Several people have asked me questions about what types of injuries you can claim in a personal injury or clinical malpractice claim. Do mental health problems count as an injury? Is it just cuts, bruises and broken bones? What about hurt feelings? Or emotional discomfort?
Most people know and understand that you can claim for a broken arm or leg, but things get much more confusing when you start considering non-physical injuries.
This article will discuss emotional distress claims in personal injury and clinical malpractice claims.
WHAT COUNTS AS EMOTIONAL DISTRESS?
It is not uncommon to experience emotional distress when injured, many of us would be upset to suffer an injury, especially one caused by negligence. Suffering physical harm at the hands of another is distressing, even more so when it is a person in authority whom you should be able to trust with your well-being, such as a doctor.
However, when considering the legal standpoint, the question is not whether you suffered distress, but whether that distress was severe or significant enough to be considered an injury in and of itself.
Severity can be difficult to measure, as I’m sure the person experiencing the discomfort feels it is significant enough to count as an injury. However, to qualify as an injury in the legal sense, it must be significant enough to be classified by a medical professional. It must be substantial enough to be considered a recognized psychiatric injury.
A psychiatric injury can include long-term conditions, such as anxiety, depression, post-traumatic stress disorder, and adjustment disorders, or short-term conditions, such as travel anxiety. The distress caused must be reasonably severe and for your claim to be successful you will need to show that it has affected your quality of life. You must show that you have suffered a ‘loss of services’ because of it. Loss of comfort is classified as the benefit and enjoyment of life that you will have lost due to your injury.
In some situations, you can file an emotional distress claim without having suffered a physical injury. If you have seen a close friend or family member suffer an injury, such as a car accident, they may be able to file a claim.
COMPENSATION CALCULATION
Emotional discomfort or emotional pain is a touchy area when it comes to personal injury and clinical negligence. To correctly answer this question, you must have a basic understanding of how compensation is calculated.
In a nutshell, your compensation will be divided into general and special damages.
Definition: General damages, the compensation recovered for pain, suffering and loss of comforts.
Definition: Special damages, the compensation recovered for financial losses, for example, lost income, travel expenses, medications, etc. and time spent by others helping you.
As you can see, emotional distress will be listed under the General Damages heading. General damages will be calculated using a report from an independent medical expert. Usually a psychologist or psychiatrist will prepare a report about your emotional distress.
To assess compensation, your expert and legal team will look at the following
How your injury has affected your ability to cope with life, education, and/or work. The effect your injury has had on your relationships with family, friends, and how you deal with strangers. Your own efforts to recover and the extent to which treatment would be successful.
Compensation can vary widely for these types of injuries and it is impossible to accurately predict without a medical report.
IN CONCLUSION
In conclusion, emotional distress can be considered an injury if it is serious enough to be classified by a medical professional. However, hurt feelings, worry, or unhappiness will not be considered compensation. Assessing emotional distress is difficult and will require the assistance of an independent medical expert similar to other physical injuries.