The Mental Or Emotional Injury Case: An Outdated Misnomer

Our civil justice system has categorized injury cases as being either a physical injury or a mental injury. Often, implicit in this dichotomy is that the so-called emotional or mental injury is a second-class harm having less value than a so-called physical injury. This assumption is often wrong for many reasons. One reason is that mental injuries can be just as life-altering and destructive as physical injuries. But another reason, and the focus here, is that the dichotomy between a physical and mental injury is often a false one. It is time for the law to catch up with the science and medicine that in recent years has recognized the overwhelming connection between the mind and the body, and how trauma to the mind can impact the body both by causing independent and consequential physical harm and/or by aggravating preexisting physical conditions. It is time that we eliminate the misnomers of "purely mental injury" or "purely psychological injury" from our vocabulary so that we can appropriately explore, and value, the impact of mental harm on one's overall life - including their physical body.

Consider, for example, that certain neurotransmitters that exist in our brains also exist in our gastrointestinal system. When these neurotransmitters are hit with stress, it affects not just the brain but also the gut. This is part of why some people manifest stress and anxiety in gastrointestinal symptoms, and why there is such a high correlation between anxiety conditions and gastrointestinal conditions. And it is why in so-called purely mental injury cases, we often see clients with gastrointestinal conditions flaring up during their periods of stress and anxiety.

Or consider major depressive disorder - a classic so-called mental harm. Recent scientific developments persuasively establish that prolonged major depressive disorder has a neurotoxic effect on the brain. The more chronic the depressive episode, the more likely it will change the neuro-biochemistry or the structure or size of portions of the brain. Prolonged major depression releases excessive cortisol, which can slow or stop the growth of new neurons in the brain. Post-mortem studies of individuals diagnosed with major depression compared to a control group without depression showed significantly decreased hippocampal volume in the depressed patient group - the brain volume of the depressed patients was smaller than that of the control patients.

Studies focusing on anxiety disorders and chronic stress show similar results. Some studies have shown a connection between a chronic state of anxiety or stress and structural, degenerative changes in the brain. Prolonged and enduring chronic stress or anxiety can result in a long-term fight/flight activation in the body. While this fight/flight activation is an adaptive response to acute stress, it becomes maladaptive if present on a prolonged basis. This type of negative manifestation of prolonged stress or anxiety can impact various biological systems - including neuroendocrine, autonomic, and behavioral. The body is simply not made to exist healthily in this chronic state of arousal.

The presence of certain mental disorders or prolonged anxiety or chronic stress can trigger inflammatory responses in the body. And science now recognizes the negative, toxic effects of prolonged inflammation on the body. This recent appreciation of the widespread impact of inflammation on mental and physical health is also critical for understanding the depths of harm caused by chronic mental conditions that can produce or trigger an inflammatory response.

The above doesn't even scratch the surface. It is offered to illustrate the point that the line between a physical injury and a mental injury is not so clear. To adequately understand the depths of the harm in so-called mental injury cases, we must explore the mind/body connection and how the mental injury can cause independent physical harm.

Another point to consider is that mental stress or disorders can aggravate an underlying physical condition. Years ago, I was reluctant to try to connect mental distress to the worsening or aggravation of a physical condition or disease. Not anymore.

For example, a number of years ago, I was preparing to try a whistleblower retaliation case when, tragically, our client died of a cardiac-related death. Just before his death, this client was evaluated by a forensic psychologist who opined that he had a three-plus year unremitting major depressive disorder. We filed a wrongful death case under the theory that the multi-year major depressive episode caused by the retaliatory wrongful termination aggravated our client's underlying cardiac condition contributing to his death. The defense thought we were crazy. But after expert depositions, the cardiology experts from both sides of the case agreed in concept that a multi-year major depression could absolutely aggravate our client's cardiac issues. The real battle became whether the client had major depression, not whether the major depression could make the heart worse.

Most recently, I tried an employment failure to accommodate case in which after my client's alleged constructive termination, three things happened: (1) COVID-19 soon struck and the client's position was eliminated; (2) the client's preexisting cardiomyopathy and congestive heart failure rapidly deteriorated such that he likely could not have continued working; and (3) the client suffered significant emotional harm including re-triggering of post-traumatic stress disorder (PTSD) that had been in remission. To the defense, the combination of the COVID-job-elimination and the rapid deterioration of the heart failure meant there was no case; regardless of any alleged failure to accommodate, the client's days working were numbered. I saw the issue differently. We tried the case presenting evidence that the stress, anxiety and PTSD our client suffered from the failure to accommodate aggravated his preexisting cardiac conditions leading to a more rapid deterioration. After a very favorable verdict, the jurors expressed agreement to us that the heart was probably made worse by the stress.

It is important for attorneys on both sides of so-called mental injury cases to open their minds to the possibility that the dichotomy between physical and mental injury is a false dichotomy. Until we do so, we will often undervalue the true depth of destruction caused by emotional harm.

David M. deRubertis is a shareholder of the deRubertis Law Firm APC.