Are Pain and Suffering Damages Recoverable in a New York Nursing Home Wrongful Death Case?

In New York, damages for pain and suffering incurred by a victim prior to death are recoverable in a personal injury and wrongful death cases.  This is not the case in some other states.

In some other states, the pain and suffering endured by the victim is not recoverable if the victim dies from the injuries suffered.  In these states, a pain and suffering claim is said to “die with the victim.”  We believe that this is a horrible outcome, as when injuries are severe enough to result in death, there is often significant suffering involved.

In New York, the personal injury component of a case (which belongs to the estate of the decedent) and the wrongful death component of a case (which belongs to statutory family members) are “merged” into one case.  A jury is then responsible for determining damages, assuming that liability is found.

How Much Can Be Awarded for Pain and Suffering in Which the Victim Dies?

An award for pain and suffering in which the victim dies is entirely dependent upon the amount of physical and psychological pain suffered between the time that an injury was inflicted and death. The longer that this time period lasted, and the more severe that the pain and suffering was, the higher the award will usually be.

If a victim was immediately rendered unconscious, a pain and suffering award may be low, unless the victim realized immediately prior to the injury that he or she would be facing serious injury or even death. Pain and suffering awards thus take into account not only the physical pain suffered, but also the psychological pain from being placed in an imminent fear of death.

Seeking Full Recovery for Our Clients

In a wrongful death case, we want to understand the likely pain and suffering endured by the decedent immediately prior to death so that we can present a clear picture of such suffering to a jury.

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