Mental Anguish

What is Mental Anguish in Texas?

Texas Courts define mental anguish as a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger of such a nature, duration, and severity that it causes a substantial disruption in the injured person’s daily routine.  A plaintiff must introduce into evidence “direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption” otherwise the award will be overturned on appeal. See Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex.1995). Furthermore, there generally must be proof of a physical injury to recover mental anguish in Texas.

The requirement of having direct evidence in a personal injury case to support the intangible damage of mental anguish has been recently reaffirmed in Gregory v. Chohan, Cause No. 21-0017, (Tex. 2023). This case has left the question of how one proves the exact value of mental anguish up in the air. The case has left many attorneys speculating that significant evidence such as a diagnosis of PTSD or need for future psychological care will be needed to uphold a substantial mental anguish award.

When Can You Recover Mental Anguish?

Mental anguish may be recovered in any negligence tort where mental anguish evidence can be established and there is a physical injury that accompanies the mental anguish. Bystander claims discussed below are an exception to this. Mental anguish may also be recovered in the case of intentional torts that cause physical injury as well as an intentional tort that causes only extreme mental anguish but no physical injury.

Mental Anguish FAQ

What is the Difference Between Mental Anguish vs Emotional Distress?

Emotional distress is the same thing as mental anguish under the law.

What Causes Mental Anguish?


What is the Difference Between “Pain & Suffering” and Mental Anguish?

Mental anguish refers to the “suffering” part of “pain and suffering.” We typically ask the judge to submit it as two separate jury questions –one question to determine what the fair amount is to compensate for the plaintiff’s physical pain and another question to determine what the fair amount is to compensate for the plaintiff’s mental anguish.

Actions to Recover For Mental Anguish

Mental Anguish as an Element of Damages

If you are physically injured due to the negligent actions of another and you suffer mental anguish that accompanies the injury, you may seek compensation for this element of damages in addition to your other damages. It may not be the only element of damages in a negligence case except in a few instances.

What is Negligent Infliction of Emotional Distress?

Negligent infliction of emotional distress is a cause of action against someone else to recover damages after they negligently cause you to suffer substantial emotional harm. This cause of action is not recognized in many states including Texas. In Texas, damages for mental anguish may generally only be awarded in the case of negligence where it accompanies some other physical injury to the person.   (See Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993). and Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex.1995).)

What is a Bystander Claim?

A bystander claim is a claim to recover compensation for mental anguish experienced by a close family member who witnessed a loved one get seriously injured or killed due to the negligence of another.  It is an exception to the rule that you must have a physical injury to recover emotional distress damages due to negligence.  In the case of a close relative who sees a serious injury or death of their loved one, the injury does not have to be direct to the claimant.  To recover on a bystander claim, a plaintiff must establish that he:

  • was located near the scene of the accident, as contrasted with one who was a distance away from it;
  • suffered shock as a result of direct emotional impact upon the plaintiff from a sensory and contemporaneous observance of the accident, as contrasted with the learning of the accident from others after its occurrence; and
  • was closely related to the primary victim of the accident. United Services Automobile Association v. Keith, 970 S.W.2d 540, 541-42 (Tex. 1998).

What is the Intentional Infliction of Emotional Distress?

A cause of action for intentional infliction of emotional distress is recognized when:

  • the defendant acted intentionally or recklessly;
  • the defendant’s conduct was extreme and outrageous;
  • the conduct caused the plaintiff emotional distress; and
  • the emotional distress was severe.

Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). However, the Court cautioned that intentional infliction of emotional distress is only a “gap-filler” claim. In other words, it can only be used where other causes of action do not provide for recovery. “Where the gravamen of a plaintiff’s complaint is really another tort, intentional infliction of emotional distress should not be available.”  In that case, the plaintiff was claiming intentional infliction of emotional distress and sexual harassment claims.  The Court found them to be the same tort effectively, and thus, the plaintiff could not recover under both theories.

Insurance Issues in Intentional Act Claims

Most insurance policies have an exclusion for intentional acts. Intentional inflection of emotional distress is a tort that may be available when there is no other tort available. Such as, when someone videotapes a private act of a person and then shows it to people to cause embarrassment or shame. However, the problem with this cause of action is that insurance policies typically exclude coverage for intentional torts in most cases. This was the underlying problem faced in Boyles v. Kerr. After the plaintiff was unknowingly videotaped having sex and the tape was shown around the fraternity house, the plaintiffs tried to pursue a negligent infliction of emotional distress rather than intentional infliction of emotional distress claim because they knew the latter was excluded from coverage under the liability policy of the fraternity house. They won the trial, but the verdict was lost on appeal because the Texas Supreme Court refused to recognize a cause of action for negligent infliction of emotional distress.

Proving Mental Anguish

What Sort of Evidence Proves Mental Anguish?

Some acceptable evidence of emotional distress as noted by Courts include:

  • burning pain in the stomach that caused a plaintiff to seek medical attention
  • anxiety and depression requiring medication or treatment
  • inability to sleep
  • becoming constantly worried, upset, and irritable
  • anxiety attacks
  • elevated blood pressure.

None of the above by themselves guarantees an award will be upheld. The key is to show extreme lasting mental pain that disrupts the person’s day-to-day activities.  The definition of mental anguish and emotional distress is rather vague.  Everyone experiences mental pain and suffering differently, thus, there really cannot be a set definition.  There have been some cases where the evidence was reviewed and approved. Obviously, the more evidence you have of substantial daily disruption of life, the better.

It is also important to know that the Texas Supreme Court has recently made it clear that large verdicts with big awards for intangible damages such as mental anguish and pain and suffering will not be upheld unless there is evidence that the amount the jury is awarding is fair and reasonable. In the case of Gregory V. Cohen, they tossed out a large intangible damage award because the plaintiff’s attorney alluded to things like the value of fine art and the miles driven by a company’s vehicles in closing vs discussing just the actual effects on the plaintiff’s lives. This case and the court’s discussion are a staunch reminder of just how difficult it is to put a value on the emotional suffering and mental anguish a person goes through when they lose a loved one.

Opening the Door to Mental Health Issues

mental anguishHistorically, Courts have been reluctant to allow people to be subjected to having their mental health records discovered and/or undergoing a psychiatric exam by a defense doctor. The Courts have dismissed these by not allowing them in cases of “routine allegations of mental anguish.”  However, if an injured party seeks to recover compensation for a mental condition with a diagnosis such as anxiety, or depression that actually caused you to seek treatment and get a diagnosis, this may very well open the door to the defense getting your past mental health records and/or a court-ordered mental exam.

How Does Mental Anguish Different From Pain & Suffering?

The term “pain and suffering” is comprised of two separate elements “pain” and suffering.” You can ask a just to award compensation for both the physical pain you suffered and continue to suffer due to an accident as well as the emotional “suffering” or mental anguish you endue which is comprised of things like severe worry, concern, anxiety, and distress that you suffer due to an accident or injury. Thus, proving mental anguish is a part of how you prove pain and suffering in a personal injury case.

Practice Tip on Pain and Mental Anguish:

From a practitioner’s perspective, it is wise to ask for each as a separate element and to separate the questions again for past and future when proposing jury questions. This way, if the judgment were to be challenged on appeal for lack of evidence of one of these elements and the court found no evidence of just one of them, the court of appeals would not be forced to toss out the award for pain along with it. The jury questions would read:

  • Physical pain suffered by the Plaintiff  in the past  _________________
  • Physical pain that in all reasonable probability will be suffered by the plaintiff in the future  _______________
  • Mental anguish suffered by the Plaintiff  in the past ________________
  • Mental anguish that in all reasonable probability will be suffered by the plaintiff in the future  _______________

Talk to a Lawyer

Weighing the pros and cons of pursuing a mental anguish claim is important when you must go to court. If you have the right evidence, this can result in substantial recovery. However, one must be aware of the probing that will be permitted into private matters by the defense and weigh the risk of prejudice against the anticipated benefit.  It is important that you speak to a Houston injury lawyer about this before going to trial. Call Simmons and Fletcher, P.C.  if you need a personal injury attorney: (713) 932-0777.



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