The term "conscious pain and suffering” in the legal world means that there needs to be proof that your loved one was aware of what was happening and experienced pain or fear before their untimely death. It usually arises in a scenario where the victim “saw it coming" or where a victim is severely injured and hangs on to life for minute, hours or even days but later succumbs to grievous injuries.
How do you prove whether a wrongful death victim suffering conscious pain and suffering?
Conscious pain and suffering can be proved in court by providing evidence that the victim either spoke or moaned or had some awareness of their surroundings since this is an indication that the victim was aware of what was happening to them. Another way to prove conscious pain and suffering is when we obtain medical records and find an EMT report stating that the victim was “in and out of consciousness” and wailed or moaned while being transported to the hospital.
If such records do not exist, we can present expert evidence purporting to show that the victim was aware of the situation and experiencing both some degree of pain and suffering for a period of time.
If the weight of the evidence establishes that the victim’s condition at the accident scene included a level of consciousness, then a jury is allowed to factor that into the damages verdict. In many instances, the verdict sum for conscious pain and suffering will be larger than a damage award where it was determined that the victim felt no pain or passed away instantaneously as a result of the accident.
For additional information about the wrongful death claims process in Virginia, take a moment to read our legal guide on the topic. Here’s a link:
Here are some additional resources of information to help you learn more about your potential legal rights after the death of a loved one in a preventable accident: