Law Times

Page 16 June 12, 2017 • Law Times www.lawtimesnews.com require the playing field to be levelled, and this is one poten- tial avenue," he says. "I believe they're all good people who want to help, but when they put on that juror hat, they tend to view the injured party very skepti- cally. I've seen it play out at trial." According to Kris Bonn, a lawyer with eastern Ontario per- sonal injury boutique Bonn Law, claimants also suffer because of the negative view many laypeo- ple have of personal injury law- yers. "We're not coming in with a lot of credibility, thanks to all the advertising people see," he says. Bonn says he would welcome the opportunity to question po- tential jurors on their views. "If we're going to have juries, it's a better idea to make it fair for all parties. Everyone has their own inherent beliefs going in that are not going to be changed over the course of a two-week trial. Parties should know how they have to adapt their case or maybe have jurors removed if they can't judge the case fairly," he says. That's especially true in light of other restrictions placed on the information that plaintiffs' lawyers are allowed to put before the jury, Bonn says. For example, he says, he would like to directly address negative perceptions of personal injury lawyers in his addresses to juries, inform them about the $40,000 deductible on pain and suffering damage awards under $120,000, as well as the limit on past income loss at 70 per cent of gross earnings in tort cases. "If a juror is concerned that the size of an award will affect their own premium, they should know that there are already mea- sures in place to reduce them," Bonn says. "I'm in favour of more transparency. We should be allowed to talk about the whole environment in which de- cisions are being made, and not just the cold, sterile facts in front of jurors." Adam Wagman, a senior partner at personal injury bou- tique Howie Sacks and Henry LLP, says he welcomes attempts to reform the civil jury system. If it is to survive as cases be- come more complicated, he says, something has to change. "I think the majority of us be- lieve in a general sense that the jury is part of the foundation of our system of justice. But on the other hand, our system of justice has to provide timely and practi- cal solutions for litigants," Wag- man says. "In a highly regulated environment like auto insur- ance, it's hard to reconcile those two principles." LT launched an action after seeing a notice on Wilkins' new firm's website about a $6-million set- tlement for one of the clients that transferred with him. While the legal fees collected on the file added up to $1.4 mil- lion, Wilkins claimed his net fees should be reduced by almost $470,000 to account for 33-per- cent referral fees paid out in the accident benefit and tort matters concerning the same client. However, SLS used the LSUC's new rules governing referral fees to argue that both referral fees were unreasonable. According to Akbarali's judgment, an immigration law- yer was originally approached by the accident victim, who in turn referred him to a paralegal who worked at SLS. The paralegal later moved with Wilkins to his new firm. "There is very little evidence before me, and no jurisprudence, as to what constitutes 'fair and reasonable' in the context of a referral fee," Akbarali wrote, not- ing that the rules were not in ef- fect at the time the fees were paid. The judge approved the $95,000 Wilkins paid out to the immigration lawyer, which ac- counted for one-third of the fees collected on the accident bene- fits file, rejecting SLS' suggestion that she cut it to 15 per cent. Despite coming in at almost four times the new referral fee limit, Akbarali wrote: "SLS has failed to prove that the referral fee at 33% was not fair and rea- sonable at the time that it was paid." However, Akbarali sided with SLS when it came to the $372,000 Wilkins paid to his paralegal as a referral fee on the tort file. Using an exclusion in the LSUC's new rules for work "done through the same law firm" in which the referring li- censee practises, she found the payment to the paralegal was "not properly a referral fee but was compensation" because he worked for SLS at the time the referral was made. "Internal referrals may be relevant for assessing compensa- tion of firm members, but in my view, they are not referrals that attract referral fees," she added, ordering Wilkins to pay half of the funds that went to the para- legal to SLS instead. Altogether, the judgment says Wilkins owes his old firm just short of $600,000 in legal fees and payments due under the separation agreement, after off- sets for amounts SLS had yet to pay him. "It is what it is," Wilkins says of Akbarali's decision, adding that he has appealed it. SLS partner James Srebrolow declined an opportunity to comment. Merkur says the cut in the go- ing rate for referral fees is good for all parties except those whose business models depend on re- ferring out work for a profit. "I think limiting referral fees is in the interest of society and also in the interest of lawyers," says Joseph Campisi, principal at personal injury law boutique Campisi LLP. "It is imperative that our goals align with our cli- ents. Anything that keeps law- yers focused on this imperative is welcome." LT personal injury Continued from page 14 Reform welcome Imperative to align goals with clients Continued from page 15 U ndoubtedly, there are rst-rate health practitioners and facilities available in Ontario. But access to exceptional doctors and hospitals does not guarantee that you'll receive exceptional health care. Harmful medical errors, or "ad- verse events," occur in an estimated 7.5 per cent of hospital admissions across the country. When health care goes wrong, what literally adds in- sult to injury is the secrecy surrounding these mistakes. Consider the numerous instances where medical errors leading to disability or even fatality were not adequate- ly disclosed. "Oral cautions" given by the College of Physicians and Surgeons of Ontario (CPSO) to doctors, warning them to deal with serious issues such as errors in prescribing medication, did not appear on the Public Register until 2015. Hepatitis C outbreaks at three To- ronto colonoscopy clinics between 2011 and 2013 were initially kept out of the public eye. As well, the Quality of Care Information Protection Act (QCIPA), which was meant to encourage medical pro- fessionals to share information about critical incidents and health care quality improvement, has been used by some hospitals to bury medical errors. Secrecy surrounding medical errors has been per- vasive and has on occasion resulted in concealment of alleged negligent misconduct. The Ontario Superior Court of Justice recognized that cover-ups occur when Justice Lederman applied the doctrine of fraudulent misrepresentation to toll the limitation period in Giroux Estate v. Trillium Health Centre [2004] O.J. No. 557, afrmed by the Court of Appeal. Justice Leder- man commented at paragraph 40 that "The course of Dr. Harvey's conduct, beginning with lies, and leading ultimately to the falsication of evidence, was done for the purpose of hiding his alleged negligence and also for the purpose of creating doubt in the plaintiffs' minds about the wisdom of bringing a claim." Resistance to the secrecy surrounding medical er- rors has recently emerged, notably within those insti- tutions that themselves rely on "privacy." The Ontario Hospital Association has stated it wants hospitals to know about all complaints against doctors and nurses, Ontario Health Minister Eric Hoskins pushed for better disclosure regarding public health inspections and outbreaks, and the backlash to the QCIPA's effects was palpable. Steps have been taken in some areas to reduce the secrecy. The CPSO launched a transparency project that culminated in the broadening of the scope of publicly available information on doctors, including the addition of oral cautions to the Public Register. There was a review of the QCIPA that led to propos- als for change that were debated in the legislature on March 3, 2016. What remains to be seen is if these piecemeal pol- icy shifts will lead to cultural ones. Regulatory reform will only go so far. That was the problem with the QCIPA in the rst place; the explicit intention was to enable discussion that would improve care and avoid repetition of mistakes, not leave families wondering why their child died. We may be nominally travelling towards transparency, but as we well know, imple- mentation and interpretation are everything. Are we moving towards a brave new world of disclosure, or will we learn, yet again, that old habits die hard? For full references to this article, please visit our website at www.bogoroch.com. Secrecy Surrounds Medical Errors in Ontario Sponsored by By Bogoroch & Associates LLP Personal Injury and Medical Malpractice Lawyers Joe Campisi says 'limiting referral fees is in the interest of society and also in the interest of lawyers.'

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