After an accident injures someone, they may receive medical treatment for injuries such as broken bones, lacerations, and soft tissue damage. However, accident victims often suffer not only physical injuries but psychological ones as well.
Luckily, the personal injury claims process allows people injured due to someone else’s carelessness or recklessness to obtain compensation for both types of injury. Contact a personal injury lawyer to learn more about how to include emotional distress in your personal injury claim and to ensure you receive the compensation you deserve.
What Is Emotional Distress?
According to Cornell Law School’s Legal Information Institute, the term emotional distress refers to a negative experience from remembering a particular event, occurrence, or pattern of events. Emotional distress generally presents with symptoms such as anxiety, depression, loss of the ability to perform tasks, or even physical illness.
The Substance Abuse and Mental Health Services Administration (SAMHSA) adds that while the emotional distress of an accident usually fades relatively quickly, the symptoms can last for weeks or months for some individuals.
It can also have negative impacts on the relationships that the sufferer has with family and friends as they grapple with an extended list of symptoms such as:
- Eating or sleeping too much or too little.
- Avoiding interactions with people and loss of interest in hobbies.
- Having low or no energy, along with unexplained physical aches and pains.
- Feeling helpless or hopeless.
- Substance abuse involving cigarettes, alcohol, or drugs
- Frequently feeling worried or guilty without understanding why
- Suicidal or homicidal ideations.
- Difficulty managing work or home life.
Types of Emotional Distress
When it comes to personal injury claims, someone else’s actions can provoke three types of emotional distress.
- Negligent infliction of emotional distress occurs when someone’s careless or reckless actions cause someone else to incur an injury. This is a common cause of emotional distress due to a car accident, as most car accidents are caused by a careless or reckless (negligent) action rather than an intentional one.
- Negligent infliction of emotional distress experienced by a bystander. Using the car accident scenario once more, this type of emotional distress can be experienced by an occupant of a motor vehicle involved in an accident who was not physically injured but witnessed loved ones incur serious injuries or even death.
- Intentional infliction of emotional distress occurs when someone is injured as a result of actions that the at-fault party took on purpose. This type of emotional distress commonly occurs alongside injuries from abuse or while the at-fault party was committing a crime.
How Is Emotional Distress Proven?
To obtain compensation for any effect you suffered as a result of your injury, you must be able to prove two things: that someone else was responsible for causing the accident and the monetary value of the harm that the claimant suffered.
Liability is usually proven by using evidence to show the following elements of the claim:
- The at-fault party had a duty to take reasonable actions to avoid causing harm to others. In car accident claims, it must be shown that the defendant was operating their vehicle on a public roadway. For premises liability issues, it must be shown that the defendant had a duty to protect others from property hazards as a result of their control over the property and how it is used.
- The at-fault party breached the duty of care. The defendant took actions contrary to For example if the injury occurred as a result of a car accident, the claimant must be able to show that the defendant was operating their vehicle unsafely or illegally on a public roadway. In a slip-and-fall accident claim, the claimant must show that the at-fault property owner or manager failed to discover and mitigate hazards that could cause injuries to guests.
- The breach of duty owed by the at-fault party resulted in an accident in which you were injured.
Emotional distress is typically proven through documentation of the treatment received by the claimant. This includes the claimant seeking mental health services from a qualified provider and producing evidence of these visits or testimony from the provider about the distress suffered by the claimant. Other types of documentation include the prescription of medication designed to be used by those suffering from emotional trauma or notations from the claimant’s treating physician about the symptoms of trauma that the claimant is experiencing.
Even if treatment wasn’t specifically sought for the emotional distress that the claimant experienced after the accident, they could still seek compensation for this condition by producing supporting evidence, Journal entries about the frequency of medical appointments and the pain they experienced as a result of the injury can indicate that the injury consumed a lot of their time and energy and the pain of that injury or the treatments provided resulted in distress.
Claimants can also provide photographs of the visible injuries they suffered to prove emotional distress and obtain statements from family, friends, or even employers about the changes in their behavior and outlook following the accident.
How Much Compensation Can You Receive for Emotional Distress?
When a person is injured as a result of someone’s carelessness, recklessness, or even intentional actions, they can seek compensation by filing a personal injury claim against a relevant liability insurance policy held by the at-fault party. The two types of compensation include economic and non-economic damages. In the legal arena, damages refer to compensation provided for harm.
Economic damages involve compensation for the monetary expenses that the claimant incurred as a result of their injury, such as the cost of medical or mental health treatment, any property damage that the claimant experienced in the same incident as their injury, and wage loss for the time the claimant missed while they were too injured to work.
Non-economic damages refer to compensation for the impacts of the accident and injury on the claimant’s quality of life. These damages do not necessarily come with a price tag or a service bill. This type of compensation is often called pain and suffering damages, as the physical pain and suffering resulting from the injury account for much of the non-economic compensation sought through the claim. Emotional distress is one example of the type of quality-of-life impact that an injured person can seek non-economic damages.
It is difficult to come up with an average amount of compensation that a person can receive for the emotional distress they experienced due to the accident.
While emotional distress can result in economic expenses for treatment and medication, many of the emotional impacts of an injury are calculated by considering several factors about the accident, such as:
- The amount of insurance that covers the at-fault party. Because few people or businesses have the funds to pay for the expenses and impacts of an injury caused to someone else out-of-pocket, insurance is how nearly all personal injury claims are compensated. Insurance policies have policy limits, which refer to the maximum amount of compensation available through that policy. This is why your attorney will thoroughly investigate the claim to identify all sources of liability and the insurance policies they have that can compensate for the claim.
- The severity of the injury. It is impossible to know how a person will respond emotionally to the trauma of an accident, as some people get past the symptoms of emotional distress quickly. In contrast, others experience symptoms caused by the distress for months or even years. However, it is generally assumed that more severe injuries will result in more severe psychological impacts, as the sufferer experiences injuries that prevent them from working while simultaneously facing medical expenses and difficulty performing the tasks of daily living without assistance. Permanent injuries commonly result in higher non-economic damages as the claimant must also deal with the emotional distress that comes from the loss of independence and the ability to earn an income.
- The level of the at-fault party’s carelessness or recklessness. Often, personal injury attorneys will help their clients seek punitive damages, which involve compensation intended as a financial punishment for particularly reckless behavior rather than compensation intended to repay the claimant for the expenses and impacts of their injury.
- The onset of symptoms related to emotional distress, the intensity of those symptoms, and their duration. Emotional distress frequently causes interruptions to the sufferer’s daily routine. The bigger the impact on the sufferer’s life and the longer the symptoms of emotional distress last, the more compensation is likely to be received for the claim.
- The physical manifestation of the emotional distress. Emotional distress is generally accompanied by physical symptoms unrelated to the claimant’s other injuries. Symptoms such as tension headaches, insomnia, panic attacks, and changes to the person’s weight are all documentable manifestations of emotional distress that can be used to justify the amount of compensation requested.
How an Attorney Can Help You Seek Compensation for Emotional Distress
After being injured in an accident caused by someone else’s negligence or intentional acts, many people attempt to navigate the personal injury claims process on their own, without the guidance of an attorney.
Unfortunately, they’re often overwhelmed by the high-pressure tactics used by insurance companies to devalue claims and the enormous amount of documentation that must be gathered and considered to prove who was liable and justify the claim’s value. Most people who have not received education and experience with personal injury lawyers will not have a clue how to gather that documentation or counter the efforts of the insurance company to keep the claim as low as possible. They are not aware of how to value their claim or what to do if the insurance company fails to compensate for the claim.
An experienced personal injury lawyer has a deep understanding of the costs involved in physical and emotional injuries, as well as how the process works and what insurance providers are required to do due to their contractual obligation to their insured.
Here are some of the services an experienced personal injury lawyer can provide for a claimant who has suffered emotional distress in an accident:
- Ensuring that all liable parties and their insurance resources have been identified.
- Including compensation for emotional distress in the claim’s value.
- Obtaining information from the claimant’s family and friends shows the dramatic changes to the claimant’s routine due to the emotional distress they are suffering.
- Obtaining evidence of the emotional distress, including information from mental health professionals who have worked with the claimant, as well as testimony from those who know the claimant and expert mental health professionals who can help a judge or jury understand the serious psychological impacts injuries have.
What You Can Do to Protect the Value of Your Emotional Distress Claim
Personal injury claimants who have suffered emotional injuries in addition to physical ones can take protect the value of their claim by:
- Attending all appointments with their doctors and mental health providers and following the treatment plans of those providers to have the best possible outcome from a physical and mental health standpoint.
- Gathering all documents on the emotional distress suffered, including receipts for medication or treatment, journal entries in which the impacts of the injury are discussed, and doctor’s notes about the symptoms that the claimant is experiencing that indicate emotional distress.
- Obtaining the services of an experienced accident attorney who can help you put a price tag on the intangible impacts of your injury while also helping you understand your claim’s value and what constitutes a fair settlement for your claim.
If you suffered emotional distress due to an accident, it is best to contact a personal injury lawyer in New York. Emotional distress can last months or even years. An attorney can recover compensation for the trauma you experienced and the emotional difficulty you face during your recovery.
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Mr. Finkelstein is the Managing Partner of Finkelstein & Partners, LLP. He has become a noted consumer activist through his representation of injured individuals against corporate wrongdoers and irresponsible parties.
An accomplished litigator, Mr. Finkelstein has represented Plaintiffs in wrongful death and catastrophic personal injury cases. He has successfully handled dozens of multi-million dollar cases.