Warren Berg: 0:00

Good morning and welcome to the September edition of Ask the Lawyer Across Alberta on Windspeaker Radio CFWE and CJWE. I'm your host, wren Berg, and joining us again this month is Cynthia Carolls of Weir Bowen LLP in Edmonton.

Cynthia Carels: 0:13

It is good to be back. It's been a very busy month at Weir Bowen this month, so I'm flying solo.

Warren Berg: 0:18

Well, 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. So, Cynthia, what are we going to be focusing on this month?

Cynthia Carels: 0:33

Well, Warren, the National Day for Truth and Reconciliation is coming up on Monday, and so we thought this would be an appropriate month to spend a little bit of time focusing on the impact that prejudice, racism, colonization, etc. Has had on specifically Indigenous health outcomes and how that intersects with the work that we as medical malpractice lawyers do at Weir Bowen.

Warren Berg: 0:58

And, as I recall, this issue actually took the spotlight last week in the news, with the Canadian Medical Association actually formally apologizing to First Nations, inuit and Métis peoples for the first time. What was that all about?

Cynthia Carels: 1:11

Yeah. So for those who aren't familiar with this story, on September 18th of this year, the Canadian Medical Association, along with members of the CMA's Indigenous Guiding Circle, First Nations survivors and a number of Indigenous leaders from across Canada, actually held a huge event in Victoria that culminated in the President of the Canadian Medical Association issuing a formal apology for the way that First Nations patients have been mistreated in Canada's health care system. So the CMA's President, Dr. Joss Reimer, actually admitted before the country that Canada's medical profession has not lived up to the ethical standards that the medical profession is expected to uphold to ensure the highest standard of care is provided to patients, and that they actually admitted that the profession has left Indigenous peoples out of the high standard of care.

Warren Berg: 2:02

And we know that this is obviously a huge public apology, but I'm sure that this subject comes as no surprise to a lot of our listeners today, and I know that many of our reporters with Windspeaker Media have done a number of stories over the years about discrimination in Canada's health care system, and especially since the Truth and Reconciliation Commission called on governments across the country to tackle this issue and, as I recall, the TRC's final report was issued back in December of 2015.

Cynthia Carels: 2:29

Yeah, 2015.

Warren Berg: 2:31

Yeah

Warren Berg: 2:31

And now we're nearly nine years down the road from the 94 different calls to action, and there's still so much work to be done across the country.

Cynthia Carels: 2:39

Oh, you've absolutely got that right. So you know, I was certainly really glad to see the medical profession taking this important truth step this month to acknowledge how much harm the medical system of settlers has inflicted on Indigenous communities. And, as part of this Truth step, the path to this apology actually included a really in depth study of more than 150 years of archived information. Ranging from the devastating impacts of Indian hospitals, forced medical experimentation, forced sterilization, child apprehensions and obviously, the systemic racism, neglect and abuse that exists within Canada's health care system. So Dr. Paula Cashin is actually the vice chairperson with the CMA's board and she underscored there is still a lot of work left to do with this project and that this apology, this truth apology, was just one step in that journey.

Warren Berg: 3:34

So, now that we've taken the first step, did the CMA set out what else they're committing to do?

Cynthia Carels: 3:38

Yeah.

Cynthia Carels: 3:39

So while they acknowledge that the formal apology is just the beginning when it comes to truth and reconciliation, they actually have also set out what they call a Reconcili-Action plan to advance health and well-being for Indigenous peoples by supporting the medical profession's commitment to reconciliation as a whole.

Cynthia Carels: 3:55

So the plan is going to be seeing the CMA taking such actions as co-creating and implementing initiatives in partnership with the Indigenous communities and the CMA's Indigenous Guiding Circle to advance more equitable health care. They're going to be reviewing the CMA's Code of Ethics and Professionalism, which is obviously a foundational document for ethical medical practice in Canada, with the goal of strengthening and they'll be strengthening provisions relating to racism and discrimination. They're also going to be actively working to build up Indigenous representation within the CMA itself, which is super important, and then, obviously, ensuring that its internal policies, systems and processes support a culture of ongoing truth and reconciliation, while fostering a deeper understanding of Indigenous people's rights amongst the CMA's leadership and staff.

Warren Berg: 4:46

Right, because it's not just Indigenous patients who have suffered here, it's also the First Nations Inuit and Métis health care professionals themselves who have faced systematic racism.

Cynthia Carels: 4:56

Oh, absolutely yeah. So the CMA president, Dr. Joyce Reimer or sorry, Joss Reimer actually described the racism and discrimination faced by patients and health care providers as deplorable. So that's the word she herself personally used. She went on to acknowledge that there are ripple effects on future generations as well. So the organization itself is now coming around to formally admit they have a lot of work ahead of them to right these wrongs.

Cynthia Carels: 5:28

And you know, in the province of Alberta specifically, we've heard a lot about these struggles from a profound thought leader by the name of Dr Esther Tail Feathers. She is an outspoken family doctor from the Kainai Nation and she spoke with the CBC in response to the CMA's apology and she reflected on her experiences as an Indigenous woman working within the health care system as being stuck between a rock and a hard place. And I thought it was particularly interesting how she recognized that Indigenous patients are obviously suffering in the health care system but that this apology from the CMA is also going to help to alleviate a lot of the tension that Indigenous physicians and Indigenous frontline workers have in terms of working with their colleagues who have been blind to their own biases and all of the harm that causes.

Warren Berg: 6:14

So let's talk about some specific examples, if we can, of the consequences of this bias in action.

Cynthia Carels: 6:19

So, unfortunately, our medical malpractice team at Weir Bowen takes a lot of calls that underscore the very poor care that First Nations patients receive in health care settings. Now, obviously, for privacy reasons, we can't disclose the details of those heartbreaking stories. However, there have been some very public cases that I thought would be good to talk about. So there was a very tragic case that hit the news in 2020, which was the case of Joyce Echaquan.

Cynthia Carels: 6:47

Now, this isn't a case that our firm was involved with, but it's another very sad story where it was apparent that anti-Indigenous discrimination was driving the terrible care that she received. So Joyce was an Indigenous woman in Quebec who was hospitalized with terrible stomach pains and her condition was actively deteriorating while she was there, and the staff were found to be both ignoring her and also making comments like you know, what would your children think seeing you like this and saying she was the one who made bad choices? And so she actually had all four of her limbs restrained, followed by an abdominal belt in addition to pharmaceutical chemical restraints, and she deteriorated so much that she actually became unresponsive. But even then, she's unresponsive.

Cynthia Carels: 7:38

And the staff were still not quick to respond and Joyce ended up dying. But the reason this case came to light was because, unbeknownst to health care workers, their conduct was actually being live streamed and recorded on Facebook Live. Now, when the health care workers finally realized that they were on camera, they actually attempted to erase the footage, but it had already been broadcast.

Warren Berg: 8:02

And I would imagine that that footage made a huge difference for Joyce's family when they came to demand accountability from the system.

Cynthia Carels: 8:09

Yeah, indeed it did. So this story was all over the media and in just over a week following Joyce's death, the chief coroner of Quebec actually ordered a public inquiry into what happened, and the report from that inquiry found that as soon as Joyce entered the hospital she was labeled as a narcotics addict, and there are even notes in her files suggesting that Joyce was very theatrical, and these kinds of words set the tone for the quality of care, or perhaps the quality of lack of care that she received.

Cynthia Carels: 8:41

So when one of Joyce's daughters arrived at her mom's bedside, she started broadcasting Joyce's deterioration on Facebook Live. And this inquiry found that a student nurse with just four months experience had been left in charge of monitoring Joyce's condition when she was strapped into those restraints and under the influence of chemical restraints and the student nurse was not even qualified to be in that position without supervision. and when the student nurse tried to get help for a transfer to the intensive care unit, the student nurse was ignored. They even took to the central intercom to try and get help. It eventually took the action of a much more experienced orderly in the hospital who took the initiative to force the transfer, but even then it still

Cynthia Carels: 9:25

took 10 minutes to move her to a resuscitation room where she ultimately died

Warren Berg: 9:30

I remember hearing about this story in in the media and on tv when it happened was, if I wasn't she the mother of seven children.

Cynthia Carels: 9:37

Yeah, seven kids, and she died at age 37 and that is far too young Now.

Cynthia Carels: 9:43

Granted, she did have some pre-existing health issues, but the coroner's investigation ultimately concluded that the racism and prejudice that Mrs Echaquan faced was certainly a contributing factor to her death. So I think we're finally getting to the point where systemic racism is out there in the open for all to see, and multiple academic studies are confirming it. Now too, there was one study that 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.

Cynthia Carels: 10:18

In Manitoba, the infant mortality rate for First Nations is almost double that of non-First Nations populations, and so that's at one end of the spectrum of life. At the other end of the spectrum of life, the mean life expectancy for Aboriginal men is projected to be 70.3 years, that's 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 exactly why this was happening, and she found out a number of things. She found that obviously Indigenous people continue to be seen as those who don't really belong or if they're a problem and should be treated elsewhere, and she also wrote that Indigenous people are seen as drains on the system, whose care is never quite as urgent and, in general, perhaps less deserving of the same level of treatment as non-Indigenous patients. And Professor Gunn reviewed a specific case involving a fellow named Brian Sinclair, which is another tragic example of racism resulting in a complete lack of care.

Warren Berg: 11:26

I remember that one as well, Brian Sinclair, gentleman from Manitoba, and as I recall, his story was in the news about a decade ago.

Cynthia Carels: 11:32

Yeah, so Brian Sinclair was an indigenous man from Manitoba who died in the emergency department of Winnipeg's Health Science Center in September of 2008.

Cynthia Carels: 11:41

And he was just 45 years old. So Mr Sinclair had sought care from a family doctor at a primary care clinic and the doctor referred him to the emergency department at the Health Sciences Centre, which was located just a few blocks away, said he should go there for further care and even sent him there with a note. But Brian Sinclair was a double amputee. He was in a wheelchair and he entered the emergency department of what was supposed to be the best, most comprehensive hospital in Manitoba and 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. And there was an inquest called about Brian's death and in that inquest, hospital staff testified that they had just made assumptions about why Brian was there. They thought he was intoxicated, that he was homeless and had nowhere else to go, and some of them even thought he was just hanging out in the room to watch television.

Warren Berg: 12:42

And it seems like the assumptions about intoxication and homelessness are all too common when Indigenous patients encounter the health care system.

Cynthia Carels: 12:50

Oh, sadly you are so right about that. The nurses on shift while Brian was waiting in the hospital waiting room testified they did not even see Mr Sinclair, but the hospital's own video monitoring system showed many nurses walking right by him, looking directly into the patient waiting area where he was seated in his wheelchair. So Professor Gunn actually described Brian as simultaneously invisible while also overly visible, as staff only saw stereotypes and assumptions and those were used to justify ignoring him, basically to death.

Warren Berg: 13:24

I mean that's just awful, and I presume that this is happening across the country.

Cynthia Carels: 13:28

Yeah, indeed it is. A group of researchers in Alberta, led by an investigator named Patrick McLane, published some research in 2020 about racism in emergency departments and it's really consistent with what Professor Gunn was describing in her report. So the McLean report found that First Nations status alone is associated with lower triage scores in emergency rooms across many jurisdictions, as well as medical conditions and diagnoses.

Warren Berg: 13:56

Let's touch upon that. What is a triage score?

Cynthia Carels: 13:59

So triage scores are assigned to the level of urgency for a patient to be seen, and truly, this is supposed to be standardized according to the symptoms and possible conditions causing those symptoms. So, theoretically, patients should not have lower triage scores if they arrive at the hospital complaining of exactly the same conditions. However, professor McLean and his team of researchers concluded that simply was not happening for many First Nations patients. They are frequently given a triage score that reflects lower urgency than their other non-Indigenous counterparts, and concluded that this could reflect systemic racism and stereotyping. And this is the exact problem that Brian Sinclair faced as he sat in the ER waiting room for hours upon hours.

Cynthia Carels: 14:46

And so we know there are many stories like Joyce Echaquan, like Brian Sinclair, out there, and part of what we do as lawyers at Weir Bowen is we try to get justice for people who have catastrophic consequences from their care or their lack of care in the healthcare system. Unfortunately, we can't help everyone. I wish we could, but it is definitely important for us to try to get compensation for people who have had significant negative consequences from their poor care, and so today we want to focus on the kinds of claims that arise from cases like Joyce and Brian, and we call those fatality claims, or what some people might describe as wrongful death claims.

Warren Berg: 15:26

I recall discussing fatality claims in the past and I was surprised to learn that when somebody dies, it doesn't necessarily mean that their claim is worth significantly more.

Cynthia Carels: 15:35

Yeah, there is a common misperception about wrongful death claims that causing a death or, you know, failing to do something that results in a death, should cause the value of a claim to increase exponentially and intuitively. Yeah, it does seem like causing a death is way worse than causing an injury, but that moral blameworthiness isn't really what we're going to talk about today in the context of a wrongful death case. So we're going to break down the rest of this show into discussions of fatality claims into a few parts. So, first of all, 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're going to talk about how this legislation applies generally. So, whether we're talking about malpractice claims, you know, inherent racism claims, car accident claims or any other kind of wrongful death claim, and then, finally, we're going to talk about some of the issues that we face with fatality claims in the specific context of the medical malpractice actions like we were talking about earlier in the show.

Warren Berg: 16:34

Okay, so before we get into all of that, this is probably a really good time to talk about how our listeners can get in touch with you. If they need to talk to a lawyer about an accident, whether it's for medical malpractice or car crash or some other type of injury. What is the best way to get in touch with you?

Cynthia Carels: 16:53

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

Warren Berg: 17:06

And what if the internet isn't an option?

Cynthia Carels: 17:08

So we do also frequently take what we call cold calls over the telephone. So just give our main reception line a call at 780-424-2030.

Warren Berg: 17:25

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us today is Cynthia Carels of Weir Bowen llp in edmonton. Once again, that's W E I R B O W E N, their phone number 780-424-2030, or online at Weir bowen. com. And today we're talking about wrongful death claims and some of the very unfortunate stories of Indigenous patients that have been in the news as a consequence of systemic racism in Canada's health care system. Now, Cynthia, how do wrongful death claims differ from other kinds of personal injury claims?

Cynthia Carels: 17:58

So, truly, the difference is going to start at our very first meeting in figuring out who our client is even going to be. So in a personal injury claim, generally speaking, the person who was hurt is our client, unless they're a child or a dependent adult who lacks the mental capacity to bring a claim on their own behalf. So when an injured person dies, they obviously can't retain us to bring the claim for them. So we're going to need to figure out who actually can, and in order to to do that, we're going to need to do a little bit of a history lesson through the evolution of this kind of law in Alberta that governs these kinds of claims.

Cynthia Carels: 18:33

So way back when in old timey days, the common law governed wrongful death claims and common law is case law that is decided by courts rather than through legislation that's actually specifically written out and passed by a government. So there was a general common law rule that personal actions for civil wrongdoings, like medical malpractice, did not survive for or against somebody who died. And there also used to be another common law rule that no living person has the right to a lawsuit against someone who has wrongfully caused the death of someone else or a third party. So until there was a legislated workaround, it used to be in a nutshell if a victim died, their lawsuit and their rights died with them.

Warren Berg: 19:18

That doesn't sound very fair at all.

Cynthia Carels: 19:20

No, it doesn't. And 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 that person's death had on the loved ones that they left behind. But also it led to this awful reality that, at least in the terms of the price of someone's negligence, it would theoretically be cheaper to accidentally kill somebody than to just seriously 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, and we ended up in a situation where people were frequently leaving surviving spouses and children in destitution. So to respond to this problem, governments actually developed survival legislation. So the first Canadian legislation of its kind actually appeared in Ontario back in 1886 as a provision in their Trustee Act, and eventually similar legislation popped up across the country.

Cynthia Carels: 20:23

So let's talk about Alberta specifically. In Alberta we now have a statute which is called the Survival of Actions Act. So this was introduced with the intent to put the deceased person's estate, with some very minor exceptions, into the same person as the deceased would have been had they not died. The Survival of Actions didn't create any new rights of actions, though it just preserved the rights and liabilities of a deceased victim or a wrongdoer that were accorded to them at the time of their death. So this meant that the executor would be able to continue the action and essentially stand in the shoes of the deceased person, making their estate entitled to collect the same damages as the deceased would have recovered if they had survived.

Warren Berg: 21:08

Now, that makes much more sense, at least to me.

Cynthia Carels: 21:11

So there's more to this story, but we'll take it step by step. So for a person who suffers a wrongful death in Alberta as of January 1st 1979, their rights survive for the benefit of the person's estate. But if we look a little closer at the Survival of Actions Act, section five prescribes that if the action survives, only those damages that resulted in actual financial loss to the deceased or the deceased estates are recoverable. So this excluded a few things that the estate would not be able to collect, including pain and suffering awards, and we've talked about those quite extensively on this show. Legislators determined that allowing a victim's estate to recover pain and suffering awards would basically be giving that estate a windfall.

Warren Berg: 21:58

So does this mean that the deceased loved ones don't get any compensation for the grief from losing a loved one?

Cynthia Carels: 22:04

So actually, what you're describing now comes from another piece of legislation called the Fatal Accidents Act. So that came later than the Survival of Actions Act and it actually sets out what's recoverable for the loved ones in a wrongful death claim. So the Fat accidents act actually creates a distinct right of action, now for the benefit of a deceased person's defined family members and their dependents. So this is a bit of a different analysis. This includes the deceased person's spouse or their adult interdependent partner, their children and even their living parents. So these two pieces of legislation combined have provided us with some really practical workarounds to those old common law rules that otherwise would have left family members with no right to sue a wrongdoer for causing the death of their loved one, even if that death had profound economic implications in their lives.

Warren Berg: 22:58

And it sounds like a number of different people could have claims under this Fatal Accidents Act. How do you sort out who gets to lead a claim?

Cynthia Carels: 23:05

So yeah, it circles back right down to our very first meeting. Who is our client here? So, first of all, we need to determine if the deceased person had a will and named an executor of their estate. So, if so, that makes it really easy and straightforward for us, because our starting point in the Fatal Accidents Act is Section 3, which prescribes that an action brought under that act shall be brought by and in the name of the executor or the administrator of the person who died.

Warren Berg: 23:32

So that's what happens if somebody has a will. What happens if that person didn't leave a will, though?

Cynthia Carels: 23:37

There are a couple of ways that we can handle this. Leave a will, though. There are a couple of ways that we can handle this. So if there's no will naming an executor of an estate, we might recommend that the family speak with an estate lawyer to get an administrator appointed by the court. We do have some excellent lawyers at Weir Bowen who can help out with that process.

Cynthia Carels: 23:53

And if a deceased person has property that needs to be dealt with you know, bank accounts that need to be closed or taxes that need to be paid it is a really good idea to get an administrator appointed if there isn't a will. That said, the Fatal Accidents Act does not absolutely require an executor or administrator to commence the claim. So if there isn't one at all, or in the event that there is, but they actually don't do the job of bringing the action within the first year after the death of the injured person, then the action can be brought by and in the name of any or all of the people whose benefit the action would have been for if it had been brought by or in the name of the executor or the administrator. So this provision in the Act is really helpful for families that are dealing with the loss of a family member who died without a will and either haven't got around to getting an administrator appointed or perhaps don't even really have any other reason to do so, except for this claim.

Warren Berg: 24:49

So anyone who has a relationship listed in the Fatal Accidents Act can bring a claim.

Cynthia Carels: 24:54

It is important to note, though, that the legislation only permits one action to be brought with respect to a wrongful death claim, so this means we have to be really careful to make sure to include everybody who's a potential beneficiary in the same lawsuit. They don't want every single beneficiary bringing a claim of their own, and obviously, adding to the complexity can be the dynamics of modern families. So there are certain instances and certain sections of the Fatal Accidents Act that open up the doors to claims by step-parents, step-children, grandparents, grandchildren, but there are other sections that are extremely limited to biological relations.

Warren Berg: 25:35

Now I would imagine that this really has the potential to lead to some awkward conversations.

Cynthia Carels: 25:39

Yeah, it does. I have had situations involving children of unknown paternity or situations where a man they thought they knew was their father turned out not to be. And I know our firm has had other cases where, you know, a father was not even indicated on the birth certificate and we had to take steps to establish parentage through other means. So what?

Warren Berg: 26:00

happens in a situation like that.

Cynthia Carels: 26:02

So the Fatal Accidents Act specifically prescribes damages for bereavement. So that's you know that sadness and grief component for biological children and parents of a deceased person, which can even mean that some kinship relationships are ineligible for bereavement awards, even if that relationship was really close. But conversely, it can also mean that some people who are in estranged relationships will qualify for bereavement damages even if that relationship was totally broken. So spouses and interdependent partners, if they are not estranged, are entitled to $82,000 for their bereavement. If a claim is successful and each eligible child is assigned damages for $49,000 for their bereavement, while biological parents are awarded $82,000, and if both of them are alive, that money is to be divided equally between them if the action is brought for the benefit of both parents.

Warren Berg: 27:02

So I would imagine that part of your investigation when opening these types of claims, you need to do your due diligence to get this information right and to make sure that you have looped in everybody possible. Yeah.

Cynthia Carels: 27:13

A few years ago I actually needed to hire a private investigator to track down someone's estranged mother, to let this woman know we were launching a fatality claim for her son. She had not seen or spoken with this gentleman in over 20 years. In the meantime the son's father had actually remarried and his new wife was a considerably more present figure in the deceased life when he was alive. But the Fatal Accidents Act meant we needed to give the biological mother an opportunity to participate in the claim to get her 50 percent share of those eighty two thousand dollars of the parental bereavement award.

Warren Berg: 27:48

This seems less than ideal.

Cynthia Carels: 27:49

Yeah, truly, the legislation is far from perfect, but it's what we have to work with and truly the intent behind it was to lift the burden off of family members to have to prove the value of their grief in comparison with other claims before the court. And you know, in many cases it is a lot easier to just be able to tell grieving family members. You know, here's a reference to the legislation and this is what you're eligible to claim for your grief.

Warren Berg: 28:15

And I guess the reality is there is no right number to put on anyone's grief.

Cynthia Carels: 28:19

Yeah, you've got that right. Every number is wrong, so the legislation just gives us a standardized number that applies bluntly to everyone, but it does mean that some people are probably massively undercompensated, while others end up with a bit of a windfall that they probably don't deserve. You know, if you're taking a detached look at the impact of the loss on various relationships.

Warren Berg: 28:42

So, with all of these complexities in determining who can file the lawsuit and who's entitled to be a beneficiary, how does anybody know if they should be calling a lawyer?

Cynthia Carels: 28:52

So my advice is always to err on the side of calling in. We do get dozens of calls every week, and we have a team of lawyers that can ask you the questions we need answered in order to determine if you can bring a claim or if we might need to loop a bunch of other people in. And also, being called early allows us to assess if there are any other legal issues that will need to be addressed, particularly if your loved one died without a will.

Warren Berg: 29:16

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

Cynthia Carels: 29:18

So we're looking for quite a lot. We're looking to find out where and when the negligence or the accident happened. We want to know who was negligent or responsible for the accident and whether liability is still in dispute. We need to know if the individual died immediately or if they lived for a period of time before succumbing to their injuries. And we're also going to want to get a sense of the family structure, to the extent that you know, including how many children the deceased person had, what their ages are, whether either or both of the deceased parents are still alive, whether the deceased individual was married or had an adult interdependent partner. And, in addition, we're going to be asking a bunch of nosy questions about the individual's age, their occupation and income and things like their contribution to household duties.

Warren Berg: 30:08

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

Cynthia Carels: 30:12

Truly, it's okay if you don't have all the answers, and if you don't, we can certainly help you figure out what you might need to still pull together and, of course, what sort of timelines you might be facing.

Warren Berg: 30:22

We talk a lot about timelines. Are there deadlines that our listeners need to know about?

Cynthia Carels: 30:27

Yeah, timelines do run our lives as lawyers and most deadlines are softish deadlines, but there are some deadlines that you absolutely cannot miss, and one of them that we need to talk about and we talk about it just about every time is a deadline to file a claim with the court.

Cynthia Carels: 30:44

So in Alberta, the Limitations Act outlines the deadlines that people have to sue, and generally it's two years from the date when you knew, or ought to have known, that someone caused harm or caused a wrongful death, and obviously sometimes super easy to determine that. And obviously sometimes super easy to determine that, like if you've had a car accident and broken your leg, in situations like that the date the limitation period started was the date of the accident. But in other circumstances, especially medical malpractice cases, sometimes it's just not that easy. Like you know, a delay in the diagnosis of cancer cases those are ones that are really nuanced. So the date when you knew, or you should have known, that the doctor caused you harm could be any number of dates, such as when you got your diagnosis or when a doctor told you that you were misdiagnosed, or when you learned the cancer was metastatic and therefore you were likely going to have a worse outcome than you'd otherwise have sustained if you had been diagnosed sooner.

Warren Berg: 31:39

So figuring out deadlines to sue can be very fact-specific.

Cynthia Carels: 31:43

Oh yes, we have had entire lawsuits fought over the singular issue of whether or not a claimant filed their lawsuit on time. So it is important to speak with a lawyer about your particular circumstances to get advice regarding limitations. Now, with just about every rule we ever talk about, there's always exceptions to the rule. Uh, so you know. Exceptions in this case would refer to things like minors, people under the age of 18, who generally have until their 20th birthday to sue, because the clock doesn't start ticking for them until they turn 18, and, of course, also adults who lack the ability to make legal decisions for themselves. They don't have a limitation period at all. And also, in cases of wrongful death, there may also be a gap between when the accident itself happened and when the person actually passed away.

Cynthia Carels: 32:32

Happens all the time, where people get in accidents and live for two or three weeks or sometimes a few months. So we definitely want to keep these dates in mind when we're providing our advice regarding limitation periods. And obviously it's important for us to say here what we say on the air should not be taken as legal advice for any one specific case. As always, the information that we provide on Ask the Lawyer is for general education and our audience's awareness, but since every case is different and dependent on the circumstances, it really is important to contact us to get specific advice to your situation. You know, in law there are general rules. There's always exceptions, and those exceptions often turn on the specific facts of your case. So it is super important to talk to a lawyer about the facts of your case before, assuming that your case is still within time or that you've run out of time. So we obviously encourage anyone who has questions about a personal injury or wrongful death case, especially with respect to the timing of when they need to sue, to contact us directly.

Warren Berg: 33:33

This is Ask the Lawyer on Wind speaker Radio CFWE and CJWE. I'm your host, Warren Berg, and joining us today are or is Cynthia Carels of Weir Bowen LLP in Edmonton. That's W-E-I-R-B-O-W-E-N. 780-424-2030 is their phone number. You can also see them online at weirbowen. com. Today we're talking about a very difficult topic, but a very important one, especially as we approach National Truth and Reconciliation Day and also in light of this month's formal apology by the Canadian Medical Association for the tremendous harms caused to First Nations, Métis and Inuit patients due to systemic racism in the healthcare system. So, Cynthia, how do you and your team at Weir Bowen figure out what a claim is worth for somebody who dies as a result of medical negligence or a motor vehicle accident?

Cynthia Carels: 34:27

So we start thinking about this from the time of our very first phone call, when we're asking all those nosy questions about how old the person was, what their occupation and income was, what their contribution to household work was and the number of dependents that they had, and then all the other potential eligible beneficiaries, whether they were dependent on the deceased person or not, so that we can make sure everyone who is entitled to claim is actually included in the claim.

Warren Berg: 34:55

So is there a difference in what you can claim for children if those children are now adults versus when they are still dependent?

Cynthia Carels: 35:02

Yes and no. So the statutory damages for bereavement we've been talking about apply now whether a child is six months old or if they're 66 years old. As long as they're still alive, we can claim that $49,000 for them. But once we have all of those statutory damages for the bereavement calculated, then we need to set our minds to a totally different task, and that is to determine each child's loss of dependency on their parent. So for an independent adult child who isn't actually counting on their parents for support, their entitlement to claim may be limited to that $49,000, apart from, perhaps, amount of pocket expenses associated with the funeral or counseling. So for children who are still dependent on their parents, though, we have a much bigger project ahead of us.

Warren Berg: 35:47

So how do you figure all of that out?

Cynthia Carels: 35:49

So each dependent child's claim is going to be assessed in accordance with their particular circumstances and what resources that parent was likely to dedicate to the child's support from the date of the accident through to the end of the child's period of dependency.

Warren Berg: 36:05

So does that period of dependency end on the child's 18th birthday?

Cynthia Carels: 36:09

In some cases it might be appropriate to use that as the benchmark, but in other cases probably not. Again, we're going 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 had that parent not died due to this negligence. And nowadays children continue to be dependent on their parents, you know well, into their 20s. So we're going to want to get a sense of what the family itself had planned for their specific child in terms of, you know, supporting them through school, including university or some other form of post-secondary education.

Cynthia Carels: 36:44

Would that child likely have been able to count on mom and dad for tuition and books and living expenses and travel expenses and home-cooked meals and laundry service? You know, support for things like extracurricular activities, like swimming lessons and dance lessons and band camp and all of those kinds of things. And we're also going to look at the child themselves to see whether they were likely the kind of kid who would have been pursuing some form of higher education and whether they were likely to be dependent on their parents' support for, you know, perhaps a quick vocational college certificate or if they were likely in for a much longer period of studies to become a surgeon or a dentist.

Warren Berg: 37:23

Or a lawyer!

Cynthia Carels: 37:24

yeah exactly, law school is generally a seven-year educational journey and it does cost a lot of money, and there is definitely a significant population of students in law school who come from a lineage of other lawyers who are footing the bills for their education.

Cynthia Carels: 37:40

But that does actually lead to a really important point, warren, because when we're making these kinds of claims for loss of dependency, we're frequently dealing with dependent children who actually don't have their futures mapped out yet. You know, you could have a six-month-old who you just don't know what their aptitudes are going to be yet, so they might not have any report cards to review so we can get a sense of their academic strengths or weaknesses or even what their aptitudes and interests are. So we frequently do need to rely on experts to do some crystal ball gazing for us about what that child's likely path would have been, and it's largely based on statistical analysis of the family's circumstances, of the family's circumstances. So, for example, children who are raised by parents with post-secondary education are more likely to be encouraged to support higher learning themselves, and those parents tend to be also better positioned economically to set aside savings for their kids' studies.

Warren Berg: 38:34

So I guess, in a nutshell, wealthy, educated parents. They tend to be in a better position to have their kids dependent on them for a much longer period of time and for more money.

Cynthia Carels: 38:44

Yeah, that's truly the reality of it. Economists are actually now predicting that by 2030, the average cost of a four-year post-secondary degree is going to be over a hundred grand, especially if a student has to factor in accommodations or residence, and over $55,000 if they can afford to live at home. So in families where the statistics show the kids are likely to pursue post-secondary studies and would have been supported by their deceased parent in some way, we can actually typically make a claim for that child's lost dependency, at least to the end of their first likely course of study, which might take them through to age 21 or 22.

Warren Berg: 39:23

What about dependency claims for children who might not ever become fully independent, perhaps because of a mental or physical disability?

Cynthia Carels: 39:30

Yeah, excellent question. So again, we're going to be making our calculations based on the specific circumstances of what support that child would have received from their parent had that parent not died as a result of the accident or the medical malpractice. So, for kids with special needs, our evaluation really needs to be tailored around their particular needs but also what their parent likely would have been able to provide for them and for how long. So, for example, if a parent dies in a motor vehicle accident and they leave a child behind who has already a lifetime impairment, but that parent also had, let's say, a pre-existing condition like terminal cancer, we can still make the claim for the wrongful death in the collision. However, the dependency claim is going to be limited to what resources that parent would have been able to provide in the context of their likely remaining lifespan with the cancer.

Warren Berg: 40:26

This sounds really complicated.

Cynthia Carels: 40:27

Yeah, it really can be.

Cynthia Carels: 40:29

We're getting into a lot of nuance on very specific fact patterns but thankfully at Weir Bowen we can work with an extensive network of brilliant experts who can help us figure out all of these different contingencies.

Cynthia Carels: 40:42

So, you know, we'll have an occupational therapist attend at a home to interview the family. They're going to get a sense of the kind of household labor that's you know now going undone or being picked up by other people and they're going to actually help us apply a market value to those losses. We're also going to have vocational experts review the deceased's academic records, their tax returns, employment files, and they also going to have vocational experts review the deceased's academic records, their tax returns, employment files, and they're going to develop an opinion on the deceased person's likely trajectory of income, their potential for raises and advancements in years they otherwise likely would have worked but for this accident. And we can also have expert economists map out how much financial support each child could have counted on from that deceased parent, based on their particular circumstances. And sometimes we might even get life expectancy experts involved if you know, the deceased parent had a condition that would have affected their life expectancy. In any event, absent the wrongful death like cancer or, you know, an underlying heart condition.

Warren Berg: 41:38

So, if I'm getting this right, when somebody dies, the remaining family members don't get to sue for the total value of what that person's lost earnings might have been, but only for the amounts that they would no longer receive in financial support.

Cynthia Carels: 41:51

You are correct. So we used to be able to apply what we call the lost years analysis to these claims, which meant we could calculate the deceased's loss of chance of earnings and then make deductions from that amount for things like their own personal living expenses, taxes that they would have paid, contingencies for all sorts of other reasons, for mortality and disability periods and unemployment and that sort of thing, and then that loss would flow into the deceased's estate. But there was a case that went to the Alberta Court of Appeal in the 1990s, and it actually highlighted a need for further legislative reform regarding that Survival of Actions Act that we were talking about earlier. So this case is well known in the legal community as Duncan and Badley, and it involved a wrongful death of a 16-year-old grade 11 student Obviously massively tragic situation, and at the time of his death, Duncan was a reasonably good student with no unusual health problems that would have affected his life expectancy.

Cynthia Carels: 42:51

He had a part-time job at a gas station, his parents were both successful in their respective careers, and his brother went on to complete a university. Duncan himself, though, didn't actually have his future charted out yet, 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 should be, as well as whether it was even appropriate to compensate Duncan's parents for money their child wouldn't have been earning for the parent's benefit. Does that make sense?

Warren Berg: 43:31

Mm-hmm Kind of yeah.

Cynthia Carels: 43:32

So the case eventually went to the Court of Appeal, which sent the case back for a second trial, and eventually the Duncan estate of this 16-year-old boy was awarded $425,000 at that second trial. But during the many instances where this matter came before the courts, the concern kept coming up that this approach was going to be leading to windfalls for parents in wrongful death cases involving their children, because those parents were never going to be relying on Duncan's money. They get $425,000 of money that they never would have previously been receiving. So on the recommendations of the Alberta Law Reform Institute, amongst others, the legislation was again changed to exclude those lost years claims by an estate, and now instead they're giving the victims survivors a direct claim for their actual loss of dependency.

Warren Berg: 44:24

Now, you were talking a little bit earlier about some of the experts that you have at your disposal. Getting all of these experts sounds expensive. Does this mean you have to have a lot of money in order to be successful in a wrongful death case?

Cynthia Carels: 44:35

Thankfully no, and yes they are expensive. But if it is our opinion that the potential client has a meritorious case, we generally run these kinds of cases on what we call a contingency fee agreement, so we 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 on an hourly basis can present a barrier to justice, particularly for individuals who have been injured and are already now facing the economic consequences of someone else's negligence. So clients who can't work or need money to pay for treatment don't also need to worry about coming up with resources to pay their lawyer's fees and all of these expert fees, especially since these cases can take many years to work their way through the system.

Warren Berg: 45:19

So a few minutes ago you were talking about 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 then the parent ultimately dies because of the delay? How do you deal with cases like that?

Cynthia Carels: 45:40

Yeah. So that's a really great example of one of these complicated medical malpractice cases that we get involved in, and truly some of the fundamentals of a wrongful death claim don't change, like making sure that we know. You know when the limitation period is and who the potential beneficiaries are, like we've been talking about today. Or you know, in the case of Joyce Eshaquan and Brian Sinclair, the lack of medical treatment that they received. Other elements of the claim can change substantially. So in these delay of diagnosis in medical malpractice cases, the allegation is that the doctors should have recognized a problem earlier and diagnosed that particular condition earlier. And you're right. A perfect example of that is a delay in the diagnosis of cancer cases.

Warren Berg: 46:29

Okay, so map this out for us.

Cynthia Carels: 46:31

So often in delay of diagnosis of cancer cases there's a clear breach of the standard of care, like a missed test result or an imaging result that should have been caught.

Cynthia Carels: 46:42

So, for example, after we reach a certain age, you know we should be referred for routine colonoscopies and mammograms to screen for cancer, and these are done to monitor for the risk of colon and breast cancer.

Cynthia Carels: 46:55

And we've had cases where this testing actually was done but the doctor didn't look at the results and the results were suggestive of cancer and they commanded that it these should have been followed up on. So in these cases, the doctor obviously didn't cause the cancer, it was there. So the question then arises whether that delay in the diagnosis of cancer because it could be another year or two, sometimes it's even longer than that when we actually pull the medical records and we see, hey, back in 2020, there was a positive sign here for this that we should have got the bandwagon going. So we're going to retain oncologists who are experts in colon cancer or breast oncology to give us opinions on whether the diagnosis at the earlier stage would likely have resulted in survival or a better outcome. And usually the biggest issue in the delay of diagnosis of cancer cases is what difference that delay would have made.

Warren Berg: 47:50

This all sounds like it can get really technical.

Cynthia Carels: 47:52

Yeah, absolutely it can, which is why we appreciate having access to such well-qualified experts in their various areas. And unfortunately, wrongful death cases in the area of medical malpractice is not just limited to delay in the diagnosis of cancer cases. You know, another example we've talked about in the past is delay in the diagnosis of aneurysms. You know, an aneurysm can burst and cause death and the aneurysm itself is an abnormal bulging or ballooning in the wall of a blood vessel. And a lot of people think aneurysms aren't possible to diagnose in advance. But a lot do give some warning signs or, as they worsen symptoms like intense pain, that can take someone to an ER. Or sometimes an aneurysm might actually be incidentally found on imaging when the doctors are actually looking for something completely different. So it may be surprising to people that the success rate of surgical treatments of aneurysm is actually really quite high. In fact, the success rate on those cases is so high that often delay in diagnosis of aneurysm cases are some of the easiest for us to settle without having to proceed to trial Now.

Warren Berg: 49:00

I'm just imagining how risky that particular surgery might be, and it leads me to think about maybe some of the other things that can go wrong during surgery. Now, I'm just imagining how risky that particular surgery might be, and it leads me to think about maybe some of the other things that can go wrong during surgery.

Cynthia Carels: 49:08

Oh yes, 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 resulted from a surgery, and in most cases death is a recognized risk of going into the surgery itself.

Cynthia Carels: 49:22

But it doesn't necessarily mean that just because somebody has died during surgery that there's not a good medical malpractice case.

Cynthia Carels: 49:30

It does make it an uphill battle, though, but what is most important in the surgery cases is determining what the surgeon did and whether the surgeon followed the standard way of going about that surgery.

Cynthia Carels: 49:42

So, for example, one of my colleagues had a case where a gentleman unfortunately died after sustaining a lot of bleeding during a gallbladder removal surgery, and of course bleeding is a known risk of the procedure. It's generally there on the consent forms. However, where the bleeding came from in that case made it pretty clear the surgeon was not doing the surgery appropriately because the bleeding came from an area that was supposed to be outside of the surgical field. So we were able to determine he wasn't doing it right, because if he was, you shouldn't have been bleeding there. So this emphasizes how important the feedback from our experts is, because obviously you know I'm a lawyer. My colleagues who come here are lawyers and we're not going to know where the surgical field should be for literally every procedure that people come to talk to us about, or how each kind of surgery should be done. So for wrongful death in surgery cases, obviously getting those early expert opinions is going to be key.

Warren Berg: 50:40

We've covered a lot of ground today in the September edition of Ask the Lawyer with Cynthia Carels of Weir Bowen LLP in Edmonton. If you need more information, you can visit their website, weirbowen. com. That's W-E-I-R-B-O-W-E-N. com. You can give them a call at 780-424-2030. And you can also find a link to Ask the Lawyer on our homepage, where these shows will be available to stream on demand. And our thanks again to Cynthia for tackling this really important subject this month.

Cynthia Carels: 51:11

And also thanks to you, Warren, and, of course, as we're preparing for the upcoming National Truth and Reconciliation Day on Monday, we do hope that today's topic helps in some way not only to acknowledge the harms that have been caused by the medical system, but also some of the paths forward to help survivors and racism and discrimination actually seek compensation through Canada's medical systems.

Warren Berg: 51:35

Very well put. We look forward to learning much more through this series, which takes place here on the last Saturday of every month on Windspeaker Radio CFWE and CJWE.