In “Body and Soul: How Neuroimaging Should Revise Tort Perspectives on PTSD,”Reference Midler ¹ author Alexandra Midler addresses head-on the old distinction in law between physical and emotional injury. Other scholars have noted the shortcomings of this distinction, including this commentator.Reference Ogolla ² Midler correctly notes that tort law has traditionally prioritized physical over emotional injury. Midler uses Post Traumatic Stress Disorder (PTSD) as example of a disease that can span both physical and emotional injury. Yet courts still insist on classifying PTSD as constituting purely emotional harm. To illustrate this point, Midler begins by citing White v. United States, ³ a case where the Tenth Circuit Court of Appeals dismissed a prisoner’s claim for emotional distress based on PTSD because he did not plead physical injury. Perhaps one gap here is that Midler does not really give the reader the facts and background of the case. In that case, “White, a federal prisoner, sued the United States under the Federal Tort Claims Act (“FTCA”) for Intentional Infliction of Emotional Distress (“IIED”) and Negligent Infliction of Emotional Distress (“NIED”) in connection with the use of “black-box” restraints and for the time he spent in solitary confinement.” ⁴ White alleged that he suffered PTSD as a result of these conditions. The trial court dismissed White’s claims pursuant to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(e) which provides that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act.” ⁵ The trial court held that White had failed to adequately plead a physical injury under the statute. ⁶ In affirming the trial court, the Court of Appeals reasoned that the statute requires a plaintiff to plead a more-than-de-minimis physical injury in order to bring a federal action for mental or emotional injury suffered while in custody, and that White had not adequately pleaded that he suffered a more-than-de-minimis physical injury during the timeframe relevant to his incarceration. ⁷

Three things can be discerned from this case. First, White failed to allege sufficient facts to make plausible that he experienced his PTSD as a more-than-de-minimis physical injury while incarcerated at the federal prison. ⁸ Second, the appellate court decision was based on an interpretation of the statute — Prison Litigation Reform Act (PLRA) — not common law, and third and perhaps more important, the court did not foreclose the door on PTSD constituting physical injury. Indeed, the court writes, “[w]e do not decide today whether PTSD is categorically a physical or mental injury under the PLRA, nor whether PTSD can ever constitute a more-than-de-minimis physical injury. We may assume that PTSD can be a physical injury under the PLRA and that some forms of PTSD can constitute a more-than-de-minimis physical injury.” ⁹ (emphasis added).

Although Midler argues that “United States Law classified PTSD a purely emotional injury and thus less worthy of compensation than material harm to the body,” the Tenth Circuit Court of Appeals at least acknowledged that PTSD can be a physical injury under the PLRA and that some forms of PTSD can constitute a more-than-de-minimis physical injury. ¹⁰ This point is further buttressed by the case of Siggers – EL v. Barlow. ¹¹ In that case, a federal judge in the Eastern District of Michigan held the PLRA unconstitutional as applied to a prisoner. There, a prisoner filed suit alleging that defendant retaliated against him in violation of his First Amendment rights. ¹² The jury found defendant liable for retaliation and awarded plaintiff $15,000 in mental or emotional damages. Defendant filed a motion for new trial arguing that mental or emotional damages are not recoverable because the federal statute prohibits recovery of such damages in the absence of physical injury. ¹³ In rejecting defendant’s motion for new trial, the district court observed, “[a]pplication of [the statute] to bar mental or emotional damages would effectively immunize officials from liability for severe constitutional violations, so long as no physical injury is established. Such immunity would be at odds with the fact that the statute allows plaintiffs to recover unlimited mental or emotional damages, so long as they prove more than de minimis physical injury.” ¹⁴ Thus, some courts have been willing to move away from the rigid distinction.

To further illustrate emotional distress in tort law, Midler briefly discusses Intentional Infliction of Emotional Distress (IIED) and Negligent Infliction of Emotional Distress (NIED). Midler correctly notes that the Restatement (Third) of Torts’ requirement that plaintiffs alleging emotional distress not only prove that that they suffered emotional distress, but that the distress is severe, is a challenging standard for plaintiffs to prove. Midler writes that IIED and NIED standards disadvantage plaintiffs with largely invisible injuries such as PTSD, who may not have consistent physical symptoms and still suffer enormously. I couldn’t agree more. That said, it would have been helpful to the reader to define emotional harm. According to Restatement (Third) of Torts, “emotional harm means impairment or injury to a person’s emotional tranquility. Emotional harm encompasses a variety of mental states, including fright, fear, sadness, sorrow, despondency, anxiety, humiliation, depression (and other mental illnesses), and a host of other detrimental — from mildly unpleasant to disabling — mental conditions.”Reference Green and Peters ¹⁵ This is in contrast to physical harm, which the Restatement define as “physical impairment of the human body. The physical impairment of the human body includes physical injury, illness, disease, and death.”Reference Green and Peters ¹⁶ But the phenomena we call “emotional” harm has a physiological basis.Reference Grey and Freeman ¹⁷ This is the point that Midler, and many other neuroscience scholars, are trying to elucidate.

Midler then writes that NIED claims face an even tougher evidentiary onus because, in addition to the reasonableness test, many states require plaintiffs to show they were in immediate risk of physical harm (a “zone of danger”) that triggered their emotional distress. Midler argues that this restriction tethers NIED recovery to physical injury, and thus implicitly reinforces the preeminence of the latter in tort jurisprudence. Again, I couldn’t agree more. But one thing about the Restatement (Third) of Torts merits mentioning here. Section 47 (b) provides a bypass to the zone of danger rule. According to this section, “An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct: (b) occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional harm.”Reference Green and Peters ¹⁸ Therefore, Restatement Third bypasses the traditional barriers like zone of danger.Reference Hnylka ¹⁹

Regarding the section on the benefits of PTSD neuroimaging for marginalized populations, Midler discusses domestic abuse, racial trauma, and solitary confinement as areas that might benefit from brain imaging. The discussion on using brain imaging to show racial trauma is particularly interesting, since it is a novel idea and may, as Midler notes, refute the myth that minorities have “thicker skin” that make them impervious to psychological trauma. I completely agree with Midler’s assertion of the difficulties of using neuroimaging to prove racial animus, from causation to First Amendment defenses. Nevertheless, this is an area in torts that is worth exploring in detail in future scholarship.

Midler makes several recommendations, three of which merit mentioning here. First, Midler suggests that foundational neuroimaging research should change PTSD’s classification from not just an emotional but also a physical injury, making it easier for plaintiffs to win compensation. This is a point of departure between this commentator and Midler. Moving PTSD from emotional to physical disease by way of neuroimaging, in my view, would perpetuate the same distinction. If the goal is to treat physical and emotional injuries the same way in law, wouldn’t it be counterproductive to move some diseases from one basket (read emotional harm) to another basket (read physical harm)?

Second, Midler recommends that a government agency should set quantitative standards for efficacy of PTSD neuroimaging and certify whether they are met. She writes that to prove the efficacy of individual PTSD neuroimaging, FDA trials should be conducted on a large number of subjects with varied age, race, socioeconomic standing, and trauma history. This recommendation is particularly important because “[w]hile U.S. investments in clinical research have contributed significantly to treating and preventing disease and extending human life, large swaths of the population are less able to benefit from these discoveries because they are not adequately represented in clinical research studies”Reference Frueh ²⁰

Finally, Midler recommends that individual neuroimaging should not be required because “[t]he seductive allure of brain scans might otherwise create a “CSI effect,” where juries and judges expect a popular form of scientific evidence and make negative assumptions about a claimant in its absence.” Midler further notes that in the case of PTSD tort claims, a CSI effect would harm litigants unable to acquire scans due to cost or accessibility. This is absolutely true.

In sum, Midler’s article is an important and much needed addition to the emotional versus physical injury debate. The focus on PTSD is particularly telling considering the number of people suffering from the disease worldwide. Neuroscience and related disciplines continue to advance, breaking down some of the traditional barriers between physical and emotional harm. It is about time that tort law caught up with these advances.