Mental anguish is also known as emotional distress, or emotional trauma. Think of emotional distress as anxiety and depression.
Is It Easy to Get Money for Emotional Distress from an Accident?
In most cases, No. It is typically easier to get money for out of pocket medical bills, lost wages, physical pain and suffering. This is because this damages are more objective can be seen, whereas emotional distress is just based on your complaints.
Even physical pain and suffering is usually easier to prove. The insurance company claims’ adjuster can look at a bruising on your body, or a fracture on an x-ray, and know that you suffered physical pain.
But a claims adjuster can’t look into your mind.
Do Insurance Companies Pay Out a Lot of Money for Emotional Distress?
Generally, No. Emotional distress is usually the smallest part of a personal injury case.
You Need a Physical Impact to Get $ for Emotional Distress
The need for a physical impact to recover mental or emotional pain and suffering damages is known as the “impact rule.” Thomas v. Hospital Bd. of Directors of Lee County, 41 So.3d 246 (Fla. 2d DCA 2010).
Insurance Company Will Want to See Medical Records that Mention Your Distress
Don’t expect an insurance company to offer you much money, if you don’t have medical records that mention your emotional distress.
If you tell the insurance adjuster that you have emotional distress, expect him/her to ask you if you’ve seen a mental health professional. This includes a psychologist, psychiatrist, licensed mental health counsel, licensed clinical social worker, or licensed marriage and family therapist.
Can You Still Get Money for an Aggravation of Emotional Distress that You Had Before the Accident?
Yes, if you can prove that the accident worsened your emotional distress.
Longer You Wait to Get Medical Treatment, Case Value Goes Down
The value of your case drops each day that you wait to see a mental health professional for your emotional distress.
Impact Can Be Small, and Effects Can Occur Later
In Florida, something is considered an impact if a force or substance, no matter how large or small, visible or invisible, even if the effects are not immediately “deleterious”, touch or enter a claimant’s body. Zell v. Meek, 665 So. 2d 1048 – Fla: Supreme Court 1995.
If You Suffer an Impact, You Can Get $ for Emotional Distress Stemming from the Accident
If you suffer an impact, Florida courts permit recovery for emotional distress stemming from the incident during which the impact occurred, and not merely the impact itself.
Florida Motor Vehicle Accidents; Tort exemption; Limit on Right to Get $ for Mental Anguish
Just because someone’s negligence in a Florida motor vehicle accident caused your mental anguish does not mean that you automatically recover damages for mental anguish.
This is because Florida has a law that exempts certain individuals and organizations from tort liability for damages because of bodily injury or sickness arising out of a Florida motor vehicle accident, unless a person is entitled to sue for pain, suffering, mental anguish and inconvenience for the injury. 2014 Florida Statute 627.737(1).
Tip: Florida law does not exempt every individual and organization from tort liability for damages because of bodily injury or sickness arising out of a Florida motor vehicle accident, if a person is not entitled to sue for pain, suffering, mental anguish and inconvenience for the injury. It is very important to know which individuals and organizations are exempt from tort liability.
Tip: Even if your case is against certain individuals and organizations whom are exempt from tort liability for damages because of bodily injury or sickness arising out of a Florida motor vehicle accident, you can still sue more than 11 parties after a Florida motor vehicle accident for economic damages (e.g. medical bills, lost wages, etc.) even if you are not entitled to sue for pain, suffering, mental anguish and inconvenience for the injury.
In a tort lawsuit against the owner, registrant or operator of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, or against any person or organization legally responsible for her acts or omissions, a plaintiff may recover damages for pain, suffering, mental anguish and inconvenience because of bodily injury, sickness or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle for the injury arising out of the ownership, maintenance, operation, or use of such motor vehicle only if the injury or disease consists in whole or in part of:
(a) Significant and permanent loss of an important bodily function.
(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
(c) Significant and permanent scarring or disfigurement.
Fleeing the Scene and Not Apologizing Doesn’t Get You $ for Mental Anguish
In a minor auto collision, the jury is not allowed to hear the injured person say that he has suffered mental anguish from the defendant’s desire to leave the scene, failure to apologize, and failure to admit negligence. Hurtado v. DeSouza, Fla: Dist. Court of Appeals, 4th Dist. 2015.
Non-Florida Motor Vehicle Accidents; No Limitation on Right to Claim Mental Anguish
The good news for injured people is if someone’s negligence causes your injury in a non-motor vehicle accident (e.g. you are on motorcycle, slip and fall, etc.) in Florida, then you do not need a permanent injury to recover damages for mental pain and anguish and other damages [non-economic damages (e.g. pain and suffering, loss of enjoyment of life, inconvenience, etc.).
But as discussed above, you still need a physical impact in Florida and the mental distress must come from a physical injury in order to be awarded damages for mental pain and anguish damages.
The Mental Distress Must Come from a Physical Injury
In order to recover mental pain and anguish damages in Florida, the injured person must be involved in an incident by hearing, seeing or showing up to the scene at the time of the traumatic event, and the injured person must suffer mental distress and accompanying physical impairment within a short while after the incident. Willis v. Gami Golden Glades, LLC., 967 So. 2d 846 – Fla: Supreme Court 2007.
About 10 years ago when I represented defendants in injury cases, I co-authored and argued the initial appeal for one of the defendants when this case was at the 3rd district court of Appeal in Miami, Florida.
I’m listed in the 3rd DCA’s case opinion. Shortly after that appeal, I began only representing people who were injured in Florida.
Enough Bragging. Back to the law.
Mental Pain and Anguish Claim If Your Loved One is Injured or Killed in An Accident
You may be able recover damages for negligent infliction of emotional distress under the case of Champion v. Gray, 478 So. 2d 17 (Fla. 1985), if:
1. You suffer a physical injury;
2. Your physical injury is caused by the psychological trauma;
3. You’re involved in the event that caused the negligent injury to another;
4. You have a close personal relationship to the person injured by another.
The right to recover damages for negligent infliction of emotional distress in a claim involving the injury or death of a loved one has been in existence in Florida for about 30 years.
Negligent Claim for Emotional Distress is different than Damages Mental Pain and Suffering Under the Florida Wrongful Death Act
If you are a “survivor” of the decedent under the Florida Wrongful Death Act, then you may be able to recover damages for mental pain and suffering.
If you are a survivor in a Florida wrongful death case, this is different than making a claim for negligent infliction of emotional distress.
If you sue for emotional distress, must you disclose your psychiatric records?
Yes. If you sue for emotional distress in Florida, the liable party is entitled to your psychiatric records as you have waived the psychotherapist-patient privilege created by section 90.503, Florida Statutes.
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