Pain is subjective, and when a person is asked to rate the intensity from one to 10, one person’s five can be another’s 10 making it challenging to establish pain as evidence and put a monetary value on one’s suffering in a court of law, reports the ABA Journal.
The Institute of Medicine, in a 2011 report, estimated 100,000 Americans suffer from chronic pain, characterized as persistent and lingering pain. This costs the public approximately $635 billion annually in health care expenses as well as diminished productivity in the work place.
Juries may be suspicious and unaccepting of a plaintiff’s claims of severe and persistence as there are no standardized diagnostic tools to definitively and objectively measure pain, according to the ABA Journal. Physicians are also increasingly cautious in prescribing painkillers due to the frequency of some people’s propensity to exaggerate their symptoms and overmedicate to feed a potential addiction.
Researchers have been testing methods of pain documentation since the 1960s, some using a method called thermography, which used infrared radiation to measure body temperature. This method, however, had a high rate of false positives and inconclusive results. In the 1980s, positron emission tomography (PET) scanning, and more recently, fMRI scanning, have been able to more accurately link pain experience to particular areas of the brain, the ABA Journal reports.
Adam Kolber, a law professor associated with Brooklyn Law School, published a paper in the American Journal of Law & Medicine examining how neuroscience may one day be “valuable in the courtroom.” A neuroscience specialist, Joy Hirsch, performed brain scans with an fMRI machine in her work that routinely used scans prior to neurosurgery. Her reports showed “functional brain mapping is based on the fundamental principal that specific functions and sensations are mediated by specific regions of the brain.”
Strides have been made in the inclusion of neuroscience in lawsuits involving personal injury, but more research and investigation are necessary and ongoing.
