Perspective: Pain and suffering in medical malpractice.

Charles A. Pilcher MD FACEP
June, 2016

I have occasionally been asked to opine on whether or not a patient experienced pain and suffering as a result of a traumatic injury or a medical procedure with a bad outcome. As I understand it, the presence of pain and suffering has an impact on the amount of a settlement.

A recent blog post by New York attorney Gerry Oginski, a reader of the Medical Malpractice Bulletin, covered this issue for his readership (which apparently consists mostly of injured patients seeking representation.) He asks “How much of a role does ‘pain and suffering’ play in a medical malpractice lawsuit?” And using the example of Joan Rivers’ death, “If Joan Rivers had no pain and suffering, will that destroy Melissa Rivers’ wrongful death case here in New York?”

Mr. Oginski writes that every wrongful death lawsuit in New York will always try to show that “the injured patient was conscious and aware of the tragedy that was happening to them” in order to claim that he/she experienced pain and suffering. He says that the time period is irrelevant and could be from seconds to days or months.

When I have been asked my opinion on this subject by an attorney pursuing a lawsuit, the key issue always involves the time frame as well as the level of awareness. The shorter the time frame and the less the level of consciousness, the harder it is to determine the amount of pain and suffering. For example, in one case where a driver in a stationary vehicle was struck by a van that had left the road and become airborne, the victim suffered massive head and chest injuries and was killed instantly. He would only have had time to look up and say “Oh, s#/t” before he died. In my medical opinion, that does not rise to the level of pain and suffering. On the other hand, consider a bystander who was found dead by the time EMS arrived after having been crushed under a vehicle that left the road. The victim had no significant head injury and was likely conscious for a short time with the weight of the car on her chest. She would have experienced both awareness of injury and pain and suffering, if only for a matter of seconds to minutes before losing consciousness. The pain and suffering would be on a more probable than not basis. It would be up to the court/jury to attach value to that.

Everyone’s pain and suffering is individual. Age matters. The type of injury matters. Complications matter. Pain tolerance matters. The recovery time matters. And apparently a jury can award victims whatever they want for their pain and suffering (unless there are mandated caps on such awards.)

The important point is that “there must be some level of conscious awareness of what was going on,” says Mr. Oginski.

I agree.

In Joan Rivers’ situation, she was undergoing an endoscopy for which she needed to be anesthetized or significantly sedated, likely with IV propofol. Thus, she should have been asleep or unconscious during the procedure even when a complication such as cardiac or respiratory arrest occurs. In this situation, the defense can claim that a patient would experience no distress. I would support that, with the caveat that the level of anesthesia could be debated as could the level of brain hypoxia, both of which may or may not affect the victim’s “level of conscious awareness.” If a medical record – or an EMS record in a traumatic injury – reflects that a patient was responsive to pain, voice or other stimuli, or was moaning and groaning, then a legitimate question exists as to the level of awareness which that patient/victim might be experiencing.

Judging events such as these based on news reports, in the case of Joan Rivers, is dangerous, and we have little else to go on. We can assume that the pertinent points regarding pain and suffering were raised during the course of the lawsuit, which has now settled. Unfortunately, the settlement was as usual confidential, so we physicians will likely learn nothing from this unfortunate episode. We still don’t know what really went on in that operating room during that procedure that specifically led to her death. We’ve learned nothing from her death.

So much for “teaching doctors a lesson” by suing them.

Well, maybe those in the operating room learned something – but I bet they haven’t told anyone about it.

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