DEMYSTIFYING THE LEGAL PROCESS THE STEPS FOLLOWING A MEDICAL MALPRACTICE INVESTIGATION
DEMYSTIFYING THE LEGAL PROCESS
THE STEPS FOLLOWING A MEDICAL MALPRACTICE INVESTIGATION
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THREE TO BE is a foundation which supports children with neurological disorders and their families
Focus on education, research and therapy Brenda Agnew is the Director of the Parent
Advocacy Link (PAL)
ABOUT THREE TO BE
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Neil E. SacksFounding Partner Head, Medical MalpracticeHowie, Sacks & Henry LLP
Meghan Hull JacquinAssociate Medical MalpracticeHowie, Sacks & Henry LLP
GUESTS
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Are you considering a medical malpractice lawsuit? If you need answers, just ask.
Email your questions to: Neil Sacks - [email protected] Meghan Hull Jacquin -
[email protected] Call 1-877-474-5997 or 416-361-5990
CONSIDERING A MEDICAL MALPRACTICE LAWSUIT? ALL QUESTIONS ANSWERED
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You have:Made the initial phone call Started a preliminary investigationDiscovered you have a caseAnd now you have a decision to make
PRELIMINARY INVESTIGATION
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During the investigation you and your lawyer have looked into liabilityWhat has happened?Was it a result of someone’s negligence?
At this point you can decide whether or not to pursue a lawsuit
TO PURSUE OR NOT TO PURSUE
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The risksThings may change over timeOpinions may change depending on new
information that comes to light What are you pursuing?
In Ontario, you can pursue damages for pain and suffering – for your child and family members
Must think of care needs, treatment needs, additional medical expenses, etc.
WHAT TO CONSIDER
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Your lawyer will help gather, assess and quantify all of these damages
They will pursue those for you to ensure your child’s and family’s needs are met
PURSUING DAMAGES
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Assessing these damages is done in a number of waysMostly by consulting various expertsThese experts have experience in the field
and consider the particular needs of the child and family
They will determine what the future holds in terms of care and cost associated
Number of experts weigh in from different fields
PURSUING DAMAGES
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Communication is specific to the familySome parents prefer to have a lawyer handle
everything, other parents prefer to be very involved
There is flexibility to respond to the desires of the family or parent
Communication is very important and determined case by case
The focus is on building trust where trust has been broken
WHAT TO EXPECT IN TERMS OF COMMUNICATION
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This is one of the most important parts of the legal process
Parents are very involved in this stage Questioning under oath by lawyers for
opposing parties Parents, doctors, representatives of the
hospital, etc. are questioned
EXAMINATION FOR DISCOVERIES
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During this stage, the answers are very important
A lot of preparation is done prior to discoveries
Parents will meet with lawyers many times to prepare for this stage – what to expect, how to answer questions, etc.
EXAMINATION FOR DISCOVERIES
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The questioning covers:Medical historyHistory of pregnancyAll events that occurred in the hospital and
afterwards These questions are geared towards
issues of liability and the nature and quality of care provided
EXAMINATION FOR DISCOVERIES
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Additional questioning covers:The nature of the injury and the condition
that the child has sustainedQuestions about the course the child has
had, the treatments, the therapyGo through a day in the life of the child and
the familyAll aspects of life are open for questioning
through this process
EXAMINATION FOR DISCOVERIES
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This can be an emotional stage in the process
With proper preparation, it can be done smoothly and as painlessly as possible
Both parents are typically involved
EXAMINATION FOR DISCOVERIES
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All of the information from discoveries is then considered by the experts
In this process, parents do not need to be involved – it is often between the lawyers and the experts
Further assessments then begin for the damages aspect of the caseExaminations with medical specialists appropriate for
the nature of the disorderOpposing side also has the right to their own
assessments of the child with equivalent experts of their choosing
ASSESSMENTS
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These assessments are done both inside and outside of the home
The parents and family is very involved throughout these assessments
These are often done by occupational therapists, nurses, and life care planners
ASSESSMENTS
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Mandatory in cases brought in Toronto and some other jurisdictions in Ontario
In other places, it is voluntary It is important to remember that although
all of these stages seem overwhelming, these cases often take years and mediation will occur a while after discoveries
MEDIATION
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Both parties agree on a neutral mediator The goal of mediation is to see if the case can be
resolved at this stage It is a “without prejudice” discussion
Not carried forward Confidential
Opportunity for both parties to discuss the strengths and weaknesses of their case and see if there is a way to settle outside of the formal trial setting
Not the only opportunity, but is a good opportunity for both parties to discuss the case
MEDIATION
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This conversation, and the process in general, is about money
All that can be done is get compensation for the needs of the child and family
Mediation is a time when you talk dollars and determine the value, the needs, and what will assist in raising the child
MEDIATION
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Mandatory step that takes place with a judge
This is an informal meeting and the judge will not be the trial judge
The pretrial judge meets with the lawyers for both sides after receiving written briefs from both sides
PRETRIAL CONFERENCE
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Pretrial judge discusses two general areas:1. Planning for a trial – discuss the logistics,
time required, number of witnesses, etc.2. Discuss whether there is possibility for
settlement – a negotiation with the judge’s assistance
PRETRIAL CONFERENCE
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If a settlement is not reached in the pretrial conference, you may be going to trial
There are still opportunities to negotiate and reach a settlement prior to trial and even during the trial process
If a settlement cannot be reached, then the case goes to trial
SETTLEMENTS
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Generally these cases are tried before a judge, without a jury
However, some are tried before a jury This depends if one or the other side has
chosen a juryThis decision is made very early on in the
process
TRIAL
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Cases that involve these complicated medical issues, long term care issues and profound injuries will take a fair bit of court time to be tried
If a full trial needs to be done, it will be in the range of 4-8 weeks
Parents must be involved at this time It is very difficult, but with proper
preparation it can be made easier
TRIAL
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Similar to discoveries, the parents will testify; however, it is more formal and structured
Parents could be on the witness stand for a number of days
All other experts and relevant witnesses are called to testify
The parents typically stay in the courtroom throughout the trial to observe
TRIAL
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If the trial is before a jury, there will be a verdict relatively quickly after the end of the evidence
If it is before a judge, the judge typically will reserve judgement:They will take time to decide, which could
take a number of monthsThe judge will send decision in writing
TRIAL
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It is common for there to be an appeal by the losing party
An appeal could take another two years to be resolved
The Court of AppealThere are no witnesses at this level but legal
argument based on transcripts from the trialThe family is not involved in the appeal processThe court then makes a decision, which often takes
a few months Further appeal to the Supreme Court of
Canada is rare
TRIAL
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QUESTIONS?
Send us your questions...
THREE TO BE www.threetobe.orgBrenda Agnew – [email protected]
Howie, Sacks & Henry LLP www.hshlawyers.comNeil Sacks - [email protected] 416-361-5811Meghan Hull Jacquin - [email protected]
THANK YOU FOR YOUR TIME.
WE ARE HERE TO HELP YOU AND YOUR FAMILY.