Brain Injury Psychological Damage with no Physical Harm

Brad Nakase, Attorney


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Brain Injury Psychological Damage with no Physical Harm

Sometimes, you may be involved in an incident where you did not suffer from many physical injuries but instead suffered from emotional damage. This emotional damage can either be obvious or still subtly lingering. If an event occurs that causes psychological damage, this damage can exist over an extended period.

These cases are more problematic when you or your family express that you aren’t acting yourself or you are easily distracted. These psychological injuries are not to be ignored but instead can be life-changing for you. During your case, a good lawyer will develop proof of the emotional distress that you suffer from so that you receive the fair compensation you deserve.

Your right to compensation in a case where psychological damage was caused rather than physical injury are included in your ‘general damages’ or ‘noneconomic damages.’  Because of this, your recovery process will not only involve recovering from physical pain, but also from mental distress such as anxiety, worry, grief, embarrassment, and more.

In such a case, there is no limit on compensation that you may be rewarded. Because of this, your lawyer must call attention to the extent of your emotional damages to receive the most compensation possible. Rather than having a set limit, the jury is responsible for deciding what a ‘reasonable amount’ is for the damage you suffered.

Traditionally, this type of case relied solely on the testimony of the plaintiff. However, in recent days, attorneys will instead focus on the testimony of both an expert and a witness. The experts and witnesses chosen will need to explain the necessary information about the emotional distress you have suffered.

Experts, however, are not able to testify on the monetary side of the case, but they can provide valuable information regarding the injury. It is crucial that your attorney addresses your emotional injuries in full and recognizes the extent of the psychological damages you may suffer.

What are the Roles of the Experts?

Rather than focusing on the monetary side of the case, an expert can be used to educate the jury and persuade them to feel a certain way about your situation. In the case of psychological damage, an expert should focus on the following:

  • Testing and Initiating Treatment (If Required)
  • Defining Significant Terms
  • Discussing your Level of Functionality
  • Explaining your Psychological and Emotional Challenges that Effect your Day-to-Day Life
  • Discussing your Future Costs and Needs Including Medication, Treatment, Etc.
  • Explaining the Connection Between Liability and Damage
  • Providing a Basis for Overcoming the Statute of Limitation


What Type of Expert Should you get?

When deciding what type of expert you should hire for your case, be sure to focus on the kinds of emotional damages you have suffered. Consider consulting both professionals in the mental field as well as non-professionals.


Mental Health Professionals:

In general, mental health professionals will fall into two categories. These two categories are psychologists and psychiatrists. Psychologists focus on studying human behavior as well as psychological processes and can provide counseling. Psychiatrists are trained medical doctors and can prescribe medicine. Psychology falls into fifty-four recognized subspecialties including:

  • Clinical Psychology
  • Cognitive/Perceptual Psychology
  • Counseling Psychology
  • Developmental Psychology
  • Educational Psychology
  • Engineering Psychology
  • Health Psychology
  • Industrial/Organizational Psychology
  • Neuropsychology
  • Rehabilitation Psychology
  • School Psychology
  • Social Psychology
  • Sports Psychology

More often than not, defendants will bring into motion an attempt to prevent psychologists from testifying regarding medicine because they are not qualified to do so. Because of this, consider using a psychiatrist as an expert if any medication was a part of your care. You can use both, but if so, it is crucial to separate the testimonies so that there are no objections for duplication of statements.

Besides a psychologist and psychiatrist, you should consider what is known as a ‘forensic’ psychologist/psychiatrist. A forensic psychologist/psychiatrist has precise training in applying questions regarding psychiatry or psychology to the legal field.  A forensic psychologist may also have a clinical practice, but in the case, is not providing any therapy to you. Instead, they are evaluating you and your emotional damages to present to the court.  Usually, in mental health cases, the professional who is in charge of providing the defense examination is referred to as the ‘forensic’ specialist. If you have undergone psychological treatment, it is important that the psychologist that treated you discuss what treatments were made and the problems that were addressed by you.  Your lawyer should also have a forensic specialist evaluate and share the emotional injuries they discovered and what care and costs you may require in the future.


Non-Professionals (Laypersons)

Aside from professional experts, it is also helpful to consider potential non-professionals to assist in your case. Testimonies from a lay witness could aid in showing the emotional damages caused by the defendant and how it has personally affected you and your professional life.

An assumption that is often made but is incorrect is that a non-professional cannot testify with their own opinions. However, this form of testimony is allowed if it is relevant to the case or relevant to the damage.

Courts have a lot of flexibility to determine whether or not testimony based on opinion is admissible or not. Such statements by laypersons are usually permitted because it helps the case develop more clearly.  The types of opinionated testimony that are often permissible include any opinions that regard your health, condition, or suffering due to the defendant’s actions.

When deciding what type of layperson to include in your case, consider the following people who have witnessed the mental damages:

  • Caregivers
  • Co-workers
  • Teachers
  • Friends
  • Coaches
  • Family
  • School Counselors
  • Spouses/Ex-Spouses

Think about what aspects of your life have been altered the most. Consider how your everyday life has changed due to the psychological damage.


How to Find the Perfect Professional Expert

In general, jurors trust the testimonies of the most qualified experts over those who may not be as experienced. Because of this, your case needs to find the perfect expert.

The first step to finding the perfect expert is by figuring out which areas of your case need to be addressed, such as treatment, testing, etc. Consider what professional is best suited to these specific needs.

The second step is to look for a professional who has experience in your specific area of needs or injuries.

The third step is to take into consideration the cost of each type of expert. For example, psychiatrists and ‘forensic’ specialists cost more to hire than psychologists.

The search for the perfect expert often begins with word of mouth referrals and recommendations. In today’s world, the internet provides easy access to an abundance of resources and information. You can find information on any professional you need as well as reviews of that professional or work they have done in the past. Try researching professionals from mental health institutions or universities also.


The Witness Disclosure Document for Experts

Before the trial begins, both sides need to know which experts each the opposite side chose. This knowledge helps each team prepare.  Per the Code of Civil Procedure section 2034.010 et seq., the following information is required to be exchanged by either side:

  1. Expert List: An expert list outlines the names and addresses of all experts that will be providing testimony in the trial. This list should include all experts or professionals that may be called to the stand.
  2. Expert Witness Declaration: A declaration for each expert designated to speak needs to be presented to those who are a party to the action, an employee of the party, or are forming an opinion. Those who are non-retained do not need to provide an expert declaration.

The declaration must be signed by both your attorney as well as fall into line with the Code of Civil Procedure section 2034.260(c):

(a) Expert Qualifications

(b) General Information of Expected Testimony

(c) Representations that the expert has agreed to testify to (including any opinions)

(d) Expert Fees

One of the essential aspects of the declaration is the general information or substance that is to be discussed in the testimony. The language that is used to describe the expert’s opinions must be taken into careful consideration. Any significant facts and opinions must be included to allow the opposing party to determine what action they want to make against that expert. They also use this information to prepare for cross-examination. If this section does not contain the required information, there is a significant risk that the testimony will not be permissible in the court.


Placing a Label on the Psychological Damage

How you communicate the emotional damages you have suffered to the jurors is extremely important. Your lawyer and the experts speaking on your behalf should use specific statements about your emotional damage. Using broad statements such as “emotional distress” does not help your case. Some of these terms can be found in CACI 3905 and include words such as anxiety, humiliation, and more. CACI 3905A allows the addition of other damages such as shame, fear, and more. It can be helpful to your case to have the expert discuss each item as separate from one another.

Also, jurors like labels. Because of this, it can be helpful to your case to label your specific emotional injuries such as the following:

  • PTSD (Post-Traumatic Stress Disorder)
  • Phobias
  • Depressive Neurosis
  • Depression
  • Panic Disorder
  • Anxiety Disorder

While the labels are important, it is not the only form of persuasive evidence. A layperson can also explain in detail the day-to-day changes you have experienced. These may help you receive adequate compensation for your damages.

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