My name is Brian Goldfinger. I’m a personal injury lawyer.
My law firm, Goldfinger Injury Lawyers, represents injured accident victims, disability claimants and their loved ones across Ontario.
We have meeting offices in Toronto, London, Peterborough, Kitchener-Waterloo, and soon to be Owen Sound too! More on our expansion to Owen Sound in days to come.
Recently, I attended at a private mediation on very serious car accident case in London, ON. In dispute was everything under the sun including but not limited to:
- Liability (whose fault was the car accident)
- Damages (how bad are the Plaintiff’s damages)
- Causation (are the Plaintiff’s damages directly attributable to the subject car accident)
- Income loss & loss of competitive advantage in the workplace
- Past and Future Care Costs
- Attendant Care Costs
- Housekeeping & Home maintenance costs
- Are the Plaintiff’s injuries catastrophic?
- What is the value of the Family Law Act Claims?
- Will the injuries meet the threshold?
- If so, will those injuries surpass the $37,983.33 deductible for pain and suffering claims general damages under $126,610.07
- Payment of Non-Earner Benefits
- Payment of Attendant Care Benefits
- Which disbursements are assessible, and which aren’t?
- How much interest is owing and at which interest rate?
- What is the applicable discount rate for payments made in to the future?
- What are the appropriate set offs which the tort insurer and accident benefit insurer are entitled to; if any?
This is a long laundry list of issues which needed to be dealt with at mediation. If these issues were not resolved at mediation, then they would all be issues at Pre-Trial and eventually Trial.
The fact that there were 5 parties at mediation, along with 4 cross claims and one counter claim didn’t help matters either.
An experienced personal injury lawyer who handles serious car accident cases deals with these issues routinely.
But in all of the fighting and arguing between lawyers, we risk loosing sight of what really matters: the injured accident victim. It’s their case. They are the one who got hurt. They are the ones living with the pay on a daily basis. They are the ones who have to go to bed, and wake up in the morning living the effects of the car accident.
The term “dehumanize” was an interesting term introduced at mediation to describe the litigation process for car accident claims in Ontario. The term dehumanize is defined as to “deprive of positive human qualities” or “the process of depriving a person or group of positive human qualities.”
I can think of no better description of the litigation process for personal injury cases in Ontario.
The injured Plaintiff did nothing wrong. They were simply in the wrong place at the wrong time.
Insurers dig deep in to that person’s past in order to expose their past health issues, character flaws and demons in the closet. It’s their hope that by discrediting the Plaintiff’s personal medical history and character, they will bring their credibility in to question so that a Jury will not side with them when it comes to judgment.
Even if the Plaintiff is viewed as credible, it’s still never good enough. There will always be issues for an insurer in dealing with their case.
Take the defence medical reports. The insurer will retain a variety of experts to say that the injured Plaintiff is not as injured as s/he appears to be. The counter these experts, the Plaintiff personal injury lawyer will retain experts of their own to rebut those expert reports and say the exact opposite.
It makes you wonder how two doctors with very similar medical training and experience can have such differing medical opinions…..It’s certainly possible. But the rate we see these differing opinions in car accident and other personal injury cases really makes you wonder. I can often correctly guess what one expert’s diagnosis, prognosis and conclusion will be without reading the report.
Once the Plaintiff is seen by the medical expert; that’s it. There are no follow up appointments to see how they are doing or to follow up on their treatment recommendations. It’s an in and out process.
Then the lawyers will ramble on about what Dr. X said vs. Dr. Y vs. Dr. Z. All have radically differing opinions about the Plaintiff and his/her injuries.
Then the lawyers will ramble on about how juries hate personal injury cases and aren’t generous. An insurance lawyer will tell you that juries are stingy and don’t like awarding money to people. Insurance lawyers will also rave about juries because juries aren’t allowed to be told about the $37,983.33 deductible for pain and suffering for car accident cases. It’s easy for a defense lawyer to ramble on about “the deductible” whereby the insurance company gets $37,983.33 secret credit that I can’t share with the Jury and can’t mention at trial, otherwise a mistrial will be declared.
All of this information is new, or relatively new to the Plaintiff. All of it doesn’t seem to make any sense either. Why is the insurer entitled to a $37,983.33 secret credit? Why is this case based on what one doctor ‘s opinion who was paid thousands of dollars by the insurer for that opinion; who only saw me once for a couple of hours and produced some boiler plate report they have used in countless other cases?
The process seems to have little to do with the injured Plaintiff. Instead the focus shifts to what the hired gun experts opine, along with how the threshold and deductible aka the secret credit applies, along with any legal set offs which the insurers are entitled to.
It’s easy to see how an innocent injured accident victim can feel like an extra without a staring role in their own lawsuit. This dehumanization needs to stop. But how? That’s a very good question which I believe can be traced with the difficulty and delay for a Plaintiff to have their day in Court, along with the increasing complexities of accident benefits, and differing definitions of disability for benefits and general damages in Ontario.
For each benefit or head of damage, the injured Plaintiff needs to meet that burden of proof. And to do this, the injured Plaintiff needs to secure the opinion from a doctor to show that the medico-legal definition is met. Hence the conundrum.
There are mechanisms under the Courts of Justice Act with respect to limitation on the amount of expert witnesses each party is allowed to call; but this has been usurped by the Courts given the complexity of modern day personal injury litigation.
Over the course of a serious personal injury case, a Plaintiff will encounter a plethora of occupational therapists, physiotherapists, doctors, social workers, psychologists, psychiatrists, surgeons, rehab support workers, speech language pathologists, and the list goes on….
At the end of the day, these cases should come down to a few simple questions where liability and causation are not in question. Is the Plaintiff hurt, and how can we fairly compensate this Plaintiff for their accident related damages/losses. To do otherwise is to continue the dehumanization process of modern personal injury litigation in Ontario.