Some say a paper cut is the most painful thing in the world. Others would vouch for bullet wounds. Many men moan that a swift kick in the pants trumps it all. Who’s right? No one. Pain is notoriously difficult to assess because many factors play a part in the overall sensation. But that hasn’t stopped us from trying to understand its secrets with new technology.

Functional magnetic resonance imaging (fMRI) allows us to peep inside a brain in action to see what processes and pathways light up during sensation. Pain-specific work with fMRI technology inches closer to a possible objective assessment of pain by carefully studying what happens in the brain during a painful event. This possible objective assessment of pain offers more than just proof that you’re in more pain than your friend with a paper cut. It could change the way we prescribe medications and alter the way we practice law–especially in personal injury cases.

To win a personal injury case, victims must prove that their injury resulted in damages like pain and suffering. You can easily find evidence to support that you’re in pain, but try to apply a price tag and it gets tricky. How do you put a value on pain if you can’t know exactly what the person feels other than what they say? Enter the fMRI pain scan, which provides tangible evidence of a victim’s pain and suffering.

The technology’s critics argue that we have too much to learn about fMRI pain scans before we allow them in court as a valid measure of pain. Proponents wonder if the sophisticated new technology could usurp otherwise primitive methods of assessing pain.

Here’s what you need to know about the intersection of pain, brain, and law to decide your stance.

Pain and the Brain

Pain blinds some people, sending them to bed at the first flutterings of a headache. Yet professional athletes and exercise fanatics actually find it manageable, and even exciting. Some can even meditate their way to a weakened perception of pain. Individual differences like these make pain assessment a jungle, especially when you’re shooting for precision worthy of the courtroom.

Despite these differences, researchers hope we might be able to measure pain more precisely because all human pain begins with a universal neurological process.

Say you’re stung by a bee. The moment that stinger pops through your skin, nerve cells called nociceptors send alert signals racing through your spinal cord and up to your brain. The brain then decides how to react to the alert signals. It activates your motor pathways so you automatically swat the bee away and releases endorphins and other chemicals to help you regulate and reduce the pain you feel. The same process happens in everyone, but the specific competence of your own personal brain circuits and systems determines exactly how you experience the pain. That’s why your friend can brush aside the same bee sting that makes you wail.

How do we assess pain now?

As individuals, the way we evaluate our own pain muddies up assessments. When we feel pain, we want to tell everyone how it makes us feel, which is sometimes like…well, you get the picture. We immediately react to pain with guttural and meaningless expletives like “ouch!” and many other choice words. When prompted, we might be able to describe our pain as “dull” or “sharp,” but these methods could benefit from more precision.

The way professionals evaluate our pain isn’t too much better.  A doctor will usually ask you to rank your pain on a scale of one to ten and then point to the emoticon the best represents your state of mind.

If you’re trying to win a personal injury case with nothing but a number five and a half-frowny face to prove your pain and suffering, you might not see the best results. Wouldn’t it be better if they could just plug you into a machine that described your pain in terms of brain waves instead of your unreliable human emotions and descriptors?

That’s why many believe fMRIs hold the key to objective assessment of pain and would lead to more fair court outcomes.

What fMRIs Teach Us About Pain

All roads leading to pain travel the same neural pathways and fMRIs let us watch those pathways in action. There must be something from those processes we can measure.

A few years ago, researchers from multiple universities came one step closer to pain assessment by finding a marker pattern specific to physical pain stable enough for interpretation. Even if someone can’t talk (like a baby), the pattern they discovered would help us understand their pain using brain scans. The marker distinguished physical pain from other aversive events, meaning they can use brain scans to measure the actual pain experienced as a result of stimulus instead of the clouded emotional judgment that comes with it.

The discovery accelerated understanding and interpretation of fMRI brain scans.

Implications in the Law

We’ve just started to explore the intersection of neuroscience with law–aptly named neurolaw–and the treasure trove of evidence to be found in it.

In the Supreme Court decision in Roper v. Simmons, brain scans revealed distinct differences between adult and juvenile brains in briefs submitted to the court. The court eventually ruled against the use of the juvenile death penalty in that case. On the other hand, judges have ruled against fMRI-based lie detection in the 2010 case, U.S. v. Semrau.

Since many personal injury cases settle outside of court, it’s difficult to find a personal injury case using brain scans that has actually been tried in a courtroom. However, in Carl Koch & Tracee Koch vs. Western Emulsions Inc, a truck driver named Carl Koch sued past employer, Western Emulsions, for damages from a melted asphalt-induced wrist burn. A year after the injury, Koch was still in pain.

The case involved a face off between neuroscientists. Koch’s neuroscientist tested him with a method she developed that distinguishes real, chronic pain from imagined pain by hooking him up to the scanner and lightly tapping both of his wrists to see the different fMRI readings produced by each. The neuroscientist in the Western Emulsions corner disputed the evidence produced by the tests, saying that the mere expectation of pain could have produced the same results.

Ultimately, the judge allowed the scan as evidence and the case settled for more than Western Emulsions originally offered. Koch benefited from evidence provided by the brain scan, but many critics echo the dissenting neuroscientist’s concerns about fMRIs in the courtroom.

What are the problems with fMRIs in court?

Cautious critics serve up many reasons why fMRI scans should not yet be allowed in court. Here are some of the top arguments.

Brain Scans Can Sway a Jury

Evidence shows that neuroscientific evidence interferes with a person’s ability to interpret logic. People receive poor arguments with open minds when they’re backed with illogical neurological evidence. It seems that the mere presence of neurological evidence satisfies people into credulity.

Many Lawsuits Deal with Chronic Pain, a More Difficult Study Than Acute Pain

Scientists breeze through the study of acute pain with fMRIs. Acute pain results immediately from a stimulus. If you’re hooked up to a scanning machine and researchers prod you with a hot poker, there’s no doubt about what action causes the pain patterns in the scan. Most people pursuing personal injury lawsuits aren’t hooked up to machines at the time of their accidents. Chronic pain that comes after the accident often mingles with other issues, like depression, which might interfere with neurological scans and make it harder to attribute to one specific cause.

The Technology is New and Untested

Despite numerous discoveries, neuroscientists still disagree on the reliability of pain scans.

Many believe even the expectation of pain or a slight tilt of the head is enough to skew the results of an fMRI pain scan. Even simply blurting out “ow” has an effect on pain. In a National University of Singapore study, researchers had people sink their hands into alarmingly cold water. People who allowed themselves to say “ow” withstood the pain longer than the silent ones. They believe the effort of forming the expletive might be enough to interfere slightly with brain activities dealing with perception of pain and lessen the effect. Fluctuations like this lead people to question the validity of the scans and demand years of tests before admitting them as evidence.

The Scans Can Be Tricked by Your Emotions

In the NPR story above, David Linden, a neuroscientist at Johns Hopkins University, explains that two different brain systems process the feeling of pain. One system looks at pain with nothing but logic, evaluating where the pain came from and if the sensation burns, stabs, or aches. The other, more emotional, system tells us how to feel as a result of the pain. He also explains that emotions can steer your perception of pain. Negative emotions can make pain feel more intense. Torturers have used this fact to their advantage to make their victims’ pain worse by mixing emotions like humiliation in with already excruciating torture methods. This suggests pliability in a person’s reaction that could twist fMRI scan results.

How will we assess pain in the future?

During the nomination hearing for Chief Justice John Roberts in 2005, then-Senator Joe Biden posed a prescient,yet rhetorical, question:

“Can brain scans be used to determine whether a person is inclined toward criminality or violent behavior?”

His question centered on violent behavior, but now we can replace the last phrase with many other possible scenarios. Can brain scans be used to determine how much pain a person feels? As the technology becomes more widespread, more courts will surely face this question. Pain assessments and pain scans have further to go before they become a precise and trusted method, but they’re on the way. It’s exciting and scary to think of the ways our brain activity might be interpreted in another ten years.

Resources

Primary

New England Journal of Medicine: An fMRI-Based Neurologic Signature of Physical Pain

Journal of Cognitive Neuroscience: The Seductive Allure of Neuroscience Explanations

Additional

NPR: Pain Really is All in Your Head and Emotion Controls Intensity

Telegraph: Saying ‘Ow’ Really Can Ease Pain

Slate: Neuroscientists: Mercenaries in the Courtroom

WebMD: MRI Shows People Feel Pain Differently

Wall Street Journal: Doctors’ Challenge: How Real is That Pain?

All Law: Two Ways to Calculate a Pain and Suffering Settlement

Brainfacts: Neurolaw: Neuroscience in the Courtroom

Duke: Proof and Evaluation of Pain and Suffering in Personal Injury Litigation

Nature: Neuroscience in court: The painful Truth

Ashley Bell

Ashley Bell communicates about health and wellness every day as a non-profit Program Manager. She has a Bachelor’s degree in Business and Economics from the College of William and Mary, and loves to investigate what changes in healthy policy and research might mean for the future. Contact Ashley at staff@LawStreetMedia.com.

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