Ask The Lawyer
Weir Bowen is an Edmonton-based law firm. Their lawyers have represented clients across Alberta, B.C., and the Northwest Territories… and have been counsel in precedent setting cases up to the Supreme Court of Canada.
Ask the Lawyer is heard the last Saturday of the Month on CFWE North & CJWE South in Alberta, Canada. For details visit https://cfweradio.ca/ & https://weirbowen.com/
Ask The Lawyer
Legal Perspectives on Indigenous Healthcare Inequities (November 2022)
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In this episode, Shelagh and Cynthia from Weir Bowen LLP discuss a recent case involving Pearl Gambler, a member of the Bigstone Cree First Nation, who faced shocking mistreatment at Misericordia Hospital. Despite assurances from her obstetrician, Pearl was turned away, leading to tragic consequences for both her and her newborn. This case highlights ongoing systemic issues Indigenous people face in healthcare. Join us as we delve into the legal complexities and societal implications of wrongful death claims in medical malpractice.
Ask the Lawyer is heard the last Saturday of the Month on CFWE North & CJWE South in Alberta, Canada. For more information visit www.weirbowen.com & cfweradio.ca
Indigenous Discrimination in Healthcare
Speaker 1Good morning and welcome to the November edition of Ask the Lawyer across Alberta on Windspeaker Radio CFWE and CJWE . I'm your host , warren Berg , and joining us this month again are Sheila McGregor and Joe Gammez of Weir Bowen LLP in Edmonton .
Speaker 2Great to be back again . Warren , happy to be here .
Speaker 1Weir 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 . And speaking of precedent-setting cases , Sheila , I saw you on the news this past month representing a woman named Pearl Gambler who alleges she was mistreated at the Misericordia Hospital when she was pregnant .
Speaker 2I'm glad you saw that , Warren . It's a very important example of why Jill and I , and the rest of the team at Weir Bowen , do the work that we do . For those who did not see the news stories , Pearl Gambler is a member of the Big Stone Cree First Nation . In 2020 , she was pregnant with her third child and her due date was November 1st . Her prenatal , perinatal and postnatal care was all managed by the same Edmonton obstetrician . On June 3rd 2020 , at about 18 weeks along , Pearl had an obstetrical ultrasound which showed no concerns . A week later , on June 10th , she visited her obstetrician with concerns about new back pain . Her doctor sent her home , but the next day she returned to her doctor's office and was having cramps . Her doctor told her to go to the hospital to possibly have a cervical stitch inserted to prolong her pregnancy , and her doctor advised her that she'd arranged for an obstetrical bed to be reserved for her at the hospital .
Speaker 1Well now , so far , all of this sounds fine . Where did things go wrong ?
Speaker 2Well , when she arrived at the obstetrical unit at the Misericordia Hospital in Edmonton , she was wearing a shirt that said strong , resilient , indigenous . She was also wearing her hair in two braids . The hospital staff person at the desk looked at her and said there's nothing for you here . Pearl and her partner continued to insist that her doctor had secured a bed for her at the obstetrical unit , but the staff person simply repeated there's nothing for you here and told her to go to the emergency room .
Speaker 3As we understand it , pearl waited several hours at the emergency room . Eventually she was admitted to a surgical ward and housed in a room with three other patients , and then later was taken for a cervical ultrasound . Pearl continued to ask for the result of her ultrasound , but was told that only her doctor could give her that information , so she waited all night . Her partner was told that he had to leave due to COVID restrictions .
Speaker 2So then , between about 7 30 am and 7 48 a on June 12 , 2020 , pearl was seen by two doctors who advised her that they did not want to conduct an internal exam because they were concerned that it would disrupt her cervix and result in increased contractions and the possible delivery of her premature baby . At about 8.20 am , about half an hour later on that same day , and for the first time since she had been admitted to the hospital , her obstetrician saw Pearl with a nurse and told her that she had to perform an internal exam to inspect her cervix . Pearl resisted that exam due to the information that had been given to her by the two other doctors in the hour prior to her doctor's arrival .
Speaker 3Pearl eventually consented , even though she didn't want to , and her doctor performed an internal exam which caused Pearl immense pain , Unlike anything she'd experienced in internal exams during her other pregnancies . Her doctor then left her alone .
Speaker 1So what happened next ?
Speaker 2Pearl immediately experienced the onset of intense contractions . After that internal exam she repeatedly called for assistance from the nursing staff at the hospital . Several staff members promised to bring back a nurse or doctor for help , but no one came for an extended period of time and at 9.28 that day Pearl delivered her daughter Sekitwin . At 9.28 that day Pearl delivered her daughter . The nurse who had attended with her doctor earlier was there for that delivery , but Pearl cried out to him for help and told him that the baby was coming and he just stood at the side of the room with his hand over his mouth and did not move to help Pearl or her baby . Pearl continued to plead with this nurse to help her or to get additional help , and he didn't move while Pearl delivered her baby alone with no help . Eventually that nurse left to get help , but he didn't come back .
Speaker 1What happened to the baby ?
Speaker 2Upon delivery , her daughter was alive and gasping for air , but she was not provided with any medical care after she was born and not even a physician was called to assess her daughter or Pearl . Pearl's partner , who by this time had been allowed to return , also tried to get help , but to no avail . In about 20 minutes after Pearl delivered her daughter , several nurses finally arrived . They cut the umbilical cord and told Pearl and her partner that their daughter was gone . They took the baby away . She was later seen by Pearl's friend in a basket on a shelf at the nursing station . Medical records show that she was still gasping for air 32 minutes after she was delivered .
Speaker 3What the records don't show , however , is a record of the time of death . What the records don't show , however , is a record of the time of death .
Speaker 2They also don't show a record of a live birth . So and that's really really concerning to us . I mean , so much of it is concerning , but that is just . It's hard to fathom . Pearl's placenta then didn't deliver spontaneously , so Pearl was given oxytocin which caused intense contractions for almost six hours in the attempt to deliver her placenta and it caused hemorrhaging . The same nurse who had failed to help her earlier insisted that Pearl was fine despite intense bleeding , and after over five hours she was taken to surgery to manually remove her placenta . And as if that wasn't enough , before she went to surgery to remove her placenta , pearl was . If that wasn't enough , before she went to surgery to remove her placenta , pearl was actually asked by a hospital staff member whether she would like to take her quote specimen home . When Pearl asked whether the staff person was talking about her daughter , the staff person confirmed yes , that's what she was talking about . So Pearl insisted that her daughter , who was born alive , would be coming home with her and would receive a proper burial .
Speaker 1This sounds absolutely awful for Ms Gambler and her family , so is this why they decided to go public with her story ?
Speaker 2Yeah , it's such a tragic case , Warren , and it's important that the public knows about the kind of treatment that Indigenous people receive in the health care system . Pearl's story is especially horrible , but we hear stories all the time about terribly negligent care that First Nations patients receive in a hospital , and especially Indigenous mothers and their babies .
Speaker 1And I'm sure this comes as no surprise to our listeners across the Windspeaker radio network . This is Ask the Lawyer on CFWE and CJWE . I'm your host , Warren Berg , and joining us here once again today are Sheila McGregor and Jill Gammes of we're Bowen LLP in Edmonton . So , Jill , I know that our reporters have done a number of stories over the years about discrimination in Canada's health care system , especially since the Truth and Reconciliation Commission called on governments across Canada to tackle this very issue .
Speaker 3Well , the Truth and Reconciliation Committee's final report was issued in December 2015, . So we are now seven years down the road from the 94 calls to action and there is still a lot of work to be done across the country . For example , another tragic story that comes to mind is the Joyce Ishakwan story . It's not a case that our firm was involved with , but it is another very sad story where it was apparent that anti-Indigenous discrimination drove the terrible care Ms Ishakwan received .
Speaker 3So Joyce was an Indigenous woman in Quebec who was hospitalized with stomach pains . Her condition deteriorated while she was there and the staff ignored her and made comments like what would your children think seeing you like this ? And you made bad choices . She had all four limbs restrained , followed by an abdominal belt restraint in addition to a pharmaceutical , chemical restraint . She deteriorated so much that she became unresponsive , but even then , the staff were not quick to respond and Joyce ended up dying Unknown to the health care workers . Their conduct was streamed and recorded by Joyce on her Facebook Live . When they finally realized they were on camera , they actually attempted to erase the footage , but luckily it had already been broadcast .
Speaker 1And I would take it that this footage made a huge difference for Joyce's family to demand accountability from the system .
Speaker 2Indeed it did . The story was all over the media and in just over a week following Joyce's death , the chief coroner of Quebec ordered a public inquiry into what happened . The report from the inquiry found that as soon as Joyce entered the hospital she was actually labeled a narcotics addict , and there are even notes in her file suggesting Joyce was very theatrical and these kinds of words set the tone for the quality of care she received and others receive .
Speaker 3When one of Joyce's daughters arrived at her mom's bedside , she also started broadcasting Joyce's deterioration on Facebook Live . The inquiry report found that a student nurse who had just four months experience had been left in charge of monitoring Joyce's condition when she was strapped into restraints and under the influence of chemical restraints , and the student nurse wasn't even qualified to even be in that position without supervision . The student nurse tried to get help for a transfer to the intensive care unit , but they were ignored , and this nurse even took to the central intercom to try and get help . It eventually took the action of an experienced orderly to take the initiative to force the transfer , but even then it took 10 minutes to move her to a resuscitation room where she ultimately died .
Speaker 1Now . I remember hearing this story in the media . When it happened , she was the mother of seven children , I believe .
Speaker 3That's right , and she was only 37 when she died . She did have some pre-existing health issues , but the coroner's investigation ultimately concluded that racism and prejudice that she faced was certainly a contributing factor to her death racism and prejudice that she faced was certainly a contributing factor to her death .
Speaker 2Without a doubt , systemic racism in health care is a plain fact now . There's no debate about it .
Indigenous Healthcare Inequities and Wrongful Deaths
Speaker 2In addition to the findings of the Truth and Reconciliation Commission that Jill was talking about , multiple academic studies have confirmed it too . One study was done by a professor of law named Brenda Gunn at the University of Manitoba , who looked at Indigenous health outcomes in Manitoba in a report called Ignored to Death .
Speaker 2In Manitoba , the infant mortality rate for First Nations is almost double that of non-First Nations . At the other end of the spectrum of life , the mean life expectancy for Indigenous men is projected to be 70.3 years , compared to 79 years for other Canadian men , and life expectancy for Indigenous women is predicted to be 77 years compared to 83 years for other Canadian women . So Professor Gunn set out to look into why . So she found a number of things . She found that Indigenous peoples continue to be seen as those who don't really belong , or as if they are a problem and should be treated elsewhere , like when Pearl was told that there's nothing for you here . Also she wrote that Indigenous people are seen as drains on the system , whose care is never quite as urgent and , in general , less deserving of the same level of treatment as non-Indigenous patients . Professor Gunn reviewed the case of Brian Sinclair , which is another tragic example of racism resulting in a complete lack of care .
Speaker 1Brian Sinclair , the gentleman from Manitoba . If I recall and I remember , his story was in the news about a decade ago .
Speaker 2Right , yeah . So Brian Sinclair was an Indigenous man from Manitoba who died in the emergency department waiting room of Winnipeg's Health Sciences Centre , or the HSC , in September 2008 . He was just 45 years old . He had sought care from a family doctor at a primary care clinic . The doctor referred him to the emergency department of HSC , located just a few blocks away from that clinic , for further care , and had actually sent him there with a note that had been written by that doctor . He was a double amputee , so he was in his wheelchair and he entered the emergency department of what was supposed to be the best , most comprehensive hospital in Manitoba . All he had was a treatable bladder infection , but he died in the waiting room after going unattended and uncared for for the next 34 hours .
Speaker 3You might recall that there was an inquest called about Brian's death . Hospital staff during that inquest testified that they made assumptions about Brian that he was intoxicated , that he was homeless and had nowhere else to go , that they thought he was just there to watch TV .
Speaker 1Now it seems to me like there are many assumptions about intoxication , and homelessness are all too common when Indigenous patients encounter the health care system .
Speaker 2That's absolutely right . Warren Nurses on shift while Brian waited in the waiting room testified that they didn't even see Mr Sinclair , but the hospital's own video monitoring system showed many nurses walking right by him and looking directly into the patient waiting area where he was sitting in his wheelchair . Professor Gunn described Brian as simultaneously invisible and overly visible , because staff only saw stereotypes and assumptions which were used to justify ignoring him to death .
Speaker 3There was actually research published earlier this year by a group of researchers in Alberta , led by Patrick McLean , about racism in emergency departments , and it's consistent with what Professor Gunn described in her report . That research found that First Nations status is associated with lower triage scores in the emergency room across many medical conditions and diagnoses .
Speaker 1Well , that brings up a question for me , Jill what exactly is a triage score ?
Speaker 3That's a good question . There are scores assigned to the level of urgency for a patient to be seen , and they're supposed to be standardized according to the symptoms and possible conditions causing those symptoms , so you should not have lower triage scores for the same conditions . These researchers concluded that this could reflect systemic racism and stereotyping . That was the exact problem that Brian Sinclair faced as he sat in that ER waiting room .
Speaker 2We know that there are so many stories like Pearl , joyce and Brian out there , and part of what we try to do at we're Bowen is to try to get justice for people who have catastrophic consequences from their care in the health system . While we can't help everyone , it is important to try to get compensation for people who have significant consequences from poor care , and today we want to focus on the kinds of claims that arise from cases like Pearl , joyce and Brian , and those are fatality claims , or what people may describe as wrongful death claims .
Speaker 1I recall we talked about fatality claims on past episodes and I was very surprised to learn that when somebody dies , it doesn't necessarily mean that their claim is worth significantly more .
Speaker 2Yeah , that's actually a common misperception about wrongful death claims that causing a death should cause the value of a claim to increase exponentially and intuitively it does seem like causing a death is way worse than causing an injury , but that moral blameworthiness isn't really what we're talking about today .
Speaker 3So we're going to break down the rest of the show into discussions of fatality claims into three parts . So first we're going to talk about the legislation that governs these kinds of claims and a bit of the history about how we got here . Next we'll talk about how this legislation applies generally , for instance in car accident claims , and finally we'll talk about some of the issues we face with fatality claims in our medical malpractice actions .
Speaker 1Now , before we get into that , this is probably a really good time to talk about how our listeners can get into touch with you . If they need to talk to a lawyer about an accident , whether it's for medical malpractice or a car crash or some other type of injury . What is the best way to get into contact with you ?
Speaker 2The easiest way is to check out our website at wearebowencom so that's W-E-I-r-b-o-w-e-ncom and on our Contact Us page there's a form you can fill in and our reception staff will make sure that your inquiry gets to the right people .
Speaker 1And for our listeners who are not internet savvy ? What is the option for them ?
Speaker 3We're also happy to take what we call cold calls , so just call our main reception line at 780-424-2030 .
Speaker 1This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE . I'm your host once again , Warren Berg , and joining us are Sheila McGregor and Jill Gamez of Weir Bowen LLP in Edmonton , E-I-R-B-O-W-E-N . Their phone number is 780-424-2030 . Online at we'rebowencom Today we're talking about wrongful death claims and some of the very , very unfortunate stories of Indigenous patients that have been in the news over the last decade or so . Jill , how do wrongful death claims differ from other kinds of personal injury claims ?
Speaker 3Well , warren , the difference really starts right at our first meeting , where we figure out who our client will even be . So , in a personal injury claim like a motor vehicle accident or a slip and fall , generally speaking the person who is actually hurt is our client , unless they're a child or maybe a dependent adult who lacks mental capacity to bring a claim on their own behalf . When the injured person dies , however , they can't retain us to bring the claim for them , so we need to figure out who can . So in order to do that , we're just going to have to do a little history lesson through the evolution of the law in Alberta that governs these kinds of claims .
Speaker 2So way back when the common law governed wrongful death claims , common law is case law that's decided by the courts rather than through legislation passed by the government . So that's a bit of a background there . So there was a general rule that came out of that case law that personal actions for civil wrongdoings didn't survive for or against a deceased person . So we call civil wrongdoings torts . For or against a deceased person , so we call civil wrongdoings torts , so we can distinguish those from criminal wrongdoing . So examples of torts include negligence and nuisance claims , amongst many others . So there are some torts like battery , which can also carry criminal consequences , and in fact Even negligence can carry criminal consequences , for example criminal negligence causing death . So the same act can carry both criminal consequences and civil consequences through a tort action .
Speaker 2There also used to be another common law rule or a rule that came out of case law , that no living person has the right to a lawsuit for a tort against someone who has wrongfully caused the death of someone else or a third party . So until there was a legislative workaround , it used to be that if a victim died , their lawsuit and rights died with them . This was obviously problematic for all sorts of reasons , not the least of which was leaving a victim's dependence without any sort of recourse against a wrongdoer , no matter how big of an impact the person's death had on the loved ones left behind . But also it led to this awful reality that , at least in terms of the price of negligence , it would be cheaper to accidentally kill someone than to injure them . So as Western societies moved through the Industrial Revolution , more and more people were dying as a result of someone else's negligence , frequently leaving surviving spouses and children in destitution .
Speaker 3So to respond , to this problem , governments developed survival legislation . The first Canadian legislation of its kind actually appeared in Ontario in 1886 as a provision in their Trustee Act , and eventually similar types of laws popped up across the country . So in Alberta we have a law which is called the survival of actions act . This was introduced with the intent to put the person who died's estate , with very few exceptions , into the same position as the deceased would have been if they hadn't died . The survival of actions act didn't create any new rights of action , though . It just preserved the rights and liabilities of a deceased victim and or the wrongdoer that were vested in them at the time of their death . So what this means is that the executor or personal representative would continue the action and essentially stand in the shoes of the deceased , making the estate entitled to collect the same damages that the deceased would have recovered if they'd survived .
Speaker 2So section two of Alberta's survival of action acts survival of actions act states that a cause of action vested in a person who dies after January 1st 1979 survives for the benefit of the person's estate . But Section 5 says that if the action survives , only those damages that resulted in actual financial loss to the deceased or the deceased's estate are recoverable . So this actually excluded a few things that the estate would not be able to collect , including pain and suffering awards . The legislators determined that allowing a victim's estate to recover any pain and suffering award would basically give the estate a windfall , so that's precluded .
Speaker 1So does this mean that the deceased loved ones don't get any compensation for the grief that they have from losing a loved one ?
Speaker 3Well , actually another piece of legislation called the Fatal Accidents Act , which came out a bit later than the Survival of Actions Act , sets out what's recoverable for loved ones in these wrongful death claims . The Fatal Accidents Act actually creates a distinct right of action which benefits a deceased person's defined family members and dependents . So these family members and dependents would include a spouse or adult interdependent partner which is sort of another word for common law partner their children and their living parents . So these two pieces of law or legislation the Fatal Accidents Act and the Survival of Actions Act provide some really practical workarounds to those old common law rules that otherwise would have left family members with no right to sue a wrongdoer that caused the death of their loved ones , even if that death had really profound economic implications in their lives .
Speaker 1Now it sounds like a whole big number of people could have claims under the Fatal Accidents Act . How do you sort out who gets to lead a claim ?
Speaker 2Well , sometimes that's tricky . First of all , we need to determine if the deceased person had a will named an executor or personal representative of their estate . So if so , it makes it pretty easy and straightforward for us . As a starting point under the Fatal Accidents Act is that is section three , and that prescribes that an action under this act shall be brought by and in name of the executor or administrator of the person deceased .
Speaker 1I would imagine that would probably lead you to say people should probably get a will . And if the people don't have a will , however , what are the courses of action then ?
Speaker 2So there are a couple of ways that this can be handled . So if there's no will naming an executor of an estate , we may recommend that the family speak with an estate lawyer like Jill to get an administrator appointed by the court . We do have lawyers at Weir Bowen like Jill who can help out with that process . And if a deceased has property that needs to be dealt with or bank accounts that need to be closed or taxes that need to be paid , it can be really a good idea to get an administrator appointed if there isn't a will . But , that being said , the Fatal Accidents Act doesn't absolutely require an executor or administrator in order to be able to start a claim .
Navigating Fatal Accidents Act Benefits
Speaker 2So if there's no executor or administrator , or in the event that there is , but that person doesn't bring the action within one year following the death of the injured person , then the action can be brought by any of the beneficiaries of a claim in the Fatal Accidents Act as if they were an administrator or executor .
Speaker 3And this act can be really helpful for families that are dealing with the loss of a family member who died without a will . Maybe you know they're grieving , they're busy , they just haven't been able to get around to getting an administrator appointed , or maybe they don't really have any other reason to do so . There's nothing else in the estate . However , it is important to note that this legislation only allows one action to be brought with respect to the wrongful death claim , so what that means is that we need to make sure that everyone all of the family members and dependents who might have a claim or entitlement are included in the same lawsuit . We don't want every single beneficiary to bring a claim of their own .
Speaker 2Yeah , and adding to the complexity can be the dynamics of modern families . There are certain sections of the Fatal Accidents Act that open the door to claims by step parents , stepchildren , grandparents and grandchildren , but other sections are limited to biological relations .
Speaker 1I would imagine this has the potential to lead to some fairly awkward conversations .
Speaker 3Absolutely . We've had situations involving children of unknown paternity when the man they thought they knew as their father turned out not to be .
Speaker 2Now I've had a similar case where a father was not indicated on the birth certificate and we had to take steps to establish parentage through other means .
Speaker 1So what happens in a situation like that ?
Speaker 2So the Fatal Accidents Act specifically prescribes damages for bereavement for biological children , adopted children and parents of a deceased person , adopted children and parents of a deceased person and spouses , which can make some kinship relationships be ineligible for bereavement awards , even if that relationship was close . But conversely it can also mean that some people in estranged relationships will qualify for bereavement damages even if that relationship was irretrievably broken . So spouses and adult interdependent partners , if they are not estranged , are entitled to $82,000 for their bereavement . Each eligible child is assigned damages of $49,000 for their bereavement and a biological parent or parents are awarded $82,000 . If both of them are alive , the money is to be divided equally between them and if the action is brought for the benefit of both parents .
Speaker 3So due diligence is really important , because when we open these files we really have to make sure we've looped in everyone . So , for example , a few years ago we had to hire a private investigator to track down someone's estranged mother , to let her know that we were launching a fatality claim for her son , who she hadn't seen or spoken to in over 20 years . In the meantime , the son's father had remarried and his new wife was actually a considerably more present figure in his life . But the Fatal Accidents Act meant that we had to give the biological mother an opportunity to participate in the claim to get her 50% share of the $82,000 parental bereavement award .
Speaker 2I have another case where a foster father passed away from medical malpractice and the foster children only ever knew him as their father .
Speaker 2They'd been with him since they were babies and the legislation actually currently prevents them from claiming for bereavement and loss of dependency on his income and child care and household services , and we've brought a constitutional challenge to the legislation because we don't think that that's fair . We're not sure how that will turn out , but it's also something to consider as well . This has been in the past considered for stepchildren , but not for foster children , who are often disadvantaged , which can be a source of an allegation of the legislation being discriminatory . Adding to this are circumstances where people have such significant grief that they end up having to take time away from work , or it has had such a profound impact on them that their lives have completely changed , had such a profound impact on them that their lives have completely changed . There isn't a lot of case law that addresses situations where people have incurred significant personal losses from being unable to work due to the grief , but I think in the right circumstances , those damages would also be available to people .
Speaker 1So , with all of these complexities in determining who can file the lawsuit and who's entitled to be a beneficiary , how does somebody know if they should be calling a lawyer ?
Speaker 3My advice would be to err on the side of calling . We get dozens of calls every week and we have a team of lawyers that can ask you the questions we need answered . That can help you determine if you can bring the claim or if we might need to loop other people in . Also , if you call us early , that gives us time to assess if there are any other legal issues that need to be addressed , like if your loved one died without a will .
Speaker 1So what kind of information are you looking for in that first call ?
Speaker 2So we'll be asking questions like when and where the negligence or accident happened , who was negligent or responsible for the accident , or is liability still in dispute ? Or is liability still in dispute , did the individual die immediately or did they live for a period of time before coming to their injuries ? Because that does affect timing of things . We also want to get a sense of the family structure , to the extent that people know , including how many children the deceased had and what their ages are , whether either or both of their parents are still alive , whether they were married or had an adult interdependent partner , and on top of that , we'll also be asking questions about their age , occupation , income and contribution to household duties .
Speaker 1Seems like a lot of information . What if somebody doesn't have all of those answers ?
Speaker 3Oftentimes people don't , and it's totally okay if you don't have all the answers . That's part of our job . We can help you figure out what you still might need to pull together and what sort of timelines you might be facing .
Speaker 1And speaking of timelines , are there deadlines that our listeners need to know about ?
Speaker 2You know it , warren , timelines run our lives as lawyers , and most deadlines are soft deadlines . But there are some deadlines that you just absolutely cannot miss , and one of them , the one that your listeners will want to know most about , is the deadline to file a claim with the court , because that is a deadline that you cannot miss .
Calculating Dependency Claims in Wrongful Death
Speaker 2The Limitations Act outlines the deadlines you have to sue . Generally , it's two years from when you knew , or ought to have known , that someone caused you harm . Sometimes that's easy to determine , like when you've had a car accident and broken your leg . There the limitation period started at the date of the accident , so it's two years from the accident .
Speaker 2But in other circumstances it's not so easy , like a case of the delay in the diagnosis of cancer . The date when you knew , or should have known , that the doctor caused you harm could be any number of dates , such as when you got the diagnosis of cancer , or when a doctor told you that you were misdiagnosed , or when you learned that the cancer was metastatic and therefore you were likely going to have a worse outcome than you otherwise would have had you been diagnosed sooner . You can see how this analysis can be pretty fact-specific , so it's important to speak with a lawyer about your particular circumstances to get advice regarding limitation dates . And there are also certain exceptions , such as minors , who generally have until their 20th birthday to sue , and adults who lack the ability to make legal decisions for themselves . They do not have a limitation period , and also in cases of wrongful death , there may also be a gap between when the accident happened and when the person actually passed away , so that's something that we have to keep in mind as well when we're providing our advice regarding limitation periods .
Speaker 3It's also important for us to say here that what we say today shouldn't be taken as legal advice . Every case is different and dependent on the circumstances , so it's very important for your listeners , if they're wondering about their particular case , to contact us to get advice specific to their situation .
Speaker 2And that's true generally of all of what we say in here . So in law there are general rules and then there are always exceptions , and those exceptions often turn on the facts of the case . So it's important to turn to or talk to a lawyer about the facts of your case before pardon me , before assuming your case is within time or out of time . We encourage anyone who has had any questions about a personal injury or wrongful death , especially with respect to the timing of when they need to sue , to contact us directly .
Speaker 1This is Ask the Lawyer . On WINSpeaker Radio CFWE and CJWE . I'm your host , warren Berg , and joining us again today are Sheila McGregor and Jill Gamez of we're Bowen LLP in Edmonton . That's W-E-I-R-B-O-W-E-N . Their phone number 780-424-2030 , or online at weirbowencom . And today we've been talking about a very difficult topic , but a very important one fatality claims , also known as wrongful death claims . So , jill , how do you and your team at Weir Bowen figure out what a claim is worth for , let's say , somebody who dies as a result of medical negligence or a motor vehicle accident ?
Speaker 3Well , warren , we start thinking about this from the time of our very first phone call with the client , when we ask all these nosy questions about how old the person was when they died , their occupation and income , their contributions to household work , the number of dependents they had and all the other potential eligible beneficiaries . So , again , that we can make sure everyone who's entitled to make a claim is included .
Speaker 1So is there a difference in what you can claim in a wrongful death claim , let's say , if somebody's child is an adult versus a dependent child ?
Speaker 2So those statutory damages we've talked about for bereavement now apply whether a child is six months old or 60 years old . As long as they are still alive , we can claim that $49,000 for them . It used to be that wasn't the case , it was only for minor children , but somebody brought a constitutional challenge to that and that got changed . So it's everybody , every child . But if a child predeceases their parent , that entitlement for bereavement is extinguished and cannot be claimed by the child's estate . So once we have all those statutory damages for bereavement calculated , we then need to set our minds to the task of determining each child's loss of dependency on their parent . So for an independent adult child who isn't counting on their parents for support , their entitlement to claim may be limited to the $49,000 , apart from perhaps some out-of-pocket expenses associated with the funeral or counseling . But for children who are still dependent on their parents , though , we have a much bigger project ahead of us .
Speaker 1So how do you figure all of that out ?
Speaker 3Well , each dependent child's claim is going to be assessed according to their particular circumstances and what resources the parent who died had likely going to be dedicating to that child's support from the date of the accident through to the end of the period of that child's dependency .
Speaker 1And does that period of dependency end on the child's 18th birthday ?
Speaker 3Well , in some cases it might be appropriate to use that as the benchmark , but in other cases it might not be so .
Speaker 3Again , we really have to look at the child's particular circumstances , in the context of their unique family situation , to see what they likely would have been able to count on if that parent hadn't died from negligence .
Speaker 3As you might know , sometimes children continue to be dependent on their parents well into their 20s . So we want to get a sense of what the family had planned for that specific child in terms of were they going to support them through school , including maybe university or some other form of post-secondary education or training that could include tuition and books , living expenses , maybe travel expenses ? Would there have been home-cooked meals and laundry services expenses ? Would there have been home-cooked meals and laundry services ? Would there have been support for extracurricular activities like swimming lessons , dance classes , hockey and soccer , summer camps ? The list goes on . And then we're also going to look at the child themselves to see whether they were likely going to be pursuing some form of higher education and whether they were likely to be dependent on that parental support for , maybe , a vocational college certificate , or if they were going to be vocational college certificate , or if they were going to be studying for a lot longer , if they were going to be a surgeon or a dentist or something like that ?
Speaker 2Or a lawyer ? Yeah , exactly so . Law school is generally a seven-year educational journey and it costs a lot of money , and there's definitely a significant population of students in law school who come from a lineage of lawyers who are footing the bills for their education . But that does lead to an important point , warren , because we are often making these claims for loss of dependency , for dependent children that haven't had their futures mapped out yet . They may not even have some report cards to review yet so we can get a sense of their academic strengths and weaknesses or what their aptitudes and interests are . We have to lead or rely on experts to do some crystal ball gazing for us about the child's likely path , which is largely based on statistical analyses of the family circumstances . So , for example , children who are raised by parents with post-secondary education are statistically more likely to be encouraged to pursue higher learning themselves , and those parents tend to be better positioned to set aside savings for those kids' studies .
Speaker 3And economists are now predicting that by 2030 , the average cost of a four-year post-secondary degree will be over $100,000 if a student has to pay for accommodations or residence , and over $55,000 if they can live at home . So in families where the stats show that kids are more likely to pursue post-secondary studies and would likely have been supported by their deceased parent in some way , we can typically make a claim for that child's lost dependency , at least to the end of that first course of study , which probably will take them to age 21 or 22 .
Speaker 1What about dependency claims for children who might not ever become fully independent , maybe because of mental or physical disabilities ?
Speaker 3That's a good question and again we're going to make our calculations based on the specific circumstances of what support that child likely would have received from their parent had that parent not died as a result of an accident or negligence . So for kids with special needs , our evaluation needs to be tailored around those needs but also what that parent likely would have been able to provide for them and for how long . So , for example , if the parent who died in a motor vehicle accident leaves behind a child with a lifetime impairment but that parent also had a pre-existing condition such as terminal cancer , we can still make the claim for wrongful death in the collision . But that dependency claim will be limited to what resources that parent would have been able to provide and their lifespan likely would have been shortened , and the resources likely a little bit less because of the shorter lifespan with the cancer .
Speaker 2So in the case of children who will likely be dependent when they become adults , we will usually have an occupational therapist attend at the home to interview the family to get a sense of the kind of household labor that's going undone or being picked up by others and that and you know the needs of the child and the likelihood of being dependent in the future , and it helps us apply market value for the loss of dependency .
Speaker 2And we'll also have vocational experts review the , you know , any academic records , employment files , anything to develop an opinion on the likely ability to earn an income down the road . And we also use we'll use that sometimes with respect to the deceased to see what kind of support that they may provide to those children as they get older . And we will also have expert economists map out how much financial support each child could have counted on from the deceased parent , based on the family's particular circumstances . And also sometimes we may also get life expectancy experts involved . If the deceased parent had a condition like what Jill was talking about , like a terminal cancer , that would have affected their life expectancy in any event , absent the wrongful death .
Speaker 1So if I'm getting this right , when somebody dies , the remaining family members don't get to sue for the total value of what the person's lost earnings would have been , but only for the amounts of what they no longer receive in financial support .
Speaker 2Exactly so . You're not claiming for the entire amount that the deceased would have earned , but what the dependents would have received . No-transcript to the Alberta Court of Appeal in the 1990s highlighted a need for legislative reform .
Speaker 3And this case is well known , at least among lawyers , as Duncan and Badley , and it involved the wrongful death of a 16-year-old grade 11 student .
Speaker 3His name is Duncan and when he died he was a reasonably good student with no unusual health problems that would have affected his life expectancy . He had a part-time job at a gas station and his parents were both successful in their respective careers . His brother went on to complete a university degree . Of course he was 16 , so , maybe unsurprisingly , he didn't have his future necessarily charted out . So at the first trial in this tragic case , the parties were highly dependent on expert opinions regarding how much he likely would have earned and what he would have spent on himself , as well as taxes and other deductions . But there was considerable disagreement between the two sides as to what those deductions should rightly be , as well as whether it was even appropriate to compensate Duncan's parents for money their child wouldn't have been earning for their benefit . So this case eventually went to the Court of Appeal , which sent the case back for a second trial , and eventually the Duncan estate was awarded $425,000 at that second trial .
Speaker 2But during the many instances where this matter came before the courts , the concern kept coming up that this approach would lead to windfalls for parents in wrongful death cases involving children , because their children wouldn't be using their income to benefit them . So , on the recommendations of the Alberta Law Reform Institute , amongst others , the legislation was again changed to exclude these lost years types of claims by the estate and instead give the victim survivors a direct claim for their lost dependency .
Speaker 1And now we've talked about this in other episodes
Medical Malpractice Wrongful Death Claims
Speaker 1. Getting all of these experts sounds really expensive . Does this mean you need to have a lot of money in order to be successful in a wrongful death case ?
Speaker 2It can be expensive , but thankfully no . Our clients do not need a lot of money to be successful in a wrongful death case . If it is our opinion that a potential client has a meritorious case , we will generally run these kinds of cases 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 the cost of legal fees on an hourly basis can present a barrier to justice , particularly for people who have been injured as a consequence of somebody else's negligence . Clients who can't work or need money to pay for treatment also shouldn't have to worry about coming up with resources to pay lawyer fees , especially since these cases can take many years to work their way through the system .
Speaker 1So a few minutes ago you mentioned the loss of a parent due to cancer and in a medical malpractice claim you're obviously not alleging that the doctor caused the cancer that ultimately claimed the life of a parent . But what if the doctor failed to diagnose a cancer patient in time and that parent ultimately dies because of the delay ? How do you deal with cases like that ?
Speaker 3Well , some of the fundamentals of a wrongful death claim don't change , like making sure we know when the limitation period is and who the potential beneficiaries are . But if a person dies because of negligent medical treatment , other elements of the claim can change substantially .
Speaker 2Yeah , that's absolutely true . In delay in diagnosis of medical malpractice cases , the allegation is that the doctor should have recognized a problem and diagnosed the patient's condition , and you're right , Warren . A perfect example of that is the delay in diagnosis of cancer .
Speaker 3Often in delay in diagnosis of cancer cases there's a clear breach of the standard of care , like a missed test result or imaging results . For example , after we reach a certain age , we should be going for routine colonoscopies and mammograms to screen for cancer , and these are done to monitor for the risk of colon and breast cancer . We've had cases where this testing was done and the doctor actually didn't look at the results and the results were suggestive of cancer and required follow-up .
Speaker 2Right , and so in these cases the doctor , as you said , warren , obviously didn't cause the cancer . So the question that arises is whether the delay in the diagnosis of cancer caused the death . So we retain oncologists , who are experts in colon oncology or breast oncology , whatever the cancer area is , to give us opinions on whether diagnosis at an earlier stage would likely have resulted in survival . And usually the biggest issue in the delay of diagnosis of cancer cases is what the difference the delay would have made .
Speaker 1This sounds like it can get really technical .
Speaker 3That's absolutely right , which is why we appreciate that we're able to have access to such well qualified experts in various areas . And unfortunately , wrongful death cases in the area of medical malpractice aren't just limited to delay in the diagnosis of cancer cases .
Speaker 2Yeah , so another example that we've talked about in the past is that a delay in the diagnosis of an aneurysm that bursts and then causes a death . An aneurysm is the abnormal bulging or ballooning in a wall of a blood vessel . A lot of people think that aneurysms actually aren't possible to diagnose , but some do give warning signs as they worsen symptoms like intense pain that can take people to the ER . Or sometimes an aneurysm is incidentally found on imaging when doctors are looking for something else , and actually it may be surprising to people that the success rate of surgical treatment of aneurysms is really quite high . The success rate is so high that often delay in diagnosis of aneurysm cases are the easiest cases for us to settle without proceeding to a trial .
Speaker 1I'm imagining just how risky that particular surgery would be , and it leads me to think about all of the things that can possibly go wrong during a surgery .
Speaker 3Yeah , we get a lot of calls from people who have surgeries that have gone wrong and certainly we've had many cases where death has sadly resulted from a surgery and in most of these cases death is a recognized risk of the surgery . But it doesn't necessarily mean that this may not be a good medical malpractice case .
Speaker 2Absolutely Just because something is considered a risk of the surgery doesn't mean you won't win a medical malpractice case . Absolutely Just because something is considered a risk of the surgery doesn't mean you won't win a medical malpractice case . It does make it an uphill battle . But what is more important in surgery cases is determining what the surgeon did and whether the surgeon followed the standard way of going about the surgery . I had a case where a gentleman unfortunately died after sustaining a lot of bleeding arising from a gallbladder removal . Unfortunately died after sustaining a lot of bleeding arising from a gallbladder removal . Now bleeding is a risk of that procedure . However , where the bleeding came from made it clear that the surgeon was not doing the surgery appropriately because the bleeding came from an area outside of the surgical field .
Speaker 3Now Sheila and I are doctors , and so this emphasizes how important feedback from our experts is , because , of course , we aren't going to know what the surgical field should be for every procedure and how each kind of surgery should be done . So for wrongful death surgery cases , getting an early expert opinion really is key .
Speaker 1We have covered a lot of ground today in the November edition of Ask the Lawyer for 2022 with Sheila McGregor and Jill Gammes of we're Bowen LLP in Edmonton . If you want to find out more , you can visit their website we'rebowencom . That's W-E-I-R-B-O-W-E-Ncom . Their phone number is 780-424-2030 . And if there was something you heard today , you can also find a link to Ask the Lawyer on our radio station webpages , where these shows will be available to stream on demand . Our thanks again to you , Sheila , and to you , Jill .
Speaker 2Thanks so much for having us , Warren . We really appreciate the opportunity to tell your listeners about some of the issues that we see and hopefully give them enough information so that they can make informed choices on whether their situation justifies contacting a lawyer .
Speaker 1And we appreciate the opportunity that you are giving some of our listeners to learn more about the legal system and how it may affect them , and we look forward to learning much more throughout this series that takes place here on the last Saturday of every month on Windspeaker Radio , cfwe and CJWE .
