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INJURYwise

Should I sue?

Where injury or death is caused by a wrongful act (i.e. car accident, fall, assault, defective consumer product, or negligent medical treatment or care received) you may find yourself asking the question, “Should I sue?”  

In cases involving catastrophic injury or the death of a family member, dealing with your new reality may seem more than enough. The last thing you want to think about is a lawsuit.

However, when the consequences are life-altering, it is often of greatest importance to consider the question. While it may be admirable to not want to sue on the principle that two wrongs do not make a right, most people have insurance to provide compensation when mistakes are made. The benefits that a lawsuit can provide may be in your best interest, or the best interest of your loved one.

While every case is unique, and you will have your own perspective on potential benefits or consequences of a lawsuit, the following are some criteria for you to consider when deciding whether to pursue legal action:

Some factors generally in favour of suing:

  • There are no significant liability concerns. In other words, a person and/or entity is at fault (or is most likely at fault), and caused the injury or death. *Note: The party at fault does not necessarily have to be the only cause of the injury or death in order for you to be successful. See: Proving liability in an injury claim.
  • You are within the limitation period. In other words, you have not missed the deadline to sue.
  • You or your loved one has suffered moderate to serious injury or death.
  • The injury has resulted in temporary or permanent disability.
  • The injury or death has caused, or is going to cause, significant personal or financial loss (i.e. pain and suffering, loss of enjoyment of life, medical and rehabilitation expenses, loss of income, and loss of capacity to work).
  • Financial compensation from a lawsuit would provide for a better life for you or your loved one (i.e. better medical care, better medical equipment, respite services, housekeeping assistance, replaced wages, etc.).
  • You or your loved one has no (or limited) disability insurance or life insurance.
  • The wrongdoer has insurance, or the financial ability to pay a damage award.  
  • You do not want what happened to you or your loved one to happen to others. Lawsuits can serve an important purpose of deterrence and prevention when a person or business has engaged in behaviour that should be discouraged. Lawsuits can also educate the public, those directly involved, and others who may indirectly learn from the wrongdoer’s mistakes. It is one of the few times that you can have the power to change an industry. See: The good lawsuit. 

Some factors generally against suing:

  • There are significant liability concerns. In other words, it is unlikely that there is anyone legally at fault for the injury or death.
  • You have missed the limitation period. In other words, you are out of time to sue, and you do not meet the criteria for extending the limitation period.
  • You or your lawyer will be unable to prove what caused the accident or injury. See: Proving causation in an injury claim. 
  • Your injuries are relatively minor, and you recovered quickly. *Note: Some minor injury claims are still worth pursuing.
  • The damages likely to be awarded are not sufficient to warrant the time and costs required to pursue the claim.
  • You have engaged in illegal activities that, if uncovered, could cause more pain (financial or otherwise) than any amount of compensation that could be gained from a lawsuit.
  • The wrongdoer has no insurance or financial ability to pay a damage award. *Note: In a motor vehicle accident, even where the driver has no insurance or where you are involved in a hit and run, you can often still recover compensation from ICBC if certain criteria is met. 
  • You or your family will have to continue to deal with the person you are suing. *Note: This may or may not present a problem, depending on the specific facts of your case. 
  • You have no interest in financial compensation, or there is no amount of compensation that would make it worthwhile for you to have to deal with the time, stress, or potential emotional consequences of a lawsuit.  

While this column is titled ‘Should I sue?’ it is important to remember that some claims can be settled without commencing a lawsuit. In addition, even when you commence a lawsuit, it does not necessarily mean that you will have to go to trial. 

If you are asking yourself whether you should sue, it is probably worthwhile to have a consultation with a lawyer, and the sooner the better. There are time limits for commencing a lawsuit, evidence can disappear, and memories of key witnesses will fade. 

You may find out that you do not have a good claim, in which case, at least you will know.  Alternatively, you may find out that you do have a good claim, as well as the costs and potential benefits of your case. 

At the end of a consult, you should have all the relevant information to do your own analysis, and make a decision that is right for you.  

*Important Note: The information contained in this column should not be treated by readers as legal advice, and should not be relied on without detailed legal counsel being sought.



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Concussion

 

A concussion is a brain injury. Something misunderstood by many, but with the release of the new movie, Concussion, on December 25, 2015, starring Will Smith, Alec Baldwin, Luke Wilson and many others (see: Concussion – Official Trailer), a very important topic in my profession is about to get the benefit of the limelight. 

The movie is about the discoveries of Dr. Omalu, a pathologist who, after performing an autopsy on NFL star Mike Webster, went on to study brain damage in football players who suffered from repeated concussions. His work lead to the discovery of a new disease called chronic traumatic encephalopathy or CTE (see: Frontline interview with Dr. Omalu).  

Personal injury lawyers often see clients who have suffered concussions as a result of car accidents, cycling accidents, slip and falls, assaults and other events. 

In some cases, clients have a history of previous concussions, making them more susceptible to significant injury from subsequent concussions. We see first-hand how devastating the consequences of a concussion or repetitive concussions can be. 

However, I have found in my practice, that unless the symptoms were severe at the time of injury, a concussion will often go undiagnosed. Even in cases where the concussion is diagnosed, the medical attention given to the concussion beyond diagnosis is often minimal, which, in turn, minimizes the injury in the eyes of ICBC and other insurance companies.  

Last year, I had the privilege of attending a presentation by Dr. Shelina BabuI, a paediatric sports injury specialist with the BC Children’s Hospital. It was recognized by Dr. Babul and her colleagues that there is a lack of education about concussions in the medical, sports, and educational communities.

As a result, Dr. Babul led the development of the Concussion Awareness Training Tool (CATT). The objective of CATT is to standardize concussion recognition, diagnosis, treatment and management.  

Dr. Babul’s presentation was called, ‘Concussion in BC - An invisible epidemic.’ 

Her title really says it all. Concussions are ‘invisible’ injuries, so it is not surprising that they present challenges in medicine and in personal injury claims. 

My job as a personal injury lawyer is to make the 'invisible' injury 'visible', so that a judge or jury can have a better understanding, and appropriately compensate a person suffering from a concussion. 

To do that, it is important to understand how the injury is caused, recognize the symptoms, and the impact of the symptoms, as well as understand the treatment and management of a concussion. 

This is where projects such as the Concussion Awareness Training Tool are so valuable, not just for me, but for everyone dealing with concussion.

There is a wealth of information about concussions on the CATT website (see: www.cattonline.com). 

While the movie Concussion is yet to be released at the time of writing this, it is my hope that it will bring attention to this important and misunderstood topic. I hope it will encourage further education, and bring some visibility to an otherwise invisible injury.

For a complete list of concussion symptoms from the Mayo Clinic website, click here.

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*Important note: The information contained in this column should not be treated by readers as legal advice, and should not be relied on without detailed legal counsel being sought.



Trial required?

“Do I have to go to trial?”  

It’s a good question, and having recently finished a nine day personal injury trial, it seems an appropriate topic for my next column.

The short answer is ‘no’, but sometimes it’s worth it to go the distance. 

There is a misconception by many that if you hire a lawyer, it means that your case will go to trial. The reality is, very few claims ever do. What you see on television in terms of court time (i.e. Suits, The Good Wife, LA Law, Boston Legal, Damages, etc.) is a far cry from the real practice of law. 

Television production aside, what we typically do outside the courtroom does not exactly make for the thrilling fast-pace drama that most people want to watch. So, while courtroom scenes makes for great television, the good news for most of you is that your case will settle without setting foot in a courtroom.

One of the reasons I get asked about the prospects of going to trial is that many people are afraid of it. The process is unfamiliar, so we shy away from it. We hear of the time they take, the costs involved, and we hear about the risks of losing. ICBC, or the opposing party, will try to scare you with a variety of potential consequences, and your fear builds. 

Trials are generally not as scary as they might seem. The time trials take can be a factor, but in my experience this is rarely a significant consideration. 

Legal costs for going to trial in personal injury claims should be rarely a factor, because most lawyers are hired on a contingency fee (a percentage basis). Where costs could be a factor is if there is a real risk of losing your case, or not beating the defendant’s last settlement offer. This is because the losing party generally has to pay the winning party’s costs. However, a calculated risk assessment can be made, and with some claims, there is now trial insurance available through third parties to help protect you. 

So with a good case, good expert witnesses (doctors, psychologists, occupational therapists, etc.), lay witnesses (friends, family, co-workers, teachers, etc.), and a proper assessment of the claim, a trial is nothing more than a presentation of the facts and the law, and asking someone other than an insurance company who is writing the cheque to decide what is a fair and reasonable result.  

While going to trial can be a good idea, it does not mean that one should always opt for it. There are circumstances in which it is, quite frankly, a bad idea. Lots of factors come into play in whether or not a lawyer will recommend going to trial, such as whether your case is before a jury or judge alone, your likability, whether liability is admitted or not seriously in issue, strength of the evidence, personal considerations (such as why less money now may be more valuable to you then more later, impact of a trial on other aspects of your life, etc.), publicity of the decision, etc., just to name a few.  

Should you go to trial? The ultimate question from the lawyer’s perspective (note: you may have separate personal considerations that you need to factor into your decision) is whether the amount being offered to you, considering all the circumstances, is within the reasonable range of damages that the court could award at trial. 

In cases where the settlement being offered is below the reasonable range, it will usually be my recommendation to run the trial. In that situation, a trial may not technically be required (there is often a low-ball offer on the table available for the taking), however, the benefits will likely outweigh the risks.  Regardless of my recommendation, the choice to go to trial is ultimately yours. Therefore, while you may not have to go to trial, in cases where the potential benefits outweigh the risks, you may actually want to.

*Important Note: The information contained in this column should not be treated by readers as legal advice, and should not be relied on without detailed legal counsel being sought.

 





The chronic pain effect

I observe her despair as she recounts all the changes that have occurred in her life since her accident. She is no longer the strong, independent, patient woman she once was. She is no longer able to care for her two children the way she used to. She can no longer do her job, and she can’t pay her bills, let alone all of her treatment costs. 

She has no social life, and her relationship with her husband is strained. She explains that she feels guilty that her husband has had to take over all the housework and parenting duties. She feels guilty that they cannot be intimate. She feels guilty that he has had to pick up extra shifts just so that they can try to pay their bills. She feels guilty as she watches their only savings disappear. 

Her husband seems to be understanding of some of her challenges, but he does not understand why her recovery is taking so long. He cannot understand why she does not want to go out for dinner with friends. He doesn’t understand why she hates being in the car and still refuses to drive past the accident scene. He is losing patience with their relationship. They fight all the time. 

Due to her injuries, she cannot workout or cook the way she used to, so they order in food a lot more often. She has gained 30 pounds, and her self-esteem has hit the floor. She is miserable and depressed.

She is sleep-deprived and in pain. She is tired of all the medications and their side effects. She is tired of the never-ending medical appointments. Nothing seems to help.  

Worst, though, is that none of the people close to her seem to really understand the pain she is in or why. No one can see her injuries (neck strain, back strain, concussion, headaches, depression), and from an outsider’s perspective, the car accident just wasn’t that bad. 

She does not want to live this way.  She just wants her life back.

Unfortunately, in my experience, the above scenario is incredibly common. The impact of chronic pain is profound, and it extends far beyond the injured individual. It affects everyone around them;   spouses, children, parents, co-workers, close friends . . . they are all affected. 

Marriages and relationships will often be destroyed. Jobs will be lost. People who are in pain all the time can be miserable to be around, and their ability to contribute to relationships as they once did is limited. Intimacy or other activities once enjoyed that fostered the relationship have gone by the wayside.  

While the pain and suffering endured by an injured person is compensable, what comes as a surprise to many of my clients is that family and friends do not have a claim for the pain and suffering they have endured. Basically, with the exception of something called an ‘in-trust claim’ (this is essentially compensation for services performed by the family member/friend for the injured person at the going rate for hired help) or cases of nervous shock (cases where the family member/friend suffers a recognizable psychiatric illness as a result of the accident), there is no compensation for the emotional toll your injuries have on others. 

However, despite the general lack of compensation available for family and friends affected, these individuals can play an important role in the amount of compensation you will recover in your personal injury claim. This is because the people in your life who are directly affected are also the ones who have seen the real impact that your accident has had on you. As a result, their evidence can be invaluable, in addition to the right medical and legal professionals, in helping you obtain fair compensation.  

Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.



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About the Author

Keri Grenier is an experienced personal injury lawyer based at Murphy Battista LLP's Kelowna office. She also holds a B.A. in psychology. Her practice focuses on helping people who have been injured in motor vehicle accidents or due to the negligence of others.

In her column, Keri provides practical information about personal injury claims in a format that is simple and easy to understand.

Email: [email protected]

Website: http://www.murphybattista.com
 

Twitter:  http://twitter.com/KelownaLawyer



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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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