Complex Regional Pain Syndrome: Defending a Claim
In the absence of definitive diagnostic tests, the presence or absence of Complex Regional Pain Syndrome (CRPS) can be hard to establish and this can present many challenges for those involved in litigation. In this article, Dr Ivan Ramos-Galvez, Consultant in Pain Medicine, will discuss the issues involved in defending a medico legal claim for CRPS and, in particular, how to spot a false claim.
By the time they come to make a claim, many patients will have seen numerous medical practitioners, including GPs, pain specialists, psychiatrists and physiotherapists and it is absolutely vital that the claimant’s medical records are carefully studied. Each set of records should be cross-referenced with each other for inconsistencies in the chronology of symptoms and their severity. The records should also help to establish whether the symptoms described are consistent with those typical of CRPS and whether any other potential explanation was considered by the examining physician. The results of any neurological tests undertaken by the claimant need to be studied carefully, as these are often subject to interpretation. Finally, if there is evidence that the claimant ‘doctor-shopped’, this might indicate a fabricated condition.
Given that many CRPS compensation claims will potentially be very valuable, there may be a tendency for claimants to exaggerate, or even completely fabricate, their symptoms. It has been suggested that the prevalence of malingering in pain-related cases could be as high as 50% although this includes cases in which symptoms are exaggerated but not completely fabricated. It is likely that malingering actually occurs on a continuum, rather than simply being present or not. Malingering is notoriously difficult to assess but for some years now a framework for the diagnosis of probable malingered pain-related disability (MPRD) has been available. To qualify, a patient must exhibit evidence of a significant external incentive and meet two or more types of evidence from the following: physical evaluation, cognitive and perceptual testing, and evidence from self-report. This evidence must come from well-validated measures and it is also imperative that it is not fully accounted for by psychiatric, neurological or developmental factors. Even with this framework, many medical experts are reluctant to make a diagnosis of malingering, preferring to leave it up to the court to decide.
Another approach that may be useful in trying to defeat or limit a medico legal claim is the concept of a pre-existing vulnerability. Here, it is argued that the claimant had a pre-existing vulnerability which would inevitably have been provoked at some stage. This argument is particularly strong in cases in which there is a distinct psychological element. However, even where causation is established, it is possible to argue that the consequences should be time-limited, due to the fact that the condition would have occurred sooner or later anyway. Where this argument is pursued, a patient’s medical records after the index accident are vital, as it may be possible to identify medical conditions that would have led to the development of chronic pain.
The appropriate level of payment due to a claimant is greatly determined by their level of functioning and in order to accurately assess this, it is often necessary to obtain objective evidence through some form of surveillance. The true level of functioning may be easier to discern from objective evidence than from the patient’s own accounts. A large disparity between what the patient reports and what they can actually do would strongly indicate exaggeration of symptoms, or possibly even total fabrication of them. It is also important to determine the claimant’s level of function before the incident or injury, in order to highlight whether any issues were apparent beforehand. The claimant should confirm if there are any activities that they can no longer perform and whether they attribute these to CRPS, and if any reported disability has been confirmed by a doctor. Finally, objective evidence of the patient’s behaviour may have the added benefit of helping to pin down a correct diagnosis. This type of evidence can be gathered in the form of video surveillance or intelligence gleaned from social media posts and witness statements from employers, neighbours and friends. While both are useful, social media posts can be particularly revealing as they are written by the claimant themselves and may give a truer picture of their actual condition than a medical report.
One further aspect to consider, and which may significantly influence the level of compensation payable, is the possibility of future improvement in the patient’s condition. Someone who has been in pain for many years is probably unlikely to show much improvement. However, in cases where there is a significant psychological element, there is a greater possibility of the symptoms receding over time, particularly if appropriate treatment is arranged. It has also been noted that the end of the litigation process, and all the stress that this entails, often results in an improvement in symptoms.
Defending a CRPS case can be problematic as the symptoms and diagnosis rely heavily on subjective statements from the claimant. It can take significant investigation to determine the true nature and severity of the claimant’s condition, or whether it actually exists at all. Until definitive diagnostic tests have been developed, defending such cases will remain difficult.
About Dr Ramos-Galvez
Dr Ramos-Galvez receives excellent feedback on the quality and analytical approach he takes in his reports resulting in a strong, well-argued opinion. He is recognised for his expert opinion on medico legal cases involving Complex Regional Pain Syndrome (CRPS); his specialist interests include spinal surgery and cancer/palliative care. To instruct him, please call 020 7118 0650 or email email@example.com.
Bianchini KJ, Greve KW, Glynn G. On the diagnosis of malingered pain-related disability: lessons from cognitive malingering research. Spine J. 2005;5(4):404–17.
Mitchell MW, Smith MZ. Handling and defending TBI and CRPS cases. The Brief. 2017;47(1):38–45.