Emotional distress is causally related to personal injury.
Becoming the victim of an accident that causes you serious injury often does more damage than an x-ray can reveal; in many cases, harm is suffered by your emotions and psyche as well as by the bones and tissues of your body. Though many people remain skeptical of claims about psychological harm, emotional distress is a genuine type of injury and is just as deserving of compensation as the physical pain and suffering you experience as a result of your accident.
Emotional distress generally falls under the heading of non-economic damages when you file a lawsuit or enter settlement negotiations. Also included as pain and suffering damages, this category of damages reflects the discomfort and anguish (both physical and psychological) caused by the conditions you suffered as a result of the accident. As physical pain and psychological trauma often have no obvious dollar value associated with them, the compensation you receive for these kinds of harm can be expressed as a multiplier applied to the total value of your medical bills associated with psychological treatment. If there are no such bills for psychological treatment, your attorney must express the psychological harm in other ways.
It’s important to note that sometimes emotional distress can result in economic damages, directly or indirectly. A serious accident can leave a victim struggling with PTSD, anxiety, or phobias, and painful or debilitating injuries can often trigger episodes of depression. Any of these psychological conditions may require medical treatment in the form of talk therapy and/or prescription drugs. (Though in many cases the psychological fallout from being injured is untreated.) These sometimes-costly treatments are legitimate economic damages, just as valid as a hospital visit to set a broken arm. Under New Jersey’s no-fault law, medical costs resulting from automobile accidents are paid for by each party’s own car insurance provider, but in any other personal injury context, medical bills for psychiatric treatment would be added to the economic damages in your injury claim right along with any other health care you received.
Lost earnings represent another way in which emotional distress can impact your economic damages. If an accident victim develops a severe phobia or PTSD as a result of an auto accident, for instance, they may find themselves struggling with getting behind the wheel of a car again. Severe depression can make even the most basic daily tasks an enormous challenge. Any of these conditions may interfere with an injured person’s ability to work, resulting in lost wages or other earnings.
However, the primary way in which emotional distress will affect your injury claim is in terms of non-economic damages. Even if you don’t seek medical treatment for the psychological and emotional repercussions of your accident, you may still struggle with symptoms that make a strong negative impact on your daily life, and merit compensation.
When you experience emotional distress of any kind connected with your accident, you should work with your attorney to document it as clearly and regularly as you can manage. Some attorneys encourage keeping a daily log or journal chronicling your emotional state following your accident, describing the ways your mood and ability to cope with everyday challenges have been affected. Some people may have a hard time articulating – or even admitting – to struggling with emotional and psychological suffering. Our society still unduly stigmatizes mental health issues of any kind, treating them as some sort of character flaw or personal weakness rather than the legitimate health concern that they are. Men in particular may have difficulty discussing their emotional distress or trauma, since our culture pressures men to be “strong” and tends to unfairly judge men for exhibiting emotional vulnerability of any kind. Despite all this, it’s critical to be as honest and open about your psychological distress as possible in order to receive fair compensation for it in a personal injury claim.
As with physical injuries, it’s easiest to obtain compensation for emotional distress if you can show that you had no history of psychological issues prior to your accident. However, people with existing depression, anxiety, or other mental health issues can still successfully pursue compensation for their injury-related emotional distress. Many times, such issues are exacerbated by physical injury. If you were already being treated for a pre-existing psychological condition, your therapist or other care provider should be able to describe what your baseline pre-accident emotional state was like and offer an expert opinion on the way you were affected by the incident. This is also another way in which careful logging and documentation of your day-to-day emotional distress can be useful; note and describe any new emotional symptoms you experience, and whether existing psychological issues have noticeably changed or worsened. (Bear in mind, however, that such a log or diary may become evidence in your case when the defense attorney finds out you have kept such a diary. Therefore, be as accurate and as clinical as possible in keeping the log.)
Many times, a spouse is included as a plaintiff when suit is filed in Court. The claim of the physically uninjured spouse is called a “per quod claim” and reflects the reality that when your spouse is injured, you suffer damage as well – you don’t have the same spouse as before – one who is injured, one who needs to be cared for at home, one who cannot perform the usual duties that spouse would usually perform – and a spouse who may be uninterested psychologically, or due to injuries, physically unable to engage in the physical relationship which is part of marriage. In cases where the inured spouse is psychologically harmed, there can be a dramatic alteration in the personality of the that spouse and the uninjured spouse suffers that loss as well. An experienced personal injury attorney will be able to tell you when such claims should be included in a case and how to prove them.
OG post by: Francis Smith