In this podcast, Chelsea Bishop of Mazow McCullough explains how attorneys quantify emotional distress and mental anguish in personal injury cases. She highlights the importance of capturing emotional damages, using methods like therapy records, expert evaluations, and the QALY scale. Chelsea also discusses how family and work colleagues’ testimonies can provide valuable corroboration. She shares strategies to help clients express their emotional distress and emphasizes how documenting these experiences can impact the case outcome, especially when addressing non-physical damages in court.
John Maher: Hi, I am John Maher and I’m here today with attorney, Chelsea Bishop of the law office of Mazow McCullough. Today we’re talking about quantifying mental anguish and emotional distress. Welcome Chelsea.
Chelsea Bishop: Thanks, John. Happy to be here.
Why Do You need to Quantify Mental Anguish and Emotional Distress?
Maher: Yeah. So Chelsea, why is it necessary to quantify the mental anguish and emotional distress experienced by a client in a personal injury case? And how do you assess that?
Bishop: It’s a really great question and one that I think personal injury lawyers are still grappling with the best way to do this. Anytime there’s a physical injury, oftentimes those physical damages are very easy to see. Whereas the emotional damages that come with any physical injury are much harder to see, and quantify, and capture in a way that is compelling to an insurance adjuster, or an opposing counsel.
And that’s our job to do that. Some things that I like to ask my client when I have phone calls with them is I’m trying to capture what exactly those emotional damages are. So, the severity of the distress. For example, how intense the pain is that you’re experiencing.
One, at the time of the injury. Let’s say you get in a motor vehicle accident. There’s definitely some pain and some injury at the time of the accident.
Two, any ongoing pain or injury that you’ve suffered and how long that distress has happened, and more importantly, the effect on your life. So are you able to sleep the same amount you used to before? Does it affect your ability to exercise? Sleep and exercise are huge in people’s lives, and sometimes injuries make it such that you’re not able to do that in the same way that you used to, pre-injury.
Another thing that I like to talk to my clients about is their relationship. Sometimes they’re not able to be physically present in the lives of their children, or their loved ones, or their partner, and so that’s something that’s really important to try and capture on my end too, and to think about when we’re drafting these demands.
Something that we often will have our clients do especially if they’re treating for any kind of mental health, so if they have a psychiatrist or a therapist, making sure we’re capturing those medical bills, I think that’s a nice concrete way to demonstrate that emotional damage. Or we’ll have the client go and talk to an expert and assess their mental health and how it was affected after the injury.
What Other Ways Can You Quantify The Emotional Distress and Mental Anguish?
Maher: What are some other ways that you can really quantify the emotional distress and mental anguish through some direct evidence like you mentioned, maybe the bills for therapy or something like that that they’re doing? Are there other types of ways to quantify things?
Bishop: Yep. Yeah, I think initially when we get a client that comes in and that has had an injury, there’s going to be a lot of medical bills. So those we’ll capture right away. If there’s any therapy bills, we’ll capture those as well like I mentioned. We’ll often have our clients go out for psychological evaluations. I think leaving it to the experts who know how mental damages or distress affects someone, and really putting that into writing and preserving that, and an expert report, being able to present that to the other side.
A lot of times if people have trouble after an accident even if they aren’t necessarily… Outwardly it doesn’t look like they’re suffering, but they’re having trouble concentrating at work, and being able to assess that and put that in conjunction with lost wages is something that we do here.
Any prescribed medication, a lot of times people will be prescribed medication in order to deal with the mental and emotional effects after an injury or an accident. That’s something that we capture as well, and we’ll put that in a demand.
And again, just looking at somebody’s medical records. Oftentimes doctors will make notes about the anxiety that the patient’s experienced and how that has changed from what they experienced with that particular patient previously. So, we get a holistic view as much as we can of all the records and what’s available in order to assess and analyze, and really again, capture that and put that in a demand when we’re making that demand on behalf of the client.
Are Therapists Helpful?
Maher: Do you think that a therapist is really helpful in order to make connections between something that might be going on in the patient’s life, in your client’s life and the accident? Maybe they are struggling at work to concentrate, but they didn’t really think that that was associated with their accident. Or maybe they’re having some issues with their spouse and they’re arguing all the time with their spouse, but the therapy helps to bring out the fact that, “Yeah, actually it’s because of that stress that you went through the accident.”
So do you think that the therapy helps to illustrate to the client that, “Yeah, these changes that you’re seeing in your life are all because of that root cause of the accident and not just random things that are happening in your life?”
Bishop: Yeah, absolutely. I think that’s a really good point. I think therapists and trained clinicians are able to do that. I think a lot of times we as people, and I see this in my clients a lot, they’re really resilient people. And this accident has happened, but they still have X, Y, and Z to do in their life. And they still persevere and they still try and push past that and do the things that they need to do in order to show up for the people in their life. I think that’s incredible and it really inspires me to work really hard for my clients, but I also think sometimes it makes them a bad or unreliable narrator for really the way in which the accident has affected them.
I think having a professional to take the time and sit down with them and do a two-hour evaluation or so, and really dig into their life and the way it’s been affected is really helpful. I think that’s part of a lawyer’s job as well too, when I have these follow-up calls with my clients to really dig into like, “Well, what has changed? Do you have trouble sleeping?” I have a case now that involves someone’s child and so asking, “You’re the parent here, you’re observing your child every day. What are the ways in which they’ve changed behaviors that you notice that are different?”
And I think, yeah, it’s something that’s my job to dig in and have them as gently as possible, be a counselor for them in a lot of ways where. They tell us that in law school, that we’re counselors first. And so being able to bring that out of my clients sometimes is something that I view as my role as well too.
Non-Obvious Ways to Quantify Emotional Stress
Maher: Beyond just the direct obvious things like talking to doctors and therapists, et cetera. Are there other ways that you can help to quantify emotional stress? Maybe do you recommend having your clients do any journaling or anything like that?
Bishop: I think anytime I learn that a client has a habit of journaling, it’s great. And I think sometimes people are hesitant, understandably to want to produce something like that. I think it’s really personal, but if to the extent that they’re able to and willing to, I think it really captures how the client is feeling on that day. And it’s super invaluable to a case, understanding how that client felt the day of the accident, the day after the accident. A few weeks down the road they may start feeling better and it’s natural to kind of forget how awful it was in that moment. And so I think, yeah, preserving it in the form of a journal.
Sometimes even social media posts. We see sometimes that clients will have made some online journal or recording of how they felt in that moment, and that’s really valuable for us as well.
Something that I didn’t mention before that I probably should have. There are scientific measurements as well that we use. There’s a scale called the QALY scale. It stands for Quality-Adjusted Life Year. That’s something that we’ll use to assess the damages as well. The science is slowly catching up when it comes to assessing the mental emotional damages and mental anguish. But yeah, we’re slowly getting there and we’re starting to see some kind of more scientific measurements of how these damages really affect clients lives.
Who Administers a QALY Test?
Maher: Who administers something like the QALY test? Is that a therapist who would do that?
Bishop: So, the QALY is actually not a test. It’s more like a scale that we use to assess mental and emotional damages over somebody. It’s the course of their life. It distills down the value of someone’s life, which is hard to do. And what you’re doing is taking the monetary value of a year in someone’s life and multiplying it by the percentage to which the accident affected their life. And they use different scales. It’s almost like a mathematical equation to equal the amount of damages that might be able to be quantified.
And it’s hard to do, and it sounds a little cold, but it also is very helpful when you are talking to a jury and you’re trying to explain. You can have testimony as to how this accident affected the client’s life, and that’s something that’s very, very important. And then at the end of a case, if I’m putting on this case to the jury, I need to be able to say, “Hey, you heard from my client. You heard the amount of suffering that this accident or this injury has caused. And now I’m going to show you how much I’m asking for in terms of monetary damages and how I got there.” I think the QALY allows me to do that in a way that’s very quantifiable and easier to digest.
Putting a Dollar Value on Emotional Distress
Maher: Talk a little bit more about that and how you’re actually putting a dollar value on emotional distress in terms of the case and what you’re asking for.
Bishop: So, one of the things is, I mentioned it earlier, but the severity of the distress. So we look at the consequences on a person’s mental health, their work relationships, the amount of damages that we can distill down to, again, lost wages or mental health therapy and things like that. The QALY in particular, it assesses the value of a year in someone’s life. I think the rounded out or the baseline amount they use is $125,000, and there’s some math that goes into that.
But then there’s other factors that influence that up or down. And so, what we’re trying to capture there is the impact that this accident had. So if that’s your baseline, let’s say the accident has put you at 50% of the life that you were able to have prior to the accident. So it would be 125 times that 50%. And again, it’s like a math equation. I don’t mean to be getting so much in the weeds on that.
But yeah, so you look at the severity of the distress, the duration of the distress, the impact on the person’s daily life. Any medical evidence like we talked about, having any kind of record from a doctor is huge. Any kind of record from an expert. We have economic experts as well that will pull into cases depending on the case. And in general, we really get to know the client over the life of the case, and we try to really capture in our narratives to juries and to adjusters before we get to the trial stage about how this accident has affected our client.
How to Prove Emotional Distress
Maher: How do you ultimately address the challenge of trying to prove emotional distress when maybe there’s no really apparent injury to the person when you just look at them, especially when you’re trying to talk to the jury and make them understand this?
Bishop: We mentioned expert reports and expert testimony, but something we haven’t talked about is corroborative witness testimony. So family, friends, work colleagues that have seen this person and the emotional changes, people who knew this person prior to the injury and then also knew them after the fact. Being able to talk about the things they observed in this person, I think that’s hugely valuable. I think when jury members can hear that from somebody else besides the plaintiff or the injured person, it goes a long way.
And like you said, a lot of times the damages are non-physical. You might not be able to see it, but sometimes those emotional damages are even worse than physical injuries. Physical injuries you might be able to recover from. And I think sometimes the emotional damages last longer, anxiety, depression, insomnia. And so having medically diagnosed emotional damages like that is also really helpful. And I do think juries can relate to that in some ways.
At the end of the day, the more you’re able to document the better, the more you’re able to quantify and pull from all the emotional picture that you get from the client of how this accident has affected their life, the better.
Maher: All right, well that’s really great information, Chelsea. Thanks again for speaking with me today.
Bishop: Yeah, no problem. Nice talking to you, John.
Maher: Amend for more information, you can visit the Mazow McCullough website at helpinginjured.com, or call (978) 744-8000.
