Access to Justice in Hospital and Medical Class Actions

In this four-part series, personal injury lawyer Ches Crosbie discusses how class actions may increase access to justice.

Is Peace of Mind an aim of the Pathology Contract?

Many pathology specimens have been rechecked for accuracy in Newfoundland and Labrador in recent years. Is there a pscyhological benefit to having an accurate answer?

Residential School Survivors Sue for Dignity Not Money

The decision of the Newfoundland and Labrador Court of Appeal yesterday to uphold the residential schools class action certification is good news!

The Shocking Truth About Wrongful Death - Chapter 1

Personal injury lawyer Ches Crosbie explains why he wrote the ultimate guide to wrongful death cases in Newfoundland and Labrador.

Legal Reform Needed to Help Pedestrians

Three serious road accidents involving pedestrians including one death occurred last week, and I posted the transcript of a good CBC radio interview on the topic.  Here's the point I would make about pedestrian collisions, and it's one the government should act on.

Sure, it's easy to say everyone should be more observant of safety, including pedestrians.  But the loser in any disagreement between a motor vehicle and a pedestrian is going to be the pedestrian.

I walk to work most days and I cross LeMarchant Road in front of the Basilica, at the intersection with Bonaventure Avenue.  And I can tell you from experience that one in three cars do not stop for a pedestrian entering a crosswalk.  I've complained to the Chief of Police about enforcement, with no result.

Others have suggested ways to improve safety and reduce accidents and needless injury and death.  As a lawyer helping injured people, I see an area where our law of the roads needs reform.  Most other provinces have a rule on their books that vehicles running down pedestrians are presumed to be at fault.  An example is s. 248 of the Nova Scotia Motor Vehicle Act.

Pedestrians are frail and vulnerable.  It's time our legal rules shift the onus of proof against the driver, who all too often is focused on everything but pedestrian safety, and protect the frail.

 

Aim to Claim: Things to Know Before Calling Your Insurer - 7th and Final Point

7.      RESOURCES AVAILABLE TO YOU

Is a particular loss covered?  What's it worth? What does that clause really mean?  If you encounter misunderstandings, disagreements or other problems with a claim:

• Get clarification from the broker or agent who sold you the policy.
• Talk to the adjuster or claims specialist, or this person's supervisor.
• Ask for the insurance company's internal ombudsperson. Every federally licensed insurance company must have one.
• For home, auto and business, contact the General Insurance OmbudService (www.giocanada.org) or the OmbudService for Life and Health Insurance (www.olhi.ca). They can help cut through the red tape and impartially resolve disputes between you and your insurers.

Don't worry about a claim being denied, seeing your premiums rise or being blacklisted if you raise a fuss.  It's your right to complain-and it's often necessary.  "An insurance policy is proof of a legal contract, but there can be grey areas when it comes to settling claims," says Sherman, from The Co-operators Group.  "Every claims settlement is to some extent a negotiation."

Aim to Claim: Things to Know Before Calling Your Insurer - 6th Point

6.      DO YOU NEED A LAWYER?

In cases involving serious injury or in disputes over claims involving significant sums, it may be prudent to consult a lawyer.  Whether guiding you through the legalese of insurance contracts or helping you avoid lowball offers, a lawyer can protect your interests.

In the relationship between the insurer and the policy holder, lawyer Crosbie says, "There's a power and knowledge imbalance-a lawyer redresses the imbalance."

Aim to Claim: Things to Know Before Calling Your Insurer - 5th Point

5.      BE YOUR OWN BEST ADVOCATE

An insurance company may not be on your side, but that doesn't mean they're against you.  However, Bruce Cran, the president of the Consumers' Association of Canada, calls the relationship "adversarial."  As he notes, people making claims want everything they feel is coming, and not a penny less.  Insurers want to pay out what they feel they must, and not a penny more.

Settling claims is about balancing interests and being fair, which can be open to interpretation.  Read your policy carefully to understand your responsibilities and rights.  Clarify what you're expected to do (for example, quantify a loss and get receipts) and what your insurer will do for you.  Justify your requests.  Yes, the insurance company has obligations, but ultimately you're your own best advocate.

"You're an active participant in the claims settlement process," says the Insurance Bureau of Canada's Olson.  "It won't just happen around you."

Aim to Claim: Things to Know Before Calling Your Insurer - 4th Point

4.      DON'T SETTLE TOO QUICKLY

Sometimes, you just want to get the incident behind you.  But resolving a claim too quickly could mean an inadequate settlement.

Generally, for injuries where pain and damage can linger, don't settle until "the point of maximum medical improvement," says St. John's, N.L., lawyer Ches Crosbie.  With other types of claims (such as fire, where you might not be certain of the property loss), give yourself time to gather all the necessary information.  Then take time to consider the offered settlement to determine if it's fair.  If not, go back to the insurer.

Remember, insurance is not for a quick cheque, "it's to reimburse you for what you've lost," says General Insurance OmbudService's Maltman.

Aim to Claim: Things to Know Before Calling Your Insurer - 3rd Point

3.      TELL THE TRUTH

Being honest won't work against you, even if you're to blame for the loss.  But fudging the details, let alone outright deception, will come back to haunt you.

Often when making a claim, you are at fault-"There's no stupidity exclusion in a policy," says Lindsay Olson, a vice-president for the Insurance Bureau of Canada in British Columbia.  "People make errors."  But withholding the facts could make it harder for insurers to probe a loss, be construed as deliberate misrepresentation, label you as what The Co-operators Group's Sharman calls a "moral hazard"-what else are you lying about?-and could even nullify your claim.

Aim to Claim: Things to Know Before Calling Your Insurer - 2nd Point

This is the second in a series of seven points to think about before calling your insurer.  It comes from an article in Readers Digest by Stuart Foxman, for which I was interviewed.  Look for other points each Friday.

2.      FILING YOUR CLAIM

Delays in reporting an incident can hamper an insurance adjuster's ability to investigate.  With a car accident, for instance, the memories of witnesses can fade.  Back to that basement flood:   The insurer could also wonder if a loss was bigger than it needed to be.  Did you take steps to, say, minimize damage after a flood?  Where's the evidence of the original loss?  Did you try to fix a loss on your own and possibly make it worse? 

"Your delay could make it difficult to assess damage," says Brian Maltman, executive director of General Insurance OmbudService, "The insurer may even deny the claim because it has been prevented from being able to properly deal with the loss."

Ches Crosbie interviewed on breast cancer testing class action compensation and fees

Ches Crosbie interviewed by Out of the Fog on January 7, 2010 on breast cancer testing class action compensation payments and fees.

Not Giving Up on VLT Class Action

On Saturday December 19, 2009 the Telegram ran a front-page story on the Piercey family's renewed effort to obtain class action certification.  The story was called "Crosbie not giving up on VLT class action", and the reporter was Barb Sweet. 

The earlier attempt to obtain certification was based on the Trade Practices Act.  Justice Dymond ruled that as a crown corporation, the Trade Practices Act did not apply to Atlantic Lottery Corporation.  So, now we are back, this time with allegations based on breach of the Criminal Code, and breach of s. 52 and s. 36 of the Competition Act prohibiting misleading advertising.  Also, unjust enrichment, breach of contract, and breach of duty to warn in tort.

We hope to have a date for the certification hearing set in a case management meeting with Justice Dymond, on January 18, 2010.  Certification is what determines whether a class action can go forward or not.

You can read the Telegram story at the above link.

Government Decides to Modernize Compensation for Wrongful Death

In my blog and letter to The Telegram in October 2009 "The Shocking Truth About Wrongful Death", I sought to bring the attention of the legislators to the backward state of the law of Newfoundland and Labrador.  Our law makes no provision for compensation of estates for pain and suffering, and no provision for compensation of close family members of victims of wrongful death.  Now in a move which has received less press than it deserves, the legislature has seen the introduction of a private members resolution aimed at much needed reform of this primitive area of our law, and yesterday December 16, the government adopted the initiative and will strike a select committee to make recommendations for amendment of the laws.  My name even got a mention in debates.

Anyone who takes a look at our law of wrongful death will agree that it is not in step with modern conceptions of justice and fairness.  In the interests of needed law reform, I propose Compensation Modernization Act.

The amendments to the Survival of Actions Act are necessary in order to permit estates to claim for pain and suffering experienced by a deceased prior to the death.  This is done in Ontario and elsewhere.

The amendments to the Fatal Accidents Act are necessary in order to permit persons in a close family relationship with a deceased to claim for loss of care, guidance and companionship on a non-pecuniary basis.

When the Supreme Court of Canada reformed the law in 1998 in the Ordon Estate case, it did so on behalf of persons in a close family relationship with deceased persons and with injured persons, in other words persons who had not died of their injuries.  Therefore the inclusion of provisions seeking to extend the right of compensation to close family members in relation to injured persons.

I have for the most part followed the language of the Marine Liability Act, 2001, c. 6, sections 4, 5 and 6, which was Parliament's response to Ordon Estate, inserting a legislative right to compensation in the relevant legislation.  Here are links to the Ordon Estate case and the Marine Liability Act.

 I wish our legislators good luck and God speed with this much needed piece of modern law reform.

Tough Rules Reduce Accidents

According to insurance company figures, British Columbia's enhanced graduated licensing regulations prevented over 17,000 accidents and saved 31 lives between 2003 and 2006.

British Columbia has introduced upgraded regulations to extend the novice and learner stages, raise the age for drivers needing supervisors, and limit passengers for new drivers.

The new rules will be introduced in January 2010.  Young drivers will be banned from using both hand-held and hands-free cellphones or electronic devices while driving.  Younger drivers aged 16-24 are more likely to be distracted by phones or MP3 players because of their inexperience at the wheel, according to the insurance company for B.C. drivers.

I wonder why more experienced drivers are immune from the distraction of hands-free devices?

There will be more restrictions coming in future years, but this is a good start in preventing needless automobile injury and death - and in restraining insurance premium increases necessary to pay damages to those injured by negligent driving.  Government in Newfoundland and Labrador should take note.

Breast Cancer Settlement: How Much and When Paid?

Class members have asked us how much is the settlement in individual cases, and when will the settlement moneys be paid to the victims.  First, membership in the class is determined by the class definition approved by the court:

(a)     Patients, including their estates, who underwent ER (estrogen) and PR (progesterone) receptor tests in which their breast tissue samples were tested at the Defendant’s hospital during the Class Period; and

(b)     Persons who have a claim for loss of consortium and loss of guidance, care and companionship on account of a relationship with a person in paragraph (a).

The Class is restricted to residents of Newfoundland and Labrador.

The “Class Period” is defined as: May 1, 1997 to August 8, 2005, or such other dates as may be approved by the court.

Patients who gave samples at Clarenville between 1999 and 2005 would not be included, because their specimens were sent to Mount Sinai for testing and not to Eastern Health.

The settlement structure is made up of five harm categories and more seriously injured patients will receive higher payments.  Details of how much is proposed to be paid in relation to each injury category will be announced after a scheduled case management meeting with Justice Thompson on December 1. 

The settlement will be funded by December 29 and the hearing to obtain court approval could occur in late December or early January.  Class members will be expected to submit an application for compensation, and cheques may be available commencing 30 days from the date of approval, should approval be granted.  The 30 day period is intended to allow for any possible appeals.  The exact timing of these events is subject to the court.

The application process is intended to be straightforward.  Most class members should receive written notice of prequalification for a compensation category based on such information as whether the class member changed ER/PR positivity status on retesting, whether the disease recurred or not within 10 years of the date of diagnosis of breast cancer, and whether the patient was stage IV (already metastasized to distant organs) on diagnosis. 

Class members who have hired Ches Crosbie Barristers to represent them individually, can expect us to assist them in the process of applying for compensation in the injury category that applies to them.  For example, should a class member disagree with the assignment of her or him to a particular prequalification category, we would be able to check the correctness of this against the medical chart which we have in our possession.

Patients who have passed away (ie. their estates) are entitled to compensation.  Application may be made by the executor or administrator or failing that, by beneficiaries of the estate. 

We ask that further questions of a general nature be posted here in the form of a Comment.  We will post answers to these questions so that the answers are available to be viewed by class members generally.

 

The Shocking Truth About Wrongful Death Claims: An Open Letter to the Premier

Last weekend I attended sad visitation with the family of Donna Howell, perished at the age of 53 from generalized breast cancer.  Donna was one of those many patients of Eastern Health whose hormone receptor testing was bungled.  She didn’t get Tamoxifen.

It was not the time to tell Donna Howell’s husband Darryl the shocking truth:  Yes Premier, in your province it is cheaper to kill than to main.

But you already know this.  You were once a personal injury lawyer, and a very good one.  Once, you too revolted against the shocking truth that dead people are worth less in money damages than the living.  Your educated lawyer’s conscience still revolts at this truth.

In your province, the law of compensation for intangible losses surrounding death has not changed since the days when the British Empire permitted slavery.  Our still-existing law stems from a time when life was not just cheap, it was worthless.  But as an educated lawyer, you know this.

In the rest of Canada, the wrongful loss of the society and comfort of a loved one is compensated and has been for decades.  As an educated lawyer, you know this.

In the rest of Canada, the pain and suffering of a victim of wrongdoing is compensated even though the victim dies.  As an educated lawyer, you know this.

Many times have courts, even the Supreme Court of Canada, condemned the wrongful death laws we still enforce.  Courts have condemned the laws we enforce as inhuman, barbaric, anachronistic, and out of step with modern conceptions of fairness and justice.  As an educated lawyer, you know this.

As an educated lawyer, you know that modern conceptions of fairness and justice demand that of our laws of wrongful death be reformed.  Better to reform these laws in the Legislature; but the time has come for court-driven law reform if government fails in the task.  Many more like Donna will perish while court process grinds toward reform.

Donna’s husband Darryl Howell still has faith in your commitment to fairness and justice.  Others will wait and see.

 

Eastern Health to Put Scandal Behind It: Here's How

Vickie Kaminski wants to put the breast cancer testing scandal behind her. That's what the Eastern Health CEO told the annual general meeting Wednesday. "The time has passed for Eastern Health to be defined by one issue", she said.

The Cameron Inquiry was about truth and reconciliation. The truth came out, and it was ugly. Reconciliation remains elusive.

Eastern Health will not put this scandal behind it until it achieves full reconciliation with injured patients by earning the right to be trusted, and by making financial reparation. This is how we close the circle of reconciliation in an advanced society based on respect for human rights. Reconciliation requires the courage to make amends, and there can be no moving on until amends happen and are seen to happen.

More truth will help with reconciliation too. Many times have clients told me that they "don't want this to happen to anyone else". Beginning in March 2009, we have asked for information from Eastern Health on the progress of several important recommendations of the Cameron report, for example, retesting of the positives. We still have no formal answer. (I don't blame Eastern Health's lawyers for this, they can only work with the information they are given.)

That's why Verna Doucette has asked us to demand an accounting from Eastern Health on progress on the more important Cameron recommendations as an aspect of settlement.

Verna is not well, due to complications of treatment, and has not been willing to make herself available for public comment. She told me yesterday that she will come to St. John's from her Port au Port peninsula home to be available for press interviews on Tuesday, October 27, 2009 before the mediation begins. She is not a public person and I know this decision to speak publicly requires courage.

Let's see matching courage from Eastern Health. The courage to make amends.

 

Difficult Choices For Copter Crash Victims Include US Lawsuit

The known evidence is pointing more and more strongly to potential negligence on the part of Sikorsky Helicopter Corporation, based in Connecticut, United States of America.  Today the Globe and Mail published a story that it had obtained documents showing that the Sikorsky S-92 “failed a critical test of whether the aircraft can keep flying if the oil in its main gearbox leaks out….  Certification documents show that the S-92 couldn’t meet a specification that calls for the main gearbox to run for half an hour without oil – a requirement known as “dry run”.”  I wrote about the 30 minute dry run requirement in “Families Review Legal Options”.  The story quoted an experienced test pilot who said that until three weeks ago, he would have assumed the S-92 would fly without oil pressure for 30 minutes – which probably is exactly what the pilot of Cougar Flight 491 assumed as he was making for safety at Cape Spear.  “Now I know different.”

The laws of Newfoundland and Labrador are not generous in wrongful death cases, in fact they are downright backward.  I have to deal with this in the Breast Cancer Testing Class Action.  How about some attention to law reform here, Danny Williams, Q.C.?

A very important question is whether the victims of a product defect which causes death and injury in Newfoundland and Labrador, Canada, can sue a product manufacturer which is based in the United States of America.  I know from experience in other cases that the money damages in a US court can be ten times the damages available here.

So last week I contacted a leading US aviation liability lawyer in the United States for advice.  Bottom line:  there is no black and white answer, but the chances of bringing suit in the US are greatly improved if the Cougar/Sikorsky family members are guided from the start by sound Canadian and US legal advice on how to achieve the fullest measure of justice. 

The decision to accept Workers Compensation or not is a complicated decision to be based on many individual factors.  The decision must be made within 6 months in death cases, 3 months in a case of injury, so there is time to sort through the options.  Families should obtain a package of information from the Commission, and obtain the best advice they can, from the Commission, union representatives, and other trusted advisors.

One of these advisors should be a personal injury lawyer with experience in product defect cases and the ability to access top legal expertise in the complicated world of aviation disaster law.

There are strong reasons for all the families and their legal advisors to stick together in these early months and develop a common strategy.  The potential benefits of acting together are great.  Loved ones lost in the tragedy would expect it.

If this sounds expensive, lawyers who do this kind of work usually work on a “no cure no pay” or contingent fee basis, meaning the fee will be a percentage of the settlement or court award.  Anyone looking for a lawyer should interview more than one lawyer, taking care to discuss qualifications, case strategy, and fees.  You don’t just want a good lawyer, you want the best lawyer for your case!

Eastern Health to Divide and Conquer?

Several clients have e-mailed wondering if HIROC, the Eastern Health insurer, plans to exclude certain types of claims or class members from compensation.  One class member was quoted in the news over the weekend as describing this strategy as “pitting sick people against sick people”. 

 

An e-mail from a class member today stated that although she did not have a change of test result, she has had to work hard to not “give up and let this eat me alive”.  She asks “do persons like me have a case too?”

 

In our opinion, persons who did not have a change in test results do have a good claim for mental and psychological distress and anguish.  I will explain this a bit more tomorrow, and I intend to send out an e-mail to see what class members generally, think of the validity of the mental distress claims.  A good way to canvas opinion in the group is by blog comments on the questions which I will raise in my blog tomorrow.  If you have a comment you would like to post on today’s blog, please do—it helps me and it can be persuasive to the other side too.

 

And as an added bonus, I will Donate $10.00 to Daffodil Place for EACH blog comment posted!  (Remember these are public comments.  If you wish to preserve your privacy, you don’t have to use your real name.)

 

More on the subject of damages for mental distress tomorrow.