Litigating Awareness: Non-Economic Damages and the Unconscious Plaintiff

As difficult as non-economic damages are to predict, that task becomes more difficult when alleged medical negligence has placed a plaintiff or decedent in a coma or vegetative state. Such an outcome introduces unique medical and legal issues into the valuation of a plaintiff's claims for non-economic damages. From a defense perspective, early identification of these issues by counsel can be critical in identifying and narrowing the scope of non-economic damages ultimately recoverable by the plaintiff at trial.

Medical Terminology

Among laypersons, the terms “coma” and “vegetative state” may often be used interchangeably, when in fact, the terms have distinct clinical definitions.

A coma is characterized by the “absence of arousal and thus also of consciousness.” A patient in a coma lies with the eyes closed and cannot be aroused. This patient has no awareness of self or surroundings, and cannot be stimulated to produce spontaneous periods of wakefulness or eye-opening. Laureys S., Owen A. and Schiff N., Brain Function in Coma, Vegetative State, and Related Disorders. The Lancet Neurology 2004: 537-546.

By contrast, patients in a vegetative state will display cycles of eye-opening and -closing, giving the appearance of sleep-wake cycles. Monti, M., Laureys S., Owen A., The Vegetative State. 2010 BMJ; 341:c3765. However, such a patient will have a complete lack of awareness of the self or the environment. Id. A patient in a vegetative state will have complete or partial preservation of hypothalamic and brain-stem autonomic functions. Id . Accordingly, a patient in a vegetative state may appear to have periods of sleep and wakefulness, may move the trunk or limbs, may smile, shed tears, utter grunts, moan or scream. Multi-Society Task Force on PVS, Medical Aspects of the Persistent Vegetative State. N Engl J Med 1994: 330:1499-1508.

To an observer, and especially to a loved one, these behaviors might suggest awareness, when in fact they are reflexive and not the product of purposeful behavior. Id. In the case of a traumatic brain injury, a vegetative state is characterized as “persistent” after one month and “permanent” after one year. Laureys S., Owen A., Schiff N., Brain Function in Coma, Vegetative State, and Related Disorders. The Lancet Neurology 2004: 537-546.

Awareness and Non-Economic Damages

A handful of courts across the country have grappled with how to ' or whether to ' award non-economic damages to a plaintiff in a coma or vegetative state.

At the outset, it should be noted that different states have reached different conclusions as to whether pain and suffering and loss of enjoyment of life constitute separate categories of damages. See McDougald v. Garber, 536 N.E.2d 372 (N.Y. 1989) (declining to create separate categories); Mariner v. Marsden, 610 P.2d 6 (Wyo. 1980) (finding that loss of enjoyment of life constitutes a separate category of damages). A particular jurisdiction's existing law on this issue has important implications in the case of a comatose or vegetative plaintiff. See Eyoma v. Falco, 589 A.2d 653 (N.J. App. Div. 1991) (finding that awareness is a prerequisite to recovery for pain and suffering, but not to recovery for loss of enjoyment of life).

An illustrative case is McDougald v. Garber, in which New York's highest court, the New York Court of Appeals, noted that “recovery for noneconomic losses such as pain and suffering and loss of enjoyment of life rests on 'the legal fiction that money damages can compensate for a victim's injury.'” The court went on to explain that its “willingness to indulge this fiction comes to an end, however, when it ceases to serve the compensatory goals of tort recovery.” The New York Court of Appeals ultimately held that “cognitive awareness is a prerequisite to recovery for loss of enjoyment of life.”

The McDougald court's rule ' that cognitive awareness is a prerequisite to recovery for loss of enjoyment of life ' seems straightforward enough. In issuing its ruling, however, the court also seemed mindful of the practical difficulties in actually applying a bright-line rule, and hedged the scope of its holding:

We do not go so far, however, as to require the fact-finder to sort out varying degrees of cognition and determine at what level a particular deprivation can be fully appreciated. With respect to pain and suffering, the trial court charged simply that there must be “some level of awareness” in order for plaintiff to recover. We think that this is an appropriate standard for all aspects of non-pecuniary loss. No doubt the standard ignores analytically relevant levels of cognition, but we resist the desire for analytical purity in favor of simplicity. A more complex instruction might give the appearance of greater precision but, given the limits of our understanding of the human mind, it would in reality lead only to greater speculation.

The McDougald court was, perhaps understandably, reluctant to place the burden of assessing awareness on courts. In doing so, it left the issue of whether sufficient evidence of awareness to warrant an award of non-economic damages existed in the hands of the jury. Subsequent New York courts have indeed deferred to juries' judgments. For example, in Walsh v. Staten Island Obstetrics & Gynecology Associates, P.C., 193 A.D.2d 672 (N.Y. App. Div. 2d Dept. 1993), the court relied on the McDougald ruling to uphold an award of non-economic damages to the estate of a deceased infant who had been in a vegetative state throughout his life. In doing so, the court stated, “[A]lthough the infant was in a vegetative state, he cried when he received a painful stimuli, and smiled and laughed at pleasurable stimuli. Therefore, the infant clearly had some level of awareness.”

The Walsh decision demonstrates that even where case law establishes awareness as a prerequisite to recovery for non-economic damages, the criteria for evaluating awareness, and whether it has been sufficiently proven, are critical. It is notable that the behaviors identified by the Walsh court as evidence of awareness are in fact identified by medical professionals as not necessarily indicative of such. Multi-Society Task Force on PVS, Medical Aspects of the Persistent Vegetative State. N Engl J Med 1994; 330:1499-1508.

Similarly, in Banks v. Sunrise Hosp., 120 Nev. 822 (2004), the Nevada Supreme Court upheld a jury's award of pain and suffering damages on behalf of a plaintiff in a permanent vegetative state, where a witness identified as the plaintiff's nurse testified that the plaintiff would “occasionally smile during a comedy show on television or when his family visited and had tears at times based on news and various exchanges with family members.” The Banks court held that such testimony was sufficient to provide the jury with a basis to find that the plaintiff had some level of awareness, notwithstanding the fact that the defendant produced expert testimony that, given the plaintiff's injuries, he was not able to respond to his environment. By contrast, in Cominsky v. Donovan, 846 A.2d 1256 (Pa. Super. 2004), the Pennsylvania Superior Court held that the testimony of family members who observed the decedent in a vegetative state and believed she was experiencing pain was incompetent and insufficient to establish that she was sufficiently aware to experience pain and suffering. The Cominsky court went on to hold that, in order to establish that a decedent was sufficiently aware to experience pain and suffering in a vegetative state, a plaintiff must present expert testimony to that effect.

Conclusion

The foregoing discussion illustrates just some of the medical and legal issues that are implicated when alleged medical negligence has resulted in a plaintiff being in a coma or vegetative state. Given the complexity of these issues, they are best addressed at the outset of litigation, rather than placed on the back-burner until trial.

From a defense perspective, regardless of whether a plaintiff will be required to prove awareness by way of expert opinion, early expert retention to address the issue of awareness on behalf of the defense is critical. In many jurisdictions, the fact-finder will be called upon to make a decision about another person's level of consciousness. In making this determination, they may be confronted with testimony from family members describing behaviors that may be suggestive of awareness. To counter such testimony, it is vital to clearly set out the medical facts to provide the fact-finder with the proper context to make a decision.

Moreover, early recognition of the medical and legal issues could, depending on existing law in the jurisdiction, provide a basis to request more specific jury instructions on these issues than most states' standard instructions are likely to provide.

Finally, a well-developed record taking those issues into account could provide a defendant with grounds to seek exclusion of certain evidence or preclusion of certain categories of damages altogether.

Roseann Lynn Brenner, a member of this newsletter's Board of Editors, is a partner at Goldfein & Joseph, P.C. in Philadelphia. Gary M. Every is an associate at the firm.

In most medical negligence cases, the most difficult damages for an attorney to forecast are non-economic ones such as pain and suffering, and loss of enjoyment of life. This difficulty arises from the nature of the damages themselves ' pain, suffering and enjoyment are inherently subjective experiences.

The criteria that a jury will use to evaluate those damages do not make the attorney's assessment any easier. In Pennsylvania, for example, with respect to pain and suffering, juries are simply instructed that “the plaintiff is entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience and distress ' ” and with respect to loss of enjoyment of life, juries are instructed that “ plaintiff is entitled to be fairly and adequately compensated for the loss of his/her ability to enjoy any of the pleasures of life.” Pa. SSJI Civ. 4th Ed. 7.130; 14.170.

In assessing non-economic damages available to a particular plaintiff, attorneys are reduced to relying on imprecise assessments of how the plaintiff's case will play out at trial: How compellingly will the plaintiff or family members testify about the injuries? How skilled will the plaintiff's attorney be in arousing jurors' sympathy? What is the historic behavior of previous juries in the jurisdiction?

As difficult as non-economic damages are to predict, that task becomes more difficult when alleged medical negligence has placed a plaintiff or decedent in a coma or vegetative state. Such an outcome introduces unique medical and legal issues into the valuation of a plaintiff's claims for non-economic damages. From a defense perspective, early identification of these issues by counsel can be critical in identifying and narrowing the scope of non-economic damages ultimately recoverable by the plaintiff at trial.

Medical Terminology

Among laypersons, the terms “coma” and “vegetative state” may often be used interchangeably, when in fact, the terms have distinct clinical definitions.

A coma is characterized by the “absence of arousal and thus also of consciousness.” A patient in a coma lies with the eyes closed and cannot be aroused. This patient has no awareness of self or surroundings, and cannot be stimulated to produce spontaneous periods of wakefulness or eye-opening. Laureys S., Owen A. and Schiff N., Brain Function in Coma, Vegetative State, and Related Disorders. The Lancet Neurology 2004: 537-546.

By contrast, patients in a vegetative state will display cycles of eye-opening and -closing, giving the appearance of sleep-wake cycles. Monti, M., Laureys S., Owen A., The Vegetative State. 2010 BMJ; 341:c3765. However, such a patient will have a complete lack of awareness of the self or the environment. Id. A patient in a vegetative state will have complete or partial preservation of hypothalamic and brain-stem autonomic functions. Id . Accordingly, a patient in a vegetative state may appear to have periods of sleep and wakefulness, may move the trunk or limbs, may smile, shed tears, utter grunts, moan or scream. Multi-Society Task Force on PVS, Medical Aspects of the Persistent Vegetative State. N Engl J Med 1994: 330:1499-1508.

To an observer, and especially to a loved one, these behaviors might suggest awareness, when in fact they are reflexive and not the product of purposeful behavior. Id. In the case of a traumatic brain injury, a vegetative state is characterized as “persistent” after one month and “permanent” after one year. Laureys S., Owen A., Schiff N., Brain Function in Coma, Vegetative State, and Related Disorders. The Lancet Neurology 2004: 537-546.

Awareness and Non-Economic Damages

A handful of courts across the country have grappled with how to ' or whether to ' award non-economic damages to a plaintiff in a coma or vegetative state.

At the outset, it should be noted that different states have reached different conclusions as to whether pain and suffering and loss of enjoyment of life constitute separate categories of damages. See McDougald v. Garber , 536 N.E.2d 372 (N.Y. 1989) (declining to create separate categories); Mariner v. Marsden , 610 P.2d 6 (Wyo. 1980) (finding that loss of enjoyment of life constitutes a separate category of damages). A particular jurisdiction's existing law on this issue has important implications in the case of a comatose or vegetative plaintiff. See Eyoma v. Falco , 589 A.2d 653 (N.J. App. Div. 1991) (finding that awareness is a prerequisite to recovery for pain and suffering, but not to recovery for loss of enjoyment of life).

An illustrative case is McDougald v. Garber, in which New York's highest court, the New York Court of Appeals, noted that “recovery for noneconomic losses such as pain and suffering and loss of enjoyment of life rests on 'the legal fiction that money damages can compensate for a victim's injury.'” The court went on to explain that its “willingness to indulge this fiction comes to an end, however, when it ceases to serve the compensatory goals of tort recovery.” The New York Court of Appeals ultimately held that “cognitive awareness is a prerequisite to recovery for loss of enjoyment of life.”

The McDougald court's rule ' that cognitive awareness is a prerequisite to recovery for loss of enjoyment of life ' seems straightforward enough. In issuing its ruling, however, the court also seemed mindful of the practical difficulties in actually applying a bright-line rule, and hedged the scope of its holding:

We do not go so far, however, as to require the fact-finder to sort out varying degrees of cognition and determine at what level a particular deprivation can be fully appreciated. With respect to pain and suffering, the trial court charged simply that there must be “some level of awareness” in order for plaintiff to recover. We think that this is an appropriate standard for all aspects of non-pecuniary loss. No doubt the standard ignores analytically relevant levels of cognition, but we resist the desire for analytical purity in favor of simplicity. A more complex instruction might give the appearance of greater precision but, given the limits of our understanding of the human mind, it would in reality lead only to greater speculation.

The McDougald court was, perhaps understandably, reluctant to place the burden of assessing awareness on courts. In doing so, it left the issue of whether sufficient evidence of awareness to warrant an award of non-economic damages existed in the hands of the jury. Subsequent New York courts have indeed deferred to juries' judgments. For example, in Walsh v. Staten Island Obstetrics & Gynecology Associates, P.C. , 193 A.D.2d 672 (N.Y. App. Div. 2d Dept. 1993), the court relied on the McDougald ruling to uphold an award of non-economic damages to the estate of a deceased infant who had been in a vegetative state throughout his life. In doing so, the court stated, “[A]lthough the infant was in a vegetative state, he cried when he received a painful stimuli, and smiled and laughed at pleasurable stimuli. Therefore, the infant clearly had some level of awareness.”

The Walsh decision demonstrates that even where case law establishes awareness as a prerequisite to recovery for non-economic damages, the criteria for evaluating awareness, and whether it has been sufficiently proven, are critical. It is notable that the behaviors identified by the Walsh court as evidence of awareness are in fact identified by medical professionals as not necessarily indicative of such. Multi-Society Task Force on PVS, Medical Aspects of the Persistent Vegetative State. N Engl J Med 1994; 330:1499-1508.

Similarly, in Banks v. Sunrise Hosp. , 120 Nev. 822 (2004), the Nevada Supreme Court upheld a jury's award of pain and suffering damages on behalf of a plaintiff in a permanent vegetative state, where a witness identified as the plaintiff's nurse testified that the plaintiff would “occasionally smile during a comedy show on television or when his family visited and had tears at times based on news and various exchanges with family members.” The Banks court held that such testimony was sufficient to provide the jury with a basis to find that the plaintiff had some level of awareness, notwithstanding the fact that the defendant produced expert testimony that, given the plaintiff's injuries, he was not able to respond to his environment. By contrast, in Cominsky v. Donovan , 846 A.2d 1256 (Pa. Super. 2004), the Pennsylvania Superior Court held that the testimony of family members who observed the decedent in a vegetative state and believed she was experiencing pain was incompetent and insufficient to establish that she was sufficiently aware to experience pain and suffering. The Cominsky court went on to hold that, in order to establish that a decedent was sufficiently aware to experience pain and suffering in a vegetative state, a plaintiff must present expert testimony to that effect.

Conclusion

The foregoing discussion illustrates just some of the medical and legal issues that are implicated when alleged medical negligence has resulted in a plaintiff being in a coma or vegetative state. Given the complexity of these issues, they are best addressed at the outset of litigation, rather than placed on the back-burner until trial.

From a defense perspective, regardless of whether a plaintiff will be required to prove awareness by way of expert opinion, early expert retention to address the issue of awareness on behalf of the defense is critical. In many jurisdictions, the fact-finder will be called upon to make a decision about another person's level of consciousness. In making this determination, they may be confronted with testimony from family members describing behaviors that may be suggestive of awareness. To counter such testimony, it is vital to clearly set out the medical facts to provide the fact-finder with the proper context to make a decision.

Moreover, early recognition of the medical and legal issues could, depending on existing law in the jurisdiction, provide a basis to request more specific jury instructions on these issues than most states' standard instructions are likely to provide.

Finally, a well-developed record taking those issues into account could provide a defendant with grounds to seek exclusion of certain evidence or preclusion of certain categories of damages altogether.

Roseann Lynn Brenner, a member of this newsletter's Board of Editors, is a partner at Goldfein & Joseph, P.C. in Philadelphia. Gary M. Every is an associate at the firm.