The Pain Equilibriation Method
Plaintiff lawyers often struggle with determining how to best prove and argue damages during trial. This is especially so when it comes to proof and argument of “physical pain and suffering.” On the other hand, defense lawyers for insurance companies and manufacturers concern themselves with determining the right methodology to use at trial in order to defeat plaintiff’s claims of various types of damages. Advocates on each side are in a constant tug-of-war simply trying to figure out how to enhance or diminish damages during the trial and certainly during summations. One method to consider in your upcoming trials is that of the “pain equilibration” method of proving and arguing damages.
The “pain equilibration” method of proving and arguing damages can be described as follows: It is a method whereby plaintiff’s counsel, through expert testimony, demonstrates the comparative pain of plaintiff “as compared to” similar forms of pain caused by other types of trauma or pain-inducing instances. Pain equilibration is a method utilized to compare pain of various types to a common denominator amount of pain. The common denominator for equilibration is the pain medication used for analgesia pain relief. What you are trying to do is simply provide the judge and jury with a method of understanding a quantification of pain in a description which translates to accepted, common pain types and for which a well-agreed-upon dosage amount of medication is used for analgesia. This method will assist the judge and jury in understanding the level of pain and suffering experienced by the injured person requiring pain relief.
Consider this: If the trial advocate is attempting to show the excruciating pain that her client has endured both before, during, and after a three-level cervical fusion, wouldn’t it be helpful to the jury if the advocate could prove that, for example: The pain Mary has endured during this 24-month period is equal to the pain a woman would endure in going through 91 hours of labor?
SAMPLE EXPERT TESTIMONY OF PHYSIATRIST ON PAIN EQUILIBRATION
Q: What is pain equilibration?
A: Pain equilibration is a way of trying to measure pain or compare pain to known causes of pain.
Q: In this case, have you conducted a pain equilibration assessment with respect to the plaintiff?
A: Yes, I have.
Q: Are you an expert in the field of pain and pain management?
A: Yes, I am.
Q: In dealing with pain and as a part of your work as a physiatrist, are you involved in determining various means and methods of controlling pain in your patients?
A: Yes.
Q: Is at least one of those modalities that of controlling pain through the use of medications?
A: That is correct.
Q: Is the control of pain through medications one form of pain management?
A: Yes, it is indeed one form of pain management.
Q: Is the control of pain through medications a generally-accepted method of pain control within the scientific field of medicine that is your specialty of physiatry?
A: Yes.
Q: In this case, would you explain to us the methodology of your pain equilibration assessment for the plaintiff?
A: I reviewed, assessed, and evaluated the medical records, the hospital records, and my records on plaintiff. I calculated his medications and I reviewed all documents relating to pain medication that was prescribed for him, that was given to him and that he took. Part of my evaluation included reviewing his interrogatory answers and his deposition answers as it pertains to medications. He took many different types of pain medication.
He had intravenous medications through the veins. He had it injected into his muscles intramuscularly. He took medications through the mouth. He has taken many different types of pain medications. The most potent of these pain medications is morphine. He was given morphine sulfate. He was given intramuscular morphine. He has been provided PO morphine which is through the mouth. He has been provided with Peridan. It is a different type of an intravenous pain medication, not as potent as morphine, but it can be converted into the equivalent of morphine.
Q: Please continue.
A: So basically, what I have done is that I have converted all of these medications into a pain equivalency, meaning that the unit for the pain equivalency was the IV morphine amount. So, with the Peridan, which is an IV medication but is not morphine, I converted it into IV morphine, the IM morphine, the intramuscular morphine had been converted into intravenous morphine. It is important to know that the intravenous morphine is three times as potent as the intramuscular morphine, and the intravenous morphine is six times more potent as compared to the morphine that is taken through the mouth. So I am basically converting all of the medications into equivalent amounts of IV morphine.
Using all of these numbers and calculations, I added up all of the narcotic pain medications and the result is 262.5 milligrams of intravenous morphine. This means that all of the medications that he has taken can be converted to 262.5 milligrams of intravenous morphine.
Q: So, doctor, as I understand it, you are saying that you added up all of the different pain medications that plaintiff has taken and you have converted those into a comparative amount of IV morphine?
A: True. That’s right.
Q: Did you then look at any different conditions of pain experience?
A: Yes, I certainly did. For example, chest pain due to heart attack or labor pain, which is very well known, at least to women, have very well-established standard dosages for alleviating those conditions. It takes about 4 milligrams of morphine intravenously to alleviate pain relating to heart attack. It takes 4 milligrams of IV morphine to provide two to four hours of pain relief due to labor pain. Therefore, based on these numbers and calculations, I can and have made the comparison or equilibration in this case that the 262.5 milligrams of IV morphine would have been enough to alleviate pain relating to 65 heart attacks and it would have been enough to alleviate pain for 130-260 hours of labor pain.
Q: When you deal with pain, is pain generally considered to be something that is subjective in the sense that you, as the doctor, do not know if the patient has pain unless he or she is telling you?
A: Yes. It’s a subjective experience. This comparison is trying to make an estimate to show in a standard way the amount of pain medication that is needed to relieve a certain condition.
Q: In your opinion, are the underlying scientific principles relating to this pain equilibration methodology both scientifically and medically reliable?
A: Yes.
Q: In your opinion, is the technique, process, or methodology by which you conducted this particular pain equilibration assessment a reliable technique, process, or methodology?
A: Yes.
Q: Was it necessary for you to use any instrumentation as a part of this process other than a simple calculator?
A: No.
Q: As a part of your pain equilibration assessment, did you adhere to a scientifically appropriate procedure?
A: Yes.
DEFENSE CROSS-EXAMINATION AREAS
If you are defense counsel in a case and the plaintiff is presenting an expert on pain equilibration, the following areas of cross-examination or points need to be considered:
a. The subjective standard by which pain affects different people. In other words, some people have a high pain threshold, while others do not.
b. Lack of support in the literature for pain equilibration method of proving and arguing damages.
c. Compliance with expert witness “gate keeper issues” in your jurisdiction or with landmark supreme court decisions.
CONCLUSION
Always “consider” utilization of the pain equilibration method of proof and argument of damages, especially on those issues relating to “physical” pain and suffering. It is a very creative and innovative technique and one that can assist the trier of fact in determining critical damages issues.
