Legal Practice Points Complex Regional Pain Syndrome (CRPS) A Sensitive topic

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1 Legal Practice Points Complex Regional Pain Syndrome (CRPS) A Sensitive topic Andrew Campbell 1 and Hywel Evans 2 1. Abstract Complex Regional Pain Syndrome recently hit the headlines when a motorcyclist received the biggest ever UK settlement for CRPS million ( 1.9 million on a full liability basis). In this article a firm of Claimants Solicitors address the major issues facing practitioners dealing with these difficult and time-consuming cases. What may at first glance seem an innocuous injury can often give rise to a catastrophic injury claim with life-changing consequences. This article will therefore consider the nature of CRPS and the obstacles lawyers face in attempting to understand and quantify such claims. Keywords Complex Regional Pain Syndrome, CRPS, catastrophic injury claim 2. Introduction Complex Regional Pain Syndrome (CRPS) is a widely misunderstood condition. Lawyers can find themselves in a difficult position in attempting to quantify an injury that is frequently misunderstood by medical practitioners. CRPS has an unpredictable prognosis. The cause of CRPS is unknown. Medical experts often fail to agree on its presentation, diagnosis, cause, treatment, and prognosis. Often, the terms malingerer or exaggeration are used when describing the Claimant. It is sometimes evident that an inappropriate reaction or description is provided by the Claimant but this can often be explained as an unconscious secondary outcome owing to and compounding the CRPS itself, causing a vicious cycle of organic and psychological interplay. Defendants will seek to blame the underlying cause on some psychosomatic illness, if not exaggeration. Claimants will search for the often non-existent organic change to prove the symptoms and injury. Even where breach of duty is admitted, causation usually remains highly contentious. 3. What is CRPS? CRPS is a multifactorial, progressive and often debilitating and painful condition associated with sensory, motor, autonomic, skin and bone abnormalities. It is a chronic pain condition that can affect one limb or, in 7% of cases, more than one limb, often but not necessarily resulting from direct trauma. Despite the cause of CRPS being unknown it is widely considered to result from damage to, or malfunction in, the 1 Solicitor, Bikelawyer Motorcycle Accident Solicitors 2 Solicitor, Bikelawyer Motorcycle Accident Solicitors 71

2 central nervous system (the brain and spinal cord) and peripheral nervous systems (nerve signalling to the rest of the body). The National Institute of Neurological Disorders and Stroke states that in 90% of cases CRPS is triggered by a clear history of trauma or injury.3 This can involve fractures, sprains, soft tissue injuries (such as burns, cuts or bruises), limb immobilisation (such as being in a cast), or surgical or medical procedures. However, there is no relationship between the severity of the trauma and the degree of CRPS experienced. The European incidence rate is 26/100,000 person-years4. CRPS is an abnormal neurological and pain response that magnifies the effects of the injuries. It causes an excruciating (Defendants may say implausible) level of pain, due to what would usually be considered modest stimuli. In order to explain the symptoms in layman terms, Dr Rajesh Munglani, Consultant in Pain Medicine, put it perfectly when addressing the court:5 If one takes one s thumb and hits it with a hammer, the thumb will be painful, will swell, become red and hot and one will not want to move it. However, with time, as healing occurs all these symptoms will resolve themselves and the thumb will heal and move again. Unfortunately, in a Complex Regional Pain Syndrome the body does not ever switch off the initial phases of redness, swelling, pain and lack of movement or 3 Types of CRPS? Traditionally CRPS has been sub-divided into 2 types based on the absence (Type 1 much more common) or presence (Type 2) of a lesion to a major nerve.6 In terms of management the distinction has no relevance but it can have importance in medicolegal cases. Recent evidence suggests that even Type 1 may be associated with subclinical neurological change.7 A 3rd diagnostic sub-type called CRPS-NOS (not otherwise specified) is recommended for patients who have abnormalities in fewer than three Budapest symptom categories, or two sign categories, including those who had more documented signs and symptoms in the past, if current signs and symptoms are still felt to be best explained by CRPS.8 5. Diagnosis A justifiable diagnosis of CRPS is incredibly important; not only in the medico-legal context, but also to ensure treatable ailments are not mistakenly labelled as CRPS and left untreated (e.g. Carpal Tunnel syndrome). Hence differential diagnoses must be considered. Unfortunately, diagnosing CRPS can be difficult, not least of all because there is often no organic marker to account for the pain. It is, therefore, sometimes 3 Complex Regional Pain Syndrome Fact sheet from the National Institute of Neurological Disorders and Stroke website 4 The product of the number of years times the number of members of a population who have been affected by a certain condition 5 Connery v. PHS [2011] EWHC 1685 (QB), High Court, claimant with CRPS 6 Complex Regional Pain Syndrome Fact sheet from the National Institute of Neurological Disorders and Stroke website 7 Complex Regional Pain Syndrome Fact sheet from the National Institute of Neurological Disorders and Stroke website 8 Harden R, Bruehl S. Diagnostic criteria: The statistical derivation of the four criterion factors. In: WilsonPR, Stanton-HicksM, HardenRN, eds. CRPS: Current Diagnosis and Therapy. Seattle, WA: IASP Press; 2005:

3 referred to as a diagnosis of exclusion. Further, other causes can be attributable to CRPS. The authors recently acted in a case in which it was agreed the Claimant suffered from CRPS but the RTA was no more than a coincidence, and the underlying cause was more likely to be degeneration around the spine. This is the type of potential differential diagnosis that lawyers need to consider at an early stage before any significant costs are incurred. 6. Budapest Criteria the diagnostic criteria for CRPS 9 A-D must apply Sign is where the medical practitioner can see or feel a problem. Symptom is where the patient reports a problem. A. The patient has continuing pain which is disproportionate to any inciting event B. The patient has at least one sign in two or more of the categories C. The patient reports at least one symptom in three or more of the categories D. No other diagnosis can better explain the signs and symptoms 1. Sensory Allodynia (to light touch and/or temperature sensation and/or deep somatic pressure and/or joint movement) and/or Hyperalgesia (to pinprick) 2. Vasomotor Temperature asymmetry and/or skin colour changes and/or skin colour asymmetry. The medical practitioner must notice a temperature asymmetry of > 1 C 3. Sudomotor/oedema Oedema and/or sweating changes and/or sweating asymmetry 4. Motor/trophic Decreased range of motion and/or motor dysfunction (weakness, tremor, dystonia) and/or trophic changes (hair/nail/skin) 7. The Sceptical Defendant The Defendant s solicitor will often have a psychiatrist examine the Claimant s medical notes and the Claimant, hoping to explain the condition by virtue of unrelated psychiatric presentation and history (i.e. unrelated to the negligent act that is the subject of the claim). A frequently-encountered Defendant argument is that the Claimant is likely to return to his or her pre-accident state after a few sessions of Cognitive Behavioural Therapy (CBT), but only if the litigation has first concluded. Alternatively, it is often argued that the Claimant was pre-disposed to CRPS and would have gone on to develop CRPS in any event, regardless of the negligent act (triggered by any number of ordinary life events). 9 Harden RN, Bruehl S, Stanton-Hicks M et al. Proposed new diagnostic criteria for complex regional pain syndrome. Pain Med 2007,8: See also: Royal College of Physicians, Concise guidance to good practice series,complex regional pain syndrome in adults: concise guidance, Clinical Medicine 2011, Vol 11.(6):

4 A review of recent medical thinking on the subject suggests it is now accepted that CRPS is not associated with a history of preceding psychological problems, or with somatisation or malingering. 10 If a patient presents with such problems, these should be addressed where appropriate, as would be good practice in other medical situations. However, Claimants still report being stigmatised by health professionals who do not believe that their condition is real. If a Claimant s own treating doctor is sceptical about the condition (through a lack of understanding of the condition) one can immediately see the problems facing the Claimant lawyer: convincing the Defendant that CRPS exists, that the Claimant is suffering from it and that it has been caused by the, sometimes seemingly innocuous, event that is being litigated. As in all cases, the choice of expert is imperative. Consideration needs to be given to the expertise of specific experts and whether they have, in fact, ever come across patients with CRPS. Neurologists and Orthopaedic Surgeons will be required to consider differential diagnoses and can sometimes diagnose CRPS. Unfortunately, there are many old school medical experts wheeled out by Defendants who are simply unbelievers. A Consultant in Pain Medicine will therefore be required to comment on the neurology and orthopaedic reports and confirm a diagnosis of CRPS. Quantum and prognosis will come later and can be dealt with in different reports, including in the more severe cases, employment, accommodation and care costs reports. Indeed, prognosis will need to be dealt with sometime later as CRPS differs widely in its presentation and effects from person to person. Experience suggests causation will largely remain in issue until settlement or trial. The Defendant will seek reliance on their own expert evidence, usually from a Psychiatrist, to suggest that, as was historically believed, it is all in one s head. Defendants often attack Claimants credibility and the accusations of malingering and over-exaggerating will be free-flowing. Surveillance evidence will undoubtedly be considered by the Defendant. CRPS cases can be valuable (as shown by our recent six- and seven-figure settlements) and the cost of surveillance is therefore likely to be proportionate. If surveillance evidence is disclosed, requests should be made for unedited evidence and any accompanying statements of truth to verify the footage. Appropriate advice should therefore be given to the Claimant in regard to surveillance and mitigation, and it is not inappropriate tipping off to inform the Claimant that he or she may be the subject of surveillance, particularly on days the Defendant knows the Claimant will be active e.g. the day they attend Defendant medico-legal examinations or known dates for treatment appointments. CRPS incorporates pain, loss of function, association with the emotional limbic system and psychosomatic issues that, whilst not causative, can amplify the problems already experienced. 11 Indeed, findings of observational studies have given credence to arguments in favour of a psychogenic origin of movement disorders in CRPS. 12 It is no wonder that, on occasion, Defendants argue that with CBT or a quick settlement of 10 Complex Regional Pain Syndrome in Adults, Royal College of Physicians, 2012 and The National Institute of Neurological Disorders and Stroke (2013) 11 Bruehl, Verdugo & Ochoa Abnormal movements in complex regional pain syndrome: assessment of their nature Muscle Nerve 2000 Vol 23:

5 litigation, the Claimant s condition will vastly improve. However, clients have often explained to us that the problem they experience with movement is like your brain telling your foot to move but it doesn t listen. That is not to say this is always the case. Psychiatric overlay associated with CRPS can also lead to the perception of increased disability as opposed to an attempt to mislead or exaggerate. 13 The outcome and prognosis of CRPS is even less understood. De Mos et al. (2009) opine that, of those diagnosed with CRPS, around 1/3 will improve, 1/3 will show an undulating response and 1/3 will become worse. This can cause litigation problems if, during assessments or settlement negotiations, the Claimant is going through a long quiescent patch with few problems, yet there is no cure and recurrence is likely. Provisional Damages should therefore always be considered in the event that settlement occurs during a period of few or no symptoms. Whilst there may be no cure, early intervention is still considered vital. At the mere suggestion of Reflex Sympathetic Dystrophy (RSD) or Causalgia (early nomenclatures for CRPS there are many more), Chronic Pain treatment should be put in place. The Claimant lawyer should attempt to agree rehabilitation with the Defendant under the Rehab Code 14 or otherwise at the earliest point. Initial treatment is often in the form of physiotherapy to target movement disorders, medication to treat and combat pain (opiates, antidepressants and neuropathic pain medication) and counselling (CBT). These methods may assist in alleviating some of the pain or at least assisting the Claimant in understanding CRPS and thus attempting to live with it. A diagnosis of sorts may also allay a Claimant s fears that he or she cannot be helped, and may allay their fears that they would otherwise remain vulnerable to suspicions of malingering from lawyers, medics and even family and friends. If initial treatment fails, the alternative options can be costly and incredibly invasive. They range from spinal injections, dorsal column or spinal cord stimulators (requiring a foreign body to be placed in situ, usually directly on the spine to try and alleviate pain) to, in severe cases, amputation (which can also lead to CRPS in the form of phantom limb pain). Claimant solicitors should therefore make the treatment choices and costs clear to Defendants at an early stage, in an attempt to agree rehabilitation at the earliest opportunity for intervention. Otherwise, delays incurred waiting for a determination of liability may mean the Defendant will be required to fund even costlier treatment in the future and, more importantly, the Claimant is likely to face increased pain, suffering and loss of amenity. 8. What can the Claimant lawyer do? The role of the lawyer is not to diagnose CRPS. It is, as always, to work in the best interests of the client and to ensure they are placed (as far as that may be possible) in the position they would have been, but for the injury suffered. Unfortunately, this is even less likely to be possible in cases of CRPS, the consequences of which can be devastating, including wheelchair dependence and significant care requirements. Early intervention is therefore key. The appropriate treating and medico-legal experts need to be in place and must work together for the benefit of the client. A close 13 see Connery V PHS Group Ltd [2011] EWHC 1685 (QB), High Court, claimant with CRPS

6 relationship will be needed with the Defendant to try and agree funding and the best course of action, based on evidence of course, at the earliest point possible. Caution is advised, however, to avoid premature disclosure of medical reports, which may cause a Defendant to make early offers that place the Claimant at risk of undersettling the claim, at a time when the full extent of the injury is not fully understood. Unfortunately, understanding the full extent of the injury is not always possible in CRPS cases. Approaches ought to be made to experts and, in the event that medical reports need to be disclosed to agree funding, a date can be set for an appointment and receipt of initial, often draft, reports, so that any offer can be considered and advised upon correctly. It should also be borne in mind that any assessment reports relied upon under the Rehabilitation Code cannot be relied upon in subsequent litigation unless both parties consent. 15 As may be clear from the above discussion, CRPS cases are inherently difficult. They usually take years, due to the progressive nature of the symptoms and disorder. A degree of hand-holding will be required but it will need to be accompanied by firm guidance and realistic advice, to ensure there are no unattainable expectations. These cases will be a long process. Sometimes the outcome and prognosis will remain unclear, and will be difficult for the client to accept. As the lawyer, you will be the lynchpin in the attempt to procure the best achievable outcome for the client. Compensation will undoubtedly be a focus, but may often not be the Claimant s principle objective. Many Claimants also desire an unrealistic level of recovery, which in turn, only adds to the psychological trauma suffered. Hence like their disorder, the Claimant frequently requires careful and sensitive handling. Conflict of interest disclosures Disclaimers and conflict of interest policies are found at: Article submission and acceptance Date of Receipt: Date of Acceptance: Contact Andrew Campbell and Hywel Evans, Bikelawyer Motorcycle Accident Solicitors. andrew@bikelawyer.co.uk Tel References Bruehl, S.: Do Psychological Factors Play a Role in the Onset and Maintenance of CRPS-1. CRPS Current Diagnosis and Therapy, Progress in Pain Research and Management, Vol 22, Pages Complex Regional Pain Syndrome in Adults, Royal College of Physicians, 2012 de Mos, M. et al: Outcome of the Complex Regional Pain Syndrome. Clinical Journal of Pain 2009, vol 25. Pages The National Institute of Neurological Disorders and Stroke (2013) Verdugo & Ochoa: Abnormal Movements in CRPS: Assessment of their Nature. Muscle Nerve, Vol. 23 pages Rehab Code, paragraphs 6.2 to 6.4 of the 2007 Code 76

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