You Know It Hurts: Proving the Existence of Pain in Court

#AskMichaelBlois

Recovering damages from a negligent party is a two-stage battle. First, your lawyer must present evidence proving the other party was negligent and the negligence caused you to suffer an injury. The second stage is proving the existence of your injuries. Proving the existence of a broken bone or a laceration and scarring are relatively easy compared to the task a lawyer has of proving the existence of chronic pain.

Broken bones and scars can be seen in court. Even after a fracture has healed, there are X-rays a lawyer can present to show a judge or jurors as evidence to support the victim’s claim. Proving the existence of chronic pain presents more of a challenge. As one expert put it, understanding chronic pain is made difficult by the existence of “a layer of brain-generated complexity.”

Absence of physical evidence can complicate a case

Chronic pain cannot be measured using objective testing as is the case with other types of injuries. Nerve damage, for instance, can be proven through the results of an electromyogram or EMG that measures electrical activity, but a similar objective measure of pain is not available to a trial lawyer.

Under the no-fault regulations contained in the Ontario Insurance Act, suing to collect damages for injuries suffered in a motor vehicle accident may require proof of injuries that cause permanent, serious impairment. Chronic pain might cause such a condition, but being unable to prove its existence in a courtroom can defeat an otherwise legitimate claim. This is where a lawyer must become creative and resourceful to develop a strategy to prove pain.

Methods for proving chronic pain in court

In the absence of objective testing to prove the existence of pain, there are a few methods available to lawyers in personal injury cases, including:

• Detailed medical records: Offering into evidence your medical records for the entire period during which you claim to have experienced chronic pain. Included in the records should be the treatments prescribed by your doctors and notations recounting your efforts to follow those treatment recommendations.
• Diaries: Begin keeping a diary of your pain each day beginning with the first day you experience pain and continuing up to the date of the trial. Your diary should include daily entries of the severity of the pain, treatment or medications used each day, limitations experienced on physical activities and other notations related to the pain you are experiencing.
• Testimony of others: People with whom you live or work can testify about the effects of your chronic pain they have observed over time. Other witnesses could include people with whom you worked or came in contact with on a regular basis before your injury who can testify about activities they observed you engaging in for comparison to testimony from witnesses about your current limitations.
• Use of medical experts: Depending upon the type of accident and injury, medical expert witnesses might be able to offer a link between the type of accident and injury and your claims of pain. The doctor who treated you following the onset of your injury might offer valuable testimony particularly if you had a long-term relationship with the doctor that predated your injury.

Until science develops a method for measuring pain using an objective test, complaints of pain will continue to be subjective and require skilled trial lawyers capable of developing strategies for proving its existence based upon the facts of each case.

Seasoned and skilled personal injury lawyers helping prove damages

The personal injury lawyers at Diamond and Diamond have experience handling all types of personal injury cases and proving their client’s damages. Contact our 24/7 injury hotline at 1-800-567-HURT or visit our website to speak to someone now about your right to compensation. Consultations are free, and we have offices conveniently located throughout Ontario.