Legal Issues Stemming from Postpartum Depression

According to the Centers for Disease Control and Prevention (CDC), one in eight women who have recently given birth experience symptoms of postpartum depression. Postpartum depression is defined as a mood disorder under Illinois law. The American Psychological Association (APA) says that postpartum depression (PPD) “doesn’t go away on its own. It can appear days or even months after delivering a baby; it can last for many weeks or months if left untreated.”

For new mothers experiencing PPD, it’s essential to seek professional help to ensure your continued well-being as well as your child’s health. According to the Illinois Department of Public Health, risk factors for pregnancy-related maternal depression include:

• Domestic abuse
• Low-income background
• Being under 20 years of age
• Giving birth to a low-weight infant

Postpartum depressive symptoms include:

• Anxiety or panic attacks
• Feelings of guilt or worthlessness
• Excessive irritability, anger, or mood swings
• Thoughts of hurting yourself or the baby

PPD is not only an issue for women’s health — it can have legal implications requiring legal help.

1. Criminal Defense

In the past, the best chance that a mother suffering from postpartum depression would have as a defense to a crime of child neglect or homicide was a verdict of “not guilty by reason of insanity.” This defense typically requires evidence of prior psychiatric problems. However, women in a postpartum period or psychosis often have no prior psychiatric history. In fact, if the insanity defense were invoked, prior high functioning could be misleading and work against them.

Illinois has introduced a new law that allows women who have already been tried and convicted of a crime that was committed as a direct result of suffering from postpartum depression or postpartum psychosis to be re-sentenced. While a favorable decision can’t undo a tragedy, it can set someone on a new path to a productive life.

“What an overdue and great idea this law is,” says Chicago attorney Mark DeBofsky. “Especially for some notable cases in which women with postpartum depression were not given even the slightest bit of consideration for their capacity to understand their actions due to their mental state.”

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2. Insurance Issues

DeBofsky once had a client who had severe postpartum psychosis and was out of work for several months. Her insurance coverage treated this instance as a psychiatric liability and denied her claims for $100,000 in bills. “Both sides hired experts, and for the first time in my career, the judge hired their own expert,” he says. “The court found that her condition was due to the physiology of pregnancy, and she was able to recover.”

Plans subject to Illinois state laws and the Affordable Care Act (ACA) must contain two primary requirements:

1. The policy must cover mental health benefits and substance use disorder benefits
2. The policy cannot establish any terms, conditions, or benefits that place a greater financial burden on an individual to obtain mental health benefits than for diagnosis and treatment of medical benefits

This mental health parity applies to your disability insurance, and it prevents insurers from treating physical and mental disorders differently.

“We still see insurers treating mental health issues differently than physical problems,” says DeBofsky. “For example, many insurers will now cover some mental health services for up to 24 months, where they will pay a physical injury almost indefinitely.”

3. Getting Legal Help

DeBofsky recommends that one should consult with a maternal health professional who has specialized knowledge in postpartum depressive disorders before having a baby. And that anyone experiencing thoughts of harm to themselves or newborns should immediately seek help from health care services.

If the unfortunate does happen, be sure to hire a reputable and experienced attorney who specializes in criminal defense or employment and insurance defense to be certain you are properly protected.