least in personal injury cases, the modus operandi of the court was to act as a memory-retrieving machine: through the reconstruction of the accident and its sequelae, civil courts activated and acted as conduit for multiple forms of recollection — from claimants and their relatives, from eyewitnesses of the original accident and from expert medical witnesses who had examined the claimant. In effect, the court’s job was to contract different rhythms and durations of temporality into the one, single, homogenous time of the court. Yet this machinic process was subject, like the operation of any machine, to breakdown, interruption or atrophy depending on how its various components interacted. Judge or jury could be dissuaded by medical testimony if it contradicted their established ways of thinking about temporality or causality. As psychiatrist David Henderson, writing in 1956, explained:

The difficulty the psychiatrist is faced with in cases of compensation is the long interval which has elapsed between the accident and the psychiatrist’s examination. Months or years may have elapsed, and during that time the claim, instead of getting less, has usually become greatly increased, and the claimant’s condition aggravated and set […] Often the alleged disability is entirely out of proportion to the precipitating cause, but it may be difficult to prove that the accident has not been the main factor, especially when the person has been in employment until the time of the accident. For instance, a man 28 years old, who had suffered no serious physical injury but experienced a degree of shock, claimed four years later, when I examined him, that he suffered from “turns” and had had a serious loss of memory. In fact, his memory disturbance was a massive amnesia only compatible with a diagnosis of hysteria: the accident had been the precipitating factor, but it was not easy to convince a judge or jury of the true position.[5]

In other words, the court-as-memory-retrieving-machine was circumscribed in its movements and potential, governed by an over-arching set of rules and codifications — what memories judge and jury were willing to accept and also, we could add, what precedent and certain legal concepts permitted.

Indeed, many of these rules and codifications are still around today, in civil and criminal courts alike. Consider one further aspect of the court’s memory-retrieving machine — it pivots on a linear model of recollection. By this, I mean that courts insist upon an unmediated, near-perfect ability to recall past experiences and details. That memory is usually a dynamic process, and that recollection is impossible to insulate from other experiences and emotions, is not countenanced by the court. As has recently been argued with respect to sexual abuses cases (e.g., R. v Ghomeshi), courts require an unbroken, linear model of recollection, where the witness (or complainant) has to able to recall past events in such a way as to be unmediated by later experiences. Or as neurologist James Kirkwood Slater complained in 1948:

The law is well aware that students of applied psychology have all manner of recommendations for revolutionising the so-called commonsense method of obtaining evidence which for so long has stood the test of time. […] For instance they tell us that scores of memory variations can be discriminated. Let your friends, they say, describe how they have before their minds yesterday’s dinner table and the conversation around it, and there will not be two whose memory shows the same scheme and method. They urge that we should not ask a short-sighted man for the slight visual details of a far distant scene, yet it cannot be safer to ask a man of the acoustical memory type for strictly optical recollections…[6]

 

It is by bearing this in mind that we can properly grasp the function of the expert medical witness in personal injury cases: claimants, doctors argued, often had an unconscious or imperfect recollection of the events that had followed their accident. The claimant’s memory of their accident was too heavily coloured by the events that followed it (i.e., the various medical assessments and treatments the claimant had undergone). Indeed, in the cases that I have sampled, claimants were rarely cross-examined about their post-accident sequelae, with attention instead focussing on where they were at the time of their accident, what attempts they had made to check their own safety, etc.

Thus, when he testified in his case, Brennan was asked only briefly about his neurasthenic condition. Legal counsel were more interested in probing the account offered by medical experts. As Dr. Aitken observed:

[Brennan] is quite unaware of the whole business. He believes that something has happened as a result of the accident in his pelvic region — his groin region — and he believes this is the cause of all the trouble and he, accordingly, gets in a very unstable state. He is not capable of a sustained effort either in thinking or action. He isn’t capable of sitting down to thrash out a problem. […] If you asked him about his accident his hands would shake […] At times now when you are speaking to him you feel isn’t grasping properly what you are saying to him.[7]

Hence the involvement of medical experts: for the memory-retrieving machine to function, doctors were needed to bridge the divide between the claimant and the Court.

 

References
[1] James K. Slater, ‘Trauma and the Nervous System: With Particular Reference to Compensation and the Difficulties of Interpreting the Facts’, Edinburgh Medical Journal, vol. 53, no. 11 (1946), p. 640.
[2] National Archives of Scotland, CS258/1958/1704, ‘Notes of Evidence in Jury Trial: Thomas Brennan V. The National Coal Board’, 1958, p. 97.
[3] E.g., Danuta Mendelson, ‘English Medical Experts and the Claims for Shock Occasioned by Railway Collisions in the 1860s: Issues of Law, Ethics, and Medicine’, International Journal of Law and Psychiatry, vol. 25, no. 4 (2002), pp. 303-29.; Karen M. Odden, ‘Able and Intelligent Medical Men Meeting Together’: The Victorian Railway Crash, Medical Jurisprudence, and the Rise of Medical Authority, Journal of Victorian Culture, vol. 8, no. 1 (2003), pp. 33-54.
[4] See Jane F. Thrailkill, ‘Railway Spine, Nervous Excess and the Forensic Self’ in Laura Salisbury and Andrew Shail (eds), Neurology and Modernity: A Cultural History of Nervous Systems, 1800-1950 (Basingstoke, Hampshire and New York: Palgrave Macmillan, 2010), pp. 96-112.
[5] David Henderson, ‘Psychiatric Evidence in Court’, British Medical Journal, vol. 2, iss. 4983 (1956), p. 4.
[6] James K. Slater, ‘The Medical Man in the Witness Box’, Edinburgh Medical Journal , vol. 55, no. 10 (1948), p. 590.
[7] ‘Notes of Evidence in Jury Trial: Thomas Brennan V. The National Coal Board’, pp. 98-99.