How We Should Address Mental and Emotional Harm

By Shuman, Daniel W. | Judicature, May/June 2007 | Go to article overview

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

How We Should Address Mental and Emotional Harm
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.