Chronic pain is defined as pain that lasts for over three months. The pain may come and go or it can be there all the time. Chronic pain can occur anywhere in your body.
Chronic pain can feel a lot of different ways. Patients report feeling the following types of pain: aching, shooting, throbbing, burning, stinging, and stiffness. Chronic pain often leads to other symptoms and conditions, including anxiety, depression, fatigue, insomnia, and mood swings.
Pain is usually a symptom, not an illness itself, so your healthcare provider first needs to determine what’s causing your pain. Pain is subjective — only the person experiencing it can identify and describe it — so it can be difficult for providers to determine the cause.
Acute Pain vs. Chronic Pain: Acute pain happens when you get hurt, such as cutting your finger while making dinner or breaking a bone in an accident. It doesn’t last long, and it goes away after your body heals from whatever caused the pain. In contrast, chronic pain continues long after you recover from the cut or the break. Sometimes it even happens for no obvious reason.
What Causes Chronic Pain? Both injury and disease can leave you more sensitive to pain. These changes can stay in place even after you’ve healed from the original injury or disease. It’s possible for two or more causes of pain to overlap. You could have two different diseases, for example. Or you could have something like migraines and psychogenic pain together.
How is chronic pain treated? To relieve chronic pain, healthcare providers first try to identify and treat the cause. But sometimes they can’t find the source. If so, they turn to treating, or managing, the pain. Healthcare providers treat chronic pain in many different ways. The best treatment plans use a variety of strategies, including medications, lifestyle changes and therapies.
Can I Recover Damages for My Pain?
It isn’t possible to sue over pain that arose spontaneously. However, many people suffer from chronic pain after an injury from a car accident. slip and fall, or medical malpractice – all problems caused by someone else.
There are two principal legal theories by which you can recover damages for pain that is somebody’s fault:
- Someone acted negligently
- A company is charged with strict liability
What Is Negligence?
Negligence is a legal theory that allows you to collect damages (money) from someone who was careless and injured you. The standard that determines what counts as negligence is what an ordinary person would have done in the same or a similar situation. There are four elements that must be proven in order to recover in a case of negligence:
- Duty: The defendant must have had a duty to avoid causing an injury to you. For instance, all drivers have the duty to drive carefully enough to avoid causing an accident and harming other people
- Breach of duty: The defendant breached this duty, causing you an injury that resulted in chronic pain
- Cause: The defendant’s action was both an actual and proximate cause of your chronic pain. “Actual” means the action was the real reason for the injury, and “proximate” means that if the defendant hadn’t (for example) caused the car accident, you wouldn’t be having chronic pain. “But for” the defendant’s action or failure to act, you wouldn’t be having pain
- Damages: This means you must have suffered some kind of loss – financial or otherwise (e.g., medical expenses). Proof of pain can be tricky to prove. An expert medical witness may be needed.
Depending on the nature of your injury, you may recover various losses. In general, most persons can recover the following financial costs concerning an injury-caused chronic pain claim:
- Medical costs, such as hospital fees and prescription medication costs
- Lost wages, if the pain caused you to lose work hours (may also include loss of future earnings)
- Damages to cover the fact that you are suffering suffering
- Punitive (punishment) damages if the defendant hurt you intentionally
One special kind of negligence is medical malpractice. Medical malpractice occurs when a doctor, other medical professional, and/or healthcare organization fails to meet the standard duty of care required when managing, diagnosing, or treating a patient, resulting in an injury to that patient.
Some common causes of medical malpractice claims for chronic pain include:
- Improperly diagnosing or failing to diagnose a patient
- Prescribing the wrong treatment or wrong medication
- Prematurely discharging a patient before they have recovered well enough
- Inputting erroneous data into a patient’s medical chart, causing harm to the patient
If you suffer complications because your doctor acted negligently and ordered the wrong medication or treatment, or failed to oversee the treatment program well enough, you may be able to recover damages.
Complications from medical treatments for chronic pain can include:
- Acute liver failure from acetaminophen (Tylenol) treatment
- Opioid addiction and/or overdose
- Mood changes, confusion and respiratory issues from nerve pain medications
- Spinal cord damage or infection from spinal cord stimulators (these are implanted devices that send low levels of electricity into the spine to relieve pain)
Are There Any Defenses to Negligence?
There are a number of defenses to an allegation of negligence. The most obvious is to dispute any of the four required parts of a negligence claim (meaning duty, breach, causation, or damages).
Two related defenses are contributory and comparative negligence. Depending on state law, one or the other will apply, but the general idea is the same. Both defenses ask whether the person injured is partly responsible for the injury they suffered. In contributory negligence jurisdictions, any lack of care by the plaintiff is a total bar to recovery). In a comparative negligence jurisdiction, the injured person can still recover, but the recovery is reduced by how negligent they themselves were.
Assumption of the Risk is a defense that is essentially saying the injured person knew they were doing something inherently dangerous and chose to do it anyway. If this defense is successful, then the defending party will not have to pay for damages. For example, playing football is an activity that could result in a serious injury, and a defendant could argue that the plaintiff knew of the risk and so should not recover damages.
Strict Liability
Another theory by which you could recover for chronic pain is “strict liability.” In the eyes of the law, a product manufacturer has set themselves up to create and sell a product that users should be able to trust without worrying about being injured. A product manufacturer who betrays that trust and creates a dangerous product, even unintentionally, can sometimes be held liable for any injuries that result.
An example could be if a company makes football shoulder pads that break in half the first time they are hit in a game; the company could be held strictly liable for any shoulder injuries that occur.
In order to win a strict liability lawsuit, the plaintiff must show the following:
- The plaintiff must show proof of injury
- The plaintiff must prove that the defendant’s actions or product caused the injury
- The plaintiff must show that the defendant’s product was unreasonably hazardous or dangerous
What Type of Evidence Do I Need to File a Chronic Pain Lawsuit?
If you have suffered an injury, take these steps to collect evidence to satisfy a claim:
- Record all important information related to the injury or accident: the date when the pain started, the circumstances that gave rise to the pain, who was involved, etc. Be sure to include how the pain has affected your life, and what causes it to feel better or worse
- If there were witnesses, interview them. Witnesses’ memories will fade over time, so it’s best to collect information as soon as possible
- Be sure to keep photocopies of all medical documents related to the injury
- Keep track of all expenses you incur related to the pain or injury
Do I Need a Lawyer If I Have Chronic Pain?
Suing over chronic pain and injury can be an expensive and complex problem. A local personal injury lawyer can help you analyze and pursue your case.
Your lawyer will help you evaluate the strength of your case, help with negotiations with the other party, help you gather evidence, and speak on your behalf in court.
