Dr. Robert A. Bailey
DC, DADFP, CICE, CIRE
812-882-4108 or drbailey@drrobertbailey.com

Pain is defined as, "an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage".

Since the majority of soft tissue injuries cannot be proven through objective means, it is up to the trial attorney to be knowledgeable in the use of assessment tools available to help shed light and a sense of "objectivity" to the invisible soft tissue injury. A caveat to taking on a soft tissue injury case is that pain is ultimately a subjective experience. No testing is available to quantify the complaint of pain.

Logically, you would be advised to familiarize yourself with the concept of pain as it is used in a clinical setting. First, there are a host of reasons why patients visit a physician with reports of pain. The most obvious would be that they are experiencing some type of physical discomfort as a result of trauma. Other reasons to consider are the patient's motivations, (i.e., drug seeking, psychological overlay and litigation needs). It is important to remember that most pain has an "affective" component that is described as "an unpleasant sensory or emotional experience associated with actual or potential tissue damage, or described in terms of such damage" (International Association for the Study of Pain). Thus, the presentation of an individual who is experiencing pain is a product of the stimulus that caused the sensation in the individual.

Lastly, pain is usually described as acute or chronic. Acute pain typically refers to the pain that is associated with a well-defined stimulus. It generally responds well to conservative treatment measures and is largely self-resolving. It typically has little effect on the individual psychologically. In contrast, chronic pain may have an initial onset due to a stimulus or trauma, but after a period of time it does not respond to conventional treatment intervention, and persists beyond the natural history of tissue healing, and invariably has psychological components. It is these individuals who will make up the typical chronic pain syndrome soft tissue case. The more understanding and knowledge you have regarding the validation of this unseen entity, the better your presentation of the facts to all involved in the med-legal community.

Factors That Affect the Variability of the Pain Experience

When considering the subjective response to pain as a result of a soft tissue injury, there are many variables that should be considered. For example, the perception or interpretation of pain can differ significantly between genders, at different ages, different levels of education, and with varying levels of fatigue.

Table 1 – Factors that affect pain thresholds

Assessing the Case

There are a number of fundamental issues that should be considered when addressing the strengths and weakness of a soft tissue injury case. Since there is rarely any objective evidence substantiating the soft tissue injury, there tends to be an elevated level of suspicion among adjustors, defense attorneys, judges and jurors as to the truthfulness and genuineness regarding these claims. The first area of concern should be the actual mechanism of injury. What were the factors associated with the injury? Was this a minor fender bender where little, if any, notable vehicular damage was sustained, or is this a case where your client received demonstrable trauma that resulted in lacerations, bruises or fractures? The more that is known about the mechanism of injury, the more credible the case you will begin to build.

Second, if your client was taken to the emergency room, the ambulance and emergency room records become a vital beginning of the "paper trail" that will undoubtedly follow your client from accident to settlement. Although most soft tissue injuries show few clear-cut objective findings, your client’s subjective complaints immediately after the accident should be documented to alert future health care providers as to the area and nature of injury. Take note of any physical exam findings (i.e., range of motion, diagnostic imaging findings or muscle spasm) and correlate them with the type of forces capable of causing musculoskeletal and/or soft tissue injuries.

The importance of complete, legible and accurate documentation cannot be overstated. The record-keeping skills of the providers involved are of pivotal consequence.

Third, the natural history of the condition should be considered. Based on the literature, soft tissue injuries usually follow an initial period where symptoms are not severe, but may progress over time due to inflammation and deconditioning. If your client’s condition contradicts the natural healing course of the condition, it is recommended that all medical records be closely examined to determine if there are inconsistencies in the history or examination. Such factors as pre-existing degenerative changes or other known underlying medical conditions should be brought fourth to offer a rationale for the deviation of the natural history. Additionally, should trials of medical, chiropractic, physical therapy and rehabilitation fail to provide favorable response to treatment, other hidden mechanisms must be considered. Fourth, examine the medical records to determine if the subjective and objective findings have been consistent between providers. Although variations between providers can occur in the most genuine of cases, the fundamental consistency of the scale and extent of the injury must be considered. It is this disparity between providers and the lack of response from care that raises questions about the validity of the plaintiff’s soft tissue complaints. Lastly, the key to presenting a strong case for the presence of pain and disability due to the soft tissue injury is the collected medical documentation. As counsel, you should advise your client to thoroughly document their injuries and subjective complaints to each provider they encounter. The plaintiff should avoid “over emotionalizing” their symptoms and report symptoms to their provider completely and thoroughly to be documented in their medical records. As is the nature of soft tissue injuries, there can be recurring or chronic problems to the area of damage. It can be particularly vulnerable to exacerbation or re-injury even without the presence of new trauma. To this end, the plaintiff should further keep a running pain diary that includes the frequency, intensity, duration and timing of their symptoms, as well as the content of their medical and/or therapy visits. Also, it is wise to make sure the plaintiff seeks out medical intervention in a timely manner and receives a thorough examination that provides a working diagnosis and prognosis of the treatment prescribed.

Proving the Existence of Chronic Pain

In an attempt to better understand their case, trial attorneys naturally turn to the treating provider for support of their client’s subjective complaints. However, this tactic becomes discouraging when the provider’s notes have indicated little more than, “The patient continues to have neck pain as a result of the accident”. Further, the traditional practitioner usually makes little effort to document the patient’s symptoms with regard to their ability to function on a serial basis. To that end, a group of tools available to the practitioner to quantify the patient’s subjective complaints and objectively measure their functional deficits has been gaining ground in the clinical setting. Outcome assessment tools (OATS) have been found to be of benefit not only in the clinical setting to determine if there has been subjective improvement, but also to determine if the treatment rendered is providing any change in the patient’s functional activities over time. This type of clinical information initially allows the health care provider and plaintiff counsel information that may be disseminated to third-party payors with valid data that help support the “medical necessity” or the need for a particular service. Also, if the provider is administering these quantifiable tests/questionnaires on a serial basis, the success or failure in applying those particular treatments or modalities can be easily identified. If available, additional diagnostic procedures could be ordered, alternative rehabilitation approaches implemented, or discharge from treatment made. Permanent conditions can also be supported by the findings of these tools. Outcome measures provide the health care provider and other parties with objective definitions of the patient’s physical and behavioral distinctiveness in terms of measurable qualitative and quantitative entities. According to Portney and Watkins, “by objectifying such measures, the health care provider can communicate information in “real” terms as opposed to those that are abstract and ambiguous, such as “the patient is feeling better”. Health care providers who treat soft tissue injuries should choose outcome measures that are not only specific to the area of anatomy injured, but should also demonstrate the properties of reliability, utility, validity, sensitivity, specificity and responsiveness.

Impersonating Science

Some practitioners, without understanding the principles of reliability, validity and responsiveness, have been known to fall prey to the entrepreneurial enterprises of those who hawk their wares in the healthcare field, and consequently, purchase a product or instrument with a promise to “bullet proof” their practice and to validate the existence of soft tissue injuries. However, because most of the research is biased or equivocal at best, the product may look impressive, but ultimately, will render useless information. In essence, just because a manufacturer purports that their product can identify, determine and objectively prove the existence of soft tissue injuries, a fair dose of skepticism should follow such claims. As a result of Daubert vs. Merrell Dow Pharmaceuticals, Justice Blackmun opined: “The rules of evidence do assign the trial judge the task of ensuring that an expert’s testimony both rest on a reliable foundation and is relevant to the task at hand.” Thus, the Supreme Court established a general framework for resolving whether expert testimony could be admissible. The decision to allow testimony based on scientific criteria rests in the four following factors:

1. Whether the expert’s technique or theory may be tested or refuted
2. Whether the technique or theory has been a subject of peer review or publication
3. The known or potential rate of error of a technique or theory when applied and the existence and maintenance of standards and controls
4. The degree of acceptance of a theory or technique within the relevant scientific community.

In assessing the General Health Status Questionnaires, Millard notes that these instruments provide information about the various aspects of the patient's general health and their ability to cope with his or her pain; that is, their physical functioning, limitations of activities due to pain or emotional distress, vitality and general mental status.

Conversely, pain diagrams are considered useful guides in helping to identify the intensity, quality and location of the patient's pain.

More specific outcome measures appear in the form of functional status questionnaires. These tools are designed to assess the impact of certain patient functions in specific anatomical areas. Lastly, physiological outcomes; although considered "objective" in their approach, suffer from a lack of correlation between what they measure and the patient's presenting symptoms, functional ability or psychological status.

It has been noted by Phillips et al., that "the interpretation of physiological outcomes correlate poorly with the absence or presence of back pain". Outcome assessment tools can be classified into two broad categories:

1. Those that are subjective or patient-driven (typically pen-and-paper methods). Although the term "subjective" carries negative connotations, the reliability/validity data published regarding these methods of collecting outcomes is exceptional, typically out-performing the test-retest reliability and validity of most physical performance tests, which are termed "objective".

Those that are objective or health care provider driven (typically through function tests or physical examination procedures). A test is truly objective if studies produce normative data that can be compared to the patient's test results and a percentage of normal can be calculated and tracked. Ultimately, once an outcome measure is chosen (either subjective/objective or both) it is important to administer the same tests on a serial-basis throughout care until the data suggests that there has been no further improvement.

Competent Case Management:

To summarize, soft tissue injuries are difficult to objectively prove. The patient's subjective complaints can vary in intensity depending upon a variety of factors and, if not carefully monitored, even objective tests can appear subjective. To the eyes and ears of a jury, proof of a soft tissue injury must be real and clear. To that end, it is recommended that all soft tissue injury clients be sent to physicians with a good working knowledge on the administration and interpretation of outcome assessment tools. Also, as plaintiff's counsel you should study the effects of keeping serial outcome assessment scores and understand what their ramifications may be for your client. By applying these condition specific tools, not only will functional changes be charted, but the health care provider/plaintiff counsel are now able to compare the new "grade" or score to the initial score of the tool. As a result, this comparative feature could have far reaching reimbursement or medico-legal consequences when compared to only reporting the generalized, subjective information.

Yellow Flags

It is equally important to include a discussion on factors that will be a source of discrediting your client by defense tactics. These factors are known as "yellow flags", and will no doubt be used to invalidate the authenticity of your client and suggest other non-organic motivations for prolonged pain behaviors. Yellow flags are psychosocial factors that can be identified with the use of outcome assessment measures that will identify those who are at risk for developing, or perpetuating long-term disability and work-loss.

Yellow flags include the following: A past history of prior episodes, severe pain intensity, duration of symptoms, anxiety, locus of control (e.g., ability to control pain) and depression.

Yellow flags have been shown to extend the resolution of a condition beyond the normal course and duration of the condition's natural history. The more yellow flags that arise with on-going treatment, the more your client's sincerity and/or veracity will be questioned. Defense counsel will have increased ammunition if your client shows signs of psychosocial overlay during an independent medical exam. Such factors would include numerous Waddell's signs for low back complaints; invalid ranges of motion, inappropriate pain behaviors and exaggerated outcome assessment scores. As a result of multiple yellow flags, your client may be labeled as a "symptom magnifier" or worse, a malingerer if they continue to show signs of yellow flags beyond the natural course of their condition. Ultimately, as plaintiff's counsel you should recognize if your client is showing evidence of psychological yellow flags and work with their physician to offer appropriate cognitive and behavior management. In the end, it is ultimately your responsibility to determine the appropriate tact to take in presenting a strong case for your client. Thus, it is essential to be aware of valid tools to support your client as well as any discrepancies that might undermine your case.

Dr. Bailey is a board certified forensic chiropractor with 30 years of clinical experience. Other credentials include certification by the American Board of Medical Examiners (ABIME) and board certification as a chiropractic consultant.

For further assistance, Dr. Bailey can be conveniently reached at 1-812-882-4108 or by E-mail at This e-mail address is being protected from spambots. You need JavaScript enabled to view it

References:

Merskey H, Bogduk N. International Association for the Study of Pain Task Force on Taxonomy, Eds. Classification of Chronic Pain: Description of Chronic Pain Syndromes and Definitions of Pain Terms. Seattle, Wash: IASP Press; 1924:207-213.

Jascoviak, P.A. and Schaefer, R.C., Applied Physiotherapy: Practical Applications with Emphasis on the Management of Pain and Related Syndromes, pg. 24. Arlington, VA, American Chiropractic Association. (1886).

Portney LG, Watkins MP. Foundations of Clinical Research Applications to Practice. Norwalk, Conn.: Appleton & Lange; 1993:41-86.

Yeomans, SG. The Clinical Application of Outcome Assessments. Stamford, Conn: Appleton & Lange; 2000:9.

Rothestein JM, ed. Measurement in Physical Therapy. New York, NY: Churchill-Livingstone; 1985:1-46.

Daubert v. Merrell Dow Pharmaceuticals, Inc. U.S. 579 (1993).

Millard RW. A Critical Review of Questionaires for Assessing Pain-Related Disability. J. Occup. Rehab. 1991; 1(4): 289-302.

Vernon H. Pain and Disability Questionaires in Chiropractic Rehabilitation. In: Liebensen C, ed. Rehabilitation of the Spine: A Practitioner's Manuel. Baltimore, MD: Williams & Wilkins; 1995:57-71.

Deyo RA. Measuring the Functional Status of Patients with Low Back Pain. Chiro Tech. 1990;2(3):127-137.

Phillips RB, Frymoyer J, MacPherson B, Newburg A. Low Basck Pain: A Radiographic Enigma. J. Manipulative Physiologic Therapy 1986;9(3):183-187.

Chapman-Smith D. Measuring Results-The New Importance of Patient Questionaires. Chiro Report. 1992; 7(1); 1-6.

Kendall NAS, Linton SJ, Main CJ. Guide to Assessing Psychological Yellow Flags in Acute Low Back Pain: Risk Factors for Long-Term Disability and Work Loss. Wellington, NZ: Accident Rehabilitation and Compensation Insurance Corporation of New Zealand and the National Health Committee; 1997.