As a healthcare professional, you may know a former patient like Mary [see Mary’s story below] who was forced to stop treatment despite the obvious need for more care, therapy, or diagnostic tests. Sometimes, funds run out even when the legal team fights hard. However, as in this example, sometimes lawyers neglect or fail to properly represent the client’s interests, when a better outcome may have been possible. In these cases, the client might recover more funds by suing their lawyer for professional negligence.

Mary’s Story: Post-Concussion Symptoms

Mary was struck from behind at a stop light. At the time, she was turned towards the passenger side to adjust her toddler’s booster seat. She was initially diagnosed with WAD 2 and various soft-tissue injuries and discharged without further investigation. Luckily, her daughter was not injured in the collision. Mary was categorized under the MIG, and soon reached the funding limits, although she was exhibiting a host of post-concussion symptoms. Her healthcare providers recommended additional treatment and investigation for a possible mTBI, but the AB insurer refused to fund these treatment plans. 

Mary’s lawyer accepted the initial diagnosis, echoed by Mary’s family physician on her OCF 3 (Disability Certificate) as most likely. He viewed her complaints of evolving symptomatology as the normal reaction to trauma of an elderly client with a tendency to fixate on her medical conditions. He started working the phones with AB and the defendant’s insurance adjuster, seeking a quick resolution of Mary’s claims without issuing a Statement of Claim. In this way, he hoped to maximize his own contingency fees without investing resources into the file. He did not review Mary’s medical records in detail and did not request updated and additional materials after her rehabilitation began. 

The lawyer negotiated proposed settlements with both insurance companies, agreeing with the defendant that the claim was mostly “nuisance-value.” He joked at the time that his client was certainly a nuisance, and he would be glad to be rid of her. 

Although he did not base his proposed settlement numbers on Mary’s potential long-term impairments and losses or on a review of similar claims, the Lawyer confidently presented the proposed settlements to Mary. He claimed that they had been provided by the other side (without mentioning his own role) and explained that this was both normal and a good thing for her. Mary, a trusting soul, accepted Lawyer’s advice without question – in the long run, settling the claim now would result in a similar payout without the hassle and uncertainty of a lawsuit. In fact, he explained that she might not recover anything if the lawsuit went to trial and she could end up owing the defendant money! 

After the settlement was complete, Mary used the money to continue rehabilitation with her OT and physiotherapist. Her physical and cognitive function declined rapidly over the next several months, and she quickly exhausted the settlement funds. Unfortunately for Mary, her recovery was derailed by lack of funding, and she became dependent on relatives for care and support. 

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What does “Reasonably Competent Lawyer” Mean in Canada?

In Canada, lawyers must meet the “reasonably competent lawyer” standard established by our Supreme Court. This means they must bring reasonable care, skill, and knowledge to the performance of the professional services they undertake on our behalf. The courts do not expect lawyers to be perfect – errors and mistakes can happen. So long as the lawyer acted with the care, skill, and knowledge expected from them, and the client was properly advised during the lawsuit, mistakes that lead to poor results do not equal professional negligence. 

On the other hand, in Mary’s case, it seems clear that her lawyer should have taken her complaints more seriously and resisted the “easy money” opportunity. 

For instance, when a whiplash victim states that their head was turned sideways at impact, there is a possibility of axonal shearing and coup/contrecoup injury to the brain. Once Mary began reporting concussion symptoms, her lawyer should have listened to her and her healthcare providers, pushing for her removal from the Minor Injury Guidelines (MIG). In the face of denied treatment plans from the AB insurer, he should have commenced a LAT dispute and arranged for ongoing treatment and assessments, to be paid on or before settlement. The reports and clinical records resulting from this more thorough AB strategy also can create evidence in support of the client’s negligence lawsuit, bolstering future settlement arguments.  

At best, it looks like the Lawyer failed to bring reasonable care, skill, and knowledge to his representation of Mary. At worst, he had a conflict of interest, and chose his own best outcome at the expense of Mary’s health and the fair compensation she might expect to receive if her brain injury caused permanent impairments. At a minimum, he should have advised her about his strategy and the reasons behind it before engaging in settlement talks. At all times, he should have made it clear that the decision was hers to make, and that he was only providing options and his insight. Because he negotiated without her input or consent, he at least should have suggested that she seek independent legal advice prior to accepting the “nuisance-value” settlement. He definitely should not have belittled his client to the other side. 

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Healthcare Providers and Law Firms Can Advocate for our Patients and Clients

Like healthcare providers, law firms are supposed to advocate for our clients to the best of our ability. We often must make decisions for their recovery and future well-being that they are not capable of making themselves.  Therefore, we owe it to these clients to bring all of our expertise, compassion, and commitment to the table when their insurers try to deny or limit treatment and assessments necessary to their immediate and long-term health. 

If you think a client’s needs are not being met by their lawyer, the prudent thing to do is arrange to discuss the file in a non-antagonistic way. It might turn out that the lawyer is doing everything reasonable to access additional funding but has been shut out by the insurer.  The client’s file might have slipped through the cracks inadvertently or been delayed pending further medical information or because of scheduling complications. 

In many instances, engaging the lawyer in this way acts as a stimulus to renewed activity for the client. While it is not advisable to challenge the lawyer directly, you can be a strong voice on the client’s behalf, making them aware of the possibility so that they can either address it with the lawyer or seek new legal representation. 

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Reasonably competent lawyers and their team members will communicate with their clients regularly, keeping them updated on the progress of their lawsuit or accident benefits claim. At Campisi LLP, we take the time to communicate all important information to our clients and seek written consent or confirmation before taking any significant steps in the litigation. We make sure they understand their options fully so that they can make informed choices up to and including trial or settlement negotiations. 

If any of your car accident patients remain unsatisfied with their lawyer’s handling of their claims, or if their lawsuit or AB file has or will be settled and it looks like their lawyer might have been negligent on their behalf, we are pleased to offer a free, no-obligation consultation to review their files and help them understand their options. As always, we appreciate and take seriously the trust you place in us with your kind referrals. If you have questions about this or other topics, please do not hesitate to contact Cesar Carranza, by clicking here.