The Wagners - A Serious Injury Law Firm blog shares Personal Injury stories and opinions relevant to Halifax, Nova Scotia residents. Let us know what you think.

Proving Medical Malpractice and Causation by Inferences

Victor Lewin
Saturday, April 07, 2012

Unfortunately it happens all too often that patients in Nova Scotia, New Brunswick and PEI are injured by a medical error. Medical malpractice cases can often be difficult to prove because the medical/hospital records are not readily available due to the passage of time. An experienced medical malpractice lawyer can still achieve justice on behalf of an injured patient in spite of the destruction of records. An example of this can be seen in a recent case out of the Ontario Court of Appeal.

Litigating the Claims Against the Nova Scotia Home for Colored Children - Part 2

Victor Lewin
Wednesday, March 21, 2012

Two institutions. Both opened in the 1920s. Both funded by the Province. Both with poor conditions and unqualified staff. And both with allegations of serious abuse perpetrated by staff members. But the similarities end there.

When one juxtaposes the situations between the two institutions, the differences in how the allegations have been handled are startling and readily apparent.

In relation to Shelburne, after a few victims came forward, the Province quickly decided to fund an investigation into the abuse. The investigation revealed that residents were abused and the Province quickly agreed to compensate the victims, approximately 5 years after the original complaint was brought with the RCMP.

In relation to the NSHCC, no funds for an investigation were provided, no inquires into the merits of the abuse claims were made and no compensation has ever been provided.

Rather, unlike the Shelburne situation, the sole focal point of the Defendants in the NSHCC claims were to repeatedly apply to the Court to deny the claims on the basis that the victims should have brought their actions sooner. Not to dispute the claims but to use Nova Scotia's antiquated limitations laws to stop the claims. In addition, the abuse victims have had to undergo emotionally painful discovery examinations and answer questions of an invasive nature.

There is another difference between the NSHCC and Shelburne which can be distinguished. The majority of the Shelburne victims were white. The vast majority of the Colored Home victims are black.

The stark contrast between the way that the allegations of abuse at the Nova Scotia Home for Colored Children and Shelburne have been handled lead to serious questions.

Why did the Province fund an investigation for victims in Shelburne but not for the victims of the NSHCC?

Why were people charged in relation to abuse at Shelburne but not in relation to the NSHCC?

What makes the Colored Home abuse victims any different from the Shelburne abuse victims?

Why did the Province agree to compensate Shelburne victims 5 year after the complaint was brought while it continues to deny justice to Colored Home victims almost 10 years after the complaints were brought?

The victims of abuse at the NSHCC believe it is time for the Province to answer these questions.


Litigating the Claims Against the Nova Scotia Home for Colored Children - Part 1

Victor Lewin
Wednesday, March 14, 2012

It is now closing in on 10 years since Wagners commenced litigation against the Nova Scotia Home for Colored Children, the Province of Nova Scotia and various Children's Aid Societies. The Home was established in 1917 and served primarily disadvantaged and unwanted children of African-Canadian descent.

The claims we filed back in 2003 and 2004 were individual lawsuits on behalf of more than 60 former residents of the Home, or NSHCC. From the time that we filed those initial claims up to and continuing today, the Defendants have continued to force our clients to go through obtrusive examinations, submit to providing answers to interrogatories and demands for particulars, motions for summary judgment and other procedures that have only served to delay our efforts to give our clients their day in court.

One must ask themselves why the Defendants are subjecting these victims of abuse to the lengthy and costly litigation process. What makes this case different?

Similar institutional abuse cases, such as Shelburne, were resolved in only 4 or 5 years after the first allegations of abuse came to light. A number of victims of the pedophile, Cesar Lalo, have had their cases heard in Court. However the victims of abuse suffered in the NSHCC continue to be embroiled in litigation nearly 10 years after their claims first came to light.

When reviewing the Shelburne situation, which came to light in 1991, it was approximately one year after the first allegations came to the public forefront that the RCMP investigated and, in fact, laid charges against a former staff member. Compare that to the situation involving the NSHCC when, after the initial claims were filed, the Defendants filed documents which required the NSHCC victims to respond to extensive written questions. Even now, after 10 years has transpired since the first NSHCC claims were filed, there has never been an investigation into the abuse allegations, much less a criminal charge being laid. All these allegations, very strong and very powerful allegations of systemic sexual abuse of the most horrific variety is well documented in the court record and no police department, no police agency, no government agency, nobody in the Department of Community Services, no welfare protection people--did anything, or are doing anything to investigate the case. And you have to ask yourself, why?

In 1993, the Shelburne staff member who was charged was found guilty and was convicted of indecent assault and gross indecency. Within 2-3 years of the first allegations of abuse at Shelburne, a pedophile was convicted. Yet in the NSHCC cases, within 2-3 years, the Defendants chose to contest the claims.

In 1995, more former residents of Shelburne started to come forward with allegations of abuse. Immediately, the Province announced that they would investigate these allegations and, if proven, a method would be put in place to provide justice to those who were wronged. However, the NSHCC victims continue to be mired in litigation, with the Defendants' using all the litigation tools to frustrate the fair and final determination of the truth.

Later in 1995 the investigative report dealing with the allegations of abuse at Shelburne was released. This Provincially funded report found approximately 90 allegations of abuse and the blame was placed with the Government for inadequate practices including funding and hiring. Shortly thereafter, the Province commenced discussions with the lawyers for the victims of the abuse at Shelburne to attempt to redress the wrongdoings. All this occurred within 5 years of the first allegations being made. In the NSHCC cases, the claimants were being subjected to intrusive, invasive and lengthy discovery examinations after 5 years. Why did the Province take the allegations of abuse in Shelburne much more seriously and with more compassion than it has done for the victims of abuse at the NSHCC?

In 1996, 5 years after the first Shelburne allegations became public, a compensation package was put in place for the victims.

With the NSHCC, the Defendants continue to use the litigation tools to deny access to justice.


Nova Scotia Medical Malpractice Case Goes to Trial

Victor Lewin
Tuesday, January 31, 2012

The lawyers at Wagners represented a client in a medical malpractice trial in Sydney, Nova Scotia this month. The claim alleged negligence on the part of medical residents who treated the plaintiff. The residents were newly out of medical school. The medical malpractice lawyers at Wagners alleged that they did not appreciate their own inexperience and limitations before treating the plaintiff. As a result, it is alleged that the plaintiff sustained a tragic injury. She continues to live in Nova Scotia but is severely disabled.

Injuries Resulting from the Negligence of Unidentified Drivers

Victor Lewin
Thursday, December 15, 2011

Car accident victims often become injured as a result of the negligence of a driver who cannot be identified. Fortunately, Nova Scotia, like New Brunswick and PEI, has an insurance regime which grants compensation to such injured car accident victims. When a person is injured as a result of the negligence of an unidentified driver, the person's "Section D" insurance policy becomes engaged.

New Brunswick Injury Lawyers Help Medical Malpractice Victim Achieve Justice

Victor Lewin
Monday, November 07, 2011

A medical malpractice trial decision released last month by the New Brunswick Courts is favourable to personal injury claimants in Nova Scotia, New Brunswick and PEI. It provides helpful guidance on how Courts will assess the complicated issue of causation in cancer cases where the negligence of a doctor did not specifically cause the cancer, but where it caused an increased risk of cancer.