Pyrrhic victories a real risk for medical malpractice clients

This article was created in partnership with Neinstein Personal Injury Lawyers

Against the backdrop of today’s economy, medical malpractice victims run a very real risk of a Pyrrhic victory, warns Duncan Embury, partner and head of the Medical Malpractice Group at Neinstein Personal Injury Lawyers.

“We need to be reflective and responsive to a changing market such that we’re not leaving people in a position where they’ve won their case, they’ve been given an award in their favour, but the award can’t achieve what it was intended to achieve because we haven’t properly taken into account inflation or rising costs,” Embury says.

Lack of resources

Unlike someone who is hurt in a motor vehicle collision and immediately receives Statutory Accident Benefits, a person injured as a result of medical negligence can only access government funded programs until there’s a settlement or verdict in their favour. Immediate access to resources is especially critical in the context of neurological injuries as “there’s a real window in terms of rehabilitative benefit where early, thorough, and comprehensive rehabilitation is the best hope of someone making the best recovery possible,” Embury says, adding this is especially critical when considering peak recovery for injured children.

“If those services aren’t provided in that window, there are long-term implications. The injured person may never get the gains they would have through the rehab process if it had been done in a timely way.”

Skyrocketing costs across the board

Since the COVID-19 pandemic, Canadians have experienced sharp increases on everything from groceries to taxes and gas bills, but the issue is particularly acute when you’re talking about people’s health. One area of medical malpractice cases where inflation has had a drastic impact is when someone’s injuries require adjustments to their home or, depending on the type and severity of their injuries, a whole new home. In those cases they require housing accessibility reports but “by the time the report is issued to us it’s already outdated given the rising cost of everything from construction to real estate, and when you magnify that by the backlogs in the court system such that the case might not get to trial for another two or three years, that report is not very useful in terms of forecasting or predicting the cost of required renovations or a new home,” Embury says, adding that the same premise applies across the board from the cost of attendant care to other health supports or supplies.

“Those things too have gone up so drastically that if we have a report that’s a year old it might not properly reflect what it costs for that injured person, once they’re in receipt of a verdict or a settlement, to actually go out and buy those supports and services they require.”

Swift investigation and prosecution

To mitigate the lack of access to resources for their medical malpractice clients, the lawyers at Neinstein are dedicated to investigating and prosecuting cases as quickly as possible. They also involve case managers or other health providers from the beginning of the case, before any funding for available resources has been secured, to help clients navigate every potential avenue of government funded services. Though they have finite limits, they are better than nothing — but clients often require assistance to properly navigate the process of sourcing and applying for what’s available.

More rarely, in some instances the firm has stepped in to secure rehabilitation while a case was ongoing because the client’s need was so immediate. At Neinstein, those extra lengths tie in to the firm’s commitment to protecting the best interest of every client, in all realms.

“Achieving the best possible result isn’t just about money — it’s about quality of life,” Embury says.

Lengthy timelines also a risk

Though the impact of inflation specifically hasn’t been something Neinstein’s lawyers have had to turn their minds to, in response to the climbing costs it’s become much more the firm’s standard practice to have experts review reports as close in advance to any process as possible to ensure accuracy. If the client requires a different house and the report says the cost of the real estate they need is going to be X or Y, can you still buy that real estate for X or Y or has that number changed?

 “Doing that immediately in advance of any discussion around settlement or at trial is now necessary to at least have the information to make decisions and get proper instructions from the client in terms of what to do with it,” Embury says. “But given what the rules of court require, we may still be stale dated by the time the case actually gets heard.”

The other real risk is how much the markets can move during the lengthy reserve before a trial decision is rendered, and in many cases there’s also a subsequent appeal which is another year or 18 months additional time lag before the injured person actually has the funds to purchase the things the court has found that they need.

Though he hasn’t seen an argument made in those situations seeking to adjust amounts, Embury says it’s something that needs to be looked at further. As timeframes get longer, the issues get more pronounced, and it’s well-known how important every day — and every year — is that someone goes without the supports and services they need.

“When we talk about people who have been injured through no fault of theirs, it’s incumbent on us to try with as much certainty as possible determine what those supports and services are and what they will cost — but it’s also something the system needs to take into account.”

Neinstein Personal Injury Lawyers was named as Canada’s Best Personal Injury Law Firms. Read the full winners here.