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Cuming & Gillespie's COVID-19 Statement - Read Post

Written on behalf of Cuming & Gillespie

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.


Staying Safe This Holiday Season

We are quickly approaching the “most wonderful time of the year”.  The holidays are often a busy and joyous time, but they can also bring unexpected dangers.  Knowing how to manage and prepare for the possibility of dangers will help everyone to have a festive holiday season.

HOLIDAY TREES

When purchasing a real tree it is important to ensure that it is fresh with green needles that do not fall off when touched.  It is important to water the tree daily. 

Place the tree in an area that is free from high traffic areas, doorways and not blocking an exit.  Be sure that your tree is at least three feet away from any heat source, such as heating vents, radiators, stoves, fireplaces and burning candles.   Also, ensure that the tree is well-secured in a sturdy stand.  

When it comes to decorating your holiday tree, it is important to keep sharp or breakable tree ornaments or those with small removable parts outside of the reach of young children.  Also, never use lit candles to decorate the tree. 

HOLIDAY DECORATIONS

When it comes to decorating, it is important to use lights that have been marked with an accredited certification agency such as CSA, cUL or cETL.  Be sure to only use lights that are marked for indoor use inside your home.  Always read the package instructions and remember not to exceed the recommended wattage.

Before you begin decorating, it is important to check the light strings and extension cords and discard those that are frayed or have exposed wires, loose connections or broken light sockets.

HOME FIRE PREVENTION

During the holidays, many enjoy using the fireplace or lighting candles to warm up your home or enhance the atmosphere.  However, inattentiveness to these items can lead to disastrous consequences. 

Be sure to never leave a fire unattended.  Always have water close by in case a spark escapes the fireplace and starts to smolder on a chair, curtain or rug.  It is also important to extinguish lit candles before going to bed or leaving the house and never place lit candles near flammable items such as curtains or carpeting. 

Throughout the year it is always important to check your smoke alarms to ensure that they are working properly and change the batteries on a regular basis. 

DRIVING SAFETY

Driving during the holiday season can be more dangerous when you account for the wintery weather, parties that serve alcohol and seasonal stress. 

If you are travelling long distances to vacation or enjoy your holidays with loved ones, it is a good idea to prepare ahead of time in order to stay safe while driving.  Planning your route and checking to see if there is any construction or traffic can help you avoid becoming frustrated and keep you safe while driving. 

It is also important to ensure that your car has had a check-up before heading out on a holiday road trip.  Be sure that your spare tire and jack are in proper working order and arrange for an oil change if your car is due for one before you head out on the road. 

Always prepare for inclement weather.  Rain, snow, sleet or black ice are all possible conditions that can occur during this time of year and make driving more difficult.  Be prepared with a roadside emergency kit (including a first aid kit, warm blankets, road flares, jumper cables, oil, coolant, a flashlight with extra batteries).  Drive slowly and obey all of the rules of the road.

Most importantly, do not drink and drive.  Alcohol slows down reaction time, affects your vision and concentration, and hinders your ability to make rational decisions.  Avoid alcoholic drinks while at parties or plan ahead by using a designated driver or a ride sharing app.

HOSTING GUESTS

When hosting guests this holiday season, planning and preparation ensure that your guests are both comfortable and safe. 

To reduce the risk of a slip and fall accident, always ensure that your walkways inside your home are free of holiday lights and decorations.  If a guest trips on an electrical cord, you may be legally responsible for any injuries that result.  Always take appropriate measures to ensure that guests entering your home are safe.  It is equally as important to ensure that the entrance to your home is well lit, clear of ice and snow, and free of any tripping hazards.

Be especially careful if small children are visiting during the holiday season.  Young children are likely to put anything they may find in their mouths.  Choking is one of the leading causes of toy-related deaths.  Always keep an eye on young children and remove any small items that are lying around to ensure a safe environment for infants and toddlers.

When it comes to serving alcohol, it is important to ensure that your guests who have been drinking do not get behind the wheel of a car.  Encourage your guests to designate a driver before they arrive or provide an alternate mode of transportation.  It is also helpful to have non-alcoholic options readily available for your guests.  As a social host, you may be held liable for injuries sustained by impaired guests who are involved in a motor vehicle collision while driving home from your party.  Please see our blog regarding social host liability.

Cuming & Gillespie Lawyers would like to wish you a very happy and safe holiday season.  We know that even if you have taken every precaution to avoid a mishap, accidents can still occur.  If you or someone you love suffers an injury due to the fault of someone else over the holidays, we are here to help.  Please contact our office online or at 403-571-0555 to discuss your legal options.  Our award winning personal injury lawyers look forward to helping you obtain the compensation you deserve.


Ski Helmets Are Encouraged, But New Study Shows Limitations

It’s that time of year again when both the snow and cold temperatures offer many opportunities to take to the slopes for skiing and snowboarding throughout Alberta.  Unfortunately, many individuals are seriously injured on the slopes and trails while skiing or snowboarding. 

The most common causes of injuries that occur when hitting the slopes are as a result of collisions with other skiers or snowboarders, falls, traveling too quickly and losing control, being tired, using equipment that doesn’t fit or work correctly, and collisions with objects such as fencing or trees.  Serious injuries that can occur include traumatic brain injury, spinal cord injuries, broken bones and severe lacerations.  When an accident on the ski hills is caused by negligence or carelessness of another individual or party, you could be entitled to make a claim for compensation. 

SKI HELMETS ARE RECOMMENDED SAFETY GEAR

The Canadian Paediatric Society recommends that both children and families wear certified ski helmets while skiing and snowboarding to lower the risk of head injuries.  Properly fitted ski helmets help protect your brain by absorbing the force from a crash or a fall.  Ski helmets have been found to reduce head injuries and facial and head lacerations.

There are other advantages to wearing a helmet.  Helmets help block the sun from your eyes and keep snow out of your face.  Helmets also help keep your head warm and can help hold your goggles in place.

It is essential that the helmet you wear is properly fitted.  The helmet should sit on your head evenly and not tilt from side to side when the strap is fastened.  The helmet should fit snugly as well. 

STUDY SHOWS SKI HELMETS HAVE LIMITATIONS

Dr. Eleah Porter and Dr. Andrew Crockett, surgeons from the Dartmouth-Hitchcock Medical Center, studied more than 700 injured skiers and snowboarders who were brought into their medical facility over eight years from 35 ski areas in New Hampshire and Vermont.  The doctors found that even those wearing helmets could suffer severe injuries, including internal bleeding in their head.

Dr. Porter, the study’s lead author, stated the following regarding helmets:

They protect against things that are completely preventable. … We know they protect against some things.  They protect you against cracking open your skull, they protect your neck from injuries, but they may not protect you from having bleeds on your head, and that’s an important thing to consider. … Just like a seatbelt, helmets have limitations.

Helmets can provide a buffer against skull fractures and certain spine injuries.  Physicians recommend that skiers and snowboarders wear helmets, but they do not make them invincible.

The study had two main conclusions that all skiers and snowboarders should be aware of.  It found that wearing a helmet does not mean that you shouldn’t be evaluated by a physician after a bad bump or crash.  Secondly, the study found that all skiers and riders should know their limits.  Skiers and riders should only attempt to travel on terrain that meets their skill level and it is imperative to control your speed.

Dr. Porter advised:

You should wear a helmet, but you should also ski within your ability.  You have to ski safely.  You have to ski within your abilities.

Dr. Crockett noted:

Our bottom line is that it is equally as important to wear a helmet as it is to practice safe skiing.  A helmet should not dissuade a trauma evaluation and some impact forces go beyond that which a helmet can provide protection.

TIPS TO AVOID INJURIES ON THE SLOPES

Cuming & Gillespie Lawyers encourage everyone to enjoy the winter season and the opportunity to ski or snowboard and would like to offer a few precautions to minimize the risk of injury while on the ski hills.

  1. Take a ski or snowboard lesson and do not attempt to ski or ride down slopes or trails that exceed your skill level.
  2. Always wear a helmet to reduce the risk or severity of a head injury.
  3. Inspect the bindings on skis and snowboards and replace any that show signs of wear or appear defective.
  4. Dress for the weather conditions to avoid frostbite.
  5. Always be aware of your surroundings and the location of hazards, including other skiers or riders.
  6. You should look uphill and yield to others before proceeding downhill or merging into a trail.
  7. Only ski in designated areas and do not enter closed trails or areas marked off as closed.
  8. Refrain from skiing or riding while under the influence as drug and alcohol use can slow your reaction time, diminish your co-ordination, and cloud your judgment.
  9. Take a rest when you begin to feel tired or fatigued to avoid injury.

If you or a loved one have suffered a serious injury while skiing or snowboarding through no fault of your own, the lawyers at Cuming & Gillespie Lawyers can help.   To receive more information about your legal options, please contact the award winning personal injury lawyers at Cuming & Gillespie Lawyers online or at 403-571-0555.  We look forward to helping you obtain the compensation you deserve.


New Report Finds Canada is Lagging Behind in Patient Safety

A new published report has found that Canada is falling behind its international counterparts in rates of avoidable complications following surgery and other patient safety indicators. 

The Canadian Institute for Health Information (“CIHI”), a non-profit organization committed to providing health information to Canadians, released a report last week entitled “Benchmarking Canada’s Health Care Systems:  International Comparisons, 2019”.  Canada’s health system was compared to 36 member countries of the Organisation for Economic Co-operation and Development (“OECD”), including Australia, Belgium, France, Germany, Israel, Japan, Mexico, Spain and the United States, amongst others. 

Tracy Johnson, Director of Health System Analysis and Emerging Issues at the CIHI, stated:

While Canada’s health care systems are often admired, the international comparisons show that there is room for improvement.  We are lagging behind OECD countries in areas of patient safety.  These are serious issues that are often preventable, and improving our performance in these areas will result in safer care for patients.

WHAT ARE CANADA’S STRENGTHS REGARDING PATIENT SAFETY?

Canada was found to perform well at documenting, reporting and acting upon patient safety events.

In Canada, survival rates for breast and colon cancer are some of the highest in the world.  Statistics have shown that 88% of women with breast cancer are surviving over 5 years and 67% of Canadians with colon cancer are surviving over 5 years. 

Improvements were also noted in reducing in-hospital deaths caused by heart attacks and stroke.  Rates in this area over the past 5 years were found to have declined by 20%. 

Canadian seniors were also receiving flu vaccines at a greater rate than the average of other countries.  Research found that 61% of Canadian seniors were receiving the flu vaccine compared to the OECD countries average of 45% of seniors.

WHERE IS CANADA FALLING BEHIND IN TERMS OF PATIENT SAFETY?

The main finding of the CIHI’s recent report was that Canada continues to lag behind other countries on multiple measures of patient safety.

According to the report, Canadian women are two times more likely to experience tears during vaginal childbirth and these numbers are not improving.

Disturbingly, it was also found that the rates of avoidable complications after surgery were 90% higher in Canada than the OECD countries average.  For example, the development of lung clots following hip or knee surgery. 

One of the most discouraging findings was that over the past two years there were 553 foreign bodies (i.e. sponges and instruments) left behind in patients following surgery in Canada.  This was an increase in 14% over the last five years.  This data is based upon information provided by hospitals in only nine provinces. 

Tracy Johnson noted that CIHI does not have any information regarding how or why these types of mistakes during surgeries were made.  Ms. Johnson also noted that several comparable countries, such as the United States, the United Kingdom and Australia, do not report on cases in their country where foreign objects have been left behind following surgery.  She stated:

Some surgeries are long and complicated and if they have to change people during that surgery because some surgeries last a long time, it may be that things get missed because of that, it may be that they don’t have protocols in place – surgical checklists are one of the things that are utilized to try and prevent a number of things happening. 

What we know is patient safety is complicated.  People don’t go to work to make mistakes but these things happen.

Linda Hughes, a co-chair of Patients for Patient Safety Canada, responded to this report with this statement:

These statistics only show part of the story.  Each of these numbers represents a person, a family, a life.  Regardless of how we do in comparison to other nations, we must accept that we face a crisis of preventable harm in Canada’s health care system and that we must act together to ensure that every patient is safe.

MEDICAL MALPRACTICE LAWYERS CAN HELP

If you or a loved one have suffered serious permanent injuries as a result of a negligent act or omission by a health care professional or injuries while undergoing a procedure in a hospital, the experienced lawyers at Cuming & Gillespie Lawyers can help.

Deciding whether to proceed with a medical malpractice lawsuit is a difficult decision requiring the weighing of potential costs and financial risks against potential awards.  This is a decision that should be made following careful consideration.

The first step in this process is choosing the right personal injury lawyer to help guide you through the complicated, time-consuming and risky litigation procedure. 

A law firm that specializes in medical malpractice law will be able to contact a team of medical experts to help you present your claim and can make a difference in the eventual outcome of your case.  At Cuming & Gillespie Lawyers, we can assemble a team of legal and medical experts to ensure that you put forth the strongest case and receive the compensation that you are entitled to.  The award winning lawyers at Cuming & Gillespie have over 20 years experience and 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.


Cuming & Gillespie a Proud Sponsor of Calgary Legal Guidance’s 2019 Advice-a-Thon

Cuming & Gillespie was a proud sponsor of Calgary Legal Guidance’s 2019 Advice-a-Thon, which took place on September 28th at Calgary City Hall. This annual fundraising event enables volunteer lawyers and staff to provide up to thirty minutes of free legal help to the general public for an entire day. Participating lawyers also collect fundraising pledges for their time in support of the CLG and the invaluable services they provide to disadvantaged Calgarians.

This year’s event was a great success. 51 lawyers and articling students volunteered, as well as 21 administrative staff, and together they were able to provide 84 individuals with free legal help. In total, volunteers donated nearly 200 hours of their time towards this wonderful cause.


Appeal Court Upholds $7M Award for Girl Who Jumped from a Moving Bus

The Ontario Court of Appeal has upheld the trial court decision that awarded Sarah Little (“Sarah”) $7 million after suffering a brain injury when she jumped from a rear emergency exit on a bus.

WHAT HAPPENED?

On the last day of grade 8 in June 2011, Sarah Little, of Barrie, Ontario, was on her way home from school on the school bus.  The dangerous practice of jumping from moving buses had become a tradition for 8th graders at Sarah’s school.  Despite being aware of the danger and being warned by her sister and other students, Sarah, 13 years old at the time, jumped from the back of the moving bus, somersaulted and smashed her head on the pavement.

As a result of her actions, Sarah suffered multiple skull fractures.  Sarah was left with impairments that doctors expect will make her unable to work or live independently for the rest of her life. 

WHAT HAPPENED AT THE TRIAL?

Sarah and her family sued the bus company, which operates as Landmark Bus Lines.

At the trial, evidence was presented to the court that the bus driver had observed children jumping out of the back door for several years and had done nothing to stop it.  The school principal testified that she was unaware of this dangerous tradition and had she known about it she would have put an immediate end to this practice. 

The jury found that the bus company did not follow its own policy and failed to inform schools about previous incidents of students jumping off of moving buses on the last day of school.

In Canada, employers can be held responsible for the negligence of their employees.  In this case, the jury found that the bus company was liable for the following actions taken by its bus driver:

  • Failing to follow clear expectations set out in the company handbook about reporting unsafe behaviour to the school;
  • Failing to report re-occurring unsafe acts; and
  • Failing to fulfill his duty to keep children safe.

After a four week trial, the jury concluded that Sarah was 25% responsible for her own injuries and the bus company was responsible for the rest.  The jury reduced Sarah’s $9 million award for damages to $7 million in damages.  This is one of the largest jury awards for damages in Ontario.

WHAT HAPPENED AT THE APPEAL?

The bus company appealed the trial court decision and asked the Ontario Court of Appeal to order a new trial or reduce the damages award.  The bus company’s position was that the trial judge made legal errors in instructing the jurors on causation and informing them that mitigation was unavailable.  Furthermore, the bus company argued that the trial judge erred in failing to reduce Sarah’s damages by the amount of statutory accident benefits that she received prior to trial. 

The Ontario Court of Appeal rejected the bus company’s arguments that the trial judge, Justice Elizabeth Quinlan, made errors in instructing the jury and concluded that Justice Quinlan was clear in providing the factors that led to Sarah’s injuries.  Furthermore, both the plaintiff and the defence took part in drafting the jury instructions.

Justice J.A. Roberts, on behalf of the three judge panel of the Ontario Court of Appeal wrote:

There is no question that the jury was alive to the defence position that Ms. Little should be principally responsible for her tragic decision to jump from a moving school bus.  In assessing Ms. Little’s contributory negligence at 25 per cent, the jury rejected her argument that the bus company should bear 80 to 90 percent of the fault.

The trial judge did not misdirect on causation, and there was ample evidence to support the jury’s verdict and apportionment of liability.  As such, the liability verdict is reasonable.

The Appeal Court did agree with the bus company’s argument that Justice Quinlan erred by removing the question of mitigation from the jury given Sarah’s lack of capacity to mitigate.  However, the Appeal Court did not find that a miscarriage of justice occurred due to this error.

With respect to the bus company’s position regarding statutory accident benefits, the Appeal Court did order a new trial to deal with the specific issue of whether the award of damages to Sarah should be reduced by the amount of statutory accident benefits she had received.

At Cuming & Gillespie Lawyers, we are committed to helping you and your loved ones.  If you or a loved one have been injured in a motor vehicle accident and believe a third party is responsible, you may be entitled to compensation for damages.  Please contact the award winning lawyers at Cuming & Gillespie Lawyers either online or at 403-571-0555.  We can get started with a free case evaluation and are dedicated to providing you with the legal help that you deserve. 


Dentist Awarded $5.26 Million After Failed Career Ending Vision-Correction Surgery

A Toronto Judge has ordered Dr. Yair Karas (“Karas”) to pay Dr. Brent Jesperson (“Jesperson”) $5.26 million for a “poorly done and misleadingly explained operation” that caused Jesperson to be unable to continue practicing dentistry and left him feeling depressed and suicidal.

WHAT HAPPENED?

In 1994, Jesperson decided to undergo vision-correction surgery, known as radial keratotomy (“RK”), in order to play sports without having to wear glasses.  Although he was admittedly capable of performing his work as a dentist with glasses, he chose to proceed with the procedure after his ophthalmologist suggested the surgery to him and advised that the risks were minimal.

RK was invented by a Russian doctor in the 1970s.  It involves making incisions with a diamond blade in the cornea in a radial pattern around a clear area, flattening the cornea and correcting the nearsightedness.  RK was an elective surgery that was performed on thousands of nearsighted Canadians for many years, until it was replaced in the 1990s by safer, more effective laser-assisted procedures.

Jesperson considered the surgery to be a success at first, but his eyesight worsened as time went on and he began to suffer from blurriness in one eye, glare and impaired depth perception.  He returned to see Karas a year after the surgery and underwent another operation.  His eyesight again improved, but he began over time to develop eyesight problems.

Jesperson was forced to give up his dental practice in 2009 as he was unable to continue working on patients. 

In her reasons for judgment, Justice Darla Wilson wrote:

His life has changed dramatically now because of his vision problems.  He cannot work as a dentist, he gets eye strain that causes headaches and he finds he is fatigued.

LIABILITY FINDINGS AT TRIAL

At the conclusion of the trial, Justice Wilson found that Karas’ judgement fell below the standard of care of a surgeon, performed the surgeries negligently and failed to warn Jesperson of known risks and overstated the chances for success. 

Justice Wilson also concluded that Karas did not obtain the required informed consent prior to operating.  Karas was obligated to provide the known risks to Jesperson, including that cutting the cornea might lead to corneal weakness or instability; the potential that he might not be free of his glasses; he may suffer from halo, glare and starburst in his vision, fluctuating vision, loss of clarity of vision or irregular healing which may create an irregular astigmatism which could not be corrected by glasses.  In her decision, Justice Wilson wrote:

The consent form signed by the Plaintiff made no mention of these known risks, there was little or no discussion about them or of other options, and therefore Dr. Jesperson did not given an informed consent to the RK surgery.

Justice Wilson also concluded that Karas did not meet the standard of care required of an ophthalmologist as he made a pattern of incisions that left too small a clear area, which cut into the eye’s limbus (the marginal region of the cornea of the eye) and reduced the effectiveness of the operation.   As a result of the negligence of Karas, Jesperson was left with an unstable cornea, scarring and irregular astigmatism. 

Justice Wilson wrote:

Dr. Karas knew that the work of a dentist required good, clear vision to do fine work in the small, dark spaces of the mouth.  An individual who required excellent vision to work at his chosen occupation would not risk his career for the potential benefit of playing sports without glasses.

WHAT WERE THE DAMAGES AWARDED TO JESPERSON?

As part of his claim for damages Jesperson claimed a past loss of income and a future loss of income as a result of his inability to practice as a dentist.  Justice Wilson concluded that Jesperson could work on a part-time basis (15 hours a week) as a college instructor in the field of dentistry after he stopped working as a dentist.  Given this consideration, she awarded Jesperson $2,465,000 for past loss of income and $2,591,161 for his future income loss.

Jersperson also made a claim for general damages (i.e. damages for non-monetary losses).  Based upon the evidence at trial, Justice Wilson found that as a result of the surgeries Jesperson was left with weak corneas, a severe irregular astigmatism in his left eye, irregular astigmatism in his right eye and neovascularization of several incisions in his eyes.  Jesperson experiences blurred vision, glare, lack of depth perception and problems focusing, eye strain, headaches and fatigue.  Given these challenges, Justice Wilson awarded Jesperson general damages of $150,000.  He was also awarded out of pocket expenses and his wife was awarded $40,000 in damages for her loss of care, guidance and companionship. 

At Cuming & Gillespie Lawyers, we represent individuals who suffer from all types of serious personal injuries, including those resulting from medical malpractice.  With over 20 years of experience, the award-winning lawyers at Cuming & Gillespie have handled many different types of medical malpractice claims, and have the experience and knowledge to evaluate your case and help you decide when you should pursue a claim.  Please contact our office today either online at 403-571-0555 for a free initial consultation.


Is the ‘Textalyzer’ the New Device That Will Bust Distracted Drivers in Canada?

Millions of collisions throughout North America are caused by distracted driving.  According to Transport Canada’s National Collision Database, distracted driving contributed to an estimated 21% of all fatal collisions and 27% of all serious injury collisions across Canada.

Data released from the government of Alberta has shown that the number of distracted driving convictions in Calgary in the past five years has decreased by nearly half.  The majority of those who were convicted of distracted driving were those using hand-held devices, such as cellphones.

Despite these encouraging numbers, the government is considering introducing new technology for Canadian police to use to catch distracted drivers on our roadways.  The technology, known as a textalyzer, is also being considered to help prove that a driver was using their phone while driving by various states in the U.S.A., including New York and Nevada.

WHAT IS A TEXTALYZER?

A textalyzer is a device developed by an Israeli digital forensics company, Cellebrite, that would allow police to plug a suspected distracter driver’s cellphone into the device to determine if the driver was on the phone while driving.

According to Cellebrite’s website:

If a driver was using the hands-free option to talk via their mobile-phone, the Textalyzer would also be able to determine that.  Much like the breathalyzer, from which the device received its name, its two prime-use cases are for situations where either there is a suspicion of distracted driving or at the scene of an accident.

Critics of the textalyzer are concerned about privacy rights and that police would have access to private data that they should not have access to without a court order.

Former Privacy Commissioner for Ontario, Ann Cavoukian, stated:

My concern is this: if the police are accessing your cellphone, could they get access to any other information … all of the sensitive data? … I want some assurance that the police will not be able to gain access to all this other wealth of information which they are not authorized to access.

Cavoukian explained that a cellphone is more than just a device to make phone calls, it also keeps track of a lot of information, including financial records, health data and communications with numerous individuals.  Cavoukian would like to have an independent, third-party review and assess Cellebrite’s textalyzer to verify that it will not access personal information.

ALBERTA’S DISTRACTED DRIVING LAWS

Penalties for distracted driving were increased on January 1, 2016 when the government of Alberta increased fines from $172 to $287, in addition to three demerit points.  Those who receive too many demerit points will have their driver’s licence suspended.

In Alberta, distracted driving laws apply to all roadways and according to the Traffic Safety Act prohibit drivers from exhibiting the following distracting behaviour while driving:

  • Using hand-held cell phones;
  • Texting or e-mailing;
  • Using electronic devices, such as laptop computers, video games, cameras and portable audio players;
  • Entering information on GPS units;
  • Reading printed materials;
  • Writing, printing or sketching; and
  • Taking part in any personal grooming, such as brushing and flossing teeth, putting on makeup, hair care, clipping nails or shaving.

HOW TO REDUCE DISTRACTED DRIVING

The law firm of Cuming & Gillespie Lawyers would like to recommend the following ways in which we can all reduce the number of motor vehicle accidents on our roadways caused by distracted driving:

  1. Stop Texting and Driving:  Texting while driving is dangerous and increases the risk of an accident.
  2. Put Away Your Cell Phone:  All activities involving a cellphone should be avoided while driving, including using maps and the GPS for navigation purposes.  If drivers are still tempted to use their phone while driving, the device should be turned off and stored in the vehicle out of the reach of the driver. 
  3. Avoid All Other Distractions:  Talking to passengers, listening to music, applying makeup, eating and drinking are all distracting behaviours that can increase the risk of an accident.
  4. Remind Your Loved Ones to Avoid Distracted Driving:  Do not be afraid to speak up if you notice that your loved ones are engaged in distracted behaviours while driving. 
  5. Leave Yourself Enough Time to Travel:  Leaving early will allow you the time to make safer driving decisions and the time to pull over to answer a phone call, if necessary.
  6. Avoid Multi-tasking:  It is important to focus on the road while driving and avoid completing other tasks.
  7. Plan Your Route in Advance:  Careful planning before you enter your vehicle will help you get where you are going.  If you are using a GPS device, be sure to program it before you start driving and use the audio feature to provide navigation instructions so you do not have to look at a screen while driving.

If you or a loved one have been injured in a motor vehicle accident and distracted driving has played a role in the injuries you have suffered, you may be entitled to compensation for the damages you have suffered.  It is important that you call the lawyers at Cuming & Gillespie Lawyers promptly so we can help you understand your rights and the potential to recover compensation for your injuries. Please contact the experienced personal injury lawyers at Cuming & Gillespie Lawyers online or at 403-571-0555 for a free consultation today.


Family of California Man Killed in Crash Suing Tesla

The family of Walter Huang (“Huang”), 38 years old at the time of his death, has filed a lawsuit against Tesla alleging wrongful death and negligence in a California state court.  Huang died in a crash while driving his Tesla Model X SUV along U.S. Route 101 in California in March 2018.

What Happened?

On March 23, 2018, Huang was driving his Tesla in Mountain View, California on Autopilot mode when the car sped up to 71 mph and crashed into a safety barrier, resulting in Huang’s death.

Huang had purchased his Tesla vehicle as a birthday gift to himself but quickly began complaining to family members about alleged flaws with the Autopilot features.  Huang even brought his vehicle into a dealership but was unable to replicate the issues that he was having with his vehicle and he was advised to keep driving it.

Huang’s family alleges that Tesla’s marketing of its Autopilot features left Huang with an “inflated impression” of the vehicle’s technological capabilities. 

The lawsuit alleges that Tesla has a defective product design, provided intentional and negligent misrepresentation and false advertising, in addition to other allegations.

The attorney representing the Huang family stated:

The navigation system of Huang’s Tesla misread the lane lines on the roadway, failed to detect the concrete median, and failed to brake the car, but instead accelerated the car into the median. …  That system is not safe, is not something that should be released to the public and certainly should not be advertised as an Autopilot system.

The Huang family wants to help prevent this tragedy from happening to other drivers using Tesla vehicles or any semi-autonomous vehicles.

The Huang family is also suing the state of California.  The lawsuit alleges that California’s department of transportation failed to replace a crash attenuator guard after a motor vehicle accident had occurred days earlier.  The family alleges that had the crash attenuator guard been replaced the impact would have been better absorbed during the high-speed collision.

What is Autopilot?

Autopilot is software that works as a driver-assistance system with features such as traffic-aware cruise control and lane keeping assistance that enables the vehicle to steer, accelerate and brake within its lane, as well as maintain a safe distance from traffic and follow road markings.

Tesla’s website specifically states that “[c]urrent Autopilot features require active driver supervision and do not make the vehicle autonomous.”

Tesla’s Response to Huang’s Accident

Although Tesla has not provided any comment in regards to the recent lawsuit commenced by the Huang family, Tesla did issue a statement following Huang’s accident, which read as follows:

Our hearts are with the family and friends who have been affected by this tragedy. … The driver had received several visual and one audible hands-on warning earlier in the drive and the driver’s hands were not detected on the wheel for six seconds prior to the collision. … If you are driving a Tesla equipped with Autopilot hardware, you are 3.7 times less likely to be involved in a fatal accident. … Tesla Autopilot does not prevent all accidents – such a standard would be impossible – but it makes them much less likely to occur.

Tesla also wrote on their website that the reason that the crash was so severe was that the crash attenuator, which is a highway safety barrier that is designed to reduce the impact into a concrete lane divider, had either been removed or crushed prior to Huang’s accident. 

Another Lawsuit Against Tesla Resulting From a Fatal Autopilot Crash

The family of Jeremy Beren Banner (“Banner”) has also filed a wrongful death lawsuit against Tesla in Palm Beach County.  On March 1, 2019, Banner was driving along a Florida highway when his 2018 Tesla Model 3 collided with a tractor-trailer that was crossing his path. 

The lawsuit states that Banner believed his vehicle would prevent fatal injury from driving into obstacles or other vehicles in its path and that his vehicle was:

safer than a human-operated vehicle because Defendant, Tesla claimed superiority regarding the vehicle’s autopilot system, including Tesla’s ‘full self-driving capability’, Tesla’s ‘traffic-aware cruise control’, Tesla’s ‘auto steer lane-keeping assistance’ and other safety-related components.

The lawsuit also alleges that Tesla knew that its product was defective and would not avoid impacting other vehicles or obstacles and that the company had specific knowledge of prior accidents in which safety systems failed resulting in significant property damage, injury and death to its occupants.

According to a preliminary report by the National Transportation Safety Board, Banner activated Autopilot on his vehicle approximately 10 seconds before the collision.  The vehicle did not detect Banner’s hands on the steering wheel beginning approximately 8 seconds before the crash until the point of impact.

Tesla maintains that the vehicle data logs showed that Banner removed his hands from the wheel immediately after activating Autopilot, which does not comply with Tesla’s instructions to drivers to keep their hands on the steering wheel while the vehicle is operating on Autopilot.

Tesla has also faced criticism for several additional fatal crashes, including:

  • May 8, 2018 fatal crash in Ft. Lauderdale, Florida;
  • May 11, 2018 crash in Utah;
  • May 29, 2018 crash in Laguna Beach, California;
  • October 12, 2018 crash on the Florida turnpike; and
  • January 22, 2019 crash into a fire truck in Culver City, Los Angeles;

Tesla maintains that its Autopilot system is safer than vehicles without it, however, admits that the system does not prevent all crashes. 

We will continue to follow the lawsuits against Tesla in the United States and will report in this blog if we become aware of a lawsuit filed in Canada.

In the meantime, if you or a loved one have been injured in a motor vehicle accident, please contact the knowledgeable personal injury lawyers at Cuming & Gillespie Lawyers online or at 403-571-0555.  We are committed to helping you obtain the compensation you deserve.


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