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Written on behalf of Cuming & Gillespie

Multiple Lawsuits Launched Against the Makers of PAM Cooking Spray

Last week, six different lawsuits were commenced in the United States against Conagra Brands (“Conagra”) claiming that pressurized cans of Pam cooking spray have caused multiple injuries when they burst into flames or caused explosions.

Cooking spray is often used to stop food from sticking to a pan.  It is essentially oil in a can, which also contains lecithin (an emulsifier), dimethyl silicone (an anti-foaming agent), and a propellant such as butane or propane.

WHAT HAPPENED?

The plaintiffs (individuals bringing a case against another in a court of law) are alleging that the bottoms of the cooking spray cans have a venting feature that causes the can to be faulty and dangerous.  It is alleged that Conagra introduced a faulty can design in 2011 (which is no longer in production).  It is also alleged that Conagra failed to adequately warn consumers of the risks.

Apparently, the aerosol can with vents at the bottom open to relieve pressure when overheated.  It is alleged that these vents opened even when the cans were stored and used in a “reasonably foreseeable manner” and that the liquid that seeped out contained propellants that ignited fires.

The vented cans in question are 10 ounces or larger and are sold at warehouse stores like Costco, Walmart and Amazon.  They are not the 6 ounce cans typically sold at grocery stores.

THE PLAINTIFFS

The eight individuals who have commenced lawsuits against Conagra live in different states, including Illinois, Texas, New York, Utah and Indiana.  The incidents in question occurred between 2017 and 2019.

One lawsuit alleges that in 2017 a man was seriously injured and burned after placing the can of Pam above a grill at his job at Baja Grill in Houston, Texas.  As a result of the vent holes, the flammable contents began spraying and caused a fireball to engulf the kitchen.

Another lawsuit alleges that a woman set the can of Pam inside her shopping cart and it immediately exploded.  She suffered severe burns and was in a medically induced coma for two weeks as a result of the explosion.

A lawsuit by Y’Tesia Taylor alleges that after using Pam to spray her baking dish to make a peach cobbler, she placed it on a rolling wooden cart adjacent to the stove.  After placing the cobbler in the oven, she heard a loud noise and the can began spraying its contents through the u-shaped vents on the bottom of the can and then exploded into flames.  She alleges she sustained “burns, scarring, disfigurement, blindness in her right eye, and lung damage”.  She further alleges she sustained second and third degree burns to 47% of her upper body and spent more than a week in a medically induced coma. 

Another plaintiff, Brandon Banks, was cooking pasta sauce when a can of Pam that sat on a shelf above the stove began to hiss and fell onto the stove.  Suddenly there were flames everywhere.  He suffered second-degree burns on his arms and hands.  His girlfriend, who was sitting on the arm of a love seat five feet away, suffered burns on her face and shoulder.

CONAGRA’S RESPONSE TO THE ALLEGATIONS

Although we do not believe that Conagra has not filed any court papers regarding the allegations made by the plaintiffs, a spokesperson for Conagra Brands has stated:

Even if a consumer is concerned, the vented can design, that is in question, was used in market on a limited number of cans over the last several years, and has not been used in the vast majority of the product sold.

Furthermore, Conagra has released a written statement to reassure its customers by stating:

When PAM is used correctly, as instructed, it is a 100-percent safe and effective product.  PAM Cooking Sprays is used safely and properly by millions of people every day and several times a day.  The product has been used for more than 50 years for the baking, grilling and cooking needs of consumers everywhere.

All PAM Cooking Sprays include clear instructions on both the front and back of the packaging alerting consumers that the product should be used responsibly as it is flammable and that it should not be left on a stove or near a heat source, should not be sprayed near an open flame, and should not be stored above 120 degrees F.

We redesign packaging in the ordinary course of business, and just as we introduced the vented can years ago, we removed it from active production, earlier this year, as we sought to standardize our cans across the entire aerosol cooking spray product line.

A manufacturer, distributor or retailer of a product can be held responsible if the product is defective or faulty.  The product may not have been properly designed, manufactured or sold.  It may have been improperly labeled or it did not contain proper instructions for use.  If you have suffered an injury as a result of a defective or faulty product, you may have a legal right to compensation for your injuries and losses. 

If you or a loved one have suffered a burn or other serious personal injury as a result of a faulty or dangerous product, the experienced personal injury lawyers at Cuming & Gillespie can help.  At Cuming & Gillespie, 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 award winning personal injury lawyers.  We look forward to helping you obtain the compensation that you deserve.


Lawsuit Filed Against Calgary Day Home for Child’s Brain Trauma

A Calgary family, whose son was injured in a fall and suffered severe brain trauma,  has filed a lawsuit seeking more than $18 million in damages.  The lawsuit alleges that staff at Bright Beginnings Day Home in the community of Tuscany were negligent in caring for their children.

WHAT HAPPENED?

According to the statement of claim, Lochlan Linehan (“Lochlan”), who was one years old at the time, experienced catastrophic injuries when he suffered a fall on April 20, 2017 at a day home in northwest Calgary.

Lochlan and his brother Faolan were dropped off by their parents at Bright Beginnings Day Home.  Their mother, Stacey, received a call at approximately 2:45 p.m. from the co-owner, Laura Fleming, advising that Lochlan was vomiting and exhibiting unusual breathing sounds.

According to the court document, Emergency Medical Services arrived at the day home to find Lochlan unresponsive and suffering from severe physical injuries. 

The Linehan family alleges that the incident at the day home caused severe, permanent injuries to Lochlan.  Lochlan was hospitalized for 16 days and was operated on six times. 

The lawsuit also seeks damages on behalf of Faolan, who witnessed his brother being resuscitated by paramedics and taken away by ambulance, and seeks damages on behalf of Lochlan’s parents.

None of the allegations have been proven and a statement of defence on behalf of Bright Beginnings Day Home has not been filed as of yet. 

WHAT IS A DAY HOME?

One type of child care option in Alberta is an approved family day home.  This option offers child care in an individual’s private residence to provide care for six or less children (including the caregiver’s own children) with one caregiver.

According to the Child Care Licensing Act, any individual caring for 7 or more children must be licensed by the Government of Alberta.  Those who care for 6 or less children do not require a licence.  However, these facilities have the option of becoming an approved family day home. 

An approved family day home must meet a set of provincial standards.  These accredited facilities receive support from consultants, have access to child care training and professional development opportunities, enable eligible families to qualify for child care subsidies, receive home visits to ensure the safety of the program, and may qualify for accreditation funding.

On the other hand, caregivers who provide child care out of their homes that have not been approved to operate as a provincial family day home operator are simply considered private babysitters.  In these circumstances, these facilities are not regulated, approved or monitored and there is no government supervision.

FATALITY INQUIRY INTO THE DEATH OF MACKENZY WOOLFSMITH AT A DAY HOME

An equally devastating event that occurred at an unlicensed day home in Alberta took place on May 2, 2012.   On that date, Mackenzy Woolfsmith (“Woolfsmith”) suffered multiple blunt-force trauma injuries and swelling to her brain as the result of an incident at an unlicensed day home. 

Woolfsmith had apparently fallen down stairs and hit her head.  When the 22-month old stopped crying and her breathing became shallow, day home operator, Caitlyn Jarosz (“Jarosz”), panicked and began shaking the toddler causing her head to strike the floor.  Woolfsmith died the next day in hospital.

Jarosz pleaded guilty to manslaughter and was sentenced to five-and-a-half years in prison.

The fatality inquiry into Woolfsmith’s death began in February 2018 and concluded last January.  Provincial Court Justice Joshua Hawkes recommended a need for extensive changes to child care services in Alberta. 

Justice Hawkes stated:

The death of a child at the hands of a trusted caregiver is a parent’s worst nightmare.  That this nightmare is not an isolated incident, but part of a pattern in which children and child care workers are at elevated risk, is a serious public policy issue requiring urgent and sustained attention. 

Justice Hawkes set out several recommendations including:

  • A comprehensive review of provincial legislation governing child care in Alberta aimed at reducing risk to infants and children;
  • The implementation of a complaint review process and a mechanism to track ongoing investigations;
  • Allowing parents/guardians the right to information regarding serious incidents, which takes precedence over the privacy of child care providers;
  • The power to immediately close daycares deemed to be unsafe and prohibit individuals from providing child care services;
  • More support for child care providers;
  • Improved documentation and tracking serious incidents; and
  • More enhanced enforcement tools to protect children’s safety.

Justice Hawkes specifically stated that Woolfsmith’s parents did not have access to independent information regarding Jarosz’s past as a caregiver, which included three previous cases of injury suffered to children under her care (which have not been proven in court).  Justice Hawkes noted that had Woolfsmith’s parents had access to this information, they would likely have made a different choice in terms of child care provider.

We will continue to follow any developments that become available regarding the Lochlan Linehan lawsuit and will provide details of any updates in this blog.

At Cuming Gillespie Lawyers we are committed to helping you and your loved ones.  If you or your loved one has suffered serious injuries as a result of an accident and you would like 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 online or by calling 403-571-0555 to learn what options are available.


Canadian Lawyer Magazine: More Than a Payout

Whether it is advancing the law to better secure results for injured people in the future or providing holistic advocacy where client relationships last past the conclusion of the file, the winners [of Canadian Lawyer’s 2019-20 Top 10 Personal Injury Boutiques] who spoke with Canadian Lawyer talked about goals that go beyond successful judgments and financial compensation. 

“Well, everybody comes to see us after they’ve had one of the worst days of their lives,” says James Cuming, a partner at Cuming & Gillespie, a winning firm from Calgary. 

“Our focus is on recovery for the client, whether that be hiring a private occupational therapist to help them out or finding the proper treating physicians and specialists for them, as opposed to just trying to maximize their claim. We want them to get better,” he says. 

Read Full Article



Family Awarded $11.5 Million in Lawsuit Against Obstetrician

As we continue to blog about medical malpractice lawsuits in Canada, this blog will focus on birth injuries, which is one type of trauma that can result in a lawsuit (sometimes referred to as obstetrical malpractice). 

A recent jury verdict awarded the parents of a daughter who was left quadriplegic at birth $11.5 million in damages in their lawsuit against their obstetrician, Dr. Allan Jackiewicz, of Niagara Falls, Ontario.

WHAT IS OBSTETRICAL MALPRACTICE?

Birth trauma or obstetrical malpractice includes any damage an infant sustains just prior to or during the birthing process and delivery.  Some of these injuries may be unavoidable, however some injuries may be caused by preventable mistakes or negligence on the part of health care professionals. 

Incidents such as failure to provide adequate prenatal care, delay of delivery or in performing a caesarean section, delay of or failure to recognize warnings signs that the baby is in distress, misuse of labour inducing drugs, and the improper use of forceps are just a few examples of negligent actions that can occur.

The most common birth injuries stem from a disruption of blood flow to the baby’s brain, stroke or hemorrhage (bleeding).  This can occur before or during labour and during or after delivery of the infant. 

Birth trauma can result in life-long struggles to an infant.  In Canada, some of the most common types of birth injuries are:

  • Cerebral palsy;
  • Erb’s palsy (also known as Brachial Plexus Palsy);
  • Bleeding in the brain;
  • Collarbone fractures;
  • Injury to the brain cells from a lack of oxygen;
  • Brain swelling;
  • Torn facial nerve from forceps;
  • Skull fractures;
  • Mental retardation;
  • Epilepsy;
  • Autism;
  • Seizures; and
  • Stillbirths.

JURY AWARD OF $11.5 MILLION

Bernice Booth (“Booth”) and Michael Woods sued Dr. Allan Jackiewicz on behalf of their daughter, Kelsey, for failure to maintain the standard of care required of an obstetrician.   At birth, Kelsey suffered from brain damage which led to the diagnosis of cerebral palsy.

Kelsey and her twin, Karli, were diagnosed with twin-to-twin transfusion syndrome.  This occurs when twins share the placenta and an artery, and one twin receives a reduced blood flow and develops at a slower rate.

According to evidence at trial, Booth had an ultrasound on May 28, 1991, which confirmed that she had a twin pregnancy and there were no apparent abnormalities.  Booth became progressively uncomfortable over the next couple of weeks and returned to see Dr. Jackiewicz in July 1991.  She was instructed to return home and to lay on her left side. Three days following this examination, Booth went into premature labour. 

The twins were born prematurely at 27 weeks.  Kelsey is a quadriplegic and is dependent upon her parents for her care.  She is unable to walk, bathe, or care for herself. 

Karli, who was also a plaintiff in the lawsuit, was born with significant hearing loss.

According to expert evidence heard during the trial, a timely diagnosis, the performance of amniocentesis and the reduction of the volume of amniotic fluid could have prolonged the pregnancy, which would have resulted in a “normal outcome” for the twins. 

During the trial, Dr. Jackiewicz denied that he was negligent and provided evidence showing that he carried out his examinations and treatment with care, competence and diligence.

After a three week trial, the jury found Dr. Jackiewicz liable and awarded the family $11.5 million.

The jury did not hear evidence about the disciplinary hearing completed by the College of Physicians and Surgeons regarding Dr. Jackiewicz’s obstetrical practice.  Dr. Jackiewicz was once the chief of obstetrics and gynecology at Niagara Falls General Hospital.  Three experts concluded that Dr. Jackiewicz was “incompetent” and “failed to maintain the standard of practice of the profession”.  Furthermore, he was found “not amendable to rehabilitation as he was unwilling to take any suggestions”.   Following this disciplinary hearing, Dr. Jackiewicz agreed to let his medical licence expire and signed an undertaking that he would not reapply.

MEDICAL MALPRACTICE AS A CAUSE OF CEREBRAL PALSY

More than 60,000 Canadians are living with cerebral palsy.  Unfortunately, some of these individuals could have been prevented from living with the challenges they face if they had received proper medical care.

Cerebral palsy is defined as a disorder of movement, muscle tone or posture that is caused by damage that occurs to the developing brain, most often before birth.  It can also affect other body functions that involve motor skills and muscles, such as breathing, bladder and bowel control, eating, and talking.

Cerebral palsy is often caused by insufficient amounts of oxygen reaching the brain of the baby before birth.  This may have occurred due to an abnormally long labour, difficult delivery, umbilical cord positioning that cuts off oxygen to the baby’s brain or external pressure exerted on the baby’s brain for too long, amongst other causes. 

It is the responsibility of the hospital, attending physician and/or obstetrician to exercise precautions to prevent any complications during the pregnancy and delivery.  However, should the health professionals fail to meet the standard pregnancy and delivery care procedures, they could be liable for failing to provide the best medical health care for the baby.

At Cuming Gillespie Lawyers we are committed to helping you and your loved ones.  If your child has suffered an injury due to obstetrical malpractice, our experienced personal injury lawyers may be able to help you obtain financial compensation.  Contact our knowledgeable and experienced personal injury lawyers to learn what options are available at 403-571-0555 or online today.


Medical Malpractice Cases in Canada Are Dropping

Approximately 70,000 patients a year experience preventable, serious injury as a result of medical treatment in Canada.  According to a study published over a decade ago, it is estimated that as many as 24,000 adults die annually in Canada as a result of preventable “adverse events” in acute-care hospitals.

Despite these alarming figures, an investigation by CBC News reveals that the rate of medical malpractice lawsuits filed by patients in Canada has decreased.  CBC News analyzed 40 years of annual reports filed by the Canadian Medical Protective Association (a non-profit organization that provides legal defence, liability protection, and risk-management education for physicians in Canada).  The research also found that almost half of all lawsuits commenced by patients are dropped before they get to court. 

WHAT IS MEDICAL MALPRACTICE?

Medical malpractice can be defined as an act or omission by a healthcare professional during the treatment of a patient that deviates from accepted standards of practice in the medical community and causes an injury or illness to the patient.

A medical malpractice claim requires the following elements:

  • Duty of Care:  There must be a patient-physician relationship in which a health care professional owed a duty of care to the patient.
  • Standard of Care:  The health care professional fell below the standard of care expected of a reasonable doctor.
  • Foreseeability:  The injuries that the patient suffered were reasonably foreseeable.
  • Causation:  The health care professional’s behaviours were the proximate cause of the injury.
  • Substantial damages:  The patient suffered demonstrable damages.

The following are examples of medical malpractice claims:

  • Not ordering adequate or appropriate diagnostic tests;
  • Failing to warn of significant risks of treatments;
  • Failing to treat a patient;
  • Failing to refer a patient to a specialist;
  • Operating on the wrong body part;
  • Performing unnecessary surgeries;
  • Prescribing wrong medications or the wrong dosage; and
  • Failing to advise of all treatment options.

LIABILITY INSURANCE FOR HEALTH PROFESSIONALS IN CANADA

Canadian doctors are required to obtain medical liability insurance.  Insurance of this nature is obtained through the Canadian Medical Protective Association (“CMPA”).  Membership fees are based upon the type of work a physician practices and where the physician is located.   These premiums are not dependent upon a physician’s record, history of complaints or claims paid. 

Membership fees through the CMPA provide insurance coverage for physicians and a right to representation in medical malpractice lawsuits.  Provincial governments subsidize the system by paying a portion of the fees paid by doctors for the insurance.  Therefore, approximately 75% of the CMPA’s funding comes from taxpayers (through the provinces and territories).  In Ontario, it has been reported that physicians are reimbursed approximately 83% of their membership fees.

Critics of this system argue that because these fees are not based upon a physician’s record, there is little consequence to physicians who are found liable for malpractice, even on several occasions.

Critics of the CMPA also criticize the vigorous defence of medical malpractice suits and sparing no expense on lawyers and medical experts in support of the doctor.  The CMPA is also disparaged for the rejection of reasonable offers to settle claims in an effort to discourage similar lawsuits.

DAMAGES IN MEDICAL MALPRACTICE CASES

In Canada, the Supreme Court of Canada in a trilogy of decisions in 1978 established a limit on liability awards for general non-pecuniary losses (i.e. pain and suffering, loss of amenities and enjoyment of life).  The maximum amount that a victim can sue for non-pecuniary losses in a medical malpractice case is $360,000.  There are exceptions to this rule, but these cases would have to involve truly extreme circumstances. 

There are also limits to the cases that courts will award punitive damages in Canada.  Punitive damages are awarded to punish the offending party (rather than compensate the plaintiff), to deter future wrongdoers and to express outrage for egregious conduct.  They are only awarded in the most extraordinary cases and this is very rare.

However, there are no limits for other categories of damages, such as out-of-pocket expenses, loss of income or loss of earning potential and cost of future care, which can range from the hundreds of thousands to the millions.

MEDICAL MALPRACTICE LAWYERS CAN HELP YOU MAKE THE RIGHT DECISION

Deciding whether to commence a medical malpractice lawsuit is a difficult decision.  It requires weighing the potential costs and financial risks against the potential awards.  It is obviously not a decision that should be made without careful consideration. 

Choosing the right personal injury lawyer is the first step in the difficult process of commencing the medical malpractice lawsuit.  A lawyer who is knowledgeable and has expertise in the field of medical malpractice law will be able to guide you through the complicated, time-consuming, and risky litigation process.

A law firm that specializes in medical malpractice law will be able to contact a team of medical experts to help you present your case 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 you are entitled to.  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 whether you should pursue a claim.  Call us at 403-571-0555 or online today to book a free consultation. 


Playground Accidents and Injuries to Children

Spring is here and the temperatures are beginning to rise.  With the warmer weather comes the excitement of children venturing outside to play and returning to their neighbourhood playgrounds.  Playgrounds are an essential part of every child’s upbringing.  They allow children to exercise and run, climb, jump, slide and play with friends.  However, playgrounds can also be the setting for childhood injuries.

According to the Canadian Paediatric Society, at least 29,000 children under the age of 15 are treated in hospital for playground injuries each year in Canada.  The research has shown that children between the ages of five and nine years old are at the highest risk of injury.  Boys were found to be injured at a slightly higher rate than girls (53% for boys and 47% for girls).

CAUSES OF PLAYGROUND INJURIES

Playground injuries can range from muscle sprains, abrasions, minor cuts and bruises, to bone fractures, head and neck trauma, internal injuries, and strangulation. 

A number of factors can play a role in causing playground injuries.  These are a few of the most common causes:

  • lack of adequate supervision;
  • slips, trips and falls;
  • poorly maintained or designed playground equipment;
  • child on child injuries; and
  • dog bites.

PLAYGROUND STRUCTURES

Guidelines for public playground structures were first developed by the Canadian Standards Association in 1990, which included recommendations on the design, installation, and maintenance of playground equipment.  These guidelines also recommended the use of impact absorbing surfaces such as sand, pea gravel, wood/bark chips, and rubber.  These guidelines have been revised and updated periodically. 

The guidelines provide recommendations regarding handrails and guardrails, surface materials, equipment design to prevent falls, labelling play equipment for specific age groups, general drainage and layout of the play area, and criteria for the maintenance and routine inspection to identify hazards.  The guidelines are discretionary, they are not law.

SUPERVISION

One of the most important factors associated with children playing at the playground is supervision.  Children either are not aware or ignore the risks of climbing safely on playground structures. 

Also, playgrounds are often used by teenagers after dark.  Therefore it is important to look for any broken glass, cigarette butts, animal waste, and nails or bolts that may be lying around and could be a danger to children. 

It is especially important for children to play on age appropriate playground equipment in an attempt to avoid injury.  Most playgrounds have separate areas for different age groups.  Parents or guardians should ensure that their child plays on age appropriate structures designed for their age and ability in order to stay safe.

It is the parent’s or guardian’s responsibility to ensure that their child is playing safely at all times.  A review of the playground conditions, selecting the right equipment for the child’s age and ability, and teaching children about playground safety rules are simple ways to prevent injuries at the playground.

HOW TO STAY SAFE AT THE PLAYGROUND

Cuming & Gillespie Lawyers would like to provide the following recommendations for how to keep our children safe this spring on the playground: 

  • Actively supervise your children while they are playing on playground equipment;
  • Ensure that the slides are not metal, as hot metal has the potential to burn skin;
  • Be sure to remain at arm’s reach of your younger children and ready to catch them when they are coming down the slide;
  • Avoid playgrounds with non-impact absorbing surfaces such as asphalt, dirt, concrete, gravel or grass and choose a playground with a ground surface  made of wood chips, shredded rubber or sand to minimize the risk of falling-related injuries;
  • Teach children about playground safety and how to use equipment properly (i.e. slide feet first, no standing on swings etc.);
  • Teach children that pushing, shoving or crowding while on playground equipment can be dangerous;
  • Dress your child appropriately for the playground and remove all necklaces, scarves or clothing with drawstrings that can get caught on equipment and pose a strangulation hazard;
  • Choose the right play area for your child based on your child’s age and ability; and
  • Report any playground safety hazards or deficiencies to the organization responsible for the site and do not let your child use the unsafe equipment.

There are times when a child’s injury at a playground is the result of negligence (i.e. lack of maintenance, dangerous playground equipment or design or inadequate supervision).  In these cases, your family may be entitled to compensation for your child’s medical expenses and pain and suffering.  These types of cases can be complicated and it is important to contact an experienced personal injury law firm to guide you through the process.

If your loved one was seriously injured in a playground accident and you would like 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 online or by calling 403-571-0555.  We look forward to helping you obtain the compensation you deserve.


How to Be Successful During the Questioning Phase of Litigation

One part of the litigation process in Alberta is referred to as “Questioning”.  In other jurisdictions in Canada this procedure is often referred to as an “Examination for Discovery”, and in the United States it is known as a “Deposition”.

WHAT IS QUESTIONING?

The process of Questioning is intended to assist the lawyers involved in the injury claim to obtain and learn all of the relevant details of the claim being made. At this stage, Questioning is an opportunity for all of the parties to assess the strengths and weaknesses of their cases. It is also a time to confirm the facts that will be relied upon in court, narrow the issues in dispute, and assess the credibility of the witnesses.

During the Questioning phase, issues regarding who is liable or at fault for the accident and issues regarding the amount of damages that are payable to compensate the Plaintiff for his/her injuries will be flushed out.

Questioning is an oral examination and the opposing lawyer will be asking you questions under oath. A court reporter is present to audio record the procedure and create a written transcript of everything that is said during this stage. Questioning takes place in a room either at the office of your lawyer, the office of the opposing party, or at the offices of a court reporter.

The Questioning phase is often an intimidating and stressful time for the injured victim. The legal team at Cuming & Gillespie Lawyers believes that the more prepared our clients are for Questioning, the more confident they will be during the process. Our legal team will help ensure that you are familiar with the process and are prepared for the questions.

TIPS TO SUCCEED AT YOUR QUESTIONING 

  1. Familiarize yourself with all of the relevant facts of the case

It is important to be knowledgeable about your case and to be informed of all of the relevant facts. Ensure that you refresh your memory of the details surrounding your accident and the medical attention your have received since the accident.

  1. Always tell the truth

During Questioning, you will be under oath to tell the truth and must answer all questions truthfully. Inconsistencies in your recount of the accident or injuries could be detrimental to your case. It is important to always be honest during Questioning.

  1. Be aware that the evidence given during Questioning can be used against you

The purpose of Questioning is to collect your oral testimony regarding your accident claim. An audio recording and a written transcript of the questions and answers will be made. Any information you provide at Questioning can be used against you at trial to impeach your evidence. This means that if you provide information at trial that deviates from the information you provided during Questioning, the other party can use the inconsistencies to suggest that you are not an honest or credible witness.

  1. Always listen carefully to the question being asked

It is important during Questioning to answer all questions honestly. In order to do so you must listen to the complete question carefully and you must understand the question that you are being asked. If you do not understand the question, you must let your lawyer know and you should only answer a question when you fully understand what is being asked. Also, only answer the question that is being asked, nothing more or less.

  1. Do not guess when answering questions

If you do not know the answer to a question being asked of you, do not guess. Advise the lawyer that you do not know the answer. Speculating can provide doubt of the details of the case and may be used against you to refute your claims. It is always preferable to answer “I do not remember” if you honestly do not remember.

  1. Provide verbal answers only

As we have already advised, an audio recording is being made during the Questioning. Providing loud and clear verbal answers to each question is imperative to the process. Answering questions by shaking your head, nodding or providing utterances such as “um-hmm” or “uh-uh” will not be picked up by the audio recording. Describing activities or movements by acting them out or pointing to a location on your body will not be picked up by the audio recording. Therefore, it is important to always describe in words your movements or a location on your body.

  1. If your lawyer makes an objection or interjects, stop talking immediately

If your lawyer interrupts the proceeding to object to a question being asked, you must stop talking and allow the lawyers to deal with the objection. You will be advised when it is time for you to continue to talk.

  1. Always remain calm and be pleasant

First impressions are always important and the Questioning phase is the first opportunity that the opposing lawyer gets to meet you in person and to assess your demeanour and character. It is important to be honest, polite, make eye contact and try to smile throughout the Questioning. You do not want to raise your voice or become angry during this process.

The process of Questioning in a personal injury case is undeniably a stressful experience, but with your lawyer by your side and appropriate preparation it is an opportunity to show the opposing lawyer that you can be a confident witness at trial.

Choosing an experienced and knowledgeable personal injury lawyer will help ensure that you present yourself in the best light during Questioning and proceed to attain the compensation that you deserve. The lawyers at Cuming & Gillespie Lawyers are prepared to help you meet this goal.

If you or a loved one have suffered a serious personal injury, we are happy to answer any questions you may have regarding hiring a lawyer for your personal injury or medical malpractice case. Please contact Cuming & Gillespie Lawyers online or at 403-571-0555.


Are You Being Watched?

If you have been injured and have commenced legal action, it is not unusual to find that you may be under surveillance. In most personal injury cases, insurance companies are the real defendants. They are the ones that are paying the adjuster, hiring and instructing the defence lawyer and defence doctors, and they will ultimately approve the settlement of the claim and put forth the money to pay it off.

Surveillance is one part of an insurance adjuster’s due diligence approach in an effort to limit their company’s exposure and an eventual payout.

WHERE CAN I EXPECT TO BE WATCHED?

Insurance companies can shoot video, take audio or take still photographs of an injured victim anytime in a public setting. The street in front of your home is a public location and a private investigator can park here to take photos or video of anything they can see from this vantage point.

Private investigators can also follow you to work, to appointments, and to other public places. For example, individuals are often recorded while they are shopping or running errands, putting out the garbage, driving, going for a walk in a park, or lifting children or other heavy objects.

WHY IS SURVEILLANCE USED IN PERSONAL INJURY CASES?

Surveillance is commonly used to capture the personal injury victim doing something that they said they couldn’t do. It is a means to expose inconsistencies, attack the personal injury victim’s credibility and attempt to make the victim look like he/she is exaggerating reported injuries and limitations. Video surveillance is typically taken in only the most serious or contentious cases.

Rest assured that if you have been truthful throughout your injury and recovery when speaking to your employer, your doctors, and your lawyer, there is little that video surveillance can uncover that can damage your legal case.

WHEN TO EXPECT SURVEILLANCE TO OCCUR

There are some pertinent times during your legal case when insurance companies might use surveillance. This may begin right at the start of your case in an effort to verify details, such as to confirm whether you are housebound as a result of your injuries.

Another typical time to expect surveillance is at the point of “Questioning”. This is a meeting that occurs between the personal injury victim, his/her lawyer, and the defendant’s lawyer to review all the details regarding the victim, the injury, and the victim’s current condition. This process allows the opposing party to find out all of the details associated with the lawsuit and an attempt to obtain admissions that may be used at a trial. This is a time when the opposing party knows that you will be travelling to attend a meeting and will use this opportunity to verify your mobility and the presence of any obvious physical disability.

Surveillance may also occur during the preparation for trial and settlement negotiation stage of the litigation process. This is the time when the insurance company will be looking for evidence to verify or contest information provided by the injured victim during the Questioning phase.

WHAT TO DO IF YOU THINK YOU ARE BEING WATCHED FOLLOWING A PERSONAL INJURY

If you believe that you are being watched or surveilled, it is recommended that you continue to live your life as you always have. The legal team at Cuming & Gillespie also recommends the following:

  • Do not exaggerate your injuries and limitations;
  • Always remain truthful;
  • Do not take part in activities that your doctor has advised against;
  • Consistency is important when reporting to all doctors and assessors;
  • Do not take risks that may worsen your injuries;
  • Do your best not to allow your injuries to interfere with participating in your normal life.

If you suspect that you are being watched, it is important to tell your personal injury lawyer as soon as possible. Once your lawyer knows that surveillance is a possibility, they can request copies of any evidence obtained through surveillance to begin working on a response to this evidence.

As easy as it is for someone to monitor and record your activities in public, it is just as easy for your activities on the internet and through your social media accounts to be monitored as well. All of your photographs, posts and comments online can be used by the insurance company and can be used in court as well. Please see our earlier blog regarding social media and the personal injury case for more information regarding how social media can affect your personal injury claim.

Following a personal injury accident, it is never too late to speak with a personal injury lawyer about your options or pursuing a legal claim against a negligent party. 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.

 


Chronic Pain and the Personal Injury Victim

Chronic pain syndrome is a long term pain disorder that can occur after a car accident or a personal injury. The difficulty with diagnosing chronic pain is that often tests, such as MRIs or CT scans, do not reveal a cause for the pain. However, if chronic pain disability can be proven to be the result of a car accident or personal injury caused by someone else’s negligence, injured victims may have a legal right to compensation.

WHAT IS CHRONIC PAIN?

Chronic pain generally refers pain that persists past normal healing time, lasting for more than three to six months. This condition affects an estimated 20% of the population worldwide.

Acute pain is a symptom of an underlying health condition (i.e. injury to a muscle or ligament) and its duration is relatively short. Chronic pain is different from acute pain in two ways. It lasts longer than six months and it is pain that occurs in addition to the pain of the original health condition. This type of pain is such that it becomes independent of the underlying injury or illness where the pain originated. It is not simply a long-lasting version of acute pain. Chronic pain is a type of pain that involves the whole nervous system of the body. Thus, attempts to cure the original injury or illness using surgery, injections or narcotics often fail as they do not address the cause of the chronic pain.

Individuals suffering from chronic pain can have physical effects, such as tense muscles, limited mobility, lack of energy, and appetite changes. They may also suffer from emotional effects, such as depression, anger, anxiety, and fear of re-injury.

ACCUSATIONS OF MALINGERING OR EXAGGERATION BY THE ACCIDENT VICTIM

When it comes to pursuing a personal injury claim, those suffering from chronic pain syndrome may face an uphill battle as victims suffering from this type of condition may be accused of faking or exaggerating. As diagnostic tests are limited in confirming these conditions, insurance doctors may deny the legitimacy of the injury as they are unable to identify it on “objective testing”. Insurance companies may use this evidence to avoid paying out benefits and damages.

Those suffering from chronic pain syndrome often face attacks on their credibility and sincerity, making a legal battle more stressful and lengthy.

The Honourable Justice Gonthier, writing on behalf of the judges of the Supreme Court of Canada in the case of Martin v. Worker’s Compensation Board of Nova Scotia, wrote:

…there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians.

CHRONIC PAIN AND DEPRESSION

Accident victims that are suffering from chronic pain are three times more likely to suffer from depression than the general population. These individuals often experience a vicious cycle as the pain causes depression, and depression can also cause pain. This type of cycle can become completely unbearable.

Symptoms of chronic pain and depression may impact the accident victim’s ability to be involved in relationships, maintain employment, or participate in activities previously enjoyed. Furthermore, the mental suffering and financial hardship may result in deeper depression, stress and anxiety.

Those suffering from chronic pain and depression may experience the following symptoms:

  • Feelings of sadness, hopelessness, desperation or irritability;
  • Lethargy or feelings of being unmotivated;
  • Sleeping too much or too little;
  • The inability to focus;
  • Reduced mental capacity and memory loss;
  • Loss of interest in things, activities or people you previously cared about; and/or
  • Thoughts of death and suicide.

The legal team at Cuming & Gillespie Lawyers recommend that those that are suffering depression as a result of chronic pain injuries take the following steps:

  • In cases of contemplation of death or suicide, it is essential to reach out to a suicide prevention service such as the Mental Health Help Line at 1-877-303-2642 or in an emergency situation call 911 for immediate help;
  • Talk to someone, either a friend or family member, but it is important to seek out a healthcare professional as soon as possible to deal with the depressive symptoms you are experiencing;
  • Build a support network with friends and family members and ask for their help;
  • Avoid triggers that bring upon depressive episodes; and
  • Exercise to reduce stress and release endorphins and use stress reduction techniques such as yoga, massage, long baths or activities that can improve your mood.

If you or a loved one have suffered chronic pain 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.


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