One of the biggest challenges to an attorney representing clients is one where the injured person is unable to speak for him or herself.
These cases may involve people who are infants, young children, the elderly, mentally ill, dementia sufferers, mentally handicapped, or those who are unconscious or in a state of consciousness that does not allow them to communicate with the outside world.
The first rule for any attorney in prosecuting these kinds of cases is to look at the evidence you do have, not the evidence you don’t have.
Here are 6 types of evidence you can use to prove your client has suffered or is suffering from pain and discomfort.
1. Physical Manifestations. One of the best ways to prove pain and suffering is through physical manifestations, which can include grimacing, rigid body posture, withdraw from touch, groaning or other noises that would indicate that the client has been injured.
2. Visual Records. If your client currently has an objective condition where he or she has a wound, deformity or other tangible injury, a visual record, such as video tape or photographs, can be used to substantiate the claims for pain and suffering.
3. Medical Treatment. Other examples of circumstantial evidence could be past or present medical treatment for the relief of pain and discomfort, the administration of pain medication, electrical stimuli, or the use of restraints, casts, walking or other mobility aids such as a cane, wheel chair, splints, etc.
4. Medical Record. You must review the person’s medical record or chart to substantiate the claims for pain and suffering, if they are available. These chart entries include physical measurements (i.e. temperature, skin discoloration, increased heart rate or increased blood pressure, wound care) and nursing and physician observations (i.e. open wounds, cuts, abrasions, or bruising). Also look at diagnostic tests such as x-rays, CT scans and so on for evidence of wounds and injuries that would indicate any pain causing injury.
5. Change in Routine Behavior. I recently had a case involving an autistic child. The allegations were that the child was abused by the bus driver and bus aid. It was not until the mother noticed that the child began to be reluctant to get one the bus — falling on ground, dragging himself, and acting with other non-verbal cues — that she realized something was wrong. The fact that a child who was previously excited to go to school was now refusing to step onto the bus would be substantial evidence of some occurrence on the bus.
6. Testimonies. The people closest to the client (i.e. parents, brothers, sisters, teachers or neighbors) can all testify to their observations and discussions as to whether or not the client has been injured and continues to suffer from pain and discomfort.
Proving damages for a non-verbal client, while difficult, is not impossible. Obtaining the best results for your non-speaking client can be accomplished by using the tools and circumstantial evidence available to an excellent attorney.