It is tragic when a family loses a loved one due to the negligence of another individual or corporation. Many times the death occurs immediately following a traumatic event and the person did not suffer any pain and suffering between the original injury and the death. However, if they did then families are entitled to be paid for the decedent’s conscious pain and suffering from the time of the first injury and their death. In Michigan, even if the time of the pain and suffering is short, families are still entitled to go after the defendant for these damages. The standard in Michigan is that if death or unconsciousness did not occur instantaneously with the injury, the Plaintiff is entitled to have a judge or a jury hear evidence regarding these damages and their monetary equivalent.
Attorneys who represent the estate of the individual killed due to negligence will make a claim for “conscious pain and suffering” so that a court can determine whether or not the decedent suffered in that time period between injury and death. The reason this is important is that compensation for conscious pain and suffering goes through the estate and NOT directly paid to those suffering loss. In reality, most courts will determine that there was no conscious pain and suffering to avoid compensation being probated through the courts, but it can certainly become an issue if there was a longer time period between the injury and when death occurred.
In other words, if there are any claims filed against the estate by creditors, any money awarded to compensate the victim for conscious pain and suffering can and should be used to pay those claims. You can imagine that this could pit creditors against the attorney for an estate who claims that there was NO conscious pain and suffering. This is often overlooked, but it is a really good idea to hire an attorney that knows the probate court process, how to handle these types of claims, and can make sure that there are no battles that could affect the proceeds available to family members under the Michigan wrongful death statute.
How Can We Measure Pain and Suffering?
“Conscious pain and suffering” includes pain, mental anguish, fear, shock, sorrow, anxiety, and hysteria. Proving conscious pain and suffering can be very difficult for the family as they will be forced to confront painful facts about how their loved one died. In order to support a claim for these damages, attorneys for the estate might support their claim with the following:
- Exclamations made by the victim after an accident or trauma
- Eyewitness testimony concerning the state of the victim
- Medical records and testimony describing the manner of death
- Forensic evidence describing how the person died and whether or not they would have been conscious after initial trauma
In Brown v. Oestman, the Michigan Supreme Court ruled that a victim’s family does not have to present evidence of an exclamation or pain or expert testimony that pain would result from trauma in order to recover damages for conscious pain and suffering. However, if a jury is hearing your case, they should have the entire picture of what may or may not have happened after an accident or trauma that eventually caused the death of your loved one. This gives them the opportunity to award a proper amount of damages for this pain and suffering.
This conscious pain and suffering can also be inferred from the nature of the trauma, accident or pain suffered by the victim before dying. Unfortunately there are many cases in Michigan where victims have suffered before dying and therefore are entitled to these damages, In one case, the evidence showed that a truck driver did not die instantly. Rather, he laid in his truck calling for help while he gradually suffocated. This allowed the court to award conscious pain and suffering damages. In another similar case, a truck driver appeared to by trying to regain control of his truck and there was an autopsy that stated he did not die instantly. Again, this allowed the court to draw an inference that the victim suffered pain after initial trauma and before death.
