Woman with Fibromyalgia Awarded $3.5 Million
A Toronto-area woman who developed fibromyalgia after an injury has been awarded $3.5 million by the Ontario Superior Court of Justice. According to the plaintiff’s lawyer, Alfred Kwinter of Singer, Kwinter in Toronto, the judgment represents one of the highest awards ever given for chronic pain and fibromyalgia. (See the accompanying interview with Alf Kwinter.)
Click here to read the law firm’s press release.
Click here to read more about the case.
Following is an interview with Alfred Kwinter on this groundbreaking decision.
Q. Why are fibromyalgia cases difficult to bring to trial?
|Alfred Kwinter of Singer, Kwinter in Toronto|
A. The reason fibromyalgia cases are so difficult to bring to trial is that there are usually no objective findings that can be seen on an X-ray, CT scan or MRI to explain why the plaintiff is having so much pain. All you often have is the evidence of the plaintiff and those people who have witnessed the change in the plaintiff's behavior since the onset of the syndrome. This puts the credibility of the plaintiff front and center. The insurance companies will spare no expense in trying to attack someone's credibility using extensive surveillance to try to show a person is not as disabled as they claim to be and will have the plaintiff seen by doctors who very often are doctors who do not recognize fibromyalgia and will report that the plaintiff presents exaggerated responses, overreacts and is malingering. This presents great difficulties when trying these cases, especially in front of juries. Unless someone has experienced this condition or knows someone who has, it is looked upon very skeptically by lay people. And, of course, people often know someone who has fibromyalgia but is still working, so they do not understand how the condition can knock someone out of the workforce at a young age, as was the case with Ms. Degennaro.
Q. Besides the large award, what makes this a precedent-setting case in Canadian law?
A. The reason this is a groundbreaking decision is, first and foremost, because of the size of the award. I do not believe there has been an award in Canada for a fibromyalgia case anywhere close to this amount. Secondly, the court carefully scrutinized the syndrome, explaining how skeptical people sometimes are when dealing with fibromyalgia, and how difficult it is to prove given the absence of objective evidence. I don't believe there has ever been a case where the court took such a close and critical look at fibromyalgia and chronic pain.
Q. Some experts dispute the existence of fibromyalgia. What convinced the presiding judge that fibromyalgia is a real condition?
A. What I believe convinced the judge as to the validity of the syndrome and its effects on the plaintiff was, first and foremost, the plaintiff herself and her husband. Both were excellent, credible witnesses. Both described in considerable detail how miserable her life was now compared to the happy, active, and energetic person she was before, and how this condition had destroyed what previously was a very happy marriage. Secondly, we called eminent specialists who spend almost all of their time treating patients with chronic pain. Dr Ko, a physiatrist, in particular had a very impressive CV. And the judge noted in his reasons that it would be hard to find an expert more qualified to give evidence on the subject of chronic pain.
Q. Did any other factors contribute to the success of Ms. Degennaro’s case?
A. The other factors that contributed to the success of her case were that even the doctors called by the insurance company acknowledged that she had fibromyalgia, which is a rather unusual situation. Their position was that the symptoms came on too long after the fall to be related. In fact, the defense doctors did not know that our client started to develop symptoms very soon after her fall, as evidenced by her doctor's records. The defense's opinion was therefore seriously flawed.
Q. How does this settlement compare to similar cases in other countries?
A. I do not know how this settlement compares to settlements in other countries. I do know that fibromyalgia/ chronic pain cases are very difficult to try no matter where.
Q. How do you think this judgment will impact future fibromyalgia cases, including ones in the United States?
A. I believe this case will be of great assistance to plaintiffs’ counsel who try fibromyalgia cases. The judge makes some very strong comments, which lends great credibility to a condition that is still too often treated with great skepticism by both the medical and legal communities.
Q. What initial steps should patients take if they think they may have a case?
A. Anyone who believes they have a case involving fibromyalgia should first ensure that they see the appropriate specialists who treat this condition. They should then retain a lawyer with experience in trying these types of cases. Fibromyalgia cases are different from other claims in that you often have to educate the court (whether judge or jury) about a condition they likely know little or nothing about. And most important—you are trying your client's credibility.