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Written on behalf of Cuming & Gillespie

ACTLA 2019 Seminar: Working with Experts in a Brain Injury Case

The proper analysis in cases involving traumatic brain injuries can mean a difference between a $30,000 claim and a $3-million claim. Accordingly, it is important to take control of these cases from beginning to end by choosing the right experts and preparing your clients to meet with them. Earlier this month James Cuming and Laura Comfort from our offices prepared a paper entitled “Working With Experts in a Brain Injury Case” for an ACTLA traumatic brain injury seminar, in which they shared their tips for effectively working with experts. To read the paper, please click here.


Spring Safety Tips

Spring has officially arrived, although it may not feel like it quite yet. As the winter thaw begins, there are more opportunities to get outside and enjoy the warmer weather.

Cuming & Gillespie Lawyers would like to remind everyone of the importance of exercising safe practices during the spring season with these tips from our personal injury legal team.

  1. Be Careful on the Road

With the arrival of spring, many drivers prematurely arrange to have their winter tires changed.  It is important to be aware that winter tires tend to lose their grip when outdoor temperatures climb above 7 degrees Celsius. Therefore, experts recommend that winter tires should be removed when day-time highs consistently hover around the 7 degree Celsius mark.  As late season snowfalls are common across Alberta, be sure to check your long range forecast before having your tires changed.

Flooding during the spring is not uncommon due to heavy rain, warming temperatures, and melting snow. The presence of water on the roads can unknowingly increase your vehicle’s speed and put you and your vehicle at risk of an accident.

Wet roads can be just as difficult to navigate as icy ones.  It is highly recommended that drivers increase the distance between their vehicle and the one in front of them and to drive slower during spring showers. Once water is sitting on the roadway, a hydroplane accident may occur at any time, especially if you are speeding.

Before you hit the road this spring, follow these tips to help you arrive safely:

  • Replace worn tires and/or properly inflate your tires;
  • Clean windows and replace worn wiper blades;
  • Check all lights, including headlights, taillights, back up lights, brake lights, parking lights and turn signals; and
  • Do not use cruise control during heavy rain.
  1. Be Aware of Pedestrians

Warmer weather means that more people will be venturing outside. It is important that motorists slow down and exercise extra caution in pedestrian corridors, playground zones, and school zones.

In Alberta, drivers owe a duty of care to pedestrians. Drivers are obligated to operate their vehicle lawfully, yield to pedestrians and consider how the weather conditions can affect the ability to operate their vehicle safely. Failing to follow these obligations may result in serious injury to a pedestrian and potential liability.

Given the popularity of electronic devices, it is especially important for motorists to be aware of pedestrians who are not paying attention to traffic and are looking down at their smart phones.

  1. Share the Road

As the weather continues to improve, more Alberta residents will be bicycling to get to work, for exercise, or for recreation. Bicycles share the same rights and responsibilities as motorized vehicles according to the Use of Highways and Rules of Road Regulation. Therefore, it is important that bicyclists and motorists be alert and attentive to keep everyone safe on our roadways.

There will also be more maintenance crews on roadways as the weather continues to improve. Always obey the flag person’s signal in construction zones and be prepared to slow down or stop.

  1. Do A Helmet Check

According to the Vehicle Equipment Regulation found in Alberta’s Traffic Safety Act, no person under the age of 18-years shall operate or ride as a passenger on a bicycle unless that person is properly wearing a safety helmet.

It is also important that children wear helmets when riding anything with wheels. Helmets should be worn when children are using scooters, skateboards, bicycles, tricycles or rollerblades to keep them safe.

A well-fitted helmet sits just above the eyebrows and the fastening straps create a V-shape that surrounds the ears and is fastened under the chin. Helmets should be properly certified and snug enough that they will not rock back and forth on the child’s head.

Despite the fact that the law does not require cyclists who are 18-years of age or older to wear a helmet, it is strongly encouraged that helmets be worn by cyclists of all ages to prevent brain injuries or severe damage to the skull.

  1. Be Aware of Wildlife

We are approaching the time of year when animals come out of hibernation and begin foraging for food. As we have previously noted in our blog, wildlife are active all day, but most wildlife motor vehicle accidents occur between 7:00 p.m. and 11:00 p.m.

Be aware of animal-crossing signs and be sure to reduce your speed and scan aggressively for wildlife. If you pass one animal, it is important to slow down as that usually means there are more to come as animals often move in groups.

If you are on the verge of striking an animal while driving, try to hit the animal at an angle that will reduce the chance of it coming through your windshield.

At Cuming & Gillespie Lawyers, we represent individuals who suffer from all types of serious personal injuries.  If you or a loved one have sustained an injury and would like more information about your legal options, please do not hesitate to contact the experienced and award winning personal injury lawyers at Cuming & Gillespie Lawyers. Please contact our office for a free case evaluation either online or by calling 403-571-0555. We look forward to helping you obtain the compensation you deserve.


Cuming & Gillespie Patient Experience Program

The Cuming & Gillespie Patient Experience Program is a partnership between the Department of Clinical Neurosciences and the Patient and Family Centred Care (PFCC) team. PFCC is a collaborative approach to health care, putting individuals and their families in an integral position in their care plans, ensuring that their care aligns with their priorities, preferences and values.

Following that philosophy, the Cuming & Gillespie Patient Experience Program supports patient involvement in care, collects patient feedback and also facilitates a volunteer-based peer mentorship program. Kasey Aiello, Patient Liaison to Neurosciences, knows all about the importance of peer support and shares her thoughts and own experiences in Calgary Health Trust’s most recent newsletter.


Donation To Calgary Health Trust Is Transforming Healthcare

For almost ten years, Cuming & Gillespie LLP has been actively involved in advancing health care in Calgary. From supporting the Department of Clinical Neurosciences Greatest Needs to our recent support of the Patient Experience Program, we are hoping to improve the care that patients receive each and every day. The Cuming & Gillespie Patient Experience Program enhances the care for stroke, brain injury and spinal cord injury patients at Foothills Medical Centre. We invite you to read more about our efforts in a report prepared for us by Calgary Health Trust.


Health Canada to Review the Safety of Breast Implants

Breast augmentation is the most popular cosmetic surgery worldwide with approximately 10 million women choosing breast implants in the last decade.

Health Canada recently announced that it is reviewing cancer risks associated with breast implants following an increase in reports in Canada.

Health Canada is expected to have completed its safety review in spring 2019 and has advised that it will take appropriate action and will provide information to healthcare providers and Canadians when the information is available.

WHAT HAPPENED?

Health Canada has confirmed that it has received 22 confirmed and 22 suspected cases of breast implant-associated anaplastic large cell lymphoma (BIA-ALCL) by Canadians.

BIA-ALCL is a serious, but rare, type of non-Hodgkin lymphoma (a cancer that affects the immune system). This type of lymphoma is found to develop many months or years following a breast implant procedure. BIA-ALCL typically presents as an accumulation of fluid between the implant and the surrounding tissue and can occur in both saline-filled and silicone gel-filled breast implants. The cause of BIA-ALCL is unknown at this time.

The announcement by Health Canada came one week following a letter sent by the U.S. Food and Drug Administration to the medical community warning of the risks of BIA-ALCL. According to the U.S. FDA, it has found 660 medical device reports possibly linking breast implants and BIA-ALCL cases throughout the world in the past decade. This includes nine deaths.

Following public hearings that were held in France and attended by members of the FDA, Health Canada, and other European regulators regarding the use and safety of breast implants, France announced a ban on textured breast implants due to their link to higher risks of cancer.

JOINT NEWS INVESTIGATION

CBC News in collaboration with Radio-Canada, Toronto Star and International Consortium of Investigative Journalists (based in Washington) examined tens of thousands of medical devices. They specifically reviewed how the devices are made, approved and monitored by regulators throughout the globe.

This joint investigation revealed underreported numbers of deaths and serious injuries linked to breast implants and other medical devices in various countries, including Canada.

The investigation also revealed, through undercover visits to three Toronto plastic surgeons, that patients are not being warned about the possible link between BIA-ALCL and textured breast implants.

QUEBEC HEALTH DEPARTMENT WARNINGS

Last week, the Quebec Health Department provided a warning of a potential cancer risk to women in Quebec who received textured breast implants since 1995. It is estimated that 15,000 women in Quebec were implanted with textured implants.

According to Marie-Claude Lacasse, spokeswoman for the Quebec Health Department, the risk of women who received texted breast implants for developing cancer is very low (one in 30,000).

Quebec women with textured implants are being advised to visit their healthcare providers if they have any symptoms associated with lymphoma, including pain, swelling, or a mass.

MONTREAL LAW FIRMS COMMENCE CLASS ACTION AGAINST BREAST IMPLANT MANUFACTURERS

Two Montreal law firms have filed a petition for a class-action lawsuit against five breast implant manufacturers, Allergan, Mentor Worldwide, Johnson & Johnson Inc., Ideal Implant Inc. and Clarion Medical Technologies. It is alleged that textured breast implants are linked to BIA-ALCL.

The lawsuit will be seeking reimbursement of the initial operation costs and the costs for an additional operation to replace the implants. They are also seeking compensation for the inconvenience associated with surgery, moral damages, and punitive damages. According to the lawsuit, each plaintiff will be seeking $57,000.

A judge must give permission in order to commence a class action lawsuit. A judge must be satisfied that the following requirements are met:

  • Other people have a similar problem;
  • A class action is better for solving the problem than many separate court cases;
  • The representative (the person who starts a class action) is qualified to represent the members of the class; and
  • The class action has a chance of succeeding.

If the judge is satisfied that all the requirements are met, he/she will grant permission to start the class action lawsuit.

WHAT SHOULD YOU DO IF YOU HAVE BREAST IMPLANTS?

Health Canada recommends that individuals that have breast implants should conduct regular breast self-exams and visit with their healthcare providers for periodic follow-up appointments. These individuals should also consult their healthcare providers if they experience any unusual changes to their breasts, including breast pain, swelling, or a lump.

We will continue to follow any developments regarding the safety of breast implants and the potential class action lawsuit in Quebec and will report information of this nature in this blog.

In the meantime, if you or a loved one have suffered injuries as a result of a medical device, you may suffer from pain, disability, and expenses. At Cuming & Gillespie Lawyers, we will review your case and consult with medical experts to provide you with an honest evaluation of a potential claim. We provide free consultations for new clients to review your case and discuss potential options. Contact our office today online or call 403-571-0555 to make an appointment to speak with our experienced personal injury lawyers. We look forward to helping you obtain the compensation that you deserve.


Tips to Help You Hire A Personal Injury Lawyer

If you or a loved one have been injured as a result of someone else’s negligence, you will have many decisions to make following the injury. One of those decisions will be to find a personal injury lawyer to represent you and help you determine what your legal options are and the potential compensation.

You will need to do some homework before making a decision on which personal injury lawyer to hire. In an effort to make the process of hiring a lawyer easier, Cuming & Gillespie Lawyers would like to provide you with the following tips for selecting a personal injury lawyer.

  1. Expertise and Knowledge Base

Lawyers who are general practitioners handle many different types of legal cases. They do not necessarily specialize in personal injury or medical malpractice matters. Both personal injury and medical malpractice are specialized areas of the law.

If you have suffered a serious personal injury or have been the victim of medical malpractice, you require a lawyer who handles these types of cases on a daily basis. You also require a lawyer who is up to date and following all of the developments in personal injury and medical malpractice law, and specifically the law in Alberta.

It is also important to choose a personal injury lawyer who is familiar with auto accident insurers, insurance adjusters, and defence lawyers and their law firms that are retained by insurance companies to defend claims. A personal injury lawyer with expertise will be highly familiar with these individuals and especially with local defence counsel and local judges who may be involved in your personal injury or medical malpractice case.

We urge you not to make the mistake of choosing a personal injury lawyer from ads you see on billboards, television, or on the back of buses alone. Ads of this nature often do not provide all of the information you require to help make an educated decision regarding who to represent you in your time of need. Furthermore, be wary of personal injury firm ads as some of these firms may not employ local lawyers.

  1. Financial and Staffing Resources

A lawsuit that involves serious or catastrophic injuries can be very expensive to litigate. Some cases require many medical specialties and the need to hire a number of doctors to act as expert witnesses to deal with issues in each specialty. Some cases may require accident reconstruction experts, trucking safety experts, economists, vocational experts or life care planners.

A lawyer who does not have the adequate resources to fund a case, may be a detriment to his/her client. The client may be pressured into taking an unsatisfactory settlement. It is therefore essential to hire a lawyer with the financial resources, including the ability to hire enough staff, to take a case to trial, if required.

At Cuming & Gillespie, our lawyers are equipped to handle legal cases from start to finish, even if it means taking the case to court. We will not transfer your legal case to another unfamiliar law firm, and we have the financial resources and the staff to ensure that your legal case is in good hands throughout the litigation process.

  1. Reputation & Credentials

It is important to hire a lawyer with a solid reputation, not only with former clients, but also with those in the insurance industry, other lawyers, and judges.

In order to get an idea of a lawyer’s reputation it is recommended that you ask for referrals from past clients. By speaking with former clients, you will learn more about the lawyer and his/her reputation in the community.

When researching a prospective lawyer, it is also important to learn about the lawyer’s experience, awards, certifications, results, and other credentials.

The lawyers at Cuming & Gillespie have been recognized by their peers and have won various awards, including Global Law Experts – Personal Injury Plaintiff Law Firm of the Year in Canada, Top Choice Award – Top Injury Law Firm in Calgary, CorporateINTL Global Award Winner – Personal Injury Plaintiff Law Firm of the Year in Canada, and they are listed as a leading firm and leading lawyers in Lexpert, amongst other awards and recognitions.

  1. Communication

Personal injury and medical malpractice cases take time to be resolved. You will likely be working with your personal injury lawyer and their team for a number of years. Therefore, it is important that you find a lawyer that you are comfortable with and one that listens to your concerns, communicates clearly, and treats you with respect.

At Cuming & Gillespie, you will meet with your personal injury lawyer, who is primarily responsible for handling your case, in person. You will also have the opportunity to work with other experienced lawyers at Cuming & Gillespie, as our firm takes a collaborative team approach to each case. It is our belief that multiple sets of eyes are better than one and our experienced lawyers work together to provide you with the best possible representation throughout your case. Our entire legal team will take the time to walk you through the litigation process and will communicate with you throughout your recovery.

SUGGESTED QUESTIONS TO ASK A POTENTIAL PERSONAL INJURY LAWYER

When you are ready to meet with a personal injury lawyer, be prepared with questions to help you make the right decision.

Here is a list of some of the questions you should ask during your initial consultation with a personal injury lawyer:

  • Does your firm specialize in personal injury and/or medical malpractice claims only?
  • How long have you been practicing in this area of the law?
  • What honors, awards and certifications have you received?
  • Do you have extensive personal injury trial experience?
  • Will you be my lawyer throughout the litigation process?
  • Have you had experience taking cases similar to mine to trial and have they been successful?
  • Are there any weaknesses with my claim?

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 specializes 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. Our lawyers also have a proven track record of successfully handling serious personal injury and medical malpractice claims.

At Cuming & Gillespie Lawyers we strive to provide our clients with excellent legal services and offer a free consultation. We 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.


Vehicle Owner Not Responsible for Accident Caused by Repair Shop Employee

The Supreme Court of Canada dismissed the Plaintiff’s application for leave to appeal to the highest court in Canada in the case of McIver v. McIntyre, thus upholding the findings of the Alberta Court of Appeal.

This case dealt with whether an injured party can recover damages against an owner of a vehicle that was involved in a motor vehicle accident when the owner was not present at the time of the collision or had any supervision over the individual who caused the accident.

WHAT HAPPENED?

On April 23, 2012, Carlyle Willis McIntyre (“McIntyre”) brought his vehicle into an auto repair shop, Calgary Propane, for repairs to the vehicle’s brakes. While working on the vehicle, a mechanic took the vehicle out for a test drive. A motor vehicle accident ensued and Brent McIver (“McIver”) was injured as a result of the accident.

Both McIver and the mechanic were driving in the course of employment and were covered under the Workers’ Compensation Act (“WCA”), as was Calgary Propane, at the time of the accident.

McIver sued McIntyre, the vehicle’s owner, for his injuries relying upon section 187 of the Traffic Safety Act (“TSA”), maintaining that McIntyre owned the vehicle and gave consent to the negligent employee to drive his vehicle. This section states that vehicle owners are vicariously liable when their vehicles are involved in a collision.

McIntyre defended the lawsuit and argued that he was not responsible for the accident as he had no control or power over the mechanic at the time of the accident.

McIver was barred from suing both Calgary Propane and the negligent employee due to section 23 of the WCA, which states that employees and employers cannot be sued for injuries to other workers that occur when the worker is involved in the course of his/her employment.

Although this statutory protection extends to the mechanic and the auto body shop, this exemption did not extend to McIntyre as the vehicle owner.

The question before the court was whether the court should apportion McIver’s loss between Calgary Propane (for the negligence of its employee, but is immune under WCA) and McIntyre (who is vicariously liable under the TSA as the owner of the vehicle), and if so, how much of the loss should be apportioned to these parties.

TRIAL COURT DECISION

The trial judge for the Alberta Court of Queen’s Bench held that liability could be apportioned between the vicariously liable owner of the vehicle, McIntyre, and the vicariously liable employer of the negligent employee driver, Calgary Propane.

Justice G.A. Campbell only held McIntyre responsible for the portion of McIver’s loss that he had caused, and concluded that the garage employer was 100% liable for the accident.

The trial judge relied upon the Supreme Court of Canada’s decision in Blackwater, which stood for the principle that he court should review the facts and determine the apportionment of liability based upon the respective level of supervision each vicariously liable party had over the negligent party.

In conclusion, the trial judge held that the garage had full control over the vehicle and McIntyre did not have control over the vehicle at the time of the accident. Furthermore, McIntyre was not involved in the decision regarding which mechanic drove his vehicle.

Justice Campbell concluded that McIntyre was 0% responsible for the supervisory duty over the mechanic and therefore 0% at fault for the accident. However, despite the fact that the trial judge found that the garage was 100% vicariously liable for the accident, the garage could not be sued for negligence given the statutory immunity in section 23 of the WCA. Thus, McIver could not recover compensation for his loss from either party.

COURT OF APPEAL DECISION

The trial judge’s decision was appealed to the Alberta Court of Appeal, which was asked to resolve the following two issues:

  • Did the trial judge err in holding Calgary Propane at fault for McIver’s loss and did Calgary Propane contribute to the loss for the purposes of section 23(2) of the WCA such that the loss must be apportioned between Calgary Propane and McIntyre according to their respective degrees of fault?
  • If not, did the trial judge err in apportioning 100% fault for McIver’s loss on Calgary Propane?

The Court of Appeal agreed with the trial judge’s decision to examine the amount of control each party had over the mechanic.

The Court of Appeal upheld the trial judge’s decision that 100% liability should be apportioned to Calgary Propane as the garage had full control over the vehicle and over who drove the vehicle at the time of the accident. The Court of Appeal also agreed that McIntyre had no control or power over who drove the vehicle and no contact with the mechanic who drove the vehicle. Thus, the Court of Appeal dismissed the appeal.

The Court of Appeal specifically stated that this decision will not apply to every situation when an owner leaves his/her vehicle at a garage for repairs and an employee is involved in an accident causing injury.

The trial judge’s decision on apportionment was sensitive to Mr. McIntyre’s and Calgary Propane’s degrees of supervision over, and contact with, the negligent driver. On different facts, other considerations and a different apportionment might well be appropriate. 

If you or a loved one have been injured in a motor vehicle accident, you may be entitled to compensation for the damages you have suffered. Please contact the award winning lawyers at Cuming & Gillespie Lawyers either online or by calling 403-571-0555. We can get started with a free case evaluation and are dedicated to providing you with the legal help you deserve.


Personal Injury Claims for Broken Bones

A broken bone or fracture is a medical condition where there is damage to the continuity of the bone from a high force impact or stress to the bone. Bones can bend, crack, splinter or even snap in two if they are hit hard enough or forced in the wrong direction.  This type of injury may be the result of a motor vehicle, motorcycle or bicycle accident, a sports-related injury or a recreational accident.

Fractures are a common injury resulting from car, bicycle, or motorcycle accidents due to the force exerted on the body during the collision and how easily the body can be thrown into contact with objects and debris.

Broken bones that are caused by others’ actions  (i.e. car accidents, nursing home falls or sports injuries) often involve a high force impact that results in a more severe crack. When the broken bone is caused by someone else’s negligence, the injured person can make a claim to recover money to compensate for damages from the injury.

TYPES OF BONE FRACTURES

There are several different types of bone fractures. The main categories of bone fractures include the following:

  • Complete fractures: In the case of a complete fracture, the bone usually breaks into two or more parts.
  • Incomplete fractures: In the case of an incomplete fracture, there is usually a crack in the bone, but there is no absolute breakage.
  • Compound fractures (also known as open fractures): In the case of a compound fracture, the bone breaks through the epidermal layer of skin.
  • Simple fractures (also known as closed fractures): In the case of a simple fracture, the bone breaks but does not wound the skin.
  • Comminuted fracture: In the case of a comminuted fracture, the bone is broken, splintered or crushed into several pieces.
  • Spiral fracture: In the case of a spiral fracture, a bone can be twisted apart.

SEVERITY OF A FRACTURE

Some fractures heal uneventfully, while others may require surgical fixation by an orthopaedic surgeon and months of rehabilitation.

There are several factors that may impact the severity of a fracture, including:

  • Location
  • Classification or alignment: The more pieces a bone has broken into, the more likely the victim will suffer long-term complications.
  • Wound type: An open fracture is often more complicated and carries the danger of infection and longer healing time.
  • Health and age of the victim: Young and old victims are at higher risk for fracture injuries in accidents. Older people tend to heal more slowly and are at risk of increased complications. Younger people are still growing and this makes the healing process more problematic and increases the risk of long-term complications.

In the case of multiple broken bones, these are usually combined with other serious soft tissue injuries and damage to the muscles, tendons, and discs. These types of combined injuries may complicate the rehabilitation process and lengthen the recovery time.

DIAGNOSIS AND TREATMENT OF BONE FRACTURES

Bone fractures are typically diagnosed with x-rays. Doctors may also use CT scans (computed tomography) and MRI scans (magnetic resonance imaging) to assist in their diagnosis.

Although broken bones can heal by themselves, it is important to ensure that the pieces of bone are lined up correctly. Some complicated fractures may require surgery or surgical traction.

Treatment may include the use of splints, braces, plaster cast, traction, surgically inserted metal rods or plates, and pain relief in the form of medication. After the bone has healed, it may be necessary to restore muscle strength and mobility to the affected area through the use of physical therapy.

LONG-TERM EFFECTS OF FRACTURES

Fractures do not usually have long-term symptoms, provided they receive the proper treatment in a timely manner. However, there are some fractures that can result in long-term impact on your body and your life depending on the health and age of the patient, the type of fracture, the amount of damage done to the bone and surrounding ligaments and muscles, and the location and severity of the injury.

These are some of the long-term effects of bone fractures:

  • Permanent reduced range of motion and loss of use;
  • Permanent or partial loss of use or disability;
  • Chronic pain;
  • Nerve damage;
  • Joint problems;
  • Anxiety and depression;
  • Loss of strength; and/or
  • Arthritis.

If you are left with any of these long-term effects they may affect your job, future employability, and the quality of your social, recreational, and family life.

Compensation for bone fracture injuries may include money for pain and suffering, loss of enjoyment of life, out-of-pocket expenses (including medical expenses, transportation costs etc.), cost of future care, past and future wage loss, and loss of earning capacity.

If you or a loved one have suffered a fracture 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.


B.C. Man Awarded $888,000 for Medication Error

A B.C. Supreme Court has awarded Jeffrey Baglot (“Baglot”), now 33 years old, $888,000 in damages in his lawsuit against a doctor who prescribed him with medication that has left him “totally disabled”.

WHAT HAPPENED?

Baglot was admitted to Abbotsford Regional Hospital for stomach pain related to his Crohn’s disease on July 22, 2011.

Crohn’s disease is a chronic inflammatory disease of the digestive tract, which often affects the small intestine and colon. Symptoms of diarrhea, abdominal pain, fatigue, rectal bleeding, and weight loss are often associated with Crohn’s disease. Unfortunately, there is no cure. However, through the use of drugs, nutrition therapy, lifestyle changes, and surgery, symptoms can be reduced.

Dr. Fourie, the doctor primarily responsible for his treatment at hospital, prescribed him ketorolac, a non-steroidal anti-inflammatory drug used as a short-term pain reliever, also known as Toradol. Information available online advises that patients are not to take ketorolac if they have pre-existing stomach or intestinal issues.

After Baglot began taking ketorolac he started “spiraling down” and was even unable to walk. It was determined that he developed an ulcer at the beginning of his small intestine, which ultimately ruptured and required surgical repair.  There was no evidence of a perforated ulcer or abscess on his CT scan on July 29, 2011.

On August 1, 2011, at Baglot’s request, he was transferred to Royal Columbian Hospital in New Westminster , where doctors found that he had a perforated ulcer on his small intestine. He underwent surgery and then started to bleed internally. He was transferred to the intensive care unit, required multiple blood transfusions and was in and out of consciousness. Balgot testified that he thought he was going to die.

It was later concluded that Baglot’s ulcer was caused by the ketorolac.

Baglot was finally discharged from hospital 53 days after he was originally admitted to Abbotsford Regional.

WHAT WAS BAGLOT CLAIMING AT TRIAL?

Baglot testified in court that as a result of the prescribing error his life has changed entirely. He claimed that he suffers from “debilitating pain” and depends on his mother to help him with his activities of daily living. He also suffers from post-traumatic stress disorder, depression, chronic pain, increased fatigue and an exacerbation of his health problems. He continues to take prescribed opioids to cope with his pain and suffers from withdrawal symptoms since his dosage has been lowered.

Before the trial began, Dr. Fourie admitted that she made the prescription error. She also accepted that she owed Baglot a duty of care and failed him as his doctor. The central issue before the court was whether Dr. Fourie was responsible for Baglot’s lasting injuries.

Justice Diane MacDonald gave her ruling and stated:

Today Mr. Baglot is totally disabled, homebound and isolated. Without the prescribing error, I find that it is more likely than not that Mr. Baglot would have continued to have Crohn’s disease but that he would have worked and been a contributing member of society.

He is not the same man he was before his hospitalizations. …

He is largely in pain, dependent on opioids, depressed and struggles to keep on weight. …

He has lost friends, is isolated, has problems managing his time, and cannot deal with change.

 WHAT WAS BAGLOT AWARDED BY THE COURT?

Justice MacDonald was satisfied that Dr. Fourie was responsible for all of Baglot’s injuries and emotional trauma, with the exception of his pre-existing Crohn’s disease.

Justice MacDonald awarded Baglot a total of $888,000 in damages, in addition to his costs and disbursements. This award was broken down as follows:

  • $146,000 for non-pecuniary damages (damages not readily quantified and usually referred to as compensation for pain and suffering);
  • $63,000 for past wage loss;
  • $440,000 for loss of future earning capacity;
  • $54,000 in trust for his mother; and
  • $185,000 for costs of future care.

In determining Mr. Baglot’s non-pecuniary damages, Justice MacDonald considered the following factors that were set out in the case of Stapley v. Hejslet, such as:

  • age of the plaintiff;
  • nature of the injury;
  • severity and duration of pain;
  • disability;
  • emotional suffering;
  • loss or impairment of life;
  • impairment of family, marital and social relationships;
  • impairment of physical and mental abilities;
  • loss of lifestyle; and
  • the plaintiff’s stoicism.

Baglot’s counsel argued that he should be awarded non-pecuniary damages in the range of $265,000, whereas Dr. Fourie’s counsel argued that damages in the range of $40,000 to $60,000 should be considered.

Based upon the testimony at trial, Justice MacDonald found that the following were consequences of his injury:

  • he was unable to continue his athletic pursuits;
  • he lives with chronic pain and psychological issues;
  • his relationships have been negatively affected by the injury;
  • he is in constant pain, housebound, and isolated;
  • he cannot return to work; and
  • he is not the same man that he was prior to the hospitalization.

Justice MacDonald concluded that an appropriate award for non-pecuniary damages was $265,000 given the circumstances. This figure was reduced by 30% to reflect the “trajectory of Mr. Baglot’s degenerative condition”; by 10% to reflect Baglot’s failure to mitigate; and by 5% to reflect the affects of the intervening 2017 motor vehicle accident which aggravates his arthritis and causes increased headaches. Therefore, the final figure for non-pecuniary damages awarded was $146,000.

At Cuming & Gillespie Lawyers, we represent individuals who suffer from all types of serious personal injuries. If you or a loved one have sustained an injury and would like more information about your legal options, we can help. For a free initial consultation with one of Calgary’s award winning personal injury lawyers, please contact our office online or at 403-571-0555 today.


Calgary Families File Lawsuits Against Nursing Homes

Revera Inc. (“Revera”), an Ontario-based company, is facing 85 lawsuits throughout Canada alleging that it breached its duty of care to its elderly residents. It is estimated that Revera is facing $150 million to $175 million in damages and court costs.

Revera is a privately owned Canadian company which owns or operates more than 500 nursing and retirement properties across Canada, the U.K. and the U.S. It offers senior apartments, independent living, assisted living, memory care, and long term care.

Last month, four Calgary families filed claims with the Alberta Court of Queen’s Bench. The Court documents have not yet been served on Revera and none of the allegations have been proven in court.

WHAT HAPPENED?

Isabel Nelson

Leslie Armstrong, daughter of Isabel Nelson (“Nelson”), claims that her mother’s electric wheelchair was “confiscated” after she bumped into a glass door and broke it while living at the Revera facility in Okotoks, Alberta. She felt trapped and became reliant on staff to move her around, even when she needed to use the washroom. It is alleged that Nelson was treated this was as punishment for damaging the door, despite the fact that her family had paid for the repairs.

Nelson spent almost 2 ½ years at the facility and was regularly threatened with eviction. She died at the age of 85 in February 2018, two years after she was evicted from the facility.

Nelson’s family alleges that she did not receive her medication on time, was given the wrong medication, or not given her medication at all. The lawsuit describes an incident where Nelson requested Ventolin medication for an “asthmatic episode”, but received no response when she rang a bell in her room requesting assistance. During this medical episode, she made her way to the front desk and it is alleged that the nurse did not know what Ventolin was. Nelson was “afraid for her life given the delay in getting the Ventolin”. The family is suing for at least $500,000 in damages.

Nadezda Marenich

The family of Nadezda Marenich (“Marenich”) alleges that negligence and deficiencies in care by Revera’s nursing home in McKenzie Towne caused or materially contributed to Marenich’s death.

It is alleged that Marenich suffered falls resulting in injuries as she was not properly cared for during her eight year residency. It is also alleged that she developed a urinary tract infection, she was physically assaulted by staff and/or other residents, she was not sufficiently fed or hydrated, and was forced to live in unsanitary conditions.

Mary Gerber

The family of Mary Gerber (“Gerber”) alleges that Gerber suffered pain and suffering during the 10 years that she was a resident at the Bow-Crest facility. It is alleged that Gerber had open sores and wounds on her legs that were not appropriately treated. Gerber’s lawsuit also contains allegations that her physicians breached their duty of care to her.

Emmet De Grood

The famiy of Emmet De Grood (“De Grood”) has also commenced a lawsuit against Revera. De Grood was a resident at the Bow-Crest facility and alleges that De Grood suffered a UTI that went undetected causing him to require an extended period of hospitalization.

De Grood also alleges that he was bullied and harassed by management and the staff, he was not appropriately fed or hydrated, and he suffered multiple falls which caused serious injuries.

HOW WILL THE LAWSUITS PROCEED?

An application for class action status was discontinued last year and the families have decided to each file and serve separate lawsuits against Revera. They will proceed under mass tort status, which means the cases will be dealt with as a group.

Melissa Miller (“Miller”), a lawyer handling the families’ lawsuit, stated:

It’s an unfortunate reality that there doesn’t seem to be enough staff in these homes for the level of care that people need.

According to Miller, there are lawsuits that have not yet been filed and this may increase the total lawsuits to be filed against Revera to 120. Each lawsuit will be seeking between $1.75 million to $3 million in damages and court costs.

SIMILAR LAWSUITS FILED IN MANITOBA

Five lawsuits have been filed against Revera in the Court of Queen’s Bench in Winnipeg. Each of these lawsuits allege that “the negligence and deficiencies in care by the defendants caused or materially contributed to the plaintiff’s death”.

These lawsuits also make allegations against five unnamed doctors and 10 unnamed nurses and personal support workers employed or contracted by Revera alleging breaches of their duty of care to the plaintiffs.

None of the allegations have been proven in court.

Cuming & Gillespie Lawyers will continue to follow any developments regarding the lawsuits commenced against Revera and will provide updates in this blog. Please see our recent blog regarding nursing home abuse or neglect for more information regarding this topic.

At Cuming & Gillespie Lawyers we are committed to helping you and your loved ones. If a member of your family has suffered serious injury or significant harm due to nursing home abuse or neglect, Cuming & Gillespie Lawyers may be able to help you obtain financial compensation. Contact our knowledgeable and experienced personal injury lawyers at 403-571-0555 or online to learn what options are available.


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