Winning the Fibromyalgia
Case
by Richard
Bogoroch
Few medical diagnoses have engendered as much
controversy as fibromyalgia. Among doctors, lawyers and
health care professionals, lines have been drawn as to the
existence of this condition. As a lawyer who represents
fibromyalgia survivors and their families, I can tell you
that the legal and medical dispute is unhelpful. Fibromyalgia
sufferers and their families live with its consequences every
day. Lives and careers have been shattered and families
disrupted because of fibromyalgia. There is no doubt that
this condition exists, and there is no doubt that people who
suffer from fibromyalgia are entitled to compensation and, in
the context of disability claims, payment of disability
benefits in accordance with the terms of the policy.
Fibromyalgia sufferers need to know that they are not
alone, that there are lawyers that not only have experience
in representing fibromyalgia sufferers, but are committed to
seeing that justice is done. The purpose of this article is
to inspire and empower those who are suffering from this
terrible condition and to let them know how their claims for
compensation can be won.
It has been said that litigation is "not a tea party."
For that reason, a fibromyalgia sufferer must ensure not only
that he or she is prepared to see the case to conclusion, but
that his or her counsel is tenacious and will do what is
necessary to see that justice is done.
There are three factors required to win the lawsuit:
preparation, preparation and preparation. There is no
substitute for the hard work and diligence required of
counsel to ensure that the fibromyalgia sufferer is properly
briefed for the litigation process, but also to ensure that
the appropriate experts are employed to help educate the
trier of fact (either judge or jury) about the nature of
fibromyalgia and the effects on the fibromyalgia
sufferer.
How is this accomplished? Case selection is obviously
very important. The cases which have the greatest chance of
success are those cases in which the Plaintiff (that is the
person suing) has a good work history and is a credible
historian about his or her past ailments and conditions and
illnesses. Few people, especially fibromyalgia sufferers,
have unblemished medical histories. Indeed, in the real
world, very few people have had "pristine" medical histories.
Most of us have had some ailment, condition, illness or
disability at one point in time in our life. That does not
mean to say that just because someone has a pre-history of
disability or periods of time off work that they are not to
be believed; all it means is that the evidence must be
documented, collected and disclosed. Credibility problems
arise when the trier of fact comes to the conclusion that the
Plaintiff has not been "up front" about his or her
disability. For that matter, it is essential that the lawyer
taking on the case do a complete investigation about the
client's medical history and obtain clinical notes and
records from the treating physicians.
It is a truism to state that any lawsuit or any claim
for compensation involves an intrusion into the privacy of
the fibromyalgia sufferer. Unfortunately, if one is suing or
claiming compensation, one's life becomes to a certain extent
an "open book" and pre-existing medical records are
producible. The reason is to safeguard the integrity of the
system and to ensure that people who claim are legitimate,
and one way to test that is by requesting and obtaining
clinical notes and records from the treating
physician.
Once that is obtained and appropriate disclosure made,
one would think that the insurer would pay the claim. Because
there are many doctors today who don't believe in
fibromyalgia and deny its very existence and legitimacy,
insurers rely on these doctors to deny payment of disability
benefits due and owing. It is in that case where we become
involved.
We examine the claim, we carefully interview the client
and we obtain all of the records. We will then, as a general
rule, retain an expert, someone who is skilled in
fibromyalgia and knowledgeable about the medical literature
that has developed, to examine our client and prepare a
report regarding the medical condition of the client. Our
client will be sent to these physicians for the purpose of
assessment, not treatment, and the report will be used in the
lawsuit that we commence on behalf of our client.
Case preparation, attention to detail and selection of
the right expert are essential ingredients in winning the
fibromyalgia case. I prepare my cases from the time the
client comes in the door. Our trial preparation begins
immediately. Most cases do indeed resolve before trial but in
order to achieve the best result, you not only sometimes have
to proceed to trial but you must also prepare the case as if
it is going to trial, and that is what we do. We have found
over the years that by thorough preparation, attention to
detail and a commitment to client service, we are able to
achieve just results. Fibromyalgia sufferers and their
families must know that there are lawyers who are prepared to
fight for the rights of fibromyalgia sufferers and their
families and will work hard to ensure that a just result is
achieved.
[Ed. Note: Mr. Bogoroch has moved and started his own
firm, Bogoroch & Associates, with a support staff of 11
people, and aims to provide fibromyalgia and chronic pain
sufferers with the best possible service. They do not charge
until the case is concluded, and handle cases throughout
Ontario.]
See also:
Tactics and Strategies in Handling the Chronic Pain and Fibromyalgia Law Suit – From the Plaintiff’s Perspective
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