RECENTLY, a claimant who had been seeking damages of around £300,000 settled partway through the evidence for £20,000.

Why? Because, as the evidence unfolded, she could not sustain her argument that, as a result of a car accident, she had developed the mysterious condition fibromyalgia. (Before the case started, the claimant had made an offer of £250,000 and the defendant had made an offer of £35,000.)

The claimant, 27 at the time, was driving her BMW, with her son asleep in the back, when the defendant's car pulled out of a side road into her path. There was a nasty collision, as a result of which the defendant and his wife, who was a front seat passenger, subsequently died.

It was not, however, the claimant's fault and liability was admitted.

The claimant's initial symptoms of pain in the neck and back with anxiety were unremarkable. But she then started to develop more widespread symptoms of pain and tenderness.

Instructed by her solicitors, a rheumatologist examined the woman for tender spots and found she had 14 tender spots out of 18 examined – enough for a diagnosis of generalised fybromyalgia, according to the classification of that condition by the American College of Rheumatology.

The prognosis was gloomy (as it usually is in such cases) and the rheumatologist did not think the claimant would ever work again.

Fortunately, there was an alternative explanation for at least some of the symptoms. The claimant had a grade two spondylolisthesis – a congenital defect consisting of a crack fracture of the pars interarticularis with vertebral slip (the degree of slip is graded 1 to 4) – and there was some evidence of exaggeration.

The video evidence obtained was helpful but by no means conclusive. To limit the value of the claim, the allegation of fibromyalgia would have to be tackled head-on.

What the studies say
A fascinating journey through the medical literature followed. Articles ranged from “Fibromyalgia: The commonest cause of widespread pain” to “Fibromyalgia – out of control?” and “Fibromyalgia – a new cause for disability pension”.

One study indicated that out of a sample of 338 healthy school children, 21 satisfied the diagnostic criteria.

In another study, medical students were woken from sleep and prodded – an alarming number were found to have tender spots.

A case in America involved a family of six, all of whom developed the condition after a minor car accident.

In Norway, a study found that two neighbouring counties had the lowest and the highest incidence of disability pension with the diagnosis, despite no real differences in morbidity patterns.

What emerged was that fibromyalgia is not a condition that is universally recognised or particularly well defined. A large number of orthopaedic consultants regard it as a “rag bag” diagnosis that rheumatologists use when no other diagnosis can be made, and a significant number of rheumatologists are sceptical about the condition. It is felt by many that the diagnosis has no diagnostic value. It is often associated with psychological distress.

Furthermore there is considerable doubt – some would say no satisfactory evidence – that the condition can be caused by trauma. Many believe the cause of fibromyalgia is still a mystery, ten years after the American College of Rheumatology published the classification criteria for the condition.

In our case, the alternative explanation of spondylolisthesis, the suggestion of exaggeration and the large volume of sceptical literature we amassed meant we were able to defeat the claim.

  • Duncan Rutter is an insurance partner at the Winchester office of Beachcroft Wansbroughs. He acted for the defendants.

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