Proving Pain and Suffering Secondary to Pressure Sore/Decubitus Ulcer
In our cases, defense counsel regularly attempts to argue that the nursing home patient who is unable to communicate their pain complaints directly to the nursing home staff cannot make a claim for conscious pain and suffering as a result of their pressure sore/decubitus ulcer. The inability to recover for this category of damages could significantly affect the awardable recovery under Maryland's Medical Malpractice Noneconomic Damages Cap.
Under Maryland law, the evidence necessary to demonstrate conscious pain and suffering will generally require expert testimony. See Ory v. Libersky, 40 Md. App. 151, 162 (1978). The Maryland Court of Special Appeals recently held that Plaintiffs are required to produce evidence from which a reasonable inference could be drawn that the injured party experienced conscious pain and suffering. Freed v. D.R.D. Pool Service, Inc., (slip opinion filed on July 6, 2009). Importantly, the Freed court appears to have rejected the requirement that the Plaintiffs produce direct evidence of conscious pain and suffering. It should be noted, however, this opinion from Maryland's intermediary appellate court is potentially subject to further review by the Maryland Court of Appeals, the state's highest court.
The medical records oftentimes are silent as to information regarding pain secondary to wounds. It is therefore necessary to make sure that these issues are discussed early on with the family members in order to determine if anyone witnessed the Plaintiff demonstrating signs of pain when he or she was receiving wound care or being repositioned. Such eyewitness testimony provided by family members can be considered by the medical experts in support of an opinion regarding conscious pain and suffering.
The lesson to be learned is to make this analysis part of your checklist of issues to discuss with families when screening and litigating pressure sore/decubitus ulcer cases. If you wait until the expert's deposition to evaluate this issue and lay the proper foundation, it may be too late.
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