Personal Injury Damages are Not Always Visible

When you are involved in an accident, there is always stress that goes along with your experience. Sometimes that stress is simply a matter of dealing with paperwork, hassles, and a bit of physical discomfort. But other times the stress is caused by a traumatic event, like a serious car accident or other incident, that resulted in significant damage and emotional anguish.

Physical injuries can play a big role on your mental state. Between the roller coaster of emotions ranging from confusion to anger to anxiety, your life as you once knew it may never be the same.

It’s hard to put a label on emotional damages, though. Most employers don’t understand when you have to call in sick because your depression that day is too heavy. Your kids won’t always understand when you have to miss their important ball games and school events because your anxiety prevents you from leaving the house right then. But emotional suffering is real, and it can be debilitating.

If you live in California and you were involved in a personal injury accident in which you had physical and emotional injuries, the law recognizes that you should be compensated for your mental suffering. Unfortunately, insurance companies don’t always agree and will do their best to limit your benefits.

California law says that victims can receive compensation for actions resulting in the negligent infliction of emotional distress, or NIED. This article will help you understand more about the link between physical and emotional distress and when you can sue for NIED.

What is Emotional Distress?

Just about any traumatic event can cause mental anguish and suffering, but for the purposes of personal injury lawsuits, emotional distress refers to any psychological impacts to your daily life brought on by your injury.

Emotional distress can manifest in many ways. You may have one, some, or all, of these conditions due to the incident that caused your physical damages:

  • Fear
  • Loss of sleep
  • Anxiety
  • Depression
  • Humiliation
  • Post-Traumatic Stress Disorder

Since emotional distress is not visible, it’s considered to be subjective. The extent of the distress will vary depending on each person, so it’s difficult to say how someone “should feel” after an injury.

Proving Emotional Distress

There’s no scientific test that can be done to prove that you have mental anguish. An MRI won’t show it, an x-ray can’t reveal it, and surgery can’t make it go away. But it’s still damaging, and the consequences of emotional distress can be more life-altering than the physical injury that accompanied it.


Since California law allows for allegations of psychological damages from NIED, plaintiffs must be able to demonstrate some form of proof that the victim is entitled to compensation for mental suffering. To prove a claim, your attorney may focus on factors such as:

  • Correlation between bodily harm and emotional distress. When mental suffering manifests in the form of physical suffering through symptoms like headaches or ulcers, that can help your attorney prove emotional trauma.
  • Medical records. Treatment for mental suffering is typically in the form of visits with a primary care physician for medication and a psychologist or psychiatrist for analysis and therapy. These medical records can support your claim of emotional distress.
  • Length of time. After an accident, it’s common to have a short period of grief, anxiety, and even anger. But if those emotions or others continue for a long period, this could mean that you have severe mental anguish and emotional distress.
  • Severity of symptoms. While no one wants to have severe mental anguish and suffering, the fact is that, as a general rule in a personal injury lawsuit, the more intense your suffering is, the higher your compensation will be.
  • The incident itself. Some types of accidents are more conducive to severe mental anguish than others. For instance, a typical car collision can cause stress, but if that same accident resulted in the fatality of your passenger, who was a loved one, the emotional distress is likely to be far greater.

In general, it will take the existence of more than one of these factors to prove emotional distress. Knowledgeable attorneys, like those of us at Hershey Law, know how to incorporate your mental state in with your physical injuries to generate the highest compensation possible for your suffering.

But What if You Weren’t Physically Injured?

It’s not easy to prove emotional distress along with a physical injury, but it can be done. It just takes the right amount of evidence displayed correctly by a competent attorney. If there’s no physical injury along with the mental suffering, though, what’s a person to do?

In California, it’s not possible to sue someone just because they upset you. But there are events in which legal action for emotional distress is possible. These tend to be severely traumatic incidents, often intentional, in which you, as the victim, feel that your safety was in jeopardy or were witness to someone else’s severe injury or death. They can also happen in the event of a child abduction in which your emotional state was dependent on your child’s safety.

In a traumatic event in which you were in fear for your life, it’s possible that you may have a legal case. If you witnessed someone that you were close to being injured or dying, such as in a car accident, but you yourself weren’t injured, you may have a lawsuit. In other cases where physical fear wasn’t a factor, you may be able to sue if you were a victim of significant character defamation or someone else acted in such a way as to cause you severe emotional distress.

If you feel that your mental anguish falls into any of these categories, talk to an attorney at Hershey Law. You may be able to file a lawsuit on the grounds of Negligent Infliction of Emotional Distress (negligence resulting in mental anguish) or Intentional Infliction of Emotional Distress (mental anguish as a result of someone’s intentional actions).

To sue for NIED, or negligence resulting in emotional distress, there must be evidence that the defendant owed you a duty of care in which they were remiss. For instance, every driver takes on the knowledge that they must be cautious, follow the rules of the road, and obey the law to keep themselves and others safe. When they are careless and cause an accident that results in your injuries, they were negligent in providing you your duty of care and it caused suffering to you.

With an IIED, or intentional distress, it must be proven that the defendant acted in such an egregious way that it was obvious that they intended to cause you mental anguish or that they recklessly disregarded your emotions. To receive compensation for IIED, the emotional distress must be severe and evident.

There are situations in which even obvious victims of emotional distress can’t legally sue for damages in California. This usually happens when the victim was also involved in breaking a law in connection with the accident that caused the injuries. An example of this would be a driver who had received a DUI conviction related to the accident that caused their injuries.

Another common personal injury in which emotional distress is not valid as a compensatory damage is when the person was involved in a workers’ compensation accident. In most states and circumstances, workers’ compensation laws don’t provide for pain and suffering damages.

How are Emotional Distress Damages Calculated?

Unlike damages for physical injuries, emotional distress is subjective and not suitable for using a mathematical formula to determine compensation. Your personal injury attorney must prove that your trauma was significant enough to have caused severe emotional suffering worthy of a financial award.

Some aspects of the recovery can be based on tangible evidence, such as medical records from therapy sessions, documentation of diagnoses and medications prescribed by your physician, and other evidence that can be used to show your expenses. But other factors, like grief, anxiety, and suffering, are not so easily calculated.

Your attorney might recommend you do a few things to help document your emotional journey after your accident, like journaling. Through journaling, you express your feelings, no matter how painful. The writing process can be therapeutic for you and can also be used to showcase your mental state following your injury. Journals can be used to help demonstrate your pain and suffering and your emotional struggles on a day-to-day basis.

You may also be asked to attend therapy sessions by a licensed mental health counselor or a psychologist. These experts can be called upon to testify in your case and provide substantial support to your claim of emotional distress.

When You’re Suffering, Your Attorney Can Help

Wading through the legal red tape after an accident is stressful, no matter how competent you are. But when you are emotionally distressed, it brings with it a new world of confusion and complications.

Your personal injury attorney should be your guide during this confusing time, and you should be able to trust them to want what is best for you. If you are suffering from physical and emotional injuries caused by an accident, call Hershey Law today for your free consultation to see how we can help be your legal light during this dark, difficult time.