Are hurt feelings enough to justify a lawsuit?
Attorney
(866) 735-1102 Ext 335
Legally speaking, yes, hurt feelings alone are enough to plead a lawsuit. But practically speaking hurt feelings alone will not justify taking up the Court’s time. The Quad-City Times reports on a case that sooner or later will have to address this question. Here is what the news report states. A patient at Mercy Hospital in Clinton admitted for a fourth suicide attempt was being assisted by a nurse in the bathroom. The patient states that after informing the nurse of the reason for being admitted, her fourth suicide attempt, responded in a way that hurt her feelings causing her emotional distress. The nurse is reported to have stated “You need to use a more lethal method.” And “I’m sorry; I just hate it when people are a drain on society.” So this is the conversation that is reported in the news. Did it happen? Who knows? That’s anyone guess. Were the words spoken exactly as reported? We don’t know. Let’s assume the conversation took place exactly as is being reported. And we will ask ourselves from a legal standpoint if that alone is enough to justify a lawsuit for money damages.
My opinion is that it’s not enough to justify filing a lawsuit. Maybe file a complaint with the state nursing board and the hospital that employs the nurse, yes, but not a lawsuit. First it will cost $100.00 to file the lawsuit, then another $50.00 to serve the complaint on the defendants. Then there will be depositions of the patient plaintiff, the nurse-defendant and her supervisors along with probably a doctor who is treating the patient for psychological injury. Now keep in mind that this patient had on four occasions attempted suicide so it’s likely she was already receiving psychotherapy for a mental disorder. The plaintiff will have the burden of proof to prove her current psychological maladies are associated with the nurse’s statement and not from the pre-existing psychopathology. Expert opinions will necessary to divide or separate the two contributing causes. Experts don’t come cheap so now we have to add expert witness fees to litigation expenses and that will add up to several thousand dollars. Depositions will be necessary for experts. There will likely be at least two experts and probably more because of the pre-existing treatment. So let’s add $10,000.00 for deposition testimony of three psychiatrists.
At every deposition there is a court reporter and a transcript cost. So far we have at least seven depositions and each will cost a minimum of $250.00 so that adds another $1,750.00 in costs. Add it all up without considering travel related expenses, exhibits and copy costs and you are up to $13,650.00 in litigation expense.
What damages will a judge or jury be asked to assess? The likely jury instructions will be all about emotional distress damages. That’s a soft-damage item not likely to bring a huge verdict. And in the end you have to wonder if this claim is economically feasible from a litigation standpoint? As troubling as it is for this patient, the legal claim is probably not economically feasible.
Then the lawyer and client must take into consideration the likelihood of ever winning the claim. The risk of losing must be considered and should not be ignored. For various reasons this claim may fail and a jury return a defendant’s verdict. The jury could disbelieve the patients memory of what was said. While in the hospital the patient was very likely on mood altering medications. Those drugs can affect a person’s mental acuity, cognition and memory. If the fact finder finds that to true they can disbelieve the patient’s testimony as to what was said. And if they do it is likely the claim would fail. On the other hand if the fact finder finds in favor of the patient on the issue of liability they could find damages wanting for a lack of proximate cause or just because the patient-plaintiff is really not any worse off then before the statement was made.
Proximate cause is sort of like a “but-for” test. But for the nurses statements the patient would not have suffered emotional distress. That’s tough in this case because of the extent of the patient’s pre-existing mental health history. A person who on four occasions attempts suicide isn’t likely to be have been free of emotional distress and it is almost certain they would in the future suffer emotional distress; irrespective of the words the nurse may have spoke while in the bathroom.
Then there is the possibility that other people in the patient’s life have said the same thing to her. If so how does the finder-of-fact find that the nurse’s words are somehow different and would have more impact than the same words from other people? The Plaintiff could argue that a nurse is supposed to be compassionate and as a person in that care-giver’s position her words have more impact.
And then there is the lawyer’s perspective. The lawyer has to measure his time on a contingent fee basis and the fact that 99.9% of these cases require the lawyer to front all litigation expenses. What is the likelihood the lawyer will ever get paid back? There is no guarantee. And a client whose attempted suicide on four occasions could actually commit suicide and then the case isn’t likely to proceed. Which means the litigation expenses will never be paid back.
After 27 years of practicing law all I can say is that someone is mad and a lawsuit has been filed. I’m not sure this kind of lawsuit puts lawyers in a favorable light. I’m not saying that if the nurse made those statements she shouldn’t be reprimanded and perhaps go through some sensitivity training. Perhaps she’s a good nurse and was just having a bad day. Whatever the situation may be I’m more than happy to offer, free of charge my services for a day to mediate a resolution of this lawsuit; which seems to be the best course of action for everyone.