Answers To The Most Frequently Asked Questions In Psychological Injury Cases
1. Are psychological injury cases treated the same as physical injury cases under the law?
For the most part, psychological injuries and physical injuries are treated similarly under California law.
2. I’ve heard there are three different categories of psychological injury cases under the law, is that true?
There are basically three different types of psychological injury cases:
- A case in which a trauma causes purely psychological distress with no significant physical injury.
- A case in which a trauma simultaneously causes a significant physical and psychological injury.
- A case in which the original trauma produces a serious physical injury and the results of the physical injury eventually cause a psychological injury.
3. If I suffer from emotional distress as a result of a trauma, do I have a psychological injury?
This becomes a question of degree. Anyone who suffers a significant trauma or physical injury will have some degree of emotional distress. However, psychological injury cases are thought to be those cases in which a plaintiff develops a recognized mental disorder or the psychological distress significantly interferes with their life.
4. What is the difference between a psychological injury case and a traumatic brain injury case?
A psychological injury involves an injury to a person’s “mind” in which there is usually no damage to the “brain.” A traumatic brain injury involves an actual injury to the “brain” in which the tissues of the brain are damaged (though damage may not show up on radiographic or other testing).
Although there are different implications for treatment and recovery, traumatic brain injuries and psychological injuries do overlap since emotional distress is a well-known component of a traumatic brain injury and psychological injuries can cause symptoms that mimic traumatic brain injury symptoms such as headaches, slowed thinking and difficulty concentrating.
5. Can I have both a traumatic brain injury and a psychological injury?
Yes. Although it becomes difficult to tease out on diagnosis, a person can suffer a traumatic brain injury and subsequently suffer a depression, anxiety disorder or even a psychosis.
However, a word of caution: Many practitioners believe that one cannot be diagnosed with both a post-traumatic stress disorder and traumatic brain injury from the same trauma. Why? Because the diagnosis of traumatic brain injury requires a person to lose some degree of consciousness as a result of the trauma. These practitioners question how a trauma can be severe enough to overwhelm a person’s psychological defense mechanism and cause a post-traumatic stress disorder if her or she is unconscious at the time?
6. What is a post-traumatic stress disorder?
A post-traumatic stress disorder is a specific psychiatric diagnosis that results from the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience or witnessing an event that involves actual or threatened death or serious injury or threat to ones physical integrity.
To be given this diagnosis the person’s response to the event must involve intense fear, helplessness or horror; a persistent re-experiencing of the event; a persistent avoidance of the stimuli associated with the trauma and persistent symptoms of increased arousal such as difficultly falling or staying asleep and difficulty concentrating.
7. Is post-traumatic stress disorder the only psychological injury that I could suffer as a result of a trauma?
Absolutely not. Trauma has been known to cause hundreds of different types of mental disorders ranging from adjustment disorders, depression, anxiety, all the way to psychosis. Further, trauma can aggravate an already existing mental disorder or long standing personality disorder. In legal cases, many treating psychotherapists make the mistake of diagnosing a post-traumatic stress disorder simply because the patient has experienced a traumatic event. This does a disservice to the patient in the legal case if the patient does not meet the strict requirements for a post-traumatic stress disorder, some of which are listed above.
8. Aren’t psychological injury cases difficult to prove?
Yes, in most circumstances. Jurors and judges are generally quite skeptical of psychological injury claims since they are potentially so easy to manufacture. However, this distrust can be overcome in credible cases in which the plaintiff’s attorney and experts can present evidence of a reasonable connection between the subject trauma and the plaintiff’s psychological injury.
Generally speaking, the more severe the trauma the easier it is to show a connection to a plaintiff’s psychological injury. However, it is important to recognize that we all react to trauma differently, and, what may be a minor trauma to one person may be a severe trauma to another.
9. How can I prove my psychological injury case?
The testimony of well-credentialed experts will help prove your case as well as objective witnesses who can describe a change in you before and after the trauma. Further, psychological testing can help prove psychological injury cases.
10. Are psychological injury cases easy to settle?
Absolutely not. If one were to say that judges and jurors are distrustful of psychological injury claims, then, it would be fair to say that insurance adjusters are outright incredulous. Thus, most attorneys who specialize in psychological injury cases do not even attempt to settle them until the insurance company has hired an attorney who is able to conduct the necessary discovery to recognize that plaintiff has a valid psychological injury claim that could put the defendant at risk for a large verdict.
11. Will my psychological injury case settle out of court?
Your case will almost certainly eventually settle. Ninety-five percent of psychological injury cases settle at some point before trial; however, most psychological injury cases settle later rather than earlier in litigation.
12. What damages can I collect in a psychological injury case?
You are entitled to recover damages for past and future medical expenses, past and future wage loss, past and future pain and suffering, and if it is deemed that conduct is bad enough, punitive damages (i.e., punishment damages against the defendant).
13. Do I need to hire an attorney? I do, does that attorney need to specialize in psychological injury cases?
First of all, given the cynicism and distrust of insurance adjusters it is almost inconceivable that a plaintiff will be able to receive full compensation for a purely psychological injury without hiring an attorney. Once the decision is made to hire an attorney, the consumer will want to find an attorney who understands the dynamics of psychological distress and who knows how to convince insurance adjusters, defense attorneys, judges and jurors of the seriousness of psychological injury claims and the devastating effect that they can have on people’s lives.
14. How soon must I file my psychological injury case?
If the case is against a public entity, the claim must be filed within six months of the date of the accrual of the cause of action. In all other accident cases, the plaintiff has two years. However, there are many ways in which a person can be psychologically injured and the statute of limitations may be more or less than 2 years for some of those cases, thus anyone with a psychological injury should immediately contact an attorney. Although the statute of limitations can be extended for “late discovery,” to be on the safe side cases should be brought within one year of the date of the incident.
Most legal questions require complex answers. The answers provided here may not be complete or fully accurate but attempt to provide consumers with abbreviated answers. For more detailed answers to these questions, a consumer should check out other articles in this section of this website, research other legal articles and texts on the subject matter or consult with an attorney.