There is no limit on the amount a jury may award for emotional distress / pain and suffering.* The only guidance for the jury is an amount a reasonable person could possibly estimate as fair compensation. Although a psychiatrist may not testify to the value of emotional distress damages, he or she is permitted to provide useful information to the jury to enhance their understanding in the context of the lawsuit itself. A jury is better able to determine what, if any, compensation is “fair.”
The civil code of evidence in every State permits a psychiatrist to contribute expert information to assist the jury’s deliberation.
- the length of time during which the pain or other harm to the feelings has occurred;
- the length of time during which the pain or harm to feelings will continue;
- the plaintiff’s reasonable susceptibility to this kind of harm, taking into account the plaintiff’s age, sex and condition in life; and
- any provocation by the plaintiff (as a factor in mitigation of damages).
The California Supreme Court spoke on the matter of monetarily valuing emotional distress in Beagle v. Vasold, 65 Cal.2d 166, 53 Cal.Rptr. 129, 131 (1966):
“No method is available to the jury by which it can objectively evaluate such damages, and no witness may express his subjective opinion on the matter…In a very real sense, the jury is asked to evaluate in terms of money a detriment for which monetary compensation cannot be ascertained with any demonstrable accuracy. As one writer on the subject has said, “Translating pain and anguish into dollars can, at best, be only an arbitrary allowance, and not a process of measurement, and consequently the judge can, in his instructions give the jury no standard to go by; he can only tell them to allow such amount as in their discretion they may consider reasonable…The chief reliance for reaching reasonable results in attempting to value suffering in terms of money must be the restraint and common sense of the jury.”
The Mental Evaluation / Assessment
Most mental health professionals believe the broader the scope of inquiry, the greater the certainty of their opinions. It is not necessary for a plaintiff to have a mental examination in order to prove emotional distress / pain and suffering and be compensated for it, nor for a psychiatrist to testify about the above four areas. A record review may be sufficient including sworn testimony taken at trial. When the occasion arises that an examination is conducted by a mental health professional, usually a psychiatrist or psychologist, then the scope of the examination must be established. This may include areas of inquiry, time to be spent, or the number of psychological tests to be performed. The format of the evaluation includes examining the plaintiff with inquiry into areas which will reasonably yield information relevant to the case at hand. When indicated, collateral examinations are performed.
Whenever possible I want to review personally all medical records and all relevant deposition testimony, personnel records including military records, police records and expert reports including previous psychological testing raw data. Sometimes an executive summary of the review is prepared. Psychological testing usually is performed.
Upon completion of the total evaluation, I usually prepare a report explaining my opinions although an exception to this practice may occur if I expect to give expert testimony shortly after the evaluation. This decision is made in consultation with the referral source. In Federal court where a Rule 35(a) examination has been ordered, a report is required “if requested by the party against whom an order is made.” An “agreed-to” examination may expressly provide for a written report. Many attorneys have told me that when a plaintiff alleges emotional distress, this constitutes a good cause for the defendant to require the plaintiff to undergo a mental examination as part of the pre-trial discovery process. By so doing, other important information about the plaintiff also may be learned.
Emotional Distress is not a medical diagnosis, for example in the DMS-IV-TR and the descriptive “pain and suffering” is used in a legal context. However, common examples of the manifestation of emotional distress / pain and suffering are depression, depression related to chronic pain, anxiety, Post-Traumatic Stress Disorder (PTSD) and many, many other mental conditions linked to a cause of action, described among damages claimed, perhaps relevant to an issue of mitigation of damages, and other permutations, which I have come across in my career as a Forensic Psychiatrist. There is no substitute for a conversation about the details of a case (this includes issues of Fitness for Duty and Threat Assessment in the workplace setting). As we all know, what is obvious to one may be nuanced to another. I can be reached at (415) 461-4845.
The tort Intentional Inflict of Emotional Distress is not in the scope of the forensic psychiatrist or psychologist’s testimony. However, the Expert Witness‘ findings are useful in a jury’s understanding of the impact a cause of action had on the plaintiff, or perhaps no impact at all, and evaluate those findings along with other evidence and testimony to determine for itself whether or not infliction of emotional distress was intentional.
You might find it interesting to read one of my Case Studies: “Head Injury or Schizophrenia?”
*In California there are limits on awards in medical malpractice cases in some states.