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Vol 1, No 4 (2014)

Courtesy of the Robert Pope Foundation

An open access, online journal covering all aspects of pain

ISSN 2047-0800


Vol 1, No 4 (2014) December 2014

Editor-in-Chief Dr Rajesh Munglani Pain Medicine Consultant

The Journal has been created in recognition of the fact that not all information or advances in pain medicine can be presented in a randomised controlled fashion.

Assistant Editors-in Chief Dr Turo Juhani Nurmikko Professor Chas Bountra

The Journal will publish papers on clinical practice, basic science, ethics and medico-legal aspects of pain. Issues around suffering, theological, social, psychiatric, psychological, education and resources limitations in pain medicine will also be considered.

Assistant Editors Dr Joshua Adedokun Dr Carsten Bantel Dr Ganesan Baranidharan Dr Arun Kumar Bhaskar Revd Dr Mark Quinn Bratton Rev Canon Dr Adrian Francis Chatfield Dr Neil Talbert Collighan Dr Simon Dolin Dr Andreas Goebel Dr Teodor Goroszeniuk Dr Sanjeeva Gupta Dr Shamim Haider Dr Dalvina E. Hanu-Cernat Dr Andrzej W Król Dr Patrick Robert McGowan Dr Kevin Markham Dr Vivek Mehta Dr Charles Pither Dr Andrew Ravenscroft Dr Jonathan Richardson Dr Manohar Lal Sharma Dr Michael D. Spencer Dr Simon James Thomson Mr Michael Walsh Dr Chris Wells Pain Fellow Representative Dr Kiran Sachane

Contents Compensation Claims Relating to Chronic Pain Part One: The Context of Litigation Julian Benson, Michael Spencer, Andreas Goebel, Rajesh Munglani

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Part Two: Expert Evidence and the Role of the Expert Witness Julian Benson, Michael Spencer, Andreas Goebel, Rajesh Munglani

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Part Three: Pain Syndromes and Disorders in the Medico-legal setting Rajesh Munglani, Michael Spencer, Andreas Goebel, Julian Benson

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Part Four: The Particular Difficulties in Litigation involving Chronic Pain Julian Benson, Andreas Goebel, Michael Spencer, Rajesh Munglani

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Compensation Claims Relating to Chronic Pain: Information and checklists Julian Benson

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Pain Relief and Related Outcomes Following Interventional Therapy for Chronic Non-cancer Pain: A Service Evaluation Tom Bendinger, Sameer Gupta

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Does low dose opioid therapy remain effective long- term in chronic pain patients? A retrospective analysis of short-term responders to transdermal buprenorphine Sandeep Puppalwar, Ravindranath T Parekodi, Nick Plunkett, June Corrigan

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Case report of Glossopharyngeal Neuralgia: A review and a patient’s experience Rajesh Chella Narendran, Shefali Kadabande

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Copy Editors Paul Nash Louise Mantin

Legal Practice Points – Complex Regional Pain Syndrome (CRPS) ‘A Sensitive topic’ 71 Andrew Campbell, Hywel Evans

Journal Manager Ms Katherine Dougherty KJD Communications katherine@kjdcommunications.com

A Case of Assisted Suicide: The Decision of the Supreme Court in the case of Nicklinson anLamb 78 Mark Q. Bratton

Journal website www.joopm.com

Ultrasound assisted Simplicity III probe placement for SIJ radiofrequency denervation – case report and description of a novel technique Andrzej Krol, Karthikeyan Ponnusamy, Neal Evans, Andrew Nicolaou

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A snapshot of the failing neutrality of experts in a single answer? Julian Benson

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An Evaluation of the Effectiveness of a Cognitive Behavioural Therapy-Based Multidisciplinary Pain Management Programme for Adults Living with Chronic Pain Lloyd Gemson, Katie Hatton, Susanne White, David Hatch, Joanne Sanderson, Mark Roy62

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Compensation Claims Relating to Chronic Pain Part One: The Context of Litigation 1a

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Julian Benson , Michael Spencer , Andreas Goebel , Rajesh Munglani

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Keywords Chronic pain, personal injury, compensation claim, causation, litigation

Introduction This is the first of four articles designed to assist the layperson to understand the critical medical issues in compensation claims concerning ‘chronic pain’. This article provides an overview of chronic pain litigation and of the legal context in which compensation is awarded. The second article will explain the context of medical evidence in greater detail, explaining the difference between experts of separate disciplines who are usually involved in chronic pain litigation. The third will explain medical terminology more specifically, commenting on pain syndromes (including complex regional pain syndrome (CRPS), myofascial pain, fibromyalgia etc.) and psychiatric pain disorders. The fourth article will comment on typical problems encountered in chronic pain litigation and how best to deal with them. The aim of these articles is simply and neutrally to explain the nature and context of compensation claims relating to chronic pain. Our purpose is not to encourage individuals to make claims, but to explain to those who do what to expect and how best to participate in the claim in a way which is most likely to achieve a reasonable outcome (usually by settlement). It must be remembered that the process of making a claim is in itself stressful, not least because one person is trying to recover a financial loss caused by another person (or organisation). The process inevitably involves, on one side, accusation (‘you caused my injury’) and demand (‘you have cost me …’); and on the opposing side, rejection (‘I did not hurt you’ or ‘you were partly at fault’) and refusal (‘I will not pay you that much …’ or ‘you would be as you are anyway’). Those issues inevitably give rise to disputes, many of which can be resolved, usually leaving a few more difficult issues to try to resolve by settlement. 1

Barrister, Guildhall Chambers Honorary Consultant Psychiatrist, West Suffolk Hospital, Visiting Research Fellow, University of Cambridge 3 Honorary Consultant in Pain Medicine, Walton Centre Foundation Trust, Liverpool Senior Lecturer in Pain Medicine, University of Liverpool 4 Hon. Consultant in Pain Medicine 2

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It must also be understood that the purpose of these articles is not intended to erect barriers between injured individuals and their own lawyers. However, it is important that the injured person understands what to expect of their lawyers. Everyone recognises the importance of keeping insurance premiums down, which for insurers means trying to root out unreasonable claims and keep genuine claims to a reasonable level. If animosity or suspicion creeps in to the dealings between an injured person and the insurance company, the litigation will become significantly more stressful, and the claim will inevitably be more difficult to settle. These articles are also intended to help you to understand, and avoid contributing to, such difficulties.

Materials to accompany the articles To accompany these four articles is an ‘Information and checklists’ document to give an overview of the legal process:

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A list of questions for you to ask your first and/or replacement solicitor, so that you can maximise the prospect that you will be represent professionally. (It may be rather unusual for a representative to be asked questions of this type by a client, but they are providing a service to you and there is no reason why any lawyer should object to answering them.)

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A description of different lawyers – who they are and what they do.

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A glossary of terms you may encounter during the claim.

A list of the stages in a typical injury claim. A series of checklists of important information for you to consider during the claim.

Finally, we have used the words ‘he’/‘his’ in this article for no better reason than all of us are males.

Overview of litigation People get injured every day. Most injuries are simple accidents for which no one is at fault. However, some injuries are caused by fault, which gives rise to a possibility of compensation. The vast majority of such injuries arise from accidents on the road, in the workplace or on land (or property) owned by another ‘person’ (whether an individual, a company etc.). The majority of these injuries turn out to be either minor injuries or significant injuries from which the injured person recovers or substantially recovers (with some ongoing restrictions) within a matter of months. It is rare for individuals to suffer more than one injury giving rise to a claim. Therefore, most injured individuals only experience being involved in a claim once, and the process can often seem stressful and mysterious. Injured individuals often simply rely on their lawyers to do the best for them while they try to cope and adapt to the unfamiliar, and disorientating circumstances in which they find themselves (often with reduced or no wages, pain which they are told ‘ought to have resolved’ and becoming involved in adversarial litigation). Although lawyers are experienced in

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many aspects of the process, which are (understandably) unfamiliar to non-lawyers, the vast majority of the process is common sense. Lawyers acting for people with ‘claims’ aim to provide assistance with the more technical and tactical aspects of the process. This is usually very straightforward (for example, in a short-lived ‘whiplash’ claim). However, in relation to injuries or conditions that are not ‘run-of-the-mill’, it is vital that the lawyers understand what they are dealing with, and are prepared (and sufficiently capable) to give the more specialist advice required. ‘Chronic pain’-related problems are rare, which is why few lawyers have experience of them. Regrettably, that often means that they do not understand the injury, or the symptoms, and that can lead to many different problems arising between them and their clients, and between their client and the other party to the claim who will pay the compensation. This is especially the case when (at a law firm dealing with large numbers of modest injuries) a junior lawyer, or even someone with no legal qualifications at all (often called a ‘paralegal’) encounters an unfamiliar or confusing medical problem. All too often, it seems, the injured person does not receive the quality of advice that they need in the medical-legal process to drive it forward to a reasonable negotiated settlement if at all possible. Even in an uncomplicated legal claim, the process often seems to be taking place ‘around’ or even ‘above’ the injured person, and to take an inexplicably long time to achieve progress. This can have worse consequences in cases involving chronic pain. There might be sensible reasons why progress is slow (for example, arranging medical examinations or awaiting the outcome of treatment). In a typical case, the individual can be given a clear idea of the timescales involved and reasons which prolong aspects of the claim. But in chronic pain cases, it often takes a long time for the diagnosis to be made (usually some time after experts in other disciplines, typically orthopaedics, have indicated that there is ‘no more they can do’). Often, a period of two years after the injury has usually past before it is considered appropriate to consider instructing a consultant in pain medicine. Given that in the vast majority of cases a person has three years to start a claim, it is often the case that a diagnosis of ‘chronic pain’ is only made towards the end of that period, when the parties to the claim (the injured person and the ‘defendant’ to the claim, represented by an insurer) have exchanged offers to try to settle without the need for court proceedings. That can also mean that a person with an unusual diagnosis feels (and/or is) pressured by their own representatives to accept what seems a modest sum in compensation, when they remain suffering significantly and have no idea when (or if) they may be able to return to some kind of normality (in their social, family and working life). The other classic way in which chronic pain claims become particularly difficult is when the diagnosis itself is unclear, or controversial, or significantly influenced by events in the injured person’s life other than the accident. These issues are discussed in the fourth article in this series. 5

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Overview of chronic pain What is ‘chronic pain’? To the layman and lawyer, chronic pain sounds like ‘bad’ pain, but it is in fact the phrase used to describe pain lasting longer than three to six months – and contrasting with acute pain, which is short-term, most often suffered in the immediate aftermath of an accident. In the vast majority of road accident claims and injuries at work, injured individuals make a relatively predictable recovery, even if they are sometimes left with restrictions in what they can manage, or ‘nuisance’ levels of pain. However, a small percentage of those injured5 continue to suffer more significant or intrusive levels of pain and related symptoms. Often, their treating clinicians, typically GPs or orthopaedic surgeons, cannot understand what is wrong, and the person may be referred to other clinicians for second or third opinions. For example, a patient with a relatively ‘straightforward’ fractured ankle, which continued to give pain for many months, might well be referred to a rheumatologist, whereas someone suffering persistent headaches after a whiplash injury might be referred to a neurologist. In many cases, the physical cause of chronic pain can be readily identified. However, in some cases the original physical damage can heal or improve substantially, but the individual may still be left with the experience of pain. If a physical cause can be found it will generally reassure the patient, because they can be told and can understand what is wrong. It is also reassuring for the clinicians because if they can identify an original source of the pain, it is easier (although still often not easy) to treat. In particular, where no continuing physical cause is found, consultants in pain medicine have expertise in understanding the relationship of past (but seemingly healed) trauma in generating ongoing symptoms and can share their clinical and scientific understanding of well-described mechanisms and syndromes to explain to the individual (and, indeed, to the court) what may be going on. Some of these will be explored in the following articles. The reasons why significant pain may continue without an apparent persisting physical cause will be discussed in the third article in this series, but a useful illustration is the formation of ‘pain memories’. It is well recognised that the experience of pain is actually the product of the painful stimulus itself (i.e. the sensation of the cut, burn, tear etc.) in combination with the emotional label that the conscious mind attaches to it. Sometimes, for various reasons, the physical injury causing the pain settles but the nervous system develops changes and continues to function as if the cause of pain continues. That, in combination with the person’s memory of the original pain, can lead him to experience pain that feels almost identical to the original pain, long after it ‘ought’ to have stopped. In addition, a range of psychological and psychiatric factors (including earlier emotional trauma such as abuse, and psychiatric conditions such as depression) can contribute to the development and the expression of the pain, making it more 5

The percentage is only about 10%, but that is still a large number of individuals.

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difficult to make an accurate diagnosis, to determine the cause(s) – and most important – to recommend appropriate treatment and provide a prognosis (which most typically involves answering the key questions for any patient: what does the future hold in terms of work, leisure activities and pain). In such cases, the physical examination of a person may suggest that there are factors influencing the pain which do not appear to have a purely physical origin. For example, a person might experience ‘pain’ as being generated in one part of their body during an examination, whereas the movement or touch of the examiner cannot explain the pain on purely anatomical or neurological grounds. In such cases, it may be appropriate to seek a psychiatric opinion to determine whether the physical experience of pain – none the less genuine to the sufferer – could be influenced by psychological factors. It is important, however, to note that the origin of chronic pain is not completely understood, even by experts. The formation of ‘pain memory’ is not the only cause – and it is likely that there are causes which scientists have not yet discovered. Therefore, the absence of known anatomical or neurological causes does not mean that there is no biological cause – it just means that we don’t know of one. These issues are discussed in greater detail in the third article in this series.

The context of compensation claims Is anyone likely to be legally responsible for your injury? Legal responsibility for injuries and consequential losses (e.g. earnings) depends on proving that another ‘legal person’ (typically a car driver, employer etc.) is at ‘fault’. (In some cases, fault may be shared because the injured person may have contributed to their injuries.) Proving fault depends on demonstrating that certain actions (e.g. driving or providing training at work) fell below the standard required by law. Common sense is often a very useful guide to what will and will not amount to ‘fault’, but in workplace claims, in particular, you are best guided by a lawyer on the employer’s precise duties and whether they have been breached.

How do I prove what I have lost as a result of the accident? The law requires the injured person to prove the losses caused by the fault. This is called having ‘the burden of proof’. When the law requires that something is proved in compensation claims, the ‘proof’ only has to be ‘more likely than not’ (i.e. just over 50%). It is generally simple to prove that certain losses were caused by an accident injury: loss of earnings if a person in full-time employment is off work for a month, the cost of physiotherapy or medication etc. It is also generally easy to negotiate the value of a straightforward fracture injury. 7

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Proving loss – an easy case So, in a typical minor road accident claim, when one person (the defendant) drives his car into the rear of a car in front of him, injuring the driver (the claimant), the losses may be: §

neck pain for four weeks;

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modest vehicle damage;

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a few days off work;

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three sessions of physiotherapy; and

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travel/parking costs for physiotherapy.

It ought to be quick and straightforward to ‘prove’ that it was ‘more likely than not’ that the defendant ‘caused’ the accident, the injury and the financial losses.

Proving loss – more difficult situations Of course, many cases concern more complicated events, both relating to the accident and to the losses. Take, for example, a situation in which a man is unable to return to work for six months because of his injuries. He claims six months’ earnings loss, which on the face of it seems a very easy claim to prove. But what if he was likely to be sacked or made redundant anyway (for reasons unrelated to the accident) or if his employer went into liquidation during that period? If he was not going to be able to earn any wages for some of that period regardless of the accident, then the accident did not cause that loss. Of course, it may not be nearly as clear-cut as that, and there may be a spectrum of possibilities for what the future had in store. A person who is laid off may have found another (or even better) job or may not have found any other work. (The important issues for you to consider are set out in the ‘Valuation/Loss of Earnings or Income Checklist’.)

A more detailed look at proving losses – the ‘but for’ test and ‘causation’ Given that you need to ‘prove’ that it is ‘more likely than not’ that each of the losses you are claiming for was ‘caused’ by the defendant, it is always important to keep your eye on ‘cause and effect’. Lawyers have another way of asking the same question about each element of a claim: ‘What, but for (meaning ‘in the absence of’) the accident, was likely to have happened in the future?’ This is the ‘but for’ test. As you can see, because the claims (e.g. lost earnings) concern events (going to work and being paid) which would have happened after the date of the accident if the accident had not happened, there is very often scope to argue that the future may have been different – perhaps a person could have been sacked or laid off, the employer may have gone into liquidation etc.

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Lawyers and their clients in injury claims have to focus on proving, ‘on a balance of probability’ (meaning ‘more likely than not’), what the future would have been if the injury had not happened, compared with what the future now holds (given the impact of the accident injuries). A slightly different way to consider the whole issue of what losses the accident actually caused is called, very simply, ‘causation’. At every stage of the claim, from establishing fault for your accident, to proving the losses which you have suffered, your lawyers, and you, will keep coming back to causation. To take things one simple stage further, lawyers also refer to ‘the chain of causation’. This really does mean a ‘chain’ – with the ‘accident’ at one end and the losses caused by the accident all connected together. The idea of a ‘chain’ reinforces the fact that events can be affected by more than one factor (one link in the chain). Some claimants find it helpful to think of a ‘chain’ for each element of their claim (e.g. an earnings chain), to enable them to keep in mind how to maintain the ‘chain’ between the accident and the losses which are said to have resulted.

The medical context of causation So far, we have looked at causation in a factual context. An equally important aspect of maintaining the chain is to establish medical causation. It is obvious, but nonetheless important, to remember that every person injured in an accident has their own medical history. Some have seen their GP infrequently over the years, whereas some are regular attendees. Some have had a single back complaint a decade or more ago, whereas others have had repeated problems over many years. Some have short episodes of pain after a fall or a fracture, whereas others have longer periods of illness, sometimes including such potentially complex problems as long-term fatigue, difficulties sleeping, nausea and the like. The task of the medical expert is to explain to the lawyers and the court (which has no medical expertise) the relationship – if there is one – between the person’s symptoms (and restrictions etc.) and the accident on which the claim is based.

Proving medical causation – an easy case A fracture injury to a bone in the arm or leg very often recovers without any longterm consequences (in terms of ongoing pain, restriction or likelihood of early osteoarthritis). Providing the claimant would probably not have suffered such an injury if the accident had not happened, an orthopaedic expert is likely to be able to say with some certainty that the accident caused the injury, which will enable the lawyers to calculate the level of compensation (for the injury, time off work etc.).

Proving medical causation – a more difficult case In some cases, the injured person might have had a history of problems with, for example, back pain or knee pain. The medical notes and/or x-rays or MRI scans may reveal that even before any accident, one person’s back or another person’s knee, 9

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would probably have caused them pain and restrictions in the future even if the accident had not taken place. In such cases, many experts explain the causative effect of the accident in terms of ‘acceleration’ and/or ‘exacerbation’ – in other words, suggesting that but for the accident, the person was likely to have suffered some symptoms in any case, but that the accident has made those symptoms arise earlier (‘accelerated them’) or worse (‘exacerbated them’), or both.

Proving medical causation – a difficult case Having considered the possible complexities of proving a loss of earnings in a recession, with borrowing squeezed, and workforces being cut, it should also be possible to see how difficult it can be to prove that symptoms suffered by a person (especially those which only commence some time after an accident) were caused by the original injury. There are many ways for the defendant/insurer (i.e. the party paying compensation) to try to break the chain of causation. They may argue that the ‘onset’ (or start) of symptoms is inconsistent for it to relate to the original injury. They may suggest that the person’s medical history means that they were likely to suffer chronic pain of the same (or a similar) sort even if the accident had not occurred. They may argue that the claimant is not suffering from a chronic pain condition at all, perhaps because treating doctors have misdiagnosed symptoms, or because the injured person’s account of symptoms is unreliable (or in rare cases, simply untruthful). It is easy to see why it is vital in any chronic pain case for a claimant to instruct highquality legal advisors, and for those advisors to obtain medical evidence from excellent experts. In the second article, we will explore the context of medical evidence in greater detail.

Conflict of interest disclosures Disclaimers and conflict of interest policies are found at: http://bit.ly/1wqiOcl

Article submission and acceptance Date of Receipt: 30.05.2014

Date of Acceptance: 13.07.2014

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Julian Benson is a personal injury barrister, based at Guildhall Chambers in Bristol, specialising in chronic pain, brain injury and catastrophic injury cases for claimant and defendant clients. He is the author of A Barrister’s Guide to your Personal Injury Claim, which is free to download (http://www.abarristersguide.org.uk), and is also available from the website of the leading brain injury charity, Headway UK.

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Contacts/correspondence: Dr Rajesh Munglani: rajesh@munglani.com Mr Julian Benson: julian.benson@guildhallchambers.co.uk

Intellectual property & copyright statement We as the authors of this article retain intellectual property right on the content of this article. We as the authors of this article assert and retain legal responsibility for this article. We fully absolve the editors and company of JoOPM of any legal responsibility from the publication of our article on their website. Copyright 2014. This is an open-access article distributed under the terms of the Creative Commons Attribution Licence, which permits unrestricted use, distribution and reproduction in any medium, provided the original work is properly cited.

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Compensation Claims Relating to Chronic Pain Part Two: Expert Evidence and the Role of the Expert Witness 1

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Julian Benson , Mike Spencer , Andreas Goebel , Rajesh Munglani

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Keywords Chronic pain, personal injury, compensation claim, expert evidence, expert witness

Introduction This is the second of four articles designed to assist the layperson in understanding compensation claims involving chronic pain. The first article offered an overview of chronic pain, litigation and an introduction to factual and medical causation. This article will focus more specifically on the position and role of the expert witness. The third article will then concentrate on specific examples of pain syndromes (including complex regional pain syndrome (CRPS), myofascial pain and fibromyalgia) and pain disorders, and in the fourth article we offer some further guidance in relation to chronic pain claims.

The context of expert evidence: why we need expert medical evidence It is easily forgotten that the sole reason why the courts permit expert evidence is because there are areas in which (lawyers and) judges do not have enough knowledge to resolve issues in dispute. Medical causation5 is so critical that no personal injury claim can be commenced without expert evidence. In approaching the issue of expert evidence, it is critical to keep in mind two points: (1)

The court manages the expert evidence which is permitted under the everpresent duty to restrict such evidence to that which is reasonably required to resolve the issues in the case.6

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Barrister, Guildhall Chambers Honorary Consultant Psychiatrist, West Suffolk Hospital, Visiting Research Fellow, University of Cambridge 3 Honorary Consultant in Pain Medicine, Walton Centre Foundation Trust, Liverpool Senior Lecturer in Pain Medicine, University of Liverpool 4 Hon. Consultant in Pain Medicine 5 Discussed in the first article in this series. 6 Civil Procedure Rules ‘(CPR’), Rule 35.1. 2

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(2)

A medical expert of any kind who provides evidence in compensation claims has specific duties to the court, which override the duties owed to the party by whom s/he is instructed. In a nutshell, the duty is to provide a complete, neutral opinion on all matters within their expertise, and a range of potential opinions in relation to their opinion.7

In many modest cases, with a complete recovery in a short time, a GP provides an expert report, which enables the parties to settle a claim. In cases with more significant injuries, perhaps a fracture with a slow recovery and some residual pain/restriction, an orthopaedic expert provides the necessary evidence. Also, in cases where the injury and compensation is likely to be relatively straightforward, there may be one ‘joint’ orthopaedic expert, who provides the expert evidence for the court on behalf of both parties.

We are concerned here with more complicated cases where pain persists in the long term, and in such cases experts in different disciplines are often required in order to provide an accurate picture of the claimant’s injuries.8 It is often the case that both ‘sides’, claimant and defendant, will be given permission to obtain expert evidence in like disciplines. That is often because: (i) the diagnosis of the symptoms is difficult or controversial (and have a wide range of opinion); (ii) the claim may be potentially substantial, for example in terms of past and future lost earnings (so that it is considered ‘proportionate’ to allow both parties to instruct their ‘own’ experts); and (iii) because by instructing an expert, a party can test the evidence in a meeting (usually called a conference) with the client, expert, solicitor and barrister. ‘Testing the evidence’ in that way can lead to a clearer understanding of the strengths and weaknesses of the case, and importantly can help the legal teams to satisfy themselves as to whether the original accident can be linked to the continuing symptoms. That, in turn, ought to lead the parties to be able to narrow down the issues in dispute and attempt to negotiate a reasonable settlement of the claim. Experts (like lawyers) are well rewarded for medico-legal work. They must view preparing a report as just as important as any other aspect of their job. No claimant should be made to feel (by experts acting for either party) as if medico-legal work is an inconvenience at the end of a busy working day. In order that the expert can assist the party (and more importantly the court) to understand the issues, the expert must be comprehensively instructed and provided with all relevant notes and reports before the examination.

The importance of selecting the correct expert Appropriate expertise and the risk of imbalanced expertise If a person suffers a spinal injury, the most appropriate expert is probably a spinal surgeon, a neurosurgeon or orthopaedic surgeon with a special interest in spinal surgery. If one side instructs an expert whose day-to-day practice is spinal surgery 7 8

Practice Direction to CPR 35. In chronic pain cases, most often these are an orthopaedic, psychiatric and pain medicine expert.

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and the other party instructs an A&E consultant (even an excellent one), there is already an imbalance of expertise. The spinal surgeon is probably likely to have more command of the narrow field in question, be more familiar with the studies and journals concerned with spinal practice, and be effortlessly authoritative in his report, and then if necessary in the witness box.

Appropriate and relevant expertise The point is even more important in cases concerning chronic pain. First, having an eye to the court’s duty to restrict expert evidence, a party must be careful to select an expert with appropriate expertise. But it is not always easy to know who is the appropriate expert in any given chronic pain case. It might, for example, be a rheumatologist9 though it is now more increasingly likely to be a consultant in pain medicine.10 The final answer to this question is likely to be dictated in the first instance by the diagnosis/opinion of the original medico-legal experts (often an orthopaedic consultant) together with a careful reading of the medical records, which almost always contain relevant insights from treating clinicians.

An example – long-term ‘whiplash’ Take an example of a young woman who suffers a moderate localised trauma to her neck and shoulder (not untypical of a rear-end road traffic accident (RTA), giving rise to a so-called whiplash injury). Most orthopaedic experts will anticipate a recovery over a period of weeks or a few months, and this will prove to be the case in the vast majority of patients. In some individuals, the symptoms may last longer (perhaps up to two years). For a small minority of unfortunate individuals, the symptoms may continue, sometimes becoming more severe and/or increasingly more widespread throughout the body. In such situations, often the orthopaedic expert will ask for scans to rule out a significant ‘bony’ injury. If the scans prove ‘normal’ that expert often seems to suggest either that: (i) this claimant is one of a very small minority of individuals who can continue to experience symptoms in the longer term, even permanently; or (ii) it is now likely that the claimant’s symptoms are being caused by something other than the original soft tissue injury. This is the point at which another expert is likely to be required, not least because the orthopaedic expert is having some difficulty – from the standpoint of orthopaedic medicine – in supporting the continuing link between the accident and the symptoms. There are other clues which can help the injured person’s representatives decide where to turn next to understand the relationship (if there continues to be one) between the original accident and the continuing symptoms. Sometimes, the examination by the orthopaedic expert reveals some signs suggestive of a medical condition. One example might be the discovery of a number of ‘trigger points’.11 9

‘… a doctor who specialises in diagnosing and treating arthritis and diseases related to rheumatology. There are over 200 different diseases that affect the joints, bones, muscles and other soft tissues’ (see generally www.arthritisresearchuk.org). 10 A doctor, often with a background in anaesthetics and specialist training within a Faculty of Pain Management, with broad experience in diagnosing and treating patients with long-term pain, including pain with orthopaedic or neurological origins. 11 Sites which cause particular pain during examination, often in a pattern which is typical of a specific diagnosis.

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Another outcome of the examination might be that the claimant reports pain from a part of the examination, which should not have been capable of causing that person pain. If the claimant’s examination by the orthopaedic expert did not reveal any apparent unusual features, then the next port of call is likely to be a pain expert or rheumatologist depending on the precise nature of the symptoms. The choice can sometimes be sensibly narrowed down by reference to the post-accident clinical records and notes, and discussing which treatments, if any, have afforded the best results to the claimant. If, on the other hand, there are some unusual features in the orthopaedic examination (typically a claimant reporting pain which is impossible to explain by physical – structural – abnormalities), it may be that the origin of the pain lies in either one, other or both of physical and psychiatric causes. It is worth noting that a purely psychiatric origin of chronic pain is extremely rare. It is worth noting that in many chronic pain cases, both rheumatologists/pain experts on the one hand and psychiatrist/psychologists on the other recommend reports in each other’s discipline to assist in understanding the correct diagnosis. This is also a product of the fact that in such cases causation can be elusive and/or controversial. Taking the above example a little further, it may be that the claimant’s pain is physical in origin, diagnosed by a pain consultant as ‘neuropathic pain’12, or perhaps ‘nociceptive pain’13 and responds to medication (and/or perhaps carefully targeted injections) so that it improves with time. However, it may be that, on careful examination, the pain clinician does not find any apparent physical cause to account for the pain at all. At this point, typically, the psychiatrist’s perspective can be crucial.

It may very well be that the individual was vulnerable to experiencing genuine chronic pain, but pain which has a different root cause. In general terms, a psychiatric expert will diagnose a pain disorder,14 which in a nutshell reflects pain in which psychological factors are playing a significant role. The extent of this role may vary from, on the one hand, sitting alongside other physical factors in contributing to the pain (quite a common scenario in chronic pain patients) to, on the other hand, fully accounting for the pain (a much rarer scenario). The concepts of pain syndromes and disorders will be discussed in more detail in the third article but, for the present, it is critical to understand that just because a person’s pain cannot be traced or linked to a clear physical cause does not: (i) mean the pain is not entirely real to the sufferer; (ii) indicate that the sufferer is aware of any vulnerability that they may have had to develop chronic pain; and (iii) necessarily break the link between the accident injury and the individual’s chronic pain. Very often, as we shall see, vulnerabilities to pain disorders can arise from traumatic events in early life 12

Pain described as ‘neuropathic’ arises from nerves. It may be caused by damage to a nerve itself, or the function of the nerve (such as the way in which it transmits pain messages to the brain). It is often described as burning, stabbing, shooting, aching or like an electric shock. 13 Pain described as ‘nociceptive’ arises from damage to tissues themselves (such as a cut, burn, injury etc.), which activates the nerve endings which send messages to the brain (see generally www.patient.co.uk/health/neuropathicpain). 14 Pain disorder is a general term for chronic pain with a significant psychological component.

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(typically abuse, but including bereavement etc.), and it is important that they are not ignored when trying to identify the correct diagnosis in a particular situation. In modern pain medicine, purely psychiatric causes for chronic pain are considered exceedingly rare. Similarly, it is not usual to seek to subdivide patients into ‘pain syndromes’, ‘pain disorders’ etc. in clinical practice (as opposed to medico-legal practice) – rather, it is better practice that treatment should be delivered by multidisciplinary teams including pain medicine consultants and psychologists/psychiatrists working together in a collaborative manner, often at a pain clinic.

How to select the correct expert Solicitors with expertise in compensation claims ought to be able to select appropriate experts, namely a person who will provide authoritative, persuasive opinion based on evidence. In some cases, a person may simply leave the choice of experts to the solicitor (typically where the solicitor has worked with the expert in the past). In some cases, the solicitor and client may be based far apart, and the solicitor may not know the more local expert witnesses. In other cases, particularly those involving chronic pain, the solicitor may not be familiar with the claimant’s symptoms and may not know experts with relevant expertise. In either situation, after making thorough inquiries, it is good practice to obtain an ‘example’ report from the intended expert (with the names deleted) so that your solicitor (and you) can ensure, for example, that the expert reviews the medical notes carefully, provides a clear balanced opinion and explains the opinions he expresses. No reasonable expert should object to sending such an example of his medico-legal work. Even more care is required if a solicitor is considering instructing an expert who s/he has never used before, and yet more still if that expert has been provided by a medical agency rather than by a colleague or by an independent recommendation or accreditation.15

Difficulties in changing expert The court rightly disapproves of the idea that either party in the litigation will ‘shop around’ until s/he finds an expert opinion, which supports their case. It has therefore determined that in order to rely upon a party’s expert of choice in a given discipline, having already obtained a previous report (for the claim) from another expert, that party must disclose the first report to the other side (who is permitted to refer to it at trial). It is therefore vital to choose the correct expert first time around, the more so because if the defendant obtains a report which concurs with your first expert, then there may be a worrying balance in the evidence ‘against you’, putting considerable pressure on your second expert, making it harder for them to defend the position that their opinion is the correct one within the range of opinion now voiced by the three reports.

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There are a number of organisations to whom experts can become affiliated, or by whom they can be accredited, which give an indication of their expertise in preparing medico-legal report.

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Also, the presence of two opinions, which support the defendant’s arguments, will exert pressure on your lawyers when they come to consider the value of your claim and the risks of failing to beat an offer. It is also worth noting that even if you do disclose the opinion of the expert you want to abandon, the court will only permit you to instruct an alternative expert if you provide careful, sensible reasons. These might be that the first expert: § did his job poorly (perhaps failing to read relevant notes, missing important points etc.); § was not sufficiently ‘expert’ in the field in which he offered an opinion; or § changed his opinion for no apparent reason.

Your representatives will also have to balance the danger of openly criticising the first expert when applying to use a replacement, which is, of course, that if they fail to convince the court, the defendant will legitimately use those very criticisms later in the case against the first expert that the claimant has not been permitted to replace. Finally, it is vital not to underestimate the impact of the changes introduced into all civil claims from 1 April 2013, which have introduced higher hurdles when considering whether to permit the use of experts in new disciplines, and replacement experts. It cannot be emphasised enough that any party seeking expert evidence must select and instruct experts with great care from the outset.

How to assist the expert to undertake the task I: The letter of instruction It is critical that an expert is skilfully instructed – in other words, that the letter requesting a report clearly sets out the factors which are relevant to his/her involvement, comprehensively, and where appropriate, chronologically. There is no reason why you should not see and comment on a letter of instruction if you wish to do so.

II: Medical and other records Why notes and records are critical

It is worth remembering that in a case in which the two sides disagree about any fundamental issue, either they must reach some basis upon which to settle the claim, or the court will ultimately have to decide that issue. In order to determine issues, the court will, of course, consider factual evidence (usually from the injured person, family members, work colleagues and the like) and expert evidence (from the respective medical experts).

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In any such case, when faced with factual evidence that is strongly challenged (e.g. a defendant does not accept the claimant’s description of symptoms, pain etc.) and expert evidence which disagrees on the crucial issues (usually) of diagnosis, causation and/or prognosis, the court looks for additional clues to help in deciding the issues. The most obvious helpful resource to assist the court is the claimant’s pre-accident history. What these documents also do is to provide the court with a vital context in which the claimant suffered his/her injury. There are other reasons why they are so powerful, which particularly applies to GP records (including correspondence). They are: § a full historical record of the person who then suffered the accident; § contemporary, usually recorded during or immediately after consultations. They are, on the face of it, a significant improvement on memories of events which are likely to have dimmed over the years; and § recorded by a person whose sole responsibility is to do their best to address the issues within the consultation – in other words, they are neutral.

It is immediately obvious why the expert must have all of the relevant (i.e. usually all) medical records of the injured person before expressing an opinion on causation. The same is true, if at all possible, as regards occupational health, and (where appropriate) Department of Work and Pensions (‘DWP’) records, including applications and decisions – as well as all investigations (typically x-rays, MRI and CT scans). A couple of examples will illustrate these points. In a back injury case, the absence of pre-accident GP consultations for back (or any musculo-skeletal) suggests that the accident injury is likely to be responsible for the claimant’s restrictions (to a greater extent than, for example, normal spinal degeneration). Conversely, a history of similar complaints may suggest that the claimant was likely to: (i) have suffered some continuing symptoms in the normal course of his work even if the accident had not happened; or, perhaps, (ii) that he would naturally have reached the same level of symptoms within a few years – again without an accident. (Pre-accident occupational health records are valuable for the same reason.) In a chronic pain case, the experts will also look for pre-accident entries in the medical notes, and be particularly interested (when considering ‘causation’) to see any entries concerning longer-term pain in the past, perhaps after a fracture, or a sprain, especially if there is no obvious reason (such as delayed union of a fracture, or an infected wound) why the person would have suffered pain for longer than the period required to recover from the initial injury. Also, experts will be on the lookout for other notes or clues which might help to guide them to understand the person’s symptoms, and to advise the court about causation (to what extent the accident is responsible for them) and the prognosis. These include references to a wide range of complaints in the past, all of which have the potential to influence a person’s response to pain: irritable bowel syndrome; chronic fatigue; some psychological symptoms; etc.

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To recap, in all these examples, the relevance is that while a defendant has to compensate the person he injures, he only has to compensate them for the effects of the injury he caused. If it is decided (between experts, or following a trial) that the claimant would, ‘but for’ the accident have suffered similar problems in any case then the compensation is limited to that extent, and/or that point in time. Of course, a typical tension in claims is that a person may consider (rightly or wrongly) that his life was fine before the accident, in that he was healthy, or that he was well able to cope with any pre-accident aches and pains he may have been experiencing, while maintaining a high quality of life and that he would have continued working and would have avoided the chronic symptoms that he now suffers, whereas the defendant will argue that the person was so predisposed to chronic pain that he was likely to suffer the same or substantially similar symptoms and restrictions even if there had been no accident.

Difficulties in practice: obtaining all relevant records etc. It is often difficult for the solicitor to obtain records from many different sources (hospitals, GPs, therapists, for example, as well as the fact that notes of treatment will be constantly updated) and some of the medical reports may have to be prepared before all are available. For example, occupational health and DWP records become available later on, not least because in many cases benefit applications are not made until after the injury. One of the potential difficulties when a solicitor obtains a medical report through a medical agency (which often happens when the claimant is based a long way from the solicitor’s office) is that the agency itself obtains the medical records (rather than the solicitor doing so). This can appear convenient, and some agencies are professional and efficient, but it often presents difficulties for the solicitor in, for example, knowing precisely what the expert has been sent. It is also very important indeed in chronic pain cases that your solicitor must read through your medical notes with great care, and discuss with you (and note your comments on) any entries which may appear incorrect or inaccurate. If the medicolegal experts think that all of the notes are entirely accurate, they are bound to place reliance upon them. It is, therefore, vital that any errors or inaccuracies are pointed out to them so that they can provide their opinion. They may help the court by providing their evidence based upon two alternative scenarios: (i) that the record is accurate; and (ii) that it is inaccurate – and then leaving it up to the court to decide which scenario is indeed correct and, therefore, which opinion to place more weight on. This point is further discussed below.

What should the expert do if the records are incomplete? It can be a disaster if the expert unwittingly provides an opinion without having been provided with relevant records, scans etc. Solicitors and claimants must try to ensure that: (i) the expert has all of the relevant material; or at the very least (ii) knows what s/he does and does not have. Remember, there are cases in which the expert may not know that they are missing notes (the expert does not know every physiotherapist 19

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etc., the injured person might have seen), but that will not stop the ‘other side’ from criticising the expert if he has to change opinion at a later stage. The best practice, where an expert has not received comprehensive records, scans etc., is for the expert to decide whether he can assist the court under the rigorous duties imposed by the court rules. If he thinks this can be done, the report should nonetheless explain that it is necessarily provisional, and list the material that is awaited. However, if appropriate, the expert can (indeed must) decline to provide an opinion if it really is not possible to do so without certain material. For an expert to offer a confident (even strident) opinion without realising that he has not seen all of the notes is likely to make the expert look foolish. Even if the expert changes opinion, in keeping with the new material, there remains a sense (and a judge might later feel) that he should not have offered such a strong opinion before seeing relevant material.

Avoiding pitfalls with medical and other records Ensuring the notes are accurate Medical records sometimes contain important information that jogs a person’s memory, or reminds them of information that they had long forgotten. The person writing down information, whether a GP, locum (i.e. stand-in) GP, physiotherapist, busy A&E doctor or consultant, will have tried to record what they were told, because the information was critical to determining treatment at that time (hence the power of the notes in the eyes of the court – see above). However, they may occasionally have made a mistake, misunderstood something they were told or misplaced emphasis. In a difficult case (and most chronic pain cases are difficult) it is important that the solicitor reads the records himself and provides his client with a copy of them. This may seem like ‘overkill’, but it will give an individual an opportunity to review the notes to see whether they contain any significant errors. If so, the issue must be raised immediately so that a claimant’s solicitor can alert the defendant to the error before it assumes significance in the case (as well as raising it with the ‘author’ if that is sensible in the circumstances). In cases where diagnosis is controversial, or simply disputed, it is always far less satisfactory to complain about the accuracy of a note after an expert or other witness has placed reliance upon it.

Stages in litigation after the initial medical report is served Questions The court rules permit a party to pose questions to clarify an expert’s opinion. Of course, when any party poses questions to an expert, they do so to improve their position, usually by trying to persuade the expert that one or more aspects of the opinion are incorrect or incomplete (e.g. drawing attention to a medical note, or scan, which may not have been taken into account). That is an entirely legitimate part of the process. 20

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It is also entirely legitimate for a solicitor to discuss any questions posed to the expert before they are answered, or to request draft answers and a discussion with the expert before they are finalised. (The defendant can and should do exactly the same with their own experts.)

Some experts appear rather ‘old school’ about this, and resist what they perceive as ‘interference’ in their role. However, providing the lawyers acknowledge the expert’s duties and do not interfere with them, it is entirely permissible to explore the expert’s reasoning with him/her before the answers are finalised.

Joint reports The court invariably orders experts in the same discipline to discuss their respective opinions and produce a ‘joint report’. The express aim of the process, and the joint report, is to try to narrow down (or even eliminate) the areas on which they disagree, and to clarify the remaining areas of disagreement. The discussion takes place privately, and neither party’s legal representatives ought to interfere in the process once discussions have begun. Of course, the very nature of the discussion means that one or other party could be extremely disappointed by the outcome. The worst situation for one or other side is when ‘their’ expert completely changes his opinion following a formal discussion with the other side’s expert. This can happen in any case, but it is far less likely where the experts are professional and have been provided with all relevant material when reaching their original opinion. If it does happen, the expert has a duty to explain the precise reasons for his change of opinion, so that the party instructing him may decide what to do next.

Indeed, ‘cracks’ most often seem to appear in an expert’s opinion in the joint report when one expert: § Has given an overly supportive opinion in the first place. § Is embarrassed by an error in the original report, and does not relish being crossexamined at trial. § Was not provided with complete instructions and/or medical notes when finalising the original report. If one expert has (for whatever reason) missed something relevant, it will inevitably make his/her position more likely to change following discussion, and/or more likely to be vulnerable to challenge if it does not.

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In rare cases, one expert is completely persuaded by (and ‘to’) the opinion of the other party’s expert, so that the ‘joint report’ expresses a single opinion (‘we agree that …’). That effectively ruins that party’s case, unless: § another expert can be found to express a supportive opinion; and § permission can be obtained to rely upon a further expert report at so late a stage in the case.

As explained above, it is increasingly difficult to change experts as the claim progresses, especially towards the end of a claim, when joint reports are inevitably provided. There can also be a feeling from the ‘joint report’ that the more ‘generalist’ expert has been ‘outgunned’ by the more specialist expert, and again there may be a suspicion that the generalist might not want to undergo cross-examination at trial, knowing that someone with more command of their subject will also be addressed by the court.

Helping the expert to prepare for the joint discussion and report It is vital that both experts are thoroughly prepared for the discussion. Often experts are clinicians in active NHS practice, and their medico-legal work is conducted after a busy and stressful day. For that reason, it is sensible for your lawyers to do what they can, within the rules, to assist in the run up to the joint discussion: § Have a conference (even by telephone) with the expert before the joint report – it never hurts to remind the expert of the critical issues, and discussing them so that they are fresh in his/her mind before the joint discussion. § A party can provide a neutral agenda for the discussion (or better still a jointly agreed agenda), to make sure the experts cover all the areas in dispute. This will ensure, especially in a complicated case, that the parties do not have to waste weeks posing questions after the joint report just to make sure all necessary areas are discussed. § If an agenda cannot be agreed, the parties may provide rival agendas to each expert, in which case the unfortunate experts may have to deal with all the points raised. However, they may well choose to deal with the issues in their own way, especially if (as often happens in contentious cases) one or other agenda seems slanted in favour of one party. § If there are a large number of points to discuss, or a party wants to ensure that ‘their’ expert remembers important points which assisted his/her reasoning in the original report (or weak points in the other expert’s reasoning), they may instead provide ‘their’ expert with an ‘aide memoire’/notes for his use only, helping to remind the expert of those issues (again, making sure to remain within professional boundaries). Having now explained the overall context of litigation, and the vital role of expert evidence, the third article in this series will focus on more specific medical aspects of chronic pain in litigation.

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Conflict of interest disclosures Disclaimers and conflict of interest policies are found at: http://bit.ly/1wqiOcl

Article submission and acceptance Date of Receipt: 30.05.2014

Date of Acceptance: 04.08.2014

Contacts/correspondence: Dr Rajesh Munglani: rajesh@munglani.com Mr Julian Benson: julian.benson@guildhallchambers.co.uk

Intellectual property & copyright statement We as the authors of this article retain intellectual property right on the content of this article. We as the authors of this article assert and retain legal responsibility for this article. We fully absolve the editors and company of JoOPM of any legal responsibility from the publication of our article on their website. Copyright 2014. This is an open-access article distributed under the terms of the Creative Commons Attribution Licence, which permits unrestricted use, distribution and reproduction in any medium, provided the original work is properly cited.

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Compensation Claims Relating to Chronic Pain Part Three: Pain Syndromes and Disorders in the Medico-legal Setting 1

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Rajesh Munglani , Michael Spencer , Andreas Goebel , Julian Benson

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Keywords Pain diagnosis, chronic pain, medico-legal, types of pain, PTSD, pain disorders, depression

Introduction to pain and disability in the medico-legal setting This third article is intended to explain in a little more detail the complexities involved in identifying, diagnosing and providing a prognosis and treatment recommendations for the cause of a person’s pain in the medico-legal setting. After an injury, it is not surprising that you may feel pain. It is the body’s way of letting you know that something has gone wrong and attention needs to be paid to the injured part of the body. Pain usually gets better but studies tell us that after an injury a significant minority of individuals are left with persistent pain, which is often associated with long-term restriction in their capabilities at home and work. Those unfortunate individuals are suffering from ‘chronic pain’.

The purpose of pain: differences between acute and chronic pain To understand pain one needs to understand some basic ideas about pain. ‘Acute pain’ is protective. It stops you from keeping your finger in the fire and seriously burning it, or helps you discover the nail protruding into your foot from your shoe. When you discover and treat the cause of the problem, it usually rapidly stops, or if not straight away then this happens when tissue healing has occurred – for example, when the burn has healed. Once pain becomes ‘chronic’, it loses its warning ability and its ongoing presence does not mean you are suffering ongoing tissue damage, but it can feel just as bad.

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Hon. Consultant in Pain Medicine Honorary Consultant Psychiatrist, West Suffolk Hospital, Visiting Research Fellow, University of Cambridge 3 Honorary Consultant in Pain Medicine, Walton Centre Foundation Trust, Liverpool Senior Lecturer in Pain Medicine, University of Liverpool 4 Barrister, Guildhall Chambers 2

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Taking the example above, it still may feel like the skin is burning even though the injury was months ago and the skin healed. Very approximately about 1 in every 10 people who have marked pain after an injury will continue to experience ongoing significant symptoms at about two years (and even longer) after the injury. The fact that 90% of people will improve and get better over time is one reason why it is often difficult to identify which individuals are developing chronic pain and to target appropriate treatment towards them. It is often only when it is clear that you are not going to get better by yourself that you may be referred to pain clinic. Similarly, if you have been complaining of ongoing pain after an accident, a pain consultant may eventually be appointed as an expert to advise the court on the type, severity and duration of your pain. However, because 90% of individuals will stop suffering pain as their injury heals, in almost every case, the first report obtained in the litigation is usually from a GP (in a case which appears straightforward, such as a modest ‘whiplash’) or an orthopaedic expert (in a more serious case, perhaps involving a fracture). Pain consultants are, therefore, typically only brought into ‘cases’ later on, usually because the experts (and/or treating doctors) cannot explain your continuing pain from the perspective of their expertise.

Different sorts of pain and diagnosis – a pain medicine consultant’s perspective There are different types of pain which depend, in general, on the structures that have been damaged. These different pains may feel different, and may respond differently to various types of treatment, so it is important to understand the type of pain that someone is suffering from. It is also important, for the same reason, for you to try to describe the pain you are experiencing very carefully indeed, so that your treating doctor, or expert in a case, understands exactly what your pain feels like. Below we describe some of the different types of pain. In real life, things are not as clear-cut, and individuals can suffer different sorts of pain, either in the same part of the body or different parts of the body.

Myofascial pain The term ‘myofascial pain’ means that the pain ‘comes from’ ‘soft tissues’ (quite often in/around the neck or back), where there has been a trauma (such as road traffic collision). The pain in the area is often described as aching, dull and throbbing and is often made worse by exercise and cold weather. As in other cases of chronic pain the original injury may be quite long ago. The pain can ‘spread’ or be ‘referred’ to other areas of the body other than the site of the original injury.

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Neuropathic pain This term is often used when there has been a specific nerve injury. However, neuropathic pain can also be present even if no major nerve injury is identified, because it can be generated by large numbers of tiny nerves as well. Neuropathic pain is often described as shooting and sharp. The surface of the skin is often very sensitive to light touch (known by doctors as allodynia). Typically, if a nerve to an area is damaged then the pain is felt in the extremity (i.e. the end of the limb furthest from the body), even if the nerve damage is more central. So trapping a nerve in your neck or your back in your spine might actually be associated with pain in your hand (which can be a result of a nerve trapped in the neck) or your foot (which can be a result of a nerve trapped in the back). In these examples, you would feel high levels of pain in the hand or foot, without either being injured themselves, and one can understand why it is the neck or back which requires treating rather than the hand or foot itself.

Complex regional pain syndrome 5

Complex regional pain syndrome (CRPS) is an unusual, poorly understood condition affecting limbs. It can – but need not – be associated with major nerve injury. As well as sharp shooting pains there may be burning and, characteristically, there can be other changes affecting the limb. For example, the skin temperature may change, the affected part may sweat more, there may be colour changes, the texture of the skin and nails may also change, and in a small area bones may for a while become slightly brittle. Patients who have this condition often do not want to move the affected limb. In many cases the condition is mild, and improves, but it can also be severe and in rare cases it can spread to other limbs. CRPS is a generally uncommon condition, occurring more frequently in women than men, and often very unpredictable. Unlike the other pain syndromes mentioned above, there does not seem to be much of a relationship between the degree of injury and the onset and severity of CRPS – it can occur even after a surprisingly trivial injury. The triggering mechanism is not understood and, while the Internet is filled with horrendous cases (which are difficult to verify), it is important to note that the majority of cases are mild and get better with time (although they may require a significant amount of physical therapy and analgesia).

Fibromyalgia This is another uncommon6 and unpleasant condition (again more frequently diagnosed in women) in which pain affects multiple body parts. Although most people get fibromyalgia without having experienced a physical trauma, it is possible that fibromyalgia can sometimes arise after trauma. For example, after a whiplash injury a patient may have first only local pain, which can then spread from the original site to involve more and more of the body. The pain can come to be felt throughout the body, with muscles, bones and joints feeling very tender. This is often coupled with a feeling of extreme fatigue. The whole picture is therefore an unpleasant mixture of an overwhelming sense of pain and inability to enjoy life, making the outlook seem bleak. 5

CRPS was previously known by number of other names, including ‘reflex sympathetic dystrophy’ (RSD) and causalgia. 6 Affecting 2–8% of the population according to estimates from JAMA 2014;311(15):1547–55.

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The diagnosis of fibromyalgia is often characterised by a number of ‘tender points’ over the body in specific sites, but it is now being increasingly recognised in a more general and, indeed, more frequently occurring form it is known as a ‘chronic widespread pain syndrome’. There is increasing evidence that in all such patients the pain control systems within the body have reduced in effectiveness so that the patient experiences higher levels of pain. Often, it does seem that those patients whose pain becomes more widespread are suffering from depression as well, and there is some suggestion that the same problems of the nervous system that lead to widespread pain also lead to depression. There seems to be a close linkage between fibromyalgia and depression. In one sense, this may not be surprising as widespread pain/fibromyalgia and depression may be two sides of the same coin – the physical and psychological manifestation of the same underlying process. Alternatively, of course many patients will become frustrated, down and depressed because of the things they cannot do anymore when they have chronic pain. From the point of view of litigation, you will no doubt appreciate from the short description above that there is likely to be a very wide range of opinion among doctors of the same expertise, let alone between doctors in different fields, about almost all of the aspects of fibromyalgia which impact upon personal injury claims.

Chronic pain syndrome Sometimes, especially in the context of litigation, doctors and lawyers use labels to describe ‘conditions’ which, without being precise or specific, nonetheless seem to ‘fit best’ and which help to explain their opinion to the court. ‘Chronic pain syndrome’ is just such an example, although it is unlikely to be the label you would be given by your treating doctor – as it is not widely used in clinical practice (i.e. treating practice outside litigation). However, because it is being used widely in medico-legal practice, we will discuss it here. It is most often used to describe a person who develops a great deal more disability (and pain) than one would have expected from the initial injury, and is more common in those people who have a past history of depression or other psychological or psychiatric problems and/or who develop psychological problems as a result of the accident or injury in question. Of course, the very fact that litigation is ongoing is also a constant reminder of the pain and disability (and worry that it may continue after the case has finished), which may well also contribute to the overall syndrome in some cases. Thus, the cause of a chronic pain syndrome may be what is known as ‘multifactorial’, which means that a number of factors are probably contributing to the overall experience of pain. These may include pre-accident physical or psychological problems, which is why it is often very difficult to identify for the court the extent to which the accident itself ‘caused’ the suffering and restrictions the individual is suffering. Fortunately, these types of issues can be addressed by both treatment of the 27

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underlying pain (for example, with analgesics), the treatment of depression or 7 suchlike with talking therapies and drugs, and also behavioural techniques that are often found on pain management programmes (such as coping and pacing strategies, and encouraging one to ignore the pain and to develop a more fulfilling lifestyle within the confines of the injury and pain).

Different sorts of pain and diagnosis – a psychiatrist’s perspective Pain driving depression As we have seen, pain and depression often are intimately linked. Severe pain can naturally make one feel down, and if the pain persists for a significant length of time then this may well give rise to clinical depression. Some studies suggest up to 60% of people with chronic pain will develop symptoms of depression. As can be seen below, this can cause vicious cycles where the presence of depression leads to greater perception of pain, the greater pain symptoms lead to deeper depression, and in this way the cycle repeats.

Depression and anxiety driving pain Although we have seen that pain can cause a lowering of mood, it is also true that this interaction can work the other way: low mood can heighten pain symptoms. Studies have shown that completely healthy volunteers (i.e. ‘normal controls’) who have had 8 their mood temporarily made more gloomy in experimental conditions perceive identical pain sensations as being more severe than volunteers listening to more upbeat music. Perhaps, then, because of the overlap between mood and pain areas in the brain (as we saw earlier), a depressed mood can enhance the perception of pain. Overall, what unfortunately often happens in chronic pain situations is that vicious cycles between pain and low mood arise, causing increasing levels of disability and frustration.

Post-traumatic stress disorder Post-traumatic stress disorder (PTSD) is a serious condition where, following exposure to a traumatic incident, a person continues to experience distressing symptoms that, at their core, involve the re-experiencing of the traumatic event in the form of distressing memories (also known as ‘flashbacks’) and/or distressing vivid 9 dreams. PTSD can occur following any event that is experienced as psychologically stressful and traumatic (such as a severe accident or assault). Flashbacks are often triggered by exposure to situations relating to the incident (e.g. revisiting the stretch of road where an accident took place). The sufferer will often avoid circumstances relating to the incident, due to the distress and anxiety caused. Additional symptoms can typically include being ‘on edge’ and excessively vigilant to danger, emotionally numb, irritable, having difficulty sleeping and impaired concentration. Whether a person develops PTSD may be (but is not necessarily) related to that person’s underlying vulnerability to stress.

7

Such as ‘cognitive behavioural therapy’ (CBT). By having slowed-down, gloomy music and ‘negative’ words played to them. 9 The diagnostic criteria for which are detailed. 8

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The development of PTSD following an accident will add significantly to the loss of quality of life experienced following the accident and to the treatment needs of the victim. As with the development of depression following an accident, the development of PTSD is also associated with an increased risk of developing a chronic pain disorder (see below).

Some different psychiatric pain diagnoses Some diagnoses, such as depression, are ‘purely’ psychological/psychiatric (albeit that depression is often closely intertwined with pain symptoms). Other diagnoses offer a psychiatric perspective on the cause of the pain symptoms – and in these cases the psychiatrist will often use different diagnoses from the pain medicine doctors. What is important to remember is that while different words may be used, they are not necessarily contradictory – and the fact that there are different diagnoses made by doctors of differing disciplines does not mean one of them has got the diagnosis wrong. Rather, it highlights the fact that both psychological and physical factors are important. A few examples of such diagnoses are given below.

Pain disorder (or its equivalent) Pain disorder is also sometimes referred to by names, which have more daunting and 10 unusual labels. For our purposes, the important point is that a chronic pain disorder is one in which the duration of pain exceeds six months. In general terms, pain disorder emphasises that psychological factors are judged to have contributed significantly to the pain presentation (having an important role in the onset, severity or continuation of the pain). A particular example of a pain disorder, called somatic symptom disorder emphasises the presence of excessive thoughts, feelings (i.e. anxiety) or behaviours related to the pain, and another, 11 termed somatoform pain disorder emphasises that the pain occurs in association with emotional conflicts or other psychosocial problems which serve to drive the pain.

Somatisation disorder This rare disorder involves a history of many physical complaints (including pain) occurring over several years, and beginning before the age of 30. Complaints must have included pain symptoms in several different sites, gastrointestinal and sexual symptoms other than pain and complaints resembling neurological symptoms. The complaints, after appropriate investigation, are not fully explained by a known nonpsychiatric medical condition or are in excess of (or give rise to impairment, such as in the person’s level of occupational or social functioning) in excess of that which would be expected.

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Such as ‘somatoform pain disorder’, ‘psychogenic pain disorder’. The same condition has also recently been described as somatic symptom disorder or psychological factors affecting other medical conditions. Don’t worry about the labels used, as what matters is what the labels mean. 11 ‘Somatic’ means ‘relating to the body’ – from the Greek ‘soma’ (body).

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Conversion disorder 12

This even rarer disorder involves motor symptoms (e.g. weakness) or sensory symptoms (such as the experience of pain) that would ordinarily suggest a neurological or other physical condition. Where appropriate investigations cannot fully explain the symptoms by a known non-psychiatric medical condition, and where the symptoms are preceded by psychological stressors such as traumatic experiences (e.g. an accident or assault), emotional conflicts or other stressful experiences, those psychological factors are sometimes associated with the onset of the symptoms. In other words, the psychological trauma is somehow expressed as (or subconsciously ‘converted’ to) the physical symptoms – and psychologists suggest that this may serve as a psychologically protective mechanism, allowing the person to avoid having to confront traumatic experiences such as childhood abuse or a terrifying accident. In its ‘purest’ forms, of dramatic physical presentations being entirely caused by psychological processes, this a very rare condition – however, the psychological process of conversion (i.e. psychological stresses causing physical symptoms) can be a contributing factor in particularly complex cases of chronic pain presentations.

The importance of the psychiatric opinion – for both the court and your treatment As you can see, being asked to be assessed by a psychiatrist is often an essential part of assessing the origin, nature and treatment of pain. The fact that you seek a psychiatric opinion does not mean that anyone considers that the pain is ‘all in your mind’ or that you are ‘bonkers’. The simple fact is that where psychological factors and physical factors are both contributing to your pain condition, it is important for both to be assessed in order for the court (and for you) to understand what it is, how to treat it and (as far as anyone can predict) what the future holds. Proper assessment of both is required in order to plan treatment, and any treatment plan that does not address the psychiatric aspects in addition to the physical aspects has a far higher risk of failure.

Conflict of interest disclosures Disclaimers and conflict of interest policies are found at: http://bit.ly/1wqiOcl

Article submission and acceptance Date of Receipt: 30.05.2014

Date of Acceptance: 04.08.2014

Contacts/correspondence: Dr Rajesh Munglani: rajesh@munglani.com Mr Julian Benson: julian.benson@guildhallchambers.co.uk

Intellectual property & copyright statement We as the authors of this article retain intellectual property right on the content of this article. We as the authors of this article assert and retain legal responsibility for this article. We fully absolve the editors and company of JoOPM of any legal responsibility from the publication of our article on their website. Copyright 2014. This is an open-access article distributed under the terms of the Creative Commons Attribution Licence, which permits unrestricted use, distribution and reproduction in any medium, provided the original work is properly cited.

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Also referred to as functional neurological symptom disorder.

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Compensation Claims Relating to Chronic Pain Part Four: Particular Difficulties in Litigation Involving Chronic Pain 1

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Julian Benson , Andreas Goebel , Michael Spencer , Rajesh Munglani

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Keywords Chronic pain, personal injury, compensation claim, insurer, litigation, expert opinion

Introduction This final article deals with some of the particular difficulties involved in litigation involving chronic pain, and how best to approach them. Pain is something that only you can feel. People’s description of their pain may also be very different. One person may have a much higher ‘pain threshold’ than another, and one person may use language ‘conservatively’, and another more ‘liberally’ – so that those two individuals may both (accurately in their mind) describe the same level of pain as 4 out of 10 and 8 out of 10. Clearly, such ratings will also depend on the individual’s past experience of pain, which inevitably will serve as their yardstick for describing their current pain. Given that no one can feel someone else’s pain, doctors have to try to evaluate how bad it is by assessing its impact on the individual’s functioning. This may include looking at your facial expressions and mood reaction when you are asked to do things. It may also involve the parties scrutinising surveillance footage of you going about your daily life (see below). Of course, in the context of a claim, when an insurance company (generally) is being asked to pay compensation it understandably wants to make sure that it only pays for the actual consequences of the accident injury. It does not have to pay compensation

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Barrister, Guildhall Chambers Honorary Consultant in Pain Medicine, Walton Centre Foundation Trust, Liverpool Senior Lecturer in Pain Medicine, University of Liverpool 3 Honorary Consultant Psychiatrist, West Suffolk Hospital, Visiting Research Fellow, University of Cambridge 4 Hon. Consultant in Pain Medicine 2

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if a person was going to suffer the same problems (including chronic pain) anyway, or if a person is significantly exaggerating the impact of the accident injuries. There is a wide range of factors, which means that claims involving chronic pain are often more complex, stressful and difficult than other cases involving serious injuries.

Diagnosis is difficult – there is often a range of opinion As you have now seen, ‘chronic pain’ cases are rare, the diagnosis of is often difficult and complicated by an individual’s pre-accident experiences, as well as personality. There is often more room for a wide range of opinion than there might be, for example, between orthopaedic experts giving evidence about a complex fracture and a neurologist giving evidence about the severity of a brain injury. Also, the precise diagnosis often requires input from experts with separate expertise, so that within a claim there may well be three ‘pairs’ of experts (usually orthopaedic, psychiatric, pain management), and each pair may disagree about what is causing symptoms, what treatment is necessary and what the future is likely to hold. It is not unusual for one expert to think that all of the person’s symptoms are related to an accident, while another expert may think that the genuine effects of an accident (if any) were very short-lived.

The consequences of the expert’s opinion can be a huge difference in compensation As frustrating as it may seem, individuals suffering from chronic pain are very often not best placed to explain why they are suffering. They may feel very strongly that all of their problems originated in an accident, but careful analysis of the medical records may suggest that there are other, or additional, potential causes for the symptoms. For that reason, chronic pain cases depend very heavily on the skill and persuasiveness of the expert witnesses involved. The acceptance by the court of one or other ‘side’s’ expert is very likely to have a massive bearing on the outcome of the case. Given that claims for chronic pain can include future loss of earnings for years, and lengthy, costly treatment, the difference in outcome if one expert’s view (or, as often happens, one ‘side’s’ team of experts) is accepted by the court, can be enormous.

The insurer has limited means to evaluate the claimant Insurers rarely meet a claimant, which makes it difficult for them to have a good understanding of what type of person he or she is. In a claim against an employer, the insurer may learn something about the person from the employer directly. In other claims, an employed claimant will often have occupational health or personnel records, which the insurer is entitled to scrutinise to see what the claimant’s health and work record was like before the accident. Many claimants will have Department

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of Work and Pension (DWP) documentation (e.g. benefit applications and decisions), which the insurer is also entitled to see for the same reason. The insurer will also ask the experts it instructs what impression they had of the claimant during the examination. If the insurer starts to think that the claimant’s symptoms are out of all proportion to the initial injury, the insurer will naturally become suspicious and want to protect itself from offering compensation which is far higher than the actual losses fairly attributable to the accident it has caused to the claimant. Of course, the claimant may have developed a rare pain syndrome and/or disorder. However, it is also possible that the claimant may (consciously or unconsciously) be exaggerating some or all of his problems.

Another factor complicating claims – identifying the truth? It is sometimes a very fine line between the ‘truth’, an unintentional inaccuracy, an intentional (but modest) inaccuracy and a straightforward untruth or lie. For example, a person tells an expert he can walk 200 m, but has told a benefit assessor he can only walk 50 m. Is that a ‘lie’ and, if it is, does it matter? Any conscious lie matters, because it harms the credibility of the individual and, if a claim ends at a trial, the judge will soon start to lose faith in a person who has not told the truth. The more untruths/inaccuracies and/or the more serious the untruths, the more likely it is that the judge’s inclination to believe that person will crumble and be replaced by scepticism and criticism. In the example above, and assuming both individuals did record the information given to them accurately, there are plenty of innocent and less innocent explanations: § The benefits assessor might have told the person (but not recorded telling him) to answer ‘as if it was your worst day’. § The expert might have asked the person to answer ‘as if it was an average day’. § The benefit assessment may have been in the middle of winter; the doctor’s examination in summer. § The symptoms may have changed between the assessments. § The individual may have felt that they should over-emphasise their symptoms to the benefits assessor because, if not, that person might score them unfairly too low and beneath the threshold at which they would receive any benefits. § The individual may have over-emphasised their symptoms to an expert (often the defendant’s expert) to make sure he understood how bad the symptoms could be. § The individual may (in a very rare case) have felt considerably improved, but decided not to acknowledge that improvement, so that anyone assessing him continued to believe that his symptoms were bad. § The individual may (in a rarer still case) have decided to mislead his family, friends, treating and medico-legal clinicians and his legal representatives, to maximise the compensation from a modest (or recovered) injury. This person deserves, and will very often find themselves, at a very high risk of being 33

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discovered (it is very difficult indeed to ‘get away with’ such a plan) recovering very little in the claim (and being liable to pay the defendant’s costs out of any sums awarded in compensation), and in a serious and clear case, and facing criminal investigation.

Covert surveillance We have explained that insurers (and their legal representatives), unlike those of the claimant, do not have an opportunity to meet and evaluate the injured person during a claim. One very effective tool for the insurer is to have the claimant filmed going about their daily lives, then to compare what they see with the accounts the claimant has given to the experts, benefits assessor or others. If there is a very obvious difference, the insurer will want to rely on the surveillance to undermine some or all of the claim. Sometimes, surveillance footage is entirely consistent with what the claimant has said, and sometimes there are modest inconsistencies which can be explained because it was a ‘good’ day (with less pain than normal), or perhaps that the claimant suffered much more than usual the day after the footage was taken (when he was shown managing more activity than usual). In such cases, the explanation has to be balanced against all of the other evidence in the case. If there are ‘too many’ inconsistencies, the claim will be badly harmed, but if there are very few, then the defendant – and ultimately the court – may well accept the claimant’s word. On other occasions, the surveillance can appear very damaging, but may not be. A real example is a case in which a man (whose hobbies had been ruined by his pain) told his solicitor he had been encouraged at the pain clinic to try fly-fishing to help his mobility and mood. Shortly after, a DVD of him fly-fishing crossed in the post with a letter from his solicitor explaining that was what he had tried to do. The defendant understandably thought the surveillance was very damaging to the claim but, in fact, it was nothing of the sort. Indeed, the fact that the claimant had thought to tell his solicitor that he had managed to go fishing (and that had been communicated immediately to the insurer) meant that the insurer considered him a truthful person for having volunteered the information to them without knowing he was being filmed. That case, which had been very hotly contested on various causation issues to that point, settled successfully for both parties shortly afterwards. The message in every case is absolutely clear. If you volunteer any significant improvements in your condition to your solicitors, you do not have to be worried about being ‘caught out’ by surveillance.

Final messages about litigation concerning chronic pain Litigation is stressful but it will usually provide reasonable compensation The process of making a claim for chronic pain is often stressful, but with good quality advice, clear information and a desire to compromise, many issues can be 34

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resolved, and the vast majority of cases concluded with a settlement which is satisfactory to the injured person and insurer alike. Involvement with the legal process will not make you better. Indeed, in chronic pain cases, for the reasons explained above, it is usual for there to be a much wider gulf between the positions of the two parties than in other types of claim. The vast majority of personal injury claims settle. The vast majority of chronic pain cases settle. Provided you are well advised and you play an active part in your claim (asking questions and making sure they are answered) there is a good chance that your claim will be concluded with a reasonable settlement. If inconsistencies in the evidence do arise and/or the experts strongly disagree about the case it will become significantly more stressful, and the claim will inevitably be more difficult to settle. However, the process is worthwhile and ought to enable you to achieve reasonable financial protection against the consequences of your injury. From the start, however, you will need to be as calm, patient and resolute (and, it goes without saying, as honest) as possible. It is very important that you provide information which is as accurate as possible at all times – to your legal representatives, treating doctors and to the experts in the claim. That does not mean that the claim is an impossible memory test. Most people (perfectly reasonably) cannot remember lots of things that have happened years earlier. The simple point is to do your best, explain when you cannot remember something and don’t just guess an answer because you think you should. Accuracy is particularly important in chronic pain cases, and both parties (and the court) will rely on all of the information (statements, medical records, your account to the experts, benefit applications, employment files etc.) in coming to a decision about what is the cause of a person’s symptoms. No one is expected to remember all the details of their treatment, and there are almost always loose ends in every claim. The key is to be as accurate as you can, so that the experts and the court have the best opportunity possible to assess your claim. In that way, you are likely to emerge from the process with a fair, reasonable award of compensation to enable you to look to the future.

Conflict of interest disclosures Disclaimers and conflict of interest policies are found at: http://bit.ly/1wqiOcl

Article submission and acceptance Date of Receipt: 30.05.2014

Date of Acceptance: 15.08.2014

Contacts/correspondence: Dr Rajesh Munglani: rajesh@munglani.com Mr Julian Benson: julian.benson@guildhallchambers.co.uk

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Intellectual property & copyright statement We as the authors of this article retain intellectual property right on the content of this article. We as the authors of this article assert and retain legal responsibility for this article. We fully absolve the editors and company of JoOPM of any legal responsibility from the publication of our article on their website. Copyright 2014. This is an open-access article distributed under the terms of the Creative Commons Attribution Licence, which permits unrestricted use, distribution and reproduction in any medium, provided the original work is properly cited.

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Compensation Claims Relating to Chronic Pain Information and checklists Julian Benson

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Summary of Contents

§ § § § §

Introduction to the different lawyers and what they do Tips for locating a solicitor Questions to ask a solicitor you are considering asking to act for you Selection of terms you are likely to encounter during the litigation Claimant checklists on liability and valuation issues

Keywords

Chronic pain, personal injury claim, civil courts, liability, valuation

Introduction to the different lawyers and what they do In England and Wales, the lawyers who deal with personal injury claims are either solicitors (or others employed by solicitors) or barristers. Traditionally, solicitors are experienced lawyers who work within a ‘firm’, which to the client is no different to a company. It is an organisation which can employ anything from a handful to hundreds of staff. Traditionally, solicitors, and those employed by them, attracted work (i.e. ‘clients’) by: having a presence in the field (i.e. a good reputation for personal injury work); a good general reputation locally or even nationally (perhaps as a firm that could also handle a range of legal problems); and having a financial association with an insurance company, or perhaps a union, so that injured individuals were ‘referred’ to the firm (usually for a fee of some kind). This type of ‘referral fee’ was outlawed in April 2013. Solicitors and those they employ are still responsible for ‘compiling’ the elements of the claim, from an initial first meeting with an injured person and agreeing the terms upon which they will act for that person, to gathering factual evidence about the accident and its effect, and obtaining medical evidence. Many cases are dealt with from ‘start to finish’ by a firm of solicitors without the need to involve barristers. However, in more complex cases, perhaps where establishing fault for the injury is in dispute, where the medical issues are complicated, or where the compensation could be substantial, solicitors often turn to barristers to provide advice.

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Barrister, Guildhall Chambers

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In the vast majority of situations, therefore, a barrister is ‘instructed’ (that is ‘brought into a case’) by a solicitor. The barrister’s particular expertise has traditionally been the assessment of evidence and advice on the likely outcome of a trial. More recently, barristers very often advise at an earlier stage in the claim, to assist the solicitor to ‘shape’ the evidence so that it can be presented in its most attractive light at a trial. In that way, only a tiny minority of claims end with a trial – the vast majority are settled through negotiations. Barristers are also the individuals who conduct trials (still often wearing their ‘wig and gown’) if settlement cannot be achieved.

The people you may encounter in the solicitor’s office Firms of solicitors also employ people who have different qualifications but can still provide useful services (at a lesser wage cost to the firm). The typical composition of a solicitors firm may include all of the following individuals acting for an injured person: Partner: A senior solicitor, often also a co-owner of the solicitor’s firm, who is granted the prestigious title ‘partner’. Associate solicitor: An experienced solicitor who is usually looking to become a partner. Consultant: Usually an experienced solicitor, or legal executive. Solicitor: A lawyer qualified in accordance with the standards and requirements of the Law Society. Assistant solicitor: A fully qualified but less experienced solicitor. Trainee solicitor: An apprentice solicitor. Legal executive: A lawyer qualified in accordance with the standards and requirements of the Chartered Institute of Legal Executives, who is able to undertake all work that may be undertaken by a solicitor under the supervision of the solicitor. Litigation executive: A person who does not have legal qualifications, but may (or may not) be experienced and knowledgeable. Paralegal: Similar to a litigation executive.

The barrister – also referred to as ‘counsel’ A barrister, just like a solicitor, is a lawyer. Barristers have a long and interesting history. There is still something of a mystique about barristers, probably because they still wear a very historical costume in court, the best-known parts of which are a horsehair wig and a long black gown. The vast majority of barristers are self-employed. They work in offices called historically ‘chambers’, and they pool the administration costs between themselves. Barristers are only permitted to act for a client ‘directly’ in limited circumstances, and even then they may not undertake all of the work done by a solicitor. Therefore, in the vast majority of cases, your solicitor will ‘instruct’ (i.e. request) a barrister to provide an opinion on aspects of the case because of his expertise in putting together the arguments and evidence required to construct your case. There are only two ‘levels’ of barrister. About 90% are ‘just’ barristers, who are also known within the profession as ‘junior counsel’. About 10% of barristers are ‘senior counsel’, who are also known as ‘Queen’s Counsel’ (or ‘QC’), as recognition of excellence and seniority within the profession (after perhaps 25 years in practice). Within the profession, more experienced juniors are sometimes known as ‘senior juniors’. It follows that in the vast majority of personal injury cases, you will be 38

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represented by a barrister who is not a QC. In very rare cases, either of very high value (perhaps £1 million+) or immense complexity, a QC will be involved.

Courts and judges Personal injury claims are ‘civil cases’ (as opposed, for example, to criminal cases). As such, they are dealt with by the ‘civil courts’ (rather than, for example the Crown Court, which deals with criminal cases). There are two ‘levels’ of civil court where your claim may be handled: the County Court and the High Court.

The County Courts The County Courts are based in regional cities and towns, and deal with the vast majority of personal injury cases, from small claims to high-value claims. The location of your nearest County Court can be found using the Courts Service website.

The High Court and District Registries of the High Court The High Court deals with the most complex and/or highest value cases. It is based at the ‘Royal Courts of Justice’ in the Strand, in London. You will probably have seen the building on television or in the press many times. Although it is of more historical interest, and is not something which will affect you at all, personal injury claims are dealt with in one part (or ‘Division’) of the High Court, known historically as the ‘Queens Bench Division’ (or ‘QBD’). As well as its base in London, the High Court has bases (best thought of as ‘branches’) outside London. These are called ‘District Registries of the High Court’. The High Court District Registries are confusingly located in the same buildings as the County Court. Also, as very few District Registries have ‘their own’ High Court judges, the same judges (who are granted special permission to do so) deal often deal with High Court and County Court cases in District Registries.

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Who are the judges? Judges are (almost always) former solicitors and barristers. The vast majority of District judges are former solicitors, and the vast majority of County Court and High Court judges are former barristers. There are also some part-time judges who ‘sit’ as judges for a few weeks a year, and otherwise work as solicitors and barristers. Table 1 -Judges of differing seniority have separate titles and are addressed accordingly in court:

Court

Judge

Title

Called

High

High Court Judge

Mr Justice Smith

My Lord/My Lady

High (London)

Master

Master Smith

Master

High (London)

Deputy Master

Deputy Master Smith

Master

High District Registry

District Judge

District Judge Smith

Sir/Madam

County

Circuit* Judge

His Honour Judge Smith

Your Honour

County

Recorder**

Mr Recorder Smith

Your Honour

County

District Judge

District Judge

Sir/Madam

County

Deputy District Judge

Deputy District Judge Smith

Sir/Madam

(*For historical reasons, relating to the geographical region, or ‘circuit’ over which they preside, senior County Court judges are also known as Circuit judges) (** A Recorder is a practising lawyer who sits as a Circuit judge a few weeks a year) (^ A Deputy District judge is a practising lawyer who sits as a District judge a few weeks a year)

In general terms, after the claim is started, it is managed by the Court at short hearings, often by telephone. These hearings are almost always dealt with by District judges in the County Court (and District Registries) and by Masters in the High Court in London.

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Tips for locating a solicitor § Locating a solicitor is easy – but finding an excellent specialist is not. § The Internet is a good starting point, particularly ‘blogs’, which often carry up-todate comments from other people who have had a claim. § Websites may also have testimonials from clients, and although these only reflect the image the firm wants to project, there may be references to a particular type of work, or injury or condition, which suggests specialist knowledge. § You may find that you are able to find firms dealing with certain syndromes, symptoms or conditions by using those words in the search engine, but always … § Remember to be (politely) sceptical – just because someone calls themself a specialist in a field – such as personal injury – does not mean they will provide an excellent service. As in any field, lawyers must earn your trust.

Questions to ask a solicitor you are considering asking to act for you § What are your qualifications and experience? § Can you give me an example of a similar claim that you have dealt with? § Will you personally handle my claim? § If not, who will, what are their qualifications and can I meet him/her now? § How will my claim be funded? § Who will pay for the medical reports and other ‘disbursements’ incurred during the claim? (some firms use ‘interim payments’ – a payment ‘on account’ made by the insurance company before the end of the claim - to pay for medical reports at a time when the injured person is most in need of funds) § § Will the firm make any deductions from any interim payments? (the same point as above, check whether interim payments will all be paid to you) § At what stage might you involve a barrister in my claim? (in some cases it is sensible to involve the barrister early on to plan a strategy. Some senior solicitors may not feel the need to do so but the reasons should be explained clearly to you). § Is there any restriction on the barrister(s) who can be instructed? (it is important for you to know that the barrister instructed will have the specialist knowledge required you’re your case) § Will you obtain and read my medical records before instructing medical experts? § Will you collate my medical records and let me have a copy of them if I want one? § How do you select medical experts? (i.e. do you select them because of their reputation, or your own experience of them, or just because an agency suggests them – and if the latter, what steps do you take to ensure they are high calibre?) § Do you instruct medical experts directly or rely upon a medical agency? (if the expert used is not known to your solicitor you should ask that an ‘example’ report be obtained – with the client’s name deleted – so that your solicitor/you can see whether the report seems thorough/well-reasoned before they are instructed). § Will you review all medical evidence, and my comments on it, before serving it? § How, and how frequently, will you update me on the progress of my claim?

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§ At the end of the claim, will I receive all of the damages agreed with the defendant (or ordered by the court) or could my compensation be reduced in any way?

Stages in a typical injury claim § Meeting/discussion between injured person and solicitor § Solicitor instructed (terms of business agreed) by injured person § Letter of claim sent to defendant, setting out the reasons for the claim § Defendant’s response (three months), providing documents (if disputing fault) § Claimant obtains medical evidence § Claimant requests interim payment if fault/liability accepted § Defendant obtains medical evidence § Attempts made to settle claim before proceedings issued § Claim form issued – (almost all cases) this must be within three years of accident § Claim form, particulars of claim, schedule of loss, medical evidence sent to defendant § Defence, counter-schedule sent to claimant § Allocation of claim to a ‘track’ by court – reflecting complexity/value of the claim – almost all chronic pain cases will be allocated to the highest track, known as the multi-track § Questions posed to opposing party to clarify issues in dispute § Questions posed to respective experts to clarify issues § Formal disclosure of documentation relating to ‘fault’ and ‘valuation’ issues § Witness statements of facts exchanged § Service of any further medical/non-medical expert evidence § Joint statements by medical and non/medical expert witness – setting out issues on which they agree and disagree, with reasons for disagreements § Final schedule of loss served § Final counter-schedule served § Joint settlement meeting often takes place (or ‘mediation’) § Trial

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Selection of terms you are likely to encounter during the litigation For a full glossary of terms you are likely to encounter during a claim, visit www.abarristersguide.org.uk and download the free book. What follows are a few of the more important terms which may be encountered. Any and every lawyer you meet ought to be delighted to explain these (and any other) terms. General damages

These are losses of various types which are not capable of precise calculation. For example, they include the award for ‘pain suffering and loss of enjoyment of life’ (lawyers refer to as ‘amenity’), which is the award for the actual injury and associated suffering. It also includes awards reflecting a person’s future restrictions (or ‘handicap’) on the job market. Contrast ‘special damages’, below.

Joint expert

(also single joint expert) An expert who receives his/her instructions from both parties. This is usually seen in a small or moderate case, where the evidence is unlikely to be controversial, or in a more serious case, where the injury covered by this expert is likely to be a substantial part of the overall claim.

Not to be confused with: Joint report

A report prepared by opposing expert witnesses in the same field which sets out all of the areas in the case within their expertise, on which they agree, and disagree, and giving reasons for disagreement.

‘JSM’

Joint settlement meeting – meeting between parties to try to settle a claim. This is a meeting with the parties in separate rooms, usually a few months before a trial. It is vital that a person is advised in the clearest terms, with good reasons, what the range of possible outcomes are at trial, so that they can participate in the JSM and contribute to its successful outcome.

Mitigation of loss

Taking reasonable steps to limit the consequences of an injury. Every injured person has a duty to try to minimise the effect of an accident, perhaps by returning to work when possible (even if at restricted hours and/or duties), or perhaps by redistributing domestic tasks between family members to reduce any claim for ‘domestic care and assistance’.

PI trust

Personal injury trust – a method of investing compensation to protect state benefits.

Schedule of loss

This is the critical document in a personal injury case, because it sets out the special damages (see below) and very often also the general damages (see above). The defendant serves a counter-schedule which answers the claims made in the schedule, so that once these

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documents have been finalised both parties ought to be able to identify their strengths and weaknesses of their positions, and consider how best to conclude the claim – often by arranging a ‘JSM’ – see above. Special damages

These are financial losses which (unlike general damages, see above) can be calculated. Typically, these include lost earnings, travel expenses, medical treatment or medication costs etc.

‘Without prejudice’/‘WP’

This is a phrase, or even just the two letters ‘WP’ signifies that the parties are discussing aspects of the case in secret. Using the ‘without prejudice’ label in letters, and discussions, allows both parties to explore settlement of any/all aspects of a claim by making secret offers and suggestions which are often more generous that their stance in the case itself. So, for example, a defendant may offer to settle one aspect of a case for £5,000 in its counter-schedule (see above), which is an ‘open’ document seen by the court when determining the case, but it may make a higher offer on a ‘WP’ basis, to reflect the risk that it might lose the argument and be ordered to pay a higher sum. Crucially, if a party fails to beat a ‘WP’ offer, the court is only told about the offer after it has decided the issue. At that point the party who declined an offer which it later failed to beat is very likely to face very unpleasant costs consequences – including having to pay the wasted legal costs after the offer was rejected out of the overall compensation he or she was awarded.

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Claimant checklists on liability and valuation issues Liability/the fault issue § Write down an account of the accident as soon as you can. § Take several photos immediately after any accident, to illustrate what happened, the position of vehicles, a piece of dangerous equipment etc. § Consider who else might be able to provide information about the accident. § Consider who else could provide evidence in a broader context (e.g. in a workplace claim) on issues relating to training, or equipment. § In a workplace claim, note down names and addresses of colleagues who leave the defendant’s employment who might provide evidence concerning liability issues, or valuation issues (e.g. your reputation, opportunities for promotion etc.).

Valuation/loss of earnings or income (1) Keep anything which will help to show how you have earned your living both before and after the accident (e.g. payslips, tax records, accounts, order books). (2) Consider realistically (not pessimistically) what the future probably held if the accident had not happened: Assuming that your employer is still trading:

(a) Would you still have the same job? (b) Would you have had a pay rise? (c) Might you have had a promotion. If so: (i) Who was your competition? (ii) Why were you ‘better’? (iii)Did you have periodic appraisals, which would show how well you were doing? (iv) Who got the promotion? (d) Were you receiving employment benefits which are now lost: e.g. health insurance, use of vehicle, telephone? Assuming that your employer is not still trading

(e) What would you then have done if you had not been injured? (f) What were your chances of finding further work, and at what wage, and when, and where? (g) Might there have been increased or reduced travel costs in further work? (h) What qualifications did you have before the accident? (i) Can you still use any of those qualifications, or if not, is that because of the accident, or for some other reason? 45

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(ii) What can you manage now? (iii)Can you retrain in a field you know? (iv) How long would retraining take, what would it cost, what is the rate of successful completion (something the college or provider should tell you), and what proportion of successful candidates find work? (v) Do you know what opportunities there may be? (vi) Could you retrain in a new field altogether? (vii) How long would retraining take, what would it cost, what is the rate of successful completion (something the college or provider should tell you), and what proportion of successful candidates find work? (viii) Do you know what opportunities there may be? (ix) What could you do if you did not pass the retraining course/exams?

Valuation/personal care and domestic assistance (1) Keep a record (perhaps weekly) of the sort of personal care provided to you (noting particularly any unsocial hours). This may include help with: washing; dressing; toileting; changing dressings etc. (2) Keep a record of tasks which others carry out for you. Typical examples are: (a) cleaning; (b) vacuuming; (c) laundry and ironing; (d)cooking; (e) gardening; (f) DIY/decorating; (g) window cleaning; (h)shopping; and (i) vehicle maintenance/cleaning. (3) Also, if you were excellent at an aspect of DIY or gardening etc., say so, and provide ‘before photos’ of work you had done, which demonstrate those capabilities. If you had not yet had the opportunity to use such skills, you will need to explain in more detail. (4) Whether you have any formal qualification (NVQ etc.). (5) If not, then describe how you obtained the skill. (6) What you intended that skill to achieve. (7) Think as broadly as you can – you are simply trying to give a comprehensive picture of the likely impact of the accident on you.

Valuation/potential claims § Do not miss important claims, but be sensible and realistic about whether the accident has actually caused the losses you are claiming. § Some further examples of relevant questions might be: §

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Will you need any extra equipment or furniture in your home?

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§

Do you need an automatic vehicle?

§

Do you need an adapted vehicle?

§

Are you likely to incur additional travel costs?

§ Will conventional holidays be possible? If not, how can you be provided with holidays, and what additional costs might there be? § Again, think as broadly as you can – you are simply trying to give a comprehensive picture of the likely impact of the accident on you.

Conflict of interest disclosures Disclaimers and conflict of interest policies are found at: http://bit.ly/1wqiOcl

Article submission and acceptance Date of Receipt: 30.05.2014

Date of Acceptance: 13.07.2014

Contacts/correspondence: Mr Julian Benson: julian.benson@guildhallchambers.co.uk

Intellectual property & copyright statement We as the authors of this article retain intellectual property right on the content of this article. We as the authors of this article assert and retain legal responsibility for this article. We fully absolve the editors and company of JoOPM of any legal responsibility from the publication of our article on their website. Copyright 2014. This is an open-access article distributed under the terms of the Creative Commons Attribution Licence, which permits unrestricted use, distribution and reproduction in any medium, provided the original work is properly cited.

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Pain Relief and Related Outcomes Following Interventional Therapy for Chronic Non-cancer Pain: A Service Evaluation T Bendinger MD PhD FRCA1 S Gupta MBBS MD FRCA FFPMRCA2

Abstract Interventional pain therapy as the treatment modality of non-cancer chronic pain is under increasing scrutiny due to lack of unequivocal evidence. Some of the available studies, with poor selection and poor technique of procedures, conclude the negative results of invasive techniques that contribute to an indecisive overview of this topic. This results in the fact that research outcomes do not reflect clinical practice and patients are, therefore, left feeling miserable. Data were collected prospectively after 502 episodes of invasive procedures were carried out in a single teaching hospital multidisciplinary pain clinic in 2011–13 on patients suffering from chronic non-cancer pain. The data were collected by a nurse via telephone on a routine follow-up post procedure at six and 12 weeks. The following parameters were assessed: level and total duration of pain relief, improvement of sleep quality, ability to perform physical activity, changes in prescribed analgesic medicine and global perception of change. Adverse events post therapy were also documented. 45.6% of patients experienced some level of pain relief at 12 weeks post intervention. For 33.8% of patients, there was a significant or very significant improvement in the level of physical activity. Sleep quality improved considerably or more for 47.5 % of the group. 23% of patients reported a reduction in the amount of analgesics. 44.8% reported positive global perception of change. 5% of the group experienced different adverse effects and 7.4% a short-term increase in pain. Despite unequivocal results in the literature, the interventional therapy is safe and was effective for about half of our patients. Keywords chronic pain, interventional therapy, facet joint interventions, epidural injections, outcome measurements

1 2

Registrar in Anaesthesia and Pain Medicine, Sheffield Teaching Hospitals, Sheffield, UK. Consultant in Anaesthesia and Pain Medicine, Sheffield Teaching Hospitals, Sheffield, UK.

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Introduction Pain conditions such as lower-back pain is a dramatically increasing problem in Western countries, which cost billions of dollars to health providers. Different treatment strategies, such as opioids, interventional therapies or pain management programmes, for painful conditions are considered. However, all of these strategies have, in turn, created new issues. There has been a significant increase in the amount of opioid prescriptions and opioid-related deaths are especially noted in the US.1 Other strategies, such as interventional pain techniques, have faced different problems. An increase in the number of mostly spinal injections by 9.6 to 14.5% every year has caused a massive increase in costs.2 Therefore, there has been recent significant interest in the evaluation of the effectiveness of these invasive techniques. Multiple recent meta-analysis or literature reviews have produced unequivocal evidence of the associated benefits to patients. The reasons for this include poor quality of studies included for analysis and bad methodology of reviews.3 Moreover, literature reviews or guidelines have used different scales of evidence which are specific to themselves, and they are not comparable. This situation confuses clinicians and results in the fact that research outcomes do not reflect clinical practice and patients are, therefore, left feeling miserable.

Methods Data were collected prospectively after 502* episodes of invasive procedures were carried out in a single teaching hospital multidisciplinary pain clinic in the 2011–12 and 2012–13 financial year for patients suffering from chronic non-cancer pain. The procedures were performed by three experienced pain medicine consultants. The types of procedures carried out are presented in Table 1 below and involved mostly spinal, paraspinal procedures and intra-articular injections. The great majority of these therapeutic procedures were performed for lower-back pain with/without leg component. The other diagnoses included radiculopathy, neck/shoulder pain and CRPS. Table 1– Types of procedures performed per year

Type of procedure

Number of procedures in 2011– 12* 6 40 33

Number of procedures in 2012– 13* 17 104 89

RF neurotomy

14

49

Epidural injection

38

47

Coccyx injection

2

1

Trigger point injection

6

3

Suprascapular nerve block/ablation

12

17

Ganglion block/sympathectomies

6

4

Other block

2

12

Sacroiliac joint injection Facet joint injection Nerve root injection

* The data may not necessarily represent the whole of our pain clinic activity. There were no patient’s inclusion or exclusion criteria to participate as this service evaluation describes the routine service of the pain clinic. All consecutive patients were included, initially of one pain medicine consultant, followed by staged 49

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involvement of 3 out of 4 of the consultants over the two-year study period. As this was a change in practice for the clinic, a guarded approach was taken. Patients were asked to give an informed verbal consent to acknowledge their willingness to participate in this study. Patients were informed at the time of injection that they would be followed up by a nurse via telephone. To preserve impartiality and reduce bias, data were collected by a pain specialist nurse not involved in performing procedures during telephone follow-up at 4–6 weeks and 12 weeks post procedure. Mean age of the included patients was 60 years (min. 18/max. 96 years) with gender distribution M:F ratio of 2:3. Most of the patients (70%) were referred to the pain clinic from primary care. The following parameters were assessed at six weeks and 12 weeks post procedure: level of pain relief using numeric rating scale, total duration of pain relief in weeks, improvement of sleep quality and ability to perform physical activity on a five-point categorical scale, changes in routine medicine and global patients’ perception of change. If there was no pain improvement at six-week follow-up, 12-week assessments were not performed. Adverse events post therapy were also documented.

Results The improvement of pain relief was assessed on a numeric rating scale (0% – no relief; 100% – max. relief) at 12 weeks, as presented in Table 2 below. Table 2 – Improvement of pain relief at 12-week follow-up

Percentage of improvement

Number of responses

%

No improvement Some improvement (10–100%)

273 229

54.4 45.6

45.6% of our group continued to experience some level of pain relief at 12-week follow-up. However, 54.4% of patients showed shorter pain relief than three months, including 39.3% of the whole group, which experienced benefit for less than six weeks (Table 3). Table 3 – The length of any pain relief during observed time

Length of pain relief

Number of responses

%

Shorter than six weeks Six weeks to 12 weeks Longer than 12 weeks

197 76 229

39.3 15.1 45.6

Improvement in the level of physical activity was assessed on a five-point categorical scale presented in Table 4 below. For 33.8% of patients, there was significant or very significant improvement in the level of physical activity. However, 11.2% of the group reported deterioration in physical activity, which is very difficult for the authors to explain. This could possibly be related to the progression or flair up of a patient’s painful condition. None of the patients reported a direct causation between the deterioration of physical activity level and the intervention procedure.

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Table 4 – Changes in ability to perform physical activity

Level of improvement

Number of responses

%

Doing much more Doing more Doing the same

32 138 273

6.3 27.5 54.4

Doing less

39

7.8

Doing much less

17

3.4

N/A

3

0.6

Similarly, the patients’ quality of sleep was measured on a five-point scale, as per Table 5 below. Sleep quality improved considerably or more for 47.5 % of the group.

Table 5 – Improvement in the quality of sleep

Quality of sleep

Number of responses

%

Much better Slightly better No change

68 171 135

13.5 34.0 26.9

Slightly worse

29

5.8

Much worse

13

2.6

N/A

86

17.1

As a consequence of interventional procedures, 23% of our patients reported a reduction in the amount of analgesic medicine. The global perception of change was reported on a seven-point categorical scale. 45% of the group reported a positive global perception of change; however, 42.4% of patients did not notice any benefit, as shown in Table 6 below.

Table 6 – Global patients’ perception of change

Perception of change

Number of responses

%

Very much improved Much improved Minimally improved

53 114 59

10.6 22.7 11.7

No change

213

42.4

Minimally worse

33

6.6

Much worse

18

3.5

Very much worse

13

2.5

Adverse events were observed post procedures, including a short-term increase in pain experienced by 7.4% patients; 5% of the group experienced other adverse effects.

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One dural tap was recorded and treated conservatively without causing any permanent injury to the patient.

Discussion This service evaluation/initial data collection was actioned as a response to a Clinical Commissioning Group (CCG) request for patient-related outcome measurements. All consecutive patients were included, initially of one pain medicine consultant followed by staged involvement of 3 out of 4 of the consultants over the two-year period. Therefore, the number of cases during the first year was considerably smaller. After detailed review, this new system of follow-up was accepted by the pain medicine department and endorsed by the rest of the pain medicine consultants. At present, these data have been used as a mark of performance quality during service review at managerial level. The presentation of cumulative data of all of our interventional practice is a very different way to present results than outcomes described by most pain trails. Instead of presenting selective results by condition and/or procedures, as per most research, we have given a broad overview of clinical results by clinic. Lack of inclusion/exclusion criteria makes the results more applicable to the population seen in our pain clinic on a daily basis. It is possible that this could be extrapolated to other pain clinics. Moreover, we have accepted the superiority of research as a medicine-development tool but it should be noted that the selection of patients for pain research purposes can potentially introduce bias. Very robust methodology of pain trails and double blinding are very difficult to achieve. Any sham procedure can introduce bias and placebo effect.4 The authors have simplified diagnosis codes, as ICD-10/Dr Foster codes are too overwhelming and did not deliver any clinical benefit in day-to-day practice.5 Despite this project being very different than most of the research studies in current literature, we followed Initiative on Methods, Measurement, and Pain Assessment in Clinical Trials (IMMPACT) guidelines to design outcomes that hopefully will improve the execution and interpretation of our results. We implemented six core outcome domains recommended by IMMPACT: pain measurements, physical and emotional functioning, level of improvement and satisfaction with treatment, and also patient’s characteristic and adverse events during treatment. Our practice was in line with recommendations presented in systematic review done by Manchikant et al. and the recently published guidelines from the American Society of Interventional Pain Physicians (ASIPP).6 NICE clinical guideline 88 was not particularly helpful in this field, as it recommends management for non-specific lowback pain lasting between six weeks and 12 months. The said NICE guideline does not address the management of severe disabling low-back pain that has lasted more than 12 months, which was presented by most of our patients.

Conclusions Despite unequivocal results in the literature, the interventional therapy is safe and was effective for about half of our patients and can give up to three months’ benefit.

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Acknowledgements Both authors would like to thank all the nursing staff from the Chronic Pain Clinic of Northern General Hospital, Sheffield for help in organising this new telephone follow-up service. Special thanks to June Corrigan for her hard work in collecting the data.

References 1 Calcaterra S, Glanz J, Binswanger IA. National trends in pharmaceutical opioid-related overdose deaths compared to other substance related overdose deaths: 1999–2009. Drug Alcohol Depend. 2013 Aug 1;131(3):263–70. 2 Manchikanti L, Falco FJE, Singh V, Pampati V, Parr AT, Benyamin RM, et al. Utilization of interventional techniques in managing chronic pain in the Medicare population: Analysis of growth patterns from 2000 to 2011. Pain Physician 2012;15:E969–82. 3 Van Zundert J, Vanelderen P, Kessels A, van Kleef M. Radiofrequency treatment of facet-related pain: Evidence and controversies. Curr Pain Headache Rep 2012;16:19–25. 4 Machado L, Kamper S, Herbert R, Maher C, McAuley J. Imperfect placebos are common in low back pain trials: a systematic review of the literature. Eur Spine J 2008;17:889–904. 5 DeAlmeida DR1, Watzlaf VJ1, Anania-Firouzan P1, Salguero O2, Rubinstein E3, Abdelhak M1, et al. Evaluation of inpatient clinical documentation readiness for ICD-10-CM. Perspect Health Inf Manag. 2014 Jan 1;11:1h. 6 Manchikanti L et al. An update of comprehensive evidence-based guidelines for interventional techniques in chronic spinal pain. Part II: Guidance and recommendations. Pain Physician 2013;16:S49–283.

Conflict of interest disclosures Disclaimers and conflict of interest policies are found at: http://bit.ly/1wqiOcl

Article submission and acceptance Date of Receipt: 27.07.2014

Date of Acceptance: 22.08.2014

Contacts/correspondence Dr Sameer Gupta, Northern General Hospital, Chronic Pain Service, OPD4, Harries Road, Sheffield S5 7AU Email: sameer.gupta@sth.nhs.uk

Intellectual property & copyright statement We as the authors of this article retain intellectual property right on the content of this article. We as the authors of this article assert and retain legal responsibility for this article. We fully absolve the editors and company of JoOPM of any legal responsibility from the publication of our article on their website. Copyright 2014. This is an open-access article distributed under the terms of the Creative Commons Attribution Licence, which permits unrestricted use, distribution and reproduction in any medium, provided the original work is properly cited.

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Does low dose opioid therapy remain effective longterm in chronic pain patients? A retrospective analysis of short-term responders to transdermal buprenorphine. 1

Dr Sandeep V Puppalwar MBBS MD FCARCSI FRCA , Dr Ravindranath T Parekodi MBBS 2 3 DA FCARCSI FRCA FFPMRCA , Dr Nick Plunkett MB ChB FRCA FFPMANZCA FFPMRCA , 4 Ms June Corrigan RGN

Abstract Background: Opioid use in chronic pain management is controversial. We continue to see patients on inappropriate doses of opioids above the British Pain Society suggested maximum of 180 milligrams morphine equivalent per day.1The aim of this study was to evaluate the long-term effectiveness of buprenorphine patches, in terms of improvement in function or pain relief in a select group of short term responders, 4 years after starting treatment. Methods: Patients with chronic non-malignant pain attending the pain clinic at Sheffield Teaching Hospitals (STH) from May 2009 to June 2011 and deemed suitable for strong opioid treatment were initiated on buprenorphine patches. A prospective clinical evaluation study was undertaken looking for improvement in pain and function at baseline, 1 month and 3 months. Patients who had responded with any degree of improvement in pain or function were considered to be responders. A long-term effectiveness follow-up study was then done with these responders 4 years from the start of their buprenorphine treatment. Data on improvement in pain and activity, the dose of buprenorphine patch, adverse effects and Patients Global Impression of Change (PGIC) was obtained. For the purpose of this study, a dose of less than 20 micrograms/ hour was considered to be a low-dose. 62 patients were started on buprenorphine patches as per the original study. We analysed data both in terms of patients originally included in the study (i.e. intention to treat, n=62), as well as patients with complete dataset throughout the initial 3 month study period (n=47). At the end of 3 months: With intention to treat, 23 patients (37%) out of 62 had improvement in pain or function. If analysed only in patients with complete dataset, 23 patients out of 47 (49%) showed good response.

1

Clinical Fellow in Anaesthesia, Sheffield Teaching Hospitals Consultant, Anaesthesia & Pain Medicine, Sheffield Teaching Hospitals 3 Consultant, Anaesthesia & Pain Medicine, Sheffield Teaching Hospitals 4 Clinical Nurse Specialist, Pain Clinic, Sheffield Teaching Hospitals 2

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At the end of 4 years, we attempted to collect data from these 23 previous short term responders. Out of these 23 patients we were not able to contact 3 patients and one patient was deceased. Hence we have data for 19 patients. At the end of 4 years: On an intention to treat basis, 10 patients (16%) out of the original cohort of 62 showed improvement in pain or function. On a predetermined responder basis, 10 (52%) out of 19 patients who could be contacted were found to be benefitting with buprenorphine patches. PGIC data in these 19 patients showed that 4 patients were much improved while 6 patients were minimally improved. After 4 years, 8 patients out of 19 i.e. 42% were using a low dose of less than or equal to 20 micrograms/hour. Over these 4 years, 21 patients (33%) had to stop buprenorphine patch due to its side-effects. Conclusion: Our study shows that after 4 years, only 16 % of patients who were originally initiated on buprenorphine patches showed any improvement in pain or function. However, out of those patients who showed good short term response at the end of 3 months , around 52% continue to benefit from buprenorphine patches and that 42% of these short-term responders continue using low doses (i.e. less than or equal to 20 micrograms/hour). The most common reason for stopping treatment was its side-effects. It shows that buprenorphine could be effective on a long-term basis in a small subset of patients. Keywords: Low-dose, buprenorphine, responders, chronic pain.

Introduction The prevalence of chronic pain is estimated at 8-60 % of the population, depending on the definition.2 The British Pain Society released guidelines for the prescription of opioids for persistent pain in 2010.1 In spite of these guidelines we continue to see patients on inappropriate doses of opioids. There have been very few studies looking into the long-term efficacy of opioids.3, 4 Evidence shows that the number of people who continue to benefit from this treatment continues to reduce over time, but may be best with buprenorphine compared to other opioids.3 Buprenorphine also offers certain advantages over other opioids, such as low starting dose, compliance, possible lower risk of side-effects and no dose adjustment in renal or hepatic failure. This study examined the long-term efficacy of low-dose buprenorphine patches in patients who had shown a good response to it in the short-term. We also looked into the doses and adverse events with regards to these patches.

Methods Definitions: For the purpose of these studies– Patients who had shown any improvement in pain or function during the initial 3 months after starting buprenorphine patches were considered to be responders. Non-responders were those patients who had not shown any improvement in pain or function at the end of 3 months of treatment.

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Dose of less than or equal to 20 micrograms/hour of buprenorphine was considered to be a low dose. Both the studies were done under the auspices of Sheffield Teaching Hospital Audit and Clinical Effectiveness department. Ethical approval was not considered necessary but informed consent was obtained from all the patients. A pain consultant assessed patients with chronic pain attending the pain clinic from May 2009 to June 2011 for suitability of opioid treatment, before starting them on buprenorphine patches. These patients were then assessed for improvement in pain, function and tolerability. The prescribing clinician filled the initial proforma and a single named clinical nurse specialist did the follow-ups by phone at 1 month and in the clinic at 3 months to check on compliance and effectiveness and to advice on need to alter dose/ manage side-effects with co-prescription of antiemetic and/or laxatives. The clinicians and patients were encouraged to prescribe/take anti-emetics and laxatives as required. Measures used were Verbal Rating Scales (VRS), Pain SelfEfficacy Questionnaire (PSEQ), Hospital Anxiety and Depression (HAD) scale and a 5-point scale for changes in sleep and function. A follow-up study was done in April 2014 with only those patients who had responded well to buprenorphine patches during the initial 3-month period. All the patients who had responded with any improvement in pain or function in the previous study were included, except one who was deceased. A single doctor not involved in the original study did all the follow-ups over the phone, using a predesigned questionnaire. A 5-point scale for measuring the percentage of pain relief and functional improvement, and a 7-point validated Patients Global Impression of Change (PGIC) scale for change in overall status were used with patients who were still using buprenorphine patches. Patients who had discontinued buprenorphine patches were questioned as to why they had stopped them (e.g. was this due to sideeffects, ineffectiveness or use of other strong opioid?)

Results During the initial trial period of 3 months: 62 patients were started on buprenorphine patches by a pain clinic consultant and assessed for its effectiveness. In 15 patients (24%), we could not analyse the data as it was either incomplete or the patients were lost to follow-up. We analysed data with regards to both intention to treat (n=62), and in patients with complete set of data (n=47). If analysis was performed only in the group with complete data (n=47), 23 patients (49%) had good response in terms of pain relief or improved activity (i.e. responders). 7 patients (15%) were non-responders in terms of not receiving benefit as defined by “responders”. 17 patients (36%) had to stop buprenorphine patches due to side-effects. If analysis was done with regards to intention to treat (n=62), 23 patients (37%) were responders. 7 patients (11%) were poor responders. 17 patients (27%) had to stop buprenorphine due to side-effects.

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After 4 years of treatment: All the previous responders were included in this study except for one patient who was deceased. Three patients could not be contacted (figure1). Hence we could collect data for only 19 patients out of the previous 23 short-term responders. If analysed with regards to the patients who were initially started on buprenorphine patches (n=62), after 4 years of treatment: 12 patients (19%) were still using buprenorphine patches 10 patients (16%) were actually getting any benefit from using these patches. Analysis with regards to short-term responders who could be contacted over the telephone (n=19) showed that: 12 patients (63%) were still using buprenorphine patches. Of these, 10 patients (52%) had overall improvement either in pain, or function, or both. PGIC data in those still using buprenorphine patches showed that the overall status in 4 patients (21%) had much improved, while in 6 patients (31%) it had minimally improved (figure 2). 8 patients (42%) were using a low dose of less than or equal to 20 micrograms/hour (figure 3). 7 patients (36%) had discontinued buprenorphine patch. The most common reason for stopping it was side-effects that were mainly nausea & vomiting (42%), CNS symptoms (42%) followed by skin reactions (28%). 5 patients (26%) switched over to use other opioids and, reassuringly, only 3 patients (15%) were changed to a stronger opioid like Fentanyl or MST. Figure1: Graphical representation of patients follow-up and their response to treatment over 4 years.

3

10

(Not contactable)

(Benefitting )

12

23

(Responders)

62

(Intention to   treat)

19

(Contactable)

47

(Complete dataset)

(Still on   Buprenorphine)

7

(Stopped Buprenorphine)

24

(Non -­‐ responders)

t= 3 months

1

(Deceased)

t= 4 years

     

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2

(Not benefitting)


Figure 2 – Patients Global Impression of Change scores after 4 years of treatment with transdermal buprenorphine

Figure 3 – Doses of transdermal buprenorphine used after 4 years

     

Discussion: Long-term opioid use is associated with risks like opioid-induced hyperalgesia, osteopenia, immunological & endocrine dysfunction, physical dependence, addiction and overdose.1A recent focussed review article has shown that there is weak evidence for long-term effectiveness of opioids in relieving pain and improving functional status.5 58

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As far as we are aware there are very few studies that have looked into the long-term efficacy of low-dose buprenorphine patches beyond 12 months. A recent study in Norway showed that only one-fifth of the patients with chronic non-cancer pain who were trialled on low dose buprenorphine patches became long-term users (>6 months).4The investigators were unclear of the reasons for the low rate of continued use. Our studies looked into the short- and long-term treatment response and side-effect profile of low dose buprenorphine. We found that at the end of 3 months about half the patients were getting any benefit as a result of patch use. After 4 years, about half of these previous responders at 3 months still continued to use buprenorphine patches, which suggest they might be continuing to benefit from this treatment. The average pain relief in responders decreased from 61.5% at 3 months to 36.6% after 4 years of treatment (figure 4). The reason for this apparent reduction in buprenorphine effectiveness is unclear. It could be because of tolerance, no change in dose or due to disease progression. Another study, 6 investigating the relationship between pain and opioid use, found that in the patient group reporting severe or very severe chronic pain, the number of patients not using opioids was far higher than the number who used opioids persistently. However, three quarters of patients using opioids persistently reported severe or very severe pain in spite of the medication. Similarly in our study, out of the 12 patients who were still using buprenorphine patches after 4 years, 2 patients were not getting any pain relief or functional improvement. This shows that persistent use of opioids may not necessarily provide any benefit to some patients with severe pain. Figure 4 – Average of percentage of pain relief in responders at various periods of follow-ups

We also looked into the reasons for stopping buprenorphine patches. Only 1 patient had stopped the treatment because it was not giving him any benefit. A significant number of patients (33%) stopped using low dose buprenorphine over these 4 years due to side-effects. One of the possible reasons for this could be that they might have been put on escalating doses of buprenorphine. The frequency of side-effects in the first 3 months was low when they were monitored closely by our clinical nurse specialist and were aggressively treated for side-effects with co-prescription of laxatives or antiemetic. It is also important to note that none of the patients suffered any serious harm due to these patches, even after 4 years of continuous treatment. 59

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Since there is no strong evidence of the long-term effectiveness of opioids, we would like to recommend that: Patients should be adequately informed of the benefits, risks and long-term sideeffects of opioid therapy when they are started on opioids. Our studies might help them make an informed choice. Patients should be followed up regularly to assess the ongoing need for opioid therapy. Transdermal buprenorphine could be beneficial in a group of patients in the longterm as they continue to use it with effect, even 4 years after the start of their treatment.

Conclusion Our study shows that after 4 years, out of the total number of patients originally started on buprenorphine patches, only 19% continue to use these patches and 16% are getting any benefit on a longer term. However if we consider the data with regards to previous short term responders, 63% of patients continue to use buprenorphine patches and 52% continue to get any benefit out of it. It also shows that 42% of patients were using low doses (less than or equal to 20 micrograms per hour). The most common reason for stopping treatment was side-effects. None of our patients suffered from severe harm due to treatment with low dose buprenorphine patches. It shows that buprenorphine could be effective on a long-term basis in a subset of patients. There are a small number of patients who continue to use buprenorphine patches in spite of getting no benefit out of them. We remain concerned about the diminishing effectiveness of transdermal buprenorphine, and propose to repeat the study in another 4 years. Ideally, large numbers of patients are required to confirm our findings. For now, we wish to continue prescribing low dose buprenorphine in patients who have been selected more carefully. Conflict of interest disclosures Disclaimers and conflict of interest policies are found at: http://bit.ly/1wqiOcl

Article submission and acceptance Date of Receipt: 06.08.2014

Date of Acceptance: 29.10.2014

Correspondence: Dr Sandeep Puppalwar, Pain Clinic, OPD 4, Northern General Hospital, Herries Road, Sheffield, S5 7AU. Email: sandy.puppalwar@gmail.com

References 1. The British Pain Society. Opioids for persistent pain: good practice. 2010 Jan. 2. Elliott AM, Smith BH, Penny KI, Smith WC, Chambers WA. The epidemiology of chronic pain in the community. Lancet. 1999 Oct 9; 354(9186):1248–52 3. Gallagher AM, Leighton-Scott J, Staa T. Utilization characteristics and treatment persistence in patients prescribed low-dose buprenorphine patches in primary care in the UK: a retrospective cohort study. Clinical therapeutics. 2009 Aug; 31(8): 1707–15

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4. Nordbo A, Skurtveit S, Borchgrevink PC, Kaasa S, Fredheim OM. Low-dose transdermal buprenorphine – longterm use and co-medication with other potentially addictive drugs. Acta Anaesthesiol Scand. 2012 Jan; 56(1):88–94 5. Manchikanti L, Vallejo R, Manchikanti KN, Benyamin RM, Datta S and Christo PJ. Effectiveness of long-term opioid therapy for chronic non-cancer pain. Pain Physician 2011; 14:E133–E156. 6. Fredheime OMS, Mahic M, Skurtveit S, Dale O, Romundstad P, Borchgrevink PC. Chronic pain and use of opioids: A population-based pharmacoepidemiological study from the Norwegian Prescription Database and the NordTrøndelag Health Study. Pain. 2014 July; 155(7): 1213–1221.

Intellectual property & copyright statement We as the authors of this article retain intellectual property right on the content of this article. We as the authors of this article assert and retain legal responsibility for this article. We fully absolve the editors and company of JoOPM of any legal responsibility from the publication of our article on their website. Copyright 2014. This is an open-access article distributed under the terms of the Creative Commons Attribution Licence, which permits unrestricted use, distribution and reproduction in any medium, provided the original work is properly cited.

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Case report of Glossopharyngeal Neuralgia: A review and a patient’s experience 1

Rajesh Chella Narendran , Shefali Kadambande

2

Abstract Glossopharyngeal neuralgia is a rare neuropathic pain condition. We report the case of a 53-year-old lady who presented to the pain clinic with features of neuropathic pain in the sensory distribution of the glossopharyngeal nerve. The patient had visited various specialists and undergone extensive investigations prior to presentation to the pain clinic. In this article we would like to review the epidemiology, clinical features, causes, and various available treatment modalities for this condition and also present the patient’s perspective of her experience. Keywords Glossopharyngeal neuralgia, facial pain, clinical features, treatment outcomes, prognosis

Case History A 53-year-old female patient was referred from ENT for persistent unilateral leftsided neck pain. Her complaints were brief episodes of severe stabbing neck pain, each lasting a few minutes,for the past 8 years .The area was sensitive to touch and she described an increased sensitivity to smells with retching. On questioning she did have a history of recurrent sore throats in the past. She gave a history of sensations of pins and needles at the back of her tongue when wearing long earrings that touched her neck or while draping a scarf around her neck. She described syncope attacks on turning her head or looking up while putting her clothes to dry. She was seen by the neurologists and was discharged without a diagnosis. She also saw ENT specialists and was investigated for tinnitus and deafness with a CT scan of her ear. She gave a past medical history or diagnosis of Chronic Fatigue Syndrome, (CFS), Myalgic Encephalopathy, (ME), diverticular disease and sleep disturbances. She was a Lecturer in Computing and had to give up on health grounds. Her hobbies were sSailing, mountaineering and rock climbing. Her anxiety and depression scores were 0 and 7 respectively on the hospital anxiety and depression scale (HADS). Her worst pain score was 8, least 3 and average was 6 on the brief pain inventory (BPI) scale. Computed Tomography (CT) scan of her petrous bone and head were normal. There were no major psychological issues. Her medications were Tramadol 50mgs TDS, Paracetamol 500mgs TDS, Ibuprofen 200mgs PRN, Ondansetron 4-8 mgs, Sumatriptan and Vitamin D supplements. She has also tried physiotherapy and neck exercises. On examination allodynia to cotton wool was present over the anterior and

1

Advanced Pain Trainee,

2 Consultant in Anaesthesia and Pain Medicine, Department of Anaesthesia and Pain Medicine, University Hospital

of Wales

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posterior triangle in the neck, and it caused paresthesia in the tongue and headaches. A diagnosis of Glossopharyngeal Neuralgia was made in clinic. The management plan included information on Glossopharyngeal Neuralgia MRI brain to rule out other causes of the neuralgia, but it was later reported normal Carotid Doppler - to rule out carotid sinus hypersensitivity but cardiologists reported reflex syncope and a normal Doppler 5% Lidocaine plaster commenced over the neck 12 hours per in a day Gabapentin at a starting dose of 100mgs TDS titrated up to 400mgs TDS The patient reported more than 50% reduction in pain scores with the above combination of medication. She appeared more alert on review. She reported improvement in quality of life indicators on the BPI, including sleep, mood, and general activity. The sense of taste improved and frequency of flare ups reduced. She felt an increased confidence to use public transport for travel. The patient read about Glossopharyngeal Neuralgia and that, combined with the education and information in clinic, assisted in understanding the condition and managing it. She was satisfied with the knowledge that Gabapentin could be titrated to effect up to 1.2g TDS but preferred to have that as a reserve

Patient’s view point How many doctors does it take to make a diagnosis?

In 1979 I began teaching and for the last 20 years of that career taught CT/Computing. It was a very good job, I enjoyed it and had a clear plan for the future - it didn't involve retiring on ill health grounds at only 49. After an infection in 2003 problems persisted and eventually bowel issues, increasing pain and bouts of brain-numbing exhaustion meant that being in a classroom became impossible. During the last 7 months in work I was retching / vomiting every day and following a lengthy sick leave I applied for Ill Health Retirement (IHR). Somewhere along the way CFS (Chronic Fatigue Syndrome)/ME was diagnosed and CBT/GET (Graded Exercise Therapy) was required as part of the IHR process; the final report concluded I was physically worse than when I started. So, in 2007, I was pensioned off but left with no real answers. The questions - Why do I wake up at 3am and vomit? Why do I begin retching when I wash my neck or put on a necklace? Why do I wake up every morning with a thick head, nausea and pain? Why do even my eyeballs ache? My route to the pain clinic was convoluted and began at gastroenterology. They were very thorough and also tested for the less routine Whipple’s disease and Porphyria before sending me to Dermatology. At dermatology bradycardia was picked up but an unfortunate breakdown in communication meant that a note, suggesting a 24hour Holter and Autonomic System assessment, was not passed on, and that was that. Then I went deaf. Temporarily, thankfully, but it put me on a path to the Otolaryngology head /neck clinic, thence to Audiology. As an offshoot from there I went to Neurology - follow my finger up and down, walk in a straight line - no I am not drunk! Discharged from clinic. Thank you to the Audiologist for persisting and sending me to ENT and to ENT for passing me over to the pain clinic, where Glossopharyngeal Neuralgia was diagnosed. Having a diagnosis has its benefits but some, such as 'CFS', can prove to be a 63

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hindrance. I have one doctor who advises no form of exercise, another who advises be aware of your limits and a third who thinks even admitting to having limitations is very negative. A few doctors have tried to bend my symptoms into the box that is defined by the boundaries of their specialism, whilst one dismissed my symptoms with a wave of the hand saying 'that doesn't happen'. The reaction now, when I say Glossopharyngeal Neuralgia, is 'that's rare' and suddenly eyes and ears are open. Refreshingly, at the pain clinic, everything was assessed without preconceptions and even without my background knowledge the explanations and information I was given were clear and full. Success and satisfaction from my point of view arise from not only the knowledge of the doctors I meet but also from their attitude and personability. At the pain clinic I can't fault either of those and feel happy that I could contact the clinic if I needed to. Throughout both my graduate and postgraduate degrees I covered a lot of anatomy and physiology but I don't tend to tout this rusty knowledge in consultations. Perhaps I should have, in response to the Cardiology Registrar whose reply to my request for an explanation of Reflex Syncope was 'it's too complicated'. I have a sense of humour but his 'get a tumble dryer' in answer to a question about persistent dizziness was equally inappropriate. What a contrast. The Gabapentin and Lidocaine prescribed by the pain clinic have reduced the impact of a number of the weird symptoms I have: pins and needles in the back of my tongue from touching the left side of my neck, retching from contact on a wide area of my neck and left shoulder, permanent throat pain (but no sign of infection), shooting pains into my left ear. In combination with my other medications they act as a stimulant, which is great, but after a few days my sleep is affected and I am up at 2-3am doing jigsaws and the like. Conversely, I know when I am late with medication or have pushed myself too hard as the pain in my throat returns first, followed by other symptoms such as nausea, vomiting, vice-like headaches and increased noise hypersensitivity. Although I can do only marginally more activity day to day, what I am doing is far more comfortable and with fewer and less intense relapses. If I did not have a strong sense of self-belief and self-worth I would not have been able to adapt to long-term illness. Putting aside my loss of ability to climb or sail, it is the inability to enjoy simple things like a short walk or a day out with friends, without serious relapse, that are the hardest to deal with. In the last couple of years I have found new interests. Working with glass, stained glass and fusing work is very different but immensely enjoyable; something I would not have previously had time to explore. The pain consultant has done more, to reduce my symptoms and improve my day to day living, than anyone else. I'm not 100% but hey, I can now wear a necklace and I haven't been able to do that for 8 years.

A review of glossopharyngeal neuralgia Introduction Glossopharyngeal neuralgia is a chronic neuropathic pain condition characterised by intermittent severe pain in the sensory distribution of the glossopharyngeal nerve. Glossopharyngeal neuralgia (GPN) was first described by Weisenburg in a patient with a tumour in the cerebellopontine angle in 1910, where he described it as part of multiple cranial nerve palsies involving cranial nerves III, IV and VII1. GPN is a relatively new term first coined by Harris in 19212. The annual crude incidence rate of glossopharyngeal neuralgia per 100,000 population, is 0.2 - 0.7 for both sexes combined3, suggesting that 64

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glossopharyngeal neuralgia is a rare disease. Bilaterality is not uncommon; it was observed in one quarter of the patients, all of whom had mild disease3. GPN has often been compared with trigeminal neuralgia (TN). GPN occurs much less frequently than TN, the comparative incidence ranging from 5.9:14 to 100:15. GN is a milder disease than TN, as indicated by the number of episodes, treatment, and characterisation of pain4. Anecdotally left side seems to be more common than right side, and the age at onset peaks at 40-60 years. Both sexes are affected equally.

Glossopharyngeal nerve anatomy The glossopharyngeal nerve is the nerve of the third pharyngeal arch and ninth of the twelve pairs of cranial nerves exiting from the upper medulla. It has both sensory and motor components. It receives somatic sensory fibres from tonsils, pharynx, and posterior one-third of the tongue, external ear, middle ear and mastoid process. It receives special sensory fibres from posterior one-third of the tongue as well as chemoreceptor and baroreceptor afferent input from carotid bodies and carotid sinuses respectively. It also supplies parasympathetic secretomotor fibres to the parotid gland via the otic ganglion. It supplies motor fibres to the stylopharyngeus muscle and contributes to the pharyngeal plexus. The glossopharyngeal nerve aids in tasting, swallowing and salivary secretions. Its superior and inferior (petrous) ganglia contain the cell bodies of pain fibres. The tympanic branch or Jacobson’s nerve is an important branch which carries somatic sensory fibres which receive pain and touch from middle ear and mastoid, and secretomotor parasympathetic fibres to parotid gland. It emanates from the petrous ganglion of the glossopharyngeal nerve at or above the level of the jugular foramen. It leaves the base of the skull through the jugular foramen travelling together with the vagus and accessory nerves and with the internal jugular vein. Anatomy of glossopharyngeal nerve

Clinical Features GPN is an extremely painful condition which can present not only with debilitating pain but also with potentially life-threatening cardiovascular consequences (syncope, bradycardia, hypotension and even asystole). GPN can present in isolation or concurrently with other neuropathic pain conditions such as trigeminal neuralgia. The diagnosis of this potentially debilitating condition can be challenging to the health care professionals, probably because of the relative rarity of the condition and some of its clinical features seen in other conditions. Patients usually describe the pain as lancinating, stabbing, and shooting or electric shock-like pain experienced in the neuroanatomical distribution of the glossopharyngeal nerve involving ear, throat, soft palate, posterior part of the tongue, tonsillar area and posterior part of the pharynx. Patients remain pain free in between the attacks. It is triggered by trivial actions such as swallowing, speaking and rubbing the ears, disabling the patients and resulting in severe weight loss. Onset of attack is often abrupt without any prodromal warnings. It is characterised by clusters of attacks, with each cluster lasting from weeks to months, with pain-free periods ranging from weeks to months or even years. The duration of pain usually lasts from a few seconds to minutes. During the painful attacks other features observed are swallowing movements, excessive secretion of saliva, tinnitus, lacrimation, flushing and sweating. 65

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Glossopharyngeal neuralgia can be classified into two types according to the origin/distribution of pain5: otalgic type, which affects mainly the ears, and oropharyngeal type which affects mainly the oropharyngeal area. It has been suggested that the otalgic type may have an auricular trigger zone which may indicate involvement of the vagus nerve. The significance of this was provided by Robson and Bonica where pain attacks remained after section of IX nerve but were completely abolished after the section of X nerve6.

GPN and cardiovascular manifestations GPN is an extremely painful and disabling condition leading to severe weight loss and psychiatric manifestations. Even worse, it can be associated with cardiac dysrhythmias, hypotension and syncope. This could be the result of intense neuralgic pain activating the glossopharyngeal afferent/vagal efferent reflex arc, resulting in severe bradycardia or asystole, hypotension and syncope. Intense pain impulses from the sensory afferents of the glossopharyngeal nerve, travelling along with the carotid sinus nerve of hering, stimulate the dorsal motor nucleus of vagus, which represents in the medulla oblongata, the main autonomic nucleus, whose efferents control cardiovascular activity, either through central collateral pathways or through an ephapse (artificial synapse). This effect is similar to that seen in carotid sinus massage for the treatment of supraventricular arrhythmias. Reddy et al7 published a unique condition termed “non-neuralgic glossopharyngeal neuralgia”, which is associated with syncope precipitated by a tickling sensation in the throat (such as swallowing) without pain. Tonic and clonic seizures have also been observed during GPN attacks.

Aetiology In regard to aetiology GPN can be classified as idiopathic or essential GPN when the cause is unknown, or secondary when GPN is caused by any underlying pathology such as trauma secondary to surgery or accidental, oropharyngeal or posterior fossa tumours, vascular malformations, infection (e.g. parapharyngeal abscess, petrositis, arachnoiditis), elongated styloid process and demyelination (e.g. Multiple sclerosis)8. The most likely cause of idiopathic GPN appears to be vascular compression of the glossopharyngeal nerve at the nerve root entry zone. The implicating vessels are usually posterior inferior (or superior) cerebellar artery which frequently also compress on the rootlets of vagus nerves. The other vessels that are implicated in playing a causative role are vertebral artery and persistent hypoglossal artery, which may frequently also compress on the rootlets of the vagus nerve9. This theory is supported by the success of micro vascular decompression (MVD) in alleviating the symptoms10. Opponents of the vascular compression theory refer to the fact that vascular structures are commonly seen in contact with cranial nerves in the cerebellopontine angle in asymptomatic individuals, and the success of MVD results from micro traumatisation of the nerve during dissection, resembling partial rhizotomy7. Patients suffering from the idiopathic type show no associated neurological deficit or dysfunction and are completely pain free between attacks. Patients in the secondary group often show neurological defect or dysfunction, may not be pain free between attacks, and experience pain outside the ninth nerve distribution11. Multiple sclerosis (MS) is rarely complicated by GPN, which is unlike trigeminal neuralgia, seen in as many as 4% of MS patients. Elongated styloid process (Eagle’s syndrome) is an underlying cause of secondary glossopharyngeal neuralgia. It was first described by Eagle in 1937 in posttonsillectomy patients. It is characterised usually by (a) dull pharyngeal pain, occasionally worsened by head flexion or turning, radiating to the ear (b) pain over the internal carotid artery (c) glossopharyngeal deficit (d) occasional vertigo or syncope on head movement which induces carotid compression by styloid process11. 66

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These signs and symptoms can also be mimicked by ossified stylohyoid ligament. This condition can be diagnosed by clinical examination or CT imaging.

Differential Diagnosis Establishing the correct diagnosis and differentiating between types of facial pain is complicated because different Occipital neuralgia types of facial pain share signs and symptoms and are often Cluster headache considered together in the differential diagnoses at first presentation. Glossopharyngeal neuralgia shares several Facial postherpetic neuralgia characteristics with trigeminal neuralgia: character and Facial neuralgia pattern of painful episodes, triggering mechanisms, response Atypical facial pain to anticonvulsants and possibly pathophysiology eg: neurovascular compression. But the distribution of pain and triggering factors can help distinguish between the two conditions Trigeminal neuralgia

The coincidence of these two conditions can be explained by the close anatomic relationship of the brainstem area, peripheral connections between both nerves and central convergence11. Cluster headache is characterised by unilateral headache occurring in clusters, lasting for several minutes if not treated and accompanied by various autonomic and ophthalmic features

Diagnosis Glossopharyngeal neuralgia is an uncommon condition that can pose a serious challenge to the pain physician, both in terms of diagnosis and treatment. It requires diagnostic awareness, presence of trigger factors and a multidisciplinary approach to diagnose and successfully treat the condition. The international classification of headache disorders classifies GPN into two types, classical and symptomatic12.

Classification of Glossopharyngeal neuralgia Classical GPN A. Paroxysmal attacks of a facial pain lasting from a fraction of a second to 2 minutes and fulfilling criteria B and C B. Pain has all the following characteristics 1. Unilateral location 2. Distribution within the posterior part of the tongue, tonsillar fossa, pharynx or beneath the lower angle of jaw and /or in the ear 3. Sharp, stabbing, severe 4. Precipitated by swallowing, chewing, talking, coughing and/or yawning C. Attacks are stereotyped in the individual patient D. There is no clinically evident neurological deficit E. Not attributed to another disorder Symptomatic GPN All features as in classical GPN, along with the criteria that the pain may persist between paroxysms and sensory impairment may be found in the distribution of glossopharyngeal nerve.

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Stepwise approach to diagnose GPN 1. The first priority is to ascertain the diagnosis of neuralgia, and to exclude other causes of pain due to inflammation and neoplasia. The description of the pain and the pattern of painful episodes will help to ascertain the likely cause. 2. The distribution of the pain has to be noted to ascertain if the pain is confined with the neuroanatomical distribution of the glossopharyngeal nerve or if it involves other cranial nerve distribution, which could be a sign of a more serious underlying pathology. 3. What are the triggering factors, which can help in differentiating GPN from TN? 4. Is it associated with neurological deficit, which if present will warrant more detailed investigation to determine if it is idiopathic (classical) GPN or secondary (symptomatic) GPN

Treatment Management of glossopharyngeal neuralgia will include pharmacological, interventional and supportive treatment combined with patient education. The initial approach is to offer pharmacological and supportive treatment before resorting to more invasive procedures and also to exclude any suspected sinister causes through appropriate investigations. Anticonvulsants are the first line of treatment. Carbamazepine, with a proven success in trigeminal neuralgia, has been successfully used in GPN although its long-term benefits are limited by gradual development of tolerance with prolonged use and its side effect profile (drowsiness, itching and, rarely, blood dyscrasias and liver dysfunction). In addition to alleviating pain it has also been shown to improve cardiovascular manifestations13. The recommended dose is 400 – 800mg/day. Gabapentin has also shown to be effective in the treatment of glossopharyngeal neuralgia14. Other anticonvulsants that have been tried and shown to be useful in the treatment of GPN include pregabalin15, lamotrigine16 and baclofen. Other pharmacological approaches include ketamine, topical applications and various analgesics. The interventional approach would include percutaneous radiofrequency thermo coagulation of the petrous ganglion, micro vascular decompression (MVD), intracranial sectioning of the glossopharyngeal nerve with/without the upper rootlets of the vagus nerve. The surgical procedures include percutaneous procedures such as micro vascular decompression (MVD), rhizotomy of the glossopharyngeal nerve with or without the upper rootlets of the vagus nerve, pulsed radiofrequency of the glossopharyngeal nerve and, recently, Gamma nife radiosurgery. Micro vascular decompression is a well-established treatment for idiopathic or essential GPN. The likely pathology in this condition being vascular compression of nerve roots, they respond well to MVD. Ferroli et al17 in their case series of 31 patients 68

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with long-term follow-up (mean 7.5 years) reported that 90% of their patients were pain free without need for medications. In another case series of 47 patients (over 10 years follow-up), Sampson et al18 reported that 98% of patients had effective pain relief. They demonstrated the safety of this procedure with 11 patients experiencing reversible neurological deficit and 5 with permanent neurological deficit, the majority of these being mild hoarseness and dysphagia. Rey-Dios et al19 in their review of neurosurgical management of GPN reported that rhizotomy of glossopharyngeal nerve when combined with upper rootlets of vagus gave complete pain relief in 85-100% of patients, but at the expense of increased complications including dysphagia and vocal cord paralysis. Pulsed radiofrequency and Gamma Knife surgery20 have been successfully used in a few published case reports. The Gamma Knife is a type of stereotactic radiosurgery administering high-intensity cobalt radiation therapy in a manner that concentrates the radiation over a small volume. These techniques can be reserved for patients who are resistant to medical therapy and not suitable for surgery. The management would not be complete without including educating patient’s about the condition and addressing their psychosocial issues. The patient can be given information leaflets or referred to websites which provide support for patients suffering from this condition and also gives them the opportunity to discuss with other people who suffer from GPN21, 22. The outcome of GPN depends on the underlying cause. Most often, the disease shows relapsing and remitting pattern. The bad prognostic signs are - bilateral GPN, constant pain, or multiple daily bouts of pain23

Conclusion GPN is a severely debilitating painful condition with potentially life-threatening cardiovascular consequences. The diagnosis of the condition can be challenging due to overlapping clinical features with other facial neuralgias. GPN should be one of the differential diagnoses in patients presenting with facial pain. Careful history taking is the key to diagnosis. Treatment includes a multidisciplinary approach including patient education.

Conflict of interest disclosures Disclaimers and conflict of interest policies are found at: http://bit.ly/1wqiOcl

Article submission and acceptance Date of Receipt: 30.05.2014

Date of Acceptance: 30.11.2014

Contact Dr Chella Narendran Email: rajeshchella@rediffmail.com

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References 1. T.H. Weisenburgh. Cerebello-pontine angle tumour diagnosed for six years as tic doulourex: The symptoms of irritation of ninth and twelfth cranial nerves. JAMA 1910; LIV (20): 1600- 1604 2. Harris W. Persistent pain in lesions of the peripheral and central nervous system. Brain 1921; 44:557-72 3. Katusic S, Williams DB, Beard CM, Bergstralh E, Kurland LT. Incidence and clinical features of glossopharyngeal neuralgia. Rochester, Minnesota, 1945–1984. Neuroepidemiology 1991; 10: 266-275 4. Katusic S, Williams DB, Beard CM, Bergstralh EJ,Kurland LT. Epidemiology and clinical features of idiopathic .trigeminal neuralgia and glossopharyngeal neuralgia: similarities and differences, Rochester, Minnesota, 1945– 1984. Neuroepidemiology 1991; 10:276–281 5. Bohm E, Strang RR. Glossopharyngeal neuralgia. Brain 1962; 85:371–388 6. Robson J T, Bonica J. The vagus nerve in surgical considerations of glossopharyngeal neuralgia. J Neurosurgery 1950; 7:482-4 7. Reddy K, Hobson DE, Gomori A, Sutherland GR. Painless glossopharyngeal ‘neuralgia’ with syncope: a case report and literature review. Neurosurgery 1987; 21:916–919 8. Konstantin V. Slavin. Glossopharyngeal Neuralgia. Seminars in Neurosurgery; 2004;15(1); 71-79 9. Sunderland S. Neurovascular relations and anomalies at the base of the brain. J Neurol Neurosurgery Psych 1948; 11:243-57 10. Atul Patel, Amin Kassam, Michael Horowitz, Yue-Fang Chang. Microvascular Decompression in the Management of Glossopharyngeal Neuralgia: Analysis of 217 Cases. Neurosurgery, Vol. 50, No. 4, April 2002 11. Bruyn GW. Glossopharyngeal neuralgia. Cephalalgia 1983; 3: 143–157 12. Headache Classification Subcommittee of the International Headache Society (2004) the international classification of headache disorders 2nd edn. Cephalalgia 24(Sup l1): 8–152 13. R Saviolo and G Fiasconaro. Treatment of glossopharyngeal neuralgia by carbamazepine. Br Heart J. 1987 September; 58(3): 291–292 14. Moretti R, Torre P, Antonello RM, Bava A, Cazzato G. Gabapentin treatment of glossopharyngeal neuralgia: a follow-up of four years of a single case. Eur J Pain. 2002; 6(5):403-7. 15. Glossopharyngeal neuralgia responding to pregabalin. Guido M; Specchio LM; Headache: The Journal of Head & Face Pain, 2006 Sep; 46(8): 1307-8 16. Use of lamotrigine in glossopharyngeal neuralgia: a case report. Titlic M; Jukic I; Tonkic A; Grani P; Jukic J; Headache: The Journal of Head & Face Pain, 2006 Jan; 46(1): 167-9 17. Ferroli P, Fioravanti A, Schiariti M, Tringali G, Franzini A, Calbucci F, et al. Microvascular decompression for glossopharyngeal neuralgia: A long-term retrospective review of the Milan-Bologna experience in 31 consecutive cases. Acta Neurochir (Wien) 2009;151:1245-50 18. Sampson JH, Grossi PM, Asaoka K, Fukushima T. Microvascular decompression for glossopharyngeal neuralgia: Long-term effectiveness and complication avoidance. Neurosurgery 2004;54: 884-9 19. Roberto Rey-Dios, Aaron A. Cohen-Gadol. Current neurosurgical management of glossopharyngeal neuralgia and technical nuances for microvascular decompression surgery. Neurosurgical focus 2013; 34(3):1-5 20. Bruce E. Pollock, Christopher J. Boes. Stereotactic radiosurgery for glossopharyngeal neuralgia: preliminary report of 5 cases. Journal of Neurosurgery 2011; 115; 936-939 2013 21. www.livingwithgpn.org 22. www.fpa-support.org/Pain-Symptoms 23. Singh P M, Kaur M, Trikha A. An uncommonly common: Glossopharyngeal neuralgia. Ann Indian Acad Neurol 2013;16:1-8

Intellectual property & copyright statement We as the authors of this article retain intellectual property right on the content of this article. We as the authors of this article assert and retain legal responsibility for this article. We fully absolve the editors and company of JoOPM of any legal responsibility from the publication of our article on their website. Copyright 2014. This is an open-access article distributed under the terms of the Creative Commons Attribution Licence, which permits unrestricted use, distribution and reproduction in any medium, provided the original work is properly cited.

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Legal Practice Points – Complex Regional Pain Syndrome (CRPS) ‘A Sensitive topic’ 1

Andrew Campbell and Hywel Evans

1.

2

Abstract Complex Regional Pain Syndrome recently hit the headlines when a motorcyclist received the biggest ever UK settlement for CRPS - £1.4 million (£1.9 million on a full liability basis). In this article a firm of Claimants’ Solicitors address the major issues facing practitioners dealing with these difficult and time-consuming cases. What may at first glance seem an innocuous injury can often give rise to a catastrophic injury claim with life-changing consequences. This article will therefore consider the nature of CRPS and the obstacles lawyers face in attempting to understand and quantify such claims. Keywords Complex Regional Pain Syndrome, CRPS, catastrophic injury claim

2.

Introduction Complex Regional Pain Syndrome (CRPS) is a widely misunderstood condition. Lawyers can find themselves in a difficult position in attempting to quantify an injury that is frequently misunderstood by medical practitioners. CRPS has an unpredictable prognosis. The cause of CRPS is unknown. Medical experts often fail to agree on its presentation, diagnosis, cause, treatment, and prognosis. Often, the terms ‘malingerer’ or ‘exaggeration’ are used when describing the Claimant. It is sometimes evident that an inappropriate reaction or description is provided by the Claimant but this can often be explained as an unconscious secondary outcome owing to and compounding the CRPS itself, causing a vicious cycle of organic and psychological interplay. Defendants will seek to blame the underlying cause on some psychosomatic illness, if not exaggeration. Claimants will search for the often non-existent organic change to prove the symptoms and injury. Even where breach of duty is admitted, causation usually remains highly contentious.

3.

What is CRPS? CRPS is a multifactorial, progressive and often debilitating and painful condition associated with sensory, motor, autonomic, skin and bone abnormalities. It is a chronic pain condition that can affect one limb or, in 7% of cases, more than one limb, often but not necessarily resulting from direct trauma. Despite the cause of CRPS being unknown it is widely considered to result from damage to, or malfunction in, the

1 2

Solicitor, Bikelawyer Motorcycle Accident Solicitors Solicitor, Bikelawyer Motorcycle Accident Solicitors

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central nervous system (the brain and spinal cord) and peripheral nervous systems (nerve signalling to the rest of the body). The National Institute of Neurological Disorders and Stroke states that in 90% of cases CRPS is triggered by a clear history of trauma or injury.3 This can involve fractures, sprains, soft tissue injuries (such as burns, cuts or bruises), limb immobilisation (such as being in a cast), or surgical or medical procedures. However, there is no relationship between the severity of the trauma and the degree of CRPS experienced. The European incidence rate is 26/100,000 person-years4. CRPS is an abnormal neurological and pain response that magnifies the effects of the injuries. It causes an excruciating (Defendants may say implausible) level of pain, due to what would usually be considered modest stimuli. In order to explain the symptoms in layman terms, Dr Rajesh Munglani, Consultant in Pain Medicine, put it perfectly when addressing the court:5 ‘If one takes one’s thumb and hits it with a hammer, the thumb will be painful, will swell, become red and hot and one will not want to move it. However, with time, as healing occurs all these symptoms will resolve themselves and the thumb will heal and move again. Unfortunately, in a Complex Regional Pain Syndrome the body does not ever switch off the initial phases of redness, swelling, pain and lack of movement.’

4.

2 or 3 Types of CRPS? Traditionally CRPS has been sub-divided into 2 types based on the absence (Type 1 – much more common) or presence (Type 2) of a lesion to a major nerve.6 In terms of management the distinction has no relevance but it can have importance in medicolegal cases. Recent evidence suggests that even Type 1 may be associated with subclinical neurological change.7 A 3rd diagnostic sub-type called CRPS-NOS (not otherwise specified) is recommended for patients who have abnormalities in fewer than three Budapest symptom categories, or two sign categories, including those who had more documented signs and symptoms in the past, if current “signs and symptoms” are still felt to be best explained by CRPS.8

5.

Diagnosis A justifiable diagnosis of CRPS is incredibly important; not only in the medico-legal context, but also to ensure treatable ailments are not mistakenly labelled as CRPS and left untreated (e.g. Carpal Tunnel syndrome). Hence differential diagnoses must be considered. Unfortunately, diagnosing CRPS can be difficult, not least of all because there is often no organic marker to account for the pain. It is, therefore, sometimes

3 Complex Regional Pain Syndrome Fact sheet from the National Institute of Neurological Disorders and Stroke website http://www.ninds.nih.gov/ 4 The product of the number of years times the number of members of a population who have been affected by a certain condition 5 Connery v. PHS [2011] EWHC 1685 (QB), High Court, claimant with CRPS 6 Complex Regional Pain Syndrome Fact sheet from the National Institute of Neurological Disorders and Stroke website http://www.ninds.nih.gov/ 7 Complex Regional Pain Syndrome Fact sheet from the National Institute of Neurological Disorders and Stroke website http://www.ninds.nih.gov/ 8 Harden R, Bruehl S. Diagnostic criteria: The statistical derivation of the four criterion factors. In: WilsonPR, Stanton-HicksM, HardenRN, eds. CRPS: Current Diagnosis and Therapy. Seattle, WA: IASP Press; 2005:45–58.

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referred to as a ‘diagnosis of exclusion’. Further, other causes can be attributable to CRPS. The authors recently acted in a case in which it was agreed the Claimant suffered from CRPS but the RTA was no more than a coincidence, and the underlying cause was more likely to be degeneration around the spine. This is the type of potential differential diagnosis that lawyers need to consider at an early stage before any significant costs are incurred.

6.

Budapest Criteria – the diagnostic criteria for CRPS 9 A-D must apply “Sign” is where the medical practitioner can see or feel a problem. “Symptom” is where the patient reports a problem. A. The patient has continuing pain which is disproportionate to any inciting event B. The patient has at least one sign in two or more of the categories C. The patient reports at least one symptom in three or more of the categories D. No other diagnosis can better explain the signs and symptoms 1. ‘Sensory’ – Allodynia (to light touch and/or temperature sensation and/or deep somatic pressure and/or joint movement) and/or Hyperalgesia (to pinprick) 2. ‘Vasomotor’ – Temperature asymmetry and/or skin colour changes and/or skin colour asymmetry. The medical practitioner must notice a temperature asymmetry of > 1 °C 3. ‘Sudomotor/oedema’ – Oedema and/or sweating changes and/or sweating asymmetry 4. ‘Motor/trophic’ – Decreased range of motion and/or motor dysfunction (weakness, tremor, dystonia) and/or trophic changes (hair/nail/skin)

7.

The Sceptical Defendant The Defendant’s solicitor will often have a psychiatrist examine the Claimant’s medical notes and the Claimant, hoping to explain the condition by virtue of unrelated psychiatric presentation and history (i.e. unrelated to the negligent act that is the subject of the claim). A frequently-encountered Defendant argument is that the Claimant is likely to return to his or her pre-accident state after a few sessions of Cognitive Behavioural Therapy (CBT), but only if the litigation has first concluded. Alternatively, it is often argued that the Claimant was pre-disposed to CRPS and would have gone on to develop CRPS in any event, regardless of the negligent act (triggered by any number of ordinary life events).

9

Harden RN, Bruehl S, Stanton-Hicks M et al. Proposed new diagnostic criteria for complex regional pain syndrome. Pain Med 2007,8: 326–31. See also: Royal College of Physicians, Concise guidance to good practice series,Complex regional pain syndrome in adults: concise guidance, Clinical Medicine 2011, Vol 11.(6): 596-600

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A review of recent medical thinking on the subject suggests it is now accepted that CRPS is not associated with a history of preceding psychological problems, or with somatisation or malingering.10 If a patient presents with such problems, these should be addressed where appropriate, as would be good practice in other medical situations. However, Claimants still report being stigmatised by health professionals who do not believe that their condition is “real”. If a Claimant’s own treating doctor is sceptical about the condition (through a lack of understanding of the condition) one can immediately see the problems facing the Claimant lawyer: convincing the Defendant that CRPS exists, that the Claimant is suffering from it and that it has been caused by the, sometimes seemingly innocuous, event that is being litigated. As in all cases, the choice of expert is imperative. Consideration needs to be given to the expertise of specific experts and whether they have, in fact, ever come across patients with CRPS. Neurologists and Orthopaedic Surgeons will be required to consider differential diagnoses and can sometimes diagnose CRPS. Unfortunately, there are many “old school” medical experts wheeled out by Defendants who are simply ‘unbelievers’. A Consultant in Pain Medicine will therefore be required to comment on the neurology and orthopaedic reports and confirm a diagnosis of CRPS. Quantum and prognosis will come later and can be dealt with in different reports, including in the more severe cases, employment, accommodation and care costs reports. Indeed, prognosis will need to be dealt with sometime later as CRPS differs widely in its presentation and effects from person to person. Experience suggests causation will largely remain in issue until settlement or trial. The Defendant will seek reliance on their own expert evidence, usually from a Psychiatrist, to suggest that, as was historically believed, it is ‘all in one’s head’. Defendants often attack Claimants’ credibility and the accusations of malingering and over-exaggerating will be free-flowing. Surveillance evidence will undoubtedly be considered by the Defendant. CRPS cases can be valuable (as shown by our recent six- and seven-figure settlements) and the cost of surveillance is therefore likely to be proportionate. If surveillance evidence is disclosed, requests should be made for unedited evidence and any accompanying statements of truth to verify the footage. Appropriate advice should therefore be given to the Claimant in regard to surveillance and mitigation, and it is not inappropriate ‘tipping off’ to inform the Claimant that he or she may be the subject of surveillance, particularly on days the Defendant knows the Claimant will be active – e.g. the day they attend Defendant medico-legal examinations or known dates for treatment appointments. CRPS incorporates pain, loss of function, association with the ‘emotional’ limbic system and psychosomatic issues that, whilst not causative, can amplify the problems already experienced.11 Indeed, findings of observational studies have given credence to arguments in favour of a psychogenic origin of movement disorders in CRPS.12 It is no wonder that, on occasion, Defendants argue that with CBT or a quick settlement of 10

Complex Regional Pain Syndrome in Adults, Royal College of Physicians, 2012 and The National Institute of Neurological Disorders and Stroke (2013) http://www.ninds.nih.gov/

11

Bruehl, 2001 Verdugo & Ochoa ‘Abnormal movements in complex regional pain syndrome: assessment of their nature’ Muscle Nerve 2000 Vol 23:198-205

12

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litigation, the Claimant’s condition will vastly improve. However, clients have often explained to us that the problem they experience with movement is like ‘your brain telling your foot to move but it doesn’t listen’. That is not to say this is always the case. Psychiatric overlay associated with CRPS can also lead to the perception of increased disability as opposed to an attempt to mislead or exaggerate.13 The outcome and prognosis of CRPS is even less understood. De Mos et al. (2009) opine that, of those diagnosed with CRPS, around 1/3 will improve, 1/3 will show an undulating response and 1/3 will become worse. This can cause litigation problems if, during assessments or settlement negotiations, the Claimant is going through a long quiescent patch with few problems, yet there is no cure and recurrence is likely. Provisional Damages should therefore always be considered in the event that settlement occurs during a period of few or no symptoms. Whilst there may be no cure, early intervention is still considered vital. At the mere suggestion of Reflex Sympathetic Dystrophy (RSD) or Causalgia (early nomenclatures for CRPS – there are many more), Chronic Pain treatment should be put in place. The Claimant lawyer should attempt to agree rehabilitation with the Defendant under the ‘Rehab Code’14 or otherwise at the earliest point. Initial treatment is often in the form of physiotherapy to target movement disorders, medication to treat and combat pain (opiates, antidepressants and neuropathic pain medication) and counselling (CBT). These methods may assist in alleviating some of the pain or at least assisting the Claimant in understanding CRPS and thus attempting to live with it. A diagnosis of sorts may also allay a Claimant’s fears that he or she cannot be helped, and may allay their fears that they would otherwise remain vulnerable to suspicions of malingering from lawyers, medics and even family and friends. If initial treatment fails, the alternative options can be costly and incredibly invasive. They range from spinal injections, dorsal column or spinal cord stimulators (requiring a foreign body to be placed in situ, usually directly on the spine to try and alleviate pain) to, in severe cases, amputation (which can also lead to CRPS in the form of phantom limb pain). Claimant solicitors should therefore make the treatment choices and costs clear to Defendants at an early stage, in an attempt to agree rehabilitation at the earliest opportunity for intervention. Otherwise, delays incurred waiting for a determination of liability may mean the Defendant will be required to fund even costlier treatment in the future and, more importantly, the Claimant is likely to face increased pain, suffering and loss of amenity.

8.

What can the Claimant lawyer do? The role of the lawyer is not to diagnose CRPS. It is, as always, to work in the best interests of the client and to ensure they are placed (as far as that may be possible) in the position they would have been, but for the injury suffered. Unfortunately, this is even less likely to be possible in cases of CRPS, the consequences of which can be devastating, including wheelchair dependence and significant care requirements. Early intervention is therefore key. The appropriate treating and medico-legal experts need to be in place and must work together for the benefit of the client. A close

13 14

see Connery V PHS Group Ltd [2011] EWHC 1685 (QB), High Court, claimant with CRPS http://www.inbrief.co.uk/types-of-claim/rehabilitation-code.htm

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relationship will be needed with the Defendant to try and agree funding and the best course of action, based on evidence of course, at the earliest point possible. Caution is advised, however, to avoid premature disclosure of medical reports, which may cause a Defendant to make early offers that place the Claimant at risk of undersettling the claim, at a time when the full extent of the injury is not fully understood. Unfortunately, understanding the full extent of the injury is not always possible in CRPS cases. Approaches ought to be made to experts and, in the event that medical reports need to be disclosed to agree funding, a date can be set for an appointment and receipt of initial, often draft, reports, so that any offer can be considered and advised upon correctly. It should also be borne in mind that any assessment reports relied upon under the Rehabilitation Code cannot be relied upon in subsequent litigation unless both parties consent.15 As may be clear from the above discussion, CRPS cases are inherently difficult. They usually take years, due to the progressive nature of the symptoms and disorder. A degree of hand-holding will be required but it will need to be accompanied by firm guidance and realistic advice, to ensure there are no unattainable expectations. These cases will be a long process. Sometimes the outcome and prognosis will remain unclear, and will be difficult for the client to accept. As the lawyer, you will be the lynchpin in the attempt to procure the best achievable outcome for the client. Compensation will undoubtedly be a focus, but may often not be the Claimant’s principle objective. Many Claimants also desire an unrealistic level of recovery, which in turn, only adds to the psychological trauma suffered. Hence like their disorder, the Claimant frequently requires careful and sensitive handling.

Conflict of interest disclosures Disclaimers and conflict of interest policies are found at: http://bit.ly/1wqiOcl

Article submission and acceptance Date of Receipt: 08.08.2014

Date of Acceptance: 29.11.2014

Contact Andrew Campbell and Hywel Evans, Bikelawyer Motorcycle Accident Solicitors. www.bikelawyer.co.uk . E-mail andrew@bikelawyer.co.uk Tel 01446 794169

References Bruehl, S.: Do Psychological Factors Play a Role in the Onset and Maintenance of CRPS-1. CRPS Current Diagnosis and Therapy, Progress in Pain Research and Management, Vol 22, 2001. Pages 279-290 Complex Regional Pain Syndrome in Adults, Royal College of Physicians, 2012 de Mos, M. et al: Outcome of the Complex Regional Pain Syndrome. Clinical Journal of Pain 2009, vol 25. Pages 590-597 The National Institute of Neurological Disorders and Stroke (2013) http://www.ninds.nih.gov/ Verdugo & Ochoa: Abnormal Movements in CRPS: Assessment of their Nature. Muscle Nerve, 2000. Vol. 23 pages 198-205 http://www.inbrief.co.uk/types-of-claim/rehabilitation-code.htm 15

Rehab Code, paragraphs 6.2 to 6.4 of the 2007 Code

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Š Bikelawyer Ltd 2014

Intellectual property & copyright statement We as the authors of this article retain intellectual property rights on its content, and assert and retain legal responsibility for this article. We fully absolve the editors and company of JoOPM of any legal responsibility flowing from the publication of our article on their website. Copyright 2014. This is an open-access article distributed under the terms of the Creative Commons Attribution Licence, which permits unrestricted use, distribution and reproduction in any medium, provided the original work is properly cited.

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A Case of Assisted Suicide: The Decision of the Supreme Court in the case of Nicklinson and Lamb Revd Dr Mark Q. Bratton, BA, MA, PhD

1

Abstract This case note sets out the factual, legal, ethical and jurisdictional basis for the Supreme Court decision in the assisted suicide case of Nicklinson and Lamb.2 It analyses the court’s reasoning and commentates on the wider issues the case raises. It focuses on issues of ethical complexity, and of constitutional legitimacy in particular, whether changing the law on assisted suicide is a matter for the courts or Parliament to decide. Nicklinson demonstrates that the Human Rights Act 1998 has complicated issues of ‘justiciability’, i.e. the scope of the courts’ jurisdiction. It also shows the inherently ethical character of arguments to retain or relax the existing assisted suicide law. Keywords Assisted suicide, constitutional, judgement, life-and-death, law, legislative

Introduction By any standards, the Supreme Court judgment in Nicklinson is a landmark decision. Because the Supreme Court recognised that assisted suicide was a subject of great public importance, it assigned nine judges to the judicial panel, rather than the usual four or five.3 All nine judges delivered an opinion, which accounts for the law report’s extreme length, 132 pdf pages containing 366 paragraphs. As a result, the judgment is complex. They exhibit subtle differences of approach and emphasis, making it difficult to distil the case into a single rule or principle. The case occurs in a number of shifting contexts. Judicially, the case follows in a history of seminal life-and-death cases, beginning in 1993 with the case of Tony Bland, in which the House of Lords decided that it would be lawful to withdraw life-sustaining medical treatment from a permanently insensate patient.4 Parliament has addressed the issue of assisted suicide on several occasions over the past decade. The Falconer Bill, which is currently working its way through its various parliamentary stages, is the latest in a long series of attempts to 1

Institute of Clinical Education, Warwick Medical School, University of Warwick

2

R (Nicklinson and Lamb) v Ministry of Justice, R (AM) v Director of Public Prosecutions [2014] UKSC 38 (25 June 2014). The judges were Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Hughes.

3

The judges were Lord Neuberger, Lord Mance, Lord Hughes, Lord Sumption, Lord Reed, Lord Clarke, Lord Hughes, Lady Hale and Lord Kerr

4

Airedale NHS Trust v. Bland [1993] AC 789

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change the law by statute; others include the Joffe Bills (2005, 2006), and the Coroner and Justice Act 2009, which rejected the legalisation of ‘death tourism’. Although judicial and statutory attempts to change the law have failed so far, the pressure for a relaxation of the existing law continues. There is evidence of increasing popular support for assisted suicide, e.g. a YouGov poll in 2009 reported that twothirds of the public were in favour of legal change. Highly publicised cases such as those of motor-neurone sufferer Diane Pretty and Debbie Purdy, who suffers from multiple sclerosis, have focused public attention on the assisted suicide issue with unprecedented intensity. Advocacy by groups such as ‘Dignity-in-Dying’ (the former Voluntary Euthanasia Society) and public figures such as Terry Pratchett have helped keep the issue in the public consciousness. In North-western Europe and North America, a number of jurisdictions have adopted a more liberal assisted suicide law. The pressure for legal change is largely due to the conjuncture of three factors. Firstly, advances in medical technology over the past fifty years have empowered the medical profession to keep people alive beyond the point when life ceases to have meaning for them. Sixty-eight percent of the UK population die in healthcare institutions and, of these, 68% are subject to a DNACPR (Do Not Attempt CardioPulmonary Resuscitation) order at some point. Secondly, the individual autonomy has become the paramount principle in biomedical ethics, qualifying the traditional primacy of the sanctity of life principle. People are increasingly claiming the right to determine the manner and timing of their deaths. Thirdly, ‘rights-talk’ has become the ethical lingua franca of the modern West. These shifting judicial, Parliamentary, social and historical contexts provide the wider canvas against which the Nicklinson case is set.

The Facts The facts of the Nicklinson case are harrowing. Three severely disabled men challenged the courts to change the law on assisted suicide. Tony Nicklinson suffered a catastrophic stroke that left him in a ‘locked-in’ state. Paul Lamb was rendered immobile in a car accident. He found his condition a “mixture of monotony, indignity and pain”. The third appellant, ‘Martin’, suffered a brainstem stroke which left him incommunicado, save through the help of an eye-blink computer. He described his life as ‘undignified, distressing and intolerable’. Under the current law, there were only two options open to the appellants if they wished to end their lives: selfstarvation (the painful course Tony Nicklinson eventually pursued) or an assisted suicide in Switzerland (which some families opposed).

The legal issues There were two central legal issues: 1. Nicklinson and Lamb argued that the absolute prohibition on assisted suicide enshrined in section 2 of the Suicide Act was incompatible with their human right to autonomy protected by Article 8 of the European Court of Human Rights. 2. ‘Martin’ sought from the DPP the added clarification in the prosecution guidelines that she would not normally prosecute carers and doctors, providing compassionate help. The High Court considered both legal points and dismissed them. The Court of 79

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Appeal dismissed the first but upheld the second by a 2:1 majority. As a result, Nicklinson and Lamb appealed on the first. Although ‘Martin’ had won on the second in the Court of Appeal, he nevertheless ‘cross-appealed’, because he did not think that the Court of Appeal had gone far enough, and he wanted to push the Supreme Court further in the direction he wanted.

The Supreme Court Decision The Supreme Court dismissed the Nicklinson and Lamb appeal by a majority of 7:2, and dismissed Martin’s cross-appeal. On the first legal point, the majority were not prepared to hold that the ‘blanket ban’ on assisted suicide was contrary to the appellants’ human rights under the convention and that the state’s interference with that right, in this case for the protection of the weak and vulnerable, was justifiable. On the second legal point, the court unanimously held that the DPP was not obliged to clarify his prosecution policy any further, in spite of the lack of clarity as to whether carers and doctors would be vulnerable to prosecution if they assisted a suicide. The court held that it was one thing to get the DPP to publish a policy, but quite another to dictate what should be in the policy. It satisfied the legal requirements of clarity and foreseeability as it stood.

Commentary This is a rich judgement in terms of both legal analysis and ethical complexity.

1. Ethical complexity The Nicklinson judgment is a good example of what medical lawyers have called a ‘stigmata’ case. That is, it reveals beneath the surface dispute wider differences of value and ethical tensions.5 The case, as Lord Sumption points out, is inherently ethical in nature. A number of ethical issues were touched upon, including the sanctity of life, autonomy, the ‘slippery slope’, and the protection of the vulnerable. The ethical and legal dimensions of the case are difficult to separate in the individual judgments. Two ethical issues were of special importance: the symbolism of the decriminalisation of suicide by virtue of the Suicide Act 1961 and the limits of the principle of autonomy.

a. The Suicide Act and the sanctity of life Section 1 of the Suicide Act 1961 decriminalised suicide. Suicide had once been the common law offence of ‘self-murder’. Survivors of a ‘suicide pact’, before it became a statutory offence in 1957, were guilty of a capital offence and sometimes hanged. Because of the decriminalisation of suicide, assisted suicide now became a ‘principal’ offence by virtue of section 2 of the Act. The judges in the Nicklinson case differ significantly about the deeper meaning of this momentous legal change. Lord Sumption argues that the law against suicide expresses the widespread moral norm 5

E.g. Lee, R. G. & Morgan, D. (2001) Regulating Risk Society: Stigmata Cases, Scientific Citizenship and Biomedical Diplomacy. Sydney Law Review 23: 297-318.

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that life is sacred and that the law should protect it. Moreover, the sanctity of life principle is a fundamental moral value underlying all civilised societies, legal systems and international statements on human rights (para.209). Indeed, assisted suicide is illegal in most European jurisdictions.

According to Lord Sumption, suicide was decriminalised because of public recognition that survivors required medical help and humane treatment, rather than the force of law:

It was that imposing criminal sanctions was inhumane and ineffective…The idea of taking these desperate and unhappy individuals from their hospital beds and punishing them for the attempt was as morally repugnant as the act of suicide itself. It was ineffective because, assuming that they truly intended to die, criminal sanctions were incapable by definition of deterring them (at para.212).

Lord Neuberger, who delivered the first and longest judgment in the case, takes a diametrically opposite view: “I find it hard to see how a life can be said to be sacred if it is lawful for the person whose life it is to end it” (para.91). The argument goes, if the decriminalisation of suicide undermines the sanctity of life principle, it is difficult to see as a matter of logic why the law should prevent a person seeking assistance to commit the ‘non-crime’ of suicide. Lord Sumption and Lord Neuberger also disagree on a deeper principle of legal philosophy. For Lord Sumption, the law has expressive force, as a carrier of value, i.e. the moral norm that life is sacred and that the law should not undermine. Lord Neuberger explicitly rejects the sign value of the law: “I am somewhat sceptical about semaphore justifications for legislative or judicial decisions…” (para.90). Their (Lords Sumption and Neuberger) ethical tensions over the symbolic significance of the decriminalisation of suicide echo a wider debate in the literature.

b. The limits of individual autonomy The principle of autonomy is the paramount principle in Western medical law and ethics. The growing judicial emphasis on the paramountcy of autonomy is roughly coterminous with the rise of medical jurisprudence as a distinct area of law (e.g., the first use of the term ‘autonomy’ appears in the Court of Appeal decision in Bland (1993)). At the heart of the Nicklinson case, however, is a gnawing legal asymmetry. The blanket ban on assisted suicide represents an unequivocal limitation on a person’s right to determine the manner and timing or her death. Yet, in closely related areas of medical law, the courts promote autonomy as a cardinal medico-legal principle. A series of cases in the 1990s and 2000s established that a legally competent patient has an absolute right to refuse all medical treatment even if, by doing so, they put her

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life and health at risk. The Supreme Court cites the case of Re B (2002)6 several times. That case established that a competent, ventilator-dependent woman had the right to require switching off the machine that was keeping her alive. Moreover, the Mental Capacity Act allows a person to execute an advance directive, which functions as if it expressed a contemporaneous refusal of treatment, provided it is legally valid and applicable to the situation that has arisen.7 Lord Sumption justifies the asymmetry by distinguishing the state of the assisted person from that of the assister. While the act of suicide is an expression of personal autonomy, the act of assisted suicide is not. Rather, the ethical basis of assisted suicide is the assister’s underlying motivation of compassion, rather than the assister functioning as a ‘prosthetic’ extension of the assisted person’s autonomy (para.215). Thus, in the assisted suicide context, in contrast to the treatment refusal, sanctity of life remains the fundamental moral and social value at stake (para.199). Lord Neuberger, in contrast, draws the distinction elsewhere, namely between voluntary euthanasia and assisted suicide. Because a person takes the final step, assisted suicide is an expression of personal autonomy in contrast to voluntary euthanasia, where a third party delivers the coup de grace: To my mind, the difference between administering the fatal drug to a person and setting up a machine so that the person can administer the drug to himself is not merely a legal distinction. Founded as it is on personal autonomy, I consider that the distinction also sounds in morality (para.94). Because a person dies at his own hand, assisted suicide is not murder or manslaughter: “the person concerned has not been ‘killed’ by anyone, but has autonomously exercised his right to end his life”. Lord Neuberger suggests that the lawful step of switching off a ventilator (which is classed for legal purposes as an ‘omission’), is a more drastic interference in that person’s life than the setting up of a legal drug delivery system ultimately activated by the person who has requested assisted suicide.8 He draws attention to the counter-intuitive distinction the law draws between ‘criminal acts’ and lawful omissions in this context. While accepting the legal distinction between killing and letting die, Lady Hale, who cites Re B copiously, questions the distinction’s ethical basis explicitly: While this distinction may make sense to us [i.e. judges and lawyers], it must often make little sense, especially to those who suffer the cruel fate of paralysis: those who can breathe without artificial help are denied a choice, which those who cannot do so may make, should they wish to do so. For some of the people looking after them, it will be a mystery why they must switch off the machine or withdraw artificial nutrition and hydration if this is what the patient wants, but they may not painlessly administer a lethal dose of medication which the patient wants just as much (para.304). 6

B (Adult: Refusal of Medical Treatment, Re [2002] 2 All ER 449 Mental Capacity Act, ss.24-26. 8 With reference to the case of Re B (see above), 7

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Lord Neuberger (at para.96) concludes that the assisted suicide law clearly impinges on a person’s autonomy and, in the case of those with neuro-degenerative conditions, may actually serve to shorten their lives.

c. The ‘slippery slope’ and risk to the vulnerable The lawyers for Nicklinson, Lamb and ‘Martin’ argued that, in the cruel circumstances the appellants found themselves in, the absolute prohibition on assisted suicide was disproportionate in its aim and effect. Against the appellants, Lord Wilson (at paras. 199-201) articulates the danger of the ‘slippery slope’, the view that if the assisted suicide law were relaxed, it would pose a greater risk to a class of people susceptible to the otherwise unwanted option of assisted suicide: I consider that, unless the court can be satisfied that any exception to the subsection can be operated in such a way as to generate an acceptably small risk that assistance will be afforded to those vulnerable to pressure to seek to commit suicide, it cannot conclude that the absolute prohibition in the subsection is disproportionate to its legitimate aim (at para.201).

In contrast, Lady Hale and Lord Kerr were sympathetic to the appellants. In pursuit of its legislative aim, the Suicide Act is too restrictive because ‘it admits of no exceptions’: To the extent that the current universal prohibition prevents those who would qualify under such a procedure from securing the help they need, I consider that it is a disproportionate interference with their right to choose the time and manner of their deaths. It goes much further than is necessary to fulfil its stated aim of protecting the vulnerable. It fails to strike a fair balance between the rights of those who have freely chosen to commit suicide but are unable to do so without some assistance, and the interests of the community as a whole (para.317). They also dismiss the dangers of a ‘slippery slope’. Lady Hale argues (at para.312) that the state’s concern to protect the vulnerable citizen through a blanket ban on assisted suicide is a disproportionate interference with the citizen’s right to autonomy, protected by Article 8 of the Convention. It is also, in her view, unnecessary. She envisages a method of judicial scrutiny, similar to that currently operated by the Family Division of the High Court in other end-of-life cases, which would ensure that any person seeking an assisted suicide had a “clear, settled, informed and voluntary” wish for an assisted death. 9 In the view of Lord Mance 9

Lord Neuberger agrees with her (at para.123)

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(para.186), this prospective form of judicial scrutiny is preferable to the retrospective nature of the current discretionary system that the DPP operates with reference to her published prosecution policy. Advocates of the current Falconer Bill have tabled amendments to the Bill at the Committee Stage in these terms. Lady Hale and Lord Kerr also advance ethical arguments against the blanket prohibition. They both hold that the right to determine the manner and timing of one’s death should not turn on whether one is capable of committing suicide. For example, Lady Hale can find no ethical justification for according the right to die to a person incapable of breathing unaided, while denying it to a patient who can breathe without artificial assistance (para.304). Moreover, Lord Kerr (at para. 350) doubts whether enfranchising those who are incapable of committing suicide unassisted would put at any greater risk vulnerable citizens who are capable of committing suicide without assistance. Accordingly, Lord Kerr is unable to identify a rational connection between the Suicide Act and its intended purpose. 2. Constitutional legitimacy The Human Rights Act 1998 empowers the judiciary to determine the compatibility of UK statute law with the rights protected by the European Convention. If a court finds that a piece of legislation is incompatible with Convention law, then it is authorised to issue a ‘declaration of incompatibility’. This remits the matter to Parliament for a political decision, informed by the court’s view of the law. Parliament can then decide either to do nothing (politically risky), or to change the law using a ‘fast-track’ procedure (also politically risky), or to introduce new legislation (a lengthy process). Thus, a declaration of incompatibility has no direct legal effect. This is in contrast with the power the US Supreme Court has to ‘strike down’ unconstitutional legislation.

When required to determine issues of compatibility, a court has two options. It can find a UK statute either compatible, or incompatible, with the Convention. In Nicklinson, two judges (Lords Reed and Hughes) hold that it is for Parliament to decide whether the assisted suicide law should be relaxed. Two others (Lady Hale, Lord Kerr) hold that the Act is incompatible with the Convention and wish to issue a declaration to that effect. The other five, Lords Neuberger, Mance, Wilson, Sumption and Clarke, appear to take a ‘wait-and-see’ approach. They are not prepared to issue a declaration in this case but suggest that they might be prepared to do so in future if Parliament fails adequately to deal with the issue in the interim, and a suitable case arises for decision. However, the Supreme Court offers no timescale, nor clear guidance to assist Parliament. It is rather like a tutor telling a student to rewrite an essay without telling them what they must do to avoid another rewrite (although Lord Wilson tries at para. 205).

This appears to make wider issues of moral and social policy ‘justiciable’, albeit in a qualified sense. The traditional function of the common law judge was to identify, clarify, develop and apply rules and principles built up by the courts in previous cases – the doctrine of precedent. In contrast, the role of Parliament is to consider wider issues of social policy and frame the democratic intention in clearly drafted statute law. As Nicklinson demonstrates, the Human Rights Act 1998 blurs this once serviceable distinction.

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Conclusion This case is a very good illustration of Francis Bennion's dictum that "law is the hardedge of ethics". Some of the most fundamental ethical principles (sanctity of life, autonomy, dignity etc.) admit of different interpretations, (Lord Neuberger, para.49). Although the courts have repeatedly stated in ethically-contentious cases that they are 'courts of law' and not 'arbiters of morals', in reality, ethics and law are inextricably bound up with each other, and even the most rigorous legal analysis will be influenced to a certain extent by the judges' basic ethical orientation, as this case demonstrates.

Conflict of interest disclosures Disclaimers and conflict of interest policies are found at: http://bit.ly/1wqiOcl

Article submission and acceptance Date of Receipt: 20.10.2014

Date of Acceptance: 04.01.2015

Contacts/correspondence Contact email: m.q.bratton@warwick.ac.uk

Intellectual property & copyright statement We as the authors of this article retain intellectual property right on the content of this article. We as the authors of this article assert and retain legal responsibility for this article. We fully absolve the editors and company of JoOPM of any legal responsibility from the publication of our article on their website. Copyright 2014. This is an open-access article distributed under the terms of the Creative Commons Attribution Licence, which permits unrestricted use, distribution and reproduction in any medium, provided the original work is properly cited.

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Ultrasound assisted Simplicity III probe placement for SIJ radiofrequency denervation – case report and description of a novel technique 1

2

Dr Andrzej Krol FRCA FFPMRCA , Dr Karthikeyan Ponnusamy FRCA FFPMRCA , Dr Neal Evans 3 4 FRCA FFPMRCA , Dr Andrew Nicolaou FRCA FFPMRCA

Abstract Introduction

Sacroiliac joint (SIJ) dysfunction accounts for about 20% of patients with low back pain and is often overlooked. Following thorough assessment and two diagnostic blocks, radiofrequency (RF) denervation of the SIJ is done as part of multidisciplinary management. RF denervation of the SIJ is technically challenging and often incomplete due to complex and variable innervation of the joint. Simplicity III probe is one of the alternate methods of denervating the sacroiliac joint by creating a strip lesion lateral to the dorsal sacral foramina. Case Report

We successfully used a novel technique of combined ultrasound and fluoroscopy imaging to denervate the SIJ of a patient after positive diagnostic blocks. The procedure was carried out jointly by an expert in Simplicity SIJ denervation and an expert in ultrasound guided procedures in chronic pain intervention. Both found the usage of the combined technique complimentary, reliable and easy to follow. The outcome of the procedure has been satisfactory to the patient describing 60% pain relief, increase of daily activity, and reduced analgesic consumption 12 weeks following the intervention. Discussion

Conventional Simplicity III probe placement is fluoroscopy guided and frequent projection changes are required. Pattern recognition of characteristic structures seen as ultrasound image helped to place the Simplicity probe. The advantages of double source visualisation are many. It eases the placement of the probe by avoiding the need for frequent projection changes in fluoroscopy and thereby reducing the time needed to do this procedure. For the same reason it also reduces the exposure of ionising radiation. Keywords Radiofrequency denervation, thermal radiofrequency, ultrasound, sacroiliac joint pain, radiation exposure

1

St. George's Hospital, Tooting, London, UK Kent and Canterbury Hospital, Canterbury UK 3 Chronic Pain Consultant, Stoke Mandeville Hospital, Aylesbury, UK 4 Consultant Anaesthetist, St George’s Healthcare NHS Trust, UK 2

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Introduction Low back pain (LBP) is major cause of morbidity and disability, especially in the western world. Sacroiliac joint (SIJ) pain is considered to be an important source of this pain, with estimates ranging from 16-30%1. Relief of pain following SIJ injections with local anaesthetic is considered to be the gold standard criterion for diagnosis of sacroiliac joint pain2 3 4 5. In combination with steroids it may provide long-lasting pain relief. In cases of a positive diagnostic block, denervation of the SI joint has been recommended6. Due to complex and variable innervations,7 8 9 complete joint denervation is difficult to achieve. A number of techniques have been described showing variable outcomes, usually close to 60% pain relief10 11 12 13 14 15. In our center we use the Simplicity III probe to create a strip lesion lateral to sacral foramina along with RF lesioning of L5 dorsal ramus. The Simplicity III probe (Neurotherm Inc.) has three active electrodes along its length which help in the creation of a strip lesion. Fluoroscopy is commonly employed as the main source of visualisation. It requires frequent imaging in lateral and A-P projections with varied cranial angulation depending on the shape of the sacrum. The amount of radiation is not to be neglected in a busy interventional pain practice. Ultrasound has been successfully used to localise pelvic structures such as sacral hiatus, sacroiliac joint, sacral foramina, ischial spine, ischial tuberosity, piriformis muscle, pudendal nerve and artery. Here we describe a patient whose low back pain due to sacroiliac joint dysfunction was treated successfully by denervation with a novel approach of placement of the Simplicity III radiofrequency probe with ultrasound and fluoroscopic guidance.

Case Report A 71-year-old female patient with a history of low back pain for many years was referred to our pain clinic. The pain was gradually worsening over the years and it had become quite severe, resulting in a poor quality of life. The pain prevented her from walking and had a significant impact on her activities of daily living as assessed on the Brief Pain Inventory (BPI – 56 out of 70). She scored 8 out of 10 on the Visual Analogue Scale (VAS). On examination her pain was present very low in the back, below L5, over the gluteal area. There was some radiation along the back of her thighs which stopped above the knees. She described the pain as sharp and severe, aggravated by physical activity. SIJ provocation tests (FABER, Yeoman’s and SHEAR) were positive. X-ray imaging of her spine showed non-specific degenerative changes with pars defect. Her past medical history included COPD, depression and history of neck pain for which she had a C5/6 foraminotomy four years ago. Her medications included bronchodilator inhalers, Sertraline, and Cyclizine. Analgesia consisted of Paracetamol 1 gram four times a day and Tramadol up to 50 mg 4 times a day. Adjuvants such as Venlafaxine 75 mg once daily and Pregabalin 25 mg twice daily were introduced with minimal improvement. She also started to use TENS regularly and 5% Lignocaine patches (Versatis) at night time. Based on the clinical findings and unsatisfactory response to pharmacotherapy, a decision was made to perform a diagnostic SIJ injection. She had 2 sets of bilateral intra-articular SIJ injections with local anaesthetic and Methylprednisolone (0.5% Bupivacaine and 40mg Methylprednisolone 2.5 mls in total on each side) done under ultrasound guidance with the final needle position verified with arthrogram. Both of these resulted in a reduction of her pain scores by greater than 60% for about six weeks.

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With two positive responses for the diagnostic injection, it was decided to proceed to bilateral SIJ RF denervation. This was performed using a Simplicity III RF probe using the technique described below. The procedure was carried out jointly by an expert in Simplicity SIJ denervation and an expert in ultrasound guided procedures in chronic pain intervention. During the follow up 12 weeks later she had more than 60% pain relief on both sides. Her VAS score improved to 3-4 out of 10. Her general activity, walking distance, relationships with friends and sleep improved considerably. She scored 38 out of 70 in BPI. She also reported reduced use of medication. Tramadol was reduced to a 50mg tablet at night. She stopped using Lignocaine patches.

Methods The patient was positioned prone with a pillow under the abdomen. The skin was disinfected using 2% Chlorhexidine in 70% Isopropyl alcohol. The skin and intended track of the probe was anaesthetised with 1% Lignocaine using a 10cm 22G spinal needle. Standard monitoring was carried out during the procedure. She received conscious sedation with 100 micrograms Fentanyl and 4 milligrams midazolam in small aliquots during the procedure. We describe 5 simple, reliable steps which should be easy to follow, even in cases of increased body habitus. We use Ultrasound M-Turbo (Sonosite, Bothell ,WA, USA), which is dedicated for our pain clinic interventions. Ultrasound transducer choice is paramount and in the majority of cases, and in the one described, a low frequency 2-5 MHz (C60) curvilinear probe is required. Occasionally in very slim people, linear 613MHz (L-38) would be sufficient.

Step 1 The ultrasound transducer is held in transverse position to visualise the sacral cornua and sacral hiatus. These are characterised by two hyper echoic structures connected by a band-like structure, the sacrococcygeal ligament. (Figure 1) Fig 1 – Transverse view showing sacral cornua and sacral hiatus

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Step 2 Lateral to the sacral cornua and slightly higher, the S4 dorsal sacral foramen is identified as a drop in acoustic shadow. Entry point is lateral to this. (Figure 2) Fig 2. Probe moved slightly lateral while in transverse orientation to show S4 foramen (arrow points to S4 foramen).

Step 3 The transducer is moved 90 degrees from transverse (sagittal) to longitudinal scan. Sacral foramina S4 and S3 can be identified as drops in acoustic shadows.(Figure 3) Fig 3. Longitudinal view showing sacral foramina as drops in acoustic shadow (arrows point to the foramen).

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Step 4 Gentle transducer movement laterally in the same plane (longitudinal) reveals a solid sacral posterior surface along which the Simplicity probe should lie (Figure 4). As the surface of the sacrum at this line is easily visualised, one just has to make sure the needle lies just above this surface and is seen in its entirety along this line. Fig 4. Longitudinal view lateral to sacral foramina showing sacral surface.

Step 5 To prevent too lateral Simplicity Probe placement, the bottom part of the SI joint needs to be identified in transverse scan (Figure 5). It gives an appreciation of the operational field. Fig 5. Moving the probe further laterally while in transverse view shows the SIJ (arrow points to the SIJ).

The point of entry lies lateral to the S4 foramen and medial to the line of the SI joint. We recommend following the above proposed steps in initial scanning to recognise all the described structures. Local anaesthetic infiltration with a 22G Quincke spinal needle should be performed in the same manner followed by Simplicity probe placement. In the final position the tip of the probe should lie near the sacral ala with the probe’s active contacts (radio opaque markers) lying adjacent to the sacral foramina and the intended pathways of lateral branch of dorsal sacral nerves. This final position is confirmed with AP and lateral views using fluoroscopy (Figure 6).

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Fig 6. Final position of probe as seen with image intensifier.

Discussion The complex and varied innervation of the SIJ makes RF denervation difficult and time consuming, often involving multiple lesioning. It is therefore not surprising that a number of techniques have been described 10-15. The Simplicity Probe III offers a convenient technique whereby a strip lesion is created parallel and lateral to the dorsal sacral foramina. The Neurotherm NT 1100 RF generator offers a Simplicity Probe III program which automatically creates 5 overlapping RF lesions leading to the strip lesion. It has to be noted that one still has to perform RF lesioning of the L5 dorsal primary ramus to complete the SIJ denervation. Traditionally Simplicity SI joint denervation is performed under sedation as this technique can be very uncomfortable. Even though the Simplicity Probe III is curved to aid the placement, the highly variable curvature of the sacrum makes it technically challenging to align the probe along the periosteum. To overcome this, it is often necessary to move the fluoroscope c-arm from lateral to AP views to obtain images in both planes. This also results in multiple imaging causing higher ionizing radiation exposure to the patient and also to staff members. The main difficulty in fluoroscopy only guided technique lies in choosing the right entry point and tangential probe positioning close to the periosteum, lateral to the sacral foramina and medial to the SIJ. We hypothesised that the combined use of ultrasound and fluoroscopy helps to overcome the difficulty. It has been especially useful in defining the point of insertion, in positioning the probe close to the bone surface and also keeping the right orientation lateral to the sacral foramina and medial to the SI joint itself. We found using the pattern recognition as described in steps 1-5 easy to follow and reproducible in other patients scheduled for SI joint injection. We are not aware of any similar methodology being applied in US guided interventions in chronic pain management that decrease ionising radiation exposure and increase confidence of adequate probe placement. In recent years, following an explosion of ultrasound use in regional anaesthesia, the application of ultrasound in interventional pain procedures has been increasingly explored16. Some procedures such as stellate ganglion block, suprascapular nerve block, greater occipital nerve block, pudendal nerve block and trigger point blocks can be done completely by US guidance thereby changing clinical practice17. For other procedures like nerve root blocks, medial branch at cervical, thoracic or lumbar levels, paravertebral blocks and intercostal nerve blocks, a combination of ultrasound and fluoroscopy works better with the latter mainly to help in identifying the spinal level18. Ultrasound guided SI and caudal injections have been well described and are routinely performed in our 91

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institution. Pekkafahali et al19 reported a steep learning curve in US guided SI joint injection. Their success rate was about 60% with the first 30 injections and increased up to 93.5% after 60 injections. US guided caudal epidural was first described by Klocke et al20 in 2003. US is extremely helpful in identifying the midline and in getting correct needle angulation. Chen et al21 evaluated 70 patients having caudal epidural steroids under US guidance and then verified the needle position with fluoroscopy with contrast. They confirmed the correct position in 100% of subjects.

Conclusion To our knowledge this is the first description of using dual guidance - fluoroscopy and ultrasound - in SI joint denervation. As with the use of ultrasound for other procedures, there is a learning curve associated with this. More data are needed to assess the usefulness of the technique described here, and further studies should be carried out to measure the actual reduction of the amount of radiation used. With more experience we hope to minimise the use of fluoroscopy to just single exposures to confirm the final position of the probe tip at the level of the sacral ala. Acknowledgements

We would like to thank all the staff members who were involved in the care of this patient. We would also like to thank the patient for consenting to publish this anonymised material.

Conflict of interest disclosures The authors do not have any conflict of interests to disclose. Disclaimers and conflict of interest policies are found at: http://bit.ly/1wqiOcl

Article submission and acceptance Date of Receipt: 28.10.2014

Date of Acceptance: 30.12.2014

References 1

Schwarzer AC, Aprill CN, Bogduk N. The sacroiliac joint in chronic low back pain. Spine. 1995; 20: 31–37. Luukkainen R, Nissila M, Asikainen E, et al. Periarticular corticosteroid treatment of the sacroiliac joint in patients with seronegative spondyloarthropathy. Clin Exp Rheumatol. 1999;17:88–90. 3 Luukkainen RK, Wennerstrand PV, Kautiainen HH, Sanila MT, Asikainen EL. Efficacy of periarticular corticosteroid treatment of the sacroiliac joint in non-spondyloarthropathic patients with chronic low back pain in the region of the sacroiliac joint. Clin Exp Rheumatol. 2002; 20:52–54. 4 Borowsky CD, Fagen G. Sources of sacroiliac region pain: insights gained from a study comparing standard intra articular injection with a technique combining intra- and periarticular injection. Arch Phys Med Rehabil. 2008; 89:2048–2056. 2

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Maugars Y, Mathis C, Berthelot JM, Charlier C, Prost A. Assessment of the efficacy of sacroiliac corticosteroid injections in spondyloarthropathies: a double-blind study. Br J Rheumatol. 1996; 35:767–770.

6

Vanelderen, P, Szadek, K, Cohen, S. P, De Witte, J, Lataster, A, Patijn, J, Mekhail, N, van Kleef, M and Van Zundert, J (2010), 13. Sacroiliac Joint Pain. Pain Practice, 10: 470–478. doi: 10.1111/j.1533-2500.2010.00394.x 7 Fortin JD, Kissling RO, O’Connor BL. Sacroiliac joint innervation and pain. Am J Orthop1999; 12:687-690. 8

Solonen KA. The sacroiliac joint in the light of anatomical, roentgenological and clinical studies. Acta Orthop Scand Suppl 1957; 27:1-127.

9

Nakagawa T. A study on the distribution of the nerve filaments of the iliosacral joint and its adjacent region in the Japanese. J Jap Orthop Assoc 1966; 40:419-430.

10

Gevargez A, Groenemeyer D, Schirp S, Braun M. CT-guided percutaneous radiofrequency denervation of the sacroiliac joint. Eur Radiol. 2002;12:1360–1365.

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11

Ferrante FM, King LF, Rochë EA, et al. Radiofrequency sacroiliac joint denervation for sacroiliac syndrome. Reg Anesth Pain Med. 2001; 26:137–142.

12

Cohen SP, Abdi S. Lateral branch blocks as a treatment for sacroiliac joint pain: a pilot study. Reg Anesth Pain Med. 2003; 28:113–119. 13 Burnham RS, Yasui Y. An alternate method of radiofrequency neurotomy of the sacroiliac joint: a pilot study of the effect on pain, function, and satisfaction. Reg Anesth Pain Med. 2007; 32:12–19. 14 Vallejo R, Benyamin RM, Kramer J, Stanton G, Joseph NJ. Pulsed radiofrequency denervation for the treatment of sacroiliac joint syndrome. Pain Med. 2006; 7:429–434. 15

Kapural L, Nageeb F, Kapural M, et al. Cooled radiofrequency system for the treatment of chronic pain from sacroiliitis: the first case-series. Pain Pract. 2008; 8:348–354.

16

Narouze SN. Ultrasound-guided interventional procedures in pain management: Evidence-based medicine. Reg Anesth Pain Med. 2010 Mar-Apr; 35 (2 Suppl):S55-8. doi: 10.1097/AAP.0b013e3181d24658.

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Peng PW, Narouze S. Ultrasound-guided interventional procedures in pain medicine: a review of anatomy, sonoanatomy, and procedures: part I: nonaxial structures. Reg Anesth Pain Med. 2009 Sep-Oct; 34(5):458-74. doi: 10.1097/AAP.0b013e3181aea16f.

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Narouze S, Peng PW. Ultrasound-guided interventional procedures in pain medicine: a review of anatomy, sonoanatomy, and procedures. Part II: axial structures. Reg Anesth Pain Med. 2010 Jul-Aug; 35(4):386-96.

19

Pekkafahali MZ, Kiralp MZ, Basekim CC, Silit E, Mutlu H. Ozturk E, et al. Sacroiliac joint injections performed with sonographic guidance. J Ultrasound Med 2003; 22:553-9.

20

Klocke R, Jenkinson T, Glew D. Sonographically guided caudal epidural steroid injections. J Ultrasound Med. 2003 Nov;22(11):1229-32. 21 Chen CP, Tang SF, Hsu TC, Tsai WC, Liu HP, Chen MJ, Date E, Lew HL. Ultrasound guidance in caudal epidural needle placement. Anesthesiology. 2004 Jul;101(1):181-4.

Contacts/correspondence Dr. Karthikeyan Ponnusamy Dept of Anaesthesia and Chronic Pain Management Kent and Canterbury Hospital, Ethelbert Road, CT13NG Canterbury Hospital, Kent, UK Phone:+447894080654, Email: contactpk@gmail.com

Intellectual property & copyright statement We as the authors of this article retain intellectual property right on the content of this article. We as the authors of this article assert and retain legal responsibility for this article. We fully absolve the editors and company of JoOPM of any legal responsibility from the publication of our article on their website. Copyright 2014. This is an open-access article distributed under the terms of the Creative Commons Attribution Licence, which permits unrestricted use, distribution and reproduction in any medium, provided the original work is properly cited.

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A snapshot of the failing neutrality of experts in a single answer? Mr Julian Benson

1

Abstract The examination of the conduct of expert witnesses and their duty of neutrality in Court, using an example of a case involving a young woman with a shoulder and neck injury and the expert witness testimony of an orthopaedic consultant.

Keywords Expert witness, neutrality, liability, claimant, orthopaedic opinion

Introduction This really is a ‘snapshot’, and not intended to be more than that. In a recent case concerning a 32-year-old woman who claimed to have suffered a liability-admitted injury to her shoulder and neck when preventing an elderly lady from falling to the ground, (and who had one previous GP record of mid-back pain 2 ½ years before) I had the following Q & A with a medico-legal orthopaedic expert. I have broken down the answer and added my comments in bold. I should add that the Claimant had obtained, but not relied upon, an orthopaedic opinion – a cause for comment (why not?) and submission by the Defence at trial, but of no relevance to the ‘question and answer’ below.

Question posed to the expert witness In your italicised comment on p4 of your second report, you state "I note that Miss X has a history of back pain". Please confirm that, in fact, the sole reference to any form of pre-accident musculoskeletal problem is a single - isolated - reference on 26th January 2007, more than 2 ½ years before the accident, and with no further follow-up in any medical notes.

Response (broken down into segments) I can confirm that the sole reference to antecedent back pain is a single reference dated 26 January 2007. Does this really constitute “a history”?

1

Barrister, Guildhall Chambers

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I would comment that antecedent records are very limited in this case. Isn’t the neutral interpretation that she did not feel the need to consult her GP? I take the view that most patients only consult their general practitioner with severe symptoms Isn’t this an unusual and dangerously unqualified remark? and it seems probable that Miss X has had other episodes of back pain which were not severe enough to bring to the attention of her general practitioner. Isn’t it extraordinary to use “probable”? Is this a straining of every sinew to uphold an opinion at any cost to logic? The ‘logic’ seems to be that a 25-year-old woman who reported back pain to a GP, who then suffers a subsequent injury, probably suffered other less severe back pain before/after the index event and later concealed those matters – triumphantly creating a lying Claimant out of the absence of pre-accident records of back pain! I would comment that in 2007 Miss X was only about 25 years old. Back pain in individuals of that age is uncommon. Is it “uncommon” for a care worker/other 25-year-old in manual/semimanual work to suffer back pain – such as a strain, or similar? Would that really predispose one to spinal degeneration 2 ½ years later? In my opinion, the onset of back pain in a 25-year-old woman does not bode well for the future, even though it is an apparently isolated entry. Isn’t the word “onset” a tendentious attempt to create a sense of “continuity” from the sole record in 2007 forwards towards the accident? Young people do not normally have degenerative change, which is the common cause of back pain in the older individual. Doesn’t the phrasing deliberately suggest that that Miss X had degenerative change?

Comment Whilst the answer is a rather skilled piece of advocacy, is it an appropriate answer from an expert with an overriding duty to assist the Court, neutrally, to understand the issues in the case?

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Might the neutral expert remind the Court of any ranges of opinion as well – even whilst providing the opinion above? Would a Judge/Claimant be content to accept the author of those answers as a single joint expert in another case? More generally, doesn’t this type of stance inevitably polarise an expert’s practice with a concomitant risk of damaging how one’s evidence is approached and/or received by the Court? There also seems little doubt that experts whose work is polarised will drive parties apart, increase costs, and undermine the reforms of Lord Woolf and the CPR. Of course, this is merely one example, which happened to occur in 2014. It should also be said that most legal representatives have come across experts who seem to reach an inevitably ‘pro-claimant’ opinion in any circumstances (without giving a range of opinion). We are also often guilty of asking experts to shade their opinions a little lighter or darker than the original opinion expressed. That inevitably places pressure upon experts, especially those who have carved out a niche of work (or more coincidentally become popular) on one side or other – particularly perhaps the expert who is entirely reliant upon medico-legal work for his/her income. The simple fact is that such pressure must be resisted if the expert is going to fulfil their duty to assist the Court, by providing a scrupulously neutral and reasoned opinion.

Conflict of interest disclosures Disclaimers and conflict of interest policies are found at: http://bit.ly/1wqiOcl

Article submission and acceptance Date of Receipt: 28.10.2014

Date of Acceptance: 20.1.2015

Contacts/correspondence Julian Benson, Guildhall Chambers, Bristol BS1 2HG, UK Email: julian.benson@guildhallchambers.co.uk

Intellectual property & copyright statement We as the authors of this article retain intellectual property right on the content of this article. We as the authors of this article assert and retain legal responsibility for this article. We fully absolve the editors and company of JoOPM of any legal responsibility from the publication of our article on their website. Copyright 2014. This is an open-access article distributed under the terms of the Creative Commons Attribution Licence, which permits unrestricted use, distribution and reproduction in any medium, provided the original work is properly cited.

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An Evaluation of the Effectiveness of a Cognitive Behavioural Therapy-Based Multidisciplinary Pain Management Programme for Adults Living with Chronic Pain 1

1

1

L. Gemson MSc, Dr. K. Hatton DClinPsy, Dr. S. White DClinPsy, D. Hatch MCSP, 1 2 Dr. J. Sanderson DClinPsy, & Dr. M. Roy PhD

1

Abstract Chronic pain is a complex entity that can lead to individuals experiencing long-term disability. Furthermore, the interaction of physiological, psychological and social factors can intensify the pain experience. Evidence suggests that cognitive behavioural therapy-based pain management programmes (CBT-PMP) are an effective treatment for chronic pain. The aim of this study was to evaluate the effectiveness of the Blackpool Pain Management Service’s CBT-PMP, and to explore the association between changes in pain-related disability, pain self-efficacy and depression. This retrospective study was based on pre and post-treatment outcome data for 65 patients (mean age of 50 years; 83% female) who completed the CBTPMP between the years 2010–2014. Paired sample t-tests and Wilcoxon signed-rank tests demonstrated significant improvements over time for all of the outcome measures: pain self-efficacy (p < .001, d = .89), fear of movement (p < .001, d = .76), pain catastrophizing (p < .001, d = .78), depression (p < .001, d = .76), pain-related disability (p = .001, d = .45), pain intensity (p < .001, d = .55) and pain experience affective (p < .001, d = .55) and sensory (p < .001, d =.49), as well as physical measures - 20-metre timed walk (p < .001, r = –.48) and sit-stand (p < .001, r = –.49). Hierarchical multiple regression analyses showed that after controlling for baseline pain-related disability ( R² = .11, p = .010) and pre to post-treatment change in pain intensity ( R² = .11, p = .007), changes in pain self-efficacy and depression ( R² = .21, p < .001) significantly predicted change in pain-related disability. These findings indicate that, overall, patients who attended the Blackpool Pain Management Service’s CBT-PMP experienced significant improvements in their physical and psychological wellbeing. Furthermore, this study provides convincing evidence that changes in pain self-efficacy and depression are strongly associated with change in pain-related disability. Keywords Chronic pain, pain management programme, multidisciplinary rehabilitation, cognitive behavioural therapy, pain self-efficacy, depression, pain intensity, pain disability.

1

Pain Management Service, Blackpool Teaching Hospitals NHS Foundation Trust, Whitegate Health Centre, Whitegate Drive, Blackpool, FY3 9ES, UK. 2 School of Psychology, Darwin Building, The University of Central Lancashire, Preston, Lancashire, PR1 2HE, UK.

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Introduction British Pain Society (BPS) guidelines for patients suffering from debilitating, persistent pain which causes distress and reduces quality of life recommend referral to a Pain Management Programme (PMP). 1 The PMP should be delivered in a group format, by a multidisciplinary team specialising in cognitive behavioural techniques.1 In line with BPS guidelines, The Blackpool Pain Management Service developed a CBT-based PMP (CBT-PMP) to help increase patients’ physical functioning, reduce their dysfunctional pain beliefs and improve their quality of life. This study is an evaluation of the Blackpool Pain Management Service’s CBT-PMP.

Chronic Pain Chronic pain is defined as persistent pain of more than three months duration.2 Its complex and multifaceted nature is best understood using the Biopsychosocial model.3 The model proposes that the maintenance and exacerbation of chronic pain conditions is better understood through recognising the interaction of biological, psychological and social factors.2 The challenge of managing chronic pain reflects its complex and diverse manifestations. Individuals suffering from chronic pain experience a wide range of distressing corollaries, such as psychosocial responses including persistent stress, anxiety, low mood and social isolation.4–6As illness duration progresses, such psychosocial factors become progressively more significant in the maintenance of chronic pain.7 In severe cases, patients living with chronic pain may experience suicidal ideation.8 As the development and maintenance of chronic pain is a complex process, a multidisciplinary approach to treatment is recommended.9

Pain Management Programme (CBT-PMP) The CBT-PMP is based on a biopsychosocial approach.7 It uses cognitive behavioural principles to teach patients how to self-manage and cope with their pain, and how to challenge negative patterns of thinking in order to prevent further deconditioning, and improve their physical and psychological quality of life.10,11 The main components that make up a CBT-PMP are education, pacing/functional restoration, pharmacotherapy, cognitive behavioural therapy and relaxation.12 Studies show that CBT-PMPs can reduce patients’ anxiety and depression levels13 and reduce painrelated fears (fear of movement and pain catastrophizing).14 CBT-PMPs have also been shown to increase pain self-efficacy,15 reduce pain intensity16 and increase physical functioning.17

Predictors of Pain-Related Disability Growing evidence suggests that psychological factors such as pain self-efficacy, pain catastrophizing, depression and pain-related fear are important predictors of painrelated disability.18–20 Some authors suggest that pain-related psychological factors may be better predictors of disability than the pain itself.18,20,21 However, some studies investigating the individual influences of psychological factors on chronic pain highlight that a number of these measures share significant variance with each other, leading to construct redundancy.22,23 Pain catastrophizing appears to share significant variance with depression and is also highly correlated with pain-related fear.22 When exploring associations between changes in 20 psychological constructs and pain-related disability, Foster and colleagues found that only changes in illness identity, pain self-efficacy and depression remained significant predictors of change in pain-related disability.23

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Background of the Blackpool Pain Management Service The Blackpool Pain Management Service was established in 1997 and is part of the Blackpool Teaching Hospitals NHS Foundation Trust. On average, the service receives 130 referrals a month, of which approximately 75% will require a multidisciplinary-based treatment plan. The primary aim of this study is to evaluate the effectiveness of the Blackpool Pain Management Service’s CBT-PMP, and the secondary aim is to identify whether changes in pain self-efficacy and depression are associated with significant change in pain-related disability. In light of the evidence supporting the efficacy of CBT-PMPs, it is predicted that patients will show a significant improvement in mood, pain, painrelated beliefs, pain-related disability and physical functioning.13–17 Furthermore, it is anticipated that changes in depression and pain self-efficacy will be significantly associated with change in pain-related disability.18,23

Methods Sample This study is based on a retrospective analysis of 65 patients (83% female) with a mean age of 50 years (standard deviation 10.8 years) who attended the CBT-PMP at the Blackpool Pain Management Service between 2010 and 2014, and had consented for their data to be used as part of service evaluation. The gender bias in this sample reflects the referrals received to the service as a whole. The patients in this study displayed a range of chronic pain conditions, such as fibromyalgia, nonspecific back pain and arthritis.

Materials Self-Report Measures Modified Zung Depression Questionnaire (Zung) This measure contains 23 items that assess the patient’s level of depression, such as “I feel downhearted and sad” and “I have crying spells or feel like it”. Individuals rate on a four-point Likert scale, statements ranging from “rarely or none of the time” to “most of the time”. The maximum an individual can score is 69, with scores above 33 indicating depressive distress.24

Pain Catastrophizing Scale (PCS) The PCS is a 13-item self-rating scale which can be divided into three subscales: rumination (e.g. “I anxiously want the pain to go away”), magnification (e.g. “I become afraid that the pain will get worse”), and helplessness (e.g. “I feel I can’t go on”). The individual rates the items on a five-point Likert scale, ranging from “not at all” to “all the time”.25 Total scores range between 0 and 52, and only total scores were used in this study.

Tampa Scale of Kinesiophobia (TSK) The TSK is a 17-item scale that is scored on a four-point Likert scale, ranging from “strongly disagree” to “strongly agree”. It assesses self-reported pain-specific fear avoidance, and harm, using statements such as, “I’m afraid that I might injure myself if I exercise” and “pain always means I have injured my body”. Total scores range between 17 and 68, with higher scores indicating a greater degree of fear avoidance.26 99

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Pain Self-Efficacy Questionnaire (PSEQ) This is a ten-item self-rating scale that uses a seven-point Likert scale, ranging from “not at all confident” to “completely confident”. The scale assesses the patient’s confidence in their ability to undertake various activities despite their pain, using statements such as “I can cope with my pain in most situations” and “I can gradually become more active, despite the pain”. Total scores range between 0 and 60, with higher scores suggesting greater levels of pain self-efficacy.27

The Quebec Pain Disability Scale (QUE) This scale was developed to measure pain-specific disability on a six-point Likert scale, ranging from “not difficult at all” to “unable to do”. This scale assesses the individual’s self-rated disability score across 20 daily activities, such as “carry two bags of groceries” and “turn over in bed”. The total scores can range between 0 and 100, with higher scores suggesting greater levels of pain-induced disability.28

The Short-form McGill Pain Questionnaire (SF-MPQ) This scale consists of 15 descriptors; 11 sensory (e.g. “throbbing” and “tender”), and four affective (e.g. “sickening” and “punishing-cruel”), which are rated on a threepoint Likert scale, ranging from “none” to “severe”. The sensory score (0–33) gives a total score for the sensation and severity of the individual’s pain, and the affective score (0–12) measures the individual’s emotional reaction to their pain. The SF-MPQ also includes a pain intensity visual analogue scale (VAS), which measures the individual’s current level of pain on a scale of 0–100.29 However, the SF-MPQ used by the Blackpool Pain Management Service uses a numerical rating scale of 0–10 for pain intensity, instead of the pain intensity VAS.

Physical Measures 20-Metre Walk Test (20-MWT) The 20-MWT is used to measure gait speed and requires patients to walk 20 metres along a flat corridor as quickly as they can whilst their time is recorded in seconds. The 20-MWT is similar to the 50-foot walk, which has been shown to have excellent test-retest reliability with both chronic pain patients and pain-free participants, as well as differentiating between both populations.30

Sit to Stand (Sit-stand) For this measure, patients are asked to stand from a sitting position and then to sit back down five times, as quickly as possible, whilst the time taken to perform this task is recorded in seconds. This measure has been shown to be a valid measure with acceptable reliability.30

Procedure Following approval by Blackpool Teaching Hospitals, data were collected from 65 patient files across two time points: assessment and end of treatment. All patient names were replaced with an ID number to protect anonymity and their data were entered into SPSS. A series of statistical analyses were then undertaken. However, due to small amounts of missing data, not all of the 65 patients were included in all of the analyses, as cases with missing values were excluded analysis by analysis.

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Pain Management Programme The CBT-PMP sessions were conducted over a six to nine-week period, with some weeks containing two sessions. The groups consisted of approximately six to ten patients. The sessions were designed in line with BPS guidelines and included physiotherapy, exercise, group CBT, relaxation, psychoeducation in the biopsychosocial model, pacing, medication, pain pathways, communication (which included a ‘friends and family’ day) and relapse prevention.1 Assignments, relaxation and exercise were also encouraged to be undertaken between sessions.

Statistical Analyses Retrospective pre and post-treatment data for 65 individuals were used in the analyses. However, cases with missing values were excluded analysis by analysis. Descriptive data were calculated for all variables. Paired sample t-tests (Table 1) were then undertaken to explore changes in mood (Zung),24 pain (SF-MPQ intensity, sensory and affective),29 pain-related beliefs (PCS,25 TSK26 and PSEQ27) and painrelated disability (QUE).28 Wilcoxon signed-rank tests (Table 2) were used for the 20MWT and sit-stand, as the data were non-parametric. Cohen’s d was calculated to identify the effect sizes for all of the paired sample t-tests and r was used to calculate effect sizes for the Wilcoxon signed-rank test. For Cohen’s d an effect size of .2 is viewed as a small effect, .5 is considered a moderate effect and .8 is a large effect.31 For r, .1 is interpreted as a small effect, .3 a moderate effect and .5 is a large effect.32 Pearson correlations (one-tailed) (Table 3) were calculated to explore the associations between changes (post-treatment minus pre-treatment score) in painrelated disability and fear of movement, pain self-efficacy, depression, pain catastrophizing, pain intensity, affective pain and sensory pain. Hierarchical multiple regression (Table 4) was then undertaken to determine whether, and to what extent, changes in pain self-efficacy and depression were associated with significant change in pain-related disability. Change in pain-related disability was entered as the dependent variable (constant). After controlling for baseline pain-related disability at step 1 and change in pain intensity at step 2, changes in pain self-efficacy and depression were entered into the model at step 3.

Results Pre to Post Changes in Outcome Measures Paired sample t-tests (Table 1) undertaken on the questionnaire data demonstrated that patients experienced significant improvement over time for SF-MPQ pain intensity, SF-MPQ affective, SF-MPQ sensory, Zung, PCS, TSK, PSEQ and QUE. Effect sizes for the outcome measures were small to large. Wilcoxon signed-rank tests (Table 2) also demonstrated significant improvements for both physical measures over time, displaying moderate effect sizes.

Correlations Correlations between outcome measure change scores (Table 3) demonstrated that change in disability was negatively associated with change in pain self-efficacy (r = –.53, p < .001) and was positively associated with changes in fear of movement (r = .48, p < .001), depression (r = .43, p < .001), pain intensity (r = .35, p < .01) and pain catastrophizing (r = .41, p < .05). This suggests that as pain self-efficacy increases, the individual’s self-rated level of disability reduces, and as fear of movement, depression, pain catastrophizing and pain intensity reduce, self-rated disability scores also reduce. Changes in SF-MPQ sensory and affective were not associated with change in disability.

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Predictors of Change in Pain-Related Disability The regression analysis with change in pain-related disability (QUE) as the dependent variable (Table 4) was highly significant (r² = .42, F = 10.29, p < .001). Baseline pain-related disability was entered into the model at step 1 (F (1, 60) = 7.02, p = .010), explaining 11% of the variance of change in disability. At step 2, change in pain intensity was entered (F (1, 59) = 7.94, p = .007) and significantly explained a further 11%. Finally, at step 3, change in pain self-efficacy and change in depression were entered into the model (F (2, 57) = 10.23, p < .001) and significantly explained an additional 21% of the variance. From the model it can be seen that a higher level of baseline disability predicted a reduction in disability between assessment and end of treatment. In addition, a greater reduction in pain intensity between pre and posttreatment was associated with a larger reduction in pain-related disability at end of treatment. After controlling for baseline disability and change in pain intensity, a greater reduction in disability was predicted by a greater increase in pain self-efficacy and a greater reduction in depression scores. Table 1. Displays mean pre-treatment and post-treatment scores for various self-report measures

Mean (SD) Outcome Measures

n

Pre

Post

t

p

d

SF-MPQ Pain Intensity

62

7.37

6.2

4.37

p < .001

.55

(1.43)

(1.93)

SF-MPQ

64

6.73

4.86

4.40

p < .001

.55

(3.66)

(3.39)

18.56

15.27

3.89

p < .001

.49

(6.99)

(8.02) 6.09

p < .001

.76

6.28

p < .001

.78

6.08

p < .001

.76

–7.17

p < .001

.89

3.64

P = .001

.45

Affective SF-MPQ

64

Sensory Zung

65

39.40 (8.33)

PCS

TSK

65

64

QUE

102

65

65

(9.18)

29.58

20.89

(11.40)

(11.12)

36.89

30.58

(7.69) PSEQ

34.40

(7.84)

20.52

29.92

(8.84)

(10.59)

61.18

55.69

(15.59)

(16.39)

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Table 2. Displays mean pre-treatment and post-treatment times for two physical measures

Outcome Measures

n

Pre

Post

z

p

r

20-MWT

62

31.27

23.88

–5.34

p < .001

–.48

(25.21)

(8.40)

38.30

24.23

–5.52

p < .001

–.49

Sit-stand

Mean (SD)

62

(30.69)

(9.37)

Table 3. Correlations between changes in outcome measures and change in pain-related disability

Measures

n

Change in Pain-Related Disability (QUE)

Change in pain self-efficacy (PSEQ)

65

–.53***

Change in fear of movement (TSK)

64

.48***

Change in depression (Zung)

65

.43***

Change in pain intensity (SF-MPQ)

62

.35**

Change in pain catastrophizing (PCS)

64

.41*

Change in McGill affective (SF-MPQ)

64

.20

Change in McGill sensory (SF-MPQ)

64

.19

Note: * p < .05; ** p < .01; *** p <.001

Table 4. Regression analysis predicting change in disability following the CBT-PMP (n = 62)

Outcome Measures

Change in Disability (QUE) Δ R²

Step 1

β

.11*

Baseline disability (QUE) Step 2: Change in pain intensity (SF-MPQ) Step 3: Change in pain self-efficacy (PSEQ) Change in depression (Zung) Total R²

–.32* .11** .33** .21*** –.33** .28* .42***

Note: * p < .05; ** p <.01; *** p <.001

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Discussion The aim of this study was to evaluate patients’ responses to the Blackpool Pain Management Service’s CBT-PMP, and to test whether pre to post-treatment changes in pain self-efficacy and depression were significantly associated with change in painrelated disability. Based on previous studies, it was predicted that patients would experience significant improvements in mood, pain, pain-related beliefs (pain selfefficacy, fear of movement and pain catastrophizing), pain-related disability and physical functioning (walking 20 metres and sit-stand), and that changes in pain selfefficacy and depression would be strongly associated with change in disability. The results of this study demonstrated that patients experienced significant improvements (small to large effect sizes) in their pain (SF-MPQ pain intensity), pain experience (SF-MPQ sensory and affective), mood (Zung), pain-related beliefs (PCS, PSEQ and TSK), pain-related disability (QUE) and physical functioning (20-MWT and sit-stand). Overall, these findings are consistent with previous studies that have evaluated the effectiveness of CBT-PMPs for managing chronic pain.13–17 However, Norrbrink Budh et al,13 Woby et al14 and Fedoroff et al17 differed slightly, as they reported no significant change in pain intensity following their pain programmes. This is not an unusual finding; few studies identify any significant change in pain intensity, and studies that do often only find small effects.17 This may be because the main focus of a pain management programme is to support patients to self-manage their pain rather than to eliminate it.13 Patients attending the CBT-PMP in this study were offered a pain medication review as part of the programme, which differs from Norrbrink Budh et al,13 Woby et al14 and Fedoroff et al,17 and may explain why a moderate effect size was observed rather than a small effect. It is important to note at this stage that some degree of caution should be taken when interpreting our findings in comparison to other studies, as our evaluation included patients with a wide range of pain diagnoses, and our programme content and duration may also differ from other studies. The results of the regression analysis demonstrated that pain-related disability at baseline significantly predicted change in pain-related disability, explaining 11% of the variance. This suggests that patients who experience higher levels of disability at baseline may experience greater reductions in pain-related disability following the CBT-PMP than patients with lower levels at baseline. When change in pain intensity was added to the model, it significantly explained a further 11% of the variance. This suggests that as pain levels improve, pain-related disability reduces. After controlling for baseline disability and changes in pain intensity, pain self-efficacy and depression were added to the model and were identified as significant predictors of change in pain-related disability, explaining a further 21% of the total explained variance. This suggests that changes in pain self-efficacy and depression levels are strongly associated with change in pain-related disability, and may play an important role in reducing pain-related disability.18, 19 This study also supports the findings of Foster and colleagues, who found changes in pain self-efficacy and depression to be significantly associated with change in disability. 23 This study has a number of limitations. The patient sample who volunteered for their data to be used in this study were diagnosed with a range of chronic pain problems and therefore may differ from chronic pain patients taking part in other studies. Only 17% of the patient sample were male, and so the results may be limited in their generalizability. The predictors for the multiple regression were purposefully chosen based on previous research, and predictors such as pain catastrophizing and fear of movement were not considered based on the variance that they share with depression and pain self-efficacy. Furthermore, the final regression model was limited in scope 104

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due to the sample size; variables that were not considered may also predict change in pain-related disability. This study did not include a comparison group and therefore no inferences can be made of actual treatment effects. The main strengths of this study were the respectable sample size for pre and posttreatment analysis, which reflects the chronic pain patients who attend the Blackpool Pain Management Service. A further strength of this study was the use of an extensive range of outcome measures.

Summary In summary, this study has shown that, overall, patients who took part in the Blackpool Pain Management Service’s CBT-PMP experienced significant improvements in their pain levels, mood, pain-related beliefs, disability and physical functioning. Furthermore, multiple regression analysis demonstrated that changes in pain self-efficacy and depression significantly predicted change in pain-related disability. These findings add further support to the evidence that changes in pain self-efficacy and depression are strongly associated with change in pain-related disability. Acknowledgements

The authors would like to thank all the team at the Blackpool Pain Management Service for their hard work in running the Pain Management Programme over the years and for allowing the time for this evaluation to be undertaken.

Conflict of interest disclosures We declare that we have no conflict of interest. Disclaimers and conflict of interest policies are found at: http://bit.ly/1wqiOcl

Article submission and acceptance Date of Receipt: 09.12.2014

Date of Acceptance: 18.01.2015

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Contacts/correspondence Lloyd Gemson, Pain Management Service, Blackpool Teaching Hospitals NHS Foundation Trust, Whitegate Health Centre, Whitegate Drive, Blackpool, FY3 9ES, UK. E-mail: Lloyd.Gemson@bfwhospitals.nhs.uk

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Joopm Vol 1 Ed 4 (2014)  

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https://issuu.com/munglani/docs/joopm_vol1ed_5_2016 This Journal has been created in recognition of the fact that not all information or...