Does the Ontario Court of Appeal grant enough deference to jury decisions?

In Canadian law, jurors are understood to be an equalizing force that absorbs two sides of an argument and makes a fair, balanced decision. Judges, meanwhile, are expected to grant juries’ decisions with a high level of deference. Personal injury lawyers must communicate with juries in clear, transparent terms in order to secure the best possible outcome for their clients.

In a recent article for The Lawyer’s Daily, lawyer Patrick Brown argued that obtaining ‘high personal injury awards’ has become exceedingly difficult, thanks in part to the Ontario Court of Appeal’s unwillingness to treat juries’ decisions with due deference.

Brown cites several cases where personal injury lawyers have persuaded juries to award generous compensation, only to have the amounts whittled down in the higher courts.

In Hamilton v. Canadian National Railway Co., for instance, a jury awarded Suzanna Hamilton $115,000 for the loss of her young daughter. The Court of Appeal reduced the amount to $50,000.

In To v. Toronto Board of Education, the Court of Appeal found the jury’s award of $50,000 to be “inordinately high,” and instead granted $25,000 to an 11-year-old girl for the loss of her brother.

Finally, a jury awarded Jared Padfield, an elite volleyball player, $500,000 in 2003 for severe injuries that derailed his playing career. The trial judge reduced the amount to $274,000, and the Court of Appeal lowered it further to $150,000, stating that the amount was “outside the range of reasonableness.”

Justice Patrick Galligan, a dissenting Court of Appeal judge in Hamilton v. Canadian National, wrote: “I think that there is no better forum than a jury composed of six representatives of the community to perform the impossible task of deciding what value should be placed upon the loss to family members of the companionship. The fact that it arrived at amounts which are substantially higher than I might have awarded, or which most judges in this province might have awarded, does not indicate to me that this jury was acting unreasonably.”

In other words, Judge Galligan argued for treating the jury’s decision with deference in this case. Personal injury lawyers encounter an array of challenges when representing their clients in court, from “hired gun” testimony to scorched-earth tactics from well-financed defendants. The Appeal Court’s unwillingness to honour juries’ decisions in lower courts is yet another obstacle to compensation for injured plaintiffs.

If you or a member of your family has been injured in an accident, feel free to contact Will Davidson LLP today to arrange a consultation. Our experienced team of personal injury lawyers can help you access compensation that will make your road to recovery easier.

McMaster study warns against antidepressant use

Medical malpractice lawyers ensure that Canadians are protected from the negligence of medical service providers, including pharmaceutical manufacturers. When a medication or consumer medical product causes harm, a medical malpractice lawyer may be asked to seek compensation for the injured individual.

Canadian doctors prescribe a lot of antidepressants. According to a 2013 study by the Organisation for Economic Co-operation and Development, as much as nine per cent of the population may be prescribed antidepressants at any given time, the third highest consumption rate in the developed world behind only Iceland and Australia. In 2015 alone, more than 50 million prescriptions were filled coast to coast.

To be sure, antidepressants save lives by providing much-needed relief for people experiencing severe depression or suicidal thoughts. However, as the National Post reported in September, psychiatrists and family doctors alike “have been accused by some … of being overly liberal with the use of the mood-altering pills,” prescribing the medication to treat illnesses from mild depression to insomnia to chronic pain. If these aggressive prescribing methods were to result in injury or illness, a medical malpractice lawyer might have grounds to file a personal injury claim. Recent research from McMaster University in Hamilton suggests this scenario is fairly common.

“Most people should not be given these drugs because it looks like, at least in the general population samples, they’re doing more harm than good,” Paul Andrews, the study’s lead author and an evolutionary biologist and associate professor at McMaster, told the Post.

Andrews’ research consisted of a meta-analysis of 16 studies involving close to 380,000 people, some who used antidepressants and some who did not. The research found that antidepressant users had a 33 per cent higher risk of death and 14 per cent higher risk of stroke or heart attack than people who did not use the medication. The study controlled for the higher risk of death generally affiliated with depression.

According to the McMaster study, antidepressant use poses a risk due to the medications’ impact on platelets, small cells that exist in the body’s bloodstream to form clots and stem bleeding. Platelets rely on the chemical serotonin to function properly, and many antidepressants prevent the body’s organs from absorbing serotonin. Thus, antidepressants may act as a de facto blood thinner, making it possible “for a normal person to have increased risk of stroke, or upper GI (gastrointestinal) bleeding or other sorts of abnormal bleeding events that could be harmful or deadly,” Andrews said.

Andrews’ team isn’t alone in linking antidepressant use to negative health outcomes. In January, the Post reported on a separate study which found that antidepressants “are associated with a twofold increase in the odds of developing some forms of dementia, including Alzheimer’s.”

Psychiatric and psychopharmacological experts have greeted Andrews’ and other studies criticizing the use of antidepressants with measured scepticism. Some admitted that the effects of long-term antidepressant use are not yet known, while others cautioned that individual studies are not cause for alarm.

If you have experienced negative outcomes as a result of being prescribed antidepressants, contact a Will Davidson LLP medical malpractice lawyer today to set up a free consultation. Our team can determine whether you have the right to launch a lawsuit and help you on your road to recovery.

Quebec birthing injury lawsuit sparks interest

A Quebec woman is taking legal action against her obstetrical team after suffering significant injuries in the 2010 birth of her child. The plaintiff’s child was also injured during what court documents describe as “a traumatic and chaotic birth that caused numerous damages to the plaintiffs, notably a permanent paralysis to the [baby’s] right arm,” according to the Toronto Star. Will Davidson LLP’s team of medical malpractice lawyers has experience with cases involving birth trauma, and as such was interested in the specifics of this claim.

The Star reports that Anik Bourbeau and Pascal Lessard’s doctors neglected to perform an ultrasound to evaluate the size of the baby, which was delivered naturally at 13 pounds. Bourbeau had a history of difficult pregnancies and explicitly expressed a willingness to undergo a C-section, which the doctors did not recommend.

“The defendants omitted to proceed to an evaluation of the child’s size, while the clinical evolution of Madame Bourbeau demanded it,” the court documents read.

Childbirth should be a profound, meaningful, and celebratory moment in an individual’s life, which is why birthing injuries and obstetrical malpractice are such painful experiences. Significant birth traumas can have devastating and even life-long effects on both the mother and the child, which is why experienced medical malpractice lawyers are often called on to help access compensation.

Bourbeau and Lessard are seeking $1.4-million in damages from their doctors and the hospital where the birth occurred. This compensation is intended to cover loss of income for both parents, future medical costs for the child, and general damages. The case will likely be heard in Quebec’s Superior Court next May.

When a child suffers a serious injury at birth, his or her parents will often feel the impact for years. For instance, birthing complications that cut off the child’s oxygen can result in developmental disabilities, which may require extensive employment and lifestyle sacrifices from the parents. Caring for a disabled child is expensive and exceptionally challenging – if the disability was caused by a healthcare professional’s preventable error, the child and child’s family may be entitled to financial compensation.

Medical malpractice cases in Canada are often lengthy and extremely complex, which is why injured patients should contact an experienced and accomplished team of medical malpractice lawyers, like the ones at Will Davidson LLP. Our team has been helping injured Ontarians access compensation for their injuries for years; call us today to set up a free consultation and learn how we can help you put your life back on track.


Image credit: Gilberto Santa Rosa/Wikimedia Commons

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