…..But it hurrrrrrts! How Do You Prove Pain?

As personal injury attorneys we often come across cases where our clients experience pain, but the pain is undetectable through medical testing. This leaves us the challenge of substantiating our client’s pain without having the benefit of medical evidence to back it up.

Our attorney Jonathan Williams spoke to the obstacles he faces in this regard:Jonathan white background
“Defense lawyers always argue that pain is subjective (based on what the patient says) and there is no test to see if pain is real. Then they try to show examples of the patient exaggerating or pain that is out of context with the injury. They do this to try to persuade the jury to give less money or none at all.”

We found an interesting article on medical advancements that could enable the legal community to substantiate the existence of pain. Advancements in medical testing technology has enabled scientists to correlate blood flow to the brain with pain sensation. While a patient is undergoing an fMRI test, he will be asked to make the movement that produces the pain. Test results will show increased activity in parts of the brain that represents pain. The testing will then enable scientists and doctors to quantify the pain and correlate it with the injury. The theory is that this type of testing will enable the confirmation of the existence of pain.

Although promising for injury litigation in the future, this technology is not yet usable. Jonathan explains why: “This could change things but the science needs to be further developed before it will be admissible in Tennessee. The trial judge serves as a gatekeeper regarding expert testimony and the science must past what is known as the McDaniel Factors.”

McDaniel was a case that listed several nonexclusive factors that courts could consider in determining the reliability of scientific testimony, including
(1) whether scientific evidence has been tested and the methodology with which it has been tested;
(2) whether the evidence has been subjected to peer review or publication;
(3) whether a potential rate of error is known;
(4) whether . . . the evidence is generally accepted in the scientific community; and
(5) whether the expert’s research in the field has been conducted independent of litigation.

As stated in the article “the fMRI has not been embraced by the scientific community as a comprehensive diagnostic tool to show the presence, or absence, of pain” so it may be a while before this type of test is admitted in Tennessee.

As your attorneys we are committed to staying up to date on new technologies that will help us, help you. Built on Tradition, Driven by Excellence. Larry R. Williams, Attorneys At Law. (615) 256-8880