Recently published in SSRN (and forthcoming the Duke Journal of Gender Law & Policy):
SEEMA MOHAPATRA, Barry University - Dwayne O. Andreas School of Law
Approximately 100 million Americans suffer from chronic pain. Currently, the most common way for physicians to test chronic pain is to ask patients to self report their pain from a scale of 1-10. However, there is much hope and promise that neuroimaging, specifically fMRI technology, will be able to used as an “objective” measure of pain. This objective approach to pain testing could change the landscape of pain medicine and lead to new treatments, as well as expose those misusing the medical system to obtain prescription drugs. There are already tort cases where plaintiffs are hiring private companies to do their brain scan to “prove” their pain in court successfully. In the near future, we can expect neuroimaging to be used by the Social Security Administration to adjudicate SSI Disability Benefits based on pain, by physicians to decide who deserves pain management medication, and by insurance companies for coverage determinations. In both the SSA context and physician treatment context, there is already a strong bias against women and minorities when it comes to pain. Studies have shown that women’s complaints of pain are more likely to be dismissed and their pain regarded as not real. One study demonstrated that female emergency room patients were less likely to be given strong pain medicine for abdominal pain than men. Other studies have shown similar results for racial minorities. There is distrust in the medical community of those who complain of chronic pain, and such distrust exacerbates when the patient is female or a racial minority.
There is much hope that the use of an objective measure of pain may have the effect of leveling the playing field, and allowing women and minorities to “prove” their pain. This Article, however, argues that the use of such objective testing could actually worsen the pain treatment disparities and disability status disparities by ignoring the subjective experience of pain, and how this varies by race and gender. Without large groups of women and minorities tested in the scientific research, the “objective” test may not truly measure pain in all populations. This Article will examine the state of the technology, and how it has been used in torts and criminal cases thus far. Then the Article will argue that the use of the test as a plaintiff friendly tool in the tort setting will not likely translate to a patient friendly tool in the health care and disability context. This section will review the studies related to pain treatment based on gender and race, in the physician and SSI disability environments. This Article argues that neuroimaging testing will likely be used to deny coverage and disability claims more often than in validating patient complaints of pain. Finally, this Article proposes that rather than relying on so-called “objective” measures of pain, addressing inherent bias and providing physician education may be more patient friendly for those suffering from pain related ailments.
There is much hope that the use of an objective measure of pain may have the effect of leveling the playing field, and allowing women and minorities to “prove” their pain. This Article, however, argues that the use of such objective testing could actually worsen the pain treatment disparities and disability status disparities by ignoring the subjective experience of pain, and how this varies by race and gender. Without large groups of women and minorities tested in the scientific research, the “objective” test may not truly measure pain in all populations. This Article will examine the state of the technology, and how it has been used in torts and criminal cases thus far. Then the Article will argue that the use of the test as a plaintiff friendly tool in the tort setting will not likely translate to a patient friendly tool in the health care and disability context. This section will review the studies related to pain treatment based on gender and race, in the physician and SSI disability environments. This Article argues that neuroimaging testing will likely be used to deny coverage and disability claims more often than in validating patient complaints of pain. Finally, this Article proposes that rather than relying on so-called “objective” measures of pain, addressing inherent bias and providing physician education may be more patient friendly for those suffering from pain related ailments.
