The Pain Physician's Role in Legal Proceedings
Gerald M. Finkel, Ralph C. McCullough, II and Erin Joyner
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,
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
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.
Thus, some conclude that pain and suffering awards should be done away
with all together or, at the very least, capped.
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.
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.
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.
The study showed although litigators typically use the “making whole”perspective
in pain and suffering litigation, the more lucrative approach is the “selling
The latter approach is disfavored by attorneys and courts alike, and may,
in fact, be inappropriate in some jurisdictions.
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.
The “selling price” asks the jury to determine at what price
would the plaintiff sell her good health.
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.
2. Injury Characteristics
The Wissler study
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.
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
Thus, injury characteristics affected ratings on physical pain and mental
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.
The study concluded that, of all the factors considered, mental suffering
and disability had the strongest impact on awards and pain had the weakest.
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.”
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.
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.
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.
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
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
The minority rule is that future pain and suffering awards are appropriate
when this pain and suffering will, in reasonable probability, result from
Another minority approach has been adopted in Wisconsin.
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
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.”
Two important components of future pain and suffering are the certainty
that future pain will occur and the duration of the pain.
Thus, where the pain is subjective, medical testimony is necessary.
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.
Second, expert medical testimony is not necessary when the plaintiff establishes
at trial the existence of pain and suffering.
Plaintiff, however, cannot testify regarding the duration of the pain and
suffering or that his injuries are permanent.
If the injury is permanent, mortality tables may be admitted to establish
the duration of plaintiff’s future pain and 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.”
Common examples of mental suffering include fright, nervousness, grief,
anxiety, worry, mortification, humiliation, embarrassment, terror, and ordeal.
There is no set rule or standard to be applied by juries when determining
an award for mental suffering.
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.
Second, most jurisdictions allow recovery for mental suffering which can
be traced back to the physical injury.
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.
II.PERSONS WHO MAY RECOVER
Only the injured person can recover pain and suffering damages in a personal
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.
Traditionally, courts denied infant plaintiffs the right to recover mental
pain and suffering awards.
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.”
The court drew a distinction between the capacity to experience pain with
the ability to describe the pain or discover the cause of pain.
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.
Under the common law, the death of the defendant or the plaintiff in a
tort case extinguished the case.
In the case of the plaintiff’s death, the courts made exceptions
for tort actions involving personal property, but not for personal injury.
Survival statutes abrogate the common law rule that the cause of action
is extinguished upon the death of the plaintiff or defendant.
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.
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.
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.
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.
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.
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.
Many courts have thrown this rule over for one of two rules, both allowing
bystanders to recover for mental suffering.
The first of these more liberal rules in the “Zone of Physical Danger” Rule.
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 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.
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.
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
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.
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.
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.
Some jurisdictions allow the use of this approach at all times.
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,
the dollar amounts are merely suggestions,
and that the jury need not adopt this approach.
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.
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.”
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.
Second, a value must be placed upon some unit of time – a minute,
hour, or day.
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:
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)
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
Multiply the value by 365 in order to place a monetary value of one year.
L* Y= Future pain and suffering award
2. Golden Rule
The Golden Rule approach is disfavored by practitioners
and inappropriate in most courts.
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.
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.
Use of this approach is reversible error.
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.”
Although these tables are admissible to show life expectancy
(and indispensable when using the per diem argument), they are not conclusive.
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.
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.
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.
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.
The family member will also testify to plaintiff’s activity level
and hobbies before the injury in comparison to now.
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.
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.
(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.
When the verbal expression involves objective manifestations of pain such
as moaning or crying, consensus seems to exist that such testimony is
When the verbal expression consists of a statement by the plaintiff, courts
are less consistent in their approach.
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.
Other states such as New York and Georgia take a more stringent approach,
disallowing verbal statements made by the plaintiff to non-medical professions.
Additionally, some states allow such verbal expressions under the state
of mind exception to the hearsay rule.
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.
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.
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.
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.
These objective manifestations are particularly important when the patient
appears relatively “physically sound.”
Such objective findings include tears, perspiration, moaning, facial expressions
such as grimacing, limitations in motions, and changes in vital signs.
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
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.
4.Referral to Pain Management Treatment strongly speaks to the physician’s
belief in the legitimacy of the plaintiff’s pain.
City of Philadelphia v. Shapiro,
is illustrative of this point. Plaintiff,
Anthony Laurelli, was injured in an auto accident in 1954.
Over the course of the next 9 years, plaintiff repeatedly received treatment
for his pain.
Defendant’s argument on appeal was that the trial court erred in
allowing the plaintiffs’ doctors to testify as to plaintiff’s pain.
The court noted that it is the jury’s role to decide whether the
doctor has been deceived.
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.
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.
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.
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.
The defense will attempt to exploit this perception by offering medical
evidence that the plaintiff is malingering.
Therefore, the physician should be prepared to address the pain threshold issue
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.
Also, one’s culture, for example, whether one’s culture teaches
to maintain a stiff upper lip, contributes.
Personality traits, such as how one handles stress, contribute.
And, finally, lifestyle choices, such as one’s level of physical
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.
These tests include the superficial touch test, the superficial pain test,
the temperature test, and the deep pressure test.
Additionally, tests such as the Pain Index Predictor can be helpful.
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.
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.
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.
Because it is not entirely clear whether the Federal Rules have superseded
or merely liberalized
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.
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
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.
Williams court considered the potential rate of error,
the existence and maintenance of standards,
and “the care and concern with which a scientific technique has
been employed, and whether it appears to lend itself to abuse,”
and “the presence of ‘fail-safe’ characteristics”
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.
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.
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.
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.
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.
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.
Additionally, the physician should be prepared to offer the attorney referrals
to medical literature.
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).
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).
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).
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).
0 31 Am Jur 2d Damages § 264.
See Id. at §§260, 1023.
Conscious Pain and Suffering is not a Matter of Degree, 74 Marq. L. Rev. 289, 302 (1991).
5 22 Am Jur 2d Damages §245.
Conscious Pain and Suffering is not a Matter of Degree, 74 Marq. L. Rev. 289, 311 (1991).
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).
1 22 Am Jur. 2d Damages §915.
2 22 Am Jur. 2d Damages §1006; 9 PERSONAL INJURY: ACTION, DEFENSES,
DAMAGES §3.04[c] (Louis R. Frumer & Melvin I. Friedman, eds. 1998).
3 9 PERSONAL INJURY: ACTION, DEFENSES, DAMAGES §3.04[c] (Louis R.
Frumer & Melvin I. Friedman, eds. 1998).
6 22 Am Jur.2d Damages §251.
9 9 PERSONAL INJURY: ACTION, DEFENSES, DAMAGES §3.04[ii] (Louis
R. Frumer & Melvin I. Friedman, eds. 1998).
2 RALPH C. MCCULLOUGH, CIVIL TRIAL MANUAL II 788 (1980).
4 103 Cal.Rptr. 856, 858.
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).
7 DAN B. DOBBS, HANDBOOK ON THE LAW OF REMEDIES 551 (1973)
9 10 PERSONAL INJURY: ACTION, DEFENSES, DAMAGES §1.02 (Louis R.
Frumer & Melvin I. Friedman, eds. 1998).
2 Ariz. Rev. Stat. Ann. §14-3110
3 10 PERSONAL INJURY: ACTION, DEFENSES, DAMAGES §3.02 (Louis R. Frumer
& Melvin I. Friedman, eds. 1998).
4 RALPH C. MCCULLOUGH, CIVIL TRIAL MANUAL II 788 (1980).
5 9 PERSONAL INJURY: ACTION, DEFENSES, DAMAGES 3.04[b][vi](Louis R. Frumer
& Melvin I. Friedman, eds. 1998).
Id. at 3.04[b][vii].
Id. at 3.04[b][viii]
0 RESTATEMENT (SECOND) OF TORTS §46, Cmt. d.
See e.g., Giant Food v. Satterfield, 603 A.2d 877, 879 (Md.App. 1992).
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).
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
See, e.g., Johnson v. Brown, 75 Nev. 437, 447, 345 P.2d 754 (Nev. 1959). See also
22 Am Jur 2d §265.
See e.g., Debus v. Grand Union Stores of Vermont, 621 A.2d 1288, 1290 (Vt. 1993).
8 22 Am Jur 2d Damages §266.
9 Debus v. Grand Union Store of Vermont, 621 A.2d 1288,1290 (Vt. 1993).
0 RALPH C. MCCULLOUGH, CIVIL TRIAL MANUAL II 790 (1980).
1 Lawyers’ Medical Cyclopedia of Personal Injuries and Allied Specialties
§44A.44 (Richard M. Patterson, ed.)
2 J. Kahneman & Matthew L. Spitzer, Framing the Jury: Cognitive Perspectives
of Pain and Suffering Awards, 81 Va. L. Rev. 1341, 1375 (Aug. 1995)
3 DAN B. DOBBS, HANDBOOK ON THE LAW OF REMEDIES 545 (1973).
5 9 PERSONAL INJURY: ACTION, DEFENSES, DAMAGES 3.04[e] (Louis R. Frumer
& Melvin I. Friedman, eds. 1998).
7 RALPH C. MCCULLOUGH, CIVIL TRIAL MANUAL II 790 (1980).
8 9 PERSONAL INJURY: ACTION, DEFENSES, DAMAGES 3.04 (Louis R. Frumer
& Melvin I. Friedman, eds. 1998).
1 See 22 Am Jur 2d Damages §246; 9 PERSONAL INJURY: ACTION, DEFENSES,
DAMAGES 3.04[b] (Louis R. Frumer & Melvin I. Friedman, eds. 1998).
2 Neil Sugarman & Charlotte Glinka, Explaining Pain: how you do it,
who can help, Trial, 30 (Nov. 1994)
3 8 Am Jur PoF3d 91 §§21-23.
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).
See generally 90 ALR2d 1071 §2.
2 Neil Sugarman & Charlotte Glinka, Explaining Pain: how you do it,
who can help, Trial, 30 (Nov. 1994).
3 Expert and Opinion Evidence, 31A Am Jur 2d §§265-66.
4 Lawyers’ Manual Cyclopedia of Personal Injuries and Allied Specialities
316 (Richard M. Patterson ed.)
5Neil Sugarman & Charlotte Glinka, Explaining Pain: how you do it, who
can help, Trial, 30 (Nov. 1994).
7 Neil Sugarman & Charlotte Glinka, Explaining Pain: how you do it,
who can help, Trial, 30 (Nov. 1994).
9 Neil Sugarman & Charlotte Glinka, Explaining Pain: how you do it,
who can help, Trial, 30 (Nov. 1994).
00 416 Pa. 308, 206 A.2d 308 (Pa. 1965)
06 Neil Sugarman & Charlotte Glinka, Explaining Pain: how you do it,
who can help, Trial, 30 (Nov. 1994).
07 See generally Lawyers’ Medical Cyclopedia of Personal Injuries and
Allied Specialties §44A.41( Richard M. Patterson, ed.).
08 8 Am Jur PoF3d 91, §5
15 Lawyers’ Medical Cyclopedia of Personal Injuries and Allied Specialties
314 §44A.41 (Richard M. Patterson, ed.).
18 293 F. 1013 (D.C. Ct. App. 1923)
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).
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).
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)
30 8 Am Jur PoF3d 91 §§24 - 31
31 Neil Sugarman & Charlotte Glinka, Explaining Pain: how you do it,
who can help, Trial, 30 (Nov. 1994).