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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?

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Attorney answers 4

Posted

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;
and
3. That defendant's negligence was a substantial
factor in causing your serious emotional
distress.
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.

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Asker

Posted

I just wanted clarification because I've read different opinions that state you do not have to prove damages in defamation cases. Damages are presumed, which means you don't have to testify that you had to see a doctor or mental health specialist. Guess I was just a little confused.

Asker

Posted

BTW the attorneys you guys recommend we should consult wouldn't take my case even though I've been able to overcome two demurrers and have documented evidence of the defamation.

Sean Michael Patrick

Sean Michael Patrick

Posted

They are separate causes of action and while they may arise from the same facts or situation, you still have to plead and prove each element of that cause of action.

Posted

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.

Asker

Posted

Just curious...what about the reasonable person standard? Wouldn't that apply?

Robert Pecco Baker

Robert Pecco Baker

Posted

Yes- what would a reasonable person do if he/she were actually suffering from such distress

Posted

Patrick provided you with a good answer.

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Posted

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.

Robert Pecco Baker

Robert Pecco Baker

Posted

Yes, and I would further qualify that. There has to be a good explanation of why the Plaintiff did not seek medical care. Otherwise the jury will assume that the claim is fabricated. No insurance, is a start, but millions of people visit the nearest emergency room every year for all kinds of care. Also, some persons look for neighborhood clinics etc that will give limited but free care. If a person is really suffering their loved ones will usually find a way to get them treatment of some sort. As I said, I have successfully attacked Plaintiffs for not going to church. also, not meditating, not going to yoga class, etc. Juries expect that Plaintiffs will deal with their problems with the same degree of responsibility that they would