Overcoming 4 typical defenses.
By Dorothy Clay Sims
- Defense #1: Failure to Give Pain Scales
- Defense #2: Plaintiff Is Exaggerating/Malingering
- Defense #3: Plaintiff Claims Too Much or Wrong Type of Pain
- Defense #4: Plaintiff Should Be Pain-Free by Now
Some defense experts typically attempt to minimize the plaintiff’s condition and claim the plaintiff is exaggerating his pain. They do this by:
Not giving any actual pain scales to rate the level of perceived pain and/or dysfunction, such as the Pain Disability Index, but concluding the plaintiff’s pain is excessive.
Claiming the plaintiff is exaggerating or malingering, based on Waddell’s signs.
Agreeing that the underlying condition may cause some pain, but not this much pain or this type of pain.
Agreeing the condition exists, but claiming it should have resolved by now and cause no pain.
When cross-examining defense doctors on the issue of pain, first get the doctor to concede (a) the underlying condition can generate pain and (b) people feel pain differently. Most reasonable doctors will agree with this. Next, determine which of the typical defenses the DME is relying on, and use the following techniques to address that specific defense. See §18:06-18:09. For example:
Q: 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’s 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: You would agree that pain can exist without tissue damage?
Q: And you would agree it is impossible to understand the pain that another person is experiencing?
Get your client’s pain checklists and diagrams
Go through the doctor’s file. Many doctors will have a patient fill out a checklist as to type and location of pain. Get a copy. Then research your client’s condition by Googling the condition (let’s say, fibromyalgia) and the descriptions used by your client on the form (e.g., “burning,” “aching”). You will probably pull up legitimate peer-reviewed articles that describe the type of pain expected with that condition using those very words. Why? Because your client is telling the truth.
Also look for a pain drawing. A pain drawing is usually a crudely drawn form used by doctors, on which the patient is asked to shade in or draw the location on the body the patient is experiencing pain. See Appendix 18-A for an example of a blank pain form; Appendix 18-B is an example of pain drawing by a patient with a person has a herniated lumbar disc on the left side, which causes left-sided leg pain. If your client shades in the entire body, front and back, on her pain drawing (see Appendix 18-C):
1. Ask your treating doctor ifwhole body pain is expected from the condition in question. It probably is not.
2. Consider that your client may feel overwhelmed and depressed, and by coloring in the entire body, she is saying this condition has affected her entire body.
3. Your client may be exaggerating.
The DME did not give any actual pain scales to rate the level of perceived pain and/or dysfunction. How do you deal with this? After the doctor agrees the condition can cause pain, ask the following:
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?6
Q: Did you use any pain scales at all?
Q: Did you try to download any free pain scales from the Internet?
Q: Doctor, did you ask my client about medications she had taken that day? [Often, plaintiffs will believe they are not supposed to take medications the day of the examination, and that can certainly explain the amount of perceived pain.]
Q: Do you even know which pain rating scales exist and how they are administered and interpreted?
Q: Did you educate yourself on pain rating by researching articles on the topic and, if so, could you show them to me?
Q: Do you deny my client is actually experiencing pain?
Q: To what, then, do you attribute this pain?
Q: Doctor, is any pain my client experienced related to this condition?
Q: When exactly was it related?
Q: When did it suddenly become unrelated?
Q: What caused it to become unrelated?
The defense doctor may claim your client is exaggerating his pain, based on Waddell’s signs. What are Waddell’s signs? Dr. Waddell devised a test for determining if there was a psychological (i.e., non-organic) component to a patient’s complaints of chronic low back pain. Dr. Waddell believed that if individuals complained of pain when a doctor performed certain maneuvers on the patient’s body that would not normally cause pain, then the patient might actually have a psychological problem, rather than a physical problem. For a complete analysis of Waddell’s signs, including sample questions to ask the DME, see Chapter 7, Debunking Claims of Exaggeration and Malingering, §7:50. Suffice it to say, however, that Waddell’s signs should never be used to determine that a patient does not have pain. They were never intended to rule out pain or rule out an underlying condition.
The DME agrees that the underlying condition may cause some pain, but claims it does not cause this much pain. The problem with this defense is, “How much pain is this much pain?”
Pain is subjective. Studies have been done in which a group of individuals was given the same exact painful stimulus, and fMRIs of the brain revealed these individuals experienced the pain differently.7 Even pure logic dictates that individuals feel pain differently (and most reasonable doctors will agree with this). Therefore, the doctor cannot claim there is a defined amount, frequency or intensity of pain that the plaintiff should feel. If he does, demand he provide you with supporting documentation. There won’t be any.
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 which indicate that this condition does not cause this kind of pain?
Q: Doctor, on a l–l0 scale, with “1” being minimal pain and “l0” being the most pain imaginable, what exact level of pain should my client be experiencing? [Let’s say he says a “3.”]
Q: Is each day the same— a level 3?
Q: Can some days result in my client having less pain?
Q: Using the same logic, doctor, if some days my client might be experiencing less pain, then some days he might be experiencing more pain, right? [The doctor is caught here. If he denies this, and claims your client’s painful condition is such that he can only have periods of less pain and never more, it is so illogical that it defies belief.]
Q: Okay. So some days my client’s pain may be less than a level 3. Is it possible that some days my client’s pain level may be slightly more?
Q: What level 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? I’ll loan you my laptop. It’s connected to the internet and you can search through pubmed.com or mdconsult.com or the websites you routinely use for research. [See generally Chapter 27, Technology, Outsourcing and Cross-Examination, for use of a laptop during deposition.]
Q: Doctor, I’ve done some research myself and found several articles in peer-reviewed medical journals authored by medical doctors like yourself. I’ll show them to you.
Q: Doctor, take a look at these journals. Do you have any evidence or facts that suggest these journals are not well-respected and scientific?
Q: Do you have any evidence—any scientific articles—to suggest the research and opinions set forth are not reliable?
Q: Doctor, I’m not going to ask you if you agree whether these articles are authoritative [because he won’t] but let me ask you this: If these articles indicate that adjectives like “burning” and “tingling” are exactly what one would expect with this type of condition, and you have no articles to support your claim, don’t you think you might want to do some research to see if your claims are scientifically sound?
Q: Doctor, I am connected to the internet. If you’ll tell me the name of a scientific journal you respect, I’ll help you look for those articles right now.
[Or, again, offer him your laptop:]
Q: Doctor, here is my laptop. I am connected to the internet. Why don’t you try to find an article that supports your position? When I typed in the words “herniated discs” and “trauma,” I got 387,000 hits. Don’t you think you could find at least one article or “hit” to support your claim?
Pain is subjective, but potentially verifiable
The DME likely will agree that each person experiences pain differently. However, defense doctors routinely try to turn this fact against the plaintiff by arguing that precisely because pain is a subjective complaint, which is not verifiable, it is, therefore, a questionable complaint. This is not correct. Using the technology associated with fMRIs, doctors can actually see the brain as it experiences pain and objectively verify pain. For example, healthy volunteers in one study were subjected to painful stimuli, and within 3-6 seconds pain-related activations were clearly identified in the cortex and thalamus of the brain.8 Pain can also be objectively tested by using Sodium Pentothal while administering pressure algometry and stretching; in one study, 40 out of 45 cases were found to involve legitimate, objectively documented pain.9 Pain has also been measured using diurnal cortisol variabilities.10 If the defense argues that your doctor did not conduct these tests either, embrace that claim. Why didn’t your doctor do that? Because:
• He didn’t start out disbelieving the patient.
• He didn’t start out ignoring symptoms.
• He already had diagnosed the condition, so there was no reason to keep testing for it, thus causing the patient to undergo more expensive and potentially painful tests.
The DME relying on this defense agrees that the plaintiff’s condition exists, but says it should have resolved by now and should not be causing the plaintiff any pain at all.
Pain can continue after the painful stimulus is removed. This means those simple sprain/strains, from which people should recover quickly, sometimes continue to cause pain— forever. How can that happen?
Sometimes, with chronic pain, an individual will continue to experience pain because it is “remembered” pain. See §18:03, Chronic Pain. 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. For example, think of a song you heard once, and try to remember the lyrics; you probably can’t remember all the words or the tune. If, however, you hear that song over and over again, sometimes you just can’t get it out of your head. Similarly, if you are distracted, you don’t hear “Hey, Jude” played over and over again in your head. If you are not distracted, for example when you are lying down to sleep, you hear the song over and over again. The nighttime is the worst time for people who suffer from chronic pain, because they are not distracted and can’t get the “song” out of their head. If the defense doctor claims this concept of “remembered” pain or “pain loop” does not exist, ask if he 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.11
The DME may claim your client is malingering if the initial basis or cause for the pain no longer exists (e.g., if your client has a discectomy). That simplistic and incorrect conclusion by the DME completely ignores the anatomy of pain, particularly “remembered” pain. Why would a DME reach this conclusion? The reality is that many doctors simply do not understand how pain works on a neuron-biochemical level and may truly believe what they are saying. The study of pain is complicated and involves technical knowledge of electricity, biochemistry and anatomy on a cellular level. (Perhaps there is a more insidious reason? I have heard from several jury consultants that a confused jury reaches a defense verdict. If a DME makes a straightforward case complicated by finding 13 different possible causes, except the most obvious, then the jury can become confused and conclude the plaintiff did not meet his or her burden.)
Finally, there is the Myth of the Green Poultice. How many times have you heard the DME claim the only thing that will cure your client is a financial settlement? What do the statistics really show?12 Make the doctor prove them.
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 money 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, right? [The doctor will claim he means the settlement will result in the pain and treatment going away because, essentially, the plaintiff wasn’t really hurt that badly in the first place. Pin the doctor down. Make him actually say the words which will be quoted in your motion in limine.]
Q: Doctor, what is the base rate of individuals who suffer from this condition and also suffer the symptoms similar to my client’s? Show me where this is documented. [You don’t want his opinion; you want facts, i.e., articles etc.]
Q: Where is a single article that suggests 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 he had this condition, and you were treating him, would you tell him his pain would go away if he obtained money?
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: The term “green poultice” is a sarcastic term, isn’t it?
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 case settles, are you?
Q: Doctor, since you said he’d be “healed’ but you didn’t really mean it, where else in your deposition did you testify to something that you didn’t really mean?
The myth of the “green poultice” is an insulting and obnoxious claim. It should be the subject of a motion in limine in every instance because it is nothing more than rank speculation based on little-to-no facts, or is contrary to the facts. Furthermore, it is so prejudicial that the judge should consider striking any testimony of this type at every opportunity.
Dorothy Clay Sims has perhaps the most unusual legal practice in the nation. She helps lawyers cross-examine doctors in cases involving personal injury, long-term disability, medical malpractice, criminal law, family law, and workers’ compensation. In her 25 years as a lawyer, Ms. Sims has cross-examined thousands of doctors throughout the U.S. In addition to cross-examining doctors herself, Ms. Sims provides notebooks for lawyers to use in examining doctors which include background material on the expert as well as questions to use in deposition and trial. Ms. Sims is senior partner in Sims & Stakenbourg in Gainesvilleand Ocala, Florida, where her firm practices social security disability law and assists lawyers in understanding medical issues. Ms. Sims is the author of Exposing Deceptive Defense Doctors, from which this article is excerpted.