Pain and Suffering Reports
Introduction to Pain and Suffering Reports
The legal nurse consultant (LNC) prepares several types of work products for the attorney-client, including chronologies, case analyses, medical cost projections, and life care plans. Attorneys use the Federal Rules of Evidence (FRE) 1006 report (also known as a “pain and suffering” report) to summarize their client’s medical records. The purpose is to highlight the client’s injuries, treatments, and outcomes of the medical care in response to their injuries. There are myriad ways to prepare a pain and suffering report; this article is an introduction to the purpose and process of preparing such a report.
WHAT IS PAIN AND SUFFERING?
Cornell Law School defines pain and suffering as “the physical discomfort and emotional distress that are compensable as noneconomic damages. It refers to the pain, discomfort, anguish, inconvenience, and emotional trauma that accompanies an injury” (Cornell Law School, para 1, 2020). In some states, this also includes the loss of enjoyment of life.
Individuals sustain injuries in a variety of ways, including motor vehicle accidents, slip/fall events, recreational misadventures, and medical malpractice. Some studies suggest that medical errors may account for as many as 251,000 deaths per year in the United States (Anderson & Abrahamson, 2017). Personal injury and medical malpractice claims fall under the umbrella of tort law. A tort is “an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability” (Cornell Law School, para 1, 2020). Tort law protects and compensates people who have been injured by this negligence.
FEDERAL RULES OF EVIDENCE 1006
Frequently, injuries lead to a lifetime of treatment, surgical and interventional procedures, pain, suffering, and even death. Medical records for such cases can be voluminous. Federal Rules of Evidence 1006 recognizes this and states, the “proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court” (Federal Rules of Evidence, 2022, para 1). Thus, an attorney will retain the LNC to summarize the plaintiff ’s medical records in a concise and efficient report. The 1006 report is casually known as a “pain and suffering report.”
THE LEGAL NURSE CONSULTANT AS A FACT WITNESS
The LNC who prepares a pain and suffering report is considered a fact witness. A fact witness can be anyone who is knowledgeable of the facts of the case through direct participation or observation (Trial Laws, 2019). The LNC’s task is to summarize the plaintiff ’s medical records while educating the jury about the injuries and subsequent treatment.
Typically, a fact witness is not compensated for testimony while an expert witness is entitled to compensation for their participation and work on the case. In the instance of FRE 1006 reports mentioned above, Iyer describes the role of the LNC as an “expert fact witness” (2003). Iyer clarifies that the expert fact witness can testify about the pain and suffering documented in the medical records (2003). In this situation, the LNC is using their expertise to explain the facts of the case with a focus on the plaintiff ’s injuries and treatment.
It must be stated the expert fact witness is not offering an opinion on standards of care, the delivery of care, or identifying breaches in the standard of care. The role of the expert fact witness is to summarize the medical records without proffering an opinion of the care provided to the plaintiff.
PURPOSE OF A PAIN AND SUFFERING REPORT
By the time the attorney retains the LNC to author a pain and suffering report, the attorney already has a theory for the case and has developed strategies to present the case to the jury. The pain and suffering report can be a significant investment for the attorney because of the amount of time it takes for the expert fact witness to review the records and prepare the report.
The attorney uses the LNC’s report to provide the jury with an account of the plaintiff ’s injuries and subsequent treatment. In essence, the LNC is telling the plaintiff ’s story because frequently, the plaintiff is unable to speak for themselves because of their injuries. The attorney hopes to persuade the injury to agree with their assessment of the plaintiff ’s non-economic damages. Pain and suffering reports are especially useful for the plaintiff who has endured a catastrophic injury. Such circumstances often cause the plaintiff to sustain lifelong complications and even death.
The LNC is summarizing the medical records in their entirety. These records are often voluminous. (This author has summarized medical records of more than 30,000 pages.) Thus, the expert fact witness must have excellent verbal and written communication skills. Nurses are known for their ability to educate patients and their families. When preparing a pain and suffering report, the LNC is using the report to educate the jury about frequently complex medical diagnoses and procedures.
ORGANIZATION OF THE PAIN AND SUFFERING REPORT
As stated earlier, there are many ways to approach the preparation of this report. The LNC will want to make sure the contents of the medical record are summarized in a clear and organized manner. A sensible start to the pain and suffering report begins with a list of all the medical records the LNC reviewed. The list should state the providing entity, dates included in the medical records, and the number of pages in each file.
- Community Hospital, May 15, 2020-September 29, 2020 (3,400 pages)
- Rehabilitation Center, September 29, 2020-December 12, 2020 (7,100 pages)
- Hospice Home Care, December 12, 2020-January 2, 2021 (450 pages)
Include a list of the plaintiff ’s past medical history (PMH) and past surgical history (PSH) followed by a paragraph that describes the plaintiff ’s condition prior to the injury or event. This is an opportunity for the jury to learn about the plaintiff at a more personal level.
“Mr. George Pepper was a 57-year-old man on May 15, 2020. He was employed full-time as a computer software engineer. Mr. Pepper was married to his wife of 31 years, Mary Beth. They lived in a two-story home with a large yard. Mr. Pepper was affectionately known as ‘Mr. Fix-it’ in their neighborhood. The Peppers had three children and welcomed their first grandchild two weeks before he was injured in the motor vehicle accident.”
Following this introduction, the LNC will want to provide a summary of events in chronological order. Within the contents of the summary, the expert fact witness will explain the injuries and treatments. For example: “Mr. Pepper suffered a cardiac arrest and required cardiopulmonary resuscitation.” This is when the expert fact witness explains a cardiac arrest and the activities involved in resuscitation.
“The doctor inserted a breathing tube during the Code Blue. (This is known as endotracheal intubation in which the doctor inserted a tube down Mr. Pepper’s mouth, into his trachea. The trachea is the large airway from the mouth to the lungs, also known as the “windpipe.” The breathing tube is used to establish and maintain an open airway.)
The LNC may want to use an illustration of intubation to further explain the procedure. The LNC should explain every injury and procedure in “plain English”. The attorney uses the LNCs report to provide the jury with an account of the plaintiff’s injuries and subsequent treatment. In essence, the LNC is telling the plaintiff’s story because frequently, the plaintiff is unable to speak for themselves because of their injuries.
“Because Mr. Pepper was intubated, he required suctioning of his endotracheal tube.” (Suctioning involves inserting a catheter into the tube, then withdrawing it while applying suction to remove sputum or other secretions that are in the lungs. Suctioning can cause gagging and coughing.)
Did the plaintiff require a urinary catheter or arterial blood gases? Did the plaintiff need blood cultures? A PICC line? Dialysis? The LNC should describe these procedures in detail so that the jury understands as laypeople what happened during the course of hospitalization and treatment.
Many times, healthcare clinicians inflict pain (noxious stimuli) to determine a patient’s level of consciousness. This can be a hard concept for the layperson to understand. The LNC must explain to the jury how frequently the plaintiff endured the administration of noxious stimuli.
Many studies suggest that even when sedated and receiving analgesia, patients still feel pain. Indeed, sedation may mask uncontrolled pain for intubated patients and prevent them from communicating this to a nurse (Clukey, et al., 2014). This is important information for the jury to understand.
COMPELLING DATA TO INCLUDE
While going through the medical records, the expert fact witness will want to search for information that describes the plaintiff ’s condition.
Some things to consider:
- Pain scores
- Pain medications
- Reports of depression or despair
- Episodes of crying, agitation, or combativeness
Tables and charts can be helpful. It is not necessary to state every administration of morphine, but using a table is a convenient way to inform the jury of the plaintiff ’s pain.
Figure 1: Sample Table
A PICTURE IS WORTH A THOUSAND WORDS
Photographs can be a powerful way to illustrate the plaintiff ’s injuries. Family members often take pictures of their loved one during a hospitalization. The LNC should ask the attorney to provide these photographs if they exist. A picture of the plaintiff intubated, on a ventilator with an arterial line, chest tubes, a nasogastric tube, and in wrist restraints will have more of an impact than the words alone.
Hospital photographs are also useful. Wound care providers frequently take pictures. If a pressure injury starts out as a stage one but becomes a stage four, photographs that document the progression of the wound can have a profound impact on the jury’s understanding of the plaintiff ’s suffering.
CONCLUSION OF THE PAIN AND SUFFERING REPORT
If the plaintiff died, a description of their death is necessary. The LNC will want to explain to the jury what occurred.
“Mr. Pepper’s family decided on comfort care only and the discontinuation of the Impella. Mr. Pepper’s nurse medicated him with intravenous Ativan and a fentanyl infusion. At 12:39 p.m., all vasoactive medications (medications for blood pressure) were discontinued and the Impella device was turned off. Mr. Pepper died at 12:54 p.m. with his family at his side. The hospital chaplain was present to provide emotional support for the family.”
The conclusion of the pain and suffering report is an opportunity to review all the plaintiff ’s injuries and the medical interventions that took place. This list might be extensive; here is a brief example:
1. Endotracheal intubation: Mr. Pepper was intubated for 30 days; even after successful extubation he required a tracheostomy and was never liberated from the ventilator…
2. Bilateral wrist restraints: The medical record reflected Mr. Pepper’s emotional disturbance to his situation by attempting to pull at and remove his medical devices. His wrists were restrained for 68 days. Restricted movement causes both emotional and physical distress. Mr. Pepper was not able to adjust his own position or able to perform something as minor as scratching an itch on his nose. Restraints can be frightening and contribute to a person’s loss of control.
3. Oral gastric tube (OGT): This tube is inserted into the mouth and passed into the stomach for feeding, delivery of medications, and occasional gastric lavage. In an intubated patient, such as Mr. Pepper, this tube is generally secured to the ETT, creating an object that is approximately 1.5″ in diameter within the patient’s mouth. An OGT is only meant to be used for a short period of time (generally less than two weeks) because it can cause trauma, infections, and ulcerations of the mouth, throat, esophagus, and stomach. Mr. Pepper’s tube remained in place for 33 days. He sustained injuries related to this procedure, including a bleeding ulceration of his esophagus.
The LNC prepares several types of reports for the attorney-client. The pain and suffering report is an opportunity for the LNC to bring nursing expertise along with a comprehensive understanding of the plaintiff ’s condition to inform the jury of the non-economic damages the plaintiff endured.
Anderson, J. G., and Abrahamson, K. (2017). Your Health Care May Kill You: Medical Errors. Studies in Health Technologies and Informatics, 234:13-17. PMID: 28186008.
Cornell Law School (2020). Pain and suffering. Retrieved from https://www.law.cornell.edu/wex/pain_and_suffering
Cornell Law School (2020). Tort law. Retrieved from https://www.law.cornell.edu/wex/tort
Clukey L., Weyant R. A., Roberts, M., and Henderson A. Discovery of unexpected pain in intubated and sedated patients. Am J Crit Care. 2014 May;23(3):216-20. doi: 10.4037/ajcc2014943. PMID: 24786809.
Federal Rules of Evidence (2022). Retrieved from https://www.rulesofevidence.org/article-x/rule-1006/
Iyer, P.W. (2003). Medical-Legal Aspects of Pain and Suffering. Lawyers and Judges Publishing Company, Inc. (p. 347).
Trial Laws (2019). Difference between an expert witness and a regular witness. Retrieved from https://trial.laws.com/witness/expert-witness-vs-regular-witness
Lisa Mancuso, BSN, RN, CCRN, CLCP, LNCC
A L W A Y S O N P O I N T!