Dairn Shane Litigation Lawyer
800-1075 West Georgia V6E3C9 Vancouver, BC, Canada

Thanks to CTV Morning Live for allowing me to talk about the important topic of Medical Malpractice in Canada.

DRIVING IMPAIRED WHAT HAPPENS IF YOU CAUSE AN ACCIDENT While everyone knows that driving while impaired is illegal, few people fully understand the significant financial implications that can arise to them if they are driving impaired and are in an accident where someone is injured. When purchasing insurance to permit you to drive, it is a term of that insurance contact that you will not operate the vehicle while impaired. Therefore, if you are driving impaired, you are i...n violation or breach of that insurance policy. If you cause an accident where you are in breach of your insurance policy, the following happens. The person who is injured maintains the right to bring a claim against you for those injuries. Your insurer remains obligated to pay compensation for those injuries on your behalf in accordance with the law. However, as you are in breach of your insurance policy, the insurance company is then permitted to sue you for whatever money it paid out for the injured persons claim. Even a minor injury to someone could potentially cost you well over $10,000.00. A more serious injury could cost you hundreds of thousands of dollars even over a million dollars in some cases. You could potentially be forced to sell your assets including your home to pay for the injuries you caused. There are far more serious implications to driving impaired than simply getting a ticket, a fine, or a suspended licence. You could injure someone and quite apart from the fact that you may seriously impact someones life you could end up being financially ruined. Best course of action: dont drive impaired. That is safer for everyone, including you.

I am very pleased to announce I have taken on a junior lawyer - Erin Kwa - to assist on my injury files. With my rapidly expanding practice - particularly in the area of medical negligence - Erin Kwas medical background and research skills will be invaluable.

MISDIAGNOSIS OR DELAYED DIAGNOSIS IS IT COMPENSABLE A question I frequently am asked is whether a misdiagnosis, or a delayed diagnosis, is compensable. This is particularly so in light of recent cases at hospitals where children have been brought to emergency by concerned parents, only to be sent home and then tragically pass away. Delays in diagnosing a cancerous condition also frequently arise. The answer is unfortunately complicated. The first thing that needs to ...be examined is the circumstances under which the wrongful diagnosis was made. It is only compensable if it can be argued that a reasonable physician or medical team (if the misdiagnosis occurs as a result of a number of medical personnel contributing to it) in the same circumstances would have made the correct diagnosis. The fact that the physician or medical team made the wrong diagnosis does not automatically lead to compensable negligence. Rather, it must be shown that the physician or medical team negligently made the misdiagnosis in circumstances where other physicians or medical teams would not have. If the overwhelming view of the medical profession is that the misdiagnosis was one which, as a majority, they all would have made, then the court will view the misdiagnosis as a non-compensable error, and a lawsuit seeking compensation will fail. The second thing that needs to be examined is what harm the misdiagnosis caused to the person over and above what would have happened to them had the diagnosis been made correctly. This is often very complicated, as the person claiming for compensation from a misdiagnosis will typically have had a serious medical condition and is essentially saying that the condition would not be so bad had it been detected earlier. Medical views on this can frequently conflict as there is a great deal of speculation involved in whether an earlier diagnosis of a medical condition would have made much, if any, difference to the patient. This issue called causation in legal terms is often the subject of considerable debate and discussion, and ultimately complicated arguments to a court if the matter goes to trial. Depending on which medical expert the court believes can often make the difference as to whether a claim for compensation will succeed or fail.

SCARS HOW ARE THEY COMPENSATED BY THE COURT While not a normal event, there are circumstances where a traumatic event can leave a permanent scar on a person. The question then becomes: how does the court calculate what an appropriate award of damages to be? The first thing the court will take into account is the location of a scar, and in particular, how easily it can be concealed in the ordinary course. Some scars are in locations where they would rarely be seen by an...yone in day to day life. Other scars are in locations which are always seen such as on the face, neck or hands. There are also scars that fall in between such as on legs and arms which are not ordinarily seen but in warmer months would certainly become apparent. Generally, the more noticeable the location of the scar is, the more compensation the person would receive. The second factor the court looks at is how the scar looks. Scars can of course vary in size and appearance. Some are small and hardly noticeable others are large and very obvious. Scars which are larger and prominent will generally get higher compensation then scars that are not. The third thing the court will consider is how the scar feels. Some scars when healed have no physical discomfort. Other scars particularly the more prominent ones can frequently be painful or itchy. The ones that are painful or itchy will receive higher compensation. The fourth factor the court will consider is the costs of correcting the scar either past costs or future costs. Usually there are suggestions of such things as laser surgery or tattoing to cover the scar. Further, in cases where the scar is on the persons face, cosmetics may be used to conceal it. Cosmetics can be quite expensive, particularly when calculated out over a persons lifetime. The fifth thing the court will consider is how the scar effects the person, and the people around them. Some people can get quite prominent scars and not be bothered by it. Others can get smaller less prominent scars and be very bothered by it to the point of needing psychological counselling to deal with it. Further, some people live in environments or have occupations where the scar impacts their interacton with others or their job these factors would also be taken into account. Overall, there are many factors the court views when determining how much money to award for a permanent scar. As a general comment, court awards for just having a scar tend to be quite low. In order for a court to consider a higher award to be justified, the court has to be convinced that the scar is having a significant impact on that person psychologically, socially, or vocationally, and/or that the person will need to spend considerable money to conceal the scar.

Should Dog Owners Have a "One Free Bite Rule"? Under our legal system, if you are bitten by someones dog, the dog owner can generally avoid liability (meaning, in effect, their insurance company does not have to pay you any compensation for the attack) if there is no evidence to indicate that the dog owner knew, or should have been aware of, a propensity of the dog to bite, or be aggressive. This has become known loosely as the One Free Bite Rule". Recently, there was ...a move on to change the law, which in effect would impose liability on a dog owner if their dog bit someone, regardless of whether the dog owner could have anticipated their dog would bite - in other words, to get rid of the One Free Bite Rule. This attempt to change the law was met with much resistance and attracted lively debate on both sides of the fence. In my view, I find it disconcerting that a young child could be innocently playing in a park and be attacked by a dog, and receive no compensation whatsoever for what may be lifelong physical and mental injuries, including extensive scarring, simply because the dog owner had no reason to suspect their dog would attack or bite. Weighing the respective interests I think the child should get the benefit of the doubt over the dog owner who, at the end of the day, has control over their dog and could and should keep the dog away from the child. I would also think this would apply to anyone - not just children - who are out for a walk and find themselves under the attack of someone elses dog. At the end of the day, I do not believe it should be sufficient for a dog owner to simply say "I had no idea it would bite you - sorry and good luck with your injuries". That said, there are many people who disagree with me on this, and it is an interesting area of discussion.

Just a warning to all parents to watch your children very carefully on escalators. Children are naturally drawn to these devices and find them fun and entertaining. Unfortunately, many escalators have potential traps for young children - particularly older escalators which only have to comply with the codes as of the date they were installed, and not the modern codes. Common areas of concern are the sides of the escalators, where children can get their feet trapped and pu...lled in, or the moving rail, which can pull in their fingers and hands. While modern escalators tend to have smaller side gaps and side brushes to inhibit feet entrapment, older ones may have wider gaps and no side brush, making it easier for their smaller feet to become sucked in. Further, never let your child sit on an escalator - when they reach the bottom they could become trapped by the teeth of the escalator with tragic results. See more

Medical Negligence - or Medical Malpractice as it is more commonly known, is a challenging yet interesting area of the law. The courts attempt to balance out the rights of patients who may suffer tragic physical results from a medical procedure gone wrong with the reality that medical science has its limitations, and the mere fact that something has gone wrong may not necessarily mean negligence on the part of the medical team. To find liability on a medical professional i...nvolves a complex analysis of consent, adherence to reasonable medical standards, and causation. The opinions of other medical specialists are required and these are often difficult to obtain - usually these opinions need to be sought outside of the province where the negligence is being alleged. That said, medical mistakes do occur, and if you feel you have been the victim of one, you should contact someone such as myself to discuss what happened to see if you may have a claim, as medical negligence, when it happens, can have a life altering impact to people. See more

PROPOSED INJURY CAPS: A REVIEW OF HOW THIS MAY WORK ON A PRACTICAL LEVAL The government is proposing a system to cap minor injury claims at $5500.00. The question then becomes how will this work on a practical level, based on the recent government announcement. It would seem to be that, if you are the victim of a car accident, and do not have a fracture or a diagnosed concussion (brain injury), you will automatically be slotted as a minor injury, subject to a $5500.00...Continue reading

I think it is time to take a step back and examine where we are with ICBC. ICBC, for roughly the last year, has been advocating the government to make a drastic change to your rights - essentially they want the government to remove the decision of whether or not you or a family member are injured in a car accident from that of the courts - which are by their very nature impartial - to some other system over which ICBC - which is not impartial - will have influence. In support... of this, ICBC announced an operating deficit of $200 million. In response to this, many groups and individuals proposed viable alternatives to eliminate that deficit and to fix ICBCs financial issues. Now, you would think ICBC would review those proposals and embrace them - particularly if they would in fact fix the problem. Instead, ICBC huddled, and came out with a new operating deficit of $1.3 billion - essentially saying that the proposals that had been made could not possibly correct this. In other words - forget those proposals and take away the rights of injured people like we - ICBC - had originally proposed. Now, we have to assume one of two things. Either this was a massive yet innocent miscalculation of operating budget, or there is a deliberate fudging of numbers going on to inflame and scare the public into giving in to ICBCs core request - to take away the rights of injured people. If it was an innocent miscalculation, then we have to assume that there is high level mismanagement and negligence of significant magnitude - a $1.1 billion mistake is hard to reconcile with anything else. If it was not an innocent miscalcuation, but was a deliberate and planned tactical approach to sway the public, then it is difficult to accept and believe anything that comes from ICBCs upper management. Either way, it leads to grave misgivings about changing the system to give ICBC more control over determinations of how injured someone is, and how much compensation they should receive. I suspect that the majority of people who have had any significant dealings with ICBC as a result of being injured in a car accident would be extremely reticient about reducing the power of the courts to make determinations as to the extent of injury someone has, and giving more power to ICBC. In my view, the solution remains a simple one: the present government returns the money the Liberal government took from ICBC (thus for the most part correcting the supposed $1.3 billion dollar deficit), the present government takes no further money from ICBC and allows it to operate at a profit like it used to, and we increase fines and penalities and premiums for bad drivers. Put very simply, do not punish innocent victims for the past wrongs of the Liberal government, the mismanagement of ICBC, or the bad drivers.

The provincial government is proposing changing the law to limit the ability of those injured in accidents from obtaining fair compensation. The provincial government says it needs to do this to save ICBC money. Essentially the government is saying that they will punish victims of accidents in order to increase the finances of ICBC in effect making injured people pay for the mistakes of bad and negligent drivers, rather than making bad and negligent drivers pay more.... The government is in effect blaming injured people for the state of ICBCs finances. It should be recalled that ICBC was financially strong at one point (some of you may recall a time when ICBC returned part of premiums to people because it had too much money). What happened? The answer is a twofold one. First of all, the government, recognizing all the excess money ICBC had saved up, decided to take that money and put it into general revenues. This made the government look better fiscally. However, it decimated ICBCs financial reserves, a state from which it has not recovered. Secondly, the government changed the way ICBC dealt with claims. Rather than a model based on the concept of paying "fair and reasonable compensation" (which was the model used when ICBC was financially strong), ICBC was changed to an aggressive defence minded operation which adopted the US approach of paying as little compensation as possible. This incited litigation as injured people quite fairly fought back and achieved their compensation in the courts. Naturally, this escalated costs all around. Clearly, it was not, and is not, Injured people causing financial strain to ICBC - rather it was the governments mishandling of the finances and the aggressive way claims have been recently dealt with which has led us to the current state of ICBC . ICBC needs to be returned to what it once was, and can be. This can be accomplished by the government returning the money it took from ICBC - and not taking any further funds from ICBC. In effect, let it exist and generate revenue like it once did and can again - in effect stop using it as a cash cow. Secondly, increase rates to bad and negligent drivers. Have them pay more for causing injuries - this is a sensible approach, and far more sensible than reducing the amount of compensation injured people receive. Similarly, put more money into programs that reduce things like distracted driving and excessive speeding. Thirdly, take a more proactive approach to injured people - help them rehabilitate - and go back to the model of looking at claims with a view to pay fair and reasonable compensation. This will reduce tensions and litigation costs and benefit the system as a whole. It will also lead to more satisfed ICBC customers, which in turn leads to less litigation and reduced dispute costs. If you do not support the proposed government changes, I would encourage you to contact your MLA and voice your concerns to them.

Wishing everyone a safe and enjoyable holiday season, and a healthy and prosperous 2018.

Grateful for the opportunity to discuss the rights parents and children have in the event of an injury at school. Parents are often very cautious about asserting claims in these instances and need to understand the issues that exist.

Thankful to be interviewed on three CBC radio stations today - Vancouver, the Interior, and the Island - to get my thoughts on the recent media storm over the Ernst and Young Report and ICBCs financial state of affairs. I was pleased to be able to express a point of view on behalf of injured victims of car accidents, as that voice needs to be heard as well.

While the Vancouver Canucks will likely struggle to stay afloat this season, I am nonetheless looking forward to being part of the new Sportsnet 650 Canuck Broadcasts.

Congratulations to the Legal Beagles, my WECSL sponsored softball team, who narrowly missed winning the Championship in the final game of the season. Great season!

Honoured to be sponsoring the Team Punjabi Sports Awards again this year.

Pleased to be appointed to the Air and Space Law section of the Canadian Bar Association. I am looking forward to working nationally to help improve the legal rights of passengers on airplanes on many fronts, including rights surrounding being "bumped", and rights to compensation when injuries to passengers occur.

Very pleased to confirm a jury verdict today of $1.8 million for my client with significant psychological problems. ICBC used video surveillance over the course of a three week trial to argue my client did not have psychological problems (in effect that he was faking) but their argument on this point failed. The jury charge incorporated the wording of my recent win in the Supreme Court of Canada in Saadati and allowed the jury to award compensation for a mental injury even though the exact diagnosis of the mental injury was under dispute.

Very happy to announce that the Supreme Court of Canada allowed my appeal with respect to the issue of proving psychological injuries at trial. This ruling reflects an acknowledgment that physical injuries and psychological injures are equally entitled to fair and just compensation. The link to the decision is: : https://scc-csc.lexum.com/scc/scc-csc//item/16664/index.do

Looking forward to going on CTV Morning Live on Wednesday May 10th to discuss peoples rights on airplanes. Lots of attention to that topic right now.

In my view, todays modern cars are deceptive when showing the degree of impact of an accident. Studies have shown that the exterior of some modern cars have a "bounce back" effect - such that an initial major dent may look less so - if anything - seconds after the accident because the material has corrected itself to some degree. Studies have also suggested that, while the exterior of the car may look less damaged in modern cars, this is potentially because the "force" of ...the impact has been transferred from the car to the occupants - such that the occupants feel the force more, even if the car itself appears less damaged than an older car would have. While these issues are always debated - scientifically and in motor vehicle accident trials - it is clear to me that using minimal car damage as a means to assess how "bad" the impact was to the vehicles occupants is at best inaccurate and at worst wholly irrelevant. See more

Thanks for all the kind messages about my recent Supreme Court of Canada Case on behalf of psychologically injured people. For those that have asked for more details about me privately, I represent and help injured people achieve fair compensation from insurance companies, and have been doing so for over 20 years. If interested you can read more about me on my webpage at www.shanelawbc.com

Pleased to have agreed to sponsor a team in the West End Coed Slowpitch League again this year. Always great to support this league!

Honoured to have recently appeared at the Supreme Court of Canada to argue for an expansion of the way psychologial injuries are determined and compensated by the courts. http://www.scc-csc.ca//webcastview-webdiffusionvue-eng.asp