What a Long Strange Trip It Has Been: Proving Conscious Pain and Suffering for Tort
Victims With Altered States of Consciousness 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 also must 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 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 suf- fering, 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
to define “conscious.”3
Our jury instructions, unlike in some other states, fail Perhaps the drafters thought that “con-
scious” was well understood, but given advances in medicine and technology, “consciousness” is, like many other medical terms, not readily understood by lay people. In fact, it is well accepted among the medical community that there are vari- ous states of consciousness that people experience. One is not simply conscious or unconscious. It is the plaintiff ’s burden to prove conscious pain and suffer- ing 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. Our Court of Special Appeals has determined that “conscious” means “aware or sensible of an inward state or
1
The author would like to thank Samantha Jacobson, Esq. for her contributions.
2 MPJI 10:25 (emphasis added). 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 NYPJI 2:280 (emphasis added).
4
See Univ. of Md. Med. Sys. Corp. v. Malory, 795 A.2d 107, 118 (Md. Ct. Spec. App. 2000).
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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 to comment that: “Evidence as to body sounds, such as
5 6
Ory v. Libersky, 389 A.2d 922, 929 (Md. Ct. Spec. App. 1978) (quot- ing from 15A C.J.S. Conscious at 571).
Id. at 929 (citing Whalen v. Daugherty, 290 N.Y.S.2d 3, 5 (App. Div. 1968)).
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