Richard Bogoroch and Heidi Brown of Bogoroch & Associates LLP choose their battles wisely

Greg Hudson [00:00:08] Hello, welcome to Canadian lawyer TV. My name is Greg Hudson. Today we're speaking with Richard Bogoroch and Heidi Brown, both partners at Bogoroch & Associates about the difficulties and the challenges of medical malpractice cases and what we can do to fix it. Heidi. Richard, thank you so much for being with us here today. Richard, I'll start with you. How do you decide which medical malpractice cases to take on?

Richard Bogoroch [00:00:34] That's a very good question. And we're often asked what are the criteria for us taking on medical malpractice cases? There are two essential criteria number one, if the damages are significant, it will merit a substantial investment of our time and resources to investigate whether there is a viable case, unfortunately, can take on every case, not every case, even if there is negligence can result in a remedy because of the damages are are relatively minor, then it's not certainly it's not a case we would take on. So we have a threshold generally of cases where we would take on. And threshold varies, it's generally for where we assess the damages that over $250,000, and doesn't mean we'll take on every case for that is worth $250,000. But generally, that's a working threshold that we use to determine whether the case is when we should take on because when we take on a case, we're investing 1000s and 1000s of dollars on preliminary experts opinions to determine whether there's a breach of the standard of care and causation. And if the case is not attracting a damage award would not attract a damage award of over $250,000. We carefully scrutinize those cases we'll take on cases, for a number of other reasons. One is access to justice. When we've had several cases where a baby was born, stillborn, and unfortunately, under the way the law has evolved, these cases would not attract significant damage awards, but we will take them on because we think in those situations, such a devastating incident, which totally transforms our clients lives, is something that we feel as a firm we should take on to provide access to justice, that's an exception to our threshold. The other exception is if the case raises important legal issues. For example, if the case would raise an issue on causation, which would be perhaps ventilated at a trial or aired in court, that's the case that would tract our interest, or case with raises questions of informed consent or loss of a chance where the law is continuing to evolve. And if we believe that the case is strong on the facts, even though the damages may not be at our threshold, we would consider taking it on. So the why we have to be very selective is the enormous costs of running a medical practice in Ontario, and I presume elsewhere in Canada. If we take on a case, you have to get the hospital records, which generally are very expensive, depending on the length of the stay. Secondly, if it involves an emergency, something that went wrong in the emergency room of a hospital, or involves negligence of nurses and doctors, you'll need nursing opinions, you'll need opinions from a specialist in emergency medicine. And those opinions are very costly at the preliminary stage. And if the case doesn't have merit, then there's no fee or charge to the client. And we then are obviously writing off all that time and disbursements. The disbursements are obviously the major driver of our decision-making. Since we don't require any money from any client, we will foot the bill for the expert reports because of our belief and access to justice. So there'll be some cases where there'll be multiple experts, but the damage will be significant. But we can end up spending 15 or 20 or 25,000 and sometimes more investigating the case, particularly when there are multiple physicians involved when there is perhaps family physicians, residency physicians, radiologists, family, internal medicine specialists, general surgeons, there are cases involving a plethora of experts, all of whom have may have breached the standard of care all of whom conduct is required to be investigated by highly credentialed and experienced experts. So those cases are extremely expensive. But we are very pleased that we do provide access to justice to a lot of people and have provided access to justice for so many people over the years. And we take on cases in order to help people and to provide them with access to the justice system, to have their injuries and impairments certainly recognized their voices heard in a court of law and to hold the physicians or nurses or hospital accountable for what has happened. So we take great pride in taking on his cases which are very difficult, they're very costly, they're complex, and they take a lot of time to litigate. But we do so in order to provide access to justice to people who have been aggrieved.

Greg Hudson [00:05:13] Heidi, how do you prove your case? What kind of evidence do you need?

Heidi Brown [00:05:19] Sure, I'm happy to do that. So a plaintiff who is a person who is bringing a lawsuit against a hospital or a doctor has what we call the burden of proof. So it has the obligation to establish that the doctor or hospital was negligent, and that that negligence or breach of the standard of care, caused the person's injuries and that can be challenging, and requires the gathering of evidence in order to prove both the issue of breach of standard of care and whether or not that breach of standard caused the injury. And evidence is the key word here what kind of evidence is needed in order to prove the case. So as Richard mentioned earlier, we have to request all of the individuals hospital, hospital records, clinical notes and records from the, not only the physicians who may be the target of the lawsuit, but also other doctors and health care providers who may have been involved in that person's care in the years preceding that time are in and around that time. We look at any ambulance records, if the person was transported, transported by ambulance, family doctors records, for example, are very important. So we get a general picture of the person's health in and around that time. And we have all of those records collected and assembled. And then we have to have them reviewed by experts in the field. So some of the types of cases I think that you may be familiar with that are involved in medical malpractice might be misdiagnosis, or delayed diagnosis cases, Richard mentioned birth injuries where a child is born, perhaps without enough oxygen, insufficient oxygen, which leads to lifelong problems and complications and surgical errors, for example, that could run the gamut of having a mistake with the wrong procedure being performed, or the wrong limb being operated on or having damage to internal organs, things like that. So you really need to have, identify and have that you have to identify which are the experts that you need to review the records and provide you with at least a preliminary opinion as to whether or not what went on in the care and treatment of this person fell below the accepted standard of care. So you may need to have several experts, you may need to have an orthopedic expert, you may need to have a neurologist in the case of a brain injury. In the case of a birth injury, you might need a plethora of experts, you're going to need a neonatal expert, you're going to need an obstetrical expert, a radiologist you may need to spend as Richard mentioned, the cost can be very prohibitive if you have a multifactorial case. So when you have appropriate experts who are able to give you a preliminary opinion to at least tell you that you have a case, you're already looking at often 10s of 1000s of dollars. And then once we get to the next stage of the litigation, if we feel that we have enough evidence to proceed forward, we perform and conduct examinations for discovery where we have the opportunity to question the doctors and or hospital who are the defendants that people being sued in the case. And then we get a transcript of their evidence, which the experts will then also review, the purpose of which is to get those experts to those individuals to tell us what they did, how they did it and make admissions that will be helpful to the case. And when all of that evidence is available. We will have experts provide final reports and then we are ready to be able to prove our case and be successful in trial. We hope.

Greg Hudson [00:09:27] With these cases taking so long, how do you also deal with the opposing counsel delaying the examinations for discovery and mediation?

Richard Bogoroch [00:09:35] That's a very good question. We move our cases very proactively. We believe it's important not only to the administration of justice, but to our clients to see that their cases are moved efficiently, effectively through litigation process. If we cannot agree on a timetable for the holding of the discoveries and if it's a Toronto action for the mediation, we have to resort to the courts by bringing a case conference or emotion and we will do that if we cannot get the cooperation of opposing counsel. It's simply not delay does not argue to the benefit of our clients who have been injured or lives have been altered, irrevocably as a result of negligence of a doctor or nurse. And they need funds in which to live to improve their lives with dignity. And so we're very conscious of that. And for that reason, we move our cases very, very promptly, as promptly as we possibly can, given the delays in the litigation system.

Heidi Brown [00:10:29] Canadian Lawyer magazine reported in July on the advocate societies report that came out this summer and summer of 2023. And the report is entitled delay no longer the time to act is now. The situation with delay in the civil justice system is becoming an it's endemic. And it is becoming an intolerable situation, it was already a problem before the pandemic and it has only been amplified now. That lengthy delays is a barrier to access to justice for Canadians, the report found it increased costs, it denies timely relief creates a great deal of injustice denies people the opportunity to meet to have money to be able to have a roof over their heads and survive. In many cases, and particularly for injury cases, you're waiting years and years to get a resolution. In the meantime, a person can't work they can't provide for themselves and their families, they can't look after themselves and obtain the care and medical assistance that they need. And it really can be the difference in having a roof over one's head putting food on the table, it's a very, very serious problem that we're facing in the civil justice system right now.

Richard Bogoroch [00:11:45] So we're very conscious of that. And our firm is geared up. We have, we're fortunate to have a very able medical malpractice team. We have many lawyers working on that team. And we have clerks and other infrastructure and assistance and support to that we're able to move our cases promptly. If we do encounter delay, then we try and resolve it with opposing counsel. But if resolution is not possible, we will be required to bring a motion to bring a case conference or a motion so that we can move our case effectively through the litigation process. As Heidi mentioned, as I mentioned earlier, delay does not argue to the benefit of our clients, they need money, they need to have resolution. And if the case is capable of resolution, we think incumbent upon counsel to move it as promptly as they can give him counsel schedule and given opposing counsel schedule two examinations for discovery, and thereafter to a mediation with a highly experienced mediator capable of managing or mediating medical malpractice cases. I can tell you that Heidi and I were recently concluded a birth trauma case, which we moved very, very quickly through the litigation process, I believe the case was resolved from start to finish in about four years from the time of our retainer, which is exceptional. But what we did is when we got the case, we issued a claim very promptly with the cooperation of counsel, and we're grateful to counsel on that case, move the case swiftly through discovery, then to mediation. And then through the court approval process was a birth trauma case, we're very proud of it, we achieved a very, very agreeable settlement for our clients. And it enabled certainly our the very young client who suffered or who was sued, obviously, through a litigation guardian, who suffered horrific injuries, to have the money necessary for all the adjustments that one needs, to modifications to home to vehicles to care, all of the care that will be required is available now because we were able to promptly resolve that case. And so we're very proud of the approach we took on that case, because it's part of our ethos here. It's part of the characteristics of our firm, that we try and move these cases as promptly as we possibly can, mindful of the very real human costs that these cases have on our clients and their families.

Greg Hudson [00:14:04] Now with all these challenges in the system, from, from the cost to the delays to laws that favor insurance companies, if you could fix one of them, what would make the most difference?

Richard Bogoroch [00:14:17] One of the things I would fix apart from the substantive law, which required Supreme Court changes would be to expedite the whole litigation process, there must be a way to fix the system. I know that the judges are honestly trying to come up with solutions to make things move much faster. I would imagine that they're constrained by funding, which is generally everything comes down to money in the system. And that's a very important factor. But we know that the judges, associate judges, the judges of Superior Court are all working very hard to make the system better. But what you ask what I would do, I would make sure that the government puts enough resources into civil justice, because it's so critical to allow for the appointment of more associate justices to allow for speeding up of the whole process, to allow money to do much more than they can with technology, to allow a system that will from start to finish. if Council are ready and cooperating you can you can get your trial in under four years, and maybe even three years, depending if you have all your extra reports you bought and gone through and you've had productions, there's no reason we look with some envy the United States when some of their civil cases move so quickly. And there's obviously very significant difference between the United States. But certainly Ontario is the leading jurisdiction in Canada, and which we believe sets the pace for perhaps the rest of this country should put a lot more money, or at least the government should put a lot more money to civil justice to correct these problems. It's not fair to ordinary people to have to wait so long to have their case, resolved at trial. And it's time I think the pandemic has taught us how important civil justice is and what they can accomplish in short notice, digitization took place so promptly with record time, that I think we were all astonished and amazed at how effective things became when we were all locked down. And we couldn't really go to court, and we couldn't even see our clients. But the court managed to overcome those obstacles, and to create an effective platform, with case lines now with Zoom before there was in trials, and they manage now it's up to the government, it's up to the government to put a lot more money into the system. And it's really that's really where things begin and end. And also to change the rules. I think the current rules we're offering under came into effect in 1985. They're almost 40 years old. And they need I think, to be revisited to be amended to be reconsidered, to be modernized and to reflect the changes in technology from 1985 to today. One of the things just there's so many, as I said that I have a huge list. But this is a minor technical issue, they have to change the rules on service. Sometimes that when you're dealing with multi parties, it's very hard to personally serve the defendants. And there should be a mechanism now that things can be done through Facebook, through email through other social media, so that there is at least a an acknowledgement that the claim or documents are brought to the attention of the other side. Because it becomes very expensive when you have multiple parties, particularly med mal and it costs a lot of money to serve them. There has to be a faster, more efficient, more economical way to deal with death, just that little small aspect. But there's so many I just mentioned that because I just was thinking about it. And some of the issues we have in arranging for service of many parties or arranging in a personal injury context service of a claim when one party does not really want to when the defendant doesn't want to accept service, or it's not available. So these are things that among the many the multitude of matters that are ripe for amendment.

Heidi Brown [00:18:14] I would add a few more things. And I would like to see the number one thing that I would like to see at least in medical malpractice cases, which often involve a lot of parties. And some of the difficulties involved surround scheduling with so many lawyers and so many parties and when you're trying to schedule discoveries with doctors, you're trying to work around their schedules, it can become quite, quite difficult to get everybody available on the same day. So, we have a mechanism under our rules called case management where one judge is assigned to deal with the procedural aspects of the case. And in certain medical malpractice cases, the availability of case management should not be difficult to access and right now it is you have to make a special case for it and there should be a far more great deal more access and availability to case management and multi-party cases. That's something that I'd like to see a develop. I'd also like to see a mechanism whereby we can get much earlier trial dates and computerize the whole system perhaps whereby people can just go in and access the computer and see what's available and enter their the dates that they're available rather than have to wait to have this you'll get an invitation from the court which could take months and months and months from the time that you're ready for trial. Sometimes from the time you're ready for trial till you can even appear before the court and get a date you're waiting, you know six to eight months just to get a peer to ask for the date. So there should be a more up-to-date modernized way of doing that. And the last thing I'd like to see is a more efficient way of dealing with motions and issues that are arise from discoveries where counsel perhaps take unreasonable positions in the production of documents, there should be a mechanism or a special court to deal with those issues, or there should be much more substantial cost consequences against parties who don't produce documents that are clearly relevant and should not be an issue. Those are thoughts that I have.

Richard Bogoroch [00:20:23] Thank you. Let me just add to that, of course, I'm a proponent of mandatory case management. For every case, if there was mandatory case management about almost 25 years ago, I thought the system was very effective, I thought it enabled cases to move very effectively, and enforce counsel to look at their files and to move their files, both plaintiffs and defendants counsel. So we should go back to a system of mandatory case management, and especially in cases, medical malpractice litigation, these cases are complex as a man, as we all know, they're risky, they're very expensive. And they generally take a long time, case management will be a tremendous boon to medical malpractice litigation in this province. But I think there should be compulsory case management, as Heidi said to, we should have in a civil justice system, what they have in the commercial, and commercial in commercial litigation, they have a commercial court, which is one of the greatest innovations in this province, there should be a civil court, where you go certain times of the week for routine matters and can be done virtually, where there's a judge's sign, and we'll try and resolve matters, that will take less than 15 or 20 minutes, for example, scheduling, production discoveries, timetable, mediation, and you would find, you would find that the system would be much more efficient. But it's hardly pointed out. There has to be a complete and thorough review of the rules, how we do things, how we can do things better using technology. And I'm sure people are thinking about it. What I'm saying is not novel, I'm sure people are both of you know, and in the government and judiciary are thinking carefully about how to make civil justice much more accessible.

Greg Hudson [00:22:14] People are going through some of the hardest times of their life. And it's complicated, and it takes a long time. Why is it so important to be transparent with your clients?

Richard Bogoroch [00:22:25] I'm going to just start then I'd like Heidi to provide her comments as well, because this is something which is very important to both of us and to our entire firm. We lawyers exist to serve our clients. It's their cases that we have the privilege of litigating on their behalf, it is important that they can be kept informed of developments with their case on a regular basis. We strive to do that each and every day with our clients. It's important, they have the right to know they have the right to get salient documents, we give our clients of course, copies of the pleadings, Statement of Claim, statement, defense, we give them medical reports, we obviously they get copies of our mediation summaries. We try and keep them informed as thoroughly as we can. And we because we think it's part and parcel of being a lawyer.

Heidi Brown [00:23:11] Knowledge is power. And the more people know about their case, the more they feel empowered. And as you as you rightly pointed out, Greg, when people are involved in a medical malpractice case, it has a devastating emotional impact not only on them, but on their families, they have psychological issues, they're contending with anxiety, depression, financial, serious financial concerns, perhaps even guilt over being unable to provide for family members, there's a lot going on a lot a range of emotions that run the gamut. So we feel that it's absolutely vital that we not add to that turmoil and anxiety and stress that the clients are going through by keeping them in the dark about their case, they really have to know what we're what stage we're at, do we feel we actually have enough evidence to make out a case? What were sometimes it's very difficult to find the appropriate expert who can look at the case, every step of the way, they must know where we are at where we see the case. You know what, what more we might need to do to advance the case through the system, and sometimes breaking the difficult news that we don't think that we're going to be able to make up the case which is very difficult and it's hard thing for us to have to break that type of news sometimes and sometimes you have to do it. But as I said knowledge is power and knowing relieves and reduces tension and anxiety and stress so that people can deal with the things that they have to deal with in their lives.

Greg Hudson [00:24:59] Thank you so much. for being with us here today, it's always a little heavy talking about medical malpractice but thank you for the work that you guys do.

Richard Bogoroch [00:25:06] Thank you so much.

Heidi Brown [00:25:08] Take care.

Greg Hudson [00:25:09] My name is Greg Hudson for Canadian lawyer. Have a great day.