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Medical Negligence and Dental Malpractice Law – Making a Claim in BC

Posted on Wednesday, March 23rd, 2016 by:

Even though Canada is at the frontline of quality medical and dental care, sometimes mistakes do occur. Medical and dental professionals (including nurses and other health care professionals) must provide an acceptable level of health care that protects their patients from harm. If this duty of care is not met, then the health care practitioner may be liable for medical negligence and you may be able to claim compensation for losses incurred as a result of their conduct.

Proving medical negligence claims

Medical negligence claims may be difficult to prove since properly licensed health care practitioners are entitled to use their “best judgment”.

That being said, you may have a successful claim if the following are proven:

  1. First you will need to establish “negligent conduct”, that is that the practitioner’s care fell below the standard of care expected of a reasonable medical practitioner in the same position, practicing in B.C.
  2. Then you will need to establish that the practitioner’s negligent conduct was the cause of your injuries. For example, if you suffer from complications after a surgery, you will need to prove that the complications arose as a result of the negligent conduct. Additionally, a patient may have a claim if your health care provider fails to give you all the information necessary to make an informed decision to provide informed consent regarding all of the risks associated with their care, treatment, diagnosis or surgery. In a claim against a dentist, for example, lack of appropriate sterilization of dental equipment during a routine procedure can result in viral infections and all kinds of bacterial spreads that lead to medical and dental problems down the line.
  3. And finally, you will need to prove “damages”, this includes monetary and non-monetary compensation. Monetary damages are awarded for losses with a dollar value, such as future earnings, medical bills and out-of-pocket expenses. Non-monetary damages are intangible losses, such as pain and suffering, as well as long-term medical and dental problems. Expensive and life-altering, reparation of mistakes by practitioners can take both a financial and emotional toll on even the strongest of character.

Maximum time to file

Normally, you must commence an action within 2 years of the negligent procedure. For children, however, the two year time period only starts to run once the child turns 19. The start of the two year limit can be delayed if you did not know, and could not reasonably have known, about the possibility that the practitioner was negligent until a later date. An example could be complications that arise months after negligent conduct by a doctor during a surgical procedure. That being said, the maximum time between treatment of an adult and commencing a lawsuit is 6 years against medical doctors, hospitals and their staff.

Call Our Vancouver Personal Injury Law Firm

If you feel you have been a victim of medical negligence or dental malpractice, it is best to get legal advice. Call our Personal Injury Law Firm at 604-568-9444 or toll free at 1-855-ICBC-LAW.

Judge Reduces ICBC Claim by 40% for Failing to Follow Medical Advice

Posted on Friday, March 4th, 2016 by:

If you’ve sustained injuries as a result of a motor vehicle collision, your doctor, at some point, will likely recommend that you attend treatment of some sort. Whether it be physiotherapy, chiropractic or massage therapy, active rehabilitation, medications or even psychological counselling, your doctor is recommending these treatments with a view to alleviating your injury symptoms.

Some ICBC claims may be reduced

It is vital to your claim to follow your doctor’s advice and attend to the recommendations made.

Being too busy, unmotivated due to your injuries or can’t afford the treatments recommended by your doctors are some reasons you may not attend the treatments recommended. The fact remains, though, that you are injured and you need to “mitigate your losses”. If you do not mitigate your losses, you set yourself up for the potential of reduced compensation package.

On September 24, 2008, a woman, through no fault of her own, was injured in a car accident. Her doctors recommended that she take the medications prescribed to her to help alleviate her injury symptoms. Her doctors also recommended that she attend physiotherapy, chiropractor, psychological and psychiatric counseling and attend a gym.

She stopped her medication and treatments

Initially, the woman followed her various doctors’ advice, but soon after she stopped her medication and treatments citing that these treatments upset her stomach, cost too much money, she was too busy, the clinics were too far away, the treatments weren’t helpful and so on.

This woman’s ICBC claim made its way before the courts and upon hearing that this woman failed to mitigate her losses by not following her doctors’ advice, the trial judge deducted 40% from her pain and suffering award. In this particular case, 40% represented a significant amount of money the woman would have otherwise received had she followed he doctors’ advice.

The case is Liu v. Bipinchandra, 2016 BCSC 283, you can read it here.

If your doctor is recommending treatments and / or medications and you find it difficult for whatever reason to heed his or her advice, contact your lawyer for advice on how to proceed effectively so as to maximize the compensation due to you.

Call Our Vancouver Personal Injury Law Firm

If you have an ICBC injury claim due to a motor vehicle accident or have any questions relating to your claim, please call our Vancouver Personal Injury Law Office. Phone us at 604-568-9444 or toll free at 1-855-ICBC-LAW so we can help you achieve the best outcome for your particular claim.

Top 10 Things to do after a Car Accident in B.C.

Posted on Monday, November 23rd, 2015 by:

I grew up watching the late show with David Letterman and one of my favourite segments on his show was the top ten list. So in his honour as he recently retired, here is my top ten things to do if you’re involved in a car accident.

10. Check for injuries, don’t move your car first

  • Make sure that you’re not seriously injured before you do anything else. You may feel that you have to move your car because you’re blocking traffic or need to quickly get out of your vehicle to get the information of the other driver. You don’t!  You, your family, your friends in your car come first, and if anyone in your car seems to be in need of emergency medical attention then call 911 before you do anything else. The rest can wait.

9. Take pictures, lots of them

  • Make sure to take pictures and lots of them. Most of us carry phones that have cameras. If it is safe to do so, then start taking pictures. If you are hit from behind, and it is safe to do so, then take pictures of the gap between your car and the car that hit you before you or the other driver move your cars. Take pictures of items that have moved as a result of the impact or things like coffee cups, pursues, other bags that have spilled. This is particularly important if there is minor damage to your vehicle. ICBC will likely say that the forces involved in the impact were minor and thus, fall under their “low velocity impact” claims. Big gaps between vehicles and tossed about items inside the vehicle will show otherwise.
  • If you’re hit from anywhere besides the rear of your car then take pictures of the placement of the vehicles before you move them, if it is possible and safe to do so.
  • Do not take comfort in the fact that the other driver is saying it was his/her fault or “sorry” at the accident scene. People often change their minds when they go home and think about higher insurance premiums, etc. and might change their minds before they contact ICBC. Pictures of the accident scene can go a long way in establishing who is at fault.

8.  Get a video statement, or written

  • Make sure to get a video statement when the other driver is admitting fault at the accident scene. Again, this mostly applies to accidents that aren’t simply “rear-enders”. I was involved in a case where my client took a video statement on his phone from the driver admitting that he wasn’t paying attention while driving right into my client. Had that video statement not been taken, ICBC would have likely apportioned blame on both drivers at 50% each. However, the video statement helped him prove that the other driver was 100% at fault.
  • If you don’t have a cell phone with video recording capability handy, then take a written statement from the other driver if s/he is willing to provide one to you at the scene.

7. Don’t claim you’re “fine” or “okay” when you’re not

  • Never say that you’re okay or fine at an accident scene, when you’re not. Most people don’t feel injured immediately following an accident.  Instead, they’re usually in shock, their heart is pumping faster than usual, and adrenaline is flowing throughout their body. Therefore, you may not feel injured at the scene but may feel it later on or even the next day. Most of us are stoic or don’t want to prolong an already stressful situation when we’re involved in an accident, so we quickly respond “I’m okay” or “I’m fine” to questions posed by the other driver of “are you okay?” If you feel something is off, then simply state that fact or don’t respond at all. Don’t brush off the question because it is something that will be brought up by the lawyer on the other side once and if you make a claim later on.

6. Get witness’ information, or plate numbers

  • Make sure that you obtain witness information, but not only from the other driver involved in the accident but from other witnesses. Again, this mostly applies to motor vehicle accidents that aren’t simple “rear-enders”. You want to obtain witness information. If possible and safe, obtain the information of any witness that saw the accident. It could be pedestrians, other drivers, or passengers in any vehicle besides yours or the other driver’s vehicle involved in the accident. If you can’t get names and phone numbers, then try to get license plate numbers. If the accident isn’t your fault and ICBC saying that it is, witness accounts of the accident may be your only means of convincing ICBC that the accident wasn’t your fault

5. Use emergency services if necessary

  • Use emergency services if necessary. You pay taxes! These services are there for you to use if you need to use them. If the other driver is not cooperating by refusing to provide you with their information or is threatening you, then call 911 and ask for police services. If you feel significantly injured or dizzy or nauseated, then call for an ambulance. Never attempt to drive to emergency if you’re experiencing dizziness or significant pain. May endanger not only your life but the life of others.

4.  Report your accident

  • Make sure that you report the accident to ICBC (by using dial-a-claim) either the day of the accident, the following day, or shortly thereafter. There is a requirement that you report the accident to ICBC but you have the right to discuss your claim with a lawyer first before you go in and give a written statement.
  • There is a huge difference between calling in to report the accident and providing a statement to ICBC. The former isn’t usually problematic, it is the latter that can come back to haunt you once you advance a claim.
  • Don’t make an ICBC statement before speaking to a lawyer. See me first before you provide any statement to ICBC besides the initial dial-a-claim call.

3.  See your doctor if you’re injured

  • Make sure to see your doctor if you’re injured. If you don’t have a doctor, then get one or go to a walk-in-clinic at the same time so that you see the same doctor at that clinic. There needs to documented evidence (such as those in your clinical chart with your doctor) that keeps a record of your complaints (symptoms) over time, your doctor’s findings on testing, and the recommendations made to you by him or her. Simply put, ICBC is not going to believe that your injured simply because you say so! I had a very senior lawyer once tell me; “if they didn’t see their doctor, then they’re not that hurt or not hurt at all.” ICBC will take that very same position without documented medical evidence of your injuries.
  • Note: Doctor in this case means family doctor. Not chiropractor or physiotherapist. Both may help you with your injuries, but ICBC simply places more weight on the family doctor’s findings and opinions

2. Follow your doctor’s recommendations

  • Make sure to follow your doctor’s recommendations. It may sound simple enough but many injured clients before they see me do not and we’re later faced with a lack of mitigation argument. Simply put the argument is as such, “you didn’t follow your doctor’s recommendations therefore, you have prolonged your injuries that otherwise would been better sooner.” A proven lack of mitigation will usually result in a deduction of any award that you otherwise would have been entitled to receive.

1. Call a lawyer that specializes in ICBC claims

  • And finally the number one thing you need to remember when you’re involved in a car accident: Make sure to call a local Vancouver Personal Injury Lawyer, such as myself, if you’re injured.
  • Call me at 604-568-9444 or toll free at 1-855-ICBC-LAW. We’ll go over the facts of your case during a free 30-minute consultation, where I will inform you of your rights and obligations. We will get your case started on the right foot to make sure that we can achieve the best possible outcome for your particular case.

ICBC Injury Claims: What is my Pain and Suffering Worth?

Posted on Thursday, November 12th, 2015 by:

Pain & Suffering Claims in B.C.

In the ten years I have been practicing personal injury law, I have often been asked by my clients during our initial consultation; “So… what do you think mycase is worth?” My response is usually; “I don’t know.” And my thoughts often turn to snowflakes. Why snowflakes? Perhaps a brief explanation of the law is in order before I answer that question.

Different types of awards

“So… what do you think my case is worth?” is an impossible question to answer at the initial visit with a client as there are months, sometimes even years of medical and financial information to review in order to form an opinion to answer such a question. Furthermore, there are different types of awards that a particular case may or may not attract.  The easier evaluations are those that involve figuring someone’s past wage-loss or future wage-loss or their out-of-pocket expenses. These types (or “heads”) of damages are known as pecuniary damages. We simply crunch some numbers we get from tax returns, or punch cards, or receipts and we come to a total. What is more difficult to calculate is the non-pecuniary, or general, damages portion of our clients’ claims.

Non-pecuniary Damages vs Pain & Suffering

The term non-pecuniary damages (or general damages) is something that is unfamiliar to most Canadians, as most of us are more familiar with the American term “pain and suffering”. So how do we as lawyers calculate an appropriate sum of money for someone’s pain and suffering. The easy answer is that we try to find similar cases that have gone before the courts, where non-pecuniary damages have been awarded. However, this is often a difficult task as there are no two cases exactly alike. It would be like trying to find two snowflakes that are alike. It is impossible! So what we do is try to find cases that are as similar as possible to each of our clients’ claims. So what do we look for?

What we look for

Before we head down that road of what to look for, we first need to understand the underlying reasoning behind awarding money for pain and suffering. In Lindal v. Lindal, 1981 CanLii 35 (SCC), the Supreme Court of Canada stated;

“… the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation… An award will vary in each case “to meet the specific circumstances of the individual case”

Simply put, we cannot simply compare the type of injury our clients sustain in the accident and look for similar injuries that courts have been asked to examine in the past, and then advise our clients, for example; “since the courts have awarded x for a broken arm in the past, the broken arm you sustained in the accident is also worth x.” A broken arm to someone who is 60-years-old is likely more limiting to him or her than it is to a 16-year-old person. Equally, a broken arm to that same 60-year-old person is likely going to take more time to completely resolve than that of a 16-year-old person.

Specific circumstances

Clearly, awarding the same compensation to both individuals in our scenario would be greatly unfair. The analysis must go beyond the type of injury sustained, we must take into account the age of the injured person, the duration of injury, and the impairment of the injury on the individual’s life, to name a few of the “specific circumstances of the individual case” mentioned by the Court in Lindal v. Lindal.  The B.C. Court of Appeal in the case of Stapley v. Hejslet 2006, BCCA 34 (CanLii) provided an inexhaustive list of “specific circumstances” of each case the courts must examine when determining an appropriate award for non-pecuniary damages. They are;

10 factors set out by the B.C Court of Appeal

  1. Age of the Plaintiff;
  2. Nature of the Injury;
  3. Severity and Duration of pain;
  4. Disability;
  5. Emotional suffering
  6. Loss or impairment of life
  7. Impairment of family, marital and social relationships;
  8. Impairment of physical and mental abilities;
  9. Loss of lifestyle; and
  10. The Plaintiff’s stoicism  

These ten factors set out by the B.C Court of Appeal are the guidelines that we as lawyers must use in order to find cases that are similar to our own clients’ particular case (and this is for each individual client), to form an opinion as to the “value” of their “pain and suffering.” We’ll never find a case that is exactly the same as to the specific circumstances of our client’s claim.

Importance of Passage of time

Furthermore, Things like the duration of pain, impairment of life, emotional suffering, loss of lifestyle, and impairment of family, marital and social relationships can only be determined with the passage of time. Therefore, the more time passes for each particular case, the better position that we, as lawyers, are in to form an opinion as to the value of each client’s pain and suffering. Again, using our snowflake analogy, allowing the water to freeze first and ultimately transform into a snowflake, which can only happen with the passage of time, puts us in a better position of knowing what to look for when trying to find similar snowflakes.

“So… what do you think my case is worth?” is a question that is impossible to answer with any accuracy without first knowing all “specific circumstances” of your case, which in many situations can only be determine with a significant passage of time.

Contacting our Personal Injury Law Firm

If you have a personal injury or were injured in a car accident, we will meet with you to discuss your claim and your rights — with no obligation for you to hire us. Contact our Vancouver Personal Injury Law Firm for a free consultation.

Call us at 604-568-9444 or toll free at 1-855-ICBC-LAW.