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Chronic pain plaintiff awarded millions

Monday 17 August 2009

GavelCBC News reports on a Canadian woman who was awarded $3.5 million after developing Fibromyalgia following a fall in hospital:

Chronic pain plaintiff awarded millions

Ont. woman with fibromyalgia told 'the pain is real' by judge

A Toronto-area woman left in chronic pain after a hospital bed-chair collapsed under her has won damages of more than $3 million — a sum her lawyer says may be unprecedented in a type of lawsuit where there is no physical evidence of injury.

Laying out the facts of the case in a 39-page judgment, Judge Douglas Gray of the Ontario Superior Court said Diane Degennaro took her two-year-old son to Oakville-Trafalgar Memorial Hospital with flu symptoms in May 1999 and stayed by his crib.

A nurse showed her where she could sleep, the judge wrote.

"The bed itself was actually a chair, which could be folded out into a bed. It was flat when it was first shown to Ms. Degennaro.… She sat on the end of the bed nearest the telephone. The next thing she knew, the bed buckled.… She fell heavily on the floor, landing on her buttocks and lower back. She felt excruciating pain; she thinks she blacked out, she was dizzy and saw stars."

Degennaro, who lives in Mississauga, Ont., was eventually diagnosed with fibromyalgia, a disorder involving widespread pain in muscles, ligaments and tendons, debilitating fatigue and painful reactions to touch.

She was unable to work or even help her children with their homework and her marriage deteriorated, the judge said. He ordered the hospital and its parent organization, Halton Healthcare Services, to pay her $3,073,210 plus pre-judgment interest.

Her lawyer, Alf Kwinter, said the total will be close to $3.5 million with interest and may constitute a Canadian record.

"I can't tell you 100 per cent," he told CBC News on Tuesday, "but I don't know offhand of any chronic pain cases that have exceeded this amount of money."

Such cases are hard to bring to trial because "people suffering from fibromyalgia don't have any objective symptoms" and the entire case rests on their credibility, he said.

"Insurance companies usually go to great lengths to damage a plaintiff's credibility, and if they do the case usually crashes and burns .… This lady was a very, very believable plaintiff, and the judge obviously accepted her evidence entirely."

In his judgment, Gray wrote:

"Chronic pain syndrome is viewed, in some quarters, with suspicion. That is primarily because there is no certain cause, and there are hardly any objective symptoms. Its existence is discerned almost exclusively from subjective descriptions related by the injured party.

"However, the pain is real. The existence of the syndrome has been recognized by reputable experts and has been the subject of litigation."

In this case, he said, "the plaintiff's evidence, which I accept, establishes that debilitating pain commenced immediately after the incident in May 1999."

The article originally appeared here.

The case was also reported at TheStar.com.

 


 

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