Ensuring chronic pain doesn’t debilitate insurers

The measurement of pain in any personal injury claim is often difficult given its subjective nature, but a particular challenge arises in claims involving chronic pain conditions.

Chronic pain is defined by NICE as lasting in excess of three months and typically falls into two categories.

The first are cases where pain symptoms reported are out of proportion to any underlying injury or disease and the individual reports ongoing pain symptoms without any apparent cause. This is chronic primary pain.

The second involves ongoing pain, which is secondary to an underlying injury or condition. Cases of secondary pain are more easily diagnosed and better understood, although still carry their own challenges.

There will often be an overlap between chronic primary and secondary pain, and it is very common for psychological and social factors to feed into the mix.

Diagnosis and prognosis are often complex. For litigation purposes, this usually warrants the involvement of a consultant in pain medicine whose evidence usually sits alongside other expert evidence.

It is this multiplicity of expert evidence that transforms the costs landscape in these cases, making them incredibly expensive compared to many other types of injury claim.

The subjective nature of certain chronic pain conditions makes them difficult to challenge, particularly when a claimant has good and credible support from their experts and is backed by experienced lawyers.

As such, it is essential for insurers to grasp these cases early. In practice, this means getting the right experts involved, challenging the other side’s evidence if appropriate, and taking a forensic approach to obtaining and reviewing all relevant records.

Getting a grip

Department for Work & Pensions records can be particularly insightful in providing a snapshot of how a claimant is reporting subjective symptoms, which can often contrast to the presentation given to the medical experts and clinicians.

This variation in presentation often leads to suspicions of fraud, and exaggeration is not an uncommon feature. However, a real problem faced by defendants is that an adverse pain response motivated by a psychological condition can often fluctuate and be difficult to disprove. Surveillance is often required in these cases.

At the core of all chronic pain cases is expert evidence. Tactically, insurers should seek to control that as much as they can.

There will often be an overlap between chronic primary and secondary pain, and it is very common for psychological and social factors to feed into the mix.

With it being typical for pain cases to include at least three medical experts, the courts are open to submissions that expert pain management evidence be restricted until other conditions have been ruled out.

If expert pain evidence can be dealt with in this way, then in addition to controlling exposure to damages and costs, another advantage is that it allows a more measured approach to be taken in respect of treatment options.

In particular, recent years have seen a proliferation in medical experts recommending expensive multi-disciplinary pain management programmes which are often on a residential basis.

It is accepted by many experts that these treatment pathways are not always beneficial when cases are in litigation and where fraud is suspected.

Equally, there has been a tendency by the medical profession to over-prescribe anti neuropathic medications on a long-term basis. This often traps the individual in the pain cycle and creates a reliance on medications.

Again, this can often be a real issue for insurers where the claimant has become reliant on multiple medications and is in receipt of significant state benefits. Rehabilitation back into employment is often difficult to achieve against this backdrop.

If this sounds negative from a claims perspective, it should not viewed as diminishing the seriousness and debilitating nature of genuine pain conditions.

Nevertheless, the prevalence of chronic pain claims with their costs and complexities do present challenges for insurers.

All are complex, none are cheap, and some involve exposure to third-party indemnity spend which can be in the millions.

A forensic and case-specific approach is needed throughout.

Adrian Marston is legal director in Clyde & Co’s Birmingham office