Tag Archives: personal injury

Law Times – Team mentality, dedication to clients sets firm apart for junior lawyer

“A firm can only be as good as the sum of all its parts — to be the best you need all hands on deck and everybody committed to a common goal…McLeish Orlando is known as one of the top, if not the top, personal injury firms, and I believe a lot of that can be attributed to our team mentality,” tells McLeish Orlando lawyer, Brandon Pedersen to Law Times in this piece written by Mallory Hendry.

Read the full article here.

Most Common Spinal Cord Injuries: Types and Causes

Written By: William Harding and Daniel Garas, Summer Student

Most Common Spinal Cord Injuries: Types and Causes

Being involved in a motor vehicle collision or an accident of another kind may result in an injury to the spinal cord. There are varying types of spinal cord injuries (SCIs) and depending on the injury, the symptoms will differ.

TYPES OF SPINAL CORD INJURIES

A) INCOMPLETE Spinal Cord Injury

These injuries are the most common of all spinal cord injuries – accounting for over 60% of SCIs.[1]

With an incomplete spinal cord injury, there still exists some degree of sensory and motor function below the site of the injury.[2] Severe chronic pain may result from these kinds of injuries.[3]

The Most Common Incomplete Injuries

Common types of incomplete spinal cord injuries

1) Anterior Cord Syndrome

Anterior Cord Syndrome results when the injury is to the front of the spinal cord. Predominately, the anterior two-thirds of the spinal cord.[4] This type of injury usually results in “motor paralysis below the level of the lesion as well as [a] loss of pain and temperature at and below the level of the lesion.”[5] Symptoms will vary depending on what portion of the spinal cord is injured.

2) Central Cord Syndrome

Central Cord Syndrome is the most common type of spinal cord injury.[6] In this case, the injury is to the center of the spinal cord. This condition leads to “motor deficits that are worse in the upper extremities as compared to the lower extremities. It may also cause bladder dysfunction (retention) and variable sensory deficits below the level of injury.”[7] Recovery of some movement in the legs is possible; recovery of movement in the arms is rare.[8]

3) Brown-Sequard Syndrome

Brown-Sequard Syndrome is when the injury is on one side of the spinal cord – either the left or right side. The side of the body where the injury is located is affected the most. Symptoms of this injury include:  “weakness or paralysis and proprioceptive deficits on the side of the body ipsilateral [same side] to the lesion and loss of pain and temperature sensation on the contralateral [opposite] side.”[9]

Other Incomplete Injuries

Other incomplete injuries include Cauda Equina Syndrome, Conus Medullaris Syndrome, and Posterior Cord Syndrome.

Cauda Equina Syndrome results when there is damage to the “bundle of nerve roots around the lumbar level of the spinal cord.”[10] The cause of CES is spinal compression. This injury weakens the affected muscles and creates a loss of sensation, but the movement is not necessarily affected.[11]

Conus Medullaris Syndrome affects the sacral cord and lumbar nerve roots. CMS has similar symptoms to CES.[12]

Posterior Cord Syndrome results from damage to the back of the spinal cord and causes poor coordination skills.[13]

B) COMPLETE Spinal Cord Injury

A complete spinal cord injury results when the spinal cord is fully compressed or severed and results in complete bilateral paralysis below the injured site. Bilateral means that both sides of the body are affected equally. In other words, sensory and motor function is completely lost below the point of the injury.

Common types of complete spinal cord injuries.

1) Quadriplegia (Tetraplegia)

Quadriplegia is paralysis that affects all four limbs: both of the arms and both of the legs. The lesion is in the cervical spinal cord[14] and as with any spinal cord injury, the location of the injury on the cervical spine will determine the severity of the paralysis.

2) Paraplegia

A paraplegic loses all sensory and motor functions in their legs and generally the pelvis, but not in their arms. The lesion is usually located in the thoracic or lumbar portions of the spinal cord.[15] Those that are paraplegic are generally more independent as a result.

CAUSES OF SPINAL CORD INJURIES

Spinal cord injuries result from damage to the vertebrae or discs, which causes compression on the spinal cord or damage to the spinal cord directly. This can result from a traumatic blow to a person’s spine.

Studies show that the most common causes for spinal cord injuries are the following: motor vehicle accidents, falls, acts of violence, and sports and recreation.[16]

HAVE YOU SUFFERED A SPINAL CORD INJURY?

If you or a loved one has suffered a spinal cord injury as a result of the negligence of another person, please contact one of the personal injury lawyers at McLeish Orlando LLP for a free consultation.

 

[1] Types of Spine Injuries, Sonoran Spine, December 27, 2016, Accessed on July 7, 2021, https://www.sonoranspine.com/blog/item/types-of-spine-injuries.

[2] What is an SCI, Spinal Cord Injury Ontario, Accessed on July 7, 2021, https://sciontario.org/support-services/info-insights/living-with-an-sci/what-is-an-sci/.

[3] Complete vs Incomplete Spinal Cord Injury: What You Need to Know, SpinalCord.com, February 11, 2020, Accessed on July 7, 2021, https://www.spinalcord.com/blog/complete-vs.-incomplete-spinal-cord-injuries [Complete v Incomplete SCI].

[4] Anterior Cord Syndrome, National Center for Biotechnology Information, Updated on August 10, 2020, Accessed on July 7, 2021, https://www.ncbi.nlm.nih.gov/books/NBK559117/.

[5] Ibid.

[6] Central Cord Syndrome, National Center for Biotechnology Information, Updated on March 6, 2021, Accessed on July 7, 2021, https://www.ncbi.nlm.nih.gov/books/NBK441932/.

[7] Ibid.

[8] Complete v Incomplete SCI, supra note 3.

[9] Brown Sequard Syndrome, National Center for Biotechnology Information, Updated on September 14, 2020, Accessed on July 7, 2021, https://www.ncbi.nlm.nih.gov/books/NBK538135/.

[10] Complete v Incomplete SCI, supra note 3.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Tetraplegia, National Center for Biotechnology Information, Accessed on July 7, 2021, https://www.ncbi.nlm.nih.gov/gtr/conditions/C0034372/.

[15] Ibid.

[16] Spinal Cord Injury, Mayo Clinic, Accessed on July 7, 2021, https://www.mayoclinic.org/diseases-conditions/spinal-cord-injury/symptoms-causes/syc-20377890; Complete v Incomplete SCI, supra note 3.

Jury Striking and the Statutory Deductible: Rumney v Nelson, 2021 ONSC 5632

Written By: Brandon Pedersen and Aidan Vining, Student-at-Law

Jury Striking and the Statutory Deductible: Rumney v Nelson, 2021 ONSC 5632

The recent decision of Rumney v Nelson, 2021 ONSC 5632 out of Orangeville is yet another case where the Defendant’s jury notice was conditionally struck. Interestingly, this case has the added bonus of a discussion about whether a jury should be advised of the statutory deductible in motor vehicle collision cases.

Background

The action arose from a 2012 rear-ending motor vehicle collision. At the time of the motion hearing, the action was scheduled to be tried before a judge and jury in October 2021 and expected to last 4 weeks.

Jury Striking

Due to the ongoing COVID pandemic, the Plaintiff sought a conditional order to strike the Defendant’s jury notice. If the Court is not permitting civil jury trials in Orangeville when the matter is called for trial, then the matter would proceed anyways – but without a jury. On the other hand, if jury trials are permitted when the matter is called for trial, then it would proceed with a jury.

In deciding whether to strike the jury notice, Byrne J. stated:

[26]       When deciding whether justice will be served by striking the Jury Notice, the court should consider (i) the resources available to the Court to outfit its courtrooms to allow for the conduct of jury trials with social distancing; (ii) the local impact of the pandemic, to assess the likely timing for the resumption of jury trials; (iii) the prejudice to the parties that would be caused by delay in adjudication, (iv) the age of the case, and (v) the history of adjournments: Johnson v. Brielmayer2021 ONSC 1245 at para 32.

Byrne J. considered the fact that the motor vehicle collision took place nearly 9 years ago, and that the Orangeville courthouse only has one courtroom sufficiently large for a jury to socially distance. The matter had not been adjourned before, but due to the local conditions in Orangeville, the matter may not be rescheduled for another two years if juries are not available when the matter is called to trial.

Due to this risk of delay and lack of access to justice, Byrne J. conditionally struck the jury notice.

Instructing the Jury of the Statutory Deductible

The Plaintiff also sought an Order that the judge at trial provides an instruction to the jury regarding the statutory deductible as set out in s.267.5(7) of the Insurance Act. Specifically, the Plaintiff wanted the jury to be told how the statutory deductible works and that they should not consider it when determining non-pecuniary damages.

The statutory deductible operates to reduce the amount a person injured in a motor vehicle collision recovers for pain and suffering. The current reduction in 2021 is $39,754.31. This means that if you are injured in a motor vehicle collision, the insurance company will keep the first $39,754.31 of any damages awarded to you for pain and suffering. Juries are not told about this deductible, and triers of fact (i.e. juries) are supposed to make damage awards without regard to the deductible.

In Rumney, the Plaintiff argued that juries should be told about the deductible as this information is readily available on the internet. It was argued that s.267.5(7) of the Insurance Act only states that the assessment of damages should be made “without regard to” the deductible, not “without knowledge.”

Byrne J. noted that the existence of the statutory deductible “is not evidence, but rather a regulation.” As such, Byrne J. found that the regulation applies to every case in the same way, and no evidence on its existence needs to be brought into the trial.

The motion to instruct the jury of the statutory deductible was dismissed.

Why This Matters

This recent decision highlights two important and developing areas of motor vehicle litigation. A steady flow of case law has been growing that demonstrates Courts are willing to strike jury notices due to the ongoing pandemic. The longer restrictions must be in place, the further backlogged the courts will become. Striking the jury is one way for civil actions to proceed in a timely manner and facilitate access to justice.

On the other hand, an interesting argument was made as to why the jury should be instructed about the existence of the statutory deductible. For now, juries will continue to award damages to injured plaintiffs without the knowledge that they will be automatically reduced.

McKee v. Marroquin, 2021 ONSC 5400: the Rule 48.04(1) leave requirement and conditionally striking the jury

Written By: Brandon Pedersen and Lori Khaouli, Student-at-Law

McKee v. Marroquin, 2021 ONSC 5400: the Rule 48.04(1) leave requirement and conditionally striking the jury

Overview of the Case

McKee v. Marroquin is a case arising from a motor vehicle collision that occurred on June 10, 2016, in which the plaintiff was seriously injured. The plaintiff issued a statement of claim on August 21, 2017, alleging that the accident and resulting injuries were due to the negligence of the defendants. In response, the defendant served a statement of defense and jury notice on December 14, 2017. Upon the completion of examinations for discovery of all parties, the plaintiff filed the trial record on April 20, 2018. The defendants objected, stating that numerous undertakings given by the plaintiff on discovery were still outstanding.

On November 15, 2019, the parties attended a pre-trial conference and were advised that they were ready to proceed to trial. The action was subsequently set down for trial for May 2020. Due to the disruption of the regular operation of the courts as a result of the COVID-19 pandemic, the trial was delayed. At a second pre-trial conference in June 2020, the parties once again advised that they were ready to proceed to trial. The trial was delayed once again and ultimately adjourned to the blitz sittings in January 2022 to be heard with a jury.

Leave under Rule 48.04(1)

The defendants objected to the plaintiff’s ability to bring a motion to strike the jury notice in violation of Rule 48.04(1). Under Rule 48.04(1) of the Rules of Civil Procedure, a party that has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court.

The defendants maintained the position that the plaintiff should not have been able to bring a motion due to the fact that the action had already been set down for trial. The defendants’ further argued that the plaintiff had not answered all of the undertakings given on discovery.

Emery J., for the Court, outlined a three-step test to determine whether leave should be granted under Rule 48.04(1):

[14] First, the court must determine whether the change to the circumstances is substantial or unexpected. Second, the court goes on to decide whether it would be manifestly unjust if leave was refused, or if it is necessary in the interests of justice to grant leave, as the case may be. Third, the court should exercise its discretion whether to grant leave having regard to all of the circumstances.

In granting leave, Emery J. referenced recent decisions on motions to strike jury notices in actions from Central West Region, the majority of which found that the pandemic was a substantial or unexpected change in the circumstances such that leave to bring the motion to strike should be granted.

Motion to Strike

Emery J. reviewed the principles related to motions to strike the jury notice:

[28] The bedrock principles behind the right to a jury in a civil case, what is required to displace that right, and the discretion of a judge to strike a jury notice are well settled.  Those principles were reviewed by Hourigan J.A. on the appeal in Louis v. Poitras, and by Trimble J. in Roszczka.  Notably, they include the principle restated by the Court of Appeal in Cowles v. Balac 2006), 2006 CanLII 34916 that the right to a civil jury trial is a substantive right that must not be interfered with except for just cause or cogent reasons.  The Court in Girao v. Cunningham2020 ONCA 260 also confirmed that, while the right to a jury trial is fundamental, it is not absolute and must sometimes yield to practicality.

[29] Brown J.A. described the scope of this discretion in Belton v. Spencer2020 ONCA 623 as a qualified right.  The judge hearing the motion has “rather broad discretion” to decide “whether the moving party has shown that justice to the parties will be better served by the discharge of the jury.”  Brown J.A. went on to emphasize that the paramount objective of the civil justice system is to provide the means for the disputes of parties to be resolved in the manner most just between the parties.

[30] In Louis v. Poitras, Hourigan J.A. put a fine point on this discretion by stating that “motion and trial judges have the discretion to respond to local conditions to ensure the timely delivery of justice.”  This corresponds with the view expressed by Brown J.A. in Spencer that the discretion given by the law to the presiding judge is intended to better serve the justice between the parties.  The question of whether a jury notice should be struck is case-specific, and best answered by the judge hearing the motion and likely most aware of local conditions.

[31] Similarly, the motions judge is most able to answer whether striking the jury notice will better serve the justice of the case between litigants in practical terms.

Having regard to all of the circumstances, Emery J. recognized that it would be necessary in the interests of justice for leave to be granted. Emery J. considered the significant backlog of cases requiring jury trials in the coming months and the undue delay that would prejudice the plaintiff’s case, stating that it justified the departure from the defendant’s right to a jury trial.

Jury Conditionally Struck

Emery J. ordered that the action shall remain on the Brampton trial list for the January 2022 sittings. But, if trials by jury are not provided for January 2022, the jury notice is struck, and the trial shall proceed before a judge alone. However, if the matter is not reached during the January 2022 sittings – whether by jury or judge-alone – it shall be set for a trial on the next earliest sittings by jury. If no jury trials are provided at that time, the jury notice is struck, and the trial is to proceed before a judge alone.

Why This Matters

Recent case law supports the view that the pandemic qualifies as a substantial and unexpected change in circumstances in the context of granting leave — this is especially significant for actions that were set down for trial prior to March 2020. As noted by Emery J., the trial list for May 2022 is currently closed in Brampton, and the earliest the parties in this action could expect a jury trial would be January 2023. The recent decisions of the Court overwhelmingly point to the fact that the delays caused by the COVID-19 pandemic will continue to have a significant impact on the regular operation of the courts for the foreseeable future. However, conditionally striking the jury is an attempt to balance the interests of both plaintiffs and defendants by utilizing a modified wait-and-see approach. Given the court’s willingness to favour conditionally striking the jury over an absolute striking, counsel will have to prepare for trial without knowing whether the action will be heard by a jury or by judge-alone.

What is Catastrophic Impairment?

Written By: Dale Orlando and Emma Pedota, Summer Student

Catastrophic Injury Lawyers

No-fault auto insurance benefits in Ontario are set out in the Statutory Accident Benefits Schedule (“SABS”) which creates three categories of injuries that determine how much money will be available to an individual after being injured in an auto incident. The first category is the Minor Injury Guideline (MIG). An individual will be classified under MIG if they experience whiplash-related injuries, muscular strains/sprains, contusions, and/or lacerations.[1] Individuals who fall under MIG are entitled to $3,500 for their medical-rehabilitation needs.

An individual who does not fall into the MIG will be classified as non-catastrophic (non-CAT) which typically provides up to $65,000 of medical-rehabilitation and attendant care funding, for up to five years.

If an individual has sustained more serious injuries than those outlined under the MIG and non-CAT designation, they may meet the description of catastrophic impairment (CAT). To be found catastrophically impaired, an individual must meet one of the several criteria set out in the legislation. When classified as such by your insurer, the injured person has access to one million dollars over their lifetime for medical benefits, rehabilitation benefits, and attendant care benefits.

The SABS defines catastrophic impairment as one of the following:

  • Paraplegia or tetraplegia
  • Traumatic brain injury
  • Blindness or a loss of vision of both eyes
  • Amputation or severe impairment of the ability to move or use one arm or to walk independently
  • Physical impairment or a combination of physical impairment that results in 55 percent whole person impairment
  • Severe mental/behavioral disorder in three or more areas of function

It is important to note that the designation of a catastrophic injury is different for children than for adults with regard to brain injuries. This is because a brain injury in children may not be immediately apparent. For other injuries, including spinal injuries, blindness, loss of limbs, etc., children are evaluated for a catastrophic injury in the same way as adults.

Causes of Catastrophic Injuries

Catastrophic injuries can be caused by a variety of factors. Some of the most common causes of catastrophic injuries are:

Changes in Ontario Law

Recent changes to Ontario law have made it more difficult for individuals to recover compensation after suffering a catastrophic injury. For example, the previous regime allowed victims to receive up to $1 million in medical and rehabilitation benefits and up to $1 million in attendant care benefits. The current regime has reduced these benefits to allows individuals to receive up to $1 million for medical, rehabilitation, and attendant care benefits.

Tort Action Against a Negligent Party

In addition to receiving benefits from your own insurer, an individual who has been seriously injured as a result of a motor vehicle incident is entitled to sue the negligent party for damages. The tort system is designed to put the innocent injured party in the financial position that he or she would have been if the injury had not occurred. Some of the heads of damages in a tort action include:

  • Loss of past income
  • Loss of future income
  • Cost of attendant care and future care
  • Housekeeping and home maintenance
  • Special damages
  • General damages for pain and suffering and loss of enjoyment of life

In Ontario, there are caps on damage awards that may limit a catastrophically impaired individual’s recovery. For example, there is a limit on damages for pain and suffering, which is capped at about $370,000 as of 2020, subject to inflation each year. However, damages for income loss and future cost of care do not have a cap.

If you or a loved one have been catastrophically injured, or if your pursuit of catastrophic designation has been denied by your insurer, call McLeish Orlando for a free consultation.

 

[1] Najma Rashid, What is Catastrophic Impairment, online: Ontario Trial Lawyers Association Blog < https://otlablog.com/what-is-a-catastrophic-impairment/>.

Causation and the Role of Expert Evidence in Medical Malpractice Litigation: Hacopian-Armen Estate v Mahmoud, 2021 ONCA 545

Written By: Brandon Pedersen & Aidan Vining, Student-at-Law

Causation and the Role of Expert Evidence in Medical Malpractice Litigation:  Hacopian-Armen Estate v Mahmoud, 2021 ONCA 545

Factual Background of the Case

A recent case from the Ontario Court of Appeal demonstrates the integral role experts play in medical malpractice litigation. In Hacopian-Armen Estate v Mahmoud, 2021 ONCA 545, a gynecologist was found to have negligently caused the death of his patient.

Ms. Hacopian-Armen died in 2011 from Stage IV uterine leiomyosarcoma (“uLMS”), an aggressive form of cancer that originates in the muscular outer layer of the uterus. Diagnosing uLMS is difficult as it has features similar to fibroids, which are fairly common benign, non-cancerous growths. Fibroids cannot be distinguished from uLMS by imaging. Instead, uLMS can be discovered by conducting an endometrial biopsy – a short and simple in-office procedure.

Ms. Hacopian-Armen’s health issues began when she was diagnosed with fibroids in 1999. In 2009, she was referred to the gynecologist for treatment.

Ms. Hacopian-Armen exhibited several risk factors for diseases of the uterus at her first meeting with the gynecologist in 2009. The risk factors included: being over 40 years old, experiencing abnormal uterine bleeding, and never having given birth. The gynecologist conducted a routine swab of Ms. Hacopian-Armen but did not perform an endometrial biopsy.

Unfortunately, Ms. Hacopian-Armen’s symptoms worsened. In April 2011, the gynecologist performed an endometrial biopsy, which revealed that Ms. Hacopian-Armen had a Stage IV cancerous tumour in her uterus. Ms. Hacopian-Armen had a hysterectomy and began chemotherapy, but it was too late. Ms. Hacopian-Armen died in August 2011, four months after the gynecologist discovered the cancerous tumour.

Ms. Hacopian-Armen’s family started a lawsuit against the gynecologist. They alleged that his failure to conduct an endometrial biopsy was negligent, in that conducting said procedure would have likely detected Ms. Hacopian-Armen’s cancer at a much earlier stage, making it likely that her death would have been prevented.

Trial Decision

Expert witnesses played a significant role in the trial decision.

The trial judge accepted Ms. Hacopian-Armen’s expert’s opinion that Ms. Hacopian-Armen likely had the cancerous uLMS at the first meeting with the gynecologist, and that had an endometrial biopsy been performed on that date, the uLMS likely would have been detected. The trial judge also found that the Ms. Hacopian-Armen’s prognosis would have been substantially improved if the uLMS had been found and treated in 2009. The cancer could have been removed from her body at that time before it had a chance to spread. The trial judge concluded that but for the gynecologist’s failure to perform the biopsy in 2009, Ms. Hacopian-Armen would probably not have died of Stage IV uLMS. The risk of uLMS was real, and it was foreseeable that if uLMS went untreated, it would likely result in serious injury or death.

Ultimately, the trial judge concluded that:

  • The gynecologist breached the standard of care that he owed to Ms. Hacopian-Armen by failing to perform an endometrial biopsy;
  • A biopsy performed at the first appointment in 2009 would have detected the uLMS, which would have greatly improved Ms. Hacopian-Armen’s prognosis; and
  • The harm that occurred to Ms. Hacopian-Armen and her family members was foreseeable and caused by the gynecologist’s failure to perform the biopsy.

Justice Brown summarized her conclusion as follows:

[156] Based on all of the evidence adduced at trial, including the medical records, the opinions and testimony of the medical experts adduced on behalf of both parties, the submissions of counsel and the case law, I find that Dr. Haider Mahmoud fell below the standard of care by failing to perform an endometrial biopsy on May 25, 2009. His notetaking fell below the standard expected of a reasonably skilled specialist in his professional field.  Further, in failing to perform an endometrial biopsy on May 25, 2009, this allowed the plaintiff’s LMS to progress to the point that the course of the disease was unable to be altered by the time it was finally diagnosed. It was foreseeable, and not too remote, that the negligence would result in the plaintiff’s final loss. I am satisfied that causation, both factual and legal, have been established.

Appellate Decision

The gynecologist challenged the trial decision based on alleged errors in the trial judge’s conclusions on legal and factual causation.

Legal Causation

The gynecologist argued that the trial judge relied on retrospective reasoning and the benefit of hindsight in determining causation. It was argued that the trial judge erred by asking whether it was foreseeable that the presence of uLMS, if untreated, would lead to serious injury or harm. Rather, the gynecologist argued that the proper questions to be asked were whether it was foreseeable to a reasonable gynecologist that (a) Ms. Hacopian-Armen had uLMS in 2009; (b) an endometrial biopsy would have diagnosed the uLMS; and (c) not performing an endometrial biopsy could lead to a delayed diagnosis of uLMS. This is because, the gynecologist argued, uLMS is a rare form of cancer and the harm was too remote and unforeseeable.

The gynecologist argued that the trial judge’s retrospective approach to causation would create a dangerous precedent and force physicians to order unnecessary tests to avoid the risk of missing unforeseeable diseases.

The unanimous panel at the Court of Appeal agreed that the trial judge inappropriately blended her factual and legal analysis with hindsight. However, the Court held that it did not matter that the gynecologist did not know that Ms. Hacopian-Armen had uLMS in 2009. What mattered was the combination of risk factors being presented by Ms. Hacopian-Armen at the time. Due to her age, the fact that she had not had a child, and the symptoms she was having, an endometrial biopsy was required and it was reasonably foreseeable that the failure to conduct one would preclude detection of uterine diseases which would cause serious harm if left untreated.

The Court stated that it is sufficient that the harm suffered is of a kind, type or class that was reasonably foreseeable as a result of the gynecologist’s negligence. By failing to conduct a biopsy that would have detected cancers of the same class or kind as uLMS (including uLMS itself), it was foreseeable that uLMS or other cancers of that kind would go undetected, resulting in injury to Ms. Hacopian-Armen.

The Court also rejected the argument that this case would result in doctors ordering unneeded tests. In this case, due to Ms. Hacopian-Armen’ symptoms and risk factors, a biopsy was actually necessary and ought to have been performed by a competent gynecologist.

The Court therefore rejected this ground of the gynecologist’s appeal and upheld legal causation.

Factual Causation

The gynecologist also argued that the judge erred in finding that but for his negligence, the injury would not have occurred. Specifically, the gynecologist argued that the trial judge erred in (a) finding that uLMS was likely present at the first meeting in 2009, and (b) in finding that an endometrial biopsy would have likely detected uLMS in 2009.

The Court determined that the standard of review applicable to this case was one of palpable and overriding error, as negligence matters involve questions of mixed law and fact. The trial judge’s treatment of expert evidence was therefore given deference.

The trial judge explicitly found Ms. Hacopian-Armen’s experts to be more reliable than those of the gynecologist. Two experts testified on behalf of Ms. Hacopian-Armen that uLMS was likely present in 2009 when Ms. Hacopian-Armen was first examined by the gynecologist. The trial judge accepted this evidence and rejected the gynecologist expert’s opinion that there was no proof of uLMS being present in 2009. The Court of Appeal found no error with the trial judge’s acceptance and rejection of expert evidence.

The Court of Appeal also found no error with the trial judge’s acceptance of Ms. Hacopian-Armen’s expert opinion that uLMS likely would have been detected had a biopsy been conducted in 2009. When there are conflicting expert opinions presented by the parties, a trial judge is entitled to accept one side’s expert opinion over the other. The trial judge found Ms. Hacopian-Armen’s experts to be “forthright, impartial and consistent” whereas the gynecologist’s experts were described as “less than forthright” and “argumentative.” The trial judge found Ms. Hacopian-Armen’s experts to be more credible and thus accepted their evidence over the gynecologist’s experts.

Conclusion

The appeal was ultimately dismissed, and the trial judge’s finding of liability on the gynecologist was upheld.

Why This Matters

This case demonstrates the significant role experts play in medical malpractice litigation. Due to the technical and complex nature of these cases, judges rely heavily on expert evidence to inform their opinion and ultimate decision of a case. For this reason, it is important that you obtain an experienced personal injury lawyer that is familiar with dealing with experts and complicated cases. Obtaining the right expert for your case and obtaining the best evidence from that expert can be the difference between winning and losing a case.

If you or a loved one have been injured, please contact McLeish Orlando Lawyers LLP.

Safety Equipment Requirements while Paddle Boarding, Canoeing and Kayaking in Ontario

Written By: Lindsay Charles and Emma Pedota, Summer Student

Safety Equipment Requirements while Paddle Boarding, Canoeing and Kayaking in Ontario

Certain safety equipment is required while onboard a stand-up paddleboard (SUP boarding), canoe, and kayak as these human-powered boats are subject to the Small Vessel Regulations.[1] For example, if you’re operating a paddleboard, kayak, or canoe without a personal flotation device (PFD), you could be fined $200 plus $100 for each missing flotation device and be subject to provincial surcharges. The required equipment must be carried on board, be in good working order, maintained according to the manufacturer’s instructions, and available immediately in case of an emergency.[2]

MANDATORY SAFETY EQUIPMENT REQUIREMENTS FOR STAND UP PADDLEBOARDS (SUP)

If you are SUP boardings for non-navigational purposes, such as doing yoga or surfing, you do not need to bring any of the following equipment with you.

SAFETY EQUIPMENT: TYPE: DESCRIPTION:
PFD Personal Lifesaving Appliance You are required to wear a Canadian-approved PFD. Inflatable PFDs are not legal for white-water paddling as they are not inherently buoyant.[3] For a PFD to meet safety regulations you have to be wearing it while you’re on the water.

 

Inflatable PFDs are prohibited for children under 16.

Sound Signalling Device Audio Signal A sound signaling device can be in the form of a whistle, pealess whistle, air horns, etc., and often come with an approved PFD.

 

Flashlight Visual Signal If your paddleboard is more than 6 meters long, as is the case with most paddle boards, you will need a watertight flashlight.

 

A flashlight is especially important when paddleboarding before sunrise, at sunset, or in any condition with reduced visibility.

 

OPTIONAL SAFTEY EQUIPTMENT

If you are wearing a PDF of appropriate size and paddling in a kayak or SUP board after sunset or before sunrise or in conditions of restricted visibility, you are only required to carry a sound-signaling device and a watertight flashlight. However, there are other safety devices that can increase your safety in an emergency situation when SUP boarding.

SAFETY EQUIPMENT: TYPE: DESCRIPTION:
Ankle or Waist belt Leash

 

Personal Lifesaving Appliance This is a cord that attaches to the rear of your board and then connects to your ankle via ankle cuff.

 

If you fall off your paddleboard, your leash will ensure that the board does not drift away from you and remains attached.

 

Parks Canada recommends the use of an appropriate ankle or waistbelt leash. While Transport Canada has supported the use of a leash while paddleboarding, they have emphasized that it is not a replacement for PFDs.

 

Flares Visual Signal If you plan on paddling somewhere that’s more than 1.852km (one nautical mile) you are required to carry 6 flares.

 

Even if you’re exempt, it’s important to turn your mind to

where and when you will be paddling, and whether carrying flares may assist you in a foreseeable emergency situation.[4]

 

Radar Reflector Navigation Equipment A radar reflector is not required for boats under 20m, however small, non-metal boats such as paddleboards are not detected on the radar systems of larger boats.

 

In high traffic waters or in restricted visibility a GPS and a radio will advise bigger boats of your location and limit the potential of a collision.

 

Compass Navigation Equipment If your boat is less than 8m long and you’re paddling within sight of navigation marks, you’re not required to have a compass. However, a compass can be useful if you are paddleboarding in foggy conditions where navigation marks may be difficult to see.

 

MANDATORY SAFETY EQUIPMENT REQUIREMENTS FOR KAYAKS & CANOES

SAFETY EQUIPMENT: TYPE: DESCRIPTION:
PFD Personal Lifesaving Appliance See description above
Sound Signalling Device Audio Signal See description above
Flashlight Visual Signal See description above

OPTIONAL SAFETY EQUIPMENT FOR KAYAKS & CANOES

SAFETY EQUIPMENT: TYPE: DESCRIPTION:
(1) Reboarding device Personal Lifesaving Appliance Refers to a ladder, lifting harness, or other devices that do not include part of the vessel’s propulsion unit and assist a person to gain access to the vessel from the water.[5]

 

(1)  Buoyant Heaving Line at least 15 m Personal Lifesaving Appliance A buoyant heaving line is a floating rope that has a soft buoyant object on the end. The line can be thrown towards a person in the water for them to hold onto while you pull them alongside.[6]
Flares Visual Signal See description above
Radar Reflector Navigation Equipment See description above
Bailer Vessel Safety Equipment See description above
Compass Navigation Equipment See description above

 

Before heading out on the water it’s important to know what mandatory equipment is required on board to ensure that you are safe while enjoying the water.

 

[1] Government of Canada, Safety Equipment for Pleasure Craft (continued) (June 28, 2021), online: Justice Laws Website < https://laws-lois.justice.gc.ca/eng/regulations/sor-2010-91/page-6.html>.

[2] Mandatory Safety Equipment in Canada, online: Pat’s Boating in Canada < https://boating.ncf.ca/equipment.html>.

[3] MEC, On-Water Safety: Mandatory Gear, online: Mountain Equipment Coop, < https://www.mec.ca/en/explore/mandatory-paddling-gear>.

[4] Ibid.

[5] Transport Canada, Safety Equipment (April 14, 2014), online: Government of Canada < https://tc.canada.ca/en/marine-transportation/marine-safety/4-safety-equipment>.

[6] Boat-Ed, Buoyant Heaving Lines and Lifebuoys, online: Kalkomey < https://www.boat-ed.com/canada/studyGuide/Buoyant-Heaving-Lines-and-Lifebuoys/101199_115754/#:~:text=Buoyant%20heaving%20lines%20and%20lifebuoys%20are%20personal%20lifesaving%20appliances%20that,a%20person%20in%20the%20water.>

New Watermark for Loss of Care, Guidance, and Companionship Damages: Moore vs 7595611

Written By: Patrick Brown and Daniel Garas, Summer Student

In the recent decision of Moore v 7595611[1], the Ontario Court of Appeal upheld an award of $250,000 for loss of care, guidance, and companionship – a new watermark for damages of this kind.

PREVIOUS WATERMARK

The previous high-end for this head of damages was $100,000, established in To v. Toronto (City) Board of Education.[2] This 2001 decision involved a student that was killed during his physical education class when the handball net, on which he was doing pull-ups, fell on his head.[3] Under loss of care, guidance, and companionship, the parents were each awarded $100,000 – an award that would not be interfered with by the Ontario Court of Appeal.[4]

NEW WATERMARK

In the decision released on June 25, 2021, a unanimous Court dismissed the appeal by the numbered company. The Appellant, among other issues raised, challenged the jury award for loss of care, guidance, and companionship ($250,000 to each Plaintiff).

This case arose when the Plaintiffs’ daughter, as tenant, suffered serious injuries which she sustained during a house fire.[5] She was trapped, with no way of escape, and later died at Sunnybrook Hospital. [6] The Plaintiffs decided to commence an action against the Defendants for their negligent conduct.

The numbered company cited To v. Toronto (City) Board of Education, for the proposition that the award of $250,000 was too high.[7] The Appellants specifically quote paragraph 37 of the To decision, where the Court held that the $100,000 award represented the “high end of an accepted range of guidance, care, and companionship damages.”[8]

Despite this, the Court held that the threshold for interfering with a jury award is “extremely high”[9] and in the present case, agreed with the Plaintiffs’ that it should not interfere because the high standard had not been met.[10] The Court further noted that the decision in To stated that “each case must be given separate consideration.”[11]

The Court of Appeal states that ultimately “there is no neat mathematical formula that can be applied to determine the correct amount” when calculating this type of damages.[12]

In summary, Justice Fairburn writes that “while there is no question that the jury award for loss of care, guidance, and companionship, in this case, is high, in light of the factual backdrop of this case, it does not constitute an amount that ‘shocks the conscience of the court’…Nor does it represent an amount that is ‘so inordinately high’ that it is ‘wholly erroneous’ in nature.”[13] (Emphasis is my own)

WHAT THIS ALSO MEANS

Even though this case deals with the loss of a daughter, the amount and decision by the court of appeal should impact all awards relating to loss of care, guidance, and companionship (including loss of spouse, parent, grandparent) as well as adjusting the ranges given by judges at trial.

INJURED?

If you or a loved one has been injured, please contact the lawyers at McLeish Orlando LLP for a free consultation.

 

[1] Moore v. 7595611 Canada Corp., 2021 ONCA 459 [Moore].

[2] To v. Toronto (City) Board of Education, 150 O.A.C. 54, 204 D.L.R. (4th) 704 [Toronto Board].

[3] Ibid at para 3.

[4] Ibid at para 31.

[5] Moore, supra note 1 at para 1.

[6] Ibid at paras 2 and 3.

[7] Ibid at para 22.

[8] Ibid; Toronto Board, supra note 2 at para 37.

[9] Moore, supra note 1 at para 24.

[10] Ibid at para 26.

[11] Ibid at para 27; Toronto Board, supra note 2 at para 29.

[12] Moore, supra note 1 at para 27.

[13] Ibid at para 30.

Collisions at Intersections

Written By: Lindsay Charles and Sonam Sapra, Summer Student

Collisions at Intersections

In Canada, about 30% of traffic fatalities and 40% of serious personal injuries occur at intersections. These alarming statistics clearly illustrate why intersections are regarded as one of the most dangerous locations on a roadway.

Why are Intersections Dangerous?

In Ontario, there are two main types of intersections: controlled and uncontrolled. Controlled intersections generally have traffic lights, yield signs or stop signs that work to control traffic. Controlled intersections are usually found in urban areas. On the other hand, uncontrolled intersections do not have signs or traffic lights and are usually found in areas where there is no traffic, such as rural areas. While different, both types of intersections are equally as dangerous.

Controlled intersections are considered dangerous locations on the roadway because they are high conflict zones. More specifically, controlled intersections usually have multiple roads that cross over each other, right-turning lanes, left-turning lanes, bicycle lanes, and pedestrians in the same area – all of which give rise to the possibility of conflicts that can result in collisions. Uncontrolled intersections might be less busy than controlled intersections as they are located in more rural areas, however, at these intersections, collisions occur at high speeds making them particularly severe.

There are four main types of collisions that occur at an intersection: side-impact collisions, also known as T-bone collisions, head-on collisions, left-turn collisions, and rear-end collisions. Further, at intersections, both cyclists and pedestrians can be struck by motor vehicles. Side-impact, or T-Bone, and head-on collisions can have very serious consequences and often result in fatalities, especially when the vehicles involved are traveling at high speeds.

With the high rate of collisions occurring at intersections, the National Highway Traffic Safety Administration (“NHTSA”), run by the United States Department of Transportation sought to identify the leading causes of intersections collisions by conducting an on-scene study.

The Leading Cause of Intersection Collisions

The study by the NHTSA identified six critical driver-attributed causes of intersection crashes. The NHTSA observed 756,570 intersection-related collisions and concluded that inadequate surveillance by drivers was the leading cause of intersection collisions, accounting for 44.1% of the crashes. The remaining causes identified by the study include: the false assumption of the other’s actions, turned with an obstructed view, illegal maneuver, internal distraction, and finally, misjudgment of gap or other’s speed.

How We Can Help

Ultimately, collisions at intersections can result in serious personal injuries, and determining who is at fault can be a complicated and arduous process. The lawyers at McLeish Orlando can help navigate the process and alleviate the stress that arises from such a collision.

Please contact the lawyers at McLeish Orlando for more information and to schedule a free assessment of your case.

Traffic Calming: Art or Liability?

Written By: Michael Warfe and Cody Malloy, Summer Student

Traffic Calming: Art or Liability?

A Toronto man recently decided to turn his front yard into a work of art.  Are we talking Renaissance art?  Modern art?  Maybe more of a Picasso taste?  Not quite.  The former IT worker decided to decorate the trees in his front yard with CDs and old hard drives.

The result?  Slower traffic on his street.  Why?  Just like with collisions on the 401, people are slowing down to look!

This display is certainly catching the attention of passing motorists.  The homeowner used to have a spaceship on his front lawn, and that certainly caught people’s attention.  Lawn artwork is not an entirely unusual concept.  Although we are just entering summer, if we think ahead to December, Christmas light displays are common.

Traffic calming measures have certainly started to rise in recent years.  Kitchener, Albuquerque, and Rochester have all recently taken their turn at trying to slow drivers down with street murals.

Here’s one thing the Toronto man has perhaps not considered: what if his art display distracts a driver and a collision happens as a result?  It’s happened with Christmas light displays in the past, so it’s certainly not out of the realm of possibilities.  Does the homeowner in this hypothetical scenario bear any liability?

Envision the following scenario:

A driver passing through a neighborhood is looking at traffic calming artwork.  While looking, the driver strikes a cyclist crossing the road.  The cyclist will surely file suit against the driver.  Can the driver file a third-party claim against the homeowner?

The driver could certainly make the argument that the artwork was a danger.  A person putting artwork on display certainly intends on attracting attention.  Although the homeowner may intend to draw attention to slow a vehicle down, it doesn’t always work out that way.  The point is, the homeowner intended on drawing attention to the artwork.  If this artwork creates a dangerous condition for drivers, the homeowner could unknowingly open themselves up to liability.

Which area of the law do we look to in order to answer this question?

There’s no easy answer to that question.  Typically, homeowners in Ontario are liable under the Occupier’s Liability Act, which outlines an occupier’s (homeowner’s) duty of care.  Section 3(1) states:

An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Clearly, section 3(1) does not apply to our situation.  A driver driving on a public roadway is at no time on a homeowner’s premises.  Alright, where do we look next?

It’s still a tough question to answer.  One may think to venture down the road of public nuisance, but it is highly unlikely an individual driver would have the standing to bring such a claim in court.  Public nuisance claims are more for damage to the public and often arise from damage that occurred over a long period of time.

Although a stretch, a court could hold the homeowner strictly liable by determining the artwork to be a non-natural use of land, per Rylands v. Fletcher [1868] HL1.  Although Rylands is an old case, it is still highly relevant in Canadian tort law with regards to strict liability.  Rylands held that a landowner can be strictly liable from damages caused by non-natural land use.  Rylands established three elements that must be met to hold a landowner strictly liable: non-natural use of land, an escape of something likely to do mischief from the land, and damages.

The non-natural use of land is now defined as use that’s dangerous, extraordinary, special, and of no general benefit to the community. [1] Although the artwork could be considered dangerous, it definitely has the possibility to have some benefit to the community in the form of calming traffic.  It’s clearly debatable how a court would rule on this element specifically.

In terms of escape of something likely to do mischief from the land, a creative argument could certainly be made.  Although not a physical escape like the flood in Rylands, a driver could argue that the visual attraction is an intangible visual escape that is likely to cause mischief.

Lastly, damages would be met, suffered by the victim of the collision.

Crazy roadside artwork aside, distracted driving is a serious issue.  Most people certainly think of cellphone usage when distracted driving is mentioned.  According to the CAA, deaths caused by distracted driving exceed the deaths caused by impaired driving in certain parts of Canada.  Potentially distracting artwork may not be the answer, but the concern for safer driving is real.

If you are a victim of an injury from a distracted driver, McLeish Orlando is here to help.  Please contact us for a free consultation, and one of our lawyers will evaluate your claim.

 

[1] Phillip H. Osbourne, The Law of Torts, 6th Ed. (Irwin Law 2020) at 364.

Photo by Fee Gunn

10 Common Summer Time Accidents for Kids and How to Avoid Them

Written By: Patrick Brown and Cody Malloy, Summer Student

10 Common Summer Time Accidents for Kids and How to Avoid Them

Summer is officially here, and no one is more excited about the hot weather than our energetic children.  After months of being constantly stuck at home due to schools being closed due to COVID-19, children are finally ready to get outside and have some fun.

The number one thing we can all do to ensure our children are safe is to ensure we drive slowly and cautiously in our communities.  As well, we should also consider avoiding the use of the car for short distances in areas where children play.

Children are unpredictable at times and heightened awareness by adults is key to their safety.  As well, we should also consider some other tips that may help.

1) Biking

Although kids will be quick to whip out their bicycles, it’s important to first take the proper safety measures.  Under the law, children must wear a properly fitted and approved bicycle helmet.

Most local bylaws permit younger children to ride on the sidewalk. Again, the number one preventative measure to protect our children on bikes is to drive slowly and safely.

When driving in areas where children are, ensure that you will be able to stop your vehicle quickly.  Always be watching for children playing to ensure that if they make an unexpected move, you are ready to react.

All drivers must give at least one meter when passing cyclists.  Where young people are riding, slow down and proceed around the cyclist when you can ensure you can do it safely.  Otherwise, be patient and wait.

One of the greatest dangers to children is drivers who are distracted and look at their phones.  This is leading to drivers leaving the roadway and potentially striking children as they play.  Using your phone and other forms of distraction inside a car puts children at high risk.

Contact between a car and a child even at slow speeds has tragic consequences.  Always make sure before you reverse in your neighborhood to be hyper-vigilant for children on sidewalks, behind the car, or on the road.

By putting safety first, kids can enjoy their summer ride in the sun.

2) Playing on the street

Whether it’s hide and seek, road hockey, skateboarding, or any other fun activity, kids love to play on the street with their neighbourhood friends.  Unfortunately, an inattentive motorist can come by at any time and put your kids at risk.  Pedestrian accidents involving children playing outside are a very real danger.

It is important that all communities monitor the road activity in their neighbourhoods and educate small children about the risks associated with drivers.  If drivers are driving at high rates of speed in your neighbourhood, contact your local councillors and road authorities to try to have measures implemented to reduce speed.  These can include speed reduction, bulb-outs, speed bumps, road diets, signage, etc.  A comprehensive list of recommendations local authorities can employ are listed in the Office of the Chief Coroner for Ontario Pedestrian Death Review.

3) Swimming

Whether it’s at a pool or a beach, children love swimming and all of the fun games that go along with it.  However, fun in the water comes with a very serious safety hazard.  The danger of children drowning is very real.

Swimming children should be supervised by an adult at all times.  If your child is swimming at a municipal pool or local beach, see if there’s a lifeguard on duty.

As swimmers ourselves, we can do our part to look out for the well-being of all children.  If you are swimming in a pool or local lake, take notice of children playing in the water nearby.  Be on the lookout for any child that may appear to be struggling to keep themselves afloat.

On average, about 400 people die from drowning every year in Canada.  By taking swimming safety seriously, we can lower this heartbreaking statistic.  If you see a child in distress in the water, immediately call 911.

4) Boating

On a nice cottage weekend, sometimes there’s nothing more fun than taking the family out on the boat to check out the local lake.  Unfortunately, boating accidents involving children are quite common during Ontario summer months.

Like driving, drinking and boating do not mix and can have deadly consequences to children and others on the lake.  If you and your family believe that this is an issue in the areas where you boat or swim, you can notify the local authorities of your concern.

If you want to tow the kids on a tube, ensure you have a spotter on the lookout for other watercraft and any fallen tubers.  Properly fitted lifejackets for children are a must to ensure the kids have a fun and safe cottage weekend on the water.

Always be on the lookout for children playing in the water.  If you’re driving your boat near a designated swimming area, be sure to slow down and watch out for any children.  Children may be too busy playing to notice nearby boats, so we must all do our part to put the safety of children first when driving close to shore.

See: boating safety tips from the Canadian Red Cross

5) Sports

Although the road to organized sports, such as baseball and soccer, still remains unclear as Ontario continues to reopen from social distancing restrictions, kids are sure to play unorganized sports for fun with their friends at local parks.

Always make sure that your kids are wearing the proper footwear and have the proper safety equipment for the sport.  Playing soccer in flip flops is most certainly going to result in a rolled ankle, or worse.

If your child is playing baseball, ensure they wear a properly fitted batting helmet to avoid serious brain injuries.  Concussions are a major risk in children’s sports.  If your child is injured and reports any concussion-related symptoms, take your child to a doctor.

If you’re throwing a ball around amongst your friends with children playing nearby, be sure to be vigilant in looking out for unsuspecting children that may wander close to you.  Whether it’s an errant throw or chasing down a ball in the air, the last thing anyone wants is a collision with a child.  By being aware of our surroundings, we can ensure fun at the park for all ages.

6) Left alone in a car

Leaving young children alone in a hot car is a very serious risk to your child’s health.  Despite the obvious risk, on average, one child in Canada dies from heatstroke in a hot car every year.

Never leave your children in a car alone.  If you can’t bring your child with you, arrange for daycare for your child.  A child’s life can be in danger even only after a few minutes inside a hot car.  No, cracking the window isn’t a good alternative either.

Surprisingly, most incidents related to children left unattended in hot cars are accidental.  As crazy as this may sound, always check the backseat when getting out of your car.  If you see a child in distress alone in a car during the summer months, call 911.

7) Playground climbing

Although playgrounds were previously closed by the provincial government, the summer is the perfect time for kids to utilize municipal playgrounds.  However, children should avoid climbing on areas that aren’t meant to be reached.  A supervising adult should ensure children aren’t trying to climb on anything that’s unsafe.  Games such as “Grounders”, which is an alternate game of “tag” where one person has their eyes closed, are extremely dangerous and should be avoided.

If you’re supervising your child at a playground, ensure they’re using the equipment in the way it’s designed to be used.  No one wants to take their child to the hospital for a broken arm after an unnecessary fall.

If you notice faulty or damaged playground equipment, be sure to contact your local municipality to get it repaired.  Whether it’s a broken chain on a swing or a sharp edge on a ladder, these issues should be brought to your municipality’s attention as soon as possible to avoid children getting injured.

8) Trampoline

Backyard trampolines are certainly a popular activity for children in the summer.  However, if used improperly, they are extremely dangerous for children.  Improper use of a trampoline can result in serious brain or spinal cord injuries, resulting in permanent disfigurement of the child.  Trampolines should be used under adult supervision, and stunts such as flips should not be attempted by children that have not had proper training.

9) Hiking

Ontario thankfully has a vast array of hiking trails for families to explore this summer.  Hiking is a great way to see the beautiful landscape of Ontario while getting physical exercise.

However, children are at risk of many hiking injuries and exercising safety while hiking is very important.  If you’re on a trail near a family, be sure to give children extra space.  Children may unexpectedly stop on a trail, resulting in a collision with another hiker.

If you’re taking your child out on a hike, make sure they’re wearing the proper footwear.  If any cliffs are nearby, ensure your child doesn’t wander too far from the edge.

Also ensure children take the proper measures to prevent against bug bites, such as wearing long clothing and using bug spray, if you’re hiking in an area with ticks.  Lyme disease has recently become a growing concern in Ontario.  When you get back from a hike, you should change your clothes and check your child for ticks and any potential tick bites.

Always consider your child’s safety when venturing into the bug-filled woods in Ontario during the summer.

10) Sunburn

Last but not least, an overarching concern that applies to almost all summertime activities is too much exposure to our friendly, but no so friendly neighbour, the sun.  Ensure your child is wearing sunscreen with the appropriate SPF level.  Sunscreen with an SPF of at least 30 is recommended for children.  Make sure your kids stay properly hydrated and be aware of the symptoms of heatstroke.

Summer can be the most fun time of the year for families to spend time together, but sometimes there are others who don’t take the necessary precautions.

If your child suffered an injury due to someone else’s negligence, McLeish Orlando is here to help.  Do not hesitate to contact us for a free consultation.  One of our lawyers will evaluate your child’s case.

Uribe v Tsandelis, 2021 ONCA 277

Written By: Brandon Pedersen and Sonam Sapra, Summer Student

Uribe v Tsandelis, 2021 ONCA 277

Uribe v Tsandelis, 2021 ONCA 277 is an Ontario Court of Appeal decision that arose out of a motion brought by the Defendant under Rule 52.08(1) of the Rules of Civil Procedure. The Defendant moved under Rule 52.08(1) of the Rules of Civil Procedure requesting that the trial judge not enter the judgment and either dismiss the action or order a new trial.

ONTARIO SUPERIOR COURT OF JUSTICE

At trial, the jury considered the following facts: On April 28, 2010, after an uneventful pregnancy, the Plaintiff was admitted to the hospital and administered Cervidil to induce labour and oxytocin to assist with cervical dilation. Although the Plaintiff’s pregnancy had been considered low-risk, complications arose. At 9:57 a.m., the fetal heart rate decelerated. Consequently, the nurse increased the Plaintiff’s intravenous fluid and turned her on her side to stabilize the fetal heart rate. Once stabilized, the nurse telephoned the Defendant doctor, who was in his office located approximately 5 minutes away from the hospital to inform him of the situation. The Defendant doctor remained in his office but requested that the nurse call him back if the fetal heart rate decelerated again.

Between 10:17 a.m. and 10:18 a.m., the fetal heart rate decelerated again and at 10:25 a.m., there was a total occlusion of the umbilical cord, which cut off the blood and oxygen supply to the fetus. At 10:27, the nurse telephoned the Defendant doctor, who was driving to the hospital, to inform him of the situation. At 10:48, the Defendant’s doctor began the Plaintiff’s caesarian procedure. The Defendant doctor was unable to begin the procedure sooner because one operating room was already occupied and the other had not been cleaned in preparation for the Plaintiff’s caesarian section. The baby was delivered at 10:49 a.m., one minute after the operation began. However, the baby had gone too long without receiving oxygen and suffered severe brain damage.

The jury was tasked with determining whether the Defendant doctor breached the standard of care and to determine causation and the apportionment of damages. The jury found that the Defendant doctor was negligent because he breached the standard of care and the breach was a cause of the baby’s brain damage. The jury apportioned 32% of the liability to the Defendant doctor.

After the jury’s verdict, the Defendant doctor moved under Rule 52.08(1) of the Rules of Civil Procedure requesting that the trial judge not enter the judgment and either dismiss the action or order a new trial. The trial judge dismissed the motion and entered a judgment in accordance with the jury’s verdict.

ONTARIO COURT OF APPEAL

The Defendant doctor (hereinafter “the Appellant”) appealed the trial judge’s decision to dismiss the motion brought under Rule 52.08(1) of the Rules of Civil Procedure to the Ontario Court of Appeal (“the Court”).

The Court considered the two grounds for the Appellant’s motion as the two issues on appeal. More specifically, the Court considered whether the jury applied the “but for” test for causation, rather than the material contribution test and whether the jury’s verdict was unreasonable because there was no evidence that the baby would have been delivered earlier.

The “But For” Test

To demonstrate that the jury applied the material contribution test, as opposed to the correct “but for” test, the Appellant drew the Court’s attention to the jury’s language in their answer to question 2(b). In their answer, the jury stated:

[30] The fact that Dr. Tsandelis didn’t follow the SOCG Guideline, “prepare for delivery”, contributed to [the baby’s] eventual brain damage”

[Emphasis added]

The Appellant submitted that the use of the language “contributed to” by the jury meant that the jury applied the material contribution test, rather than the correct “but for” test. The Court disagreed and found that the use of such language did not mean that the material contribution test was applied. The Court reasoned that in a situation where there are multiple potential tortfeasors and where the jury must consider contributory negligence, the use of such language might naturally arise – but the use of such language does not mean that the “but for” test was not applied.

The Court explained that it is clear that the jury applied the “but for” test:

[34] …The jury’s response continued to state that, if Dr. Tsandelis had met his duty by preparing for delivery after the first deceleration, “the O.R. would have been ready for Maria & [the baby] would have been delivered sooner avoiding the asphyxia altogether.” This response indicates that the jury concluded that, but for the appellant’s failure to meet the standard of care, the brain damage would not have happened.

The Court found that the jury’s verdict was not unreasonable. The Court reasoned that there was direct evidence from which the jury could conclude that had the Appellant not breached the standard of care, the caesarian section would have taken place prior to the baby’s brain damage occurring.

The evidence included testimony by two medical experts. The experts testified that had the Appellant returned to the hospital immediately after the first telephone call from the nurse, the delivery would have occurred much faster. In addition, the experts testified that the Appellant should have arrived at the hospital immediately after placing the Plaintiff on oxytocin and that if he had taken action earlier, he would have been able to access an operating room or, at the very least, could have instructed other obstetricians on call to conduct the procedure. Ultimately, both experts concluded that the procedure could have been done within 8-15 minutes of the total occlusion, which would have avoided the brain damage.

The Appellant submitted that the trial judge’s questions to the medical experts were improper because they introduced a new theory of liability. The alleged new theory of liability was that the Appellant failed to prepare for the baby’s delivery after the initial telephone call from the nurse informing him that the heart rate decelerated.

The Court found that the trial judge did not introduce a new theory of liability and that the Appellant’s failure to respond immediately after the initial phone call was in fact an issue at trial. Therefore, the Court found that the trial judge’s questions to the medical experts were not improper.

Conclusion

Ultimately, after finding that the jury applied the “but for” test and that their verdict was not unreasonable, the Court dismissed the appeal.

Top 10 Things You Should Know About Medical Malpractice

Written By: Jonathan Farine and Emma Pedota, Summer Student

Top 10 Things You Should Know About Medical Malpractice

Medical malpractice is arguably the most complex of personal injury claims on account of the difficult legal and medical issues, as well as its adversarial and time-consuming nature. Many physicians are members of the Canadian Medical Protective Association (CMPA), which is well funded to defend physicians and hospitals from such lawsuits. Nevertheless, if you have experienced harm or injury as a result of medical malpractice, you are entitled to receive compensation for your damages. A knowledgeable medical malpractice lawyer can help you decide whether you have a case that you should move forward with. Below is a list of the top 10 things to know about medical malpractice.

1. Physicians are Protected by the CMPA

As mentioned, nearly all physicians are members of the CMPA. This is an organization that supports and protects physicians by defending their members in most medical-legal actions from a claim of negligence. This means that the CMPA pays the legal fees to defend its members as well as any potential compensation received by patients. Currently, the CMPA has a $5 billion “war chest” which is used, in part, to provide physicians with legal support in court to fight malpractice suits.[1]

2. You Will Need to Prove that your Physician was Negligent

Canadian medical malpractice claims are subject to Province-specific procedural rules and regulations. However, there are essential elements to every viable medical malpractice case in Canada. You will need to establish:

  • a patient-healthcare practitioner relationship existed;
  • the practitioner acted negligently by breaching the standard of care required; and
  • the negligent action was the cause of actual damages you sustained

Malpractice cases are difficult because it takes very technical expertise and substantial resources to prove that a physician or health care practitioner did not meet the standard of care. Examples of this type of negligence include surgical error, medication prescription error, failure to get informed consent, and poor aftercare.

3. If the College of Physicians and Surgeons of Ontario (CPSO) Dismissed your Complaint, you can still Seek Compensation for Your Injuries

A decision of the CPSO is separate from any civil lawsuits sought against your physician for medical malpractice. The CPSO has the authority to reprimand a physician for their conduct, though they do not have the authority to order compensation be paid to you. This can only happen if a civil action has been commenced.

4. There is a Statute of Limitations on Medical Malpractice Cases

The statute of limitations dictates the amount of time you have to file a lawsuit. The time limits for filing medical malpractice claims in Canada are Province-specific, with most Provinces giving you two years to commence a claim. The two-year clock starts counting from the date a claim is discovered, which usually means the date that you knew that the malpractice caused your injury, or the date when a reasonable person “ought” to have known. One exception to this rule applies in birth trauma cases, where the two-year limitation period does not begin until the child turns 18.

5. You Can’t Sue Just the Hospital and not the Physician Responsible

If an employee under the direction of their employer (in this case a hospital) acted in a negligent manner, the employer is responsible for any injuries that resulted from the negligence. In many cases, physicians are not considered to be direct employees of the hospital but are instead independent contractors.  It is rare for a hospital to be found solely liable for a physician’s negligence. Most malpractice suits will name as defendants the physician, hospital, and hospital staff that provided negligent care because of the collaborative nature of medical care.

6. The Supreme Court of Canada Has Put a Limit on Damages

The Supreme Court of Canada has put a cap on “general damages”, which is the amount of damages that can be paid for pain and suffering. The limit was set to $100,000, but because it adjusts over time for inflation it is currently at a maximum of $350,000.  Note that this cap for general damages does not include damages such as loss of income, required rehabilitation, or additional medical costs. The limit on damages pertains only to non-quantifiable damages that affect your quality of life, such as emotional, mental, or physical trauma.

7. Medical Malpractice Claims are a Lengthy Process

It may take time for you to discover the potential negligence of your physician after your injury. Once initiated, it takes a significant amount of time to go through years of medical records and understand the context of the care provided. You must then obtain expert medical opinions to build your case around the alleged breach of the standard of care and how it caused the injury. Unlike most insurance companies who are just concerned with the economics, the CMPA cares about the reputation of its member physicians and has been known to spend more money defending lawsuits than a case may be worth. These factors add up to a litigation process that is unlikely to resolve quickly.

8. Winning a Medical Malpractice Claim is Difficult

It is difficult for patients to win at trial in a medical malpractice claim. The CMPA’s 2019 Annual Report[2]  states that of 775 resolved legal actions:

  • 5 patients won at trial;
  • 47 physicians won at trial;
  • 285 cases settled; and
  • 438 cases were dismissed or abandoned.

That is less than 1% of claims won by patients at trial and more than 50% of claims being discontinued. Even in the face of a growing patient population and a 38% increase in the number of physicians in Canada, the total number of medical malpractice lawsuits have fallen by 5.4%.[3]

9. Medical Malpractice Claims are Expensive

Judges aren’t medical authorities who understand the intricacies of medical procedures, and so they will not infer negligence without expert evidence. Often, numerous experts such as nurses, physicians, and technicians are required to prove different elements of a medical malpractice claim. Once negligence is established, experts are also needed to resolve damages issues, such as quantifying the cost of future care. Obtaining these opinions is costly and disbursements associated with a medical malpractice lawsuit can range from $50,000 to $200,000.[4]

10. Having Experienced Legal Counsel Involved with Your Canadian Medical Malpractice Claim Is Essential

The CMPA is known for vigorously disputing patient malpractice claims, but with the assistance of an experienced medical malpractice lawyer, you stand a much better chance of success through all stages of the litigation process. If you or a loved one has seriously suffered from medical malpractice, please contact one of the critical injury lawyers at McLeish Orlando LLP for a free consultation.

 

[1] Sandie Rinaldo “How a powerful organization protects doctors from medical error claims”, The Toronto Star (1 April 2021), online: https://www.ctvnews.ca/w5/how-a-powerful-organization-protects-doctors-from-medical-error-claims-1.5341894.

[2] The Canadian Medical Protective Association. 2019 Annual Report. <https://www.cmpa-acpm.ca/static-assets/pdf/about/annual-report/2019/annual-report-e.pdf>

[3] Theresa Boyle, “6 Reasons why it’s so hard to sue doctors and why so little compensation”, Toronto Star,(15 September 2015) online: < https://www.thestar.com/life/health_wellness/2015/09/15/6-reasons-why-its-hard-to-sue-doctors-and-why-so-little-compensation.html>

[4] Lindsay McGivern, “The Financial Burden of Medical Malpractice Lawsuits” (26 July 2018), online: Pacific Medical & Law < https://www.pacificmedicallaw.ca/blog/the-financial-burden-of-medical-malpractice-lawsuits/>