Daniel G. Kagan, trial lawyer and partner at Berman & Simmons

Chronic Pain Cases

Every lawyer who handles personal injury cases has to come to terms with the problems and challenges associated with chronic pain. After all, a chronic pain diagnosis is a red flag for insurers and for jurors. Handled well, such a diagnosis can actually enhance the value of a case. Handled poorly, it is likely to divert attention from the solid evidence of a traumatically induced injury and may even result in defeat in an otherwise valid case. Addressing the chronic pain diagnosis effectively can be both time-consuming and expensive, but failing to do so probably invites a bad outcome for both client and lawyer.

What is “chronic pain”?
A threshold problem in addressing a chronic pain diagnosis is defining it. Who made the diagnosis and what does it mean? Definitions vary among practitioners. For some the defining characteristic is duration – pain lasting more than 3, 6, or even 12 months without abating is labeled chronic pain. Other practitioners focus on the pain’s underlying source. Pain which lasts for a long time but which can be explained by an obvious underlying anatomic abnormality may be just pain, whereas the same symptoms which lack a specific identifiable cause may be called chronic pain. And, for some, the chronic pain diagnosis involves neither a specific duration nor the source of the pain, but simply the subjective judgment that it is “pain that extends beyond the expected period of healing.” Any of these definitions can be problematic if the doctor allows them to be viewed with a negative connotation, such as an implication that the patient’s pain isn’t “real” or, worse, is fabricated.

Is my client’s chronic pain “real”?
Each case is medically different, but in each case the lawyer needs help from an expert to diagnose, explain and prove the significance of the pain. At a minimum, the treating doctor must agree that there is a physiologic explanation for chronic pain. It is widely accepted that nociceptors in injured tissue, once activated by “noxious stimuli”, transmit autonomic responses along neural pathways to the brain. When activated for a prolonged period, the autonomic transmittal of pain response can be hard to reverse, even with medical intervention and care. Chronic pain can be neuropathic, involving enervation of central or peripheral nerves. Once enervated, such nerves can continue to send pain messages through the peripheral nervous system, even after the original trigger has been removed. In every case, you need a doctor who understands and can explain the science of pain.

What are some pitfalls in representing clients with chronic pain?
Some health care professionals find chronic patients professionally frustrating. This frustration can come across in the medical records and can result in patients being referred out repeatedly without resolution or success in resolving the patient’s pain. With multiple doctors finding nothing “wrong,” the patient becomes stigmatized. Overcoming this stigma is critical to successful representation. It requires a significant time investment by the lawyer, obtaining and scrutinizing medical records, retaining and speaking with potential experts, and educating the client.

Special attention should be paid the role of narcotics in a client’s care. A recent headline in the Portland Press Herald proclaimed, “Maine Plagued by Painkiller Habit.” The accompanying article explained that Maine’s addiction treatment rate is eight times the national average, indicating a “growing epidemic of abuse.”

Narcotic medication can provide a much-needed respite from pain while the underlying injury which precipitated the pain heals. Of course, narcotic medication has well-known addictive potential, which can be highly destructive. And, in the media climate exemplified by the Press Herald headline, physicians and other healthcare providers are increasingly concerned about drawing the line between providing helpful palliative care and fostering an addictive behavior.

The oft-favored solution for physicians and healthcare providers is the “narcotic contract” which the patient is required to sign before the prescription for painkillers will be issued. For the unwary lawyer, this contract – and the potential adverse consequences for unwitting or even intentional deviation from its terms – can be devastating to the prospects for a successful outcome. Once a patient is determined– rightly or wrongly – to be in violation of her narcotic contract, the patient’s relationship with the practitioner may be tainted, perhaps irretrievably. Because of perceived liability and licensing concerns, practitioners are quick to document both the narcotic contract violation and the stern warnings she gave the patient. Repeat offenders quickly earn the Scarlet Letter “A”, meaning addict, which usually results in an absolute retraction of all narcotics, sometimes an outright dismissal from the caregiver’s practice, and often an insurmountable hurdle in obtaining another practitioner to take over the client’s care.

When this happens, for the case to succeed, the lawyer may have to intervene. This requires deft handling. Under no circumstances should a lawyer interject herself into a client’s medical care. At the same time, sometimes a client – particularly one suffering from chronic pain – may not be able to articulate her needs effectively. A lawyer has to listen carefully to the client. While this does not mean blind acceptance of whatever the client says, hearing the client in the context of what the caregivers are reporting is critically important for the future of the case. That future has myriad possibilities, ranging from the lawyer opting not to continue representing the patient to intervening with the treating doctor on the patient’s behalf to helping the patient find a proper caregiver, or identifying and securing expert testimony to put the client’s experience in an understandable and sympathetic light. The goal, of course, is to have a client with whom a jury or fact finder can identify.

Conclusion
Handling the personal injury case for the client whose diagnosis includes chronic pain presents particular challenges. A personal injury client who has chronic pain is often frustrated and even angry. Sometimes her doctors will be equally frustrated and even have given up on her. Treatment for chronic pain often includes prescriptions for narcotic use, which today has come to be synonymous with addiction and abuse. A lawyer who handles such a case must be prepared to take on and, where possible, embrace the chronic pain diagnosis. This requires a commitment of time, attitude and expense in order to yield the favorable result that the client deserves and expects.

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Berman & Simmons is the leading personal injury and medical malpractice law firm in Maine. For more than 100 years, our trial attorneys have represented those who have been injured or harmed by the actions of others. These personal injury cases range from car and truck accidents to the most complex litigation involving defective products and malpractice by healthcare providers. We are known as the firm that will stand up and fight for injured Mainers in disputes against big corporations and powerful interests.