Steps your personal injury attorney can take to prove the true nature of your pain...
Some defense medical experts will attempt to minimize your condition and claim you are exaggerating your pain. They do this by:
On cross-examination of the defense expert, a knowledgeable personal injury attorney will take a two-step approach to expose the problems with these arguments and demonstrate the true nature of your pain and suffering.
When cross-examining defense doctors on the issue of pain, your personal injury lawyer should first get the doctor to concede (a) your underlying medical condition can generate pain, and (b) people experience pain differently. Most doctors – even doctors hired by the defendant — will agree with these two principles.
Here are some questions your personal injury lawyer might ask the defense doctor on cross-examination to gain these concessions:
Once the defense doctor agrees that your condition can cause pain and that pain is an individual and unique experience, then your personal injury attorney can focus the cross-examination on the specific argument relied upon the by the defense expert.
Pain scales are used by medical personnel to measure how intensely a person is feeling pain and to monitor the effectiveness of treatment. If the defense medical doctor did not use one or more pain scales to rate your level of perceived pain and/or dysfunction, then your personal injury attorney might ask the doctor the following questions on cross-examination:
The defense doctor may claim you are exaggerating your pain based on a test called “Waddell’s signs.” What are Waddell’s signs? Dr. Waddell devised a test for determining if there was a psychological (i.e., non-physical) component to a patient’s complaints of chronic low back pain. Dr. Waddell believed that if a patient complained of pain when a doctor performed certain maneuvers on that patient’s body that would not normally cause low back pain (e.g., pushing on the top of the patient’s head), then the patient might actually have a psychological problem, rather than a physical problem. Waddell’s signs should never be used to conclude that a patient does not have pain because they were never intended to rule out pain or rule out an underlying condition. If the defense doctor claims you are exaggerating or malingering your pain based on Waddell’s signs, your personal injury lawyer can ask the following questions to undermine that claim:
If the defense doctor agrees that your medical condition may cause some pain, but claims that it does not, or should not, cause the amount of pain you have, then your personal injury attorney will want to challenge the doctor’s claim on the ground that pain is subjective. Simple logic dictates that individuals feel pain differently. Moreover, studies have been done in which a group of individuals was given the same exact painful stimulus, and brain scans revealed that these individuals experienced the pain differently. Therefore, the defense doctor will be hard pressed to prove that you should be experiencing a defined amount, frequency or intensity of pain. Your personal injury attorney can reveal the lack of evidence to support the defense doctor’s claim by asking questions like these on cross-examination:
The medical expert who relies on this defense will agree that your condition exists, but argue that it should have resolved by now and should not be causing you any pain at all.
Your personal injury attorney can address this defense on several levels.
First, pain can continue after the painful stimulus is removed. Pain travels from the area which is stimulated with pain up pathways to the brain. When those pathways are continually sending the message of pain to the brain, the brain can get stuck in a receiving mode. Thus, sometimes, an individual will continue to experience pain because it is “remembered” pain. If the defense doctor denies the concept of “remembered” pain (or “pain loop”), your personal injury attorney may ask if the doctor has heard of “phantom limb” pain (wherein an individual loses a limb and still perceives pain in the missing limb). This condition is very real. According to the World Health Organization, as much as 69% of those who suffer amputations experience phantom limb pain.
Second, your personal injury lawyer may challenge the defense doctor’s knowledge of pain. The study of pain is complicated and involves technical knowledge of electricity, biochemistry and anatomy on a cellular level. Many doctors simply do not understand how pain works.
Finally, there is the Myth of the Green Poultice. If the defense doctor argues that you will be magically cured by a financial settlement of your personal injury claim (i.e., the “green poultice”), your attorney can challenge that argument with the following questions on cross-examination: