Psychiatric Injury following Death of Plaintiff’s Baby
Neuroimaging studies of identifiable neurobiological changes in the brain may need to be considered when determining the chronicity of severe post-traumatic stress disorder.
McManus v Murrumbidgee Local Area Health Network
The New South Wales Supreme Court on 27 September 2016 awarded Sharon McManus the sum of $1,785,498 by way of damages following the death of her son shortly after birth. Liability had been admitted.
One of the issues that the Trial Judge needed to consider was how to approach the issue of whether or not Ms McManus’ disabling psychiatric conditions would continue into the future and their likely ongoing severity. There appears to have been no doubt that Ms McManus suffered a severe post-traumatic stress disorder consequent upon her son’s death. This condition was so severe that it had required inpatient treatment as well as extensive medical intervention. The issue was the ongoing “chronicity” of the condition.
One of the witnesses called was Professor Sandy McFarlane. As readers will no doubt be aware he has had a long and distinguished career and has been a leading advocate on the issue of post-traumatic stress disorder. He holds and has held a number of positions relevant to this condition, including that of President of the International Society for Traumatic Stress Studies. The Trial Judge summarised Professor McFarlane’s position as follows:
Ms McManus has sustained alterations to her neural pathways secondary to her post-traumatic stress that are irreversible and that will entirely delimit the prospect of any further recovery. (Para 39)
In a Report dated 29 August 2016, Professor McFarlane stated:
In considering the changing treatment responses of Ms McManus’ post-traumatic stress disorder with the passage of time, it is necessary to further examine this question from the prospective of mechanism of chronicity. The underlying neurobiological abnormalities involved in post-traumatic stress disorder are likely to be significantly worsened by continued experience of symptoms. This is based on a significant body of knowledge about the relationship between post-traumatic stress disorder and the neurobiological abnormalities that underpin its pathophysiology… (Para 41)
As part of the trial process, it appears that Professor McFarlane participated in a “joint conference” of experts. At that point, it was reported and noted by the Trial Judge that he stated:
Mrs McManus is also likely to have functionally significant different patterns of connectivity between the regions of the brain that are involved in fear processing. Working memory and the executive functions have significant biological underpinnings that can be demonstrated in neuroimaging studies. Particularly the dorsal lateral prefrontal cortex on the left side is vulnerable to disconnection in these tasks and is likely to be abnormal in Mrs McManus. These abnormalities are underpinned by changes in neurohormonal transmission and neurochemical processes. (Para 44)
When it came to assessing the probative value of Professor McFarlane’s opinion, the Trial Judge noted that the studies which underpin this hypothesis had not in fact been carried out on Ms McManus (Para 44). Accordingly, the Trial Judge was not able to accept Professor McFarlane’s position. In the absence of the neuroimaging which had not been undertaken, the Trial Judge described Professor McFarlane’s position as “no higher than informed speculation.” (Para 47)
Not with standing, in reaching his assessment, the Trial Judge found that Ms McManus’ psychiatric condition disabled her “…on an ongoing and unrelenting basis from enjoying or participating in a wide range of fundamental activities of daily life. This situation is likely in my view to continue for the whole of Ms McManus’ life, with little real or tangible prospect of improvement.” (Para 65)
Although Professor McFarlane’s evidence may not have been accepted as forming the basis for an assessment of damages in Ms McManus’ case, there is nonetheless a significant body of evidence linking identifiable neurobiological changes to the brain with post-traumatic stress disorder. Where future assessments need to be undertaken as to the chronicity of a deeply engrained post-traumatic stress disorder, Professor McFarlane’s hypothesis may need to be considered and appropriate neuroimaging studies conducted or reviewed.
This Alert is intended as an alert only. It does not purport to be comprehensive advice. Readers should seek professional advice before acting in relation to these matters.