Warren Berg: 0:00

Welcome to a new season of Ask the Lawyer across Alberta on CFWE and CJWE. I'm your host, Warren Berg, and joining us again this year is longtime friend of the show, Cynthia Carels from Weir Bowen LLP.

Cynthia Carels: 0:13

It is great to be back, for I think this is now our seventh season of doing Ask the Lawyer on Windspeaker Radio and it's our third season with Weir Bowen LLP as the sponsor.

Warren Berg: 0:23

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

Cynthia Carels: 0:35

Yes, and with the new year, we're also pleased to be able to say that we have the 2024 edition of the Best Lawyers in Canada out now, and they've actually named six Weir Bowen lawyers to this Best Lawyers in Canada list in practice areas ranging from personal injury litigation to medical malpractice and even insurance law.

Warren Berg: 0:56

And I take it that this really speaks to the strength of the firm.

Cynthia Carels: 0:59

You know it really does. This particular honour is one that we're very proud of, especially because the jury of voters who actually decide on the best lawyers in Canada list are actually other lawyers who practice in each of these fields. And you know, if you drill a little bit deeper into the best lawyers list, you'll see plenty of lawyers from you know the biggest law firms in Canada, but Weirbone is actually pretty proud to be just a boutique firm and you know we might be small but you know we're mighty and we may only have one office, but our team of lawyers are clearly known within the broader legal community as worthy of these designations.

Warren Berg: 1:35

In previous years. I also recall that some of your lawyers have actually received the special designation of Lawyer of the Year as well.

Cynthia Carels: 1:42

Yes, indeed, like, for example, my colleague, Shelagh McGregor, who's joined me on this show quite a few times over the last couple of years. Shelagh was the Lawyer of the Year in 2022. And our colleagues Liz MacInnes and Dave DeVere were both named Lawyers of the Year in 2023. And yet another Weir Bowen lawyer was awarded this distinction for 2024, with Joe Miller being recognized as the best lawyer of the year in the field of personal injury litigation.

Warren Berg: 2:11

Now there's obviously a lot of different law firms and lawyers across Canada. I've seen the personal injury law firms advertising all over the place, whether it be at a hockey game or the sides of a bus or on TV, but that's not something I've ever seen where Bowen really do, and yet your lawyers keep getting recognized within the legal community. Why do you think this is?

Cynthia Carels: 2:31

Well, honestly, I think it's because the firm's reputation is truly our best form of advertising. You know, we have the good fortune of standing on the shoulders of pioneers, particularly in the personal injury and the medical malpractice space of litigation. Pioneers particularly in the personal injury and the medical malpractice space of litigation. So one of our founding partners, John Weir he was a QC at the time. He practiced law for over 50 years and John was clearly a trailblazer in bringing lawsuits on behalf of patients who were injured as a result of medical errors. So that just was not being done very often at all. And you know, it does take a special kind of boldness and intellectual strength, as well as understanding of the law, to actually use the legal system to hold doctors accountable for preventable errors.

Warren Berg: 3:15

Right. I mean it would be one thing to hold a bad driver accountable for injuring somebody, but I'm guessing it's got to be a lot harder to hold a doctor accountable.

Cynthia Carels: 3:22

Yeah, you know provincial regulatory bodies the professional regulatory bodies do a very good job of investigating and disciplining doctors who have caused harm, but their job doesn't actually extend to compensating people who get hurt. And you're right, it is a lot harder to sort out blame for injuries that happen in the health care system. So John Weir took the time to really build up a network of experts to help him sort things out, and to this day our lawyers at Weir Bowen continue to cultivate and grow that roster, and so we actually do have a very healthy Rolodex of consultants that we can reach out to to help us sort out the many, many challenging issues that can arise when something goes wrong in the medical system.

Warren Berg: 4:05

Now is it hard to get doctors to, let's say, help out a bunch of lawyers who are, for lack of a better word, suing their colleagues.

Cynthia Carels: 4:17

Yeah, no, it is not easy. The medical profession is highly networked and there are a lot of doctors who just don't want to be involved in litigation in any sort of capacity. Now, obviously, they certainly don't want to be sued themselves, and so many medical experts are quite reluctant to cast dispersions on other professionals who are also their colleagues. So, as such, our existing network of experts who are actually willing to do file reviews for us and provide us with their critical opinions and even give expert evidence at trial, that is so, so deeply valuable to our practice. But as medical care, the fields of medicine, become increasingly specialized and more and more new diseases are found and growing networks and knowledge of various treatments, we really do need to expand our own networks in order to find the right people to weigh in on exactly what happened.

Cynthia Carels: 5:09

So how do you do that?

Cynthia Carels: 5:10

You know, a lot of times we're asking our existing experts to vouch for us with their colleagues.

Cynthia Carels: 5:16

So we're leaning into those relationships and in many cases, you know, we will even be able to get some of those experts to open doors to new contacts for us that we otherwise wouldn't be able to get some of those experts to open doors to new contacts for us that we otherwise wouldn't be able to get access to with a mere, you know, cold call, just you know, picking up the phone and saying, hey, you won't look at a file for us. We'd like you to say something, you know, critical about the quality of yours. So you know we couldn't do this, we couldn't lean into that network, if the experts that were already working with didn't also trust our work too. Because just as much as doctors don't want to get sued, the experts don't want to look foolish in front of the courts either, and medical malpractice cases in particular, they frequently end up in full-blown litigation, with written decisions landing on the court record that anyone can access with a pretty easy Google search.

Warren Berg: 6:05

So anyone can read these court decisions online.

Cynthia Carels: 6:08

No, not every trial results in a written decision that lands on the public record, but there is a very accessible and searchable database online called the Canadian Legal Information Institute so we call that CANLII for short, and you know decades worth of legal decisions can be found there by anyone.

Warren Berg: 6:26

So if somebody Googles, let's say, the name of a doctor, it's probably safe to say that you don't want to see a hit for your doctor on CANLII.

Cynthia Carels: 6:36

Well, you certainly don't want to see a bunch of decisions on CANLII that suggests your surgeon has a history of harming their patients due to negligence, right. But we also want to be prudent with the reputations of the medical experts who get involved in these negligent claims as witnesses on the stand, because their names are going to show up in these decisions too, and our expert's duty is to help the court understand what happened and where blame should lie, and the experts themselves don't want to look bad in the eyes of the court or the court records that anyone can see either. So you know the fact that we can lean into our existing network of experts to open doors for us to connect with their colleagues. It actually does say a lot about the relationship of trust and respect that we all have collectively for each other.

Warren Berg: 7:23

So, in other words, when you have an expert involved, they feel confident that you're not going to put their reputation at risk.

Cynthia Carels: 7:30

There is always risk in litigation of any sort, and especially in the medical malpractice litigation, but we as lawyers at Weir Bowen are constantly evaluating whether the potential benefits are actually worth exposing our clients and our experts to well and ourselves, quite frankly, to that litigation risk, which is why we diligently listen to these experts from the very beginning of the lives of these files and, while we're, you know, regularly checking back in with them as new information comes to light. And there are so many moving parts in a medical malpractice claim and as lawyers for injured victims, it's our burden to actually prove them all, and failing in even one area can actually cause the whole case to crumble.

Warren Berg: 8:16

Okay, so what would be the first step?

Cynthia Carels: 8:18

Well, honestly, step one is the reason we're here today, it's the reason we do ask the lawyer here on Windspeaker Radio Network and it's also the reason you don here today.

Cynthia Carels: 8:24

It's the reason we do Ask the Lawyer here on Windspeaker Radio Network and it's also the reason you don't see a lot of Weirbowen advertising on the side of buses, because we actually see a lot more value in education of potential clients and that's really tough to do in a 30-second TV commercial but, it's a lot easier for us to do in a one-hour conversation show like this, the kind that we do here, and so our goal in doing this show every month is truly to bring awareness to your listeners, to our listeners, about their rights, particularly when it comes to negligent treatment in hospitals, and, sadly, first Nations patients tend to be on the receiving end of negligent treatment far more often than the rest of the population.

Warren Berg: 9:08

Yeah, sadly, I think our audience knows this all too well. Knowing what to do about it when it happens is definitely where a show like this Ask the Lawyer can help.

Cynthia Carels: 9:17

Yeah, you know there was a study that was published recently in the Canadian Medical Association Journal that looked at data on more than 11 million emergency departments over the course of five years, so this looked at data from 2012 until 2017. And it actually found that First Nations patients had lower odds of being triaged or assessed as high priorities for care, and that's just not fair. The research found that 7.9% of First Nations visits were triaged at those more acute levels, compared to 11.8% of the rest of the population, and the authors of this study suggest that actually may reflect systemic racism built into the medical system.

Warren Berg: 9:58

Which is probably not as a surprise to many of our listeners.

Cynthia Carels: 10:01

You're absolutely right. The study pointed to a number of stereotypes that are simply far too common, suggestions that First Nations communities might actually be misusing the health care system, especially emergency departments. So many of the cases that we take on at Weir Bowen start right there in the ER department where a valid complaint is not taken seriously, and there's a whole bunch of reasons for that. You know. It can start even with just communication barriers, but it can also be on the flip side, where there's an unconscious bias or even perhaps a conscious bias by the care providers, and there is a well-known history of false assumptions being made about intoxication or drug-seeking behaviors in otherwise presentations that might be misinterpreted. It could be a stroke that somebody is having that's being misinterpreted.

Warren Berg: 10:56

Now we hear about these assumptions that doctors make all the time, but I'm going to go out on a bit of a limb here, because we also hear the same complaints about well to be honest lawyers and any systematic bias in the legal system.

Cynthia Carels: 11:09

Yeah, that is a fair comment and I'll own that the legal community truly has a long way to go to build bridges, and so that is why we've always appreciated, you know, cfwe and CJWE making space for legal education programming such as Ask the Lawyer, because I think one of the biggest obstacles that injured people face is picking up the phone and making that first phone call to speak with a lawyer, and after having bad experiences with the medical system, it's completely understandable that there would be a fear and a lack of trust in professionals generally, and that can really stick with people.

Warren Berg: 11:46

How can our listeners get in touch with you?

Cynthia Carels: 11:48

Well, the easiest way is to check out our website at weir bowen dot com so that's W-E-I-R-B-O-W-E-N dot com and right there on our contact us page, there's a form that you can fill in and our reception staff will make sure that your inquiry gets to the right people.

Warren Berg: 12:07

And I know for a lot of our listeners the internet isn't an option. What are their choices then?

Cynthia Carels: 12:11

So we actually do frequently take what we call cold calls. So people will call to our main reception line all the time, and so you can reach us there at 780-424-2030.

Warren Berg: 12:24

And probably a big question that a lot of people are asking how does somebody know if they should be calling a lawyer?

Cynthia Carels: 12:31

And my advice is really to err on the side of calling. We do get dozens of calls every week and we also have a team of lawyers that can ask you the questions that we need to have answered in order to determine if your situation warrants further investigation.

Warren Berg: 12:45

And what kind of information are you looking at in that first call?

Cynthia Carels: 12:48

A whole bunch of things, but you know, again, we're going to ask you those questions, things like where the incident actually happened, so we can make sure that we are, you know, the correct jurisdiction to be bringing the action in.

Cynthia Carels: 13:00

We're going to want to know dates, like when the incident happened and when you became aware of it, because we're going to be calculating in our minds whether or not the limitation periods maybe have expired or if they're still applicable. We want to know who was responsible, or who you think was responsible, for the injuries, so that we can run conflict checks in our system to make sure we're not already acting for somebody that we might have to sue on your behalf. We're also going to want, especially in the context of a medical malpractice case, to know what condition you were seeking treatment for, because those pre-existing conditions fall into, you know, sort of a special matrix of evaluation that we need to be considering. If you're showing up at a hospital, you know, with a broken leg and you get bad treatment for your broken leg, we may not be able to sue someone for the broken leg itself, but that's obviously going to be a live issue in the litigation. So we want to know what condition you were seeking treatment for.

Cynthia Carels: 13:55

And then we also need to know about how the injuries have impacted your life in terms of you know, your work, your schooling your family and household duties, those things that you, you know don't get paid for but clearly have a lot of inherent value, you know, impact on your recreational activities and, of course, you know when you get injured. It seems like you end up spending a whole bunch of money on things you otherwise wouldn't have needed to spend money on. So we want to take care of tabulating those out-of-pocket expenses that you've had. And then, obviously, if you've had treatment or you've needed to have somebody in your house to help take care for you, then we need to know about the costs associated with those care needs as well.

Warren Berg: 14:32

Now this seems like a lot of information. What if somebody doesn't have all of these answers?

Cynthia Carels: 14:36

Truly, nobody shows up with all the answers. If they showed up with all the answers, they wouldn't need us. So it's totally okay if you don't have all the answers to those things, and if you don't, we can help you figure out what you might still need to pull together for us. And the really critical piece of the puzzle there is what sort of timelines you might be facing.

Warren Berg: 14:55

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

Cynthia Carels: 14:59

Yes, and some of those deadlines are, as the word implies, timelines that can actually completely kill a claim. So I do need to underscore the importance of speaking with a lawyer to get advice regarding how legislation that's known as the Limitations Act in Alberta can impact your rights. Under the circumstances, and in some cases, sadly, you know, if someone has left it too long, the limitation period might have expired before somebody calls, and so, even if the case could have potentially been meritorious and it's too late, we can't really do anything about it.

Warren Berg: 15:35

So if something happened, say 20 years ago, is it pointless to give you a call.

Cynthia Carels: 15:41

I would think that that is an assumption a lot of people have, but it's not necessarily the truth. There are some exceptions to some of the general rules again, and that is why it is our advice to err on the side of calling and asking and getting a lawyer to answer that question in the context of the very specific facts of your situation. So, for example, there's an exception in historical sexual abuse cases, and so that's why you're actually seeing more and more of those now making their way through the court system, despite them being you sometimes 30, 40, 50 years old.

Warren Berg: 16:15

Okay, so don't assume that it's too late to call. What about assuming that it's still too early to call?

Cynthia Carels: 16:20

Yeah, I much prefer the too early to call calls and would prefer that to our listeners erring on the side of calling too early rather than waiting too long.

Cynthia Carels: 16:29

And it does happen. You know, sometimes the situation is just too fresh to know whether litigation is going to be warranted. But you know there is still a lot that we can do when we have that extra runway to work with. So the biggest benefit of calling too early is simply to get some direction on what you should be doing. You know, in terms of compiling evidence, getting copies of medical records, keeping track of expenses, preserving the names and contact information of witnesses and such. You know. But even if we're just waiting to see what happens with someone's injuries, sometimes it actually can be the case that you know, for instance, the conduct of a health care provider was so egregious that maybe it might warrant a complaint to one of those regulatory bodies like we were talking about before, such as the College of Physicians and Surgeons, was so egregious that maybe it might warrant a complaint to one of those regulatory bodies like we were talking about before, such as the College of Physicians and Surgeons.

Warren Berg: 17:16

So making a complaint to the College of Physicians and Surgeons? What's that all about?

Cynthia Carels: 17:21

So the College of Physicians and Surgeons of Alberta regulates the practice of medicine in the province of Alberta. So when a patient thinks that a doctor's conduct needs to be investigated, you know, or maybe their license should be revoked, that is the regulatory body with the authority to do so. So sometimes patients will make these complaints and if they actually have enough time before their limitation period expires, we might want to wait and see what the college determines before making a decision about a lawsuit for those injuries.

Warren Berg: 17:54

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

Cynthia Carels: 17:59

Not necessarily. No, those two things are actually independent of each other. But it can be really helpful and it also doesn't cost anything to bring a claim or to bring a complaint against a practitioner with the college. So if the College of Physicians and Surgeons actually finds that the doctor did something wrong that warrants a sanction, that information can be really helpful to potential clients with decisions about. You know the value of potentially exposing themselves to the risks associated with bringing a medical malpractice lawsuit where they're actually claiming for damages against a doctor. But you do not have to file a complaint with the college in order to be successful in a lawsuit.

Cynthia Carels: 18:42

Like I said, those are two completely independent tracks. So, as we were talking about the beginning of the show, you know we can also lean into the expertise of our network of doctors and nurses and other consultants to help us sort out the merits of your claim as well. So it still is an investigatory process, but on our side of the table it actually does cost some money. So if you already have a decision from the college, that can be really great sort of guiding light information to have.

Warren Berg: 19:11

Is this expensive?

Cynthia Carels: 19:13

Well, the college itself is mandated to investigate complaints by the Health Professions Act at no cost, so it is a great place to start if that's your concern. Getting expert opinions, on the other hand, through our office, that does cost money, and so the experts they get to set their own fees for doing this kind of work. So we do really want to be careful about asking clients to invest their hard-earned money in these opinions, because if you've been injured, you probably aren't sitting on a big pile of cash that you want to light on fire getting an opinion. That's not necessarily going to be helpful to your case, and so it is good for us to have those college decisions before making decisions about bringing experts in, but it's not necessary. But it can be helpful for us to figure out whether or not it's going to be worth it.

Warren Berg: 20:03

Worth it. There's one of those legal terms, those fancy words. What do you exactly mean by worth it?

Cynthia Carels: 20:09

Yeah, I mean worth it is definitely. There's some subjective elements to it and some objective elements to it, and that's where some of those other questions we talked about earlier really come into the equation, when we're talking about assessing the damages that were caused by the negligence and how that's going to factor into our assessment of whether or not something's worth it.

Warren Berg: 20:31

Now, what if it's not about the money, though?

Cynthia Carels: 20:35

Yeah, we do hear that from callers all the time. I mean, there is a certain nobility to that saying it's not about the money, it's about making sure that somebody doesn't do this to anybody else, or that maybe they want to teach the doctor a lesson, or that it's, you know, about the principle of how they were treated. And those are, like I said, obviously noble objectives and I would say that those objectives are probably best achieved through the complaints process to the college In a civil claim. We don't really have the ability to prevent this from happening to anybody else, or you know to be acting on the notion of principles, but the college itself has the authority to actually discipline physicians. They can also add restrictions to a physician's practice, they can mandate further education, and so these are all things that do help to achieve those objectives of making sure that it doesn't happen to anybody else, and in extreme cases it's the college itself that can revoke a doctor's license to practice.

Warren Berg: 21:44

Let's assume that we have a listener who has 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 that they automatically have a good case?

Cynthia Carels: 21:56

Yeah no. There's pretty rare that we ever say nope, you've automatically got a good case. Usually I'm saying in the flip side, that doesn't mean this is a slam dunk, so we still have a long way to go. But assuming that the client has contacted us within that limitation period, assuming we can get a helpful opinion regarding the standard of care being breached in their situation, then we need to move on to an examination of another legal, easy kind of term called causation.

Warren Berg: 22:25

So let's dive into that. What is causation?

Cynthia Carels: 22:28

Causation can truly be one of the most challenging elements of a medical malpractice claim to prove, and when we're doing a causation analysis we need to figure out what the likely trajectory or outcome that person would have had if the proper standard of care had already been followed. The challenge is that typically people who are receiving negligent medical care already had some sort of condition that was negatively impacting their lives. So even if the treatment was properly delivered, that doesn't necessarily mean that everything would have worked out perfectly for them. Sometimes those pre-existing conditions are going to cause people lifelong problems, regardless of the medical treatment. And you know, sometimes things, bad things happen even when everything is done according to the books. And, of course, sometimes the standard of care for certain conditions might actually leave a person with a permanent disability.

Warren Berg: 23:23

In any event, this is Ask the Lawyer on CFWE and CJWE. Today we're discussing medical malpractice cases with Cynthia Carels from Weir Bowen LLP. Their website is weirbowen dot com. That's W-E-I-R-B-O-W-E-N dot com. Their phone number is 780-424-2030. So to recap what we've talked about so far, when somebody calls your office, is it 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 your life?

Cynthia Carels: 24:00

Yep, those are really the most helpful places to start. For sure, we want to make sure relevant limitation periods haven't expired. We want to be able to make a rough assessment of whether we think the case has the potential to be worth it. You know, with all of the risks that are associated with litigation.

Warren Berg: 24:16

Now you mentioned the risks about litigation. What sort of risks would we be talking about there?

Cynthia Carels: 24:21

Yeah, medical malpractice cases. I'm not going to sugarcoat it. They are notoriously litigious and, generally speaking, they are vigorously defended against. So these risks include financial risks, first of all. In the event that the claim is ultimately unsuccessful, plaintiffs can be stuck holding the bill for legal costs and disbursements associated with all of the many parties that we had to bring into this litigation. There's also the investment of time, because these cases truly can take many years to bring to completion. They're complicated and it takes time. But also there's a lot of emotional risks associated with it as well. This type of litigation is fraught with emotion.

Warren Berg: 25:07

So let's break these down one at a time, starting with the emotional risk.

Cynthia Carels: 25:12

Honestly, for most people, or many people anyways, simply picking up the phone to speak with a lawyer about suing their doctor or their hospital is an emotional decision.

Cynthia Carels: 25:23

In many cases this is an intensely personal relationship and people can have concerns, especially in smaller or, you know, more remote communities, about maintaining their access to ongoing care if they don't have a lot of other options besides the doctor or you know nurse practitioner or somebody that they feel they need to sue.

Cynthia Carels: 25:42

And people are concerned, obviously, about being seen as complainers. They may worry about how their friends and family might judge their decision to start litigation. And then, even as we get further on into the cases, many of the defenses that are launched against these claims can feel very hurtful, especially if a defendant doesn't want to take responsibility right out of the gate, they do start pointing fingers of blame, just as sort of a boiler, sort of a boilerplate defense that you know that the patient didn't follow medical advice or that they, you know their problem was too far gone anyways. And then, of course, you know we have many difficult decision points along the way throughout the course of litigation and those decision points can trigger emotional reactions themselves, especially, you know, because at the end of the day, this is coming down to money, and sometimes some of the decisions we need to have our clients make may put them at some personal risk of financial exposure too.

Warren Berg: 26:43

So this takes us to another thing that we're talking about financial risks. What are we looking at there?

Cynthia Carels: 26:48

So those financial risks are always running through the back of our mind, especially on these medical malpractice cases, truly from the very first phone call that we have with a client. These cases do require a lot of resources to run all the way through trial. So we're spending money on all sorts of disbursements, like literally every time we write to a hospital or a doctor's office or a pharmacy to get a copy of your medical records, we're getting charged anywhere between, you know, 25 bucks to $500. Sometimes it can even be more than that depending on the volume of the records. So those little things along the way they start adding up to some pretty big piles of money. And then, of course, getting our experts involved to get their opinions written and to have them show up for trial. They sometimes are charging, you know, $500 an hour for that kind of work.

Cynthia Carels: 27:39

And then, of course, there's also the costs associated with court costs, and so if you are ultimately unsuccessful in your litigation, you may be responsible for the other side's court costs. Now, that can also work in our favor. If we're successful in the litigation, we can get them to pay our court costs and that's something that you know. Every time there's an exposure to that, I'm actually sitting down with my clients and kind of running them through the schedule of costs in our rules of court manual so they can see, you know, the more we push this forward, the higher this risk associated with those court costs become, and that can be a big weight in the decision-making matrix.

Warren Berg: 28:16

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

Cynthia Carels: 28:21

Thankfully no. So I don't want this conversation to scare people off of calling us. If it's Weir Bowen's opinion that a potential case is potentially meritorious, we will generally run these kinds of claims on what we call a contingency fee agreement. That means we're going to get paid based on a percentage of what we ultimately recover for our clients. So law societies have identified that the cost of legal fees you know on an hourly basis where lawyers are charging $250 to $2,500 an hour that can present a barrier to justice, particularly for individuals who have been injured as a consequence of someone else's negligence. So clients who can't work or need money to pay for treatment or just don't have a whole bunch of resources themselves don't need to worry about coming up with resources to pay their lawyers' fees. We get paid if your claim settles, but you know, in the meantime these cases can take a lot of years to work their way through the system and we don't want people running out of resources in the meantime.

Warren Berg: 29:25

And I know this has got to be very, very flexible here. But how long do these cases usually take?

Cynthia Carels: 29:31

Oh boy, yeah, there is no rule to that one. Medical malpractice cases can move at the speed of glaciers, and when I'm talking to potential new clients on the phone, I do tell them it is not uncommon for these cases to take five to seven years. Some can turn over really quickly, but some can take a decade or even more, and in fact sadly, sometimes the litigation actually survives longer than the injured patient.

Warren Berg: 29:59

So this is probably a good time to lead us to an uncomfortable question what if somebody dies because of this medical malpractice?

Cynthia Carels: 30:08

It is an uncomfortable question, but it's also a really important one. Some of the fundamentals don't change in those first phone calls, so we're still going to need to figure out what limitation periods apply, we're still going to need to determine what the standard of care should have been and if it was breached, and we're still going to need to figure out what the negligence actually caused in terms of the negative outcome compared to what the individual's outcome otherwise likely would have been. But our calculation of the value of a claim does change substantially.

Warren Berg: 30:43

So if somebody dies, wouldn't that mean that the value of the claim would go way up?

Cynthia Carels: 30:47

Not necessarily In Alberta. Wrongful death claims are governed by legislation known as the Fatal Accidents Act, and so the Fatal Accidents Act actually specifically prescribes who is permitted to bring a claim, who can benefit from the claim and the scope of what the beneficiaries can actually claim for. So the estate of the person who died doesn't have a right to sue for that person not existing anymore. Now we're looking at the family members who are eligible to bring the claim, and under this legislation, as of May 1st of 2013, they have damages that are basically prescribed by statute. So, if you are the surviving spouse of someone who died due to somebody else's wrongful act or omission, the surviving spouse or spouse or wrong number. But it is important for you know the insurance industry and people who are working in this space and obviously the people who have lost a loved one, to know this is the value of what you can get. There's also $82,000 available for surviving parents. Now, if both parents are still alive, then that $82,000 is supposed to be divided equally between them, and then each surviving child is eligible for $49,000 for their bereavement.

Cynthia Carels: 32:19

Now, in addition to those prescribed amounts, there are also some avenues for us to bring dependency claims. So, if you had a child who was dependent on this person who's now passed away, for their income or for their household services, we can figure out what the value of that would have been and we'll add that into the claim as well. And then there's also some money available for funeral expenses and for grief counseling for the family members and also a time period of that pre-death care between the time of the injury and when the person passed away. Now, in contrast, you know those can be some fairly modest claims when you know when we're bringing them at the end of someone's lifespan, especially if they've been involved with the medical system for quite some time. But on the flip side, some of the highest value claims that we have actually fall at the other end of the life cycle, and those involve birth injury claims.

Warren Berg: 33:18

So birth injury claims, let's get a little deeper into that. What is involved with those?

Cynthia Carels: 33:22

Well, in the coming months, on Ask the Lawyer, we're actually going to bring in some of our Weir Bowen lawyers who dedicate their practice to this sort of entire subspecialty of medical malpractice litigation, because it truly is an entire subspecialty. We have a number of lawyers who are members of a national group called the Birth Injury Lawyers Alliance, and that group was formed in 2016. It includes lawyers from all across Canada with expertise in birth injuries themselves, and the objective of that group really is to promote effective representation of children and their families who have been affected by avoidable injuries occurring at or around the time of birth.

Warren Berg: 34:03

Some of these sound like they would be heartbreaking cases, or around the time of birth.

Cynthia Carels: 34:06

Some of these sound like they would be heartbreaking cases. Oh yeah, they definitely are. You know, the birth of a child is supposed to be a really happy occasion, you know, generally speaking, 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 at those stages. Now, the organization that provides medical liability protection to doctors is known as the CMPA and that stands for the Canadian Medical Protective Association. In 2018, they actually published a really interesting study. It was a 10-year review of their data and it showed that obstetrical-related cases actually accounted for about one quarter of all of the CMPA's liability costs and about a third of the compensation payments to patients. So when you think about all of the different areas of practice of medicine, this really high concentration of liability, as well as damages awards, in this one specialty area is really quite astounding.

Warren Berg: 35:08

What kind of birth injuries would you see most commonly?

Cynthia Carels: 35:13

One of the biggest birth injuries that we see is actually cerebral palsy and you know, until I started doing medical malpractice work I did not connect the dots at all between cerebral palsy and birth injuries. It just hadn't really registered on my radar. But it is actually one of the most common preventable birth injuries that we encounter and it's frequently caused by a period of hypoxia. So hypoxia is a period of oxygen deprivation. There can be a myriad of other causes as well, but the most common is that hypoxia and it results in a motor disability that can affect movement, muscle tone and posture and it can be, you know, it can even cause brain damage during pregnancy or birth.

Cynthia Carels: 35:58

So parents may notice that their child has, you know, abnormal reflexes, involuntary movements or tremors, possibly some floppiness or, alternatively, stiffness. They may have difficulties with sucking or eating or swallowing, could be manifesting itself in terms of speech delays, learning difficulties, delays in reaching developmental milestones, learning difficulties, delays in reaching developmental milestones and you know, sometimes you might not even know that your child had a birth injury until they aren't actually meeting those developmental milestones and somebody kind of does a reflective look back to say, oh hey, did something happen, you know, during labor and delivery. So it is important to know. You know, especially with children, that that limitation period we were talking about earlier doesn't even start clicking until the patient turns 18. So if a child is diagnosed with cerebral palsy during their childhood years, even if the birth was 10 years ago, we want you to give us a call about that, Because children with cerebral palsy will typically need long-term medical care.

Warren Berg: 37:06

So if cerebral palsy is one of the most common types of birth injuries, what are some of the more obscure ones?

Cynthia Carels: 37:15

Yeah, you know, it's important to touch on that too in sort of this sort of general information kind of show, because again it might be that somebody thinks that they have a child with a condition and they may not be connecting it to a birth injury case.

Cynthia Carels: 37:28

So we also see injuries known as brachial plexus injuries or Erb's palsy cases, and these involve injuries to the nerves in the neck of a baby that can cause problems with their neck and shoulder and arm. So if their shoulder gets stuck on the mother's pubic bone during the delivery, it's known as shoulder dystocia and this can also result in the umbilical cord being pinched closed while the baby's in the birth canal, and in those situations the obstetrical team does need to act quickly. You know other injuries that we see in birth injury cases. They can arise from failing to diagnose or treat a mom for preeclampsia. It's a fairly common condition that about 8 to 10 percent of women are diagnosed with during pregnancy and it can be characterized by blood pressure high blood pressure, sorry pressure, high blood pressure, sorry. Other symptoms can include vision changes for mom or headaches, nausea and vomiting, rapid pulse, sudden swelling or excess protein in the mother's urine and failing to diagnose and treat preeclampsia while the mom is pregnant. That also can lead to life-threatening illnesses, both for the mom and for the baby.

Warren Berg: 38:45

What about after the baby is born and they're basically now the patient, completely independent of what's gone on with their mother?

Cynthia Carels: 38:53

Yeah, that's another one that we'll deal with in the future shows, and one of the big ones is failing to diagnose or properly treat jaundice. Now, jaundice I'm sure everybody's heard about. It's a very, very common condition that over half of all newborn babies experience to some degree, and it can occur with the accumulation of bilirubin. So that is a byproduct of the breakdown of your red blood cells in the baby's body, because the liver hasn't quite figured out how to process it effectively yet. And the most common sign of jaundice is that visible yellowish tint. You know you'll see it in a baby's skin or in their eyes, and for most babies this condition is easily treatable.

Cynthia Carels: 39:37

So you know, lots of people will have seen newborn babies under those special phototherapy lamps that look like they're, you know, going for a little sun vacation in the hospital. So those lamps actually help the baby's body to synthesize the bilirubin and then it can be flushed out as urine. And for the most serious cases, though, the little photo lamps might not be enough, they might actually need to have a blood transfusion or a blood exchange, blood transfusion or a blood exchange. So you know, despite how common it is, jaundice can be particularly difficult to detect in babies with darker skin or darker eyes. So it is critical for babies to be checked for jaundice before they're leaving the hospital and again shortly thereafter, because it can actually peak around. You know day five postpartum, and failing to identify jaundice can lead to lifelong damages like brain damage again, developmental delays, hearing and visual impairments and even, in some cases, dental issues.

Warren Berg: 40:40

How can you possibly figure out what a child is going to need over the course of their, let's say, their whole life, if they sustain a birth injury?

Cynthia Carels: 40:48

Yeah, it is a huge, huge project and again over the course of the coming year we have set aside a few shows that are specific to birth injuries.

Cynthia Carels: 40:58

So we're going to get into that in greater detail. We'll drill down into that because a huge part of our practice as personal injury lawyers whether it's a birth injury or a motor vehicle accident or even a slip and fall injury is to figure out the value of the damages that a person has suffered, and those damages include all sorts of things. So it is going to include that lifetime cost associated with this person's care, but it's also going to include putting, you know, a value on that person's pain and suffering, their losses of their ability to do household work, even losses in some cases associated with the value of adult interdependent relationships or the ability to attract a spouse or a, you know, a long term relationship that brings its own economic value. And then, of course, we're also going to be looking at the impact of injuries on an individual's ability to work. So how do we do that? Again, this is where we're going to be leaning into those experts.

Cynthia Carels: 41:58

So one of the big experts that we use in these cost of care evaluations is known as an occupational therapy consultant and OTs. You know it's a growing area in the field of medicine and their value is so, so important because they really do help us to look around the corners and see, you know, what is this person going to need when they are trying to go to post-secondary. What are they going to need? If you need, if they eventually decide to have a family and they have children that they need to care for, if they've got motor-related issues, that we need to be able to find some sort of assistive devices for them to be able to respond to the future care that they might need to provide to an infant or a toddler or a sixth grader. This goes on and on and on. So the OTs really help us to prepare like a total life care plan through all of the different stages of life.

Cynthia Carels: 42:54

So if we're looking at an 18 year old, we're going to start looking at, you know what are the statistical possibilities of. You know what they, what they otherwise might have been able to achieve had they not been injured and then what can money do to help put them back into that same position? And then also we're going to be looking at vocational assessments, and so again, you know, if somebody is really young when they're injured, they might not have yet set out what their career trajectory was going to be, you know. Or if they you know, if they're like my nephew, you know he might be a NHL goaltender or he might be an accountant, you know there's a lot of disparity there in terms of what the future might potentially hold. So, again, we're going to look at experts to help us figure out sort of statistically speaking, based on that person's particular life you know the aptitudes that they had shown to that time as well, as you know, looking at the family context of what was this family likely to be able to provide for this child in terms of access to higher education, sort of the familial support for future career paths.

Cynthia Carels: 44:00

Lots of doctors have doctors as children and it's largely because they're doctors who can afford to put you through med school, and that's what we all talk about around the dinner table. But you know, conversely speaking, there may be other, you know farm-based families. Perhaps you know where you may have a child who's going to follow in the footsteps of their family farm. So we want to have our vocational assessors look at each individual person through the lens of the specifics of their circumstances to help us figure out what would this child likely have done throughout the course of their life had they not been injured. And then they're going to help us flip the focus to what is this child now likely going to be able to do through the course of their life? And if there's a gap between those two streams, that's where we're going to find the value for that loss of earning capacity.

Warren Berg: 44:52

Once you've got the value of a case figured out, you get paid based on a percentage of what the client collects?

Cynthia Carels: 44:58

Yeah, so in the world of personal injury claims, we're generally retained, like I said, on a contingency fee agreement. So instead of asking clients to pay us the standard hourly rate, there are many, many advantages to this kind of agreement. So first of all, you need to know, and our clients need to know, you do not have to be independently wealthy to hire us. You do not need to worry that you're going to run out of money before this claim resolves.

Cynthia Carels: 45:28

Secondly, the thing I like about contingency fee agreements is there's really a built-in assurance for clients that we're deeply invested in their claim because we're not going to get paid if we don't get you money.

Cynthia Carels: 45:41

And you know I can spend hundreds, if not thousands, of hours on some of these cases and that's a huge investment of my time and my resources that I'm not getting paid for until your file is done. So that does give our clients some confidence that you know we're going to do our best to get as much as we can for you. But the third thing is it actually incentivizes us to push our clients' claims as efficiently as we can as well, because we're not getting paid on an hourly basis. So there is nothing in these kinds of agreements, that is, you know, incentivizing me to drag my feet or carry this litigation out longer than we have to. You know, just because I've got somebody who's got a lot of money there, Regardless of whether it takes me 10 months or 10 years to finish a claim, I am only getting a percentage of what we recover for our clients, so we don't want to be dragging our heels.

Warren Berg: 46:31

Now we have covered a lot of ground today on our first episode of Ask the Lawyer for 2024 with Weir Bowen LLP in Edmonton. Thanks again today to Cynthia Carels for kicking off the season.

Cynthia Carels: 46:43

Yeah, you know, I'm actually really looking forward to this year ahead. We are going to be bringing in a whole bunch of additional moving parts to our team. So, you know, you've heard a lot from myself and from Shelagh McGregor, as well as the areas of law that the two of us particularly practice in, but I think I have actually managed to get a brand new lawyer for just about every month of 2024. So, although I'll be here, we're going to have a lot more variety and spice in the show here, and you won't have to listen to me all the time.

Warren Berg: 47:11

We look forward to hearing from you again, as well as meeting some of the other lawyers of Weir Bowen and continuing to learn about the services that they provide on Ask the Lawyer, which takes place here on CFWE and CJWE on the last Saturday of every month. Once again, if you need more information, you can give Weir Bowen a call at 780-424-2030. You can also visit their website, weirbowen dot com. That's W-E-I-R-B-O-W-E-N, and you can also find a link to Ask the Lawyer on our homepage, the radio station homepage, where these shows will be available to stream on demand. And we're looking forward to a great season ahead!

Cynthia Carels: 47:48

Yes thanks very much!