A Sudbury man has won an appeal in his fight to be recognized as a survivor of thalidomide, the morning sickness drug given to mothers in the late 1950s and early 1960s.
Doctors later realized the drug caused serious birth defects, including missing and malformed limbs. A program has been set up by the federal government to compensate survivors, and its administered by a third party, Crawford and Company Canada.
Crawford is responsible for determining who is eligible for benefits under the program. Survivors can receive up to $125,000 in a lump sum payment, as well as up to $40,000 a year in income supplements, depending on their health and financial circumstances.
To be eligible, however, the onus is on survivors to show their mother's ingested thalidomide while they were pregnant, leading to their medical problems.
In the case of the Sudbury man, his application was hampered because his mother passed away, as did the family physician who treated her. And a flood at the former Sudbury General Hospital destroyed his medical records.
His appeal was based on an earlier decision in which a Quebec woman was denied benefits from the program because Crawford contended the drug wasn't available in Canada in 1958, and her medical records were destroyed by a fire.
Making matters worse, doctors and nurses who could have verified her story had passed away. But in that case, the woman's lawyer was able to offer proof that the drug was available at that time, and had the woman's relatives testify about what the woman's mother had been prescribed during her pregnancy.
The Sudbury man's case was similar in that, through no fault of his own, records from his mother's doctor were not available, and the flood destroyed the hospital records. The judge hearing the appeal said the man was denied benefits, in part, because Crawford contended the drug was not available when his mother was pregnant.
“The court considers its finding with respect to the availability of thalidomide in 1958 as a key factor, since counsel for the respondent repeatedly relied on the fact that the drug was not available during this period as an important factor in his arguments in favour of the minister's decision in both instances,” the judge wrote.
Because of the challenges many thalidomide survivors face in trying to access their medical records and witnesses, the judge ruled circumstantial evidence can be admitted to support a claim. Coupled with the fact the drug was available and the man has health challenges similar to confirmed thalidomide survivors, there's enough reason to allow his appeal to proceed, the judge wrote.
While there's enough evidence to allow the appeal, the judge ruled there wasn't enough evidence to overturn the decision entirely and award the man compensation. Unlike the Quebec woman, the Sudbury man didn't have any witnesses to confirm that his mother had taken the drug during her pregnancy.
“The two statements of the plaintiff's mother, pronounced apparently several years after the plaintiff's birth, without further corroboration, are, at best, evidence of a great possibility, and not of a probability, that the ingestion of thalidomide was the cause of the applicant's malformations,” the judge wrote.
“It is incumbent on (Crawford) to conclude whether all of the evidence, which includes the finding with respect to the availability of thalidomide in 1958 and its prescription by physicians in Quebec in other cases, is sufficient to conclude that the applicant meets the eligibility criteria to receive financial support under the program.”
