Chamallas on Trauma Damages

Martha Chamallas has posted to SSRN Trauma Damages, a paper she delivered at Southwestern’s Concluding the Restatement (Third) of Torts symposium last year.  The abstract provides:

The concept of trauma has increasingly been used to describe the experiences of marginalized groups and has a special relevance to systemic injuries and abuses of power that can form the basis of personal injury claims. Although trauma would seem to have everything to do with tort law, not much attention has been paid to trauma and its connection to torts, either with respect to substantive claims or remedies. This article looks at three contemporary contexts of trauma – rape trauma, racial trauma, and birth trauma – and explores their implications for tort recovery. It examines how trauma in each context compares to post-traumatic stress disorder (PTSD) and explains why many trauma victims are unable to qualify for a PTSD diagnosis, even though they experience many symptoms of PTSD. It explores the potential of victims of chronic racism to bring claims for intentional infliction of emotional distress and the possibility of classifying such persons as “eggshell plaintiffs” who are likely to suffer intensified injuries because they experienced trauma in the past. Connecting birth trauma to obstetric violence and mistreatment, it canvasses the sparse case law and the legal obstacles facing persons giving birth, particularly women of color, who are subjected to abuse, coercive tactics, and disrespect by medical personnel. The article calls for a dismantling of the artificial distinction between physical and emotional harm which stymies recovery for traumatic injury and for a recommitment to the eggshell plaintiff rule to respond to the realities of underserved communities marked by violence, injustice, poverty, and deprivation. If the widespread incidence of trauma were reflected in tort doctrine, it could change how we estimate losses and extend more generous tort recoveries beyond the usual class of affluent victims who suffer measurable economic loss.