by Dr Hugh Koch, Chartered Psychologist and Director, Hugh Koch Associates LLP
Dr Fay Fraser, Chartered Psychologist, Hugh Koch Associates LLP
Mr John Mackinnon, Consultant Orthopaedic Surgeon, Hugh Koch Associates LLP
Dr Simon Midgley, Chartered Psychologist, Hugh Koch Associates LLP
Medico-legal experts and lawyers alike are faced with several dilemmas when claimants present with unusual, atypical, difficult-to-understand pain symptoms. For example:
1. Is there an organic explanation for the pain (detected or possible)?
2. Is this organic cause sufficient to explain ongoing symptoms?
3. Is there an ongoing psychological cause for the dysfunctional pain coping behaviours?
4. Is this psychological cause specifically painrelated or due to other reasons (e.g. trauma, depression)
5. Is there a pre-existing history of pain behaviour (explained and/or unexplained).
The overlap between orthopaedic and psychological/psychiatric opinion in cases of chronic pain, with significant functional impact, frequently cause lawyers and the court difficulties, in terms of diagnosis, severity assessment, causation and prognosis/treatment (Koch and Mackinnon, 2009).
Figure 1 below illustrates some of the key components of a comprehensive assessment of chronic pain:
Interview Behavioural Assessment
• How does he/she walk into room
• How does he talk about pain (verbal/non verbal)
• How does he describe the pain (duration, severity, level of description)
↓ Careful History Taking
a. Pre-index event
b. Immediate post-index event
c. Current experience/symptoms
Other Sources of Data
a. GP and Hospital records
b. Test data (psychometric, clinical (including Waddel signs))
c. Observation and Surveillance data
↓ Opinion or Diagnosis, Causation and Prognosis
↓ Clarification, Part 35 Questions ↓
Joint Opinion Discussions (Same specialty/cross specialty)
Medico-Legal issues associated with chronic pain
A) Pre-existing pain
When carefully distilling through the self-report and medical evidence associated with a claimant ‘in pain’, the medico-legal issues, which arise, include:
1. The ‘egg shell skull’ principle – a claimant must be taken ‘as they find him/her’, even if index-event complaints are aggravated by previous health problems.
2. The alternative ‘predisposition’ model in which a claimant’s vulnerability to ill health or pain could be considered causative of a post index-event condition and that it would have been triggered by another further occurrence in any event e.g. somatoform personalities.
These two issues have been considered in a number of cases, e.g. Page v. Smith (1996); Giblett v. Murrays (1999). The key test of causation, arising out of these deliberations and in case law is whether the index-event, on the balance of probability, caused or materially contributed to or increased the risk of the development or prolongation of the symptoms of a pre-existing pain disorder, physical or psychological/psychiatric (Koch et al, 2015).
B) Diagnosis of pain-related disorders
Typically much of pain experience will have an organic/medical cause, which will be assessed, and diagnosed by a ‘medical’ expert e.g. GP, Orthopaedic surgeon. In some cases, despite an initial medical diagnosis, the continuation of the pain experience will be difficult to explain in organic terms or becomes a chronic condition which is so complex and confounded by social and psychological factors that the original cause has less, if any, meaning. It is at this stage that a psychological/psychiatric opinion is typically sought. A further Pain Management report from an anaesthetist may subsequently also be commissioned. Referring to DSM V, one of the two main classification systems of mental disorders (APA, 2013), disorders involving pain fall into seven categories: -
• General medical condition - Fully accounts for the physical complaints.
• Somatoform Disorder - A history of many physical complaints over several years in different body sites, plus gastrointestinal and sexual/reproductive areas and not fully explained by a known general medical condition.
• Somatic Symptom Disorder (300.82) - Typically pain is adversely affected by psychological factors such as anxiety and depression, in otherwise robust personalities.
• Generalised anxiety disorder - Characterized by worry not limited to, but including, physical symptoms.
• Panic disorder - Somatic complaints occurring only during panic attacks.
• Depressive disorders - Somatic complaints that are limited to episodes of depressed mood.
• Schizophrenia or other Psychotic disorders - Somatic concerns that are of a delusional nature. In addition:
• A physiological organic pain processing disorder is recognised, but is very rare.
C) Assessment Issues
When interviewing a claimant whose presentation has been described as one of chronic pain, the following areas require investigation: -
1. Clear history of site-specific pain onset. This is obtained from claimant self-report plus GP (and other medical) attendance data and investigations, usually imagine. The efficacy of any treatment is noted.
2. Evidence of unrelated prior attendance to, typically, medical practitioners for one or more somatic complaints and associated frequency of such attendance.
3. Evidence of social factors including partner and family response to the pain and associated difficulties.
4. Interview data on how the claimant presents and verbalises his/her pain.
5. Claimants’ awareness of how psychological factors (ways of thinking, self-confidence, optimism, behavioural and social activity) impacts positively or negatively on the claimants coping strategies and perception/tolerance of pain.
6. Reliability of claimant’s history giving – many people have difficulty recalling or giving accurate history of their pain, due to memory and lack of specificity issues, rather than a wish to mislead. Untruthfulness of claimant’s history giving is differentiated from ‘reliability’, although it is clearly at the end of the reliability continuum. This is typically for secondary gain such as financial gain and is ‘conscious’ ie, intended to mislead.
D) Treatment and Prognosis of chronic pain
Psychologists and pain management specialists are activity engaged in providing psychological (and medical) interventions in cases of chronic pain, addressing the several psychological (cognitive, emotional, behavioural) and social aspects of disability. This can be offered either on an individual (one-to-one) basis or as part of a multi-disciplining hospital –based pain management intervention. More recently, the psychological input has centred on teaching claimants how to use
mindfulness techniques to cope with pain.
Example Pain Assessment Trail during litigation process
Pain Management (Anaesthetist)
Multidisciplinary Management Treatment
(Medical and Psychological CBT)
Pain-related Joint Orthopaedic/Psychological assessment and opinion
To address comprehensively the several medical and psychological aspects of chronic pain, some orthopaedic/pain medicine/psychologist teams are currently offering ‘joint appointments’ to lawyers.
Such appointments have the advantage of:
• Same day appointment with orthopaedic specialist and clinical psychologist.
• Separate report with agreed conclusions following case discussion between experts.
• Appointment within 6 – 8 weeks.
These assessments cover:
• Location of pain – anatomical, organ system
• Temporal characteristics of pain and pattern of occurrence.
• Utilising Waddel signs/eliciting of inorganic clinical signs (Waddel’s spine signs)
• Psychological experience of pain.
• Impairment in social and occupational functioning.
• Psychological factors in onset, severity, exacerbation and maintenance of pain.
• Exclusion of factitious disorder or malingering.
• Use of pain coping strategies and readiness to change.
Joint Opinion (orthopaedic/pain medicin / psychological)
On occasion, the court will instruct an orthopaedic, pain medicine and psychological expert to discuss their separate, independent opinion and prepare a ‘Schedule of Agreement and Disagreement’ relating to the claimant’s chronic pain. Despite the different clinical background of the three experts, discussion views on the interface of physical and psychological explanations and prognosis can be invaluable to the court’s deliberations.
Identifying, diagnosing and apportioning psychological problems and disability in the context of chronic pain is a highly expert field. The psychologist-as-expert is aided by clear diagnosis from orthopaedic colleagues, clear evidence from claimant self-report on level of behavioural activity levels, reinforced (or otherwise) by GP medical attendance records.
In a recent publication (Koch HCH, 2015) the first author outlined a set of 15 ‘postulates’ illustrating how robust opinions required robust reasoning. The following additional postulate (Koch Postulate XVI) concludes this paper.:
‘Irrespective of the prognosis for organically mediated pain, psychologically mediated ‘overlay’ can have a positive prognosis especially with pain-related CBT therapy resulting in increased pain coping and adjustment.’
Koch HCH (2015) Robust opinions need robust reasoning: 15 medico-legal postulates. Solicitors Journal. May.
Koch HCH & Hampton N (2011) The experience, evidence and opinion on pain. Your Expert Witness. Autumn.
Koch HCH & Mackinnon J (2009) Understanding Ongoing pain. Legal and Medical, 13.
Koch HCH, Mackinnon J, Harrop C, Boyd E (2015): Expert Evidence in Chronic Pain. Expert Witness Journal, Winter 2015
Koch HCH, Vallano J, De Haro L (2015): Thin or crumbling skulls: Recommendations for applying these rules consistently to pre-existing status. Solicitors Journal
More information on this topic can be obtained from any author at www.hughkochassociates.co.uk