Brain Injury Awareness Month

The tournament is one of BIANS's major fundraisers and I was happy to be part of the organizing committee.The tournament is held in June every year as part of Brain Injury Awareness month.

BIANS: Helping Survivors and Their Families

Over the past 20 years, BIANS has helped provide a community of support for survivors of brain injury by bringing together brain injury survivors, family members and health professionals.

BIANS has established a chapter network at the grassroots community-level to provide support and information to survivors and their families.

BIANS is a source of information about the effects of brain injury and has worked to increase injury prevention and awareness of brain injury.

BIANS established Aiseirigh House (now operated by the Moving In New Directions Society) a residential assisted living facility for brain injury survivors, and the Inroads Program; a community-based program for survivors which teaches cognitive skills and strategies in a combination of one-on-one tutoring, workshops/classroom and social settings.

Living With Brain Injury

I have dedicated my career to helping persons with serious injuries receive fair compensation. To get some idea of the effects, and extraordinary needs of brain injury survivors, take a look at this lecture about living with a traumatic brain injury.

How to Make a Donation

If you want to help support BIANS you can make a donation here.

In most public opinion polls we rank just above used car salesman and below politicians when it comes to trust.

I am proud to be a lawyer. I think being able to help people when they are most in need is one of the most important jobs in the world.

But sometimes I am simply embarrassed to tell people what I do.

Here are five reasons why.

Thanks to The Greatest American Lawyer for the link.

The Hydroxycut recall that I posted about 10 days ago has resulted in an investigation by Health Canada.

Adverse Effects Reported in Canada

To date Health Canada has received 17 reports of adverse reactions related to hydroxycut use. The adverse reactions relate to the cardiovascular, respiratory, gastrointestinal, and neurological systems. So far, none of the adverse reactions reported in Canada relate to liver injuries, which were the main cause of the FDA recall.

How to Report Hydroxycut Problems

Health Canada indicates that you can report any adverse reactions that you think may be related to Hydroxycut three ways:

Report online at the MedEffect™ Canada Web site

Call toll-free at 1-866-234-2345

Complete a Canada Vigilance Reporting Form and either: Fax toll-free to 1-866-678-6789 Mail to: Canada Vigilance Program Health Canada AL 0701C Ottawa, ON K1A 0K9

Hydroxycut, a weight loss supplement, has been recalled by the FDA as a result of at least 23 reports of serious liver injuries and one death.

Liver Injury, Heart Problems and Muscle Damage

Hydroxycut is a diet supplement marketed to help people lose weight and burn fat.
In addition to the risk of liver injury, reported health risks have also included heart problems, seizures and a serious type of muscle damage called rhabdomyolysis.

Cause of Problems Unknown

It isn’t clear which Hydroxycut ingredients are causing the problems or whether the product increases the risk of illness for certain consumers. However, the FDA reports that people who have not had any pre-existing medical conditions have ended up needing a liver transplant after using Hydroxycut.

Symptoms

If you or a family member have been using Hydroxycut, symptoms to watch for include jaundice (yellowing of the skin or whites of the eyes), brown urine, light-colored stools, fatigue, stomach cramps or pain, weakness, nausea, and vomiting.

This Hydroxycut recall applies to the following products, which are being removed from the market:
• Hydroxycut Regular Rapid Release Caplets
• Hydroxycut Caffeine-Free Rapid Release Caplets
• Hydroxycut Hardcore Liquid Caplets
• Hydroxycut Max Liquid Caplets
• Hydroxycut Regular Drink Packets
• Hydroxycut Caffeine-Free Drink Packets
• Hydroxycut Hardcore Drink Packets (Ignition Stix)
• Hydroxycut Max Drink Packets
• Hydroxycut Liquid Shots
• Hydroxycut Hardcore RTDs (Ready-to-Drink)
• Hydroxycut Max Aqua Shed
• Hydroxycut 24
• Hydroxycut Carb Control
• Hydroxycut Natural

Ingredients Dangerous

The ingredients include herbal extracts, chemicals and metals which could cause liver damage, even when the product is used as indicated on the warning label.

What Should You Do?

If you have any symptoms of liver injury you should see your doctor immediately. Keep any unused portions of the product for evidence in case you decide to pursue a claim for compensation.

Shaken Baby Syndrome is a diagnosis used to describe injury to the brain, skull and the spine of infants who have suffered severe shaking.

The AAP has recommended using the term: “Abusive Head Trauma”. This diagnostic term more accurately reflects the nature of the injuries suffered by infants. The term also more accurately conveys the nature of the injury. Shaking an infant can cause bruising, swelling and bleeding to the brain which, according to the National Institute of Health:

“...can lead to permanent, severe brain damage or death.”

The fact remains that many members of the public do not realize that it is possible to suffer a brain injury without striking your head. That is one of the brain injury “myths” that I dispel in my article “8 Myths of Traumatic Brain Injury”.

For more information about traumatic brain injury claims, you can contact me to receive a free copy of my book: The Survivor’s Guide to Traumatic Brain Injury Claims: How to Prove the Invisible Injury.

Technorati Profile

Leduc v. Roman is a case out of Ontario. The plaintiff, Leduc filed a claim for compensation for injuries he claim to have suffered in a car accident.

The defendant, Roman, made an application to court for an order to produce the contents of Leduc’s Facebook page! Leduc claimed that, because he only allowed access to his Facebook page to his Facebook “friends”, the contents of his Facebook site were private and confidential.

Roman lost the initial motion to force production of Leduc’s Facebook site. However, Roman appealed and Justice Brown of Ontario's Superior Court issued a decision ordering the plaintiff to produce the entire contents of his Facebook site.

Justice Brown reasoned that:

“...to permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.”

Given the massive popularity of Facebook I am sure that many of my clients have Facebook pages. I am even aware of a couple of my clients who have posted details of their accidents or injuries on their Facebook websites. The clear message from this decision is that plaintiffs who post details of their private lives on a public website risk having all of that information used against them some day in court.

When: Wednesday, April 22 at 7:00 pm

Where: Room 1613 A and B, Veterans Memorial Building

Why: The meeting will start with a chapter-wide plenary session focusing
on Head On meetings and fundraising ideas. After the plenary session attendees are welcome to stay for a Head On meeting in 1613A and a Caregivers/Family Members meeting in 1613B.

More Information

For more information please contact Bev Butler
Phone: 473-6472 or e-mail: DrBevButler@gmail.com

Wrongful Deaths Claims for Elderly Victims

Mr. Miller was explaining how wrongful death claims for elderly victims are valued in the state of Maryland. Defence counsel usually claim that the victim's claim needs to be discounted because, since they were elderly, their life expectancy was shorter than a younger person. Mr. Miller points out:

The “victim was old anyway” argument is offensive and cold…but not, relatively speaking, entirely untrue.

Wrongful Death Claims Different in Canada

But at least in the United States, the victim's estate can make a claim for compensation. As I pointed out last week, in my post Nova Scotia Personal Injury Claims: Compensation for Fatal Injuries , in Canada the victim's estate can't make a claim for the pain and suffering that caused the victim's death!

Fatal Injury Compensation Claims Limited in Nova Scotia

In Nova Scotia and other provinces in Canada, the family of wrongful death victims are limited to a claim for loss of care, guidance and companionship.

If you think it's tough to tell a grieving family: "I'm sorry, but your Granddad's death isn't worth much because he was old..." try telling them that Grandad's estate can't make a claim...at all!

Who Can Make a Claim?

Worse, only certain family members can make a claim for the loss of Granddad's care guideance and companionship and in Canada, those claims typically max out at around 60 thousand dollars.

The Winner Is...

So, to answer the question I asked above, if you are going to be killed as the result of someone else's negligence, at least in the United States your estate (your surviving family members) have a chance at receiving some reasonable measure of compensation for your death.

Here's hoping everyone reading this has a long, happy and negligence free life!

By the way, if you have questions about American personal injury claims, I highly recommend you take a look at Mr. Miller's blog.

I have already posted about how the courts calculate compensation for pain and suffering. But what happens if your family member died from their injuries?

There is no way to truly place a dollar value on the loss of a loved one due to a fatal injury. Law makers in Canada and the courts have struggled with the question of how to fairly compensate surviving family members for the loss of a loved one.

American Claims Very Different Than Canada

Many of us have read news reports of cases in the United States where surviving family members have been awarded huge sums of money for the death of a family member. Unfortunately, the laws in Canada regarding compensation for fatal injuries are very different, and compensation awards rarely reach the levels seen in American cases.

Different in Each Province

Each province in Canada has laws governing claims for compensation for fatal injuries. The laws allow a claim to be made by the family members of a deceased person where his or her death is caused by an intentional or negligent act.

Financial Losses Covered

Originally claims for compensation were limited to the monetary losses suffered as a result of the fatal injury. In other words, the actual out of pocket financial loss resulting from the person’s death.

No Compensation for Grief

The law does not take into account non-financial losses like the grief and sorrow experienced by family members.
Compensation for Loss of Companionship

Currently every province in Canada has legislation that allows certain family members to recover some measure of compensation for the loss of care, guidance and companionship that the deceased family member would have provided had they not passed away.

It is important to remember that each province has its own specific law with special rules governing which family members are entitled to make a claim, how the claims are to be assessed, and the amount of damages that can be recovered.

Who Can Make a Claim?

In any claim involving a fatal injury it is important that you speak to an experienced personal injury lawyer to determine which family members are eligible to make a claim for compensation and to ensure that their claim for compensation is properly calculated.

For example, in Nova Scotia, claims for loss of care, guidance and companionship can only be brought by parents, grandparents, children and spouses (including common law). Siblings (brothers and sisters) are not entitled to file a claim for compensation!

Every Case is Different

The amount of compensation that can be recovered in Nova Scotia depends a great deal on the nature of the relationship and the facts of each particular case. If you are considering filing a claim for compensation for the loss of a loved one it is vitally important that you speak to an experienced personal injury lawyer to ensure that all of the relevant facts and evidence are provided to the court to ensure that you receive full and fair compensation.

Pain and Suffering

One of the heads of damages that the court will consider when awarding compensation is what lawyers refer to as “non-pecuniary damages”. Most people refer to this type of damages as “pain and suffering”.

How Do Courts Calculate “Pain and Suffering”?

There is no such thing as a “Pain-O-Meter”. An injured victim cannot be hooked up to a machine that prints out the financial value of their pain. What a judge does when determining compensation for pain and suffering is use his or her experience and discretion to consider how the injury has affected the victim’s ability to function and how the injury has effected the person's enjoyment of life.

In other words, how have your injuries affected your normal day to day activates; your ability to work; and your normal amenities of life?

Financial Awards in Canada Different than the United States

Many of my clients have read news stories from the United States where injured victims have been awarded millions of dollars (sometimes tens of millions of dollars) for their “pain and suffering” from catastrophic injuries. Unfortunately, those types of damage awards cannot happen in Canada.

Supreme Court of Canada Caps Pain and Suffering Awards

The Supreme Court of Canada has placed a cap on the amount of compensation that injured victims are entitled to receive for non-pecuniary damages for pain and suffering.

In 1978, in a case known as Teno v. Arnold, the Supreme Court of Canada created a barrier to recovery for innocent victims who have been injured as a result of someone else’s negligence. In the Teno case, the Supreme Court ruled that no matter how seriously injured you are the maximum compensation that you can receive for your “pain and suffering” is $100,000.00.

Maximum Award for Pain and Suffering

Taking inflation into account, the cap on pain and suffering awards is currently considered to be slightly more than $300,000.00. But that maximum amount is only paid to the most catastrophically injured victims (quadriplegic, paraplegic, severe brain damage and similar injuries).

Even when plaintiff’s receive damage awards that seem large, they often never see the full amount decided by the judge or jury. Many awards are drastically reduced on appeal. These reduced or vacated judgments are seldom reported by the media.

If you are considering a claim for compensation for pain and suffering it is important to have an experienced Nova Scotia personal injury lawyer assisting you to ensure that you provide all of the relevant information that the courts will consider when assessing your non-pecuniary damages claim for pain and suffering.

The American College of Emergency Physicians has established new guidelines to be used in diagnosing mild traumatic brain injury.

Serious but Undiagnosed Injury

Mild traumatic brain injury has to be one of the most serious, yet undiagnosed health problems in Canada. Unfortunately, the general public has little understanding of what mild traumatic brain injury is and the problem is compounded by a poor understanding by some health professional about the criteria for what constitutes a brain injury.

Each year approximately 700 Nova Scotians suffer a traumatic brain injury. There are up to 5,000 - 6,000 serious car accidents in Nova Scotia and P.E.I. each year. Given the violent nature of car crashes, many of these people will suffer a mild traumatic brain injury, although they may never be diagnosed by a health professional.

No One Knows the Real Numbers!

In their release announcing the new guidelines, the College of Emergency Physicians states:

“The real incidents of traumatic brain injury are unknown since many patients who sustain an injury never seek medical care.”

I fully support any initiative that makes it easier for health professionals to determine when a patient has suffered a brain injury. But more effort needs to be placed on educating the public about the causes, and symptoms, of mild traumatic brain injury.

Thanks to Bruce Stern at the Traumatic Brain Injury Law Blog for bringing the guidelines to my attention.

Related Posts:

Ban Fighting in Hockey to Prevent Brain Injuries – Deaths: Expert Panel

NHL Hockey Stars - Doctors team up to study concussion/brain injuries

Traumatic Brain Injury: Myth # 1 - You have to be knocked out to suffer a brain injury

Traumatic Brain Injury Claims: Myth #2 You Have to Hit Your head to Suffer a Brain Injury

What is a Mild Traumatic Brain Injury?

"Minor Injury" Cap Isn't Unconstitutional

As I explained in a previous post last month: “Minor Injury” Compensation Cap Constitutional, Justice Goodfellow determined that Nova Scotia’s legislation that places a cap of $2,500.00 on the compensation that innocent accident victims can receive for their pain and suffering does not violate the Canadian Charter of Rights and Freedoms.

Accident Victims Not Sterotyped or Discriminated Against

In his decision of January 12, 2009, Justice Goodfellow ruled that victims of minor physical injuries were not subject to stereotyping or discrimination. Therefore, the legislation did not violate Section 15 of the Charter, which prohibits discrimination on the basis of a physical characteristic.

Similarly, Justice Goodfellow found that the legislation did not discriminate on the basis of gender or mental disability.

Accident Victims Disappointed - Insurance Companies Happy

Justice Goodfellow’s decision disappointed advocates for accident victims who felt that the legislation was simply a transparent attempt to increase insurance company profits at the expense of innocent accident victims.

The Insurance Bureau of Canada was no doubt very happy about the decision.

However, Justice Goodfellow’s decision of February 9, 2009, is guaranteed to create some consternation amongst the insurance industry.

Is Discrimination Justified?

In his latest decision, Justice Goodfellow provided his views on whether the legislation would survive a Section 1 analysis under the Charter. If the Minor Injury legislation is discriminatory, Section 1 of the Charter can still save the legislation if the discriminatory limits are “justified in a free and democratic society”.

Justice Goodfellow began the second part of his decision by stating that he is certain that he is correct when he ruled that the Minor Injury legislation is not discriminatory. However, given the effort that was put into the hearing by all of the parties involved Goodfellow J. felt that it was appropriate to conduct the Section 1 analysis in case the Court of Appeal differs with his views as to whether the legislation is discriminatory.

Justice Goodfellow conducted an exhaustive review of the evidence submitted during the hearing with respect to the reasons why the legislation was created.

Insurance Industry Pleads Poverty While Profits Increase

Goodfellow J. paid considerable attention to the financial evidence that was presented at the hearing. At the time the Minor Injury cap was introduced, the insurance industry claimed that it was losing money on auto insurance, and needed the cap on personal injury claims to protect insurance profits (and to supposedly lower auto insurance premiums).

Justice Goodfellow determined that the evidence actually showed insurance industry claims costs were decreasing, and company profits were increasing, when the Minor Injury legislation was introduced. Goodfellow indicated that the insurance industry had not provided this financial information to the government when the $2,500 cap was put in place.

His Lordship did not go so far as to say that the insurance industry had mislead the government. (Perhaps the Tory government was just too trusting?)

Goodfellow J. considered the negative effects of the legislation on accident victims who’s claims have been capped.

Minor Injury Cap has Provided Considerable Benefits?

Finally, His Lordship reviewed the evidence with respect to the benefits of the legislation.

He concludes by saying:

“There is no doubt that there has been considerable benefit to the citizens of Nova Scotia in the passing of this legislation.”

Benefits Don't Justify Discrimination!

Justice Goodfellow concludes, at paragraph 108 of his decision:

“Clearly there was no intent in the legislation to cause stereotyping or marginalization. Stereotyping almost always carries a negative, demeaning message that those who are stereotyped are less worthy and possess traits that are not held by decent, law abiding citizens. If, however, it had been established such was a consequence of the legislation, then I conclude the benefits of the legislation fall short of justifying such stereotyping. Given the view I express about stereotyping I am unable to suggest what the Attorney General of Nova Scotia might otherwise have done to overcome the consequences of stereotyping.”

In other words, Justice Goodfellow is of the opinion that the legislation does not discriminate against accident victims. But if it does, the object of the legislation is not one that can be justified in a free and democratic society. Goodfellow’s comments appear to imply that, if the legislation is discriminatory, then there is nothing that can be done to justify the discrimination!

So there you have it, win one lose one. The province and the insurance industry come out ahead on the issue of whether the Minor Injury legislation is unconstitutional.

But Justice Goodfellow sides with injured accident victims on the issue of whether the benefits justify discriminating against accident victims.

No doubt the Court of Appeal will not just be hearing an appeal from the Plaintiffs. I am sure lawyers for the Insurance Bureau of Canada are already drafting their appeal factums.

Traumatic brain injury due to concussion is a leading cause of injury in hockey. An expert panel at the London Hockey Concussion Summit has called for the elimination of high hits and head hits and a total ban on fighting in hockey.

Fighting can Cause Long Term Injury or Death

The panel’s conclusions state:

“Fighting is one of the known causes of concussion, and may result in the related long term complications. Fighting can cause needless death”.

The summit’s chair, Dr. Paul Echlin, stressed that the various recommendations were designed to “serve as a framework for future discussion” and to promote awareness, prevention, recognition and management of concussion in hockey.

Danger Not Limited to Hockey

The danger of concussion is not limited to hockey alone. Football, soccer, basketball, almost any amateur or professional sport can subject a player to forces necessary to cause a concussion. Players, coaches and family members need to be educated about the signs and symptoms of concussion.

However, hockey appears to be the only sport where fighting is tolerated, even encouraged. Until this attitude changes hockey players are going to be needlessly and seriously injured for the edification of the sports "fans”.

Fans Oppose Eliminating Fighting

You can get an idea of the vigorous opposition to eliminating fighting in hockey by taking a look at the comments posted on the CTV News story that reported on the recommendations. More than half of the comments oppose eliminating fighting in hockey.

No doubt the fans who support fighting in hockey will continue to hold that opinion until they, or one of their loved ones, suffers a serious brain injury from being punched out during a hockey game.

What do you think? Should fighting in hockey be banned or is it a necessary part of the game?

Related posts:

NHL Hockey Stars - Doctors team up to study concussion/brain injuries

NHL, Parents Need to be Aware of Brain Injury from Concussion

Traumatic Brain Injury: Myth # 1 - You have to be knocked out to suffer a brain injury

Traumatic Brain Injury Claims: Myth #2 You Have to Hit Your head to Suffer a Brain Injury

What is a Mild Traumatic Brain Injury?

As I have explained in previous posts, Nova Scotia has legislation that places caps on the amount of compensation that persons injured in car accidents are entitled to receive for their injuries.

"Minor Injury" Cap Constitutional

The Nova Scotia Coalition Against No Fault Insurance filed a court challenge seeking to have the “minor injury” cap declared unconstitutional. On Tuesday, Justice Walter Goodfellow of the Nova Scotia Supreme Court based his decision in Hartling v. Nova Scotia (Attorney General). Justice Goodfellow decided that the legislation is constitutional and does not violate the Canadian Charter of Rights by discriminating against accident victims.

A more detailed review of Justice Goodfellow’s decision will follow in a later post.

Limiting Compensation Okay in N.S.

Justice Goodfellow has decided that Nova Scotia’s cap legislation that caps compensation for innocent victims who have suffered injuries in a car accident is constitutional.

Injured Person's Protected in Alberta

However, in Alberta, similar legislation which placed a cap on the compensation that injured victims received for “minor injuries”, was ruled unconstitutional in a decision released in February 2008.

Needless to say, the Province of Alberta, and the insurance industry, immediately filed an appeal which was recently heard by Alberta’s Court of Appeal. You can read the trial decision in Morrow v. Zhang here.

What Happens Now?

So now what? Two contrasting decisions by two different Provincial Supreme Courts dealing with the same constitutional issue. The case in Alberta is already at the Court of Appeal level. The case here in Nova Scotia will no doubt make its way to our Court of Appeal.

The whole issue will likely have to be sorted out by the Supreme Court of Canada several years from now.

Innocent Victims Pay to Increase Insurance Profits

In the mean time, innocent injured victims pay the price by having their legitimate claims for compensation limited so that insurance companies can make more money.

The London Hockey Concussion Summit is being chaired by Dr. Paul Echlin, a sports medicine and junior hockey doctor. Dr. Michael Czarnota,OHL and WHL consultant, will discuss concussions in minor hockey, and Dr. Jason Mihalik of the University of North Carolina, will discuss the recent multi-center youth concussion study.

But what is likely to get the public's attention are former NHL stars Eric Lindros, Alyn McCaulay, and Jeff Beukeboom will speak about the effects concussions had on their careers.

Lindros was forced to retire after eight concussions, like this one, ended his career.

Concussions are one of the most serious, and underestimated, injuries in amateur sport. Minor traumatic brain injuries are consistently misdiagnosed and I applaud any effort to draw more attention to the problem. Perhaps the Summit signals a new trend: Sports Celebrity Medical conferences.

Related posts:
NHL, Parents Need to be Aware of Brain Injury from Concussion

Traumatic Brain Injury: Myth # 1 - You have to be knocked out to suffer a brain injury

Traumatic Brain Injury Claims: Myth #2 You Have to Hit Your head to Suffer a Brain Injury

What is a Mild Traumatic Brain Injury?