PSYCH DOCUMENT / RECORD REVIEW &
FORENSIC PSYCHOLOGICAL EVALUATION
"Your work is invaluable for plaintiff and defense attorneys."
Significant" or Egregious" Emotional Distress
There is virtually no limit to the amount a jury may award for emotional distress & pain and suffering.* Dr. Lerner specializes in emotional distress claims by providing attorneys with:
1. Psych Document / Record Review, and
1. Psych Document / Record Review
Do you receive psychiatric, psychological, and other mental health evaluations—progress notes, medical records, education records, employment records, witness reports, police reports, and depositions?
Psych Document / Record Review assists attorneys in proving or disproving claims of negligent or intentional infliction of emotional distress & pain and suffering. When convergent data are available, further assessment of the claimant is generally not necessary.
Dr. Lerner provides detailed document annotations and executive summaries that address the extent of a plaintiff's emotional and functional problems. Data can be instrumental in determining whether an event was the proximate cause of the plaintiff's alleged difficulties.
Document review empowers plaintiff and defense counsel to:
• identify strengths and weaknesses in clinical documentation,
• understand empirical psychometric test results and pinpoint critical findings,
• provide unsettling questions for depositions and trials that practitioners DO NOT want to be asked, and
• save the expense of unnecessary and time-consuming psychiatric and psychological evaluations.
In just days, Dr. Lerner provided skillfully annotated documents that reinforced our
legal strategy and obviated the need for costly and time-consuming reevaluation."
Unlike a treating therapist or testifying expert, a forensic consultant functions under the cover of the attorney's work product. And since documentation review does not involve diagnosis, treatment, evaluation, or prevention of a disorder, it is not the professional practice of psychology. This enables Dr. Lerner to consult regularly with attorneys across the country.
* While there is no cap on the amount a jury may award for emotional distress & pain and suffering in New York, there are caps in some states.
2. Forensic Psychological Evaluation
In order to substantiate the presence of "egregious" emotional distress, there must be supportive medical and/or psychological documentation. When there are a paucity of data concerning the severity of a client's condition, Dr. Lerner is frequently called upon to conduct a Forensic Psychological Evaluation.
Psychological evaluation provides attorneys with a comprehensive report focusing on the reason for referral, an extensive discussion regarding the event(s) that prompted the evaluation, the client's history, their mental status, a review of their functioning, objective psychometric test results, current symptomatology, diagnostic impressions, the proximate cause of the client's distress, the prognosis, etc.
By obtaining clinical and empirical data, evaluation of the plaintiff can empower counsel to prove or disprove claims of egregious emotional distress.
Dr. Lerner coined the term "Personal Psychological Injury" to address the often overlooked and minimized psychological and functional damages caused by traumatic events. He has served as an expert witness for both plaintiffs and defendants in legal matters involving:
• child abuse
• sexual mollestation
• sexual harassment
• hostile work environments
• wrongful termination
• wrongful psychiatric hospitalization
• employment matters
• motor vehicle accidents
• train accidents
• personal injury
• medical malpractice, and
• other civil matters.
Forensic Psychological Evaluations are conducted only when the client is present in the State of New York.
The Second Circuit Sorts Emotional Distress Into Three Categories:
“Garden-Variety,” Significant/Substantial,” and “Egregious”
Garden-Variety distress claims have been divided into low-end claims ($5,000 to $15,000) and high-end claims ($20,000 to $35,000). Such awards have been rendered in cases where the evidence of harm was presented primarily through the testimony of the plaintiff without medical/psychological corroboration.
Significant ($50,000 to $100,000) and Substantial emotional distress claims ($100,000). These claims differ from garden variety-claims in that they are based on more serious harm or more offensive conduct, and are often corroborated by witnesses and/or medical documentation.
Egregious emotional distress claims are in excess of $100,000. These claims have been awarded when the defendant's conduct was outrageous and shocking or when the physical health of plaintiff was significantly affected.
In all cases, having psychiatric and/or psychological documentation that substantiates significant emotional and functional problems will increase the likelihood of an award for emotional distress & pain and suffering.
Do Personal Injury Claims Include Compensation for Emotional Distress? Many of the damages associated with a personal injury claim allow for straightforward calculations. When you calculate compensation for your medical bills, for example, you can add up the cost of medical treatment for your injuries-and perhaps factor in additional compensation for medical expenses that your doctors predict you will face in the future. The same goesfor your lost wages: calculation can be as simple as tallying up the time you’ve missed from work and estimating how much money you will be able to earn in the future while living with your injuries.But as the victim of a personal injury, you may also have the right to receive damages for your pain and suffering, which can include emotional distress. And it’s not always easy to know when you deserve to receive those damages, or the right amount of money you should receive.A skilled personal injury lawyer can evaluate your case and fight to get you the money the law entitles you to receive. Does a personal injury claim include damages for emotional distress? Most people would agree that it’s only fair that the damages you get for a personal injury should include compensation for emotional distress and other mental health challenges you face due to an accident and the harm you suffered in it. But believe it or not, the law has not always seen things that way. According to legal historians, it wasn’t until the mid-20th century that damages for emotional distress became a standard component of damages in personal injury cases. And even today, many jurisdictions in the United States make it difficult to seek financial compensation for emotional distress unless you also suffered physical injuries. That said, today, the compensation you can seek in a personal injury claim generally includes some amount of payment for your emotional distress. Increasingly, you may also have the ability to take legal actions against someone whose wrongful actions cause you only emotional distress without any accompanying physical or financial injury whatsoever (although those claims generally still face higher hurdles than ordinary claims involving a combination of physical and emotional injuries). Of course, as with any legal claim, to get you money damages for emotional distress your attorney must be able to prove that you endured it as a result of someone’s careless actions.Sometimes, that may mean nothing more than showing that your injuries caused you intense physical pain, since everyone understands that kind of pain also causes you emotional suffering. Or, your lawyer may rely on a diagnosis from a medical professional (for example, depression, anxiety, or PTSD), especially if your claim is for emotional distress alone. What damages can you get for emotional distress? The challenges associated with suffering emotional distress due to someone else’s wrongful actions can take a heavy toll on your life. Mental health struggles can make it difficult to leave your house without fear, get out of bed, or spend time in vehicles or enclosed spaces. The effect of these difficulties isn’t just emotional. It’s also frequently financial. The distress you feel may prevent you from going to work or school, or from living independently. You may need significant support to overcome the obstacles your distress causes in your life. You deserve financial compensation for those emotional injuries and challenges. Here are some of the types of damages you may have the right to receive. Costs of Mental Health Care for Emotional Distress If you need mental health treatment for the emotional distress you sustained because of your accident, the cost of that treatment can usually constitute a component of your damages in a personal injury claim. Suppose, for example, that you suffer from PTSD because of what happened. Your claim for money damages can often seek payment for the cost of: Therapist visits; Specialist or psychologist visits; and Medications to help treat your symptoms.Those costs can add up substantially, especially if you do not have medical insurance. To make it easier for your attorney to secure payment of those costs on your behalf, hold on to any invoices, receipts, or insurance statements you receive that show how much you have spent on them. Lost Income Because of Emotional Distress In some cases, emotional distress may prevent you from holding down the same type of job or working the same number of hours as you did before your accident. For example, suppose you have PTSD after a motor vehicle accident, and your job requires you to drive regularly. In that case, your condition may make it difficult, if not impossible, to keep working. Even if your emotional distress does not directly impact your ability to work, it can have a significant impact on your job performance. Depression, anxiety, and stress can interfere with your decision-making, focus, and drive, easily translating into making mistakes that slow you down in your career or prompt your employer to terminate you. One way or another, in other words, emotional distress will have a predictable impact on your income that you should not have to bear. For that reason, a personal injury claim can often include a demand for financial compensation to repair the damage your emotional distress does to your ability to earn a living. A claim may consist of both past wages you did not earn because of your struggles, as well as future income you probably would have earned if an emotional injury had not burdened you. Compensation for Your Overall Suffering In addition to the direct financial impacts of emotional suffering, you also deserve compensation for the suffering itself. Conditions like PTSD, anxiety, and depression are inherently distressing. They drag you down, make you feel hopeless, frightened, isolated, or incapable of feeling joy. These struggles may not come with a dollar sign attached to them, but that doesn’t make them any less real. You deserve to receive money damages for them no less than you deserve reimbursement for your financial costs. An experienced personal injury attorney, often with the help of a mental health professional, can evaluate the scope and impact of your suffering and determine the appropriate amount of damages you deserve. How do lawyers calculate emotional distress damages? As we’ve alluded to above, damages for emotional distress have two basic components. First, there are direct financial impacts traceable to the emotional distress, principally the cost of treatment and the loss of income. Second, there is the intangible toll of suffering itself. Lawyers calculate the first category, often called economic or special damages, fairly straightforwardly. They typically collect and review records of expenses-such as receipts from pharmacies, invoices from medical offices, statements from insurers, and past pay stubs-and add up the total amount of those expenses that have already occurred. They also calculate an estimate of those expenses in the future, sometimes with the help of medical or financial experts. The second category, often called “non-economic” or “general” damages, presents more of a challenge. Suffering doesn’t come with a price tag attached, and its degree and impact vary from person to person. Translating highly personal struggles into a dollar amount takes experience and a willingness to listen to clients tell their stories. As a practical matter, once lawyers (and insurance companies who deal with personal injury claims) have an understanding of the nature and severity of emotional distress, may use various strategies for coming up with its “value” as part of a personal injury claim.They may, for example, estimate an amount of money that represents appropriate compensation for a single day’s worth of suffering, and then multiply that amount by the number of days they estimate the suffering will continue until the individual has made a full recovery. Or, they may use the amount of the individual’s economic damages as a measuring stick, and assign a percentage or multiple of that amount to represent the value of non-economic damages.No matter the methods they use, experienced lawyers for individuals who have claims for emotional distress recognize that money is at best a highly imperfect means of compensating someone’s suffering. Money cannot cure mental health struggles. But it can provide essential support to assist a person in overcoming the challenges they face and returning to living a fulfilling life. Emotional Distress As Someone’s Only Damage As we mentioned above, in most personal injury cases, compensation for emotional distress accompanies compensation for physical injuries. In the typical case, an award for someone’s “pain and suffering” pays them for the non-economic harm caused by both physical and emotional injuries. Sometimes, however, emotional distress is the only or predominant harm an individual suffers because of someone else’s wrongful conduct. Generally speaking, the law allows victims to claim compensation for these stand-alone emotional injuries in two types of circumstances. Intentional Infliction of Emotional Distress A stand-alone emotional distress claim exists when someone purposely causes you emotional harm. For example, a person might claim emotional distress damages in a case against someone who intentionally terrorized them through online threats or bullying. Likewise, victims of crimes that put them in fear for their lives or whose sense of safety and personal autonomy was violated, such as being robbed at gunpoint or sexually assaulted, might seek compensation for intentional infliction of emotional distress. Negligent Infliction of Emotional Distress A stand-alone claim for emotional distress can also exist when the wrongful actions that caused distress were negligent, rather than intentional. Historically, these claims for negligent infliction of emotional distress have only existed in a narrow set of circumstances, namely when an individual witnesses a loved one getting hurt by someone else’s wrongful conduct. In some states, however, the law has begun to recognize a broader set of cases in which someone can claim negligent infliction of emotional distress, such as when someone’s careless actions put someone in reasonable, and extreme, fear for their safety or the safety of their loved ones, even if no one actually gets hurt. How Having a Lawyer Helps Secure Emotional Distress DamagesIn personal injury cases in which emotional distress constitutes a significant injury (which is to say, nearly all of them), it’s critically important for the person seeking damages to be represented by an experienced personal injury lawyer. Here’s why. Insurance-principally liability insurance-plays an important role in most personal injury cases. Most commonly, the party at fault for injuring someone carries insurance that serves as the first source of payment for a victim’s injuries. The existence of insurance helps to ensure that victims of personal injuries receive the compensation they need to pay for care and to rebuild their lives. But in many cases, insurance companies will under-value a person’s emotional distress damages at the outset. In other words, if you don’t have a skilled advocate on your side to convince insurance companies of the nature and extent of your emotional injuries, they may not pay you for them as they should.A seasoned personal injury lawyer knows how to evaluate your injuries, calculate the damages you should receive, and make the case to an insurance company for why it should pay them. In most cases, that advocacy leads to a settlement by the insurance company that includes more for emotional distress damages than the insurer would otherwise have paid. Of course, not all personal injury claims settle out-of-court. Sometimes, a lawyer needs to go to trial to prove your emotional distress damages to a judge and jury. As when dealing with insurance companies, it takes the knowledge and effort of an experienced personal injury attorney to present evidence in court to show just how significant your emotional distress damages are, and why the at-fault party should pay for them. Speak With a Lawyer Today About Your Claim for Emotional Distress If you suffered emotional distress because of an accident caused by someone else’s wrongful conduct, a personal injury lawyer can help you pursue the compensation you deserve. Contact a personal injury attorney today for a free consultation to learn more about your rights and options. Dr. Mark Lerner Psychologist