by Dr Hugh Koch, Chartered Psychologist and Director, Hugh Koch Associates LLP
Dr Mark Sanders, Consultant in Pain Medicine, Spire Norwich Hospital
Dr Tom Boyd, Chartered Psychologist, Hugh Koch Associates LLP
Dr Kate Humphreys, Chartered Psychologist, Hugh Koch Associates LLP
Pain, whatever the cause (constitutional, normal life event (e.g. child birth) or traumatic accident) is distressing and can have many psychological, social and occupational consequences. Using the McGill Pain Index (Wall and Melzach, 1994), (see Fig 1 next page), labour pain can vary between 28 – 36 (on a 50 point scale), clinical pain syndromes (e.g. arthritis, cancer pain, causalgia) can vary between 18 – 42, and post-accident pain from sprain to amputation can vary between 15 – 40.
We have written extensively about the psychological aspects of pain in previous articles in this and other journals, covering the experience of pain (Koch and Hampton, 2011) the relationship between orthopaedic and psychological aspects (Koch and Mackinnon, 2009) with case studies analysis (Koch, 2004)
Other clinicians have described the link between chronic pain and depression (Castairs and Saunders, 2013) and persistent pain (Logan, 2013).
Due to the complex medico-legal issues involved in chronic pain (diagnosis, attribution, duration, prognosis), and the higher level of quantum typically claimed, it is often the case that experts on either side are ordered by the court to prepare a joint statement to clarify areas of agreement and disagreement.
Opposing experts, despite their independence and impartiality, may produce opinions which differ in terms of the following questions: -
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 pain-related 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).
Whither Joint Opinions in Chronic Pain Cases?
The introduction of the Civil Procedure Rules (CPR) in 1999 paved the way for clearer roles and responsibilities for experts when producing opinions in personal injury cases. Each expert is expected to discharge his or her responsibility to the court by producing a robust and independent report based on available information, plus subsequent clarification or amendments when questioned or provided with additional evidence. The pre-CPR practice of obtaining both claimant and defendant-instructed opinions continued with the increased use and expectation of ‘opposing’ experts ‘meeting’ to produced a joint statement (Koch and Kevan, 2005).
The aims of joint statements are to help the court clarify both experts’ opinions, in terms of level of agreement and disagreement. Where there is disagreement, experts are expected to explain whether this is substantive or not. As a result, the need to call the experts to court, and its attendant costs, can be reduced.
As experts frequently instructed by both claimant and defendant lawyers to provide psychological/ psychiatric opinions, we produce on average one or two joint opinions per month at least one of which includes issues of chronic pain. In this paper, we have itemised and discussed some of the key issues which are pertinent to the apparent or real clinical differences in opinions of two psychologists or psychiatrist experts in the same case.
Different timelines for expert assessment
The typical timeline for the involvement of two same-professional experts is:
a. Expert 1 (instructed by claimant-side) – First assessment
b. Expert 1 (instructed by claimant-side) – Second review assessment
c. Expert 2 (instructed by defendant-side) – First assessment
The gap between (c) and either (a) or (b) can result in like-for-like’ comparisons being difficult and less reliable, and result in different opinions based on fluctuation of symptoms/disorder with/without treatment or the effects of additional life events.
If the two experts are instructed at the same time, then the two resulting opinions can be compared ‘like-for-like’ as the claimant would be expected to present and report pain symptoms similarly to both experts. However, although no timeline difference exists, one other variable may occur which can predict differing opinions – that of either the claimant or defendant-instructed expert adopting a style which reduces his/her objectivity and reliability by being over-accepting (‘claimant-orientated’) or over-suspicious (‘defendant-orientated’). This effect has been significantly reduced since 1999 with most experts developing an independent, non-partisan, robust approach to providing balanced opinions (Koch and Elson, 2011).
Experts have different methods for producing a joint opinion. Typically and logically it should involve the following.
a. Logical summary of areas of agreement and disagreement from both reports (produced as a written draft by one expert)
b. Discussion by email and telephone or face to face
c. Revision of summary (as many times as is necessary)
To reinforce our view stated at the outset, the main aim of the joint opinion is to present the court with a clear and relatively unambiguous summary of what the two experts believe and also, having highlighted any disagreement, to try and explain why such disagreement pertains.
Interpretation of pain and its cause: the role of vulnerability and somatisation
The explanation of pain (single site or multi site) following an index event can cause orthopaedic experts a quandary in that their medical model may only explain the pain for an approximate time period. Psychologist and psychiatrists with expertise in the psychological aspects of pain diagnosis and management will debate the possible diagnoses of:
1. Pain disorder with psychological factors
2. Pain disorder with no psychological factors
3. Pain tolerance adversely affected by stress-related psychological disorder or depressive disorder.
They will also consider and debate the level of reliability and/or truthfulness they found at interview and/or when viewing surveillance evidence.
The final piece of the diagnosis ‘jigsaw’ is the presence/ absence of a somatoform disorder defined as many, multi-site physical complaints over several years before and/or after an index event, with some medical inexplicability.
A problematic factor for experts is to what extent a claimant’s underlying personality, tendency to omatosize, and general lifestyle, including alcohol or drug use, ‘colours’ a reaction to a traumatic event or the way it is described to the expert. The ‘but for’ test is often helpful to differentiate index event-related pain problems from personality traits or lifestyle difficulties, however this is often not easy, especially where multiple and independent causes are involved.
Treatment and prognosis issues
Any claimant must try and ‘mitigate his/her losses’ by availing themselves of any appropriate treatment including pain coping therapy. Similarly the expert should be making recommendations for the best available treatment to reduce a claimant’s disability if this has not already been offered by treatment agencies. It is incumbent on the experts to be up to date in discussing and agreeing on appropriate psychological therapies, including CBT and mindfulness, and psychiatric treatments.
What experts think of Joint Opinion process
Recent surveys have found that generally experts have a positive view of the joint opinion process (Koch et al 2011). The key factors that could adversely affect the case and effectiveness of conducting a joint opinion were: -
a. Personality and style of expert: Most experts who had been working for many years attested to their colleagues being easier to get on with and debate differing opinions with. However, the communication style and personality of the other expert could still be a factor contributing to difficulty in producing a useful joint opinion.
b. Accessibility and efficiency of other experts: ‘Sometimes making contact with the other experts was difficult’. When responding to tight time constraints either imposed by the court, instructing solicitors or one’s own competing, often clinical, commitments, the ability to make, rapid and ‘one stop’ contact with the other expert makes life considerably easier, or adversely if absent, very difficult and time consuming.
A balance is always necessary to maintain between individual professional opinion (clinical and medicolegal) and increasing consistency of interpretation of evidence and multi-sourced data. The court requires that the appropriate range of opinions has been considered by both experts in their initial report and subsequently when they undertake the joint opinion (diagnosis, causation, or prognosis) within the key professions and structure of joint opinion with/ without a provided initial agenda.
Training and continuing education might also address within-specialty clarity and reliability of initial opinion, as well as how best to accommodate the several issues raised above in the formulation of future joint opinions.
As discussed in a earlier paper (Koch & Elson 2011) recurrent legal publications have addressed the ‘use of concurrent expert evidence’ (Lazarevic, 2011) and ‘Hot Tubbing’ (Clements, 2011) in criminal cases. In this, the court take expert evidence and the above written/agreed Joint Opinion process a stage further.
To examine, debate and extend the differences between experts ‘opinions’ within the courtroom under the direction of the judge.
The challenge of both joint opinion and ‘hot tubbing’ is to produce reliable and robust evidence whether this be from an individual expert, two experts discussing matters professionally or in court (Koch, 2011).
Making sense of the complexity of chronic pain: The cross-specialty joint opinion
Typically joint opinion discussions take place between experts of ‘like discipline’. However it is not uncommon for cross-specialty joint opinions to be requested by the court (Mackinnon, Koch and Yates 2009). This is most typically in areas of chronic or a typical pain in which any two of the following specialists may be needed: rheumatologist, orthopaedic, psychologist, psychiatric and anaesthetics/pain management. The two experts may be on the same legal side or opposing legal side.
We are aware that in the treatment and prognosis of chronic pain, psychologists and pain management specialists are actively 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 multidisciplining hospital –based pain management intervention.
Example Pain Assessment Trail during litigation
Pain Management (Anaesthetist) ?
Multidisciplinary Management Treatment
(Medical and Psychological CBT)
To address comprehensively the several medical and psychological aspects of chronic pain, some orthopaedic/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
• 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.
This moves on, then, to the potential use of the Joint Opinion (orthopaedic/psychological or pain management/psychologist). On occasion, the court instructs an orthopaedic or pain management specialist 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 two experts, discussion views on the interface of physical and psychological explanations and prognosis can be invaluable to the court’s deliberations.
An example, anonymised/stylised joint statement (pre DSM V) between a psychological and a pain medicine specialist is illustrated in Figure 2 below: -
Figure 2: Psychologist (Dr Y)/Pain management Specialist (Dr X) Joint Statement
The points of agreement are as follows:-
1) Type of Accident:- Mrs X is a 34 year old who was in a traffic accident on 25/12/2012
2) Nature of any psychiatric/psychological symptoms and medical condition post-index event:
a) Mood Disturbance
Exacerbation of pre-existing Anxiety
Ongoing pain (back)
b) We agree she has developed significant disability as a consequence of her pain, consistent with a Pain Disorder with some psychological factors (DSM IV 307-89).
3) There was relevant pre-accident history which impacted on her accident-related problems.
4) We agree that Mrs X has a longstanding pattern of difficulties coping with pain symptoms, which dates back to her adolescence with referrals to clinical psychologists specialising in pain management for help with the psychological aspects of her pain between 2000 - 2010.
In Dr X’s opinion, the pre-existing psychological problems in relation to chronic pain meet the diagnostic criteria for a somatic symptom disorder, which fluctuated between moderate and severe in severity during the years before the index accident. In Dr X’s opinion this somatic symptom disorder exacerbated distress and disabilities due to medical problems and caused episodes of apparent medical distress and disability due to psychosocial stress both before and after the index accident.
In Dr Y’s opinion, her pre-existing coping problems did not amount to a somatic symptom disorder. He notes that in the 12 month period prior to the index incident there was no evidence of maladaptive pain coping problems (self-report and GP records)
In Dr X’s opinion, there has been a complex interaction between Mrs X’s medically caused pain due to a variety of complaints between 2000 and 2010 and that this complicated interaction between psychosocial stress and medically-caused pain has persisted since the index accident.
In Dr Y’s opinion, there was an interaction between her psychological state and his pain tolerance post accident.
We agree that the relative contribution of pre-existing and accident related medical problems and their contribution to Mrs X’s medical pain and to its exacerbation of his psychological symptoms, is a matter for Mr D and Mr E, the orthopaedic experts.
5) We agree that a combined and multi faceted treatment approach is warranted involving pharmacological (drugs), facet joint injections, behavioural activation with physiotherapy, and a psychological approach (cognitive behavioural).
The cost of an initial assessment by a pain consultant with regard to medication is likely to be in the order of £150 - 200, with a 3-4 subsequent visits (at around £150/visit) necessary to establish an effective analgesia regime.
Thoracic facet joint injections may be undertaken at a cost of £2000, with a subsequent denervation procedure (if benefit is significant but short lived) a further £2500. These should be undertaken with a course of physiotherapy (up to 8 sessions)
6) Dr Y (psychologist) suggested a series of 8 – 10 sessions of pain coping CBT therapy (cost on private basis approximately £175 per session, total £1750 approximately).
7) We agree that, with treatment, the claimant’s condition could improve. If she does not increase incrementally her activity level or have some form of therapy, then her condition is likely to remain unchanged.
8) We agree that at the conclusion of any pain management treatment program, a further reassessment by us both is recommended.
The way forward
Experts and the Court frequently debate the validity of the evidence presented in terms of whether data from claimants is accurate and reliable and, whether claimant self report is affected by ‘negative response bias’ or conscious functional overlay. It is thought that thorough assessment of poor cooperation and negative response bias should play a major part in the degree of certainty ascribed to a DSM diagnosis and robust expert opinion about chronic pain (Merten
and Merckelback, 2013).
The fairly useful and explanatory Pain Disorder (3 types; 307.89) in DSM-IV has now been eliminated and replaced in DSM V by the Somatic Symptom disorder (DSM V 300.82). This has caused considerable debate in that it de-emphasises the potential role of psychological factors. Indeed, one eminent researcher (Young, 2013) has suggested Pain diagnosis has been ‘ill treated’ by DSM 5 and considers an alternative – The Chronic Pain Complications disorder as a potential replacement, aiming to capture the psychological state of genuine pain claimants and patients. This debate will, no doubt, rumble on and form part of the deliberation for DSM-VI.
Enhancing the importance of the chronic pain Joint Opinion process is a crucial plank of the developing more towards both a Therapeutic Jurisprudence (TJ)approach to Civil Litigation and also the application of a Total Quality Management (TQM) approach to collaboration between experts (i.e. professional
responsiveness). Independent and impartial experts increase the robustness of their own individual opinion by cooperating in the production of joint statements (Diesen and Koch, 2015).
A final note on chronic pain opinions: In a recent publication (Koch 2015) the first author outlined a set of 15 ‘postulates’ illustrating how robust opinions required robust reasoning. One additional postulate (Koch Postulate XVI) was added (Koch 2015):
‘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.’
Arising from this paper, the following additional postulates pertaining to chronic pain joint opinion consideration include:
• Dispute resolution via the joint statement process is an essential and collaborative intervention in a mutually beneficial undertaking between claimant and defendant (Koch postulate XVII)
• Experts involved in the Joint Statement process should be aiming for greater clarity and understanding of the evidence in its totality, using their individual opinions as a starting point (Koch postulate XVIII).
• The court should consider instructing experts of different professions to take part in Joint Statement preparation in cases of chronic pain (Koch postulate XIX).
Castairs K and Saunders F (2013) The relationship between chronic pain and depression. Expert Witness Journal. 60 – 63
Diesen C and Koch HCH (2015) Contemporary 21st Century Therapeutic Jurisprudence in Civil Cases: Building bridges between Law and Psychology. Ethics,
Medicine and Public Health
Koch HCH (2015) Robust opinions need robust reasoning: 15 medico-legal postulates. Solicitors Journal. May
Koch HCH (2011) Obtaining a high quality joint opinion. EWI, November
Koch HCH (2011) Obtaining a high quality joint opinion. EWI, November
Koch HCH (2004) Orthopaedic and Psychological trauma. PMILL June 20, 5, 7 – 8.
Koch HCH and Elson P (2011) I agree with you but…how to produce a high quality joint opinion. APIL PI focus 21, 2, 16 – 18
Koch HCH, Fraser F, Mackinnon J and Midgley (2015) Decision making in chronic pain. Expert Witness Journal, summer.
Koch HCH and Hampton N (2011) The experience, evidence and opinion on pain. Your Expert Witness. Autumn
Koch HCH and Mackinnon J (2009) Understanding ongoing pain. Legal and Medical, 13.
Koch HCH, Mackinnon J, Harrop C and Boyd L (2015) Expert Evidence in Chronic Pain. Winter
Koch HCH, Morris R, Payne L and Cooper A (2011) Balanced view. Legal and medical 28 – 31.
Logan A (2013) Personal Injury and the problem of persistent pain. Expert Witness Journal. 73 – 76
Merten T and Merckelbeck H (2013) Symptom validity testing in somatoform and dissociative disorder. Psychological injury and law. 6, 122 – 137
Wall P D and Melzack R (1994) Textbook of pain. Churchill Livingstone New York. 339 - 345
Young G (2013) Ill treatment of pain in DSM 5. Psychological Injury and law, 6, 307 – 313
Dr Hugh Koch, Dr Tom Boyd and Dr Kate Humphreys are all clinical psychologists and part of Hugh Koch Associates, Cheltenham UK.
Dr Hugh Koch regularly holds clinics in Birmingham, Cheltenham and London.
Dr Tom Boyd regularly holds clinics in Swindon and Newbury.
Dr Kate Humphreys regularly holds clinics in London and Faversham
Dr Mark Sanders is a Consultant in Pain Medicine, Spire Norwich Hospital Norfolk.