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 may be 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 is 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 determine one’s level of consciousness both when they arrive on scene and throughout the care period. The Glascow Coma Scale and Other First-Responder Infor-


7 8


Id.


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).


mation. 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 the 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 the 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 GSC 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 con- sciousness is not just speculation on your part. First Responders will also put important information relevant


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“Ajury consists of twelve” persons chosen to decide


to consciousness or awareness in their narrative description of how the injury occurred. Because their primary goal is to sus- tain life, they usually will provide important information about level of consciousness, awareness or pain. It is not uncommon for First Responders to describe sounds, moans, blood, reac- tion 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 their 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 long ambulance run sheets can provide a wealth of admissible evidence. The Medical Records Contain Significant Relevant Informa-


tion. 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’ admis- sibility (because “pathologically germane” statements in such records are generally admissible, they are an easy – and objec-


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. Ill. Jan. 15, 1991) (arguing through defense expert that decedent was un- conscious 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 hospi- talization, the award of $1 million for decedent’s conscious pain and suffering was much greater than reasonable compensation).


22 Trial Reporter Winter 2009


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