American Journal of Law & Medicine

A prescription for mental distress: the principles of psychosomatic medicine with the physical manifestation requirement in N.I.E.D. cases.


In March of 1998, a Connecticut jury awarded $400,000 under a claim for Negligent Infliction of Emotional Distress ("N.I.E.D") to an employee who had only lost his job.(1) The employee had been subject to unnecessary internal investigation, and his employment was terminated as a result of this investigation.(2) In December of 1992, a North Carolina jury awarded only $100,000 for N.I.E.D. damages to parents who had lost their nine month-old infant.(3) The parents actually witnessed the death of their infant, who died from swelling of the brain caused by improper administration of intravenous fluids.(4) Both of these awards were meant to compensate plaintiffs for the mental distress caused by the defendants' negligent conduct. Yet considering the circumstances of these two cases, one wonders whether the jurors were really able to evaluate the nature and extent of the plaintiffs' mental distress and, more importantly, what kind of evidence the jurors considered to make their determination.

Traditionally, a plaintiff could not recover for pure emotional distress when the conduct of the defendant was based on negligence only.(5) Through the development of the N.I.E.D. doctrine, courts gradually established standards that a plaintiff had to meet to recover for emotional disturbance caused by a defendant's negligence.(6) The classic model of these standards, known as the "physical manifestation requirement,"(7) requires a showing that the plaintiff has suffered bodily injuries as a result of the emotional distress.(8) Until 1970, almost every state followed the classic and traditional model, requiring some kind of physical manifestation of mental distress in N.I.E.D. cases.(9) In 1970, however, Hawaii broke the tradition and abolished the classic requirement.(10) Since then, fourteen states have followed Hawaii's lead.(11)

This comment proposes that courts should continue to apply the physical manifestation standard as a measure to evaluate the genuineness and extent of emotional distress in N.I.E.D. cases. To enhance the physical manifestation test, the modern doctrine of "psychosomatic disorders" can provide the legal system with an efficient and practical method to examine a plaintiff's alleged emotional distress. For the purpose of applying the roles and standards of this doctrine in the legal system, evidence can be introduced through expert medical testimony.

This is a completely new approach to N.I.E.D. and has not yet been implicated by the legal system. In medicine, the principles behind the psychosomatic disorders have accomplished exactly what the doctrine of physical manifestation has tried to achieve in law. Applying the psychosomatic principles to complement the available standards of the tort law system will enhance the efficiency and accuracy of compensating for the mental distress suffered by plaintiffs.

Section II of this comment will analyze the current N.I.E.D. legal environment. This section will first present an overview of the N.I.E.D. doctrine's historical background, then explain the development of the traditional standard of physical manifestation, and finally consider both the traditional standard and the modern trend.

Section III will discuss the shortcomings and problems associated with the modern standards utilized by states that have abolished the traditional physical manifestation requirement. The article will establish that the modern standards are vague, impractical, imprecise and overly subjective.

Section IV will propose using the principles of psychosomatic medicine in N.I.E.D. cases. This section will first introduce the doctrine of psychosomatic disorders, then justify the application of medical standards to law, and finally explain the conceptual relationship between the psychosomatic disorders doctrine and the physical manifestation requirement. The section will then propose methods for introducing evidence of psychosomatic disorders. In short, the section will contend that the principles of psychosomatic medicine can enhance the physical manifestation requirement and provide the legal system with an efficient, effective, precise and reasonably objective and reliable standard to apply in N.I.E.D. cases.


States currently vary in their approach to N.I.E.D. cases.(12) Indeed, states have adopted a variety of standards and tests to determine whether a plaintiff is required to plead and prove physical manifestation of the alleged mental distress.(13)


Historically, some degree of physical injury or manifestation has been required to recover damages for negligent infliction of mental suffering and emotional distress.(14) English courts have traditionally held that when a plaintiff cannot prove the defendant's malice or intent, "mental suffering alone, unaccompanied with any physical or corporal injury, cannot be the basis for the recovery of damages.(15) According to the traditional English rule, in a cause of action for negligence where the plaintiff cannot establish "intent," the plaintiff may recover damages for mental suffering if, and only if, he has suffered some corporal injury.(16)

American courts have also followed this reasoning.(17) In 1892, the Fourth Circuit held that "mental pain and anxiety the law cannot value and does not pretend to redress when the unlawful act complained of caused this alone."(18) In other words, mental pain caused by simple negligence cannot sustain an action to recover for mental distress if unattended by injury to the person.(19)

1. Negligent Infliction of Emotional Distress

The birth of the N.I.E.D. doctrine was a great development in the area of recovery for mental distress. Under the early standards for N.I.E.D., a plaintiff could recover for emotional damages in a cause of action for negligence only if the plaintiff was physically harmed(20) or was directly threatened(21) by the negligence of the defendant.

As a general rule, a plaintiff in N.I.E.D. cases is entitled to an award of damages to compensate any mental distress or emotional disturbance suffered as a proximate result of the defendant's negligent conduct.(22) The negligent party, however, is not liable when his conduct results in the emotional disturbance alone, without bodily harm or other compensable damage.(23)

In 1968, the Supreme Court of California decided the seminal case of Dillon v. Legg, (24) thereby becoming the first jurisdiction in the United States to hold that a plaintiff bringing a negligence claim may recover for emotional distress and the physical harm resulting from that distress.(25) This was a significant development in the area of N.I.E.D., as the court allowed the plaintiff to recover for mental distress without either directly experiencing physical impact or being threatened by such harm.(26) This set the stage for the birth of the physical manifestation doctrine.(27) Based on Dillon, subsequent rulings held that a plaintiff must show physical harm or manifestation caused by the mental disturbance to prove that the alleged mental distress was serious and verifiable.(28)

The physical manifestation requirement should be distinguished from the physical impact rule. Under the classic physical impact rule, a plaintiff may recover for emotional distress as damages for pain and suffering if the plaintiff has suffered direct physical impact before or during the emotional distress.(29) In other words, a plaintiff's mental distress must be the result of the trauma or accident's "physical impact."(30) This allowed a plaintiff to assert a claim for emotional distress damages.

Under the physical manifestation doctrine, however, the emotional distress must induce and cause bodily manifestations in the plaintiff.(31) The plaintiff must show that the alleged mental distress has been transformed into physical injury.(32) The physical manifestation requirement applies to almost all forms of emotional disturbance, including temporary fright, nervous shock, grief, rage and humiliation.(33) In short, while the physical impact test operates as a ticket to allow a plaintiff to assert a claim for mental disturbance, the physical manifestation test works as a tool to prove the extent of the emotional damages.

There are, however, two well recognized exceptions to the physical injury requirement in N.I.E.D. cases.(34) These are known as the "telegraph cases" exception and the "corpse cases" exception.(35) Absent any physical manifestation of emotional distress, almost all courts have allowed recovery of N.I.E.D. damages in cases where: (1) a telegraph company negligently mishandles a message concerning the death or serious illness of a next-of-kin; and (2) a funeral home negligently mishandles the corpse of a next-of-kin.(36) In both of these circumstances, the existence and genuineness of plaintiff's emotional distress is presumed.(37) For both exceptions, courts justify their position by pointing out that the circumstances of these cases guarantee the genuineness of the alleged emotional distress and, therefore, the plaintiff is not required to introduce evidence of any physical manifestation of the sustained mental disturbance.(38)

In addition to these two well established exceptions, some courts have created other exceptions to the physical injury requirement.(39) These exceptions include: (1) the birth of a genetically defective child;(40) (2) witnessing tortious assault upon a minor child;(41) and (3) negligent imprisonment.(42)

2. Development of the Traditional Physical Manifestation Standard

After Dillon, almost all states required a plaintiff in a N.I.E.D. case to demonstrate that the plaintiff developed physical problems as a result of the emotional distress caused by the defendant's negligence.(43) This is still the official position of the RESTATEMENT (SECOND) OF TORTS.(44) Thus, through introducing medical evidence, a plaintiff has to establish the genuineness and extent of his emotional distress.(45)

Section 436A of the RESTATEMENT (SECOND) OF TORTS provides that "[i]f the actor's conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such disturbance."(46) In applying this section, many courts require a plaintiff to experience some physical manifestation as a result of the emotional distress to be able to recover N.I.E.D. damages.(47) Courts that follow the RESTATEMENT justify their position by arguing that satisfying the physical injury or symptom requirement in N.I.E.D. cases acts as an obstacle to false claims.(48) These courts reason that the unusually disturbing experience that plaintiffs have endured, combined with physical symptoms, assure that the claims are real.(49)

Under the Restatement standard, a plaintiff must meet an evidentiary threshold to maintain standing to recover N.I.E.D. damages by introducing evidence of physical symptoms and complaints.(50) For this purpose, courts generally would consider symptoms like sleep disorders, disturbed gastrointestinal functions, headache, sexual dysfunction, personality disorders and other signs and symptoms of anger and anxiety.(51)

Currently, the majority of states follow this traditional view by requiring some physical manifestation of emotional distress in N.I.E.D. cases.(52) These states include Alaska,(53) Arizona,(54) Arkansas,(55) Colorado,(56) Delaware,(57) District of Columbia,(58) Florida,(59) Georgia,(60) Idaho,(61) Illinois,(62) Indiana,(63) Iowa,(64) Kansas,(65) Kentucky,(66) Louisiana,(67) Maryland,(68) Massachusetts,(69) Michigan,(70) Minnesota,(71) Mississippi,(72) Nevada,(73) New Hampshire,(74) New Mexico,(75) New York,(76) North Dakota,(77) Oklahoma,(78) Pennsylvania,(79) Rhode island,(80) South Carolina,(81) South Dakota,(82) Tennessee,(83) Utah,(84) Vermont,(85) Virginia,(86) West Virginia,(87) Wisconsin,(88) and Wyoming.(89)

3. The Modern Trend

In 1970, the Supreme Court of Hawaii became the pioneer for change by setting a new trend.(90) The Hawaii court abolished the traditional standard and allowed recovery for plaintiffs in N.I.E.D. cases without requiring physical manifestation of emotional distress.(91) Several courts followed Hawaii's revolutionary decision by changing their standards for N.I.E.D. cases.(92) These states include Alabama,(93) California,(94) Connecticut,(95) Maine,(96) Missouri,(97) Montana,(98) Nebraska,(99) New Jersey,(100) North Carolina,(101) Ohio,(102) Oregon,(103) Texas(104) and Washington.(105)


A majority of states follow the standard of the RESTATEMENT (SECOND) OF TORTS by requiring physical manifestation resulting from emotional distress for recovery in N.I.E.D. cases.(106) These states have introduced different policy reasons and justifications, and have created various tests and imposed requirements for N.I.E.D. cases.

1. Policy, Reasoning and Justification

The fundamental policy behind the physical manifestation standard is based on two arguments: first, that it effectively serves to prove the genuineness of a plaintiff's emotional distress;(107) and second, that this standard bars fraudulent claims and limits a defendant's potential liability by restricting the class of individuals potentially able to recover on an N.I.E.D. claim.(108)

Many courts have analyzed this issue and have justified their position in requiring physical symptoms in N.I.E.D. cases. An example of such analysis and justification is the well-known case, Payton v. Abbott Labs,(109) decided by the Supreme Judicial Court of Massachusetts in 1982. The Payton court had to determine whether a cause of action for emotional distress, caused by negligence, would be recognized absent physical harm.(110) The court answered the question in the negative,(111) and in justifying its decision, offered a historical analysis of the issue.(112)

The court reviewed traditional doctrines under which a plaintiff could recover damages for suffered emotional distress.(113) Then, concentrating on N.I.E.D. cases, the court cited three major policy reasons from the RESTATEMENT (SECOND) OF TORTS to support the position requiring some physical harm for emotional distress cases.(114) First, an "emotional disturbance which is not so severe or serious as to have physical consequences is likely to be `so temporary, so evanescent, and so relatively harmless' that the task of compensating for it would unduly burden defendants and the courts."(115) Second, "in the absence of guarantee of genuineness provided by the resulting bodily harm, such emotional disturbance can be too easily feigned or imagined."(116) Finally, "where the defendant's conduct has been merely negligent, without any element of intent to harm, his fault is not so great that he should be required to make good a purely mental disturbance."(117)

The physical manifestation requirement saves the legal system from a great deal of unnecessary speculation, and allows the courts to measure and award mental distress damages with a reasonable degree of certainty. When awarding damages, certainty as to the nature and extent of the plaintiff's harm becomes the greatest concern for the courts.(118) This is a particularly difficult issue when awarding damages for emotional distress.(119) The inherent subjectivity of this type of injury makes it difficult for the courts to evaluate a plaintiff's mental injuries and award damages that will fairly and adequately compensate the plaintiff.(120) This may create several problems for the legal system. Unable to discern the tree nature and extent of a plaintiff's mental distress, courts may award damages that are unfairly lower or excessively higher than what they should be. By awarding excessive damages, courts will not fulfill the efficiency goal of the legal system.(121) Also, by inadequately compensating a plaintiff, courts will fail to serve the fundamental policies of compensation and corrective justice.(122)

The physical manifestation requirement is the most practical and reasonable method to address these concerns, as it represents an inherently subjective concept in a reasonably objective form. As such, it allows the courts to meet the fundamental goals of the tort law system by adequately compensating a plaintiff who has suffered mental distress.

2. Theoretical Requirements

States that follow the traditional view of the RESTATEMENT by requiring physical symptoms resulting from mental distress have developed different tests, requirements and methods to apply the law for recovering N.I.E.D. damages.

In Payton v. Abbott Labs,(123) the Massachusetts Supreme Judicial Court introduced a test whereby a plaintiff has the burden of proving five elements before recovering any N.I.E.D. damages.(124) The elements of the Payton test

are: (1) establishing the classic elements of negligence; (2) pleading emotional distress as a result of the defendant's negligent conduct; (3) establishing a causal link between the emotional distress and subsequent physical manifestations; (4) the presence of physical harm manifested by objective symptomatology; and (5) a reasonable person would have suffered emotional distress under the circumstances of the case.(125)

Applying Michigan law, the United States District Court for the Western District of Michigan introduced a three-part test for N.I.E.D. cases.(126) To recover, a plaintiff must show: (1) he suffered emotional distress as a proximate result of the defendant's negligent conduct; (2) the emotional distress manifested itself in a definite and objective physical injury; and (3) the suffered emotional distress was not about a completely fictitious, vague, fanciful or imagined consequence, having no reasonable basis.(127)

3. Procedural and Evidentiary Requirements

Many courts have ruled that a plaintiff's physical harm must be caused by the alleged emotional injury,(128) and the physical harm must be manifested by "objective symptomatology and sustained by expert medical experts."(129) For this purpose, a physician may testify as to the physical symptoms and bodily complaints of the plaintiff.

Other courts have officially established a standard of proof in N.I.E.D. cases.(130) For example, the Supreme Court of Virginia has ruled that the injured party must plead and prove "by clear and convincing evidence" that the physical injury was the natural result of the emotional distress caused by the defendant's negligence.(131) In other words, a plaintiff may recover N.I.E.D. damages only if "a clear and unbroken chain of causal connection" is shown between the defendant's negligent act, the emotional distress and the physical injury.(132)

Implementing time limits, some courts require a plaintiff who has suffered significant mental distress to develop physical symptoms "within a short time."(133) A plaintiff must show that "a causally connected, clearly discernable physical impairment" has accompanied or occurred "within a short time" of the emotional injury.(134) Courts, requiring a short time interval between the emotional harm and the resulting physical injuries, justify their position by reasoning that such a requirement will ensure the genuineness of the claim and will bar fraudulent and uncertain claims.(135)

To satisfy the physical manifestation requirement, different courts have adopted different working standards. While there are some states that require a plaintiff seeking compensation for N.I.E.D. to manifest purely physical signs and symptoms,(136) others will accept identifiable psychological and psychiatric symptoms to substantiate a valid claim for emotional distress.(137)

Some courts have imposed a minimum threshold requirement for the physical harm suffered by the plaintiff.(138) These courts require the plaintiff to prove that the physical harm resulting from the defendant's negligence was "substantial."(139) In other words, a plaintiff's physical complaints cannot be "trivial, insignificant, or of only minor or temporary inconvenience."(140)


After the abolition of the physical injury requirement by the Supreme Court of Hawaii, a few states followed the Hawaii decision and created a modern trend for dealing with N.I.E.D. claims.(141) The common policy concern shared by these states was that the physical manifestation requirement was both underconclusive and overconclusive.(142) According to this argument, the physical injury requirement allowed claims for emotional distress where rather trivial distress happened to manifest itself physically, and it denied relief to persons suffering from severe mental distress who unfortunately failed to develop any physical evidence of that distress.(143)

Another alleged problem with the bodily manifestation requirement was that it "actually may encourage extravagant pleadings and distorted testimony by the plaintiff in order to state a cause of action."(144) This is because "once a physical manifestation is established, damages are awarded almost entirely for mental anguish."(145)

The states following the modern trend have not been able to introduce one single test to replace the traditional physical manifestation requirement. Rather, these states have developed various tests and standards.

1. States Imposing Qualitative Requirements

Some jurisdictions that follow the modern trend require a plaintiff to plead and prove that the alleged mental distress meets certain qualitative standards.(146) In these jurisdictions, a plaintiff must establish that the defendant's negligence caused the plaintiff to suffer "serious" or "severe"' mental distress. Thus, the plaintiff must show the nature or quality of the suffered emotional disturbance. These states include Alabama, Hawaii, California, Maine, Nebraska and North Carolina.

In 1970, Hawaii, the first state that explicitly rejected the physical manifestation requirement, introduced a new standard in Rodrigues v. State.(147) The Supreme Court of Hawaii allowed a plaintiff to recover for N.I.E.D. damages without showing any physical injury resulting from emotional distress.(148)

The rationale underlying the Hawaii decision was similar to the policy behind the traditional exceptions to the physical manifestation requirement. …

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