Experiencing a traumatic car accident can have long-lasting effects in your life. You may find yourself dealing with emotional distress such as anxiety, PTSD, flashbacks, or depression. Fortunately, it is possible to pursue a claim for emotional distress, allowing you to recover compensation for your emotional suffering. The Reiff Law Firm explains the factors influencing recovery for emotional distress in Pennsylvania following a car accident.
Full Tort vs. Limited Tort Insurance
Whether you can sue for pain and suffering in Pennsylvania will depend on the kind of auto insurance you have. If you purchased a full tort auto insurance policy, then you have the unrestricted right for you and all of your family members to sue for any injuries caused by the negligence of another driver. This means that you can always sue for pain and suffering when you’ve been injured in an accident. On the other hand, if you purchased a limited tort policy, you are limited in your ability to recover for injuries following a car accident. Specifically, you will only be able to sue for pain and suffering following a car accident if your injuries fall under the category of “serious injury” under Pennsylvania law. An injury is considered serious if it led to death, or permanent disfigurement or impairment of a bodily function. It is important to be aware of which policy you have to be able to determine whether or not you can recover for pain and suffering.
Economic vs. Non-economic damages
Damages can fall under two categories, economic and non-economic damages. Economic damages are considered calculable damages because they are easily measured and calculated. Such damages include medical expenses for physician visits, hospital bills, nursing and laboratory fees, medication, prosthetic devices, as well as lost of past and future earnings or reductions in salary, and vehicle repair costs. Noneconomic damages are not easily quantifiable losses, and therefore include pain and suffering, which is largely subjective and difficult to calculate. Pain and suffering can include any physical pain that a victim suffers from due to their injuries as well as emotional distress including depression, anxiety, flashbacks, PTSD, and so on. It can also include loss of affection or companionship due to injuries, loss of enjoyment in life, and embarrassment and humiliation.
What is an Emotional Distress Claim?
An emotional distress claim is actually distinct from the recovery you can earn through a pain and suffering claim following a physical injury. Throughout the history of the law, courts have acknowledged the emotional distress that is a consequence of a physical injury suffered and thus allowed for recovery under pain and suffering. In most cases, mental anguish including the loss of life’s pleasures and humiliation are a direct result of a physical injury. Conversely, an emotional distress claim will arise when a plaintiff has not actually suffered an immediate physical injury but suffered an emotional reaction to a traumatic auto accident. Initially, this kind of recovery was rejected by Pennsylvania courts. For example, in Supreme Court case Knaub v. Gotwalt, the court denied recovery to parents who had witnessed their son die in an automobile accident. However, over time the court allowed for limited circumstances in which recovery for emotional distress was possible in the absence of a physical injury. The main difference between a claim for pain and suffering and an emotional distress claim is that in a claim for pain and suffering, the plaintiff’s emotional distress is a result of their physical injury, whereas, with an emotional distress claim, the emotional distress precedes any physical manifestations of injury.
How to Sue for Emotional Distress
Though emotional distress cases are difficult because you cannot physically see any injury, it is possible to recover by suing if you meet the necessary criteria. First, In order to establish emotional distress, you must meet with a doctor or mental health specialist, who can give you a diagnosis such as depression, anxiety or PTSD, among others. Additionally, you must meet the other criteria for an emotional distress claim process. This means that the traffic accident was caused by the severe negligence of the other driver, and the accident directly caused the emotional distress you now suffer with.
Types of Emotional Distress Claims
There are different kinds of emotional distress claims that courts will review, including intentional infliction of distress, negligent infliction of distress, parasitic emotional distress with accompanying bodily injury, a part of pain and suffering, and a loss of consortium claim.
It is obvious that Pennsylvania Law allows for recovery for negligent infliction of emotional distress, in which a plaintiff can recover if the defendant acted carelessly resulting in physical danger to the plaintiff. The plaintiff can also recover if he or she witnessed a traumatic injury to a family member as a result of negligent actions. Intentional infliction of emotional distress is based on intentional or reckless conduct in which a person’s outrageous actions result in harm in the form of emotional distress. The standard for recovery set forth in § 46 of the Second Restatement of Torts is incredibly rigorous compared to negligent infliction, and allows for recovery if extreme or outrageous conduct intentionally causes severe emotional distress to either the plaintiff, an immediate family member, or an unrelated third-party who suffers bodily harm witnessed by the plaintiff. Throughout the history of the law, most cases have denied recovery for intentional infliction of emotional distress because the defendant’s conduct was not sufficiently outrageous enough to “go beyond all possible bounds of decency”. A parasitic emotional distress claim will be relevant if the emotional distress is a byproduct of a physical injury. Loss of consortium occurs when family members or spouses no longer have a relationship with another family member as a result of the car accident. This could be due to the death of a family member, or if the emotional distress leads to the loss of the type of relationship they had before the incident. Finally, a pain and suffering claim will occur when a party’s negligent actions result in pain and suffering in the form of emotional distress as a direct result of a physical injury.
Calculating Emotional Distress
In most cases, a jury will determine how much you will be awarded for your pain and suffering. They will consider factors including the extent and severity of your injuries, the mental anguish and physical pain, how your injuries may affect your ability to perform everyday tasks, future pain, and so on.
There are two main methods for calculating non-economic damages: the multiplier method, and the per diem method. The multiplier method involves calculating your economic damages, like lost wages and medical bills, and multiplying by a factor between 1.5 and 5, depending on the severity of your injuries. The insurance company and your car accident attorney will consider the extent of your injuries to negotiate a value that will be used in this method. On the other hand, the per diem method will assign a dollar amount for each day until full recovery. The acceptable per diem rate will vary depending on the extent and severity of your injuries.
Evidence of Emotional Distress
In order to recover for emotional distress, you must provide evidence to in support of your claim. The more reliable and extensive evidence that you have, the more likely you are to get a higher settlement. The first thing you will want to hold on to is your medical records, including mental health records that indicate a diagnosis of PTSD, depression, anxiety disorder, panic disorder, or some other disorder that falls under the category of emotional distress. It is also important to have witness statements from your loved ones, friends, employers, or coworkers who can vouch for your emotional condition before and after the accident, verifying the level of emotional distress you are experiencing. Finally, keeping a journal that contains detailed notes about the injury and your pain and suffering, including psychological symptoms can be a valuable piece of evidence.
Call Our Law Firm Today
Emotional distress following a car accident can be devastating and result in psychological issues that can drastically impact a victim’s life. If you were in a car accident and now suffer from emotional distress, you deserve to be compensated for your pain and suffering. The Reiff Law Firm has over three decades of experience handling complex car accident claims, which resulted in emotional distress. Call our Allentown car accident lawyers today at 215-709-6940 for a no-cost, no-obligation consultation.