Nursing Home Negligence

Nursing Home Negligence

There comes a time in a person’s life, where they or their family members need to decide if a long-term facility, such as a nursing home, is the right move. One needs to be ensured that they will be taken care of in a nursing home and that no negligence will occur. Families worry about their loved ones just as much, and it is important for all that their mother, father, grandparents or any other relative is safe in a nursing home and does not fall victim to nursing home negligence. Although there are many fantastic nursing homes out there, there are many cases of nursing home negligence. In today’s era of aging baby boomers, nursing homes will only get busier, and thus more negligence cases may arise.

Nursing Home NegligenceNursing home negligence can be physical or emotionally caused. For example, in 2013, CTV news reported that an 85 year old woman was being mistreated in a nursing home in Peterborough Ontario. She was seen having a feces-covered rag waved in her face and also having her diaper changed with the door wide-open. There were also suspicious circumstances surrounding a black eye and bruises. Another example of nursing home negligence includes a growing concern regarding residents being given potentially lethal anti psychotic drugs, which can be used to help aggression and acting out. There are certain types of these drugs that can cause severe adverse reactions and many residents, who are not even prescribed these drugs, have been victim to this adverse reaction as they have been ingesting the drug. Other types of nursing home negligence include dropping residents, yelling at residents, neglecting residents and leaving residents unattended for hours upon hours, which can create bedsores. According to the Long-Term Care Homes Act, Nursing homes have a zero-tolerance policy for any time of negligence or abuse. Therefore,  if negligence occurs, those people injured, should be compensated.

Nursing homes are expected to provide a safe environment for those living there, and many are! A nursing home should be a clean, happy and pleasant place where people can live without worry of negligence. However, if you are a resident of a nursing home, or you are a loved one of a nursing home resident, that has been victim to nursing home negligence, do not hesitate to contact our personal injury law firm to find out what your legal rights are.

The Dreaded Pothole Situation

Car Accidents and Potholes

They seem to be everywhere. They cause bumps, delays and even car accidents. What are they? They are the dreaded potholes.

After the winter we have just had, it seems that the pothole situation is at an all-time high. They are causing damage to vehicles and causing car accidents if someone loses control when hitting a pothole.

If your car has been damaged in an accident caused by a pothole, or simply by the pothole itself, what are your avenues to seek compensation for such damage from the accident? Can you hold the municipality responsible for any damage that was caused to your vehicle due to a pothole? It is important to understand the standard of care for a municipality as it relates to potholes and any damage to vehicles or accidents potholes may cause.

Justice Leach of the Ontario Superior Court of Justice spoke to this issue in the recent decision of McLeod v. General Motors of Canada Limited et al., 2014 ONSC 134. This case was about a young woman who was driving her vehicle on a country gravel road when she lost control of her vehicle and had a car accident due to potholes on the road. She sustained serious and life-threatening injuries as a result of the car accident. The young woman began an action against the rural municipality.

Justice Leach determined that the action should be dismissed. This means that the municipality would not be held responsible for the accident caused by the potholes. For the municipality to be responsible, certain things must transpire. They are the following:

Potholes

  1. Official Complaints to the Municipality should be made.

This does not mean complaining around your city or town, but actually submitting formal complaints to the municipality about the potholes.

  1. The condition of the road must be in a state of disrepair.

A road that is in a reasonable condition, does not count! For instance, a gravel road is expected to have bumps and holes and thus it is not in a state of disrepair.

Additionally, these two points have to coincide. What this means is, even if the road is in disrepair, the municipality can rely on the defence that it had no knowledge of the defect and thus it is not held responsible for any accident.  The municipality has the responsibility to take reasonable steps to prevent the defect from arising by having regular systems of grading and it must meet the minimum standards of inspection and pothole repair. If it does these things, it may not be held responsible for any accident and/or damage that may occur as a result of potholes.

Potholes are going to continue to be the bane of many peoples’ existence. They are something that we all have to live with, however they should be fixed as soon as reasonably possible by the municipality. You have the responsibility to avoid dangerous accident-causing situations, if possible and you must make formal and detailed complaints about potholes, so that if any damage occurs because that pothole has not been reasonably fixed, you will have avenues of recourse!

If you have sustained personal injury from an accident or car accident, do not hesitate to contact our personal injury law firm to find out about your legal rights.

 

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Beware: Social Media and the Courtroom

Social Media can be a Plaintiff’s Enemy

Facebook has taken over the globe in unimaginable proportions. Many people use Facebook daily, especially for posting photographs of fun nights out with friends and family vacations. Privacy settings can be set quite high; however it is important to know there might always be a way around privacy settings. As an injured party, Facebook and other social media websites may become your enemy.

When you are involved in an accident, personal injury has been sustained, and a law suit has commenced, it is important to take into consideration that surveillance may be placed upon you. Another consideration to be made is that, after an accident, the opposing side may very well do investigating by way of social media sites too. When you have suffered personal injury from an accident, be sure to take extra precaution of what you are posting on these websites, because any inconsistencies between what you are saying and what is being shown, may be brought to light, despite those photographs not actually depicting the true extent of your pain from your accident injury that you may have most of the time.

Counsel has not been afraid to use Facebook and other social media cases for credibility issues during questioning and in Court for people who are claiming pain and suffering from injuries sustained in an accident.  In the Ontario Superior Court of Justice case, Kourtesis v. Joris, a young woman’s photograph postings led to her claim for damages for pain and suffering to be dismissed. The young woman claimed her social life had been ruined by the accident and subsequent injuries; however Facebook photographs depicted her out partying with friends. This led to the demise of her “ruined social life” claim and in the end, undermined her claim to have suffered other problems from the accident.

Despite irrelevant searches being looked down upon, Courts have tended to find that photographs relevant to accident injury claims on social media sites should be disclosed. For instance, if you manage to climb the tallest mountain, this should be made known. Lying and hiding those facts, even if you do have legitimate injuries, could lead to your case failing in every way. If you are on social media websites, be careful as to what you post, even if you are not part of a law suit. You never know how people may gain access to your profiles and nothing is off limits if it is relevant to your case. Always tell the truth and admit, for example, if your injuries from an accident do not cause you constant limitations and pain.

If you have sustained personal injury from an accident, do not hesitate to contact our personal injury law firm to find out about your legal rights.

 

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Watch out for that Tree: Personal Injury and Property Damage

Falling trees causing personal injury and property damage

Fallen Tree on roadIt has been an icy winter to say the least. Personal injury and property damage have been sustained due to icy trees falling on cars, houses and people. However, trees do not only fall in the winter and falling trees can cause personal injury and property damage at any point during the year. What responsibility do you, as a property owner, have if a tree has fallen onto a neighbor or a neighbor’s property causing personal or property damage? On the other hand, what avenues of recourse do you have as a personally injured person or a person who has sustained property damage, against your neighbor?

If your neighbor’s tree falls on your house, or your car, the following should be taken into account: Many times, a tree falling on your property will be covered by insurance. There are times, when this is not the case and therefore neighbors begin law suits for personal injury and property damage against other neighbors. A 1996 Ontario Superior Court Decision, ruled that a neighbor, whose tree fell onto Mr. and Mrs. Parent’s property causing damage to their home and snowmobile, was not responsible for the damage. The judge reasoned that growing a tree is a natural use of the land and the owner of that land is under no obligation to his or her neighbor with respect to what is growing on his or her land. The neighbor has a responsibility to protect him or herself from personal injury or property damage. However, if an owner knows of, or can plainly see, warning signs that the tree is, for instance, decaying, they must take steps to ensure the tree is not hazardous to others.

There is also a British Columbia Court of Appeal case that involves a tree falling onto a woman’s property after a wind storm. The owners of the tree were found responsible for the damage, because the neighbor had warned them about the condition of the tree, and despite that, they did nothing to avoid the hazard. Therefore, to avoid property damage, and at times personal injury, it is important for everyone involved to be responsible property owners.

If you sustain personal injury due to a tree falling on you and it is a fluke accident, do you have any means of compensation? In some cases, personal injury from a tree falling can even result in death, which was the case of a Port Colborne woman. She was driving by in her car this winter when a tree, due to natural phenomenon, fell upon her car, crushing it and causing her fatal injuries. Again, insurance routes are available to most. As well, if the tree was not owned by a civilian, the City (or Town) has responsibility to ensure the safety of their property-this is true of trees, and even pot holes. If these avenues are unable to be used, or if they have been exhausted, legal action may need to be pursued.

Know your legal options and if you have experienced personal injury, do no hesitate to contact our personal injury law firm to find out about your legal rights.

 

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Plaintiff with Serious Knee Injury Passes Threshold

Oakville Lawyers Serious Knee Injuries

The Court rendered another decision regarding whether or not the plaintiff suffered a permanent and serious impairment of an important physical, mental or psychological function. If you have been in any type of motor vehicle please check out this link for more information on the threshold and what it is.

In the case of Ivens v. Lesperance the plaintiff, Shawn Ivens, was 41 years old.  On November 2, 2007 he was involved in a motor cycle accident.  Prior to this Mr. Ivens had a serious motor cycle accident in 1999.  He broke both his ankles requiring surgery and was off work for three and a half months.  He had continued pain in his ankles.  He had an open accident benefit file for quite some time.  His insurance carrier provided him with a hot tub, riding lawn mower and other assistive devices to help him with his home maintenance and his pain.  He kept working as a car salesman after his first accident although his sales continued to increase.  Mr. Ivens also enjoyed numerous outdoor activities with friends and family members.  He very much enjoyed motorcycling, snowmobiling, mountain biking, boating and body building.  In fact, he acted as a personal trainer for friends.  At one point Mr. Ivens moved dealerships from Midland to Barrie and his customers followed him.  He seemed to be considered a fantastic sales person.  He was one of the top six sales people in an eighteen person sales force at the dealership in Barrie in which he was working.

knee injuryAfter the accident, Mr. Ivens was taken to the hospital by ambulance.  He was in considerable pain and was diagnosed with an undisplaced fracture of the right knee.  Throughout the following year it was noted that Mr. Ivens had trouble walking and could not fully flex his knee.  There was not much more that the orthopedic surgeons were able to do for him as the left knee remained stiff.  He attempted to return to work in the spring of 2008 but was unsuccessful.  Unfortunately he was not able to return to work as a car salesman until 2011.

In 2009 it was noted that he started going back to the gym slowly and was able to flex to 80 or 90 degrees.

In March of 2009 began to complain of back pain.  An MRI was ordered and it was learned that he had a compression fracture, possibly from wedging or crushing.  There was no report of back pain immediately following the accident and it was acknowledged that the back injury could have happened before or after the accident in question.  Mr. Ivens gave evidence at trial that he suffered continuous pain, depression, sleep disorder and the loss of ability to enjoy recreational activities that occupied most of his pre-accident life.

He had friends and family members testify, as well as his family doctor and various experts to comment on his pain and pain management.

The defence lawyer challenged Mr. Ivens credibility on a number of fronts.  It was put to him during the trial that he was lying or exaggerating with respect to a number of issues.  He was challenged on whether or not he had a mortgage on his house.  He was challenged that he only saw the physiotherapist a few times.  The Judge noted that subsequent evidence showed that he had visited the physiotherapy clinic over 40 times.

He did exaggerate his income in interviews with the number of medical service providers, a characteristic perhaps not uncommon for people earning commission sales, said the Judge, who also noted that it was clear chronic pain was subjective and that it was easy to envision situations where an individual may exaggerate pain in seeking some economic advantage.  However in this case, Mr. Ivens complaints had an objective component as well as subjective report of pain.

The Judge’s decision on the threshold

According to all medical records, Mr. Ivens knee continued to be bothersome and was a source of much of his pain complaints.  It was the source of much of the functional capacity limitations that Mr. Ivens had.  Surveillance was shown at trial but the Judge noted that there was no evidence that he was seen doing any type of high level of activity he previously enjoyed.  He was walking around a dealership.  He used a golf cart to get around the large properties that the dealership maintained for their inventories of cars.

In short, the Judge concluded that the plaintiff did sustain a permanent and serious impairment to an important physical, mental or psychological function.  With respect to permanent, the judge noted that the knee injury had not resolved notwithstanding medical intervention.  It was unlikely that his knee injury would improve, he may suffer from arthritis, and he may need further surgical interventions in the future.  The unresolved knee problems and the chronic pain serve to explain his depression, even if diagnosed as mild.  With respect to an important function, the Judge noted that Mr. Ivens returned to work with accommodation from his employer, used a golf cart, did not work the long hours he previously put in, could not stand for a long period of time, could not perform many of the housekeeping tasks he previously looked after, and he could not engage in high levels of physical activity he previously enjoyed such as weight training, snowmobiling, bicycling and other outdoor activities with family and friends.

With respect to whether or not his impairment was serious, the Judge noted that the plaintiff’s employer did accommodate him, but now he is in the bottom third of the sales force for the dealership.  Because he is on commission, it is up to the plaintiff to seek out clients and work with clients to compete on the sales of vehicles.  The sales manager noted that Mr. Ivens was “no longer on top of his game”.  Also, because he was no longer able to participate in outdoor activities with friends he was missing out on the usual activities of daily living which he enjoyed not only for recreation, but as a source of contacts for his commission sales employment.

The judge noted that he was satisfied that Mr. Ivens’ physical impairments coupled with chronic pain substantially interfered with his activities of daily living.

 

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What is this “threshold” that lawyers keep talking about???

Oakville Lawyers Car Accidents and the “Threshold”

We often make case comments about the Bill 198 threshold.   Based on this our clients have asked us for a better definition of the threshold.

The threshold applies if you were involved in a collision involving the use or operation of a motor vehicle as defined by the Insurance Act.  We may or may not have discussed this with you, but victims that are injured as a result of the carelessness or negligence of someone operating a motor vehicle are technically not allowed to claim compensation for pain and suffering unless he or she has met a certain “threshold”.

If you have been in a car accident, motorcycle accident or any other type of motor vehicle accident it is important to get the right advice. Contact us to learn your rights.

In other words you cannot sue anyone that has caused you injury in Ontario unless your injuries fall within a certain “classification”.  The “classification” or threshold is defined as:

“did the plaintiff (you) sustain a permanent and serious impairment of an important physical, mental or psychological function as a result of a motor vehicle accident in which he or she (you) was involved in”. 

You may initially think that yes, I have absolutely sustained a permanent and serious impairment of an important physical, mental or psychological function, but the reality is that these words are complexly defined within the context of personal injury law.

threshold poster

How does this affect you? 

The rule states that an injured victim in a motor vehicle accident is barred from suing an at-fault operator of a motor vehicle unless they in fact fall within certain exceptions.  You have the burden of establishing that you fall within all of these exceptions.

How do I do this?

A plaintiff (you) must lead evidence from physicians and health advisors to explain the nature of your impairment, its permanence and the specific functions that are impaired and the importance of the functions to you. If your case ends up going to Court, evidence will be asked of your doctors, health practitioners, rehabilitation people, occupational therapists, psychologists, psychiatrists, specialists in the medical field.  Opinion evidence will be asked of experts that you have seen or will see as set up by your lawyer and the opposing lawyer.

At the end of your case a jury will retire to determine how much compensation it will pay you.  When the jury retires the lawyer that represents the insurance company will then have the right, under the Insurance Act, to ask the judge whether or not he or she believes by the evidence you produced that you suffered a permanent serious impairment of an important physical, mental or psychological function within the meaning of the Insurance Act.  The jury will not hear this question.

At that time the Judge will dissect the words permanent, serious, impairment and important function.  These words will be defined in detail by the Judge that hears your case.  The Judge will then come to an answer as to whether or not yes or no he or she believes that you sustained a permanent and serious impairment on an important physical, mental or psychological function within the meaning of the Insurance Act.

What does serious mean?

Serious is normally defined three different ways.

  1. The first is whether or not an impairment substantially interferes with the person’s ability to continue his or her regular employment despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use accommodations to allow the person to continue employment;
  2. An alternative with respect to whether or not an impairment is serious also lies with whether or not that person is able to continue training in a field in which he or she was being trained in before the incident;
  1. The third alternative lies with respect to the definition of serious, that is whether or not impairments have substantially interfered with most of the activities of daily living of the victim, considering his or her age.  The daily activities, which are not defined in the Insurance Act have been defined by Judges in the past as being recreational activities, social activities, housekeeping activities and family activities.  This is why you have been asked, or will be asked about this at your examination for discovery. Also, when defence lawyers hire surveillance companies to survey you, it is often to dissect or take apart the daily activities to show that you do not suffer from a serious impairment or that your daily living is not affected by the accident.

What does the word important mean?

For the function that is impaired to be an important function, that function must be necessary to perform the activities that are essential to your regular or usual employment or necessary to perform the activities that are essential to your training in a career in a field in which you were being trained in before the accident.  For a function that is impaired to be an important function, that function must also be necessary for you to provide for your own care or well-being or be important to the usual activities of daily living, considering your age.  The same categories for daily living apply as above.

What does the word permanent mean?

For an impairment to be permanent the impairment must have been continuous since the accident and must, based on medical evidence and subject to you reasonably participating in recommended treatment of the impairment be expected to not substantially improve.  Also, the impairment must be an impairment that is expected to continue without substantial improvement when sustained by persons in similar circumstances.  This means that at some point a doctor must say that despite your participation in therapy, your injury is not getting better, and he or she does not think that it will substantially improve to any better degree.

Conclusion

Out of all of this it is important to take several things away.

  1. Medical evidence, in addition to other evidence, must support (it is legislated!) your claim that you have sustained a permanent serious impairment of an important physical, mental or psychological function.
  2. Most people fall within the category of injuries interrupting their daily activities.  It is important that you keep notes to tell us how your injuries have interfered with your social, recreational, household or family activities.  This means that if you are subject to permanent symptoms such as sleep disorder, severe neck pains, broken bones, disc herniation, disc bulges, torn tendons and ligaments, metal or hardware that has been surgically involved with healing your fractures or anything that has a significant impediment on your enjoyment of life can be considered a serious impairment.  A Court will always look at your activities and your daily living prior to the car accident, and after the car accident to determine whether or not you meet this threshold.

 

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