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Five things you should know about medical malpractice claims.

After experiencing an incident with a doctor, health practitioner or hospital many people know something is amiss but they are not sure what questions they should be asking their lawyer beyond whether they have a medical malpractice claim. To help put these situations in context here are five questions and answers that provide important background information about medical malpractice claims.

1. What do I need to prove in order to succeed on a medical malpractice claim? Using the example of a doctor, you will need to establish that the doctor’s care for you fell below the standard of care expected of a reasonable doctor practicing in B.C. in the year in question (negligence). You will also need to establish that the doctor’s negligence caused your injuries (causation). Expert reports are normally required to establish negligence and causation. The mere fact that you suffered serious complications from a procedure is not enough to establish a claim – you need to be able to prove the complication was due to negligence.

2. Can I just sue the hospital and leave the doctor out of it? Most cases involving errors made in hospital involve care by both doctors and nurses. It is often difficult to determine early on whether the case was a doctor-only error, a nurse-only error or errors by both doctor and nurse. Unlike nurses, most doctors are not employees of the Health Authority operating the hospital. They simply have privileges at the hospital. Our courts have stated that Health Authorities are normally not responsible for the wrongdoing of doctors who are not their employees. Therefore, in many cases it is necessary to sue both the Health Authority and the doctor(s) involved in the care that is at issue.

3. Who pays if my claim is successful? Canadian medical doctors are defended by the Canadian Medical Protective Association (“CMPA”), an organization funded by annual fees from physicians and provincial government subsidies. The CMPA currently has billions of dollars in reserve funds. In B.C., Health Authorities (the operators of hospitals and many other health care facilities) and their employees are defended by the provincial government operated Health Care Protection Program. Other health care providers (e.g. chiropractors, dentists) are required to have in place liability insurance.

4. How much time do I have to sue? The starting point is that you usually must commence an action within 2 years of the negligent procedure. For children, the two year time period only starts to run once the child turns 19. The start of the two year limit can be delayed if you did not know, and could not reasonably have known, about the possibility that the doctor (or nurse) was negligent until a later date. As an example, assume a patient had surgery in October, 2011. The patient felt increasingly unwell after the surgery and, on September 6, 2012, an x-ray revealed that surgical sponges had been left in the patient’s abdominal cavity. The patient had no reason to suspect that the surgical team had failed to remove sponges prior to seeing the September, 2012 x-ray. The patient would likely have until September, 2014 to sue. However, the maximum time between treatment of an adult and commencing a lawsuit is 6 years for medical doctors, hospitals and hospital staff.

5. My doctor apologized to me. Does that mean she has admitted responsibility? No. There is law in British Columbia that specifically prohibits the use of an apology as an admission of liability.

Learn more about how we help clients who have been injured by medical malpractice.

 

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Western Canadian Wheely Open 2018
Kyle Gieni, Resource Coordinator, PIRC
July 25, 2018

Western Canadian Wheely Open 2018

August 18th and 19th 2018 will mark the first ever wheelchair floorball-hockey tournament played on Canadian soil, or on Canadian floor to be more precise. The gymnasium at Trinity Western University in Langley will host these games and will be home to visitors from as far as Austria who will be challenging for the Canadian championship. This championship will be called the Western Canadian Wheely Open 2018.

Normally, local players will have pick-up games at the Roundhouse Community Centre Thursday’s at 6:00pm-7:45pm and Sunday Morning’s 10:30am-12:30pm at Queen Elizabeth Park. Some players from the BC Wheelchair Floorball Association (BCWFA) have been to tournaments representing Canada in Europe including the Para Games Breda in the Netherlands and the Swiss Wheely Open in Notwil, Switzerland. Players from other European countries thought it would be great if there was ever a wheelchair floorball tournament on the true north native land. It has been a lot of hard work and plenty of long hours spent in the process, but BCWFA is happy to be putting on this gathering for wheelchair athletes from across the country and around world.

Over 500 invitations were sent to wheelchair athletes in Canada, the USA and all over the world from Spain to Sweden to Morocco. BCWFA is expecting to have 6 teams take part in this first ever tournament of its kind. Expecting 50 players, 6 referees, and 12 volunteers to participate in this tournament, and who will ultimately be the heart and soul of these games. It will be the players and volunteers who will make these games good, but it is the sponsorship that will make these games great.

Murphy Battista has agreed to sponsor lunch for the players and volunteers while the players fight for glory and the volunteers assist in having players reach their goals. This tournament would not be possible if it were not for sponsors like this. We will also have other local community partners helping us out at the event including Advanced Mobility, Spinal Cord Injury BC, and Chair Stuff Medical Supplies. These community partners will help cover the cost of things like gym rental, insurance, and supervision. There will also be a raffle for a bunch of different swag from other community friends such as the Rick Hansen Foundation, The Hockey Shop, as well as pictures and frames made by local artists.

The BC Wheelchair Floorball Association is still taking entries for the Western Canadian Wheely Open. As in the name of the tournament, it is open to anybody who would like to join, disabled or not. BCWFA will even supply the sports wheelchairs, sticks, and equipment that you need to play. Entry is now $30 per person and individuals will be placed on teams as needed. Or if you have a team, you can register your whole team to play.

If you would like more information on BC Wheelchair Floorball Association and the Western Canadian Wheely Open, please visit www.bcwheelchairfloorball.ca and like us on Facebook. Wheelchair floorball events, rules of the game, and the final countdown to the tournament can be found on our website.

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You’ve Been in a Cycling Accident Involving a Motor Vehicle – What do you do?

 

As we escape the throes of winter, not only do we welcome warmer sunny weather but so do the nation’s cyclists. However, with beautiful weather, bicycle accidents are at their peak. ICBC estimates that 160 cyclists are injured every month from May to October.

Recently, cyclist Anthony Floyd was involved in a collision when a driver pulled into a cycling lane while attempting to turn left on a busy Vancouver street. Luckily, Floyd was able to slow down his bike before impact and was able to avoid any serious injuries. He also had a mounted camera that recorded the incident, showing the vehicle’s movements before the collision.

Not all cyclists have a mounted camera on their bikes that help their potential legal case after a cycling accident, but there are a number of specific steps you should take immediately after a cycling accident even though, for most people, safeguarding their ‘legal interests’ is the furthest thing from their minds after they’ve just had a close encounter with a car. Unless you’ve been badly injured, your impulse may be to get back on your bike and get going, assuming (hoping) you’re fine. But the reality is that many symptoms will not arise until well after the event. For example, you may have suffered a concussion without necessarily being consciously aware of it, and you may not suffer any symptoms at the time of the accident. As a result, it’s very important to make sure you gather the information you will need to advance a claim for your injuries – just in case.

Note: Even if your injuries do not require immediate medical attention, it is always a good idea to get yourself checked out properly by a medical professional as soon as possible after an accident. Again, this is because of delayed symptom onset. Your doctor is in the best position to assess your condition and provide you with a treatment plan that you should follow to the letter.

Immediately after a cycling accident:

  • Remain calm – the driver of the car that hit you will have his/her side of the story and it’s not the time or place to convince them otherwise. Even if the driver apologizes, it’s still important to gather as much information as you can because there’s a good chance the driver’s insurance company will deny that they were at fault. Also, try to override your natural (Canadian) instinct to apologize – even though it’s not an admission that can be used against you in court, the reality is that it is likely to make it harder to settle your claim (if you end up making one).
  • Get the name and contact information of the driver that hit you, as well as any witnesses. If possible, snap a photo of the license plate of the car that hit you and the accident scene including the location of your bike in relation to the car that hit you.
  • Wait for the police to respond so an objective party can prepare an official report.
  • If an ambulance attends – go to the hospital if it is suggested to you. Take the time to get checked out by a medical professional.
  • If possible, speak to a lawyer before making a statement to ICBC. If you must give a statement (such as to the police), keep it short and to the point.

After you get to your destination:

  • Make a note of the accident (the events leading up to it, and the accident itself) with as much detail as possible. Describe the location of your bike on the roadway at the time of the accident. Include things like road and weather conditions, time of day, and any factors affecting visibility. If the accident happened at night, make a note of any reflective gear you were wearing.
  • If you fell off your bike, where did you land in relation to your bike? Try to think of specific reference points (e.g., your bike was on the curb, you ended up next to the tree across the sidewalk).
  • Make a note of the injuries you suffered – be comprehensive – everything from your toes all the way up to your head, including headaches, nausea, dizziness etc.
  • Take photos of any damage to your bike and clothing. If your helmet was damaged – take photos.

Do not throw away your damaged clothing or cycling gear – it may be useful evidence at trial!

Part 7 Accident Benefits

Many people do not know that they are entitled to certain ICBC benefits (compensation for rehabilitation and medical services for their injuries, as well as compensation for income loss and household assistance – up to $150,000) regardless if they are at fault. You can watch a video on the basics of Part 7 Accident Benefits below:

Alternatively, you can click HERE to download Murphy Battista LLP’s Laymen’s Guide to Part 7 Benefits.

If your accident involved a motor vehicle, chances are you will be eligible for benefits. A cyclist is entitled to benefits if:

  • they are named on an Autoplan policy,
  • are a member of a household with an Autoplan policy, or
  • are hit by a BC-licensed and insured vehicle in BC.

In order to apply for Part 7 benefits, you must:

  • promptly give ICBC notice of the accident involving a motor vehicle (either on-line or by calling ICBC’s dial-a-claim at 604-520-8222 in the Lower Mainland and 1-800-910-4222 elsewhere in BC),
  • provide ICBC with a written report of the accident (short and to the point), and provide ICBC with a proof of claim on the form that will be provided to you by your ICBC adjuster.

It is wise to discuss your application with a lawyer. Most lawyers, including Murphy Battista, offer a free consultation.

If the accident does not involve a motor vehicle you may still have a claim! If you fall off your bike for some other reason (for example, defects in the road, or road construction created an unmarked hazard in the road), it is important to document the incident as much as possible by taking photos of the scene of the accident, obtaining contact information from witnesses, and making a note of your injuries and the damage to your bike. For photos of holes/cracks in the road, include an object (i.e. a pen, shoe, wallet) in the photo to provide context for the size of the hazard. Consult a lawyer as soon as possible as there are strict limitations dates that apply if the negligent party is a municipality.

If you have questions about a cycling accident you are welcome to contact us.

Note: a earlier version of this article was first published in December 2015. This post was updated to include new information and examples

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Scotiabank Half-Marathon Charity Challenge in Support of Spinal Cord Injury BC
Kyle Gieni, Resource Coordinator, PIRC
June 21, 2018

Scotiabank Half-Marathon Charity Challenge in Support of Spinal Cord Injury BC

Kyle.A.Gieni

It is hard to believe this weekend on June 24th marks the 20th anniversary of the Scotiabank Vancouver Half-Marathon, it also hard to believe 1998 was 20 years ago. This year marks the 4th time that I will be participating in this particular race. But for me, it is much more than a race for personal gain. This is an opportunity to come together, by the thousands, and help to support great causes along the 21.1-kilometre path. This year I will be wheeling the half marathon in support of Spinal Cord Injury BC. SCI BC is a charitable organization not only built to offer support to those who have incurred a spinal cord injury, but also those with non-traumatic spinal cord complications such as spina bifida.

Back in 2009, I was coming down with infection after infection and I could not perform my duties as a Probation Officer any longer. Eventually, I lost my job, which left me with no funds to pay for rent at my non-wheelchair accessible apartment in Surrey. I then contacted SCI BC to see if they had any openings for wheelchair accessible units. Luckily, there was a unit in Kitsilano which was being vacated at that time, which was fully wheelchair accessible from the roll-in shower, to the wheel-under sinks, to the patio out the back door, to the accessible roof-top patio. Lucky for me, this place also had a subsidy available for people with low income. Spinal Cord Injury BC helps in many ways including finding accessible housing for people who need it.

SCI BC offers a resource centre, a peer support program, and a magazine called The Spin. All of these work together to improve the lives of people with mobility issues. For the Scotiabank Charity Challenge, we are at 80% of our goal of raising $60,000. Murphy Battista is getting in on the action where they are going to match donations made by their staff. So far, a special thank you goes out to Samir Ibrahim, Cecilia Kwok, Kevin Gourlay, Leyna Roenspies, Aaron Wadley, Summer Kelly and Laurie Ruggles. Your generous donations will go a long way in helping people with spinal cord injuries.

The half-marathon will be starting at UBC, going along SW Marine Drive to NW Marine Drive past Wreck Beach, down the hill past Spanish Banks and Locarno Beach, up to 4th Ave then along Point Grey Rd to Cornwall Ave, past Kitsilano Beach and the Maritime Museum, over the Burrard Bridge, past Sunset Beach and English Bay, eventually ending in Stanley Park. Last time I set a personal record of 1hour 43minutes.

With your help, I am hoping to set another personal best and win the wheelchair division. Please visit my donation site at: Scotiabank Charity Challenge 

Thank you for your support! Let’s keep the good times Rollin’!

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Disclaimer

Information provided in our blog posts is not intended to be legal advice.

The outcome of every legal proceeding will vary according to the facts and unique circumstances in each individual case. References to successful case results where the lawyers at Murphy Battista LLP have acted for clients are not necessarily a guarantee or indicative of future results.