70 The Alabama Lawyer 52 (2009). Legal Stressors on Providing Recoverable Damages for Mental Anguish.

• Author: BY ERIK S. HENINGER

The Alabama Lawyer

2009.

70 The Alabama Lawyer 52 (2009).

Legal Stressors on Providing Recoverable Damages for Mental Anguish

Legal Stressors on Providing Recoverable Damages for Mental AnguishBY ERIK S. HENINGEROne of the current challenges facing attorneys in Alabama is determining the existence and extent of psychological and physical damages that apply to particular cases. Questions abound as to whether emotional damages are available in certain causes of action and, if so, how the degree of the damage can be proven. Where does the court draw the line and why? Furthermore, can these emotional damages be understood or quantified for mediation, settlement or argumentative purposes? These questions and more should be considered when the lawyer reviews the facts of his or her case and attempts to claim emotional damages exclusively or coupled with other compensable injuries.(fn1)

Physical Damages versus Emotional Damages

To appreciate the limits the courts have set for recovering mental anguish or pain and suffering damages we must understand the physical and/or psychological effects of an "injury." The word "pain" is derived from the Latin word peona, meaning punishment. Pain is defined by the International Association for the Study of Pain (IASP) as "an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage."(fn2) This definition reflects the now well-accepted premise that pain can occur without any discernable trauma at all, or can persist beyond the expected healing period. Furthermore, pain has unique physiologic and psychological components that contribute to the pain experience. The pain experience, both physical and mental aspects, is unique to each individual. No two people, even those with similar etiologies for their pain, will experience pain in exactly the same way.

Physiologically, pain involves sensitivity to chemical changes in the tissues and then interpretation that these changes are harmful.(fn3) The natural stimulus for "superficial pain" is injury: cutting, crushing, burning, etc.(fn4) In the injured area, the receptors are excited or primed by bradykinins (a nonapeptide which stimulates pain receptors), coming from the circulation, and by histamine, prostagladins, serotinins and potassium ions locally, from injured tissues. A complex physiologic arrangement in the dorsal horn of the spinal cord has been postulated to control or modulate incoming pain impulses. From these impulses, the brain is able to "perceive" an injury including the location, degree and, possibly, cause of pain.

The IASP's definition of pain illustrates that it is a perception, not really a sensation, which can be compared with hearing or seeing. This perception is real, whether or not harm has occurred or is occurring. Cognition is involved in the formulation of this perception. There are emotional consequences and behavioral responses to the cognitive and emotional aspects of pain.

Pain is a significant physical stressor that may induce or exacerbate psychological distress. A significant proportion of patients who have chronic pain, regardless of its cause and origin, experience psychological symptoms in the course of their illness. In most chronic pain patients, psychological disturbances are not the primary cause of pain but are the consequence of unrelieved pain and its effects on the quality of life. Some of the common psychological disturbances associated with chronic pain include depression, anxiety, sleep disturbances and decreased sexual activity. These factors can lead to physical de-conditioning and disability, and prolonged psychological distress often leads to pain behavior. "Pain behavior" is considered that behavior which occurs in the context of specific events whether internal or external, cognitive or affective, and is followed by consequences emanating from a variety of sources occurring continuously or intermittently with potentially variable effects depending on the complexity of the situation.(fn5) These events can be physical, psychological, social or any combination thereof.

The concepts of pain and suffering are frequently mixed and sometimes confused in dialogue, especially because pain is commonly used as if it were synonymous with suffering. Yet, pain and anguish are distinct phenomena. Suffering, or anguish, is loosely defined as a "state of severe distress associated with events that threaten the intactness of the person."(fn6) Not all pain causes suffering, and not all suffering expressed as pain or coexisting with pain, stems from pain. In other words, individuals can experience pain without a physical injury and, likewise, can sustain an injury without experiencing pain or a consistent degree of pain.

So what does this mean for everyday practitioners? It is widely accepted that damages for mental anguish can form a substantial part of compensatory damages for torts involving physical injury.(fn7) As the very term "mental anguish" suggests, there are psychological damages which are separate and distinct from the physical aspect of an injury. The Alabama Supreme Court attempts to catalogue a few psychological aspects of an "injury" in Daniels v. East Alabama Paving, Inc., 740 So. 2d 1033 (1999), which reads:

"when connected with a physical injury, [the term mental anguish] includes both the resultant mental sensation of pain and also the accompanying feelings of distress, fright and anxiety. As an element of damages [it] implies a relatively high degree of mental pain and distress; it is more than mere disappointment, anger, worry, resentment, or embarrassment, although it may include all of these, and it includes mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair and/or public humiliation [A]s a ground for compensable damages or an element of damages, it includes the mental suffering resulting from the excitation of the more poignant and painful emotions, such as grief, severe disappointment, indignation, wounded pride, shame, public humiliation, despair, etc." (emphasis in original).Thus, just as the medical texts suggest, mental anguish is not a condition limited to suffering painful sensations due to the exposure of a physical injury, but also includes disturbances to a person's psyche.

Clearly, there are few who have suffered injuries or witnessed a loved one's injury that can divorce the mental aspect of pain from the physical. The two travel hand in hand. A more difficult question arises when a physical injury is lacking. Does the fact that we do not see a limp or scar suggest that an individual is not injured? The court recognized this dilemma long ago in Vinson v. Southern Bell Telephone & Telegraph Co., 188 Ala. 292 (1914):

"'Injury to the person' is synonymous with bodily hurt, bodily harm. Great physical effort may be immediately productive of that character of hurt or harm. If such effort produces physical exhaustion it is open, at least, to be concluded that bodily harm or hurt has, though not visibly manifested...