Almost eleven years ago in Tucson, Arizona, Carl Koch stood near the back of his tanker truck as it was filled with molten tar. A hose connection broke, and Koch, 36, suffered first- and second-degree burns on the right side of his face, his right ear, and his right arm. His burns healed, but more than a year later, Koch said that he still felt pain in his right arm and was unable to work or even help around the house.

Koch sued his employer, Western Emulsions, claiming that the nerves in his right arm never fully healed and that he now suffered chronic neuropathic pain and Western Emulsions charged that that Koch was faking the injury. Koch’s attorney had to prove that his client was genuinely in pain, but pain is subjective. When it comes to pain, how can you know if a person is lying or telling the truth?

 

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Koch’s chronic pain manager suggested functional magnetic resonance imaging – fMRI brain scanning – which measures activity in the brain by detecting blood flow. When some parts of the brain become active, the blood flow to those brain areas is detectable because the scanner’s powerful magnet tracks blood oxygen levels. Scientists have been trying to pinpoint sites in the brain that become active when pain is experienced.

HOW CAN YOU PROVE YOU’RE IN PAIN?

Chronic pain can linger for months or even years after some injuries, and it’s often debilitating. Five years ago, the Institute of Medicine reported that about 100 million people in the United States are dealing with chronic pain. Juries that believe a personal injury plaintiff is in pain will often grant the entire amount of compensation that the plaintiff seeks. However, with no widely accepted diagnostic tools to measure pain with precision or objectivity, defendants’ attorneys can easily counter-claim that a plaintiff’s alleged pain is phony or exaggerated.

Koch’s attorney contacted Joy Hirsch, who at the time was the director of Columbia University’s fMRI research center, and he arranged for Koch to undergo fMRI brain scanning. Almost two years after being injured, Carl Koch met with Hirsch to have his brain scanned with an fMRI machine while performing simple motor tasks such as squeezing a rubber ball with his right hand – the injured, painful side – and then with his left hand.

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Koch said that at rest, the pain he felt in his right arm rated between 3 and 4 on a scale of 1 to 10. When Koch squeezed the ball with his right hand, his pain rose to a 9.5, and he reported no pain in his left arm. From the brain scan images, Hirsch’s readings were consistent with Koch’s rating of pain intensity when he squeezed the ball with his right hand. The movement of Koch’s right arm caused pain, which resulted in measurable brain activity while the left arm did not generate similar brain activity.

HOW MUCH IS PAIN WORTH?

In personal injury cases, Billions of dollars are at stake – and in some cases, justice itself – every year in the United States. Pain and suffering awards amount to about fifty percent of all personal injury damage awards. Justice demands that all parties involved should do everything possible to make certain that compensation reaches those who deserve it and is denied to those who would abuse the system by feigning or exaggerating the symptoms of pain. Honest plaintiffs may find it difficult to articulate the nature of their pain, and that’s where brain scanning may become genuinely helpful to the victims of personal injury.

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Lawyers for Koch’s employer filed a motion to keep Joy Hirsch from testifying and introducing the fMRI brain scanning results. After Judge Javier Chon-Lopez of the Arizona Superior Court in Pima County denied the motion and allowed Hirsch’s testimony, she actually never had to testify, and Western Emulsions quickly settled the case for $800,000. Hirsch, now a professor at Yale, began receiving requests from personal injury lawyers across the country to perform similar scans on their clients.

Private companies are now quickly becoming involved to offer professional fMRI brain scanning services for legal purposes. Millennium Magnetic Technologies (MMT) is one company that advertises fMRI brain scanning to confirm the presence of pain. Dr. Steven Levy, the firm’s CEO, says that fMRI brain scanning “can also be used to quantify the amount of pain, and this can be helpful in determining what is just compensation based on something objective.”

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Still, some insist that fMRI brain scanning is not necessarily conclusive evidence of pain. Neuroscientist Tor Wager at the University of Colorado at Boulder believes that companies providing brain scans for verifying pain should be held to reliability and accuracy standards, similarly to how DNA labs are held accountable. Wager says more studies are needed to test large groups against control groups rather than basing claims on single cases.

WHERE CAN THE INJURED GET LEGAL HELP?

In the state of New York, damages for pain and suffering can be awarded for any past, present, or verifiable future physical pain that results from a personal injury caused by negligence. Damage awards can vary greatly from case to case, and New York is one of the few states that doesn’t impose a cap or limit on the pain and suffering damages a plaintiff may seek. If you’ve been injured – anywhere in or near New York City – because another person was negligent in a traffic accident or in any other situation, discuss your legal rights and options at once with an experienced Bronx personal injury attorney.

When you are injured, seek medical treatment immediately. Don’t make any statement and don’t sign any admission of fault. Don’t even speak with an insurance company. Let an experienced personal injury attorney do all of the talking and negotiating on your behalf. A good personal injury lawyer will work for an acceptable out-of-court settlement before going to trial, but if you do end up in court, you’ll need the right personal injury lawyer to fight aggressively for every cent of compensation you need and for the justice you deserve.

If you’ve been injured by another person’s negligence in or near New York City, or if you need to discuss your own lingering chronic pain condition with a personal injury lawyer, contact an experienced Bronx personal injury attorney as quickly as possible. Victims of negligence are entitled to compensation and justice in the state of New York, but you must take the first step and make the call.