Regarding personal injury claims, proving physical injuries may seem straightforward. However, establishing emotional distress is far more complex. Here, emotional distress is when you suffer any harm to your person or emotions. This injury is a common form of harm to your mental health, and it can significantly complicate your life for an extended period. You have the legal right to receive compensation for emotional distress, the same as you do for medical expenses and lost earnings.
Before you can get paid for any emotional distress damages, you must have compelling documentation that shows how you are suffering and the extent of your condition. Even though emotional distress is something that you report from what is going on inside of your head, you still need proof for the insurance company to accept it as an effect of your accident. Accordingly, you need to take action to prove emotional distress, even though it is a task that seems complicated in theory. First, you should always seek treatment from a mental health provider. Not only will it help you in your daily life, but it can also provide the basis for an emotional distress claim.
You should also hire a personal injury lawyer as soon as possible. They will advise you on the steps to prove your emotional distress. Further, they will fight for you in the legal process, both when you need to prove liability for the accident and when you need to push back in the face of questions from the insurance company.
What Type of Emotional Distress Can You Suffer from an Accident?
The trauma of the accident itself, or its immediate aftermath, can cause you to suffer emotional distress. The most common form of emotional distress that you may suffer after an accident is post-traumatic stress disorder, and PTSD can affect you in many ways. You may have flashbacks to the accident that affect your sleep and waking hours. PTSD often stays with you for many years and sometimes for the rest of your life. For example, if you suffered an injury in a serious car accident, you may face fears when using motor vehicles in the future. Then, you cannot enjoy your life or even go to work.
Emotional distress can affect you in several other ways, including:
- Anxiety that causes you to feel unsettled
- Difficulty focusing on tasks
- Trouble eating and sleeping
- Struggles with relationships
- A constant feeling of fatigue
You Have the Legal Right to Compensation for Emotional Distress When You Can Prove Fault
When you can prove that someone else’s negligence caused your injuries, they will owe you the full amount of damages they have caused you. Personal injury damages fall into two general categories (not including punitive damages, something only a judge or jury can award):
- Economic damages reimburse you for the financial costs of your injury, such as medical expenses and lost earnings.
- Non-economic damages compensate you for the more subjective effects of your physical injuries, such as the experience that you have had to endure.
Emotional distress is part of your non-economic damages. You can receive compensation for pain and suffering, emotional distress, and loss of life enjoyment. Oftentimes, non-economic damages will make up the bulk of your personal injury compensation, especially when you have suffered a severe injury.
Emotional distress is usually not an independent claim. In most jurisdictions, you must have suffered a physical injury for you to receive money for any emotional distress that you have endured. There is an independent legal ground called negligent infliction of emotional distress, but it only applies in very limited circumstances. In addition, you can sue for intentional infliction of emotional distress, but that only occurs when the defendant has engaged in shocking and egregious actions.
You Must Prove Your Damages to Receive Compensation for Them
When you submit a claim or file a lawsuit, you have the burden of proof to demonstrate your damages. You must prove that someone else was responsible for your injuries and quantify and support these claims. You will not receive payment for anything without proper documentation to back up your case.
Emotional distress is an inherently subjective claim. An injury to your emotions is inside your head, although it can certainly impact your daily life. To take your emotional distress claim from something that is in your mind to one that leads to compensation, you need documentation that proves you are suffering from it. Unfortunately, this task is challenging due to the subjective nature of the condition, and you can expect that the insurance company will challenge you every step of the way. Your documentation is vital to proving your case and will allow you to fight back when the insurance company tries to minimize your condition.
Try to Document Emotional Distress on Your Own
The first thing that you can do to help prove your emotional distress is to keep a daily log of what you are going through after your accident. Although this journal is in your own words, you document your experience as it occurs, making it more persuasive. Still, you need something more than your own words to prove your emotional distress.
Those who know you can also testify about what they have observed from you since your accident. Your family and friends can speak to what you have been like daily and what they have seen from you. However, your acquaintances may not have as much credibility as a seemingly more objective witness, and the insurance company may discount the testimony of friends and family.
You Need to Have a Medical Professional Diagnose and Treat Your Emotional Distress
You cannot simply claim that you have suffered emotional distress without having a medical professional formally diagnose and treat you. The first step that you must take is to seek treatment from a mental health provider. It is important to remember that getting help for a mental health condition is not a sign of weakness. Instead, receiving treatment is often the first step in either recovering from emotional distress or learning how to manage and live with the condition. You cannot recover any damages for emotional distress when your claims are speculative, and the evidence does back up what you say.
Further, you have a legal obligation to mitigate your damages in any personal injury case. If you do nothing in the face of apparent symptoms and effects, the insurance company may refuse to pay your particular damages. Here, mitigating your damages means that you have promptly sought treatment for your condition and followed all your treatment provider's recommendations. If a doctor prescribes medication, you must take it regularly. Moreover, you must make appointments with your treatment provider and attend all of them.
Your Treatment Provider Will Document Your Experience
When you see a mental health provider, they will make notes of your treatment. These notes will memorialize what you told them during your treatment sessions and may contain a diagnosis of your condition. You must have the support of an experienced mental health professional when claiming emotional distress damages. The insurance company will likely believe what a treatment provider says.
Then, your treatment provider can further back up your side of the story if you need to file a lawsuit in your case. If your case goes to court and there are any issues about your damages, the insurance company’s attorney will want to speak to you and your mental health provider about your condition. An experienced mental health professional can relate your condition when they testify under oath at a deposition. They can speak in technical terms, including a clinical discussion of your diagnosis. This testimony is more effective than telling your own story because it comes from a credible treatment provider.
The Insurance Company May Still Refuse to Pay for Emotional Distress
Insurance companies may not hesitate to challenge you and your story if it means that they can save money; they are constantly looking at their bottom line. Even if insurance companies understand that almost every person involved in specific accidents will suffer emotional distress, they still want to see particular documentation. They may even have their own doctors look over your records to determine a different version of your reality. Insurance companies have a financial incentive to question what you are saying every step of the way because, otherwise, they may need to write you an extensive check.
Be Mindful of Potential Insurance Company Surveillance
When trying to prove your emotional distress damages, you must stay careful about what you do on your own time. Insurance companies sometimes surveil people who have filed claims and can legally hire someone to follow you so long as they are not looking out into your residence. Insurance companies may deny parts of your claim entirely if they find any information inconsistent with your claim. You may face consequences if the insurance company gathers information showing you are living a seemingly normal life after claiming pain and suffering and emotional distress damages.
Your Personal Injury Lawyer Can Stand Up on Your Behalf
You may still end up at odds with the insurance company if it refuses to pay you the full amount of damages for the emotional distress you have suffered. Insurance companies may deny this part of your claim or offer you an amount that does not adequately compensate you for what you have endured.
You do not have to accept whatever the insurance company offers you (or does not offer you) for your emotional distress damages or your claim in general. Every personal injury claim is subject to negotiation, and your personal injury attorney will stand up for you when the insurance company is not offering you the full amount of money you deserve. They will do this by advising you to reject any low settlement offer that does not reflect all the harm you have suffered. Your personal injury attorney will also fight for your rights by filing a lawsuit on your behalf in court. Then, a jury will determine whether you have suffered emotional distress and how much money you should receive for it.
Regardless, you should always contact a personal injury attorney as soon as possible after your accident. They can give you important legal advice on things that you can do to document and prove your damages, including telling you what you may need in your claim file or lawsuit when you submit it.
It Costs You Nothing Out of Pocket to Hire a Personal Injury Lawyer
You may have worries concerning how you can afford to hire a lawyer. Fortunately, when it comes to personal injury cases, you do not have to worry about paying any upfront fees or out-of-pocket expenses. Personal injury lawyers typically work on a contingency fee basis, which means they only get paid if they win your case. When you enter into a contingency fee agreement, your lawyer will agree to handle your case and cover all its expenses. These costs include court fees, expert witness fees, and investigation expenses.
When they successfully resolve your case, meaning you receive a settlement or win at trial, your lawyer will collect a percentage of the final compensation as their fee. You and your attorney will agree on this fee upfront, and it is typically a percentage of the total recovery. This arrangement ensures that your attorney will work diligently on your case and maximize your compensation, as their fee depends on the outcome of your claim. You will also have peace of mind knowing that your lawyer is protecting your rights while you focus on healing your mental health.
A Personal Injury Lawyer is Your Best Ally in an Injury Claim
Proving emotional distress in a personal injury claim requires careful attention to the legal requirements. It is essential to work with an experienced personal injury lawyer who can guide you through the process and gather the necessary evidence to support your claim. Remember, you are not alone. Reach out to an attorney with experience in personal injury cases to help you build a strong case for emotional distress.