Doctor Fails to Show "Mental Anguish" in Appeal of Bad Faith Lawsuit Against Medical Malpractice Insurer

The Medical Protective Company v. Herrin, M.D., 2007 Tex. App. LEXIS 7867 (Tex. App. Texarkana, October 3, 2007)

It's been a little over ten years since the Texas Supreme Court announced in Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex. 1995) that recovery in Texas for mental anguish required evidence of more than moans and groans and wounded pride.  Absent hard evidence of physical impact and outward manifestations of pain, mere emotional upset will probably not survive court review.  In Herrin, a doctor was told by his malpractice insurer that the doctor's consent to settle a pending lawsuit would not result in nonrenewal of his policy.  One year after the settlement, the insurer sent notice of nonrenewal because of the doctor's risk history.

In addition to other problems with the doctor's case (such as, he easily found replacement coverage and made more money in the years after non renewal than before), his evidence of mental anguish at being non-renewed was that he felt "terrible" when he received the nonrenewal notice, he was "tremendously" upset that the insurer wrote that claims against him were both frequent and severe, and work after that was not as pleasant as before.  The doctor also theorized that he became suicidal based on his once deciding to drive his new motorcycle at an extremely excessive rate of speed (although on cross-examination, he admitted that he was not truly suicidal; he just had never engaged in such risky behavior before).  The court found this insufficient evidence of compensable mental anguish.

The lesson for the plaintiff's bar: concentrate less on histrionic adjectives and more on concrete nouns to plead mental anguish (headaches, rashes, purple spots, sleepless nights, trips to the psychiatrist, things like that).