Rescuer/first responder successfully sues patient

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Rescuer/first responder successfully sues patient

Postby wildwanderer » Sat 02 Feb, 2019 10:26 am

Edit - correcting the spelling of psychological as changes the context.

Interesting article in todays abc news

https://www.abc.net.au/news/2019-02-01/ ... n/10772362

I wonder what the implications are now a court has ruled that rescuers/first responders can in limited circumstances sue for psychological injury as a result of assisting a person during a rescue. (If the person has negligently put themselves in a situation where they require rescuing/assistance). In this case the patient’s insurers were successfully sued for 1 million dollars.

The court found the patient had a legal duty of care not to expose the rescue (police) officer to psychiatric injury through his (the patients) negligence.

‘Potentially’ relevant scenarios:

Canyoners needing rescue/medical assistance after entering a canyon when heavy rain was forecast.
Bushwalkers needing rescue/medical assistance when walking in an area under extreme fire danger notification.

It does say further down that a personal injury specialist thinks this is a unique circumstance incident and its unlikely to increase the number of future successful claims.

I’m not making a judgement if the ability for a rescuer/first responder to sue the patient for psychological injury is a good or bad thing (in the circumstance where the patient has negligently put themselves in the situation). I don’t yet have an informed opinion. Just posting the article for interest.
Last edited by wildwanderer on Sat 02 Feb, 2019 12:13 pm, edited 1 time in total.
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Re: Rescuer/first responder successfully sues patient

Postby GPSGuided » Sat 02 Feb, 2019 10:40 am

Are SAR teams permitted to decide not to offer rescue service under certain circumstances? What’s their obligation to put themselves in harm’s way?
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Re: Rescuer/first responder successfully sues patient

Postby CraigVIC » Sat 02 Feb, 2019 10:56 am

Can't imagine it happening in any situation where there wasn't insurance. Who would pay?
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Re: Rescuer/first responder successfully sues patient

Postby Mark F » Sat 02 Feb, 2019 10:57 am

Rescuers have no obligation to expose themselves to a dangerous environment - legal or otherwise.
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Re: Rescuer/first responder successfully sues patient

Postby wildwanderer » Sat 02 Feb, 2019 10:59 am

From my limited reading and I dont know if this is accurate.

For NSW. A person is liable to to assist if
If you caused the danger or injury;
If the injury or dangerous situation occurred on your property;
If you have a duty of care because your position in relation to the person in danger, eg you are their doctor, teacher, employer etc; or
If you created a duty of care through your actions at the time the person was in danger.


In the Northern Terriory it is an offence not to render assistance.
Failing to help a person in danger has now been made a crime in the Northern Territory.

Information from - https://www.sydneycriminallawyers.com.a ... in-danger/

Does a SAR team member have a duty of car because of their postion as a SAR team member? I dont know.
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Re: Rescuer/first responder successfully sues patient

Postby Warin » Sat 02 Feb, 2019 11:18 am

Insurance policies will now be written to exclude this liability.

First responders do no have to put themselves in danger. If they think it is dangerous they can refuse to render assistance.
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Re: Rescuer/first responder successfully sues patient

Postby wildwanderer » Sat 02 Feb, 2019 11:28 am

Warin wrote:....

First responders do no have to put themselves in danger. If they think it is dangerous they can refuse to render assistance.


However, this case is talking about psychological danger not physical danger.

It’s one thing for a rescuer to refuse to assist someone who is surrounded by fire because they believe there is a very high chance that they (the rescuer) will be severely burnt if they go into the area.

Compared to, the fire has passed, there is no physical danger but the rescuer needs to go in and render first aid to the person lying severely burnt on the ground. The vision of the person injuries and their screams of pain cause the rescuer to have psychological trauma for life.
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Re: Rescuer/first responder successfully sues patient

Postby GPSGuided » Sat 02 Feb, 2019 1:21 pm

SAR is by default a psychological stress for the situations encountered, just as the medical profession have to treat grossed maimed patients amongst others. I find it hard to believe the court would accept a claim on psychological stress.
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Re: Rescuer/first responder successfully sues patient

Postby Gadgetgeek » Sat 02 Feb, 2019 4:46 pm

From reading the story, it doesn't seem it would pertain to SAR personnel, unless the incident was the sort of thing where a rescue was anticipated but it turned into body recovery. This sort of thing is why some fire depts no longer have swift water rescue teams, but rather leave it to police evidence divers as the mindset going in is important to the mental health of the officer. I could imagine some theoreticals where it might be possible, but they are pretty horrific, and it would be the case of an employer or larger group being sued, rather than an individual.

It kinda looks like this officer was reaching out for any branch he could since it seems very much like he was hung out to dry by the dept, and not able to get the treatment he needed. The second accident seems to have made things much worse.
The greater reality is that events like this show that these resources need to be in place and much more readily accessible. Also, if I'm reading this right, its the same sort of payout that someone might get if say that speeding car had clipped them, or during the crash they had been hit by debris and disabled in that way.

There are enough gaps in the story that I don't want to read too far into the case itself. Personally I don't see it making that big of an impact on bushwalkers. Ultimately, if I'm left by myself because the rescuer is worried about being sued, I'm probably better off without them, and if I'm in a situation where I'm causing enough direct emotional harm to someone rescuing me, then I probably deserve to pay for it.
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Re: Rescuer/first responder successfully sues patient

Postby flingebunt » Sat 02 Feb, 2019 5:36 pm

CraigVIC wrote:Can't imagine it happening in any situation where there wasn't insurance. Who would pay?


Exactly, legal action usually follows the money.

Also it was based on the legal question around who the compulsory third party (CTP) insurance covers. It was not based so much on negligence, but on the idea that everyone injured in an accident has to be paid by CTP insurance, including the psychological injury of people witnessing the accident. So if I see someone pancaked by a truck, I should be able to be covered by their CTP for psychological injury.
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Re: Rescuer/first responder successfully sues patient

Postby wildwanderer » Sat 02 Feb, 2019 7:03 pm

flingebunt wrote:
CraigVIC wrote:Can't imagine it happening in any situation where there wasn't insurance. Who would pay?


Exactly, legal action usually follows the money.


Most organised outdoor clubs have 3rd party liability insurance though.. and of course many individuals have assets such as houses etc that could be sold in the case of a damages award.

I do think, as Gadgetgeek pointed out, that this case was somewhat unusual and suspect the legal action may have been something of a last resort.
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Re: Rescuer/first responder successfully sues patient

Postby CraigVIC » Sat 02 Feb, 2019 10:09 pm

It doesn't really work out like that. Pursuing a 'man in the street' for a huge payout won't work. Whatever may be awarded won't be paid and a legal firm wouldn't bother.
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Re: Rescuer/first responder successfully sues patient

Postby trekker76 » Sat 02 Feb, 2019 11:17 pm

This country is getting stranger and stranger every day. Wait until aged care nurses jump on the PTSD bandwagon, they see more people die in a year than the police and army combined.
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Re: Rescuer/first responder successfully sues patient

Postby ribuck » Sat 02 Feb, 2019 11:55 pm

If someone chooses a career as a first responder, experiencing distressing things comes as part of the job.

Personally I would prefer to work as a rescuer than as, say, a sewage worker or a prison guard or an abbatoir worker.
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Re: Rescuer/first responder successfully sues patient

Postby Gadgetgeek » Sun 03 Feb, 2019 8:14 am

Tekker76 wrote:This country is getting stranger and stranger every day. Wait until aged care nurses jump on the PTSD bandwagon, they see more people die in a year than the police and army combined.

As we learn more about PTSD, the physical changes in the brain are becoming more definable. Aged care nurses have not, to my knowledge, shown a history of substance abuse and depression to a greater degree than the general population.

The reality is that calling PTSD a bandwagon sets a dangerous perception that it is due to a weakness of character, or that the involved somehow could have avoided it. I know many people with some level of PTSD from a variety of stresses. Seeing dead people is actually pretty low on the list of causes. Its something that isn't well understood by the general population, though I recommend everyone look into it more to educate yourself as I think it makes it a lot easier then to have compassion and be supportive of those who need it. One of the biggest contributing factors of treatment and avoiding PTSD is community support, so we would all do better to recognize the possibility of it sooner.
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Re: Rescuer/first responder successfully sues patient

Postby Xplora » Mon 04 Feb, 2019 6:38 am

ribuck wrote:If someone chooses a career as a first responder, experiencing distressing things comes as part of the job.


Yes it is but it still does not take away the distressing things and they are still thinking, feeling human beings. Constant exposure to distressing things does not desensitise you entirely. If you can imagine a dam wall which is being filled with all the crap the world dishes out to these people and then imagine that the service does not deal very well with these issues then you can expect some dam walls to crack or break. Some services began psych testing for specialist units many years ago but they do not do it for first responders who are often confronted with the horror before anyone else. Up until this case I would suspect the PTSD matters have been dealt with as a workplace injury. I also suspect there was a lot more going on in this man's life and this incident may have been the final straw or trigger. His words were that he had never watched anyone die before. Can you imagine then the number of nurses and doctors who could also sue. My daughter is a triage nurse and I suspect she is suffering from PTSD. She has told me how she would be on top of the patient doing CPR as they rushed them down to the operating theatre only for the patient to die. Often you cannot tell you are suffering from PTSD until you stop the job or thing that caused it. Lack of support from within and lack understanding of how to help those affected has been telling. Most of our war veterans suffer from it to some degree.

Aged care workers watch old people die peacefully and that is certainly not as traumatic. Watching people die in horrific circumstances without being affected takes a very special (special in a bad way) kind of person. Not the kind of person you would want to be compassionate or empathetic at other times.
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Re: Rescuer/first responder successfully sues patient

Postby beardless » Mon 04 Feb, 2019 9:24 pm

Caffrey v AAI Limited [2019] QSC 7 (30 January 2019)

Here is the link to the decision: http://www.austlii.edu.au/cgi-bin/viewd ... 019/7.html
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Re: Rescuer/first responder successfully sues patient

Postby Hallu » Tue 05 Feb, 2019 2:27 am

I don't understand why it's the driver's insurance that had to pay ? Why isn't it the police insurance ? They were the ones who failed to provide proper psychological care, they were the ones who didn't train him properly or failed to, and they were the one who fired him when he needed help. Weird outcome...
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Re: Rescuer/first responder successfully sues patient

Postby wildwanderer » Tue 05 Feb, 2019 7:19 am

Hallu wrote:I don't understand why it's the driver's insurance that had to pay ? Why isn't it the police insurance ? They were the ones who failed to provide proper psychological care, they were the ones who didn't train him properly or failed to, and they were the one who fired him when he needed help. Weird outcome...


This is the crux of the matter.

That now a court has found patients are liable for the psychological trauma they cause to their rescuer/first responder. In a situation where the patient negligently put him or herself in harm’s way.
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Re: Rescuer/first responder successfully sues patient

Postby Gadgetgeek » Tue 05 Feb, 2019 8:08 am

Patient, or insurer? My understanding was that this was purely a component of the driver's CTP. I got the feeling that this was the one of many grasped straws, its was just one that worked.

If PTSD is considered an insurable injury, then it opens the door to people claiming under their income protection or disability insurance. As this works its way through the system I suspect we may see new guidelines on where and when these are considered the appropriate remedies financially for folks. Or it could go the way of some insurances where some jobs are listed as uninsurable. Every income protection sales person stops really quick when I mention that my job takes place more than three meters from the ground. Even though some form of income protection would be very advantageous, its largely not available in my industry, or at least not well marketed at all, and I suspect many are paying for insurance that they will never be able to claim.

It may be the case that union funds or government backed specialist funds may be needed to properly cover this, mental health is obviously something that still has a long way to go to be integrated within the normal systems of health management.
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Re: Rescuer/first responder successfully sues patient

Postby wildwanderer » Tue 05 Feb, 2019 9:06 am

Gadgetgeek wrote:Patient, or insurer? My understanding was that this was purely a component of the driver's CTP.

From what I read of the judgement it seems the reason the patient (Mr Williams) was not also sued was because he was deceased. So therefore the only defendant remaining was his insurer
The plaintiff brings the present action against the defendant pursuant to s 52(2)(b) of the MAIA, which provides that an action may be brought against the insurer alone if the insured person is dead.[2] Ordinarily an action for damages for personal injury arising out of a motor vehicle accident must be brought against the insured person and the insurer as joint defendants.[3]


From my non expert reading of the judgment. The below seems to indicate that the court found that a duty of care exists between rescuer and patient. and therefore if the rescuer is injured the patient is liable for damages as the patient put themselves negligently in a situation and needed to be rescued.
[156] The plaintiff pleads that a causal connection exists between the negligence of Mr Williams and the plaintiff suffering a psychiatric injury.[167] The primary basis upon which the defendant denies causation is that a duty of care was not owed. The defendant does not suggest that if the duty of care exists, a breach of that duty was not causative of the psychiatric injury suffered by the plaintiff. As it is not disputed that the collision was caused by the negligence of Mr Williams and that the plaintiff suffered a psychiatric injury as a result, it follows from my finding that a duty of care was owed that causation is established.

155] I therefore find that Mr Williams owed the pleaded duty of care to the plaintiff
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Re: Rescuer/first responder successfully sues patient

Postby Lindsay » Tue 05 Feb, 2019 9:30 pm

This whole concept of a rescuer suing a patient for trauma sounds like ambulance chasing to me. If one is prepared to be a rescuer then one accepts that there may be a certain level of physical and mental stress involved. Even though the patient may be in trouble through their own negligence and stupidity, they are not deliberately trying to cause the rescuer stress, certainly not to the point of endangering themselves just to *&^%$#! off the SAR personnel. Of course stress among SAR personnel needs to be dealt with, but not by suing the people that SAR is trying to help.
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Re: Rescuer/first responder successfully sues patient

Postby Avatar » Tue 05 Feb, 2019 10:05 pm

The law cannot be second guessed by the best bush lawyer. It is an a$$. While I've heard of a patient from a vehicle accident claim significant emotional trauma from being exposed to a person dying in the same hospital ward in a TAC claim, this is a novel and imaginatively targetted lawsuit and will be a revelation to insurers. Prepare yourselves for big hikes in your TAC insurance premiums. At least you now know why.
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Re: Rescuer/first responder successfully sues patient

Postby Xplora » Wed 06 Feb, 2019 6:17 am

Avatar wrote:The law cannot be second guessed by the best bush lawyer. It is an a$$. While I've heard of a patient from a vehicle accident claim significant emotional trauma from being exposed to a person dying in the same hospital ward in a TAC claim, this is a novel and imaginatively targetted lawsuit and will be a revelation to insurers. Prepare yourselves for big hikes in your TAC insurance premiums. At least you now know why.


I noted in the judgement that most other states have provisions in the relevant legislation which limit this sort of claim. Qld does not have this. Also I noted the judgment had to be made on the common law as the legislation did allow a determination of the duty of care with regard to negligence. It is certainly a complicated case and the defendant was not able to provide sufficient evidence of any pre-existing condition which would discount the claim. The discount asked for was 65% and the judge awarded 30%.

This judgement does not necessarily trigger an increase in premiums in other states as the legislation limits the extent of which the common law can apply. I also noted the plaintiff had claimed and received a payout from workers compensation and this was taken into account. I think also the level of negligence on behalf of the defendant (deceased) was considered significantly higher because of the use of drugs and it is reasonable to foresee a situation where you would drive your car into a tree if so affected and thereby putting at risk those assisting you. Putting it altogether and relating it to our adventures then I would conclude there will be little change or effect. I do think psychologtical harm or injury is something we should all consider and if those leading walks for clubs contribute to that due to negligence then there may be a claim against the club's insurance. The key here is the degree of negligence and whether there is a duty of care. I do not want to go into that discussion again as it has been sufficiently and thoroughly discussed in another thread.

I certainly would not discount the claim that the tragic event which gave rise to this court case was not your run of the mill job experiences for a Police officer or first responder. I can also see that having the family of the person dying at the scene also contributed to the emotional distress. This is not as common as some would think and the plaintiffs arguments were not significantly challenged. There is an acceptance of risk when you take on such a job but that does not shield you from the risk or the consequences. No amount of training can prepare you for these horrors but it may provide a mechanism to help you cope afterward.
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Re: Rescuer/first responder successfully sues patient

Postby trekker76 » Wed 06 Feb, 2019 10:06 pm

Gadgetgeek wrote:
Tekker76 wrote:This country is getting stranger and stranger every day. Wait until aged care nurses jump on the PTSD bandwagon, they see more people die in a year than the police and army combined.

As we learn more about PTSD, the physical changes in the brain are becoming more definable. Aged care nurses have not, to my knowledge, shown a history of substance abuse and depression to a greater degree than the general population.

The reality is that calling PTSD a bandwagon sets a dangerous perception that it is due to a weakness of character, or that the involved somehow could have avoided it. I know many people with some level of PTSD from a variety of stresses. Seeing dead people is actually pretty low on the list of causes. Its something that isn't well understood by the general population, though I recommend everyone look into it more to educate yourself as I think it makes it a lot easier then to have compassion and be supportive of those who need it. One of the biggest contributing factors of treatment and avoiding PTSD is community support, so we would all do better to recognize the possibility of it sooner.


I dont feel PTSD is weakness of character, I am ex army myself. However I am in the camp of those feeling PTSD, like any condition can be misdiagnosed or over diagnosed, particularly in our medical climate of incentivized presciptions and medical liability. Particularly I am sick of mates mildly depressed or burnt out which we attributed a lot to deployment fatigue in the day( which you were given time to overcome, and generally did being the effect was mostly the fact you had done 7x10hr shifts for several months), put onto escalating regimes of tricyclic, hypnotic, sedatives, AP's and becoming suicide risks. This is unccaptable medicine and 'unacceptable science' though I think its more a case of the former as doctors are afraid if they choose conservative methods and don't prescribe the heavy stuff they may be found liable if something goes wrong. The good news is several Veteran orgs and even the US medical systems are taking a hard look now at adverse outcomes , particularly involving early prescription of anti-psychotics. So PTSD has not been an easy road of advances matching compassion and what we think we know about the brain etc, its the usual case of steps backwards and forwards or pursuing wrong pathways in a poorly understood area of science.

As to aged care nurses, its a little more than seeing dead bodies,they nurse people to death they may have known for over a decade and have formed attachments to, recieve a lot of verbal and physical assaults ( psychosis+dementia patients, and verbal from familes as well) , and there is nothing pretty about someone on the way out from cancer, emphysema, or organ failure during a shift.

If these ladies are sucking it up and going about their shifts, (thankfully, since if they weren't it would collapse the medical system) its worth looking at.
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Re: Rescuer/first responder successfully sues patient

Postby Gadgetgeek » Thu 07 Feb, 2019 6:56 am

trekker76 wrote:
Gadgetgeek wrote:
Tekker76 wrote:This country is getting stranger and stranger every day. Wait until aged care nurses jump on the PTSD bandwagon, they see more people die in a year than the police and army combined.

As we learn more about PTSD, the physical changes in the brain are becoming more definable. Aged care nurses have not, to my knowledge, shown a history of substance abuse and depression to a greater degree than the general population.

The reality is that calling PTSD a bandwagon sets a dangerous perception that it is due to a weakness of character, or that the involved somehow could have avoided it. I know many people with some level of PTSD from a variety of stresses. Seeing dead people is actually pretty low on the list of causes. Its something that isn't well understood by the general population, though I recommend everyone look into it more to educate yourself as I think it makes it a lot easier then to have compassion and be supportive of those who need it. One of the biggest contributing factors of treatment and avoiding PTSD is community support, so we would all do better to recognize the possibility of it sooner.


I dont feel PTSD is weakness of character, I am ex army myself. However I am in the camp of those feeling PTSD, like any condition can be misdiagnosed or over diagnosed, particularly in our medical climate of incentivized presciptions and medical liability. Particularly I am sick of mates mildly depressed or burnt out which we attributed a lot to deployment fatigue in the day( which you were given time to overcome, and generally did being the effect was mostly the fact you had done 7x10hr shifts for several months), put onto escalating regimes of tricyclic, hypnotic, sedatives, AP's and becoming suicide risks. This is unccaptable medicine and 'unacceptable science' though I think its more a case of the former as doctors are afraid if they choose conservative methods and don't prescribe the heavy stuff they may be found liable if something goes wrong. The good news is several Veteran orgs and even the US medical systems are taking a hard look now at adverse outcomes , particularly involving early prescription of anti-psychotics. So PTSD has not been an easy road of advances matching compassion and what we think we know about the brain etc, its the usual case of steps backwards and forwards or pursuing wrong pathways in a poorly understood area of science.

As to aged care nurses, its a little more than seeing dead bodies,they nurse people to death they may have known for over a decade and have formed attachments to, recieve a lot of verbal and physical assaults ( psychosis+dementia patients, and verbal from familes as well) , and there is nothing pretty about someone on the way out from cancer, emphysema, or organ failure during a shift.

If these ladies are sucking it up and going about their shifts, (thankfully, since if they weren't it would collapse the medical system) its worth looking at.
This one of those convos where no matter how much time you take, there is always going to be something that gets left simplified in a way that is not accurate or appropriate. I know some aged care and palliative care nurses, and I couldn't say with a straight face that its an easy job. Just the same, given your last post, you don't see PTSD as an "illness of convenience" At the end of the day, every job has a cost to those who do it, some worth while, and some not. But if we don't bother to look at those costs and weight them appropriately, then there will always be that churn of people who get eaten up. That's everything from mental aspects to physical. Like every truck driver with a compressed spine, tradie with bad knees, or accountant with carpal-tunnel. We all pay for life some way or another.
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Re: Rescuer/first responder successfully sues patient

Postby north-north-west » Thu 07 Feb, 2019 11:32 am

What do you mean when you say "illness of convenience"?
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Re: Rescuer/first responder successfully sues patient

Postby Gadgetgeek » Thu 07 Feb, 2019 6:39 pm

north-north-west wrote:What do you mean when you say "illness of convenience"?

There are certain syndromes that have real causes but are vague enough, and hard enough to diagnose that docs will often just go with it, since there are no treatments for them, and they are considered partial disabilities. They are the sort of things that are easy ways for a doc to give someone a diagnosis, make them happy, and be done with them. Of course over time the often are found to have a real basis, and then become more widely recognized. Think fibromialgia about 15 years ago. Not discounting the people who really have problems, more that there are some claims that are easier to make. PTSD used to be more of one, until we found that you can see it on an fMRI. I wish I could think of more of more specifics, but my brain is a bit done today.
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Re: Rescuer/first responder successfully sues patient

Postby Xplora » Fri 08 Feb, 2019 6:54 am

I do think that PTSD has been over diagnosed. It became a fad for many who sort to get something out of the government. I have a friend who volunteered for National Service and was sent to Vietnam. He missed the draft and many of his friends went so he decided he would go as well. He drove trucks. Never saw a shot fired, never came close to any action. He could have been driving trucks in Australia for all it mattered. Most of the blokes in his unit now have TPI pensions because of PTSD. He just laughs because he knows these blokes and knows they are ripping the system off. Being the type of person he is, he will not go the same way. It is a real thing which has also been perverted and because of that some people are skeptical about it. My father was also in Vietnam (regular Army) with a medical unit which took in injured and dead from Long Tan. He suffered terribly after discharge and found it difficult to hold down a job. In later years it was found he had PTSD. My father ended up being a pension advocate for veterans and helped many receive their entitlements. I helped him from time to time and he was skeptical of some of the applicants also. I would say however, that I have no doubt most (if not all), front line first responders would show signs of PTSD after 5 years.
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Re: Rescuer/first responder successfully sues patient

Postby slparker » Fri 08 Feb, 2019 10:56 am

Both can be true.
I spent 20 years in the army, both as a medic and as an ICU nurse, and I have seen many colleagues diagnosed with PTSD and I have no doubt that the majority have the disorder. I know one clinician personally of whom I am suspicious that they faked their symptoms to use the system.

In the civilian sector it is also a prominent disorder of front line clinicians and first responders, without a doubt. And it is probably underdiagnosed as staff still feel loathe to report mental health symptoms. The 'system' (both civilan and military) is far from adroit at handling the scale of the mental health burden of exposure to noxious occupational situations.

People diagnosed with PTSD can continue working in their field and i know many people who continue to work in their chosen field or in different careers. I consider myself lucky not to have the disorder - many of my colleagues have not been so lucky.
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