Legal Evidence of Subjective States: A Brain-Based Model of Chronic Pain Increases Accuracy and Fairness in Law

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Abstract

Advances in structural and functional neuroimaging offer new ways to conceptualize chronic pain disorders and to prevent, diagnose, and treat chronic pain. Advances in pain science, though, do not entail changes in the concepts of chronic pain in law and culture. Authoritative legal and cultural conceptions of chronic pain continue to promote abstruse theories, characterizing these disorders as arising out of everything from a person’s unmet need for love to resistance to “patriarchy.” These constructs have consequences, impeding treatment and affecting whether individuals with chronic pain can obtain legal redress. Legal systems themselves are disadvantaged, as adjudicators struggle to make sense of regulations and presumptions at odds with the medical evidence that they must evaluate. Law’s pain schema is so misdescriptive that, paradoxically, it can reward fraudulent claims and disadvantage legitimate ones. This review discusses advances in neuroimaging and related sciences that are contributing to an emerging neurological model of chronic pain. It then describes doctrines and cases in the United States and United Kingdom, demonstrating how law’s pre-neurological model of pain complicates the legal process for all participants. It concludes with suggestions for doctrinal revisions, which may have broader effects on law’s long-standing dualistic conception of body versus mind.

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