Thomas A. Sharon, R.N., M.P.H.

Nursing & Patient Safety Expert, Life Care Plan, Medical Evidence Analysis, Medical Record Review, Legal Nurse Consultant, Litigation Support

The Anatomy of Non-economic Damages in Personal Injury: Overview of “Conscious Pain and Suffering”

April 19th, 2015 · No Comments

CP&STo begin with, the main problem with the term “conscious pain and suffering” is that the second part, “suffering” usually drops out of focus, so people tend to define the entire concept only in terms of the intensity of pain. As mentioned in my previous article entitled, “Conscious Pain and Suffering in the Comatose Patient”, the sufferers need not have full mental faculties to be aware of their pain. Moreover, when the altered mental status prevents its verbalization, there are a number of signs that prove that the patient was hurting, like facial expression and various responses to painful stimuli.

On the other hand, there is one area of assessment that is usually overlooked – cough and gag reflexes. When a person’s level of consciousness diminishes, there is usually a need to maintain the airway by suctioning and, in many cases, endotracheal intubation. The point is that when the nurse or respiratory therapist has to probe the suction tip into the trachea, this triggers off the gag and cough reflex and an intense feeling of choking. In many cases that I have reviewed involving patients with long term alterations in mental status, often the only response that the nurse could elicit is “gagging and coughing” with the introduction of a catheter for suctioning every 2-3 hours.

Therefore, in view of the documented human responses of coughing and gagging, one can conclude that having a foreign object shoved in the back of the patient’s throat every 2-3 hours is “conscious pain and suffering” in the extreme.

Case in point: A few years ago a New York attorney called me to ask for help in solving a problem. “How do I prove conscious pain and suffering on a 19 year old male who was run over by a city garbage truck and languished in the hospital with his chest crushed for 16 hours on a respirator and then died?” This was indeed a difficult problem because there was no obvious evidence of pain. However, when I reviewed the ICU nursing progress record I saw that they gave this young man Demerol, Valium and Pavulon because he was bucking the respirator. The Demerol is an opoid pain reliever for discomfort, Valium is a tranquilizer to control anxiety and Pavulon is a neuroparalyzer to prevent movement. So basically he was in a drug-induced coma until he died. The jury awarded $350,000 additional for pain and suffering (non-economic damages) in 1985.

There is a wealth of information available here that will assist you in discovering what unrevealed medical information exists within your files and how to best extrapolate and present the evidence. Please feel free to contact me to let me know which of those would be most helpful to you in your current practice.

Thomas A. Sharon, R.N., M.P.H.

Nurse Consultant


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