Measuring pain is difficult to say the least. Pain and suffering claims comprise a substantial percentage of personal injury actions. Typically a large component of the plaintiff’s loss is the past pain and ongoing pain. The question is how does one go about measuring pain?
Measuring Pain-Functional MRI
In an Arizona case that arose several years ago a truck driver was sprayed with 300o tar causing first and second degree burns to his arm and face. He was treated for the pain with several doses of morphine. Although the burns eventually healed, the truck driver continued to feel pain in his right arm which prevented him from working. In the claim that he eventually filed the defense asserted that the truck driver was faking. The truck driver’s chronic pain manager eventually mentioned the possibility of an fMRI brain scan as a way of measuring pain. Functional Magnetic Resonance Imaging (fMRI) has been used to measure activity in the brain. What it does is detect blood flow to that particular area of the brain. The blood flow is portrayed by the fMRI in that the scanner’s magnet tracks the blood oxygen levels. Joy Hirsch was contacted by the plaintiff’s attorney in the above referenced case about the possibility of performing an fMRI. At the time she was a professor in the Department of Neuroscience, Radiology and Psychology at Columbia University. One of her specialties was mapping the brain for neurosurgeons. Neurosurgeons use this service in order to avoid damaging essential functions during surgery. Plaintiff’s counsel in that case felt that maybe she could map the level of pain in the truck driver’s right arm. In fact she was able to do so through an fMRI.
The Institute of Medicine projects that as many as 100 million Americans suffer from chronic pain. It costs society $635,000,000,000.00 per year in terms of healthcare expenses and lost work productivity.
Measuring Pain-Beyond the Traditional
The traditional way in terms of measuring pain is on a scale of 1 to 10. That scale is purely subjective. One person’s 5 may be another person’s 10.
What Hirsch did was to take images during tests wherein the truck driver squeezed a rubber ball using his injured hand and then also his non-injured hand. When the truck driver squeezed the rubber ball the pain in his injured hand rose to a level of what he described as 9.5. He felt no pain in his left arm when he squeezed the ball with that arm. Hirsch was able to detect increased blood flow activity when the truck driver squeezed the ball with his right hand. That increased blood flow activity was seen in the bilateral superior frontal gyrus and the bilateral cingulate gyrus. She described those as being a component of a well-known pain mediating neural circuit. Her eventual readings on the scans were consistent with the truck driver’s rating of pain intensity when he squeezed the ball with his injured hand. That is, squeezing the ball with his injured hand caused pain which was indicated on the brain scan. Squeezing the ball with the non-injured hand did not indicate activity on the brain scan.
In the past, thermography has been used to measure pain. Thermography however has a high rate of false positives and somewhat mixed results in terms of being admitted into evidence.
Although some people maintain that a person can cheat the scan by imagining pain, Hirsch maintains that cheating is not possible because recreating sensation in the mind is all but impossible.
Another researcher by the name of Vania Apkarian at Northwestern University has also used the fMRI to document pain.
A Ridgefield, Connecticut-based company known as Millennium Magnetic Technologies advertises, among other diagnostic services, brain scanning to validate the presence of pain. Dr. Steven Levy, the company’s CEO, maintains that the scans can be used to quantify the amount of pain. The procedures used cost $4,850.00 and include three (3) scans. The scans are taken before, during and after the staff induce pain in the patients’ troubled areas.
Although there are functional MRIs in the Fairfax, Virginia and Northern Virginia area there are none that are currently known of by the undersigned that actually deal with measuring pain.
Another potential pain measurement device is a laser thermometer which shows the differential in temperature between the injured body part and the nearby non-injured body part.
Measuring Pain-Pain Management
Pain management is big business in the medical community. It is reported in some journals that as many as 100 million Americans suffer from chronic pain.
It is clear that every person heals in a different fashion. Likewise, every person feels pain in a different fashion. The reason for that is that the source of the pain, whether it be some physical injury or otherwise, disrupts blood flow and likewise disrupts the way that nerves transmit signals in different ways for each person.
The traditional notion in the medical community is that chronic (long term) pain is a symptom or result that is caused by some specific condition. That is, a punch in the face causes pain not only in the facial area but may cause pain in the neck and down the spine.
Some doctors are now thinking that pain may not just be the result of some physical trauma. Pain may also, in some instances, be the result of how your brain deals with pain signals. That is, the brain and the neurons that carry the pain signals to the brain may actually, in some instances, become hard wired or programed with a type of neurological memory so that even when the original cause of the pain has gone away the pain still remains.
Other doctors are thinking there may be some genetic origin to chronic pain. That is, some people may have a predisposition to chronic pain based upon their gene makeup. That may require specific targeting to that gene as the source of the chronic pain.
The typical treatment for chronic pain has been to treat it as being caused by inflammation with the treatment being such things as aspirin and other aspirin substitutes or physical therapy.
Several other modes of treatment that are currently in use and probably need to be given further consideration are such things as acupuncture, massage therapy and medical hypnosis in order to attempt to reprogram the brain as to how to deal with pain.
Chronic pain treatment can be complicated. Chronic pain affects more people than cancer, diabetes, heart attack and stroke combined. There are more than 100 million sufferers in the United States. Chronic pain sufferers often are misdiagnosed, misunderstood and miserable.
Measuring Pain-Chronic Pain
The good news is that chronic pain treatment can work. It requires the right blend of approaches. The traditional model of medication and rest is not sufficient. Drugs frequently rather than relieving the pain actually make it worse. What is required is the right blend of physical therapy, weaning off addictive medications and counseling.
It is not unusual for people to feel acute pain after an injury or illness. If the pain last more than 12 weeks it is considered chronic pain. With the prolonged use of pain medication the nervous system becomes distorted. Pain receptors get amplified and internal pain blockers are minimized. This can make the lightest touch seem painful. Chronic pain is frequently associated with depression which can then lead to fatigue, anxiety and changes in mood, appetite and sleep. Patients with depression can experience increased pain because of the overlap between pain reception and mood regulation. Both depression and chronic pain share some of the same neurotransmitters and nerve pathways. As a result the pain gets worse, the function is poor and the response to pain is reduced. The key is to get the depression under control. Antidepressant medication can provide some relief and can be an important part of chronic pain treatment.
Measuring Pain-The Right Medicines
The extended use of strong addictive medications such as opioids or Percocet and Valium actually make the pain worse. These medications block the transmission of pain from the site to the brain. Over time the nerves send stronger pain signals. It’s like the nerves turning up the volume in order to get the attention of the brain. Higher doses of medication are therefore required to block the louder signals. The pain receptors and processors get so distorted that eventually most stimuli are perceived as pain and these medications are no longer working. What is needed is a holistic approach which includes getting off the ineffective medications, applying useful pharmaceuticals, incorporating physical therapy and beginning careful exercise to teach the damaged nerves the difference between normal and harmful sensations. The patient must be committed to engaging in helpful actions such as problem-solving, avoiding isolation, improving communication, embracing physical therapy and working with a counselor to reframe the illness. Support groups can be a big help in this regard.
Measuring Pain-Back Pain
One in four adults experience back pain in the course of a year. This is also a common reason for doctors’ visits. Most people recover from back pain without any medical treatment.
The generally recommended treatment mode is over-the-counter medication, rest and exercise for what is called nonspecific back pain. Nonspecific back pain is back pain that is not linked to a particular injury or disease.
Getting an MRI or X-ray is certainly reasonable for back pain related to a specific event or if the back pain has persisted for six weeks or longer. In conducting an X-ray or MRI, what the physician is looking for is a herniated disc or bone spur.
You need to keep in mind however that 25% of the population is going to show some pathology on an MRI or X-ray test of the back even though they may not be having any symptoms whatsoever.
Most competent orthopaedic surgeons will tell you that for chronic back pain, physical therapy should be attempted to strengthen the muscle support as well as activity modification, meaning ceasing certain activities that may be causing the problem.
If the pain persists, then an injection of steroids or nerve block directly into the back may be recommended to provide temporary relief. That temporary relief will then hopefully give your back enough time to heal naturally or allow physical therapy to hasten the healing process.
Dealing With Back Pain
Some general tips in terms of dealing with back pain:
- Over-the-counter medications such as acetaminophen or ibuprofen may be of great assistance.
- Use common sense in terms of making sure that you get sufficient rest, stretch the affected body parts and stay within your zone of no pain, that is do not push the body part into painful positions. Staying within the zone of no pain simply means that you are trying to strengthen uninjured body parts so that they can better help with motion while the injured part heals.
- Keep moving. Although rest certainly is necessary, total immobilization of the back in most cases is not going to hasten the healing process.
Acupuncture involves the placement of needles into areas of the body and then the manipulation of those needles by hand or with some electrical stimulation with the idea of either restoring health to that body area or somehow limiting pain that may be emanating from that area. Acupuncture has been found recently to be especially helpful in dealing with long term issues, that is what is called chronic symptoms, of nausea or abdominal pain
In addition, it has been found to be somewhat effective in terms of preventing nausea after surgery with children and also for purposes of alleviating the pain associated with surgery.
Indeed, one physician in New York has actually found it to be effective in terms of dealing with attention-deficit hyperactivity disorder and also with asthma.
All of this creates some interesting issues from a medical malpractice perspective.
Although it is clear that acupuncture does not cure infection, it can be helpful in terms of dealing with long term pain. In general, it has been found that acupuncture tends to produce only short term relief per session meaning that in order to have some long term relief these sessions need to be themselves long term or cumulative with the idea being that there will be complete resolution of the problem or at least some reduction in the symptoms.
The federal government, through the Food and Drug Administration, monitors acupuncture procedures by requiring that the needles be sterile and be used only for single use by qualified personnel.
Measuring Pain-Facial Disfigurement
Facial disfigurement claims are frequently under evaluated because they are looked at only from the point of view of the disfigurement itself and not the impact that it may have upon earning capacity. The subtle discrimination against a person who has a facial disfigurement is significant. In general, unattractive people are viewed more negatively than attractive people; people are generally biased in favor of those who are good-looking and opportunities in the workplace are frequently denied to people who are disfigured. A personal injury attorney handling this type of injury claim needs to be sensitive to this.
It goes without saying that appearance is a significant factor in reviewing job applicants and unattractive people are frequently considered less productive and less intelligent.
There are findings of social science that can be used to establish that a client is reasonably certain to suffer permanent reduction in earning capacity because of a significant facial disfigurement. Keeping in mind that the role of the expert is to tell the jury general truths about their specialized experience, that criteria becomes the basis for the admissibility of social science testimony from a psychologist that describes the effect of discrimination on a facially disfigured person. The vocational expert then comes into play to use these social science studies to prove that disfigurement harmed or will harm the plaintiff’s potential earning capacity