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Posted On: March 30, 2011

Brain Injury Claims: Female athletes more susceptible to brain injury

This is interesting. The Globe and Mail has reported that researchers have discovered that women are more susceptible to sports related concussions than men.

The problem is that most "return to play"criteria are based on research on male athletes. This may result in injured female athletes being returned to play before they are fully recovered, resulting in a greater chance of multiple concussions and long term brain damage.

Thanks to my colleague Bruce Stern for the heads up on the article.

Posted by John McKiggan | | Email This Post

Posted In: Brain Injury , Head Injuries , Personal Injury

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Posted On: March 29, 2011

ThinkFirst Brain Injury Awareness Video

ThinkFirst Canada is a nonprofit organization dedicated to preventing brain and spinal cord injuries.

They have released a new educational video about concussions in hockey. But the medical issues apply to all sports.

This video should be required watching for ANY parent that has children playing minor sports.

It tells you what the signs and symptoms of a concussion - brain injury are and what to do when you see them.

Please share this with anyone you know who has children playing minor hockey!

Posted by John McKiggan | | Email This Post

Posted In: Brain Injury , Child Injuries , Head Injuries

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Posted On: March 28, 2011

Insurers May Be Using Facebook to Underwrite Policies

Insurers Using Social Media

There was an interesting article in Lawyers Weekly pointing to developments in the United States where insurance companies are using information collected from public social media sites such as Facebook, My Space and Twitter to conduct risk assessments when underwriting insurance policies.

The article indicates that Canadian insurance companies are watching the developments “very closely” according to Mark Kline, a spokesman for the Insurance Bureau of Canada. According to Kline:

“Social networking is used for a variety of purposes, and insurance companies may be able to gain information to set claims and underwrite policies.”

Breaking the Law?

The problem is that collecting information from social networking sites may be against the law, at least here in Canada.

The Personal Information Protection and Electronic Documents Act (PIPEDA) applies to any organization that collects, uses or discloses personal information. The legislation requires the organization collecting the information to obtain permission before collecting and using the personal information.

PIPEDA does allow organizations like insurance companies to collect and use personal information found in some public documents. The question is whether social networking sites like Facebook, Twitter, My Space and personal blogs fit under the public source exception contained in PIPEDA.

Using Facebook to Defend Claims

Insurance companies are already using information found on Facebook to defend personal injury lawsuits.

Social Networking and Personal Injury Claims

Facebook Being Used Against Personal Injury Victims

Posting About Your Car Accident on Facebook? Better Think Twice!strong>

Now they are even collecting information from Facebook even before they agree to issue an insurance policy.

What Should You Do?

If you are planning on applying for a life insurance policy in the near future make sure you delete all of your skydiving and mountain climbing pictures before you send in your application.

What do you think? Do you "Like" that insurance companies may be "checking you out" on Facebook before they insure you?

Posted by John McKiggan | | Email This Post

Posted In: Facebook , Insurance Claims , Personal Injury

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Posted On: March 26, 2011

Expert Evidence and Defence Medical Exams - The Challenges of Scientific Evidence

Expert evidence forms the core of any personal injury claim. In almost every personal injury case the plaintiff must provide scientific evidence, usually if the form of testimony from teatingg doctors and other health care providers about issues surrounding causation of the plaintiff’s injuries.

Personal injury claims often boil don to a so-called "battle of the experts" and the judge or jury is forced to decide which evidence they feel is more reliable or reasonable.

Interpreting Scientific Evidence Challenging

Recently Justice Thomas Cromwell of the Supreme Court of Canada delivered the Macfadyen Lecture on “The Challenges of Scientific Evidence”.

One of the topics Justice Cromwell discussed was the role of the trial judge as a “gate keeper” to ensure the accuracy of the expert evidence presented to the court.

Justice Cromwell specifically expressed concern about the lack of expert impartiality.

“One area of concern has been the lack of objectivity and independence of experts. For example, the Goudge Report noted that Dr. Smith failed to understand his duty of impartiality. He testified that he has received no training or instruction in this regard. Indeed he thought his role was to advocate for the Crown and to “make a case look good”.”

Defence Medical Exams: Hired Guns?

Justice Cromwell’s concerns are well founded. Our court rules allows for so-called "Independent Medical Examinations". Any time a plaintiff puts his or her physical well being at issue, the defendant is entitled to require the plaintiff to be examined by a medical expert (or experts) of the defendant’s choice.

I prefer to call these exams Defence Medical Examinations. While these defence experts are supposed to be impartial, it is clear that some defence experts see it as their job to minimize a plaintiff’s claim.

Case in point is the recent decision of Leslie v. S & B Apartment Holding Limited.

In that case, the plaintiffs suffered serious burns after a fire in their apartment building. They claimed the landlord was negligent in not having appropriate smoke detection and alarm systems in place in the building. The plaintiffs claimed to have suffered from post traumatic stress as a result of their injuries.

The defendant hired a psychiatrist by the name of Dr. Ruben who disputed that the plaintiffs suffered from post traumatic stress disorder as a result of the fire.

The plaintiffs’ treating psychiatrist used criteria established by the American Psychiatric Association documented in the Diagnostic and Statistical Manual of Mental Disorders (DSM).

Defence Expert Makes Up His Own Tests

On the other hand, the defendant’s expert, Dr. Ruben, testified that he did not use the DSM criteria. He testified that he made up his own tests to determine Global Assessment of Functioning when diagnosing patients.

Justice Scaravelli pointed out his concerns with the defence expert’s approach when he stated at paragraph 91 of his decision:

“I find that Ms. Leslie’s preexisting psychological condition was exacerbated by the accident and that she subsequently developed PTSD. As treating psychiatrist, I accept Dr. Fraser’s evidence that Ms. Leslie’s condition was improving prior to the fire. This was the result of prescribed medications and lifestyle changes on her part. In diagnosing PTSD, Dr. Fraser’s GAF score was based on DSM criteria adopted by the American Psychiatric Association. In doing so Dr. Fraser identified symptoms that arose post fire. On the other hand there is no evidence that Dr. Ruben’s own method of determining GAF has been tested or accepted in the field of psychiatry.”

It is reassuring to see the court protecting the interest of plaintiffs and rejecting the evidence of defence experts who simply make up their own tests in order to justify an opinion that is clearly not impartial.

Free Report

I have prepared a report that I provide to all my clients who have to undergo a Defence medical Exam to help them prepare. It's called "Ten Tips to Surviving Your Defence Medical Exam". If you would like a copy, contact me and I will email it to you free of charge.

Posted by John McKiggan | | Email This Post

Posted In: Brain Injury , Car Accidents , Causation , Expert evidence , Experts , Personal Injury

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Posted On: March 22, 2011

Children Should Stay in Rear Facing Seats Longer: Child Safety Experts

Car accidents are the leading cause of death for children age 4 and up. Child car seats have been shown to lower the chances of death in a car accident by 28 per cent compared with seatbelts. They have also been found to reduce the severity of car crash injuries.

Most child car seat manufactures recommend that children stay in rear facing seats until they are 1 year old or 9 kilos as a guideline, before being placed in forward facing seats.

Rear Facing Seats Safer
But after reviewing data from injuries due to car crashes over several years that shows that children in rear-facing car seats are more likely to surivive, the American Academy of Pediatrics and U.S. traffic safety officials have teamed up to release new guidelines that recommend toddlers should sit in rear-facing car seats until age two. If a child under the age of two outgrows the weight limits for their infant car seat, they should be moved to a rear-facing convertible car seat and kept in that position until age two.

The U.S. National Highway Traffic Safety Administration has issued similar recommendations.

Canadian Guidelines Not Clear

In Canada the Canadian Paediatric Society's Injury Prevention Committee Guidelines recommend that parents should only move their children into the next phase of car seat when a car seat's weight or height limits have been exceeded.

"Parents should be encouraged to continue to use a rear-facing seat as long as the height and weight limitations allow..."

Unfortunately this "encouragement" doesn't really provide parents with clear directions as to the safest choice for their child's safety.

Dr. Claude Cyr a member of the CPS committee told CTV News that the re-wording of the AAP guidelines could compel a review of the Canadian guidelines to see if they could be made clearer.

Further Reading:

Car Seat Recall a Reminder to Parents About Possible Dangers to Children

Posted by John McKiggan | | Email This Post | Comments (1)

Posted In: Car Accidents , Child Injuries , Fatal Accidents , Fatal Injury Claims , Personal Injury , Spinal Cord Injuries

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Posted On: March 17, 2011

Brain Injuries: Minor Hockey Players 10x More Likely to Suffer Brain Injuries

Body Checking Increases Risk of Bain Injury

Perhaps this new research should have been published in the Journal of Common Sense (if there was such a thing they probably wouldn't have enough subscribers).

A new study of minor hockey players has found that the incidents of brain injury in 9 and 10 year olds has increased ten times since Hockey Canada decided to allow body checking at a younger age in minor hockey.

I have posted many times about the problems with brain injury due to concussion in minor sports such as hockey, football and basketball. See for example:

Hockey Nova Scotia Recommends New Concussion Policy to Prevent Brain Injury

25% of Junior Hockey Players Suffer Brain Injuries: Ontario Medical Study

Another Study Linking Football and Brain Injury

Ignoring the Problem?

However, it seems that players, fans and officials were turning a blind eye to the problem until recently.

No doubt the high profile given to the injuries suffered by Sydney Crosby has played a part in recent public interest.

Professional Sports Starting to Pay Attention

For example, the NHL has announced details of a new concussion protocol that will require players showing symptoms of concussion to be tested by a doctor before returning the play. Until now, sports trainers would conduct player examinations on the bench during a game.

Last week the National Football League announced that this coming season every team will be required to use the same standard test: “the NFL sidelines concussion exam” to evaluate whether a player has sustained a concussion (or more serious brain injury). [Thanks to my colleague Bruce Stern at the Brain Injury Law Blog.]

What About Our Children?

While the "powers that be" in professional sports appear to be taking steps to protect the athletes that work so hard to entertain us, I have to ask: "Who is looking out for our children?"

Decade Long Study

Dr. Michael Cusimano of St. Michael’s Hospital in Toronto reviewed the records of more than 8,500 boys aged 6 to17 who attended Ontario area emergency departments for hockey related injuries during a 10 year period.

Dr. Cusimano is the volunteer Vice President of Think First Foundation of Canada, a non-profit organization dedicated to the prevention of brain and spinal cord injury.

More than half of the reported injuries (4,460) were the result of body checking!

But the scariest finding was that the risk of a head or neck injury, including concussions increased significantly across all minor hockey divisions.

It is simply common sense that we shouldn’t do anything to unnecessarily increase the risk of injury to our children.

The rule change that allowed body checking for 9 and 10 year olds in the Atom hockey division is simply wrong. It does not increase children’s skill levels. It does not teach them how to “take a hit”. It simply increases the risk of injury and exposes children to serious, potentially life threatening, brain injuries.

Want to do something about it?
Email Sean Kelly who is in charge of Regulations and Legal Affairs for Hockey Canada. Tell him you oppose body checking for 9 and 10 year olds.

Posted by John McKiggan | | Email This Post

Posted In: Brain Injury , Child Injuries , Head Injuries , Personal Injury , Spinal Cord Injuries

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Posted On: March 2, 2011

Nova Scotia Motor Cycle Injury Claims - Helmets Reduce Spinal Cord Injuries

Nova Scotia has had a mandatory helmet law for motorcycles (and bicycles) for many years. But there are some jurisdictions in the United States (Florida and Texas for example) where motorcycle helmets are not required.

easy_rider_peter_dennis_and_jack_on_cycles.jpg

There are "mountains" of studies that prove that helmets reduce the risk of death and brain injury after a motorcycle accident. But opponents to mandatory helmet laws have claimed for some time that helmets increase the risk of spinal injury because of the torsion laced on the neck by a heavy helmet.

But a recent research study published in the Journal of the American College of Surgeons, shows that helmeted riders were 22 percent less likely to suffer cervical spine injury than those without helmets. The study reviewed and mined the National Trauma Databank, looking through information on more than 40,000 motorcycle collisions between 2002 and 2006.

Hopefully this study will finally put this silly argument to rest. There is no legitimate reason not to wear a motorcycle helmet.

The "wind in my hair" advocates claim they are the only ones at risk if they chose not to wear a helmet. But every single one of us has to bear the medical and healthcare costs that serious brain injuries and spinal cord injuries place on our already overburdened health care system.

What do you think?

Posted by John McKiggan | | Email This Post

Posted In: Brain Injury , Car Accidents , Fatal Accidents , Fatal Injury Claims , Personal Injury , Spinal Cord Injuries

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