Webster & Associates Successfully Defeats Application for Genetic Testing of Brain Injured Client

Genetic testingIn what appears to be the first case of its kind in Canada, the Supreme Court of BC has recently considered whether it is appropriate for the defendants in a personal injury action to require an injured plaintiff to submit to genetic testing. While the defence application was successfully opposed by Webster & Associates, the court did not go so far as to say such an order for testing could never be granted in the future.

The background to the court application was as follows. In the case of Benoit v. Banfield it was alleged that a child suffered a severe brain injury when she fell off a staircase belonging to the defendant and suffered a fractured skull. The defence sought an order that the child attend for a genetics assessment at the medical genetics department of the BC Children’s Hospital. Both blood and urine testing was to be conducted and the order sought was not limited in terms of types of tests to be done or time. There was even an indication that the samples could also be sent to laboratories in the United States for further analysis and that family member of the injured  plaintiff could also be asked to undergo testing.

Webster & Associates opposed the order sought by the defendant on the basis that the order would have been an unwarranted invasion of the privacy rights, not only of the injured child, but also of her parents and her sibling. We also argued that the plaintiff should not have to undergo this testing on numerous other grounds, including:

  • she had already undergone some ten previous defence medical examinations
  • the application was brought very late and had the likelihood of delaying the trial
  • depending on the types of tests done, the results could generate false positives
  • some of the proposed testing was still experimental
  • the defendant had failed to identify who would be conducting and interpreting the testing
  • the suggestion that the plaintiff had any sort of pre-existing genetic condition was simply “boiler plate” and not a seriously pleaded allegation.

The matter was argued in August 2012. On August 15, 2012, the court agreed with the plaintiff and dismissed the application. Justice Pearlman of the BC Supreme Court said on pages 13 and 14 of the Oral Reasons for Judgment:

  • [59] In my view, the issue of whether the plaintiff suffers from a pre-existing congenital condition from a genetic abnormality is not adequately raised on any of the pleadings in this case so as to warrant an order that she submit to genetic testing. There is no extant pleading of a pre-existing congenital condition by the applicant, and the pleading by the defendant Margaret Banfield is no more than a bare assertion that the plaintiff suffered injury, loss or damage attributable to congenital defects. This is a bare allegation boilerplate form.
  • [60] The plaintiff has aptly described the application at para. 35 of her written submissions where she states that:The applicant is proposing that an unnamed clinician with unknown expertise will provide a list of unknown diagnostic considerations and the testing recommendations for a test be conducted and interpreted by unknown consultants.
  • [61] Having regard to the importance of a qualified practitioner in the field of genetics undertaking the design and supervision of the genetic testing contemplated in this case, in my view the plaintiff is entitled to know the identity of the person who will conduct that testing and have an opportunity to consider their qualifications before she is compelled to submit to tests which have the potential to result in a significant invasion of privacy. I say this because genetic testing involves an examination of the test person’s genetic composition and may involve the identification of a wide range of medical conditions.
  • [62] Depending on the nature of the testing ordered, there is also a potential that some of that testing may be performed in laboratories other than BC Children’s Hospital, including laboratories located in the United States. That consideration serves to underline the potential for invasion of privacy.
  • [63] Another factor I take into account here in determining that the application should be dismissed is time limits. Drs. Wambera, Armstrong and Collins have all opined that there is at least the potential for follow-up studies, including the testing of relatives of the plaintiff which would undoubtedly result in the production of expert reports well beyond the date set for the delivery of expert reports in the case.
  • [64] Without information identifying the medical practitioner who will conduct the test, and information describing the scope of the testing that expert proposes to perform, and on the current state of the pleadings, I am not persuaded that there is any sound basis for the court to exercise its discretion in favour of the defendant…

The reality is that each person has a unique genetic makeup. Each of us will have duplications and alterations in our chromosomes. Genetic testing has the ability to reveal a great deal about each of us. It is likely to form an integral part of future scientific advances that will reduce suffering, improve our survival and hopefully find cures to many terrible diseases. However, at least at this stage it appears that the courts will be appropriately cautious about allowing defendants to embark upon fishing expeditions into a plaintiff’s genetic makeup.

 

Second Opinions – Get Peace of Mind and the Best Lawyer Working for You

Many of our clients, including one featured in a recent testimonial, have had a previous lawyer before coming to Webster & Associates. A few even had two, three, or even four previous lawyers before coming to us. Some were told (incorrectly) that they didn’t have a good case and some were actually fired by their lawyers.

There are lots of reasons why you might want to change lawyers. The litigation process can be very stressful and if you are unhappy or concerned that you may not be receiving the best legal support, the worry and anxiety can be increased.

If you are concerned about your legal representation, you should know that asking for a second opinion about your case or even changing lawyers is not difficult and usually costs nothing more.

Here are five things you may not know:

  1. You have the right to ask another lawyer for a second opinion.
  2.  

  3. Asking for a second opinion doesn’t mean you have to leave your current lawyer. A second opinion may provide you with comfort that you are in good hands or the knowledge that you aren’t.
  4.  

  5. At Webster & Associates, we are always prepared to talk to someone who has suffered (or whose family member has suffered) a severe brain or spinal cord injury and who is thinking about changing lawyers or seeking a second opinion. These discussions are always confidential. If we agree to provide a second opinion it is always without charge or obligation.
  6.  

  7. Changing lawyers will usually not cost you extra. If you do decide to hire Webster & Associates in place of your current lawyer, this generally comes at no extra cost to you. In most cases we pay your former lawyer’s fees out of our own legal fees so you don’t pay more.
  8.  

  9. We can work with your lawyer. Some lawyers recognize that their client’s injuries are so complex that they don’t have the knowledge or experience their client needs. They may choose to refer their client to us to ensure their client’s needs are fully met. We are always happy to hear from counsel about their clients and will cooperate to ensure both the client and the lawyer’s interests are protected.

Considering getting a second opinion? Read D.P.’s story – a second opinion with Webster & Associates resulted in the maximum insurance settlement for her injured daughter.

Want to talk?
Give us a call toll free at 1-877-873-0699 or email us at info@braininjurylaw.ca

Five Things You Don’t Want to Hear from Your Lawyer

Over the years, I have talked to a lot of clients and potential clients who are seeking compensation (for themselves or their loved ones) for a severe brain or spinal cord injury. I have heard a number of interesting stories about their experiences dealing with other lawyers — some have been upsetting, some frustrating and some funny. I want to share with you my top five.

Here are five things you do not want to hear from your lawyer if you (or your loved one) are seeking compensation for a severe brain injury or spinal cord injury:

  1. “I’m a brain or spinal cord injury lawyer. I also do wills, estates,
    conveyances or divorces.”

    No lawyers can do everything well.
  2. “This is my first brain injury or paralysis case so I’m happy to get the
    experience.”

    Do you want to take the risk?
  3. “Maybe you could do it yourself in Small Claims Court.”
    This is no joke! B.C. Small Claims maximum recovery is only $25,000. Far, far short
    of what a very serious case is worth.
  4. “We will need you to fund expenses in the amount of about $10,000 (or
    a similar amount).”

    I’m sorry to say it, but the expenses that are required to properly fund a serious
    brain injury case are likely to be more in the range of $50,000 – $100,000, or even
    more. If your lawyer doesn’t know this, he or she clearly doesn’t know what is
    required. Many firms that handle very serious cases will have the ability to carry
    the expenses for the life of the file and get them reimbursed when the case
    resolves. If your law firm can’t do so, it may not have the capacity to fully manage
    the case.
  5. “Cut back on the rehab. You are (or your loved one is) getting “too
    much  better” and the case isn’t worth as much as I thought it would
    be!”

    This one makes me really angry. The mother of one of my very seriously injured clients was told this by her former lawyer just before she fired him. Like every injured person, her child has only one life to live and only one chance at the best recovery possible. Every lawyer should do whatever possible to encourage, assist and support their client’s rehabilitation. If they aren’t doing that, whose interests are they serving?

If you or your loved one are seeking compensation for a traumatic brain injury or spinal cord injury, please make sure you retain experienced legal representation who understand the complex medical, as well as legal, nuances of such cases and who prioritize your (or your loved ones) care and rehabilitation above all else.

Settled Claim for 20 Times Amount Originally Estimated by Other Law Firm

A lack of understanding about how to value a serious brain injury case is very common – even amongst lawyers.

We recently settled a claim for a young man who sustained a severe brain injury at the age of 13. He was struck by a car while riding his bike on a road near his home in a rural BC community. Shortly after the collision, his parents sought legal advice from a local law firm. They were told by the lawyer that this was a high risk case that they should not pursue – if won, the case would only be worth around $30,000 and if lost, they could potentially lose their home. Additionally, the parents were told by ICBC that their son was 100% responsible for the collision. They decided not to make a claim. Six years passed and, despite ICBC’s obligation to provide “no fault” rehabilitation benefits, the young man received very little in the way of rehabilitation support other than that provided by his family.

At the age of 19, the young man coincidentally met another young person with a brain injury and learned about our firm. We met him and his family and told them that his serious injuries could be worth a great deal more than what was originally estimated by the first lawyer his parents had talked to; possibly more than a million dollars.

After we commenced a legal action on his behalf the case was settled by ICBC for more than 20 times the amount originally estimated by the first lawyer.

We take cases that other lawyers turn down as being too “high risk.”

If you or your family member has sustained a serious brain injury, please contact us to see whether we can help. We offer second opinions at no charge or obligation.

OR

If you are a lawyer, we are happy to work with you to assist your clients. Please call us for a no obligation, no charge consultation.
Tel: 604.713.8030 (Vancouver)
Tel: 250.589.8030 (Victoria)
Toll free: 1.877.873.0699 (within North America)

Email: info@braininjurylaw.ca

 

Injured while jaywalking – who is at fault? Pedestrian or Driver?

Jaywalking. We all do it on occasion.

Jaywalking – We walk across a roadway not at an intersection — we “jaywalk.” Most times it is generally safe to do this, there are no consequences to anyone, and we go on our way without thinking too much about what had just happened.

But what happens if a collision occurs?

If a pedestrian is injured after being struck by a car while jaywalking, ICBC will almost always tell you it’s your fault.
But the reality is that the courts do not necessarily split liability that way.

At Brain & Injury Law (Webster & Associates), we have had many clients who were hit by vehicles when they tried to walk across a roadway. Often the injuries are very serious. Sometimes the pedestrian is a child who darts onto a road to chase a ball. Sometimes the pedestrian is intoxicated or ill and not paying careful attention when the collision occurs. Often the results are tragic. However, even if the pedestrian did not pay proper attention and contributed to the collision, this may not be the end of the issue.

The courts require motorists to drive cautiously and keep a lookout for pedestrians, especially for those who may be intoxicated or impaired, or for individuals such as young children, who may not be able to fully look out for their own interests. Even a completely competent adult may not be 100% at fault if the driver (who was paying proper attention) could have stopped in time to avoid a collision.

In a very recent case, called Murdoch v. Biggers, 2012 BCSC 747, a 53 year old woman was hit while running to catch a bus. Even though the plaintiff acted recklessly when running across a Victoria street against a red light, the court found that the driver of the vehicle that struck her bore some of the responsibility. If the driver had kept a better lookout the collision would have been avoided. The court awarded the plaintiff 25% of the value of her injuries.

If you or someone you care about has been seriously injured while jaywalking call us to see whether we can assist you.

Contact us today.

Tel: 604.713.8030
Toll free: 1.877.873.0699
Email: info@braininjurylaw.ca

Over $9 million in recent client settlements

The key to a successful settlement is a thorough investigation and a full preparedness for trial. It is through our trial experience and successes that we are able to obtain significant settlements for our clients. It is Webster & Associates’ reputation for trial preparation and willingness to take matters to trial that allows for the largest settlements.

In our practice approximately 80 to 90% of our cases are resolved before trial. Below, we have listed some of our recent settlements.

  • $5,000,000 for a teenager who became a quadriplegic following a serious accident in the BC Interior (Okanagan).
  • $2,000,000 + for a woman injured in a single vehicle rollover accident on ice in the Cariboo Region of BC. Her previous lawyer was unaware that there was anything seriously wrong with her. Though her family lived far away, we worked with them and with appropriate professionals to prove that her memory and executive function deficits affected her ability to care for herself, resulting in a very significant settlement.
  • $2,000,000 (policy limits) for an older man who suffered quadriplegia (tetraplegia) when the vehicle, in which he was travelling a passenger, was struck in an intersection in the Fraser Valley.
  • Policy limits for our client, a left turning vehicle. Our client was the servient driver (did not have the right of way) turning left when struck by the oncoming vehicle. We were able to show, based on the speed that the dominant (straight through with the right of way) driver was travelling and through his admissions upon cross examination, that the driver of the left turning vehicle fairly turned left, believing it was safe to do so, with the other car so far away.

See more of our settlement results and trial achievements in the ‘Achievements’ section of the website.

Troubled pasts do not impact the value of a brain injured suvivors’ future

The decision of Madam Justice Dickson in Gilbert v. Bottle, 2011 BCSC 1389 was released on Monday, October 17th, 2011 . In my view, this is a good decision on many fronts.

The injury

Ms. Gilbert was injured in a motor vehicle accident on March 8, 2005 when she was a backseat passenger ejected from a vehicle being driven by an impaired driver.  She was not wearing her seatbelt.  As a result of the accident, she suffered a traumatic brain injury, fractured clavicle and multiple soft tissue injuries.  At issue were Ms. Gilbert’s contributory negligence for getting into a car driven by an impaired driver and not wearing a seatbelt, and the extent of her injuries.

Ms. Gilbert’s credibility

Ms. Gilbert is a 37 year-old First Nations woman who lived much of her life on the Sugarcane Reserve near Williams Lake.  She was exposed to poverty, substance abuse and other tragic circumstances before the accident.  In part because of these circumstances, the credibility and reliability of her evidence, as for the evidence of all witnesses, was scrutinized particularly closely.  Despite being mistaken and careless in her testimony, the judge did not find her to have consciously attempted to mislead the court.  This had a bearing on the contributory negligence and damages components of Ms. Gilbert’s claim.  Ms. Gilbert was not found to be contributory negligent in this case.

The judge’s conclusions

Madam Justice Dickson concluded that Ms. Gilbert sustained a “complicated” mild traumatic brain injury with significant and permanent sequelae as a result of the accident.  The factors she based this finding on are:

  1. Ms. Gilbert lost consciousness for at least 20 minutes after the accident and experienced posttraumatic amnesia for over a day.
  2. Ms. Gilbert’s brain was vulnerable to injury due to her pre-existing and long-standing pattern of significant substance abuse.
  3. Ms. Gilbert’s increased post-accident problems with cognitive processes, including poor memory and focus, executive function and associated personality change, are characteristic of frontal lobe brain injury.
  4. There is a strong temporal relationship between Ms. Gilbert’s increased cognitive and executive function problems and the accident in that the increased problems appeared immediately after its occurrence and have persisted ever since.
  5. Ms. Gilbert’s increased problems with cognitive function improved for a time, then plateaued, in a pattern typical of partial recovery from brain injury symptoms.
  6. The MRI findings show organic change to Ms. Gilbert’s brain, which, given her presentation, I am satisfied was caused by the accident.
  7. There is no plausible alternate explanation for the constellation of altered cognitive, executive function and emotional compromises consistently displayed by Ms. Gilbert since the accident.

She preferred the opinion of Ms. Gilbert’s experts with respect to causation of the traumatic brain injury.  Despite Ms. Gilbert’s history, Madam Justice Dickson found that Ms. Gilbert’s increased cognitive, emotional and neurobehavioural problems were related at least in part by the injury, and that the memory loss, low frustration tolerance and poor concentration are primarily connected with her TBI.  Madam Justice Dickson also concluded that Ms. Gilbert suffers from a chronic pain disorder, particularly in her neck, shoulder and back.  She also suffers from cervicogenic headaches.

Relationship between Ms. Gilbert’s past and her injuries from the accident

Discussing the relationship between her past and her injuries from the accident, Dickson J. described her as a “thin skull plaintiff” (taking the plaintiff as she is found, in the already damaged condition that may affect the extent of the loss actually suffered), as opposed to a “crumbling skull plaintiff” (a plaintiff who would have likely suffered the debilitating effects of her damaged condition in any event, regardless of the accident).

The court awarded $200,000 for her pain and suffering, noting particularly her permanent loss of capacity to work and engage emotionally with others in coming to this conclusion.  No amount was deducted for failure to mitigate despite Ms. Gilbert’s failure to follow recommendations made by her family physician.  She could not afford recommended programs and had deteriorated because of her injuries which led to her difficulties in pursuing recommended treatment.

Her past loss of capacity was nominal for any loss of capacity to work between the accident and the trial date but her loss of future earning capacity was much more significant, at $400,000, assuming a present value of an annual loss of $24,000 in earnings to age 65 (28 years).  Madam Justice Dickson took into account the risk that Ms. Gilbert might have continued her substance abuse habit beyond mid-life but also that her health may have improved somewhat, thereby opening up other career options to her.

Future care awards are notoriously difficult as they require prediction about what will happen in the future.  Madam Justice Dickson awarded $200,000 for future care needs based on her conclusion that Ms. Gilbert’s pre-existing mental, physical and emotional condition deteriorated significantly because of the accident; her traumatic brain injury sequelae are serious, debilitating and permanent; and her chronic pain is also debilitating.  What the court did not award was costs for a shared-living arrangement as it was considered to be highly likely that she would be helped and supported by her family with shelter and care for the rest of her life.

The bottom line is that notwithstanding Ms. Gilbert’s very significant history on physical, emotional, mental and psychological fronts, a significant award was warranted for her injuries, earning capacity and care because of the huge impact that her “complex” mild traumatic brain injury and chronic pain symptoms have had and will continue to have on her life.

Everyone has a history; this does not mean that injuries or the effects of those injuries are either without merit or merit less attention.

Rehabilitation: Courtesy of your insurance company

It’s no secret that prompt rehabilitation practices have reduced the ultimate cost of ICBC claims, and ICBC rehabilitation coordinators are an integral part of this process. But it’s important to remember that these coordinators are part of the insurance defence team and not your client’s advocate.

It’s when your patient is discharged from the rehabilitation facility that an ICBC rehabilitation coordinator becomes involved. It’s the coordinator’s job to assist your patient in achieving the highest level of gainful employment and self-sufficiency within the shortest possible time. At this point, ICBC and the health care system become enmeshed and it’s vital to know which rules apply.

Read more

Appointing a committee as legal guardian

In most cases an adult is legally capable of making their own decisions, to initiate, and settle a legal action. However, if a person is not legally competent to manage their own affairs or to make proper decisions in their own interest, someone else can (and should) be appointed to make decisions on their behalf. “Committee” (pronounced kom-it-ee) is the legal term used in British Columbia for this court-appointed legal guardian.

If our clients need the support and protection of a committee (and those with very severe brain injuries often do) we will arrange for this to occur. Often it is a family member or trusted friend who will become a committee, but it can also be the Public Guardian and Trustee, or even a trust company. This process allows a family to act on behalf of their loved one who may not be able to take steps or cooperate in the legal process.

We recently settled a case for a severely brain injured client whose son was acting as her committee. In this case, we took steps at the start of the lawsuit and appointed our client’s adult son as her legal representative. Throughout the litigation process he made all the decisions. In appointing her son as committee, it provided our client with the protection she needed during and after the lawsuit – ensuring that her interests are protected and that the funds she receives are spent sensibly.

What can you do if you don’t know who caused the BC collision that resulted in your injuries?

Car Accident

Under section 24(5) of the Insurance Motor Vehicle Act you can successfully sue ICBC as the nominal defendant if you have taken all reasonable steps to find the driver who caused your injuries.

However, the recent case of Morris v. Doe that was pronounced by the BC Supreme Court in March 2011, gave us all a serious reminder that you must take steps to try to find the parties responsible not only immediately after the collision but also in the days and weeks after the collision.

In this case, the plaintiff was a passenger who suffered injuries when the vehicle she was riding in, driven by her husband, was rear-ended by another vehicle. Her husband got out of his truck and indicated to other driver they should pull into a nearby parking lot to exchange information. The other driver appeared to agree by nodding, but took off before the plaintiff or her husband were able to get the information. The plaintiff quickly called the police and notified ICBC, but took no further steps to try to identify other driver after the collision.

The court decided that the steps taken by the plaintiff were not enough and the action against ICBC was dismissed.

The plaintiff had failed to make all reasonable efforts to ascertain identity of the driver as required by Insurance (Vehicle) Act, section 24(5). The court stated that further steps such as posting signs and advertising in a local newspaper in an effort to seek out potential witnesses would be entirely “logical, sensible and fair”. The plaintiff had not taken any of these steps and as a result she was left without any compensation for her injuries.