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Law Times • OcTOber 19, 2009 FOCUS Victim wins big in chronic care case BY JULIUS MELNITZER For Law Times I f Ontario Superior Court Jus- tice Douglas Gray's award of approximately $3.5 million in Degennaro v. Oakville Trafalgar Memorial Hospital is any indica- tion, awards for chronic pain are definitely trending upward. "I don't believe that there's a case where there's been such a large award for fibromyalgia or chronic pain," says Alf Kwinter, who with colleague William McMaster of Toronto's Singer Kwinter represented plaintiff Di- ane Degennaro and her family. Gray awarded Degennaro $175,000 for non-pecuniary loss; $116,000 for expenses to the date of trial; $308,100 for loss of in- come to the date of trial; $793,900 for future loss of income; and $1.68 million for future costs. He also awarded Degennaro's hus- band $65,000 under the Family Law Act and $25,000 to each of her two sons along with prejudg- ment interest in accordance with the statutory norm. "The non-pecuniary award is very high for this type of case, and the future care is also very significant," Kwinter says. Nevertheless, it's difficult to track chronic pain awards. "These cases tend to settle because they're so risky," Kwin- ter says. The risk arises, in Kwinter's view, because so much depends on the plaintiff's credibility. "You're trying to convince the court that a person can't work even though there is no objective injury you can tie to the disabil- ity," Kwinter says. "That's why the defence uses all its energy to attack credibility. Plaintiffs in these cases are like expensive vases because if you put a couple of scratches on them, they're worth very little." The case arose in 1999 when Degennaro, married with two children and earning $35,000 annually in a customer service job, had her son Justin admitted to Oakville Trafalgar Memorial Hospital due to flu symptoms. At the time, Degennaro had no significant health problems and pursued an active lifestyle. At the hospital, the attend- ing nurse put Justin in a crib and provided Degennaro with a bed that was in essence a chair folded flat. When Degennaro sat down on one end of the bed to call her husband, it collapsed and rolled. Afterward, the nurse told her she was not supposed to sit on the end of the bed be- cause "it collapses." Degennaro developed dizzi- ness and nausea and was diag- nosed with a cracked sacrum. For two years, she experienced pain that at times was severe. Her doctors recommended managing the pain with exercise and medication, and Degennaro faithfully followed their instruc- tions. Nonetheless, she began to suffer emotionally and by May 2001 was unable to work. In May 2002, Degennaro was in a car accident, but her injuries resolved within months. She spent seven weeks working in 2003 but Untitled-3 1 was unable to con- tinue. Her doctors made a diagnosis of fibromyalgia. Degennaro tes- tified her condition affected her mar- riage, leading to a trial separation, and also affected her relationships with her sons. Ex- perts testified that things were unlike- ly to improve. Michael Birley of Miller Thomson LLP, who represented the defendants, argued the in- juries from the fall had resolved by 2001 and that the car ac- cident was responsible for the fibromyalgia. He didn't respond to a request for an interview. But Gray disagreed, instead finding that Degennaro's fibro- myalgia developed from the in- juries following the incident at the hospital. In doing so, Gray acknowl- edged that "claims based on Alf Kwinter chronic pain have engendered suspi- cion." But here, the experts called by both parties testi- fied that chronic pain, including fibromyalgia, was real and could re- sult from precipi- tating trauma. "In my view, it is foreseeable that chronic pain may result from a physical injury," Gray con- cluded. "While the actual cause of chronic pain is not known, it is known that some people will develop chronic pain after physical trauma. Thus, chronic pain is foresee- able as falling within a range of consequences that may flow from a physical injury." It was important, Gray not- ed, to make the "subtle distinc- tion" between a person of "less than ordinary fortitude" who suffered damage that was not foreseeable and a person of "or- dinary fortitude" who suffered damage that was more serious than expected. "[Fibromyalgia] is a foresee- able consequence in a person of ordinary fortitude," Gray wrote. "Thus, in my view, the defendants must take the plain- tiff as they find her." Kwinter says the credit for the results in the case should go to Degennaro. "It's always been my posi- tion, especially in this type of lawsuit, that it's the client and not the lawyer who makes the case," he says. "Here, the client was convincing. She had an ex- cellent work record and excel- lent doctors supporting her." Kwinter also credits De- gennaro's family doctor for referring her to the proper spe- cialists, one of whom saw her at least 30 times. Structured Settlements BC LT 4/6/05 2:54 PM Page 1 "I had the huge advantage of being able to qualify the treating specialists as experts in chronic pain and fibromyalgia, and the defence didn't chal- lenge that," Kwinter says. LT PAGE 13 Often imitated, never duplicated. The McKellar Structured Settlement™ For almost 30 years, McKellar has set the standard for excellence in structured settlements. With over 250 years of combined claims, legal, accounting and structure expertise at your disposal... Why settle for less? www.mckellar.com GUELPH 1-800-265-8381 McKELLAR STRUCTURED SETTLEMENTS INC. HALIFAX EDMONTON 780-420-0897 www.lawtimesnews.com 1-800-565-0695 USA 1-800-265-2789 10/8/09 3:37:50 PM