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16 Articles in Volume 19, Issue #2
Analgesics of the Future: Inside the Potential of Glial Cell Modulators
APPs as Leaders in Pain Management
Cases in Urine Drug Monitoring Interpretation: How to Stay in Control (Part 1)
Complex Chronic Pain Disorders
Efficacy of Chiropractic Care for Back Pain: A Clinical Summary
Hydrodissection for the Treatment of Abdominal Pain Caused by Post-Operative Adhesions
Letters: The Word "Catastrophizing;" AIPM Ceases Operations; Patient Questions
Management of Severe Radiculopathy in a Pregnant Patient
Managing Pain in Adults with Intellectual Disabilities
Pain in the Courtroom: An Excerpt
Q&A with Howard L. Fields: How Patients’ Expectations May Control Pain
Special Report: CGRP Monoclonal Antibodies for Chronic Migraine
The Management of Chronic Overlapping Pain Conditions
Vibration for Chronic Pain
What are the dangers of loperamide abuse?
When Patient Education Fails to Improve Outcomes: A Low Back Pain Case

Pain in the Courtroom: An Excerpt

A frank perspective on the pivotal yet double-sided position pain practitioners find themselves in: working to stay focused on the needs of the patient and the requirements of the law.
Pages 66-67

An excerpt* from Managing Chronic Pain in an Age of Addiction, chapter titled “Pain in the Courtroom.

 

Law and medicine have always been intertwined, but that prickly relationship becomes even more complicated in the area of chronic pain. More than most other specialists, pain doctors need to keep one eye on recent advances in medicine and the other on how these changes are playing out in legislation and courtrooms.

While most medical transactions are nonadversarial (barring the occasional malpractice suit), physicians dealing in chronic pain often find themselves embroiled in two very different areas of controversy—government drug policies and financial claims by chronic pain patients.

The former can place the doctor on the ragged edge between legal and illegal activity. The latter can result in a lot of time spent testifying in insurance and workman’s compensation cases. Now what used to be strictly medical has become infused with collective morality (the drug issue) and money.

That’s where the pain specialist enters the picture, often in a scenario where all we can offer from the witness stand is educated speculation. True, in cases of chronic pain from an old injury, we can refer to MRIs or other objective tools that will demonstrate good reason for the patient’s discomfort. In many cases, however, the body’s pain-reporting system seems to have gone haywire, sounding a shrill alarm with no threat in sight.... And that’s assuming the complainant is not doing it for personal reasons, hoping to turn pain into gain.

It has been my experience that the vast majority of my patients come to me with an honest evaluation of their medical problem and a legitimate need for relief. And while there are some shysters and malingerers and scheming personal injury lawyers out there—I’m not naïve—the fact that the people I treat are mostly referred by other physicians throws up another layer of insulation from bogus complaints.

I do make it a practice to try to observe some patients when they don’t know they’re being watched. If their gait, body language, and the manner in which they get in and out of a chair are different than when I’m in the room with them, it raises a red flag with me.

As a rule, my testimony in personal injury and workman’s compensation cases is anything but dramatic. Here is what the tests said, this is what the patient said to me, this is what I observed. I recall one case in which I wasn’t even sure which side my testifying was helping, because, as usual, I was sticking to the facts.

Yet while I am not a lawyer, it’s easy to see that courts at all levels are still sorting through the concept of chronic pain. In one sense, the evolution of decisions has roughly paralleled a growing acceptance of the idea that pain can exist with no obvious, provable cause. This change has not occurred in a straight line, however, and there are hundreds of occasions in which more conservative judges and juries have rejected chronic pain claims altogether.

It wasn’t until 1987, for example, that an Illinois case became the first to use the term fibromyalgia instead of chronic fatigue syndrome in a decision. Yet the law, like everything else, is constantly pushed and swayed by new advantages in technology—medically or otherwise. Today, unlike the early 1980s, it is possible for a white-collar employee to work at home via computer, and that has sometimes been found to be a solution for both parties.

The tendency of most people in the community of chronic pain sufferers is to sometimes cast insurance companies and employers as the villains in legal proceedings. Nevertheless, there are certainly reasonable expectations on both sides, and the murkiness of chronic pain can allow either side to potentially cross the line and take advantage of the other.

Yet, unanswered questions lurk in virtually every chronic pain case. Take, for example, a plaintiff with chronic back pain suing his former employer for requiring him to lift heavy objects. Is the pain real? How can this be determined when there are no overt signs of injury? If it is real, is it truly as severe as the plaintiff claims? And even if it’s real, and severe, what proof is there that it was caused by the heavy lifting and not some previous injury?

[As another example,] the term psychosomatic used to be synonymous with imaginary. And since women are more prone than men to conditions such as fibromyalgia, a certain residual sexism often rears its head in contentions that female pain had “hysterical” origins. Lawyers arguing against paying damage claims have also blamed stress, depression, or mental illness for unproven pain. The question, then, becomes: Is the patient in pain because she’s depressed or depressed because she’s in pain? Studies have been conducted on various groups of patients with similar chronic pain to determine whether there was a higher level of stress, previous psychological trauma, or mental illness within that sample. Invariably, the incidence of those factors is no higher than that exhibited by a random sample of the general population.

However, even now, gaining disability benefits is often a struggle for chronic pain sufferers. According to the Americans with Disabilities Act, “A person has a disability if he/she has a physical or mental limitation that substantially limits one or more major life activities, a record of such impairment, or is regarded as having such an impairment.” Certainly, chronic pain almost always fits the first requirement. The next two, however, can be highly subjective. Is a “record of such impairment” merely a statement that someone came to a health professional with a chronic pain complaint, or is it an indication that the presence of chronic pain was likely from a medical standpoint? If Item 2 is not satisfied, Item 3 becomes moot.

Sometimes, rest areas are offered along the road to disability, especially for employees who are perceived as valuable. But it can be too little, too late. The good news is, at least some of the suspicion once brought to bear on chronic pain cases by the Social Security Administration (SSA) has been washed away by the avalanche of anecdotal evidence. The flip side is that claimants must be sensitive to the natural skepticism of governmental agencies like SSA. After all, not every crown of thorns is real. Con artists do exist.

And what about insurance companies? Here, the sticking point may be the nature of chronic pain rather than its actual existence. Since chronic pain often doesn’t go away, insurers find themselves staring uncomfortably down a long road lined with company-issued checks. But many insurance companies, like many doctors, are solution-oriented. They want quick fixes and often suggest surgery as an early option in hopes of solving the problem. Some are open to alternative therapies such as acupuncture, massage, and yoga; others are wary. Still others will pick and choose their way through the “multimodal” strategy as if it were a salad bar.

 

*Managing Chronic Pain in an Age of Addiction by Akhtar Purvez, MD. Used by permission of the publisher Rowman & Little eld. All rights reserved. Content has been edited for style and clarity.

Last updated on: March 4, 2019
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