Andrew Campbell and Hywel Evans consider the circumstances in which injuries first considered as innocuous can turn into a catastrophic injury claim.
Complex regional pain syndrome (CRPS) is a widely misunderstood condition. Lawyers can find themselves in a difficult position when 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 diagnosis, cause, treatment, prognosis and presentation. Often, the terms ‘malingerer’ or ‘exaggerator’ are used to describe 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 liability is admitted, causation remains highly contested.
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 be as a result of damage to, or malfunction of, the 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. 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. 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-years. CRPS is an abnormal neurological and pain response that magnifies the effects of injuries. It causes an excruciating (defendants may say implausible) level of pain as a reaction to what would usually be considered small stimuli.
Dr Rajesh Munglani, consultant in pain medicine, put it perfectly when addressing the court: ‘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.’
Two or three types of CRPS?
Traditionally, CRPS has been sub-divided into two types based on the absence (type 1 – much more common) or presence (type 2) of a lesion to a major nerve. In terms of management the distinction has no relevance but it can be important in medico-legal cases. Recent evidence suggests that even type 1 may be associated with sub-clinical neurological change.
A third diagnostic sub-type called CRPS-NOS (not otherwise specified) is recommended for patients who have abnormalities in fewer than three Budapest symptom categories (see below), 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.
The correct diagnosis of CRPS is incredibly important. Pain in general is misunderstood, and differential diagnoses must be considered to ensure treatable ailments are not incorrectly labelled as CRPS and go untreated (for example, carpal tunnel syndrome). Unfortunately, diagnosing CRPS can be difficult, not least because often there is no organic marker to account for the pain. It is, therefore, sometimes referred to as a ‘diagnosis of exclusion’. Further, other causes can be attributable to CRPS.
We recently acted in a case in which it was agreed the claimant suffered from CRPS, but the road traffic accident was merely a coincidence and the underlying cause was likely degeneration around the spine. This is the sort of thing the lawyer wants to find out at an early stage before high five- or six-figure costs are incurred.
Budapest – the diagnostic criteria for CRPS
(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).
The sceptical defendant
The defendant’s solicitor will often have a psychiatrist go through the claimant’s medical notes and examine the claimant seeking to explain the condition by virtue of unrelated (to the negligent act that is the subject of the claim) psychiatric presentation and history. A frequently encountered argument is that after a few sessions of cognitive behavioural therapy (CBT), the claimant will be back to normal, but only if the suggested treatment takes place after the litigation has ceased.
Alternatively, that the claimant was pre-disposed to CRPS and would in any event have gone on to develop it in absence of the negligent act.
A review of the recent medical thinking on the subject confirms that it is now clear that CRPS is not associated with a history of pain-preceding psychological problems, or with somatization or malingering. If a patient presents with such problems, these should be addressed where appropriate, as would be good practice in other medical situations. 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) impact. 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 diagnosis and can sometimes diagnose CRPS.
There are many ‘old school’ medical experts wheeled out by defendants who are simply unbelievers. A consultant in pain medicine will be required to comment on the neurology and orthopaedic report, 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 that causation will 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 a must for any defendant.
CRPS cases can be valuable (as shown by our recent six- and seven-figure settlements) and the cost of surveillance will likely 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 be given to the claimant with regard to surveillance and mitigation.
CRPS incorporates pain, loss of function, association with the ‘emotional’ limbic system and psychosomatic issues that, while not causative, can amplify the problems already experienced (Bruehl, 2001). Indeed, findings of observational studies have given credence to arguments in favour of a psychogenic origin of movement disorders in CRPS (Verdugo & Ochoa, 2000).
It is no wonder that, on occasion, defendants argue that (with CBT or a quick settlement) 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 that this is always the case. Psychiatric overlay associated with CRPS can lead to the perception of increased disability as opposed to an attempt to mislead or exaggerate (see Connery v PHS Group Ltd  EWHC 1685).
The outcome and prognosis of CRPS is even less understood. De Mos et al. (2009) opine that, of those diagnosed with CRPS, around one-third will improve, one-third will show an undulating response and one-third 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. There is no current cure and recurrence is likely. Provisional damages ought always to be considered in the event that settlement occurs during a period of few or no symptoms.
While there is no cure, early intervention is considered vital. At the mere suggestion of reflex sympathetic dystrophy or causalgia (early nomenclatures for CRPS – there are many more) or chronic pain, treatment should be put in place. The claimant lawyer should attempt to agree rehabilitation with the defendant under the ‘rehab code’ 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, anti-depressants 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. If initial treatment fails, the alternative options are costly and incredibly invasive. They include 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) or, in severe cases, amputation (which can also lead to CRPS in the form of phantom limb pain).
Claimant solicitors should make this clear to defendants at the first opportunity to attempt to agree rehabilitation at the earliest intervention. Otherwise, pending liability, the defendant could face paying for incredibly costly treatment and, most importantly, the claimant will be put through even more excruciating pain.
What the claimant lawyer can 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 put in the position they would have been but for the accident. This will not be possible in cases of CRPS. The consequences of CRPS can be devastating, including wheelchair dependence and significant care requirements. With time, many clients will undoubtedly become worse and no amount of money will compensate them for their injuries.
Early intervention is key. The appropriate treatment and litigation experts need to be in place and must work together for the benefit of the client. A close relationship with the defendant will be needed to try and agree funding and the best course of action, based on evidence, at the earliest point possible. Caution is advised, however, so that evidence is not disclosed too hastily, allowing the defendant to make offers that put the claimant at risk without understanding the full extent of the injuries.
Unfortunately, understanding the full extent of the injuries is not always possible in CRPS cases. Approaches ought to be made to experts and, in the event that evidence needs to be disclosed to agree funding, a date can be set for an appointment and receipt of their initial, often draft, report so that any offer can be considered and advised upon correctly.
CRPS cases are difficult. They usually take years, due to the progressive and sometimes deteriorative nature of the symptoms and disorder. A degree of hand-holding will be required but a firm approach will be needed to ensure there are no unattainable expectations. These cases will be a long process.
Sometimes the outcome and prognosis will not be clear and this will be a difficult concept for the client to fathom. As the lawyer, you will be the catalyst attempting to organise, arrange and bring together the best outcome for the client, whether it is long periods between recurrence, or simply trying to better understand their own condition. Compensation will help, but it will not be claimants’ main objective.
This will often be an unattainable recovery, which just adds to the psychological trauma these cases often present.
Andrew Campbell is a partner and Hywel Evans a solicitor at Bikelawyer Motorcycle Accident Solicitors