PSYCHOLOGICAL DAMAGE FOR WRONGFUL DEATH 

AS THE LOST PLEASURE OF LIFE

Marina Zettin, Università di Torino

Simona Rabino, Psicologa, Università di Torino

 Summary

After the acceptance of psychological damage as biological damage, the system of compensation for damages went towards a deep evolution. Nowadays, our legal system protects the person in overall way, that is to say considering one’s way of being, of existing and therefore every present and future activities, by which he realizes one’s personality. The evaluation of psychological injury is quite difficult, and unfortunately is not based on consolidate methods and objective interpretations. In addition to the quantification of psychological damage, onother problem difficult to solve is the evaluation of man’s “existential sphere”, that is the estimate of the worsening of life’s quality and perturbation in everyday life following injury, with forced renunciation of happy chances.

The Lost Pleasure Of Life Scale (LPL) can be a new instrument for the valuation of negative consequences in individual cases involving injury. The scale considers all the repercussions of damage, concerning everyday life’s activity, familiar and social relations, cultural and relaxing enterprises.

Aim of the research is the interpretation of lost pleasure of life inside the area of psychological injury making use of Lost Pleasure of Life Scale.

Introduction

Biological damage means the impairment of psychophysical person’s wholeness that can be indemnified apart from the effects on the income. The biological damage caused by wrongful death is included in the psychological damage and it is outlined as the lesion of psychic health’s right, suffered by the relatives after the person’s death as a consequence of an other people’s tort (De Matteis, 1994). Close relatives are the consort, the children, the parents, the sibling; the cohabitant is equalized to the consort, joined by moral and material communion with the victim, provided that he furnishes the relative proof.

Our legal system agreed to biological damage for wrongful death and its compensation only in recent time, after some Constitutional Court’s sentences. The sentence n. 184/1986 recognized the compensation not only of pecuniary and no pecuniary damages, but even of the biological one. In the 1994, Constitutional Court’s sentence distinguished moral damage from psychic damage: the first one is the emotional perturbation caused by a illicit tort, that leads to a transient anguished state, the second one is a «permanent and objective impairment of individual personality in its efficiency, in its adaptation and its equilibrium» (Constitutional Court, n. 372/1994). Therefore while the perturbation exhausts the moral damage, it represents, as regards the psychological damage, the initial point of a process that ends in a permanent psychic pathology. From the practical point of view, the existence of a psychological damage appears when there is the plaintiff’s, total or partial, impediment to achieve the ordinary activities.

The mourning can be the starting point of a psychological damage. It “can” is not the same of “it must”, so it is always necessary to establish if a person has developed or not the symptoms of pathological/complicated mourning. The psychologists and the psychiatrists are the Judge’s referents, to which he asks to verify the existence and the weight of psychological injury: practically they have to distinguish the normal reactions to mourning from the cases in which it leads to pathological alterations and so it’s worthy of compensation.

The psychological damage after the death of a close relation outlines when the person fails his inner process of elaboration.

Parkes (1980), by means of the London Study and the Bethlem Study, analysed the typical and atypical reactions to mourning. His studies pointed out that the normal mourning’s reaction develops in two stages in sequence:

a)      initial moment characterized by apathy and emotional retirement, during which the death is perceived as unacceptable. “Explosions” of extreme pain, of anger and aggression take place during this period;

b)      stage of the dear person’s research follows: the relative is anxious to search what is not possible to find and he has the impression that everything is meaningless. He believes that the dead person will not come back, but he is engaged however in this research.

He noted that, during the first year, auto-reproach’s ideas emerge. These expressions, in the light form, are the tendency to recall death’s events to be sure that the maximum possible has been made. After mourning’s elaboration, the intensity pain decreases and there is the recovery of the person, with the formation of a new identity.

Horowitz (1997) described four anomalous situations after the death of a relative:

-         unsolvable mourning: we notice the arrest of normal grief’s process and the depressive symptoms, somatic illness and the phenomenon of pathological identification. It’s the most common form;

-         chronic mourning: it is characterized by the protraction of the dead man’s idealization. It is favourite by dependent personality and by the lack of psychosocial supports;

-         hypertrophic mourning: the painful reactions are intense and prolonged, while the normal strategies of assurance (for example, familiar support) are ineffective. It’s more frequent in case of sudden and unexpected losses;

-         delayed mourning: it is based on mechanisms of negation and it is characterized especially by the acute sign’s lack of mourning. It does not present negative consequences long term. 

The witness of expert in the forensic area is often focused on psychological pain as reaction to life’s critical events and on the consequences of trauma on mental health.

We call this forensic psychology’s ambit traumathological psychology. It regards the diagnosis and the different therapies for short term and long term consequences to critical events and the analysis of relative factors. The traumathological psychology assume, on the one hand, that it is possible to make the previsions of individual reactions to critical life’s changes during a limited period of time; on the other hand, it considers other reactive variables that interfere, as coping ability, the social support, the expectations, etc.

As far as the traumathological psychology’s ambit is concerned, Gulotta (2000) presents a sociopsychological model of reactions to stressing events. The profile of vulnerability to stress, that consents to evaluate the severity and chronicity’ s degree of the answer, consists of three parts:

-         critical event’s evaluation, concerning the meaning and the importance of the stressing stimuli for the individual;

-         factors of general reaction, as the strains to take the situation under examination, the possibility to give sense to event, the social comparison, self appraisal;

-         factors of specific reaction, as the ratio between consonant and dissonant events, the expectations for the strains’ utility to control the situation, the presence or pre-existence of stressing stimuli, circumstances of loss/damage/threat, type of relation with the deacesed person, the social support and personal variables (explicative style, self complexity, the natural bent for optimism, constructive thought, etc).

Being the biological damage the permanent alteration of individual’s psychophysical health and the event which changes personal possibility to appreciate the life,  we can examine the concept of lost pleasure of life. The lost pleasure of life (or loss of joy of living or hedonic loss) indicates the diminished ability to appreciate specific activities of one’s lifestyle (watching a movie, driving a car, playing a piano) as well as generic pleasurable experiences.

Berlà, Andrews and Meyer (1990) interpret the lost pleasure of life considering these four areas:

1)      Practical area: it examines the activities of daily living such as dressing, sleeping, eating, shopping, travelling, and reading. These activities are interpretated in their functioning and satisfaction’s degree.

2)      Emotional/psychological area: it refers to the individual ability to tackle emotional problems. The area considers “emotional pleasure” derived from any activity or relationship that increases a person’s sense of self-worth, dignity, integrity and sense of mastery. It investigates also the cognitive functions as clearness of mind, memory, power of concentration, formulation of judgements and decisions.

3)      Social area: it analyses individual ability to get social pleasure from interacting with other people, family relationship, sports, social events, and hobbies.

4)      Occupational area: it checks the pleasure that may arise from participating in a vocation/career.

Berlà, Andrews and Meyer (1990) proposed the Lost Pleasure of Life Scale set up of four above-mentioned areas, subdivided in six levels of severity (minimal, mild, moderate, severe, extreme, catastrophic). These levels are associated to percentages of lost pleasure of life.

Such matrix includes thirty-seven  behavioural descriptors that are useful to evaluate the lost pleasure of life (table 1).

From a literature review, the Authors gathered approximately 200 behavioural descriptors across the four domains, which were divided into 20 subsets. Feedback from a pilot study and consultation with experts led to elimination of about half of the descriptors and three of the subsets, as they were considered to be confusing or redundant. The resulting 102 descriptors were presented to six neuropsychologists with experience in disability evaluation and rehabilitation. They had to arrange the descriptors across the six levels of severity. The ranking task was evaluated using Kendall’s coefficient of concordance: the median value for W was  .915. From this study, thirty-seven behavioural descriptors turned out reliable.

In a following study, forty-five persons (fifteen doctoral level licensed psychologist, fifteen  masters and doctoral clinicians, fifteen graduate students in psychology) evaluated fifteen cases of impairment, abstracted from clinical evaluations, with alteration to protect the privacy. The resulting ratings of short and long-term loss on each of the fifteen cases were compared, calculating the interclass correlations coefficient (ICC). Analysis showed ICC R= .65 for short-term loss and .70 for long-term loss. Both values were significant at the level of p< .001. Follow-up ratings were made two weeks later by thirty of the forty-five original participants in eight cases, with ICC values of R= .69 and R=.72 (p< .001).

A second study tested ecological validity of the scale, that is to say whether percentages of loss pleasure of life correlated with economic compensations. Twenty-seven undergraduate in an upper-level psychology course were given the fifteen cases and asked to suggest a monetary award ($0- $10,000,000) for loss of pleasure of life. They averaged their suggested amounts for each case and such cases were consequently arranged. This rank order was correlated with the rank order from the preceding study, with Spearman rank order correlations of r = .86 and r = .88 for short and long term loss (p< .002).

Results indicated the LPL Scale’s reliability and validity is in acceptable ranges.

Table 1: Lost Pleasure of Life Scale Behavioural Descriptors

Research

Intent of the research is the interpretation of lost pleasure of life inside the psychological damage for wrongful death and its significance in medico-legal area, in order to obtain a better and wider description of damage.

The hypothesis was that the patients, that is to say fifteen persons with post-traumatic doleful outcome, owing to the mourning, could show percentages of lost pleasure of life higher than a control group, composed of fifty persons who weren’t in mourning since three years.

Patient’s group is composed of 11 women (73,3% of group) and 4 men (26,7% of group). The mean age is 48,5 with standard deviation of 20,06. The control group is composed of 36 women (72% of group) and 14 men (28% of group), with mean age of 48,5 and standard deviation of 18,24. Such a group had the same socio-demographic characteristics and cultural origin of patient’s group, so that was possible to compare the two groups.     

Materials and methodologies

We prepared a questionnaire made up of 63 items to verify the presence and the degree of severity of the thirty-seven behavioural descriptors of Lost Pleasure Of Life Scale (LPL). The subjects had to answer selecting multiple choice answers (1= minimal, 2= mild, 3=moderate, 4=severe, 5= more severe, 6= most severe).

It was calculated the score of any area of functioning: the score obtained in every area was subdivided for corresponding items, obtaining values in range 1 to 6. The persons, with a score of 1, was set in the minimal level of the area, as well as he was classified in mild level for the attainment of 2, and so forth.

It was assigned a loss’ percentage for each area with the continuous reference to behavioural descriptors and to informations collected during the supply of questionnaire. For example, considering minimal level with loss’ percentage of 1-17%, the individual judged with a score of 1.6, he obtained a percentage little superior to half of range, that is 10%.

Furthermore it was calculated the percentage of global lost pleasure of life, averaging percentages obtained in the four areas.  

Results

We used the SPSS program for the computation of T Test for independent groups; it indicated that the difference between the lost pleasure of life percentages of two groups was statistically significant (p<.001). 

Table 2 : Descriptive analysis of lost pleasure of life percentage in patient’s and control groups

Mean percentages of lost pleasure of life obtained in the two groups are (table 2):

-         practical functioning:  it is 19 (mild degree) in patients’ group and 1.76 (minimal degree) in control group. In particular persons of both groups didn’t present relevant problems in this area: many people were able to accomplish the care and feeding their body in autonomy. It is easy to realize that the persons over sixty obtained higher percentage of lost pleasure of life in this area;

-         emotional/psychological functioning: it is 49.23 (moderate degree) in patients’ group and 3.98 (minimal degree) in control group. In particular, in patients’ group, there were persons deeply paralysed in the emotional sphere and unable to draw pleasure from different activities and interpersonal relations;

-         social functioning: it is 35.5 (moderate degree) in patients’ group and 3.36 (minimal degree) in control group. In the heavier cases, the persons reduced social relations in drastic way after the mourning and they described their familiar relations as very problematic; 

-         occupational functioning: it is 26 (mild degree) in patients’ group and 1.24 (minimal degree) in control group;

-         global loss: it is 40 (moderate degree) in patients’ group and 2.76 (minimal degree) in control group.

Conclusions

The Lost Pleasure Of Life Scale (LPL) presents some feeble point. The use of the scale is based on the expert’s subjective valuation of damage, since there aren’t exact instructions for the attribution of percentage of lost pleasure of life. Till when the authors of the scale will give standardized guides lines for its use, it can be an instrument for a wide description of personal damage, but not for the exact quantification of biological damage.

In literature, there are critics to Lost Pleasure Of Life Scale (LPL).

Joseph, Atkins e Flaks (2000) point out that some values (17%, 33%, 50%, 67%, 83%) belong to two degrees of severity, causing confusion in the evaluator.

Jones (1994) suggests the example of three cases. The first one obtained the following percentage of lost pleasure of life: 25%, 95%, 95% and 32% in the four areas. The second person received percentage as 83%, 83%, 83%, 0%; a third person 20%, 100%, 100%, 27%. The global percentage of lost pleasure of life is 62% for the three cases. Jones wonders if it is correct to give the same compensation to the three persons, since the same global percentage, in spite the fact they have different situations in the four areas.

Caragonne (1993) points out that the authors of Lost Pleasure Of Life Scale didn’t give indications of scale’s perfecting and the standard guide lines for the its use in different contexts.  

From the data collected and the boundaries pointed out, we infer that Lost Pleasure Of Life Scale can be used in the forensic area as instrument for a descriptive valuation of damage.

At the present moment the ascertainment of psychological damage is difficult and controversial, since these critical points persist:

-         the analysis of previous state, that is the pre- existing elements which contributed to psychological damage;

-          the nature evaluation, validity and severity of psychological damage caused by the mourning;

-         the necessity to objective the damage and afterwards to find the consequences on daily living;

-         the necessity to give a percentage of damage to the Judge.

In conclusions, taking Giannini’s definition (1992), psychological damage continues to be as “the other face of moon”: everybody knows that it exists, but it is difficult to explore it.

References

Barzazi, G., Bosio, P, Demori, A., Roncali, D. (2000), Il danno da morte biologico e morale. Profili giuridici, aspetti medico-legali e psichiatrico-forensi, Cedam, Padova

Berlà, E., Meyer, E. P., Andrews, P. (1999), Loss of Pleasure of Life: Conceptual, Vocational, and Forensic Perspectives, Journal of Career Assessment, 7(3); 299-321

Berlà, E., Andrews, P., Meyer, G. (1996), Development of the Lost Pleasure of Life Scale, Law and Human Behavior, 20, 1, 99-111

Berlà, E., Meyer, E. P., Andrews, P. (1995), The Lost Pleasure of Life Scale: A Reply to Caragonne [1993], Journal of Forensic Economics, 273-275

Berlà, E., Brookshire, M., Smith, S. (1990), Hedonic damages and personal injury: a conceptual approach", Journal of Forensic Economics, 1-8

Caragonne, P. (1993), The Use of the Berlà Scale in Quantifying Hedonic Damages: A Case Management Perspective, Journal of Forensic Economics, 7(1), 47-67

De Matteis, R. (1994),  Il c.d. « danno biologico da morte » come lesione di un diritto riflesso », (Nota a trib. Milano, 2 Settembre 1993), Nuova Giurisprudenza Civile Commentata, 1,682-690,

Giannini, V.G. (1992), La risarcibilità del danno biologico in ipotesi di lesioni mortali, Responsabilità civile e Previdenza, 602

Gulotta, G. (a cura di) (2000), Elementi di psicologia giuridica e di diritto psicologico, Giuffrè, Milano

Horowitz M., Siegel B., Holen A. et al. (1997),  Diagnostic criteria for complicated grief disorder, American Journal Psychiatry, 154, 904-910

Jones D.D. (1994), Hedonic damages and the index Problem, Journal of Forensic Economics, 7(2), 193-196

Joseph W. G., Atkins E., Flaks D. K. (2000), Admissibility of expert psychological testimony in the Era of Daubert: the case of hedonic damages, American Journal of Forensic Psychology, 18, 2, 3-33

Parkes, C.M. (1980), Il lutto: studi sul cordoglio negli adulti, Feltrinelli Economica

Zettin, M. (1999), Danno biologico di natura psichica, post-traumatica e da morte, in Gulotta G., Zettin M. (a cura di), Psicologia giuridica e responsabilità, Milano, Giuffrè, 443-459

“ This study is part of a general project of Forensic Psychology course in the University of Torino, held by Prof. Guglielmo Gulotta, with the aim to make in Italy and adapt tests already created abroad, specific for Forensic Psychology” Back to top