How We Should Address Mental and Emotional Harm
Shuman, Daniel W., Judicature
We need to provide therapeutic alternatives to those who resort to tort law as a last resort to address their mental and emotional harm.
At its best, tort law offers seriously injured claimants assistance in rebuilding their shattered lives. Therefore, when the worst happens it seems reasonable to expect tort law to fulfill its beneficent offer of assistance when the fact finder is persuaded that the claimant suffered serious injury caused by the defendant's tortious conduct. From its inception, however, tort law's offer of assistance has disfavored compensation for mental or emotional harm.1 At first, the common law simply refused to acknowledge mental or emotional harm as a compensable loss. Reflecting a bleak view of the human condition, it concluded that there is no right to be free from mental suffering.2
This categorical limitation remained for some time in negligence law, but was disregarded in the case of intentional torts involving the same mental or emotional harms, but less sympathetic defendants.5 Gradually, claims for mental or emotional injury closely tied to physical impact or injury were allowed in negligence cases. However, most jurisdictions still refuse to recognize a general Negligent Infliction of Emotional Distress Claim,4 but other disjointed categories of claims for negligently caused mental and emotional harm are now allowed. This patchwork of exceptions includes bystander claims for mental harm sustained while witnessing traumatic physical injury to another, failure to deliver a telegram death notice in a timely manner, and negligent handling of a corpse.5 Even as the ban on compensation for mental and emotional harm has been lifted exception by exception, these awards have become the target of damage caps. Although the rules vary from state to state, the common law remains reluctant to address mental and emotional harm with the same enthusiasm it addresses physical harm.
What logic supports different approaches to address what are both personal injuries? Are these injuries fundamentally different, and, if so, is mental and emotional harm less worthy of compensation? Whatever the best minds of the day might have thought about the difference in physical and emotional harm when tort law came of age, the best minds of today do not support such a stark mind-body dichotomy.
Our current understanding rejects this Cartesian dualism and leads us in the direction of an integrated model for understanding harm.6 Illustrating this understanding is a diagnosis common in civil and criminal courtrooms, Posttraumatic Stress Disorder (PTSD). PTSD is a psychological trauma that may produce measurable brain damage7 and has already confounded courts trying to fit it within one realm or the other under the Warsaw Convention. There is every reason to expect similar findings for other impairments. Today and tomorrow's scientific paradigms do not support differential legal treatment of mental and physical harm.
Decision-making research suggests that the heuristics that bias clinical judgment operate no differently in different realms of illness or injury.8 Thus, we are not entitled to be any more confident in the competence of clinicians to sort out the physical than the mental consequences of tortious events. Nor does the research support such a categorical distinction on the grounds that people who suffer mental or emotional loss are more likely to malinger or more difficult to detect when they do,9 or are somehow weaker than people who suffer physical injury.10 If science were all that mattered, we would be hard pressed to justify a difference in rules for compensation of physical and mental or emotional harm.
Compensating for loss
Yet, there is an important way in which awards for physical and mental harm do differ-their ability to compensate for, or restore loss. Compensatory damages, which are normally at issue in tort litigation, are awarded to return the plaintiff to the situation he or she would have occupied if the wrong had not occurred. …