When Forest Horne of Martin & Jones in Raleigh started practicing as a plaintiff’s attorney 30 years ago, the post-traumatic stress disorder that can follow a serious wreck, work injury, or criminal act wasn’t on a jury’s radar.
“Most people associated PTSD with war injuries, and if it wasn’t related to a war injury, they didn’t give it a lot of credence,” he said.
Over time, PTSD has become a major argument for damages in some of the most serious civil lawsuits involving injuries. Horne recently represented a client who was injured in a plant explosion, and Horne argued for and won damages related to his PTSD. The client had survived with first- and second-degree burns and watched his co-worker die. He received a $9.2 million workers’ compensation settlement, with $1 million allocated for his PTSD and depression.
Beyond PTSD, mental illnesses such as anxiety and depression are also seen in the less-severely injured. Just as attorneys are putting more focus on wellness and mental health, they’re also pointing to the lingering manifestation of depression and anxiety in their clients, both in settlement negotiations and in front of juries.
Kenneth Berger, a plaintiff’s attorney in Columbia, remembers how one of his psychiatric expert witnesses explained it: if their enjoyment of life has been taken, who wouldn’t be depressed?
“Whenever someone is dealing with chronic pain there is that moment in their life when they realize they are probably not going to be the person they were before the accident,” Berger said. “It can have a terrible impact on their psyche. If you have a person who is doing absolutely their best, but if they can’t be the mom or the wife or the business person that they used to be and it was all because of someone else’s fault, the natural result of that is going to be depression”
Mental health has become an important focus in culture, and the stigma associated with people who reach out to mental health professionals has dropped, said Jeremy Wilson of Ward and Smith in Wilmington, North Carolina. Juries are more open to considering the fact that a plaintiff is getting mental health care.
Just as the physical trauma to the brain from an accident can cause cognitive injuries and disorders that jurors and others can’t see, so it goes with the emotional trauma that comes after an injury.
“They are sitting at home, they are not doing anything, they are feeling worthless,” said Ben Whitley of Whitley Law Firm in Raleigh. “Nine times out of ten, they are going to be depressed.”
Horne said that even if a client may look fine on the outside and may present well to a jury or to a defense attorneys during deposition, they may nevertheless be undergoing a great deal of emotional strain, especially if the injured client can’t work and had previously been the breadwinner for his or her family.
“They are anxious because can’t provide for their families anymore,” he said. “Often, I’ll hear from the client, from their spouses, from their children or from their friends: ‘This incident really changed them. They’ve become an introvert. They won’t talk, they don’t want to go out.’ They are just kind of blah.”
When there are physical injuries, evidence from a counselor or therapist isn’t required to document a client’s pain and suffering, because jurors can decide those damages from other evidence and make a compensation decision on their common sense, and experience.
But an injured person’s testimony, whether at deposition or in front of a jury, isn’t enough to secure damages for future mental health care. It is crucial that a client’s feelings are backed up by expert medical testimony, the attorneys said.
“If we take it up on their own statements, that is always met with skepticism,” Whitley said. “The most effective is having a physician advocate, experts who are able to articulate what the victim is going through.”
Last year, Wilson represented two elderly victims of a home invasion robbery that their home health care aide had orchestrated. Much of their testimony focused on their trauma, not just during the invasion, but also its lingering effects that they suffer to this day.
The jury awarded $750,000 in damages solely based on the pain and suffering the couple endured, including their continued psychological trauma since the incident. The case is now under appeal.
Whitley cautions that some stigma attached to mental illness remains, particularly for people who have never experienced it and have a hard time relating to it.
“It’s something that people were willing to talk about, but I feel that a lot of attitudes and biases have remained the same,” he said. “There is still a lot of work that needs to be done to take away the stigma of having a mental health issue. It should be treated no differently than having an injury and going to the orthopedist.”
John McCabe, an attorney in Cary, North Carolina, said that things can go either way when it comes to jurors’ thoughts about awarding damages for mental illnesses triggered by an accident or event.
“Sometimes juries are sympathetic and empathetic, and there are other times when they are just cold and mean, he said. “As awareness of mental illness increases, I think the pendulum is swinging toward more of a compassionate jury, but I don’t think it one of those things where they completely get it. It’s still a struggle. Even though there is less of a stigma, juries haven’t reached the point of not being skeptical. But they are certainly getting more warmed up to emotional and mental injuries.”
Berger said that while he doesn’t think there is the same juror bias against mental illness in of itself as there was in the past, he doesn’t make depression either central to the case or its starting point. The challenge, he said, is convincing juries that the accident or incident is at the root of the client’s depression.
“That’s the rub,” he said. “The defense may point out other stressors but if you dig a little deeper, the simple truth is that the other stressors are directly related to the accident. It has a cascading effect.”
Follow Bill Cresenzo on Twitter @bcresenzosclw