Suing for emotional distress without physical injury has a complicated history in the U.S. and Pennsylvania. Depending on the circumstances, an emotional distress lawsuit can be a confusing, frustrating process. Your options for restitution are dependent on the cause of the distress, what type of insurance you have, and whether physical injuries accompany the emotional harm.
We sat down with one of our Dugan & Associates emotional distress claims lawyers to learn more:
Thank you for sharing your experience with us. What is important to know about emotional distress claims?
To recover for negligent infliction of emotional stress in Pennsylvania, the Plaintiff must prove one of four elements: (1) that the Defendant had a contractual or fiduciary duty toward him; (2) that Plaintiff suffered a physical impact; (3) that Plaintiff was in a “zone of danger” and at risk of an immediate physical injury; or (4) that Plaintiff had a contemporaneous perception of tortious injury to a close relative.
How do I know which type of emotional distress claim to use?
Your attorney can advise whether you have the evidence to support an emotional distress claim.
What is the difference between full tort and limited tort insurance? Why does this matter for emotional distress claims?
An emotional distress claim is not available to a limited tort claimant unless the case falls within the exceptions to limited tort.
What can I do to have the best chance at a favorable outcome for my case?
It is important to closely follow the directions of your medical providers and keep your attorney well informed on your condition and treatment.
What factors will affect the amount of my claim?
If you are able to prove an emotional distress claim, the value of your case will depend on the evidence of your injury and its impact on your life. Dugan and Associates will gather that evidence and present it to the defendant to get you the compensation you deserve.
Until the 21st Century, Pennsylvania courts required that any restitution for emotional distress be accompanied by physical harm from an injury, known as the “impact rule.” For example, even if a plaintiff is suing for emotional distress due to a car accident, they must have also sustained some form of physical injury to support their case. Their emotional distress would then be listed under “pain and suffering.”
The impact rule was adjusted in 1970 to allow for “zone-of-impact-liability” claims. This created precedent for a someone near an accident to take legal action for emotional distress if they were at risk of physical harm during the accident, regardless of if they experienced physical harm themselves. The official court term for these cases is negligent infliction of emotional distress (NIED).
The zone-of-impact was expanded in 1979 to include “bystander liability.” This allowed close family members witnessing trauma experienced by their relatives to sue for emotional distress.
A further court definition for NIED was established in 2011, allowing Pennsylvanians to sue for breaches of duty from one person to another when there is a pre-existing "special relationship.” The law explicitly states that the emotional harm experienced has to be severe, to a degree where it would be unreasonable to expect someone to endure the distress. For example, in the historic Toney v. Chester County Hospital case which caused this expansion of NIED, the plaintiff’s doctor misinterpreted the expectant mother’s ultrasound. Jeanelle Toney was told that her child was developing as planned. Therefore, she experienced great emotional distress when her baby was born with extensive disabilities. The court ruled that Toney’s radiologist had a duty to determine her baby’s health and inform the mother, which they did not perform due to negligence.
Other types of emotional distress include intentional infliction of emotional harm, pain and suffering from a physical injury, and loss of consortium for the spouses of injured individuals.
Typically, and for the best results in an NIED case, emotional distress must be accompanied by a physical manifestation of the harm. This could include mental health disorders such as depression, anxiety, panic attacks, or post-traumatic stress disorder (PTSD). Other examples include stress-related conditions such as ulcers, headaches, and insomnia.
Plaintiffs are asked to provide any evidence of their emotional trauma, such as testimony from a mental health professional or personal witnesses comparing their behavior and quality of life before and after the traumatic event. It can also be helpful to keep a journal documenting your experience and any difficulties in the aftermath of the event.
You will need to present evidence that the accident was caused by the other party, and that you are not liable. You will also need to show that the accident is the direct cause of your emotional harm, rather than a pre-existing or independent condition.
While financial losses are quantifiable, non-economic damages such as emotional distress can be harder to assign a value to. Courts use two main methods to calculate non-economic damages:
Multiplier method, where your economic damages (i.e. loss of wages, medical bills, etc.) are multiplied by a factor between 1.5 and 5, depending on how severe your injuries are.
Per diem method, where your financial loss per day is calculated for the duration of your full recovery.
Documenting and navigating an emotional distress claim can be lengthy and complex. If you or a loved one has suffered emotional distress or psychological harm, our team at Dugan & Associates will work to pursue fair and just compensation for loss of earnings, medical expenses, physical damages, and decreased quality of life.
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