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Proving Conscious Pain and Suffering

In many personal injury lawsuits, the attorney representing the victim must prove that the victim experienced conscious pain and suffering. Under Maryland law, the victim’s lawyer must prove: (1) that the defendant’s negligence was a cause of the incident; (2) that the victim lived after the incident; and (3) between the time of the incident and the time of death, the victim suffered conscious pain.

Sometimes, proving conscious pain and suffering is easy because a witness saw it, heard it or the medical records document the suffering through complaints of pain or the need for pain medication. But sometimes, that evidence is lacking. In such situations, courts allow evidence of conscious and suffering if there is a “reasonable inference” of it, so I use expert witnesses to prove such a claim. These can be neurologists, medical examiners, etc.

Recently, in a case where a man’s car was struck by a much larger truck, I used a medical examiner to prove that, during the 5-10 minutes after the collision when witnesses said the man was alive, he was in fact consciously suffering. A medical examiner is a good choice to use in such a case because of such an expert’s knowledge of what injuries do to a person and how a person reacts to injuries. In this particular case, using the medical examiner as an expert, the jury awarded $675,000 for the victim’s suffering.

Knowing which experts to use and how to use them is a key component of a successful trial lawyer. In my experience, people who don’t regularly try cases sometimes lack this knowledge and experience.

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