Personal injury attorneys speak of two kinds of suffering: physical and mental. Physical suffering is the direct result of your physical injuries. On the other hand, mental suffering is the emotional impact that physical injuries have upon you.
This blog entry provides important Q&As about the kinds of psychological injuries that are called mental pain and suffering. Among them:
What is mental pain and suffering?
What are some examples of mental pain and suffering?
What is meant by quality of life?
How do you prove mental pain and suffering?
Why are mental pain and suffering claims difficult to prove?
What factors impact the mental pain and suffering aspect of a personal injury case?
What is a tort claim?
From what kinds of tort cases do mental pain and suffering claims arise?
On what grounds can claims be made for psychological injury?
Should I accept an insurance company’s settlement offer for mental pain and suffering?
How do I begin a personal injury claim for mental pain and suffering?
How much does it cost to hire a personal injury lawyer?
1. What is mental pain and suffering?
Mental pain and suffering can include any kind of negative emotion you might suffer in the aftermath of an accident that is secondary to the physical pain you have endured to date and might experience in the future.
Some examples of mental pain and suffering are anger, anxiety, depression, emotional distress, fear, humiliation, anorexia, insomnia, lethargy, degraded quality of life, mental anguish, mood disorders, sexual dysfunction, and/or shock.
2. What are some examples of mental pain and suffering?
Just like its physical counterpart, mental pain and suffering can be mild, moderate, or severe.
Consider a mild case. Imagine that you are rear-ended in an accident and consequently suffer significant back pain. As a result, you are unable to attend your high school reunion, for which you have purchased plane tickets, rented a hotel, bought new clothes, and to which you were very much looking forward.
As a result of missing your high school reunion, you feel angry, frustrated, and unhappy. Even though all of this might seem minor in the big scheme of things, and you have no need for mental health services, all of these feelings qualify as mental pain and suffering, and you have a right to be fully and fairly compensated for it beyond your calculable expenses and losses.
Consider a moderate case. Imagine you have a traffic accident in which you suffer broken bones and a concussion. In its aftermath, you become depressed, angry, suffer from insomnia, and require mental health services of one sort or another. Your psychological pain and suffering might be directly related to the accident. And if that is the case, then you are entitled to compensation beyond your monetary expenses and losses.
Consider a severe case. In some instances, mental pain and suffering can be severe enough to prevent you from returning to your job. It is possible that even after your physical injuries have healed, you might suffer from long-lasting injuries that might include clinical depression among other diagnosable issues. In such a circumstance, beyond your purely monetary expenses and losses, you are entitled to compensation for loss of income that is directly attributable to the time you missed from work that is a direct consequence of your accident.
3. What is meant by quality of life?
This is a highly subjective term about your emotional, physical, material, and social wellbeing. It is the degree to which you are healthy, comfortable, and able to partake in (as well as enjoy) life events; and it is a significant consideration in determining compensation for mental pain and suffering (see source).
Let us assume for a moment that you play the piano. If your ability to do so has been debilitated by an accident, then your personal injury attorney will ask how important piano playing is to you. If you just bang the keys alone in your basement—that suggests a certain level of compensation.
But if you play keyboards with a garage band on weekends, then your sense of emotional loss is much greater, even if you only rock-n-roll without being paid a cent. So, your personal injury lawyer will seek relatively greater compensation for your emotional pain and suffering that is consequent of your accident.
Taking it a step further: what if you use lifetime hobbies like carpentry or woodworking to help others through your church or a service organization? How does your diminished physical stamina caused by your physical injuries affect your abilities to provide help to such organizations? And how does that debilitation impact others in your church or service organization?
What about lifestyle? Are you able to enjoy all aspects of your life the same way you did before you were injured? Were you an avid skier, bicyclist, or runner—but cannot be anymore? Has your emotional state changed after this accident such that it is affecting relationships with your family or friends?
Should your claim go to trial, be mindful that there are no judicial guidelines for determining the value of pain and suffering in a personal injury lawsuit. In most states and jurisdictions, judges only instruct juries to use good sense in determining how much to compensate you for mental pain and suffering. It is up to your personal injury lawyer to educate them about how your emotional injuries impact you, and why you need to be fairly and completely compensated for them.
4. How do you prove mental pain and suffering?
It is not easy to prove mental pain and suffering, especially when you are already traumatized physically and psychologically from the aftermath of an accident. You should seek the services of a skilled personal injury lawyer to help you with your claim, especially if your psychological injuries are preventing a resumption of your normal life.
That said, along with medical documentation from a physician or mental health professional that describes and quantifies your psychological symptoms, you will need to show:
The intensity of your psychological injuries
The length of time you have suffered from your psychological injuries
The likelihood that those psychological injuries will persist
5. Why are mental pain and suffering claims difficult to prove?
Many people (e.g. jury members) presume that psychological injuries are less severe and less credible than physical ones because the latter is more apparent. But research demonstrates that psychological injuries can be just as severe as physical ones—and in some cases more so.
There is also the incorrect assumption that psychological injuries can be fabricated. However, some bodily injuries can be faked or exaggerated just as easily as psychological ones (see source).
6. What factors impact the mental pain and suffering aspect of a personal injury case?
As the injured party in a personal injury matter, especially when it comes to the relatively nebulous area of mental pain and suffering, it is important that the members of the jury perceive you as a good witness. This means that you are likable and credible and that your testimony about your injuries is consistent.
Your diagnosis, injuries, and claims must seem sensible. You must have statements from physicians and (perhaps) mental health professionals that support your claim for mental pain and suffering. You must not appear to be exaggerating your emotional losses.
7. What is a tort claim?
A legal tort is an act committed by a person, company or some other entity that causes injury to you. It is thereby a civil wrong for which a court imposes a monetary penalty payable to you. The person, company, or entity is the defendant in a tort case. You are the plaintiff.
The principal objective of tort law is to compensate you for the injury and harm the defendant caused you; to impose liability on the defendant, and to deter the defendant and others from behaving likewise in a situation similar to yours (see source).
8. From what kinds of tort cases do mental pain and suffering claims arise?
Mental pain and suffering claims arise from all kinds of personal injury cases. Among them:
Auto accidents. If you have suffered psychological injury as a result of a car accident and were not at fault, you should seek compensation. You will need to have medical documentation detailing your emotional symptoms.
Medical malpractice. These cases arise from a physician’s negligence or inappropriate treatment. You must be able to prove that your doctor broke a rule or took incorrect, negligent, or inappropriate actions while treating you and that you have suffered significant emotional trauma as a result.
Product defect. If you have endured physical injury and/or significant emotional trauma because a product you were using was defective, you should seek compensation.
Slip and fall accidents. If you slip and fall on public or private property, you should seek compensation for any injury you might sustain, including mental pain and suffering.
Wrongful death. These claims involve the death of someone due to the negligence of some other person, party, or entity. If you suffer the loss of a loved one because of wrongful death, then you and/or your family should seek compensation, including for mental pain and suffering.
9. On what grounds can claims be made for psychological injury?
There are basically three:
Negligence is the most common. It is the failure to behave in a situation as carefully as would someone showing ordinary prudence. Negligence commonly involves actions, but it can also involve omissions (i.e., when there is a duty to act).
Strict liability holds a person, party, or some other entity culpable for action regardless of intent (or a person’s mental state) at the time of the occurrence. E.g., a manufacturer is held responsible for injuries caused by a defective product, even though they neither acted negligently nor intended to cause harm.
Intentional wrongs result from an intentional act by someone. E.g. battery, assault, false imprisonment, trespass to land, trespass to chattels, and intentional infliction of emotional distress (see source).
10. Should I accept an insurance company’s settlement offer for mental pain and suffering?
Certainly not without the help and advice of a personal injury lawyer.
Be mindful that any insurance company representative to whom you speak will be motivated by his or her employer—the insurance company—to initially offer you the smallest possible settlement for any mental pain and suffering you might have incurred because of your accident.
Remember that insurance company representatives are never on your side, no matter how friendly, sympathetic, and congenial one might seem to you. In fact, quite the opposite is true. Insurance company representatives aggressively deny or limit claims because they are wagering you will not hire legal counsel and assert your rights.
Do not let that happen to you!
11. How do I begin a personal injury claim for mental pain and suffering?
Galindo Law offers a strong and proven record of evaluating damages, identifying liable parties, and delivering results across the most involved and complicated personal injury cases, nationwide.
We offer a 20+ year legacy of winning and recovering financial compensation for personal injury, accidents, and insurance claims on behalf of our clients.
Our personal injury attorneys stand ready to listen to your concerns and guide you on how to proceed with your personal injury case.
12. How much does it cost to hire a personal injury lawyer?
Galindo Law does not charge any upfront or out-of-pocket fees. We are only paid a percentage of the settlement we are able to secure for you. So by working with Galindo Law, you incur zero financial risk.
Remember, when it comes to a personal injury claim, you are not asking for charity. You deserve to be adequately compensated for your loss
And thank you for reading our blog!
Comments