When a person is injured in an automobile accident, the physical injuries and time spent at a doctor’s office, or laid up on pain, will no doubt take an emotional toll on the injured party. Physical injuries, especially if they are severe, can be detrimental to marriages, friendships, recreational pursuits, careers and well-loved hobbies. The hope is always that the injured person will be able to return to doing all the things he or she loved to do before the injuries caused a disruption. But what about that period of emotional disturbance – the stress, anxiety and sadness? Are those conditions that a negligent party should pay for? Sometimes – and almost always when there are severe and disabling physical injuries involved – the answer is a most definite yes, and a lawsuit will include a claim for “emotional distress”.
Other times, the answer may not be as clear. A decision whether to pursue emotional distress damages is best made in tandem by the injured party and his or her attorney.
One reason that emotional distress damages are not a given is that they are hard to prove. Unlike scars, scratches, broken bones and swelling seen with physical injuries, emotional distress damages are psychological, are not visible and do not show up on diagnostic tools such as a brain scan. Most of the time, in order to prove emotional distress, a party will have to seek psychological or psychiatric treatment from a mental health provider.
The necessity of psychological treatment relates to the second reason why an injured party may think twice before pursuing a claim for emotional distress – if that person saw a counselor, therapist, psychologist or psychiatrist in the past, asserting a claim for emotional damage could open those prior records up to discovery by the opposing party. Although the physical injuries likely did cause a period of emotional distress, whether it is brought up as a separate claim may be weighed against the injured party maintaining his or her privacy with regard to prior psychological treatment. Of course, a good attorney would fight to keep any prior psychological treatment records from being entered into the lawsuit, but that is not always guaranteed.
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