Pain and suffering claims for comatose patients
Pain and suffering is one of the most common claims for non-economic damages, and one of the most important, as a personal injury lawyer Little Rock, AR relies on can attest. Many jurors struggle with awarding non-economic damages, due to personal beliefs and the inability to easily calculate these types of claims.
However, whether a pain and suffering claim can even reach a jury can sometimes focus on whether the Plaintiff had a “level of awareness” of their pain and suffering. One area where this comes into question is Plaintiffs who have been in a comatose condition. For example, if a Plaintiff endured an intensely traumatic event, was immediately rendered into a coma, and died several days later without ever regaining consciousness, there will be a questions as to whether the person ever had a level of awareness of their pain and suffering. If they did not, the court may summarily prevent this issue from being put in front of a jury as part of the claim.
How do you prove pain and suffering in such a scenario? There are potential experts who can review records to determine some level of subconscious awareness, but the most productive way would be to investigate the treatment team for the Plaintiff during this crucial period. There may be a nurse that noticed a grimace, a noise, or vague communication attempts during weak movements, that would be able to show first-hand evidence of pain or suffering. A good nurse who was a treater will be a much better witness than an expert. All it takes is a nanosecond of this type of exhibition to be able to put this issue in front of a jury and to expand the non-economic damages in a suit.
It’s understandable to be required to show a level of awareness as an element of pain and suffering. If the Plaintiff is unable to show that the decedent was aware of their condition and plight prior to death, it is logical that they (ie, their heirs) may not be compensated for this pain and suffering.
Therefore, it’s imperative if you have a claim that includes a patient who was in a coma, that you ensure that you have objective medical evidence of a level of awareness. Otherwise, most juries won’t (and can’t) consider the pain and suffering aspect of such a claim. However, if you have documented evidence of a level of awareness from such an event, you should incorporate this into your claim.
Thanks to Steve Harrelson and our friends and co-contributors from Harrelson Law Firm, P.A. for their added insight into pain and suffering claims.