Addressing Chronic Pain in Serious Personal Injury Cases

As  personal injury lawyers who represent people suffering from traumatic and often catastrophic injuries, we work closely with victims as they progress through the various stages of physical and emotional healing. Physical healing usually manifests in tangible, measurable, and often conclusive ways―bones no longer broken, mobility restored, and wounds healed. The intangible effects, however, such as lingering, constant pain and emotional distress, can be much harder to detect, measure, treat, and prove.

An estimated 76.5 million Americans live with chronic pain, according to the National Center for Health Statistics. While no less real than acute physical injury, chronic pain and its associated psychological and physical challenges all too frequently take a back seat in personal injury legal cases. This is an unfortunate result of diagnostic and treatment shortcomings; difficulties proving the nature and extent of chronic pain; and the insurance industry’s dismissiveness of chronic pain and how it can significantly diminish a victim’s quality of life.

We understand that chronic pain is not a meaningless afterthought to acute injuries. It certainly isn’t to the client who struggles daily with pain that others may view with a skeptical eye. It isn’t to the families who see the toll that pain takes on their loved one every day. And it shouldn’t be to an insurance company or jury assessing the impact that a traumatic injury has and will continue to have on a plaintiff for years to come.

Lawyers need to play a central role in helping personal injury clients experiencing chronic pain receive the treatment they need throughout the duration of the case and guide them away from the overtreatment they don’t need. By doing so, we can also develop the proof required to demonstrate the pervasive, life-altering effects of chronic pain.

Distinguishing Between Acute and Chronic Pain

We all experience physical pain at some point in our lives. For most of us, these episodes are short in duration and relate directly to a recent injury or illness. This is “acute” pain, and it is a condition that is understandable to anyone who has ever broken a bone, sprained an ankle, or undergone surgery. Often associated with an identifiable physical injury and predictably finite in duration, acute pain is readily diagnosed and treated by medical professionals.

While acute pain can make life miserable while it persists, most individuals move forward with few, if any, long-term physical, psychological, or emotional issues after the pain subsides.

The same cannot be said of chronic pain, which becomes a long-term, debilitating, and constant presence in the lives of those who suffer from it. Usually lasting longer than six months, chronic pain can endure even after the original injury or illness that initially caused it has resolved. Some individuals experience chronic pain even when there are no preceding fractures, lacerations, or illnesses. Chronic pain is often generated from nerve trauma that is difficult to detect on medical imaging.

While people have suffered from chronic pain for centuries, its inherently subjective and amorphous nature has challenged the medical profession for a long time. It is only in recent years that many cases of chronic pain have received specific labels and diagnoses, such as fibromyalgia, chronic fatigue syndrome, carpal tunnel syndrome, CRPS, RSD, and myofascial pain.

Physical Pain Is Just One Aspect of the Struggle

For every chronic pain sufferer who finally receives a diagnosis shedding light on the underlying reason for his or her pain, there are infinitely more who struggle to understand why they can no longer live their lives without this constant burden. Some describe it as a continuous flickering flame that is always singeing. That lack of understanding―by the client, their doctors, insurers, and others―can lead to a cascade of other emotional, financial, and legal problems that only make a difficult situation worse.

As noted, a fundamental issue is the challenge of obtaining a proper medical diagnosis. Sometimes, doctors have a hard time identifying or substantiating chronic pain. Clients may perceive skepticism or doubt from their physicians and find themselves visiting multiple doctors in search of relief. Similarly, the lack of a concrete diagnosis may lead insurers or others to deny the client benefits or compensation for injury-related chronic pain.

This combination of physical pain and the inability to obtain either acknowledgment or a solution to that pain can send clients down a rabbit hole of emotional and psychological conditions that aggravate an already diminished quality of life. When chronic pain keeps someone out of work, prevents them from enjoying even the simplest everyday activities, or makes getting a good night’s sleep nearly impossible, it can manifest itself in a variety of detrimental ways, including:

• Depression
• Anxiety
• Substance abuse
• Isolation
• Guilt
• Weight-gain or loss of appetite
• Issues at work
• Loss of interest in sex
• Marriage or relationship problems
• Suicidal thoughts

Opioid Abuse and Addiction: The Unintended Consequences of Masking Chronic Pain

The opioid epidemic that has devastated whole communities and takes lives every single day is often a direct, but unintended consequence of the medical field’s approach to chronic pain. The over-prescription of highly addictive narcotics is also a symptom and evidence of the medical field’s inability to effectively treat and cure chronic pain.  While powerful painkillers live up to the name and provide temporary relief, they do so at the heavy cost of abuse and addiction.

After years of treating nearly every chronic pain “nail” with the “hammer” of opioids, healthcare providers and society at large are finally seeing that alternative approaches need to be explored more aggressively. Unfortunately, these treatments can be expensive and complicated, if not fully effective.  Moreover, the most effective treatment plans tend to involve an interconnected, multidisciplinary approach which many doctors are not trained or authorized to design and oversee.

Doctors may recommend steroids and other types of injections, spinal cord nerve stimulators, occipital nerve stimulators, intrathecal pain drug delivery systems, and surgery, among other possible treatments. Some clients with intense chronic pain may require inpatient treatment in multi-disciplinary pain management programs. Others may try non-traditional ways to address pain, such as yoga, acupuncture, herbal remedies, or chiropractic treatment. Not all of these may work, and many of them may not be covered under a client’s insurance.

Demonstrating and Quantifying the Impact of Chronic Pain

Just as treating a patient with chronic pain requires a multi-disciplinary approach to address the physical, emotional, and financial symptoms, personal injury lawyers need to take a holistic view of their client’s pain and its impact on their lives and those of their families. Doing so is critical not only for helping clients persevere but for helping them to receive fair compensation for all the harms and losses related to the initial trauma.

While the legal system has been somewhat dubious about chronic pain claims in the past, juries have shown a greater willingness to accept severe chronic pain as a real and compensable condition in personal injury cases in recent years. But, as with all aspects of legal damages, plaintiff’s lawyers must have admissible evidence to prove the existence and scope of chronic pain, including medical records, expert and lay witnesses, and videos or photographs that show the wide-ranging impact pain has on a plaintiff each day.

To that end, plaintiff’s personal injury lawyers should consider the following tips when pursuing compensation for chronic pain:

• Develop a robust body of evidence contrasting the client’s life before and after the accident or incident at issue in terms of the pain’s impact. Meet with the client’s family, friends, and colleagues to get a clear and comprehensive picture of the large and small ways the pain has made him or her a different person. The day-to-day and long-term difficulties, the ways in which the pain affects his or her personality, outlook, behavior, and relationships are all central elements of a chronic pain compensation claim.
• Educate yourself about chronic pain and its impact on your client. The last thing that injury clients with chronic pain need is yet another person who doesn’t understand or appreciate the toll it has taken on them. By developing a working knowledge of chronic pain and the specific way it manifests in your client’s life, you can offer peace of mind and confidence while also enhancing your ability to effectively advocate for him or her.
• Take an active role in the client’s pain management and treatment plan. Don’t rely on him or her to get the necessary treatment. Many clients need specialized, multi-disciplinary treatment, such as pain management specialists, psychiatrists, and occupational therapists. While you can and should be involved in the course of treatment, be careful not to be seen as directing care or teaching them to exaggerate their symptoms.
• Clients experiencing pain after an injury often don’t know what may be ahead. As discussed, it can affect every aspect of their personal and professional life. Helping clients to understand and anticipate these challenges is an indispensable part of effective representation.
• Keep a watchful eye on medication or substance abuse. Self-medicating with unprescribed opioids, alcohol, or other drugs to help manage physical pain and endure psychological pain poses a dangerous threat to your client and will be harmful to the legal case.

By handling and presenting chronic pain cases with a clear understanding of the multitude of ways it can diminish a client’s life, lawyers can better express and quantify its effects and enhance their clients’ financial awards. Expanding advocacy beyond the courtroom will help lawyers become vital allies in their client’s long-term efforts to break free from the shackles of physical and emotional suffering.