Cynthia Davis, Author at

By Cynthia Davis 2015/11/27

Print This Article

As one of the most respected professions, health care professionals take great pride in helping people during some of life’s most difficult times. However, we can’t forget that medical practitioners are humans and, like all humans, they can make mistakes. These mistakes don’t make them horrible people, but in matters of life and death, mistakes can be tragic.

As much as everyone involved would like to turn back time and avoid critical errors, when medical negligence occurs, often the only remedy is a lawsuit aimed at compensating the victims of these errors.

At SorbaraLaw, our litigation team is known for its expertise and skill in medical negligence cases, having won all the way to the Supreme Court of Canada. When we meet clients who are facing the unimaginable, we often hear the same misconceptions about bringing a lawsuit, as well as the same questions, “what would I have to prove”, followed by, “what should I do now?”

What do I have to prove?

At law, a plaintiff pursuing a claim against medical professionals must establish both that a breach of the standard of care owed to him or her has occurred and that the breach has caused an injury. When a court finds that both elements have been proved on the balance, negligence is found to have occurred and the Court then moves on to a determination of the damages to be awarded.

In order to establish negligence, all lawyers – including the lawyers who represent the physicians, nurses, and hospitals – retain medical experts who, along with the lawyers, review the evidence and provide the Court with opinions as to the actions of the parties.

The standard of care is the legal term used to describe the level of care that a medical practitioner is required to deliver. To find a breach of the standard of care owed, evidence must be presented to a court that establishes that a medical practitioner failed to do something that he or she ought to have done, or did something that he or she ought not to have done. Malpractice can occur from a course of conduct undertaken by the physician, for example, by the physician proceeding without obtaining informed consent, or by the physician’s failure to take appropriate action to treat the patient’s condition, for example, by failing to properly diagnose a condition when a reasonable physician would have properly diagnosed.

It is important to keep in mind that the medical team will not be held to a standard of perfection by the law. Medical practitioners are permitted to be wrong, provided the error in judgment is one that falls within a reasonable expectation. For example, a misdiagnosis of a medical condition isn’t always a breach of the standard of care where the medical practitioner conducted the proper investigation, ordered the necessary tests and reached a conclusion that many other physicians in his or her shoes would have reached. A breach of the standard of care goes beyond a mistake and represents a negligent act or omission.

In addition to a positive finding on the issue of the standard of care, evidence must also establish that the breach of the standard of care by the treating medical team ultimately caused the patient injuries, or in the alternative, has caused the patient’s condition to be worse than it otherwise would have been. This latter part of the negligence equation can become quite complex and requires the expertise, not just of the medical experts on the case, but the legal team.

Damages

Inevitably, individuals coming to see us about a potential claim in medical negligence ask, “What’s it worth?” Damages in these complex claims can be difficult to predict at the outset. Often, a review of the medical evidence, including current treatments and needs, is required before such broad stroke estimates can be given. What we do know is that there is a common misconception that general damages, also known as damages for “pain and suffering”, or “loss of enjoyment of life” are not as high as south of the border or the awards we see on media and television. In Canada, damages for this category of compensation have been significantly limited by the Supreme Court of Canada which, in 1978, considered this and held that the maximum amount of money an injured plaintiff could receive for “pain and suffering” was $100,000. That amount has gradually increased over time to keep up with inflation, and is currently at approximately $350,000.

In addition to general damages, individuals who have suffered from a breach of the care required of their medical team will also be entitled to seek damages to compensate them for the costs of any past and future treatment that may now be necessary, any past and future loss of income – which would include damages for any loss of competitive advantage in the workforce that results from the injuries sustained – compensation for household and housekeeping costs incurred as a result of the injuries sustained, as well as reimbursement for any out-of-pocket expenses arising from the injuries. Of course, as in any litigation, a successful party in a lawsuit is also entitled to a contribution to the legal costs incurred to proceed with the action.

In addition to misconceptions about the quantum of damages that may be available, individuals coming to meet our team of lawyers often believe that doctors are simply too powerful to sue. While it is very true that medical malpractice actions are extremely complex and can be difficult, a skilled lawyer who has extensive experience in this area knows that it can be done.

Most physicians in Canada are members of the Canadian Medical Protective Association (the “CMPA”), whose primary function is protecting the professional integrity of physicians. When a lawsuit is started as against a member of the CMPA, it is the CMPA that pays for the doctor’s defence costs, including hiring a lawyer, medical experts, and any other fees associated with the claim. When a lawsuit is either settled or won, the CMPA pays the Plaintiff the damages awarded.

It is also not true that all doctors stick together and that it will be difficult to obtain a report from a medical expert that confirms that the medical team made a critical error. Although there are many physicians who are uncomfortable with the litigation process and testifying against colleagues, lawyers who have experience in this field of law have access to credible experts who will review the case and provide an objective assessment of the treatment received, allowing the patient to make informed decisions about the potential case. It is important to appreciate that these actions don’t often settle in the early stages of litigation. Having a lawyer that does not merely dabble in this area of law will ensure that you have someone on your team who is experienced in dealing with the CMPA, its team of defence lawyers, and medical experts and knows how to proceed strategically through each step in the litigation.

Next Steps

At SorbaraLaw, we make the following recommendations to those who are not sure whether they have suffered from someone else’s medical negligence:

  1. Advocate for yourself. Always.
  2. Where your family doctor may be at fault, seek out a new family doctor. Not necessarily because you have a bad doctor, but because this is a very important relationship and is key to your medical health. Where the relationship has broken down, you need to advocate for yourself first and ensure that you feel comfortable with your care moving forward. Do similarly if it was not your family doctor but you are still being treated by the individual.
  3. Collect your medical records. If the incident occurred at a hospital, go to the records department and request a copy of your medical records. If your family doctor may be at fault, ask for a copy of those records.
  4. As difficult as it may be, write down everything you remember about the relevant events. Keep recording, moving forward, anything related to the injuries you have sustained.
  5. Where appropriate, take photographs of your injuries.
  6. Keep the limitation period in mind when considering whether to start a lawsuit. It is important to appreciate that in Ontario, the Limitations Act prohibits any lawsuit from being commenced after the second anniversary of the claim or the discovery of the claim.
  7. Call a lawyer and obtain a free consultation to learn more about the above, and how to proceed to investigate your claim.

Print This Article


Cynthia Davis is a member of the SorbaraLaw litigation group and practises in the areas of civil litigation and citizenship and immigration.

Print this article

A recent decision of the Ontario Superior Court of Justice has resulted in a woman injured in a slip and fall on property owned by the City of Toronto to pay more than $9,000 in legal fees to the City when her case was dismissed by the Court because she failed to notify the City within 10 days following her injury of her intention to seek compensation.

The City of Toronto Act (like the Municipal Act) requires individuals who have injured themselves on City property to notify the City within 10 days of the date of the accident.

The Plaintiff in this case injured herself on August 19, 2011 when she tripped on a City sidewalk as a result of a 2.5 cm gap between the concrete and the interlocking brick. Unfortunately, she fractured her left wrist.

It was not until some 4 months later that the plaintiff caused a notice letter to be delivered to the City. Although there is an exception to 10 day notice requirement where there is a reasonable explanation for the delay, the plaintiff in this case was unable to provide any reason to the Court why such notice was not delivered.  Additionally, there must be evidence that the City has not been prejudiced by the delay in the receipt of the statutory notice.

Importantly, ignorance of the requirement or the statutory limitations is not an excuse for non-compliance with the Act.

It was clear that, although the Plaintiff had suffered an injury, the injury did not hinder her actions or ability to give timely notice.

The Court was quick to empathize with the Plaintiff and explicitly commented on the unfairness of the 10 day notice requirement, however, ultimately found that it was bound to give effect to the legislation and rule in favour of the City’s motion to dismiss the action.

The take home message: contact SorbaraLaw immediately following an accident causing injury so that we can take the appropriate and necessary steps to preserve your rights.

Article written by: Cynthia Davis
Print this article

* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

In October, 2013, the Supreme Court of Canada dismissed an appeal from a SorbaraLaw victory at the Court of Appeal of Ontario marking the successful end of a long process for our client’s family.

Back in February, 2011, Greg Murdoch, a partner in charge of Sorbara Law’s litigation Group, and Steve Kenney, counsel to the firm, obtained a significant Judgment in a medical malpractice action involving the misdiagnosis of an aortic dissection in a pregnant woman. The trial took place over five weeks in the fall of 2010. The Supreme Court’s decision affirmed the win at trial.

Our client, Christine Manary, was 28 years old and 32 weeks pregnant with her first child when she attended Grand River Hospital in August of 2003 with significant radiating chest pain. On admission, her symptoms in addition to the severe chest pain included an unusual heart murmur and were considered to be consistent with either a pulmonary embolism (blood clot) or an aortic dissection (a tearing of the inner lining of the artery). The doctors caring for Christine downplayed the possibility of a dissection because of her age. Christine died nine days later when the dissection ruptured on the day she was to be discharged. Fortunately, her daughter was delivered by caesarian section and survived without any adverse consequences.

During her admission, Christine had numerous diagnostic tests which suggested a pulmonary embolism was not the cause of her symptoms. Diagnostic imaging in fact disclosed that Christine had a dangerously large aortic aneurysm which is a bulging of an artery. The significance of this symptom and the danger it imposed and how it might relate to Christine’s symptoms was not acknowledged.

The Court reviewed Grand River Hospital’s policy of assigning a most responsible physician for each admitted patient.

For obstetrical patients, the obstetrician is the most responsible physician. The MRP is responsible for writing and clarifying orders, providing a plan of care, obtaining consultations as appropriate and coordinating the care of the patient.

The Court agreed with SorbaraLaw’s submissions that the obstetrician in this case failed to discharge his duties as most responsible physician because he focused only on Christine’s obstetrical issues and let other non-cardiac specialists deal with Christine’s cardiac issues. The obstetrician failed to exercise independent critical judgment when an alternative diagnosis to pulmonary embolism should have been pursued.

The Court preferred the evidence of the vascular surgeon called on behalf of Christine who testified that if Christine’s condition had been recognized for its seriousness, she could have had surgery within hours.

The obstetrician appealed the decision to the Ontario Court of Appeal which affirmed the trial Judge’s decision noting that an MRP must exercise independent critical judgment when assessing a patient and consulting with other specialists.

A motion seeking leave for a further appeal to the Supreme Court of Canada was denied.

Medical malpractice cases are extremely challenging and always hard fought battles. This is a significant achievement for our client. Congratulations to the SorbaraLaw litigation team!

Article written by
Cynthia Davis,
B.A. (Hons), LL.B. was called to the Bar in 2007 and is a member of SorbaraLaw’s litigation group. Cynthia works out of the Waterloo office.

Print This Article

Litigation – Cynthia Davis

The question of whether individuals have a distinct right to bring an action for a breach of privacy in Ontario has long been debated. Until recently, the law in Ontario remained uncertain. In January 2012, the Ontario Court of Appeal confirmed that Ontarians do indeed have the right to protection from the intrusion upon their seclusion and solitude.

It took the case of Jones v. Tsige for the common law to articulate the need for this protection. In this case, Sandra Jones (the Plaintiff) and Winnie Tsige (the Defendant) both worked at different branches of the Bank of Montreal. The two women did not know each other; however, Jones’ ex-husband became romantically involved with Tsige.

Tsige used her workplace computer to access Jones’ personal bank accounts on at least 174 occasions over the course of four years. Tsige was able to obtain personal information including Jones’ banking transactions, date of birth, marital status and address. Tsige did not publish the information elsewhere. She claimed she accessed the information because she wanted to confirm that her boyfriend, Jones’ ex-husband, was making the child support payments he told her he was required to make.

On an appeal from a motion for summary judgment that dismissed the claim, the Court of Appeal recognized that in today’s modern society protection of personal privacy is a necessity, given the accelerated technological changes that have made highly personal information readily accessible.

The Court of Appeal reviewed numerous court decisions from Canadian, British and American courts, as well as articles written by experts in the area, to conclude that the law of Ontario would be sadly deficient if it required the court to send Jones away without a remedy on the facts of this case.

Justice Sharpe, writing for the court, stated, “[r]ecognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.”

A person will be liable for damages for invasion of privacy if he or she intentionally intrudes, physically or otherwise, upon the seclusion of another or the private affairs or concerns of another where that invasion would be found to be highly offensive to a reasonable person, causing distress, humiliation or anguish.

The Court of Appeal also held that proof of economic loss will not be required. Having said that, the court was quick to indicate that this cause of action would be limited in scope. Where no economic loss is established, damages will be symbolic to vindicate the infringement upon a person’s rights. As such, compensation will be a modest conventional sum, up to $20,000.

Further, a claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Liability will attach only for intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively, can be described as highly offensive. Finally, the Court of Appeal made clear that a right to privacy is not absolute and these rights will have to be reconciled with competing claims, such as freedom of expression and freedom of the press.

For Jones, the court limited the damage award to $10,000, given that Tsige had apologized for her conduct and had suffered employment repercussions as well.

Our office will be monitoring this cause of action and the ways in which it is interpreted and applied to different facts.

* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

 

Author: Cynthia Davis is a lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. Cynthia may be reached at (519) 741-8010 or <cdavis@sorbaralaw.com>.   

Print This Article

Corporate Commercial – Cynthia Davis

Every Ontario corporation is required to keep a minute book. But just what exactly is a minute book and why is it so important?

Practically speaking, the corporate minute book is a binder that contains the documents and information pertinent to a corporation. It includes legal documents such as the Articles of Incorporation, the corporation’s by-laws, and, where applicable, the Shareholder’s Agreement. The minute book also holds the minutes of company meetings, and resolutions of both directors and shareholders. It contains registers: the shareholders register, the directors register and the officers register. Typically, share certificates for the corporation are also held in the minute book, although these certificates may be stored in a more secure location with copies of the originals in the book itself.

Often, we are asked about the importance of preparing and maintaining the corporate minute book. Under the Ontario Business Corporations Act (OBCA), corporations are required to keep up-to-date corporate records. Likewise, federal legislation also requires corporations governed by federal law to create and maintain a corporate record book. Further, the OBCA also requires that corporations permit access to the corporate minute book to shareholders upon request.

These documents are not only required by the OBCA, but they are generally required prior to receiving loans from financial institutions, or as part of the due diligence process for a share transaction, or investment by a third party into the corporation. Often, the cost to update the corporate minute book retroactively is greater than the cost of regular maintenance.

Keeping an up-to-date corporate minute book also assists corporations with compliance with other provisions of the OBCA. For example, the OBCA requires corporations to have an annual meeting of shareholders within 15 months of the previous shareholder meeting. Resolutions passed by shareholders at this meeting are then inserted into the minute book.

The OBCA also requires corporations to file a Notice of Change to advise of changes to the corporation, including the register of directors or officers, or of the address of an existing officer or director, or the head office of the corporation. The Notice of Change can be prepared together with the updates necessary to the registers contained in the corporate minute book.

As most officers and directors will know, any payment of bonuses and/or dividends must be approved by resolution. Given the tax implications surrounding the date of the payment, having the resolution documented in the minute book can assist financial advisors in ensuring that the appropriate paperwork is available to support the financial plan.

Of course, the OBCA also provides for significant penalties for a failure to maintain the corporate records. Failure to comply with the Act can lead to fines of $25,000, and the officers and directors of the corporation may be personally liable. Similarly, the Corporations Information Act provides for penalties of up to $25,000 for failing to comply with requirements to file corporate documents.

Should you require assistance in putting together or updating your corporate minute book, please feel free to contact a member of our corporate-commercial group for assistance.

* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

Author: Cynthia Davis is a lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. Cynthia may be reached at (519) 741-8010 or <cdavis@sorbaralaw.com>.   

Print This Article


WEBSITE © SORBARALAW