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Measuring Pain and Suffering

Fairfax Injury Lawyer Brien Roche Addresses Measuring Pain

Brien Roche

Measuring pain is difficult to say the least.  Pain and suffering claims comprise a large percent of personal injury actions.  A large part of the plaintiff’s loss is the pain and suffering. The question is how does one go about measuring and proving them?

Pain and Suffering

Pain and suffering are different concepts.  Pain is physical pain.  Suffering is mental suffering.  The two are different.

How do you prove physical pain?  You may prove it in any of a number of ways.  One of them may simply be pictures of the person in pain. If the nature of loss is a loss of taste, then a picture of the foods that they liked to eat that they now can’t taste may be proof.  Physical pain may be either nerve pain or muscle pain.  If it is nerve pain, then it involves a nerve irritation.  If it is muscular or other soft tissue pain, then it is an injury to that tissue that is generating a pain impulse.  That pain may provide objective signs such as loss of mobility, decrease in energy level, etc.

Pain and suffering can be a large component of a personal injury claim.  The pain and suffering must be explained and detailed through testimony from the plaintiff, the treating physician and lay witnesses in order to make it real.  The way that pain and suffering are made real is through live testimony. This must explain what it is that the plaintiff has gone through and how intense the pain was and how long the pain lasted.

Lay witnesses can testify as to what the plaintiff’s condition was before the injury. This is then compared with the plaintiff’s condition after the injury.  That is a good way to give the jury a picture of what the plaintiff has been through. Call, or contact us for a free consult.

Let’s talk first about pain and measuring it.

Measuring Pain – What is it?

Pain can come from different sources.  In general it comes either from pressure or from a significant relocation of tissue.  The pressure may be internal in the form of inflammation or swelling.

The significant relocation of tissue may come either in the form of a cutting, a tearing or a fracture.  The cutting or tearing may be of muscle, skin, ligaments, tendons or fascia.

A sprain is an injury that tears or stretches a ligament.  A strain is an injury that tears a muscle and tendon where they join together.  Fascia is a band or sheet of tissue that attaches muscles to each other or to bone.

The nervous system is responsible for the control of tissues.  Within these various tissues (tendons, ligaments, fascia) there is a network of sensory nerves.  When there is an injury to these tissues, then those nerves may be activated.

The initial response of the body to an injury is inflammation.  This means that restorative and healing fluid is sent to the injury site.  That influx of fluid produces pressure which causes pain.

That inflammation process takes time.  Likewise it takes time for the body to react to the influx of fluid due to the inflammation.  That explains why the full extent of an injury may not be known for days.

Symptoms of Pain

There are several different signs or symptoms of pain. They may be such things as insomnia, fatigue, depression, attention deficits, memory problems.  These are all things that may be associated with pain.

Pictures of Pain

Pain that is associated with an injury is sometimes evaluated based upon radiological studies.  These studies may be x-rays, CTs or MRIs.  However those studies typically are done with the patient motionless.  As a result they are not giving a true picture of the patient’s condition when the pain is at its peak.

X-rays may give a full body part view.  CT scans and MRIs rather give slices.  Those slices may be sagittal (a side view).  They may be horizontal (a birds-eye view).  They may be coronal (a slice as seen from the front or the back).

1.  MRIs

The main distinction between CTs and MRIs is that MRIs show everything but bone.

A 1994 article in the New England Journal of Medicine reported at Volume 331, pages 69 – 73 that MRIs were taken of 98 people that had no symptoms.  Thirty-six percent (36%) of those people in fact had no abnormalities on the MRI.  Fifty-two percent (52%) had a bulge at one level.  Twenty-seven percent (27%) had a protrusion.  One percent (1%) had an extrusion.  Thirty-eight percent (38%) had an abnormality at more than one level.  The point to be made is that disc abnormalities do not necessarily produce symptoms.

The ultimate problem in terms of measuring pain is that most of the pain is felt in small nerve fibers.  Those small nerve fibers cannot be reliably tested.

A common scenario after an injury is that the patient is on bed rest.  Although there may be some logic to that in some circumstances, there is also a downside.  The loss of motion results in shrinkage of the tissues.  This then increases the stiffness in the joints.  All of this may produce more pain.  As such there is some logic in trying to maintain tissue mobility after an injury.

2.  Functional MRI

In an Arizona case a truck driver was sprayed with tar. This caused first and second degree burns to his arm and face.  He was treated for the pain with several doses of morphine. Although the burns healed he continued to feel pain in his right arm which prevented him from working.   The defense asserted that the truck driver was faking.

The truck driver’s chronic pain manager suggested a 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 particular areas of the brain. The blood flow is portrayed by the scanner’s magnets that track the blood oxygen levels.

Joy Hirsch was contacted by the plaintiff’s attorney about 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.

Beyond the Traditional

The traditional way 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. The truck driver squeezed a rubber ball using each hand. She then took images. When the trucker 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. Hirsch was able to detect increased blood flow activity when the driver squeezed the ball with his right hand.  That increased blood flow activity was seen in the pain circuit of the brain.

Her readings on the scans were consistent with the truck driver’s rating of pain. In other words squeezing the ball with his injured hand caused pain which was seen on the brain scan.  Squeezing the ball with the non-injured hand did not show activity on the brain scan.

Some people maintain that a person can cheat the scan by imagining pain. Hirsch maintains that cheating is not possible. She says recreating sensation in the mind is all but impossible.

Functional MRI Availability

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 are costly and include three (3) scans.  The scans are taken before, during and after the staff induce pain in the patients’ troubled areas.

3.  DMX

A technology that is quite helpful in proving injury to connective tissue is what is called DMX.  It is not widely used.  Dr. Shannon Thompson in Sterling, Virginia does use the technology.  It can show such things as a labrum tear and other injuries to connective tissue.

4.  Other Tools

Also thermography has been used to measure pain.  Thermography however has a high rate of false positives. There have been mixed results in terms of these results being admitted into evidence.

Another 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. Call, or contact us for a free consult.

5.  Treatment Modes as a Guide to Measuring Pain

      A.  Chronic Pain

Some doctors are now thinking that pain may not just be the result of physical trauma.  Pain may also, in some instances, be the result of how your brain deals with pain signals.  In other words, the brain and the neurons that carry the pain signals may become programmed with a type of neurological memory.  When the original cause of the pain has gone away, the pain may still remain.

Other doctors think there may be some generic origin to chronic pain.  That is, some people may have a predisposition to chronic pain.  This may be based upon their gene makeup.  That may require specific targeting to that gene as the source of the chronic pain.

The  treatment for chronic pain has been to treat it as being caused by inflammation. Therefore the treatment has been such things as aspirin, aspirin substitutes or physical therapy.

Other Modes

There are several ways to treat pain.  Trigger point injections block pain receptors.  That means that the pain is not conveyed to the brain.

Epidural steroid injections reduce inflammation.  Facet injections reduce inflammation of the nerves that are in the facets.

Radiofrequency ablation involves the insertion of wires that actually burn the nerves.  The nerves do eventually grow back and the pain comes back.

A spinal cord stimulator masks the pain signals.

Additional modes of treatment that are in use are such things as acupuncture, massage therapy and medical hypnosis. These are attempts to reprogram the brain as to how to deal with pain.

Chronic pain treatment can be complex. Patients often are misdiagnosed, misunderstood and miserable.

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. With the prolonged use of pain medication the nervous system becomes distorted. Pain receptors become more sensitive. Internal pain blockers become less effective. This can make the lightest touch seem painful. Over time the nerves send stronger pain signals. In other words the nerves turn up the volume in order to get the attention of the brain. Hence higher doses are required to block the louder signals. The pain receptors and processors get so confused that stimuli of any sort are seen as pain. The drugs no longer work. Chronic pain is associated with depression. This can then lead to fatigue and anxiety. It can also produce changes in mood, appetite and sleep.

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 enough. Rather than relieving the pain drugs may make it worse. What is required is the right blend of physical therapy, weaning off addictive medicine and counseling.  Physical therapy and exercise must be used to teach the damaged nerves the difference between normal and harmful sensations. The patient must be committed to problem solving and avoiding isolation. He must work at improving communication and embracing physical therapy. He must work with a counselor to reframe the illness. Support groups can be a big help in this regard. Call, or contact us for a free consult.

Patients with depression may experience increased pain. Both depression and chronic pain share some of the same neurotransmitters and nerve pathways. As the pain gets worse the body’s ability to respond may weaken. The key is to get the depression under control. Drugs can provide some relief. They can be an important part of chronic pain treatment.

B.  Back Pain

One in four adults experience back pain in the course of a year.

A large percentage of the population is going to show some pathology on an MRI or X-ray test of the back. This is true even though they may not be having any symptoms. Most orthopedic surgeons will tell you that for chronic back pain, physical therapy should be attempted. This is designed to strengthen the muscle support. In addition ceasing certain activities that may be causing the problem may be needed.

If the pain persists an injection of steroids or nerve block directly into the back may provide temporary relief.  That temporary relief will then hopefully give the back enough time to heal naturally. Also the physical therapy may hasten the healing process.

Call, or contact us for a free consult.

C.  Acupuncture

Acupuncture involves the placement of needles into areas of the body. They are then manipulated by hand or with some electrical stimulation. The idea is either restoring health to that body area or limiting pain that may be emanating from that area. Acupuncture may be especially helpful in dealing with long term issues. These may include chronic symptoms of nausea or abdominal pain.

D.  Proper Diagnosis of Pain Syndromes

There are several different types of syndromes or categories of pain.  There is what is known as a Complex Regional Pain Syndrome.  The signs and symptoms of this typically are intense pain, swelling, changes in skin color, changes in hair or nail growth and temperature asymmetry from one body part to the other.

There is also what is known as fibromyalgia.  Fibromyalgia typically means that the symptoms have lasted for more than 3 months.  Those symptoms are such things as wide-spread pain, tenderness, fatigue, sleep problems, memory problems, cognitive issues, depression, digestive problems and headaches.

There is also what is known as Myofascial Pain Syndrome.  This is typically pain at the level of the muscles and connective tissues.  Active trigger points are a component of myofascial pain syndrome.

Facial Disfigurement

Facial disfigurement claims are often under evaluated because they are looked at only from the point of view of the disfigurement. They must also be looked at from the point of view of the impact upon earning capacity.  The subtle bias against a person who has a facial disfigurement is huge. Unattractive people are viewed more negatively than attractive people. Also people are generally biased in favor of those who are good-looking.

Opportunities in the workplace are sometimes denied to people who are disfigured. Unattractive people are frequently considered less productive and less intelligent. A personal injury attorney handling this type of injury claim needs to be aware of this.

Loss of Income Due To Disfigurement

There are social science findings 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.  The role of the expert is to tell the jury general truths about their specialized experience. That is the basis for the admissibility of social science testimony from a psychologist. He may describe the effect of bias on a facially disfigured person.  The vocational expert then uses these social science studies to prove that disfigurement has harmed or will harm the plaintiff’s potential earning capacity.

Proving Pain and Suffering – Interference, Anchoring and Fusion

All of those modes of measurement mentioned above are important.

Interference means the degree to which the injury interferes with the plaintiff’s life.  The more examples you can give of that, the greater the damages.

As part of the development of your interference theory and perhaps also anchoring and fusion, you should tie it in with some other ideas:

  • Develop a short and simple theme.  If your client has suffered a significant brain injury that is showing significant psychiatric consequences, then your theme may be “she is not the same person she was before the injury”.
  • Develop a damages metaphor.  That theme mentioned above may also be your metaphor.
  • Develop some visuals that demonstrate the theme and/or metaphor.  The visual may be a column-by-column comparison of things that she could do before the injury and things now that she has difficulty doing or can’t do.

Anchoring means trying to establish some numerical anchor that the jury can focus on as a basis for a damage award, in particular for pain and suffering.  For instance in a death case, if a jury hears that the contractor who caused the death was involved in a $5,000,000 contract at the time of the death, that may have some impact on what the verdict is.  The anchor could be the total number of pills that were sold by a pharmaceutical company that were defective.  It could be the total number of tires sold by a tire manufacturer.  It could be the number of lies that the defendant told in this case.  It could be the number of rides per day on a roller coaster.  The anchor number should be introduced early in the case, preferably in your opening statement.  Anchoring means planting an idea in a person’s head that somehow relates to the issue at hand.  That idea may become the basis for the person resolving the issue that they’re asked to resolve.

Fusion is the idea that liability and damages are fused together.  Jurors do not distinguish the two.  They are part of the whole.  Their thoughts on liability impact damages.  The greater the fault of the defendant, probably the greater the damages.  The lesser the fault, the lesser the damages.  The greater the fault is of the plaintiff, then probably the less damages are that will be awarded.

When selecting a numerical anchor, it probably makes sense to try to tie it in with interference and fusion.

Doctor Cooperation

On July 1, 2020 a new law went into effect requiring that treating doctors cooperate with counsel in some litigation needs relating to the client.  This may include such things as providing a fee schedule for such cooperation, scheduling meetings and appearing for depositions and/or trial as needed.  If the deposition of a treating doctor is to be taken, then you need to be mindful of Virginia Code Section 8.01-399 which limits the doctor’s testimony to what is in writing.

Talking Mantra

At some point during your presentation of damages you should develop a mantra for the patient.  If the patient has horrific injuries and is dealing with them, then develop testimony from the plaintiff that he’s in a sorry state, he recognizes he’s in a sorry state but he’s going to do the best he can with the situation.

Talking About Pre-Existing Problems

Early in the case, perhaps in voir dire, the issue should be raised that no one is perfect.  No one has perfect health.  We all have some flaw i.e., some pre-existing condition.

Proving Damages Through Biomechanical Engineers

Biomechanical engineers can be of great aid in certain types of injury claims. Such an engineer is able to explain the nature and extent of physical forces that are imposed on the body and explain how that results in serious injury. Although they may not be used as accident reconstruction experts they can indirectly be used for that purpose as they state that the crash occurred in a certain fashion based upon evidence presented.

In terms of trying to find these types of engineers, excellent places to look are academic centers. In addition reviewing professional and scientific journals may also provide leads. Also these professional journals will bring you current as to ideas these professionals are bouncing around. Finally finding an expert in this fashion avoids the taint of using a search service for this purpose.

One of the early cases on the admissibility of this type of testimony is Mannino v. International Manufacturing, 650 F.2d 846 (6thCir. 1981) which addressed a number of issues as to biomechanical engineers and in that case held such testimony was admissible.

See the highlighted pages for a review of Virginia case law on admissibility of expert testimony and the qualifications of experts.

Suffering

Proving psychological damages such as fear of driving, anxiety and depression is difficult.  Frequently the defense will want to know about any treatment relating to any psychological issues.  If the client is only claiming normal mental anguish arising from physical injuries and not claiming aggravation of any prior condition and likewise is not claiming psychological treatment in this case, then any prior mental health history is probably not discoverable or admissible.

Show, Not Tell

As storytellers, lawyers are supposed to show, not tell.  In any presentation, showing means essentially two things:  detail and drama.  You show something by giving the details.  Sometimes the minute details.  You also inject the drama that is associated with the event.  That shows the audience what you mean.  This as opposed to simply telling them what you mean or what you say happened.

There are a number of ways to show as opposed to simply tell:

Consider the following:

A.  A handwritten diary.  If this was directed by the attorney, then it may be governed by the attorney-client privilege, although you may want to use it as an exhibit.

B.  A life activity calendar.  A life activity calendar is a calendar that shows the activity/pain level of the plaintiff prior to the injury and then the activity/pain level after the injury.  The before and after picture can be telling.  This must be coordinated with the calendar and the medical records.  There may be some dispute as to the admissibility of this but if a day in the life film is admissible, then clearly this is admissible.  Grimes v. Employers’ Mutual Liability Insurance Co., 73 F.R.D. 607 (D. Alaska 1977)  See also the two exhibits that are attached that may help a jury understand the extent of the disability, pain and credibility of witnesses.

C.  Timeline.  Create a timeline for the procedures/office visits that the patient has had and color-code them as to whether or not they are routine office visits, surgical procedures or other such things.

D.  Medical illustrations and animations.  Three-D animations of a surgical procedure may be expensive but it gives the jury a clear sense as to what the patient has gone through.

E.  A video of the day in the life of the plaintiff.

F.  If the person is a gym user, then get a print-out from the gym as to what the person’s routine was pre-injury.  Also get what their usage has been post-injury.

G.  If they wear electronic devices that show their activity level, then get a print-out of that showing the pre-injury activity level and the post-injury activity level.

H.  If your client lost a limb, how would you evaluate that?  There is no easy way to do it other than to explain the details of what the client has lost as seen in:

  • Self-image
  • Self-confidence
  • Sense of worth
  • Independence
  • Safety and security
  • Mobility, both physical and social
  • Dignity
  • Sense of immortality
  • Happiness
  • Ambition and expectation
  • Identity
  • Sexuality

I.  Many clients who have suffered a loss understate that loss.  Your job is to get them to state it correctly.  Not overstated but also not understated.  They can show this to the jury through:

The Physical Side

  • The physical sensations associated with the feelings
  • Is the heart racing?  If so, how does that feel?
  • Is there a shortness of breath?

The Non-Physical Side

  • Do you feel that people are watching you?
  • Do the memories of the event interfere with your daily functions?
  • Are you thinking about the event often?  How often?
  • Do you have flashbacks?
  • Do you have trouble hearing about similar events?
  • What do you do to avoid flashbacks and how limiting is this?

J.  Aggravation of Degenerative Joint Disease.  Your client was involved in a medium impact collision.  The client is 60 years old.  The client had no symptoms before but did have degenerative arthritis in the spine.  How do you deal with that? Get the doctor (plaintiff or defense) to state:

  • This is part of the natural aging process.
  • It is sometimes called wear and tear arthritis
  • People who do physical labor are more likely to show symptoms than are those who have a sedentary existence.
  • Anyone over 40 probably has some arthritis in their spine.
  • They are probably asymptomatic.
  • The harder a person has worked over their life the more of it they have

Differential Diagnosis

  • The process of using differential diagnosis means identifying possible causes and then eliminating all but one of them
  • Here the plaintiff had a positive straight leg raising test right after the injury
  • This means a nerve is being compressed
  • The possible causes are a tumor or bulging or protruding disc
  • There is no evidence of a tumor

Now There Are Symptoms

  • Trauma such as a collision can trigger symptoms.
  • The arthritis is pre-existing but it produced no symptoms.
  • Persons with wear and tear arthritis might go their entire life with no symptoms
  • Now the symptoms are painful.
  • There may have been a loss of flexion.
  • These are symptoms that you typically don’t expect to get better.
  • Physical therapy however may help relieve the symptoms.
  • If the arthritis was made worse, that may cause some pain down the back of the leg.
  • The client can expect these flare-ups upon activity.
  • You’re not able to say when or if these symptoms will ever go away.

K. Permanency.  Permanent injury is generally proved through a doctor saying the condition is permanent. In some cases the doctor may ascribe a numerical rating to the lack of function as was done in Exxon Corp v. Fulgham, 224 Va. 235. This rating may translate into dollars.
L.  Hedonic Damages.  Hedonic damages are essentially the pleasure of living.  They may be included in an award in a personal injury case.  Bulala v. Boyd, 239 Va. 218 (1990).  It’s not clear as to whether this form of damage may be admissible in a wrongful death action.

M.  Reduced life expectancy is a form of damage.  It may be accompanied by mental anguish, depression and emotional upset as stated in Strauss v. McDonald, 67 Va. Cir. 116 (2005).

Terror Damages

What are sometimes referred to as terror damages should not be overlooked. If the victim dies this may be a component of the survival claim. Falling from a height, losing control of a car, falling in an elevator or other terrifying incidents like that are forms of grievous injury. They carry with them mental distress, high anxiety, chilling fear, helplessness that can manifest as physical injury. This physical injury may be seen in a racing heart, inability to breathe, profuse sweating and other ways. However the hard part with these claims may be proving the plaintiff/decedent was aware of the danger. This may require a very precise timeline based on the 911 call, the timing from the EMT/hospital records, eyewitness statements and photos at the scene.

Our Senses Are Wonderful Things and Must Be Treasured

We take for granted the five senses that allow us to make our way through life.  Any injury to these senses may be described as a catastrophic injury. Sight may be the dearest of those senses although that is subject to question.  Many people do not realize how sensitive the human eye is.  It can actually spot the light of a candle 14 miles away.  When your visual perception is described as being 20/20 what that means is that you can clearly see an image such as the letters on an eye chart from a distance of 20 feet.  On the other hand, having vision that is 20/100 means that  you need to be five times closer in order to see those same letters.

People who have lost their hearing maintain that the loss of hearing is more profound than the loss of any other sense, even the loss of sight.  The reason for that may well be that we convey our emotions through our voice.  The inability to communicate those emotions is a huge loss.

Noise

The word “noise” itself comes from the same root as nausea which means sickness.  As such, noise indeed can cause nausea.  It can also cause an increase in blood pressure.

Oddly enough even small amounts of noise effect the human pupil in the eye.  Any noise causes the pupil to increase in size, i.e. to dilate, thereby allowing more light to come into the eye.  This excess of light impacts visual acuity.  When you are doing something that requires close visual attention it is probably best to do it in a quiet environment.

Touch and Smell

The sense of touch is based not only on physical contact but it is also based on near contact.  The nerves that are known as the proprioceptors are those nerves that allow us to gauge exactly where our body parts are.  It is these nerves that allow us to scratch the back of our head. They allow us to know where our left leg is even though we may not be able to see it.

The most sensitive parts of the body are the lips, the back of the neck, the fingertips and the soles of the feet.  The least sensitive is the middle of the back.

The sense of smell is a sense that can be lost through an impact to the brain.  This sense oddly enough has a rather keen “memory”. The human brain can, with a high degree of accuracy, recall smells that it has experienced even in years past.

Our sense of taste is focused around taste buds of which there are approximately 10,000. They are spread over the tongue, palate and inner cheek.  These taste buds are the primary defense against poison.  However as we get older, these taste buds die off. They are not replaced as quickly or as well as is done with a young person.  As a result, older people tend to have less sensitivity to taste than do younger people.  Call, or contact us for a free consult.

Understanding these senses is a must in order to prove damage to the senses.

Emotional Damages of Children

Emotional damages to children can be tough to prove but may be compelling.  This may be very important in cases where the child is not the direct victim but rather is a witness to a horrific injury to a loved one.  Whether these damages can be recovered is based upon nearness to the injury scene, nowness in the sense of the person’s reaction being immediate and finally closeness to the actual victim.

Children tend to be less verbal about their emotions than most adults.  However, children do tend to act out events.  It is this acting out that can provide a good insight into the emotions caused by the event.  This is something that the right health care professional can probably draw out of the child.

School Records

In addition, obtaining school records may be helpful.   How the child performs in school may be an indice of the effect of the injury. Performance within the classroom as seen by the teacher may provide compelling evidence.  If the child has been seen by a guidance counselor or speech therapist at school or outside of school that type of evidence may likewise be dramatic.  Call, or contact us for a free consult.

Call, or contact us for a free consult. For more information on pain and suffering see the other pages on this site. See also the pages on Wikipedia on pain and suffering.

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Measuring Pain and Suffering

Fairfax Injury Lawyer Brien Roche Addresses Measuring Pain

Brien Roche

Measuring pain is difficult to say the least.  Pain and suffering claims comprise a large percent of personal injury actions.  A large part of the plaintiff’s loss is the pain and suffering. The question is how does one go about measuring and proving them?

Pain and Suffering

Pain and suffering are different concepts.  Pain is physical pain.  Suffering is mental suffering.  The two are different.

How do you prove physical pain?  You may prove it in any of a number of ways.  One of them may simply be pictures of the person in pain. If the nature of loss is a loss of taste, then a picture of the foods that they liked to eat that they now can’t taste may be proof.  Physical pain may be either nerve pain or muscle pain.  If it is nerve pain, then it involves a nerve irritation.  If it is muscular or other soft tissue pain, then it is an injury to that tissue that is generating a pain impulse.  That pain may provide objective signs such as loss of mobility, decrease in energy level, etc.

Pain and suffering can be a large component of a personal injury claim.  The pain and suffering must be explained and detailed through testimony from the plaintiff, the treating physician and lay witnesses in order to make it real.  The way that pain and suffering are made real is through live testimony. This must explain what it is that the plaintiff has gone through and how intense the pain was and how long the pain lasted.

Lay witnesses can testify as to what the plaintiff’s condition was before the injury. This is then compared with the plaintiff’s condition after the injury.  That is a good way to give the jury a picture of what the plaintiff has been through. Call, or contact us for a free consult.

Let’s talk first about pain and measuring it.

Measuring Pain – What is it?

Pain can come from different sources.  In general it comes either from pressure or from a significant relocation of tissue.  The pressure may be internal in the form of inflammation or swelling.

The significant relocation of tissue may come either in the form of a cutting, a tearing or a fracture.  The cutting or tearing may be of muscle, skin, ligaments, tendons or fascia.

A sprain is an injury that tears or stretches a ligament.  A strain is an injury that tears a muscle and tendon where they join together.  Fascia is a band or sheet of tissue that attaches muscles to each other or to bone.

The nervous system is responsible for the control of tissues.  Within these various tissues (tendons, ligaments, fascia) there is a network of sensory nerves.  When there is an injury to these tissues, then those nerves may be activated.

The initial response of the body to an injury is inflammation.  This means that restorative and healing fluid is sent to the injury site.  That influx of fluid produces pressure which causes pain.

That inflammation process takes time.  Likewise it takes time for the body to react to the influx of fluid due to the inflammation.  That explains why the full extent of an injury may not be known for days.

Symptoms of Pain

There are several different signs or symptoms of pain. They may be such things as insomnia, fatigue, depression, attention deficits, memory problems.  These are all things that may be associated with pain.

Pictures of Pain

Pain that is associated with an injury is sometimes evaluated based upon radiological studies.  These studies may be x-rays, CTs or MRIs.  However those studies typically are done with the patient motionless.  As a result they are not giving a true picture of the patient’s condition when the pain is at its peak.

X-rays may give a full body part view.  CT scans and MRIs rather give slices.  Those slices may be sagittal (a side view).  They may be horizontal (a birds-eye view).  They may be coronal (a slice as seen from the front or the back).

1.  MRIs

The main distinction between CTs and MRIs is that MRIs show everything but bone.

A 1994 article in the New England Journal of Medicine reported at Volume 331, pages 69 – 73 that MRIs were taken of 98 people that had no symptoms.  Thirty-six percent (36%) of those people in fact had no abnormalities on the MRI.  Fifty-two percent (52%) had a bulge at one level.  Twenty-seven percent (27%) had a protrusion.  One percent (1%) had an extrusion.  Thirty-eight percent (38%) had an abnormality at more than one level.  The point to be made is that disc abnormalities do not necessarily produce symptoms.

The ultimate problem in terms of measuring pain is that most of the pain is felt in small nerve fibers.  Those small nerve fibers cannot be reliably tested.

A common scenario after an injury is that the patient is on bed rest.  Although there may be some logic to that in some circumstances, there is also a downside.  The loss of motion results in shrinkage of the tissues.  This then increases the stiffness in the joints.  All of this may produce more pain.  As such there is some logic in trying to maintain tissue mobility after an injury.

2.  Functional MRI

In an Arizona case a truck driver was sprayed with tar. This caused first and second degree burns to his arm and face.  He was treated for the pain with several doses of morphine. Although the burns healed he continued to feel pain in his right arm which prevented him from working.   The defense asserted that the truck driver was faking.

The truck driver’s chronic pain manager suggested a 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 particular areas of the brain. The blood flow is portrayed by the scanner’s magnets that track the blood oxygen levels.

Joy Hirsch was contacted by the plaintiff’s attorney about 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.

Beyond the Traditional

The traditional way 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. The truck driver squeezed a rubber ball using each hand. She then took images. When the trucker 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. Hirsch was able to detect increased blood flow activity when the driver squeezed the ball with his right hand.  That increased blood flow activity was seen in the pain circuit of the brain.

Her readings on the scans were consistent with the truck driver’s rating of pain. In other words squeezing the ball with his injured hand caused pain which was seen on the brain scan.  Squeezing the ball with the non-injured hand did not show activity on the brain scan.

Some people maintain that a person can cheat the scan by imagining pain. Hirsch maintains that cheating is not possible. She says recreating sensation in the mind is all but impossible.

Functional MRI Availability

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 are costly and include three (3) scans.  The scans are taken before, during and after the staff induce pain in the patients’ troubled areas.

3.  DMX

A technology that is quite helpful in proving injury to connective tissue is what is called DMX.  It is not widely used.  Dr. Shannon Thompson in Sterling, Virginia does use the technology.  It can show such things as a labrum tear and other injuries to connective tissue.

4.  Other Tools

Also thermography has been used to measure pain.  Thermography however has a high rate of false positives. There have been mixed results in terms of these results being admitted into evidence.

Another 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. Call, or contact us for a free consult.

5.  Treatment Modes as a Guide to Measuring Pain

      A.  Chronic Pain

Some doctors are now thinking that pain may not just be the result of physical trauma.  Pain may also, in some instances, be the result of how your brain deals with pain signals.  In other words, the brain and the neurons that carry the pain signals may become programmed with a type of neurological memory.  When the original cause of the pain has gone away, the pain may still remain.

Other doctors think there may be some generic origin to chronic pain.  That is, some people may have a predisposition to chronic pain.  This may be based upon their gene makeup.  That may require specific targeting to that gene as the source of the chronic pain.

The  treatment for chronic pain has been to treat it as being caused by inflammation. Therefore the treatment has been such things as aspirin, aspirin substitutes or physical therapy.

Other Modes

There are several ways to treat pain.  Trigger point injections block pain receptors.  That means that the pain is not conveyed to the brain.

Epidural steroid injections reduce inflammation.  Facet injections reduce inflammation of the nerves that are in the facets.

Radiofrequency ablation involves the insertion of wires that actually burn the nerves.  The nerves do eventually grow back and the pain comes back.

A spinal cord stimulator masks the pain signals.

Additional modes of treatment that are in use are such things as acupuncture, massage therapy and medical hypnosis. These are attempts to reprogram the brain as to how to deal with pain.

Chronic pain treatment can be complex. Patients often are misdiagnosed, misunderstood and miserable.

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. With the prolonged use of pain medication the nervous system becomes distorted. Pain receptors become more sensitive. Internal pain blockers become less effective. This can make the lightest touch seem painful. Over time the nerves send stronger pain signals. In other words the nerves turn up the volume in order to get the attention of the brain. Hence higher doses are required to block the louder signals. The pain receptors and processors get so confused that stimuli of any sort are seen as pain. The drugs no longer work. Chronic pain is associated with depression. This can then lead to fatigue and anxiety. It can also produce changes in mood, appetite and sleep.

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 enough. Rather than relieving the pain drugs may make it worse. What is required is the right blend of physical therapy, weaning off addictive medicine and counseling.  Physical therapy and exercise must be used to teach the damaged nerves the difference between normal and harmful sensations. The patient must be committed to problem solving and avoiding isolation. He must work at improving communication and embracing physical therapy. He must work with a counselor to reframe the illness. Support groups can be a big help in this regard. Call, or contact us for a free consult.

Patients with depression may experience increased pain. Both depression and chronic pain share some of the same neurotransmitters and nerve pathways. As the pain gets worse the body’s ability to respond may weaken. The key is to get the depression under control. Drugs can provide some relief. They can be an important part of chronic pain treatment.

B.  Back Pain

One in four adults experience back pain in the course of a year.

A large percentage of the population is going to show some pathology on an MRI or X-ray test of the back. This is true even though they may not be having any symptoms. Most orthopedic surgeons will tell you that for chronic back pain, physical therapy should be attempted. This is designed to strengthen the muscle support. In addition ceasing certain activities that may be causing the problem may be needed.

If the pain persists an injection of steroids or nerve block directly into the back may provide temporary relief.  That temporary relief will then hopefully give the back enough time to heal naturally. Also the physical therapy may hasten the healing process.

Call, or contact us for a free consult.

C.  Acupuncture

Acupuncture involves the placement of needles into areas of the body. They are then manipulated by hand or with some electrical stimulation. The idea is either restoring health to that body area or limiting pain that may be emanating from that area. Acupuncture may be especially helpful in dealing with long term issues. These may include chronic symptoms of nausea or abdominal pain.

D.  Proper Diagnosis of Pain Syndromes

There are several different types of syndromes or categories of pain.  There is what is known as a Complex Regional Pain Syndrome.  The signs and symptoms of this typically are intense pain, swelling, changes in skin color, changes in hair or nail growth and temperature asymmetry from one body part to the other.

There is also what is known as fibromyalgia.  Fibromyalgia typically means that the symptoms have lasted for more than 3 months.  Those symptoms are such things as wide-spread pain, tenderness, fatigue, sleep problems, memory problems, cognitive issues, depression, digestive problems and headaches.

There is also what is known as Myofascial Pain Syndrome.  This is typically pain at the level of the muscles and connective tissues.  Active trigger points are a component of myofascial pain syndrome.

Facial Disfigurement

Facial disfigurement claims are often under evaluated because they are looked at only from the point of view of the disfigurement. They must also be looked at from the point of view of the impact upon earning capacity.  The subtle bias against a person who has a facial disfigurement is huge. Unattractive people are viewed more negatively than attractive people. Also people are generally biased in favor of those who are good-looking.

Opportunities in the workplace are sometimes denied to people who are disfigured. Unattractive people are frequently considered less productive and less intelligent. A personal injury attorney handling this type of injury claim needs to be aware of this.

Loss of Income Due To Disfigurement

There are social science findings 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.  The role of the expert is to tell the jury general truths about their specialized experience. That is the basis for the admissibility of social science testimony from a psychologist. He may describe the effect of bias on a facially disfigured person.  The vocational expert then uses these social science studies to prove that disfigurement has harmed or will harm the plaintiff’s potential earning capacity.

Proving Pain and Suffering – Interference, Anchoring and Fusion

All of those modes of measurement mentioned above are important.

Interference means the degree to which the injury interferes with the plaintiff’s life.  The more examples you can give of that, the greater the damages.

As part of the development of your interference theory and perhaps also anchoring and fusion, you should tie it in with some other ideas:

  • Develop a short and simple theme.  If your client has suffered a significant brain injury that is showing significant psychiatric consequences, then your theme may be “she is not the same person she was before the injury”.
  • Develop a damages metaphor.  That theme mentioned above may also be your metaphor.
  • Develop some visuals that demonstrate the theme and/or metaphor.  The visual may be a column-by-column comparison of things that she could do before the injury and things now that she has difficulty doing or can’t do.

Anchoring means trying to establish some numerical anchor that the jury can focus on as a basis for a damage award, in particular for pain and suffering.  For instance in a death case, if a jury hears that the contractor who caused the death was involved in a $5,000,000 contract at the time of the death, that may have some impact on what the verdict is.  The anchor could be the total number of pills that were sold by a pharmaceutical company that were defective.  It could be the total number of tires sold by a tire manufacturer.  It could be the number of lies that the defendant told in this case.  It could be the number of rides per day on a roller coaster.  The anchor number should be introduced early in the case, preferably in your opening statement.  Anchoring means planting an idea in a person’s head that somehow relates to the issue at hand.  That idea may become the basis for the person resolving the issue that they’re asked to resolve.

Fusion is the idea that liability and damages are fused together.  Jurors do not distinguish the two.  They are part of the whole.  Their thoughts on liability impact damages.  The greater the fault of the defendant, probably the greater the damages.  The lesser the fault, the lesser the damages.  The greater the fault is of the plaintiff, then probably the less damages are that will be awarded.

When selecting a numerical anchor, it probably makes sense to try to tie it in with interference and fusion.

Doctor Cooperation

On July 1, 2020 a new law went into effect requiring that treating doctors cooperate with counsel in some litigation needs relating to the client.  This may include such things as providing a fee schedule for such cooperation, scheduling meetings and appearing for depositions and/or trial as needed.  If the deposition of a treating doctor is to be taken, then you need to be mindful of Virginia Code Section 8.01-399 which limits the doctor’s testimony to what is in writing.

Talking Mantra

At some point during your presentation of damages you should develop a mantra for the patient.  If the patient has horrific injuries and is dealing with them, then develop testimony from the plaintiff that he’s in a sorry state, he recognizes he’s in a sorry state but he’s going to do the best he can with the situation.

Talking About Pre-Existing Problems

Early in the case, perhaps in voir dire, the issue should be raised that no one is perfect.  No one has perfect health.  We all have some flaw i.e., some pre-existing condition.

Proving Damages Through Biomechanical Engineers

Biomechanical engineers can be of great aid in certain types of injury claims. Such an engineer is able to explain the nature and extent of physical forces that are imposed on the body and explain how that results in serious injury. Although they may not be used as accident reconstruction experts they can indirectly be used for that purpose as they state that the crash occurred in a certain fashion based upon evidence presented.

In terms of trying to find these types of engineers, excellent places to look are academic centers. In addition reviewing professional and scientific journals may also provide leads. Also these professional journals will bring you current as to ideas these professionals are bouncing around. Finally finding an expert in this fashion avoids the taint of using a search service for this purpose.

One of the early cases on the admissibility of this type of testimony is Mannino v. International Manufacturing, 650 F.2d 846 (6thCir. 1981) which addressed a number of issues as to biomechanical engineers and in that case held such testimony was admissible.

See the highlighted pages for a review of Virginia case law on admissibility of expert testimony and the qualifications of experts.

Suffering

Proving psychological damages such as fear of driving, anxiety and depression is difficult.  Frequently the defense will want to know about any treatment relating to any psychological issues.  If the client is only claiming normal mental anguish arising from physical injuries and not claiming aggravation of any prior condition and likewise is not claiming psychological treatment in this case, then any prior mental health history is probably not discoverable or admissible.

Show, Not Tell

As storytellers, lawyers are supposed to show, not tell.  In any presentation, showing means essentially two things:  detail and drama.  You show something by giving the details.  Sometimes the minute details.  You also inject the drama that is associated with the event.  That shows the audience what you mean.  This as opposed to simply telling them what you mean or what you say happened.

There are a number of ways to show as opposed to simply tell:

Consider the following:

A.  A handwritten diary.  If this was directed by the attorney, then it may be governed by the attorney-client privilege, although you may want to use it as an exhibit.

B.  A life activity calendar.  A life activity calendar is a calendar that shows the activity/pain level of the plaintiff prior to the injury and then the activity/pain level after the injury.  The before and after picture can be telling.  This must be coordinated with the calendar and the medical records.  There may be some dispute as to the admissibility of this but if a day in the life film is admissible, then clearly this is admissible.  Grimes v. Employers’ Mutual Liability Insurance Co., 73 F.R.D. 607 (D. Alaska 1977)  See also the two exhibits that are attached that may help a jury understand the extent of the disability, pain and credibility of witnesses.

C.  Timeline.  Create a timeline for the procedures/office visits that the patient has had and color-code them as to whether or not they are routine office visits, surgical procedures or other such things.

D.  Medical illustrations and animations.  Three-D animations of a surgical procedure may be expensive but it gives the jury a clear sense as to what the patient has gone through.

E.  A video of the day in the life of the plaintiff.

F.  If the person is a gym user, then get a print-out from the gym as to what the person’s routine was pre-injury.  Also get what their usage has been post-injury.

G.  If they wear electronic devices that show their activity level, then get a print-out of that showing the pre-injury activity level and the post-injury activity level.

H.  If your client lost a limb, how would you evaluate that?  There is no easy way to do it other than to explain the details of what the client has lost as seen in:

  • Self-image
  • Self-confidence
  • Sense of worth
  • Independence
  • Safety and security
  • Mobility, both physical and social
  • Dignity
  • Sense of immortality
  • Happiness
  • Ambition and expectation
  • Identity
  • Sexuality

I.  Many clients who have suffered a loss understate that loss.  Your job is to get them to state it correctly.  Not overstated but also not understated.  They can show this to the jury through:

The Physical Side

  • The physical sensations associated with the feelings
  • Is the heart racing?  If so, how does that feel?
  • Is there a shortness of breath?

The Non-Physical Side

  • Do you feel that people are watching you?
  • Do the memories of the event interfere with your daily functions?
  • Are you thinking about the event often?  How often?
  • Do you have flashbacks?
  • Do you have trouble hearing about similar events?
  • What do you do to avoid flashbacks and how limiting is this?

J.  Aggravation of Degenerative Joint Disease.  Your client was involved in a medium impact collision.  The client is 60 years old.  The client had no symptoms before but did have degenerative arthritis in the spine.  How do you deal with that? Get the doctor (plaintiff or defense) to state:

  • This is part of the natural aging process.
  • It is sometimes called wear and tear arthritis
  • People who do physical labor are more likely to show symptoms than are those who have a sedentary existence.
  • Anyone over 40 probably has some arthritis in their spine.
  • They are probably asymptomatic.
  • The harder a person has worked over their life the more of it they have

Differential Diagnosis

  • The process of using differential diagnosis means identifying possible causes and then eliminating all but one of them
  • Here the plaintiff had a positive straight leg raising test right after the injury
  • This means a nerve is being compressed
  • The possible causes are a tumor or bulging or protruding disc
  • There is no evidence of a tumor

Now There Are Symptoms

  • Trauma such as a collision can trigger symptoms.
  • The arthritis is pre-existing but it produced no symptoms.
  • Persons with wear and tear arthritis might go their entire life with no symptoms
  • Now the symptoms are painful.
  • There may have been a loss of flexion.
  • These are symptoms that you typically don’t expect to get better.
  • Physical therapy however may help relieve the symptoms.
  • If the arthritis was made worse, that may cause some pain down the back of the leg.
  • The client can expect these flare-ups upon activity.
  • You’re not able to say when or if these symptoms will ever go away.

K. Permanency.  Permanent injury is generally proved through a doctor saying the condition is permanent. In some cases the doctor may ascribe a numerical rating to the lack of function as was done in Exxon Corp v. Fulgham, 224 Va. 235. This rating may translate into dollars.
L.  Hedonic Damages.  Hedonic damages are essentially the pleasure of living.  They may be included in an award in a personal injury case.  Bulala v. Boyd, 239 Va. 218 (1990).  It’s not clear as to whether this form of damage may be admissible in a wrongful death action.

M.  Reduced life expectancy is a form of damage.  It may be accompanied by mental anguish, depression and emotional upset as stated in Strauss v. McDonald, 67 Va. Cir. 116 (2005).

Terror Damages

What are sometimes referred to as terror damages should not be overlooked. If the victim dies this may be a component of the survival claim. Falling from a height, losing control of a car, falling in an elevator or other terrifying incidents like that are forms of grievous injury. They carry with them mental distress, high anxiety, chilling fear, helplessness that can manifest as physical injury. This physical injury may be seen in a racing heart, inability to breathe, profuse sweating and other ways. However the hard part with these claims may be proving the plaintiff/decedent was aware of the danger. This may require a very precise timeline based on the 911 call, the timing from the EMT/hospital records, eyewitness statements and photos at the scene.

Our Senses Are Wonderful Things and Must Be Treasured

We take for granted the five senses that allow us to make our way through life.  Any injury to these senses may be described as a catastrophic injury. Sight may be the dearest of those senses although that is subject to question.  Many people do not realize how sensitive the human eye is.  It can actually spot the light of a candle 14 miles away.  When your visual perception is described as being 20/20 what that means is that you can clearly see an image such as the letters on an eye chart from a distance of 20 feet.  On the other hand, having vision that is 20/100 means that  you need to be five times closer in order to see those same letters.

People who have lost their hearing maintain that the loss of hearing is more profound than the loss of any other sense, even the loss of sight.  The reason for that may well be that we convey our emotions through our voice.  The inability to communicate those emotions is a huge loss.

Noise

The word “noise” itself comes from the same root as nausea which means sickness.  As such, noise indeed can cause nausea.  It can also cause an increase in blood pressure.

Oddly enough even small amounts of noise effect the human pupil in the eye.  Any noise causes the pupil to increase in size, i.e. to dilate, thereby allowing more light to come into the eye.  This excess of light impacts visual acuity.  When you are doing something that requires close visual attention it is probably best to do it in a quiet environment.

Touch and Smell

The sense of touch is based not only on physical contact but it is also based on near contact.  The nerves that are known as the proprioceptors are those nerves that allow us to gauge exactly where our body parts are.  It is these nerves that allow us to scratch the back of our head. They allow us to know where our left leg is even though we may not be able to see it.

The most sensitive parts of the body are the lips, the back of the neck, the fingertips and the soles of the feet.  The least sensitive is the middle of the back.

The sense of smell is a sense that can be lost through an impact to the brain.  This sense oddly enough has a rather keen “memory”. The human brain can, with a high degree of accuracy, recall smells that it has experienced even in years past.

Our sense of taste is focused around taste buds of which there are approximately 10,000. They are spread over the tongue, palate and inner cheek.  These taste buds are the primary defense against poison.  However as we get older, these taste buds die off. They are not replaced as quickly or as well as is done with a young person.  As a result, older people tend to have less sensitivity to taste than do younger people.  Call, or contact us for a free consult.

Understanding these senses is a must in order to prove damage to the senses.

Emotional Damages of Children

Emotional damages to children can be tough to prove but may be compelling.  This may be very important in cases where the child is not the direct victim but rather is a witness to a horrific injury to a loved one.  Whether these damages can be recovered is based upon nearness to the injury scene, nowness in the sense of the person’s reaction being immediate and finally closeness to the actual victim.

Children tend to be less verbal about their emotions than most adults.  However, children do tend to act out events.  It is this acting out that can provide a good insight into the emotions caused by the event.  This is something that the right health care professional can probably draw out of the child.

School Records

In addition, obtaining school records may be helpful.   How the child performs in school may be an indice of the effect of the injury. Performance within the classroom as seen by the teacher may provide compelling evidence.  If the child has been seen by a guidance counselor or speech therapist at school or outside of school that type of evidence may likewise be dramatic.  Call, or contact us for a free consult.

Call, or contact us for a free consult. For more information on pain and suffering see the other pages on this site. See also the pages on Wikipedia on pain and suffering.

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