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.]