Expert Evidence in Chronic Pain


Expert Evidence in Chronic Pain

Medico-Legal issues associated with chronic pain

A) Pre-existing pain

When carefully distilling through the self-report as well as medical evidence associated that has a claimant ‘in pain’, the medico-legal issues, which arise, include:

1. The ‘egg shell skull’ principle – a claimant must be taken ‘as they find him/her’, even if index-event complaints are aggravated by previous health problems.

2. The alternative ‘ predisposition’ type in which a claimant’s vulnerability to ill health or pain could be considered causative of a post index-event condition as well as of which of which would certainly have been triggered by another further occurrence in any event e.g. somatoform personalities.

These two issues have been considered in several cases, e.g. Page v. Smith (1996); Giblett v. Murrays (1999). The key test of causation, arising out of these deliberations as well as in case law is actually whether the index-event, on the balance of probability, caused or materially contributed to or increased the risk of the development or prolongation of the symptoms of a pre-existing pain disorder, physical or psychological/psychiatric.

Claimant Vignette:

Since the accident I have had excruciating pain in my lower back, as well as sharp pain down my left leg – they told me of which is actually because of pressure on my sciatic nerve. of which’s the worst pain I’ve ever had. I can’t sit still as well as can’t settle on anything. I can’t imagine how of which pain could be worse than of which is actually – on a scale of 1 to 100, the severity of the pain is actually 110! I’ve had back pain before however never as bad as of which.

Orthopaedic Expert Vignette:

As soon as I saw Mrs Jones, she looked in pain. She had difficulty walking to the examination room as well as gasped a lot on the way. She got up repeatedly during the interview to walk around. of which was strange as one test I did on her resulted in two different results (one more mobile than the some other) depending how I did the same test – medically of which is actually unusual, if not impossible – I wonder if psychologically she is actually finding of which pain so difficult to cope with of which these ‘unusual medical results’ occur?

B) Diagnosis of pain-related disorders

Typically much of pain experience will have an organic/medical cause, which will be assessed, as well as diagnosed by a ‘medical’ expert e.g. GP, Orthopaedic surgeon. In some cases, despite an initial medical diagnosis, the continuation of the pain experience will be difficult to explain in organic terms or becomes a chronic condition which is actually so complex as well as confounded by social as well as psychological factors of which the original cause has less, if any, meaning. of which is actually at of which stage of which a psychological/psychiatric opinion is actually typically sought. A further Pain Management report coming from an anaesthetist may subsequently also be commissioned. Referring to DSM V (TR), one of the two main classification systems of mental disorders (APA, 2000), disorders involving pain fall into seven categories:

• General medical condition – Fully accounts for the physical complaints.

• Somatoform Disorder – A history of many physical complaints over several years in different body sites, plus gastrointestinal as well as sexual/reproductive areas as well as not fully explained by a known general medical condition.

• Pain Disorder – Typically pain is actually adversely affected by psychological factors such as anxiety as well as depression, in otherwise robust personalities.

• Generalised anxiety disorder – Characterized by worry not limited to, however including, physical symptoms.

• Panic disorder – Somatic complaints occurring only during panic attacks.

• Depressive disorders – Somatic complaints of which are limited to episodes of depressed mood.

• Schizophrenia or some other Psychotic disorders – Somatic concerns of which are of a delusional nature.

In addition:

• A physiological organic pain processing disorder is actually recognised, however is actually very rare.

C) Assessment Issues

When interviewing a claimant whose presentation has been described as one of chronic pain, the following areas require investigation: –

1. Clear history of site-specific pain onset.

of which is actually obtained coming from claimant self-report plus GP (as well as some other medical) attendance information.

2. Evidence of unrelated prior attendance to, typically, medical practitioners for one or more somatic complaints as well as associated frequency of such attendance.

3. Evidence of social factors including partner as well as family response to the pain as well as associated difficulties.

4. Interview data on how the claimant presents as well as verbalises his/her pain.

5. Claimants awareness of how psychological factors (ways of thinking, self-confidence, optimism, behaviour as well as social activity) impacts positively or negatively on the claimants coping strategies as well as perception /tolerance of pain.

6. Reliability of claimants history giving – many people have difficulty recalling or giving accurate history of their pain, due to memory as well as lack of specificity issues, rather than a wish to mislead. Untruthfulness of claimant’s history giving is actually differentiated coming from ‘Reliability’, although of which is actually clearly at the end of the reliability continuum. of which is actually typically for secondary gain such as financial gain as well as is actually ‘conscious’ ie, intended to mislead.

Since the gate control theory (Melzack as well as Wall, 1965) opened up the view of which pain was purely a physical experience a brand-new definition of pain developed

“an unpleasant sensory as well as emotional experience associated with actual or potential tissue damage, or described in terms of such damage (Merskey et al, 1979, p.217). of which definition acknowledges the role of meaning as well as subjectivity inside the pain experience. Wall (1999, p.179) stated of which the practical question of controlling pain cannot ‘be answer satisfactorily until we understand the context in which pain resides. Pain is actually one facet of the sensory world in which we live.

Assessment of a claimant’s experience of pain as well as their beliefs is actually important inside the prognosis as well as or/treatment outcome (Skevington, 1995). Beliefs around coping with general adversity can be informative for how they cope as well as management with pain.

Cultural beliefs can be mediators of how pain is actually experienced. Shi’ite Muslims can believe the pain experience as enabling them to come closer to God whereas Sunni Muslims preferred to seek pain relief (David, 1998).

The chronic pain experience has also been described in relational terms in of which Mason (2004) differentiates people’s relationship with the pain as well as significant others in terms of ‘primary’ as well as ‘secondary’ relationships. When the relationship the person (as well as the significant some other) has with the pain is actually primary, of which can mean the pain is actually all consuming as well as some other important relationships become secondary to of which primary relationship with the pain. In a sense the pain dominates as well as rules over the person’s life which can further impede as well as increase the severity as well as intensity of the pain however also accentuate the difficulties in pain management. Interventions with patients who experience chronic pain can be assisted in exploring their relationship with the pain away coming from a primary relationship to a secondary as well as of which important relationships remain at the foreground or primary thus improving the prognosis. Similarly the fit between the beliefs about the pain (e.g. how the pain should be managed by each of them, as well as their expectations of the some other) between the person with the pain as well as significant others is actually also important in their experience as well as coping with pain. Assessment of the relational component therefore e.g. family members beliefs about pain management can be informative in assessments, management, treatment outcome as well as prognosis.

D) Treatment as well as prognosis of chronic pain

Psychologists as well as pain management specialists are activity engaged in providing psychological (as well as medical) interventions in cases of chronic pain, addressing the several psychological (cognitive, emotional, behavioural) as well as social aspects of disability. of which can be offered either on an individual (one-to-one) basis or as part of a multi-disciplining hospital -based pain management intervention.

Example Pain Assessment Trail during litigation process

GP → Orthopaedic → Psychological/Psychiatric → Pain Management (Anaesthetist)

Multidisciplinary Management Treatment

(Medical as well as Psychological CBT)

Coping with pain: a vignette

Since my accident two years ago, my back continues to hurt as well as stops me doing things at home as well as work. inside the first few months, I saw of which as a medical/physical problem only, however since going to the local pain management clinic I have learnt how to use distraction, as well as some other cognitive (thinking) techniques to put the pain into a context which doesn’t define me. I pace myself – stopping, resting as well as starting again. I take every opportunity to tell myself if I have achieved something. The pain has changed a little however the main thing is actually I think I’m managing the pain better.

Pain-related Joint Orthopaedic/Psychological assessment as well as opinion

To address comprehensively the several medical as well as psychological aspects of chronic pain, some orthopaedic/psychologist teams are currently offering ‘joint appointments’ to lawyers. Such appointments contain the advantage of:

• Same day appointment with orthopaedic specialist as well as clinical psychologist.

• Separate report with agreed conclusions following case discussion between experts.

• Appointment within 6 – 8 weeks.

These assessments cover:


• Location of pain – anatomical, organ system

• Temporal characteristics of pain as well as pattern of occurrence.

• Aetiology.


• Psychological experience of pain.

• Impairment in social as well as occupational functioning.

• Psychological factors in onset, severity, exacerbation as well as maintenance of pain.

• Exclusion of factitious disorder or malingering.

• Use of pain coping strategies as well as readiness to change.

Joint Opinion (orthopaedic / psychological)

On occasion, the court will instruct an orthopaedic as well as psychological expert to discuss their separate, independent opinion as well as prepare a ‘Schedule of Agreement as well as Disagreement’ relating to the claimants chronic pain. Despite the different clinical background of the two experts, discussion views on the interface of physical as well as psychological explanations as well as prognosis can be invaluable to the court’s deliberations.


Ensuring accurate as well as reliable assessment of pain experience as well as associated level of social as well as/or occupational description require careful, often multi disciplinary expert opinions. In particular, the liaison as well as collaboration between psychologists as well as orthopaedic surgeons who understand each some other’s view-point is actually essential. Currently these authors are looking at how reliability of both specialties as well as their joint opinions can be enhanced. Results will be published in due course.


Koch HCH & Hampton N (2011) The experience, evidence as well as opinion on pain. Your Expert Witness. Autumn.

Koch HCH & Mackinnon J (2009) Understanding Ongoing pain. Legal as well as Medical, 13.


Mason, B. (2004) A relational approach to the management of chronic pain. Clinical Psychology, 35, 17-20.

Merskey, H. et al (1979) IASP sub-committee on taxonomy. Pain, 6 (3): 249-252.

Melzack, R. as well as Wall, P.D. (1965) Pain Mechanisms: a brand-new theory. Science, 50: 971-


Skevington, S (1995) Psychology of Pain. Chichester. John Wiley as well as Sons.

Wall, P.D. (1999) Pain: The Science of Suffering. London. Weidenfield as well as Nicholson.