What is Mental Anguish?

Recovering Mental Anguish in Texas

Man experiencing mental anguish

Mental anguish causes substantial disruption in an injured person’s daily routine.

Under Texas Law, mental anguish is 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. Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex.1995). 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. Parkway Co. v. Woodruff.

Mental Anguish vs Emotional Distress

Emotional distress is the same thing as mental anguish. However, mental anguish tends to be used to describe a damage suffered whereas emotional distress tends to be used in the context of a tort causing a mental anguish injury.

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 cases only extreme mental anguish but no physical injury.

Negligent Infliction of Emotional Distress

There is no general duty in Texas not to negligently inflict emotional distress. Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993). Damages for mental anguish may generally only be awarded in the case of negligence where it accompanies some other physical injury to the person. Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex.1995).

Bystander Claims

There is one is one exception to the physical injury rule. 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 directly to the claimant.  This is called a “bystander claim.” It is reserved to immediate family members. To recover as a bystander, 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 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).

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.

Intentional Torts and Insurance Coverage

Intentional inflection of emotional distress is a tort that may be available when there is no other tort available. Such as, where 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 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.

What Sort of Evidence Proves Mental Anguish?

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 a substantial daily disruption of life, the better.  Here are somethings that have been noted by courts as evidence of this:

  • 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 persons day-to-day activities.

Opening the Door to Mental Health Issues

Historically, Courts have been reluctant to allow people to be subjected to having their mental health records discovered and/or to 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 for a mental condition with a diagnosis such as anxiety, depression that actually caused you to seek treatment and get a diagnosis, this is may very well open the door to the defense getting your past mental health records and/or a court-ordered mental exam.

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 a 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 your personal injury lawyer about this before going to trial. Call Simmons and Fletcher, P.C.  if you need a personal injury attorney: 1-800-298-0111.



Paul Cannon

Paul Cannon has practiced personal injury trial law since 1995. He is Board Certified in Personal Injury Trial Law (2005). He has earned recognition as a Super Lawyer by Thompson Reuters in 2017 & 2018, and as a Top 100 Trial Lawyer by the National Trial Lawyers Association in 2017. He is a Shareholder, trial lawyer and online marketing manager at Simmons and Fletcher, P.C. His legal writings have been published by the Texas Bar Journal, Business.com, Lawyer.com HG Legal Resources, Lawfirms.com, and others. He has been asked to give education talks and media interviews on dog bite law.