Fighting the good fight in ‘David & Goliath’ litigation

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When Richard Bogoroch approached her with a job offer, Heidi Brown was ready for a new challenge. After seven years at the Office of the Children’s Lawyer, she could think of no better way to further her passion for access to justice than by training under the tutelage of one of the leading plaintiff personal injury and medical malpractice lawyers who, in late 1999, was launching his own firm.

The two met when the latter assisted the OCL as outside counsel on behalf of injured children. Bogoroch recognized Brown as a likeminded champion for injured clients and invited her to come aboard to help build a firm in that image — and the rest, as they say, is history.

Starting out with just three lawyers and a commitment to excellence in the fields of personal injury and medical malpractice, Bogoroch & Associates LLP has grown to 12 lawyers and counting. Brown, who has been with the firm for 21 years and is now a partner, is proud to have been involved since the firm’s inception.

“We wanted to practice personal injury at the highest level and medical malpractice is certainly that,” she says. “We are all highly motivated people. When you decide to practice litigation, you have to strive to be the best that you can be.”

Bogoroch — whom she calls “brilliant, committed and passionate about the practice of personal injury law” —  runs the firm collaboratively, not in silos. The teamwork model is their preferred way to practice given the  demands of a busy litigation practice, Brown says, adding the firm is a meritocracy — they rely on and support each other and pride themselves on excellent client service and communication. While COVID-19 has made it challenging to see clients face-to-face, regular Zoom meetings, phone calls and email communication with clients has, in many ways, enhanced lawyer-client communication. Brown even gets texts on her private phone now, adding it’s all about being accessible and making sure clients know they’re there for them.

Moving cases quickly and efficiently is also a core value of Bogoroch & Associates — a client shouldn’t have to wait for years after a car accident to get their case resolved. From time to time, Brown says the firm is asked to take over cases where many years have elapsed since the accident and the action has not even reached the examination for discovery stage.

“That is not how we practice law at our firm — that is abhorrent to us,” Brown says. “We aim to  issue a statement of claim within three to six months of becoming retained in motor vehicle accident and general tort claims. We further aim to get all the pieces in place so that most cases settle at a mediation within two to two-and-a-half years. If they don’t have a catastrophic component to them, that’s usually achievable.”

Brown’s practice is diverse and includes motor vehicle accidents, Occupiers’ Liability, long-term disability and product liability cases as well as medical and hospital malpractice cases. She calls medical malpractice “a very David and Goliath type of litigation” as statistically approximately 80% of cases that do go to trial are won by the doctors who are represented by very capable litigators across the country, retained by the Canadian Medical Protective Association. Despite the odds, these tough cases are “the ones that really get my juices going,” Brown says.

“They’re such interesting legal issues and medical issues — you have to be sharp on your legal skills and you’ve got to know the law.”

One of the most critical challenges in these cases is finding medical experts to opine on the issues of standard of care and causation, without which a case cannot succeed. Retaining experts is expensive and also requires a certain degree of skill and expertise to find doctors with the requisite credentials who are prepared to critique the care and treatment provided by their professional colleagues. Physicians must also be educated about the law, and moreover, creativity is also required to “build a case from the ground up in a system that’s weighted heavily in favour of the physicians,” Brown says.

In an access to justice context, medical malpractice has always been difficult for people because litigation is so expensive. A large part of the firm’s value system is practising gratitude, and for Brown working in this area “is about wanting to give back because the system doesn’t have a mechanism for it — there’s no access to legal aid or any plan that finances medical malpractice cases.”

“It’s a big deficit in our justice system that people don’t have the financial means to just get answers, which is often all they really want in addition to the compensation they badly need,” she says. “We are grateful to have the means to provide clients with those answers, with peace of mind and knowledge they were malpracticed against and of course, to obtain for them the compensation they require and deserve. If you’re in a position to give back you shouldn't hesitate — it’s a no-brainer.”

Having been on the board of the Ontario Trial Lawyers Association for eight years, Brown says she takes that role “very seriously as an extension of what I do at the firm.” She enjoys all aspects of plaintiff personal injury, including "obtaining much needed compensation for people in crisis, using my creativity to build a persuasive case on behalf of my client, working with highly regarded and credentialed experts in the medical field and constantly learning both law and procedure to be the best that I can be.”

“I feel strongly this is part of my mission as a lawyer,” she says.“This is the grassroots kind of law that not only makes a difference but also brings meaning to my life.”