Pain Assessment and the Law

Nature News reports on a study that found a correlation between certain brain wave measurements and pain intensity. The not-yet-published study will add to a growing body of neuroscience research that correlates the experience of physical pain with objective findings in brain images and other diagnostic media. This particular study was highly invasive, but a great deal of research involves non-invasive brain imaging. For example, a group of German researchers have reported finding microstructural changes in the brain associated with chronic back pain using a technology called diffusion tensor imaging.

New pain assessment tools have tremendous potential to improve court and administrative proceedings that relate to personal injury and disability. Right now, juries are frequently called upon to assess damages for pain, even though many people exaggerate symptoms; some claims are entirely malingered. On the other hand, people can also have quite genuine claims for which they have little objective proof. And people with certain mental or motor difficulties may be incapable of telling us about the pain from which they nevertheless suffer. Juries and administrative law judges sometimes have little more to go on than hocus pocus. While we're a long way from having technologies ready for the courtroom, it's only a matter of time before courts are confronted with new neurotechnologies purporting to demonstrate the presence, absence, or intensity of pain symptoms.

I discuss these issues in more detail here and will present on these and other issues tomorrow at the University of Pennsylvania's Neuroethics Talk Series.  (Originally posted here.)

Comments

[Lindsay]

I'm an RN, and what a Godsend objective pain assessments would be! As much as I would love to see it, I'm not sure insurance companies would cover this kind of testing in order to determine whether a patient is manipulating so they can either sell or abuse narcotics. Still, at the very least it could be used for worker's comp, disability, personal injury and malpractice claims. Thanks for the post!

[Lindsay]

I'm an RN, and what a Godsend objective pain assessments would be! As much as I would love to see it, I'm not sure insurance companies would cover this kind of testing in order to determine whether a patient is manipulating so they can either sell or abuse narcotics. Still, at the very least it could be used for worker's comp, disability, personal injury and malpractice claims. Thanks for the post!

[Daniel Goldberg]

Adam,

You know we differ on these views, but I think one needs to exercise the utmost caution before presuming that neural correlates of pain will provide objective evidence of pain. As Searle and others argue, there is an ineluctably subjective element to pain, and it is dangerous, IMO, to conclude from the mere correlation of certain brain waves with neural structures associated with pain that we have objective evidence that a person is experiencing pain.

What would be better than seeking to confirm pain via objectiv evidence, as I plan to show in my diss, would be to cultivate a much greater respect for the subjective experience of pain.

[Adam Kolber]

Thanks Lindsay and Daniel for your comments. To be clear, Daniel, I recognize that pain, at some level, is a subjective phenomenon. Nevertheless, we can make certain observations that allow us to make inferences about the pain of others. One such observation involves crying. If we see someone who genuinely appears to be crying, we have some evidence that they are in pain. We could be wrong. They could be cutting onions. But, under typical circumstances, crying gives us some evidence to make an inference about someone else's pain.

Now, some people can fake crying, just like they can fake other symptoms that often correlate with pain. They cannot, however, fake brain structures that, let us suppose, correlate well with chronic pain in subjects who participate in experiments and have no incentives to lie. In the paper, I discuss the search for evidence that might help us make reasonable inferences about the pain of people who have incentives to lie.

I have no problem with cultivating respect for people who are in pain. I do, however, discourage redistributing funds to people who are faking it.

[Daniel Goldberg]

Adam,

Nevertheless, we can make certain observations that allow us to make inferences about the pain of others.

Of course. But to presume that the existence of these signs provides objective evidence of pain is to beg the question. The question itself is whether a neural correlate of pain is in point of fact objective evidence of pain. It's perfectly fine to claim as such, but the claim is just that, and too many simply assert this without acknowleding the deep conceptual difficulties with the presumption.

Now, some people can fake crying, just like they can fake other symptoms that often correlate with pain. They cannot, however, fake brain structures that, let us suppose, correlate well with chronic pain in subjects who participate in experiments and have no incentives to lie.

I don't really disagree with any of this, but I do not think that the conclusion that neural correlates provide objective evidence of pain follow from the premise that it is not possible to fake increased blood oxygenation levels. Moreover, there are profound social, cultural, and ethical implications that derive from the relentless need to objectify pain. Instead of constantly seeking the Holy Grail, we would be much better served to examine why it is that we delegitimize subjective illness experiences.

I do, however, discourage redistributing funds to people who are faking it.

This proposition is somewhat puzzling to me. Given how terrible we treat pain, I would think our policy priorities should focus much more on improving the way we conceive of and treat pain rather than focus on assigning blame on the much smaller percentage of persons who fake chronic pain. Moreover, the notion that large numbers of chronic pain sufferes are "faking it" contributes to the language-destroying characteristics of chronic pain, and both reflects and perpetuates the high levels of stigma that chronic pain sufferers face.

[Adam Kolber]

Daniel,

You're misunderstanding me:

(1) I am discussing the possible use of new technologies to allow us to make inferences about people's pain that are about as good as the inferences that we use all the time in our daily lives (e.g., this person is crying; that's some evidence he or she is in pain). That's the sort of "objectivity" that I'm after here. I make no claims that we can somehow step into the minds of other people. I discuss these issues more in the article.

(2) I didn't say anything about being unable to "fake increased blood oxygenation levels." I realize this example is tangential, but I suspect it's probably wrong, and you seem to attribute it to me..

(3) I have said nothing about what our relative social priorities should be between detecting malingered pain and anything else. So I have no idea why you're puzzled by my comment about not redistributing funds to people who are faking pain. And, while there may be "large numbers" of people faking chronic pain in a country of 300 million people, that says nothing about the percentage of people faking pain.

[Daniel Goldberg]

Adam,

I apologize if I have misunderstood you, so please feel free to correct my interpretations of your comments.

I surely have no objection to using neuroimaging techniques to sharpen our inferences about pain and to improve diagnosis and treatment of pain. Nevertheless, you referred to "research that correlates the experience of physical pain with objective findings in brain images" and "people can also have quite genuine claims for which they have little objective proof." If you did not mean to imply that neuroimaging techniques will supply us with objective evidence of pain, then we have no real disagreement. But I hope you can see why I might have inferred to the contrary from the post.

Still, I don't really understand why improving our ability to assess pain through neuroimaging implicates any kind of objectivity at all, and I think much is at stake in the frequently voiced assertions that fMRI, for example, provides objective evidence of pain.

Re blood oxygenation levels, I'm not sure I understand what you are arguing. You suggested that people cannot fake brain structures, which is what shows up in neuroimaging, which I presumed referred to fMRI imaging. Please correct me if I have mistakenly attributed something to you.

Re policy, I understand you did not say anything about our policy priorities. But you did mention that you are opposed to the redistribution of resources to people faking chronic pain. To that, I simply responded by noting (1) that it is doubtful that large numbers of persons really fake chronic pain; (2) that whatever the number of fakers, they pale in proportion to the number of persons having quite real and vastly undertreated pain; and (3) that focusing unduly on the fakers instead of the terrible problems we have in undertreating "real" pain may simply exacerbate the problems of stigma that chronic pain sufferes face every day.

[mosborn2020]

I think this kind of diagnosis will be more important or useful for medical purposes so as to identify the pain inflicted changes and get a remedy for that, rather that in legal aspect where a person already suffering from some kind of pain can claim its is newly inflicted.
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Mark Osborn
Addiction Recovery Arizona
http://www.addictionrecovery.net/arizona

[Ashok]

Pain Assessment in Patients with Fibromyalgia Syndrome is a Consideration of Methods for Clinical Trials" Published in Clinical Journal of Pain
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NISHITH

http://www.alcoholaddiction.org/arizona