Richard Bogoroch, managing partner and Heidi Brown, senior partner at Bogoroch and Associates, speak to Canadian Lawyer
Bogoroch and Associates has been named among the top personal injury boutiques in Canadian Lawyers Annual Survey. Richard Bogoroch, managing partner and Heidi Brown, senior partner speak about most pressing issues facing personal injury law, medical malpractice cases and the history of their firm.
Roselie: [00:00:25:03] Hello and welcome to Canadian Lawyer TV. I'm Roselie Williamson. And for this special episode, I'm joined by Richard Bogoroch, managing partner and Heidi Brown, senior partner at Bogoroch and Associates. The firm has been named among the top personal injury boutiques in Canadian Lawyers Annual Survey. Congratulations and welcome to both of you.
Richard: [00:00:47:20] Thank you very much.
Heidi: [00:00:48:20] Thank you very much.
Roselie: [00:00:50:17] So, Richard, I'll just start with you. What are the most pressing issues facing personal injury lawyers in their clients today?
Richard: [00:00:58:23] That's an excellent question. There are many, many issues facing the personal injury bar. I'll start with a few. And my partner, Heidi Brown, will offer her own insights as well. Number one, the long delay in achieving trial dates. Delay does not argue to the benefit of clients. People require closure. Closure helps their physical and mental well-being, and it allows them to move on with their lives. Today, because of the pandemic. I believe also because of shortages of superior court judges in Ontario. Litigation is delayed. The delay is very frustrating. It's very disconcerting. And it imposes additional strains and stresses on personal injury plaintiffs. So that is one of the most pressing issues. That issue of the delay has to be addressed, and we hope it's being addressed. And we understand that the judiciary is very mindful of these delays. And I understand appreciate that they're working very hard to improve the system and to alleviate some of the delays now inherent in litigation today. There are another pressing issue facing the personal injury bar is the decline in in cases. And the decline has been brought about by a number of factors, one of which is statutory, including the high deductible, which acts as a disincentive to litigation. The other is simply some of the positions taken by insurers in terms of how they're litigating these cases. So these are pressing concerns delay the cost of litigation, which Heidi will speak to, and of course, the legislative changes to the Insurance Act, which have made litigation much more problematic for many, many people who have legitimate injuries. And Heidi is going to talk about that right now.
Heidi: [00:02:55:10] Thank you very much. There are a number of pressing issues, as Richard mentioned, that are affecting the personal injury bar today. And I think one of the ones that Richard alluded to was this issue of the deductible in the context of motor vehicle accident cases. It is a deductible that applies only to car accident cases and not to other types of personal injury. But it's really important to understand that the deductible for injury in 2022 currently sits at $41,503.50. What that means is, and I call it a secret deductible because people, the average person who operates a motor vehicle has no idea that this deductible exists. So you get injured. And when it goes time to assess the pain and suffering component of one's damages, that first 41,000 and change is instantly deducted from the damage award. So, for example, if the court were to order 50,000 for pain and suffering, $41,503 gets deleted, deducted, leaving only 8000 and change for the person to recover. And when that is explained to our clients for the first time we are met with complete and total and utter disbelief and the deductible increases each year for inflation. So if you are involved in a car accident in 2018 and you don't get to trial until 2023, it's not the deductible in place in 2018 that will apply, but rather the deductible that's in place at the time of trial and it will be considerably higher. And the impact on that is that the so many cases, even objectively injured people, their claims for pain and suffering are being shot out by virtue of the operation of the deductible. It's a very significant issue. And and it explains why we're seeing fewer cases, because fewer lawyers are really prepared to take on cases where by the time you get to trial by operation, the deductible, it could, in fact, eliminate the entire award for pain and suffering. So I wanted to expound upon that, to make sure that issue is understood. And it is really diminishing the car accident types of claims that we're seeing getting through to the court room stage with respect to costs of litigation. That is a really significant issue as well. When we litigate cases, the defense is entitled to receive clinical notes and records and other documentary evidence to substantiate a person's injuries and to document the treatment they're receiving. Recent case law, which I understand is under appeal, is is now providing that the plaintiff, the person who's injured, has to bear the cost of obtaining all of those clinical notes and records, at least through to the mediation stage, which is very prohibitive. And there are a lot of lawyers who simply aren't in a position to be able to manage those those expenses. And that requires plaintiffs to look to other cost measures, such as getting insurance to cover the costs of disbursements. Fortunately, our firm, we are we are able to take on cases, on contingency, and we will cover the costs and expenses of all the litigation up to and including trial. And regrettably, the trend we're seeing the profession is that there's fewer and fewer firms who are able to provide that service. And thank goodness that we're not in that position and our clients are able to have their cases dealt with by a firm that's able to be in a position to do everything that's needed to get a case to settlement stage. So those are really the thoughts that I wanted to add.
Richard: [00:06:50:23] The only other thing I would add is this The deductible really penalizes people who've been injured. People have the right to access to the courts because of the operation of the deductible. Most cases today are not going to be litigated. Litigation today in motor vehicle and the motor vehicle area is the exception. Somebody has a case worth $100,000 for pain and suffering by the application of the deductible. It'll be worth 59,000. And if that's all there is and if there's issues of contributory negligence worth even less, so those cases become very modest sized cases. And in the result, it's not economical for many lawyers or law firms to take them on. And the implication or consequence of that is that many people who have legitimate cases are not going to be compensated. And that's for a case for 100,000. If you have a case where the general damages are worth $70,000 after the application of the deductible, they're worth 25,000. Not a lot of firms are going to take on cases worth 25,000, which is essentially within small. Claims court limits. So people who have legitimate injuries because of the way the law has been framed in the insurance Act with a deductible, will not obtain redress. And that is wrong.
Heidi: [00:08:06:21] And I would just like to add one thing, that the rationale for this deductible historically was to keep costs down for insurers. And in turn, those savings were supposed to be passed along to the consumer in the form of cheaper insurance, auto insurance premiums. But I think if anybody wants to take a look at their own premium premiums, it really hasn't played out that way. I don't believe that anyone can honestly say that their car insurance premiums have gone down dramatically in the past number of years. Really? Ask, posing makes you ask and scratch your head and ask yourself the question, what is really the purpose of this deductible?
Roselie: [00:08:47:16] So, Richard, I'm just going to ask you the same question in relation to medical malpractice cases. What are some of the particular issues related to those types of cases?
Richard: [00:08:57:24] Let me start by prefacing my remarks, by saying medical malpractice is the most difficult, complex and costly area of litigation. It requires a great deal of fortitude, the resources to fight these cases and the willingness to take these cases to trial. We have cases really throughout Canada. We concentrate on, of course Ontario, but we've been retained to assist people throughout the country. It's a great honor to represent people who have been the victims of medical or hospital malpractice. They are difficult. The reason they are difficult is because the model adopted by the Canadian Medical Protective Association is to zealously, vigorously defend these cases. Unlike personal injury or property, casualty cases such as slip and falls requires liability cases which almost always settle out of court. The obverse applies with respect to medical malpractice litigation. Many cases, in fact, almost where there's a defensible argument to be made will end up at trial, which means that these cases are very, very vigorously litigated. They're very expensive to run. The cost of expert reports, which are required to prove negligence and or causation are extremely expensive, which means that you must have the resources to finance these cases, which we do on a contingency. We do not require any upfront money even to cover the preliminary disbursements to even determine if there is a case. And then if there is a case, you proceed to discoveries. And then following the discoveries, we will obtain your expert reports. And those expert reports will will, of course, govern the conduct of the litigation. And you can expect that the counsel for the physicians and or the hospital will obtain their own expert reports. And if the matter is defensible, you must be prepared to go to trial. Trials are hugely expensive. Medical malpractice trials will run into the hundreds of thousands of dollars. And if you win, it's more likely than not that the matter will be appealed. So the finality is many, many years away from the time the client retains counsel till the end is many, many years. And unlike property and casualty cases, medical malpractice litigation takes much longer to pursue. The process is longer because of the complexity of the matter. And it's simply and the fact that many of these cases go to trial and delay in obtaining trials is something that is a feature that adds to the delay. When I say delay in obtaining trials, it's just that from the time you seek your trial date to the time you go to trial is likely two years. So from that point, which means the whole process can take five or six years from the time a client retains you. It's a long time to wait for a resolution. And then if you do go to trial and the matter is the plaintiff succeeds, there will likely be an appeal. So the whole process is difficult, it's risky, it's time consuming and expensive, but we believe in it wholeheartedly. It provides access to justice writ large. It is one of the most important things that lawyers can do to help ordinary people obtain access to justice. And access is just becoming more difficult because of the tremendous expense in litigating these cases. And if you lose the case, the law firm will be out many, many hundreds of thousands of dollars of time and disbursements. So it's not a practice area for everyone. It's a practice area for firms with the expertise, the resources to finance and fund these cases and of course, the expertise, skill and willingness to take these cases to trial. But again, we believe what we're doing is extremely important. It provides access to justice to people who need access to justice.
Roselie: [00:12:46:14] Thanks, Richard. Let's stick with you here. Can you please tell us about the history of Bogoroch and Associates and how it came to be?
Richard: [00:12:54:24] Well, we started the firm in November 1999. I was a senior partner at Thomson Rogers. I had been as a student and associate as a partner at Thomson Rodgers since 1981 and became a lawyer there in 83, a partner in 87 and practice at Thomson Rodgers until 1999, and which time I then started this firm. And Heidi Brown and Linda Walensky joined us. We were three lawyers in the inception, and we quickly grew. We are now about 15 lawyers. And our goal was to provide litigation in a very efficient, compassionate manner. We take great pride in what we do. It's a great honor to represent injured victims. We also have tried cases, very, very complex cases. We've tried very complex cases we have handled and continue to handle personal injury area very, very complex injury cases involving brain injury or or significant physical injury and chronic pain. Of course, post-concussion cases or concussion syndrome cases, all manner of personal injury and occupier's liability cases. And we have continue to do so. And of course, we continue to practice a medical malpractice litigation. I can say as well that what is important to us are our values. We are very mindful of the need to for our clients to obtain closure. For that reason, we have a large team of administrative staff, of legal assistance and law clerks and lawyers to help process the work in a way which is efficient and we think productive. We in the personal injury field are able and take pride in that. Many of our cases are resolved within about two and a half to three and a half years, many of them some less. But generally, that's, I would think, approximates the average time from beginning to end to try and resolve these cases, because we recognize resolution is what our clients need. They need to have a settlement. They need to have the peace of mind that goes with the settlement. They need their stress alleviated. And they know and we know that their mental health is improved substantially by having the stress of the litigation eliminated. So that's what we strive for day in, day out. One of the other things I'll mention, Heidi will speak as well is our values. From the time our firm was conceived and from the day we opened for business, giving back to the community has been extremely important. We have established scholarships at Osgoode Hall Law School for the hundreds of thousands of dollars. I think our donations to Osgoode is over 300,000. In total, we've established infant scholarships to McGill University Law School. We've created funding for deserving people who need it, who need the funds to get a legal education. And we have also provided funds for legal aid at Queen's because we believe a legal aid program is vital to the community and vital for the educational experience of of law students at law school. They need to be able to get the experience that comes with working at legal clinics. And in light of government cutbacks, we felt it important to step into the breach and to provide funding to the tune of a $200,000 donation to Queen's Law School to enable the legal aid program to flourish and to enable legal services provided for members of the Kingston community. So we're very proud of it. That speaks to our values as well. But the greatest, our greatest, I guess, I guess satisfaction is derived from helping injured persons and their families obtain just results, fair, appropriate results in a timely fashion. So that while the pain and discomfort and agony of the injury may linger, they know that certain stress has been alleviated and eliminated by a appropriate, fair resolution. So we take great pride in bringing closure to our clients for what they've undergone and recognizing, too, that their mental and physical well-being is enhanced by resolution and we try and make it as efficient as possible. Still, three years to two and two and a half, three and three and a half years to resolve many personal injury cases is still an awfully long time, but we try and work as efficiently as possible.
Roselie: [00:17:18:03] Thank you. Heidi, please tell us a bit about your background in your time at the firm.
Heidi: [00:17:23:16] Thank you for the question. I was called to the bar in 1993 and I spent the first I articled and spent the first seven years of my practice working for the Office of the Children's Lawyer as counsel in the Property Rights and Estates Department. I did litigation. My background is litigation in personal injury and estates for for minors. I came to know, Richard, through some medical malpractice cases that I had been handling in government. And the practice at the time was to retain outside counsel to handle the files that in the event that they were to go to trial. And I came to know, Richard, we worked together on a number of cases. And in 1999, when he was embarking on the new firm, he contacted me and suggested that I consider leaving public life and joining the private practice world. And I never looked back. And I'm now I think we're almost 23 years down the line since that happened. And it was a wonderful change and continues to be very rewarding and stimulating and intellectually satisfying to me as working with such a capable and devoted and caring individual as Mr. Bogoroch. What I would like to add about my work at the firm since since its inception in late 1999, we have grown tremendously over the years and our personal injury group handles cases not only motor vehicle accident cases, as Richard mentioned, but also occupier's liability complex slip and falls that result in serious injury. Long term disability claims often happen as an adjunct to the original injury that people have, and we handle that aspect of their case as well. And sometimes we handle those things in isolation. We will appear at the tribunals for the Canada Pension Plan, disability claims. We handle those types of cases and really complex product liability cases. We've handled many of those over the years. Anything really to do with injury, we feel that we're more than capable of handling and we like to handle complex cases that that challenge us and help deserving people receive a result, obtain a result. The medical malpractice group has also grown in my tenure here, I would venture to say, and Richard can can confirm this, I think we're not the largest we don't we probably have the largest complement of medical malpractice files in Ontario, if not Canada. We have many, many capable lawyers. The department has grown considerably, and we deliver timely, compassionate service to our clients. And I think that's what makes us stand out. We have a large team here, not just lawyers, but clerks, and it's staff who are available. We make ourselves available that really we're all able to contact our clients by email and to respond in a timely fashion. It's important to us that calls are answered timely in a timely way, efficiently, so that people don't have to wait. The process is frustrating and stressful and difficult for litigants, and they have many questions because the law is complex and things happen. They get letters from insurance companies, they don't understand them. And it causes, we know, the mental health impact that we've talked about throughout this interview. Any time a person gets a letter, it really sends them through a spiral. And we want to reduce stress for people. We want to keep the stress, let them transfer that stress onto us so that they can worry about recovering and getting better and we can worry about the lawsuit. It's important for our team that communication is key. When clients have answers, when they understand the process, they feel less, less stressed. And our goal, as always, is to resolve cases quickly, given the delays in the system, inherent in the system, to get cases ready for mediation, not to wait till the last minute to issue a claim and to get discoveries booked and to have the timetables, if necessary, get them fixed by the court. If we're encountering delay from the other side, we are aggressive and assertive in using whatever remedies are available through the chambers application process to get the court to order a timetable to ensure the. Orderly handling and progression of the case. I have I do work in both the personal injury and the medical malpractice side. And it is a joy every day to it's never the same thing ever. One day from the next. It's always a learning process. And one thing that I very much enjoy is mentoring young lawyers and teaching and training. I sat on the board of the Ontario Trial Lawyers Association for nine years and have participated in and presented in many, many programs through through through the Ontario Bar Association, through the Advocate Society. Teaching and mentoring is part of our value system, and all of our lawyers at our firm are encouraged to participate in organizations to present not only to other lawyers, but also in the community, to help educate people to understand what their rights are when it comes to getting injured.
Roselie: [00:23:17:18] Great. So, Richard, I just want to ask you about, given the time and cost involved in cases, what are some of the factors that your firm considers when taking on a case?
Richard: [00:23:29:06] Well, in personal injury cases, we take on generally every type of personal injury case, so long as the in the context of a car accident, we believe that the injury will exceed the deductible and that will be worthwhile for for our clients to pursue that case. We don't want to have them dragged in litigation where they at the end of the day, they're going to get ten or $20,000. So we are particular about the cases. But generally, if there's a significant injury or if there's going to be a prolonged period of unemployment or or inability to work, we'll take on those cases. And certainly in occupier's liability cases, we will take on any case where the injury is significant enough and worthwhile for the client to pursue it. So we're eager to help people who need to obtain justice to obtain redress and compensation for what they've endured in medical malpractice. On the other hand, given the cost of financing these cases or of funding those cases, we are very specific. The dollar value has to be in the hundreds of thousands of dollars. We get numerous calls on a daily basis, on a monthly basis, on a yearly basis. And it is with great regret that we cannot take on cases where the damages would not be assessed. Let's say, for example, less than 200,000 other firms may be willing to take it on, but our basis is that we have so many cases and we're trying to, but there is a limit to the number of cases we can take on because we don't ask our clients for any money up front, not even to cover the cost of the preliminary investigation in a complex medical malpractice case, which could cost ten or 20,000 or sometimes even more, just to get to find out what went wrong and why it went wrong and who may be responsible. So you need you need expert guidance early on in the litigation. We don't ask for any money. So that limits the cases. We take on to cases where we feel that it's economically worthwhile for our clients to pursue. And so we are always triaging the types of cases that we should be taking on. We'll also take on the cases where the damages may not be significant, but where they raise where the case raises a very important legal issue that we think the courts have to weigh in on, have to resolve or or create new law. So we'll take on a number of those cases, because our goal as lawyers is not only access to justice, which is of critical importance, but also to advance the law. And a number of our cases have had impacts on the law in which we're proud. So that's what we try and do in terms of the medical practice and personal injury. As I say, we're happy to certainly speak to everyone who has a claim. We may not be able to assist them with a case if it's not significant enough because of the operation of the certainly the deductible law. And and if the case is a minor injury, then again, it may not be worthwhile to pursue, certainly with a law firm, if the injury is going to be within, say, the small the range of the small claims court of Ontario. So that's really, in a nutshell, the approach we take to case selection. Heidi, is there anything you wish to add?
Heidi: [00:26:36:13] Thank you, Richard. I would only like to add that in the context of personal injury cases and particularly the motor vehicle accident cases, we the threshold and the deductible are important considerations. But we also do look at whether a person is suffered in economic loss with respect to not being able to work or only being able to work part time as opposed to full time or perhaps having gaps in their employment because they're really struggling. We will consider taking on cases where we believe there is a valid and cogent argument to put forward with respect to economic laws, because the threshold concepts and deductible don't apply to that aspect of a claim. Further, if a person's retired but they have significant care costs that they're going to have to incur that aren't covered by any government funding, we will consider taking on those cases. We we are fortunate to be able to provide access to justice and to be able to speak with a person when they first come to the office as to how they they will present, how credibly they will come across if their family doctor is going to be supportive of their impairments and their injuries and if they have a loving and supportive family that are going to also we're always looking at the beginning as to what might happen at the end if a case goes to trial and who might be the witnesses who are going to come to court to support the injured person if at the onset it may not initially at first blush seem like it's going to be a huge case. Sometimes things get worse and we will. That are being retained in those kinds of cases. That was really the the thought that I wanted to add.
Richard: [00:28:24:18] Oh, sorry. One of the questions I was asked is, what's what is our firm like? What is our what are the goals of our firm? I think what's important first of all, I have to say that we don't like talking about ourselves. We're probably one of the few lawyers who don't like tooting our own horn. We really don't. And I was brought up that you never did that. And so these interviews and, and, and talking about us is it creates some difficulty. I'm trying to surmount it. But one of the things I want to mention is this we're very proud of our I call our proactive, very assertive approach to litigation because we believe closure is so critical. We don't want people waiting five and ten years to get a result. So our approach is very client centric, but at the same time very proactive. Here's what we do. Typically, whether it's a car accident, let's use a car accident or an occupier's liability case. As a prototypical example, we generally get retained shortly after the incident. So what do we do? We get we gather the basic information. We look to gather the medical records or an incident report or a police report. And once we have the foundation to issue a claim, we like issuing a claim within with certainly within a year you have a two year time limit to issue a to start a lawsuit. We like starting our lawsuit certainly within the year and frequently in very significant or catastrophic cases within 3 to 6 months. Why do we do so? Because because we try and coordinate the litigation with the systemic delays in the litigation process by issuing your claim will then arrange discoveries within a year to year and a half, at the same time gathering the medical evidence to help us analyze the injuries, to determine if the injuries have plateaued, and to move the case to mediation generally within two and a half years, in catastrophic cases where the claims are going to be well above policy limits, we like settling certainly within a year. And in fatal accident cases, we'll issue a claim within a month or two once we have all the information because there's no reason to delay. The family member has has unfortunately passed away as a result of an accident and the range of damages have been clarified by our courts. So, you know, in each particular case, within reason, what a range of damages would be appropriate. So we believe and what motivates us and what informs our our decision making is to achieve the best possible result. For our clients. In the most efficient time possible. The best possible result varies because there are situations where the insurers will say, okay, we're two years away from trial, we're going to offer you this amount of money. Our goal is always to try and achieve that, but at the same time being, we're recognizing that there is a range of damages and we want to make sure that we obtain the appropriate just fair compensation for our clients. We're very proud of the settlements that we've obtained. We're very proud of the results we've obtained at trial. And we are determined always to strive to get our clients the. There's no such thing as the best because no one can ever determine what is the best. But we want to think. We want we're content. If we get them when we think are excellent, outstanding, superb results. That's what one thing would would characterize our approach. We always strive for excellence. We always want our clients to achieve excellence in terms of their results or the best possible one in the circumstances. Not every case is perfect. We recognize the realities of the case of our clients, the injury, and the sometimes conflicts in evidence between the defense version and the plaintiff's version. So our goal is always to strive for excellence.
Roselie: [00:32:09:09] Well, thank you so much, Richard and Heidi. We're looking forward to what else is in store for you this year. And congratulations once again. I'm Roselie Williamson and thank you for watching Canadian Lawyer TV.