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Part VI of damages in personal injury: Brain injury or death for a motorcyclist in a motorcycle versus car or truck accident.

Photograph: image of feet from an unconscious person laying in front of a car.

Let’s get concrete for just a minute.

Some of this “damages in personal injury” material is kind of abstract.  Let’s bring it down to earth with an actual case, involving a tragic, fatal motorcycle accident.

Following-up on my damages blog Part V [https://www.jimsnyderlaw.com/blog/2018/11/21/what-are-damages-in-personal-injury-part-v-pain-and-suffering-and-loss-of-enjoyment-of-life], how does the injury lawyer establish a decedent’s pain and suffering and loss of enjoyment of life with a trial jury if there was a traumatic incident that led to death?

Consider this (very unfortunate, sad) fact pattern:  A motorcyclist going straight with the right-of-way strikes the passenger side of an automobile making a left turn from the opposite lane crossing directly across the path of the motorcycle.  The driver of the automobile testifies at deposition: “I never saw the motorcycle before I turned.”  That’s right, it’s negligence as a matter of law as against the car driver.

Now for damages.  The motorcyclist was thrown 75 feet in the air, landing on his head.  He is found face up, and when his helmet is removed, he is breathing, but his pupils are dilated and he his unresponsive to commands.  He moans very slightly, and only every 30 seconds or so.  He is taken to the hospital, where he is completely unresponsive but has a pulse for an hour before he is pronounced dead.

What are his pain and suffering damages?  How can you tell?

As discussed in damages blog Part V, a key issue -- and potential obstacle -- relating to pain and suffering and loss of enjoyment of life damages involves that portion of both charges that requires establishment by plaintiff of consciousness and awareness of the same, as follows:

Conscious pain and suffering means pain and suffering of which there was some level of awareness by plaintiff (decedent).  [P.J.I. 2:280]

- and -

[A] person suffers the loss of enjoyment of life only if the person is aware, at some level, of the loss that (he, she) has suffered. [P.J.I. 2:280.1]

In a head-trauma, brain injury setting like that of our unfortunate motorcyclist, loss of consciousness -- temporary or permanent -- raises the question of whether and to what extent the injured party is conscious “at some level” of pain and suffering, per P.J.I. 2:280.  In certain circumstances, especially with head injuries, this can be a difficult problem of proof, as lay people (jurors) think of unconsciousness idiomatically as being “totally out of it” (insurance company lawyers love this misunderstanding).    

However, medical science and literature does not share that simple, “one-size-fits-all” definition, and it is incumbent upon the plaintiff’s lawyer to educate the jury that there are different levels of consciousness that can be quantitatively measured by medical professionals, and that the generic term “loss of consciousness” does not mean complete loss of awareness by the injured party.

One standard, objective means of measurement of consciousness is the Glasgow Coma Scale; find it at:

 http://www.glasgowcomascale.org/

The Glasgow Coma Scale measures multiple, objective levels of impairment of consciousness.  It is routinely measured where a patient is found not conscious, and it measures up to 18 different criteria on zero to 6 scale.  The higher the scale score, the greater the level of underlying consciousness is -- which may be critical to a pain and suffering analysis in a brain injury case.  It is therefore imperative to review emergency and ambulance records, hospital emergency room records, etc., to find the plaintiff (or plaintiff’s decedent’s) Glasgow Coma Score, or “GCS.”

In addition to the Glasgow Coma Scale, there is another objective test utilized by medical professionals to measure level of consciousness, the Rancho Los Amigos Scale (“RLAS”) or Rancho Los Amigos Levels of Cognitive Functioning Scale (“LOCF”).  This test, often used in conjunction with the Glasgow Coma Scale, assesses the cognition of people who have sustained a closed head and/or traumatic brain injury, and, as set forth in literature from Rancho Los Amigos National Rehabilitation Center in California, “the eight levels describe the patterns or stages of recovery typically seen after a brain injury.”

A description of this “Rancho Scale” can be found at:

http://file.lacounty.gov/SDSInter/dhs/218115_RLOCFOriginalFamilyGuide-English.pdf

The deceased motorcyclist in our fact pattern was, by objective measure that would be found in his ambulance report and hospital records, conscious at some level sufficient to establish pain and suffering damages to a jury (or an insurance claims adjuster during settlement discussions). 

Courts in New York State have held that an award for conscious pain and suffering for a relatively brief period between injury and death depends upon the degree of consciousness, severity of pain, and apprehension of impending death, along with the duration of the suffering.  Jones v. Simeone, 112 A.D.2d 772 (4th Dept. 1985) [Because decedent was conscious for some period, experienced severe pain due to head injuries, fractures, and a severed artery, the jury's refusal to award damages for conscious pain and suffering was not based on fair interpretation of the evidence]. 

Pain and suffering damages may also include pre-impact terror in cases where the decedent, such as the motorcycle rider in our fact pattern, was aware he or she was about to endure grave injury or death.  Lang v. Bouju, 245 A.D.2d 1000 (3d Dept. 1977).

We’ll talk about pre-impact terror more in our next blog, and the general damages concept of “emotional distress and the physical consequences thereof.”  It is related to our on-going discussions about pain and suffering and loss of enjoyment of life, but different. 

We’ll explain in our damages blog, Part VII.

James Snyder