by Scott M. Perry1
Your client is walking across a busy street in the crosswalk when a delivery van driver—behind schedule—whips around the corner and strikes her. She is pinned under the van for 20 minutes, during which time onlookers describe her as “conscious, but in shock.” When she is finally transported to the hospital, she arrives unconscious, spends three days in a coma and then, sadly, dies. Did she suffer conscious pain and suffering, and, if so, how do you prove it?
As the attorney for the family, you must not only counsel them through what is likely the worst trauma of their lives, but you must also maximize their recovery. The defense has the sole goal (assuming liability is established) of minimizing damages. It will seize on the fact that the Maryland jury instruction only allows recovery for conscious pain and suffering, and they will argue that since the victim was immediately in shock before lapsing into a coma, she had no conscious pain and suffering. This is wrong, and the skilled trial lawyer should be able to prove that she did, in fact, experience conscious pain and suffering, both while in shock and while in a coma.
Maryland’s standard jury instruction provides that “[t]he non-economic losses to be considered [in a claim by the Estate] are any conscious pain, suffering or mental anguish that the deceased experienced as a result of the injury until death.”2 Maryland jury instructions, unlike in some other states, fail to define “conscious.”3 Perhaps the drafters thought that “conscious” was well understood, but given advances in medicine and technology, “consciousness” is, like many other medical terms, not readily understood by laypeople. In fact, it is well accepted among the medical community that there are various states of consciousness that people experience. One is not simply conscious or unconscious.
It is the plaintiff’s burden to prove conscious pain and suffering by a preponderance of the evidence.4 Our appellate courts have not dwelled extensively on the degree of evidence or the level of awareness required to recover damages for pain and suffering. Maryland’s Court of Special Appeals has determined that “conscious” means “aware or sensible of an inward state or outward fact,” or “mentally awake, physically active or acute; in a state of consciousness; knowing.”5 But this is not very helpful given the myriad states of consciousness recognized in medicine today.
Case law further notes that “[t]he mere fact of consciousness after an accident… does not inescapably lead to the conclusion that pain is being experienced. Additional evidence must be presented… in order for an award of damages for conscious pain and suffering to be upheld.”6 It is not sufficient to simply prove that the person lived for a period of time and then expect to be allowed to recover damages for conscious pain and suffering. In fact, the court of Special Appeals has gone so far as to comment that “Evidence as to body sounds, such as moaning, gurgling, and heavy breathing, is insufficient to show consciousness or suffering on the part of the victim.”7
On the positive side, there is no minimum period of time required. The period between the accident and death maybe short, yet if the evidence shows that the decedent lived after the injury, was conscious, and suffered pain, his representative is entitled to recover.8
Proving Conscious Pain and Suffering
So how do you prove that someone who was in shock, a coma, or some other altered state of consciousness actually experienced pain and suffering? The medical records are your not-so-secret weapon. In situations involving major trauma, medical technicians have been trained on the importance of determining one’s level of consciousness both when they arrive on scene and throughout the care period.
The Glasgow Coma Scale and Other First-Responder Information
The Glasgow Coma Scale (GCS) is a neurological scale that provides an objective measure of the conscious state of a person. This test will be performed by first responders, and you will find it on the EMS run sheet. It is an excellent, objective tool to demonstrate consciousness.
The patient is assessed by first responders against the criteria of the scale, and the resulting points give a patient score between 3 (indicating deep unconsciousness) and 15 (indicating full consciousness). The scale is broken down into three criteria—eyes, verbal, and motor—and then summed. The higher the result, the greater the level of consciousness.
What is important about the GCS is that a person will often have a relatively high score even when lay people may describe the person as in “shock.” And it can be argued that any GCS greater than zero indicates some level of awareness. While the lower the number the tougher the argument, this should not stop you from asserting it.9 Best of all, the GCS is an objective number: first responders are trained to evaluate its criteria, and it is a good way to argue to the jury that the level of consciousness is not just speculation on your part.
First responders will also put important information relevant to consciousness or awareness in their narrative description of how the injury occurred. Because their primary goal is to sustain life, they will usually provide important information about level of consciousness, awareness, or pain. It is not uncommon for first responders to describe sounds, moans, blood, reaction to light, or ability to respond to commands. Their records will also include vital signs. Increased blood pressure and an elevated heart rate can be indicators of pain. Are there signs of respiratory distress? As an expert will tell you (explained below), there is nothing worse than the feeling that one cannot breathe. Such information, often contained in the one- or two-page ambulance run sheets can provide a wealth of admissible evidence.
Medical Records Also Contain Significant Relevant Information
A common misconception is that people in comas do not feel pain. Critical care nurses, who speak through their detailed nursing notes, will tell you otherwise. Study the critical care nursing notes carefully. They are bound to contain important facts suggesting conscious pain and suffering. Moreover, since the parties usually stipulate to the medical records’ admissibility (because “pathologically germane” statements in such records are generally admissible,) they are an easy—and objective—way to put this issue to the jury.
Did the nurses note facial grimaces on the patient when she was moved or when an invasive procedure was performed? Was the patient moaning, sighing, or manifesting other readily understood indicators of pain? Were tears coming out of the eyes? Did she indicate a level of awareness when family members were in the room? (This testimony can come from the family members themselves.) Did she blink her eyes in response to painful stimuli? Did the nurses note agitation or other unnecessary movement in the bed? This is a common sense indicator: people move from one position to another because they are uncomfortable. The same holds true for the patient with an altered state of consciousness.
Review the records to determine if the patient withdrew from painful stimuli. Check for evidence of muscle tensing, which is often an anticipatory movement before pain is experienced. Utilize the EEG readings. If they are normal, or close to normal, this will allow an expert to explain that the patient’s brain is functioning normally, or at least with some degree of normalcy. And because pain is a base physiological function, it is reasonable to assume it is being experienced by people with normal, or near normal EEGs. Was pain medicine prescribed? By its very nature, it is administered to relieve suffering.
All of these reactions are indicators of a level of consciousness or awareness concomitant with the ability to experience pain and to suffer. And they are important pieces of the evidence puzzle you can use to prove to the jury that your client experienced pain.10 But the records alone are usually not enough.
Experts Are Essential
It would be unwise to assume that conscious pain and suffering can be sufficiently proven by the eyewitnesses and the medical records in an altered-state-of-consciousness case. You need to have an expert witness—preferably a critical-care physician or the like—who can explain to the jury the physiological mechanisms that cause us to feel pain. That expert can explain why objective measures like the GCS support your claim for conscious pain and suffering and why people who cannot express pain still experience it. The use of an expert is not only important for the jury’s understanding, but for the court’s understanding as well. Many judges without a medical background would be surprised to learn that people “in shock” do feel pain. In fact, an experienced critical-care physician will explain that while it is true that shock can blunt pain, it does not eliminate it. Thus, if the injured person is moaning, wincing, crying, or exhibiting other manifestations of pain, expert testimony can help the jury understand that the victim suffered conscious pain and suffering.11
The expert also lends credibility to your argument. Who better to opine on the existence of pain than a physician who deals with traumatic injuries day in and day out? Do not allow the defense to argue that an expert cannot opine on this issue. He can. As long ago as 1948, Maryland’s Court of Appeals allowed parties to use experts to prove or disprove conscious pain and suffering.12 Indeed, because it is for the jury to decide whether your client suffered conscious pain and suffering and to determine whether the client exhibited the requisite level of consciousness and because this requires specialized knowledge, it is error not to allow attorneys to use a qualified expert.
Even in a state with an artificial cap prohibiting awards that fully compensate victims for their damages, proving pain and suffering is important.
Getting Your Pain and Suffering Claim to the Jury
The defense may try to strike your expert witness claiming that conscious pain and suffering is not a subject to be determined by an expert. The defense may also argue that “common sense” requires the trial judge to rule that someone in a coma felt no pain. Thus, you need to be armed with the case law and common law to support your claims. The notes below include case law from various jurisdictions that may help you.
There are many stages of awareness or consciousness for which courts have allowed the recovery of damages for pain and suffering.13 It is for the jury to decide among conflicting evidence whether the plaintiff experienced conscious pain and suffering.14
Trial courts throughout the country have allowed extensive evidence on the issue and have determined that even persons only minimally aware of their surroundings were entitled to pain and suffering damages.15
Even in a state with an artificial cap prohibiting awards that fully compensate victims for their damages, proving pain and suffering is important. You should not assume that because your client was immediately rendered into an alternate state of consciousness by the defendant’s negligence that the defendant is off the hook for those non-economic damages he or she caused. Case law, jury instructions, medical records, and the appropriate use of an expert witness can greatly enhance the value of your client’s pain and suffering claim.
3 For example, New York’s standard jury instruction provides that “[c]onscious pain and suffering means pain and suffering of which there was some level of awareness by plaintiff (decedent).” See NYPJI2:280 (emphasis added).
8 See Tri-State Poultry Coop., Inc. v. Carey, 57 A.2d 812, 817 (Md. 1948) (holding that interval between injury and death can be very brief; here, approximately 1 hour 45 minutes); see also Pippin v. Potomac Elec. Power Co., 132 F. Supp. 2d 379, 394 (D.Md.2001).
9 Clever defense counsel will argue that a low GCS does not indicate consciousness or that the test is not a good scale. See, e.g., Hensley v. Ed Kimball & Sons, Inc., 1991 U.S. Dist. LEXIS 436 (N.D.111. Jan. 15,1991) (arguing through defense expert that decedent was unconscious based on low GCS scores, but it appears plaintiff failed to refute defense’s interpretation of the scores). For another example of the application of GCS at trial, see Huthmacher v. Dunlop Tire Corp., 765 N.Y.S.2d 111 (App. Div. 2003) (holding that since the decedent’s GCS rose to seven on only 10 days of the 69 day hospitalization, the award of $1 million for decedent’s conscious pain and suffering was much greater than reasonable compensation).
10 Although not the subject of this article, remember to consider whether your client experienced pre-impact fright, which is recoverable in Maryland. See Benyon v. Montgomery Cablevision Ltd. P’ship, 718 A.2d 1161 (Md. 1998) (allowing recovery); Smallwood v. Bradford, 720 A.2d 586, 589-92 (Md. 1998); Maryland Civil Pattern Jury Instruction 10:10.
11 In Ory, supra n.5, the Court of Special Appeals illustrated the importance of expert testimony. The court found that testimony of First Responders and medical records alone were insufficient to prove conscious pain and suffering. The medical records reflected that the only sounds made by the victim were labored breathing and gurgling, resulting from the swallowing of blood. There was no verbal communication from the victim, and no movement of his arms or other parts of his body to signify the sensation of pain. The court held that the evidence presented was insufficient to sustaina verdict for conscious pain and suffering where rescue squad member’s statement that decedent was “conscious” was not explained. But more significandy: (1) there was no expert testimony as to whether decedent was experiencing pain, and (2) there was no expert testimony to show that decent was capable of experiencing pain.
12 See Tri-State Poultry Coop., supra n.8, (allowing expert medical testimony that the victim was conscious and suffered pain before his death, which was refuted by a second expert, creating a genuine issue of fact).
14 See, e.g., Tri-State Poultry Coop., supra n.8; Malory, supra n.4; Greenstein v. Meister, 368 A.2d 451, 461 (Md. 1977); Williams v. Se. Pa. Transp. Auth., 741 A.2d 848 (Pa. Commw. Ct. 1999); Estate of Long v. Broadlawns Med. Ctr., 656 N.W.2d 71 (Iowa 2002).
15 See, e.g., Banks v. Sunrise Hosp., 102 P.3d 52 (Nev. 2004); Bourgeois v. Puerto Rican Marine Mgmt., Inc., 589 So. 2d 1226 (La. App.: 1991); Maracle v. Curcio, 806 N.Y.S.2d 839 (App. Div. 2005), leave to appeal denied, 7 N.Y.S.3d 703, (2006); Oberson v. U.S., 311 F. Supp. 2d 917 (D. Mont. 2004); Cepeda v. N.Y. City Health and Hosps. Corp., 756 N.Y.S.2d 189 (App. Div. 2003).