By David Seminowicz, Principal Investigator, Seminowicz Pain Imaging Lab, Department of Neural and Pain Sciences, University of Maryland

A potential difficulty, but also an opportunity, relating to using neuroimaging evidence in legal cases arises from the difficulty brain researchers have in separating emotional and physical pain. We know that pain and emotion are tightly linked. In fact, “emotion” is in the very definition of pain. The IASP definition of pain is: “An unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage.”  Yet, the legal system deals with “physical” versus “psychiatric” versus “emotional” pain in different ways.

Chronic pain is associated with anxiety, depression, and stress. These factors can exacerbate the pain, and pain can exacerbate them. Pain’s sensory and emotional components connect in a “feed-forward” cycle. It may not be possible to entirely separate the sensory and emotional components of pain, biologically or experientially. But it might be necessary for the purposes of legal cases, as important areas of law create sharp distinctions between physical and emotional, or body and mind.  Continue reading »

By Martha Farah, Director, University of Pennsylvania Center for Neuroscience & Society

Neurolaw includes some fascinating issues that lack any practical legal significance – for example whether we should consider anyone responsible for anything they do, given that all behavior is physically caused by brain processes.  It also includes some legally important issues that lack intellectual juiciness – like regulatory issues surrounding neurotechnology.

Thank goodness there are also some issues that combine intellectual fascination with practical legal importance. The Petrie-Flom Center at Harvard Law School and the Center for Law, Brain & Behavior at Massachusetts General Hospital recently focused on just such an issue when they convened a meeting of neuroscientists and legal scholars on the brain imaging of pain.

Pain, I learned at this meeting, is at the heart of many legal proceedings. A major problem to be solved in these proceedings is the determination of whether someone is truly in pain. Chronic pain in particular may not have physically obvious causes. There may be clinical and circumstantial evidence of pain – like adhering to a medication regime, seeking surgeries or other interventional procedures, and avoiding pleasurable activities – but often the major evidence of pain is just what someone says that it is. However, the motivation exists to lie about pain – to sue for more money, to obtain disability benefits – and so an objective measure of pain, a “pain-o-meter,” would be helpful.

The “pain-o-meter” is a silly term for a serious idea: the idea of using neuroimaging to assess the likelihood that someone is in pain. In principle it seems pretty straightforward: validate and norm the imaging measures (functional and structural), compare the patient’s values on those measures to the norms, and see how pain-like their values are. Alas, in presentations by an eminent line-up of pain neuroscientists, we learned how far away we currently are from having such validation.  Continue reading »

By Karen Davis, Professor of Neuroscience and Canada Research Chair in Brain and Behaviour, University of Toronto

The prevalence of chronic pain is staggering.  The Institute of Medicine reported in 2011 that 100 million Americans suffer from chronic pain – more than those with heart disease, cancer and diabetes combined.  The report also highlights that the annual costs for medical care, lost wages and productivity is more than $600B.  These enormous personal and societal costs of chronic pain has driven an effort to “prove” if and how much pain an individual is suffering from for health care providers, insurance companies and legal actors.  This is challenging because pain is a personal and subjective experience.  Ideally, self report would be sufficient to establish the “ground truth” of the pain experience.

However, some are not able to provide self reports accurately, and the potential financial gain associated with claims of pain has tarnished the perceived authenticity of subjective reports.  This has led some to develop brain imaging-based tests of pain – a so-called “painometer.”  Yet, current technologies are simply not able to determine whether or not someone has chronic pain.  Here, I consider specifically how we could develop a brain-imaging based painometer – and whether we would want to do so.  As we ask: “Can we do it?,” we should always ask, “Is this the right thing to do?”

Continue reading »

By Amanda Pustilnik

This week, the CLBB and the Petrie-Flom Center at Harvard Law School are hosting a series of posts on how brain imaging can help the law address issues of physical and emotional pain. Our contributors are world leaders in their fields, who participated on June 30, 2015, in the CLBB/Petrie-Flom conference Visible Solutions: How Brain Imaging Can Help Law Re-envision Pain.  They addressed questions including:

• Can brain imaging can be a “painometer” to prove pain in legal cases?
• Can neuroimaging help law do better at understanding what pain is?
• How do emotion and pain relate to each other?
• Does brain imaging showing emotional pain prompt us to reconsider law’s mind/body divide?

Professor Irene Tracey, D.Phil., a pioneer in pain neuroimaging and director of the Oxford Centre for Functional Magnetic Resonance Imaging of the Brain, opened the conference with a keynote explaining what happens when the brain is in pain.

Professor Hank T. Greely, Edelman Johnson Professor of Law and Director of the Program in Neuroscience and Society at Stanford Law School, provided a keynote explaining the many implications of brain imaging for the law.

This conference was the culmination of CLBB’s year of work on pain neuroimaging and law. As the first CLBB-Petrie-Flom Center Senior Fellow on Law & Applied Neuroscience, I focused on pain because it is one of the largest social, economic, and legal problems that can be addressed through new insights into the brain. Pain imaging can be a test case for how neuroscience can contribute positively to law and culture.  (Full conference video proceedings are available here.)  Please read on below!

Pain is also a huge cause of suffering in the world, and it would be honorable if law and science working together could reduce that suffering, even just a little. On a human and economic level, pain is the single largest cause of disability globally and in the US. On the legal level, the US and other legal systems are not effective at evaluating physical and emotional pain, identifying its long-term effects, and sorting genuine claims from false ones.

I also am passionate about pain neuroscience on a personal level: After a routine outpatient procedure that went wrong, nearly a decade ago, my sister developed life-changing pain. The injury healed but the pain endured. This very common type of pain is inexplicable under the old model but readily explicable, and treatable, neurologically. Her years of challenge and recovery opened my eyes to the suffering of millions who endure the double burden of pain and of pain’s invisibility, which often leads to it being dismissed. This project is dedicated to her, and to everyone who has had or will have pain – which is all of us.

I hope you will tune in this week for contributions from:

• Karen Davis
• Martha Farah
• Hank Greely
• Diane Hoffmann
• Francis Shen
• Irene Tracey
• Frank Pasquale
• David Seminowicz
• Tor Wager
• … and more

This post is part of the series on pain, brain imaging, and the law sponsored by the MGH Center for Law, Brain & Behavior, the Petrie-Flom Center, and Harvard University’s Mind/Brain/Behavior Initiative. Contributors participated in the conference Visible Solutions: Now Neuroimaging Helps Law Reenvision Pain. For inquiries, please contact the organizer Amanda C. Pustilnik (@apustilnik on Twitter).

Amanda Pustilnik, JD

I am excited to join CLBB as the first Senior Fellow in Law & Applied Neuroscience. This fellowship is the product of an innovative partnership between CLBB and the Petrie-Flom Center of Harvard Law School. This partnership aims to translate developments in neuroscience into legal applications, remaining sensitive to the normative dimensions of many – if not all – legal questions. The field of law & neuroscience is large and growing, addressing questions that intersect with nearly every area of law and a huge range of social and human concerns. CLBB is bringing together scientists, bioethicists, and legal scholars to look at questions ranging from criminal responsibility and addiction, to mind-reading and brain-based lie detection, to how the brain’s changes over our life course affect our capacities to make decisions. Continue reading »