In handling Georgia wrongful death cases in which the victim had very little conscious survival time, we often have to address the question whether to make a claim for pain and suffering before death.

In Georgia, wrongful death cases may include two separate claims.

First is the wrongful death claim for “full value of the life” which belongs to family members designated by O.C.G.A. § 51-4-2 – spouse, children or parents. Recovery for the “full value of the life” includes both economic and intangible components and is not subject to claim of the decedent’s creditors and medical providers.

Second is a “survival action” authorized by O.C.G.A. § 9-2-41 and brought by the administrator or executor of the decedent’s estate for pain and suffering, medical expense and funeral expenses. Any recovery under this claim is subject to claims of creditors.

In many of the cases we see, particularly truck crashes, the decedent loses consciousness rather quickly and survival time is short. However, if a credible claim for pain and suffering can be made, it can add substantial value to a jury verdict.

Moreover, the estate’s claim may be a necessary piece of the puzzle in order to make a claim for punitive damages based upon months or years of the corporation’s independent negligence in hiring, training and supervising employees extending far beyond the momentary negligence of an employee, e.g., a truck driver, who should never have been entrusted with an 80,000 pound tractor trailer in the first place.

This is especially important when a corporation admits ordinary negligence on the part of the employee and admits that the employee was in course and scope of employment. Some judges apparently do not  understand or care how often the root cause of a tragic crash lies in management practices that turn a blind eye to safety. Such judges have created precedents exclude evidence of mismanagement leading to the crash in that scenario.

But if there is a claim for punitive damages for the company’s patterns and practices that show conscious disregard for safety, evidence of unsafe management practice may be admissible. Because punitive damages are not recoverable in wrongful death cases in Georgia, the survival action gains greater importance. Thus, the pain and suffering claim that might in other circumstances be superfluous becomes a key element in bringing corporate misconduct to light and obtaining full justice.

  1. Mental pain and suffering in before and during a fatal crash.

In Georgia, a jury may infer consciousness of impending death, and thus mental pain and suffering, from evidence immediately prior to impact or following her injury. Department of Transp. v. Dupree, 256 Ga.App. 668, 570 S.E.2d 1(2002).

During a crash, even if the survival time before death was extremely brief, jurors may reasonably infer that the victim experienced both severe physical pain and fear of impending death in those moments. That alone can be sufficient to support a genuine issue of material fact for jury determination.

In Walker v. Daniels, 200 Ga.App. 150, 156 (3), 407 S.E.2d 70 76 (1991), the defense contended that the decedent could not have had any consciousness between injury and death due to a blunt impact to his neck in the diving area of a university swimming pool.  However, there was evidence from which a jury could have determined that he either was or not conscious when he inhaled water that was the immediate cause of drowning. Thus, the court held, “Under this evidence, questions concerning the decedent’s pain and suffering were for the jury to decide.”

2. Physician’s testimony about presuming pain despite apparent absence of consciousness.

Treating physicians may testify that they treat for pain even when a patient appears unconscious, and are careful talking about a comatose patient because so many patients wake up and report hearing conversations while everyone though they were comatose. Such medical testimony can be crucial in supporting a claim for pain and suffering despite a patient’s unresponsiveness.

The Reference Manual on Scientific Testimony recognizes that “treating physicians are generally permitted to testify” and “treating physicians’ testimony is often given greater weight than testimony from physicians who have not examined the patient.” Reference Manual on Scientific Testimony 449, n. 41(2d Ed.).

“A physician may be asked to testify about the physical condition of a plaintiff, diagnosis, treatment, causes of the plaintiff’s condition, or prognosis.” Id. at 439.  The methodology and data that treating physicians reasonably consider good grounds for opinions or inferences in medical practice are sufficiently reliable to form the basis of a qualified medical expert’s testimony in court. Whether a patient under his direct care experienced pain before her death is quintessentially a matter within the scope of a treating physician’s testimony.

It is well established that the opinion, diagnosis, and medical evidence of treating physicians should be accorded substantial weight unless “good cause” is shown for not doing so.  Treating physicians can generally “express an opinion as to ‘the cause of any medical condition presented in a patient, the diagnosis, the prognosis and the extent of the disability, if any, caused by the injury.”

See, e.g., Cohen v. Lockwood, 2004 WL 763961 (D.Kan. 2004) (unpublished opinion); Zanowic v. Ashcroft, 2002 WL 373229, 52 Fed.R.Serv.3d 702 (S.D.N.Y. 2002) (unpublished opinion) at *2(quoting Shapardon v. West Beach Estates, 172 F.R.D. 415, 416 (D.Haw. 1997); Laski v. Bellwood, 132 F.3d 33 (6th Cir.1997)(trial court abused its discretion by not permitting treating physicians to testify about cause of plaintiff’s back pain); Mangla v. Univ. of Rochester, 168 F.R.D. 137, 139 (W.D.N.Y. 1996); Santoro v. Signature Const., Inc., 2002 WL 31059292 (S.D.N.Y., 2002)  (unpublished opinion). See also, Pittman v. ANR Freight Systems, Inc., 2002 WL 2026257 (6th Cir., 2002) (unpublished opinion); McGregor v. Paul Revere Life Ins. Co., 2004 WL 68692 (9th Cir., 2004).

In a case we successfully handled recently, the attending physician who supervised the victim’s care from her arrival in the emergency room until her death gave expert testimony that in the hospital she was moaning, breathing on her own, and that he believed she experienced pain during her hospitalization until the time of death.

We contended that expert medical testimony was sufficient to establish a genuine issue of material fact for jury determination, and to require denial of summary judgment. The affidavit from Defendants’ specially retained medical expert did no more than set up an opposing argument to present to the jury.

There were no reported Georgia decision directly on point. However, decisions by courts in other jurisdictions with laws consistent with Georgia law are helpful. In Kretek v. Board of Commissioners of Luna County, 2014 WL 11621697 D. New Mexico, decided Feb. 26, 2014), testimony of the treating physician was equivocal about the nature and degree of suffering the patient may have experience while comatose prior to death. Thus, the court denied a motion in limine to exclude the physician’s testimony on this issue.

Thus, if the potential for financial recovery far exceeds any medical liens or creditor claims, it may be worthwhile to raise a claim for pain and suffering even if the decedent’s survival time was brief. Other times, if the potential for recovery is more limited and creditors’ potential claims are substantial, it may not be worth it.

Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident LawHe is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.