When you think of an accident or a dog bite, what strikes your mind first? Obviously, it would be a physical injury and the pain related to that. Am I right? But there is another side of the coin which is often overlooked. That is the psychological injury or emotional distress associated with the injury.
In this blog, we would be getting deep into the details of an emotional distress lawsuit. Before that, let us first understand what emotional distress is all about.
The trauma of a personal injury may cause changes in the emotional state of the victim, which is referred to as emotional distress in the court of law.
The emotional distress resulting from a personal injury is often devastating than the physical injury. Emotional distress cases arise in the cases of car accidents, pedestrian accidents, bicycle accidents, workplace accidents, animal attacks, defective product incidents etc. As psychological damages are not measurable or visible like the physical damages, it is not considered important in some lawsuits.
Victims of a personal injury respond to trauma in different ways. The severity of the accident, the physical condition of the victim and the impact on the brain are the common factors determining the psychological damages in a victim. Children and older individuals are more susceptible to psychological injuries associated with incidents like road accidents, animal attacks, etc.
Emotional Distress – Symptoms
Symptoms of emotional distress may vary from one individual to the other. Two individuals involved in a personal injury incident need not present the same degree of emotional response to the trauma. The following are the commonly observed symptoms of emotional distress associated with a traumatic injury.
- Anxiety disorders
- Loss of appetite
- Repeated flashbacks
- Suicidal thoughts
- Panic attacks
- Anger and mood swings
- Physical and mental fatigue
- Emotional detachment
Emotional Distress – Damages
Post-traumatic stress disorder, chronic pain, traumatic brain injury, Anxiety disorders, specific phobias and depression are the commonly observed psychological injuries associated with personal injury.
1. Post-Traumatic Stress Disorder (PTSD):
It is an extreme mental condition triggered by experiencing a terrifying incident like an accident or injury. Studies indicate that some areas in the human brain like the amygdala, hippocampus, and ventromedial prefrontal cortex are all involved in the onset of PTSD symptoms.
The amygdala stores the sight, sound and smell associated with the traumatic event. When one or more of these stimuli are encountered, the amygdala gives a dangerous signal to prepare the body. The hippocampus involuntarily retrieves the traumatic memory on receiving the triggering stimulus. In PTSD, the prefrontal cortex is involved in symptoms like social withdrawal and emotional numbing.
The symptoms associated with PTSD may start within one month of the traumatic event, or even years after the accident. Intrusive memories of the accident, avoiding the memories related to the injury, negative thoughts and changes in physical as well as emotional reactions are the most common symptoms of Post-Traumatic Stress Disorder.
2. Chronic Pain:
Chronic pain is characterized as persistent pain that lasts longer than the body’s normal healing process allows. Individuals suffering from PTSD are at higher risk to develop chronic pain. Studies indicate that anxiety and trauma cause more tension and constriction in the muscle. In most cases, chronic pain is also accompanied by feelings of loss of hope, depression, and anxiety.
3. Traumatic Brain Injury:
A traumatic brain injury (TBI) occurs when there is a violent blow to the head or body, causing damage to the brain. The brain crashes back and forth inside the skull after an injury, causing swelling, bleeding, and nerve fiber breaking.
The injury that occurs at the moment of impact is called primary injury, which may involve either a specific lobe of the brain or the entire brain. The brain experiences a delayed trauma after the initial impact – it swells, pressing itself against the skull and limiting the flow of oxygen-rich blood. This is referred to as secondary injury, and it is often more severe than the primary injury.
The symptoms of a traumatic brain injury may be exhibited immediately after the traumatic event or even weeks later. Long-term psychological injuries from concussions include mood swings, difficulty recalling events, and exhaustion. Traumatic brain injury may be mild, moderate, or severe depending upon the severity of the personal injury.
4. Acute Anxiety Disorder:
Acute anxiety disorders may include
- Phobias – Different types of fears associated with the accident like driving phobias, fear of dogs, fear of height, etc.
- Panic attacks – The feeling of sudden, intense fear with no special reason.
- Social anxiety disorder- Uncontrollable self-consciousness and stress in social situations.
- Agoraphobia – Certain situations or places make you feel trapped or helpless.
- Separation anxiety – Insecure feeling when some close to you leaves your sight.
Depression is another type of psychological damage that may have existed before an accident or maybe aggravated because of the accident. It is exacerbated by a combination of family mental health history or a traumatic incident.
Can You Sue Someone for Emotional Distress?
Like a personal injury, psychological damage can also be entitled to compensation. But the hurdle is that emotional distress is not that apparent as the physical pain and suffering which makes the claim process very hard. Insurance companies may contend that the victim is exaggerating his injuries and the accident is not as significant as the victim claims. Suing for emotional distress requires an experienced personal injury attorney who could help the plaintiff obtain a decent payout for emotional distress.
Emotional Distress in Legal Terms
Legally, psychological injury is considered as non-economic damage in personal injury cases like accidents and dog bites. As it is non-quantifiable, emotional distress damages can only be claimed based on the proof that the distress has a severe impact on the victim’s life. In some states of the US like California, even the bystanders who witness the accident with the victim are entitled to receive damages for emotional distress when proved with evidence.
1. The Intentional Infliction of Emotional Distress:
In some cases, the defendant would have intentionally inflicted emotional distress on the victim which would be proved. In such lawsuits, it should be proven that the defendant’s action was outrageous and had the intention to harm the victim. It should also be proved that the act caused emotional distress in the victim.
2. The Negligent Infliction of Emotional Distress:
Though not intentional, the defendant can still be held liable for emotional distress injuries if his negligence caused the injury which resulted in serious emotional distress to the victim.
- Physical injuries: To prove the emotional distress, an important evidence would be the victim’s physical injury. But in certain rare cases, it is not mandatory for the victim to have a physical injury to support the emotional distress compensation claim.
- Mental health narratives: Mental health narrative would be prepared by a qualified medical professional after evaluating the emotional condition of the victim. These notes regarding the psychological distress of the victim after the accident may strengthen the emotional distress claim. The reports may also include the counseling and the psychiatric treatment sessions, the plaintiff had to undergo after the injury.
- Medical reports: The medical report of the victim act as the first line of evidence for all the treatment, the victim had undergone.
- Testimonies: Testimonies from individuals close to the victim are considered as evidence in an emotional distress compensation. The friends, colleague and family members can provide details on the emotional condition of the plaintiff after the incident.
Emotional Distress Claim
The following are the steps involved in an emotional distress claim:
- Documenting the distress:
Documenting the emotional distress in medical records, work records, personal journals, etc. is a crucial step when it comes to emotional distress compensation. Even heart rate and sleeping pattern monitoring of the victim can act as evidence during the lawsuit.
- Discussion with an attorney:
An experienced personal injury attorney could help the victim in an emotional distress lawsuit. The attorney reviews the documents of the victim and then files a lawsuit.
- Filing a lawsuit:
An emotional distress lawsuit would be filed against the defendant.
- Pre-trial preparations:
During the pre-trial phase, both the plaintiff’s and defendant’s attorneys gather evidence to justify their respective claims. To avoid a trial, the two parties can work out a settlement offer.
- Trial & Settlement:
If the settlement does not turn out well, then the court would proceed with the trial.
There is no doubt that the emotional distress of a traumatic personal injury cannot be discounted. But alleging mental distress is trickier than claiming a physical injury. In scenarios like workers’ compensation, there is no scope to claim for the psychological injury associated with workplace accidents. However, in a personal injury lawsuit, an expert personal injury attorney with expertise in emotional distress claims can help the plaintiff to file the lawsuit.
In emotional distress lawsuits, the plaintiff’s medical chart should focus on the mental distress he has experienced and the care he has received. For that, the medical records need to be reviewed appropriately. Outsourcing the medical chart review process to a skilled medical record review company would take care of the process quickly and efficiently. This would definitely aid the plaintiff in receiving a better settlement.