Emotional Injury – What Is It and Can It Be Proven

Posted By: Tony Baratta | February 4th, 2016

Jane, a grandmother, while on the way to visit her grandchildren, was in a car wreck on the road her grandchildren lived.  She so feared the location, she refused to visit her grandchildren for years.

Paul suffered a severe reaction, anaphylactic shock, while having a CT scan with contrast.  As a result, he almost died, and spent many days in ICU before recovering.  He had told the radiology tech that he had a shellfish allergy but the dye was used anyway.  Paul refuses to ever have another x-ray study again.

My own father severely fractured an arm but refused to go to the hospital for treatment, because when he was last in the hospital, he had spent months in intensive care recovering from a severe stroke.

Along with physical injuries, my clients often suffer emotional damages.  Some physical injuries can be seen (broken bones, herniated discs in the spine, lacerations and scarring to the skin) and some cannot be seen even with our most sensitive diagnostic tests (concussion or connective tissue damage to muscles, ligaments and tendons).  But we can never see emotional harm; there is no objective test to prove it.  But, it is no less real than any physical injury, and could be even more life altering and longer lasting than physical injuries.  So, how can Emotional Injuries be proven in court? 

Just as the trial lawyer must be able to explain why some physical injuries cannot be seen, but are real, the lawyer must be able to prove that invisible emotional damage is just as real.  This is done by explaining how the brain works and how memories are created and altered.

Post traumatic stress disorder (PTSD) is a recognized diagnosis in the Diagnostic and Statistical Manual of Mental Disorders.  The criteria include a history of exposure to severe stress, re-experiencing the trauma through intrusive recollections, nightmares, or flashbacks and persistent avoidance of anything that might stimulate these recollections.

Our brains are hard wired in to live in a Paleolithic world where we were forced to hunt for food and avoid being killed by the things we were hunting.  We have a built in fight or flight response to any perceived danger which increases heart rate and blood pressure, triggers the release of glucose from energy stores, and increases blood flow to skeletal muscle while decreasing blood flow to internal organs.  A chemical called norepinephrine is released in the brain, which is similar to adrenaline, which arouses alertness, promotes vigilance and enhances formation and retrieval of memory.  That is why you can’t remember where you placed your wallet but you’ll never forget where you were and what you were doing when you met your spouse. 

Not everyone suffers PTSD following a traumatic event though.  Why do some and not others?  Well, the answer is complex, yet simple.  No two brains are alike.  Over the past 20 years studies utilizing  fMRI, which measures blood flow in the brain, reveals that in people with PTSD, two areas of the brain which are sensitive to stress shrink: the hippocampus (a region important for memory) and the anterior cingulate cortex, part of the prefrontal cortex involved in reasoning and decision making.  The fMRI studies show that when people with PTSD are reminded of the trauma, they tend to have underactive prefrontal cortex but overactive amygdale, a part of the brain which processes fear and emotion.

To illustrate how our brains react differently, let’s talk about panic attacks.  If you know anyone who suffers these, you know how debilitating they can be, causing a severe feeling of suffocation.  These people have brains that are oversensitive to increasing carbon dioxide in the blood.  A panic attack is actually a survival mechanism which helped our forefathers get out of caves in which fire was burning before oxygen ran out.  Panic attacks often occur while sleeping, in non-REM sleep, when breathing is most relaxed.  It is then that carbon dioxide builds up in the blood and oxygen is reduced more than normally.  People extremely sensitive to this wake up hyperventilating because they truly feel that they are suffocating.     

So, if you have suffered an emotional injury as well as a physical injury, make sure your doctors pay attention to this very real problem and your lawyer is adept at explaining it.   

Tony Baratta is a trial attorney in Huntingdon Valley, PA who represents clients who have been seriously injured including due to medical mistakes. Tony is the founding partner of Baratta, Russell, & Baratta and on the board for the Philadelphia VIP. Tony is a Nationally Certified Civil Trial Advocate, AV Rated Preeminent by Martindale-Hubbel and a member of the Pennsylvania Brain Injury Association (BPIA).  He is also a member of the Million Dollar Advocates Forum for trial attorneys and voted one of Philadelphia’s Super Lawyers 2008-2015.

About the Author

Anthony J. Baratta (Tony) is a trial attorney. He has tried more than 50 cases to Juries in State and Federal Courts and has litigated thousands of personal injury and medical malpractice cases in his 30-year career. Tony is the founding partner of Baratta, Russell, & Baratta and an active board member of the Pennsylvania Brain Injury Association (BPIA). Tony is also on the board for the Philadelphia VIP and performs pro bono work for the Laurel House, a non-profit for victims of domestic abuse. In addition, Tony is a member of the Million Dollar Advocates Forum for trial attorneys, voted one of Philadelphia’s Super Lawyers for the past 14 years, and a 2018 recipient of the First Judicial District Pro Bono Award for the Civil Trial Division.

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