Attorney-client confidentiality and the assessment of claimants who allegeposttraumatic stress disorder

Posttraumatic Stress Disorder (PTSD) was first recognized by the American P sychiatric Association in 1980. A PTSD diagnosis requires an individual or individual's loved ones to have experienced a traumatic event that was a th reat to life or physical integrity and caused the individual to react to th e incident with a specific number of avoidance, reexperiencing, and hyper-a rousal symptoms. Obtaining a PTSD diagnosis can be of great value to a pers onal-injury plaintiff who claims damages due to a traumatic event. Further, if the traumatic event is unquestioned and the individual reports the clas sic symptoms, a PTSD diagnosis is relatively easy to apply and difficult to disprove. These plaintiffs will most often be examined and evaluated by me ntal-health professionals retained by the defendants. The question of wheth er the claimant was told or provided materials about common PTSD symptoms i s crucial to the defense evaluator's accurate PTSD assessment. One source o f such information would be plaintiffs counsel, but questions concerning in formation provided by counsel implicate the attorney-client privilege. This Article suggests that the policy bases underlying the attorney-client priv ilege and protecting a defendant's right to test the validity of a plaintif fs claims are best served by the creation of a narrowly drawn waiver or exc eption to the attorney-client privilege. Consistent with the patient-litiga nt exception to the physician-patient privilege, the proposed exception wou ld be limited to those matters directly related to the nature, diagnosis, a nd symptoms of PTSD placed in issue by the plaintiff. The exception would a lso be limited to statements and materials about PTSD symptoms the attorney provided the client This Article also notes the difficult ethical boundary between an attorney providing essential advice to a client about the natur e of emotional and psychological damages versus improper coaching. The prop osed exception would help discourage improper coaching and lead to the disc overy of any improper coaching that had already occurred. Even where the in formation provided by the attorney was appropriate from an ethical standpoi nt, discovery of that information is essential to an accurate diagnosis and fairness to defendants.