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Can Science Address the Credibility Conundrum of Chronic Pain?

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Chronic pain is part of many personal injury, motor vehicle, and medical malpractice claims. Since chronic pain is something that can’t be seen or measured, it can be difficult for the courts to understand the severity of the pain, or the impact it can have on a plaintiff’s day-to-day functioning. Do recent advances in neuro-imaging such as functional MRI (fMRI) offer potential solutions to these challenges? In this paper, I will review developments in neuro-imaging and their applicability in negligence claims.

Chronic pain is a feature of many personal injury, motor vehicle, and medical malpractice claims. The characterization of chronic pain for the courts can be complicated by a plaintiff’s pre-existing conditions, their poor memory and sometimes even their inability to describe their current symptoms and the impact they have on their day-to-day functioning.

Advances in neuro-imaging are held out by some as potential solutions to these challenges. In this paper I will review developments in neuro-imaging and consider their usefulness and applicability to negligence claims.

Brain Imaging

One form of imaging that is actively being investigated as an objective measurement of pain is functional magnetic resonance imaging (fMRI). fMRI detects patterns of blood flow in the brain which reflect brain activity, allowing researchers to examine if there are neurological correlates for mental experiences. The goal is to be able to identify a particular pattern of brain activity that aligns with a particular mental state. (1)

A number of potential uses of fMRI brain imaging are being investigated around the globe. In the US, attempts have been made to submit fMRI evidence in court as an advanced form of lie-detection. So far, courts have not admitted this fMRI evidence on the basis that it does not yet meet the standards for admissibility as novel scientific evidence. fMRI is also being researched as a way to distinguish certain types of true and false memories, with a view to addressing the problems inherent in eyewitness testimony. Chronic pain is another area that is receiving attention from researchers who are investigating the ability of fMRI results to provide objective data about pain states. (2)

In 2017 a task force of the International Association for the Study of Pain (IASP) considered the use of brain imaging in the diagnosis of chronic pain and reviewed the ethical and legal implications of its use. The task force, led by neuroscientist Karen D. Davis of Toronto Western Hospital, developed a Consensus Statement (3) addressing medical, legal and ethical issues and described criteria for the evaluation of fMRI measures of pain. The goal was to provide a framework for developing valid protocols for neuroimaging in chronic pain, and a context for the use of neuroimaging in court.

The IASP defines pain as an “unpleasant sensory and emotional experience.” Since pain is, by definition, an emotional experience, the current gold standard for the assessment of pain is self-reporting. (4) Different people exposed to the same pain stimulus can present with a wide range of pain experiences and responses, ranging from the stoic to the histrionic. It is no wonder, then, that there is a great deal of interest in finding more objective methods for evaluating reports of pain. An objective method could prove useful for clinicians in treating pain, for patients trying to better manage their pain, for employers needing to devise accommodation programs for employees, for insurers and of course, the courts.

The Credibility Conundrum

The possibility that a picture – a brain image – could confirm and quantify the nature of a plaintiff is tantalizing. Although courts are often willing to accept expert evidence about the inextricable link between chronic pain and psychological injuries, the plaintiff’s behavior can often cast doubt on the veracity of their claims of pain. For example, in two recent BC cases, the plaintiffs’ demeanor led the courts to comment specifically on their credibility. In Park v Targonski, 2017 BCCA 134 (CanLII) the court found that the plaintiff embellished her pain-related complaints when she was assessed by doctors and when she testified at trial. The trial judge accepted that the plaintiff’s chronic pain and depression were caused by the motor vehicle accident in question, and that her injuries included a profound psychological component, but the judge’s reasons included several adverse findings regarding the plaintiff’s credibility. In Koltai v Wang 2017 BCCA 152 (CanLII) the trial judge had grave reservations about the plaintiff’s credibility due to inconsistencies between his mobility as captured on video surveillance and that demonstrated in independent functional capacity assessments. These inconsistencies brought into question the plaintiff’s reports of pain and the impact it had on his mobility. In these cases, could objective data on the presence and severity of the plaintiff’s pain have assisted the court beyond the assistance already provided by experts who gave evidence?

Brain-imaging techniques have rarely been admitted into evidence at trial. In one case in 2015, a truck driver in Arizona sued his former employer for chronic wrist pain related to a burn caused by molten asphalt. The plaintiff had an fMRI brain scan that demonstrated that lightly touching the affected wrist provoked a signal in sensory regions and other brain areas associated with pain – touching the other wrist did not. The plaintiff’s expert gave evidence that those results could distinguish true pain from imagined pain. The defence called a neurologist who told the court that pain was too subjective to measure in this way and that the signature the fMRI was detecting could have been produced if the plaintiff had expected to feel pain or was unduly concentrating on it. The judge admitted the scan into evidence, and the case settled for $800,000, more than ten times the company’s initial offer. (5,6)

Not surprisingly, a small number of private clinics are now offering fMRI, with some promoting the imaging as being able to document pain and provide objective visual and graphic documentation of pain. Many neuroscientists are concerned that the technology is far from being accurate enough for the courtroom. (7)

Can You Outsmart a Brain Scan?

How accurate is the technology? Is it possible to “trick” an fMRI?

Studies designed to test the robustness of fMRI data for lie-detection have shown that deliberate attempts to alter the fMRI readings (countermeasures) could be successful. By having participants think of specific memories in order to make answers to neutral questions seem more personally relevant, study participants have been able to significantly alter the accuracy of the brain scan results. (8)

Some authors suggest that neuroimaging for pain signals may offer more robust results than neuroimaging for lie-detection. They suggest this in part based on the theory that attempts at countermeasures during pain neuroimaging would involve self-infliction of pain, making it less likely, and more obvious, if a subject was trying to manipulate the results. (9) Despite that view, there are examples in which subjects have been able to manipulate imaging results even when identifying pain was the goal. In 2005 one study had healthy volunteers lie in an fMRI scanner and touch a hot plate while they were shown a video of flames. The video responded to their brain activity and gave them visual feedback. Volunteers were able to control the intensity of the flame by imagining the pain was more or less severe than it actually was, (10) suggesting that fMRI, as it exists at the moment, may not provide the objectivity necessary to make it reliable evidence in court.

Aside from the issue of a subject’s attempts to “out-smart” the fMRI scan, this research shares challenges common to many other forms of research – contrived lab settings might not reflect real-world complexities. (11,12) The emotions that accompany the experience of chronic pain, including the impact on one’s day-to-day activities, and the impact chronic pain can have on loved ones and caregivers may impact on the patient in ways that can’t be objectively measured.

Can Brain Imaging Remove the Subjectivity of Self-Reporting?

The IASP has attempted to distinguish the human experience of pain from its neural processes. In identifying pain as “an unpleasant sensory and emotional experience …” the IASP notes that pain is perceptual and exists only insofar as an individual experiences it. It can only be identified through introspection and honest self-reports. On the other hand, nociception is the “neural process of encoding noxious stimuli,” and can occur without an individual being aware of it. Nociception can even be detected in people under anaesthesia. fMRI measures brain activity and provides information about nociception, and by inference, pain – but this is only a proxy measure of pain. (13)

The experience of pain varies tremendously within and between individuals, and this variability poses a challenge for the use of brain imaging findings as an objective biomarker of pain. (14) In addition, chronic pain often co-occurs with a broad variety of emotional, cognitive and motivational changes, including mental disorders, which further complicates the identification of a specific neuromarker of chronic pain. (15)

Under controlled laboratory settings, fMRI data has shown impressive results. In one study it has been able differentiate between painful and non-painful stimuli with 81% accuracy. In another, fMRI results reported subject’s pain signatures with 93% accuracy. (16) In follow-up tasks, researchers distinguished acute pain from social feelings of rejections, and demonstrated the reduction of pain response upon giving participants analgesic medications. (17) As notable as these results are, the studies all looked at the infliction acute pain in healthy patients, and their applicability to chronic-pain sufferers in the real world is still unknown. (18)

Acute pain is associated with activity in many brain areas that belong to different functional brain systems, rather than with activity in dedicated “pain” centres within the brain.19 Many (if not all) features of brain activity that have been associated with pain are not specific to pain.20 Given that the experience of pain has diverse influences, from nociception to social context, researcher doubt that a single neuromarker will be found to reflect all aspects of acute and chronic pain in all contexts. (21)

Given that pain is, by definition, an emotional experience” perhaps the important question is not “can we remove the subjectivity” but “how do we ensure that the objective data from a brain scan is taken in the context of the plaintiff’s subjective experiences?”

Chronic Pain v. Acute Pain

Although neuroimaging techniques appear to be effective at detecting acute pain caused in the laboratory in healthy volunteers, detecting chronic pain is a different matter. (22) No brain areas or networks have yet been specifically and exclusively linked to chronic pain. In addition, there is a substantial overlap of chronic pain with other processes and comorbidity with mental disorders. This inherent lack of specificity is a fundamental road-block for brain imaging-based diagnostic tests for chronic pain. (23)

Despite these challenges, strides are being made in the realm of imaging and chronic pain. One study looked at the neurological signatures associated with chronic back pain. Painful electrical stimuli were administered to the lower back of chronic pain patients and healthy controls. The fMRI was able to differentiate between pain perceptions in the two subject groups with 92.3% accuracy. (24) Impressive results, but the applicability of those results to the real world remains to be seen.

The Potential Impact of Neuroscience and Neuroimaging Evidence at Trial

An expert’s narrative description of what is seen on any brain imaging can be technical and difficult to follow. Nonetheless, research has suggested that the general public is more likely to accept poor arguments if they are accompanied by neuroscientific evidence. (25) In one study, explanations of psychological phenomena that included even logically irrelevant neuroscience information were more satisfying to lay people than explanations without any neuroscience information. (26)

Demonstrative evidence in the form of an image from an fMRI, can provide a colourful representation comparing a “normal” brain to the plaintiff’s brain. Some authors have suggested that courts should consider limiting expert evidence on the neurobiology of chronic pain to verbal testimony, to ensure that decision-makers are not unduly influenced by being shown visually appealing brain images. (27)

Even if the technological concerns about the utility of fMRI data are overcome, there are additional policy concerns that need to be considered. For example, these scans are likely to remain expensive and may not be available to every plaintiff. There is a possibility that an adverse inference may be drawn against a plaintiff who does not present fMRI results to bolster their complaints of chronic pain. (28)

Conclusion

The use of neuroimaging to find objective evidence of mental states could set up a contest between subjective mental experiences and objective brain states. (29) According to the IASP Consensus Statement, the “most meaningful gauge of a person’s pain is their self-report. Neither the absence of a known cause nor an aberrant response to a stimulus negates the experience of pain. If a patient honestly reports pain, they have pain…” (30)

In its current form, brain imaging is not sufficiently reliable to be used as a “pain detector” to either support or contradict an individual’s self-report of pain. (31) As with many developing scientific fields, future researchers may look back with amusement at what was viewed as a hurdle to acceptance or what was accepted as a panacea. Although data from fMRI cannot be safely generalized to the real world some experts predict that future advances in the neuroimaging technology and analysis will eventually address these problems. (32)

For any brain imaging test to be useful in supporting or refuting a claim of pain it must meet rigorous standards, both of meeting scientific criteria and legal criteria. It must also recognize that each individual is unique, and that abnormal brain activity or structure alone does not prove that an individual is experiencing pain. Imaging results cannot stand alone but need to be assessed in the context not only of the patient’s current medical and behavioural profile, but also of their past experiences. (33)

In Saadati v. Moorhead, [2017] 1 SCR 543, 2017 SCC 28 (CanLII) the court criticized the notion that the task of assessing the plaintiff’s legally recoverable mental injury should be downloaded to a diagnostic classification system. The court held that in adjudicating a claim of mental injury a trier of fact was not concerned with the diagnosis, but with the level of harm that the plaintiff’s symptoms represented. That sentiment may prove relevant to chronic pain and fMRI. If the technology advances enough to allow the results into evidence, the impact of an objective finding of the presence of pain must be taken in the context of the patient’s experience of that pain. The subjectivity of the person’s response to pain will remain a key element in the analysis of the effect of that pain on a plaintiff.

  1. Jennifer A. Chandler, The Impact of Biological Psychiatry on the Law: Evidence, Blame, and Social Solidarity” (2017) 54:3 Alberta Law Review 834.
  2. Chandler ibid at 835.
  3. Karen D. Davis, et al. Brain imaging tests for chronic pain; medical, legal and ethical issues and recommendations. (Oct 2017) 13 Nature Reviews | Neurology 624-638.
  4. Ibid at 624.
  5. Ibid at 625.
  6. Sara Reardon, “The Painful Truth” (2015) 518 Nature 475.
  7. Ibid.
  8. Natalie Salmanowitz, “The case for pain neuroimaging in the courtroom: lessons from deception detection (4 February 2015) Journal of Law and the Biosciences, 144.
  9. Ibid at 146.
  10. Reardon, supra note 6 at 475.
  11. Salmanowitz, supra note 8 at 145.
  12. Davis, supra note 3 at 627.
  13. Ibid at 626.
  14. Ibid.
  15. Ibid at 629.
  16. Salmanowitz, supra note 8 at 141.
  17. Ibid.
  18. Ibid at 142.
  19. Davis, supra note 3 at 627.
  20. Ibid at 628.
  21. Ibid at 629.
  22. Chandler, supra note 1 at 836.
  23. Davis, supra note 3 at 631.
  24. Salmanowitz, supra note 8 at 142.
  25. Reardon, supra note 6 at 476.
  26. Weisberg, D.S., Keil, F.C., Goodstein, S., Rawson, E. & Gray, J.R., The Seductive Allure of Neuroscience Explanations (2008) 20 J. Cogn. Neurosci. 470-477.
  27. Davis, supra note 3 at 634.
  28. Ibid at 635.
  29. Chandler, supra note 1 at 837.
  30. Davis, supra note 3 at 635.
  31. Ibid at 634.
  32. Chandler, supra note 1 at 835.
  33. Davis, supra note 3 at 634.

What are a Physician’s Legal and Ethical Obligations to their Injured Patient?

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If you develop a serious illness or are injured in an accident, you will depend on your family physician not only to provide medical care, but also to assist you in obtaining employment accommodations, insurance benefits or third-party compensation.  Your physician has legal and ethical duties to you in these circumstances.  Susanne Raab has written the following article aimed at lawyers that describes a physician’s duties in this area:

When a client has been injured or become ill, the lawyer will need to develop a clear understanding of the nature and extent of the client’s injury or illness and its prognosis, as well as the cause(s) of the injury or illness. The starting point is to obtain a complete copy of your client’s relevant medical records. While this may come as a surprise to many who routinely review and attempt to decipher physicians’ handwriting and other cryptic notations contained in medical records, physicians have a legal and ethical obligation to create a legible and comprehensive record of the medical care they provide to their patients.1

While the physician who created the record owns the record, the law is clear that a patient is entitled, upon request, to examine and receive a copy of the complete medical records compiled by the physician in the course of providing medical advice and treatment to the patient. This includes electronic records and copies of records prepared by other physicians that the physician may have received. There are, however, limited exceptions to this  right, such as where there are compelling reasons to believe that the disclosure of these records (or certain portions of them) is likely to cause a substantial adverse effect on the physical, mental, or emotional health of the  patient or harm to a third party.2

In terms of what records are available, physicians are required to retain records for 16 years from either the date of the last entry, or from the age of majority (19), whichever is the latest.3  If the physician provided care in a hospital setting, the hospital must produce the medical records. Hospitals must retain primary records for 10 years from the last entry.4

Medical records are often relied upon in court as evidence of a claimant’s injury. These records are an exception to the hearsay rule and the facts contained in the medical records can be admitted as prima facie evidence for the truth of those facts.5 A diagnosis, however, may fall into the category of opinion evidence which cannot be admitted for its truth simply by entering the medical records as exhibits at trial, nor can it be admitted simply by calling the treating  physician as a witness at trial without notice of the opinion evidence provided in accordance with Rule 11-6 of the Supreme Court Civil Rules. Ultimately, whether notice is required or not depends upon the purpose of entering the diagnosis into evidence. If it is entered for the truth of the diagnosis, notice is required. If the purpose is simply to confirm that the diagnosis was made, notice is not required.

MEDICAL CERTIFICATES AND OTHER THIRD PARTY REPORTS

A person injured in an accident or suffering from a medical illness may require a medical certificate or report from his or her treating physician in order to obtain workplace accommodation, insurance benefits or compensation from a tortfeasor related to his or her injury or illness. Third parties, such as the patient’s employer, insurance company or defence counsel may also seek information directly from the treating physician.

The treating physician is ethically and legally obliged to provide reports on patients they have attended by providing relevant, objective medical information.6 This obligation applies even if the physician has not seen the patient recently and cannot provide a current report.7 The information should be provided in a reasonable timeframe, usually 30 business days.8

If the request is from a third party, the physician must first obtain an appropriate consent from the patient prior to providing any information. It is important to delineate the scope of what is relevant to ensure the disclosure of information does not exceed the consent provided. The patient should also be advised in advance that the physician cannot conceal or withhold relevant information which is not favourable to the patient.

DISCLOSING INFORMATION TO THIRD PARTIES

Some additional comments are warranted in relation to requests made by third parties. The cornerstone of the physician-patient relationship is trust and confidentiality. Subject to some limited statutory exceptions, a physician must obtain the patient’s express consent prior to providing any information to third parties, as noted above.

In the context of personal injury litigation, however, there is legal authority that once litigation has been commenced, there is an implied waiver of physician-patient confidentiality in relation to medical information which is relevant to the lawsuit. This arises in the context of defence counsel seeking to interview treating physicians.

It is important for physicians to understand that while there may be an implied waiver of privilege where a personal injury lawsuit has been commenced, this does not obligate them to discuss their patient’s medical information with defence counsel, in the absence of their patient’s consent. The College of Physicians and Surgeons of BC’s position is that notwithstanding this implied waiver of confidentiality, physicians have an ethical obligation to act in the best interests of their patients, and should review the third party request with their patient, and give due consideration to the patient’s wishes. The reality is, however, that if the patient refuses to provide consent, and the physician accordingly refuses to answer any questions, defence counsel may obtain an order from the court to interview the physician under oath, pursuant to Rule 7-5 of the Supreme Court Civil Rules. Good practice is for the patient’s lawyer in the personal injury matter to facilitate defence counsel reasonable request to interview the physician, and to be present during the interview for the purpose of ensuring defence counsel remains within the bounds of the implied waiver of confidentiality, and that no irrelevant or privileged information is disclosed.

REFERRALS AND SECOND OPINIONS

An injured client will often require one or more referral(s) to specialists in order to diagnose and treat his or her injury or illness. The process of obtaining appropriate referrals to specialists can be a time-consuming and frustrating process for a patient. It can result in delay and miscommunications between the primary care physician and the specialist. The College of Physicians and Surgeons of BC has addressed these concerns with a revised guideline for how referrals should be managed, emphasizing patient well-being as the single most important factor in ensuring an effective referral-consultation process. The relevant guideline requires clear and timely communication between the family physician and the referral physician, as well as between the physician and the patient. While there is no specific requirement in the College guideline for a consultation to occur in a timely manner, if information is communicated to the consulting physician which would indicate that a timely consult is required to maintain the health of the patient, then an obligation may arise to prioritize the referral. Once the consultation has taken place, the consulting physician should provide the referring physician with a timely (ie. 2 weeks) written report, unless the results are urgent or critical in which case more immediate verbal notification is required.

In addition to timely communication, patients should also be provided with appropriate information to assist them in making informed decisions about their health care, including whether to seek a second opinion or proceed with recommended consultation or treatments. In circumstances where a patient requests a second opinion, the College recommends the physician should “consider and respect their patient’s reasonable requests for a second opinion” [emphasis added].

TERMINATING THE PHYSICIAN-PATIENT RELATIONSHIP

When a patient has been injured or becomes seriously ill, the patient is more vulnerable and dependent upon his or her treating physician. He or she may require multiple referrals, comprehensive reassessments and extended appointments for counselling, on top of the requirements associated with supporting the patient with the medical legal process.

There is a recognition that the physician-patient relationship is a fiduciary one in which the physician is in a position of trust. This means that the physician must act with good faith and loyalty toward the patient and never place his or her own interests ahead of the patient’s.

A physician-patient relationship can be terminated by the physician for legitimate reasons. If there is an unambiguous indication that the patient blames the treating physician for failing to properly diagnose and/or treat the injury or illness and is contemplating legal action against this physician, the physician may reasonably construe this as undermining the relationship of trust and creating a conflict of interest, and may terminate the relationship.

Further, if the patient displays threatening or abusive behaviour to the physician or staff, making reasonable allowances for the role of the patient’s illness (addiction or mental illness) or injury (brain injury) in his or her behaviour, this may be an appropriate basis upon which a physician may terminate the physician-patient relationship.

It is important, however, to appreciate that the increased complexity of a patient’s care or the underlying legal proceedings are not legitimate reasons to terminate the relationship. Terminating the physician-patient relationship in these circumstances would be contrary to the fiduciary nature of the relationship. If a physician is actively reducing his or her patient load due to personal reasons, the College and the Canadian Medical Association Code of Ethics caution that the physician cannot simply dismiss their more complicated patients, or otherwise discriminate on the basis of a patient’s condition. Finally, terminating the physician-patient relationship must not be based on any reason that might be discriminatory under the BC Human Rights Code, including race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age.

In conclusion, understanding the nature of a physician’s legal and ethical duties to their patients, as well as the limits of those duties, will assist counsel in ensuring their injured client obtains the support needed from their treating physician(s) in pursuing their underlying legal remedies.

*image courtesy of University of New England – www.une.edu

This piece was originally published in the Verdict. You can read the PDF  on our Publications page.

1 CPSBC, Practice Standard, Medical records, v. 2.0, revised September 1, 2017.
2 McInerney v. MacDonald, [1992] 2 SCR 138, 1992 CanLII 57 (SCC).
3 CPSBC, Practice Standard, Medial Records, v. 2.0 revised September 1, 2017.
4 Hospital Act, Hospital Act Regulation, BC Reg 121/97 s. 14(1).
5 Ares v. Venner (1970), 12 C.R.N.S. 349 (SCC); Evidence Act, RSC 1985, c. C-5
s. 30(1).
6 CPSBC, Practice Standard, Medical Certificates and Other Third-Party Reports,
v. 1.0, revised November 2013.
7 supra, note vi
8 supra, note vi
9 Swirski v. Hachey, 1995 Canlii 617 (BC SC).
10 CPSBC, Professional Guideline, Referral-Consultation Process, v. 3.1 revised
November 5, 2018.
11 CPSBC, Professional Guideline, Referral-Consultation Process, v. 3.1 revised
November 5, 2018, Canadian Medical Association Code of Ethics, updated 2004,
s. 26.
12 CPSBC, Practice Standard, Ending the Physician-Patient Relationship, v. 4.0,
revised June 4, 2018; The Canadian Medical Association Code of Ethics, s. 17.
13 supra

Top 5 Reasons People Want to Sue Their Doctors

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What makes people want to sue their doctors?  Over the years I’ve spoken with thousands of people who have been unhappy about their health care.  Most people are understanding and forgiving of errors and oversights by their doctors.  But when their concerns are dealt with poorly or not at all, patients become incensed and may want to start a lawsuit or file a complaint with the College of Physicians and Surgeons. When people suffer catastrophic, life-altering injuries, they are even more inclined to want to begin a lawsuit. In reality, most bad outcomes from health care are not due to negligence and will not warrant a lawsuit, but if you are concerned, you should speak with a lawyer.

Here are the most common concerns I hear:

Nobody told me

The most common complaint from callers who have a bad outcome is they do not feel they were given enough information about the risks of their procedure ahead of time.  This is a “lack of informed consent” complaint. When considering informed consent, the important word is ‘informed’. Flashing a document in front of a confused, scared and suffering patient and providing 30-second clinical diatribe about the planned treatment simply does not do it. When providing an explanation about medical procedures, your physician is supposed to let you know about the kind of procedure being considered, how serious it is, and what the risks are.  They should also let you know if there are any reasonable alternatives that should be considered, and they should answer any questions you have about the procedure. This applies to all medical interventions from complex surgical procedures to writing a simple prescription.

A claim that you did not give informed consent for a procedure is generally difficult to win in court.  That’s because the courts consider that you went to the doctor because you had a health concern and you would likely have gone ahead with the procedure even if you had been told about the risks.  So do your best to become an informed patient.  Don’t make the doctor guess – tell the doctor what you want to know and what matters to you, and ask lots of questions.

They got it wrong

After informed consent concerns, medical misdiagnoses leading to incorrect therapeutic recommendations is another common complaint. Once you describe your symptoms your physician will ask you questions, examine you and order relevant tests. At that point there may be several possible diagnoses.  Your physician will use his or her best clinical judgment to recommend a course of action; this sometimes proves to be incorrect. Regrettably, if an incorrect diagnosis is passed along to other practitioners, rather than investigating alternatives, the wrong course of action may be pursued.  By the time the problem is recognized the patient may have become seriously ill. This ‘target fixation’ is at the root of many patient complaints.

I needed a specialist

Another concern patients have is that often the medical care provided depends upon where the patient lives. A patient in Vancouver has relatively quick access to hospitals and highly trained specialists, but in rural areas you do not always have easy access to this expertise. Referrals to specialists can involve lengthy journeys and inordinate delays. In well-meaning efforts to overcome these obstacles a family physician may get in over their head; a situation that may lead to further injury and additional interventions that otherwise might not have been required. This is especially true in situations where the patient has suffered a rare or unusual condition that even in the most advanced clinical settings may require intense investigation by several highly trained specialists.

They didn’t take me seriously

Complaints sometimes involve mistakes such as an unintended nick in an adjacent organ during surgery or the development of a post-operative infection, or a patient may simply have a bad outcome.  Nothing is guaranteed in medicine and no two people will respond in the same way to the same medical treatment.  Many bad outcomes are recognized risks of procedures and may result even when there is no negligence.  Here, it is often not the mistake itself that is the issue, but the poor or nonexistent response afterwards that trouble patients the most.

The system failed me

Lastly, the medical system itself is often cited as the reason for patient dissatisfaction. Perhaps the most common complaint deals with inordinate delays in receiving treatment. Also, in many instances, a patient’s perception of the relative success of a medical procedure is coloured by the way they were treated by their caregivers. Whether this is a lack of sensitivity and compassion by the caregivers in a hospital or a rude receptionist in a medical clinic, patients sometimes generalize their dissatisfaction to cover their entire medical experience.

Conclusion

There are, of course, many individual reasons for a person’s dissatisfaction with medical care but, most of it comes down to simple communication.  Physicians must talk to their patients and take reasonable steps to ensure they understand what is recommended, why that is the best course of action, and the risks and benefits of proceeding. As a patient, you need to ask questions and not be intimidated by a physician. Make sure you understand what is planned and what you can expect from the recommended treatment. If your doctor is unwilling or unable to answer your questions or refuses to do so, find another doctor. As difficult as that may be, if you don’t understand the risks and benefits of the proposed medical treatment, you may find yourself wondering if you made the right decision.

You can do your part by giving your doctor information, by asking questions and by reporting to your doctor how you feel after a procedure. In reality, most bad outcomes from health care are not due to negligence and will not warrant a lawsuit, but if you are concerned, you should speak with a lawyer.

*Image courtesy of: http://www.cardiffandvaleuhb.wales.nhs.uk/ask3patient

Spinal Cord Injuries Affect More Than Mobility

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Spinal cord injuries can be caused by trauma such as a motor vehicle accident or a fall from a ladder. They can also have a medical cause, such as tumours or infections or even a severely herniated disk, that presses on the spinal cord. At Pacific Medical Law, we see people who have experienced a delay in the diagnosis and treatment of these medical conditions and we know that the results can be catastrophic.

A spinal cord injury can cause both physical and psychological disability, and although some researchers have reported that patients with a spinal cord injury have a decrease in their cognitive function – ability to take in and process information – not much is known about what causes that decrease. Is it due to the spinal cord injury itself, or are there other contributing factors?  Does it make a difference at what level of the spine the injury occurred?  Is it made worse by the presence of depression, anxiety or pain? These are some of the questions a group of researchers at the University of British Columbia, in collaboration with researchers in China, tried to answer.

These authors reviewed the medical literature between 1946 and 2018 that looked at the relationship between spinal cord injuries and cognitive function.

Decreased Cognitive Function Tests were Inconclusive

Although seventy studies were included in this review, the researchers were unable to draw concrete conclusions about the cause of decreased cognitive function in people with spinal cord injuries.  They suggest this is largely due to the variability across the studies in not only how cognitive functioning was tested, but also the characteristics of the people enrolled in the study.

What is clear, however, is that people who have suffered a spinal cord injury have to learn new skills – new ways to walk, new ways to take care of themselves, and new ways to interact with the world. Learning these skills can be challenging if one is also cognitively impaired.  This emphasizes the need for patient education, rehab and training programs to be tailored to the individual.

The researchers also highlight that spinal cord injuries have a significant impact on family members, caregivers and even rehabilitation staff.  Family members should be educated about the psychological and cognitive effects of a spinal cord injury. Having realistic expectations can lower stress levels for family members and staff.

Improvements in medical and surgical care have increased the survival rate in people with spinal cord injuries.  In the 1940s, the survival rate was only 10 – 20%.  Today, 90% of people with a spinal cord injury survive past the first year of injury and nearly 50% survive for 40 years after their injury. The studies demonstrate that nearly two-thirds of people with spinal cord injuries have some degree of cognitive impairment. These statistics really emphasis the researchers’ findings – that spinal cord injuries affect more than just mobility – they also affect cognitive functioning.  Rehab programs need to recognize this reality and be modified to improve the learning and rehab potential of the person suffering a spinal cord injury.

*Image from AANS.org

Mental Injuries – The Mustapha Framework

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Mustapha v. Culli-gan, 2008 SCC 27 involved a claim for mental injury after the plaintiff found a dead fly in a bottle of water supplied by the defendant, leading to depression, phobia and anxiety. In this case, the Supreme Court of Canada set out the framework for establishing a claim for mental injury:

  1. DID THE DEFENDANT OWE THE PLAINTIFF A DUTY OF CARE?

This first question focuses on the relationship between the parties. The defendant only owes a duty of care to those whom the defendant may reasonably fore-see as being adversely affected by his/her failure to take care. Often, the relationship between the plaintiff and defendant is of a type which has already been recognized as giving rise to a duty of care, such as in the case of a doc-tor and patient, or a manufacturer and consumer. In these cases, it is unnecessary to undertake a full-fledged duty of care analysis.

  1. DID THE DEFENDANT’S BE-HAVIOUR BREACH THE STAN-DARD OF CARE? 

A defendant breaches the standard of care if his or her conduct creates an unreasonable risk of harm.

  1. DID THE PLAINTIFF SUSTAIN DAMAGE?

A plaintiff who sustained injury – including psychological injury – will be found to have suffered damage.

In Mustapha, the court noted that the distinction between mental and physical injury is arguably artificial in the context of tort. The court did not purport to define compensable injury exhaustively, but said that it must be serious and prolonged, and rise above ordinary annoyances, anxieties, and fears. Minor and transient upsets do not amount to damage.

  1. WAS THE PLAINTIFF’S DAMAGE CAUSED BY THE DEFENDANT’S BREACH? 

The final question is whether the defendant’s breach caused the plaintiff’s harm in fact and in law. In Mustapha, it was not in issue that the defendant’s breach of the duty of care caused the plaintiff’s psychiatric injury in fact. However, the plaintiff ultimately failed to prove causation in law, with the court determining that the plaintiff’s damage was too remote to warrant recovery. Unusual or extreme re-actions to events caused by negligence may be imaginable, but are not reasonably foreseeable. Once a plaintiff establishes that mental injury would foreseeably occur in a person of ordinary fortitude, the defendant must take the plaintiff as he finds him for the purposes of damages.

IS A MEDICALLY RECOGNIZED PSYCHIATRIC INJURY NECESSARY TO ESTABLISH A CLAIM FOR MENTAL INJURY?

The  existence  of  a  recognizable psychiatric injury was not in issue in Mustapha, as it was clear that the plaintiff had suffered a major depressive disorder with associated  debilitating phobias  and  anxiety.

Recently, in Saadati v. Moorhead, 2017 SCC 28, the Supreme Court of Canada overturned the BC Court of Appeal’s decision which stated that a recognized psychiatric injury was a necessary precondition to a mental injury claim, ruling that plaintiffs must only show evidence of a serious and prolonged disturbance, as set out in Mustapha. As expert diagnostic evidence is not necessary for recovery for physical injury, the court in Saadati sought to put mental and physical injuries on equal footing, so not to perpetuate a view of mental illness as unworthy of equal protection under the law. The court concluded that the elements of the cause of action for negligence together with the threshold for mental injury as stated in Mustapha, furnish sufficiently robust protections against unworthy claims.

This piece was originally posted in BarTalk. You can also read the PDF from our Publications page. 

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