The Medical Management and Presentation of Damages
IN FIBROMYALGIA INJURY CASES
By MICHAEL MAGGIANO, ESQ.
I. THE PERCEPTUAL PROBLEM
Starting out as a lawyer representing the injured somewhat over 20 years ago, I began to notice mediocre to poor results in soft tissue cases. Looking back I can see that many cases were missed by the treating physicians ,and, fibromyalgia, then called fibrositis and before then lumbago, was either not recognized as a clinical entity by many physicians or when it was, the diagnosis was considered a “garbage pail diagnosis”, a label to put the patient’s problem under in order to cover a host of problems when nothing else seemed to fit. Often the insurance adjusters response was “your client just has a simple sprain and strain, that’s all, and once the case is over the pain will go away. The offer is $1,5000.00.” That grew over time to $3,000.00 and then $6,000.00 and if we are lucky today it is $12,000.00 to $20,0000.00. Yes, adjusted for inflation, things really haven’t changed much.
A number of years back I began to wonder why we are getting these compromised verdicts in these cases or very low offers to settle. Why were these honest people who were genuinely injured receiving nominal sums for cases that I consider cases of considerable merit? It became clear that there were a number of perceptual problems in presenting these cases. It certainly did not help these injury victims that their doctors did not understand or believe them. Unfortunately all too many fell into the hands of the psychiatrist, when in fact their condition was not of a hysterical disorder, but yet they were labeled as such, at best, and frauds and fakers at worst. Our advocacy in many cases was lost because the medical community was lost. This problem of misidentification also has not changed much and many practitioners are confused or simply shrug off these suffers as hysterics, malingerers or fakes.
I began to realize that our advocacy had to be directed to finding ways to give voice to those who’s voices and pleas were not being heard. Most importantly, as it were in many cases, our advocacy had to be directed to assisting in the process of diagnosis and treatment with the ultimate goal of proper identification and treatment of those so injured.
Fibromyalgia is a syndrome of generalized musculoskeletal pain and tenderness, and is associated with certain core features: stiffness, fatigue, and sleep disturbance. The condition is very common, effecting two to four percent of the population, women more often than men. The fibromyalgia sufferer is also prone to headaches, memory and concentration problems, dizziness, numbness and tingling, itching, fluid retention, crampy abdominal or pelvic pain and diarrhea. There are no diagnostic lab or x-ray abnormalities. It is closely related to the chronic fatigue and irritable bowel syndromes. Fibromyalgia has mistakenly been thought to be either an inflammatory or a psychiatric condition. However no evidence of inflammation or arthritis is found and patients with fibromyalgia are now known to be no more depressed or anxious than those with other chronic painful debilitating conditions. It is now believed that depression and anxiety when present are more often the result than the cause of fibromyalgia.
Within the last 15 years, this syndrome of musculoskeletal pain has become the subject of numerous research studies and with its redefinition as fibromyalgia, and increased communication between researchers and practitioners within the major medical specialties of general medicine, orthopedics, pain management and rheumatology, the victim is somewhat more being recognized as real.
Yet when we are confronted with a client who becomes identified as a fibromyalgia sufferer, we are still left with not just the perceptual problem of presenting to the skeptical jury the non see and feel injury, but we are confronted with the technical problem of establishing proximate cause between the condition diagnosed and the traumatic event, whether it be a motor vehicle accident or a fall down event. It is the duty of the Plaintiff’s attorney to link the External Event with the Internal Response. Courtroom success turns on linking the External initiating event (the auto accident or fall down) to the subsequent Internal medical results (fibromyalgia). In short, this gives you your legal proximate cause without which your case must fail as a matter of law. But how do we do this through the sifting of the paper trail of medical evidence and how do we do it persuasively, is really the topic presented today for your consideration.
What is the price we put on the misery of the person who has lost the ability to function effectively in the world but who has not lost the ability to recognize the loss, who remembers vividly who he or she once was and recognizes sadly what they have now become – all through no-fault of their own. The real message of my monograph is to bring home to you, the Advocate, that the overwhelming number of traumatic fibromyalgia victims are mistakenly missed early on, and the patients with so-called minor soft tissue injury have insult added to injury and neglect added to evolving pathology. Is it any wonder that the injured appear in our offices distraught, mistrustful and confused, now questioning their sanity, when in fact, they are twice injured, once by the injury to their bodies and then again by the disbelief of their doctors, friends, family and finally the judicial system.
We work and live and try cases in the world of what you see is what you get. The reality of a fibromyalgia sufferer is rarely, if ever, you see what you get and you rarely get what you see. And against the backdrop of no objective diagnostic test results such as x-ray, MRI, Cat Scan, EMG, with a client who upon sitting in a courtroom appears overtly normal, the defense theme is “if you know when to say ouch on physical examination, you have the condition.” Thus for you the Advocate, the only sound which you will consistently hear from the defense is the uninterrupted rhetoric, which claims that fibromyalgia is a fable born in the minds, hearts and wallets of those of you who are called upon to represent these unfortunate souls who without you have no voice, to advocate their cause and their need. Fibromyalgia is not a myth and to continue to allow these victims to go undiagnosed, untreated and unrepresented is a disgrace of our medical and civil justice systems.
COMMUNICATING THE LOSS
To understand our problem in the Courtroom, we have to understand how jurors decide cases. I believe that jurors come to their verdicts, not simply on the facts, but on their collective impression of the facts. The individual juror impressions are created by how each perceives the players in this drama we call the Trial and how each perceives the message being conveyed as filtered through their own personal biases created by their individual prior life experiences (this is why the Voir Dire becomes so important, especially in this type of case and especially today in an anti-lawyer and anti-lawsuit environment where the jurors are all Doubting Thomases.)
We have learned that the message in the court room is seven percent verbal, 38% vocal and 55% non-verbal. We have also learned with regard to juror retention that the jurors retain 20% of what they hear, 40% of what they see, but 80% of what they see and hear. We have also learned that jurors are persuaded most by what they hear first and remember best what they hear last. They also need to know there is a theme of a basic injustice if a verdict is not in favor of the Plaintiff. The art of the Advocate requires that she utilize these basic facts of human communication in the perceptual problem of the fibromyalgia case which involves the presentation of abstract concepts to jurors who have not experienced such a problem. We are dealing with an inherently abstract matter (pain and heightened sensitivity to stimuli) which is not subject to simple concrete proof such as may be available to us in proofs of a bone fracture, herniated disc surgical case and other objective injuries.
As a result of the perceptual problem, the defense, often and easily plays two tunes to the jury. (1) The causation defense: The tortfeasor’s act was not the cause; (2) The malingering defense: here the entire defense is the gentle character assassination of the Plaintiff.
Therefore, our communication process must move from the objective to the subjective, from that which most jurors have experienced to the misunderstood world of the fibromyalgia sufferer. With regard to the traumatic event itself, if we are fortunate enough to have physical evidence of a significant violent event, we must do all that we can to present visually the drama of the event itself in the Courtroom. This, of course, can be done through photographs and videotapes of the scene and the resulting damage to person and property when we are lucky enough to have such Physical Evidence. If there are photographs of observable injuries such as contusions, ecchymosis, swelling, dramatic accident or property damage photographs prepare demonstrative blow-ups for Trial. Or you may want to capitalize on vivid eye witness testimony which lays the predicate for computer simulation of the event. The point here is that we need a visual hook to capture the jury so as to enable them to link the accident to the subsequent injury. Simply put, people believe what they see and not necessarily what they hear. If there is no persuasive physical evidence then you must consider the use of the Biomechanical Engineer to discuss mechanically what happens to the body in such cases and how there is damage done to the soft tissue structures of the human body when there is little or no physical damage to the motor vehicles involved. His testimony must include demonstrative evidence, test videos, simulations, and computer generated graphics of the biomechanical activity of the body structures in such a traumatic event as the Plaintiff or eye witnesses described. In developing your trial mosaic of show and tell, during the presentation of at least every other witness you must have demonstrative evidence planned. At the conclusion of each court session you must have the witness on the stand work with some exhibit that works well as exemplary of their testimony and carries the damage and liability themes you wish to convey.
Because of the natural human tendency to doubt whether a normal looking Plaintiff suffered fibromyalgia; you must seek out witnesses ideally from each sphere of your clients life to demonstrate the dramatic changes in him since the traumatic event. Therefore, the primary observation required of the jury, as the great trial lawyer, Moe Levine, described many years ago is: “Who was this man, what has been done to him, what was he like before this accident, and what has he become as a result.” The jury must recognize that their focus is not how this accident would have effected another man or a woman and what impact would it have on most lives, but rather how did it effect this person. It is this victim’s life which is the focus of this case.
II. COLLECTING THE DATA
In order to properly present this “whole person theory” in the Court room, once the case is accepted, it is your duty and that of your associates and legal assistants to commence appropriate management of the medical aspects of the case. At the very outset, therefore, you must obtain all prior medical records and reports regarding the Plaintiff, including the results of school, work and insurance company related physical exams and the office notes of all prior treating and examining physicians as well as all prior hospital records, radiological reports and other test results. If your client applied for insurance in the past 10 years (and equally important at any time after the accident) we must obtain a copy of the application, the physical exam and any exclusions in the policy. If your client was a member of a health club, we must obtain the application and the club records. It is absolutely critical that we obtain the records of the family physicians and medical records of the client from the medical department of his or her employer. If the Plaintiffs work requires periodic physical exams, we must determine the last time the client was examined, obtain all prior records and also determine the next time the client is to be examined for work. A complete combing of the prior and subsequent medical history is absolutely critical. Remember that in this worldwide web of information there is a paper trail on all of us including your client.
III. CLINICAL PRESENTATIONS
It is critical to understand that post traumatic fibromyalgia has what one might call an incubation period of approximately six months. Further, and equally important is that recent data demonstrates that 25% of fibromyalgia cases have a traumatic trigger and usually these are moderate traumatic events which constitute the trigger. Thus it becomes important in the garden variety auto accident case to demonstrate the biomechanics of the trauma to the individual, particularly where there is little damage to the motor vehicle. As described above, the biomechanical engineer becomes an important witness in the case to demonstrate how the energy forces transfer from the vehicle to the person and how the body is thrown and twisted while the lower torso is held in place or by the seatbelt. Then through the rheumatologist, physiatrist and/or orthopedist medical testimony must demonstrate how such initial injury to the musculoskeletal system becomes the basis upon which the muscular skeletal condition of fibromyalgia evolves over time and becomes manifest some six months later. So that where there is only minor to moderate injury following the accident, an emergency room visit with negative x-rays, some brief period of physical therapy followed by no treatment and care at all, plaintiff back to work, then some four to six months later pain in the shoulder girdle or neck some six months later, slowly evolving diffusely into the limbs over time and then throughout the body and finally resultant disability with poor prognosis the jury is prepared for this end result and whereas if they were given the event and injury in a nutshell they would shake their heads in disbelief. They must be introduced and indoctrinated into the concept before you earn the right to present proofs of permanent damages to the jurors.. You must prepare through building blocks of testimony and demonstrative exhibits on the accident itself, the impact on the body, the injury, the life of the plaintiff before and after so that the defense arguments of preexisting or supervening cause fall flat on jurors now prepared not to accept the defense message but rather now understanding that the history given by the plaintiff and her lay and medical witness does not demonstrate the bizarre but rather demonstrates the condition itself.
The diagnosis of fibromyalgia is based on finding of evidence of substantially decreased pain threshold combined with the presence of wide spread pain. Fibromyalgia can be diagnosed when wide spread pain, decreased pain threshold, and characteristic symptoms previously described are all present together. The syndrome has been characterized as a disorder of pain modulation, pain amplification, and the “irritable everything” syndrome. Fibromyalgia can be conceptualized as a syndrome in which discomfort from all stimuli appear to be amplified. I recall in one case almost two years ago on the first day following a break during jury selection, I walked back from Counsel table to where my client was seated and put my hand gently on her right shoulder because she looked distressed and I wanted to give her some reassurance. She winced in pain and recoiled. It was clear to me that the jurors seated had seen this and I was fearful that they would either think it was a ploy on my part or that my client was a hysteric. I clearly was surprised despite how well I thought I knew my client because the touch was so light. During the trial I was able to successfully but subtly establish through the Rheumatologist , that there is such hypersensitivity in trigger areas, namely more severe pain than might be expected, particularly in peripheral joints and that the extent of the pain is often surprising and in deed suggests the diagnosis. We then brought out that this is supported by the literature and my expert on direct examination, as is permitted, under the Federal Rules, which for the most part are now being followed in New Jersey, referred to the textbook of Rheumatology Update Sixth Edition, edited by Kelley, Harris, Ruddy, Sledge, referring to an article on fibromyalgia by Dr. Frederick Wolfe as authoritative.
However, it is important to understand that when we are dealing with the post traumatic fibromyalgia case, such terminology is applied to when the syndrome is noted following an injury. The term is descriptive of the trigger of the condition since the relation between trauma and fibromyalgia is still not well understood.
In studying the literature on fibromyalgia, you will understand why it is so important to obtain correct medical historical data on your client. There is post “viral” onset, which involves a rapid onset of symptoms, usually in a generally previously healthy individual, the onset follows a viral or flu like syndrome. There is the chronic musculoskeletal pain onset or post surgical onset, where fibromyalgia is diagnosed in a background of major musculoskeletal medical complaints and multiple surgical interventions and associated with marked pain behavior. These individuals often have considerable surgical and medical histories, significant anxiety, and aspects of somatization disorders (see the Wolfe article described above).
The post traumatic fibromyalgia patient is described where there is a regional pain pattern that develops usually in a unilateral shoulder girdle region and the pain then spreads to envelope the entire arm and gradually one by one all of the other limbs become involved.
IV. INDOCTRINATING THE JURY
Once we have studied the medical literature, we will see why three important advocacy concepts that we often use in other personal injury cases, most definitely apply here: 1) The Defendant must take the Plaintiff as he finds him or her. It should not lie in the mouth of the wrongdoer to argue that he can not be responsible for the physiologic predisposition of the Plaintiff toward fibromyalgia. The law requires that it is enough that if the trauma was the trigger i.e. the competent producing cause, that is enough for the jury, notwithstanding that the underlying etiology may be illusive in a particular case. 2) The trauma need not be the sole cause, but the proximate cause of Plaintiff’s injuries, pain and residual physical impairment. The concept that you take your Plaintiff as you find him, flows from the concept of proximate cause and that it is not necessary that the tortfeasor anticipate the very consequence, the very occurrence, which results so long as it can be said that the injury was a natural and probable consequence of the wrongful act and it was within the realm of foresee ability that some harm may result to the Plaintiff. This is the classic proximate cause charge. It is for us as the advocate to convey the concept through plain talk and example in the course of the trial, so we must demonstrate to the jury that proximate cause does not mean the only cause in life’s chain of events but rather the efficient cause or in plain English as stated above, the trigger but for which the underlying predisposition to the condition would not have been activated . 3) The plaintiff need only prove each element of his case by a preponderance of the credible evidence. I think more cases are lost because the jurors feel that we have to carry our burden beyond a reasonable doubt. Such a burden is unnecessary and it is most likely impossible in the fibromyalgia case. We must explain to the jurors that the law requires simply and justly that we tip the scales of justice ever so slightly by the believable evidence in the favor of the victim and doing so he is entitled to their verdict.
V. MARSHALLING THE EVIDENCE
The important concept in marshalling the evidence and the witnesses, is to understand that as debilitating as fibromyalgia can be, that is how elusive its identification and etiology can be. Credibility of the victim and the advocate is therefore key with the jurors. To establish and anchor credibility, you must not only anticipate the defense, but the silent questioning of any doubting jurors. To accomplish this you must prepare for the medical arguments that your client is not suffering from fibromyalgia and if he or she is, then it is due to other causes other than the motor vehicle accident. Your role as the marshal of the evidence requires you to investigate the history of your client, not only medically, but all spheres of your clients life – business, educational, social and private. You must obtain as much historical data as possible in terms of school records, physician records, military records, employment records, description of the accident, position of the victim at the time of the trauma, establish the movement of her body in the vehicle at the time, observations of eye witnesses, ambulance corp. personnel, tow truck operators, police photographers, investigating officers, and auto mechanics. With regard to the after math, the observations of co-workers, family members and friends is also important. Before and after data is extremely persuasive in the fibromyalgia case.
In your opening to the jury, you must nip the anticipated defense by answering it before it is ever raised. You protect the integrity of your expert and your witnesses by obtaining as much historically as possible – the good and the bad. Quite often the facts which defense can use to confuse on cross exam when creatively brought out by you initially in opening and in your direct case, will diffuse the potential damage.
The issue of malingering and feigning the illness is raised in every fibromyalgia case. You must review with the medical experts and develop an excellent command of the manner of testing conducted, length of testing and cross testing. You must establish that the patient is not aware of what the tester is going to ask or do. On the other hand, you must be prepared for the defense argument that a sophisticated victim can simply take a fibromyalgia pamphlet, study the trigger and tender points, and as defense says, simply know when to say ouch. The expert will establish that the understanding of location to trigger points, the subtlety and sophistication of testing and cross testing is such that faking is not likely to go undiscovered.
It is important also to recognize that the defense will ask the typical questions of each treating and consulting physician:
Q. Doctor, you did not know Mr. Jones before he came into your office following the motor vehicle accident, true?
Q. Doctor, and is it also true that the only time that you had occasion to observe Mr. Jones was when he was in your office, true?
Q. You did not observe him at work, true?
A. I did not.
Q. You did not observe him at home?
A. I did not.
Q. You did not observe him performing any exertional activity?
Q. So that when he gave you his complaints, you accepted them as true?
Q. So that when it comes to what complaints he has and limitations of activities of daily living, as reported by you, you are simply stating what Mr. Jones told you, true?
Because the of the natural human tendency to doubt whether a normal looking Plaintiff has suffered fibromyalgia, you must seek out witnesses ideally from each sphere of your clients life to demonstrate the dramatic changes in him to diffuse such defense cross examination as described above.
In addition to each expert commenting on the sincerity and credibility of the Plaintiff during examinations, the use of before and after witnesses is very important in that, as pointed out above, none of the doctors really knew the abilities of the Plaintiff before he or she found her way to that doctors’ office. Not having seen the Plaintiff before the trauma, your expert has basically only the word of the Plaintiff to rely upon, and to the extent that there is any corroboration, it is often only provided by relatives who are personally interested in the welfare of the Plaintiff, and, therefore, the outcome of the case. Thus, you must go into the work place, the neighborhood and even his place of worship if possible to find witnesses who will paint a word-picture of a damaged life.
Likewise, as we move from the objective to subjective in the presentation of the medical proofs, we move from the family physician to the Orthopedist and Neurologist and Rheumatologist, and Pain Specialist or Physiatrist, who begin their work long after the initial trauma following the evolution of the condition, which as stated previously has an incubation period of approximately six months. Through the family or the treating physician, we establish what physical injuries there were at the outset, and, where they are observable, we must do our best to emphasize that. (The Police Officer and EMT personnel may also be helpful, but you have to get them early to preserve their testimony or they will quickly forget.) The family physician must also testify as to the psychiatric or psychological well being of the Plaintiff before the trauma because in so many cases the defense and defense doctors paint a picture of the victim as simply a hysteric and fraud.
If you have the benefit of a treating family physician or treater who made the differential diagnosis of fibromyalgia and referred the Plaintiff to a Rheumatologist for confirmation, you must have the treater describe the high esteem that he or she holds the specialist in and describe the reasons for the referral. The treating physician must describe the conditions he diagnosed or required a consult on and that they were of such a nature as to be beyond his expertise and thereby required very specialized training and care. The initial treating physician or family practitioner must become a guide and teacher in the Courtroom (as also you must), laying the predicate for the specialists who follow. It is then up to the Rheumatologist, through the use of charts and other demonstrative aids to bring objectivity to a rather subjective condition. He must bring the painful reality of fibromyalgia to the eyes and minds of the jurors. Throughout the mosaic of testimony, I can not over emphasize that credibility is key. Time must be spent with your experts and you should workshop your direct examination so that you take the complex and break it down to its simplest and most digestible form.
If your first witness is the Rheumatologist, you may be making a mistake because you are really presenting critical facts on causation at a time when the jurors have not yet come to the place of mental acceptance that they need to be at when such evidence is presented. The evidence indeed, must be built from the objective to the subjective. It must evolve through the course of direct examination, witness by witness, in a logical, common sense sequence.
Before we get to the Rheumatologist, the jurors must have the short course on the anatomy and physiology of the neck and back and the biomechanics of trauma. Unfortunately, if you are saddled with a weak family or treating physician, then you really have to take a total witness analysis and evaluate where you want each witness placed, not just in the Trial, but when during the day of each day of the trial and where in relationship to each other to maximize persuasion and to minimize the impact of cross-examination. If you have a weak treating physician, I suggest that you place important fact witnesses as to the trauma before the physician. As we move from the original treating physician to the Orthopedist, Physiatrist and/or Rheumatologist, as the case may be in the chain of referring physicians, all should explain the reality of fibromyalgia and that it is a genuine diagnostic entity which rarely remits, is chronic in nature and for which medical science presently has no cure. Each physician must explain the need for continued care, exercise, proper diet, medication, therapy when needed, and must be prepared to project into the future the needs of the fibromyalgia patient, future disability and its duration given the chronicity of the condition, its progressive nature and finally the cost of future medical care and medical monitoring.
In the representation of the post traumatic fibromyalgia victim, what you see is not always what you get, and what you get is not always what you see. Our role on behalf of the victim is to bring our vision of our client and the pathos of his life to the jury in such a way and in such a form and with such words and picture so that the six people in the jury box can understand how it is, that we came to view the victim, our client as we do.
Graham, L. Douglas and Robert M. Bennett,
“Fibrositis, Management Guidelines,” Drug Therapy, July 1988, pp. 75-76, 81-83, 87-88.
Kelley, William N., et al. (eds.),
Textbook of Rheumatology, Update 6, W. B. Saunders Co., 1993.
Rachlin, Edward S.,
Myofascial Pain and Fibromyalgia, Trigger Point Management, Mosby, St. Louis, 1994.
Tollison, C. David, et al. (eds.),
Painful Cervical Trauma, Diagnosis and Rehabilitative Treatment of Neuromusculoskeletal Injuries, Williams & Wilkins, Baltimore, 1992.
For those of you with Internet access, the following is a list of resources available on the World Wide Web.
Buckelew, Susan P., A Bibliography of Fibromyalgia Research, URL: http://www.hsc.missouri.edu/med_info/fibromyalgia/docs/fmbib.html
Nye, David A., A Physician’s Guide to Fibromyalgia Syndrome, URL: http://www.hsc.missouri.edu/med_info/fibromyalgia/docs/fm-md.html.
“Understanding Post-Traumatic Fibromyalgia” by Mark Pellegrino, MD. Anadem Publishing, 1-800-633-0055 to order, $16.25. ISBN 0-9646891-8-9
FIBROMYALGIA: Managing the Pain; The Fibromyalgia Survivor; and Understanding Post-Traumatic Fibromyalgia by Mark Pellegrino, M.D. (800) 633-0055
Web Site: www.anadem.com
FIBROMYALGIA: Managing the Pain” is an 87-page book with a price of $12.45 and The Fibromyalgia Survivor is a 119-page book with a price of $19.50 plus $3.50 shipping and handling. All books can be ordered from ANADEM Publishing , 3620 North High St, Columbus, OH 43214.
Note: A search on the web will yield well over one hundred web site directories on the disease.