What is Conscious Pain and Suffering in a Wrongful Death Case?
November 2025
In Wisconsin, "conscious pain and suffering" refers to the physical and mental anguish a person experiences from the time they are injured until the time they die. The claim is a separate claim from a wrongful death claim and belongs to the deceased person's estate. The wrongful death claim that belong to surviving family members.
Unlike other damages, there is no precise formula for calculating pain and suffering. A jury is asked to place a value on the deceased's experience in the last part of their life. Factors that may be considered include the duration of the period the deceased was conscious, the severity and the nature of the physical pain, the degree of anguish mental and terror experienced and the age and overall health of the victim.
In proving the claim, trial lawyers often rely on eyewitness testimony as to what the deceased experienced. The medical records are often reviewed to determine the cause of death. Further, expert testimony may be presented as to the likely experience the deceased had before expiring.
At Herrick & Hart, we have been on the side of the injured since 1951. We offer a free consulation on personal injury cases. We also offer a contingency fee so you are not required to pay anything up front for us to take on your case.