THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S DECEDENT, WHO WAS IN A VEGETATIVE STATE, EXPERIENCED PAIN; THE DEFENDANT HOSPITALS’ MOTION TO DISMISS THE CONSCIOUS PAIN AND SUFFERING CLAIM SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the hospital’s motion to dismiss the conscious pain and suffering claim should not have been granted. Plaintiff’s decedent was in a vegetative state, but there was evidence she was aware of pain:

… [A]lthough she was in a vegetative state, the decedent was generally responsive to pain, and sometimes followed commands or responded to verbal stimuli … . Although defendants’ experts opined that reflex responses to pain, such as grimacing or withdrawing, are not signs of conscious awareness, at least some of the behaviors recorded in the medical records transcend such reflex responses.

The medical records also reflect that the decedent was administered pain medication in at least one of defendant facilities. Although not dispositive, this fact suggests that the decedent’s doctors believed that she might be able to experience pain.

In addition, plaintiff testified that, while at defendants’ facilities, the decedent made expressions of pain or emotion, such as moaning, crying, or smiling, and communicated with her by blinking … . Plaintiff’s belief that the decedent blinked in response to questions was reflected in the medical records, although the phenomenon was not itself observed by others. …

Plaintiff’s expert also opined that the decedent “had a sufficient level of awareness to enable her to feel pain,” as evidenced by the fact that she “made facial expressions, smiled, … grimaced, moaned, blinked, responded to simple questions, responded to verbal and tactile stimuli, and retracted to pain,” all of which were “indicators of some level of awareness and conscious pain. Estreich v Jewish Home Lifecare, 2019 NY Slip Op 08970, First Dept 12-17-19