Attorney Blog

Three Pedestrian Traffic Accidents in Week Provoke Questions

ccrosbie@chescrosbie.nf.net (Blog Author)28065 — Thu, 11 Mar 2010 08:00:00 EST

A string of recent motor vehicle collisions with pedestrians have raised public concerns about traffic safety. CBC radio had a useful discussion of the issues this morning and I had a transcript made. Here's the first part, the final part will follow tomorrow.

More respect for safety and the rules of the road, from both drivers and pedestrians, is the prescription offered.

Mr. Gilhooly:        An 85 year old man dies after being knocked down while crossing a busy stretch of highway in Long Pond, an 11 year old girl is in critical condition at the Janeway after she was struck by a car in Grand Falls-Windsor, and on Monday, another pedestrian was knocked down by a hit-and-run driver around lunchtime on Elizabeth Avenue in St. John's. A spike in car-pedestrian accidents has a lot of people wondering, what is going on. Jim Brazil is the Manager of Traffic Safety for Safety Services, that's the group we used to call the Newfoundland Safety Council, and he's live in the studio. Good morning Jim, thanks for coming in.

Mr. Brazil:             Thanks.

Mr. Gilhooly:        I know that we don't know the specifics of each of these cases so we're not going to go there but when you hear about a string of accidents like this in a fairly short period of time, what goes through your mind?

Mr. Brazil:             Well, I think it's not typical, what goes through my mind is I'm seeing and our instructors are seeing a lack of respect for other road users, typically from the driver side. A lack of respect in the sense of ignoring crosswalks; ignoring people in the crosswalks. Now it goes both ways. You'll see jaywalkers all over the city who don't use the crosswalks when they're supposed to use them. So while there's a spike as you say, I'm not certain that it's tied to anything that's sound, I think it's simply something that has occurred. There has been a lack of respect on our roadways it seems for a long time.

Mr. Gilhooly:        We always hear comments about there's too much traffic now, it's more than the infrastructure, I guess, was built for, or we talked about speeds, drivers are, they're too fast these days, does any of that make sense to you?

Mr. Brazil:             Well statistically in the last 25 years we've increased our vehicle registrations by 60% across the country, we have 35% more drivers than we had 25 years ago, so obviously there is increased traffic out there, there's no doubt about that. Speed, well speed is always a factor. We all have this understanding that we can drive 60 in 50 kilometers alright and 65, we're not going to get a ticket, we can drive 150 in a 120 on a 100 kilometer an hour stretch and we're not going to get a ticket. The reality of it is though speed impacts on us in a number of ways. It increases our stopping distance and obviously it also increases our kinetic energy or our force of impact. Statistically it's interesting to note that someone who's hit, a pedestrian is hit at 30 kilometers an hour and has only a 5% chance of actually dying from that collision, whereas someone who's hit at 65 kilometers an hour, there's a 85% chance that they will die from that collision.

Mr. Gilhooly:        Wow. I think some people would also be shocked with the latest statistics on the percentages of pedestrians killed in all traffic accidents in Canada. I was when you told me this number yesterday. Can you lay that on us now?

Mr. Brazil:             13 out of every 100 fatalities in Canada are pedestrian traffic fatalities.

Mr. Gilhooly:        Everybody I asked that question to guessed much lower than that.

Mr. Brazil:             They typically do.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 16

ccrosbie@chescrosbie.nf.net (Blog Author)28032 — Thu, 11 Mar 2010 08:00:00 EST

The Legal Process in Medical Malpractice Cases

In a medical malpractice case, we will almost always file your suit before negotiating so that if negotiations break down, we will already have a trial date in place to head towards. In an automobile case, our approach depends on our experience of the attitude and previous behaviour of the insurance company. We apply our long history of negotiating claims to your benefit in every case.

I believe that it is a dangerous practice to wait until the statute of limitations has almost expired to file suit. I have seen other lawyers do this only to find that the defendant they sued is either not the correct defendant or is now blaming someone else.

While there are legitimate reasons for delaying filing suit, there is no excuse for the practice that I sometimes see whereby some lawyers routinely wait until the last moment to see if the insurance company will settle your case. When the claims do not settle, they often panic to file the case on time.

In Newfoundland and Labrador, a medical malpractice case is begun by filing a lawsuit in the Supreme Court. Once the lawsuit is filed, both sides engage in the legal process called discovery. Each party is allowed to investigate what it is the other side is going to say at trial. The defendant will be permitted access to your medical and work history, including your income records. You may have to give oral discovery under oath and you may be required to submit to a medical examination by a physician of the defendant's choosing. The defendant is also subject to discovery. He or she will answer written and oral questions about their own background and will have to give sworn testimony about the incident at issue.

In Newfoundland and Labrador you can expect to go to trial about one year after the case is placed on the "trial list". However, much must be done to be ready for trial and national statistics show an average of five years for a case to resolve, and seven years in a complex case is not unusual.

Timing of Compensation Payments

ccrosbie@chescrosbie.nf.net (Blog Author)26490 — Wed, 10 Feb 2010 08:00:00 EST

Some class members have been inquiring as to the timing of payments and as to why there will be more than one payment.

I would expect that Category 1 claimants will receive a cheque within several weeks from when the judge releases his decision. I cannot speak for the judge but would anticipate that the decision as to approval of the settlement will be handed down within several weeks. When it is handed down, we have the settlement fund in an interest bearing trust account and will hand over the monies to the administrator.

The administrator would be expected to keep these monies in an interest bearing account until the distribution is complete.

The first payment will be an amount which is about half of the intended injury compensation amount. The reason is that the ultimate payment will be partly a function of how many people claim in each category. Not all class members in a class action settlement actually make a claim, and depending on what is called the uptake, the amount for disbursement to each claimant may be slightly more than the intended amount, or slightly less.

We must give public notice of the settlement approval and there will be a six month period for class members to apply. The administrator will make a first payment to all those class members in categories other than 1 at that point (category 1 members will already have received a cheque).

The administrator will prequalify class members for whom we have medical records and notify them of the prequalification and the category in which they are prequalified. We will be giving the administrator the records we have obtained. To verify that the administrator has a class members records, you should contact the administrator at the toll free number or other address which he will provide. We will give you a reminder to do this when the judge hands down his decision on approval and the administrator makes the toll free number known.

I understand that these delays can seem frustrating, but in something as complex as a class action settlement, delays of this kind are inevitable and outside of our control. Thank you all for your patience.

Eastern Health Mixes Up Test Results Again

ccrosbie@chescrosbie.nf.net (Blog Author)26107 — Wed, 03 Feb 2010 08:00:00 EST

One of our breast cancer members told me about a very bad turn she had yesterday. I'll call her Grace, not her real name, to protect her identity.

Grace got a call yesterday from a nurse telling her that the cancer doctor wanted to see her when she comes to the hospital for her appointment on Monday. Grace said I don't have an appointment Monday, and the nurse said yes you do, you have to start radiation on your brain.

Grace almost dropped dead - she saw Dr. McCarthy last Thursday and was told that her bone scan came back fine but that her kidneys were failing and she had to be taken off all cancer drugs but there was no cancer to worry about. She had a panic attack and blacked out for a few seconds. She then said to the nurse you must be wrong and told her what Dr. McCarthy had said to her previously. The nurse said oh my I'm sorry, she had mixed up the results and should have called someone else.

Grace is a very sick woman and this only added to her stress about all this. She wanted me to know about this terrible incident, and I am sharing this with other class members.

When Eastern Health stops mixing up individual results I'll feel a lot more confident that they have the big systemic issues fixed. If I were Premier Williams, I'd check my chart before heading off for heart surgery ... it could be someone else's result.

Patient Wins Stroke Case: Failure to Inform

ccrosbie@chescrosbie.nf.net (Blog Author)26078 — Wed, 03 Feb 2010 08:00:00 EST

A chiropractic patient recently won a difficult case against a local doctor alleging neck manipulation caused her stroke. The case was tried in St. John's.

In Gallant v. Brake-Patten the patient won on the point that she was not advised by the doctor of the risk of stroke. She also satisfied the judge that she would not have undergone the procedure if properly advised. And very importantly, she convinced the court that she would not have suffered the stroke, but for the chiropractic procedure.

The plaintiff was ably represented by Lois Skanes of Roebothan McKay Marshall.

Teaching point: cases are infrequently won on the ground of absence of informed consent. But on the right facts, informed consent cases are winnable. Damages are to be assessed later, or agreed.

Governments Sues Bill Murray to Recover Money Stolen to Feed VLTs

ccrosbie@chescrosbie.nf.net (Blog Author)25757 — Wed, 27 Jan 2010 08:00:00 EST

A $500 a day VLT habit!

Almost lost among the ugly details the press has reported about Bill Murray's guilty plea to theft of an estimated $400,000, is the fact that most of the money went into VLTs. At a rate of $500 a day, $180,000 a year.

Looks to me like Murray might have a defence to the government's lawsuit - the government already has the money! Let's see how this works. Murray steals from the taxpayer; VLTs run by Atlantic Lotto steal the money from Murray; the government takes the VLT money from Atlantic Lotto; the government sues Murray to recover the stolen money, which was poured into VLTS, which was paid to the government ... and so on.

Who are they trying to kid?

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

ccrosbie@chescrosbie.nf.net (Blog Author)25493 — Fri, 22 Jan 2010 08:00:00 EST

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

ccrosbie@chescrosbie.nf.net (Blog Author)25492 — Fri, 22 Jan 2010 08:00:00 EST

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

ccrosbie@chescrosbie.nf.net (Blog Author)25491 — Fri, 22 Jan 2010 08:00:00 EST

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

ccrosbie@chescrosbie.nf.net (Blog Author)25490 — Fri, 22 Jan 2010 08:00:00 EST

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

ccrosbie@chescrosbie.nf.net (Blog Author)25489 — Fri, 22 Jan 2010 08:00:00 EST

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

ccrosbie@chescrosbie.nf.net (Blog Author)25488 — Fri, 22 Jan 2010 08:00:00 EST

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."

Court Favors Plaintiff in Pension Class Action Against Memorial University

ccrosbie@chescrosbie.nf.net (Blog Author)25255 — Tue, 19 Jan 2010 08:00:00 EST

Over 250 pensioners of MUN will benefit from a court order last week allowing them to proceed as a class action against their former employer. The pensioners allege that MUN is in breach of contract and of fiduciary duty in cutting pension benefits. The case is called Acreman v. MUN.

The decision is a workmanlike effort which builds on established Newfoundland jurisprudence such as Rideout v. Health Labrador Corp. and Doucette v. Eastern Regional Integrated Health Authority, in each of which Ches Crosbie Barristers was privileged to obtain certification and settlement for injured class members. For example, the decision quotes Doucette that the litigation plan is only a preliminary projection and subject to adjustment: "It is not to be unexpected that a litigation plan may undergo changes as the matter progresses" (para. 86).

If there is anything new and noteworthy in Acreman, it is the court's rejection of the gloss on the "plain and obvious" test for showing a cause of action, which was attempted by the Saskatchewan Court of Appeal in Hoffman v. Montsanto. In this case, the Saskatchewan Court of Appeal oddly stated that the representative plaintiff must satisfy the court that the pleadings disclose "an apparently authentic or genuine" cause of action.

Whatever was intended by the apparently "more stringent test" in the Hoffman case, it was rejected. The court, quite properly, was of the view that the appropriate test is the unadorned "plain and obvious" test explained by the Supreme Court of Canada in Hollick and applied by the Newfoundland court in Wheadon v. Bayer Inc., in which we also had the pleasure of representing the plaintiffs. Exactly right!

All in all, a worthy addition to a distinguished body of class action jurisprudence in Newfoundland and Labrador, which makes us the leader in the class action field, certainly in Atlantic Canada, and elsewhere as well.

Aim to Claim: Things to Know Before Calling Your Insurer

ccrosbie@chescrosbie.nf.net (Blog Author)24976 — Wed, 13 Jan 2010 08:00:00 EST

I was pleased to be interviewed by Readers Digest for an article which appeared in their January 2010 edition, "Aim to Claim: Seven Things to know before calling your insurer." The article was written by Stuart Foxman and quoted me in several places. As it points out, when the consumer buys insurance, he or she believes they are buying piece of mind. But reporting a loss can be anything but a peaceful experience. There are things to think about before making an insurance claim that can improve success. Here from Readers Digest is the first of the seven things you need to know before calling your insurer. The other points will follow in subsequent blogs.

1. IS THE CLAIM WORTH IT?

Depending on the amount of your loss and your deductible, you might not even want to make a claim. Your $400 bike is stolen and you have a $300 deductible? Coming out $100 ahead may not be worthwhile if it means you'll lose your claims-free discount. So think hard and check your policy first.

In other situations-for example, making repeated claims for minor water damage in your basement-the insurance company could say you're ignoring the root cause and potentially will refuse to sell you that coverage anymore. "Insurance isn't a maintenance contract," says Bob Fitzgerald, executive vice-president and chief marketing and underwriting officer at Aviva Canada. You need to do your part.

By law, you must report any car accident resulting in an injury or damage over a certain dollar amount, which varies by jurisdiction. However, for minor at-fault accidents, which could affect your insurance premium (how much you pay per year for coverage), dealing with repairs on your own could be wise, says Leonard Sharman, spokesperson for The Co-operators Group.

Wrongful Death: What Breast Cancer, Swine Flu, and Cougar Helicopter Have In Common

ccrosbie@chescrosbie.nf.net (Blog Author)24439 — Mon, 04 Jan 2010 08:00:00 EST

The shocking truth that unifies these topics is the antiquated state of Newfoundland and Labrador law of wrongful death and the welcome decision of the Danny Williams government to change it.

In the Breast Cancer Testing class action, we came up against the defense position that they should pay nothing for patients already dead.

The families of the Cougar Helicopter crash victims come up against the same problem. Newfoundland law says that the dead are worth nothing. This is a major reason for the families of the victims to seek a venue in the courts of the United States, where substantial damages to compensate for this loss, insofar as money can do so, are available.

My firm is investigating cases of injury and death from H1N1 swine flu. These cases meet our test where death or injury is due to negligent failure to diagnose and treat, and where the failure - medical malpractice - caused the injury or death. All too often, a missed opportunity to treat has led to death.

What these high profile cases - Breast Cancer Testing, H1N1 Swine Flu, and Cougar Helicopters - have in common is the awful consequence of death and the failure of our civil justice system to recognize it in money damages.

What the families of wrongful death victims need is civil justice laws with real teeth, teeth that make wrongdoers pay. The Danny Williams government seems to be moving on wrongful death law reform - based on my prompting and the experience of the Breast Cancer Testing class action. Godspeed the legislators on this needed law reform.

Our 100% Outrageous Guarantee

ccrosbie@chescrosbie.nf.net (Blog Author)23742 — Mon, 21 Dec 2009 08:00:00 EST

This website may contain information about cases that look similar to yours. We 100% GUARANTEE that your case is different. Don't think that because your aunt Mildred in Clarenville or your friend's friend in Corner Brook got a ton of money for their injuries that any other lawyer can get something similar for you in your case. We recommend you should always consult with an experienced lawyer before proceeding with your claim. You can contact us for a recommendation.

Not Giving Up on VLT Class Action

ccrosbie@chescrosbie.nf.net (Blog Author)23741 — Mon, 21 Dec 2009 08:00:00 EST

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.

Ontario Courts Not Afraid of Large Numbers

ccrosbie@chescrosbie.nf.net (Blog Author)23643 — Fri, 18 Dec 2009 08:00:00 EST

Courts in Ontario are now regularly making awards in the double digit million dollar category to severely injured plaintiffs. This willingness to make very large awards where the evidence warrants has been confirmed on more than one occasion by the Ontario Court of Appeal.

In Marcoccia (Litigation Guardian of) v. Ford Credit Canada the Court of Appeal affirmed a jury award of more than $15 million. In MacNeil v. Bryan an Ontario judge showed that very large awards are not just the province of juries. The trial judge awarded a total of over $18 million to a 15-year-old girl and her parents. The girl was severely brain injured in a crash.

Here in Newfoundland and Labrador, the past year recorded a milestone of sorts: a court made a damages award to a victim of medical malpractice in an amount just over $1 million. This marked the first time a court in our province has ever made an award for over $1 million in damages in a personal injury case. I understand this decision is under appeal.

The reality is that our judges, generally speaking, do not think big when approaching personal injury damages assessments. And when a trial judge is courageous enough to award a significant amount, the Court of Appeal is apt to find reasons to cut it down or overturn it completely. This is what happened in the Williams case in which I represented the plaintiff and achieved a $4 million judgment at trial. The Court of Appeal overturned this completely on the basis that the defendant did not owe a duty of care and anyway, there was no negligence despite the presence of a 4½ foot deep, unmarked ditch into which the plaintiff had plunged. This finding of no duty was made despite the fact that the issues was not pleaded or raised in argument before the Court of Appeal. Lawyers call this the absence of a fair hearing.

I am not carping behind the back of the court, because I said this to its face in subsequent proceedings.

Courts are not generous, whether in Ontario or here. Large awards have to be won by meticulous preparation and overwhelming evidence. And sometimes even that is not enough.

Bloopers of the Year: Defendant Doctor Pleads Cancer Patients Entitled to Second Class Care

ccrosbie@chescrosbie.nf.net (Blog Author)23605 — Fri, 18 Dec 2009 08:00:00 EST

In a decision this year, also reported at the News feature of this site, a trial judge was confronted with the outrageous defence that patients in Newfoundland are entitled to a lower standard of care than elsewhere.

General practitioner Peter J. Cleary missed a diagnosis of mouth cancer over a nine month period, resulting in extensive commando surgery to effect a cure. To get himself off the hook, the doctor and his powerful defence organization, the Canadian Medical Protective Association, told the judge that the injured cancer patient's expert from Indiana, U.S.A., was expecting too high a quality of care for diagnosing cancer in Newfoundland and Labrador.

The trial judge rejected the doctor's argument for second class care, finding that "examination of oral lesions is basic medicine in the western world no matter where one was trained or practised." To accept the defence evidence "would be endorsing a different, and in this case lower, standard of patient care" for Newfoundland: para. 99.

This is the theme I've heard throughout the Breast Cancer Testing Class Action: Newfoundland cancer patients should not expect high quality care, and a certain rate of error is acceptable. But as Dr. Brendan Mullen from Mount Sinai put it at the Cameron Inquiry hearings, an error is a 100% rate of error for the patient involved. For doctors to justify their errors by telling patients they should expect only second class care is an outrage.

Government Decides to Modernize Compensation for Wrongful Death

ccrosbie@chescrosbie.nf.net (Blog Author)23562 — Thu, 17 Dec 2009 08:00:00 EST

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.

Can the Civil Justice System Rise to the Challenge of VLTs?

ccrosbie@chescrosbie.nf.net (Blog Author)23353 — Mon, 14 Dec 2009 08:00:00 EST

The social and public health problem presented by Video Lottery Terminal use is more intractable than the social and public health problem of tobacco use in the 1990s. In the case of tobacco, enormous industry propaganda and lobbying created a legislative deadlock over meaningful action, and the civil lawsuit stepped into the void, resulting in a global settlement in the United States in 1997. Nowadays, the cigarette industry no longer argues that their product is safe. It is a generally admitted fact that cigarettes kill half of all consumers when used as intended. About all the industry can say in defence of tobacco use now is that it is a legal product. Much of the credit for the "outing" of big tobacco lies with those enterprising U.S. civil justice lawyers who used the civil justice system to expose the truth about tobacco and make wrongdoers pay.

The legal challenge posed by the social scourge of VLTs is even greater, because it is the government itself which is responsible for establishing VLTs in Newfoundland and Labrador in the early 1990s, and for promoting VLTs and feasting on VLT revenues ever since. Atlantic Lotto Corporation, the government agent for managing and controlling VLTs in the province, is its own regulator, and the government is a shareholder raking in profits in the tens of millions each year, so don't expect that a solution to this scourge is going to come from government. The VLT problem has never been subject to the machinery of democracy in this province. It has never truly been an election issue, has never been subject to a referendum as in New Brunswick, and has never been subject to formal hearings with meaningful public participation.

If there is to be a meaningful legal response to the VLT problem, then it will have to come from the class action lawsuit. According to the Supreme Court of Canada, class action suits are about access to justice and deterrence of wrongdoers. In passing class action legislation, Canadian policymakers have chosen to delegate civil oversight to lawyers and their clients, who are prepared to take on the risk of prosecuting cases they believe will succeed against wrongdoers who cause widespread harm. The function of class actions is to fill a gap in the system of public interest regulation and oversight which can't be filled in any other way.

Today we filed our certification materials to be recognized as a class action. The class action is taken by Keith Piercey on behalf of his daughter Susan's estate, and is for the benefit of the class defined as follows:

"Natural persons and their estates, resident in Newfoundland and Labrador, who, during the Class Period, paid the Defendant to gamble on VLT games, excluding video poker games and keno games, in Newfoundland and Labrador.

The Class Period is the period from six years before the bringing of this action, up to the opt-out date set by the Court in this action.

Excluded from the class are directors, officers and employees of the Defendant."

Our court documents are available elsewhere on this website. We will meet with Justice Dymond in mid January to set a date for the certification hearing.

The problem with a VLT or continuous electronic gambling class action is that no one has ever done it before, at least in the common law world. The recipe for success has not been invented yet. American lawyers have attempted but failed. To the best of my knowledge, no other proposed class action with any realistic possibility of success has been taken in the other Canadian provinces outside Quebec. The old adage comes to mind, "you can tell the pioneers by the arrows in their backs."

But I believe that anyone who looks in an objective and fair-minded manner at the complaint we have filed will conclude that Mr. Piercey has a righteous case. We have filed evidence that VLTs are an inherently dangerous product - see the affidavit of Dr. Harrigan. The question is whether the civil justice system has enough inherent vitality and flexibility to fill the regulatory gap left by a governmental apparatus which is in hopeless conflict of interest.

Surgery: Making a List, Checking it Twice...

ccrosbie@chescrosbie.nf.net (Blog Author)23016 — Mon, 07 Dec 2009 08:00:00 EST

Performing surgery on the wrong site is, in my view, per se negligent and something that just should not happen. Wrong site surgery is easily avoided by following simple checklists: identify the patient; ask the patient to identify the intended site of surgery; mark the site; correlate the patient's anatomy with the imaging studies; correlate the site of surgery which what is planned as documented in the medical chart. But believe it or not, there are still times when these simple precautions are not followed and a surgical blunder occurs.

You would think that the victim of wrong site surgery could settle the case without a lawyer (assuming he or she knew the law on quantifying the money damages arising, which might be a stretch...). Well think again! Noted Virginia malpractice lawyer Ben Glass is representing a patient who tried to do just that - settle her own case - by making a very reasonable offer. Ben's client was met with a blunt denial.

Ben will give this client access to justice though the device of the contingent fee, and I don't doubt that after taking fees and expenses into account, the client will do much better in her settlement or award than as a "do it yourselfer", but the same unreasonable medical malpractice insurers are busy lobbying in the U.S. Senate to pass a law limiting fees that injured patients pay to their lawyers. (Luckily, a fee cap proposal was defeated in the Senate last week.) No mention is ever made of limiting fees paid to defence lawyers. With enough one-sided changes to the rules, insurance companies may eventually get away with denying recovery even for wrong site surgery - negligence per se!

Tough Rules Reduce Accidents

ccrosbie@chescrosbie.nf.net (Blog Author)22824 — Thu, 03 Dec 2009 08:00:00 EST

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.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 15

ccrosbie@chescrosbie.nf.net (Blog Author)22592 — Mon, 30 Nov 2009 08:00:00 EST

What Do We Do For You in a Medical Malpractice Case?

Here is a more or less complete list of the tasks we may be called to do in your case. Remember that each case is different, and that not all of these tasks will be required in every case.

Interview the client
Educate you about medical malpractice claims
Gather documentary evidence including medical records and hospital documents
Interview known witnesses
Collect other evidence, such as photographs of the injury itself
Analyze the legal issues, such as contributory negligence and assumption of the risk
Talk to your physicians or obtain written reports from them to fully understand the client's condition
Analyze your health insurance policy or welfare benefit plan to ascertain whether any money they spent to pay your bills must be repaid. (Unbelievable as it may sound, your health insurance company may be entitled to full reimbursement of the money it paid on your behalf.)
Analyze the validity of any liens on the case. Insurance companies, group benefit plans and employers may each assert that they are entitled to all or part of your recovery
Obtain relevant medical literature to help determine whether malpractice was involved in your injury
Recommend whether an attempt should be made to negotiate the case with the insurance company or whether suit shall be filed. (However, you should know that it is the rare malpractice case that can be successfully negotiated before filing suit.)
Obtain nursing and expert review of your claim
If suit is filed, prepare the client, witnesses and healthcare providers for depositions
Prepare written questions and answers and take the deposition, under oath, of the defendant and other witnesses
Produce to the defendant all of the pertinent data for the claim, such as medical bills, medical records, and tax returns
Go to court to set a trial date
Prepare for trial and/or settlement before trial
Prepare the client and witnesses for trial
Organize the preparation of medical exhibits for trial
Organize the preparation of demonstrative exhibits for trial
Prepare for mediation and/or settlement conference with a judge
File briefs and motions with the court to eliminate surprises at trial
Take the case to trial
Analyze the judgment to determine if either side has good grounds to appeal the case
Make recommendations to the client as to whether or not to appeal the case[1]

[1] Our contract with you does not obligate us to participate in any appeal.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 14

ccrosbie@chescrosbie.nf.net (Blog Author)22412 — Wed, 25 Nov 2009 08:00:00 EST

"It's so frustrating" - and how to find a lawyer on the Internet

Being a malpractice victim and looking for a malpractice lawyer in Newfoundland and Labrador - it's so frustrating! It's frustrating because there are so few sources of reliable information out there to help consumers find the right lawyer. Consumer frustration at trying to find good reliable information is the reason I wrote this book.

Nowadays, consumers often don't stop their research at the Yellow Pages or by asking a friend. They "Google" the internet. And when consumers do that, they get frustrated all over again.

Because when you put in a search term like "Newfoundland and Labrador Injury Lawyer" you get lots of lawyer referral sites that are spending millions of dollars to get good search engine placement, you get lots of random law firm sites that don't even have an office in our province, but you don't get search results that return websites of local law firms with good reliable information on personal injury issues. What you need is information that can really help you make what may be one of the most important decisions in your life - choosing a malpractice lawyer to help you with an injury claim that could affect the rest of your life.

The frustration caused by lack of good information is why I totally revamped our website. Our aim is to provide injured consumers with an easy to locate web resource to help them to answer the questions that keep them up at night. How do I find the right lawyer for my case? Should I talk to the doctor or hospital about what I think was malpractice or sign any papers? Am I making a terrible mistake by not contacting an experienced malpractice lawyer?

With the valuable free information you can get from this book and my website, I aim to put the consumer on an even playing field with the doctors, hospitals, and insurance companies. Armed with this information, if you think you need a lawyer, the next step of hiring a lawyer is up to you. I've given you the tools to make the right choice.

The internet has emerged as an indispensible tool in the injured consumer's quest to find a great lawyer. But to get the most value from this revolutionary tool, consumers need to know how to recognize sites that are likely to lead them to a great lawyer who is perfect for their case. Many sites are not what they appear to be.

Search engines such as Google use organic search terms. So a search term such as "Newfoundland injury lawyer" yields many pages of hits. If you're like me, you don't have time to view more than the first two or three pages. Among those pages you will see two basic categories of lawyer finder websites. They are "directory sites" and "referral sites", which are explained further on my website. A point about these sites is that they guarantee nothing about the qualifications of the lawyers to whom the consumer is directed or referred, and tell the consumer little about them except that these lawyers want the consumer's business.

The other type of website is a site put up and maintained by an individual law firm. Your search for "Newfoundland injury lawyer" will probably return only 2 or 3 hits for law firms with offices in Newfoundland and Labrador which claim to be experienced in injury law. A good test to use for judging law firm sites is: Does this website provide me with good useful information about my type of problem? If a law firm provides information about your problem in a useful and interesting way, instead of just talking about how great the law firm and its lawyers are, then this is a good indicator that you may be on the way to finding a great lawyer who is the right lawyer for your case.

Light Cigarettes Appeal: Judge out of step with modern policy

ccrosbie@chescrosbie.nf.net (Blog Author)21993 — Wed, 18 Nov 2009 08:00:00 EST

On behalf of Victor Sparkes, I am arguing the light and mild cigarettes deceptive practices appeal on Wednesday and Thursday. The proposed class action seeks a monetary remedy against Imperial Tobacco for deceptively marketing light and mild cigarettes as a more healthful alternative to regular cigarettes. Here's how I will introduce the appeal.

Many people who read the decision of the learned judge below, get an impression that he just did not see this proposed class action as a legitimate civil action.

With respect, we say that the learned judge was led into legal error by his adherence to an outmoded model of the legitimate purposes of civil actions. His mindset or philosophy of civil litigation is anchored in what the Ontario Law Reform Commission called the conflict resolution model. We say that with the passage of the Class Actions Act, the legislature has rejected this model and has adopted the alternative, behaviour modification model. By adopting this enactment, the legislature has removed the choice of model from the courts. With respect, the learned judge below applied a model of the purposes of civil litigation which it was not open to him to apply. His choice was out of step with modern litigation values and it influenced the policy choices he made in interpreting not only the Class Actions Act but the Trade Practices Act as well.

Two significant developments have occurred since certification was argued below, which reflect on the legitimacy of this action. One is national, the other local.

The national development is that every province except PEI has passed a statute to create a civil cause of action for an aggregate damages remedy against tobacco manufacturers. The Alberta legislature is in the process of enacting such a statute. Ontario commenced litigation against tobacco manufacturers this fall. This development is huge. British Columbia and New Brunswick are already in litigation and every other province has announced an intention to follow suit. This means that there is now a public policy consensus in Canada that the civil action for aggregate damages is a legitimate policy tool of tobacco control. Mr. Sparkes' action on behalf of consumers can no longer be viewed as something odd or unusual. It is now unquestionably in the legitimate mainstream of Canadian public policy.

The local development is the recent settlement of the Breast Cancer Testing Class Action. The Inquiry into hormone receptor Testing could make recommendations but had no jurisdiction to follow up on them. An important part of this settlement is class member presence on an oversight committee and the joint selection of an independent expert to perform an audit of the implementation of the Inquiry recommendations and made a public report. Many would see the Breast Cancer Testing Class Action as an example of the benefits foreseen by the foundational report of the Ontario Law Reform Commission on Class Actions. Many would see it as an indication of the vital role of the civil action in the machinery of Canadian Justice, and as a demonstration of the legitimacy of the class action on the local scene.

Our legal briefs are available at these links.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 12

ccrosbie@chescrosbie.nf.net (Blog Author)21443 — Mon, 09 Nov 2009 08:00:00 EST

How Do You Find Out Who Is Good In Your Area?

Here Are Some Tips

1. First, while your lawyer should be licensed in Newfoundland and Labrador, do not limit your search geographically. There are a small handful of lawyers in Newfoundland and Labrador who specialize in malpractice cases. Find the best lawyer in Newfoundland and Labrador for your case and don't concern yourself with geography. Our firm handles cases throughout Newfoundland and Labrador. Our size and small case load allows us to deliver terrific service whether you are in St. John's, Corner Brook, or Goose Bay.
2. Look on www.BestLawyers.com or www.Lexpert.ca. These sites contain the names of lawyers who are peer-reviewed - ranked highly by other lawyers - in various specialties.
3. Get a referral from a lawyer that you know. He or she may know someone who does specialize in your area of need. If you don't know anyone at all, do a Google search under terms like "Newfoundland Injury Lawyer" or "Newfoundland Accident Lawyer". Or "Newfoundland and Labrador Malpractice Lawyer" etc., if you prefer.
4. The Yellow Pages can actually be a good source of names. Understand three things, however: First, not everyone advertises in the Yellow Pages. Most of our cases come from referrals from other lawyers or from satisfied clients. Second, be careful about the ads that tout too many different specialties, no one can do everything well. Third, be careful about the double page ads. This advertising typically attracts a lot of cases, including the small cases that we do not accept. Make sure that the lawyer you hire is selective enough with his or her cases that your important case does not become just one more file in the pile, buried under the "weight" of Yellow Page ads. Fourth, ask yourself how much useful information do the ads actually contain. If they just say "Free consultation" and "No fee until you collect", they are not telling you anything new. Go for the law firm that gives you useful information and respects your intelligence.
5. The Law Society has a lawyer referral service. Understand that lawyers have signed up and paid a fee to be listed in certain specialties. Their names come up on a rotating basis. This is another good source for an initial appointment. Just take the questions we talk about here to that interview.
6. Ask each lawyer if they have information just like this book and/or a website so that you can find out more about qualifications, experience, and method of handling a case before you walk in the door.
7. Be careful about any lawyer who rushes you to sign a contingent fee agreement. A contingent fee is not the right fee for every type of personal injury case. You have the right to take the agreement home, read it and understand it.
8. Beware of any lawyer who contacts you in writing just after you have had an accident for the sole purpose of soliciting your claim. If you are contacted "cold" it should be for the sole purpose of providing free information to you that you can study in your own home on your own time.
9. Beware of a lawyer who has a stable of doctors he wants to refer you to. A pattern of referrals from the same lawyer to the same doctors is perceived negatively by insurance companies and judges, and can actually be the "kiss of death" to your claim.
10. Interview several lawyers. Ask each lawyer who else he would recommend for your case. If they won't give you any names, leave. Ask this question of each lawyer. The names you see showing up on different people's lists are probably good bets.
11. Forget fancy slogans and hype. Slogans like "we are aggressive," "we care for you", "we fight for you", are absolutely meaningless. After all, aren't these the things that you would expect from your lawyer?

Breast Cancer Settlement: How Much and When Paid?

ccrosbie@chescrosbie.nf.net (Blog Author)20954 — Mon, 02 Nov 2009 08:00:00 EST

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.

A death that still leaves questions - seven years later (Part II)

ccrosbie@chescrosbie.nf.net (Blog Author)20465 — Fri, 23 Oct 2009 08:00:00 EST

Imagine our reaction when we were told that our sister’s/daughter’s life was essentially worthless in the eyes of the law; a pretty tough pill to swallow. Of course had the outcome been different, had she been left in a coma for life or otherwise permanently incapacitated, the potential result would be different. As Mr. Crosbie pointed out, “…the shocking truth: it is cheaper to kill than to maim.”

So where has this left our family? We have tried, with the help of some friends, to pursue the matter directly with Eastern Health. We naively filed a Freedom of Information request seeking a variety of information surrounding the death.

Guess what? We are being totally stonewalled by Eastern Health.

Of course, they can see we don’t have a lawyer so they figure we don’t have the resources to pursue this and will ultimately just go away.

Notwithstanding the Cameron inquiry, nothing has changed with regard to accountability and transparency at Eastern Health. They’ve got one thing wrong though: we aren’t going way.

Trudy Meaney (sister)
The Browne family
St. John's

A death that still leaves questions - seven years later (Part I)

ccrosbie@chescrosbie.nf.net (Blog Author)20464 — Fri, 23 Oct 2009 08:00:00 EST

The following letter to the editor appeared in The Telegram October 17, 2009 as a response to my piece “The Shocking Truth About Wrongful Death”. It’s time for Premier Williams to do some needed law reform. My condolences to the Browne family.

I am writing in response to the letter to the editor from Ches Crosbie, published in your Sept. 29 edition, which you headlined “The shocking truth about wrongful death claims.”

Our family is living with the horrible truth of Mr. Crosbie’s assertions. Our sister/daughter passed away suddenly in the Emergency Department of the Health Sciences Centre on Jan. 13, 2002. She was 36. During 2008, we were provided with very credible information (the source of which would not be appropriate to disclose in this letter) to the effect that our sister had died as a result of medical mistreatment that evening.

After the initial shock of receiving this type of information six years after her death subsided, we felt we had no alternative but to try to seek out the truth.

Suit useless
As our family did not and does not have the resources to pay for a costly discovery and legal proceeding against Eastern Health, we approached a number of local lawyers that deal with these types of cases on a contingency basis – i.e. they would only be paid from a portion of any settlement or judgment ultimately received.

It was then that we found out what Mr. Crosbie was referring to in his letter. Our sister/daughter had a relatively low-paying job but had no dependents. She was a source of constant love, assistance and support for our parents, with whom she lived, but they were not her dependents.

We were essentially advised that, even if we were successful in proving wrongful death, the courts would likely only award a relatively small amount of damages and that such an amount would not justify the time and expense (and risk) that a lawyer would incur in pursuing a matter of this nature.

How do I find the best Newfoundland and Labrador personal injury lawyer for my accident case?

ccrosbie@chescrosbie.nf.net (Blog Author)20218 — Mon, 19 Oct 2009 08:00:00 EST

Most accident victims really don't know where to turn to when looking for a Newfoundland and Labrador accident lawyer. In some areas there are many pages of Yellow Page ads for lawyers. Here are some tips on finding the right car accident lawyer for your motor vehicle injury in St. John's or elsewhere.

Step One: Educate yourself. In the old days, the law was pretty much a closely guarded secret. Use the internet to get a basic understanding about your legal problem, including accident cases, before even picking up the phone. The purpose is simply to move you along the path of knowledge so that you can make an informed decision about what lawyer to hire. Remember that if a law firm is listed at one of those mega lawyer directory websites, all it took was a checkbook to get there.

Step Two: Start to gather names of potential lawyers. Remember you are still in the information-gathering process. Contact them and ask each one for this set of information to be mailed to you:

1. Are you a nationally recognized lawyer.
2. Show me examples of sample judgments and settlements.
3. Show me articles you have written for legal publications.
4. Show me a list of your public speeches to lawyers about your practice area.
5. Send me a copy of any book, DVD or audio CD that your firm has produced.
6. Send me a sample fee agreement and explain how fees and costs are calculated.

Then if you really want to be thorough, interview the most promising candidates. This process should result in a satisfied client and a personal injury lawyer proud to have helped.

How to Stop Thinking Like a Lawyer and Love It

ccrosbie@chescrosbie.nf.net (Blog Author)19936 — Tue, 13 Oct 2009 08:00:00 EST

Looking back on my career as a personal injury lawyer in Newfoundland and Labrador, the unifying theme has been access to justice, particularly for those injured in accidents and through medical malpractice. More recently I have became involved in class action practice as a means for people to access justice and hold wrongdoers accountable. My legal career has been challenging, busy, and rewarding. Perhaps at times, too busy.

I had the honor of addressing a talk to an audience of law students and professors at Dalhousie Law School last week, and for my topic I took the puzzling title above: How to stop thinking like a lawyer and love it.

Puzzling, because law students go through three years of extensive indoctrination to learn to think like a lawyer. Why would they want to undo all that training? The topic must have aroused curiosity because on the Thursday before a long weekend, there was an audience of about 80 people. My answer has more to do with mindset and with living a great life than it does with anything technical and legal. You can read more at following link to the text for my talk.

Safe Driving Contract Worth Considering

ccrosbie@chescrosbie.nf.net (Blog Author)19562 — Tue, 06 Oct 2009 08:00:00 EST

All of us who have had teeenagers in recent years have been thankful for the various restrictions placed on new drivers such as curfew times and zero tolerance for alcohol. These graduated licensing requirements have helped to save young lives and drive down the accident and injury rates.

Another example of legislative intervention to increase road safety and drive down the accident and injury rate is the ban on cell phones enacted by Newfoundland and Labrador in 2003. In a story last weekend on Ontario's similar ban which takes effect at the end of October, the Globe and Mail reported that accidents caused by distracted driving declined 23% in the three years following the Newfoundland ban, according to the Department of Government Services.

But not every precaution against road accidents needs legislation to back it up. A useful extension of safety practices can come in the voluntary form of a safe driving contract between parents and children licensed to drive a motor vehicle. I have provided a form of safe driving contract in our library, which you can change to fit the circumstances and the understandings which you may negotiate with your child. The value of the discussions around safety expectations and agreed safe practices cannot be underestimated. Give it a try with your child.

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

ccrosbie@chescrosbie.nf.net (Blog Author)19142 — Tue, 29 Sep 2009 08:00:00 EST

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

ccrosbie@chescrosbie.nf.net (Blog Author)18944 — Fri, 25 Sep 2009 08:00:00 EST

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.

Does the Public Support Members of the Breast Cancer Testing Class Action?

ccrosbie@chescrosbie.nf.net (Blog Author)18932 — Fri, 25 Sep 2009 08:00:00 EST

If the Telegram editorial from Thursday represents public opinion, then public opinion favors full and fair compensation for injured class members and doing it now. This can be done only by government.

We have formed a small group of class members to serve as a consultative committee to Verna Doucette, the representative plaintiff, and this group will begin regular meetings next week.

Class Member Comments on Government Absence

ccrosbie@chescrosbie.nf.net (Blog Author)18754 — Tue, 22 Sep 2009 08:00:00 EST

Marie Hickey has asked me to post the following comment:

Ladies: Based on our recent communication from Mr. Crosbie regarding the upcoming mediation talks, it's time to let your voice be heard! Don't let all these months and years of worry go for nothing. Don't let Premier Williams back down on his word! Contact him and contact the media to make sure they keep on top of this story. Don't be swept under the rug - make a noise!

Class members are welcome to post comment. Remember, this is a public site.

Malpractice Damages Clear $1 Million

ccrosbie@chescrosbie.nf.net (Blog Author)18749 — Tue, 22 Sep 2009 08:00:00 EST

A damages assessment released in July by the Supreme Court of Newfoundland and Labrador, Trial Division, enjoys the rare distinction of exceeding the $1 million level. The plaintiff in Courtney v. Cleary sued his family doctor for unreasonably delaying a diagnosis of throat cancer. The injuries suffered by the plaintiff, involving “commando” surgery and long-term disability, were far more significant than they needed to be with timely diagnosis and treatment.

A recent edition of Brown’s Economic Damages Newsletter has calculated the damages awarded, with pre-judgment interest but excluding the general non-pecuniary damages award, as $920,939. The non-pecuniary damages award for pain and suffering and loss of amenities was $165,000, and this would attract interest also. The total would be in the area of $1.1 million.

The newsletter contains a careful analysis of the economic part of the decision and those interested can find out more by clicking the link above. The only other decision in a personal injury case awarding more than $1 million in damages was the one I achieved in the Williams case, overturned by our Court of Appeal. The Court of Appeal overturned us unfairly on an issue which was neither pleaded nor argued on appeal. I was unable to obtain leave to appeal to the Supreme Court of Canada, which is given in only about 1 in 10 civil cases.

Should the Courtney decision be appealed I wish Mr. Courtney and his lawyer the best of luck, because in this province no matter how good the plaintiff’s case and no matter how well reasoned the trial judge’s decision, an appealed plaintiff should never refuse luck or prayer.

Hard Fought Case Shows Value of Contingent Fee

ccrosbie@chescrosbie.nf.net (Blog Author)18320 — Mon, 14 Sep 2009 08:00:00 EST

A decision we received Friday from the Court of Appeal in a motor vehicle accident case illustrates the enormous value to consumers of the contingency fee agreement - at least the way it works with our personal injury firm.

The lead lawyer in this case was Pamela Taylor. Our client's injury was a leg broken by a careless driver. He was riding a bicycle. He was a high achieving graduate student who was delayed in obtaining a university teaching job as a result of his injuries. An important issue in settling the case was, how to value the loss represented by delayed entry into the workforce?

The defendant offered about half what we thought the claim was worth, so we went to trial. Sometimes you go to trial the sake of justice. Our client received a trial judgment for twice the amount of the defendant's formal offer, the total judgment being $118,098. The Court of Appeal thought the judge should have deducted money earned as a graduate student from the $60,000 award for loss of future economic opportunity, and reduced this by $22,719, an amount the Court of Appeal called "a relatively minor change to the total damages award": Jarvis v. Treberg, 2009 NLCA 51.

The point of significance to the issue of consumers and contingency fees, is that as Mr. Treberg's lawyers we were willing to expend about twice the amount of the money judgment, measured by the reasonable value of our time, to recover this money judgment for our client. Twice what the judgment was worth - but the client got twice the money the insurance company was willing to pay.

Rarely does an accident and injury client have to go to trial to get justice. But if you do go to trial, as this example shows, your contingent fee lawyer "subsidizes" the trial in all but the very largest cases. We do it because we believe in justice.

At Ches Crosbie Barristers, contingent fee agreements protect the consumer and provide access to justice. Which is the way it ought to be.

Light Cigarettes Case Nears Appeal Hearing

ccrosbie@chescrosbie.nf.net (Blog Author)18092 — Wed, 09 Sep 2009 08:00:00 EST

A case taken by Victor Sparkes against Imperial Tobacco is nearing the appeal hearing on September 14 in a context of heightened social concern over the abuses of the tobacco companies.

Ontario and Quebec have passed enactments aimed at assisting healthcare cost recovery, both passed in June of this year. Alberta introduced a bill and expects that it will be enacted this fall. That means that the great majority of Canadian provinces have resolved to sue the tobacco industry for healthcare-related costs based on fraud and deception perpetrated over the last 50 years.

To come back to Mr. Sparkes' action against Imperial Tobacco, this action was taken in Newfoundland and Labrador as part of a broad social movement to hold tobacco companies financially accountable. By driving up the price of cigarettes, society puts them out of reach of the teenagers whom the tobacco companies constantly attempt to recruit as future paying consumers. The personal health costs and personal injuries which result have been documented endlessly and are a major public health problem and source of product liability injuries in this and other advanced countries.

When Mr. Sparkes applied for certification of the class action against Imperial Tobacco, the judge dismissed on the basis of technical arguments surrounding the consumer protection statute on which the action relied. Imperial Tobacco filed a Brief stating that the judge made a finding that the words of the Act were clear and unambiguous. We disagreed and pointed out that he did not make any such finding, and filed a Brief in Reply. You can see the Brief in Reply at this link.

The Court has asked us to obtain permission to file the Brief. Our Rules of Court do not expressly provide for the filing of a Brief in Reply. The Rules of other advanced jurisdictions do so provide. Our application and brief on the application to file the Reply are available on our website.

It would be a lot simplier if the Court of Appeal followed the lead of other advanced jurisdictions and put in place a rule which expressly allows for filing of reply.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 11

ccrosbie@chescrosbie.nf.net (Blog Author)18067 — Tue, 08 Sep 2009 08:00:00 EST

How Do You Choose?

How do you find out which lawyer is the best in Newfoundland and Labrador for your case? Do you want less than the best? I believe that there are certain questions to ask that will lead you to the best lawyer for your medical malpractice case. It will involve some time on your part, but that's a fair price to pay.

The world of medical malpractice claims is much too specialized for someone who does not regularly handle these cases. Too many times we have looked at cases that other - inexperienced - lawyers have handled. You should be aware that the insurance company that defends malpractice cases knows which lawyers in Newfoundland and Labrador actually go into court to try cases and which do not. The insurance company uses that information to evaluate their risk. One of the first questions they ask when a serious claim comes in is: Who is representing the plaintiff? Since this information is important to the insurance company, it should be important to you.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 10

ccrosbie@chescrosbie.nf.net (Blog Author)17944 — Fri, 04 Sep 2009 08:00:00 EST

How Do I Find a Qualified Medical Malpractice Lawyer?

Choosing a lawyer to represent you is obviously an important task. It is probably the critical task that determines the success of your case. The decision certainly should not be made on the basis of advertising alone. The Yellow Pages are filled with ads - all of which say basically the same thing. You should not hire based solely on advertising. Anyone can buy a slick commercial, even if they have never successfully tried a malpractice case in front of a court. Heck, you shouldn't even hire me until you trust that I can do a good job for you.

You also cannot rely on the recommendations of friends and family. The fact that Lawyer Jones did a good job on Uncle Joe's breathalyzer case or Cousin Sue's divorce - or even on your best friend's auto accident claim - does not make him or her a qualified, experienced medical malpractice lawyer. Malpractice work is a legal subspecialty of its own. Most lawyers in our province actually have the good sense to recognize this and not attempt to do malpractice work themselves. But they may not know who does malpractice work well either, so as to refer you to those lawyers who do the work well.

Charitable Immunity from Suit

ccrosbie@chescrosbie.nf.net (Blog Author)17019 — Mon, 17 Aug 2009 08:00:00 EST

Newfoundland and Labrador was probably the first place in North America where clergy abuse came to public consciousness and rocked the pillars of society. The infamous abuse by Christian Brothers at the Mount Cashel Orphanage blew the lid off, but numerous suits against priests and ministers have followed. In one of these, charitable immunity was raised by our own Court of Appeal as a defence for churches who had turned a blind eye and knowingly moved priests around and given them new opportunities for predation. Fortunately on further appeal, the Supreme Court of Canada soundly banished this unjust anti-victim defence from modern law in this country. For those who have an interest, the case is John Doe v. Bennett, 2004 SCC 17 (CanLII).

And Ben, you might think of relying on Bennett in your own argument as an illustration of how an advanced common law system has abrogated this unjust doctrine. Good luck.

I posted this comment on a lawyer friend's website - he is battling the same injustice in Virginia.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 9

ccrosbie@chescrosbie.nf.net (Blog Author)15547 — Mon, 20 Jul 2009 08:00:00 EST

Beware of the Subrogation "Monster"

You should be aware that often, if your bills were paid by the health insurance of an employer's health plan or your loss of income was paid by a disability insurance plan, the insurance company or plan may want you to reimburse it out of any personal injury recovery. Your "insurance" turns out to be not insurance at all, but a "loan." What the insurance companies don't tell you is that this area of law, known as "reimbursement" or "subrogation," is actually quite complicated and the law frequently goes against what they are claiming. We have frequently been successfully in substantially reducing these "subrogation" claims.

In this book I refer to "the insurance company", but it is important to understand that over 95% of doctors are "insured" by a mutual defence organization, the Canadian Medical Protective Association, or CMPA. This is important because the mandate of this large and powerful organization is to defend its doctor members, not to settle legitimate claims. CMPA has enormous resources and a war chest of two billion dollars, which it uses to fight the more than 100 trials it defends each year in Canada - and it wins at trial 80% of the time.

The master skill of the best plaintiff malpractice lawyers lies in identifying the cases which have potential to be turned into winners. The master skill of the CMPA and their very smart defence lawyers lies in recognizing which cases they are likely to lose at trial, and should therefore settle.

why Most Medical Malpractice Victims Never Recover a Dime - Part 7

ccrosbie@chescrosbie.nf.net (Blog Author)15054 — Thu, 09 Jul 2009 08:00:00 EST

Limit on Recovery for Pain and Suffering

The law imposes a limit to recovery of pain and suffering damages. No matter how seriously injured you are, the maximum recovery you can obtain is currently $330,000. This amount for pain and suffering might be awarded in such cases as catastrophic complete paralysis or severe brain damage. This limit or cap has been set by the Supreme Court of Canada and is constantly adjusted for the effects of inflation. The vast majority of awards for pain and suffering are well below this cap.

The types of cases which have large enough settlement value to justify investigation for merit and with which we have been successful include:

• birth injuries causing cerebral palsy
• delay in treating bacterial meningitis
• spinal cord or brain damage resulting in quadriplegia, paraplegia or other paralysis
• surgery resulting in serious damage to nearby structures or organs
• undiagnosed heart attacks
• other failures to diagnose serious conditions where timely intervention would have avoided a bad outcome
• pathology negligence, including cancer misdiagnosis
• wrongful death, where there is significant financial loss to surviving dependents (remember, the wrongful death laws in this province are backward and allow no damages for pain and suffering)

What Is My Case Worth?

ccrosbie@chescrosbie.nf.net (Blog Author)14774 — Fri, 03 Jul 2009 08:00:00 EST

This is a natural question for personal injury clients to ask and one that accident and injury lawyers often hear. Unfortunately, there is no simple answer in most cases, and if there were a simple answer, then the client probably would not need a lawyer.

Every case is different and many factors influence the value of a case. Some of the main factors include these:

• In a traffic accident case, how clear was it that the other driver was at fault?
• How serious are your initial injuries?
• How long were you unable to work?
• Were you hospitalized, and if so for how long?
• Are any of the injuries permanent, or indefinitely persisting?
• Are there issues of contributory negligence, such as failure to wear a seatbelt in an auto case?
• Will the injuries interfere with your capacity to earn a living?
• Will the injuries interfere with your capacity to maintain a household?
• Are the injuries so severe that personal care will be required?
• Are there medical conditions which pre-exist the accident and which may subtract from the claim that the injuries and ongoing limitations are wholly caused by the accident?

An experienced personal injury lawyer takes all of these factors and more into account in determining the settlement value of your case. I have provided useful information on how to find a great personal injury lawyer elsewhere in this website.

As you can see, there is no simple rulebook for determining the worth of a personal injury case. A great accident and injury lawyer learns all of the facts of the case which may affect settlement value, knows the awards made by courts in Newfoundland and Labrador in comparable cases, and knows the attitudes and approaches of the defence lawyers and insurance companies with whom settlement will be conducted and has a professional relationship with them. A great injury lawyer also has a professional working relationship with the medical doctors and other healthcare providers involved in your care, knows how to document the case to maximize settlement value, and knows that in a serious injury case it takes time for doctors to be in a position to state a confident prognosis about the future. These are some of the skills and knowledge that a great personal injury lawyer applies to establish what your case is worth.

For some specific examples, see our Frequently Asked Questions.

Auto Insurance Company Breaches Confidential Records of Jurors

ccrosbie@chescrosbie.nf.net (Blog Author)14742 — Thu, 02 Jul 2009 08:00:00 EST

In a recent court case in British Columbia, the main auto insurer in BC gave claims histories of members of the jury to their defence lawyer.

When this abuse was exposed, the CEO of Insurance Corporation of British Columbia admitted it was "completely inappropriate", and "a serious mistake". The company terminated the defence lawyer and reported the breach of confidentiality to the judge and plaintiff lawyers.

These events caused the Information and Privacy Commissioner to undertake an audit into the privacy aspects of ICBC court proceedings involving jurors.

It was not disclosed what the insurance lawyer in this personal injury trial and the insurance rep from which the juror information was obtained, were going to do with the information. Was it to be used to argue for disqualification of certain jurors? Was it to be used to make appeal to the perceptions and biases of jurors inferred from information that no one else possessed? Whatever the answer, there is no doubt that this invasion of confidentiality represented a serious undermining of the integrity of the administration of justice.

Of course this sort of breach of confidentiality is not ICBC policy, but the significance of this incident is in the fact that elements of the insurance and legal defence communities are willing to engage in abusive practices to win at any cost.

Are There Too Many Lawyers Out There?

ccrosbie@chescrosbie.nf.net (Blog Author)14264 — Wed, 24 Jun 2009 08:00:00 EST

I began looking for new hires in the 1-5 year experience bracket in August 2008. I advertised in the newspaper several times and on the internet. Word of mouth got around in the legal community too.

I had a few applicants, but some possibilities raised conflicts issues and others did not seem to be a good fit. One promising hire fell through at the last minute.

I would like to think that Ches Crosbie Barristers has a good reputation as a place to work with opportunity for professional growth in the personal injury arena and prospects for good income. But, few young lawyers beat a path to the door looking for legal work in what we do, which is representing people in accidents, medical malpractice and class actions. So I would have to answer the question, are there too many lawyers out there? with a "no". If there were, I would have had more applicants for the position.

The good news is, we have two bright and enthusiastic new members of the legal profession coming to work for us, one in July and the other in September of this year. One trained in British Columbia and the other in Alberta. I will introduce these exciting additions to our legal team in a further blog. They say "hire slowly, fire fast". I certainly got the hire slowly part right!

Court Takes Dim View of Fraudster Allegations at Injury Trial

ccrosbie@chescrosbie.nf.net (Blog Author)14166 — Tue, 23 Jun 2009 08:00:00 EST

In the decision of a personal injury trial handed down last week, the judge rejected "fraudster" allegations made against the plaintiff and imposed a sanction in costs.

The judge ruled the defence lawyer was "grasping at straws" and pointed out that an allegation of fraud is a serious one which connotes criminal conduct. She withheld certain costs which the defendant would otherwise be entitled as a result.

Testing credibility in cross-examination at trial is one thing; labeling someone fraudulent in a pre-trial brief filed with the court is another. Most lawyers would agree that some kind of sanctioning was required to discourage this type of defence abuse.

The plaintiff was awarded $45,000 plus pre-judgment interest for soft tissue injuries which caused considerable pain, suffering and reduced mobility for "several" years - one expert witness had suggested five to seven years - before he otherwise would have suffered the symptoms. The trauma of jumping into the cab of his truck to avoid being struck by the oncoming vehicle accelerated the plaintiff's pre-existing degenerative disc disease, and aggravated the totality of the condition. Although the plaintiff had asked for a general damages award for pain and suffering and loss of amenities of $96,700, which represented the inflation-adjusted top of the range in Newfoundland and Labrador for damages for soft tissue injuries, the judge gave an award more toward the low middle of the range.

The abuse a plaintiff must sometimes endure to obtain even modest compensation for an injury is truly amazing.

Deserved Recognition Goes to Battler of Clergy Abuse

ccrosbie@chescrosbie.nf.net (Blog Author)13673 — Mon, 15 Jun 2009 08:00:00 EST

I introduced a local lawyer last weekend and awarded him a Courageous Advocacy Award on behalf of the Atlantic Provinces Trial Lawyers Association. His life has intersection with an important piece of our legal history, the battle to obtain compensation in money damages for victims of clergy abuse.

It is my pleasure to introduce Gregory B. Stack and his wife Wanda. Greg Stack has come to public prominence in Newfoundland and Labrador chiefly through his leadership in the litigation against the now notorious Roman Catholic priest, Father Kevin Bennett, in a lengthy litigation which settled only late last year.

Greg told me that his involvement with priest sexual abuse cases goes back to the time of the Mount Cashel scandal, when he and now Premier Danny Williams agreed to assist each other in effective representation of legal claimants and it developed that Greg would handle the priest cases, and Danny would handle the Mount Cashel cases. And that’s what they did.

In the late 1980’s Greg took on several dozen abuse claims primarily arising out of the depredations of the now notorious Father Hickey. By 1997 the Archdiocese of St. John’s decided to settle the priest claims, but this did not include the Father Bennett claims arising out of his activities in the remote rural Archdiocese of St. George’s.

Greg and his clients prevailed after trial in 2002 on liability alone, which was appealed by the hardnosed church authorities. In 2002, the church got lucky – the Court of Appeal for Newfoundland and Labrador divided 2 to 1 on the issue of vicarious liability and the majority resurrected an old line of cases and conferred charitable immunity on the church in respect to the vicarious liability issue. Although direct liability was not disturbed, vicarious liability had implications for insurance coverage and the matter went on leave to appeal to the Supreme Court of Canada. I’ve always thought that the Supreme Court of Canada is a terrific court if you can just get there, and Greg and his clients did, obtaining a judgment in 2004 which firmly overturned the Court of Appeal, stating that the evidence overwhelmingly satisfied the tests set out in previous Supreme Court of Canada jurisprudence. It also awarded costs of the appeal and cross-appeal on a solicitor-client basis, only the second time in memory that this was done.

I’ll just read one paragraph from the Supreme Court decision, which gives the context in which Bennett was able to work his depredations:

The plaintiffs perceived him as a god – quite logically given his centrality in the community and the disparity in lifestyles between himself and his parishioners. As the school principal testified, “it was like having a celebrity in the community that you had to treat properly. There were incidents where I found people believed that the priest could turn you into a goat.” While Bennett had a particularly forceful personality, the root of his power over his victims lay in his role as a priest, conferred by the Bishop. The awe in which Father Bennett was held by the community at large contributed to his ability to control his victims and thus to satisfy a prodigious appetite for constant sexual gratification.

The Bennett case was beset by many intricate and complex legal issues, and as the reversal in the Court of Appeal shows, was fraught with risk. Greg Stack’s clients may have been betrayed by the church, but they have been well and truly represented by Greg Stack, who has delivered access to justice courageously and in the finest traditions of the plaintiff bar. I give you Greg Stack.

Wal-Mart Victim Has Good Day in Court

ccrosbie@chescrosbie.nf.net (Blog Author)13531 — Thu, 11 Jun 2009 08:00:00 EST

In a decision handed down this month, Justice Faour started his decision with: "November 18, 1998 was not a good day for Marion Allen". And how!

While shopping at the Wal-Mart store at the Village Mall in St. John's, Mrs. Allen and her husband made some purchases and mounted the conveyor belt to the second level of the store. She fell, becoming trapped between the moving belt and her shopping cart. Wal-Mart admitted liability. But it took a hard line on what injuries it would be responsible for.

The defendant Wal-Mart argued that the injuries should have resolved within a maximum of two years. They relied on the evidence of a notorious defence medical examiner, Dr. Lloyd, for this position. The trial judge rejected this evidence and found that the plaintiff's injuries put her within a small group of people who had residual symptoms beyond what average experience would lead one to expect.

The trial judge was not timid in his award with respect to non-pecuniary general damages for pain and suffering. He found that Mrs. Allen suffered a moderate soft-tissue injury with injuries to the cervical and lumbar spine which left her disabled some 10 years after the accident, triggering a chronic pain syndrome which disabled her from her normal activities. He awarded $90,000 for pain and suffering. With other amounts for lost past and future income and housekeeping capacity etc. folded in, the total award was $229,000, plus costs.

This case is another illustration of the unreasonable and oppressive behavior of some defendants. Congratulations to the plaintiff's lawyer Ernest Gittens for having the courage to take this case to trial and get such a great outcome for Mrs. Allen.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 6

ccrosbie@chescrosbie.nf.net (Blog Author)13519 — Thu, 11 Jun 2009 08:00:00 EST

How Do I Decide What Cases to Take?

The answer is that I have some rules. They're not perfect. I get many more medical malpractice inquiries from injured patients and their families than I accept as cases. Here's how I decide which cases to accept.

First, I have rules about what I don't do. I don't:

• talk to potential clients calling for the first time
• take unplanned inbound calls (unless in active negotiations on a case)
• give free consultation; we either reject the case or the client signs up.

I have to make decisions about where my time is invested and I think my time is best invested at certain critical points over the life of a case. These are the high value points that are the reason people call me.

Our office assistants do a complete "who, what, when, why and how" report. I review this and ask: does this sound like a case that I could tell you about in a social setting and expect you to say "that's awful, it shouldn't have happened"? The point here is that the more complicated the case, the more likely the defendant is to win.

The most common reason I will reject a case is that it doesn't have enough value. Case value on settlement must be at least $100,000, and permanent injury and disability is required to achieve this value.

Some of the other reasons I may reject a case are:

• a multi-specialty, multi-expert case
• a wrongful death case with no autopsy
• a wrongful death case with no significant financial dependents left behind
• the presenting injury before the doctor got involved is a complex and large injury itself.

If the medical malpractice inquiry passes this screen, then I will either have the client obtain the medical records or send in a deposit and signed consents to enable my office to obtain them. When I have the records, I will meet with the client.

Some cases fall away when I compare the client's story with what the records say. If not, the next step is to submit the records to an expert.

There are several options here. The initial reviewer could be a screening expert who is not in the same specialty as the questioned doctor or could be an expert in the same specialty (a "peer"), who may also be asked be asked to testify. It depends. Sometimes a nurse consultant is the right screening expert.

I will usually ask the expert reviewer for a telephone consultation before their opinion is committed to writing. If the case is robust on negligence, causation of the injuries, and the dollar value potential of the injuries (damages), then I will agree in writing on fee and case expense arrangements with the client, and issue a Statement of Claim in court. I often will not obtain a written report from an expert whom we intend will testify before doing this. The known facts of the case will change with the examination for discovery of the defendant, and the expert report is more useful when our testifying expert knows the defendant's version of the story.

As to discovery examinations, my own experience is that we win the case on discovery. Medical malpractice defendants don't want to go to trial if they are likely to lose, and discovery is where the savvy lawyer for an injured patient shows the defence lawyer and the defence experts that they are likely to lose. You can't expect them to figure this out for themselves. Your lawyer must be able to establish, on the typewritten record of the discovery examinations, through skillful cross-examination, enough admissions inculpating the defendant doctor that the very tough and knowledgeable lawyers and defence organizations massed against the plaintiff will decide the defendant doctor is likely to lose.

So I have rules about what cases I take and sure, I may pass over some good cases. But rules simplify life and there are more people out there who want my help than I have time to help. I'm not the right lawyer for everyone, but when the right client finds me, it usually results in a satisfied client and a lawyer proud to have helped.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 5

ccrosbie@chescrosbie.nf.net (Blog Author)13518 — Thu, 11 Jun 2009 08:00:00 EST

How Do You Know You Really Have a Case?

In order to determine whether you have a case, we must first gather all of the pertinent medical records involved in your care. We also must have a complete, honest statement of facts from you - please don't hide anything from your lawyer.

Once all of the records are received and reviewed and you have been interviewed, we will tell you if it looks as though there is a provable case of medical malpractice. If the case looks meritorious, experts in the appropriate specialty must be consulted and retained by us. Again, these experts must be of the opinion that the medical care received was substandard and that the substandard care caused major injury or death. We all want optimal care, but an opinion that care was suboptimal is not enough. The care must be substandard. There must be a clear causal connection between the substandard care and the injury. And the opinion on substandard care, as with the opinion on causation of the injury, must be robust, not wishy-washy.

Once we have retained experts who are prepared to testify on your behalf, other records, including employment records and tax returns, must be obtained. These will aid us in proving the damages which have been suffered due to the malpractice. Your financial and unemployment records must be full, complete and credible in order for us to include in your claim that you have suffered financial damages as a result of malpractice.

At this point, you may want to know in more detail how I personally decide what medical malpractice cases to take.

Winning the Case Through Cross-Examination of the Expert in Oral Discovery

ccb@chescrosbie.nf.net (Blog Author)13179 — Wed, 03 Jun 2009 08:00:00 EST

Some Canadian jurisdictions historically have not permitted oral discovery of experts who are non-parties to the case. Newfoundland and Labrador is not one of those jurisdictions; our practice has included oral discovery of third party testifying experts since the oral discovery rule was introduced 30 years ago. Using medical malpractice cases as a paradigm, my experience is that cross-examination of the experts in oral discovery (or deposition) is where the case is won or lost. I believe my opponents, the very able lawyers who represent the defendant doctors in such cases, would agree.

The key to making effective use of the crucial opportunity for pre-trial oral discovery of experts is the skillful use of cross-examination.

Cross-examination is a matter of technique which can be reduced to certain basic principles. Practitioners follow essentially two methods of discovering the evidence of an adverse expert: the interview method and the cross-examination method. The purpose of the interview type of discovery is to literally discover or learn of the expert’s opinions and the foundations for them.

Success in most civil cases, and particularly in medical malpractice cases, is defined by settlement, and the interview technique is not calculated to produce a settlement. The cross-examination technique of discovering the adverse expert is calculated to produce a settlement. Therefore it is the technique which ought to be used by any lawyer whose goal is to manage risk and produce a satisfactory outcome for the client.

The cross-examination technique can be described in three simple cardinal rules:

(1) ask leading questions only
(2) establish one fact per question
(3) move toward an achievable goal.

The disadvantage to the examining lawyer of the cross-examination technique of conducting discovery of the adverse expert is that it is much more time consuming and work intensive than the interview technique. However it is much more likely to lead to settlement. This technique locks the expert into testimony that will be virtually impossible to change at trial. The other side’s lawyer will report the result to the insurance company or defence organization, and it will be part of the paper record for evaluation of the case at mediation or judicial settlement conference.

Compared to the enormous time and effort, expense, and risk of trial – the malpractice defendant wins 80% of the time – the investment of time and effort in preparing a discovery of the adverse expert by the cross-examination technique carries a guaranteed return. If the plaintiff lawyer has carefully investigated the case for merit before litigating, the odds are high that discovery is where the merely winnable will be turned into a winner. Sometimes the case will not look like a winner, and the time to have a hard but honest discussion with the client has arrived. Either way, the return on investment in the cross-examination technique is irresistable.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 4

ccb@chescrosbie.nf.net (Blog Author)13115 — Tue, 02 Jun 2009 08:00:00 EST

In 2008, Medicare funded by the United States stopped paying hospitals for several conditions and infections acquired after a patient is admitted. Under this policy, the costs can’t be passed on to the patient.

The idea is to make doctors and hospitals more responsible. It is felt that many problems are preventable and shouldn’t be occurring in the first place if proper procedures are being followed. The list of what isn’t covered includes:

• pressure ulcers,
• objects left in the patient following surgery,
• air embolism,
• catheter-associated infections,
• surgical site infections, and
• falls and trauma.

This has caused quite a stir among hospitals and doctors in the United States. U.S. Medicare expects to save millions of dollars and force changes that could save thousands of lives. Canada should find ways to follow suit.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 3

ccb@chescrosbie.nf.net (Blog Author)12842 — Thu, 28 May 2009 08:00:00 EST

What is a Medical Malpractice Case?

You may have a medical malpractice case if you are injured as a result of negligent care while receiving medical treatment. The landmark Harvard Medical Practice Study done in 1999 revealed that over half of all injuries caused by medical management (i.e., those not caused by the patient’s initial illness or injury) were preventable, and a quarter of those injuries were caused by negligence. One-fifth of medical management errors occur outside of the hospital and inside a doctor’s office.

What Must be Proven to Win a Case?

Medical malpractice cases are among the most difficult a lawyer will ever handle. A medical malpractice case requires the patient, the “plaintiff,” to prove that his or her doctor or hospital, the “defendant,” deviated so far from what is accepted as “standard” diagnosis and treatment that the law considers the defendant to have been “negligent.” The plaintiff is also required to prove that the doctor's negligence was a substantial cause of the injury that the plaintiff has. “Negligence” and “breach of standard of care” mean the same thing: conduct which is not reasonable in all the circumstances.

Because of the tremendous hurdles to obtaining a recovery in a medical malpractice case, experienced malpractice lawyers agree that the injury suffered by the plaintiff must be significant. The court system is simply not set up to handle “small” medical malpractice cases. We believe that the settlement value must exceed $100,000, meaning you must have suffered a significant and permanent injury to warrant the expense and risk of prosecuting a malpractice case.

Your case must be proven by expert testimony. That is, other doctors in the same specialty as the negligent doctor must be willing to say that the conduct of the defendant fell below accepted standards. Simply making a mistake or getting a bad result is not enough – we must prove that it was a really major error which directly led to your injury. Yes, it’s true. Doctors often “get away with” malpractice because the injury they have caused is not severe. I can’t do anything about that.

Remember, too, that just because serious injury or even death resulted from a doctor’s care, this does not mean that malpractice occurred. People get sick and die each day from reasons other than malpractice.

Because the stakes are so high, I believe some statistics about Canadian medical malpractice lawsuits are worth considering. 95% of plaintiff successes are settlements, not judgments. Many of those settlements occur on the courtroom steps. Disbursements for effective prosecution of a medical malpractice action are measured in tens of thousands of dollars, with an average of $100,000 per trial.

New Canadian medical malpractice claim filings run at about 1400 per year. This represents one per fifty doctors. Settlements occur at 30% as a proportion of new actions. By contrast, the probability of success at trial is only 20%.

According to the landmark Harvard study, only about 2% of medically negligent occurrences are litigated. Canadian studies agree that less than 10% of those suffering avoidable injury in the healthcare system are compensated. In many cases, the patient does not know of the malpractice! By contrast, more than 19 out of 20 medical malpractice enquires are ill-founded or have a fatal flaw.

The chances of successful judgment after trial are very low, and the costs very high. Therefore, the first focus must be on establishing whether the action has sufficient promise to persuade the defence organization to make an offer of settlement. For promising cases, the value of that offer can be maximized by robust expert written opinion.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 2

ccb@chescrosbie.nf.net (Blog Author)12729 — Mon, 25 May 2009 08:00:00 EST

Why Did I Write This Book?
Simple.
I am sick and tired of healthcare industry stonewalling, spin doctoring, and cover up. If you or a loved one have been the victim of medical malpractice, what you need is useful information that you can trust. Try to deal with the doctor, hospital or insurance company yourself and they will just stonewall you.
I wrote this one-of-a-kind book so that you could have good, honest, useful information to review and study in the comfort of your own home.
No Hype.
No pressure.
Frankly, this book also saves me time. My office gets calls each day from people asking me to represent them in their medical malpractice claims. I’ve packed a ton of information into this book and it saves me much time each day by not having to talk to all of the potential clients who call me. I can’t accept every case. If I gave a “free consultation” for each new potential case, there simply would not be enough time to get any work done. Look again in the yellow pages at all of the lawyers who offer a “free” initial consultation for all new malpractice cases. Folks, a good initial meeting takes hours. How busy can these other lawyers really be with their actual cases if they are offering “free consultations” to everyone who calls? Writing this book gives me a chance to “talk to you” about what you need to know about malpractice claims so that you can make an informed decision about what steps to take with your case. Even if I cannot accept your case, I would like you to be educated about the process so that you don’t fall victim to healthcare stonewalling and the insurance organizations which specialize in denial and in wearing down the victims of medical malpractice.
This Book is Not Legal Advice
I know the arguments the insurance company will make—and so should you—even before you start your claim. When you were injured, you entered a war zone. The insurance industry spends many millions of dollars to wear down, stave off, and defeat victims of malpractice. If I accept your case, we will be in this together. I am not allowed, however, to give legal advice in this book; I can offer suggestions and identify traps, but please do not construe anything in this book to be legal advice about your case until you have agreed to hire me AND I have agreed, in writing, to accept your case.

Why Most Medical Malpractice Victims Never Recover a Dime

ccb@chescrosbie.nf.net (Blog Author)12285 — Thu, 21 May 2009 08:00:00 EST

My new book is off to the printer. While we wait to get the printed copies in about two months’ time, I’ll post it up in serial form. Enjoy!

Who is Behind This Book - and – “Why Should I Listen to You?”

You have done yourself a giant favor by obtaining this book. The information I give you here will help you if you believe you or a loved one has been injured or killed by medical malpractice. I personally guarantee it.

There’s a lot of misleading information out there about medical malpractice claims. This book will set the record straight, and it’s not a pretty record.

I wrote this book so that you could have good, solid information about malpractice lawsuits, hiring a lawyer or dealing with an insurance company. Forget the hype. This book is not about hype. It’s about the tough, hard fought world of medical malpractice and what you can do to improve your odds of winning if you have a legitimate case. Even if the doctor committed malpractice, I can’t help you if your case is too small. The way the malpractice laws are written, there simply is no room for small cases.

If the doctor or hospital did commit malpractice involving a negligent breach of the standard of care, and you have been seriously or permanently injured by that malpractice - I can help.

My name is Ches Crosbie and for 20 years I have been representing individuals against doctors and hospitals. Today I only handle large malpractice and injury cases. You may know me from my involvement in the Breast Cancer Testing Class Action against Eastern Health, and the Cameron Inquiry.

If you want a divorce or a will, or have a traffic ticket, I can’t help you. I am one of the few plaintiff lawyers in Atlantic Canada recommended by peer review publications as having a recognized competence in medical negligence. I am frequently invited to speak to other lawyers on a variety of topics at continuing legal education programs around the country. I have written numerous articles for lawyers and consumers. My firm’s popular website has a lot of useful consumer articles and links on a variety of subjects. Visit www.ChesCrosbie.com if you want to continue your research on malpractice, class actions, and accident claims.

We are different. We turn down way more malpractice cases than we accept. But if we agree to investigate your case for merit, and it passes our demanding test and we accept it for litigation, you know you have a high probability of success.

Dangers of Social Media Hits Conventional Media

ccb@chescrosbie.nf.net (Blog Author)11824 — Mon, 11 May 2009 08:00:00 EST

Bloggers are always gratified to know when someone reads what we have to say. In this case, it was my earlier blog on the dangers of social media for personal injury clients. A reporter from the Canadian Press called last Friday to speak with me about this topic, however I was in Toronto on a mediation involving the Breast Cancer Testing Class Action. He then followed up with my friend Brenda Hollingsworth, a personal injury lawyer in Ottawa, who has written on this topic. The issue of accident and injury clients being hoisted on their own petard by statements made and photographs posted on Facebook and other sites has been the recent subject of court decisions. The Globe and Mail and the Evening Telegram have taken due note, and anyone involved in a legal claim for bodily injuries, whether suffered in a car accident, through medical negligence, by an accident on premises, or in any other way, should take due note as well.

Insurance companies and their adjusters and lawyers routinely search the web for evidence which can be used to contradict a plaintiff’s statements as to the limitations imposed by their injuries. Your life on the internet is an open book.

Woman Given Toxic Drug in Error

ccb@chescrosbie.nf.net (Blog Author)11666 — Wed, 06 May 2009 08:00:00 EST

This story has stirred quite a bit of interest in the last few days. Musgravetown resident Nancy Mojica-Fisher was given a chemotherapy treatment last Thursday that had been intended for a cancer patient sitting next to her at G.B. Cross Memorial Hospital in Clarenville. Ms. Mojica-Fisher is a United Church minister who had gone to hospital for a treatment of Remicade for her chronic psoriasis.

Ms. Mojica-Fisher was sent by her doctors to the Health Sciences Centre in St. John’s and admitted Monday night, still suffering from the ill effects of the toxic chemo drug.

The incident became publicly known on Monday when Ms. Mojica-Fisher spoke out publicly about the accident and her injury, and Eastern Health stated that it is investigating how such a significant error was made.

I’ve heard Eastern Health officials claim it happened through a system error, but Health Minister Ross Wiseman is reported to be blaming it on human error.

Whatever the cause – and it is probably a matter of causes in the plural – this unnerving incident underscores yet again that hospitals are dangerous places. George Tilley, former CEO of Eastern Health, testified at the Cameron Inquiry that it is commonly accepted that 7% of all hospital admissions result in a serious preventable adverse event. This is simply unacceptable and the appalling safety standards in our hospitals simply must be drastically revamped and reformed.

A measure of the public interest in this issue is that by late morning on May 6, when I checked the CBC website, there were 95 story comments posted. One provocative comment was from a nurse who worked as an R.N. in the G.B. Cross hospital in Clarenville. She stated: It was the worst run hospital I have ever set foot in. The nurses have no support from management. Workload numbers have been critically high for years. I am not surprised something like this happened in G.B. My last shift there I did not feel safe working there so I decided it was my last shift and never went back.

Another theme in the comments is that the individuals involved as well as the institution should be held accountable. Unfortunately, the only means personally at the disposal of Nancy Mojica-Fisher to ensure this happens is to hire a lawyer and take legal steps. With an error this blatant and this much public attention, it is a claim the hospital will have to pay.

What Does it Mean to Say You Take Cases on "Contingency"?

ccb@chescrosbie.nf.net (Blog Author)11429 — Wed, 29 Apr 2009 08:00:00 EST

What does it mean when you hear a lawyer advertise that he “takes cases on contingency” or offers “no fee, if no recovery”?

One question that runs through people’s minds when they are thinking about hiring a lawyer is “how will I pay for it all?” The answer for most personal injury and medical malpractice cases is the “contingent fee” system.

This means that rather than pay a flat or hourly rate to the lawyer, the client agrees to pay the lawyer a percentage of any recovery in the case. Usually that fee ranges from 20 to 45% of the recovery in the case, depending on all the circumstances.

That doesn’t mean, however, that you won’t have to pay anything to the lawyer as the case moves along. In every case, there are costs. Someone must pay for the medical records, reports, trial exhibits and meetings with doctors. These are the costs of the case, or disbursements. In most cases, the client pays for the costs or disbursements as they are incurred by the lawyer. In our office, we handle disbursements on a case-by-case basis. Some of our catastrophically injured clients and many others are in no position to advance disbursements and we understand this. We will advance disbursements in deserving cases within our ability to do so.

What does the contingent fee system mean for the client?

First, it means that most lawyers are going to assess the risks of accepting the case carefully. No lawyer in his right mind is going to take on a frivolous case, work hundreds of hours on it, for ZERO payment. It means when you ask me to take on a silly case I’m going to say, “no”.

Second, the contingent fee is often the key to the courthouse. Because there is risk sharing, you can have a very experienced lawyer represent you and not have to worry about the bill for legal fees.

Understanding the Adjuster's Role: Not Your Friend

ccb@chescrosbie.nf.net (Blog Author)11005 — Thu, 16 Apr 2009 08:00:00 EST

Many people deal directly with the insurance company when injured in an accident to get fair compensation. In many cases, you might not need a lawyer if you have a small injury or the loss is straightforward. Here are a few things you must know about your adjuster.

1. Your adjuster does not work for you. He or she works for your insurance company. This is true whether he or she is an employee of the insurance company or an “independent” adjuster who looks after your case. And as stated by one regulator, “the bottom line is that insurance companies make money when they don’t pay claims”: see my blog Deny Till You Die.

2. An adjuster may also be called a “claims representative” or a “customer service representative”. That changes nothing. He or she still works for the insurance company.

3. The insurance adjuster’s job is to settle your claim as cheaply as possible. It is not to ensure that you receive all the compensation you deserve. See my blog How To Get Your Case Settled Fairly: The Adjuster.

The majority of the adjusters you will meet will be professional and have a pleasant manner. However, you will be more successful in your dealings with them if you understand that their job is to settle fast and settle for the least amount possible.

Fault-Based Newfoundland Has Second Lowest Auto Insurance Rates in Canada

ccb@chescrosbie.nf.net (Blog Author)10992 — Thu, 16 Apr 2009 08:00:00 EST

Our province has close to the lowest auto insurance rates among Canadian provinces. This is a finding of the independent Fraser Institute which recently issued a report.

Prince Edward Island’s average auto insurance premium is $701 annually. The premium in Newfoundland and Labrador was found to be $703 annually. These rates are for third party liability insurance.

It is interesting to note that provinces with varieties of no-fault auto insurance schemes had much higher premiums: for example Manitoba ($1,029), Saskatchewan ($1,063) and Ontario ($1,229).

The full Fraser Institute report is available here.

Not only is Newfoundland and Labrador nearly the cheapest in Canada for auto insurance against third party liability, it is one of only two provinces that have kept a fault-based, tort system largely intact as our compensation system for accidental auto injuries. The provinces with no-fault systems are quite a bit more expensive.

Doesn’t make the case for auto no-fault as keeping insurance premiums down, does it? Seems like the Coalition Against No Fault was right, and insurance industry scare tactics were wrong. No surprise.

Invasion of Privacy Appeal is Filed

ccb@chescrosbie.nf.net (Blog Author)10590 — Fri, 03 Apr 2009 08:00:00 EST

Our clients are both physicians. They were injured in a t-bone car crash in St. John’s. The defendant asked for years of pre-accident medical and financial information, through a device called interrogatories, as part of a “fishing expedition”. The judge granted the request solely on the basis that the court papers alleged personal injury!

Being physicians, our clients have a deeply ingrained professional respect for the value of confidentiality and privacy, and asked us to appeal. The written argument for appeal was filed this week. We next have to get the responding written argument from the defendant insurance company, and obtain a date for oral argument in the Court of Appeal, which should be available pretty quickly. I’ll keep readers posted.

I have blogged about this case previously. The written argument on appeal filed this week is available in our library.

Cougar's Rescue Response Tardy?

ccb@chescrosbie.nf.net (Blog Author)10425 — Mon, 30 Mar 2009 08:00:00 EST

In a recent piece for The Bond papers, Ed Hollett raises some good questions as to why Cougar took so long to respond with their own search and rescue flight. Cougar’s response flight did not launch until 43 minutes after mayday, but when it did launch, took only 18 minutes to reach the scene. Had they arrived on scene more timely, it may be that not only Robert Decker but also the second passenger who escaped the shattered copter body, Allison Maher, would have survived. It is unlikely to have helped the 16 people found inside the fuselage on the bottom of the sea.

I have taken a different tack in my piece posted March 27 on Newfoundland Injury Law Blog, and focused on the 30 minute dry run requirement. Cougar flight 491 flew dry for only 11 minutes, then crashed with tremendous force. Another 19 minutes dry running would have delivered those imperiled to safe haven at Cape Spear, with a safe fly margin to spare.

Deceived out of your life: VLT documentary airs on CBC

ccb@chescrosbie.nf.net (Blog Author)10128 — Fri, 20 Mar 2009 08:00:00 EST

The largest easily avoidable source of injury and death in Atlantic Canada has to be VLT gambling, and this is brought to you by the same people who are supposed to protect you from criminals – Atlantic Lotto Corporation. Now documentary film maker Barbara Doran is bringing a penetrating exposé of the scope of damage and injury caused by VLTs. “Playing The Machines”, is her documentary to be shown on CBC News World “The Lens”, 11:30 Newfoundland time on March 24.

You will see mention of how I represented the Piercey family in an attempt to use the Trade Practices Act in a Class Action against ALC. The action was dismissed because ALC, as a government agent, was felt to be immune from consumer protection legislation! Well, it won’t be immune from the Canadian Charter of Rights and Freedoms, and that is exactly what is brought into play in the class action Statement of Claim I served against ALC in early March.

In the meantime, while the next chapter in the litigation over VLTs in Newfoundland and Labrador unfolds, make sure you take in this wonderful documentary directed and written by Barbara Doran. You can view Barb’s background information on the film here.

Court Decides to Hear Appeal of Astonishing Decision

ccb@chescrosbie.nf.net (Blog Author)10033 — Tue, 17 Mar 2009 08:00:00 EST

I wrote about this in an earlier post “Astonishing Invasion of Personal Privacy Challenged on Appeal”. The Court of Appeal has now granted leave to appeal, meaning permission to argue the merits of the decision made by the judge in the Trial Division.

The implication of the decision in the Trial Division is that all personal and confidential medical and financial information is put in issue and discloseable to the other side whenever a person claims a personal injury. My clients the Szetos, injured in an auto accident in St. John’s and both of them physicians, know the value and importance of confidentiality and were greatly taken aback by the intrusive and far-reaching nature of the decision. They instructed me to seek leave to appeal, and the Court of Appeal has now granted this, in a brief decision available here.

The brief on leave to appeal is also available in our Library. I will post again on the progress of this case, which should be of intense interest to personal injury lawyers and their injured clients, both in Newfoundland and Labrador and elsewhere in Atlantic Canada.

Eastern Health to Divide and Conquer?

ccb@chescrosbie.nf.net (Blog Author)9769 — Mon, 09 Mar 2009 08:00:00 EST

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.

Eastern Health Accepts Liability, Commits to Early Mediation

ccb@chescrosbie.nf.net (Blog Author)9688 — Fri, 06 Mar 2009 08:00:00 EST

The week’s objectives for the Breast Cancer Testing Class Action have been achieved. On behalf of Eastern Health, the insurer HIROC made a substantial admission of liability on behalf of Eastern Health, and committed to an early mediation of the case. Here’s my statement to the press.

On behalf of members of the breast cancer testing class action, we welcome today’s press release by which HIROC accepts that Eastern Health is liable to patients who suffered negative outcomes directly due to ER/PR testing errors.

We feel this acceptance of liability is a sufficient basis on which to move forward with a mediation process. The parties have begun the process of identifying a respected national profile mediator and are committed to mediating in St. John’s with a view to settlement within a 90 day frame work, assuming schedules of the mediator and other professionals permit.

As class counsel, Ches Crosbie Barristers states its commitment to vigorously represent the interests of all persons in the class. The Class Definition is posted here.

Cancer Survivor Calls on Premier to Pressure "Despicable" Eastern Health

ccb@chescrosbie.nf.net (Blog Author)9607 — Wed, 04 Mar 2009 08:00:00 EST

Host: Minnie we just heard a clip from the Premier now and he is indicating that he thinks that the class action lawsuit should be settled. What do you make of that?

Minnie Hoyles: I absolutely do believe, I believe that when you continuously drag this into the public and you’re keeping it up because every time you had to go to a court and surely Eastern Health is not thinking about bringing people that are sick down to a court house and having these people square off and try to defend their dignity. I think the Premier’s right there, I think he probably should give a call to Eastern Health and tell them that, to my mind, it’s a bit despicable that they still seem to be wanting to hold back and I think to help these sick people that they certainly do should get in behind these doors in the next few days. Have these people compensated for what’s happened to them. Money, like I said, is not going to do anything but it will allow a little bit of comfort for a lot of these people that are in their last days.

CBC Radio Crosstalk, Wednesday, March 4, 2009

Truth and Reconciliation at the Minister's Press Conference

ccb@chescrosbie.nf.net (Blog Author)9533 — Mon, 02 Mar 2009 08:00:00 EST

This is an open call to breast cancer patients to attend the Minister of Health’s press conference tomorrow.

The Minister will hold a press conference and release the Report of the Commission of Inquiry into Hormone Receptor Testing at 2:00 p.m. Tuesday at the ground floor Confederation Building Media Centre. In order to accommodate press deadlines, I will be available to the press for interview right after at the same place.

Members of the public are welcome to sit in on the press conference and I would urge anyone who can attend to do so.

We know the truth, now it is time for reconciliation. Reconciliation requires taking responsibility for choices. Don’t allow Eastern Health to ignore your rights again. Come to the press conference, if not for yourself, then for those who no longer have a voice. You don’t have to talk to the press. Just your presence will mean they can’t forget who this is all about – the patients.

Rate Your M.D.?

ccb@chescrosbie.nf.net (Blog Author)8820 — Fri, 06 Feb 2009 08:00:00 EST

A doctor friend of mine suggested I have a look at RateMDs.com. This site has good coverage in North America, and Newfoundland and Labrador has ratings for over 700 physicians and surgeons out of the 1100 or so who are licensed in this province. Given the risk of medical injury and the potentially life and death consequences of making a bad pick of a physician or surgeon, any source of information that helps in making such an important choice is worth a look.

So I looked up my own family practitioner. This doctor was reviewed by eight consumers of medical services. His score, at 3.2, seemed relatively low, so I looked at the actual comments of the eight reviewers. He was rated either very high or very low. The low rating reviewers pulled the score down significantly. One low rater appeared to be a disgruntled former employee. This brings up a weakness of this kind of public rating resource: most rated M.D.s have a small number of patients who have actually rated them, so given the small sample, the ratings are prone to distortion by a few aggrieved patients. As we all know, people who are happy with you don’t necessarily go out of their way to say so, whereas people with a grievance often broadcast it far and wide. As the saying goes, you can’t please all of the people all of the time, and there will always be unreasonable patients who want to grind an axe.

That said, RateMDs.com is one more internet resource to add to the information that the consumer should consider when making an important decision about medical or surgical care. It would work more reliably if more patients posted ratings and comments on the site, so I encourage everyone to “rate your M.D.”. I did for my M.D.

Given the alarming frequency of suboptimal and substandard medical care, and of outright medical malpractice, doing some research may just help you to avoid becoming a malpractice victim. But read this resource with a critical eye.

Appeal Court Confirms Plaintiffs Must Beware of Causation

ccb@chescrosbie.nf.net (Blog Author)8637 — Mon, 02 Feb 2009 08:00:00 EST

The Court of Appeal has rendered its decision on the appeal of Lane v. Alcock Enterprises Limited et al., a slip and fall case in which the trial judge dismissed the injured plaintiff’s claim. The plaintiff slipped and suffered personal injury on a set of wooden steps and alleged negligence arising from the lack of non-slip treading on the wooden steps, and the lack of a handrail. The Court of Appeal upheld the trial judge in dismissing the claim.

I wrote about this case in an earlier blog "Plaintiff's Neglect Causation At Their Peril".

On the issue of whether the absence of non-slip treading constituted negligence, there was conflicting expert evidence on the interpretation of National Building Code requirements, and the evidence of the plaintiff’s expert architect was thought not to be persuasive. Even if the absence of non-slip treading was a breach of the National Building Code, this was merely evidence of negligence, not proof of it, and it was somewhat unclear what this would have added to the safety of wooden steps. In any event, the trial judge’s determination that the absence of non-slip treading did not constitute negligence, was reviewable as a finding of mixed fact and law, and no extricable error could be found.

The trial judge found that the absence of a handrail constituted negligence but its absence was not shown to be a cause of the slip and fall accident and the plaintiff’s personal injuries. It had not been shown that but for the absence of the handrail, the injuries would have been avoided. This was a determination of factual causation and again the Court of Appeal was not disposed to interfere.

As I said on a prior occasion, plaintiff’s ignore the issue of causation at their peril. The prevailing test is the “but for” test, and unless the judge is persuaded that the injuries would not have happened but for the negligence, then the plaintiff will not win. Plaintiffs beware.

Deny Till You Die: Insurance Company Practices Exposed

ccb@chescrosbie.nf.net (Blog Author)8541 — Thu, 29 Jan 2009 08:00:00 EST

The friendly face of your insurance company is the people who sell you the insurance. If you think all people at your insurance company are friendly, you may not have had to make a claim.

I know that there are many honest, sincere and helpful insurance company representatives. This blog is not aimed at them, but there is a significant tendency among insurance companies to prosecute unfair claims practices. The reason for this is not hard to find: every claim denied goes to the bottom line of profit.

An association of plaintiff injury lawyers of which I am a member, has released a new report condemning some insurance company practices. Some of the tricks of the trade include rewarding employees who successfully deny claims, denying claims until the client dies, and “cancelling for a call” – making an inquiry over the phone is treated the same as a claim. As stated by one regulator:

The bottom line is that insurance companies make money when they don’t pay claims.

This special report on insurance company practices is available here.

Astonishing Invasion of Personal Privacy Ordered in Injury Case

ccb@chescrosbie.nf.net (Blog Author)8440 — Mon, 26 Jan 2009 08:00:00 EST

Our clients were injured in an automobile accident in which their car was t-boned. The defendants served a set of intrusive questions known as Interrogatories, which sought a great deal of information as to the clients’ personal medical and financial lives. The questions sought information such as a description of every complaint the clients expressed to any healthcare provider in the three years before the accident, and whether they had filed tax returns in the three years before the accident.

On the strength of the fact that the Statement of Claim filed in court alleged “personal injuries” and that the clients had suffered “pain and suffering and loss of amenities”, the judge thought the information “relevant” and ordered all these questions to be answered under oath, including the questions which pertained to pre-accident information.

One of the ironies of the decision is that one of our clients has already presented his personal injury demand for damages, and he has not made a claim for any financial loss. Yet the court has ordered him to produce a great deal of confidential financial information!

According to this ruling, just saying that you have suffered a personal injury puts your pre-accident financial and medical history in the hands of the defendant, with no more onus on the defendant to show relevance than that. The Interrogatories sought information for the three years before the accident, but why would it stop there? Why not five years? Why not ten? This is contrary to the law and practice that I have worked with in personal injury cases for decades, and as readers can guess, an appeal is under consideration.

Car Wrecks and Cell Phones

ccb@chescrosbie.nf.net (Blog Author)8227 — Mon, 19 Jan 2009 08:00:00 EST

Several years ago a good Samaritan driver stopped his car on a parkway in St. John’s, put on his emergency flashers, and offered to assist the driver of another vehicle whose car appeared to be immobilized on the shoulder of the road. Another vehicle smashed into the rear of our client’s car, driving it into the other parked car, and crushing the knees of our client who was standing between the two vehicles.

Production of the negligent driver’s cell phone records revealed that he was speaking on his cell phone at the time of the collision.

Newfoundland and Labrador was a relative pioneer in banning cell phone use while operating motor vehicles, but we all notice drivers who continue to violate this ban, absorbed in conversations and whether weighty or trivial as they wait at stop lights or negotiate challenging traffic, cell phones stuck firmly to their ears.

I wrote about the issue of cell phone use in vehicles in an earlier blog. The issue is distraction and focus of attention. The larger question is whether not just cell phone use, but any telephonic communications device, including hands-free ones, should be permitted during the operation of a motor vehicle. All of these devices distract drivers and take attention away from the task at hand – safe driving. Other issues concern enforcement and whether the penalties for this potentially dangerous conduct by drivers can only be fully deterred by harsh penalties.

The United States is waking up to the issue of cell phone use while driving and six states have now banned the practice. Some commentators have called for offences which carry jail time of up to 90 days, on the theory that if the consequences are more severe there is a greater chance that drivers will be deterred from talking on cell phones while driving. The consequences for car accident victims, after all, can be severe – they certainly were for our young client whose ability to walk, let alone run, has been permanently impaired. For a provocative review with a United States viewpoint, have a look at Mike Schafer’s blog “Does Kentucky need a cell phone law?”

Auto No-Fault Ruled Constitutional By NS Court

ccb@chescrosbie.nf.net (Blog Author)8042 — Tue, 13 Jan 2009 08:00:00 EST

In Alberta, legislation which excludes injury victims from compensation for pain and suffering awards for so-called “minor” injuries, is unconstitutional. But in Nova Scotia, similar legislation does not offend the Charter of Rights.

Or so the Nova Scotia court ruled yesterday on a Charter of Rights challenge to the legislation, which prevents pain and suffering awards to “minor”, usually soft tissue, injury claimants.

The Nova Scotia ruling was heavily based on extensive evidence heard during a 14 day proceeding, and the judge was critical of much of this evidence. But anyone who reads the 93-page decision in Hartling v. Nova Scotia (Attorney General) might well wonder whether Atlantic Canada judges harbor a deep predilection to defer to government decision-making, a predilection which other judges, in provinces with traditions of independence from government and a love of liberty, do not share. I wrote about the contrasting Alberta decision which found discrimination against car crash victims in a previous blog. Now the appeal courts will have to sort through the mess created by provincial governments who were panicked into anti-consumer legislation by the insurance industry.

Junk Expert Evidence: Keep Out!

ccb@chescrosbie.nf.net (Blog Author)7931 — Thu, 08 Jan 2009 08:00:00 EST

Despite warnings from the Supreme Court of Canada, trial judges remain all too willing to allow supposed “experts” to give opinion evidence on all manner of matters which do not fall within their clear area of expertise. I have seen this happen in accident and injury cases in our courts in Newfoundland and Labrador, and it not only wastes court time but exposes parties to the risk that unreliable expert evidence will influence the result.

A recent decision of the Court of Appeal in Ontario has strongly disagreed with this “let it all in” approach. The case arose out of a road crash in which the plaintiffs were riding a tandem bicycle. After going down a hill, crossing a bridge and going up another short hill, the husband lost control of the tandem bicycle. He was killed and his wife was injured. The plaintiffs brought action against the municipality for disrepair of the road. On the appeal, it was found that the driver of the bicycle was contributorily negligent, but the liability of the town was upheld.

The point of interest is the Court of Appeal’s firm pronouncement against the “let it all in” approach of many trial judges. The Court aimed its comments against the easy admission of opinions from an “accident reconstruction” expert called by the defence:

Apart from trial economy, trial judges who fail to properly perform their gatekeeping function run the risk of their decision-making function being usurped or severely eroded by “expert generalists” who profess to know something about everything and who are only too willing to provide the court with a ready-made solution for any contentious issue that might exist. The problem with such witnesses is that while they appear knowledgeable and generally come across well, upon closer scrutiny, their opinions may well turn out to be little more than concoctions consisting of guess work, speculation, common place information and junk science, with a hint of valid science thrown in for good measure.

Courts must indeed be vigilant not to allow impermissible evidence. I see this type of “evidence” being offered frequently. Next time it happens, I will be relying on this pronouncement from the Ontario Court of Appeal to try to stop it from happening.

Scandal At Eastern Health Not An Accident (con't.)

ccb@chescrosbie.nf.net (Blog Author)7798 — Mon, 05 Jan 2009 08:00:00 EST

Yesterday I invited comments on recommendations I put forward on behalf of the Members of the Breast Cancer Testing Class Action. I listed the recommendations in our Submission in chief. We made some further recommendations in the Reply Submission. Comment on these would be greatly appreciated as well.

Further Recommendations:

(1)        That Eastern Health conduct an appropriate random sample of positive results.

(2)        That Eastern Health and other healthcare boards adopt a rigorous system of in-service instruction at all levels and follow up quality assurance to ensure that any reporting system as recommended by the Task Force be implemented and fully functioning.

(3)        That the Government consider providing proposed legislative amendments to counsel for the parties to the Inquiry for comment with a view to possible improvement.

Better To Settle Than Sue?

ccb@chescrosbie.nf.net (Blog Author)7792 — Mon, 05 Jan 2009 08:00:00 EST

A study published by Cornell Law School last fall attracted some interest in the press. The study surveyed over 2000 cases in which money damages were sued for in California between 2002 and 2005, and determined that 61% of plaintiffs and 24% of defendants obtained an award at trial that was the same as or worse than the result that could have been achieved by accepting the other side’s pre-trial settlement proposal.

The study was published in the Journal of Empirical Legal Studies.

The study also found that the average cost of a decision error for plaintiffs was US $43,000, and for defendants was US $1.1 million. The cost of defendant decision errors increased at a much higher rate over time, than the average cost of plaintiff decision errors.

What lessons to draw from this US study which might apply in Canada? Well, certainly in Newfoundland and Labrador we do not have the wildcard factor of civil jury trials. We are also not as aggressively litigious as the US, although the aggressiveness of United States litigation has been overstated. The study found a settlement rate of between 80 and 95% in US litigation.

In Ontario, the settlement rate is 97%. I think it is even higher in Newfoundland and Labrador.

One interesting finding which our accident and injury clients should remember is that the study found that parties who receive settlement offers of a formal nature under rules of court, which shift heavy cost burdens to the other side if the settlement offer is refused and the judgment is not as favorable, were more likely to take aggressive settlement positions. In other words, the recipient of a formal offer to settle tends to “dig in”, increasing the risk of making a decision error.

The decision error rate for plaintiffs who refused formal offers to settle was 83%, compared to 61% for plaintiffs not subject to formal offers to settle with attendant penalties and costs.

The study’s conclusion about formal offers to settle was that although the rules intend such offers to encourage settlement by imposing increased potential costs for failure to settle, such offers “may actually induce risk-taking by the parties and may provoke the gambling mentality that they are intended to curb.”

The teaching point for accident and injury clients and their lawyers is that we should not be drawn into an overly aggressive litigation stance by the feeling of challenge and insult which often is created by a defendant who draws a line in the sand with a formal offer to settle.

Atlantic Lotto Immune from Consumer Protection Laws

ccb@chescrosbie.nf.net (Blog Author)7323 — Tue, 16 Dec 2008 08:00:00 EST

The Piercey family and many others are seeking against Atlantic Lotto Corporation a monetary remedy and the elimination of harmful, deceptive and addictive features from VLT games. In the first battle in the lawsuit, Atlantic Lotto persuaded the judge that ALC is a Crown agent and as such, is not subject to the ordinary consumer protection laws as contained in the Trade Practices Act. The injury and harm caused by VLTs is incalculable, and the Pierceys have instructed Ches Crosbie Barristers to amend the Statement of Claim and proceed on alternative causes of action. Further information is available in the press release below, and in the decision of Justice Dymond which we have also posted below.

Press Release dated December 16, 2008

Decision of Justice Dymond dated December 12, 2008

Not Satisfied with the Care You or a Loved One Received? Consider Reporting the Doctor

ccb@chescrosbie.nf.net (Blog Author)6965 — Wed, 03 Dec 2008 08:00:00 EST

We receive a lot of calls about potential malpractice cases. It is not because people are sue happy. Primarily, it is because the practice of medicine is no different than many other professions. Some doctors are excellent, some are rushed and occasionally make mistakes, some have poor bedside manners, and some are not competent for whatever reason. And sometimes, patients simply fall through the cracks due to poor communication of test results, and other mistakes.

Even if you or a loved one are the victim of a medical mistake (known as medical negligence or medical malpractice), it does not automatically mean that you have a case worth pursuing through a lawsuit.

Firstly, medical malpractice cases are extremely expensive to investigate and pursue. With very few exceptions, experts must be consulted to review records and determine if malpractice even occurred, and it can cost thousands of dollars just to determine if a preventable medical mistake occurred. It can cost tens of thousands in expert witness and other disbursements to bring a case to settlement, and more again to complete a trial. Generally, serious permanent injuries are required in order to attract the significant money damages required to justify this kind of effort and expense.

Secondly, doctors win close to 85% of all malpractice lawsuits that go to trial. This indicates that these cases are always risky.

We must consider all these realities in deciding to accept or reject any case. But that does not mean you are without rights if we decline your case. If you are not satisfied with a physician’s or hospital’s care, you should be aware that you can report what happened to the College of Physicians and Surgeons of Newfoundland and Labrador and if a hospital was involved, to the hospital authority. I give more information about how to make a complaint, including contact information, under the FAQ “If I’m not satisfied with the doctor’s or hospital’s care, can I make a report to the authorities?”

OxyContin Fallout Continues

ccb@chescrosbie.nf.net (Blog Author)6150 — Thu, 13 Nov 2008 08:00:00 EST

In the past few weeks news media have reported surges of break-ins in and around St. John’s. The chances are excellent that these crimes were driven by OxyContin addiction. The perpetrators take whatever they can get their hands on and sell it or trade it for drugs. OxyContin was a favorite “sex for drugs” tool of the infamous Dr. Sean Buckingham, finally behind bars where he can no longer prey on patients.

The fallout from Purdue Pharma’s guilty plea last year will be raining down for some time yet. The company and three top executives paid fines totaling $634 million U.S. for the offence of misbranding OxyContin, but served no jail time. One of the Purdue executives who plead guilty was Howard Udell, chief legal officer. Now he faces disciplinary action and the possible loss of his license to practice law.

Marianne Skolek lost her daughter to OxyContin addiction and now spends her time pursuing Purdue Pharma executives to a fuller measure of justice. Udell defended himself in disciplinary proceedings and argued that the U.S. government conceded last year that it had an absence of proof that the individual defendants knew about the wrongdoing described in federal criminal charges. As reported by the Pharmalot Blog yesterday, a poll of readers were asked whether Udell should lose his license. 69% thought yes, 31% voted no.

Purdue and OxyContin have done widespread damage in Nova Scotia and Newfoundland, and my firm and the Wagner law firm in Halifax commenced class proceedings last year.

In Toronto this month, Ray Wagner met with some class action lawyers who have also commenced proceedings against Purdue. We are actively strategizing the best venue and manner of proceeding with the civil class action, and will keep our clients informed.

How To Get Your Case Settled Fairly: The Adjuster

ccb@chescrosbie.nf.net (Blog Author)6051 — Mon, 10 Nov 2008 08:00:00 EST

At a recent conference on auto accident law, I listened to a presentation by an insurance company claims adjuster. The topic was “How to Get your Case Settled Fairly”.

The adjuster pointed out that insurance adjusters carry heavy file loads and they are under pressure to settle claims quickly and cost effectively for the insurance company. She recommended that it is in the interest of the injured client for their lawyer to develop a rapport with the adjuster, and to assist the adjuster with her job. Her job requires her to gather information to document a “reserve” or estimated amount that the insurer thinks will have to be paid to settle the claim. Rapport with the adjuster is established by facilitating the initial investigation by helping, rather than obstructing, the information gathering process.

I agree with all this. Good relations with the adjuster makes good sense. If the adjuster is not provided with medical and other information, then in many cases the reserve will be set too low, and it may be very difficult later to get the reserve adjusted upward so that the claim can be settled for what it’s worth.

BUT then the presenter made the following revealing comment about the insurance adjuster’s agenda:

· Adjusters will almost always request a statement from the plaintiff and while this process will assist the adjuster in completing the investigation and setting reserves, it also serves to discredit plaintiffs or limit liability.

This is why I recommend that auto accident clients talk to a lawyer BEFORE MAKING A TERRIBLE MISTAKE IN THEIR CLAIM. The adjuster may be friendly, but she is not your friend. Her agenda is not identical to your agenda. In fact, the accident victim and the adjuster are in an inherently adversarial relationship. An experienced accident and injury lawyer can help the adjuster with her legitimate need to set a reserve, while protecting the client from the adversarial part of the adjuster’s job – “to discredit plaintiffs or limit liability”!

Finding a Great Injury Lawyer on the Internet

ccb@chescrosbie.nf.net (Blog Author)5702 — Mon, 27 Oct 2008 08:00:00 EST

            The internet has emerged as an indispensible tool in the injured consumer’s quest to find a great lawyer. But to get the most value from this revolutionary tool, consumers need to know how to recognize sites that are likely to lead them to a great lawyer who is perfect for their case. Many sites are not what they appear to be.
            Search engines such as Google use organic search terms. So a search term such as “Newfoundland injury lawyer” yields many pages of hits. If you’re like me, you don’t have time to view more than the first two or three pages. Among those pages you will see two basic categories of lawyer finder websites. They are “directory sites” and “referral sites”, which are explained further in this website in Legal Matchmaking: The Truth About Lawyer Finder Websites and Online Directories. A point about these sites is that they guarantee nothing about the qualifications of the lawyers to whom the consumer is directed or referred, and tell the consumer little about them except that these lawyers want the consumer’s business.
            The other type of website is a site put up and maintained by an individual law firm. Your search for “Newfoundland injury lawyer” will probably return only 2 or 3 hits for law firms with offices in Newfoundland which claim to be experienced in injury law. A good test to use for judging law firm sites is: Does this website provide me with good useful information about my type of problem? If a law firm provides information about your problem in a useful and interesting way, instead of just talking about how great the law firm and its lawyers are, then this is a good indicator that you may be on the way to finding a great lawyer who is the right lawyer for your case.

Queen's Counsel: The Right Lawyer For Your Case?

ccb@chescrosbie.nf.net (Blog Author)5392 — Thu, 16 Oct 2008 08:00:00 EST

Ten new Queen’s Counsel (Q.C.) were announced by the Minister of Justice last week. The designation is a royal patent with a long and distinguished tradition in the United Kingdom and the Commonwealth. Sir Francis Bacon was appointed the first counsel to the Queen during the reign of Elizabeth I in 1597. But what does it mean today?

Over time, the practice of recognizing excellence in the legal profession made its way to the colonies. In the various jurisdictions of Canada, the Q.C. designation has been a matter of controversy over the last 25 years or so. The practice of awarding Q.C.s was discontinued by the Government of Ontario in 1985. Quebec did away with Queen’s Counsel appointments in 1976. The federal government gave the practice up in 1993. And Manitoba replaced the Q.C. designation in 1999, with the new honour of Senior Counsel (S.C.).

The criticism of the Q.C. designation is that various governments have abused it as a patronage award which owed more to political allegiance than it did to excellence in courtroom advocacy or in law generally. Other provinces have written criteria which those lawyers considered for the Q.C. designation must meet. Newfoundland and Labrador has no criteria for the award of the honour, except the requirement that the recipient be practicing at the bar for 10 years or more.

It is high time that criteria were adopted in this province which set out a test for the qualities a lawyer should exhibit in order to receive the honour. Without criteria, the case will be all the stronger that it means little and should be done away with to prevent political abuse.

For accident and injury claimants considering what lawyer may be best for their case, a Q.C. designation is something to note, an indicator of respect in the profession, but much less important than many of the other factors I’ve set out in my book 7 Deadly Sins That Can Wreck Your Injury Claim. You can get the book for free by ordering from this website.

Quality Assurance Missing at Children's Emergency

ccb@chescrosbie.nf.net (Blog Author)4450 — Tue, 09 Sep 2008 08:00:00 EST

Dr. Steven Noseworthy’s piece in the Saturday Telegram was “déjà vu all over again”. The Janeway emergency room is run by Eastern Health. We are told by this specialist in pediatric emergency medicine that the Janeway set up “lacks pediatric emergentologists, research activity, quality assurance measures, and a suitable academic environment in which to teach”, and that trainees should be sent out of the province. Whether the ER is working well or poorly is unknown, because “there are few, if any, quality assurance measures in place” to allow for evaluation.

Another Eastern Health service in which few, if any, quality assurance measures have been in place comes readily to mind: its pathology lab and hormone receptor testing program. This is the university affiliated tertiary care centre lab, which former chief Dr. Don Cook told me under cross-examination at the Cameron Inquiry, was nothing more than “a glorified community lab”. The insider revelations of Dr. Noseworthy now suggest that the emergency department of our flagship children’s hospital is merely a glorified community emergency room.

This is an issue of patient safety. A case which remains vivid in my mind as a malpractice lawyer concerned a child whose diagnosis was delayed by an undertrained doctor staffing emergency, while a treatable condition of bacterial meningitis raged through the child’s brain. This client survived with very significant neurological damage. Successfully resolving a claim for damages is not a substitute for a high standard of emergency care and proper quality assurance. Better to avoid injury in the beginning than to seek a remedy in damages later.

Eastern Health has dramatically improved quality assurance and patient safety in the pathology lab. It should put the same effort into improving quality in other services.

What is cross-examination and why should I care anyway? A Primer for Injury Victims

ccb@chescrosbie.nf.net (Blog Author)4409 — Fri, 05 Sep 2008 08:00:00 EST

In my article How to Get More Money for Your Injury Claim: Giving Evidence at Discovery, I briefly touched on the importance of cross-examination. This article explains more about the role of cross-examination in getting you the money you may be entitled to for your injury.

A famous legal authority once described cross-examination as the most powerful engine for the discovery of truth ever devised by man. This statement of the critical importance of cross-examination to court process is accepted and even venerated by virtually all experienced lawyers and judges. So what is cross-examination, and why should you care?

If you or someone you care about has a significant personal injury claim, then cross-examination and what you can do about it could be very important. Read on.

To most lawyers, cross-examination is a method of asking questions of the other side's witnesses, and it means they can ask "leading" questions. A leading question is one that suggests the answer ("You stopped beating your wife in 2005?"). But leading questions are only part of the story of cross-examination, and lawyers who think it is the full story often engage in table thumping or nitpicking sessions that give the impression of making a point (which nobody can remember afterwards) or peter out without leaving any impression at all.

Yes, cross-examination involves leading questions. That is Rule #1 of cross-examination: (1) leading questions only. But most lawyers do not understand the other two cardinal rules of cross-examination: (2) establish one fact per question, and (3) move toward an achievable goal. This goal should be one which harms your adversary's case.

That's it - the only three cardinal rules of cross-examination. But leave out any one of them and the lawyer is trusting to luck not skill.

One other thing. Preparation is required to apply the above three rules to maximum effect. Lots of preparation.

Should you care? Any accident and injury client with a case important enough to have a lawyer should know that cross-examination can make or break a winnable case. And there is something important that you yourself can do to stack the odds in favor of winning, other than choosing a lawyer who will effectively cross-examine the other side.

Most personal injury claims don't go to trial. Over 95% of accident and injury claims settle. But the majority of significant injury claims (significant enough to have a lawyer) will go to "oral discovery". This involves going to a law firm boardroom and being examined under oath or solemn declaration to tell the truth.

So what can the personal injury client do to influence the odds of winning in their favor? Prepare! The two or three hours spent in oral discovery will strongly influence the amount of your settlement and may be the most profitable few hours in your life.

A good, experienced personal injury lawyer will help you prepare for this important initial event of oral discovery. How well your claim fares will depend on how good the defence lawyer is at cross-examination, and how well prepared you are to answer it. The good news for injury clients is that most defence lawyers are not good at cross-examination, and that you can enormously improve your bottom line results if you prepare for your testimony.

In the next instalment in this series, I will discuss winning cross-examination at the oral discovery and winning the cross-examination at trial.

Plaintiff's Neglect Causation At Their Peril

ccb@chescrosbie.nf.net (Blog Author)4376 — Thu, 04 Sep 2008 08:00:00 EST

In this Trial Division decision, the court found that the defendant had been negligent, but the plaintiff had not proven the necessary causal connection between the defendant’s negligence and his injuries.

In the Newfoundland and Labrador case of Lane v. Alcock Enterprises, Mr. Lane fell on a set of four stairs leading to a landing. He argued negligence in three respects: no hand rail, difficult stair geometry, and lack of non-slip treading.

The trial judge found that the lack of a handrail and poor stair geometry from the main access stairs into the business, constitute negligence. Evidence of architectural experts was heard. However the judge found that she was not convinced that either the stair geometry or the lack of a handrailing made a significant contribution to the slip and fall and consequent injuries.

The teaching point is that to succeed in a negligence action, the plaintiff needs to prove not just negligence, but that the negligence caused the injury. Proof of causation is the element of a successful action that all too often gets overlooked. Plaintiffs and their lawyers neglect proof of causation at their peril.

Myths about the insurance claim process

ccb@chescrosbie.nf.net (Blog Author)3175 — Tue, 24 Jun 2008 08:00:00 EST

Time and time again, I see members of the public who are misled by myths about the insurance claims process. Some of these myths can be dangerous. I'll list a few of them below.

If you write the insurance company a letter and are reasonable, you will get a reasonable settlement proposal.
When you are in an accident and the insurance company calls you to ask for a recorded statement, you have to give them a recorded statement or they won't settle with you.
All lawyers who advertise that they handle accident cases have the same ability, tools and experience to handle your case.
The insurance company for the person at fault is obligated to pay your bills for treatment as they are incurred.
All lawyers charge the same fees in injury cases.
The tort liability system is some sort of lottery that will help you get rich.
Just because there has been an accident and it wasn't your fault, there must be some insurance company that will pay for your bills, lost wages and injuries.
If a lawyer refers you to a doctor, that is a good idea.
Courts are generous.

The last myth "Courts are generous", is particularly dangerous. Have you ever heard of the expression that possession is nine tenths of the law? Well judges certainly have, and their attitude generally is that if you are trying to get money away from someone who has it, whether insurance company or big corporation, and no matter how bad their conduct or how bad your injury, then you had better be able to overcome a large burden of proof. Trust me.

A reputation built on car cases

ccb@chescrosbie.nf.net (Blog Author)3174 — Tue, 24 Jun 2008 08:00:00 EST

The funny thing is that as we’ve become known as the leading consumer class action law firm in Newfoundland and Labrador, consumers seem to have assumed that we are no longer interested in the more common accident and injury cases like car cases. As we’ve become more famous through cases like the Breast Cancer Testing Class Action, some consumers seem to have forgotten that we built our skills and reputation getting good results for injury victims in motor vehicle cases.

I take the blame. We haven’t done a good job of keeping consumers informed of what we’ve always done best – level the playing field against the insurance companies for victims of car accidents, one case at a time.

To correct this misperception, I’ve offered to consumers the free book 7 Deadly Sins That Can Wreck Your Injury Claim. I’ve also set up this website as a place for injured consumers to get their important questions answered. The idea is to provide valuable and interesting free legal information to consumers, and we have just sent out a large format postcard to our many clients and friends, as a natural extension of this approach.

Here's the card we sent out in May 2008:

Look for plenty more commentary on motor vehicle accident issues in this blog.

We can do big complex cases like class actions, but we developed the skill and ability to do complex cases by leveling the playing field for consumers in motor vehicle accidents.

Legal website to relieve consumer frustration

ccb@chescrosbie.nf.net (Blog Author)3062 — Mon, 16 Jun 2008 08:00:00 EST

Being an injury victim and looking for an accident lawyer in Newfoundland and Labrador – it’s so frustrating!

It’s frustrating because there are so few sources of reliable information out there to help consumers find the right lawyer. Look at the Yellow Page ads and you get the same basic message, one ad to another – free consultation, we’re aggressive, we care for you, we’re the biggest, no fee unless we collect – and what kind of basis is that for making a smart pick of a lawyer? What in the Yellow Page ads really helps you to distinguish one injury firm from another when they all say the same thing?

(Actually, in our Yellow Page ad we do try to help injured consumers with what may be keeping them awake at night – have a look!)

Consumer frustration at trying to find good reliable information is the reason I wrote my free book, 7 Deadly Sins That Can Wreck Your Injury Case. In it, I set out factors and approaches you might consider in choosing an injury lawyer.

But nowadays, consumers often don’t stop their research at the Yellow Pages or by asking a friend. They “google” the internet. And when consumers do that, they get frustrated all over again.

Because when you put in a search term like “Newfoundland and Labrador Injury Lawyer” you get lots of lawyer referral sites that are spending millions of dollars to get good search engine placement, you get lots of random law firm sites that don’t even have an office in our province, but you don’t get search results that return websites of local law firms with good reliable information on personal injury issues. Information that can really help you make what may be one of the most important decisions in your life – choosing an accident and injury lawyer to help you with an accident claim that could affect the rest of your life.

The frustration caused by lack of good information is why I totally revamped our website as of June 2008. Our aim is to provide injured consumers with an easy to locate web resource to help them to answer the questions that keep them up at night. Do I even need a lawyer? How do I find the right lawyer for my case? Should I talk to the insurance adjuster about my injuries or sign any papers? Am I making a terrible mistake in my claim?

With the valuable free information you can get from my “ultimate” accident book and this website, I aim to put the consumer on an even playing field with the insurance companies. Armed with this information, if you think you need a lawyer, the next step of hiring a lawyer is up to you. I’ve given you the tools to make the right choice.

Breast Cancer Testing - Claim Process

ccb@chescrosbie.nf.net (News Author)12913 — Fri, 19 Feb 2010 08:00:00 EST

We have received several inquiries from class members concerning the Claim Form. The Claim Form can be obtained from the Fund Administrator in one of the following ways:

1. By telephone at 1-866-553-1124;

2. By email at breastcancertesting@crawco.ca; or

3. By printing from www.nlbreastcancersettlement.ca.

If you are unsure as to which compensation category you belong, you can select "Category 7" on page 2 of the Claim Form.

Breast Cancer Testing - Claim Process

ccb@chescrosbie.nf.net (News Author)12914 — Fri, 19 Feb 2010 08:00:00 EST

We have received several inquiries from class members concerning the Claim Form. The Claim Form can be obtained from the Fund Administrator in one of the following ways:

1. By telephone at 1-866-553-1124;

2. By email at breastcancertesting@crawco.ca; or

3. By printing from www.nlbreastcancersettlement.ca.

If you are unsure as to which compensation category you belong, you can select "Category 7" on page 2 of the Claim Form.

Court Approves Class Action Settlement

ccb@chescrosbie.nf.net (News Author)12825 — Mon, 15 Feb 2010 08:00:00 EST

On Friday February 12, 2010, the Court approved the settlement of the class action arising out of errors in ER/PR testing between 1997 and 2005. A copy of Judge Thompson's decision is available here.

Further details about how to apply for compensation will be released in the next few days.

Crosbie Firm Gives Notice to Class Members

ccb@chescrosbie.nf.net (News Author)12113 — Fri, 08 Jan 2010 08:00:00 EST

In a February 2 court application lawyers for members of the Breast Cancer Testing class action will seek settlement approval and approval of the contingent fee agreement signed by the representative plaintiff and 348 class members. The settlement includes $17.5 million in compensation and an independent audit of changes to health care.

The compensation categories which the court will be asked to approve are as follows (the amounts are net after deduction of fees and expenses):

	Compensation Target
Category 1: Class Member whose test result changed from negative to positive, did not receive timely hormone therapy and suffered a breast cancer recurrence within 10 years of original diagnosis.	$ 75,000.00
Category 2: Class Member whose test result changed from negative to positive, did not receive timely hormone therapy and had stage IV breast cancer at the time of initial testing.	$ 15,000.00
Category 3: Class Member whose test results changed from negative to positive, did not receive timely hormone therapy and has not suffered a breast cancer recurrence.	$ 15,000.00
Category 4: Class Member whose test results changed from positive to negative as set out in the settlement and who received hormone therapy.	$ 10,000.00
Category 5: Class Member who does not fit in Categories 1, 2, 3, or 4 and who suffered a psychological injury as defined in the settlement.	$ 5,000.00
Category 6: All other Class Members	$ 1,000.00

The notice to class members was sent today and is on Ches Crosbie Barristers website, along with the Settlement Agreement and Distribution Protocol. The notice points out that the settlement does not include claims arising from misdiagnosis of breast cancer, for example a diagnosis of pre-cancer (DCIS) which was really invasive cancer. Patients who have such claims may pursue individual lawsuits.

If the court application on February 2 is approved, the compensation fund administrator will make application forms available to class members who request one. "The first payments will be made to category 1 patients," said Mr. Crosbie. "Time is not on their side."

Crosbie not giving up on VLT class action

ccb@chescrosbie.nf.net (News Author)11808 — Mon, 21 Dec 2009 08:00:00 EST

Lawyer Ches Crosbie is making a second attempt at getting a class action certified against Atlantic Lottery Corp. (ALC) over video lottery terminals.

Crosbie's attempt toward starting a class action failed in 2008. Crosbie argued ALC broke the provincial Trade Practices Act.

But Supreme Court of Newfoundland and Labrador Justice Wayne Dymond ruled ALC was a Crown corporation and "immune" from the trade practice law.

This time around, Crosbie's arguments include a breach of the Criminal Code, breach of the Competition Act, unjust enrichment, breach of contract and breach of duty to warn.

A hearing on the application is yet to be set, but that will be the subject of a meeting with Dymond in January.

"The main point is this is a deceptively designed and inherently dangerous product," Crosbie said of the VLTs Friday.

"We're holding ALC as the agency charged by the government and law with upholding the public interest for purveying this product to the population of Newfoundland and Labrador."

The class period spans six years and the lead plaintiff is the estate of Susan Piercey, represented by her father Keith.

Susan Piercey, 31, committed suicide by overdosing on pills in 2003.

She was addicted to gambling for 10 years and is estimated to have lost about $100,000 over that time.

The family wants to see a ban on VLTs and has said it will donate any money from a successful class-action lawsuit to gambling-addiction programs.

There's also a new affidavit by businessman Robert Tucker detailing his personal turmoil with the machines.

He said he started selling properties - five between 2002-07 worth nearly $650,000.

"With each sale I would apply the majority of the funds to paying off debt accumulated because of VLT use or use the funds directly in VLTs," Tucker said in the affidavit, adding he'll donate any money resulting from a possible class action to charity.

"For me personally, this lawsuit is not about recovering lost money. It is about exposing the misleading and inherently harmful nature of VLTs so that other people and their families will not have to suffer through my experience," Tucker said.

He said he began playing VLTs in 1994 when he took over the Alley Pub in a building he owned on Water Street, St. John's.

Tucker brought in five VLTs and operated the pub for six months before finding a tenant.

He also operated the Silver Spur on the ground floor from '94 to 2000.

There were VLTs in there, too, but Tucker took them out not long after taking over.

Tucker said he expects he would have made $25,000 to $30,000 a year on the VLTs at the Silver Spur, or about 10 per cent of the bar's gross revenues.

But he observed some bars are much more reliant on VLT profits than they are alcohol sales, suggesting there are bars that "exist for the purpose of VLT revenues."

Tucker played the machines regularly in the province and quit in December 2007 when he ran out of money.

"The amount of money I deposited into VLTs was significant. For instance, in 2006 and 2007, the last two years I was using VLTs, I spent approximately $150,000 playing VLTs in Newfoundland," Tucker said in his affidavit.

He said he tried everything to quit - leaving his house without money or credit and debit cards and reducing his daily ATM limit. But it didn't work - he'd just go to the bank to get cash or a new debit card.

"When I played VLTs, I felt like I was under a hypnotic spell. I felt like I did not have the choice of walking away from the machines - it felt like I had no control over the process," Tucker said.

He also said he wasn't given any instruction or training by Atlantic Lottery about how to address problem VLT gamblers.

But he was told to get a bank account where he could make weekly deposits to Atlantic Lotto Corp. of the money generated FROM the VLTs, as well as get a separate phone line for the machines and to keep a float to pay out to winning gamblers.

Ontario Awards Climb Towards $20 Million

ccb@chescrosbie.nf.net (News Author)11764 — Fri, 18 Dec 2009 08:00:00 EST

Two recent eye catching Ontario decisions in personal injury cases show that courts in that province do not shy away from very large numbers.

In one case, the Ontario Court of Appeal confirmed an award of more than $15 million plus costs, given after a six week jury trial. The defendants appealed on both liability and damages.

In another case, a trial judge awarded a 15-year-old girl and her parents a total of $18,427,000 in damages. She had been severely brain injured in a crash. She was unemployable and required 24-hour supervision.

The judge awarded the maximum non-pecuniary general damages allowed by the so-called trilogy cases, namely $336,968. The plaintiff's mother received $160,000, her father $125,000, and her brother $50,000 for loss of guidance, care and companionship.

Most of the award was taken up with future care costs, at over $15 million. The court accepted evidence of a healthcare economist that healthcare costs are expected to rise at a rate greater than the general rate of inflation, and used a discount rate more generous than the prescribed rates. The defence argued for a 25% contingency deduction from the future cost of care award to reflect the possibility of diminished life expectancy, but the court held that the burden of establishing reduced life expectancy rested with the defendants. In the absence of such evidence, the court concluded that the plaintiff had a normal life expectancy.

(For Ches Crosbie's blog comments and links to these decisions see Ontario Courts Not Afraid of Large Numbers.)

Breast Cancer Testing Class Action Settles

ccb@chescrosbie.nf.net (News Author)11145 — Mon, 02 Nov 2009 08:00:00 EST

Eastern Health and Members of the Breast Cancer Testing Class Action jointly announced on October 30, 2009 that they concluded negotiations toward settlement of the class action arising out of errors in ER/PR testing between 1997 and 2005. The monetary value of the settlement is approximately $17.5 million.

Breast Cancer Talks Under Press Blackout

ccb@chescrosbie.nf.net (News Author)10846 — Fri, 16 Oct 2009 08:00:00 EST

FOR IMMEDIATE RELEASE October 16, 2009
FOR FURTHER INFORMATION CONTACT:
CHES CROSBIE, 579-4000
Email: ccb@chescrosbie.nf.net www.ChesCrosbie.com

BREAST CANCER TALKS UNDER PRESS BLACKOUT

In an email sent to clients last week, class action lawyer Ches Crosbie told his clients that the mediator had advised the parties to accept a blackout on public communications through the press until the mediation is done. “He advised this is in the interests of settlement”, Mr. Crosbie wrote, “and we agreed.”

Mr. Crosbie has stated publicly that Eastern Health does not have enough insurance to pay the injury claims.

The personal injury class action is in the name of Verna Doucette, who says in court documents that she has suffered irreversible lung damage from unnecessary chemotherapy and may need to have her lung removed as a result. The allegations have not yet been proved in court.

Doucette will be assisted at the talks by a panel of six other class members.

CHES CROSBIE BARRISTERS
169 Water Street, 4^th Floor
St. John’s, NL A1C 1B1
Telephone: 579-4000 or 888-579-3262
Facsimile: 579-9671
Email: ccb@chescrosbie.nf.net

Province Has Lowest Injury Cost

ccb@chescrosbie.nf.net (News Author)10055 — Fri, 21 Aug 2009 08:00:00 EST

According to a new study of the human toll of injuries in Canada, Newfoundland and Labrador has the lowest per capita injury related cost in Canada. The total of direct medical costs and indirect costs was highest in Alberta, at $918, and lowest in this province, at $518 on average per resident.

Smart Risk, a charitable group that promotes injury prevention, commissioned a lengthy report entitled "The economic burden of injury in Canada" released recently. The cost of injuries both accidental and intended in Canada per year was reckoned at almost $20 billion.

The leading cause of all injury deaths was not transport related incidents, but suicide - responsible for 3,616 deaths in 2004, according to the report. Transport related incidents, including motor vehicle collisions, claimed 3,067 lives, and falls, most involving seniors, claimed 2,225 lives.

Local Physician Held Liable to Cancer Victim

ccb@chescrosbie.nf.net (News Author)9422 — Wed, 22 Jul 2009 08:00:00 EST

In a recent medical malpractice case, Arnold's Cove family doctor Peter J. Cleary has been ordered to pay damages to a former patient for failing to diagnose mouth cancer over a nine month period. The cancer could have been treated with minor surgery but progressed to the point where "commando" surgery on the patient's tongue, jaw and chest was required to cure the cancer.

Sixty-two year old Clarenville native Basil Courtney was awarded an amount close to one million dollars for his extensive injuries in a Supreme Court of Newfoundland and Labrador, Trial Division decision released in early July. An amount of $165,000 was awarded for pain and suffering.

Dr. Cleary argued that cancer patients should expect a lower quality of care from doctors in Newfoundland than exists elsewhere in North America. The court rejected the argument (see para. 99).

Mr. Courtney, a pipefitter, had complained of a sore mouth during five visits to the doctor between July 1999 and April 2000. The court found that the physician was negligent in failing to do a proper examination and in failing to refer to a specialist for investigation and diagnosis.

Local Lawyer Receives Mainland Recognition

ccb@chescrosbie.nf.net (News Author)8896 — Fri, 05 Jun 2009 08:00:00 EST

June 5, 2009

For the first time in its 20 year history, an Ontario trial lawyer organization has recognized an out-of-province lawyer for a prestigious award.

Last week, the 1100 member Ontario Trial Lawyers Association awarded the Hillyer Award for trial advocacy to St. John's native Ches Crosbie, Q.C.

The award is made to an individual who promotes access to justice through "fearlessly advancing the cause of individual rights by the effective use of trial advocacy."

Past awards have been made exclusively to leading members of the Ontario trial bar who "exemplify the spirit" of the Ontario Trial Lawyers Association. The award is made usually but not necessarily annually.

Mr. Crosbie has come to recent national attention as the lawyer for the victims of breast cancer tests in Newfoundland and Labrador which were botched between 1997 and 2005. Similar testing problems have recently come to light in Quebec.

Breast Cancer Inquiry Top Story 2008

ccb@chescrosbie.nf.net (News Author)6897 — Tue, 02 Jun 2009 08:00:00 EST

The Telegram newspaper of St. John’s put forward the Breast Cancer Inquiry as its top story for 2008, in its end of year edition. Nine other news stories were nominated, but the Inquiry was listed as number one.

The Inquiry, officially known as the Commission of Inquiry into Hormone Receptor Testing, was established by the Government of Newfoundland and Labrador in May 2007 after the Breast Cancer Testing Class Action forced Eastern Health to disclose information which showed a 44% rate of error in hormone testing. The period covered was 1997 to 2005. Hearings ran from March 2008 to the end of October 2008. A report is expected at the end of February 2009.

The St. John’s firm of Ches Crosbie Barristers is class counsel to the Breast Cancer Testing Class Action.

Breast Cancer Class Action Mediation Date Announced

ccb@chescrosbie.nf.net (News Author)8728 — Mon, 25 May 2009 08:00:00 EST

May 25, 2009

The date for mediation of the class action lawsuit over faulty hormone receptor testing has been set for October 28, 29 and 30 in St. John's. Nationally known mediator Hon. George W. Adams, Q.C., a former judge of the Ontario Superior Court, has agreed to mediate the dispute.

Lawyers for the members of the Breast Cancer Testing Class Action and for Eastern Health recently met with Mr. Adams in Toronto. With his advice, it was decided that the original July date intended for the mediation was impractical, given the enormous volume of preparation required.

Mr. Adams has successfully mediated numerous complex disputes including the Maher Arar rendition claim against the government of Canada, the Maple Leaf Gardens sexual abuse claims, and cases involving allegations of systemic hospital malpractice.

A mediator does not decide issues, but rather assists the parties to decide the issues.

More information about Mr. Adams may be found at www.adamsadr.com.

Media Reports Lawyer's Options For Copter Crash Victims

ccb@chescrosbie.nf.net (News Author)8064 — Mon, 06 Apr 2009 08:00:00 EST

In a front page story, the Telegram weekend edition reported advice given by St. John’s lawyer Ches Crosbie to family members of those who perished in the Cougar/Sikorsky helicopter crash. On March 12, 2009 Cougar Flight 491 hit the ocean with tremendous force 11 minutes after losing oil pressure, killing 17 of the 18 on board.

Mr. Crosbie had posted a blog discussing legal options for family members, and responded to questions from a Telegram reporter. Mr. Crosbie is a well known St. John’s personal injury and class action lawyer.

Mr. Crosbie was reported as saying that the bar on lawsuits under the Workers Compensation legislation likely would not apply. For more, see: Telegram article, Cougar’s Response Tardy?, and Families Review Legal Options in Wake of Copter Crash.

Health Minister Urges Speedy Compensation for Breast Cancer Claimants

ccb@chescrosbie.nf.net (News Author)7610 — Wed, 04 Mar 2009 08:00:00 EST

Health Minister Ross Wiseman said today that Eastern Health cannot win the class action lawsuit spearheaded by St. John’s lawyer Ches Crosbie, and called on the health authority to speed up compensation.

The Report of the Commission of Inquiry into Hormone Receptor Testing was provided by Justice Margaret Cameron to the Government of Newfoundland and Labrador last weekend, and make public Tuesday. The Report stated that the mistakes that led to retesting of hundreds of samples of breast tissue should not have happened and that communication about the mistakes was botched. The report said the procedures and protocols within Eastern Health for ER/PR testing between 1997 and 2005 were so deficient as to be practically non-existent, and that the system failed patients on every level.

Speaking on VOCM Open Line with Randy Simms, Minister Wiseman said he does not think that Eastern Health is debating that there was negligence or liability. He encouraged the lawyers for the parties to expedite the process of coming up with a figure for compensation.

Part of what the Minister said:

“There is liability and there’s negligence here, and I don’t think Eastern Health is debating that and what you need to deal with here now is how you define the settlement. And I understand that there is a, between the lawyer for the patients and their families here, and the lawyers for the insurance company and Eastern Health have already had a significant dialogue on that piece. They’re looking at a process to help define what that figure should be. I encourage them to expedite the process, I encourage them to get that process moving faster.”

Plaintiff lawyer gets five years for bribery

ccb@chescrosbie.nf.net (News Author)5180 — Wed, 13 Aug 2008 08:00:00 EST

Mississippi plaintiff lawyer Dickie Scruggs was sentenced Friday to five years in prison for conspiring to bribe a judge. Scruggs intended to offer the money to the judge for help in a dispute over $26.5 million in legal fees claimed from mass insurance settlements following the Hurricane Katrina disaster.

Scruggs was indicted in November 2007 together with his son and a law partner after the judge reported the bribery approach and an associate lawyer wore wiretap equipment for the FBI. The group plead guilty in March. The planned payment to a Mississippi county circuit court judge was to be $50,000.

Scruggs came to national and even international fame as one of the lead lawyers in the 1998 global settlement between the state Attorneys General and the tobacco industry. Scruggs and colleagues in Mississippi were awarded $1.43 billion in fees for their work in the 1998 tobacco settlement.

Record $17 million injury award upheld

ccb@chescrosbie.nf.net (News Author)5050 — Tue, 17 Jun 2008 08:00:00 EST

Canadian Court Upholds $17 Million Verdict for Injured Child

That's right – a Canadian court has upheld a verdict worth $17 million awarded by a jury to a child who was two years old when he fell out an apartment window and suffered devastating injuries. This largest ever award was made by an Ontario jury, and in a decision released in spring 2008 the Ontario Court of Appeal upheld the award.

Harvinder Sandhu, now 13 years old, was just a toddler when he fell through a broken screen of his aunt and uncle's fifth floor apartment on Toronto's Martin Grove Road. The broken screen had been reported more than once to the building's superintendent.

Harvinder "suffered numerous injuries, including a frontal lobe brain injury so severe that he will never be gainfully employed and will always require supervision," the appeal court noted. The boy requires constant care.

The Ontario Superior Court jury awarded the plaintiffs $12,936,145.60 in January of 2006. Trial judge Justice Carolyn Horkins awarded and extra $4,182,039.02 in guardianship costs, pre-judgment and post-judgment interest.

The apartment owners raised 12 grounds of appeal to the panel of three Justices. For starters, the jury's award was $1.336 million more than the plaintiff's counsel had recommended in her jury address. The jury awarded the highest amount of non-pecuniary general damages permitted by the Supreme Court of Canada at $311,000, $100,000 to each of Harvinder's parents and his brother under Ontario's Family Law Act, plus damages for loss of future income at the highest level based on a retirement age of 65. The panel of judges dismissed all 12 grounds of appeal.

The appellant apartment owners also complained that the trial judge had wrongly allowed the entry of evidence of repairs. The appeal court disagreed, stating that the fact that repairs to the screens were made quickly and inexpensively after the accident was relevant to show that the appellants had failed to meet a reasonable standard in keeping the building in good repair or in making reasonable inspections for safety defects.

The appeal judges would not overturn this jury verdict against the weight of the evidence unless it was "so plainly unreasonable and unjust as to satisfy the court that no jury, reviewing the evidence as a whole and acting judicially, could have reached it." They did not view the outcome of the 2006 trial as unreasonable or unjust.

The lawyer who represented the plaintiffs in the court of appeal said this is the largest personal injury award affirmed at the appellate level in Canada. She also viewed the $100,000 derivative award to Harvinder's brother, Parminder, "a vindication" because she has long fought for the recognition of the effect of devastating injuries on siblings.