Our firm gets a significant number of inquiries from individuals who are concerned about the medical treatment they themselves or a loved one has received, but are unsure whether they have a viable legal claim.
The following is intended to provide important information about medical malpractice claims that may help you understand and assess options: In order to succeed in a medical malpractice claim, you need to show that the care received by the doctor, health practitioner or hospital did not meet the standard of care expected and was therefore negligent. The standard of care expected is that of a reasonable doctor, nurse, etc. in the same position. Additionally, you need to show that the negligence caused you injury.
It is not uncommon for complications to occur in the medical field; in order to have a valid medical malpractice claim, you must be able to show that the complications resulted from the negligence. It is also important that individuals considering a medical malpractice claim understand the nature of these actions. Due to the risk of reputation involved, these claims are strongly defended by the insurers for the physicians, treatment providers, and hospitals. Proving the claim will almost always require expert evidence both on negligence and causation, as well as quantification of the damages suffered. In terms of timing, generally you have 2 years from the date or negligence/injury in which to file a legal claim.
This limitation differs for minors, such that they typically have 2 years from their 18th birthday. In some cases, the 2 year period will only start running from the date you knew or ought to have known that the negligence of a care provider caused you injury. To ensure your claim is commenced within the applicable limitation period, it is strongly recommended that you seek legal advice as soon as possible.
Craig Gillespie, Partner at Cuming & Gillespie Lawyers, has prepared a publication in association with Bottom Line Research for the Canadian Bar Association, Personal Injury Subsection. This paper summarizes and comments on all personal injury court cases in Albert that resulted in published decisions between June 2013 and June 2014. To download the document, click here.
Craig Gillespie, partner at Cuming & Gillespie Lawyers, has prepared a publication in association with Bottom Line Research for the Canadian Bar Association. This paper comments and summarizes personal injury court cases in Alberta between May 2012 and May 2013. To download the document, click here.
Craig Gillespie and Bottom Line Research have collaborated with a case commentary on a severe traumatic brain injury appeal. Clements v. Clements went before the Supreme Court of Canada in 2012. Click here to download the commentary
The Personal Injury Case Comments and Updates from the Canadian Bar Association for the Spring of 2012 (January through May) can be viewed and downloaded by clicking on this link.
Collection of Interest on Disbursements Schmolzer v. Higenbottam, 2009 ABQB 616. [B.E. Romaine] The 35 year old male Plaintiff suffered soft tissue injuries and a mild traumatic brain injury or concussion. The court awarded general damages of $75,000. The court was asked to consider whether the Plaintiff was entitled to interest on the disbursements incurred to prosecute his claim. The court refused to grant the plaintiff interest on disbursements holding:
I agree with the Defendants that the facts of Bourgoin v. Ouellette  N.B.J. No. 164 are distinguishable, and that in Mr. Schmolzer’s case, there is not a strong access to justice issue that would warrant an exceptional award of interest on disbursements. I therefore decline to grant interest on disbursements for expert fees.
It appears that the issue may still be argued depending on the particular circumstances of each case and whether there is an access to justice issue. Chronic Pain: Aggravation of an underlying “asymptomatic” injury. Do v. Sheffer, 2010 ABQB 86 [D. Lee] The male plaintiff was involved in collision in November 2002. The Plaintiff had a significant pre existing history of low back pain that included a surgical repair 10 months before the collision. The Plaintiff claimed for injuries to his thumb, neck pain, upper back pain and aggravation of low back pain. The court found that:
- the Plaintiff had history of intermittent back pain prior to the collision;
- the plaintiff had a satisfactory recovery from his surgery and was working full time at the time of the collision; and
- the plaintiff suffered a significant aggravation to his lower back and new injuries to his neck and shoulder.
The court held that trauma resulted in much of the Plaintiffs ongoing complaints. The court held that the collision and trauma was the cause of the plaintiff’s permanent disability. The court awarded $85,000 in general damages for continuing and permanent neck, shoulder and back injuries. As a side note, the court considered whether RRSP withdrawals should be compensated. The court refused to compensate for the withdrawal but seemed to cite lack of evidence as the reason. Lastly, notwithstanding the court finding a permanent disability, no award for past loss of housekeeping was granted and it was included the general damages. Personal Injury Refresher Adeshina et. al. [2010 ABQB 80] This case covers many issues relative to the practice of personal injury law including, standard of care, settlement offers, client updates, exchange of expert reports and advocacy. This case will the subject of a loss prevention seminar in June. Rule 217 Within the case the court stated that Rule 217 is to be considered in a broad fashion. In essence, when a plaintiff is served with a medical report under Rule 217 it triggers an obligation to disclose all “like reports”. This should be interpreted to include all medical reports, health care provider reports and even raw testing data. The distinction between a “physician” and “health care provider” is eliminated. If the report covers the plaintiffs injuries it is to be produced. Trial within a Trial The plaintiff sued all of his former lawyers for settling his claim for an improper amount. The court rejected his claims and dismissed his action. However, the court provisionally assessed the damages that were likely had his claim not been settled. The court held his best case was in the range of $620,000. If the court had concerns about his credibility it was likely that he would not beat the first Formal offer of $275,000. The plaintiff complained of chronic pain, mild head injury, mild hearing loss, TMJ injury, right shoulder injury with surgery and depression. The plaintiff alleged that the injuries forced him to quit his job. The court provisionally assessed general damages at $120,000 for the constellation of injuries. “Informal” Offers and Costs Mahe v. Boulianne, 2010 ABCA 32 In this case the plaintiff was awarded in excess in $500,000 at trial for a fall from a pole. The defendant appealed alleging that the allocation of fault was too low. The court of appeal agreed and reduced damages awarded at trial [2010 ABCA 32]. Between the end of trial and the start of the appeal, the defendant offered to pay the limit of the policy of insurance being $500,000. The offer was rejected. At the conclusion of the Appeal the claim was reduced to $375,000. The defendant sought double costs from time of the offer to the conclusion of the appeal. The $500,000 was made on a “without prejudice basis” and did not refer to any of the Rules dealing with Formal Offers. The Court of Appeal held that all offers, whether made without prejudice or not are privileged. However, the privilege is subject to an exception. There is an exception in that “without prejudice” offers can be referred to when the merits of the dispute have been decided. The court made it clear that “informal offers that arguably do not comply with the Rules can have an effect on costs”. This case reinforces the need to properly educate a client as to the nature of the offer and the upside and downside of accepting or rejecting it. Case Summaries Prepared byCraig G. Gillespie Cuming & Gillespie 403-571-0555 email@example.com
Mild Traumatic Brain Injury
Schmolzer v. Higenbottam, 2009 ABQB 522. [B.E. Romaine] The 35 year old male Plaintiff suffered soft tissue injuries and a mild traumatic brain injury or concussion. The soft tissue injuries resolved within 12 months. The court accepted the evidence of both plaintiff and defendant expert that the head injury was fairly classified as a mild traumatic brain injury or alternatively, a concussion. It should be noted that there was only a brief loss of consciousness, a GCS of 15 at the scene and no diagnosis of head injury made. The court awarded general damages of $75,000. Egglestone v. Cox, 2009 ABQB 584. [L.D. Wilkins] The male plaintiff was involved in a t-bone collision on July 1, 2004. The plaintiff suffered from a non displaced fractured vertebra in his neck resulting in an 8% impairment. The plaintiff also suffered soft tissue injuries to his neck, upper back and shoulders as well as headaches. These were acute for approximately 15 moths with ongoing residual chronic pain. It was also alleged that the plaintiff suffered a head injury. It was noted that there was likely no loss of consciousness and only minor issues with memory around the time of the Collision. The plaintiff was noted to have an underlying history of depression. The plaintiff was diagnosed by a neurologist and a number of IME’s as having a concussion and post-concussion syndrome. The court rejected the diagnosis and held:
For these reasons, I accept the opinions of Dr. King and Dr. Levin that the symptoms of neurological or psychological difficulties disclosed by the Plaintiff were not proven, on a balance of probabilities to have been caused by the accident. They would have occurred in any event “but for” the accident due to his untreated depressive illness or his adjustment disorders.
The court awarded general damages of $75,000. Park v. Jordan and Jordan ABQB No. 0801-00138 [Mr. Justice Mahoney]. The 41 year old male Plaintiff was a passenger in a pick-up truck that went over a 20 to 30-foot cliff into a riverbank. The Defendant was the driver. The Plaintiff suffered the following injuries: spiral fracture of his right humeral shaft, decreased sensation in his arm due to a crushed radial nerve, aggravation of a pre-existing back condition, and restricted range of motion in his shoulder. Two years after the incident, the Plaintiff continued to experience episodes of chronic pain in his cervical, upper thoracic and lumbar spine, for which no future relief was predicted. The Plaintiff sustained a permanent arm impairment of 10%, representing 6% whole person impairment. In determining damages for the soft tissue injuries, the Court held that the aggravated back injury and minor neck injury were at the low end of the moderate soft tissue injury. The damages would be worth $7,500 under the old regime and were therefore capped at $4,000 pursuant to the proper meaning of the Minor Injury Regulation, Alberta Regulation 123/2004. Mr. Justice Mahoney discussed how the cap should be applied to the determination of damages, indicating that:
The cap works on the basis that if general damages under the old regime would have been assessed at $4,001 based on decided law, then that amount of damages is reduced to $4,000. If general damages for a minor injury would have been assessed at $10,000, that amount is reduced to $4,000. If general damages are assessed any higher, they are all reduced to $4,000. All damages for minor injury above $4,000 are reduced to $4,000, but any claim that previously would have been worth $4,000 or more is not somehow assessed and prorated on the basis of how it measures against the worst possible minor injury.
The Court awarded the cap of $4,000 plus $75,000 in general damages, subject to a 10% deduction for contributory negligence on the basis that the Plaintiff failed to wear a seatbelt. Relevant Quoted Passage from Park v. Jordan and Jordan
…I am told some insurance companies take the position that the cap is similar to the cap in the trilogy cases. In other words, the $4,000 cap is a maximum that can be achieved for the most seriously injured person sustaining minor injuries as defined in the regulation. Therefore, so the argument goes, the $4,000 cap is not always awarded in each case. In reading the legislation I do not find any language that would have the cap work that way. The cap works on the basis that if general damages under the old regime would have been assessed at $4,001 based on decided law, then that amount of damages is reduced to $4,000. If general damages for a minor injury would have been assessed at $10,000, that amount is reduced to $4,000. If general damages are assessed any higher, they are all reduced to $4,000.
All damages for minor injury above $4,000 are reduced to $4,000, but any claim that previously would have been worth $4,000 or more is not somehow assessed and prorated on the basis of how it measures against the worst possible minor injury. If the legislature wanted that approach, it would have made its intention unambiguously clear.
Case Summaries Prepared by Craig G. Gillespie Cuming & Gillespie Lawyers 403-571-0555 firstname.lastname@example.org
Facial Lacerations and Fractured Arm Weatherall v. Scaba  ABQB 689. The male plaintiff suffered a fractured left forearm and facial lacerations in a high speed collision. The plaintiff also claimed to have suffered from neck injuries and left shoulder injuries both of which required surgery. The court completely dismissed the shoulder and neck injuries and held that they were pre-existing and not aggravated in any way by the Collision. The court awarded $32,000 in general damages. [E. Wilson] Unnecessary Surgery, Abdominal Pain and Fatigue Whitt v. Purkin, 2008 ABQB 6664. The plaintiff brought a medical negligence claim for an unnecessary surgery that left him with abdominal wall pain and fatigue that lasted for 2 years. The plaintiff also battled an infection following the procedure and was left with a scar. The court awarded $42,000 for what it found was 2 years of pain and suffering. The court also awarded 12 years of PJI finding that there was no clear evidence of intentional delay. [C.L. Kenny] Soft Tissue Injury 18 monthsLawson v. Le, 2008 ABQB 275. The female plaintiff was in a motor vehicle accident and suffered soft tissue injuries and an alleged Post Traumatic Stress Disorder. The court found the plaintiff was a malinger and not honest. The court rejected the claim for PTSD and found that the plaintiff suffered soft tissue injuries that were “not severe”. The injury occurred in February 2001 and the plaintiff was noted to be golfing in the spring of 2001 and was able to landscape in the summer of 2001. The court awarded $27,500 for soft tissue injuries that fully recovered within 18 months. [J.B. Veit] Chronic Pain Bearchell v. King  CarswellAlta 884. The female plaintiff was struck by a van while crossing the street. She claimed to suffer from chronic neck pain, shoulder pain, upper back pain and lower back pain that lasted over 6 years and was ongoing. The court found that the plaintiff was not credible and at times “faked” her injuries. The court found that the injuries should have resolved within six weeks to six months with some ongoing residual symptoms [Para 127]. The court rejected the claim that the chronic pain condition was caused by the collision. The court awarded $32,000 for the mild to moderate injury noting that the plaintiff was vulnerable and may have had more pain than the average person.
Case Summaries Prepared by Craig G. Gillespie Cuming & Gillespie Lawyers 403-571-0555 email@example.com
Pre-Judgment Interest: Date of injury not claim Willeson v. Calgary (City)  A.J. No. 564. The plaintiff sustained soft tissue injuries and a concussion. At trial, the judge awarded $45,000 for general damages. The judge held that pre-judgment interest was to be calculated from the time the Statement of Claim was served not the date of the accident. The Court of Appeal upheld the award of general damages. The Court went to hold that interest is to be calculated from the date of the accident as that is when the defendant was aware of a claim. Soft Tissue Injury: One Year Deo v. Wong,  B.C.J. No. 466 the plaintiff suffered soft tissue injuries in a collision. The court concluded that the soft tissue injuries to the plaintiff’s neck and back resolved within 1 year. The plaintiff also developed knee pain 6 months after the collision. At trial the court awarded $36,650 for all of the injuries including the knee. On appeal, the court held that the knee injury was not related and reduced the damages by $7,000. The British Columbia Court of Appeal supported and affirmed an award of $29,650 for a moderate soft tissue injury that resolved within one year. Chronic Pain O’Scolai v. Antrajenda  A.J. No. 495 the female plaintiff was rear ended in what the court called a minor collision. After 4 years, the plaintiff had not returned to work and was suffering from neck pain, shoulder pain, TMJ pain, weakness in her limbs, nausea and vomiting. After a period of time the plaintiff developed a severe abnormal posture in her neck. The court considered issues of causation and credibility. The court noted that the plaintiff had prior complaints of pain in her neck and shoulder that was noted to be severe at times. The court also concluded that the plaintiff deliberately exaggerated her symptoms. The court concluded that the plaintiff suffered from an aggravation of neck and shoulder pain, TMJ pain, nausea and vomiting. The court concluded that the plaintiff’s abnormal neck posture and weakness in her limbs were not caused by the collision. The court concluded that after the passing of 4 years the plaintiff did continue to have a degree of pain in her neck and jaw as well as reduced range of motion but that the severity was exaggerated. The court awarded $75,000 for general damages. [Justice Read] Case Summaries Prepared by Craig G. Gillespie Cuming & Gillespie Lawyers 403-571-0555 firstname.lastname@example.org
Mild to Moderate Soft Tissue Injuries: The Essential Collection Palpal-Latoc v. Berstad,  A.J. No. 240 the plaintiff suffered injuries which persisted for only seven months. At trial the jury awarded $2,500.00 for general damages. On Appeal, the Court held that $2,500.00 for a seven month injury was inordinately low and substituted an award of $12,000.00 for general damages [updated $13,500]. Sra v. Zhu, 2007 ABQB 426, the 54 year old male plaintiff was injured when he was tboned in a red light intersection collision. He suffered from lower back pain, neck pain and TMJ pain. The court was of the view that he had pre-existing injuries and was also in a subsequent accident. The court had concerns over the plaintiff’s credibility. The court held that his injuries resolved within three to four months. The court awarded $13,000.00 [updated $13,500] in general damages. Reimer v. Polgar,  A.J. No. 373 (Prov Ct.) the plaintiff suffered soft tissue injuries that were symptomatic for 11 months and were expected to continue on an intermittent basis for some time into the future. The court awarded general damages of $16,500 for the acute phase of less than 1 year plus an additional $3,000 for the ongoing intermittent pain for a total of $19,500.00 updated [$20,750]. Teichgraber v. Gallant,  A.J. No. 70 the plaintiff suffered soft tissue injuries in a very low impact collision. The court had concerns over the plaintiff=s credibility and found that many symptoms were exaggerated. The court was of the view that the plaintiff suffered a mild to moderate soft tissue injury to his neck and back which lasted six months and should have completely resolved after a short period of further intermittent pain. In this case the court assessed the general damages of at $17,000.00. [Updated $18,600]. Krawchuk v. Mellor,  A.J. No. 216 the female plaintiff was rear ended and suffered soft tissue injuries. For only two months she had acute pain and then had lingering intermittent pain for 15 more months. The court awarded $18,000.00 in general damages [updated $19,725] for the two month acute injury combined with the ongoing intermittent and occasional pain. Morrow v. Zhang, 2008 ABQB 98 the court considered the constitutionality of the Alberta Government “Cap” on soft tissue injuries. The court held that the cap was unconstitutional. In doing so the court assessed damages for two soft tissue injuries:
Pearl Morrow v. Jian Yue Zhang The 34 year old female plaintiff suffered soft tissue injuries to her neck and upper back but was noted to have a history neck and back pain that predated the Collision. She experienced some tingling and numbness for 6 months post Collision. She was diagnosed with having a “WAD II” injury and mild lumbar strain and attended for 21 physiotherapy treatments. She also attended for 13 chiropractic adjustments and several massage therapy treatments. It was noted that the plaintiff had injuries that were acute for approximately 10 months with gradual improvement over 18 months. Balancing the plaintiffs moderate soft tissue injuries and her underlying medical history the court awarded $20,000.00 in General Damages. Wittmann J. Brea Pederson v. Darin James Van Thournout et. al. The 32 year old female plaintiff was rear ended while yielding to pedestrians. The plaintiff suffered soft tissue injuries to her neck, shoulders, back and wrists. Her neck, shoulder and back pain resolved within one month of the Collision. She continued to have wrist pain on an ongoing intermittent basis. The Certified Examiner suggested that the Plaintiff suffered a Grade II soft tissue injury to her neck and back and an injury to her wrist. For soft tissue injuries and the Grade I wrist strain injury the Court awarded $15,000.00 in General Damages. Wittmann J.
Ly v. Gilbert, 2001 CarswellAlta 1524 (Q.B.) two plaintiffs, both 36, suffered soft tissue injuries to their neck and back. Both had pre-existing injuries that were relatively asymptomatic at the time of the accident. They had decreased range of motion and tenderness with pain. The injuries, for the most part, resolved after one year with some ongoing minimal stiffness. The court awarded $25,000.00 [updated $29,000] and $20,000.00 [updated $23,200] respectively. Dyck v. Wilkinson,  A.J. No. 1155 the female plaintiff suffered neck and lower back pain with some hip pain that lasted approximately 18 months. The Court found that she would also have some intermittent ongoing pain beyond that time but none of her normal activities were restricted. The plaintiff had underlying degenerative disc disease that the Court held was not worsened by the accident. The Court also refused to accept that the Plaintiff had suffered from any permanent or partial impairment. In this case, with soft tissue injuries lasting approximately 18 months, Justice Rooke awarded $30,000.00 in general damages [updated $32,500]. Case Summaries Prepared by Craig G. Gillespie Cuming & Gillespie Lawyers 403-571-0555 email@example.com