The damage of an accident isn’t always physical. You might find that the emotional pain and suffering you go through takes longer to heal than your body does. And since people experience trauma differently, one person’s need for treatment differs from another’s. Even the process of pursuing a claim for emotional distress can add to stress levels. In that case, before you file, it’s best to understand how the law looks at claims of emotional distress. What is considered emotional distress in Washington state?
Washington law considers emotional distress as a non-economic damage. Broadly speaking, this involves an accident or injury that causes serious psychological harm, including post-traumatic stress disorder. Symptoms can range from depression and anxiety to night terrors and sudden, uncontrolled crying. It requires more than just ordinary levels of disappointment, anger, and embarrassment. A strong claim demonstrates a lasting impact to your mental health. This lasting impact itself can be debilitating.
Mental Anguish
Becoming disabled due to a personal injury incident may place major new limitations on you physically. Having to deal with these changes can cause a lifetime of emotional distress. Physical scarring can also cause long-term distress, even after a wound heals. It’s often painful to realize how noticeable these injuries are to others. These are examples of unique forms of mental anguish due to the tragic social stigma surrounding injury.
It’s possible too that a spouse or other loved one will feel they have experienced a loss. They can file a ‘loss of consortium claim’ to reflect the change in emotional (and in some cases, sexual) intimacy with you. Yet the loss of consortium may add to the burden you experience even though it is beyond your control. It is unintentional, and there are other unintentional causes of emotional distress.
Emotional Distress
Negligent infliction of emotional distress can occur even when there’s no physical injury. Most states follow what is known as the “foreseeability” rule. This means defendants can be liable if they could have reasonably predicted the negative consequences of their actions. This is significant because it means emotional distress claims can be made when a claimant wasn’t physically at risk. As an example, a child could be killed in a car accident, and their parents witnessed their death. They could then file a claim for negligent infliction of emotional distress over the pain and suffering they’ve endured. But negligence isn’t the only cause of emotional distress. Deliberately inflicting it on someone is a far too common occurrence.
There are three specific aspects of intentional infliction of emotional distress claims to be aware of. You must show that someone else’s actions were extreme and outrageous. You need to prove that they deliberately intended to cause you emotional harm and mental anguish. You must also show that you did suffer an extreme level of emotional distress because of their actions. These actions could range from harassment over neighborhood parking all the way to domestic violence. Injury doesn’t have to be physical; sustained verbal and emotional abuse can count if it’s documented. The damage can even be inflicted online, where social media is used to cause emotional distress.
Cyberbullying
Cyberbullying and cyberstalking are similar forms of online harassment but do differ. Cyberbullying often refers to using social media to harass and deliberately inflict emotional distress on a person. This might be perpetrated by several people and sustained over time. Cyberstalking involves purposefully trying to breach someone’s right to privacy online, often using social media as a weapon. This might release confidential information to the public to harass or intimidate someone, or to seek revenge. An example is someone posting nude photos of a former partner online in anger over a breakup. These online practices can deeply hurt adults but even more easily devastate children.
The effects of cyberbullying and cyberstalking on children have long been studied, and the damage is clear. The effects are wide ranging, including low self-esteem, massive stress, and sleep disturbances. Children who are bullied may resort to carrying a weapon and suicidal ideation. Yet not everyone appreciates how devasting bullying on social media can be. It is sometimes described as just ‘words on a screen.’ It is the lack of agreement on the effects of emotional distress that make these cases challenging.
It is possible to sue perpetrators for intentionally inflicting emotional distress. For children the suit sometimes includes the school for failing to act to prevent the damage. But these cases can involve a long and difficult battle, especially if there’s no physical injury (which some states require). “If there is no corresponding physical injury,” explains attorney Liandra Tiller, “then a big piece of evidence is not available. To compensate, we would need to provide a larger amount of the other types of evidence at our disposal.” Yet no matter the injuries you’ve suffered, you’ll want as much supporting evidence as possible to pursue an emotional distress case.
Your suffering may seem to you as self-evident. But a claim for emotional distress isn’t based on your word alone. If there’s insufficient evidence detailing the length and depth of your pain, you may not get the compensation you deserve. You will want any medical records to detail as clearly as possible how your injury affected your emotional state. Beyond visits with a general practitioner, seek out detailed records from a psychiatrist or counselor. Therapy can be challenging for some, as you need to be completely open about your suffering. But without those records, it can be difficult to clearly quantify what you’re going through.
Without a formal diagnosis, insurance carriers and juries may not take your claim seriously. Even with a diagnosis you’ll need letters from friends and family members naming the affect your accident had on you. These letters can give a valuable perspective on your mental anguish in a way that clinical records might not. Emotional distress can also manifest at work, so you’ll want to obtain employment records as well. These will include statements from coworkers and supervisors about the impact of your accident or injury on your job performance. Even with all this evidence, it’s hard to predict how your claim will be decided.
There’s no guarantee, of course, that your claim will be resolved quickly. You need to be ready for it to take a great deal of time, especially if your case goes to trial. Because emotional distress is a non-economic loss, it isn’t tangible in the same way medical bills are. This means that dollar results can vary widely. Even with ample evidence from medical providers, your friends, and your family, these claims rely on subjective mental states. You’ll need to present a convincing story of how deeply your injury affected you. You’ll also need to show you played no role in what caused your emotional distress.
Emotional Distress Claims
When it comes to emotional distress claims, Washington State applies comparative fault. This means that if you contributed to your injury, the amount recoverable is reduced by the amount you’re at-fault. For instance, say you were in an auto accident and the other person is 90% at-fault. You’re still on the hook for 10%, and the overall size of your settlement is reduced by that much. This applies to most personal injury cases but can make emotional distress claims more difficult. It can be hard to accept that your trauma might be partly your fault. Having a good personal injury attorney is essential, as they’ll fight to prove you didn’t contribute to your pain. One increasingly important matter they can address is the impact of social media on your claim.
Almost all Americans use social media, which can have a major impact on any bodily injury claim. But there are unique challenges with emotional distress claims when social media is factored in. This is the case whether your distress was caused by a physical injury or not. Unfortunately, social media presents a snapshot of your life at one moment in time. It can present a false image of your emotional and mental wellbeing. But what does that mean when insurance companies and courts are looking at your social media posts?
Suppose you had a major fight with someone and haven’t spoken to them since. But then you post a comment on Facebook wishing them a happy birthday. That doesn’t mean that the anger and pain from the fight has gone away. But the post might undermine any emotional distress claim you are planning to make. This is because it presents a false image of your emotional state.
“We typically ask our clients to refrain from posting about any aspect of their claim or injuries on social media,” attorney Liandra Tiller says, as “posts can often be misconstrued. If a plaintiff were to post pictures or updates that make it appear as though they are happy, relaxed, etc. it could undermine their testimony that they were experiencing real psychological trauma during the period in question. Even though it is completely natural to have good moments amid bad times, the defense will try to use those moments to suggest that the plaintiff’s emotional state is not as bad as he/she contends.”
Insurance Companies & Emotional Distress
Insurance carriers and defense attorneys will look for ways to prove your emotional distress isn’t severe. They can easily misrepresent your social media posts, simply because people often don’t tell the full truth online. People don’t want their Facebook pages and Twitter feeds to be unending misery when they’re going through a tough time. There may be temporary moments of joy they want to post about, even when extremely depressed. Be aware when posting on social media that anything you make public can be used against you.
Insurance companies in the past often hired private investigators to gather evidence that might disprove an injury claim. Social media has been taking on this role, as people broadcast all sorts of things about their lives that might be misinterpreted. So, when you file a claim for emotional distress, social media can make it easier for an insurance carrier. They no longer need to use as many resources disputing your claim as they used to. If you hope to be reimbursed for emotional distress, talk to a personal injury attorney. They can help you avoid these pitfalls.
Hiring an Attorney
Hiring a bodily injury attorney is essential for any injury claim’s success, particularly when it comes to emotional distress. Your attorney will use their knowledge and expertise to help you look at treatment that might be available to you. They can also help you understand how to prepare for a lengthy process, including your use of social media. It may become necessary for you to restrict your usage or cut it out entirely. They know this can be difficult given how intertwined it’s become in people’s lives. But a good injury attorney wants to help you avoid damage to your claim. They’ll fight for a fair and just settlement, yet it may not be possible to settle your case before trial. At that point, your social media use could play a make-or-break role in any case that goes to court.
You might think that if you set your accounts to private it means they’re off limits. It’s been broadly held by courts, however, that even if you do so, they are not privileged or protected information. Access to your accounts is restricted, however – rules still apply. There are courts which have recognized that even depressed people can have a good day, and post about it. But courts may still grant access to social media posts related to your emotional state. “At trial, social media posts may be used as evidence to impeach someone. Impeachment refers to attacking a witness’ credibility,” attorney Liandra Tiller explains, “If, at trial, someone testifies that they were going through a very rough time, a social media post to the contrary could be used to counter that testimony.” If this happens your trial lawyer will need to show how the post creates a deceptive picture of your experience. They’ll also need to use your supporting evidence to help establish the depths of your mental anguish. Your attorney’s ability to tell the most compelling story of your suffering possible will help you obtain the compensation you deserve.
People can be reluctant to pursue claims for emotional distress, even when it’s clearly justified. They may be afraid of being judged or doubted. What they need is an empathetic and experienced personal injury attorney who can show the causes of their real, painful trauma. We here at Park Chenaur and Associates work closely with our clients throughout the entire process of their injury claim. We know the tactics insurance companies and defense lawyers might use to invalidate someone’s emotional pain. We also know how to fight back. When you’ve been through a traumatic experience that continues to cause you to suffer, you deserve justice. We will fight for justice for you for as long as it takes.
