Doubtful Diseases

A number of frequently litigated conditions fail most or all the McMaster Criteria for medical causation[1]. Notable and fashionable at the present time are Fibromyalgia, Myofascial Pain Syndrome, Chronic Fatigue Syndrome and even Late Whiplash and Postconcussion Syndromes. Characteristically these show a reversed dose-response gradient (Criterion 4), increasing severity of injury being accompanied by decreasing prevalence.

Plaintiff lawyers need to be aware that, even when the temporal relationship is apparently correct (Criterion 3), these "diagnoses" are vulnerable to Defence attack on causation.

PRACTICE POINT

In "Syndromes", medical causation is generally not established

A useful rebuttal strategy is to treat these conditions as variants of Chronic Pain Syndrome (Medical Litigation News Volume 1, Issue 7 and Volume 2, Issue 10). Here orthopedic surgeons, rheumatologists and physiatrists are out of their area of expertise. Establishing Diagnostic and Statistical Manual 4th Edition (DSM-IV)[2] criteria for Somatoform Disorder (Medical Litigation News Volume 2, Issue 2) and a psychological "thin skull" are the domain of forensic psychiatrists and particularly psychologists, who should also be able to marshall the standardised medical evidence for and against a clinical diagnosis of Malingering (Medical Litigation News Volume 1, Issue 5 and Volume 2, Issue 9).

PRACTICE POINT

Despite client resistance, psychiatric or psychological expert opinion is a valuable element of successful strategy in litigating the common Post Traumatic syndromes