Canadian Lawyer

July/August 2020

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UPFRONT 12 www.canadianlawyermag.com PERSONAL INJURY UPDATE NEWS BRIEFS What COVID-19 means for medical malpractice Leading medical malpractice lawyer thinks resource constraints may protect medical system in the courts DUNCAN EMBURY, lead medical malprac- tice lawyer at Neinstein Personal Injury Lawyers, says society is facing a new reality stemming from the COVID-19 pandemic. He says that, as the medical system in Canada is stretched during the pandemic, medical errors will occur. Embury says cases will emerge where, in normal circumstances, a lawsuit might be successful but medical professionals and hospitals will likely be able to defend them- selves by citing a broad shortage of resources. "If someone came to me and said, 'I was at the hospital with this very serious respira- tory infection but they told me because I'm 66 they're going to withhold treatment from me and, as a result, I suffered very serious damages,' I would say, 'Boy, I think you have a case,'" Embury says. "But that's in the normal world, and this is not a normal world." Embury says his gut feeling is that circum- stances may prevent such a case from going forward, even though there's no historical defence based on a lack of resources. This is the first time in our current medical system that physicians might need to make stark deci- sions, knowing they can lead to harm, because of stretched resources. He says the courts will likely take the facts on the ground into account. Medical errors are likely to arise beyond just COVID-19 patients during this pandemic. Medical resources will be stretched across the board and patients dealing with strokes, Medical malpractice may face longer delays Neil Sacks, founding partner at Howie Sacks & Henry LLP, says the expert testimony needed to pursue justice in medical malpractice cases won't be easy to find as the health-care system struggles with the coronavirus. Sacks has already had neurologists, specialists with no apparent connection to a respiratory virus, cancel on him. He says that retired physicians can help in certain cases, but others require experts versed in cutting-edge medicine. Sacks says his practice area will be mired in uncertainty for a while. Personal injury lawyers concerned about legal advertising A pair of leading personal injury lawyers told Canadian Lawyer that widespread advertising by large personal injury firms has "annoyed" the public. "I think the real concern is around whether [advertising] is potentially bringing the profession of law into disrepute," says Paul Cahill, a partner with Will Davidson LLP. Cahill and Richard Parsons, a partner at Collette Parsons Corrin LLP, say personal injury lawyers should be judicious in their advertising and law societies should play a stronger regulatory role with respect to ads. Lawyers say CMPA settlements are 'steps in the right direction' Sloan Mandel, a partner at Thomson Rogers, says that going up against the Canadian Medical Protective Association is the ultimate "David v. Goliath" situation for personal injury lawyers. He says the CMPA, with billions in its war chest, can practice a "scorched-earth" policy against medical malpractice suits. Mandel says he's seeing more cases settled by the CMPA, however, which he thinks is a positive shift. Although he doesn't know exactly why, he says these settlements are improving access to justice for plaintiffs as medical malpractice cases often take hundreds of thousands of dollars to pursue successfully. Landmark appeal for self- represented litigants The successful appeal in the case of Girao v. Cunningham, 2020 ONCA 260 represents a new direction in the treatment of self-represented litigants, lawyers say. The Ontario Court of Appeal ordered a new trial in an auto-injury case involving a self-represented plaintiff because "the interests of justice plainly require that to be done." The appeal judge found the trial to have been unfair to the plaintiff. Julie Macfarlane, director of the National Self-Represented Litigants Project, says the appeal represents a "turning tide" in how the courts treat self-represented litigants. $5M case holds cost management lessons A successful medical malpractice suit in the case of Cheesman et al. v. Credit Valley Hospital et al., 2020 ONSC 1729, showed just how expensive medical malpractice cases can be. The plaintiff claimed more than $3 million in fees and disbursements. Costs, according to the lead plaintiff's lawyer on the case, represent a barrier to justice in many medical malpractice suits. "I do not believe that a plaintiff will generally be able to advance a medical malpractice action without a contingency arrangement," says Amani Oakley, a senior partner at Oakley & Oakley PC.

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