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 - nesacks@hshlawyers.com Meghan Hull Jacquin -

mhull@hshlawyers.com 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 – Brenda@threetobe.org416-664-9938

Howie, Sacks & Henry LLP www.hshlawyers.comNeil Sacks - nesacks@hshlawyers.com 416-361-5811Meghan Hull Jacquin - mhull@hshlawyers.com416-361-7561

THANK YOU FOR YOUR TIME.

WE ARE HERE TO HELP YOU AND YOUR FAMILY.