Fibromyalgia in the courtroom – a fresh approach?

The Royal College of Physicians defines fibromyalgia (hereafter “FM”) as “a condition characterised by persistent and widespread pain that is associated with fatigue, sleep disturbance, impaired cognitive and physical function and psychological distress.” However, the truth is there is no widely accepted definition of FM. Usually in cases where the diagnosis is given claimants complain of debilitating symptoms limiting most aspects of life, and in extreme cases can leaving claimants virtually bedridden. It follows, therefore, that where personal injury compensation is an option, claims for long term pain–related loss of earnings, care and treatment are common. The difficulty faced by defendants when dealing with such claims is that symptoms are almost entirely subjective on account of the stark absence of clear objective biomarkers or definitive diagnostic testing. This in turn creates a fertile environment for causation disputes and credibility challenges. 

As a “diagnosis of exclusion”, FM is widely contentious within the medical profession, with some clinicians arguing that it is not an actual “disease” but an “illness construct”, a label used to explain reported chronic pain without organic cause. The subjective nature of the condition can lead claimants to “catastrophise” what objectively would be seen as manageable “general aches, pains and misery” , and so the psychological dimension is very much front and centre.

Dr Fred Wolfe, rheumatologist and leading authority on clinical FM, makes a case that the condition would be better understood as “polysymptomatic distress”, in the presence of diffuse somatic symptoms and an often disproportionate emotional response, but however general the label it does describe a recognised condition. In genuine cases it is how and when this label is used, and the perception it creates for both the patient and the clinician, that is of concern for defendants.

At a recent seminar at Weightmans’s London office expert psychiatrist Dr Christopher Bass, whose 2024 Journal of Personal Injury Law paper “Fibromyalgia in the Courtroom” presented the findings of a ten year clinical study into the condition, argued that the diagnosis can indeed be damaging, potentially turning an individual with treatable physical and/or psychological distress into to a long-term patient. It is this iatrogenic effect of misdiagnosis, caused unintentionally by medical treatment, that mis-serves both the claimant and (as paying party) the defendant. 

Therefore, Dr Bass advocates against FM as a diagnosis in a medico-legal context on the grounds of: 

1. the absence of a causal link between physical injury and the development of FM;
2. the prevalence of pre-existing pain and functional issues in the vast majority of FM claimants; and 
3. the potential in medico-legal cases of claimants “buying into” the diagnosis. 

Broadly, this reflects the present approach by the judiciary: accepting FM as a label for reported diffuse and disabling pain without organic cause, whilst being reluctant to fully accept FM as a formal diagnosis in the absence of a defining test. 

Dr Bass is in favour of “demedicalising” FM claimants by avoiding formal diagnostic titles and using instead more general terms such as “disproportionate pain and disability.” This would prevent claimants adopting invalid roles and becoming victims of their own emotional states, empowering them to recover, and assisting medics when recommending treatment and therapies. From a clinical perspective, on this last issue Dr Bass points out that “illness beliefs, expectations, and perceived injustice are key determinants of chronicity but rarely measured or taught in med school or to psychiatrists in training.”

Practical implications

In the current medicolegal climate defendant practitioners are to a large degree reliant on claimants’ accounts of their symptoms and disabilities, but a well-planned strategy, to include interpretation by the right medical experts and an early forensic investigation, can limit if not avoid entirely some of the largest claims. As noted above, the lack of any identifiable physical injury leaves these cases susceptible to claimant exaggeration (either conscious or unconscious) and fraud. Where fundamental dishonesty is suspected an early conference with the legal team is recommended to make a decision made on what evidence in support is required and ensure that decisive and proportionate action is taken (note: the burden of proving fundamental dishonesty rests with the defendant).

Therefore, best practice in FM cases should include the following:

1.    Claims involving pre existing FM

• Build a clear pre accident profile of symptoms and function.
• Distinguish between temporary flare-up and long-term aggravation.
• Use medical records to demonstrate natural fluctuation.
• Challenge any suggestion of permanent worsening unless trauma was significant.
• History of other functional disorders supports argument that post-accident symptoms have similar cause. 

2. Claims involving post-accident FM

• Question biomechanical plausibility for low-speed impacts.
• Scrutinise timing of symptom development; the later the onset the less likely there is a causal link.
• Review psychosocial stressors and alternative causes.
• Ensure experts address whether trauma could realistically “trigger” the condition.

3.    For all FM-related claims

• Thorough forensic examination of post and pre-accident records, to include medical, primary care, welfare, DWP and employment / occupational health records. 
• Consider functional inconsistency through surveillance or social media.
• Instruct own experts with chronic pain expertise.
• Build chronology charts mapping symptoms to evidence.
• Challenge opponent expert assumptions not grounded in objective documentation.

Strategic use of early time limited Calderbank / Part 36 offers, and ADR.
Also see our Chronic Pain Claim Handling Guide which includes practical steps in in respect of FM cases as well as claims relating to the other pain disorders encountered regularly, which can be downloaded below.