Fibromyalgia Syndrome (FMS) is a pathological entity most chronic pain physicians will be familiar with. Only recently, has definite clinical and scientific recognition been received for a syndrome historically attributed to “neurotic, middle aged women”. Previous diagnostic labels have included “Psychogenic rheumatism” and “fibrositis”. In 1990 the American Academy of Rheumatology (ACR) established criteria for diagnosing FMS. This represented a turning point in the diagnosis of FMS and since then many studies, both clinical and experimental, have been published resulting in a better understanding of FMS.
The clinical features of FMS are widespread, most commonly disabling musculoskeletal pain and tenderness accompanied by secondary syndromes such as affective dysfunction, disturbed sleep, features of chronic fatigue syndrome and cognitive deficits. Other co-existing pathologies include depression (40%), anxiety (45%) and irritable bowel syndrome in up to 70% of patients. Population prevalence rates have been reported at 2-4%. The syndrome is up to seven times more common in women in the age group 50-60 years than in men. FMS has a significant impact on quality of life and physical functioning in sufferers. Up to 30% of FMS sufferers are forced to accept shorter working hours or less demanding work. It is quoted that 15% of FMS sufferers in the USA receive disability pay because of their symptoms. (ref).
It has previously been reported that up to 22% of patients develop symptoms following on from a whiplash injury. Indeed trauma as a precipitant for FMS is a well recognised trigger.
Although the underlying pathophysiology of FMS has not been completely clarified , there is growing evidence of a central neurotransmitter/dysautonomic, neurotransmitter and neurosensory disturbance. The neuroendocrine disturbance involves dysfunction of the hypothalamic-pituitary- adrenal axis (ref 14,15) with abnormally low serum cortisol concentrations and reduced responses to corticotrophin releasing hormones. This finding suggests an abnormal, inadequate response to stressful events, including trauma (ref 16). The neuroendocrine disturbance also affects thyroid and growth hormone metabolism. Ref 15). Specific neurotransmitter disturbances have been identified in FMS sufferers.
FMS causes severe disability and can substantially compromise a patient’s quality of life. Complete resolution of symptoms is very difficult to achieve. The European League Against Rheumatism (EULAR) published treatment recommendations in 2007.(ref 29). They stress the importance of pharmacological (particularly SSRI and SNRI) and non pharmacological interventions. Specific non pharmacologic treatments include heated pool treatment, exercise programmes and CBT.
FMS is emerging as a chronic pain entity with a specific underlying pathophysiology resulting in marked disability. Given that up to 22% of FMS is precipitated by trauma it is not surprising that some post traumatic FMS patients institute legal proceedings.
In a perceptive medical paper entitled “Fibromyalgia after Motor Vehicle Collision: Evidence and Implications” the authors implore their peers “we can and should educate our patients who are contemplating litigation or compensation for post-traumatic fibromyalgia… we should tell them that by pursuing such action they will rarely feel as though they have received “justice” in the legal system and that it is even less likely that they will reap any financial reward.”
Historically litigation has been perceived as bad for a patient’s health, all the more so where the patient has to prove that they are the victim of anothers negligence. Which doctor would not advise their patient to take the easier option and keep away from the lawyers?
However, in recent years in other chronic pain pathologies e.g. chronic whiplash injury, the ability to diagnose a specific underlying pain generator and to be able to treat this effectively has been shown to have positive clinical outcomes and also reduce associated psychological distress. Of note, no difference in outcome has been observed in litigating versus non-litigating groups of patients (ref).
In the authors experience, patients do not contemplate litigation or compensation for post-traumatic fibromyalgia in the first instance. Generally, they have had a relatively modest whiplash-type injury and are then promptly directed to a firm of lawyers recommended by vehicle hirers, repairers or their own insurance company. These lawyers grapple with an injury which ought to be getting better, but in fact appears to deteriorate. The Claimant (whom we will assume is female) does not understand what is going on; nor do her doctors or lawyers. The implications start to mount up. The typical biopsychosocial deterioration seen in chronic pain patients starts a downward spiral. From being a family with two incomes, the Claimant’s income swiftly reduces to nothing. Interpersonal pressures increase. The Claimant becomes desperate to prove that she is genuinely ill and that it is not in her head.
Eventually, a diagnosis of fibromyalgia or some other chronic pain syndrome is made. There is some relief at a diagnosis being reached, even if the Internet tells her that there is no cure. Her lawyer tells her it is very difficult to prove a connection between the accident and the fibromyalgia or that there is no connection.
Desperate for vindication and validation, litigation may seem the only way it can be achieved. These individuals are also desperate to recoup their often significant losses and restore their self-esteem. Back on the Internet, our Claimant finds lawyers experienced in chronic pain litigation and she reaches a Rubicon moment. To proceed or not?
Aware that this Claimant may not be able to work again, her new lawyers put together a big claim. She is entitled to damages for pain and suffering, she has, let us say, twenty years’ loss of earnings and she has a substantial claim for past and future care (as indicated above in non pharmacological treatments).
Big claims mean big scrutiny. A Defendant’s solicitor (funded by an insurer) will immediately turn to surveillance operatives and hand-picked medical experts. The surveillance operatives will be trained to produce evidence which “proves” exaggeration. The woman looks normal – how can she have a major claim? Often, the medical experts will be sceptical as to the validity of chronic pain syndromes especially an entity such as “fibromyalgia” which heretofore had no scientific rationale. Surveillance techniques are employed and a case of malingering is actively sought by the defence team.
The Claimant is thus damned if she presses on and damned if she does not. Without her earnings the family are likely to be facing financial ruin and broken relationships, if she presses on a challenge to the Claimant’s honesty and constant fear of being spied upon by surveillance operatives is ever present.
Unfortunately the Claimant can not obtain an interim payment to cover costs of non-pharmacological therapy. The legal system does not work like that. On the basis of the Defendant’s medical evidence, the claim is worth hardly anything and therefore any interim payment obtained will be minimal. The stress of the ongoing legal process is bound to make claimants feel worse.
One of the authors (BB) has completed a survey of past clients. Almost universally, the clients acknowledge the unpleasantness of the litigation process but will declare that it was worthwhile if they obtained substantial compensation and an acknowledgement that their claim was legitimate. Most claimants will pursue a course of litigation as they need the validation as to their illness.
It is the task of skilled lawyers in chronic pain cases to smooth the process and try to ensure that the clients obtain a justified financial reward commensurate with their losses. Many clients have received well over £100,000 ($200,000) and one received £1.25 million ($2.5 million).
A crucial part of the case involves finding the right medical experts and giving them the right information. The medical expert needs to be able to show (if it is the case) that there has been a continuum of pain from the accident to the development of the chronic pain condition. He will need to scrutinise all the Claimant’s medical records. The lawyer must obtain all records including the most obscure ones from before and after the accident.
The medical expert must also not be intimidated by the medico-legal experts on the other side with their well-oiled, but often minority views on the validity of the syndrome and its applicability to this Claimant and their accident. Above all, the doctor has to be satisfied that there has been continuity of pain since the accident and, in the specific case of fibromyalgia, that it has evolved from a more localised condition, to being so widespread that it affects all four quadrants of the body. He will have to be familiar with appropriate tender point testing for fibromyalgia and he is likely to be either a rheumatologist or a pain consultant. Why is it that lawyers always reach first for the orthopaedic surgeon and then for a psychiatrist? It certainly has no place in this type of claim.
The client has to be put at the centre of the case. The lawyers and doctors must avoid jumping to any conclusions and the surveillance films have to be most carefully scrutinised to ensure that nobody on the Claimant’s side is misled.
The lawyer has to be sensitive to the plight of the Claimant, firm with opponents and persuasive with them and the Court. He has to retain the initiative and ensure that the case proceeds as quickly and as smoothly as possible, bringing to bear all his experience. He must appoint medical experts who are comfortable with this type of case, who are not easily deflected by “normal” looking DVDs and strong enough to tackle the medical opponents determined to prove malingering.
The Defendant’s lawyer must also be sensitive and fair-minded. There are very few Claimants deliberately exaggerating chronic pain conditions or simulating them. The Defendant’s lawyer should not start from an assumption of guilt until proved innocent, although his training will be to regard any claim with a healthy scepticism.
The ideal medical expert is one who objectively looks at the evidence in a detailed and patient way. There is usually a great deal of it in these cases and it requires substantial effort and attention to detail. It is not for the lazy or superficial. It is also not for those easily brow-beaten. Whilst agreement between medical experts on both sides is rare, it is hoped that in the future it will not be so polarised as it has been, with Claimants’ doctors boldly and baldly asserting that a person is suffering for example, with post-traumatic fibromyalgia and the Defendant’s medical experts saying that they do not have the condition, but if they do it is extremely mild and not caused by the accident.
In summary, in this most difficult area of personal injury litigation, a strong team of medical experts, lawyers and a good client can prove that it is possible to reap real rewards, financial and otherwise, and even, on occasion, to receive “justice” in chronic post traumatic fibromyalgia.
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