The law of Illinois permits recovery for “disfigurement,” typically meant to refer to scars, but it can also mean any traumatically–caused mark, blemish, or other physical deformity. In a personal injury lawsuit, scars should be worked up as carefully as any other element of damage. Photographic evidence documenting the initial injury and stages of healing; plastic surgeons to testify to feasibility and cost of repair; psychologists to establish the nature and extent of psychological harm.
“Facial scars, regardless of size or percentage of body surface affected, have been linked to higher levels of post-traumatic stress disorder (PTSD) symptoms, in particular, avoidance and emotional numbing (Fukunishi 1999).”
A scar is a surface abnormality. It may not necessarily cause physical pain, but there’s no denying it will cause mental pain. Shame, embarrassment, sadness––despondency, humiliation––a visible scar attracts attention to itself and that’s its most hurtful secret. Others react to it, and we react to their reaction. It does not take much, and it can occur at any time. Just out of reach, akin to cracked crystal, scars remind us how visible, imagistic harm is perhaps the worst, most vexing kind.
“Scars can impede physical functioning; burns create an abundance of inflexible scar tissue and keloids distort appearance and compromise functionality. For example, scars located across joints restrict movement, thus imposing physical limitations with a reduced ability to perform activities of daily living. The reduced functionality can be life-changing, warranting a change in career and retraining. The profound impact on employment can be divided into three aspects: reduced work opportunities, prejudice and interpersonal problems in the workplace, and psychological and financial impact of job loss.”
It’s probably true that for many scars pose as much, if not more, of a problem than chronic pain. This is due in part to their persistent presence––after a certain point, they do not get better––and the tendency of the human mind to dwell on that which cannot be treated, lessened, or erased. Psychologists have a term for this––rumination. “Rumination is the focused attention on the symptoms of one's distress, and on its possible causes and consequences, as opposed to its solutions…The tendency to negatively ruminate is a stable constant over time and serves as a significant risk factor for clinical depression. Not only are habitual ruminators more likely to become depressed, but experimental studies have demonstrated that people who are induced to ruminate experience greater depressed mood. There is also evidence that rumination is linked to general anxiety, post traumatic stress, binge drinking, eating disorders, and self-injurious behavior.”
“The perception of stigma can change one’s identity to that of a devalued individual. Some may argue that this stigma is merely an unconscious bias that does not escalate to actions. However, individuals experience intrusive questions, stares (Connell et al. 2014), and strangers maintaining a greater distance from them (Furr 2014). This continuous hostile reaction and the unwanted attention make the injured acutely aware of their difference, and conditions them to anticipate negative reactions. Those with scars often adopt behaviours of preemptive avoidance or aggression (Chahed et al. 2016), thus fulfilling the villain stereotype.”
Keloid scars, contracture scars, hypertrophic scars––it’s probably a good idea to consider a scar as a more significant aspect of a personal injury case than is typically recognized. Most of us pay some attention to this area but not enough, focusing instead on the underlying injury. At least one disclosed expert to discuss the scar and its consequence––something not often seen. Photographs––distant, close–up, and very close––in various lighting, as well as questions: “Have there been times when the scar has affected your relationships with others? How? What have been some of the more troubling aspects of having this scar? How has this affected you?” Etc.
“When one thinks of oneself, a mental picture forms based on reflections, photographs, and comments from others. Scars cause a permanent identity change, and adjustment to the new outward and inner self-image is needed. The mismatch between appearance and identity can trigger a psychological shift and invoke feelings of anxiety and shame (Thombs et al. 2008). Scarred patients often describe their new appearance as living with this trauma. This can trigger a cascade of feelings: shame, self-rejection, and self-consciousness (Macleod et al. 2016).”
Some states set forth standards against which to evaluate the severity of a scar: “The standard by which significant disfigurement is to be determined within the meaning of that statute is whether a reasonable person would view the condition as unattractive, objectionable, or as the subject of pity or scorn"––Cushing vs. Seemann, 247 A.D.2d 891, 668 N.Y.S.2d 791 (App.Div.Sup.Ct. N.Y.1998). Other states couple the injury with its psychological effect: “Disfigurement, and any accompanying mental anguish”––Kansas, Article 2, Rules of Procedure, 60-249a. Illinois permits juries to award compensation for: “The disfigurement resulting from the injury.” Illinois Pattern Jury Instructions, 30.04. The good news––significant advances are being developed in the treatment of scars, including Rapid Acoustic Pulse (RAP) technology.
“Scarring may be skin deep but their psychological impact goes deeper still. The evidence is decisive; the presence of scars can result in clear markers of mental disturbance in patients with associated symptoms of depression, anger, anxiety, and post-traumatic stress. A scar creates physical, emotional and psychological marks. Identity is called into question and individuals must integrate the scar with their sense of self in order to achieve psychological acceptance. This process causes a change of behaviour and reduced functioning, socially and psychologically, driven by a fear of being singled out. This is supported by the theory that scar visibility acts as a mediator of psychological distress; thus, hiding the scars relieves maladaptive behaviour and often leads to a return to normal functioning. Leaving us with hope that these psychological scars can be managed and even reversed.”
Since the human brain seeks out that which is recognizable and familiar, the human eye will tend to gravitate toward that which is irregular or otherwise marked or blemished. There’s probably an evolutionary reason for this––that which is without imperfection can be read as a sign of age, vitality, or health. As well, small disturbances can generate large repercussions. It’s not always momentous upheaval or obvious disruption––at times, even a slight departure from the norm can exact a larger-than-expected toll. Patience is required to ask enough questions to get to the bottom of things. Many will prefer not to talk about it. Above all, it’s your job to protect and support––and to pay enough attention not to miss what’s visibly present.
All quotations from: Mildred Ngaage, Mark Agius, The Psychology of Scars: A Mini-Review,Psychiatria Danubina, 2018; Vol. 30, Suppl. 7, pp 633-638 http://www.psychiatria-danubina.com/ UserDocsImages/pdf/dnb_vol30_ sup7/dnb_vol30 _sup7_633.pd