Personal Injury Examinations in Torts for Emotional Distress

Abstract

Abstract Public policy usually allows persons who have been harmed to claim compensation from the perpetrators of that harm, even when the harm is not a crime. At first, the law only allowed compensation for physical harm. As the law has evolved, most jurisdictions also allow compensatory damages for psychological harm under a variety of legal conditions. The plaintiff must persuade a jury, to a preponderance of the evidence, that he or she was psychologically damaged in a legally qualifying way. The jury then considers what compensation would be just in returning the plaintiff to the equivalent of his or her condition before the claimed event. This legal conceptualization requires that the forensic examiner consider the plaintiff's functioning prior to the claimed event, the degree of distress likely to be engendered by the event, areas of resiliency and impairment in the plaintiff's functioning after the event, the likely cause of any psychological impairment in the plaintiff's functioning, and the plaintiff's likely future status and need for care to ameliorate the impairments caused by the defendant. This chapter reviews the legal bases of such examinations, describes how to conduct the examinations, and provides model testimony for how to explain the results of these examinations to juries.

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