Pain Management, Disorders of Consciousness, and Tort Law: An Emergent Tort to Fix a Longstanding Injustice

We address the systemic undertreatment of pain for individuals diagnosed with disorders of consciousness (DoC). Patients with DoC are often unable to communicate due to damage to their brains, and because DoC patients appear to be insensate, practitioners often believe that these patients are unable to feel pain and may not offer them analgesia, even before painful medical procedures. However, science shows that many DoC patients are able to feel pain, even if they are unable to communicate their distress. This Article moves from recognition of this problem to proposing solutions, in particular exploring what the legal system can do to improve pain management for DoC patients. We propose a novel tort, grounded in strict liability, in order to improve the management of pain for individuals with DoC. We explore how current tort law falls short, and why a new cause of action is the best mechanism to effectuate this necessary shift in medical practice. We aim to muster tort law to quickly reform the medical standard of care, to greatly reduce the risk that individuals with DoC will linger without adequate pain management, so that this medical injustice can be eliminated.