Law and the Problem of Pain

Abstract

This Article examines the problem of enigmatic chronic pain. The principal contention is that psychosomatic explanations of chronic pain are flawed, despite their inordinate popularity with social critics, expert witnesses, and a growing number of judges. There is little empirical evidence to support the view that chronic pain is principally a symptom of psychic conflict and distress, and much evidence to rebut it. Most compelling is the emerging biological evidence demonstrating that much chronic pain results from pathology in the central nervous system, rather than discrete injury or illness like that which produces acute pain.

The problem of chronic pain is examined by focusing on the most prevalent chronic pain syndrome found in litigation today, fibromyalgia. Fibromyalgia is nothing less than the widespread pain of rheumatism that has distressed humanity throughout recorded history. This pain syndrome has been described as one of the "most controversial conditions in the history of medicine," and it is at the center of the debate about the nature of chronic pain. Part II begins by examining how chronic pain often straddles competing diagnoses in medicine and psychiatry, thus lending credibility to both organic and psychogenic concepts of pain. Part III then examines how the concept of psychosomatic pain or "somatization" has attained prominence in cultural history and critical medical literature. Although the concept of somatization does not intrinsically disparage chronic pain, it has acquired a distinct secondary meaning - that pain symptoms are exaggerated or feigned and, ultimately, within the control of the sufferer. Segments of the insurance and health care industries have now appropriated the theme of somatization to minimize the chronic pain experience and control health care costs.

Part IV next assesses empirical research concerning the role of psychological distress in the generation of chronic pain. As demonstrated, there is widespread acceptance that psychological factors play a role in the pain process. But research does not support the much broader claim that chronic pain syndromes are largely the consequence of psychological distress. The neo-Freudian concept of somatization has been greatly oversold and is driven more by theory than scientific evidence.

Finally, Part V examines the developing biological model of chronic pain. A compelling body of evidence now demonstrates that the acute-pain model still dominant in medical practice and the law is incomplete. There is growing recognition that the central nervous system is far more plastic than previously imagined. In an appreciable segment of the population the central mechanisms governing pain can be fundamentally altered, resulting in the persistent production of pain with no discernible relationship to bodily injury or illness. These central mechanisms, rather than mental disturbances, dispel the enigma of much chronic pain.

Part VI concludes that, somewhat remarkably, while a fundamental reassessment of chronic pain has occurred in the scientific literature, this reassessment has gone unnoticed in the law. Until courts rethink the prevailing model of pain and its mechanisms, chronic pain will remain a stubborn mystery, and its sufferers will remain under suspicion as latter-day hysterics and malingerers.

Keywords: pain, chronic pain syndrome, disability litigation, psychogenic pain, psychosomatic illness

JEL Classification: K30, K40, K41