Personal Injury

Somatic Symptom Disorder - What is it and how can we prove it?

The Supreme Court of Canada (SCC) recently crystallised the importance of considering how psychiatric injuries accompany physical ones. In Saadati v. Moorhead, Saadati was in a car accident and suffered psychological and emotional trauma. He was awarded damages for mental injury based on the evidence of a lay witness who explained that Saadati’s personality changed post-accident. Expert evidence was not necessary, and the award did not need an attached “recognizable psychiatric illness.” The court found that requiring mental injury to pass the threshold of medical-expert testimony showing a “recognizable psychiatric illness,” while not requiring the same “classificatory label” of physical injury, would amount to unequal protection for those with a mental injury.

This SCC decision confirmed that the law of negligence accords identical treatment to mental and physical injury. This is a decision that is often looked at, as of late, with an overwhelming increase in the diagnosis of somatic symptom disorder (SSD). In dealing with my fair share of personal injury cases, I’ve started to notice this increase. The criteria for the illness remain broad, and like so many other cognitive/psychological conditions, it tends to be met with quite a bit of push back from defendants.

The DSM-5 characterises the condition as follows:

“SSD is characterised by somatic symptoms that are either very distressing or result in significant disruption of functioning, as well as excessive and disproportionate thoughts, feelings and behaviours regarding those symptoms. To be diagnosed with SSD, the individual must be persistently symptomatic (typically at least for 6 months).”

I tend to see this diagnosis when clients are suffering from longstanding subjective physical symptoms. The client is in extreme physical distress, but there’s no explanation of where this additional distress comes from. The pain felt by the client is otherwise disproportionate to the actual seriousness of the injury. I’ve always viewed it as an uncontrollable dispute between the body and the mind. I say this because typically the body is ready to be healed but the mind isn’t.

The proof isn’t as solid as we wish it was. The driving force of the diagnosis is the client’s own reaction to assessment and medical investigation. An SSD case can often be met by an assumption of “fake” injuries or plaintiff malingering. However, the SCC worded it properly when stating that the trier of fact should “not [be] concerned with the diagnosis, but with symptoms and their effects.” This point should always be emphasised when dealing with SSD cases. Focusing on the genuine statement of lay witnesses and providing a clear historical approach of the impact caused by the negligent act, remains the best means to put forward a strong SSD case.

Do You Need a Personal Injury Lawyer? Contact us today and schedule your free consultation?

What should I do if I am injured and someone else is responsible?

As a litigation Lawyer, I am often retained weeks, months or even years after a client has suffered an injury as a result of another’s negligence. Ideally, if you are injured as a result of someone else’s negligence, you should contact a Lawyer promptly to review the circumstances of the incident. I routinely meet people for a no obligation consultation to discuss matters such as liability, limitation periods and evidence that must be preserved.

At the scene of the accident, you should take several steps immediately, whether it is a motor-vehicle accident or a slip and fall, a dog bite or injury caused by a defective product:

1. Identify who is responsible (i.e. exchange of information). If possible, take photographs of obvious material damage (in the case of a motor vehicle collision, take photos of the other party’s car as well as your own);

2. Record via photographs or notes how the incident occurred (e.g. slip fall on uneven pavement); and

3. Identify and obtain contact information of any witnesses to the incident – this is crucial, as witnesses can be lost forever if not identified at the scene.

As a Lawyer representing injured people, I have found that taking these easy steps can be the difference between having a long drawn out fight about legal liability and moving to a meaningful discussion about compensation reasonably quickly.

Need a Personal Injury Lawyer? Contact us and receive a FREE no obligation consultation.

What if I or the other driver don't have insurance?

‍Answer: Ontario's auto insurers provide accident benefits and liability insurance. The accident benefits claim and the tort claim both work together toward covering your losses stemming from the accident. So, what happens when one of the parties involved doesn't have insurance? I've listed the most common scenarios:

A rear-ends B. A doesn't have insurance. B does have insurance:

The standard Ontario insurance policy includes coverage in-case the at-fault party is uninsured or underinsured. B's insurer would be on the hook for the accident benefits and the damages caused by the at-fault party as well (tort claim).

A strikes B (a cyclist). A has insurance. B doesn't have insurance:

In this case, it's up to A's insurer to provide both accident benefits in addition to compensation for the damages caused by A.

A is a pedestrian struck by driver B. A is injured. Neither A nor B have insurance:

In this circumstance, plaintiffs turn to the Motor Vehicle Accident Claims Fund. The fund may provide:

• Accident benefits
• Death and funeral benefits
• Compensation for personal injury or property damage (except for vehicles)

Although the fund does not work exactly like an insurer, it does provide a safety net for injured parties with no accessible insurance policy.

Resources:

• https://www.ontario.ca/laws/statute/90i08
• https://www.ontario.ca/laws/regulation/100034

Need a Personal Injury Lawyer? Contact a licensed professional today and get your FREE no obligation consultation.