It is always disturbing to an ethical lawyer to think that a client may be “faking” their pain complaints.  No lawyer worth their salt would take on or continue to represent a client that was “faking” their injuries.  Handling lawsuits can be expensive, and is certainly time consuming, and any competent injury lawyer would reject out of hand helping a client that is faking. 

     But what is equally disturbing is when a client gets injured in an accident, and the defense or the insurance company take the position that the injured person is “faking” all or some part of their injury, or is “malingering” (intentionally not getting better) or is motivated by a concept called “secondary gain” (continuing to be “hurt” because you have a lawsuit or claim pending, but will get “better” once it settles or concludes).   This type of tactic happens far more than the average person would imagine, and is quite disturbing to a client when they are told that is the position the defense is taking. 

     While it is certainly possible that some people fake pain complaints for whatever reason, let’s start with the basic premise that an ethical and competent injury lawyer has no time or motivation to help that sort of an individual.  That being the case, how does the defense lawyer or insurance company get away with doing that?  The simple answer is that if the defense cannot contest the fact that they are at fault, the only thing left for them to do is to contest the nature and extent of the injury.  And they do it through a variety of mechanisms including jaded arguments to the jury, reliance on paid experts to give that opinion, etc.   Defense lawyers routinely tell jurors that if the plaintiff was truly injured, that they would not miss doctor appointments, or wouldn’t have gone back to work, or resume other activities.  They also argue that real injured people go to medical doctors, not to a chiropractor or  any  type of faith based healer or alternative medicine.  I believe these are  cruel arguments  rooted in cynicism and malice.  Should an injured person be penalized because they waited two or three days before they went to the emergency room or doctor when all they were really hoping is that the pain would go away, and when it didn’t realized they should go see a doctor?  Should you be penalized because you went to work in pain so that you could earn the money to take care of your family?  Should an insurance company that fails to accept responsibility early on and begin advancing payments be allowed at a later date to argue that you should have stayed off work??  Isn’t it the height of audacity for a defense lawyer or insurance company to suggest or argue what type of medical care you should receive?  What business is it of theirs to interfere with your RIGHT to go to whatever health professional you trust and have faith in? 

     Defense lawyers also hire expert witnesses to review your medical records or to examine you, only to draw conclusions about your injury that are different from what your own doctor concludes.   The experts they hire to examine you often administer some type of “Fake Bad Scale” questions that supposedly BASED UPON YOUR ANSWERS ALONE, allow them to  conclude whether you are “faking” your injury or not. 

     Pain has many definitions, but in its most simple form is a sensation or feeling of distress or discomfort.  Pain is usually the result of some type of stimulation to a nerve ending.  Think of the pain you feel if you hit your finger with a hammer, or when the dentist “hits a nerve.”  That is pain from nerve stimulation.  But pain can also result from other things in the body as well.  Some pain is “musculo-skeletal pain.”  That pain comes from overuse or overexertion of certain muscles.  That can be pain that you feel the day after raking all the leaves, or lifting weights.  That can also be called delayed onset pain.  Similarly, if you twist too sharply, or overextend your legs or posture, you can “pull a muscle” which clearly causes pain. Pain can also originate from some type of brain activity that is sensing pain that lacks a corresponding “injury” so to speak.  That type of pain or discomfort is what accounts for claims of “phantom limb” pain some people feel after losing an arm or leg for example.  It is thought that the brain continuously remembers the trauma that caused the amputation and replays that pain memory over and over.  That is similar to what people believe is the source of discomfort for those with tinnitus or “ringing” in the ear, which is really the brain sensing sound where there is none.  Another type of “pain” is the loss we feel when a loved one is killed or passes away.  That type of pain is emotionally based in grief and feelings of loss and despair.

     The point about “pain” is that it cannot actually be seen, only felt or experienced.  Pain is also unique to the person that suffers from it.  In other words, a “pain” that may not bother one person can be a source of immeasurable discomfort to someone else who has  a different pain tolerance. 

     The purpose of this discussion is to reassure those that are experiencing “pain” that it is real even though it can’t be seen on an x-ray.  The fact is that the human body has nerves all over the place.  Thus, an injury to a certain part of the body, such as your back, can certainly stimulate nerves in that area causing pain.  If you are experiencing pain, seek out competent medical help if you feel it is necessary.  If you can tolerate the pain, that is a different thing.

     In lawsuits and claims, pain is a hotly debated topic.  Your injury lawyer uses every imaginable method to prove to the jury the pain  you are feeling is real, it is there.  On the other hand, the defense lawyer argues that if you had pain in the accident, it should be gone by now, etc.  So, if you do get in an accident, the way you talk about your pain becomes very important.  From the first moment you go to the emergency room, they are writing down what is bothering you.  If you only complain of neck pain in the E.R., and then two weeks later when you see your doctor you tell him your lower back hurts, but your neck is fine, that will be fertile ground for the defense lawyer to attack your claim.  So, be consistent about what pain you are feeling.  In other words, if you felt neck pain the first day, and that is what is bothering you at your second doctors visit, make sure you call it neck pain again.  If you later develop lower back complaints, remember to tell your doctor that although your neck  was what you were most concerned about earlier, now your back is bothering you too.  If you are being treated by a caring medical provider, and a lawyer that has the tools to show the jury your pain, you are in good hands.  If during your case your lawyer tells you that the defense has hired an “expert”, don’t fret.  Be honest and trust your lawyer to do the job he or she was hired to do. Remeber, if the defense is challenging your pain complaint, it is only because if they don’t, the jury is only left with what your lawyer tells them about your pain in addition to your own testimony of how you felt or feel.   If your lawyer can’t do the job you hired them to do, fire them and hire one that will.  A good injury lawyer knows his client is in pain and has the arguments and skills to get that point across to the jury. 

     Remember, pain is real.  Just ask someone with a headache!  Good luck!