dissenting.
Before one may bring a suit against the government under the Federal Tort Claims Act, one must file an administrative claim with the agency alleged to have committed the tort, 28 U.S.C. § 2675(a), and a suit under the Act “shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.” 28 U.S.C. § 2675(b). It is hard to see the point of this rule, since there is no limit on what the plaintiff may ask for in the administrative claim. The cases (echoing the legislative history) say that the purpose is, by informing the government of its maximum exposure, to enable the government to make intelligent settlement proposals. Allgeier v. United States, 909 F.2d 869, 878 (6th Cir.1990); Reilly v. United States, 863 F.2d 149, 173 (1st Cir.1988). In less Aesopian terms, the purpose is to truncate the settlement range in the government’s favor. However, for the rule’s purpose, however it is stated, actually to be accomplished, a cost of some sort would have to be imposed on the plaintiff who asked for the sky. None is, unless the government is less likely, out of a kind of spite, to negotiate a reasonable settlement with a hog, which has not been suggested. So *745probably the only or at least the main effect of the rule is to create a trap for the unwary. Into that trap the plaintiffs original lawyer fell when he had her ask in the administrative claim for only $300,000. At trial he asked the judge to award her $2 million. The judge awarded $519,666, then subtracted $100,000 which had been paid by a joint tortfeasor. (This adjustment had nothing to do with the ceiling; the purpose was to prevent the plaintiff from being overcompensated.) Thus, the judge allowed the ceiling to be pierced, precipitating the government’s appeal to us. His action violated the statute; we should reverse, not affirm. No case cited by the majority suggests otherwise.
When the administrative claim was filed, 17 months after the very, serious automobile accident that gave rise to it, the plaintiff had been suffering throughout that entire period continuous, undiminished, and severe emotional distress that the accident caused or triggered (it doesn’t matter which, given the “eggshell skull” rule of tort damages, Stoleson v. United States, 708 F.2d 1217, 1220-21. (7th Cir.1983)). By the time the case was tried, five years later, her symptoms had worsened. In a part of the district court’s decision that is not challenged by the government, the judge valued the plaintiffs emotional distress at $20,000 per year for the first two years and eight months after the accident and $40,000 per year for the next four years, which were the four years leading up to the trial, plus $25,000 “for the next two years, the period in which it is reasonable to expect that Zurba’s conditions will be resolved by [psychiatric] treatment.” The total of the emotional-distress items is thus $238,333. The difference between this figure and the total damages award of $519,666 ($281,333 = $519,666-$238,333) is composed of other items of damages, all conceded to have been foreseeable at the time she filed her administrative claim but within the $300,000 ceiling that the claim established. If the $300,000 constraint is fully binding, $219,666 in damages, the bulk of the emotional-distress items, must be lopped off.
As a detail, the plaintiff is certainly not entitled to pierce the ceiling to recover damages for the emotional distress that she suffered before her symptoms worsened. I noted in the preceding paragraph that the judge’s damages award for emotional distress jumped from $20,000 to $40,000 per annum two years and eight months after the accident. That is the date on which the judge estimated that the plaintiffs symptoms worsened. There is no basis for supposing that the symptoms that she experienced before then — before the unexpected worsening — were unforeseeable. That amount is $53,333 ($20,000 x 2.67), which when added to the damages that the judge assessed for items other than emotional distress (the $281,333) yields a total of $334,666, which exceeds the $300,000 ceiling. The majority avoids this conclusion by adding the $100,000 paid by the joint tortfeasor to the $300,000 ceiling. This procedure is contrary to the language of the statute, which provides that a suit “shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency.” The plaintiff asked for more than $300,000, which she could do only if she fell within the statutory exception, which she clearly did not with respect to $34,666 of the amount that she sought and was awarded above $300,000. I am not a literal interpreter of statutes, but there should be a reason — in fact a good, a compelling reason — to ignore statutory language. The majority has offered no reason.
The district judge made no adjustment of the sort just suggested not because he was cavalier about statutory language (leaving that to the court of appeals), but *746because he attached no significance to the fact that the plaintiffs symptoms had worsened since her filing of the administrative complaint. He said “the question is whether Zurba reasonably realized or should have realized that [her symptoms were the result of psychiatric conditions diagnosed after the administrative claim was filed, namely an anxiety disorder and an adjustment disorder] at the time of her claim .... Zurba reasonably believed these to be the normal effects of having gone through what she had gone through, and not signs or symptoms of emotional distress or a psychiatric disorder. The Court finds that Zurba has demonstrated that she neither knew nor should have known as of August 1996 [the month in which her administrative claim was filed] that she was suffering from a psychiatric condition or from emotional distress resulting from the accident.” It cannot be correct to say that she did not know then that “she was suffering from ... emotional distress resulting from the accident.” No one suffers “emotional distress” without knowing it; it is a form of pain and to say “I was in pain but didn’t know it” is nonsense. Zurba knew when she filed the administrative claim that she was in (emotional) pain and that it was the result of the accident; and whether it was a “normal” or an abnormal consequence of the accident, it was compensable; the more normal it was, the more compensable it was. A whiplash injury is a normal consequence of a rear-end collision; and of course it is a compensable consequence. She had no excuse for not claiming damages that she had already suffered.
An even deeper problem with the district court’s analysis is its unexamined assumption that a diagnosis is an intervening fact or a form of newly discovered evidence, within the meaning of section 2675(b), even if it does not affect the estimation of damages. Until she was diagnosed with an anxiety and adjustment disorder, the plaintiff did not know she had a psychiatric disorder but knew she was experiencing emotional distress (it is, to repeat, not an unconscious state), for which, as her lawyer must have known, damages can be awarded with or without a psychiatric label. The significance of the diagnosis was that it indicated that her symptoms were likely to persist for a longer time, and perhaps be more severe, than she and her lawyer had thought. I am not disposed to quarrel with the district judge’s finding that the plaintiff was not unreasonable in failing to see a psychiatrist earlier. It is common, indeed I should think typical and even normal, to incur emotional distress in the wake- of a severe personal injury, and even if it persists for months the victim would be unlikely to think the accident had triggered a psychiatric condition that might take on a life of its own long after the physical effects 'of the accident had dissipated. A minor puzzle is why the district judge thought that the plaintiffs psychiatric disorder would be completely cured within two years of the end of the trial, especially since some of the physical effects of the accident, notably her irritable bowel syndrome, are expected to persist for thé rest of her life.
The fact that a condition is not expected to be permanent is no reason not to treat it. Increasingly Americans do seek treatment for even transitory emotional problems, and this has led some courts in tort cases to impose a duty to mitigate emotional injuries by analogy to the duty to mitigate physical injuries (the tort counterpart, traditionally called “avoidable consequences,” Outboard Marine Corp. v. Babcock Industries, Inc., 106 F.3d 182, 184 (7th Cir.1997); Barron v. Ford Motor Co. of Canada Ltd., 965 F.2d 195, 199 (7th Cir.1992), to the contract doctrine of mitigation of damages). See Eugene Kontoro-*747vich, Comment, “The Mitigation of Emotional Distress Damages,” 68 U. Chi L.Rev. 491, 507-08, 512 (2001). But mitigation is not in issue here; and there is still a sufficient stigma to seeking psychiatric treatment, and sufficient uncertainty about its efficacy, to make many, perhaps most, people prefer to suffer what they reasonably believe to be a temporary condition of emotional distress (or to self-medicate) than to see a psychiatrist about it. But whether a condition is correctly diagnosed has nothing to do with its com-pensability. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), holds that a claim under the Federal Tort Claims Act accrues when the victim knows of the existence and cause of his injury, not when he learns whether it was committed in circumstances that created liability. The plaintiff could obtain damages for emotional suffering regardless of its diagnostic label. The fact that she was suffering emotional distress when she filed her administrative claim meant that she could pierce the $300,000 ceiling only to the extent that the emotional distress got unforeseeably worse or that there was an unforeseeable increase in its likely duration. See Richardson v. United States, 841 F.2d 993, 999, amended on an unrelated point, 860 F.2d 357 (9th Cir.1988); O’Rourke v. Eastern Air Lines, Inc., 730 F.2d 842, 856 (2d Cir.1984). This fundamental point the district judge missed; my colleagues repeat his error.
To see the error more clearly, suppose that a person were in an accident as a result of which he incurred an unreim-bursed medical expense of $10,000 and an excruciating pain in his neck that he attributed to whiplash and that lasted a week. Suppose his lawyer filed an administrative claim under the Federal Tort Claims Act mistakenly asking for only $10,000 because the lawyer had forgotten about his client’s pain, for which he could reasonably have asked an additional $2,000 in damages. Later the plaintiff discovers that the pain had not been the result of a minor (soft-tissue) whiplash injury, as he had first thought; rather, the accident had seriously damaged one of the vertebrae in his neck, and the damage had caused the pain; and while the pain had now ceased, an operation would be required to repair the vertebra in order to prevent further deterioration. The plaintiff could seek additional damages measured by the cost of the operation, but he could not seek them plus $2,000 (or any other amount) in damages for the pain merely because he had a better sense of the precise causal path connecting it to the accident. In effect, the district court in our case said that such a plaintiff would be able to add the cost of the earlier pain even though that was a known quantity when she filed her administrative claim. She knew she had emotional distress; she knew it was caused by the accident; all she didn’t know was that the accident had caused a psychiatric condition that had caused her the distress that she felt.
The case should be remanded for a determination of how much if any of Zurba’s damages for the emotional distress that she suffered after the administrative claim was filed were unforeseeable then. Those are the only damages that can be used to pierce the $300,000 ceiling. The additional damages that she suffered as a consequence of the government’s tort she can recover, if at all, only from her lawyer. This is one of the rare cases in which a claim for litigation malpractice would not be bedeviled by the difficulty of proving a causal relation between the lawyer’s mistake and the outcome of the litigation. (I call it the lawyer’s mistake, but I suppose it is possible that Zurba did not reveal the full extent of her emotional distress to her lawyer, and it is even conceivable that *748underestimating damages might be a way of extracting a quick settlement from the government, though in this case the government made no settlement offer at all.) Whatever part of the $419,666 damages award must be subtracted by virtue of the $300,000 ceiling is the loss inflicted on Zurba by her lawyer’s mistake in specifying such a low amount of damages for an accident known to have inflicted severe, permanent physical injuries coupled with almost a year and a half of severe emotional distress with no end in sight.