My Doctor Made Me Crazy: Can a Medical Malpractice Plaintiff Allege Psychologocal Damages Without Making Credibility the Issue?
32 Pages Posted: 18 Apr 2011
Date Written: 2010
In civil cases that include claims of psychological damages, attorneys should not confuse what is discoverable with what is admissible. Although a defendant may discover all information contained in the psychiatric or medical records of a plaintiff, in such a case, misusing that information to prey on the predispositions or stereotypes of a fact finder is inexcusable.
When an attorney seeks to embarrass a plaintiff by interjecting details of psychological difficulties rather than rebutting a damages claim - particularly in light of the evolving understanding of what it means to suffer from a mental disability - then the attorney's purpose is unacceptable.
This article explores one of the last "isms" that can be used to attack the credibility and character of a witness, especially when the witness is a plaintiff in a civil case: "sanism." Courts must be vigilant in protecting the rights of plaintiffs who suffer psychological damages. Courts must also prevent attorneys from using the very harm caused by defendants in such cases from being used to attack or embarrass party opponents.
Keywords: medical malpractice, psychological damages, torts, sanism, attorney misconduct
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