Brad Pistotnik Law
Abogado El Toro

How do you prove conscious pain and suffering in a wrongful death claim that has a survival claim?

How do you prove conscious pain and suffering in a wrongful death claim that has a survival claim?

Kansas allows expert testimony to establish conscious pain and suffering in a survival action, but it may also be established by lay witness testimony. Smith v. Printup, 254 Kan. 315, 357-58, 866 P.2d 985, (1993); Gregory, 246 Kan. at 510; Leiker, 245 Kan. at 342-44.

When you have a loved one who has died it is sometimes difficult to determine and establish that they had conscious pain and suffering. Unlike Oklahoma where it is presumed that someone has pain before they die, Kansas makes the heirs provide sufficient evidence of conscious pain and suffering. In Pape v. Kansas Power & Light Co., 231 Kan. 441, 647 P.2d 320 (1982) the Kansas Supreme Court found that evidence of breathing and moaning was sufficient evidence to let the jury decide the appropriate amount of conscious pain and suffering damages. In the case of Leiker v. Gafford, 245 Kan. 325, 778 P.2d 823, (1989) the Kansas Supreme Court ruled that where there is inconsistent evidence the matter must be submitted to the trier of fact.

In Folks v. Kansas Power & Light Co., 243 Kan. 57, 755 P.2d 1319 (1988) where the Supreme Court held there was conflicting evidence on conscious pain and suffering since lay testimony indicated that Folks was breathing and making incoherent noises so it had to be submitted to the jury.

In Fudge v. City of Kansas City, 239 Kan. 369, the decedent was injured in a motor vehicle collision and died twenty days later. Several medical witnesses said he was unconscious, but the testimony of his wife saying he squeezed her fingers several times was sufficient to submit to the jury.

In Smith v. Printup, 254 Kan. 315, 866 P.2d 985 (1993) the Kansas Supreme Court again ruled that lay person testimony that the injured person, prior to death, was breathing erratically and appeared to have body movement presented conflicting testimony that was sufficient to submit to the jury.

At Brad Pistotnik Law are lawyers handle workers compensation cases involving death. We handle wrongful death cases from motor vehicle collisions and semi and tractor-trailer accidents. We handle wrongful death cases from motorcycle accidents and from many other types of negligent actions. We are known as The Bull Attorneys! ® We never charge money up front. We use our funds to help you and your family develop the case so that you get fair compensation. We have experts to assist with establishing and proving conscious pain and suffering for a survival claim that is associated with a wrongful death action.

You should never make a statement to an insurance company or any other witness about whether your loved one had conscious pain and suffering because witnesses and experts may sometimes be able to prove this element of damages. The value of the case will rise substantially when you can prove the conscious pain and suffering element of a survival claim.

Brad Pistotnik Law assists with wrongful death claims and with survival claims in Kansas, Oklahoma, Missouri, Illinois, Texas, Florida and elsewhere. Our lawyers are trained to look for evidence of conscious pain and suffering and we have connections to experts that can help establish conscious pain and suffering where there has been a severe death by fire or burning or explosion. You can call us at 800-241-BRAD or 316-684-4400 or 620-THE-BULL. You can call Brad Pistotnik on his cell phone at 316-706-5020. You can call Tony Atterbury on his cell at 316-617-9237. We are open 7 days a week and answer the phone every day of the week including on holidays and weekends. We are highly experienced lawyers, attorneys and abogados that concentrate the practice of law in the areas of motor vehicle collisions, tractor-trailer litigation, commercial motor vehicle litigation, motorcycle accident litigation, fleet vehicle litigation and any vehicular accident that causes injury or death.