The 12th edition of the Judicial College Guidelines has an entire category 8 devoted to chronic pain claims which are now a firm feature of the personal injury litigation landscape. They frequently present as an uncomplicated low-value orthopaedic injury which fails to resolve in accordance with the expected prognosis and then develops into a complex constellation of complaints of diffuse pain, psychological problems and a range of functional impairments. This article provides summary guidance as to how to manage chronic pain claims from the before court proceedings are issue to trial.
Selection of Experts
The first and most important consideration in chronic pain cases is for the Solicitor to ensure the early and correct selection of experts. Experts that might need to be consulted include:
- Consultant Rheumatologist
- Pain Management Expert
- Consultant Psychiatrist
- Consultant Neurologist
A careful assessment of the expert’s clinical and research expertise in the particular pain condition complained of and their ease with both diagnostic and treatment issues needs to be made.
The first discipline to involve is usually orthopaedics. The orthopaedic report will give an assessment of whether the claimant has in fact suffered an organic injury and if so of what severity and duration. If the injury in question is soft tissue in nature, the parties’ respective experts are likely to be in agreement.
A point of contention may arise however if the claimant has a previous orthopaedic history, for example back problems and there is a dispute as to whether the index accident has given rise to an acceleration injury. The potential importance of this dispute is that the claimant has grounds to assert that they have an organic injury causing pain as opposed to there being no continuing organic injury to explain presence of pain.
Consultant Rheumatologist or Pain Management Expert:
Involvement of a consultant rheumatologist or a pain management expert is inevitable in chronic pain cases. The decision as to which expert to involve is not always straightforward given that many of the chronic pain conditions for example Chronic Regional Pain Syndrome are dealt with by both disciplines.
Consultant Psychiatrist or Consultant Neurologist:
A consultant psychiatrist or consultant psychiatrist will be needed to comment on the presence of any stand-alone psychiatric disorders and the diagnosis and treatment of the pain complained of by the claimant. If the claimant has not sustained any head injury, then the role of a consultant neurologist is more limited and this discipline of expertise may not be required. However, if for example, there are complaints of memory loss or nerve root irritation, then such an expert could give useful input as to whether there is an organic explanation for this.
Content of Expert Reports:
In common with other injuries, a detailed assessment of the claimant’s previous medical history and the accident description (as given to the examiner and as compared to accounts given to others) together with a thorough examination are essential. In chronic pain claims, features such as a traumatic childhood, exaggerated reaction to previous injuries or difficult interaction with other professionals can give a valuable insight into the claimant’s condition and likely level of functioning irrespective of the index accident.
From the perspective of making the diagnosis, careful comparison needs to be made between the objective signs and subjective complaints of pain. It is essential that other diagnoses are excluded and stated to have been considered.
Testing the Evidence
Surveillance evidence of the claimant and their internet activity will no doubt be considered in the course of litigation as an aid to resolve the question of whether
(a) there is any functional impairment and if so the extent of the same; and
(b) whether any discrepancies between presentation in a medico-legal context and other situations is conscious or unconscious.
Given that claimants in chronic pain cases often have a complex number of unrelated issues, a multidisciplinary conference to review all of the available evidence (especially that submitted to independent third parties) is essential as early as possible in the litigation as early as possible in the litigation to enable a firm steer on causation and diagnosis to be given.
Lessons Arising from Dealing with Chronic Pain Cases
- It is essential to ensure the appropriate pairing of experts. In chronic pain cases, pairing a consultant orthopaedic surgeon with a consultant rheumatologist/pain management expert on the other side will inevitably mean that in relation to diagnosis and treatment, the orthopaedic surgeon will be outside his or her area of expertise.
- It is important to agree on the relevant diagnostic criteria and how they should be applied.
- Very detailed knowledge of the case is impressive. A forensic analysis of all available records by time tranche combined with clinical detail and familiarity with up-to-date medical research will maximise the chance of that expert’s evidence being preferred.
- Agreements on prognosis (even if there is disagreement as to diagnosis) can lead to considerable savings in damages.
- There is usually evidential scope for arguing for different discount factors to take account of higher functional levels than pleaded.
Defendant insurers can and will video claimants in chronic pain cases. If the footage shows inconstancy between what the claimants told the experts and what is shown in the video the defendant will use this to discredit the person bringing the claim.
A three-part test has to be satisfied for there to be contempt of court:
- The statement was false;
- The statement has interfered, or if persisted in would be likely to interfere, with the course of justice in some material respects; and
- At the time it was made, the maker of the statement had no honest belief in the truth of the statement and knew of its likelihood to interfere with the course of justice
A claimant is likely to lose all his damages and may face prison if he/she has given a false statement.
Chronic pain claims are invariably very high value and are complex in their presentation. In order to litigate them effectively, advisors should obtain early and extensive disclosure, commit to front loading costs and select the expert team carefully in order to assess the evidential strengths and weakness at the first available opportunity. Early Part 36 offers should be considered to maximise litigation pressure, accounts given by the claimant about their condition at different stages to independent third parties need to be the subject of particular scrutiny and parties should be prepared to go to trial to achieve their desired outcome on damages and costs. Post-trial options such as contempt proceedings are now increasingly accessible and practical. They provide the means with which to fight the dishonest claimant in chronic pain litigation.