Establishing Conscious Pain and Suffering in New York and New Jersey

A common problem in wrongful death actions in New York and New Jersey is that neither state allows for compensation for what usually is the greatest loss to the decedent’s family, namely the emotional grief and distress that is attendant with losing a loved one.  Both New York and New Jersey limit damages in wrongful death cases to “economic loss” to the decedent’s estate, as well as conscious pain and suffering that was experienced by the decedent prior to his or her actual passing.  Accordingly, it is imperative for attorneys practicing in these states to develop evidence establishing conscious pain and suffering.  This is done by retaining either an expert in critical care medicine and/or a forensic pathologist to review the medical records and the entries of any nurses and/or physicians, as well as the testimony of any witnesses to either an accident or persons who were with the decedent after an act of malpractice was committed.

Conscious pain and suffering awards can be substantial in wrongful death actions and can offset the injustice of the wrongful deaths acts in New York and New Jersey.  By way of example, a jury awarded $2 million for conscious pain and suffering in a medical malpractice action, which award was affirmed by the Appellate Division in New Jersey in 2006.  The jury’s award for pain and suffering was for only four (4) minutes of suffering that occurred after the decedent’s doctors failed to properly drain his gastric contents, causing the patient to choke to death on his own vomit.  The death was described as “horrible,” as if the decedent were “drowning” in his own secretions.  Accordingly, under these circumstances, both the trial judge and the Appellate Division did not find the pain and suffering award excessive.

Therefore, it is clear that the conscious pain and suffering component of a wrongful death action is critical in most cases and can serve to offset some of the inequities of the current wrongful death acts in both New York and New Jersey.