tive – 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 read- ily 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 expe- rienced. 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 expe- rienced pain.10
But the records alone are usually not enough. You Need An Expert. 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
10
Although not the subject of this article, remember to consider whether your client experienced pre-impact fright, which is re- coverable 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 im- portance 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 sustain a verdict for conscious pain and suffering where rescue squad member’s statement that decedent was “conscious” was not explained. But more significantly: (1) there was no expert testimony as to whether decedent was experiencing pain, and (2) there was no expert testimony to show that decedent was capable of experi- encing pain.
Winter 2009 Trial Reporter
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 experi- enced 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, combined with the expert testimony, the jury can find that she suffered conscious pain and suffer- ing.11 The expert also lends credibility to your argument. Who
PAETEC proudly supports the Maryland Trial Lawyers Association
PAETEC proudly supports the Maryland Trial Lawyers Association
better to opine on the existence of pain then 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, our Court of Appeals allowed parties to use experts to prove or disprove conscious pain and
PAETEC proudly supports the Maryland Trial Lawyers Association
PAETEC proudly supports the Maryland Trial Lawyers Association
PAETEC proudly supports the Maryland Trial Lawyers Association
PAETEC proudly supports the Maryland Trial Lawyers Association
PAETEC provides personalized communications solutions for business customers across the U.S. by offering a comprehensive suite of data, voice and IP services, as well as enterprise communications management software, network security solutions, CPE, and managed services.
PAETEC provides personalized communications solutions for business customers across the U.S. by offering a comprehensive suite of data, voice and IP services, as well as enterprise communications management software, network security solutions, CPE, and managed services.
For more information, call PAETEC today at 443.573.6992.
For more information, call PAETEC today at 443.573.6992.
PAETEC provides personalized communications solutions for business customers across the U.S. by offering a comprehensive suite of data, voice and IP services, as well as enterprise communications management software, network security solutions, CPE, and managed services.
PAETEC provides personalized communications solutions for business customers across the U.S. by offering a comprehensive suite of data, voice and IP services, as well as enterprise communications management software, network security solutions, CPE, and managed services.
PAETEC provides personalized communications solutions for business customers across the U.S. by offering a comprehensive suite of data, voice and IP services, as well as enterprise communications management software, network security solutions, CPE, and managed services.
PAETEC provides personalized communications solutions for business customers across the U.S. by offering a comprehensive suite of data, voice and IP services, as well as enterprise communications management software, network security solutions, CPE, and managed services.
For more information, call PAETEC today at 443.573.6992.
For more information, call PAETEC today at 443.573.6992.
For more information, call PAETEC today at 443.573.6992.
For more information, call PAETEC today at 443.573.6992.
www.paetec.com www.paetec.com
23
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76