Scanning For Ethics

Study questions ethics of using brain scans in chronic pain cases

Because disability cases in the U.S. legal system represent so much money at stake, it seems to make sense that complex brain imaging technology capable of verifying or disproving claims involving chronic pain would make an appealing evidentiary tool. But according to a study released Sept. 8 by the International Association for the Study of Pain, brain imaging in such cases may come with too high of an ethical cost to justify widespread reliance on the technology yet.

Amanda Pustilnik, a professor at the University of Maryland Carey School of Law who chaired the law and ethics part of the task force that led the study, said she sees brain imaging having direct legal gravity in cases of chronic pain because claims of chronic pain disorders are one of the most common reasons for people to seek legal recourse and enter the disability system, and as a result billions of dollars are at stake. According to the study, chronic pain can affect up to 35 percent of the population. She said one of the most signifi cant considerations around using brain imaging, such as functional MRI and PET technology, in chronic pain cases is the lack of standardization for complex technology.

“For too long, law has communicated to people with chronic pain disorders that they are either suffering from an emotional problem or that they’re faking,” she said. “And that struck me as deeply wrong, and so I wanted to bring some of this new science into the legal area. … The ideal place to wind up in, I think, would be a more accurate description of what chronic pain disorders are and what they look like.” She said a clear model would help legal decision-makers separate true claims of chronic pain from false ones.

Pustilnik compared the evolving knowledge of chronic pain to that of post-concussion syndrome in football players, which was formerly thought of as a psychological disorder, to an understanding of the neurological damage it can inflict.

To read this story and other complete articles featured in the October 2, 2017 print edition of Law Week Colorado, copies are available for purchase online.