The Medicolegal Challenges of Chronic Pain
The International Association for the Study of Pain (IASP) describes pain as ‘an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage’(1). Although the association between tissue damage and pain is central to this definition, it also takes into account the fact that pain is a psychological state produced by the brain in response to many stimuli (2). Pain is considered to be chronic when it persists for longer than 12 weeks, or beyond the normal expected healing time. Chronic pain is usually secondary to disease or injury and is often initially viewed purely as a symptom. However, there is some debate whether, in certain circumstances, chronic pain should actually be considered a disease entity in its own right (2,3).
Chronic pain is a very common condition, affecting between 15-30% of the adult population worldwide (2), and as many as 50% of UK adults (3). Around 10-15% of adults report severe, debilitating symptoms (2,3). Globally, low back and neck pain are consistently the leading causes of disability, and other chronic pain conditions also feature high on the list of the most common reasons for disablement (3). The costs of chronic pain are high, both in terms of healthcare expenditure and lost productivity, and have been estimated to be up to 10% of gross national domestic product in European countries (2). Due to difficulties in diagnosis and quantification, the establishment of causal factors and the potential adverse effects of some treatment options, chronic pain continues to present some medicolegal challenges.
One of the difficulties in diagnosing pain is that it is, at least in part, a perceptual experience, which varies from person to person and cannot easily be quantified. Furthermore, it is not visible or measurable using objective tests. This means that clinicians have to rely on subjective self-reporting by the patient, as well as more objective observations of functional capacity and accompanying pathology (2–4). Traditionally, the medical profession has viewed pain as a problem solvable only by biomedical means and the psychosocial and environmental factors that may also contribute to the condition have often been ignored (2). Pain conditions in which these factors appear to be more important are not fully understood or accepted, and this can lead to a fragmented approach to their management (5).
Chronic pain conditions with a nociceptive or neuropathic origin, which are associated with clearly identifiable tissue or nerve damage, are relatively easy to diagnose and thus well-understood by healthcare providers. However, for conditions such as fibromyalgia (FM), complex regional pain syndrome (CRPS) and irritable bowel syndrome, there is often no obvious cause and patients may struggle to obtain a diagnosis. The patient may report levels of pain that appear to be much higher than would be expected from the original injury or stimulus (5). It is difficult to prove pain to others in the absence of visible illness or injury, particularly if it appears that the sufferer is seeking an unfair advantage (2). Therefore, some doctors still do not accept the validity of these conditions and often regard them as somatisation disorders, in which psychological distress manifests as physical symptoms (5,6). This may partly be due to the fact that the symptoms of these conditions overlap with those of depression and anxiety, or other somatic conditions that remain medically unexplained, such as chronic fatigue, sleep disturbance and myalgias (6,7). In addition, patients with co-morbid chronic physical and mental diseases are more likely to suffer from chronic pain than those without. Patients who have consulted their GP for nerves, anxiety, tension or depression have a higher risk of also consulting about chronic pain than patients without psychological symptoms, and people who have experienced personal violence or abusive relationships are more likely to report subsequently experiencing chronic pain, regardless of the nature of the abuse or the age at which it occurred (3). It is important to remember though that the relationship between chronic pain and mental health conditions is bidirectional: living with constant pain is a distressing experience and one that is likely to provoke symptoms such as anxiety and depression (2,3). While the absence of definitive tests to prove the reality of certain pain conditions has only served to perpetuate disbelief of their existence among some doctors, it is interesting to note that the scepticism surrounding a diagnosis of a condition such as FM is much higher than for other chronic pain syndromes, such as migraine (5).
Another issue with diagnosing disorders such as FM and CRPS is that the definitions of the conditions, and the diagnostic criteria used to identify them, have changed over time. Thus, some patients may not be classified as sufferers, depending on which criteria are used. Conversely, the most recent criteria for FM not only identify more patients overall, but a greater proportion of men than is usually found. Furthermore, the symptoms of these conditions often fluctuate over time and are worse on some days than others, so that a patient may qualify for a diagnosis on some days but not on others (5).
This fluctuation in symptoms may also make assessing the level of disability suffered by the patient more difficult (5). In the absence of definitive tests, evidence will come chiefly from the patient’s own self-reported symptoms. However, there is no consistent method available to assess the validity of self-reported symptoms or to accurately establish the reliability of subjective reporting. When a patient stands to gain financially, there will always be a suspicion that symptoms might be fabricated or exaggerated. While there is some evidence that rates of malingering are relatively high in chronic pain conditions, particularly those arising from potentially compensable injuries (8,9), a recent study reported that not only are rates of malingering in FM patients very low, but that compensation rarely leads to the resolution of symptoms (10). Assessment of disability often centres around whether a patient has achieved the maximal medical improvement, but where symptoms fluctuate this can be difficult to determine. Instead, ascertaining the patient’s efforts to mitigate their illness, particularly through self-motivation and active participation, may be more useful (8).
The treatment of chronic pain can also present medicolegal issues, and claims relating to this field of medicine appear to have risen in recent years. First-line treatment usually involves the use of analgesic and adjuvant drugs. Incorrect dosing, administration of the wrong, or a contraindicated, drug and incorrect timing of administration are all common reasons for a claim to be launched (11). If mild analgesics fail to give adequate relief, opioid medicines may be prescribed (2). While these may prove helpful to some sufferers, they can also be associated with significant levels of morbidity and mortality (2,11,12). In particular, existing comorbidities that affect the cardiac and pulmonary systems are associated with an increased risk of death in patients receiving opioid medication. Claims may also arise from alleged addiction, due to improper prescribing, or from withdrawal of care (12).
Alternatives to opioid treatment for chronic pain include the use of implanted devices for pain management, such as intrathecal drug delivery systems and spinal cord stimulators. Whatever treatment is chosen, careful patient selection and good communication between physician and patient about possible complications are important steps in preventing adverse events from arising (11,13). However, there may still be unforeseen complications with drug interactions where a patient fails to properly disclose their complete medication list, although in this situation a claim of negligence on the part of the practitioner would almost certainly be successfully defended (11).
Chronic pain is a complex condition that still poses several medicolegal challenges. It can take a patient several years to obtain a diagnosis of FM or CRPS, during which time many will visit three or more doctors before their condition is properly identified and treatment can be commenced (5). Assessment of the severity of symptoms is predominately subjective and suspicions of malingering may remain. While the absence of definitive proof of chronic pain could indeed be exploited by a minority in order to make dishonest claims, it is important to remember that many claimants are legitimate sufferers. Treatment also carries risks, although these can be mitigated by careful patient selection and good communication between doctor and patient.
About Dr Jenner
Dr Chris Jenner is a Consultant in Pain Medicine at Imperial College NHS Trust. He has experience treating over 90 different pain conditions and is a highly experienced expert witness. Dr Jenner regularly presents webinars to a legal audience on medico legal issues related to pain medicine.
References:
1. IASP Terminology – IASP [Internet]. [cited 2020 Mar 12]. Available from: https://www.iasp-pain.org/Education/Content.aspx?ItemNumber=1698
2. Johnson MI. The Landscape of Chronic Pain: Broader Perspectives. Medicina (Kaunas). 2019 May;55(5).
3. Mills SEE, Nicolson KP, Smith BH. Chronic pain: a review of its epidemiology and associated factors in population-based studies. Br J Anaesth. 2019 Aug;123(2):e273–83.
4. Giordano J, Schatman ME. An ethical analysis of crisis in chronic pain care: facts, issues and problems in pain medicine; Part I. Pain Physician. 2008;11(4):483–90.
5. Arnold LM, Choy E, Clauw DJ, Goldenberg DL, Harris RE, Helfenstein MJ, et al. Fibromyalgia and Chronic Pain Syndromes: A White Paper Detailing Current Challenges in the Field. Clin J Pain. 2016 Sep;32(9):737–46.
6. Hauser W, Sarzi-Puttini P, Fitzcharles M-A. Fibromyalgia syndrome: under-, over- and misdiagnosis. Clin Exp Rheumatol. 2019;37 Suppl 1(1):90–7.
7. Littlejohn GO, Guymer E. Chronic pain syndromes: overlapping phenotypes with common mechanisms. F1000Research. 2019;8.
8. Fitzcharles M-A, Ste-Marie PA, Mailis A, Shir Y. Adjudication of fibromyalgia syndrome: challenges in the medicolegal arena. Pain Res Manag. 2014;19(6):287–92.
9. Greve KW, Ord JS, Bianchini KJ, Curtis KL. Prevalence of malingering in patients with chronic pain referred for psychologic evaluation in a medico-legal context. Arch Phys Med Rehabil. 2009 Jul;90(7):1117–26.
10. Yavne Y, Amital D, Watad A, Tiosano S, Amital H. A systematic review of precipitating physical and psychological traumatic events in the development of fibromyalgia. Semin Arthritis Rheum. 2018 Aug;48(1):121–33.
11. Racz G, Noe C, Munglani R. Medico-legal Aspects of Pain Medicine. In: Racz GB, Noe CE, editors. Pain and Treatment. IntechOpen; 2014. p. 1–20.
12. Abrecht CR, Brovman EY, Greenberg P, Song E, Rathmell JP, Urman RD. A Contemporary Medicolegal Analysis of Outpatient Medication Management in Chronic Pain. Anesth Analg. 2017 Nov;125(5):1761–8. 13. Abrecht CR, Greenberg P, Song E, Urman RD, Rathmell JP. A Contemporary Medicolegal Analysis of Implanted Devices for Chronic Pain Management. Anesth Analg. 2017 Apr;124(4):1304–10.