Tactics and Strategies in Handling the Chronic Pain and Fibromyalgia Lawsuit – From the Plaintiff's Perspective

June, 2001

Introduction

“A jury trial is a fight and not an afternoon tea.”¹

When Mr. Justice Riddell famously said that a lawsuit is not “an afternoon tea” he could not have anticipated but must have had in mind fibromyalgia litigation. The clash and clamour of conflicting views, the ferocious attempts to impugn the credibility of both the plaintiff and the plaintiff’s experts alike have made this type of litigation one of the most difficult, complex and expensive cases to prosecute. The purpose of this paper is to enable plaintiff’s counsel to more fully understand the complex nature of fibromyalgia, how to prepare their case for trial and, ultimately, to obtain a just and appropriate result for their clients.

What is Fibromyalgia?

While the medical experts will be providing more detailed and explicit definitions and discussions of this “syndrome”, it may be usefully noted that the American College of Rheumatology² described fibromyalgia as a “syndrome of widespread pain³ and unknown to the patient, decreased pain threshold at site-specific soft tissue tender points. Among the symptoms most frequently associated with fibromyalgia are sleep disturbance, poor memory, morning stiffness, fatigue and psychological distress, along with headaches, irritable bowel and bladder, joint swelling and numbness⁴.” It is to be noted that in literature disseminated by The Canadian Arthritis Society, fibromyalgia is ranked second only to osteoarthritis as the most common musculoskeletal condition afflicting Canadians⁵. According to a 1994 study, approximately three out of 100 Canadians suffer from fibromyalgia and it is a widespread and common affliction.
According to the American College of Rheumatology⁶ the specific conditions necessary for a diagnosis of fibromyalgia are as follows:

History of Widespread Pain

Pain will be widespread when all of the following are present:

1. pain in the left side of the body;
2. pain in the right side of the body;
3. pain above the waist;
4. pain below the waist.

As well, axial skeletal pain must be present. In addition, shoulder and buttocks pain is considered pain for each side involved.

Tender Points

Pain in 11 of 18 tender point sires on digital palpation. The ACR recommendation require digital palpation to be performed with an approximate force of 4 kilograms and further require that for a tender point to be considered “positive” the subject must state that the palpation was painful.

Patients will be said to have fibromyalgia if both of these criteria are met. Finally, widespread pain must be present for at least 3 months.

Notes:

¹ Dale v. Toronto R.W Co., (1915) 34 O.L.R. 104 at 108.
² D.A. Gordon, “Chronic Widespread Pain as a Medico-Legal Issue” in Balliere’s Clinical Rheumatology (Vol. 13, p. 531-543,1999).
³ Ibid. at 532
⁴ Ibid.
⁵ Arthroscope, The Arthritis Society, 1998, p. 7
⁶ Wolfe et al. “Arthritis Rheumatology” in The American College of Rheumatology 1990 Criteria for the Classification of Fibromyalgia Report of the Multicenter Criteria Committee. (1990) 33:160-172

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