Weir Bowen - “Ask The Lawyer”

January 29, 2022 

Host: Warren Berg

Welcome to a new season of ASK THE LAWYER, across Alberta on CFWE and CJWE

We are thrilled to be introducing our new sponsor, WEIR BOWEN LLP. 

Weir Bowen is an Edmonton based law firm, however their lawyers have represented clients across Alberta, B.C., and the Northwest Territories… and have been counsel in precedent setting cases all the way up to the Supreme Court of Canada.

We are also excited to be bringing back a long time friend of “Ask the Lawyer”, Cynthia Carels

CPC – Thanks, and introduce Shelagh McGregor

SLM – Thanks, and very excited to be here as well…

So, Shelagh – you have been with Weir Bowen since the start of your legal career… and I understand that in 2022 you have been named as “Lawyer of the Year” for Personal Injury Litigation, by the Best Lawyers in Canada. First of all… congratulations on the honor… 

SLM – Thanks very much.

• We are actually very proud of the fact that SEVEN Weir Bowen lawyers were included in the 2022 edition of Best Lawyers in Canada, in practice areas ranging from Personal Injury Litigation to Medical Malpractice and Insurance Law. 
• Speaks to the strength of the firm

CPC – Yes, but the Lawyer of the Year designation recognizes an individual with the BEST overall peer feedback in a specific field of law. This means other lawyers, who are actively practicing in this field, have agreed that Shelagh is amazing.

SLM – I’ve had the good fortune to work with pioneers in the field… and especially in the area of medical malpractice litigation. 

Medical Malpractice is the focus of our show today – and I understand this is one of the areas that Weir Bowen is best known for

SLM – Yes, it is.

One of our founding partners, John Weir, Q.C. practiced law for over 50 years… and was definitely a trailblazer in this area. 

 His legacy lives on in the firm, and has attracted many lawyers to Weir Bowen, who are interested in doing this highly specialized work.

• Talk about Joe Miller, who left the partnership of a major Edmonton law firm in 1991 to work with John Weir.
• Joe has been listed in the Best Lawyers in Canada every year since it’s inception in 2006, and he has been named as “Lawyer of the Year in 2010, 2019 and 2021,

And Cynthia, I understand this is also what brought you to Weir Bowen this past summer?

CPC – it is indeed. 

• I am continuing with my very busy practice as a personal injury lawyer, running lots of motor vehicle accident claims…. But I was drawn to the medical malpractice group at Weir Bowen, because of their extensive bench strength in this uniquely challenging area

What makes medical malpractice work so challenging?

SLM – There are so many moving parts in a medical malpractice claim, and as lawyers for injured victims, we have to prove them all… failing in even one area can cause the whole case to crumble.

CPC – So our plan for today’s show is to go through these moving parts, just to give your listeners some idea of what’s involved… from the very first phone calls to our offices, all the way through to trial, and sometimes even multiple levels of appeal.

Okay – so what’s the first step?

SLM – honestly, step one is the reason we are here today… which is to bring awareness to your listeners about their rights, when it comes to negligent treatment in hospitals:

• There was a study published just this month in the Canadian Medical Association Journal that looked at data on more than 11 million emergency department visits over the course of 5 years, between 2012 – 2017, which found that First Nations patients had lower odds of being triaged or assessed as high priorities for care
• Speak about your experience with First Nations communities and treatment in the health care system

CPC – The research Shelagh was talking about found that 7.9 percent of First Nations visits were triaged at more acute levels, compared to 11.8 percent of the rest of the population… and the authors of the study suggest that may reflect systemic racism. 

This probably doesn’t come as a surprise to many of our listeners… 

CPC – You’re absolutely right… the study pointed to a number of stereotypes that are far too common, suggesting First Nations communities misuse the health-care system, especially in emergency departments

SLM – Many of the cases I have taken on start right there, in the ER… where a complaint is not taken seriously.

• Communication barriers
• Unconscious bias by care providers
• Assumptions about intoxication or drug seeking behaviours

We hear about these assumptions that doctors make all the time… but, we also hear the same about LAWYERS…

CPC – that’s a fair comment.  The legal community has a long way to go o build bridges. 

That’s what I have always appreciated about CFWE and CJWE making space for legal educational programming such as “Ask the Lawyer”

One of the biggest obstacles injured people face is picking up the phone, to make that first phone call to speak with a lawyer. 

After having a bad experience with the medical system, that fear and lack of trust in professionals generally can really stick with people. 

So, how can our listeners get in touch with you?

SLM – The easiest way is to check out our website, at Weirbowen.com 

• Spell it out
• On our “contact us” page, there is a form you can fill in, and our reception staff will make sure your inquiry gets to the right people

What if internet isn’t an option?

SLM – we also frequently take what we call “cold calls”.

Just call our main reception line at 780-424-2030

How does someone know if they should be calling a lawyer?

CPC – My advice is to “err on the side of calling.”

 We get dozens of calls every week, and have a team of lawyers that can ask YOU the questions we need answered, in order to determine if your situation warrants further investigation

What kind of information are you looking for in that first call?

SLM – When the incident happened

 Where it happened

 Who was responsible

 What condition were you seeking treatment for

 How it has impacted your life:

• Work/ school
• Family/ household duties
• Recreational activities
• Out of pocket expenses
• Care needs

That seems like a lot of information. What if someone doesn’t have all those answers?

CPC – It’s okay if you don’t have all the answers, and if you don’t, we can help you figure out what you still might need to pull together…. And what sort of timelines you might be facing.

Speaking of timelines… are there deadlines that our listeners need to know about?

SLM – Talk about Limitations Act generally, and certain exceptions

Underscore the importance of speaking with a lawyer to get advice regarding limitations.

If a caller has time, sometimes we will advise to

•  “wait and see”
• Compile documents 
• Make a complaint to the college of Physicians and Surgeons

Make a complaint to the College of Physicians and Surgeons? What’s that all about? 

SLM – The College of Physicians and Surgeons regulates the practice of medicine in Alberta

• Explain why we sometimes recommend this route as a first step

Do people have to file a complaint with the College, if they want to bring a claim for medical malpractice?

CPC – not necessarily. Although it is extremely helpful, we do have other ways to investigate the conduct of health care providers. This can include obtaining expert opinions from other doctors, or nurses, who will review your records to let us know whether the treatment you received met the “Standard of Care”

That sounds like “legalese” – what does Standard of Care mean?

SLM – explain standard of care & give some examples

Is this expensive?

CPC – College is mandated to investigate complaints by the Health Professions Act at no cost, so it’s a great place to start.

Getting expert opinions, on the other hand, does cost money, so we want to be careful about asking clients to invest their money in these opinions, to make sure the potential benefit is “worth it”

What do you mean by “worth it?”

SLM – that’s where those other questions we talked about earlier come into the equation… 

Talk about assessment of damages, and how that factors into our recommendations

What if it’s “not about the money” though?

CPC – We hear this from callers all the time, for a variety of reasons:

• Don’t want this to happen to anyone else
• To teach this doctor a lesson
• It’s about the principle

While these may be noble… those objectives are best achieved through the complaints process to the College. They have the authority to:

- discipline physicians,

- to add restrictions to a physician’s practice

- to mandate further education

- in extreme cases to even revoke their license to practice

Okay – so let’s assume we have a listener, who’s had a bad outcome because of a medical procedure… and they can’t go back to work, or take care of their household duties anymore… does that mean they have a good case?

SLM – We still have a long way to go… 

• Assuming the client has contacted us within the limitation period, and that we have a helpful opinion regarding the standard of care being breached… we then need to move on to an examination of another “legalese” term called CAUSATION

What is that?

CPC – Causation his can be one of the most challenging elements of a medical malpractice claim to prove.

When we do a causation analysis, we need to figure out what the likely outcome would have been, if the proper standard of care had been followed… 

• Typically people who receive negligent medical care ALREADY had some sort of condition that was negatively impacting their lives. 
• And even if treatment was properly delivered, that doesn’t necessarily mean that everything would have worked out perfectly.
• Sometimes those pre-existing conditions are going to cause people life-long problems, regardless of medical treatment.
• Sometimes bad things happen, even when everything is done according to the books.
• Sometimes the Standard of Care for certain conditions might leave an individual with a permanent disability in any event.

Can you give an example of a tricky CAUSATION case?

SLM –Discuss an example or two 

THIS IS “ASK THE LAWYER” ON CFWE/ CJME

TODAY WE ARE DISCUSSING MEDICAL MALPRACTICE CASES WITH SHELAGH MCGREGOR AND CYNTHIA CARELS FROM WEIR BOWEN LLP

WEBSITE: weirbowen.com

PHONE: 780-424-2030

So, to recap… when someone calls your office, it is helpful for them to let you know:

• When and where the medical error was made
• What condition they were being treated for, and
• How the medical error has impacted their life

CPC – that’s a really helpful place to start for sure… we want to make sure that the relevant limitation periods haven’t expired, and we want to be able to make a rough assessment of whether we think the case has the potential to be worth all of the risks associated with litigation.

You mention “risks” of litigation… what sorts of risks are we talking about?

SLM – Medical Malpractice cases are notoriously litigious, and generally speaking, they are vigorously defended against.

Risks include:

• Financial risks, in the event the claim is ultimately unsuccessful
• Investments of time – because these cases can take many years to bring to completion
• Emotional risks – this type of litigation can be fraught with emotion 

Let’s break this down, one at a time – starting with the emotional risk

CPC – Honestly, for many people, simply deciding to pick up the phone to speak with a lawyer about suing their doctor or their hospital is emotional.

• It’s an intensely personal relationship
• Concerned about ongoing access to care, if they don’t have a lot of options within their communities
• Don’t want to be seen as a complainer
• Worried about how family and friends will judge decisions to litigate
• Many defences that are launched against these claims can feel very hurtful
• Many difficult decisions to make through the course of litigation, that can trigger emotional reactions themselves… especially when it comes to decisions that put your personal finances at risk.

That takes us to the financial risks – what are we looking at?

SLM – The financial risks associated with medical malpractice claims are always running in the backs of our minds, from the very first phone call we have with a client

• These cases require a lot of resources to run all the way through trial, 
• Disbursements
• Expert reports
• Court costs

In the event we are successful with your claim, these costs are recoverable from the defendants… but if we are not successful, we can’t recover the costs… AND clients may ALSO be exposed to the defendant’s costs.

So does this mean you have to have a lot of money in order to be successful in a medical malpractice case?

CPC – Thankfully, no. 

If it is our opinion that potential client has a meritorious case, we will generally run these kinds of files on a “Contingency Fee Agreement,” and we get paid based on a percentage of what we ultimately recover for our clients.

Law Societies have identified that the cost of legal fees on an hourly basis can present a barrier to justice, particularly for individuals who have been injured as a consequence of someone else’s negligence… 

Clients who can’t work, or need money to pay for treatment, don’t also need to worry about coming up with resources to pay their lawyer’s fees… especially since these cases can take many years to work their way through the system.

How long do these cases take?

SLM – not going to sugar coat it…

Give some examples of the length of time it can take to resolve a case.

This, perhaps leads to a rather uncomfortable question… but what if someone dies because of the medical malpractice?

CPC – It is an uncomfortable question, but it’s also important.

 Some of the fundamentals don’t change:

• We still need to figure out what limitation periods apply
• We still need to determine what the standard of care should have been, and if it was breached
• We still need to figure out whether the negligence actually caused the negative outcome.

But, our calculation of the value of a claim changes substantially.

If someone dies, wouldn’t that mean the value of the claim goes way up?

SLM – Not necessarily.

 In Alberta, wrongful death claims are governed by the Fatal Accidents Act

 This prescribes who is permitted to bring the claim, who can benefit from the claim, and what the beneficiaries can claim for. 

Damages for bereavement

As of May 1, 2013, the Statutory Damages awards are as follows: 

$82,000 for a surviving spouse or adult interdependent partner

$82,000 for surviving parents (to be divided equally if there are two)

$49,000 for each surviving child

Dependency claims:

• Loss of dependency on income
•  Loss of dependency on household services
•  Also some money available for funeral expenses, and grief counseling for family members.
• Pre-death care

In contrast… some of the highest value claims we bring fall at the other end of the life-cycle – involving BIRTH injury claims.

Birth injury claims? What is involved with those?

CPC – In the coming months, we will definitely dedicate an entire show to birth injury claims, which is basically an entire sub-specialty of medical malpractice litigation.

A number of Weir Bowen’s lawyers are members of the Birth Injury Lawyers’ Alliance, which was formed in 2016 and includes lawyers from across Canada with experience in these cases… the objective is to promote effective representation of children and families affected by avoidable injuries occurring at, or around the time of birth.

These sound like heartbreaking cases.

SLM – Absolutely. The birth of a child is generally supposed to be a happy occasion… but obstetrics is definitely a high-risk clinical area of practice, and some of the most severe patient outcomes can happen when things go wrong.

The organization that provides medical liability protection to doctors is called the “CMPA” (which stands for the Canadian Medical Protective Association), and in 2018, they published a 10 year review of their data, which showed that obstetrics related cases accounted for:

- about ¼ of all CMPA liability costs, and 

- 1/3 of compensation payments to patients.

When you think about all of the different practice areas of medicine… the high concentration of liability and damages in this one specialty is quite astounding. 

What kinds of birth injuries do you see most commonly?

CPC –  Brachial Plexus injuries & Erb’s Palsy

• Injuries to the nerves in the neck of a baby, that causes problems with their neck, shoulder/ arm
•  if their shoulder gets stuck on the mother’s pubic bone during the delivery (shoulder dystocia). This can also result in the umbilical cord being pinched closed while the baby is in the birth canal… and the obstetrical team needs to act quickly

SLM – Failure to diagnose and/or treat Pre-eclampsia

• This is a condition that 8-10% of women are diagnosed with during pregnancy, and is characterized by high blood pressure. Other symptoms can include:
• Vision changes
•  Headaches 
• Nausea/ vomiting
•  Rapid pulse
•  Sudden swelling
•  Excess protein in the mother’s urine
• Failing to diagnose and treat pre-eclampsia can lead to life threatening illnesses for both the mother and the baby

CPC – Failure to diagnose and/ or treat Jaundice

• Jaundice is an extremely common condition that over half of all newborn babies experience to some degree
• It occurs with the accumulation of bilirubin (a byproduct of the breakdown of red blood cells) in a baby’s body, because their livers haven’t yet figured out how to process it effectively. 
• The most common sign of jaundice is a visible yellowish tint to the skin and eyes.
• For most babies, it is easily treatable – and lots of people will have seen newborn babies under special phototherapy lamps in the hospital. Those lamps help the baby’s body synthesize the bilirubin, to flush it out as urine.
• But for more serious cases, babies might even need a blood transfusion/ exchange 
• Despite how common it is, Jaundice is more challenging to detect in babies with darker skin color and eyes. So, it is critical for babies to be checked for Jaundice before leaving the hospital, and again shortly thereafter – since it can peak at around day 5.

Failing to identify jaundice can lead to lifelong damage:

•  Brain damage
•  developmental delays
•  Hearing and visual impairments
•  Dental issues

SLM: Cerebral Palsy

• This is one of the most common birth injuries we encounter, and is most frequently caused by hypoxia (oxygen deprivation) – although there can be a myriad of other causes.
• Results in a motor disability that affects movement, muscle tone and posture, and can be caused by brain damage during pregnancy or birth

Parents may notice their child has:

•  abnormal reflexes, 
• involuntary movements or tremors,
•  floppiness / or alternatively stiffness, 
• Difficulties with sucking, eating, swallowing
•  Speech delays
•  Learning difficulties
•  Delays in reaching developmental milestones
• Children with CP will typically need long-term medical care

So how can you possibly figure out what a child is going to need over the course of their whole life, if they sustain a birth injury?

CPC – it is a huge project, and one that we can likely spend another whole show on.

• Explain the role of occupational therapists and life care plans

SLM – In addition to their lifelong needs for care, we also need to determine the impact of these injuries on our client’s future employment.

• Explain the role of vocational assessors
• Economists

We have covered a lot of ground today, in our first episode of Ask The Lawyer for 2022… with our new sponsor, Weir Bowen LLP in Edmonton.

We will look forward to learning much more through this series, which will take place here on CFWE and CJWE, on the last Saturday of every month.

Our thanks today to Shelagh McGregor and Cynthia Carels for kicking off the season.

For more information:

Weirbowen.com

780-424-2030

You can also find a link to Ask the Lawyer on our home page, where these shows will be available to stream on demand.

Looking forward to a great season ahead!