Wednesday, January 11, 2017

Litigation Strategy in CRPS Cases

By Stuart O'Neil

The correct strategy in a Complex Regional Pain Syndrome (CRPS) case can make or break the case.  I previously reported on both the elements and the diagnosis of CRPS in a prior Cowles & Thompson newsletter article (available here).   In this article, I will discuss some litigation strategies in cases involving CRPS, formerly known as Reflex Sympathetic Dystrophy (RSD).  CRPS is a rare and increasingly over-diagnosed syndrome purportedly characterized by extreme burning or stinging pain.      

The International Association for the Study of Pain (IASP) has broken down CRPS primarily into two types. CRPS Type I is caused by an initiating noxious “event.”(*1)   CRPS Type II is characterized by the presence of a defined “nerve injury.”  As Type I is the most over diagnosed form of CRPS with an ill-defined underlying cause, the discussion will deal primarily with Type I.  
    
Because the primary symptom of CRPS is pain that is wholly out of proportion to its apparent cause, CRPS Type I has been the object of considerable skepticism.  Ambiguities arise because pain is, fundamentally, a psychological manifestation and, therefore, many people report pain for psychological reasons in the absence of any diagnosable predicate.  Tellingly, there are no objective tests to diagnose CRPS.  As such, it is, at best, a diagnosis of exclusion.  As a diagnosis of exclusion, it is imperative that all other potential causes have been effectively eliminated, including those predicated on the patient’s psychological makeup.

It is axiomatic that a plaintiff has an economic incentive to claim unrelenting severe pain which is disproportionate to the incitement of any specific injury.  Indeed, it is not uncommon for a litigant to claim functional paralysis arising from an event which would unlikely be a source of injury for most of the population.
 
A diagnosis of CRPS may be made when the patient states simply that he, either in the past or at the time of the examination, has had one or two complaints of burning or stinging pain, which cannot be quantified by any objective test.  Although there may be a few supportive, partially-explanatory clues (reported bone loss, hair loss, temperature differences on the skin), the vast majority of the complaints are wholly subjective.  Because there are no objective tests associated with a diagnosis of CRPS (CT scan, x-ray, blood test), the diagnosis is commonly predicated solely on the patient’s subjective complaints.

The primary criteria that should be evaluated is that there must be no other diagnosis that better explains the reported  symptoms.  Far too often, we see a physician diagnose a plaintiff with CRPS on the first or second visit to that doctor’s office and without a full evaluation of the patient’s history and medical records.  In order for a physician to rule out all other potential causes, a full medical review and evaluation of the patient’s complete records needs to occur.  In order for a physician to completely rule out all other potential causes, the physician may need the assistance of multiple other medical experts including, but not limited to an orthopedic specialist, a rheumatologist, a neurologist and a dermatologist.

Without the exclusion of all other potential causes utilizing the proper specialist,  I would argue that it would be premature to diagnose a patient with CRPS.

As mentioned above, in CRPS, the claimed pain is so out of proportion to the injury, that the physician has to be diligent to look at other predicates for the pain.  If someone is claiming a high level of pain, there are physiologic changes to the body (sweating, facial expressions, increased blood pressure).  We have seen cases where a plaintiff has claimed a constant 8-9 out of 10 pain rating while at the same time driving forty-five minutes by themselves to the deposition and sitting for hours answering questions during the deposition.  In light of the fact that most pain management experts equate a eight out of ten pain rating with childbirth, that level of pain is inconsistent with being able to focus in a deposition or drive a car.  This is especially true in light of the fact the pain has such a high psychological component.   It is thus important to distinguish varying thresholds of pain:  one person’s complaint of pain may equate with  another person’s complaint of mere irritation.  This may be particularly true due to the plaintiff’s perceived economic benefit attendant to higher levels of pain.

Experts can also be an extremely important factor in correctly evaluating a CRPS case or mitigating damages.  Plaintiff’s will usually retain a pain management specialist, who frequently simply medicates the plaintiff with extensive opioid prescriptions.   There is a significant amount of recent literature that this overmedication of opioids does more harm than good, and by weaning the person off the pain medications the person may actually feel better and have greater functionality.(*2)  It is important to determine what the treating doctors are actually trying to do to treat the CRPS and not just mask the pain thereby potentially putting the patient into a spiraling decline.

On the defense side,  it may behoove the attorney to find an expert with extensive knowledge of the  psychological component of CRPS.  Pain management experts may not be the best defense experts, because they are often trained to treat the pain, not the underlying condition.  Additionally,  they tend to simply accept the patient’s self-evaluation of their pain level without questioning all other potential factors and physiological conditions.  Although a jury wants to believe the testimony of a treating physician, they also want the treating physician to treat the condition and not simply keep the patient on a high level of opioid pain medications making their situation worse over time.

In conclusion,  for a proper diagnosis of CRPS,  all other diagnosis must be ruled out and to do that, the physician must have reviewed and evaluated all the prior medical records and taken a complete history.   A quick diagnosis without proper investigation should be questioned.  Properly evaluate the level of claimed pain to see if it is reasonable.  A plaintiff’s economic justification to inflate their pain may be a topic to be explored in cross examination.  Finally, hire the correct expert with knowledge of CRPS and its psychological component, not just a expert who treats the pain without evaluating the underlying cause.

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(*1) In fact, IASP eliminated the term “injury” and replaced it with a term denominated as a noxious “event.”  

(*2) Opioid Abuse ; Opioid Abuse, Adrian Preda, MD, 6/2016; Misuse of Prescription Drugs; National Institute of Drug Abuse - Misuse of Prescription Drugs, 8/2016; Agency for Healthcare Research and Quality - Data Reveal Wider Impact of Opioid Overuse 10/2014

 

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