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Written on behalf of Cuming & Gillespie

Ontario Rec Hockey Player Checked from Behind Awarded $700,000

Those that participate in sports are well aware that there is an inherent danger, especially for those taking part in high speed or contact sports, such as hockey, rugby, football and soccer.  However, when an individual becomes injured as a result of actions that are not part of the “normal play” expected of the game, the injured person may be entitled to compensation from the individual responsible for the injuries.

In a recent Ontario decision, a recreational hockey player that intentionally blind-sided another player was found legally responsible for the injuries, including pain and suffering, past and future income loss and the impact that the injuries have had on the injured player’s life.

WHAT HAPPENED?

On March 15, 2012, Drew Casterton (“Casterton”) collided with Gordon MacIsaac (“MacIsaac”) during the last minute of a recreational hockey game.  Casterton was knocked down, hit his head on the ice and briefly lost consciousness.  He suffered numerous injuries as a result of the incident and commenced a lawsuit against MacIsaac claiming for damages for the impact on his personal life, his career and his relationships.  Casterton made his claim for general damages for pain and suffering, past and future income loss, and punitive damages.

THE TRIAL

At trial, MacIsaac maintained that the collision was accidental and denied all responsibility for Casterton’s injuries.  MacIsaac also argued that Casterton was partially to blame for the collision and that the damages Casterton was claiming for were excessive.

The trial judge, Justice Sally Gomery, determined that the three questions to be answered were:

  1. Is MacIsaac liable for injuries suffered by Casterton during the March 2012 game?
  2. Was Casterton contributorily negligent for the injuries he suffered?
  3. What are the damages suffered by Casteron as a result of the injuries?

In light of the evidence presented at trial, Justice Gomery concluded that MacIsaac, a defenceman, had deliberately skated toward Casterton at a high rate of speed and at an angle where Casterton could not see him.  Gomery characterized the hit as either “deliberate or reckless”.  Gomery concluded that MacIsaac was liable to Casterton for his injuries for failing to meet the standard of care of a hockey player in the circumstances.  Gomery did not find any negligence on Casterton.

Justice Gomery stated:

Every player who testified stated that a blindside hit to the face, is and was, outside the bounds of fair play.  They have no place in recreational play, or in any hockey game.

In agreeing to play hockey, a player implicitly consents to a risk of injury inherent to a fast-paced and sometimes physically violent sport.  This includes the risk that a player may suffer injury, even serious injury, from bodily contact with another player during normal gameplay.  But a player’s implicit consent is not unlimited.  A player does not accept the risk of injury from conduct that is malicious, out of the ordinary or beyond the bounds of fair play.  In deciding whether this contact meets that test, relevant considerations include the type of league in which the game was played, the level of play in the league, the applicable rules, and the nature of the game.

DAMAGES AWARDED AT TRIAL

Casterton suffered a concussion, two broken teeth and various facial cuts as a result of the hockey incident with MacIsaac.  He was prevented from working for four months and returned to work part-time in June or July 2012.  He continues to experience headaches, fatigue and intolerance for social situations.

The court recognized the seriousness of a concussion and the impact that it had on Casterton’s life.  The evidence presented at trial demonstrated that he was “a different person” than he was before the concussion.  The court found that, as a result of the hockey incident, his functional and cognitive impairments and limitations impaired his social skills and limited his ability to work.  Justice Gomery held that “[h]e has never returned to the life he enjoyed prior to the March 15, 2012 game.”

Casterton was awarded $702,551 in damages.  This was broken down as $63,000 for general damages, $199,512 for past lost income and $440,039 for future income loss.

Justice Gomery did not find that MacIsaac’s conduct required punitive damages and noted that the goals of punitive damages, including punishment, denunciation and deterrence, have been met.   McIsaac has not returned to any recreational hockey league, has been tried twice for assault and has paid $10,000 in restitution to Casterton.

At Cuming & Gillespie Lawyers we are committed to helping you and your loved ones.  If you or a loved one have been injured as the result of someone else’s negligence, the experienced personal injury lawyers at Cuming & Gillespie Lawyers can help evaluate your specific case to determine whether you have a valid claim.  It is important that you call us promptly so we can help you understand your rights and the potential to recover compensation for your injuries.  Contact our office online or at 403-571-0555 to arrange for an initial free consultation with one of Calgary’s award winning personal injury lawyers.


No-Fault Car Insurance Anticipated This Spring in British Columbia

A massive revamp of British Columbia’s auto-insurance regime is expected to be implemented in May of 2021.  The B.C. government has recently announced that it will be changing to no-fault auto-insurance. This means that in most cases there will not be any lawsuit following a motor vehicle accident.  ICBC will handle all auto insurance claims, assess the medical costs and control the payout.

Under the proposed insurance regime, individuals who have complaints or disputes regarding their claim will have no access to the Courts to resolve their claims. All issues will be dealt with through ICBC channels.

Many are voicing their opposition to the proposed legislation as it will take away the legal rights of British Columbians to go to court and receive a fair settlement and will result in injured parties being under-compensated. 

Lawyers throughout British Columbia are concerned that these new changes will significantly affect the compensation or damages for victims of motor vehicle accidents.  A representative of the Canadian Bar Association – B.C. criticized the government’s proposed changes to the auto-insurance regime:

Our system of justice is built on fairness and the acceptance of responsibility for our actions.  An innocent victim of an accident has a right to expect that the person at fault for the accident take responsibility for it.  In a no-fault insurance plan, no one but the victims and their families bear the consequences of that accident.

Cuming & Gillespie Lawyers will continue to provide updates through this blog as we become aware of further information regarding changes to auto insurance in British Columbia and throughout Canada. 

If you or a loved one have been injured in a motor vehicle accident, call Cuming & Gillespie Lawyers today for a free initial consultation and speak to one of our experienced personal injury lawyers to get the help and advice you need.  Please contact our office online or by calling 403-571-0555 to make an appointment for a free case evaluation.  We look forward to helping you obtain the compensation that you deserve.


Midwifery in Alberta

The birth of a child is one of the most exciting times in a couple’s life.  Most deliveries result in a beautiful baby, and tired, but delighted parents. However, there are times when this isn’t the result.  When complications arise that put both the mother and the child at risk.  If these complications are found to have been preventable, and either the mother or baby suffered injuries, it may be a case of medical malpractice.

Midwives are becoming a popular alternative for pregnant women.  In Alberta, registered midwives deliver approximately 5.5% of the babies in the province.  In Canada, midwives delivery 10.8% of the babies across the country.

Midwives are especially common for those choosing an at home birth.  Utilizing a midwife may allow for a more personalized approach to the birthing process and help women to create an individualized birth plan.  Midwives are trained to recognize any variations in the normal progression of labour and are trained to discern a high-risk situation.  However, when they fail to do so, or their care falls below the accepted standard of practice in the medical community, the life of the mother and the child may be at risk.

WHAT IS A MIDWIFE?

A midwife is a medical professional who provides primary care to low risk patients and their newborns from birth through to 6 weeks postpartum.  Midwives have a duty of care to provide proficient support, care and advice during pregnancy, labour and the post-partum period. 

In Alberta, registered midwives have access to laboratories and diagnostic services, they are able to prescribe select medications, and they can consult and refer to other specialists when necessary.  Patients of midwives are able to choose whether to deliver in a hospital, birth centre or at home.

Since 1998, midwifery has been a regulated profession in Alberta.  The College of Midwives of Alberta is the regulatory body responsible for the registration and practice of more than 130 registered midwives in Alberta.  In April of 2019, registered midwives in Alberta became one of the health professions to become a self-governing college under the Health Professions Act.  The Midwives Profession Regulation defines the qualifications, practice and boundaries of the midwifery profession.

Beginning in April 1, 2019, midwives who completed additional training by the College of Midwives of Alberta, were granted enhanced privileges to prescribe, dispense and administer prescription drugs and to use ultrasounds to determine fetal position.  They were also permitted to give patients anti-anxiety medications and narcotic painkillers while in hospital.  In terms of post-partum care, midwives were granted the ability to prescribe and administer vaccines, prescribe contraceptives and contraceptive devices, and insert IUDs.

MIDWIFE NEGLIGENCE

Midwives in Canada are well trained and well prepared to manage low-risk pregnancies and deliveries.  They are also qualified to recognize when there are symptoms or circumstances beyond their expertise requiring the need for medical doctors.  Although it is rare, errors in treatment by medical professionals, including midwives, can lead to tragic consequences. 

Some birth injuries caused by medical negligence by a midwife can result in:

  • Cerebral palsy;
  • Brachial plexus;
  • Injuries to the mother;
  • Brain injuries; or
  • Fractured or broken bones.

MOTHER WINS LAWSUIT AGAINST MIDWIFE

In December 2011, Cabe Crossman (“Cabe”) was born at the Cowichan District Hospital on Vancouver Island under the supervision of a midwife and two nurses.  During the delivery, the baby suffered severe brain injuries.  These injuries caused both mental impairment and cerebral palsy, requiring Cabe to rely on extensive care for the remainder of his life.

Cabe’s mother, Sarah Corrin, sued the midwife (who cared for her prior to going to the hospital), the Vancouver Island Health Authority, and the two nurses who worked at the hospital.  The lawsuit claimed that the care the mother and baby received from all parties was negligent.  Corrin alleged that her labour and delivery were not properly monitored, assessed or responded to. 

In August 2016, when the lawsuit finally made its way to court, the defendants admitted that they were liable, and a judge approved the settlement agreed upon between the parties. According to the agreement, the defendants were to pay $3 million, plus annual installments of $400,000 to assist with Cabe’s medical care.  This is an unusual, but not “unprecedented” settlement agreement that was approved by the court.  Cabe’s life expectancy was anticipated to be between 12 to 30 years, therefore the final award could be well over $10 million. 

If you or a loved one have suffered injuries because of a negligent midwife or medical professional, it is essential to understand the legal options that may be available to you.  The lawyers at Cuming & Gillespie Lawyers are well equipped to handle cases involving birth trauma and help you recover damages from the responsible parties.  We can assemble a team of legal and medical experts to ensure that you put forth the strongest case and receive the compensation you are entitled to. 

With over 20 years of experience, the award winning lawyers at Cuming & Gillespie Lawyers have handled many different types of medical malpractice claims, and have the experience and knowledge to evaluate your case and help you decide whether you should pursue a claim.  Call us at 403-571-0555 or online today to book a free consultation.


New Report Finds Needless Auto Insurance Hikes In Alberta

By now we have all heard, or have experienced firsthand, that Alberta drivers are facing higher auto insurance rates.  The insurance companies blame the rising insurance rates on increasing claims and expense costs that are exceeding the premiums. 

Fair Alberta Injury Regulations (“FAIR”), an Alberta group advocating for fair auto insurance, has recently released a report that has found that the assertions by some the insurance companies that the industry is in crisis due to a reported rise in bodily injury claim costs are incorrect. 

Recent History of Rate Caps on Insurance in Alberta

In 2017, the NDP government placed a 5 percent cap on insurance rate hikes to address the insurance rising costs in the auto industry.  When the United Conservative Party came into power in Alberta, the provincial rate cap was allowed to expire in September 2019 with the new government granting the Automobile Insurance Rate Board (AIRB) the authority over auto insurance rates.

Less than six months after the Alberta government removed the rate cap on auto insurance policies, the United Conservative government has announced that it is creating a panel to review the rising insurance rates.  According to Finance Minister Travis Toews, the rate cap on insurance is just a “band-aid” approach.  Toews stated,

“A three-person committee will look at what’s working and what’s not in our current automobile insurance system.  They will look to find solutions that make sense for Albertans.”  

The panel will provide its recommendations by the spring of 2020. 

The AIRB reports that 92 percent of insurance companies that insure private passenger vehicles have asked the board for a rate hike and 27 insurers in Alberta have recently been grated rate hikes between less than one percent to almost 30 percent for basic coverage on private passenger vehicles.   

What Is the Automobile Insurance Rate Board?

The Automobile Insurance Rate Board, otherwise known as AIRB, is the regulatory board responsible for monitoring and adjusting the cost of auto insurance in Alberta.  The board was established by the Minister of Finance and Alberta’s provincial government. 

AIRB’s mandate is to ensure that the interests of Alberta’s residents, businesses and the government are being served in relation to automobile insurance.

How Are Auto Insurance Rate Increases Determined?

AIRB reviews auto insurance rates each year in Alberta.  The following are factors that are considered by AIRB:

  • The strength and profitability of the insurance industry in a given year;
  • The importance of providing rates to the public that are fair and stable;
  • The projected stability of auto insurance rates over the next 3-5 years;
  • The strength of the Canadian dollar;
  • The cost of the average auto insurance claim payout;
  • The number of fraudulent insurance claims in a given year; and
  • The frequency and severity of natural disasters within the province.

What Is FAIR and What Did FAIR’s Recent Report Reveal?

FAIR is a coalition of Albertans that includes consumers, medical professionals, injured Albertans and members of the legal community that are dedicated to protecting the rights of those injured in motor vehicle accidents. FAIR is committed to holding auto insurance companies accountable and ensuring that injured Albertans are receiving sufficient compensation and appropriate treatment options for their injuries. FAIR advocates directly to the government to provide an opposing position to those that speak on behalf of the insurance industry.

As insurers maintain that increasing injury payouts are creating a “crisis” in the automobile insurance industry as companies are paying out more than they are bringing in through premiums, FAIR retained the services of an actuary to study data released by AIRB and industry statistics from the General Insurance Statistical Agency. 

A report prepared by Craig A. Allen (“Allen”), a Canadian consulting actuary based in New York, indicates that the AIRB overestimated the severity of bodily claims reported in its 2018 annual report.  Allen does recognize that injury claims rose between 2011 and 2016 but has reviewed all of the data and maintains that injury claims have levelled off since then. 

According to Allen, the rate cap was high enough to cover injury claims in the last few years as the AIRB rate hikes accounted for claims increasing at a faster pace than they actually did. Allen wrote:

Allowable rate levels since late 2017 … provide more than adequate amounts for the estimated bodily injury claims costs that have subsequently emerged. For insurers that have kept up to date with their rate changes, further rate increases for bodily injury coverage appear to be unnecessary at present and for a period into the future.

Allen’s report indicates that the AIRB overestimated the severity of claims in its 2018 annual report and has revised these figures to lower amounts.

FAIR maintains that insurers are hoping to change insurance laws and increase their profits, and in doing so reduce consumer rights and protections. 

FAIR contends that insurers are attempting to influence the government to change the definition of “Minor Injury” in the auto insurance regulations. Changes of this nature would benefit the insurer by allowing the insurer not to compensate an individual injured in an accident in Alberta.

According to a FAIR spokesperson:

All this time, insurance companies have been blaming Albertans who have been injured in accidents for rising premiums, but now we have data that says that’s not true.  This report raises a lot of questions.  We now know injuries aren’t driving insurance rates.  We also know many insurers in Alberta are still making tens of millions in profit each year.  Consumers deserve answers to these questions.  We should know if we all are being asked to bailout insurance companies who have simply made bad bets or made some poor business decisions.

Choosing a personal injury lawyer to represent you or a loved one in your time of need is not a decision to be taken lightly. As a firm of lawyers who specialize in personal injury law and medical malpractice, the experienced lawyers at Cuming & Gillespie Lawyers have a strong reputation in the community and in the legal profession. 

At Cuming & Gillespie Lawyers, we strive to provide our clients with excellent legal services, and we offer a free consultation. Our personal injury lawyers are happy to answer any questions you may have regarding hiring a lawyer for your personal injury or medical malpractice case. Please contact our office at 403-571-0555 or online.


Sepsis – The World’s Leading Cause of Death

A recently published study in the medical journal, The Lancet, has found that sepsis is the leading cause of death in the world.   In fact, it is more widespread than cancer or coronary disease. 

Sepsis is responsible for one in five deaths worldwide.  The study found that in 2017, an estimated 48.9 million incidents of sepsis were recorded worldwide and 11 million sepsis-related deaths were reported, representing 19.7% of all global deaths.

Study co-author Dr. Tex Kissoon, a professor at UBC Faculty of Medicine, stated:

Eleven million deaths worldwide is a tragedy, especially as most cases of sepsis are either preventable or treatable if caught in time. … We urgently need a coordinated global effort to tackle this crisis.  Raising awareness of sepsis among both patients and medical practitioners and ensuring everyone has access to public health measures to prevent and treat sepsis can greatly reduce the burden and ravages of this condition.

WHAT IS SEPSIS?

Sepsis is caused by the immune system going into over-drive in response to an infection.  Your immune system protects your body from illnesses and infections.  Sepsis develops when the chemicals the immune system releases into the bloodstream to fight an infection cause inflammation throughout the entire body instead.  The inflammation causes tiny blood clots to form, which blocks oxygen and nutrients from reaching vital organs.

There are three stages of sepsis:

  1. Sepsis occurs when the infection reaches the bloodstream and causes inflammation in the body.
  2. Severe sepsis occurs when the infection is so severe that it affects the function of the body’s organs (i.e. the heart, brain and kidneys).
  3. Septic shock occurs when the body experiences a significant drop in blood pressure, which can lead to respiratory or heart failure, stroke, the failure of other organs, and death.

Anyone can fall victim to sepsis or septic shock, although it most often occurs in older adults, pregnant women, children younger than one year old, individuals who have chronic conditions or those with weakened immune systems.

Any type of infection can lead to sepsis, however, the most common types of infection that seem to develop into sepsis are pneumonia, abdominal infection, kidney or urinary tract infection and bloodstream infection.

The early symptoms of sepsis should not be ignored and it is recommended that individuals visit their doctor or an emergency room if they develop the following symptoms:

  • Fever, typically higher than 38 degrees Celsius;
  • Low body temperature (below 36 degrees Celsius);
  • Fast heart rate (higher than 90 beats per minute);
  • Extreme pain or discomfort;
  • Confusion or disorientation;
  • Clammy or sweaty skin;
  • Rapid breathing (higher than 20 breaths per minute);
  • probable or confirmed infection.

A blood test is ordered if your health professional suspects that you are suffering from sepsis. Depending on the results of your blood test and your symptoms, other tests, such as a urine test, a wound secretion test and/or a mucus secretion test, may be ordered. If the source of the infection cannot be determined, your doctor may further order the following tests, x-rays, CT scans, ultrasounds or MRI scans.

The chances of developing sepsis can be greatly diminished by reducing the risk of infection through hand washing, staying up to date on vaccinations, getting the flu shot, pneumonia vaccines, getting immediate attention if you develop signs of infection and taking antibiotics as prescribed. 

CAUSES OF SEPSIS

There are a number of causes of sepsis.  Some of the most common causes of sepsis include:

  • Nursing homes or hospital patients who are not moved on a timely basis can develop bedsores which can lead to infections;
  • IV lines or other medical devices and equipment that are not properly sanitized can lead to infections;
  • Many surgery patients need antibiotics to heal properly.  If the medications are not properly prescribed, wounds can fail to heal which can lead to infections;
  • If a doctor fails to recognize that a patient has an infection, the patient can develop sepsis and related illnesses.

MEDICAL MALPRACTICE CLAIMS INVOLVING SEPSIS

In some cases, a doctor may examine a patient and fail to diagnose sepsis or fail to treat sepsis properly.  There are also cases when an infection that causes sepsis was caused by unhygienic hospital conditions or negligent medical attention.  If these situations arise, a patient may have a medical malpractice claim.  That is not to say that every sepsis diagnosis or bad medical outcome is the result of malpractice.

Experienced medical malpractice lawyers, along with medical experts, can establish if preventable errors were made during the treatment of you or your loved one in a medical facility. 

If you or a loved one has developed sepsis while undergoing medical treatment, or suffered injuries as the result of an undiagnosed or mistreated sepsis diagnosis, you may be able to file a legal claim against the responsible party.

It is in your best interest to promptly hire a skilled and experienced law firm to guide you through the litigation process and answer any questions that you may have.  Cuming & Gillespie Lawyers can help evaluate your specific case to determine whether you have a valid medical malpractice claim.  Contact our office online or at 403-571-0555 for a free consultation today.  We look forward to helping you obtain the compensation that you deserve.


E-Scooters Were a Success in 2019: What Changes Can We Expect for the Return in Spring 2020?

In Calgary, e-scooter riders are taking the winter off.  In the meantime, city officials are reviewing all of the data collected by the city, Alberta Health Services and ride-share companies to assess the successes and failures of the four month pilot project.

A shared e-bike pilot project began in October 2018 with 500 e-bikes in Calgary.  In July 2019, e-scooters were introduced with 1000 e-scooters deployed by Lime and 500 e-scooters deployed by Bird in Calgary.

During the four month pilot project (July to October 2019), more than 150,000 individuals used the scooters over 915,000 times.  Calgary Major Naheed Nenshi addressed the success of this pilot project:

Calgary was the first jurisdiction in Canada to allow e-scooters, and over all, our first season was a success.  We know one-third of all scooter trips replaced one by car, and more than that, it made transportation fun.  We’ll be making some adjustments heading into Year 2, and hope to see even more success.

STUDY BY THE CUMMING SCHOOL OF MEDICINE

The City of Calgary commissioned a study by the University of Calgary’s Cumming School of Medicine to study all e-scooter injuries that required an ambulance.  Using this data, as opposed to those who self-report at the emergency department, would provide more detailed information regarding how, why, when and where individuals were being injured as a result of riding e-scooters. 

The data showed that between July 8, 2019 and October 1, 2019 there were 33 e-scooter injuries that required an ambulance.  Of those injured, 32 of them were riders and the other was a pedestrian who was injured by a scooter rider. 

According to the study, the most common causes of injury involved speed, losing control or hitting a pothole or stationary object.  Of the 33 incidents, eight patients were found to have alcohol in their system and two accidents involved a motor vehicle. 

Unfortunately, only one of the seriously injured riders had been wearing a helmet.  Although this is not required by city by-laws, wearing a helmet while operating an e-scooter is highly recommended, especially by Cuming & Gillespie Lawyers, for safety purposes and to avoid the risk of a head injury.

According to the medical data, it is estimated that serious e-scooter injuries requiring hospitalization occurred at a rate of 1 patient per 100,000 rides.  There were more non-admitted e-scooter injuries resulting in a visit to the emergency room, which were estimated to occur at a rate of 1 per 1,500 rides.

NEXT STEPS CONSIDERED FOR THE RETURN OF E-SCOOTERS IN THE SPRING

It is anticipated that e-scooters will return to the streets of Calgary in the spring of 2020.  To address various concerns derived from data collected by a public survey (over 9,000 individuals responded), 311 phone calls (281 calls) and the studies regarding e-scooter injuries, a number of issues will need to be addressed before the next phase of the pilot project.

According to the December 18, 2019 Phase One Report, there is a plan to lower speed zones in high pedestrian areas, such as 4 Street SW in Mission and 17 Ave SW in the Beltline.  In specific areas, the speed limits will be dropped from 20km/h to 15 km/h.

There is also a plan to implement designated parking zones for e-scooters in high demand parking areas.  These designated parking zones will be installed prior to the re-introduction of e-scooters in the spring of 2020.

It was also determined that there is also a need to introduce and better enforce by-laws that are specifically related to the operation of e-scooters.  The need to enforce rules and laws will need to be addressed by the administration in the coming months. 

A plan is also being developed to provide new signage and education in an effort to inform users on the operation of e-scooters and to provide safety tips.

We will continue to follow the legislative changes that are being considered for the operation of e-scooters and the plans for enforcing any rules or by-laws that are being developed to address the complaints and injuries surrounding the use of e-scooters in Calgary.  We will also report in this blog should any litigation arise out of injuries that have occurred during the use or operation of this mode of transportation as its use rises in popularity.

In the meantime, if you or a loved one have suffered personal injuries as a result of an accident and believe a third party is responsible, please contact the award winning and experienced lawyers at Cuming & Gillespie Lawyers online or call 403-571-0555.  We offer free consultations for new clients.  We will review your case to determine the best approach to take and how we can help you obtain the compensation you deserve.


Medical Malpractice Litigation for Delayed Cancer Diagnosis 

According to the Canadian Cancer Society, cancer is the leading cause of death for Canadians and is responsible for 30% of all deaths.  Canadian statistics indicate that one in two Canadians is likely to develop cancer during their lifetime and that one out of every four Canadians will likely die from cancer.  The most commonly diagnosed types of cancer in Canada are lung, breast, colorectal and prostate cancer.  Cancer can occur at any age, but typically affects those aged 50 and older.

THE EARLIER THE DIAGNOSIS, THE BETTER

In general, the earlier that a patient is treated, the better chances there are for a cure or recovery.  Many cancer treatments are most effective before the disease spreads.  Thus, the earlier that cancer is diagnosed the better the chances of surviving.  If a doctor fails to recognize symptoms which would lead a reasonable professional to diagnose cancer, the patient may be deprived of treatment options which could lead to a recovery. 

Cancers such as colon, lung, breast, prostate, cervical, testicle, kidney and non-small cell cancers respond well to early treatment.  However, other types of cancers such as small cell lung cancer, pancreatic cancer and ovarian cancer have a poor chance of recovery regardless of when the cancer is detected.

Given that there are so many types of cancers that are treatable, early diagnosis is key to preventing serious health consequences or even death.  Therefore, unreasonable delays in diagnosing a patient with the disease may result in unnecessary treatments, costs and a lower survival rate and may become the foundation for a medical malpractice claim.

BURDEN OF PROOF

In Canada, a plaintiff (the individual bringing a case against another in a court of law) must prove on the balance of probabilities that an earlier diagnosis would have changed the patient’s medical outcome.  In other words, the plaintiff would likely not have experienced the loss had he/she been diagnosed earlier.

The Ontario Court of Appeal clarified this burden by stating, “[i]t is not sufficient to prove that adequate diagnosis and treatment would have afforded a chance of avoiding the unfavourable outcome unless that chance surpasses the threshold of ‘more likely than not’.”  

PROVING CAUSATION

When proceeding with a medical malpractice claim, the plaintiff must be able to prove causation.  The following are the components necessary to prove causation in the case of medical malpractice involving a delayed cancer diagnosis:

  1. The patient must prove that the cancer was present when the doctor examined the patient;
  2. The patient must prove that he/she would have been diagnosed at an earlier time if the doctor had met the standard of care; and
  3. The patient must prove that the outcome of his/her disease probably (not possibly) would have been more favourable with an earlier diagnosis.

Although scientific precision is not required in order to prove causation, the plaintiff must be able to prove that an earlier diagnosis probably would have changed the patient’s medical outcome.

EXAMPLES OF ERRORS RESULTING IN A DELAYED CANCER DIAGNOSIS

There are a number of examples of ways in which a doctor may have failed to make an early diagnosis.  A doctor may have failed to take a proper individual or family history, failed to investigate the risk factors, failed to take the patient’s complaints seriously or neglected to order imaging, biopsies, blood tests or other diagnostic tests after reviewing the patient’s symptoms. 

The correct interpretation of various diagnostic tests including ultrasounds, mammograms, x-rays, CT scans, MRIs, biopsy samples and pathology slides are essential for a proper and early diagnosis.   The failure to examine and review these types of tests may delay the diagnosis and the availability of treatment options for the patient.

Communication errors may also result in a delayed cancer diagnosis.  Delays may occur if a doctor fails to communicate the test results to the patient or to follow-up on test results that have been ordered.  Doctors may also fail to recognize the significance of some of the symptoms or findings and fail to refer the patient to an appropriate specialist in a timely manner, thus delaying the diagnosis and treatment.

COLORECTAL CANCERS DIAGNOSED IN CANADA TOO LATE FOR EFFECTIVE TREATMENT

According to a report released by the Canadian Cancer Society, nearly half of all colorectal cancers in Canada are diagnosed after they have already spread to other parts of the body.  The statistics show that 49% of those diagnosed with colorectal cancers are diagnosed in Stage 3 or Stage 4, at which point they are most likely untreatable.

When colorectal cancer is diagnosed at Stage 1, the five-year survival rate is close to 90%.  However, when it is diagnosed at Stage 4, the survival rate drops below 15%. 

It is believed that many Canadians are not participating in the colorectal cancer screening programs, which are available in every province except Quebec.  The Canadian Cancer Society recommends having your stool screened every two years if you are 50 to 74 years of age and not at high risk of colorectal cancer.  The screening tests can help detect cancer early and result in a more positive outcome.

Medical malpractice claims related to a delayed cancer diagnosis are complicated legal claims that require the help of lawyers with experience and expertise.  If you or a loved one have suffered as a result of a doctor’s failure to diagnose cancer, the lawyers at Cuming Gillespie Lawyers can help you evaluate your legal options and help you decide whether to pursue a claim.  Contact our office at 403-571-0555 or online today to book a free consultation.


Everything You Need to Know About Winter Tires

Driving in snow and cold weather is inevitable in Alberta.  However, many drivers believe that purchasing winter tires is an unnecessary expense.  It is not uncommon for drivers to assume that all-season tires work perfectly well for year-round driving.  Unfortunately, this is not the case given our harsh winters.

WHY SHOULD I PURCHASE WINTER TIRES?

If you live in an area of the country where it snows or temperatures dip below 7 degrees Celsius consistently, a set of winter ties will profoundly improve your safety during the cold winter months. 

Studies have shown that at temperatures below 7 degrees Celsius all-season tires stiffen up, resulting in less traction and a deterioration in braking distance and car handling.  This type of reaction to the cold can increase the chance of getting into an accident when driving in colder weather.

The main difference between winter and all-season tires is the rubber compound used to make them.  Winter tires are made of softer rubber that remains flexible when temperatures drop and they are able to maintain a grip on the road.  Winter tires also have deeper treads that allow for better traction on snow and ice.  The wider grooves of winter tires allow water to drain more easily and keep snow from clogging their tread.  Winter tires are also designed with stronger materials to ensure that they make better contact with the road and prevent sliding.

Testing completed by the reputable publication, Consumers Reports, consistently shows the benefits of winter tires in cold climates, such as Alberta.  According to tests, winter tires have been proven to stop 1.8 metres shorter on average than all-season tires when braking on a skating rink.  When testing on moderately-packed snow, winter tires travelled faster than their all-season counterparts.  Winter tires were found to take 19.5 metres to go from 10 to 30 kilometres an hour compared to 26 metres it took for all-season tires.

To summarize, the benefits of winter tires are as follows:

  • They help reduce braking distance on cold, wet, ice and snow-covered roads;
  • They stay flexible in cold temperatures and ensure grip and braking on wet roadways; and
  • They maximize vehicle handling, stability and braking.

All of the benefits of winter tires will increase the safety of driving during the cold, winter months and may decrease the likelihood of a motor vehicle accident.

IS IT MANDATORY TO INSTALL WINTER TIRES IN ALBERTA?

It is not mandatory to install winter tires in Alberta.  According to Transportation Minister, Ric McIver:

No I don’t believe that we are thinking about making snow tires mandatory, but I will remind Albertans, since you asked, that each of us has a responsibility to make our vehicles safe.  People that choose not to use snow tires also need to choose to drive within the capabilities of their vehicle that may not have snow tires.  Snow tires would actually give vehicles more capability that way.

According to a 2018 survey by the Alberta Motor Association, 68% of its members reported using winter tires and approximately half of its members would support regulations to make winter tires mandatory in Alberta.

In Quebec, winter tires are mandatory between December 1 to March 15, and have been mandatory since 2007.  This criterion applies to taxis, rental vehicles, motorized scooters and motorcycles as well.  A penalty for failing to use winter tires is a fine of between $200 and $300.  During the first two winters following regulations requiring winter tires to be installed on all vehicles, there was a 5% drop in motor vehicle accidents and a 3% drop in the number of deaths and serious injuries.

There are also specific highways in British Columbia that require drivers to install winter tires due to unpredictable weather conditions.  In Manitoba, you can receive a special loan to help purchase and install winter tires and in Ontario the use of winter tires is rewarded with lower vehicle insurance premiums. 

WHAT SHOULD I LOOK FOR WHEN PURCHASING WINTER TIRES?

The lawyers at Cuming & Gillespie Lawyers would like to provide the following tips to assist in purchasing winter tires.

  • Winter tires should be installed on your vehicle when the outside temperature drops consistently below 7.2 degrees Celsius and can be replaced with all-season tires when the temperature consistently rises above 7.2 degrees Celsius.
  • Use four matching winter tires for the best balance of handling and grip.
  • The mountain and snowflake symbol indicates that the tire meets an industry-defined level of snow traction.
  • Proper installation of winter tires is key to your safety.  Trusting a professional to install your winter tires will ensure that they are adjusted to your vehicle. 
  • Be aware that winter tires wear more quickly and their performance in winter will decline with use.  It is best to replace winter tires before they are worn out.
  • Winter tires should be stored in a cool, dry location in black storage bags to prevent the rubber from drying or cracking.

Cuming & Gillespie Lawyers hope that everyone enjoys a happy, healthy and safe Canadian winter, and know that we are available should anything go wrong.  If you or someone you love has suffered a serious personal injury or been involved in a motor vehicle accident resulting in personal injuries this winter, contact our experienced personal injury lawyers at our office online or at 403-571-0555 for a free consultation.  We look forward to helping you obtain the compensation that you deserve.


Paralyzed Humboldt Hockey Player Has Spinal Surgery in Thailand

Ryan Straschnitzki (“Ryan”), who was paralyzed in the Humboldt bus crash, has taken his first steps following ground-breaking surgery in Thailand.

In April 2018, Ryan was injured when a semi-truck ran a stop sign and hit a bus that was carrying him and his Saskatchewan junior hockey team.  Sixteen people died in the accident.

Ryan, now 20 years of age from Airdrie, Alberta, was one of 13 players injured in the bus accident.  He suffered paralysis from the chest down as a result of the crash. 

In early November 2019, doctors in Thailand implanted an epidural stimulator in his spine and then a week later injected stem cells above and below his injury to help reverse some of the damage.

WHAT IS EPIDURAL STIMULATION?

Epidural stimulation is a procedure involving the transmission of electrical impulses into the spine.  It involves a surgery that places electrodes on the surface of the dura (the tissue that wraps around the spinal cord).  The implanted device works like a remote control to send electrical currents to the patient’s spinal cord in an attempt to stimulate certain nerves and move limbs.  Electrodes are connected to a device called an implantable pulse generator (IPG) placed elsewhere in the body, often in the patient’s lower back.

Patients taking part in epidural stimulation also undergo hours of intense physical therapy.  According to Michelle Straschnitzki (“Michelle”), while in Thailand her son endured nerve mapping in the morning, physiotherapy in the afternoon and then returned to working with the implant.

The procedure costs up to $100,000 and is not covered by any public health care or insurance as it has not yet been approved by Health Canada.  Although the procedure is being performed in the United States, it is much cheaper in Thailand.

Ryan’s family had to fund his surgery and rehabilitation while in Thailand.  There was a lot of research, planning and fundraising required in order to proceed with the surgery so far away from home.  Ryan stated:

There were a lot of ups and downs.  Fundraising for this surgery, it isn’t cheap so thanks to all the people who helped out.  I wouldn’t be where I am today without them.

RYAN’S PROGRESS

Following five weeks in Thailand, Ryan has recently returned home for the holidays. 

Last month a video on Twitter showed Ryan strapped into a harness with physiotherapists slowly helping him walk with a walker type of apparatus.

Ryan was excited with his progress.  He stated:

It was incredible.  I mean the last time I walked beside my dad was before the accident and before I moved away.  So doing that again and just seeing the look in his eyes is motivating to me.

In another video posted to social media in early December 2019, Ryan was shown being able to move his left leg as he kicked a large, yellow ball.

Tom Straschnitzki (“Tom”), Ryan’s father, stated:

Every day was a big surprise on what he could do.  When he first kicked his leg there, it just brought me back to the day the boys walked on the bus, kind of flashed back to that.  Didn’t know they were actually going to make him walk a couple days after that.  It’s a start.

Ryan spoke about his experience in Thailand, stating:

The doctors and facility was amazing.  I got treated with a lot of respect.  I did a lot of physio and rehab and they did a really great job so I’m pretty grateful for that.  … They turned on the stimulator in my spine, it moved my leg and obviously it shocked me.  I didn’t necessarily feel it but it moved and I kind of had to work on that technique for the rest of the five weeks.  It was tough work, usually pretty gassed after each day.  A lot of work was put into it and just working on getting it better.

THE FUTURE OF SPINAL CORD RESEARCH IN CANADA

Although Ryan’s mother was unable to travel with her son to Thailand, she was excited to receive updates of his progress.  Michelle believes that changes need to be made to the health care system in Canada.  She stated:

North America is far behind.  They need to kick start this now, not five years from now, not 10 years from now.  Other people need these treatments and it shouldn’t be so prohibitive here.  Frankly, its disgusting.  Our Canadian system is not right.

Currently, the University of Alberta is conducting research involving mapping of the spinal cord, which is similar to the procedure that Ryan underwent in Thailand. 

Although Tom is doubtful that there will be changes to Canada’s health care system, he and his wife will continue to lobby the government for improvements.  Tom stated:

That study with U of A, it’s almost the exact same device.  Thailand has reached out, why don’t they all work together?  Let’s get positive and work together.

Ryan is hoping to make the Canadian sledge hockey team and compete in the Olympics.  We will continue to follow Ryan’s progress, U of A’s research and whether any changes will be made to fund epidural stimulation in Canada and will provide updates in this blog.

In the meantime, if you or a loved one have suffered a spinal cord injury as a result of someone else’s negligence, the experienced personal injury lawyers at Cuming & Gillespie Lawyers can help evaluate your specific case to determine whether you have a valid claim.  It is important that you call us promptly so we can help you understand your rights and the potential to recover compensation for your injuries.  Contact our office online or at 403-571-0555 for a free consultation.  We look forward to helping you obtain the compensation that you deserve.


Students Injured in School Bus Crash

At approximately 8:30 a.m. on December 2, 2019, a school bus heading to H.A. Kostash School was involved in a collision with a picker truck at the intersection of Highway 28 and Range Road 180, approximately five kilometres west of the town of Smoky Lake (115 kilometres northeast of Edmonton). 

An investigation into the accident by the RCMP revealed that the school bus, which was heading north on Range Road 180, stopped at a stop sign as it approached Highway 28 and then proceeded into the intersection before being hit by the picker truck, that was heading west on Highway 28.  Road and weather conditions were clear at the time of the crash.  No traffic or criminal charges are currently pending in relation to the accident.

When firefighters arrived at the scene, bystanders had already begun administering first aid to the victims of the accident.

According to Scott Franchuk, the regional fire chief for Smoky Lake County:

We ended up using the … jaws of life as well as a couple of saws to cut some of the seats and the roof away.  Due to their injuries, we had to take them out on a spine board.

The school bus was transporting students to H.A. Kotash School in Smoky Lake, Alberta.  At the time of the accident, there were 14 students, ranging in age between six and sixteen, and one driver on the bus.

INJURIES SUSTAINED IN THE ACCIDENT

Five of the fourteen students on the bus were taken to hospital in Edmonton in critical condition.  Three of them had to be flown by STARS air ambulance.

Another student and the bus driver sustained serious injuries and were transported by ground ambulance to Edmonton for further assessment.  One child went to Stollery Children’s Hospital in stable condition.

Brothers Jedd and Jacob Serben were both on the bus heading to school on the morning of the collision.  Jedd (12 years old) suffered serious injuries, including a broken femur, collapsed lung, cracked pelvis, fractured vertebra, internal organ lacerations, and required blood transfusions.  He underwent an operation on his broken leg while at Stollery Children’s Hospital in Edmonton and is doing quite well. 

Jacob (7 years old) suffered bruises and a minor concussion and was released from hospital not long after the collision.

Jedd and Jacob’s father, Jered Serben (“Serben”), is appealing for changes to his kids’ bus route.  He is concerned about the bus crossing major highways and is hoping that this can be minimized for students who are picked up from rural properties across Alberta.  Serben stated:

I think that is an important note out of this collision, is that highways are dangerous and especially crossing highways is dangerous.  We’re going to learn from this and try to make it safer for everybody.

According to police, the driver of the picker truck was transported to hospital with minor injuries.  The passenger in the picker truck did not suffer any injuries.

AN INDEPENDENT INVESTIGATION IS LAUNCHED

The two individuals in the picker truck at the time of the collision were employees of Sign Solutions, a Bonnyville, Alberta company.  The owners of Sign Solutions has publicized that they will be initiating their own internal investigation into the cause of the crash. 

The passenger of the picker truck was the only individual involved in the crash that was treated by EMS at the scene and released. 

According to a spokesperson for Sign Solutions, the picker truck was traveling westbound on Highway 28 to Nisku when it collided with the school bus.

WILL SEATBELTS ON SCHOOL BUSES BE IN OUR FUTURE?

Donna Noble (“Noble”), the Alberta mother of a girl who was killed in the spring of 2008 in a school bus crash, is appealing to the public regarding her desire for seatbelts to be installed on school buses.  Noble’s daughter was 17 years old when she was ejected from her school bus and killed instantly when the bus was hit by a gravel truck during thick fog conditions near Rimbey in central Alberta.

Noble stated:

Here, I understand that nobody was thrown from the bus, thankfully.  But if they had seatbelts, would their injuries have been not as bad?  Because you can’t tell me they didn’t fly around in the bus.

Alberta Transportation Minister, Ric McIver (“McIver”), has advised that school bus safety is under review.  He has been in consultations with the federal transportation minister and others from jurisdictions across Canada.

McIver voiced his concerns regarding installing seatbelts on school buses:

To retrofit seatbelts on a school bus, the research says it will make the school bus less safe instead of more.  Because the bus isn’t made for a seatbelt.

In response, Noble suggests that seatbelts only be installed on new buses.

In the U.S., several states have recently passed legislation requiring lap and shoulder seatbelts to be installed on school buses.  The National Transportation Safety Board, an independent United Stated federal government agency, has also advocated for new school buses to be fitted with seat belts.

Transport Canada is currently reviewing school bus safety and has announced that the results will be presented in 2020.  We have previously blogged about the topic of seatbelts on school buses and will continue to provide updates regarding this topic in this blog.

In the meantime, if you or a loved one have been injured in a bus accident, you likely have many questions.  Please contact the experienced personal injury lawyers at Cuming & Gillespie Lawyers to help answer all of your questions and determine whether you have a claim.  We offer free consultations for new clients.  Contact our office online or at 403-571-0555 to make an appointment.  We look forward to helping you obtain the compensation that you deserve.


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