Articles and Publications

  • Failure to Mitigate

    By Brenda Osmond & Bob Kucheran for the Verdict, Issue 153, Summer 2017 - In tort actions a plaintiff who has suffered a loss due to negligence has a "duty to mitigate" the loss; the plaintiff cannot recover from the defendant damages which he could have avoided by taking reasonable steps.

  • Contributory Negligence in Medical Malpractice Cases

    By Brenda Osmond & Bob Kucheran for the Verdict, Issue 151, Winter 2017 -Medical malpractice cases sometimes involve deeply personal issues involving the plaintiff's behaviours and beliefs. As advocates it can be easy to downplay or even entirely overlook the client's responsibility to protect themselves from harm. When you first meet a potential client and consider both the likelihood of success and the potential compensation for damages suffered, you must consider the potential for a contributory negligence defence, which can have a significant impact on the outcome of your case.

  • Does the Standard of Care Require a "Worst is First" Approach to Diagnosis?

    By Natalia Ivolgina for the Verdict, Issue 150, Fall 2016  - Often medical malpractice lawsuits allege negligence related to making a diagnosis.  Is the physician obliged to rule out the most urgent and life-threatening conditions, even if they are statistically unlikely, before arriving at more common and benign diagnosis? In this article Natalia reviews how two recent BC cases have approached this issue.

  • The Effective Use of Medical Literature

    By Lindsay McGivern & Susanne Raab for the Verdict, Issue 149, Summer 2016 - Medical literature can be used in medical malpractice litigation to build your case or undermine your opponent’s case. This article explores both the strategy and procedures necessary to get the most out of the use of medical literature.

  • When Motor Vehicle Accidents and Medical Negligence Collide - Novus Actus Interveniens

    By Brenda Osmond & Natalia Ivolgina, for the Verdict, Issue 146, Fall 2015  - This article discusses the defence of novus actus interveniens in the context of a health care provider as the intervening actor, and review a number of cases in which defendants have attempted to avoid liability through its use.

  • Summary Trials in Medical Malpractice Actions

    By Andrea Donaldson & Lindsay McGivern for the Verdict, Issue 147, Winter 2016 - Summary trials have been supported by Canadian courts as a way to achieve timely and affordable access to the justice system. Unfortunately, they have been used almost exclusively by the defence in medical malpractice cases. In this article, we will discuss summary trial applications in the context of a medical malpractice action, review a number of cases where summary trial applications have succeeded and where they have not, and examine the impact of a recent Supreme Court of Canada decision.
  • Do ties always go to the defence?

    By Paul McGivern & Lindsay McGivern for Lawyers Weekly, February 6, 2015 -  In personal injury cases it is extremely rare for a court to find that the evidence on both sides of a case is truly evenly balanced. While a "tie" must always go to the defence, a true "tie" is unusual. This article will canvass the law related to the burden of proof, and how plaintiff's counsel can prepare their case to ensure that the case is adjudicated on its merits, rather than on a technical determination of the burden of proof.

  • Establishing or Challenging the Standard of Care in the Medical Malpractice Context

    By Brenda Osmond & Paul McGivern for the Verdict, Issue 143, Winter 2015 -  In order to succeed in a medical malpractice case, a plaintiff must prove that the defendant breached the standard of care, that the plaintiff suffered an injury or loss, and that the negligence identified was the cause of the injury or loss. This article will review the law with respect to the standard of care and will provide some tips for counsel regarding how to establish or challenge an existing standard of care.

  • Risk and consequences - Supreme Court shapes law on informed consent, scope of disclosure

    By Paul McGivern & Natalia Ivolgina for The Lawyers Weekly, November 22, 2013  - In 2013 the Supreme Court of Canada considered the law on informed consent in two landmark decisions: Ediger v. Johnston [2013] S.C.J. No. 18, and Cojocaru v. British Columbia Women's Hospital and Health Centre [2013] S.C.J. No. 30. This paper will discuss two often overlooked aspects of the law of informed consent – the physician’s obligation to explain the implications should a risk materialize, and the need for the plaintiff to prove "double causation" in consent cases.

  • Medical Errors: Physician's Duty To Tell The Truth - The Whole Truth

    By Susanne Raab, for the Verdict, Issue 141, Summer 2014 - Medical errors are not uncommon. They occur far more frequently than most people realize. This article will examine the physician's duty to disclose medical errors when they occur, and the consequences of a physician's failure to make adequate disclosure.

  • Michael Bortolotto: A Rebel with a Cause

    By Susanne Raab, for the Business Examiner, October 2014   - Every now and then one encounters an individual who redefines the boundaries of what is possible. I had this opportunity recently when I sat down with Michael Bortolotto, a successful entrepreneur, public speaker, husband, father and individual living with cerebral palsy.

  • Proving Causation in Birth Trauma Cases: Navigating the Twilight Zone Between Factual and Legal Causation

    By Natalia Ivolgina & Paul McGivern for the Verdict, Issue 136, Spring 2013 - The Canadian Medical Protective Association is the primary insurer for Canadian physicians faced with medical malpractice lawsuits. The Association's 2011 Annual Report indicates that out of 894 civil action cases closed that year, 293 settled out of court (approximately one-third). Of the legal actions that proceeded to trial, 13 judgments were rendered for the plaintiff (patient) and 55 for the defendant (doctor). According to Professor Russell Brown most plaintiffs fail in medical negligence cases because they are unable to prove that the medical professional’s negligence caused the plaintiff’s injury. As this paper will examine, this is especially true in birth trauma cases, where proving causation is often the most trying and costly part of the case.

  • Informed Consent: How to Tip the Balance in Favour of your Client

    By Susanne Raab for the Verdict, Issue 137, Summer 2013  - A review of the case law in British Columbia over the last decade reveals that while courts have adopted a less paternalistic and more "patient-centered" approach to informed consent, these cases continue to fail on the causation branch of the analysis. This paper will discuss why these cases continue to fail, and what counsel can do to tip the balance in favour of their clients.

  • Hospitalists - The Evolving Model of Hospital Care

    By Linda Wong, Brenda Osmond & Natalia Ivolgina for the Verdict, Issue 136, Spring 2013  - In the 20th century a patient's hospital care was overseen daily by a dedicated family doctor who heralded the arrival at birth and pronounced passing at death. Today this traditional model of hospital care is fading. This paper will focus on this change as it raises new issues that are almost certain to be litigated in future medical negligence cases.