Sometimes overcoming the established prejudice of defense doctors, attorneys and insurance companies against the so-called malingerer presents itself as the most difficult part of pre-trial negotiations. Potential pre-trial settlements can easily be de-railed by defense usage of terms such as ‘secondary gain’ and ‘psychogenic’ in discussing diagnosis, prognosis and residuals.
Questioning a plaintiff’s credibility whilst making accusations of malingering may be seen as the ‘best defense’ in cases where damages are based on pain and suffering. This is especially so in cases where a client is suffering from extreme pain, seemingly out of proportion to the initial injury and/or damages suffered in an accident.
Fortunately for injured parties throughout the world, the medical community has made tremendous progress in understanding the complex manner in which the human nervous system functions and reacts to trauma. Often the chronic pain described by clients will carry a diagnosis of Complex Regional Pain Syndrome (CRPS) , also referred to as Regional Pain Syndrome (RPS).
Many patients who develop RSD / CRPS as the result of an injury do so in the context of legal liability. Some patients can be expected to defend their rights in courts of law. It is not uncommon for the defendant to accuse the patient of faking their condition, especially if there are no objective findings for RSD / CRPS documented on the medical record.
RSD / CRPS can be described in terms of an injury to a nerve or soft tissue (e.g. broken bone) that does not follow the normal healing path. Development of RSD / CRPS does not appear to depend on the magnitude of the injury. It is not unusual for the injury to be so slight that the patient may not recall ever having received an injury. For reasons not yet fully understood, the sympathetic nervous system seems to assume an abnormal function after an injury. If undiagnosed and untreated, RSD / CRPS can spread to all extremities, making the rehabilitation process a much more difficult one. If untreated, RSD / CRPS can become extremely expensive due to permanent deformities and chronic pain. The potential exists for long-term financial consequences. At an advanced state of the illness, patients may have significant psychosocial and psychiatric problems, which may include a dependency on narcotics prescribed to alleviate pain. Patients may become completely incapacitated by the disease. The treatment of patients with advanced RSD is a challenging and time-consuming task.
Legal arguments based on the most recent medical information available with regard to pain disorders may provide early economic relief to a client, and may, in fact, actually contribute to a client’s eventual recovering as the stress associated with litigation is resolved.