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After witnessing my husband getting hit by a car as a pedestrian, I had many sleepless nights and I couldn’t eat. He was ultimately fine, but I couldn’t get the pictures of the accident out of my head. What kind of proof must I offer to show I suffered from emotional distress?
If it can be established that you witnessed the accident, that is, saw it, or in some states, had sensory observance of it, like hearing it, you will be able to make what is referred to as a claim for negligent infliction of emotional distress (NIED) as a "bystander" claim, created by the California case, Dillon v. Legg. If a close family member is a witness to an accident causing an injury, and suffers severe emotional distress, which is distress beyond what would be expected in a disinterested witness as a result of witnessing the incident, they may make a claim for damages for emotional distress. In some of the states that do recognize NIED, the underlying physical injury does not have to be catastrophic, gruesome or even proven.
To prove your claim, you will have to produce records from your physician or psychologist, which will show that you came to see them about this particular problem. Your records will need to include a diagnosis of emotional distress that relates to the incident, and notes indicating that you have gone through, or are going through, a course of psychiatric or psychological treatment which may include counseling and/or medication. It is likely that the responsible party will also ask for a medical report from your physician.
Often times the attorney for the other party will subpoena (legally demand) your medical records going back either a certain number of years or even ask for all of your medical records to date, in order to see your medical history. The opposing party may ask you to go for an independent medical exam with a physician, likely a psychiatrist or a Ph.D. psychologist of their choosing. In most cases you would be deposed (questioned under oath, not in court) to find out exactly what you saw, experienced and suffered following the accident. They will want to know if you have any prior mental health problems to try to establish whether or not you have a pre-existing psychological or psychiatric history. This information will likely be in your medical records, as well. They will absolutely want to depose your husband, too, to find out exactly what happened to him in the accident, so they can better determine what it is you observed. |
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