Attorney David I. Fuchs
Dec. 26, 2016
If you have been injured due to another person’s acts or omissions, then – under Florida law – you are entitled to recover damages to compensate you for your various injuries. This may include damages for mental anguish, if the circumstances of your case indicate that you have in fact suffered mental anguish.
With respect to Florida personal injury, mental anguish is primarily known as emotional distress. Emotional distress is often problematic to pin down, as it is generally associated with the anxiety and psychological trauma that may result from an accident-caused injury.
It can be quite difficult to successfully recover damages for emotional distress, as evidence of emotional distress may be difficult to procure. As there are few, if any, objective measures of emotional distress, you will have to rely on medical records and the testimony of medical professionals indicating that emotional distress was suffered.
In Florida, recovering for emotional distress is more complicated than in many other states, as plaintiffs must demonstrate that they suffered a “physical impact” in order to recover. In order to properly claim emotional distress damages, you must have suffered an accompanying physical injury or impairment.
Let’s clarify with an example.
Suppose that you are involved in a car accident where the defendant-driver rear ended you at a red light. Fortunately, the impact occurred at a low speed. As a result, you suffered no physical injury or impairment. You do, however, feel consistently anxious about the incident in the following months. Despite the fact that you feel something akin to “emotional distress,” you cannot make an emotional distress claim without accompanying physical injury.
The accompanying physical injury need not be severe or obvious, however. Even a small injury, or the exacerbation of an existing injury, will be enough. All that matters is that a physical injury was suffered, not that it was minor.
For example, suppose that in the above example, you had a pre-existing spinal condition. After the low speed rear end collision, your condition was exacerbated. The exacerbation was not obvious at first, but after some months, further medical investigation revealed the worsened condition. Because there was some physical impact – even if it was initially nonobvious – this is enough to legitimize an emotional distress claim.
If you make a claim for emotional distress, you have waived your Florida psychotherapist-patient privilege. As such, the defendant can investigate your psychotherapeutic and other psychological records and use them to attack your credibility as a plaintiff, to undermine your emotional distress claims, and more.
As the content of civil litigation is part of the public record, sensitive information may be revealed to the public at-large. Do keep in mind, however, that the waiver of your psychotherapist-patient privilege must be narrowly interpreted, and does not necessarily entitle the defendant to conduct a wholesale investigation of your total psychotherapeutic record.
Of course, if you have serious concerns about the release of sensitive information, you may want to avoid making an emotional distress claim.
Making an emotional distress claim can be difficult and may open you to further investigation by the defendant. If you or someone you love has been injured as the result of someone else’s wrongful acts or omissions, seek the counsel of a skilled Fort Lauderdale accident attorney at David I. Fuchs, Injury & Accident Lawyer, P.A..