Know your worth and don't accept a lowball offer, lawyers advise
This article is part of a series addressing popular topics and questions that clients and the public may have about the legal profession.
The COVID-19 pandemic launched a flurry of litigation against nursing homes where residents were sickened or died from their COVID infections; those cases are still working their way through the courts. But the principles of successfully settling personal injury – and wrongful death – cases remain constant. Here’s what plaintiffs need to know, and personal injury lawyers advise.
Read more: Chasing justice, not ambulances: 2021 Top Personal Injury Boutiques
Talk to a lawyer first
Before initiating a personal injury claim, speak to a lawyer first. For some types of claims “it may not make economic sense to hire a lawyer,” says John McKiggan, who practises personal injury law with McKiggan Hebert Lawyers in Halifax. If a claim is worth only $15,000 to $20,000, for example, a plaintiff may be able to negotiate a resolution on their own that will keep that money in their own pocket.
However, “I do think every single person who has been injured or suffered a loss due to fatality should talk to a lawyer, if only to find out what their legal rights … and the time limits are” in order to make fully informed decisions, he says.
Know your worth
At the start of the negotiation process, insurance adjusters may offer a “take-it-or-leave-it” opening offer for your injury’s settlement, notes McKiggan. Not being able to provide the right answers to the defence’s questions “could result in a settlement that’s ultimately insufficient in terms of truly covering all of the incurred costs associated with your injuries,” McKiggan writes in “Five Tips for Negotiating the Best Personal Injury Settlement Possible.”
Plaintiffs and their counsel must also evaluate whether a case is worth pursuing.
“It's important in every case -- whether it’s medical malpractice, car accidents, slip-and-fall -- before you engage in litigation, what you think the [value of the] claim is going to be,” McKiggan tells Canadian Lawyer, “because that is going to drive a decision about whether it makes economic sense to invest tens of thousands of dollars in experts, and potentially hundreds of thousands of dollars in time.”
A medical malpractice claim will cost much more in disbursement fees to experts, for example, and so a claim that might be financially feasible for a car accident may not be for an adverse medical incident.
Prepare the case as if you’re going to trial
Although ninety-five per cent of personal injury (at least outside of medical malpractice) and wrongful death cases settle rather than going to trial, any lawyer taking one on should “prepare the case as if it is going to go to trial,” says Patrick Brown, a personal injury lawyer at Orlando McLeish LLP in Toronto. “If you prepare the case, at the beginning, with that attitude in mind, you will likely find yourself and your client in a much better position to resolve the case.”
That will involve spending money to gather information, whether through hiring a private investigator, or having an engineer visit the scene of the incident. “You want to gather as much information as possible as early on as possible,” he adds; memories can fade and evidence disappear over time. “Very early on, you're going to have to expend money on investigations with private investigators and engineers, and start accumulating your evidence to prove your case for liability.”
Substantiate your claim
As the personal injury case moves on, a plaintiff will also have to prove damages, which means at a certain stage, money will need to be invested on medical legal experts, be that a neuropsychologist, neurologist, orthopedic surgeon, neurophysiatrist or future care expert. All this will provide plaintiffs and their counsel with ammunition; without it, “defence will know it, and you’ll get 25 cents on the dollar” being asked for, says Brown.
“If you don’t prepare a case, you won’t get a reasonable or fair resolution from the other side.”
Understand the statute of limitations
Although the general public has some understanding that there’s a time limit to bring a claim, “I don’t think there’s a good understanding that the statute [of limitations] is potentially as short as two years,” says McKiggan. The limitation period to bring a fatality claim in Atlantic Canada is one year, and for claims against the government or municipalities it can be as short as six months.
In “the vast majority of cases,” where someone has been seriously injured or suffered a loss due to a fatality, it can take months if not years for that person “to process the effects and impact, and come to terms with what happened, before they finally turn to the question of why this happened, or how it could have been prevented. I routinely turn away cases because people have missed the limitation period.”
Know how medical malpractice cases differ
Evaluation in medical malpractice cases is quite different than in motor vehicle accidents, McKiggan says, whose practice is primarily in medical malpractice. “Liability is usually very easy to determine in car accident cases; at least here in Atlantic Canada, 90 to 95 per cent of car accident claims are resolved in advance of trial, whereas in medical malpractice cases it’s almost the opposite.”
The Canadian Medical Protective Association (CMPA) – the membership-based, not-for-profit organization that provides legal defence and liability protection for physicians in Canada -- settles only about 20 per cent of claims brought against doctors every year. In a medical malpractice case, “there is an 80-per-cent chance that you could end up in trial,” and more than 90 per cent of trial decisions come down in favour of the doctor, McKiggan adds. “You have to assume you’ll have significant hurdles to overcome in establishing liability and causation before you even get to the determination of quantum.”
Medical malpractice cases carry a significant level of risk because the plaintiff must prove a breach of standard as well as causation through the use of medical expert opinion, and there can be a lot of competing opinion as to whether there was a breach of standard and whether it was a cause of the person's death or injury, Brown says.
Those competing experts can add “a huge element of risk that might not be determined until someone goes to trial. … You should be very careful going into those cases without having the right experts in your corner.”