How To Obtain Compensation For Emotional Distress After A Drowning Accident

The Legal Definition of “Drowning” is More Expansive Than You Might Expect

People often make the mistake of presuming that a person who has drowned is a person who has passed away. However, drowning is not always a fatal occurrence. In both medicine and law, the term “drowning” is used to describe respiratory impairment caused by submersion in water or another liquid.

Nonfatal drownings can have serious repercussions. Drowning-related complications include, but are not limited to, the following:

1. Cardiac arrest;
2. Respiratory failure;
3. An increased risk of bacterial infection;
4. Brain damage caused by oxygen deprivation; and
5. Mental health conditions like post-traumatic stress disorder (PTSD), depression, and anxiety.

Medical care and counseling costs are difficult to cover for most working families without assistance. Even with the right insurance policy, incidental expenses—from copays and deductibles to treatment your carrier will not cover—can easily extend into the tens of thousands of dollars.

Understanding Personal Injury Compensation

In New York, drowning victims who were injured through no fault of their own have a legal right to file a claim for compensation against the person, or party, who caused their injuries.

Depending on the circumstances of the accident, your family could be entitled to damages for:

1. Outstanding medical debt;
2. Anticipated costs of care;
3. Physical rehabilitation and mental health counseling;
4. Lost income from work; and
5. Emotional distress.

Damages like medical debt and lost income are considered “economic damages” and can typically be verified through receipts and calculations. Emotional distress, in contrast, is a form of noneconomic damage that could prove much more difficult to substantiate.

An Overview of Emotional Distress Damages

The term “emotional distress” has a different definition in law than everyday life.

In the context of a personal injury lawsuit, emotional distress could refer to any or all of the following types of damages:

1. Damages for Emotional Pain and Suffering: Emotional pain and suffering damages compensate for the mental, psychological, and emotional impact caused by an accident. They may be awarded if an accident-related injury causes ongoing feelings of distress or discontentment. These damages are common in drowning awards and settlements.
2. Damages for Negligent Infliction of Emotional Distress: Damages for the negligent infliction of emotional distress are only awarded when the at-fault party’s actions caused the victim to fear for their physical safety. Obtaining “NIED” damages usually requires proving that the defendant’s conduct was grossly negligent or otherwise outrageous.
3. Damages for Intentional Infliction of Emotional Distress: Damages for the intentional infliction of emotional distress are only awarded when the defendant’s actions were cruel or threatening. These are uncommon in drowning claims but could be awarded if the at-fault party “dunked” the victim or pushed them into the water.

5 Steps to Obtain Damages for Emotional Distress

Nobody but you can know what is happening inside your head or your child’s heart.

Securing compensation for emotional distress is not always easy, but you can improve your chances of obtaining damages by:

1. Saving receipts from your medical appointments;
2. Going to therapy, taking notes, and recording any diagnoses you receive;
3. Keeping a journal detailing how an accident has impacted your emotional well-being;
4. Asking friends, family members, and even coworkers to explain how you, or your child, have changed since the accident; and
5. Preserving evidence from the accident, including photographs, video recordings, and any written or electronic correspondence with the property manager.