In “Considering the lobster“, David Foster Wallace wrote: “Since pain is a totally subjective mental experience, we do not have access to pain except our own“. That happened in 2004. What has changed in our access to pain experiences (ours and of others) since then? Is it still true that we cannot have any kind of access to other people’s pain? In one sense, of course, it is still true: we cannot feel other people’s pain, even if we can empathize with them to some level. But in another sense, there is a claim that brain imaging techniques might offer us an opportunity to access other people’s pain, by making it visible and, to some extent, measurable. Neuroimaging techniques are knocking on the courthouse door, by claiming to be something that could be called a ‘pain-ometer’. One recent case is telling, where in 2008 Professor Sean Mackey, neurologist at Stanford University and Director of Stanford Pain Management Center and Systems Neuroscience and Pain Lab, was asked by defence lawyers in a workers’ compensation case to serve as an expert witness for a man who claimed that chemical burns in the workplace left him with chronic pain. This particular case did not go to trial, as the two sides reached a settlement, but the possibility of legal applications of brain imaging techniques, in particular of fMRI, remains very real.
The assessment of chronic pain is a highly unmet medical need. Chronic pain is also the subject of a large and costly category of legal claims. Yet, with pain cases, the jury always face a doubt: is the claimant faking or malingering? How can we be assured that the claimant is ‘really’ in pain? As most recently, several new neuroimaging technologies -but in particular fMRI- are promising to solve these questions, by rendering pain visible, measurable and, to some degree, verifiable. The results of these advancements have prompted us to think of pain in a different way, i.e. as an altered brain state in which functional connections are modified, with components of degenerative aspects. Does this imply the stronger claim that these technologies allow us to ‘know’, or to literally ‘see’, the pain of others? Is the pain being objectified by these techniques? And if so, what might the law do differently, or do better? Are there sufficient arguments to claim that brain imaging techniques for the measurement of chronic pain are better than existing tools? And can brain imaging techniques pass the criteria for scientific admissibility in court (relatively to the context of pain claims)?
These are some of the questions explored in the paper titled “Can we finally see ‘pain’? Brain imaging techniques and implications for the law” that has just been published on a the Journal of Consciousness Studies. In this paper, that I co-authored with Dott.ssa Barbara Bottalico, currently visiting fellow at the Brooklyn School of Law, and Professor Giovanni Zamboni Gruppioni from the University of Bologna, we describe what chronic pain is and what brain imaging techniques can tell us about it, and how they are reshaping its definition to a ‘neurodegenerative disorder’. We also discuss the opportunities that a ‘pain-ometer’ might offer in the courts, given the very high current number of malingering cases, and the inadequacy of the existing visual-verbal scales.
The paper is part of a special issue entirely devoted to ‘Pain’ which includes many other contributions spanning from philosophy, biology, psychology, neurology, physiology, ethics, and the law and that discuss the nature of pain and pain experience, and the implications of current understandings of pain for policy making. Many thanks to Dr Lisa Bortolotti , Senior Lecturer at the Philosophy Department of the University of Birmingham, and to Andrew Wright, for their outstanding work as the guest editors of this special issue, and for organizing the ‘Graduate workshop on pain‘ at Birmingham University in June 2010, where I had the opportunity to present my work in progress.
While unfortunately I cannot share with you the pdf of the article due to obvious copyright reasons, I can share with you the pdf of the presentation I gave in Birmingham, and of course you can contact me if you have further questions.