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:
- 1. Not giving any tests (pain scales) to rate your level of perceived pain; or
2. Claiming your are exaggerating or malingering (i.e., faking), based on a test called, “Waddell’s signs”; or
3. Agreeing that your condition may cause some pain, but should not be causing you this much pain or this type of pain; or
4. Agreeing that your condition exists, but claiming it should have resolved by now and should be causing you no pain.
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.
Step 1: Gain basic concessions
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:
- Q: Doctor, you would agree that a person who is experiencing pain is in the best position to know what he is experiencing?
Q: You’ve had pain before?
Q: Pain is real, isn’t it?
Q: And although you call it subjective, it really is not subjective to the person experiencing the pain, is it?
Q: In terms of how much pain an individual is experiencing – again, that person is in the best position to know?
Q: How frequent the pain is – that person is in the best position to know?
Q: How long he or she has had pain – that person is in the best position to know?
Q: The triggers of pain, what activity exacerbates the pain, what causes the pain – again, the person experiencing the pain is in the best position to know?
Q: And you would agree it is impossible to understand the pain that another person is experiencing?
Step 2: Challenge the specific tactic relied upon by the expert
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.
Defense argument #1: failure to give pain scales
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:
- Q: Doctor, how did you determine my client’s pain level to be excessive?
Q: Did you use actual pain scales? For example, did you use the Numeric Rating Scale?
Q: Did you use the Wong-Baker Faces scale?
Q: How about the COMFORT Scale?
Q: The CRIES Pain Scale?
Q: The FLACC Scale?
Q: Did you use Checklist of Nonverbal Indicators?
Q: Did you use any pain scales at all?
Q: Did you know these pain rating scales exist?
Q: Do you know how they are administered and interpreted?
Q: Did you educate yourself on pain rating by researching articles on the topic?
Q: Did you try to download any free pain scales from the Internet?
Defense argument #2: exaggerating or malingering (faking) pain based on Waddell’s signs
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:
- Q: Doctor, do you have the Waddell’s signs administration and interpretation manual?
Q: Show me in your notes where you documented each and every Waddell’s sign you tested.
Q: Doctor, how many Waddell’s signs must an individual have before the Waddell’s signs are considered positive for malingering?
Q: Have you conducted any research that indicates that Waddell’s signs are actually a sign of organic or, in other words, physical impairment?
Q: Doctor, isn’t it true that Waddell’s signs were created to determine if there was a non-organic – that is, a psychological – component to low back pain?
Q: Isn’t it true that the reason for this test is to determine whether or not the patient may need a psychological or psychiatric referral?
Q: Doctor, if you found that my client tested positive for Waddell signs, why did you not make such a referral?
Defense argument #3: your condition should not cause this much pain or this type of pain
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:
- Q: Doctor, before you decided my client really wasn’t feeling this much or this type of pain, did you do any research to determine what kind of pain this condition generates?
Q: Can you show me articles you reviewed that indicate this condition does not cause this kind of pain?
Q: Doctor, on a 1-10 scale, with “1” being minimal pain and “10” being the most pain imaginable, what exact level of pain should my client be experiencing? [Let’s assume the doctor says a “3.”]
Q: Is each day the same – a level 3?
Q: Can my client have less pain on some days?
Q: Using the same logic, doctor, if on some days my client might be experiencing less pain, then on some days he might be experiencing more pain, right? [The doctor is caught here. Logically, the doctor has to agree with this premise; if he disagrees, he loses credibility.]
Q: What is the level beyond which my client should not be experiencing pain? Is it level 7? Level 8? Level 9?
Q: Can you show me any science to back this up?
Defense argument #4: you should be pain-free by now
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:
- Q: Doctor, can this “green poultice” apply to other medical conditions?
Q: Like herniated discs?
Q: Nerve injuries?
Q: Brain damage?
Q: Doctor, can you tell me how money causes a herniated disc to become normal or “unherniate”?
Q: How does money make a herniated disc less painful?
Q: Can you tell me how cash causes nerve injuries to disappear?
Q: Tell me how an injury settlement cures brain damage. I’d like you to walk me through the anatomy of how cash causes damaged brain cells to repair themselves.
Q: Doctor, if money cures the condition and takes away the pain, then does that mean you’ve prescribed “money” to your own patients suffering from the same condition?
Q: Can you show me any scientific articles that suggest the type and frequency of my client’s pain is not expected with this type of injury?
Q: If my client were your patient and you were treating him for this condition, would you tell him his pain would go away if he obtained a personal injury settlement?
Q: Doctor, what exact symptom will be “healed” by the green poultice?
Q: Money won’t make the underlying condition go away, will it?
Q: You’ve already testified the underlying condition can cause pain, correct?
Q: So, you are really saying that my client is lying about his pain to get money, aren’t you?
Q: What exactly is my client lying about—the location of the pain, the frequency, the duration?
Q: Please show me in the documents and records you have each and every documented example of my client lying about his pain.
Q: Claiming my client will be “healed” by the green poultice is sarcastic, isn’t it?
Q: You aren’t really suggesting that my client will be “cured” when his personal injury case settles, are you?