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Hope for chronic pain victims

by Paul Ashurst & Anjali Kanish

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Accidents resulting in the symptoms of persistent chronic pain can present very difficult evidential challenges.

In order for such complex and serious personal injury cases to succeed we have to present evidence that links the chronic pain condition to the injuries suffered in the accident. 

So what is chronic pain?

Pain is considered chronic when it lasts six months or longer and most medical treatment options have been exhausted. Chronic pain conditions include:

Chronic pain is a debilitating condition that affects 14 million people in England alone. It is the most common reason why patients seek medical help.  Awareness of pain as a public health issue was raised by the Chief Medical Officer in his 2008 Annual report

Not all chronic pain is accident-related which adds to the difficulties faced by lawyers when trying to prove a connection to an accident-related trauma.  We typically see soft tissue injuries that will account for the ‘acute’ phase that continues to cause pain beyond what the doctors will say is the likely recovery period. When this happens we also find the medical profession will be unable to offer an explanation for ongoing pain, usually saying that it is ‘out of proportion to the nature of the original injury’. 

Persistent, chronic pain or Chronic Pain Syndrome (CPS) cannot be seen or tested or empirically verified so clinicians are forced to rely on subjective information supplied by the client.  The difficulty in diagnosing pain is perhaps understandable but from an evidential point of view it does make proving a claim very difficult. 

Often the cause is obvious (e.g. a broken leg) but there are times when the source of pain is unseen and although real, it’s very difficult to pinpoint exactly.  The severity of pain and how we experience it also seems to be influenced by other factors like mood or personality.  

Does gender affect perception of pain?

It is often said that women endure pain better than men (the most popular example given to prove that being childbirth).   Whether this true or not is hard to say but the research does suggest women are more likely to suffer from chronic pain. 

Speaking at the Annual Convention of the American Psychological Association Dr. Jennifer Kelly, reported that women experience chronic pain longer, more intensely and more often than men.  Women are also more likely than men to experience multiple painful conditions simultaneously, leading to greater psychological distress and greater likelihood of disability.

Victims of CPS, male or female, must live with its potentially life changing impact but there are still many doctors who do not accept that some individuals have 'abnormal' pain responses.  In the case of personal injury, lawyers may find their clients complaining of acute and constant pain several years post-accident when medical experts have suggested that they would expect a recovery within a six to twelve month period.

The latest thinking suggests that each case has to be dealt with in its own unique way.  In her speech, Dr Kelly offered four tips for better treatment of patients with chronic pain:

In the end there may be no cure, but if the pain can be managed and positive modifications made to behaviour more function can be achieved.  Pain is of course the body’s warning system to prevent injury or harm but the pain linked to long-term conditions like arthritis or back pain is not a warning, it’s just annoying and can often be debilitating.  Over time, that constant pain affects what we can do, our ability to work, our sleep patterns. It can have a strong negative effect on family and friends too.

Pain is subjective

Only the person in pain can really say how painful something is.  Because of that and the inability to precisely test or verify levels and persistence of pain, this type of claim attracts those who do tell untruths.  We have seen cases unravel when Facebook postings, other social media or video surveillance evidence used by defendants show the claimant doing the very things they said they could not do.  In these circumstances a judge is bound to conclude the claim is fraudulent and people have gone to prison.

Even if there is no dispute about fault and the client is evidently a genuine person suffering from chronic pain, it can take years to bring such claims to a successful conclusion.  The point at issue is frequently was it the accident that caused the pain or is it down to pre-accident medical conditions and history?

Lawyers must look at the functional aspects of the difficulties clients experience to prove chronic pain and that can leave a genuine client in a very difficult position.  In the end it is the job of the lawyer to persuade a judge that the pain symptoms have been caused by the original injury.  This can involve obtain a number of reports from medical experts in different disciplines. 

Paul Ashurst, a senior associate with Shoosmiths specialising in personal injury comments:

For most clients, these claims can be long, difficult and often frustrating.  In addition it is not uncommon to find our clients facing allegations of malingering of exaggeration but this ignores the fact that for many a cure would be far more welcome than the compensation.’

The experience of Anjali Kanish, an associate with Shoosmiths specialising in the same personal injury field, supports that view:

‘In any personal injury case, the priority for the legal adviser ought to be the client’s well-being and arranging the correct medical treatment and rehabilitation to aid recovery.  For many clients, the better option than an award to help fund that rehabilitation and recovery would be to have no pain in the first place.’

Can medical science offer a solution?

Scientists from Cambridge University now think they may be a step closer to achieving that aim by studying individuals who do not feel pain at all.  A report  on the BBC website reveals how a chance mutation in his genes means that a young man from Somerset has a congenital insensitivity to pain – any pain of any kind. 

He never experienced it as a child and used to throw himself downstairs to deliberately break his legs so that he would get attention and presents.  His early childhood dare-devilry has left him with severe arthritis in his knees, but of course he does not suffer the pain associated with that affliction either.

It is hoped the discovery could lead to new treatments that instantly switch off the pain felt by millions of people every day.  Chronic Pain Syndrome can result from a major accident (the BBC story gives the example of a young woman who fell 15m and broke her back) but some apparently minor accidents, especially road traffic accidents, can lead to a lifetime of suffering for the victims.  Anjali Kanish comments:

For any client who suffers chronic pain, no amount of money will ever compensate them for a lifetime of agony.  Our client’s wellbeing is our priority.  Their recovery and treatment is what the award pays for. If  this research does lead to treatments that mean, although still injured, victims will not have to tolerate the excruciating agony of everyday living then that can only be a good thing and development should be pursued as rapidly as possible.’

More helpful information about chronic pain can be found at:

•  www.painsummit.org.uk/documents
•  www.britishpainsociety.org/people-with-pain/frequently-asked-questions/

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