Chronic pain cases can be a taxing ordeal. On top of having to deal with the consequences of another person’s neglect or wrongdoing, the victim also has to deal with certain biases and hurdles in the legal proceedings.
So many people suffer from chronic pain syndrome. The Canadian government reports an estimated 7.63 million Canadians living with chronic pain. A condition, which, the government states, ‘although often invisible, is now understood as a disease in its own right.’
Under Canadian law, people dealing with chronic pain are entitled to compensation if such pain was caused by another person’s wrongdoing. This AvaGio Law article provides a synopsis of what one should expect when embarking on a chronic pain case and various pointers to build a strong case.
What Potential Chronic Pain Plaintiffs Should Expect
1. Certain Biases
A plaintiff must be prepared to face biases once they file their chronic pain case. There are certain biases towards chronic pain because it’s a condition that often cannot be seen as plainly as other injuries, for example those that show up on X-rays, MRIs, and the like. Therefore, one of the biggest, most common hurdles in chronic pain cases is convincing the jury that their pain is real.
Often times members of a jury may feel that a plaintiff’s chronic pain may not be as bad is they are making it out to be, or worse still that they may be fabricating it in order to increase their compensation. These biases can be harmful because, unless they are adequately addressed by the plaintiff’s lawyer, they often result in low awards for damages.
While it is difficult to substantiate chronic pain claims, such biases or negative views towards a plaintiff are not insurmountable. There are a number of tools experienced personal injury lawyers can use to help overcome any potential biases, such as: independent medical assessments, a plaintiff’s medical and rehabilitation records showing the persistent and ongoing nature of the pain, and any physical evidence to help demonstrate the severity of the accident that led to the plaintiff’s injuries.
Experienced and capable plaintiffs’ personal injury lawyers know how to build a case that includes chronic pain, successfully address chronic pain biases, and provide the proper evidence to support their plaintiffs’ chronic pain claims.
2. For the Litigation to Take a Long Time
The average personal injury case usually takes one to three years to settle (sometimes more). This is because there is currently no deadline in place for cases to be resolved. Chronic pain cases typically take longer to settle for reasons, such as:
- Chronicity: The very nature of ‘chronic pain’ connotes the passage of time. A person involved in a car accident will not be diagnosed with chronic pain syndrome on the same day they were injured. Rather, it takes quite a while for someone to determine that their pain is indeed chronic.
- Threshold of impairment: In motor vehicle cases, a person’s right to recover compensation is limited by certain statutory hurdles. Unless the mandated threshold of impairment is reached, the plaintiff will not be entitled to recover health care costs or general damages.
- Medical examinations: Cases involving chronic pain will usually require medical examinations. These can further prolong the litigation because of waiting times for appointments and reports. Furthermore, these exams are typically requested only after the plaintiff has been examined for discovery.
3. Expect A Jury
In Canada, civil litigations allow both parties to seek a trial, whether by judge or jury. This jury is composed of six adults who are randomly chosen. Having a jury may hurt a chronic pain case due to inherent biases, as well as people’s tendency to factor personal experiences into their decisions, as opposed to a judge who is trained to be fair under the law. For this reason, defendants usually file a Jury Notice in chronic pain cases.
4. Intrusion into One’s Privacy
Personal injury cases, in general, may involve an uncomfortable amount of intrusion into a plaintiff’s privacy. Medical records will have to be produced, and they might be placed under surveillance to establish the consistency of their claims concerning chronic pain.
How to Build a Strong Chronic Pain Case
1. Deciding on Trial by Jury or Trial by Judge Alone
As discussed above, the risk with a jury trial is that juries tend to be suspicious of injuries that result in chronic pain. This suspicion likely arises because one’s pain cannot be objectively or substantially proven through tests like MRIs, CT scans, etc. Furthermore, even in cases where chronic pain has been proven, jury awards tend to be lower than awards by judges alone.
However, this is not the case in all jury trials, and depending on the plaintiff and the facts, sometimes a jury trial may result in a better outcome then a judge alone trial. An experienced personal injury lawyer will know how to evaluate a plaintiff’s case and make the proper recommendation to a plaintiff on whether to go to trial with or without a jury.
2. Mitigate Losses
Plaintiffs who can prove that they tried to get better are generally perceived more favourably than those who did not try at all. This is called a person’s ‘duty to mitigate,’ or a duty to try to get better to reduce losses.
One way that a plaintiff is generally expected to mitigate their losses is through attending psychological counselling and/or pain management treatments.
Consider this scenario:
- Plaintiff A suffers from chronic pain and has attended numerous treatments to try to improve their condition, but their pain continues to persist.
- Plaintiff B has never attended or rarely attends treatments to try and improve their condition and their pain persists.
In the above example, it is likely that Plaintiff A will be seen in a more favourable light, and therefore likely to be more successful in their case. That is because mitigation efforts such as these helps demonstrate that despite their best efforts, the Plaintiff cannot get better. This helps to prove how their pain is lasting, or in other words, chronic.
Furthermore, Plaintiff B risks both not being successful in their case and even if they are successful at trial, having any award they may get reduced is it will likely be determined that they failed to mitigate their losses.
3. Be Careful with Words
A plaintiff will be asked many questions about their impairment by the defence lawyer, medical examiner, rehabilitation professionals, and others. For this reason, a plaintiff should be wary of using absolute words, such as ‘never.’
Because plaintiffs in chronic pain cases are typically observed under surveillance, it’s difficult to claim that one ‘could never walk straight’ because of their pain because the surveillance footage may suggest something that may be construed as contrary to what they said during litigation.
4. Protect One’s Social Media
A plaintiff’s social media posts can also be used as a form of surveillance to investigate the case. For this reason, they should maintain utmost privacy in their social media accounts and be careful in posting anything that might be used against them.
Contact Your Ontario Personal Injury Lawyer Today
If you or a loved one are dealing with chronic pain because of another person’s wrongdoing, do not hesitate to speak to a personal injury lawyer Toronto from AvaGio Law today. We will be happy to assist you in building a successful chronic pain case.
We have a ‘No fees until we win’ policy at AvaGio Law, which means consultations are free – you do not have to pay unless we can secure appropriate compensation for you.
Call us at (416) 551-5492 or visit our website to fill out a contact form.