Whether it was a car accident in Boca Raton, or a truck accident in Fort Lauderdale, 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.
What is 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.
Physical Impact is Necessary
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.
A personal injury case is often presented with evidence of injury—scrapes, bruises, broken bones, hospital bills, and so forth. But when a victim suffers emotionally or mentally after a car accident or other traumatic event caused by someone else’s negligence, it can be hard to determine how to proceed. While that person’s pain is no less real than a car accident victim’s whiplash or broken arm, it can be harder to prove the personal injury aspect, and the fault of the other party.
The very nature of emotional or mental traumas make them hard to analyze, and to pin down exactly what the victim has experienced in the aftermath of a catastrophe. For example, a person who has been in a car accident, but walked away physically unscathed, may be afraid to get back out on the road, and may suffer extreme mental anguish every time he or she has to drive or ride somewhere. The fear of being in a car accident can become crippling, keeping the victim from leaving the house or fully living his or her life.
A person can also experience severe emotional or mental trauma as a witness to something terrible—seeing a loved one get hit by a car, learning that a child or family member has been harmed, abused, or sexually assaulted, having a relative be a victim of medical malpractice, being served a plate of food with a foreign object in it, and many others. In these cases, there is no physical damage done to the victim, but he or she is nonetheless permanently affected by the event. The trauma caused by these scenarios can be detrimental to a person’s emotional health, well-being, and stability.
In Florida, emotional trauma personal injury lawsuits are governed by the “impact rule,” a set of guidelines that can be used to determine whether a person who has suffered mental or emotional damage from a negligent accident can recover damages. According to the impact rule, the victim must have come in some type of physical contact—no matter how long or to what degree—in order to recover emotional damages only, even if you were not physically harmed by the contact. So if you were in the car when the accident occurred, or if a bank robber put his gun in your stomach to threaten you, but you were not injured, you can still claim emotional trauma.
The impact rule does have some exceptions. You can seek emotional damages if your trauma has demonstrated itself in a tangible way—if you are suffering headaches, dizziness, sleeplessness, night trauma, or even stress that contributes to a heart attack, palpitations, or other health complications. Additionally, an emotional damages lawsuit is possible if you were involved with the event that caused your trauma in some way, such as being a nurse in an operating room during a procedure that goes wrong due to the doctor’s malpractice or negligence. You can also seek a claim if you had a close personal relationship with the injured victim of a traumatic event.
Waiver of the Psychotherapist-Patient Privilege
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..