Including Compensation for Emotional Distress in Your Injury Settlement

How to calculate the value of emotional distress as part of your injury compensation. See when you can sue for psychological harm.

Most personal injury claims include compensation for emotional distress caused by physical injuries.

It’s included as part of “pain and suffering,” which is a combination of the physical pain and mental anguish a victim suffers due to an accident and their physical injury.

Insurance companies are usually willing to pay one or two times medical expenses to cover pain and suffering for minor injuries. High-dollar pain and suffering payouts are limited to serious injury cases.

Getting an insurance company to pay compensation for a psychological injury without related physical harm is difficult, but not impossible. Here’s what you need to know.

Calculating Emotional Distress Damages

Placing a value on your pain and suffering, also called non-economic damages, starts with adding up your hard costs, meaning the total of all expenses related to the injury.

Hard costs are measurables economic damages, such as:

  • Medical bills
  • Out-of-pocket medical expenses
  • Lost wages

Multiply the total of your economic losses by one or two to estimate your pain and suffering payout. The result is the total amount you will demand for a final settlement. Although basic, this “multiple method” does help give a rough starting point for your demand.

Sample: Emotional Distress Calculation for Mild to Moderate Injury

If your economic damages add up to $2,000, you can add 1.5 times that amount ($3,000) to account for your non-economic damages. Your total demand for compensation will be $5,000.

The more serious the injuries, the higher the multiple. For very serious injuries, you’ll need an attorney to calculate the proper demand to fully account for your emotional trauma.

Convincing the Insurance Adjuster

If you’ve fully recovered from a relatively minor physical injury, you can probably negotiate your own injury claim directly with the insurance company.

Some adjusters view emotional distress as a ploy to get more money out of insurance companies, but that’s incorrect.

Emotional distress describes real injuries suffered by people who deserve to be compensated. Most personal injury victims experience some type of emotional distress in varying degrees of severity.

When negotiating with the insurance adjuster, the most effective way to communicate your emotional pain is by describing what you’re experiencing. But persuading the adjuster will take more than a list of symptoms. You must provide evidence and clearly explain how those symptoms affected you.

If you have a history of depression or anxiety, the challenge is to show how the accident aggravated your pre-existing condition, or created new symptoms.

Giving specific examples of the reasons for your anxiety or depression, or why you can’t sleep since the accident will be more convincing than simply stating, “I can’t sleep.” Be heartfelt and openly communicate the emotional strain the accident has put on you and your family.

Case Example: $12.5 Million for Injuries and Emotional Distress

In April 2017, Rickie Huitt underwent cancer surgery to remove his prostate gland. The surgery left Rickie impotent and unable to control his bladder.

Then he found out it was a mistake.

Rickie Huitt didn’t have cancer. A pathologist at the Iowa clinic mixed up his lab tests with those of a man who did have cancer.

Attorneys for Mr. Huitt filed a lawsuit against the Iowa Clinic, alleging medical malpractice for the wrong diagnosis and unnecessary surgery.

At trial, the clinic admitted the mistake but argued that compensation for Huitt should be limited to $750,000 since he could still do activities like mowing the lawn, attending events, and driving his car.

Huitt’s attorney impressed the jury by describing the anxiety, humiliation, and other emotional distress Huitt endures because of the wrong diagnosis and unnecessary surgery. The attorney explained Huitt felt he “lost his manhood.”

The jury found in favor of Rickie Huitt, awarding $12.5 million for his injuries and emotional distress.

In this case, Mr. Huitt was able to demonstrate significant, long-term psychological injuries arising from his physical injuries. Despite the at-fault party’s arguments, the jury could easily understand Mr. Huitt’s emotional distress. 

Can I Sue for Emotional Distress?

Injuries to our muscles, bones, or internal organs can cause severe pain and other physical symptoms which may continue for weeks, months, or even years. Medical treatment may be painful, or have uncomfortable side effects.

There are no objective measurements for determining the extent of physical pain. Each of us experiences pain differently. Even with today’s advanced medical technology, the best method doctors have for measuring a patient’s pain is to ask, “On a scale of 1 to 10, how would you rate your pain?”

In general, insurance adjusters understand that the more severe your physical injuries, the more pain you will experience, and the greater the likelihood you’ll endure emotional suffering.

In a personal injury claim, you must be able to communicate your level of pain. You’ll have to convince the adjuster of the depth of your physical suffering. You can then relate your physical suffering to your emotional suffering.

Most claims for emotional distress are in connection with pain and suffering secondary to a physical injury. You can file an emotional distress lawsuit without physical injury, but to win your case you must prove a high level of psychological harm. You won’t get far trying to sue for embarrassment after a slip and fall that did not cause any physical injuries.

Pros and Cons of Filing a Lawsuit

If you’ve been disfigured or disabled by a personal injury caused by someone else, it might be worth it to file a personal injury lawsuit if the adjuster is unwilling to pay a fair amount of compensation for your emotional distress. Permanent injuries usually merit much higher amounts for pain and suffering.

It’s amazing how fast an adjuster can get “authority” for a higher settlement amount once a lawsuit is filed.

On the downside, you might not get much more for pain and suffering than was already offered. Unless you are seriously injured, you aren’t likely to end up with more in your pocket by the time you pay attorney fees and costs.

If your injury case makes it to trial, you risk losing. You never know what a jury will do, and you could end up with nothing. Sometimes taking a lower settlement is the safest choice.

Gathering Evidence of Emotional Distress

You know your emotional harm is real, but it’s still necessary to gather evidence in support of your claim. Adjusters need to account for every dollar of compensation they pay. The evidence you provide gives the adjuster a good reason to pay more for your personal injury case.

The more reliable evidence you have, the better your chances of a higher settlement.

Evidence of Emotional Distress:

  • Medical Records: You can point to your medical records to support your emotional distress claims, for example, if the doctor limits your lifting to ten pounds, so you’re unable to pick up and care for your crying baby.
  • Mental Health Records: When you’ve been under the care of a mental health professional, such as a licensed counselor, psychologist, or psychiatrist, have them write a narrative with their professional evaluation of your mental and emotional condition.
  • Witness Statements: Ask your loved ones, friends, church pastor, employer, and co-workers for written statements confirming in their own words how they’ve observed your emotional condition since the injury or traumatic event. They may have noticed you’ve been depressed or crying for seemingly no reason, or you appear fatigued.
  • Your Personal Journal: Your detailed notes about the injury or event, your daily pain levels, sleep problems, bad dreams, and other details of how the event has affected your daily life can be used as evidence of emotional distress in a trial.

Legal Advice for Emotional Distress Claims

If you’ve suffered severe or permanent physical or emotional injuries, you’ll need an experienced personal injury attorney to get the full value of your claim from an insurance company.

An attorney can help when your case has factors the insurance company will use against you, such as:

  • Shared blame for causing your injury
  • Pre-existing mental health issues
  • Seemingly low impact fall or minor car accident

You don’t have to settle for less. If you were severely injured or emotionally damaged, you deserve to have a skilled professional on your side.

Most personal injury lawyers offer a free case evaluation, and represent clients on a contingency fee basis. The attorney only gets paid after negotiating a personal injury settlement or winning your case in court.

There’s no financial risk to find out what an experienced attorney can do for you.

Video: How Emotional Distress Affects Reimbursement

Emotional Distress Compensation Questions & Answers

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>