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Pain and Suffering: And the Expert Witness

NCJ Number
Forensic Examiner Volume: 10 Issue: 5/6 Dated: May/June 2001 Pages: 19-23
Carlos A. Fonseca M.D.
Date Published
5 pages

Pain and suffering is a frequent issue in criminal and civil courts, in which the forensic pathologist is asked to give an expert opinion; to achieve this goal, it is necessary for the pathologist to have a clear understanding of the mechanism of death, the interval of victim suffering, and the victim's state of consciousness; this article reviews the basic medicolegal concepts necessary to understand this complex issue, as well as common pitfalls in the formulation of the expert opinion.


It is not good forensic practice to attempt to determine from the autopsy findings alone whether or not the deceased experienced pain. It is important for the physician to evaluate the entire investigative scheme, including witnesses' accounts, police reports, paramedic run sheets, hospital records, and scene investigation reports. The forensic pathologist must determine whether death was immediate, whether there was unconsciousness with no pain and suffering, or whether the victim was consciously experiencing pain and suffering and for how long prior to death or unconsciousness. The article discusses these factors for various types of injuries, including craniocerebral insults, neck injuries, and cardiac death. Because of the wide range of biological responses, each case is in some way unique, and it must be evaluated based on the particular evidence available. All opinions are within a reasonable degree of medical certainty, which is not the same as absolute certainty; therefore, the pathologist's report must state whether conscious pain and suffering occurred, as well as the severity of such whenever possible. The duration of the pain and suffering must be expressed within reasonable limits based on acceptable knowledge and demonstrable experience. This article provides some case studies that show pitfalls in the formulation of expert opinion regarding victim pain and suffering. 12 references