Judicial Notebook

In a recent Texas case, 17-year-old Laura Schubert sought compensation for injuries she suffered in an exorcism conducted during a church youth group meeting (Pleasant Glade v. Schubert, 51 Tex. Sup. Ct. J. 1086 (2008)). She testified that she was cut and bruised during the exorcism, which caused a variety of mental and emotional injuries, including mental anguish, emotional distress, post-traumatic stress disorder, depression and a suicide attempt. She and her parents sued the church, the senior pastor, the youth minister and several church members. A jury awarded her $300,000 for her pain and suffering, lost earning capacity and medical expenses, but the Texas Supreme Court reversed and threw out the award.

In reversing the judgment, the court relied on the First Amendment's Free Exercise Clause. The Texas Supreme Court held that the church's free exercise of religion precluded its being held liable for the plaintiff's emotional injuries. The court further held that the First Amendment would not protect the church from liability for a plaintiff's physical injuries.

The case is noteworthy because it reflects a widespread legal double standard with respect to physical and psychological injury. For example, plaintiffs can almost always recover damages for negligently caused physical injury, but rarely for negligently caused psychological injury in the absence of physical harm. Moreover, to recover damages for the intentional or reckless infliction of emotional distress (absent a physical injury), the defendant's behavior must meet the higher standard of "extreme and outrageous conduct" (see, e.g., Restatement [Second] of Torts, ß46). There are limited instances where the law allows damages for psychological injury alone due to negligence, as in wrongful death cases. But compensation for survivors' noneconomic losses, such as mental suffering, is controversial and limited, especially compared with compensation for their economic losses.

A blurred line

The law's reluctance to place psychological injury on a par with physical injury arises from "the fear of fictitious or trivial claims, distrust of the proof offered, and the difficulty of setting up any satisfactory boundaries to liability" (Restatement [Second] of Torts, ß46, Comment b.). It is easier to fake mental anguish than a broken leg, although plenty of claimants have attempted both. Policy considerations dictate some limitation on potential defendants' liability, and the courts cannot be faulted for attempting to draw the line at an intuitively appealing boundary. Unfortunately, the line is not always clear. Severe emotional damages can occur in the absence of any physical injury, and barring recovery for such damages, or setting a higher standard of proof, is not necessarily a wise policy.

There are two main reasons why the physical-psychological injury distinction is problematic. First, it presumes that physical injuries are more legitimate than psychological injuries, yet studies show psychological injuries can take as long to heal, can be as resistant to treatment and can impair normal functioning as much as or more than physical injuries.

The second problem is that the distinction ignores the connection between physical and psychological health. Research shows that physical ailments have psychological consequences and, in some cases, causes. For example, illnesses such as diabetes and multiple sclerosis can cause depression and anxiety. In addition, research illustrates the biological substrate of many presumably "mental" illnesses such as schizophrenia, bipolar and unipolar depression, and substance abuse and addiction disorders. In early 21st century psychology, to speak of certain disorders in purely psychological terms would tell only half the story. Yet the courts continue to deem physical injury more legitimate.

Psychologists can help by educating the public about the causes, prevalence and consequences of mental illness. Forensic psychologists, in particular, can emphasize the close connection between physical and psychological injury in their work with representatives of the legal system. Such efforts could take many forms: testifying before legislative committees and task forces, advising judges and attorneys, or providing expert testimony.

Rather than make a spurious distinction between physical and psychological injury, as the Texas Supreme Court did in Pleasant Glade, the courts would be better off classifying injuries as compensable or noncompensable based on their severity. This would allow compensation for serious psychological injury in the same fashion as compensation for serious physical injury.


"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).