Emotional Distress Damages
Emotional Distress Damages
Whether a medical malpractice victim or his or her family can recover for emotional distress caused by the malpractice is a matter of great debate. Historically, courts were reluctant to award damages for emotional distress because the damages are difficult to prove and difficult to assess. Currently, courts are split as to under what circumstances, if any, emotional distress damages are recoverable.
In general, there are two theories under which a person can recover emotional distress damages in medical malpractice cases. Under the "bystander theory," family members or others in a close relationship with the medical malpractice victim can recover for emotional distress suffered as a result of witnessing the harm to the victim. Under the "direct victim" theory, only the actual victim of medical malpractice can recover for emotional distress.
Emotional Distress Damages for the Malpractice Victim
There are a variety of ways in which courts address the matter of emotional distress damages in medical malpractice actions. All jurisdictions allow recovery for mental suffering and anguish that accompanies or results from a contemporaneous physical injury or impact by the victim of medical malpractice. Many jurisdictions consider a mother of a child a direct victim of medical malpractice for purposes of recovering emotional distress damages.
Many jurisdictions permit recovery for the negligent infliction of emotional distress where the medical malpractice victim suffers some physical harm or the distress manifests itself through physical symptoms. In these jurisdictions, an actual physical impact with the victim is not a prerequisite to recovering damages. Most states allow recovery for mental suffering by the malpractice victim without physical injury when it is intentionally caused.
Emotional Distress Damages for Bystanders
In a number of jurisdictions, bystanders can recover damages for emotional distress. In one case in which a Louisiana woman sued the hospital where her husband was a coma patient after her husband had been bitten by rats in his hospital bed. The court established a four-part test to determine whether the wife was entitled to emotional distress recovery. According to the test:
(1) A claimant had to either view the accident or injury-causing event, or come upon the accident scene soon thereafter and before substantial change has occurred in the victim's condition;
(2) the direct victim of the traumatic injury had to suffer such harm that it could reasonably be expected that one in the plaintiff's position would suffer serious mental anguish from the experience;
(3) the emotional distress sustained had to be both serious and reasonably foreseeable to allow recovery and compensation for mental pain, and anguish over injury to a third person would only be allowed where the emotional injury was both severe and debilitating; and
(4) claimants had to have a close relationship with the victim.
Other courts have adopted similar tests to determine whether bystanders can recover for emotional distress.
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