Medical Malpractice

What is medical malpractice?

Medical malpractice refers to personal injury caused by doctors and hospitals through negligence (carelessness) or other fault such a medical battery (invading a person’s bodily integrity without consent). The injury must usually be so severe as to cause permanent pain and suffering and disability to justify the effort and expense of bringing a claim. You need a skilled and experienced medical malpractice lawyer if you intend to sue for medical negligence or medical battery. We do medical malpractice cases on a contingency fee basis (the lawyer gets paid a percentage fee if you settle or win and you pay nothing if you don’t collect money). However, we do a thorough investigation for merit in the case before we sue.

Does a bad medical outcome mean that medical malpractice has occurred?

No. A patient can die in the OR or suffer adverse side effects without anyone being at fault. Even when doctors do their job perfectly people can still suffer. Medical malpractice only occurs when a doctor or Healthy Authority has done something wrong.

Is it “malpractice” if I’ve been misdiagnosed?

A misdiagnosis can be considered malpractice in some cases. However, it must be proved that there is negligence on the part of the doctor and that the misdiagnosis was careless and not simply “something that can happen” in the normal course of practicing medicine.

Is there a deadline for medical malpractice claims?

The deadline for filing a medical malpractice claim is called a limitation period. The limitation period, after which you lose your right to seek compensation, is usually two years. However, there are exceptions to this rule. For example, you are not subject to a two-year limitation period if:

  • You or your loved one were under the age of 19 at the time of medical malpractice
  • You or your loved one have a mental disability
  • The facts necessary to prove your claim were not known to you

The law about limitations is complicated, so do not assume that you have lost your right to seek compensation before speaking with an experienced medical malpractice lawyer. Ches Crosbie has won large settlements for clients who appeared at first to have missed a limitation period.

Do most medical malpractice cases result in a judgment in favor of the patient?

The short answer is no. Most medical malpractice cases do not end with a favourable result for the patient.

Major studies have shown that medical error resulting in serious injury or death occurs with alarming frequency. One insurance organization represents at least 90% of the doctors in Canada — the Canadian Medical Protective Association, or CMPA. The CMPA is known for its aggressive defence of claims, and spends almost as much money on legal expenses as it does on settlements and awards. About two-thirds of legal actions are discontinued before trial without payment, and of those that do go to trial, patients lose at least 80%.

The injured patient who seeks money damages from a physician suffers from a major disadvantage — lack of knowledge and expertise about medical matters. Virtually every case against a physician requires support from an expert willing to testify in court. In a small medical community such as Newfoundland and Labrador, such expert support is hard to obtain. Usually, testifying experts must be found outside the province.

Obviously, great care must be taken before starting a medical malpractice claim. If you would like to explore the possibility of a medical malpractice claim, it’s important to speak with a trusted medical malpractice lawyer.

What do you have to prove to win a medical malpractice case?

In order to win a medical malpractice case, you generally must prove, by expert testimony, that one or more healthcare providers breached the appropriate standard of care and was negligent, and that the breach caused damages.

In other words, you have to show that the defendant did something wrong and your injuries did not come about simply as a poor result of adequate care. Typically, you will not be able to win a medical malpractice case without expert witnesses to discuss and prove both of these issues.

If I sue for malpractice, does the defendant have to pay for it personally?

No, a medical professional who is sued does not have to pay compensation out of pocket. In order to sue for injury compensation, the person you’re suing is required by regulators to have malpractice insurance. Otherwise, there is no guarantee you’ll receive any money, even if your claim is successful. If you have a successful claim the medical professional’s insurance company compensates you on their behalf.

What is obstetrical/brachial plexus palsy?

Obstetrical/brachial plexus palsy is a condition in which the nerves of the neck which provide muscle power and sensation in the upper extremity are injured during the birth process. This kind of injury can result in loss of power and sensation in the arm, and wasting of the arm as the child matures.

What is cerebral palsy? Can I claim for compensation?

Cerebral palsy is an injury associated with a lack of oxygen and blood flow to a baby’s brain. Cerebral palsy occurs at or around the time of birth and it can cause a spectrum of disorders ranging from learning disabilities to profound cognitive, speech, and motor deficits. Some infants may be diagnosed with cerebral palsy soon after birth, others not for several years. In perhaps 15% of cases, the injury could have been prevented. Cerebral palsy is a lifelong condition and if you think that your child’s condition ought to have been prevented, it is important to contact a lawyer experienced in cerebral palsy claims like Patient Injury Law.

My child has been diagnosed with cerebral palsy. Do I have a claim against the doctor or the hospital?

It usually depends on whether the doctors or the nurses did not respond in a timely way to signs that the baby was in trouble during the birthing process. It also depends on whether medical experts can give opinion that it is probable that the damage to the baby occurred at a point near birth, when an intervention to speed up delivery would have avoided or lessened the injury. As with all potential medical malpractice cases, the hospital records and physician records must be obtained and analyzed, to know whether there is a good case.

Cerebral palsy can involve a spectrum of problems, from learning disorders to profound brain damage. It is often caused by lack of oxygen and blood flow to the brain, before, during or shortly after the birthing process. Other terms used to refer to avoidable birth injury, include birth asphyxia and birth trauma.

Studies have found a higher frequency of cerebral palsy in babies born during the night shift.

Proof of avoidable cerebral palsy may result in very large money damages settlements in the millions of dollars, so if your child has cerebral palsy which you think should have been avoided, call Patient Injury Law. We have experience in many cerebral palsy cases.

Are physician expert witnesses easy to find? Are they willing to testify against another physician?

Physician expert witnesses are not always easy to find and can be quite expensive. Also, they are often reticent to testify against fellow doctors and it is often necessary to bring in doctors from other parts of the country or even the United States, thus increasing costs. An experienced medical malpractice lawyer usually has the knowledge and contacts necessary to hire an expert for your case.

Should I obtain my own medical records, or should I get a lawyer to obtain them for me?

It’s important to have all your medical records if you are to move forward in a medical malpractice case. Doctors and providers often charge fees for producing and copying records. Sometimes this fee can be avoided if the patient requests the records, and a personal request from a patient can speed up the collection process. However, if a doctor is reticent or simply lackadaisical about giving up his or her files it may be necessary to have a lawyer request the records after you have signed a medical records release. Also, a patient who requests records is often not given the entire record which it will be necessary to review.

Why do I need expert witnesses in my malpractice case?

The law requires that medical malpractice cases be proven by expert testimony. There may be a few exceptions, such as when instruments are left in the body. In malpractice cases we must prove what the “standard of care” required your doctor to do and we must prove that he or she did not comply with the standard of care. The law says that since the “standard of care” is not something a typical layperson knows we must prove this by expert witnesses.

Why did you decline my malpractice case?

Ches Crosbie reviews hundreds of new medical malpractice cases every year. He is honoured that so many people look to him for legal advice. However, a small firm can only accept a small number of medical malpractice cases because they are complex, difficult, and time-consuming. Each case must be evaluated on its own merits.

How do you decide whether to accept a medical malpractice case?

It’s important to be selective with medical malpractice cases because the claims are difficult to prove. We carefully evaluate cases for merit, and insure that they are financially feasible. Feasible means that damages (monetary award) potential should be substantial, to justify the risk, time and expense. Meritorious means that there is a strong case, backed by authoritative medical experts, that there has been a deviation from the medical standard of care (negligence), and the deviation has caused the injury.

If a case appears financially feasible, we can investigate for merit. We do this by obtaining all relevant medical records and reviewing them with an independent medical expert. After investigation, a case is accepted for litigation only if it is financially feasible and it meets our stringent standards for merit.

Cases that are financially feasible typically include cerebral palsy, injuries at birth, anesthetic accidents, surgical mishaps, misdiagnosis of heart attack or other life threatening conditions and diseases, and other cases involving serious injury or death.

Within our financial ability, if your case is financially feasible and we obtain an opinion of merit, the case can move from investigation to litigation. You can benefit again from an ethical contingent fee agreement — we’re paid when we win your case and you collect. And we may advance case expenses — potentially many thousands of dollars — to prove your claim and relieve the financial burdens on you.


Class Actions

What is a class action?

A class action is a civil lawsuit commenced by one or more persons on their own behalf, which seeks to include others who have suffered a similar harm at the hands of the same person, company, or group. A court is asked to decide whether the lawsuit meets certain legal criteria and whether it should be certified on behalf of a group of people. Once a class action is certified, it allows a group of people to have access to the court in situations where typically the case would be too expensive or complex for one person to sue on their own.

As a class representative, I believe whole-heartedly in class action suits. Have you ever heard the term, “You can’t fight city hall” or “There is strength in numbers”? Class actions allow normal average working class individuals who have all been wronged to band together and stand up for their rights. This allows a forum in order for a voice to be heard and for a judge in a court of law to dictate if changes need to be implemented. I am one of those women who was referred to in the article about the case against the Captain William Jackman Memorial Hospital in Labrador City, in which improperly sterilized instruments were used on over 300 women in the gynecology clinic. I believe that none of the results of the settlement would have been achieved without the class action. These results include an apology, improvement to quality assurance in health care, and payments to the class members which also included the spouses of the women involved. These are monumental issues. We needed that in order to get closure and try to regain our faith in the healthcare system. The monetary amounts were on par with similar cases in Canada. This is unprecedented in Newfoundland and Labrador. Our lawyers had to do alot of hard work including, mediation, and travelling to Labrador West in order to fight for us. Nobody wants litigation. If the choice is between no litigation and no justice, I know what hundreds of women in Labrador West would pick. We would pick justice. –Brenda Rideout, Labrador City

What is a class period?

A class period is the time frame that defines members of the class action. For example, the class period for the Residential Schools Class Action runs from 1949, when residential schools became the responsibility of the Canadian Government because Newfoundland joined Canada, to the closing of residential schools in Newfoundland and Labrador.

How does a class action work?

A judge decides whether to permit the lawsuit to proceed as a class action. If it is allowed to proceed the judge also decides who will be included in the group or class. If the court decides to permit the lawsuit to proceed as a class action, it will appoint one or more persons to act as the representative for the others in the class. The representative will instruct counsel on behalf of the class members. The court also decides on questions of fact and law which are common to the members of the class. Subsequently, a trial may be held to determine these common issues.

Why should I participate in a class action?

Like any case, whether someone decides to participate in a class action is a highly personal decision. If the class action is successful, all members could benefit and they won’t be burdened with the expense and inconvenience of doing an individual case.

What does it cost me to participate in a class action?

It costs you nothing to participate in a class action. Individual class members are not personally liable to pay counsel for prosecuting the common issues in the class action and do not have to pay costs if the class action is unsuccessful.

Class action lawyers only get paid when the class action is successful. They are paid from the proceeds of the money awards. The fee agreement must be approved by court to ensure it is reasonable.

How much time and work is required of me as a member of a class action?

It depends. There are two roles to play as a member of a class action: ordinary class members and representative plaintiff.

Ordinary class members are everyone who comes with the class definition, except for one or more class members who agree to represent the class. There is often no time or work commitment for ordinary class members. In fact, there is no requirement for an ordinary class member to be involved in the lawsuit in any way, except if Notice is given. (Notice asks whether the member wants to opt in or opt out of a class action or a settlement, which is a decision the member will need to make in this case. When a Notice is given and settlement occurs, class members get the chance to have a say about the settlement, if they want to.)

You may agree to be the class action representative plaintiff after consulting your lawyer and deciding whether you are comfortable in this role. As representative plaintiff, your job is to represent the interests of class members and instruct the lawyers for the class. The time commitment for this role is greater than ordinary class members because you should ideally be available for consultation and court appearances.

As a class member, do I have a responsibility for the legal fee of plaintiff’s counsel?

The representative plaintiff has entered into a contingency fee agreement with class action counsel, which provides for payment of their legal fees in the event the action is won. Such legal fees are paid out of the proceeds of settlement or judgment, and do not require any payment from class members directly. Plaintiff counsel’s legal fees must be approved by the court before they can be paid.

How do I join a class action?

We encourage people to enlist as class members with us as soon as they become aware of a class action. This gives credibility to the class action and helps to ensure your right of participation in any money payment.

You do not have to do anything to become a member until certification is granted. If you are a Newfoundland and Labrador resident and fall within the definition of the class, and the class action is certified, you are automatically a member unless you opt-out. If you are a non-resident class member, you will have to decide to opt-in.

If you believe you fall within the definition, contact Patient Injury Law. We will keep you advised as the class action proceeds.

What are aggregate damages in a class action?

Aggregate damages make up the sum of compensation available for division between class members in a class action. They are a means of assessing the total monetary damage caused by the defendant’s wrongdoing. Not all class actions lend themselves to an assessment of aggregate damages, but those that do are particularly well-suited to class treatment and certification as a class-action.

An example would be where the financial loss suffered by the plaintiffs may be measured by the wrongful gain pocketed by the defendant, and the amount of the wrongful gain can be determined from the defendant’s own financial records. This amount may be ordered to be paid into a fund, and paid out to plaintiffs in accordance with direction by the court. The VLT class action is an example of a case where aggregate damages may be a fit remedy.

Other cases may involve essentially an aggregate damages amount paid into a fund, which is distributed to all class members according to a formula, and additionally a process for assessing individual amounts based on additional injuries suffered. This is essentially the settlement in the Labrador Residential Schools Class Action.


Residential Schools

What is the residential schools class action about, exactly?

The federal government agreed in 2007 to financially compensate victims of residential schools across Canada for their suffering in the residential school system. Victims in Newfoundland and Labrador, however, were excluded from this compensation agreement. Canada claims it is not responsible for residential schools in the Newfoundland and Labrador because the province administered them. The class action argues that Canada is indeed responsible because of its constitutional relationship with aboriginal peoples. Parties have reached a settlement and the settlement approval hearing is scheduled for September 27, 2016.

What are residential schools?

Residential schools were part of a school system across Canada that fell under the Government of Canada’s jurisdiction of responsibility. In most cases, Aboriginal children were taken from their families and forced to attend residential schools, often far from their homes, where many of them suffered neglect and abuse. The schools were used as a tool of Aboriginal cultural assimilation, meaning that authorities in the schools punished Aboriginal children for speaking their language and participating in their own cultural activities. Survivors carry emotional and physical scars from their experiences at residential schools.

Who is included in the NL Residential Schools Class Action?

You are part of the survivor class if you attended the Lockwood School, the Yale School, the Nain Boarding School, the Makkovik Boarding School, or St. Anthony’s Orphanage any time after March 31, 1949. If you’re not sure whether you fall under this definition, contact AWOC law firm and speak to a representative.

What happens if the settlement is approved?

If the proposed $50 million settlement for the Labrador Residential Schools Class Action is approved, there will be a process set out for making claims. Class members can reasonably expect to receive compensation about a year from the date of settlement.

Why are there three law firms for plaintiffs in the NL Residential Schools Class Action?

Each of the three law firms (AWOC, Koskie Minsky, and Ches Crosbie’s Patient Injury Law) brings unique value to the Residential Schools Class Action. AWOC in Alberta was highly involved in the 2007 settlement, while Koskie Minsky in Ontario is experienced in class actions. Ches Crosbie was brought into the case for his experience in class action lawsuits and as the Newfoundland and Labrador connection. Knowing the legal culture in the province is important in navigating process.

How do the plaintiff lawyers in the NL Residential Schools Class Action get paid?

If the NL Residential Schools Class Action is approved, the lawyers get paid a fee from the amount that is awarded. This is how injury lawyers usually get paid. To ensure that legal fees are fair, the courts have to approve them.

What is the 2007 Residential Schools Settlement Agreement?

The Government of Canada and survivors of residential schools in most Canadian jurisdictions agreed to a nation-wide settlement that was drawn up in 2006 and signed in 2007. The settlement articulates how residential school survivors in certain jurisdictions will be compensated for their experiences of neglect and abuse in residential schools. It stipulates that survivors with the “common experience” will receive a set payment, while survivors with experiences of physical and sexual abuse will receive respective amounts in addition to the common experience payment. The 2007 Residential Schools Settlement is the biggest monetary settlement agreement in Canadian history with a commitment to pay billions of dollars to survivors.

Why was Newfoundland and Labrador excluded from the 2007 residential schools settlement?

Newfoundland and Labrador was excluded from the 2007 Residential Schools Settlement Agreement largely because there was no lawsuit for Newfoundland and Labrador survivors and no one representing survivors from the province at the bargaining table. Without pressure from lawyers or other representatives, the Government of Canada had no incentive or interest in compensating more survivors than immediately necessary.



Why did Ches Crosbie write free books?

Ches wrote free guides to give consumers the power of informed choice. He believes that you should be able to have this information, right now, and without pressure. It also saves him time. It gives him the chance to tell you what you need to know without spending hours doing so in an appointment. His books give him a chance to tell you what you need to know so that you can make an informed decision about what steps to take with your case.


Thanks Ches. And you are doing a FABULOUS job! Thanks for that.
Gerry Rogers
St. John's, NL