Including Emotional Distress Compensation in Your Injury Settlement

How to get fair compensation for emotional distress as part of your injury settlement. Here’s what you need to know to build a strong insurance claim.

In personal injury claims, the phrase “pain and suffering” describes a combination of the physical pain and emotional distress a victim suffers due to the accident and their injury.

Insurance companies expect to add an amount to most personal injury settlements to compensate for pain and suffering, but are reluctant to pay for damages they can’t measure.

More than likely, the adjuster will only offer a very small dollar amount for your “inconvenience.”

To convince the insurance adjuster to pay fair compensation for the emotional distress part of your settlement, you’ll need to show the severity and duration of your suffering.

You can sue for emotional distress. Here’s what you need to know.

Common Types of Emotional Distress

Emotional distress, also called “mental anguish,” describes very real injuries suffered by victims due to the negligent acts of another. Some claims adjusters view emotional distress as a ploy to get more money out of insurance companies, but that’s incorrect.

Emotional distress is real, and it can be debilitating. Car accidents, slip and falls, dog attacks or other traumatic events can result in psychological injuries that forever change the victim’s life.

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 distress is by describing what you are experiencing.

Emotional distress can include:

  • Anxiety
  • Nervousness
  • Guilt
  • Frustration
  • Insomnia
  • Bitterness
  • Fear
  • Shame
  • Humiliation

Persuading the adjuster to compensate for your pain and suffering will take more than a list of symptoms. You must provide evidence and clearly explain how those symptoms affected you.

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 Summary: Emotional Distress from the Wrong Diagnosis

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 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 feels he “lost his manhood.”

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

Can I Sue for Emotional Distress?

Injuries to our muscles, bones, or internal organs can cause severe pain, which may continue for weeks, months, or even years. Personal injury victims can experience pain from jarring of their neck or back, a broken or sprained knee or ankle, head trauma, lacerations, or any number of other injuries.

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 suffer emotional distress.

Persistent physical pain often contributes to the emotional toll of an injury. Physical suffering is sometimes so closely associated with the pain of emotional distress, that they become one and the same.

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 distress.

Intentional Infliction of Emotional Distress

Most claims for emotional distress compensation are in connection with pain and suffering secondary to a physical injury caused by another.

In specific, usually extreme circumstances, you can bring a separate claim against an at-fault party for emotional harm that’s not directly caused by physical injuries.

Each state had its own statutes governing what counts as “intentional infliction of emotional distress,” with most requiring one or more of these criteria:

  • The victim has evidence of severe emotional harm
  • The mental harm has resulted in physical symptoms such as headaches, nausea, or other symptoms
  • The at-fault party engaged in behavior that most people would consider shockingly outrageous, like secretly taking a video of a nude woman in her hotel room, then posting the images online.
  • The outrageous conduct took place in a situation where the at-fault party had authority over the victim, like a police officer, landlord, creditor, or employer.

Case Summary: Jury Awards $6 Million for Emotional Distress

Jeanette Ortiz was a general manager at Chipotle when she was wrongfully terminated after 19 years of service.

In January 2015, Ortiz was abruptly fired, after being accused of stealing $626 from the company safe. The company claimed there was video evidence of her taking the money but refused to let her see the film.

Ortiz believed the company fired her in retaliation for filing a workers’ compensation claim when she injured her wrist on the job. At the time, she was up for a promotion that would have paid $100,000 per year.

Lawyers for Ortiz filed suit against Chipotle for wrongful termination. At trial, the company claimed the video and email evidence against Ortiz had been accidentally lost.

The jury found in favor of Ortiz, awarding $6 million for emotional distress and $1.97 million for loss of past and future wages.

Evidence of Emotional Distress

Although you know your emotional distress is real, it’s still necessary to gather proof 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.

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

Evidence of emotional distress includes:

  • Medical Records: You can point to your medical records to support your emotional distress claims, for example when the doctor limits your lifting to ten pounds, so you’re unable to pick up your crying baby.
  • Mental Health Records: When you’ve been under the care of a licensed counselor, psychologist, psychiatrist, or even your family physician, have them write a narrative with their professional evaluation of your mental and emotional condition. Your mental health professional can verify if you are suffering from:
    • Anxiety Disorder
    • Major Depression
    • Panic Disorder
    • Post-Traumatic Stress Disorder (PTSD)
  • 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.
  • Keep a 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.

Compensation Value of Emotional Distress

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

Placing a value on your pain and suffering starts with adding up your special damages, meaning the total of your hard costs such as:

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

Multiply the total of your hard costs by one or two to get a fair estimate of your pain and suffering value. The result is the total amount you will demand for a final settlement. Although basic, the multiple method does help give you a rough starting point for your demand.

The more serious the injuries, the higher the multiple. For very serious injuries, you’ll need an attorney to calculate the proper demand.

Factors that help increase pain and suffering value:

  • Intense mental anguish:  The more intense the mental anguish you’ve endured, particularly when a mental health professional has treated you, the higher the compensation.
  • Persistent pain or permanent injuries: Documentation of long-term pain, like with extensive burns, or permanent physical injuries like scarring or paralysis, can help prove severe emotional distress.
  • Underlying cause: Claims where the victim endured an extreme or shocking event, like a plane crash or being trapped in a burning nightclub, will support a higher emotional distress value than a parking lot accident with no injuries.
  • Physical symptoms: Documentation of extreme emotional distress symptoms like ulcers, headaches, or vomiting can support your claim.

When You Need an Attorney

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:

Complicated claims like medical malpractice, product liability, wrongful termination, and other high-dollar claims require a skilled attorney to succeed against corporate defense lawyers. Big companies would rather spend money on their legal team than see you get a dime.

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 reputable injury lawyers don’t charge for the initial consultation and represent clients on a contingency fee basis. The attorney only gets paid when you win.

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

Video: How Emotional Distress Affects Reimbursement


Emotional Distress 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 >>