The Pain Physician's Role in Legal Proceedings

By
Gerald M. Finkel, Ralph C. McCullough, II and Erin Joyner

I.INTRODUCTION

Pain is a medical concept. Pain and suffering is a legal concept. Although some legal commentators have attempted to create an ephemeral distinction between the concepts of pain and suffering, these attempts have been unsuccessful. Pain is the sensation of the body, while suffering is the consequence of pain to the individual. However, pain and suffering are so inextricably linked that it is often impossible to determine where one ends and the other begins. Therefore, courts treat pain and suffering as one concept with different components- past and present physical pain, future pain, and mental suffering.

The experience of pain has two consequences: 1) the overt behavior of pain, and 2) the subjective experience of pain. 1 The job that faces physicians is determining the source of the pain and treating the pain. The job that faces the attorney is to help the patient, now the plaintiff, to be compensated for this pain. What is problematic for both professionals is the subjective nature of the pain. How does the physician separate the malingerer from the pain stricken? How does the attorney explain to the jury the subjective feeling of pain?

Physicians, like attorneys, often times face the daunting task of assessing the legitimacy of their patient’s, or client’s, claims of pain. The physician’s job in assessing the validity of these claims is primarily to diagnose and treat the underlying pathology. The physician, however, shares with the attorney, albeit secondarily, the task of assessing the legitimacy of these claims for the purpose of litigation. The attorney knows the law. The physician knows the medicine. Together, they can prove this pain. Thus, the physician, not only occupies the unique position of healer, but also holds the financial future of the patient in her hands.

What makes this process somewhat easier is the growing recognition in the medical community of the concept of pain management. The multi-disciplinary approach to pain helps to alleviate in part the skepticism which used to accompany chronic pain. Although the alleviation of pain is still seen by some physicians as secondary to diagnosis and treatment of the underlying pathology, there are signs that the medical community may soon recognize the alleviation of pain as a primary duty. For example, the Joint Commission of Accreditation of Healthcare Organizations has proposed pain management standards. Standard PE 1.4 provides: “Pain is assessed in all patients.” 2 Examples of implementation of this standard include the suggestions that physicians determine pain intensity through the use of a rating scale; “the onset, duration, variations and patterns;” “alleviating and aggravating factors;” and “effects of pain (impact on daily life, function, sleep, appetite, relationships with others, emotions, concentration, etc.).” 3 The very same factors that the physician must have in order to adequately treat the plaintiff’s pain, the attorney must have to prove pain and suffering.

The purpose of this chapter is to bring to the practice of medicine the practical realities of the court room- how pain and suffering is proved, what is admissible, to what may the physician testify, what can physicians include in medical records that may later help the patient prove his pain and suffering? To these ends, the chapter examines briefly discusses several studies which attempt to analyze the jury decision-making process in pain and suffering cases. The chapter then discusses the basic legal principles, of which physicians should be cognizant in order to help the patient in proving pain and suffering.

A.The Subjectivity of Monetary Valuation of Pain and Suffering

Tort damages for pain and suffering is a controversial topic in the legal community. The disparity in awards for similar injuries has lead many to the conclusion that these awards are excessive and arbitrary numbers. 4

Thus, some conclude that pain and suffering awards should be done away with all together or, at the very least, capped. 5 In the 1980’s, this became the battle cry for many state legislatures, who passed legislation capping the available award for pain and suffering damages. 6 Although such legislation spells bad news for plaintiffs, such proposals are based upon well-founded criticisms of pain and suffering awards. Juries are given little, if any guidance, in how to reach their verdict. Methods, such as the per diem argument discussed later, can provide the jury some guidance, but the fact still remains that even such approaches cannot create a market price for pain and suffering. 7

The decision- making processes of juries is difficult to quantify, especially when it comes to the elusive concept of “pain and suffering.” The same characteristics of pain which frustrate doctors and lawyers also frustrate laymen jurors who are often given few guidelines in assessing the legitimacy of pain and in assigning a monetary value to it. Social scientists and legal commentators have attempted to quantify the mindset of the jury. What information, what details, influence juries’ decisions? Although these questions are impossible to answer with absolute certainty, studies are helpful for attorney and lawyer alike in understanding how this complicated decision is made.

1. How Jury Instructions are Formed

Kahneman and Spitzer examined how the framing of jury instructions can shape jury awards for pain and suffering. 8

The study showed although litigators typically use the “making whole”perspective in pain and suffering litigation, the more lucrative approach is the “selling price” perspective. 9 The latter approach is disfavored by attorneys and courts alike, and may, in fact, be inappropriate in some jurisdictions. 10 Thus, although this information may little direct practical application in litigation, it does demonstrate the very important point that jurors’ perceptions of pain and suffering are not static and can be influenced.

The “making whole” perspective asks the jury at what price can the plaintiff be made whole. 11

The “selling price” asks the jury to determine at what price would the plaintiff sell her good health. 12 Kahenman and Spitzer examined these approaches by asking groups to assign monetary values after being given various jury instructions. In both rounds, instructions based on the making whole perspective and the selling price perspective were given. In the second round, an additional instruction, based on a hybrid approach was given. In both rounds, the “selling price” approach netted the largest award and the “making whole” perspective the smallest. 13

2. Injury Characteristics

The Wissler study 14

examined the way in which juries rated various injuries according to the following factors: 1) Visibility, 2) Physical pain, 3) Duration of pain, 4) Mental suffering, 5) Duration of mental suffering, 6) Severity of injury, 7) Disability, 8)Disfigurement, and 9) Affect of the injury on everyday life. 15 Test subjects were asked to rate several injuries, with varying degrees of information concerning the cause of the injury and plaintiff and defendant’s respective fault levels, and assign a monetary value the injury. This study found that jurors’ perceptions of injuries were sensitive to the characteristics of the injury as opposed to the cause and defendant’s responsibility and that test subjects tended to be consistent in their ratings of the harm of each injury and the differences in degrees among the injuries. 16 Thus, injury characteristics affected ratings on physical pain and mental suffering. 17 The study also found that the monetary value assigned tended to be consistent with test subjects’ severity ratings. The second part of the study, involving slight variation is the procedure and a larger test group, found results fairly consistent with the aforementioned results. This part of the study concluded that test subjects took into account the severity and duration of harm across the board in making a determination of the overall severity of the injury. 18 The study concluded that, of all the factors considered, mental suffering and disability had the strongest impact on awards and pain had the weakest. 19

3. Inferences to be Drawn

These studies together suggests that pain and suffering awards are far from arbitrary and capricious and that the jury does not base the amount so much on which party they like better, but on their perception of the plaintiff’s injury and how the issue of pain and suffering is framed. The Wissler Study also suggests that people have a base line of understanding in relation to human pain and suffering and that their awards reflect a common sense, personal experience approach to awarding these values. The practical application of this study is the demonstration that in order for the plaintiff to receive an award for an injury, that is relatively benign in appearance but that causes great pain, the doctor and the lawyer must be prepared to show how this injury is disabling. As one legal source stated:

“Where it is not apparent to the jury that a particular injury. . . is painful, the physician. . . can give an illuminating medical and physiological explanation of why pain was experienced. By this means, doubts in the minds of the jury can be resolved.” 20

B.Valuation within Sole Province of Jury

Valuation of pain and suffering is within the sole province of the jury. Much of the criticism of pain and suffering awards seems to stem in part from many legal commentators’ fear of the jury and their seemingly omnipotent power. Many worry that laymen jurors, when confronted by the savvy and sleek plaintiff’s attorney, will disregard evidence and follow their hearts, ultimately awarding more than the pain and suffering is really worth. This fear is exacerbated by fact that there is no real method to place a dollar amount on pain and suffering.

The principle that valuation is within the sole province of the jury has many implications in the actual trial. Most importantly, this means that the only power the court has over the award of damages is the power of correction when the award appears to be the result of abuse or passion. 2 1

I.DAMAGES AWARDS

Pain and suffering can be examined before, during, or after the actual pain experience. Implicit in the concept of pain and suffering is an awareness of the pain. Thus, in order to determine whether pain exists in the first place, plaintiff’s level of consciousness must be determined. 2 2

A.Past, present, and future pain and suffering

1.Past and present pain

Damages for past and present pain can be established by plaintiff’s own testimony and medical records. 2 3

However, as will be discussed later in this chapter, such testimony often appears self-serving to the jury. Thus, additional testimony will be needed to buttress plaintiff’s claims regarding the pain and suffering.

2.Future pain and suffering

Future pain and suffering should be evaluated once the patient has stabilized so that the future pain and suffering can be determined with a reasonable certainty. 2 4

Because damages must have a basis in evidence. Therefore, courts have established legal thresholds. The majority rule- the reasonable certainty rule- is that future pain and suffering must be established by a reasonable certainty. 2 5 The minority rule is that future pain and suffering awards are appropriate when this pain and suffering will, in reasonable probability, result from the injury. 2 6 Another minority approach has been adopted in Wisconsin. 2 7 This standard requires that the future pain and suffering award be based upon the “ordinary experience of mankind” in cases where the pain and suffering does not require “special learning, study and experience.” 2 8

Damages for future pain and suffering must usually be established by medical testimony. Unlike past and present pain and suffering, about which the plaintiff is competent to testify, future pain and suffering is generally a medical question. As stated by one court: “Only a medical expert is qualified to express an opinion to a medical certainty . . . as to whether the pain will continue in the future, and, if so, for how long a period it will continue. In the absence of such expert testimony . . . the jury should be instructed that no damages may be allowed for future pain and suffering.” 2 9

Two important components of future pain and suffering are the certainty that future pain will occur and the duration of the pain. 3 0

Thus, where the pain is subjective, medical testimony is necessary. 3 1 There are two exceptions made by many courts regarding the reasonable certainty of future pain component. First, expert medical testimony is not necessary when, based upon the injury, it is common knowledge that future pain and suffering will result. 3 2 Second, expert medical testimony is not necessary when the plaintiff establishes at trial the existence of pain and suffering. 3 3

Plaintiff, however, cannot testify regarding the duration of the pain and suffering or that his injuries are permanent. 3 4 If the injury is permanent, mortality tables may be admitted to establish the duration of plaintiff’s future pain and suffering. 3 5

3.Mental Suffering

Mental suffering is defined as the pain and suffering from the physical injury, “mental reaction” to the injury and “to the possible consequences of the injury.” 3 6 Common examples of mental suffering include fright, nervousness, grief, anxiety, worry, mortification, humiliation, embarrassment, terror, and ordeal. 3 7 There is no set rule or standard to be applied by juries when determining an award for mental suffering. 3 8

However, there are certain rules that can be gleaned regarding the availability of mental suffering damages. First, when the mental suffering accompanies a contemporaneous physical injury, the mental suffering is always compensable. 3 9 Second, most jurisdictions allow recovery for mental suffering which can be traced back to the physical injury. 4 0

Mental suffering is probably the most difficult component of pain and suffering to prove. Obviously, the plaintiff, his family, and friends will testify as to this mental suffering. Additionally, in the absence of direct proof, the jury may infer the existence of mental suffering from the injury itself and compensate the plaintiff accordingly. 4 1

II.PERSONS WHO MAY RECOVER

A.Injured Persons

Only the injured person can recover pain and suffering damages in a personal injury suit. 4 2 Although the injury and the resulting pain and suffering of the plaintiff obviously impact the plaintiff’s family, the pain and suffering award is not a vehicle through which to compensate these people. Rather, causes of action such as loss of consortium are tailored toward such a goal. However, the pain and suffering award is meant to compensate the plaintiff for the pain that he has to endure through no fault of his own.

B.Injured Infants

Traditionally, courts denied infant plaintiffs the right to recover mental pain and suffering awards. 4 3 However, courts today recognize that although a child may be unable to articulate their suffering as adults can, a child’s pain is often clear and perhaps more poignant than the pain of an adult. Although a child may be too young to express this pain, it is often evidenced by crying and other outward manifestations of pain and discomfort. The pain is real even though the child cannot articulate it in the same way as an adult can, and the child is deserving of a monetary award for pain and suffering in the same way that an adult plaintiff is.

Thus, the absence of the infant plaintiff’s testimony does not preclude recovery for pain and suffering. In Capelouto v. Kaiser Foundation Hospitals, the Supreme Court of California held that the trial court erred in instructing the jury as follows: “You are not permitted to award Kim Capelouto damages for physical pain and mental suffering which, although possible, is under the law incapable of proof because of the age of the child.” 4 4 The court drew a distinction between the capacity to experience pain with the ability to describe the pain or discover the cause of pain. 4 5 Thus, an infant is not precluded from recovering pain and suffering damages simply because of an inability to articulate the pain to the doctor or the jury. 4 6

C.Survival Actions

Under the common law, the death of the defendant or the plaintiff in a tort case extinguished the case. 4 7 In the case of the plaintiff’s death, the courts made exceptions for tort actions involving personal property, but not for personal injury. 4 8 Survival statutes abrogate the common law rule that the cause of action is extinguished upon the death of the plaintiff or defendant. 4 9 Thus, a personal injury cause of action which seeks damages for pain and suffering will survive the death of the plaintiff, unless the survival statute explicitly excludes pain and suffering damages. Currently, all 50 states and the District of Columbia have some form of survival statute. 5 0 It is important to realize that these statutes do not create a new cause of action, but that the damages available to the decedent’s family are derivative of the plaintiff’s right to recover when living. It is also important to recognize that these statutes are not necessarily the same as statutes which provide a cause of action for wrongful death. However, survival statutes and wrongful death statutes have been merged by some legislatures. 5 1

Under survival statutes the decedent’s personal representative may recover the same damages the decedent would have in the personal injury lawsuit. However, the one caveat to this general rule is that some jurisdictions expressly preclude the recovery of pain and suffering damages (e.g., Arizona, California, Colorado, Washington). As an example, Arizona’s survival statute provides as follows:

Every cause of action, except a cause of action for damages for breach of promise to marry, seduction, libel, slander, separate maintenance, alimony, loss of consortium or invasion of the right of privacy, shall survive the death of the person entitled thereto or liable therefor, and may be asserted by or against the personal representative of such person, provided that upon the death of the person injured, damages for pain and suffering of such injured person shall not be allowed. 5 2

In the pain and suffering context, the compensable pain and suffering is the conscious pain and suffering from the moment of the accident to the death. The pain and suffering engendered upon those left behind is not within the scope of the survival statute, but is left to the wrongful death statute. Thus, if death occurs instantly or the plaintiff never regains consciousness, there is no award of pain and suffering available. 5 3

D.Witnesses to Injuries of Another

Witnessing the personal injury of another is often a traumatizing. Although no direct physical injury results, as it does to the victim, witnesses sometimes find that they too have been injured by the accident. These witnesses often have a cause of action as well. 5 4

However, this cause of action is somewhat new. Under the “impact” rule, which used to be the majority rule, recovery for mental suffering was not available absent direct physical injury to the plaintiff. 5 5 Many courts have thrown this rule over for one of two rules, both allowing bystanders to recover for mental suffering. 5 6 The first of these more liberal rules in the “Zone of Physical Danger” Rule. 5 7 This rule is stated in Restatement (2d) of Torts §436(2):

If the actor’s conduct is negligent as creating an unreasonable risk of causing bodily harm to another otherwise than by subjecting him to fright, shock, or other similar and immediate emotional disturbance, the fact that such harm results solely from the internal operation of fright or other emotional disturbance does not protect the actor from liability.

The second of these more liberal rules in the “foreseeability test,” which requires that the mental suffering be foreseeable at the time of the accident. 5 8 The caveat to this provision is that in most jurisdictions, this mental suffering must result in a physical injury or physical manifestation of the mental suffering. 5 9

The “Zone of Physical Danger” Rule and the “foreseeability” test both deal with accidents resulting from negligence. When the injury sustained by the victim is the result of an intentional tort such as assault and battery, the witness may have a cause of action under Restatement (2d) of Torts §46, which provides:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. (2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or (b) to any other person who is present at the time, if such distress results in bodily harm.

This section is meant to apply to the most severe form of conduct. It is not meant to furnish a remedy to every person offended or otherwise angry over some trivial matter. 6 0

III.PROOF REQUIRED

A.Valuation

Valuation of pain and suffering, as previously discussed, presents the jury with the unique job of placing a value upon the subjective feeling of another. Besides the requirement of reasonability, there appears to be no consensus as to how the jury is the reach its decisions. However, certain methods of valuation are common. Perhaps the most common is the per diem method.

The per diem approach has not been without controversy. Arguments in opposition to the per diem approach, which are echoed in many court opinions, include the following:

1. There is no evidentiary basis for converting pain and suffering into a monetary sum.

2. Suggesting monetary equivalents for pain and suffering is tantamount to giving testimony or expressing an opinion not disclosed by the evidence.

3. The per diem approach put the defendant at the disadvantage of having to rebut an argument that has no basis in evidence.

4.. The per diem approach often misleads juries into awarding larger sums. 6 1

Arguments in favor of the per diem approach include the necessity to provide the jury with some reasonable considerations and the ability of defense counsel to suggest her own amount. Additionally, proponents argue that per diem approach is merely a suggestion, not evidence, and is usually accompanied by a jury instruction to that effect. 6 2

Jurisdictions are divided into three categories regarding the per diem approach. Some jurisdictions do not allow the per diem approach as a matter of law. 6 3 Some jurisdictions allow the use of this approach at all times. 6 4 Finally, some jurisdictions have decided that the decision to allow the use of the per diem approach is within the sole discretion of the court. When this is the case, the per diem approach often must be accompanied by jury instructions which emphasize to the jury that the argument of plaintiff’s counsel is not evidence, 6 5 the dollar amounts are merely suggestions, 6 6 and that the jury need not adopt this approach. 6 7 In addition to these jury instructions, the court may employ other protective features such as requiring plaintiff to notify the defense that the per diem argument is going to be used. 6 8

The following example of the per diem argument containing many of the aforementioned safeguards was upheld by the Supreme Court of Vermont:

During closing argument, plaintiff suggested that the jury think about the plaintiff’s injury in terms of daily pain and suffering, and then determine what amount of damages would be appropriate compensation for each day of suffering. An average daily figure was suggested to the jury, which it could then multiply by the number of days plaintiff would live…. The jury was told to consider this figure only if it found the calculations useful in qualifying plaintiff’s damages.” 6 9

1.Per diem

The per diem approach involves the determination of two figures. First, the life expectancy of the plaintiff must be determined. Mortuary tables establish life expectancy based on statistical information of the population. Thus, the age of the plaintiff is subtracted from the life expectancy reflected in the mortuary table. 7 0 Second, a value must be placed upon some unit of time – a minute, hour, or day. 7 1 These two numbers are multiplied to theoretically place a value upon the plaintiff’s pain and suffering.

Thus, the per diem approach works in this way:

Step 1:

Plaintiff’s age(at the time of the accident): X

Life Expectancy (based on mortuary table): L

L- X = N (number of years plaintiff must endure pain and suffering)

Step 2:

The jury must assign a value to a pain- free unit of time (for the purposes of this example, the unit of time is one day): D

Step 3:

Multiply the value by 365 in order to place a monetary value of one year.

D(365)= Y

Step 4:

L* Y= Future pain and suffering award

2. Golden Rule

The Golden Rule approach is disfavored by practitioners 7 2 and inappropriate in most courts. 7 3 Golden Rule approach, as the name suggests, asks the jury to base their pain and suffering award amount on an amount they would take to undergo the plaintiff’s injuries. 7 4 Essentially, this approach asks the jurors to place themselves in the plaintiff’s place. Critics of this approach argue that this approach removes any objectivity from the already difficult task of assigning a value to pain, which has no market value, by encouraging jurors to base their award of personal bias. 7 5 Use of this approach is reversible error. 7 6

3.Mortality Tables

Mortality tables, also called mortuary tables, are relevant when the plaintiff faces the prospect of lifetime pain and suffering. These tables “set up court- accepted standards of life expectancy based on statistical data establishing the norms of our population.” 7 7 Although these tables are admissible to show life expectancy 7 8 (and indispensable when using the per diem argument), they are not conclusive. 7 9 Life expectancy is a jury question, and the jury may disregard the tables or estimate the plaintiff’s life expectancy based on their own criteria. 8 0 It is also important to note that an accident may shorten the plaintiff’s life expectancy and , while this is relevant for other damage components of the personal injury award, when awarding damages for future pain and suffering, the jury should consider the plaintiff’s life expectancy in his injured condition. 8 1

A.Witnesses

1.Family Members and Co-workers

Pain and suffering, as previously discussed, is a subjective matter. The only direct proof which can be offered of this pain and suffering is the testimony of the plaintiff himself. However, because such testimony is sometimes seen as self-serving by juries that are skeptical of pain and suffering claims, additional testimony is often used to bolster the plaintiff’s claims. Although the testimony of the physician is vital to giving the plaintiff’s claims medical validity, the testimony of family members gives an inarguably less medical but sometimes more poignant look at the physical pain experienced by the plaintiff and how this effects his daily life. Family members and co-workers are able to offer a before and after comparison of the plaintiff that the physician and the medical records cannot. 8 2

Testimony given by the family members will likely include the plaintiff’s initial reaction to his injury, what complaints he made directly following the injury, and the duration of his recuperation. 8 3 The family member will also testify to plaintiff’s activity level and hobbies before the injury in comparison to now. 8 4 The family member will also testify as to the strain that plaintiff’s injury has placed on other areas of his life and the family’s welfare, including the financial situation of the family and the effect of plaintiff’s pain on his relationships with family members. 8 5 Co-workers can similarly testify as to how the injury has effected plaintiff in the context of the workplace.

In some states, verbal expressions of pain (not made immediately preceding the accident so as to be a part of the res gestae) made to family, friends, and co-workers may be considered inadmissible hearsay. 8 6 (However, the same verbal expressions may be admissible when made to a medical professional.) Many courts allow the introduction of such states under various exceptions to the hearsay rule. 8 7

When the verbal expression involves objective manifestations of pain such as moaning or crying, consensus seems to exist that such testimony is admissible. 8 8 When the verbal expression consists of a statement by the plaintiff, courts are less consistent in their approach. 8 9 Some courts take the more liberal view that as long as the statement was made in such circumstances as to guarantee its reliability it is admissible. 9 0 Other states such as New York and Georgia take a more stringent approach, disallowing verbal statements made by the plaintiff to non-medical professions. 9 1

Additionally, some states allow such verbal expressions under the state of mind exception to the hearsay rule. 9 2

2.Physicians

The physician is perhaps the most important and credible witness the plaintiff can offer. The reason is obvious. Unlike the plaintiff and his family, who may have a motive to lie or exaggerate, the physician stands to receive no economic benefit from the ultimate verdict. Additionally, physicians, unlike other professions, are perceived by society as honest professions bound by morality and their Hypocratic Oath to do good.

V. The Physician’s Role in Litigation

The importance of the physician’s testimony cannot be overstated. Given this importance, the physician should remain cognizant of certain legal principles in order to offer the best testimony possible.

A.Testimony as to Existence and Severity of Pain

1.The Physician’s belief in the patient’s pain and suffering is vital.

As noted above, the plaintiff’s testimony concerning past and present pain is direct proof of the pain and suffering. However, physician testimony that, in the physician’s opinion, the plaintiff’s pain was real will help to bolster the plaintiff’s claim. Physician testimony that the patient is feigning or malingering is admissible. The physician may also testify as to her opinion that the pain is real. 9 3 Although it is an elementary principle, this principle warrants attention: The physician’s belief in the patient is vital. As noted in Lawyers’ Manual Cyclopedia of Personal Injuries and Allied Specialities:

In the opinion of at least one medical expert, physicians are often the worst persons to testify at trial to the pain suffered by a plaintiff. After seeing thousands of patients complaining of pain over the course of years, many physicians . . . pain in a relatively minor category. 9 4

2.Another’s Expressions of Pain to prove the existence and severity of pain.

As already discussed, the great difficulty in proving pain and suffering is lies in the subjective nature of pain. As suggested by the Wissler study, jurors tend to better understand the pain and suffering associated with severe injury as opposed to less severe injury. 9 5 Thus, although a physician cannot prove with certainty that a plaintiff’s pain is genuine, that physician may testify as to the objective manifestations of pain by the plaintiff. 9 6 These objective manifestations are particularly important when the patient appears relatively “physically sound.” 9 7 Such objective findings include tears, perspiration, moaning, facial expressions such as grimacing, limitations in motions, and changes in vital signs. 9 8 Thus, the physician and staff should include such objective behavior in the medical record of the patient.

3.Statements Made for the Purpose of Medical Diagnosis

The term “hearsay” is a technical, legal term that has become part of the American lexicon. Laymen understand the word to mean that out-of-court statements are not admissible in court. This is, in fact, the correct understanding. However, the rule against the admission of hearsay is a rule that has been swallowed up by its exceptions. Rule of 803(4) of the Federal Rules of Evidence is just such an example. The rule provides :

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(4) Statements for Purposes of Medical Diagnosis or Treatment. Statement made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations,or the inception or general character of the cause or external source thereof as reasonably pertinent to diagnosis and treatment.

This exception makes no distinction between examining and treating physicians. Thus, a physician examining the plaintiff for the purpose of testifying can testify as to statements made by the plaintiff concerning his condition. Thus, physicians should pay careful attention to the complaints of the patients. It is important to note that this rule does not require the statement be made to a doctor. Thus, the physician should instruct his staff to be vigilant in listening to and recording these complaints. 9 9

4.Referral to Pain Management Treatment strongly speaks to the physician’s belief in the legitimacy of the plaintiff’s pain.

The case, City of Philadelphia v. Shapiro, 10 0 is illustrative of this point. Plaintiff,

Anthony Laurelli, was injured in an auto accident in 1954. 10 1 Over the course of the next 9 years, plaintiff repeatedly received treatment for his pain. 10 2 Defendant’s argument on appeal was that the trial court erred in allowing the plaintiffs’ doctors to testify as to plaintiff’s pain. 10 3 The court noted that it is the jury’s role to decide whether the doctor has been deceived. 10 4 The court went on to state:

Had Dr. Olsen in this case doubted the existence of the pain described by the plaintiff Laurelli, he certainly would not have drilled a hole in his head, lifted his brain, searched for a tiny nerve and snipped it with the scientific hope that by this cutting he would shut off the agony which was taking the patient in and out of hospitals, away from his work, away from his recreations, away from the pleasures of life he had enjoyed prior to the accident of 1954. 10 5

B.Although the physician’s belief is vital, objective tests should be conducted to reinforce the physician’s opinion.

Although the doctor’s testimony is key as to the doctor’s belief in the sincerity of the patient’s pain, the treating physician should conduct objective tests to reinforce her opinion. 10 6 Also, it is important that physicians recognize that individuals have different levels of pain. Thus, unlike the use of pain as an indicator of an underlying ailment, pain also affects the quality of a patient’s life and thus the degree of pain felt is relevant. 10 7

1.Patient’s Threshold for Pain

As discussed above, a significant impediment to a truly effective claim for pain and suffering is the public perception that those suffering from pain and suffering are using the legal system to extort money from defendants. Although there are among the body of plaintiffs malingerers, such a perception ignores the medical reality that individuals have varying thresholds for pain. 10 8 The defense will attempt to exploit this perception by offering medical evidence that the plaintiff is malingering. 10 9 Therefore, the physician should be prepared to address the pain threshold issue 11 0 and should include in the medical record any pain threshold tests conducted.

Physiological factors, cultural factors, personality characteristics, and lifestyle factors contribute to the varying thresholds of individuals. Differences in the chemical make-up of individuals, as in the production of endorphins and serotonin, contribute. 11 1 Also, one’s culture, for example, whether one’s culture teaches to maintain a stiff upper lip, contributes. 11 2 Personality traits, such as how one handles stress, contribute. 11 3 And, finally, lifestyle choices, such as one’s level of physical fitness, contribute. 11 4 Thus, a patient’s complaints of pain cannot be dismissed because they seem out of proportion to the injury actually sustained.

No medical test can determine with certainty whether a patient is actually experiencing pain. However, some tests are available which may be helpful in drawing some type of conclusion in this regard. 11 5 These tests include the superficial touch test, the superficial pain test, the temperature test, and the deep pressure test. 11 6 Additionally, tests such as the Pain Index Predictor can be helpful. 11 7

2.Pain Indicators

Aside from determining the patient’s pain threshold, the physician should undertake some objective tests to determine the existence of pain. Because pain is a subjective complaint, the jury may be unpersuaded by the plaintiff’s testimony if no concrete medical evidence is presented to back up the plaintiff’s claims. Thus, the physician should undertake objective tests, not only for her own purposes of diagnosis of pain and referral to pain management, but also to aid the patient’s claim for pain and suffering.

Although such a step is obvious to the physician, what is not readily apparent is that objective test undertaken may or may not be admissible, depending on the test’s purported reliability and acceptance within the medical community. Thus, a new, experimental procedure may be an excellent diagnostic source and, yet, be inadmissible in court.

It is important for the physician to understand the criteria by which these procedures will be evaluated. Depending on the court, the objective test will have to pass muster with one of the following tests.

The first test is known as the Frye test, based on the 1923 case Frye v. United States. 11 8 There, the defendant, in a criminal case, sought to introduce a “deception test.” The court held that these test results were inadmissible. The court stated:

Just when the scientific principle or discovery crosses the line between experimental and demonstrable stages is difficult to define. Somewhere in the twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from the well-recognized scientific principle or discovery, the thing from which the deduction is made is sufficiently established to have gained general acceptance in the particular field in which it belongs. 11 9

Under Frye, the test must be one that has crossed this line. Although, this case offers little guidance in the way of factors to which one should look in order to determine whether the line has been crossed and the test has become an accepted procedure, a test commonly used by doctors will undoubtedly pass this test.

Many viewed the standards of Frye to be far too stringent. Thus, over fifty years after this decision, the Federal Rules of Evidence were adopted. 12 0 Because it is not entirely clear whether the Federal Rules have superseded or merely liberalized Frye, 12 1 the physician must be cognizant of both tests when deciding on which objective test to use. The Federal Rules of Evidence which are relevant here include rules 401, 403, and 702. 12 2 These rules provide as follows:

Rule 401 Definition of Relevant Evidence

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable of less probable than it would be without the evidence.”

Rule 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

Rule 702 Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, training, or education, may testify thereto in the form of opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Stated simply, evidence must be relevant, and even then it may be excluded in the face of time constraints or the possibility of prejudice.

The application of rules 401 and 403 requires a balancing by the court of relevance versus the possibility of unfair prejudice or delay. Some courts have articulated factors which may be considered when making this balance. 12 3 The Williams court considered the potential rate of error, 12 4 the existence and maintenance of standards, 12 5 and “the care and concern with which a scientific technique has been employed, and whether it appears to lend itself to abuse,” 12 6 and “the presence of ‘fail-safe’ characteristics” 12 7 as factors of reliability. Thus, the physician would be well-advised to consider these factors when deciding which objective tests to use.

Implicit in the requirement of relevance in Rule 401 and explicit in Rule 702 is the requirement of reliability. Thus, in order to meet this burden, the physician should take certain steps. The first is most obvious is to choose a reliable and accepted test. (Although the Frye test has been superseded in some jurisdictions by the adoption of the Federal Rules of Evidence, acceptance in the medical community would obviously be a persuasive factor in determining the reliability of the procedure.) Secondly, the physician should be aware of any independent acts of the patient which could skew the results. 12 8 For example, the results of thermography, although generally considered reliable, may be altered by patients wishing to alter the test in their favor. Thus, the physician should include in his record the fact that the patient was given all relevant instructions before the test and that the patient indicated that he had complied with all these conditions. 12 9

C.Other Areas of Testimony

Thus far, we have discussed areas of testimony that are relevant for establishing the existence and severity of the plaintiff’s pain. Other areas of testimony include, the duration of treatment and future treatment that will be required. 13 0 Future pain and suffering, as a general rule, must be established with medical testimony. Testimony regarding the duration of treatment and the future treatment required tend to help establish future pain and suffering damages with a reasonable certainty. Additionally, the physician should be prepared to explain to the jury the pain management approach.

D.Practical Suggestions

1.The relationship between the attorney and the physician

Essential to a successful personal injury case, especially those cases involving pain and suffering not readily apparent to the jury, is a thorough understanding, on the attorney’s part, of the plaintiff’s injury. 13 1 Although attorneys who regularly work in the personal injury arena will likely have a good working knowledge of medical terms and procedures, this experience is no substitute for a medical degree. Thus, the physician should be prepared to help the attorney review and understand the medical records. 13 2 Additionally, the physician should be prepared to offer the attorney referrals to medical literature. 13 3

I.Conclusion

In proving pain and suffering, the attorney faces the complicated task of making the jury understand what cannot be quantified or empirically shown. The attorney, in essence, must tell the story of the plaintiff’s pain and suffering. Like all great story-tellers, attorneys must not only give the facts, but must also create the picture of pain. Attorneys use a number of devices in telling this story. First and most obviously, attorneys put the plaintiff on the stand to explain his pain and the effect that it has had on his life. The attorney also puts family, friends, and co-workers on the stand to testify as to what the plaintiff has said and how the pain has impacted his life and his relationships with others. However, the testimony of friends, family, and co-workers may be limited by the hearsay rule. Additionally, both the testimony of the plaintiff and his family and friends may be doubted by skeptical jurors. Thus, the physician’s testimony is vital in bolstering the plaintiff’s claims. Additionally, attorneys use demonstrative aids such as blown-up medical records and blown-up pictures of objective tests, such as the thermograph.


1 Dennis C. Turk, Assessment of patients’ reporting of pain: an integrated perspective, 353 The Lancet 1784, 1785 (May 22, 1999)

2 Http:// www.jcaho.org/standard/pm.html (Visited Jan. 22, 2001).

3 Id.

4 Mark Geisfeld, Placing a Price on Pain and Suffering: A Method for Helping Juries Determine Tort Damages for Nonmonetary Injuries, 83 Calif. L. Rev. 773, 776 (1995). See also Oscar G. Chase, Helping Jurors Determine Pain and Suffering Awards, 23 Hofstra L. Rev. 763 (1995).

5 Mark Geisfeld, Placing a Price on Pain and Suffering: A Method for Helping Juries Determine Tort Damages for Nonmonetary Injuries, 83 Calif. L. Rev. 773, 776-77 (1995).

6 Id.

7 See DAN B. DOBBS, HANDBOOK ON THE LAW OF REMEDIES 545 (1973); Oscar G. Chase, Helping Jurors Determine Pain and Suffering Awards, 23 Hofstra L. Rev. 763, 769 (1995).

8 J. Kahneman & Matthew L. Spitzer , Framing the Jury: Cognitive Perspectives on Pain and Suffering Awards, 81 Va. L.Rev. 1341 (Aug. 1995).

9 Id. at 1372.

1 0 Id. at 1375.

1 1 Id. at 1342

1 2 Id.

1 3 Id. at 1372.

1 4 Roselle L. Wisser, et al., Explaining “Pain and Suffering” Awards: The Role of Injury Characteristics and Fault Attributes, 21 Law and Hum. Beh. 181 (1997).

1 5 Id. at 188.

1 6 Id. at 199.

1 7 Id.

1 8 Id. at 199-200.

1 9 Id. at 201.

2 0 31 Am Jur 2d Damages § 264.

2 1 See Id. at §§260, 1023.

2 2 Conscious Pain and Suffering is not a Matter of Degree, 74 Marq. L. Rev. 289, 302 (1991).

2 3 Id.

2 4 Id. at 304.

2 5 22 Am Jur 2d Damages §245.

2 6 Id.

2 7 Conscious Pain and Suffering is not a Matter of Degree, 74 Marq. L. Rev. 289, 311 (1991).

2 8 Id.

2 9 See Conscious Pain and Suffering is not a Matter of Degree, 74 Marq. L. Rev. 289, 310 (1991), quoting Diemel v. Weirich, 58 N.W.2d 651, 652-52 (1953).

3 0 Id.

3 1 22 Am Jur. 2d Damages §915.

3 2 22 Am Jur. 2d Damages §1006; 9 PERSONAL INJURY: ACTION, DEFENSES, DAMAGES §3.04[2][c] (Louis R. Frumer & Melvin I. Friedman, eds. 1998).

3 3 9 PERSONAL INJURY: ACTION, DEFENSES, DAMAGES §3.04[2][c] (Louis R. Frumer & Melvin I. Friedman, eds. 1998).

3 4 Id.at § 3.04[2][c].

3 5 Id.

3 6 22 Am Jur.2d Damages §251.

3 7 Id. at §252

3 8 Id. at §261

3 9 9 PERSONAL INJURY: ACTION, DEFENSES, DAMAGES §3.04[2][ii] (Louis R. Frumer & Melvin I. Friedman, eds. 1998).

4 0 Id. at §3.04[2][ii].

4 1 Id. at §3.04[2]iv]

4 2 RALPH C. MCCULLOUGH, CIVIL TRIAL MANUAL II 788 (1980).

4 3 Id. at 789.

4 4 103 Cal.Rptr. 856, 858.

4 5 Id. at 860.

4 6 Cases allowing children to recover pain and suffering damages: Reale v. Wayne Tp., 332 A.2d 236 (N.J. Super. 1975); Hiraldo v. Khan, 699 N.Y.S.2d 456, 267 A.D.2d 205 (2 Dept. 1999); Williams v. Williams, 641 N.Y.S.2d 408, 226 A.D.2d 710 (2 Dept. 1996); Reid by Reid v. County of Nassau, 627 N.Y.S.2d 396, 215 A.D.2d 466 (2 Dept. 1995).

4 7 DAN B. DOBBS, HANDBOOK ON THE LAW OF REMEDIES 551 (1973)

4 8 Id.

4 9 10 PERSONAL INJURY: ACTION, DEFENSES, DAMAGES §1.02[2] (Louis R. Frumer & Melvin I. Friedman, eds. 1998).

5 0 Id. at §1.02[1].

5 1 Id. at §1.02[2].

5 2 Ariz. Rev. Stat. Ann. §14-3110

5 3 10 PERSONAL INJURY: ACTION, DEFENSES, DAMAGES §3.02 (Louis R. Frumer & Melvin I. Friedman, eds. 1998).

5 4 RALPH C. MCCULLOUGH, CIVIL TRIAL MANUAL II 788 (1980).

5 5 9 PERSONAL INJURY: ACTION, DEFENSES, DAMAGES 3.04[2][b][vi](Louis R. Frumer & Melvin I. Friedman, eds. 1998).

5 6 Id.

5 7 Id. at 3.04[2][b][vii].

5 8 Id.

5 9 Id. at 3.04[2][b][viii]

6 0 RESTATEMENT (SECOND) OF TORTS §46, Cmt. d.

6 1 See e.g., Giant Food v. Satterfield, 603 A.2d 877, 879 (Md.App. 1992).

6 2 Id.

6 3 See e.g., Pool v. Bell, 209 Conn. 536, 551 A.2d 1254 (1989); Henne v. Balick, 51 Del. 369, 146 A.2d 394 (1958); Ferry v Checker Taxi Co., 165 Ill.App.3d 744, 117 Ill.Dec. 382, 520 N.E.2d 733 (1987); Steel v Bemis, 121 N.H. 425, 431 A.2d 113 (1981); Cox v. Valley Fair Corp., 83 N.J. 381, 416 A.2d 809 (1980); Tate v. Colobello, 58 N.Y.S.2d 84, 459 N.Y.S.2d 422, 445 N.E.2d 1101 (1983); Ilosky v. Michelin Tire Corp., 172 W.Va. 435, 307 S.E.2d 603 (1983); Affect v. Milwaukee & S.T. Corp., 11 Wis. 2d 604, 106 N.W.2d 274 (1960).

6 4 See e.g., Beagle v. Vasold, 65 Cal.2d 166, 53 Cal. Rptr. 129, 417 P.2d 673 (1966); Paduach Area Public Library v. Terry, 655 S.W.2d 19 (Ky. App. 1983); Streeter v. Sears, Roebuck & Co., 533 So.2d 54 (La. App. 1988); Giant Food v. Satterfield, 603 A.2d 877 (Md. App. 1992); Cafferty v. Monson, 360 N.W.2d 414 (Minn. App. 1985); Higgins v. Hermes, 89 N.M. 379, 552 P.2d 1227 (1976).

6 5 See, e.g., Johnson v. Brown, 75 Nev. 437, 447, 345 P.2d 754 (Nev. 1959). See also 22 Am Jur 2d §265.

6 6 See supra note 65.

6 7 See e.g., Debus v. Grand Union Stores of Vermont, 621 A.2d 1288, 1290 (Vt. 1993).

6 8 22 Am Jur 2d Damages §266.

6 9 Debus v. Grand Union Store of Vermont, 621 A.2d 1288,1290 (Vt. 1993).

7 0 RALPH C. MCCULLOUGH, CIVIL TRIAL MANUAL II 790 (1980).

7 1 Lawyers’ Medical Cyclopedia of Personal Injuries and Allied Specialties §44A.44 (Richard M. Patterson, ed.)

7 2 J. Kahneman & Matthew L. Spitzer, Framing the Jury: Cognitive Perspectives of Pain and Suffering Awards, 81 Va. L. Rev. 1341, 1375 (Aug. 1995)

7 3 DAN B. DOBBS, HANDBOOK ON THE LAW OF REMEDIES 545 (1973).

7 4 Id.

7 5 9 PERSONAL INJURY: ACTION, DEFENSES, DAMAGES 3.04[2][e] (Louis R. Frumer & Melvin I. Friedman, eds. 1998).

7 6 Id.

7 7 RALPH C. MCCULLOUGH, CIVIL TRIAL MANUAL II 790 (1980).

7 8 9 PERSONAL INJURY: ACTION, DEFENSES, DAMAGES 3.04[7] (Louis R. Frumer & Melvin I. Friedman, eds. 1998).

7 9 Id.

8 0 Id.

8 1 See 22 Am Jur 2d Damages §246; 9 PERSONAL INJURY: ACTION, DEFENSES, DAMAGES 3.04[7][b] (Louis R. Frumer & Melvin I. Friedman, eds. 1998).

8 2 Neil Sugarman & Charlotte Glinka, Explaining Pain: how you do it, who can help, Trial, 30 (Nov. 1994)

8 3 8 Am Jur PoF3d 91 §§21-23.

8 4 Id.

8 5 Id.

8 6 See generally Admissibility in Civil Action, apart for res gestae, of Lay Testimony as to Another’s Expressions of Pain, 90 ALR2d 1071 (1963); Neil Sugarman & Charlotte Glinka, Explaining Pain: how you do it, who can help, Trial, 30 (Nov. 1994).

8 7 See generally 90 ALR2d 1071 §2.

8 8 Id. at §2

8 9 Id.

9 0 Id.

9 1 Id. at §7

9 2 Neil Sugarman & Charlotte Glinka, Explaining Pain: how you do it, who can help, Trial, 30 (Nov. 1994).

9 3 Expert and Opinion Evidence, 31A Am Jur 2d §§265-66.

9 4 Lawyers’ Manual Cyclopedia of Personal Injuries and Allied Specialities 316 (Richard M. Patterson ed.)

9 5Neil Sugarman & Charlotte Glinka, Explaining Pain: how you do it, who can help, Trial, 30 (Nov. 1994).

9 6 31A Am Jur.2d §264

9 7 Neil Sugarman & Charlotte Glinka, Explaining Pain: how you do it, who can help, Trial, 30 (Nov. 1994).

9 8 31A Am Jur.2d §266.

9 9 Neil Sugarman & Charlotte Glinka, Explaining Pain: how you do it, who can help, Trial, 30 (Nov. 1994).

1 00 416 Pa. 308, 206 A.2d 308 (Pa. 1965)

1 01 Id.

1 02 Id. at 309-10.

1 03 Id. at 310-11.

1 04 Id. at 311.

1 05 Id. at 312.

1 06 Neil Sugarman & Charlotte Glinka, Explaining Pain: how you do it, who can help, Trial, 30 (Nov. 1994).

1 07 See generally Lawyers’ Medical Cyclopedia of Personal Injuries and Allied Specialties §44A.41( Richard M. Patterson, ed.).

1 08 8 Am Jur PoF3d 91, §5

1 09 Id. at §8.

1 10 Id.

1 11 Id.

1 12 Id.

1 13 Id.

1 14 Id.

1 15 Lawyers’ Medical Cyclopedia of Personal Injuries and Allied Specialties 314 §44A.41 (Richard M. Patterson, ed.).

1 16 Id.

1 17 Id.

1 18 293 F. 1013 (D.C. Ct. App. 1923)

1 19 Id.

1 20 Richard J. Byrne, Thermography: The Double- Edged Sword Which can Either Corroborate the Existence of Pain or Weed out the Malingerer, 38 Drake L. Rev. 355, 380 (Winter 1989).

1 21 Id.

1 22 Id.

1 23 See, e.g., United States v. Williams, 583 F.2d 1194 (2 nd Cir. 1978), cited in Richard J. Byrne, Thermography: The Double- Edged Sword Which can Either Corroborate the Existence of Pain or Weed out the Malingerer, 38 Drake L. Rev. 355, 382-83 (Winter 1989).

1 24 Id. at 1198.

1 25 Id.

1 26 Id. at 1199.

1 27 Id.

1 28 See, e.g., Richard J. Byrne, Thermography : The Double- Edged Sword Which can Either Corroborate the Existence of Pain or Weed out the Malingerer, 38 Drake L. Rev. 355, 362-63 (Winter 1989)

1 29 Id.

1 30 8 Am Jur PoF3d 91 §§24 - 31

1 31 Neil Sugarman & Charlotte Glinka, Explaining Pain: how you do it, who can help, Trial, 30 (Nov. 1994).

1 32 Id.

1 33 Id.

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