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. 

·         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”!

 2.  Failing to Fully Disclose Your Health History and Habits to Your Doctor
A health care provider will usually ask if you had any injury or sickness before your current problem.  It is important to be honest when answering this type of question.  Doctors use past medical history to diagnose and treat you.  Providing incomplete information can impact the quality of the medical care you receive.  Concealing prior injury or sickness from your doctor will also hurt your legal case.  If you provide your doctors with incomplete information, their medical opinions could be rejected by insurance companies and judges.  The same advice goes for describing the accident.  Don’t tell your doctor the car was “totaled” if it was only scratched.  The insurance company’s lawyer will destroy your credibility with that contradiction.

 3.  Talking With Your Doctor About Lawsuits or a Lawyer’s Advice
A doctor’s job is to focus on your medical condition.  In order to do that job, a doctor does not have to know about your lawsuit or your lawyer.  Sharing your legal issues or concerns with a medical care provider should be unnecessary.  Most doctors do not want to be involved in a lawsuit.  If you tell a doctor he or she is treating an injury that is the subject of a lawsuit, it could impact the willingness to provide treatment or reach important conclusions.  Remember that whatever you say in confidence to a doctor is not confidential at all once you file a personal injury claim.

 4.  Missing or Showing Up Late for Medical Appointments
Insurance companies and judges get to see your medical records.  When you skip a medical appointment, your record just says “DNS”, which means “did not show”.  Excuses – no matter how valid – usually do not make it into the record.  More than one or two “DNS” entries could make it look like you were not committed to getting better.  Skipping medical appointments or showing up late could also irritate your doctor.  Irritated doctors do not make good witnesses for their patients.  If you need to cancel – call in advance and reschedule.  You don’t want the insurance company’s lawyer saying, “It must not have hurt that much, he didn’t even show up for his appointments.”

5.  Failing to Get Your Pain Accurately Documented in Medical Records
Insurance companies and judges will not believe that you are in pain just because you say so.  They need to read about your pain in your medical records.  When insurance companies and judges review your records, they will be looking to see how soon you reported pain after an injury and how long you continued to report that pain.  One effective way to help make sure your specific pain and limitations do make their way into a busy doctor’s chart is to write it out beforehand and give it to him at your office visit.  Again, don’t exaggerate.

6.      Failing to Inform Your Doctor if Your Injury is Affecting Your Ability to Work
Insurance companies and judges will not believe that your injury affects your ability to work just because you say so.  If your injury is affecting your ability to work, it is important to mention such a problem to your health care provider.  Work problems caused by injury may be treatable and they should be noted in your medical records.  Again, keeping notes that you give to the doctor at your office visits can be a good idea.

7.      Failing to Take Medications as Prescribed
There is a reason why doctors prescribe a particular type of medication for a particular time period.  You should follow your doctor’s recommendation until your doctor tells you something different.  If you think a medication is making your muscles ache or your stomach hurt, say so; side effects are not rare, and your doctor can usually switch you to another drug.  Don’t put yourself in the position where you have to admit that you chose not to follow your doctor’s advice.  This can be devastating to your claim.

8.      Stopping Medical Treatment Too Soon
Insurance companies and judges often believe if a person stops seeking medical treatment for an injury, the injury must be healed.  They also believe that significant gaps between treatments suggest that you healed from one injury and must have suffered a new one unrelated to the first.  If you have an injury that is affecting your ability to function, you should seek medical treatment until you are healed or until a doctor tells you that there is nothing more that can be done to improve your condition.  If you are still suffering and your doctor tells you to “come back as needed” or “call me if you have any problems”, you should ask how long you should wait to call if you continue to have the same level of pain or disability.

9.      Failing to Follow Treatment Recommendations Related to Depression or Anxiety
Often pain and/or disability can trigger depression and anxiety.  Psychological conditions like depression and anxiety are just as real as broken bones.  They cannot be overcome without appropriate treatment.  A person who causes another person physical injury is also responsible for resulting psychological conditions.  Insurance companies and judges usually only compensate victims of injury-related depression and anxiety if those conditions are properly diagnosed and treated by medical professionals.

10.    Failing to Keep a File
It is important that your lawyer knows every medical care provider that you see after an injury.  It is also important that you keep track of all doctor orders, treatment referrals and/or work restrictions.  Keeping a file of all materials provided to you by health care providers and insurance companies will ensure that you can provide all necessary information to your lawyer at the appropriate time.

             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.

 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.

1.         You can’t win your case at discovery but you can sure lose it.

2.         You will be under oath.  Tell the truth--the insurance companies have access to huge databases, and if you have a prior claim, or a bankruptcy, or if you have posted information about yourself on the internet, they will find it.  Never exaggerate.

3.         Be “on guard” the whole time.  They may act friendly and professional but they are not your friends.

4.         Be pleasant, polite, and don’t show any “attitude” or get in personal conflict with the examining lawyer.

5.         Listen to the whole question.  Resist the human urge to interrupt.

6.         Resist the urge to tell them “well, what you really want to know is…” or “the question you didn’t ask but should have is…”  In other words, don’t volunteer answers to questions they don’t ask.

7.         Don’t answer a question you don’t fully understand.  Say you don’t understand.

8.         Don’t try to guess “where they are going with that question.”  Just concentrate on giving good, truthful answers.

9.         If they don’t ask the “right” question, tough for them.

10.     Don’t guess.  If you don’t know, you don’t know.  If you are estimating, please tell them you are estimating.

11.     Trust us to protect you from questions not allowed under the rules.  We can also clarify unclear answers at the end.

12.     Before the discovery, tell us what questions you are afraid of.

Clients who do a reasonable level of preparation and who are able and willing to follow our advice will get the best results from their discovery.

http://en.wikipedia.org/wiki/Cross-examination; http://www.howardnations.com/crossexamination/cross_ex.html
http://www.oba.org/en/pdf_newsletter/DTFGeneralDiscoverybest.pdf

First, I have rules about what I don?t do.  I don?t: 

         talk to potential clients calling for the first time

         talk to anyone represented by another lawyer

         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 must be at least $100,000, and permanent injury and disability is required to achieve this value.  

Some of the reasons I will 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.   

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 expenses arrangements with the client, and issue a Statement of Claim in court.  I often will not obtain a written report 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 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. 

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 results in a satisfied client and a lawyer proud to have helped.

            Dickie Scruggs is one of those fortunate lawyers.  In the early 1990s, he became one of the dominant forces along with Ron Motley and other leading trial lawyers, in the wave of plaintiff litigation against the US tobacco industry which resulted in the 1998 global settlement.  This settlement was worth $206 billion over 25 years.  The money is going not to injured smokers, but to the states with expense claims for treating sick smokers.  Dickie Scruggs and his colleagues in Mississippi were awarded $1.43 billion in fees, spread over 25 years.  Rich fees indeed, but the risk was enormous and the monetary recovery almost beyond ken. 

            Why then would Dickie Scruggs even think to bribe a judge in a court dispute with another lawyer over $26.5 million in legal fees from a mass settlement of Hurricane Katrina insurance cases?  And for the measly amount of $50,000?

             I was recently a presenter at a class actions conference in Halifax along with Ontario Chief Justice Warren Winkler, regarded as Canada’s leading class action judicial expert, and had a chance to discuss the issue of ethics with him.

             The wild west atmosphere of the American political and judicial systems provides some of the explanation for why a lawyer like Scruggs would risk so much for (to him) so little.  The sums of money involved on the American mass tort and class action injury playing field are so vast and the ethical issues so complex, that even the best lawyers can find themselves in difficult ethical situations.  But bribing a judge?  Surely this is madness, and how Scruggs had the thought and began to act on it I will leave to psychologists, historians and novelists like John Grisham. 

             The first rule in the Code of Professional Conduct is integrity, and whether an accident and injury lawyer is doing a whiplash case or a mass tort with enormous damages, 99 percent of the time the honest course of action is obvious.  The course of integrity does not include bribing the judge.  In those complicated situations where the course of action is not obvious, the class action lawyer can seek directions from the judge managing the case. 

             Tobacco litigation in both the US and Canada has evolved into an argument over the deceptive marketing of light and mild cigarettes.  Litigation over electronic machine gambling (EMGs) or video lottery terminals (VLTs) is at an earlier stage, but the central issue is the same:  two enormously powerful and wealthy industries are promoting a dangerous product contrary to consumer protection laws.  I have committed myself and my firm to litigating the light cigarette case for Victor Sparkes, and the VLT case for the Piercey family.  Time will tell what success we may have.  I both believe in these cases, and have made a risk-reward calculation before committing to them – I have to run a business.  Sure, I’d like to help a lot of people who have been deceived, and I’d like to have the money which comes with winning too, but not at the expense of my integrity.  

            In February, the Alberta court ruled that Alberta’s no-fault laws were aimed in a discriminatory fashion against victims of soft tissue injuries, and that the law should be struck down.

             The Coalition Against No-Fault in Newfoundland argued that such laws would be unconstitutional, during the debate over auto insurance which lasted from 2001 to 2004 here in this province.  Similar arguments were made by consumer groups in the other Atlantic Provinces.  However, governments pay no attention to constitutional rights when votes are at stake.  Ultimately, public opinion in Newfoundland did not favor significant changes to the right to compensation for automobile injuries in Newfoundland and Labrador, and the Williams Government made changes to legislation which amounted to tinkering.  Elsewhere in Atlantic Canada governments were stampeded by the insurance industry into making significant and discriminatory changes against the rights of injury victims.  In the wake of the Alberta decision, these laws are under legal siege. 

             The Alberta decision found that the Alberta law violated the equality clause of the Charter on the basis that it “sacrifices the dignity of minor injury victims at the alter of reducing insurance premiums….  Specifically, the message is that their pain is not as worthy of conventional non-pecuniary damages because of the nature of their injuries, despite that their injuries may be more painful and enduring than other types of injuries.”

             Constitutional challenges have been mounted against similar laws in Nova Scotia, New Brunswick and Prince Edward Island by coalitions of injury victims.  The challenge in Nova Scotia is the most advanced, and will probably come to court this fall. 

             I wrote about this constitutional issue five years ago.  I thought that no-fault laws might be struck down as constituting prejudice against a defined group on the basis of disability and burdening that group with the lion’s share of reducing insurance premiums.  Defined groups such as those challenged on the basis of physical and mental disability and gender.  Now a court has agreed.  To read the decision of the Alberta court, click here.

            I am sure that members of the Coalition Against No-Fault will be pleased to see that their opposition to discriminatory automobile insurance laws has been vindicated by an independent court.  These discriminatory no-fault laws are unconstitutional. 

            Since cell phones have become immensely popular, we can add them to the list of driving distractions.

            Technology is progressing so quickly that we find ourselves with more and more distractions in the car.  It’s not just listening to music and the radio anymore, but talking on cell phones and browsing the Internet on our blackberries while kids are watching movies in the back seat.

             Ontario recently announced that it is considering a ban on the use of cell phones and other technological devices while driving.  Newfoundland and Labrador was the first province to introduce the ban, and Quebec and Nova Scotia have now joined the club.  Manitoba is contemplating the idea.  Credit for the Newfoundland ban belongs to the Coalition Against No-Fault, which lobbied for the ban starting in 2002.

             With all this debate about the dangers of cell phone use in the car, some Canadians are withdrawing support from the idea of a ban.  Is all this talk about cell phones as distractions an overreaction?  We’ve done just fine dealing with the other distractions mentioned above.  Cell phones can’t be that more dangerous, can they?

             Ontario reached the lowest recorded level of traffic fatality and injury rates for the third time in a row in 2005, and last month the Globe and Mail argued in an editorial that the law should not ban cell phone use in motor vehicles because drivers would ignore the ban.  The fact is cell phones are a grave distraction, which the pivotal study published in the New England Journal of Medicine compared to drunk driving as a safety issue.  This is worth quoting (p. 456):

 

We found that using a cellular telephone was associated with a risk of having a motor vehicle collision that was about four times as high as that among the same drivers when they were not using their cellular telephones.  This relative risk is similar to the hazard associated with driving with a blood alcohol level at the legal limit.

 

            Look in any graveyard.  Chances are, anyone under age 30 died of injuries suffered in a motor vehicle accident.  Are we so self-centered that we can’t accept a cell phone ban on drivers?  Enjoy the pleasure of speed, but not while talking on your cell.  Premier Williams, who recently voluntarily paid a fine when he was reported for cell use while driving, would agree.

For related articles see:
http://miramichileader.canadaeast.com/news/article/470649 and http://www.citizen.on.ca/news/2008/1106/editorial/015.html

             In a single vehicle accident on the Trans Canada Highway 30 kilometers south of St. John’s, the passenger was killed and the driver went to hospital with serious injuries.  News reports state that the deceased passenger was Tyler Bradbury, age 18. 

             For a single vehicle accident to occur with such devastating consequences, certainly suggests negligence on the part of the driver.  However, under the laws of Newfoundland and Labrador as they presently exist, and assuming Mr. Bradbury had no dependents, the damages obtainable by him would be very low.  This situation is contrary to civilized norms of fair compensation, and it is something that I am planning to challenge this year before the Supreme Court in the context of the Breast Cancer Testing Class Action.  Fatal accident claimants may wish to stay tuned and see whether the law is changed in their favor. 

             In an accident near Flatrock on June 22, two cars collided head on at a sharp turn at around 8 AM.  Three people were taken to hospital.

             In this situation, somebody was negligent, and perhaps the negligence is shared between both drivers.  News reports suggest that the passenger of one car was treated in hospital for injuries including broken bones.  Ordinarily, the passenger would not be considered negligent and would have a claim for the full value of his or her injuries, whether against the driver of the car in which he or she was a passenger, or against the driver of the other striking vehicle.

             The news services took extensive video footage of the accident scene, which is available on this website: http://www.cbc.ca/nl/media/video.html.  It is always a good idea to have pictures or video of an accident scene, and we give some tips for how to do this on this website at the following link:  http://www.chescrosbie.com/faq-detail.cfm?id=2507.

             The teaching point here is that consumers who are involved in accidents need to know their rights.  The laws regarding compensation are not set in stone, and may be subject to change.  Consumers should consult a lawyer who is experienced in these complicated laws. 

• 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.

             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.