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Defamation and NIED

Los Angeles, CA |

In an employment defamation case, when asserting a cause of action for negligent infliction of emotional distress, do I have to prove I was distress by providing medical records and proving that I saw a doctor for the distress?

Attorney Answers 4

  1. To answer briefly, Yes generally you need to prove damages.
    In more detail: The California Supreme Court has allowed plaintiffs to bring negligent
    infliction of emotional distress actions as “direct victims” in only three types
    of factual situations: (1) the negligent mishandling of corpses (Christensen v.
    Superior Court (1991) 54 Cal.3d 868, 879 [2 Cal.Rptr.2d 79, 820 P.2d 181]);
    (2) the negligent misdiagnosis of a disease that could potentially harm
    another (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 923
    [167 Cal.Rptr. 831, 616 P.2d 813]); and (3) the negligent breach of a duty
    arising out of a preexisting relationship (Burgess v. Superior Court (1992) 2
    Cal.4th 1064, 1076 [9 Cal.Rptr.2d 615, 831 P.2d 1197]). I am assuming that you are asserting a claim as to the 3rd type of case arising from your defamation. The elements that you need to prove to be successful on a NIED claim are
    1)That the defendant was negligent;
    2. That you suffered serious emotional distress;
    3. That defendant's negligence was a substantial
    factor in causing your serious emotional
    Emotional distress includes suffering, anguish, fright, horror,
    nervousness, grief, anxiety, worry, shock, humiliation, and shame.
    Serious emotional distress exists if an ordinary, reasonable person
    would be unable to cope with it. I would recommend consulting with an attorney. Best of luck.

    I am licensed in California, therefore, my answers are based on general prinicpals of law or California law, which may not be applicable in your jurisdiction. Answers posted to Avvo are for general information only. Do not conclusively rely on any information posted online when deciding what to do about your case. Every case depends is fact dependent, and responses are limited to and is based on the information you posted. No attorney-client relationship shall be created through the use reading of this response on Avvo. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information in this response.

  2. If your distress was not severe enough for you to seek treatment, what possible damages could you hope to recover? I once attacked a Plaintiff who was a Catholic claiming distress. Not only did he not seek treatment by an MD, he never bothered to go to Mass and pray--not once when Mass is said daily all over LA County at no charge. I do not know your religion, but unless you can also show diligent efforts at spiritual solace I think you have major problems as well on that count.

  3. Patrick provided you with a good answer.

    Only 29% Contingency Fee! Phone: 215-510-6755

  4. Juries expect people suffering serious distress to go to a medical doctor, family counselor, spiritual advisor, etc.

    Some great trial lawyers can get big damage awards even without medical evidence, but that is an art and it does not happen often.

    David Mallen

    David A. Mallen offers answers on Avvo for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding your legal question, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen offer no-risk legal consultations to employers and employees at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.

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