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.

Social Media and Personal Injury Claims

Social media was once dominated by teens and college students. Not anymore: today, Canadians of all ages and backgrounds, from Newfoundland to British Columbia to Nunavut, tend to post, like, and comment on a daily basis. Nearly three quarters of Canadians (74 per cent) spend at least 3-4 hours online per day, according to the Canadian Internet Registration Authority (CIRA), and more than 60 per cent engage on social media. The social internet’s growing role in our lives has implications for everyone, including personal injury lawyers and plaintiffs seeking compensation.

How can Social Media Hurt My Personal Injury Claim?

Plaintiffs seek compensation in personal injury lawsuits when their life has been significantly disrupted. Serious physical injuries – brain injuries, spinal injuries, chronic pain, etc. – are common in these claims. In order to prove that their client has been injured, personal injury lawyers turn to testimony from expert medical witnesses, friends, family members, and other sources.

The compensation that a plaintiff receives depends on the extent of their injuries. Larger settlements are reserved for injury victims whose lives have been most seriously altered, including individuals who are no longer able to earn a living, or who will require constant medical care. Less serious injuries tend to result in lower compensation.

When a social media post contradicts a plaintiff’s claims, the judge, mediator, or arbitrator may choose to reduce compensation. Defence lawyers often scour plaintiffs’ social media posts in search of evidence to refute their claims. For example: if a plaintiff alleges that her injuries prevent her from socializing, but a Facebook post emerges showing her at a restaurant or bar with friends, the validity of her claim will be thrown into question.

How to Prevent Social Media Hurting My Claim

The best way to avoid hurting your personal injury claim through social media is to stay away from the platforms altogether. Delete your Facebook, Instagram, Twitter, and Snapchat accounts for the duration of your case.

This is a drastic step, of course, especially considering that many personal injury lawsuits drag on for years. The more reasonable solution is to set all your accounts to private mode and consider very carefully what content you share. Discuss with your personal injury lawyer what sort of posts are safe and which could put you in trouble.

Contact Will Davidson LLP

If you or a member of your family has been injured in an accident, contact Will Davidson LLP’s team of Oakville personal injury lawyers to learn how we can help.

How Safe are Higher Speed Limits?

In May, Ontario Transportation Minister Jeff Yurek announced plans to review speed limits on provincial highways. Later in the month, the Conservative Government previewed plans to test a 110 km/h limit on three sections of 400-series highways. The announcements provoked mixed reactions from stakeholders, some who believe higher speed limits make perfect sense and others, including car accident lawyers, who fear they will lead to increased injuries and fatalities on Ontario roads.

Proponents of the plan often look to the United States for examples of successfully implemented higher speed limits. In 1995, Congress repealed a federal law capping speed limits at 65 mph (105 km/h) nationwide, allowing the states to set their own maximum speed limits.

Today, maximum speed limits vary widely state-to-state. According to the Globe and Mail, 22 have maximum speed limits of 70 mph (112 km/h); 12 have maximum limits of 75 mph (121 km/h); and seven – Idaho, Montana, Nevada, South Dakota, Texas, Utah, and Wyoming – have maximum limits of 80 mph (129 km/h). In Texas, there is even a 41-mile stretch of highway with a mind-bending 85 mph (137 km/h) limit.

Like their southern cousins, Canadian provinces are able to set their own maximum speed limits. Ontario would join Alberta, Saskatchewan, Manitoba, New Brunswick, and Nova Scotia by raising its maximum limit to 110 km/h. Only British Columbia’s is higher at 120 km/h on select roads.

Of course, the question for car accident lawyers is not whether Ontario should be able to raise its maximum speed limits, but whether it would be safe to do so. Evidence from the United States suggests not.

Chief researcher for the Insurance Institute of Highway Safety (IIHS) Chuck Farmer has studied the effects of higher speed limits on road safety extensively. Per the Globe, he believes increased speed limits have caused roughly 37,000 deaths in the United States since 1993. By looking at annual traffic fatalities per mile travelled in states that increased speed limits and factoring out other road safety factors like seatbelt usage, Farmer was able to calculate an 8 per cent increase in fatality rate for every 5 mph added to the speed limit on Interstates and freeways.

Less nuanced numbers provided by the World Health Organization offer similar conclusions. The United States experienced 11.6 traffic-related deaths per 100,000 people in 2016; Canada experienced just 5.8. In 2017, 1,841 people died on Canadian roads; 37,133 died in the United States. Closer to home, British Columbia was forced to roll back its 120 km/h speed limits on several routes when accidents more than doubled.

If you have been injured in a motor vehicle accident, contact Will Davidson LLP to learn how we can help. Our team of experienced car accident lawyers can provide guidance as you consider a personal injury claim.

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June is Brain Injury Awareness Month in Canada

Brain Injury Awareness Month, which occurs every June in Canada, is an important event for the country’s brain injury lawyers, safety activists, and public health and safety officials. It is an opportunity to draw attention to the prevalence of brain injuries in Canada and to the serious health challenges they cause.

More than 20,000 people per year are hospitalized with traumatic brain injuries and concussions in Canada. In 2016-17 alone, hospital emergency departments diagnosed around 46,000 concussions in children and youth. Yet, despite these lofty numbers, most brain injuries are preventable. During Brain Injury Awareness Month, stakeholders aim to educate Canadians on how to avoid brain injuries in themselves and others. In 2015, for example, then-Health Minister Rona Ambrose advised Canadians to take these precautionary measures in a release:

  • Operate motor vehicles safely and without the distraction of mobile devices
  • Wear proper headgear for sports like hockey, football and biking
  • Take action to prevent falls among older adult in their homes and communities
  • Ensure playing areas are clear of hazards, and
  • Follow proper safety procedures when taking part in organized sports and other activities.

Another important aspect of Brain Injury Awareness Month is supporting organizations that research brain injuries and provide services to survivors. Some of these organizations include:

  • Parachute Canada, an organization which works to reduce preventable injuries and collaborated with the federal government on the Canadian Guideline on Concussion in Sport
  • The Ontario Brain Injury Association (OBIA), which provides and disseminates information and educational tools relating to all aspects of acquired brain injury
  • The Brain Injury Society of Toronto (BIST), a non-profit organization supporting acquired brain injury survivors in Canada’s largest city, and
  • The Canadian Traumatic Brain Injury Research Consortium, which receives funding through the Canadian Institutes for Health Research and recently embarked on a project to identify biomarkers to improve assessment of concussions in children.

As Ontario’s brain injury lawyers know, a serious brain injury can occur to anyone at any time. Traumatic brain injuries are often addressed in personal injury lawsuits involving car accidents, slip-and-falls, cycling accidents, boating accidents, and more.

If you or a member of your family have experienced a head injury as a result of an accident, contact Will Davidson LLP today to learn how our experienced team of brain injury lawyers can help. Our group will provide the advice, guidance, and representation you need to secure compensation to fund your recovery.

Image credit: University of the Fraser Valley

Cycling Death in Ottawa Sparks Calls for Change

Cyclist safety has been a hot topic in Ottawa in recent weeks, as it has been for years among Ontario’s personal injury and bicycle accident lawyers. A fatal hit-and-run in the city’s downtown core in mid-May sparked protests and calls for change in the Nation’s Capital, prompting city councillor Catherine McKenney to suggest a Vision Zero approach.

“We can’t just keep waiting for cyclists and pedestrians to get killed and then take more action,” the Somerset ward councillor told reporters last month.

Toronto bicycle accident lawyers and road safety advocates are quite familiar with Vision Zero, a road safety strategy that prioritizes the safety of vulnerable road users and aims to eliminate traffic fatalities and serious injuries. McKenney is urging the city to adopt several Vision Zero measures, including:

  • Mandatory pedestrian and cycling infrastructure with all new road construction
  • Installation of segregated bike lanes
  • Reducing speed limits to 30 km/h on all residential streets
  • Eliminating right turns on red lights where there are bike lanes or heavy pedestrian traffic
  • Changing traffic signals to prioritize cyclists and pedestrians

“We often prioritize traffic flow over pedestrian and cycling safety and that has to be changed,” she the city councillor, according to the CBC.

McKenney wasn’t the only Ottawan calling for change following last month’s accident. Protestors organized at least two demonstrations in the city, including one in which activists separated bike lanes from traffic lanes with red plastic cups, and a memorial ride attended by 400 cyclists and a police escort.

“I feel like it was a really powerful experience,” said Andrea Harden, who helped organize the ride, to the CBC. “We had quite a large crowd for three days’ worth of organizing and I think that’s a testament to how people who ride bikes in this city feel.”

Residents of the Greater Toronto Area are all too familiar with protests and memorials for vulnerable road users. Pedestrian and cyclist deaths reached all-time highs over the past several years while municipal politicians have struggled to find solutions. Toronto City Council launched its own Vision Zero plan in 2017, but it has failed to produce positive results. Local road safety experts blame lack of investment in infrastructure improvements and hesitance to adopt controversial measures, such as lowering speed limits.

If you or a member of your family has been injured in a cycling accident, contact Oakville Lawyers today to arrange a free, no-obligation consultation with one of our experienced bicycle accident lawyers.

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Low-income kids at higher risk of being hit by cars in Ontario

A new study conducted by researchers at Sick Kids Hospital, York University, and ICES (formerly Clinical Evaluative Sciences) shows that Ontario children living in low-income areas are more likely to be struck by vehicles than children in high-income areas, a fact that may not surprise personal injury lawyers. The researchers examined emergency room data from 2008 to 2015 from hospitals across the province.

“Simply put, poorer children are at increased risk of getting hit by cars,” lead study author Dr. Linda Rothman told CTV News. “Child pedestrian injury is a public health and equality issue.”

The study uncovered some positive findings, as well: emergency room visits by children struck by vehicles fell 18 per cent during the study period, including 22 per cent for kids living in high-income areas and 14 per cent for kids living in low-income areas. Unfortunately, that translates to high-income children visiting emergency rooms at a 48 per cent lower rate.

“Although progress has been made in reducing preventable pedestrian motor vehicle collisions, more work remains to be done,” Dr. Rothman said. “Our streets should be safe for all children to walk to school, to the playground or to the park.”

The researchers attributed the stark gap in collision rates in part to infrastructure differences.

“Recent research has found differences in road safety features in high-income versus low-income areas,” the report reads. “A request-based process in many cities in relation to installing traffic safety features such as speed humps may favour communities with higher income levels.”

The solution? Close the infrastructure gap by installing traffic signals, road narrowing protocols, speed bumps, and other traffic calming measures in low income districts.

The personal injury lawyers at Will Davidson LLP believe in equal access to justice for all Ontarians, which is why we provide our services on a contingency basis, meaning clients aren’t asked to pay legal fees until their case has been successfully resolved and compensation awarded. We also provide free, no-obligation consultations to accident victims in need. When you’re injured, you and your family should have access to fair and reasonable compensation, regardless of your income level.

If you or a member of your family has been injured in a motor vehicle accident, contact Will Davidson LLP today to arrange a consultation with our experienced team of personal injury lawyers. We will provide the advice and guidance you need to make informed decisions about your legal options and your recovery process.

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Weather Causes Lawsuit Landslide in Windsor

An “unprecedented” number of damages claims were filed against the City of Windsor last year, with most of the increase attributable to pothole claims and slip and fall injuries. The city awarded very few payouts, however; lawsuits against municipalities are often uphill battles for plaintiffs, as any slip and fall lawyer can attest.

“When we’re assessing a claim and whether or not to pay it, we look at: were we acting reasonably, did we do everything we could have done in the circumstances,” deputy city solicitor Dana Paladino told the Windsor Star in April. Plaintiffs in these cases must prove that the municipality was negligent in its duties, a difficult claim to substantiate.

The City of Windsor received 185 claims for damages relating to potholes in 2018, up from 51 the year before. It also received 37 slip and fall claims, up from 22. The slip and fall claims were of more concern to the city: pothole damages usually range from $500 to $1,000; slip and fall damages are generally much higher.

Indeed, of the $2.5-million that the city paid to claimants last year, 37 per cent went to slip and fall victims and 29 per cent went to trip and fall victims. Just five per cent addressed property damages.

What caused the sudden surge of lawsuits? The city blames the weather.

“We’re unfortunate in that we’re probably in the worse weather zone in North America for freeze/thaw cycles,” city engineer Mark Winterton told the Star. “That’s a recipe for a pothole, numerous freeze/thaw cycles.”

Wild temperature fluctuation in February and March also caused sidewalks to become extremely slippery, which led to the uptick in slip and fall claims.

Even with extreme weather causing hazardous conditions, every slip and fall lawyer recognizes the challenges of lawsuits against municipalities. Ontario’s cities and towns are hard-pressed to maintain roads and sidewalks during the winter. High-density and high traffic neighbourhoods must be prioritized, which leads to safety risks in other areas. If a person is injured due to a slippery sidewalk in a low-priority zone, they have little legal recourse.

If you or a member of your family have been injured in a slip and fall accident, contact Will Davidson LLP’s Oakville Lawyers to speak with an experienced slip and fall lawyer today. Our team can assess the viability of your claim and lay out your legal options. Contact us today to arrange a free, no-obligation consultation.

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Ontario Government announces higher legal fees

On April 1, the Government of Ontario enacted changes to court fees and fee waiver eligibility under the Administration of Justice Act. The changes, which have already been criticized by some personal injury lawyers, are intended to bring the province closer to “full cost recovery,” the Ministry of the Attorney General told the CBC.

Legal fees in Ontario had remained stagnant in the 15 years prior to the changes. The new rates will reflect the cost of doing business today; according to the Ministry’s statement to the CBC, the provincial government recovered less than a third of its costs prior to April 1 update.

Unfortunately, many in the legal community believe the rate changes will disproportionately affect people whose ability to pay legal fees was already tenuous. Individuals who choose to represent themselves in court will be particularly stretched. One civil litigator in Ottawa told the CBC that the move “seems to be keeping people out of the courthouse.”

At Will Davidson LLP, our team of experienced personal injury lawyers believes passionately that every Ontarian deserves full access to justice. We offer free, no-obligation consultations and work on contingency to support this aim.

Legal professionals have also expressed confusion regarding the structure of the fee increases. Among the almost 80 changes enacted, increases range from a few dollars to double the pre-April 1 cost.

For example, the cost of filing a lawsuit rose just seven dollars, but advancing lawsuits through the civil court system will now be significantly more expensive. In the small claims court, the price of applying to appear before a judge has doubled, to $180; the price of setting a trial date in civil cases has also doubled, to $810; and the price of scheduling a hearing in family court is now $420. These elevated expenses may prevent some lawyers from working on a contingency basis, and may push others to delay setting trail dates.

“In Ottawa, we often don’t get a date for two or three years,” one Ottawa personal injury lawyer told the CBC. “The processes of moving toward trial is painfully slow. So getting something down for trial as soon as possible is very important because if you don’t, you may be making an injured person wait many years.”

One change that will benefit plaintiffs, however, is being made to fee waiver eligibility. Prior to this April, plaintiffs had to make less $24,000 per year to qualify for a waiver; today, plaintiffs making less than $30,000 will qualify.

If you or a member of your family has been injured in an accident, contact Will Davidson LLP today to learn how we can help. Our experienced team of personal injury lawyers will provide advice and guidance as you initiate your claim.

PTSD, chronic pain, and the hidden impacts of serious injuries

Picture a spinal injury victim. Who do you see? A person in a wheel chair? A person who can no longer use their hands or who has difficulty walking? If so, you’re not incorrect: paralysis is one possible spinal injury outcome. But many spinal injury victims experience subtler, wider-reaching impacts, as spinal injury lawyers understand.

A March 2019 BBC article chronicling a woman’s recovery from a spinal injury illustrates the many ways that a serious injury can affect a person’s life. The injury victim, University of Bristol PhD student Bethany Hickton, suffered a compressed spine and three broken vertebrae when she fell on a wet staircase.

“I slipped and fell,” Hickton explained. “I missed a few steps and landed on the bottom of a flight of marble steps on my coccyx. As soon as I hit the floor I knew something was wrong.”

Hickton’s initial care was straightforward and effective. She was issued a back brace, prescribed pain medication, and discharged from hospital within days. Despite experiencing various physical limitations, Hickton progressed well through the first stage of her recovery.

Unfortunately, as spinal injury lawyers well know, the most challenging aspects of a victim’s recovery may not emerge until months after the accident. As the initial shock of the injury wears off, victims must come to terms with a troubling new reality, which can affect mental health. PTSD, for example, can be delayed until one to six months after the traumatic event.

“People often go into a phase of what they have to do to get better and it’s not until you reflect on how near a miss it was that it may start to lead to mental health problems,” Royal College of Psychiatrists PTSD specialist Neil Greenberg told the BBC.

For Hickton, this phase began when she went off her medication and began experiencing significant pain. She had trouble sleeping, was unable to travel, had difficulty focusing and self-motivating, and began to experience panic attacks.

“Everything stopped,” she said, “and that was really what shocked me.”

Mental health challenges are sometimes overlooked when injury victims are compensated for damages. It’s easy to sympathize with a spinal injury victim in a wheelchair; chronic pain and PTSD are far more difficult to grasp for people who have not experienced them.

Hickton eventually sought help from a counsellor and was prescribed anti-depressant medication. She also uses exercise as a form of therapy, and even discovered an unlikely love of weightlifting. It may be years before she fully recovers, but she has been able to return to her studies and is working to confront lingering fears associated with her injury.

At Will Davidson LLP, we understand that serious personal injuries can have long-lasting physical, mental, and financial impacts. If you or a member of your family has been injured in an accident, contact Will Davidson LLP today to learn how our experienced team of spinal injury lawyers can help.

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Spring Safety Risks in Ontario

It’s spring in Ontario! After a long winter, it’s time to get out of the house and enjoy everything the province has to offer. As any personal injury lawyer will tell you, part of thoroughly enjoying a new season is being aware of the injury risks it presents. Spring weather may not be as dangerous as winter, but Ontarians should be careful, nonetheless.

“We’re in the middle of a transition from one season to the next,” said Kristan Hoffman, a consultant for Ontario Workplace Safety and Prevention Services (WSPS), in a release last year. “We are still getting some winter hazards, starting to see some summer hazards, while managing some unique spring hazards. It’s a unique time of the year.”

Winter, spring, and summer hazards all at once? Sounds like early April. Here are a few things to keep in mind this month and for the rest of the season.

Weather

Spring is a transitional season, meaning the weather tends to oscillate between winter cold and summer warmth. The rapidly changing air temperature can cause unpredictable storm events – you might experience snow on Monday, thunderstorms on Wednesday, and clear sunny skies on Friday.

The takeaway: plan ahead. Whether you’re heading out for a weekend hiking trip or leaving for your half-hour commute to work, preparing for inclement weather reduces your risk of injury.

Water, water everywhere

Sticking with the weather theme, spring is ground zero for high-water and flooding events. There are two key contributors to this problem: melting snow and ice, and heavy rains. Drastic temperature increases cause rapid melts that swell rivers and streams. When these events are followed by thunderstorms, rivers can overflow causing significant flooding.

High-water periods can cause a variety of problems, from property damage to personal injuries. Check your weather listings and local news regularly during the spring; both should issue warnings of potential flood conditions.

Dangerous driving

Spring is a deceptively risky driving season. Sure, road conditions aren’t as bad as during the winter, but ice patches and slippery surfaces are common until late in the season, and flooding or heavy rain can be just as problematic as an Ontario blizzard.

Spring’s high-water events and freeze-thaw cycles are also tough on the roads themselves, causing potholes, cracks, and debris. Be ready for these conditions when you’re on the road.

Slip and fall

Slip and fall injuries are dangerous throughout the year, spring being no exception. As we already mentioned, ice patches and slippery surfaces aren’t exclusive to winter. Wet and muddy conditions are common in stores, public stairways and parking lots during the spring, and can cause serious injuries. Take your time and wear sensible footwear when the weather turns sour this April and May.

Contact a personal injury lawyer

If you or someone you know suffers an injury this spring, contact Will Davidson LLP’s Oakville offices to arrange a free no-obligation consultation with an experienced personal injury lawyer.

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