Getting a Recovery for Your Psychological Injuries (Part II); Knowing When to Claim Emotional Damage


In this post we discuss when psychological injuries should not be claimed in a personal injury lawsuit.

As we discussed in Part I, the general public has a strong prejudice against psychological injuries.  Sometimes, as a strategic decision, it is better to forego the claim.  Weak proof of psychological injury will diminish all of the client’s proof.

Here is an example:

Our client’s compact vehicle was rear-ended by a bus on Central Park West in Manhattan.

The client’s injuries were so-called soft tissue injuries to the neck and lower back.  He worked as a highly skilled technician for the phone company (then Nynex), and he was out of work for about 2 months.

The client had physical therapy for his neck and back injuries.  He also treated for psychological injuries with a neuropsychologist.  The client claimed that as a result of the collision he could not think as clearly as he used to and that he his mental processes have been impaired. 

Although we did not doubt our client’s sincerity, we felt that the psychological claim could not be presented at trial.  We felt that proof of psychological damage would diminish the client’s entire case.  The client had not only returned to work after 2 months, but he also was promoted.  He explained away the promotion as a benevolent act of his employer.  He said that  the phone company “would promote anyone.”   

The bus’s insurance company offered an excellent settlement before trial.  The insurance company’s offer was “settle the case now, or all offers are off the table.”  We recommended settlement.  The client declined, and he switched to new attorneys. 

The new attorneys tired the case.  The client lost.   

Although we did not try the case, we feel that the proof of the alleged psychological injuries cast a pall over all of the client’s claims.  When a client has psychological injuries we make a case by case determination as to whether these injuries should be part of the case. 

In a future post we shall discuss a successful presentation of psychological injuries.

If you have been injured in an accident, please feel free to contact me for a free consultation at 800-581-1434 or write to letters@seitelman.com.

Mark E. Seitelman, 4/9/10, www.seitelman.com.

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