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Study gives guidance to judges, lawyers on brain scans for pain-related claims

A new study may help address legal issues about chronic pain, which affects 35 percent of the population and can lead to lost wages and high medical costs. A task force from the International Association for the Study of Pain gives guidance to judges and lawyers about how braining imaging can be used in cases with claims about pain and pain-related disability.

University of Maryland Francis King Carey School of Law professor Amanda Pustilnik chaired the law and ethics section of the task force.

“In opening a window into how the brain generates subjective experiences, neuroimaging should lead to doctrinal and practice-based revisions that increase law’s accuracy and fairness,” Pustilnik said in a statement about the study, which was released last week. “So doing brain imaging should change the law’s mind about the nature of pain and may require the law to rethink its dualism between body and mind.”

Some scholars argue that the use of brain imaging in legal matters is akin to when DNA testing was introduced decades ago. But there is still controversy over reliability of brain scans to measure chronic, rather than acute pain.

Claims related to chronic pain are common in many insurance and health law cases. The task force found using brain imaging to diagnose chronic pain is still in early stages but proposed standards of evidence that must be satisfied to use brain imaging for legal purposes. Admissibility of that evidence also depends on the jurisdiction. As a result, the task force recommended in its consensus statement that brain imaging can be used to better understand how underlying pain works but is not necessarily a “pain lie detector,” or a way to support or dispute claims about chronic pain.

The consensus statement is a culmination of work that began at the University of Maryland. Pustilnik and David Seminowicz, a professor at the University of Maryland School of Dentistry Department of Neural and Pain Sciences, convened a meeting in 2014 of brain imaging researchers, legal scholars and judges to determine whether brain imaging could be used in legal claims about pain. There was a second meeting at Harvard Law School in 2015.

Those meetings led to the the International Association for the Study of Pain to form the task force.

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