Law Times

PAGE 6 COMMENT Law Times Group Publisher . . . . . . Karen Lorimer Editorial Director . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . .Kendyl Sebesta Staff Writer . . . . . . Michael McKiernan Copy Editor . . . . . . . . Katia Caporiccio CaseLaw Editor . . . . . . Lorraine Pang Art Director . . . . . . . . . Alicia Adamson Account Co-ordinator . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . Derek Welford Advertising Sales . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . Sandy Shutt ©2012 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Program set expectations too high I s Justice on Target a waste of time? Given that it has shown some positive results provincially, the pro- ject that aims to decrease the number of court appearances and days to dispos- ition by 30 per cent certainly has some value. But as Law Times has shown on page 1 this week, the project is defi nitely a case of setting expectations too high. Former attorney general Chris Bent- ley heralded Justice on Target as an ef- fort that would dramatically improve the justice system by speeding up court processes. But as a review of the project has demonstrated, it has largely been off its mark at several Toronto courthouses. A major issue has been a lack of resources to support the project. As the review noted, Crowns in particular have complained about the absence of resour- ces to make the project happen. Bentley, of course, was clear in his initial com- ments on Justice on Target that he wasn't going to be spending new money on it. Instead, he said the project was about revamping the way things work in the justice system in order to do them bet- ter and more effi ciently. It appears he was mistaken in proclaiming he could achieve dramatic results on the cheap. On the one hand, his arguments are laudable. So often, governments announce programs that achieve medi- ocre results at a high cost. Th rough Justice on Target, Bentley aimed to do things better through the elusive process of fi nding effi ciencies. While it's possible that court staff — who according to the report are obviously resentful at having to implement the project without new resources — are holding back on partici- pating fully in it, it's also true that few governments ever fi nd promised effi - ciencies without causing negative eff ects on the services they provide. Of course, rather than declaring that the government would implement the program with no new money, it perhaps would have been wiser to say it was will- ing to allocate resources to areas where they were necessary in order to achieve the project's goals. One obvious area is technology. As the report noted, part of the challenge in implementing Justice on Target was the justice system's antiquated technological resources, an issue that anyone who works in or deals with the courts would be aware of. If the govern- ment wants to do a better job of moving cases along more quickly, investing in better systems is an obvious solution. Overall, then, there's nothing in- herently wrong with Justice on Target. Instead, it's an example of the govern- ment setting its sights too high with- out carefully identifying what was ne- cessary in order to achieve its goals. — Glenn Kauth Medical negligence litiga- tion involves signifi cant stress and expense, especially since reputations are on the line as is just compensation for the in- jured. Th at's why it's so discourag- ing to see lawyers playing games, driving up costs, and delaying just dispositions in medical neg- ligence actions. Making the situ- ation worse is the fact that public taxes fund such tactics. Regretta- bly, that's what transpired in Orn- stein v. Starr. Th e plaintiff , Sophie Orn- stein, was 20 months old when she underwent surgery to rem- edy a painful condition known as trigger fi nger on the baby fi n- ger of her right hand. But there was one problem with the sur- gery: the surgeon conducted the operation on the right thumb rather than the baby fi nger. According to the statement of claim, this error caused scar- ring and internal damage to the thumb. It also delayed and com- promised the development of So- phie's motor skills and led to ad- ditional surgery on the baby fi n- ger, as well as pain and suff ering. A clearer case of negligence would be diffi cult to imagine. Time to stop subsidizing doctors' abusive tactics Social But both defendants, the sur- geon and the hospital, denied liability and damages despite the fact that the surgical error was obvious from the content of the day surgery report. Examinations for discov- ery were to take place on Jan. 24, 2011. Ten days prior to that, the surgeon admitted to having breached the standard of care but made no admissions about damages save that the mistake required additional surgery to remedy the trigger fi nger. In- deed, both the hospital and the surgeon continued to deny that the defendants' conduct had caused or contributed to any of the damages asserted. Counsel for the hospital then took the position that it would produce no witness to attend ex- aminations for discovery on its behalf. In counsel's view, the ad- mission by the surgeon obviated the plaintiff 's need to examine a representative of the hospital. Counsel for the surgeon used the same tactic but nonethe- less did produce her client for discovery. Th at discovery didn't go well. Th e surgeon's counsel obstructed the discovery to the point that the plaintiff 's lawyer Short ordered the hospi- Justice By Alan Shanoff terminated the proceedings after 22 questions. Th ere were objec- tions to even the most introduc- tory and relevant questions such as when he had fi rst met Sophie, whether he had examined her hands at that time, and whether he had made any observation of the condition of her fi ngers. Here's what Superior Court Master Donald Short had to say about these tactics: "In a case where the contemporane- ous surgical note candidly and succinctly recognizes that the intended surgery was not per- formed, to deny liability for four years and then force the plain- tiff to incur the costs of prepar- ing for and conducting aborted discoveries and then to incur the costs of this motion would suggest an intentional strategy of delay. Plaintiff s don't have the war chest and endurance of professional defendants." www.lawtimesnews.com tal to produce a representa- tive to attend an examination for discovery, the surgeon to reappear, and fi xed costs at $9,000 on a substantial in- demnity basis. In making this order, Short reminded defen- dants' counsel that "if patients are proven to have been harmed as a result of negligent medical care (or it is admitted that this is the case), fairness must dic- tate that timely arrangements be made to compensate those patients in an appropriate and timely manner. I cannot imag- ine that any defendant would attempt to rag the puck in an attempt to exhaust the injured party's fi nances or spirit." Yet isn't that precisely what took place? What other expla- nation is there for the tactics that attempted to place barriers to the plaintiff s' ability to eff ec- tively and effi ciently pursue the litigation? What makes this even worse is the fact that these silly games led to the waste of taxpayers' dollars. I don't mean the waste of resources in tying up court time to resolve this dispute. Rather, I mean the money used January 9, 2012 • Law Times Thomson Reuters Canada Ltd. 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ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call Karen Lorimer at 416-649-9411 karen.lorimer@thomsonreuters. com, Kimberlee Pascoe at 416-649-8875 kimberlee. pascoe@thomsonreuters.com, or Sandy Shutt at sandra.shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. to fund the Canadian Medical Protective Association. Doctors pay membership fees to the association. Th ey vary from a modest $366 to an expensive $36,000, depending on the phy- sician's specialty and practice. But the Ontario government reim- burses the majority of these fees, meaning that taxpayer funds help doctors retain lawyers to defend themselves in negligence actions. Since taxpayers are pay- ing most of the litigation fees, shouldn't the public have some input into how doctors spend the money? I believe it should and that's why I'm voicing my opinion that I don't want public tax dollars used to help defence counsel fund abusive tactics. If taxpayer funds are subsidizing such tactics, perhaps the provin- cial government ought to scale back, if not eliminate, its reim- bursement of those fees to the association. Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e- mail address is ashanoff @gmail. com.

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