Medical Malpractice Lawyers Face Challenges in Delayed Diagnosis Cases

In Ontario, some medical malpractice lawyers believe two words – “but for” – are making it difficult for injured patients to access compensation for negligence causing delayed diagnosis. Last month, Law Times reported on White v. St. Joseph’s Hospital (Hamilton) a case in which the plaintiff went into septic shock due to an undiagnosed bowel leak but was unable to recover compensation for his injuries.

The “but for” test is a test in Canadian tort law that links the damages the plaintiff has incurred with the defendant’s actions. In Clements v. Clements (2012), the Supreme Court of Canada summed up the test in these words: “the test for showing causation is the but for test. The plaintiff must show on a balance of probabilities that but for the defendant’s negligent act, the injury would not have occurred.”

Medical malpractice lawyers believe this wording confuses juries and makes it extremely difficult to prove liability in cases where negligence has clearly occurred. According to Law Times, plaintiffs have lost four out of the last five delayed diagnosis cases heard in Ontario’s courts.

“’But for’ is meant to encapsulate an event that causes or contributes to the harm,” one lawyer affiliated with the White v. St. Joseph’s case told Law Times. “But juries get confused when they hear that phrase, especially when there’s more than one contributing cause and they hear only the ‘but for’ phrase.”

In White v. St. Joseph’s, the plaintiff alleged that nurses and the hospital should have noticed the bowel leak before he went into septic shock. As a result of the delayed diagnosis, the plaintiff spent an extended time in hospital, including a stay in the intensive care unit, and underwent remedial surgery. However, an expert witness at the trial testified that “most of Mr. White’s outcome was unavoidable,” and the trial judge determined that the hospital had met its standard of care.

The Court of Appeal for Ontario upheld the trial judge’s decision using the ‘but for’ test. “In other words,” the decision read, “’but for’ the alleged delay would the plaintiff have suffered the unfavourable outcome?”

The plaintiff lawyer who spoke with Law Times believes the case leaves plenty of room for confusion and prejudice in subsequent jury trials.

“Nobody says ‘But for my car’s flat tire, I’m late,’ because that’s inconsistent with plain language,” he explained. “They say, ‘I’m late because I had a flat tire,’ and courts should approach causation in the same way.”

While medical malpractice cases involving delayed diagnosis are challenging, Will Davidson LLP’s team of medical malpractice lawyer has successfully secured compensation for its clients at all levels of court. If you’ve been injured in a medical setting, reach out today to learn how we can help.

Do Canadians Need In-Car Speed-Limiting Technology?

Technology is a mixed blessing on Canadian roads. On one hand, cutting-edge safety features like lane-keeping and automatic braking reduce injuries and accidents. On the other, smartphones and in-car navigation and entertainment systems cause distraction, which, as any car accident lawyer can attest, is a major safety hazard.

Now, the European Union is doubling down on in-car safety technology. It recently announced that intelligent speed assistance (ISA) systems, or speed limiters, must be added to new vehicles from 2022. The United Kingdom will follow suit, regardless of Brexit.

ISAs use GPS technology or smart camera software to identify speed limits wherever the vehicle is travelling. When the vehicle exceeds the posted speed limit, the technology limits engine power to reduce speed.

The European Transport Safety Council is bullish on the technology. It believes speed limiters are the single most effective driver assistance systems on the market, and estimates that mass adoption could reduce collision by 30 per cent and traffic deaths by 20 per cent.

Some members of the public, including more than one car accident lawyer, are less optimistic. There are concerns that the technology isn’t ready for adoption: what would happen, for example, if a vehicle’s GPS system indicated one speed limit while its camera system read another? A second issue is personal freedom. Should centralized governments control precisely how fast citizens drive?

While automobile manufacturers will be compelled to include speed limiters in new vehicles after 2022, drivers will be able to decide whether to use them. The EU and UK governments want drivers to see the technology as a helpful tool, not an imposition on their autonomy.

“One issue is acceptance. We don’t want to be turning off public support.” Professor Oliver Carsten of Leeds University’s Institute for Transport Studies told the BBC. “The other issue is unreliability – what happens if the car accidently picks up a limit that’s much too low, on a fast road? It could be a serious safety issue.”

There has been no talk in Canada about following the leads of the United Kingdom and European Union, but as automotive technology becomes more sophisticated, Canadian road safety activists will become more likely to promote it.

In the meantime, Will Davidson LLP can offer access to compensation or accident benefits when you’ve been involved in an automotive accident. Contact us today to arrange a free, no-obligation consultation with an experienced car accident lawyer.

Ontarians Still Reeling from 2016 Changes to Auto Insurance System

In June 2016, the then-Liberal Government of Ontario introduced major changes to the province’s auto insurance system. Presented as an effort to reduce premiums, the changes significantly reduced available accident benefits and altered the definition of catastrophic impairment, making it more difficult for car accident lawyers to secure fair compensation for their clients. As a recent Global News story illustrates, the now-three-year-old changes continue to have devastating impacts on accident victims.

The Global report focuses on 32-year-old Ben Schenk, who incurred a traumatic brain injury after a crash on Ontario Highway 400 this May. As of July 5, Schenk’s family was waiting to learn whether their insurance company would classify his injuries as “catastrophic.” The decision will have a profound effect on the family’s ability to sustain itself. If his injuries are deemed catastrophic, Schenk will have access to up to $1-million in combined medical, rehabilitation, and attendant care benefits. If they are deemed non-catastrophic, he will have access to just $65,000 in benefits, not nearly enough to cover his rehabilitation.

Schenk’s situation is not unusual for Ontario car accident victims post-June 2016. Patients often wait more than a year to learn their injury designation, a period during which they are in limbo.

“The patient, the client, is in no man’s land until their injury manifests over a six-month period, if not a year, before we can give them any certainty of whether or not they can get the designation,” one lawyer told Global News. “And then when our assessors conclude that they believe they meet the test, then the insurance company notoriously has their own assessors re-evaluate the matters, which causes further delay. It takes typically a year and a half before they get the designation where before June 1, 2016, it would take a matter of weeks.”

Even when catastrophic impairment benefits are awarded, the coverage falls far short of pre-2016 levels. Prior to the Liberal Government’s changes, catastrophically injured accident victims had access to $1-million in medical and rehabilitation benefits, plus $1-million in attendant care benefits. Non-catastrophically injured victims had access to up to $86,000 in benefits; today they have access to just $65,000. Many car accident lawyers advise purchasing additional insurance to cover the gap.

“Regular car insurance is not enough to cover your needs if you’re seriously injured,” the lawyer added. “And it should be. It should be designed to provide the bare minimum of what you need.”

If you or a member of your family has been injured in an automobile accident in Ontario, contact Will Davidson LLP today to learn how our team of experienced car accident lawyers can help. We can provide guidance and representation as you pursue benefits or initiate a personal injury claim.

Image credit: zmtomako/Flickr

Are Changes Coming to Ontario’s Slip and Fall Laws?

A Progressive Conservative (PC) politician has proposed changes to the rules around slip and fall lawsuits involving snow and ice in Ontario. Bill 118, sponsored by Parry Sound–Muskoka MPP Norman Miller, would update the Occupiers’ Liability Act and compel plaintiffs in slip and fall cases to notify defendants of their intention to sue within 10 days of the accident. The provincial NDPs and several slip and fall lawyers have criticized the proposal.

Today, personal injury victims in Ontario have two years from the time of their accident to initiate a civil lawsuit. This grace period provides time to seek medical care, pursue rehabilitation, assess financial needs, and decide whether a personal injury lawsuit is appropriate. Reducing the grace period puts potentially-traumatized injury victims on the hot seat and may limit their ability to pursue a lawsuit.

“How is the customer who slips and falls in the parking lot of a strip mall supposed to find out the landlord’s name and address within the time frame?” asked Tom Rakocevic, NDP critic for Government Services and Consumer Protection, according to Canadian Underwriter. “That information is not readily, and certainly not publicly, available, as in the case of municipalities, except to a small segment of industry insiders who work in real estate.”

“A 10-day notice to serve is simply not an adequate time frame, especially for those who have been injured and may be dealing with doctors’ appointments and medical treatments,” added NDP deputy leader Sara Singh.

But the Bill’s sponsor believes changes are necessary to protect businesses in the province. MPP Miller argued that snow removal contractors and other seasonal service providers sometimes have difficulty purchasing insurance due to delayed personal injury claims.

“In many cases, as soon as there is compensation involved for clearing snow, a company’s premiums increase significantly,” Miller said. “This comes from the insurance company’s fear of having to cover potential lawsuits as far as one or even two years into the future.”

The plan would allow businesses to maintain records and preserve evidence following an accident, the Bill’s supporters argue. It would also allow plaintiffs who miss the 10-day window to pursue their claim provided they have a “reasonable excuse.”

While private member’s bills are rarely passed into law, slip and fall lawyers and opposition politicians have reason to be concerned in this case. According to Canadian Underwriter, most PC MPPs ‘spoke generally in favour’ of the bill.

If you or a member of your family has been injured in a slip and fall accident, contact Will Davidson LLP today to learn how our team of experienced Oakville slip and fall lawyers can help.

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