Proving Pre-Impact Terror and Conscious Pain and Suffering in NY

What Is a Survival Action?

A survival action under EPTL 11-3.2 is a claim by the estate for the decedent own conscious pain and suffering and medical expenses incurred between the time of the negligent act and the time of death. [Link to: /wrongful-death/survival-action]

Key points:

• Recovered by the estate: The survival action is recovered by the estate, not the distributees. It is distributed according to the decedent will or New York intestacy law.
• Different from wrongful death: The wrongful death claim (EPTL 5-4.1) compensates the distributees for their pecuniary loss. The survival action compensates the estate for the decedent own losses.
• Requires consciousness: To recover for conscious pain and suffering, the decedent must have been conscious and capable of experiencing pain and suffering after the negligent act. If the decedent was rendered immediately unconscious and never regained consciousness, the recovery may be limited.

What Is Pre-Impact Terror?

Pre-impact terror is a form of conscious pain and suffering that occurs when the decedent was aware of impending danger before the impact or negligent act. For example:

• Motor vehicle accidents: A passenger who sees a truck running a red light and knows a collision is imminent may experience pre-impact terror in the seconds before impact.
• Falls from heights: A construction worker who falls from a scaffold may experience pre-impact terror during the fall.
• Medical emergencies: A patient who realizes that something has gone wrong during surgery may experience pre-impact terror before losing consciousness.
• Drowning: A victim who is trapped underwater and cannot breathe may experience pre-impact terror before losing consciousness.

The Medical Reality of Consciousness

From a physician perspective, the question of whether the decedent was conscious and capable of experiencing pain and suffering is a medical question that must be answered based on the medical evidence:

• Brain function: Consciousness requires functioning of the cerebral cortex and the reticular activating system (RAS). If the brain was catastrophically damaged (e.g., massive head trauma), the decedent may have lost consciousness immediately and never regained it.
• Duration of consciousness: The longer the decedent survived and was conscious, the greater the potential recovery for pain and suffering.
• Nature of the suffering: The severity and nature of the pain, fear, and emotional distress experienced by the decedent.
• Medical records: Medical records -- including vital signs, Glasgow Coma Scale (GCS) scores, neurologic examinations, and witness accounts -- can provide evidence of consciousness.
• Autopsy report: The autopsy report can provide evidence of the nature and extent of injuries, which can inform the question of consciousness.

Proving Consciousness: Evidence We Use

To prove that the decedent was conscious and capable of experiencing pain and suffering, we use several types of evidence:

• Medical records: Vital signs, Glasgow Coma Scale (GCS) scores, neurologic examinations, nursing notes, and physician progress notes can all provide evidence of consciousness. A GCS score of 8 or higher generally indicates some level of consciousness. [Link to: /resources/how-to-get-medical-records-for-a-lawsuit]
• Witness accounts: Witnesses (family members, bystanders, first responders) may have observed the decedent moving, speaking, crying, or otherwise exhibiting signs of consciousness.
• Autopsy report: The autopsy report can provide evidence of the nature and extent of injuries, which can inform the question of how long the decedent may have been conscious.
• Expert testimony: We engage board-certified physicians, neurologists, and forensic pathologists to review the records and provide expert testimony about the decedent likely level of consciousness and pain and suffering.

Proving Pre-Impact Terror

Pre-impact terror is more difficult to prove than general conscious pain and suffering, because it requires evidence that the decedent was aware of impending danger before impact. Evidence we use:

• Witness accounts: Witnesses may have observed the decedent reaction in the moments before impact -- for example, screaming, bracing for impact, or attempting to avoid the danger.
• Physical evidence: Physical evidence at the scene may indicate that the decedent had time to react before impact -- for example, skid marks showing that the driver tried to brake, or defensive wounds showing that the victim tried to protect themselves.
• Circumstantial evidence: In some cases, the circumstances of the accident themselves provide evidence of pre-impact terror. For example, a construction worker who falls from a scaffold has several seconds of free-fall during which they would be aware of the impending impact.
• Expert testimony: We engage experts in human factors, biomechanics, and psychology to provide testimony about the decedent likely awareness of impending danger and the terror they would have experienced.

Damages for Conscious Pain and Suffering

Damages for conscious pain and suffering in a survival action can include:

• Physical pain: The physical pain experienced by the decedent between the negligent act and death.
• Mental anguish: The fear, anxiety, and emotional distress experienced by the decedent.
• Pre-impact terror: The terror experienced by the decedent in the moments before impact, when they were aware of impending danger.
• Awareness of impending death: If the decedent was aware that they were dying, this is compensable.
• Medical expenses: Medical expenses incurred between the negligent act and death.
• No cap: New York does not cap damages for conscious pain and suffering. [Link to: /wrongful-death/settlements]

Common Defense Arguments and How We Counter Them

Defense: The decedent lost consciousness immediately and never regained it.

Defense attorneys use several arguments to minimize conscious pain and suffering damages:

• Our Counter: We use medical records, witness accounts, and expert testimony to establish the decedent level of consciousness. Even if the decedent lost consciousness quickly, they may have been conscious for a period of time -- even a few seconds -- and experienced pain, fear, or pre-impact terror during that time.

Defense: The decedent could not have experienced pain because of the nature of the injuries.

Our Counter: We engage medical experts to review the records and provide testimony about the decedent likely level of consciousness and pain and suffering. Even in cases of catastrophic injury, the decedent may have been conscious for a period of time and experienced significant pain and suffering.

Defense: The pre-impact terror was too brief to be compensable.

Our Counter: New York courts have recognized that even brief periods of pre-impact terror are compensable. We use expert testimony to establish the duration and severity of the pre-impact terror, and we present evidence of the decedent awareness of impending danger.

Defense: The decedent was sedated or under anesthesia and could not have experienced pain.

Our Counter: We review the medical records -- including anesthesia records, medication administration records, and vital signs -- to determine whether the decedent was adequately sedated. In some cases, the records may show that the sedation was inadequate or that the decedent experienced awareness during surgery. [Link to: /anesthesia-errors/awareness]

Statute of Limitations

The survival action is subject to a different statute of limitations than the wrongful death claim:

• Medical malpractice survival action: 2.5 years from the date of the negligent act (CPLR 214-a).
• General negligence survival action: 3 years from the date of the negligent act (CPLR 214).
• Wrongful death claim: 2 years from the date of death (EPTL 5-4.1). [Link to: /wrongful-death/settlements]
• Municipal defendants: If the defendant is a municipal corporation, a notice of claim must be filed within 90 days. [Link to: /hospital-negligence/notice-of-claim-guide]

Frequently Asked Questions

The value of a medical malpractice case in New York depends on several factors, including the severity of the injury, the strength of liability evidence, and the economic and non-economic damages involved. New York is one of the few states with no caps on medical malpractice damages, meaning there is no artificial limit on what you can recover. Below are typical settlement ranges based on injury severity.