By Paul Sandford
Can pain be analysed or objectively measured? This is a question that both litigants, who claim that they have sustained some form of physical or mental health related injury and seek redress, and their lawyers and other advisers often have to address.
In the context of court proceedings, whether the claims arise from alleged medical negligence or for some other reason, litigants emphasise the extent of their pain and suffering in any resultant loss such as loss of earnings, attendant damage to or loss of property, medical expenditure and the like. In most cases there will be extensive reliance on the written advice of medical experts who invariably speak directly to the litigants/alleged victims, undertake an extensive examination process and analyse any relevant medical records. In many if not all UK personal injury cases one expert is usually appointed to assist both “sides”.
The resultant medical legal report will address the extent of any injuries sustained and any loss of faculty such as reduction in walking ability, an inability to work and loss of enjoyment. Additionally, this report will focus on the all-important questions of possible recovery, the extent thereof, recovery times and any further input e.g. additional medical treatment or physiotherapy input that may be required.
Subject to the litigant’s lawyers establishing that someone such as a health authority or negligent driver is responsible for the injuries in question, a great deal hinges on what is included in the expert’s report; many cases stand or fail on the findings and advice that individual experts provide.
Particularly in the cases where there are out-of-court settlements, I have some concerns:
- In practice, as an individual case progresses in the run up to going to court it is difficult for a party who disagrees with the views and findings set out in a medico-legal report to challenge them. The logistics of liaising with a previously appointed medico-legal expert and possibly even instructing another can be very difficult, not to say very costly.
- In many cases, because the examination is necessarily a diagnostic process, the accounts given as to the extent to which an individual experiences pain and how debilitating it may or may not be are seen as part of an objective exercise and there is a danger that the views of an individual person may not be properly taken into account. Sometimes, there is a tendency of experts to use a “one size fits all” approach that can either understate or overstate the symptomology of one individual or another.
- There is also the risk that in the context of the court setting, particularly where the stakes are high or there have been some last-minute attempts to resolve an individual case, that lay litigants including those who have sustained injury may not be best placed to give a full and accurate account of themselves.
- In many instances there is undue emphasis on causation and although effects our taken into account, many lay witnesses find it difficult to explain very subjective concepts such as pain in a formal legal setting with lawyers in particular not always asking the right questions. This might result in genuine victims missing out but equally, there is a distinct danger that those who are in reality not that badly affected by their injuries may be compensated excessively.
In other spheres, medical experts agree that pain is not something that can be scientifically or medically determined. Different people have different pain tolerances. Some may function perfectly well on standardly prescribed painkillers whereas others who might experience medicinal side effects may not. Not least in cases where there has been a traumatic event, mental health issues can have a bearing on how pain is perceived or experienced and medico-legal reports do not always include fully detailed functional and musculoskeletal analyses.
In the listening and communicating forums of mediation and facilitated meetings, personal injury sufferers do get the opportunity to explain both the symptomology and how it affects them in such detail. They will be encouraged to do so by a mediator or facilitator not only asking the all-important question “how does it make you feel” but also by giving ample opportunity for one person or another to respond and ensuring that others present have ample opportunity to listen. These simple but very effective ADR techniques which are not properly used in formal litigation, give individuals the opportunity they need to explain themselves and to effectively state their cases. For many, justice is as much about being heard, understood and ultimately being given a proper apology as it is about money or how long before a particular individual can go back to work.
Mediation and facilitated meetings are not just about giving injured victims a voice. It is a fair, balanced process that allows the views of all involved in personal injury cases to be considered. It gives lawyers, advisers and expert witnesses a much better opportunity to assess the accuracy and veracity of what personal injury victims have to say. Accordingly, they will be in a much better position to take a view on the all-important element of credibility and address the question of how much a particular case may be “worth”. Additionally, there is more scope for giving a genuine apology, something that may go a long way to help the case be resolved satisfactorily.
Additionally, where credibility may be in question, the difficult questions that have to be addressed can be put in a much less pressured environment where it is much more likely that the truth will out and a better-balanced view of matters can be taken.
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.