In survival actions and wrongful death cases where the decedent survived the precipitating event for any period of time, one of the most contested damages issues is whether the decedent experienced conscious pain and suffering. Defense counsel routinely moves to exclude or minimize these damages by arguing that without medical expert testimony establishing awareness, the jury cannot make the inference. A 2026 South Carolina Court of Appeals ruling pushes back on that position with a rule that plaintiff practitioners should understand and use.
The Ruling and What It Holds
The South Carolina Court of Appeals held in 2026 that lay eyewitness testimony can be sufficient to support a conscious pain and suffering finding and to take the issue to the jury, provided the facts in the record support a reasonable inference that the decedent was aware and suffering. The court stated that medical expert testimony is not categorically required when the circumstances make the inference of consciousness clear enough that a reasonable jury could draw it from lay accounts alone.
The ruling tracks a common-sense evidentiary principle: jurors are not required to be told by a physician that a person who is screaming in pain is suffering. When first responders testify that a crash victim was conscious, responsive, crying, or calling out, the inference of conscious suffering is available to the jury without expert assistance. The South Carolina ruling gives that principle an explicit doctrinal footing.
Why This Matters for Survival and Wrongful Death Claims
In many high-severity cases, the period between the traumatic event and death is short. The decedent may have lived for minutes or a few hours after a catastrophic auto accident, a building collapse, or a workplace incident. In those cases, securing meaningful medical testimony about the subjective experience of consciousness is often impractical. The treating physicians may have been focused entirely on stabilization and resuscitation; their notes reflect vital signs and interventions, not a pain assessment.
The South Carolina ruling allows plaintiffs to build the conscious suffering record through the witnesses who were actually present. First responders who arrived at the scene, bystanders who were with the decedent until EMS arrived, paramedics who managed transport, and family members who were present in the emergency department can all testify to what they observed: whether the decedent spoke, responded to stimulation, showed signs of pain, or called out for help.
This evidentiary flexibility is particularly valuable in wrongful death cases where the survival period is measured in minutes rather than days, because retained medical experts often decline to opine firmly about subjective awareness over such a short period without objective clinical markers.
Building the Lay Testimony Record
For practitioners in South Carolina and in jurisdictions that apply similar common-sense inference principles, the message is to build the lay testimony record systematically from the outset of the case.
Begin with the first-responder reports. Fire and EMS records typically document whether the patient was conscious, alert, and oriented (CAO), or whether they were unconscious on scene. A notation that the patient was CAO at the scene is the foundation for the lay record; a bystander or paramedic who can confirm the notation with descriptive testimony amplifies it significantly. Interview all bystanders who may have been with the decedent before EMS arrived. People who try to help at accident scenes often remember specific exchanges they had with the injured party.
Family members present at the emergency department can testify to whether the decedent was responsive or communicative during the brief survival period. If the decedent made any statements, including expressions of pain, requests, or recognition of family members, those statements may also be admissible under the excited utterance or dying declaration exception depending on jurisdiction.
Document the timeline precisely. The longer the conscious survival period, the stronger the lay record typically is. Even for very short periods, courts applying the common-sense inference rule have found the record sufficient when the lay testimony is specific and consistent.
How Other Jurisdictions Treat Lay Testimony
South Carolina's approach is consistent with the majority rule in several jurisdictions, but the rule is not uniform. Courts in a number of states have held that expert medical testimony is required to establish the degree of consciousness necessary to support a conscious pain and suffering award in a survival claim, reasoning that jurors cannot assess neurological states without expert assistance.
In those jurisdictions, practitioners who want to rely solely on lay testimony face a harder fight. The argument is that the consciousness inference is no different from any other common-knowledge determination the jury makes, but courts applying the expert-requirement rule are skeptical of that framing for severe traumatic injuries where consciousness may be clinically ambiguous.
Before designing your damages presentation in a survival claim, confirm whether your jurisdiction has addressed this issue and whether it aligns with the South Carolina approach or the expert-requirement line of cases. Where the law is unsettled, the South Carolina ruling provides a persuasive reference point for the argument that lay testimony should suffice when the facts make the inference clear.
Practical Implications for Case Strategy
The ruling has three immediate strategic implications. First, in South Carolina cases, you can structure the conscious pain and suffering damages presentation around lay witnesses and defend against a motion in limine to require expert testimony by citing the 2026 ruling directly. Second, in cases pending in other jurisdictions where the law is unsettled, you can use this ruling as persuasive authority. Third, in all cases, building a strong lay testimony record is prudent regardless of the jurisdiction's rule, because it provides a foundation that is difficult for the defense to attack regardless of how the expert-testimony question resolves.
For the damages accounting once the case resolves, including how pain and suffering awards interact with lien claims, see our resources on liens and settlement. For related wrongful death and survival claim strategy, see wrongful death practice resources. For analysis of other significant 2026 case law developments, see the case law and settlements section.