The subject matter of this article makes it a difficult one to write. I am, of course, a lawyer and not a doctor, but it is in the context of my ‘day job’ representing people suffering Complex Regional Pain Syndrome (CRPS) and other chronic pain conditions that the issue of life expectancy often arises. Let me explain.
A person who develops chronic pain as a result of an accident often ends up in litigation. In a number of earlier articles I have considered the atypical characteristics of claims involving chronic pain, particularly in terms of maintaining credibility.
However, it is in the context of calculating future financial loss that life expectancy increasingly rears its head.
Compensating party’s arguments
As you might expect, the compensating party will advance any and all arguments that may have the effect of reducing the amount of damages to be paid. Clearly, if a particular item of future financial loss is claimed for the whole of the claimant’s life, for example a claim for care, then the possibility of advancing a credible argument that the claimant’s life expectancy is reduced is going to be attractive to the compensating party.
Increasingly, we are seeing just that. This is an extract from a document served on us by the compensating party in a claim that has now settled:
“It is obvious that if the Claimant’s complaints were to persist, with limited mobility combined with continued weight gain, her life expectancy does not fall within the ‘normal’ range. For a variety of physical and psychological reasons, chronic pain in itself likely has an effect on life expectancy.”
This is a particularly harsh statement when you consider that the chronic pain and therefore the reduction in life expectancy at the centre of their argument have been caused by them!
CRPS and other chronic pain conditions are not usually considered fatal, so what is the compensating party getting at? There are usually three arguments advanced as to how chronic pain can shorten life.
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The first argument is the one expressly referred to in the quote above: “limited mobility combined with continued weight gain”. The claim in which this document was served involved CRPS in a lower limb. As a result of her condition, our client had gone from being a young, fit and active woman to being effectively housebound. She had put on weight, not just as a result of inactivity, but also because of what she herself described as “comfort eating” – perhaps not surprising given her continued pain and resultant limited outlook.
The commonly quoted statistics are that in those with a Body Mass Index (BMI) of 30 to 35, their average life expectancy is reduced by 3 years. In those with a BMI of 40 to 50, that rises to a reduction of 10 years; very similar to a lifelong smoker.
The second argument is far more controversial, particularly in the UK. That is that the chronic pain condition itself will directly shorten life. For example, in CRPS, the spread of the condition to affect the internal organs and even the immune system can, it is often argued, eventually prove fatal.
As I have discussed in earlier articles, despite what seems to be considerable evidence to the contrary, the medical profession in the UK has proved less willing than in some other countries to accept the spread of CRPS beyond the extremities.
The third argument is the most emotive; referred to in the quote above using the somewhat cryptic term “psychological reasons”.
Chronic pain, typically therapy resistant, often results in a downward spiral of anxiety, depression, despair and hopelessness. Many people suffering chronic pain admit to at least thinking about taking their own life, even if they have not attempted suicide.
There have been a number of studies published that support a higher incidence of suicide among those with ready access to medication. It is often argued that, surrounded by a cocktail of opioids and other potentially lethal drugs, people suffering chronic pain not only have the motivation, but also the ready means to take their own life.
How should these arguments be dealt with?
These arguments can be addressed, but the lawyer must be equipped to deal with them. The approach is through a combination of expert evidence and practical steps, but will very much depend upon the claimant’s actual circumstances.
Returning briefly to the case from which the earlier quote was taken, it was reassuring that on that occasion, an application to the court by the compensating party for permission to explore further the issue of life expectancy was dismissed by the judge.