I signed a waiver, can I still sue?

The law surrounding waivers is complicated, and very often depends on the specific circumstances of your case. You may still have a claim even if you signed a liability waiver.

If you have any additional questions, please feel free to contact us.

Are there any time limits I should know about?

An injured adult generally has two years to start an action if his or her claim is after January 1, 2004. An injured child has two years from his or her 18th birthday to start an action, however, aside from time lines for starting a lawsuit, there may be shorter time limits for starting actions and certain defendants must have notice of your intention to start a lawsuit within days of the incident. If your child’s case involves suing a municipality for failure to remove snow and ice you must assume you have 10 days to give written notice. In the case of the Province of Ontario, assume you have to give written notice within 10 days. As a result, you should consult a lawyer immediately following an incident to ensure that proper notice is provided.

If you have any additional questions, please feel free to contact us.

What happens if I die before a case is concluded or I change my mind about pursuing the case?

If you were to die before the case is concluded, a lawsuit against a healthcare professional can continue on behalf of your estate or other family members who were affected by the medical injury. Whether it is financially realistic to continue would be discussed with the family or estate representative.

You have the option of changing your mind throughout the process of suing. The legal expenses incurred, the time spent and other factors would be discussed. Similarly, we may advise you not to proceed further or to discontinue the lawsuit against a particular party. We continue to evaluate the case during the litigation process and a new report, condition or opinion may affect the outcome of the lawsuit.

If you have any additional questions, please feel free to contact us.

Why is it taking so long for my case to resolve?

There is no precise timeline for completion of the litigation process. However, you can evaluate whether it is taking too long by considering these factors:

  1. Do you have a prognosis? This is the most important factor of all in determining how long it will take your case to get to trial. Your prognosis determines everything from the amount of pain and suffering damages, to your long-term care needs and future wage losses. Until your lawyer knows from the doctor what the medical future holds for you, it is difficult, if not impossible, to settle your case or take it to trial. In many cases, that can take years. Once the prognosis is known, then you can expect a number of assessments to take place to properly evaluate your claim.
  2. How busy is your lawyer? Good lawyers are busy and insurance companies appoint good lawyers to defend cases. This means that scheduling is often delayed because of the lawyers’ time constraints, ultimately delaying your case.
  3. Does your lawyer have a plan? Business is not, however, an excuse for drifting. Your lawyer should have a plan for your case and if you have questions, ask. Firmly and politely enquire about what the plan for resolution of the case is. You will likely be reassured by asking those questions. If you are not, you may wish to get a second opinion.
  4. Administrative or court delays Problems often arise with scheduling cases due to lawyer time constraints as many busy lawyers double book and even triple book to take into account the possibility of settlements. If your case is considered long, over two weeks, the courts have less flexibility in giving you a date, especially outside major settings where there is only one judge or limited court space. Your case in those jurisdictions can get bumped by murder and rape trials, for example, because not every case is treated with the same urgency. The rule of thumb for trials in London is the trial will be held about one year from the point your lawyer will appear before the court to set the trial date.
  5. Legitimate defence requests Unfortunately, things change in personal injury cases. New problems develop, surgeries take place, jobs are taken on or lost, and training succeeds or fails. All of this changes the face of the case and the damage assessment. It may lead your lawyer to another set of assessments and every time this happens, the defence may wish to have the change evaluated by its own expert. It is disheartening, but a carefully prepared case must take into account change; including changes in the law itself.

If you have any additional questions, please feel free to contact us.

How long will the entire process take?

Depending upon the complexity of the case, the various legal steps leading up to a trial may take years. On average, this process takes 2-5 years. It is extremely important that we take time to ensure that we have all of the necessary information and opinions prior to proceeding to trial.

If you have any additional questions, please feel free to contact us.

If the experts support my case then what happens?

The expert opinion must be supportive on both issues of standard of care and causation. When this occurs, we will arrange a meeting and provide our recommendations to either start the lawsuit or continue it. The doctor, hospital or nurse will be informed of the lawsuit and a defense lawyer becomes involved. This starts the litigation process and continues until either a settlement, judgment or release is obtained. There are various legal steps that occur during the litigation process, which will be reviewed with you at specific points.

If you have any additional questions, please feel free to contact us.

Will I have trouble getting medical care after I sue?

If one of your treating doctors is the target of a lawsuit, then we expect the doctor will suggest you obtain treatment elsewhere. The doctor will perceive the lawsuit as your lack of confidence in him or her. Treatment at a hospital should continue unless the treating doctor is involved in the lawsuit.

If you have any additional questions, please feel free to contact us.

Do these experts know who I am suing? Don’t doctors help each other?

When we contact the potential expert, we give the names of the potential targets. An expert will not give us an opinion in cases where the target is a friend, social contact, fellow worker or there is the perception of a conflict. Many doctors are prepared to assist in these types of cases and it is important that we retain someone who is experienced, knowledgeable, and unbiased to help with your case.

If you have any additional questions, please feel free to contact us.

Do I have sufficient time for this investigation?

There are deadlines for starting lawsuits against doctors, nurses, hospitals and other health practitioners. These are called “limitation periods”. Determining the limitation date for commencing a lawsuit can be somewhat complex depending on the specific circumstances of the case. Generally, the limitation period for starting a lawsuit against hospitals and nurses is two years from the date of occurrence, if it occurred after January 1, 2004. If it occurred before January 1, 2004 the limitation period to start a lawsuit against a doctor could be one year. There are exceptions to the general rule (children or persons with mental disabilities) and in some instances, the Courts have interpreted the time frame differently.

Because the investigation of your case can take some time, you should not wait until the last minute to decide to speak to a lawyer.

If you have any additional questions, please feel free to contact us.

How long does it take to get opinions?

Generally, once we order the clinical and hospital records, we do not receive them for several weeks. Once received, we review the records in order to determine the following:

Is the information the same or different from the client’s memory of events?
Are we able to identify the primary targets in the lawsuit?
Are the medical issues the same or different from the ones initially discussed?
What experts do we need?

The above review can take a week or more depending on the volume of the records.

Next, we contact potential experts and determine who can assist us. Once an expert has agreed to assist, the records are sent to the expert for review. Depending upon the type of specialist, the process of retaining an expert can take several weeks. Once the records are in the hands of the expert, we likely do not receive an opinion or comments for at least 4-8 weeks. In complex cases, this entire process can last as long as 6 months or more.

If you have any additional questions, please feel free to contact us.

What opinions do you expect from an expert?

In a medical malpractice case against a doctor, we must prove the doctor did not provide the appropriate care and treatment (i.e. did not meet the standard of care). For example, if it is standard for a doctor to order blood tests when a patient has specific symptoms, and the doctor does not do this, then our expert may say the doctor did not meet the appropriate standard of care.

The other primary question that must be answered by an expert is whether or not failure to provide appropriate care or treatment caused or contributed to the patient’s condition. For example, if the same patient develops a severe infection leading to a brain injury and the blood tests would have detected the infection and allowed early treatment, then our expert may say the doctor’s inaction or failure caused or contributed to the brain injury.

These are simplified definitions of standard of care and causation. More often than not, the medical investigation with respect to causation is very complex and time consuming.

If you have any additional questions, please feel free to contact us.

What opinions do you expect from an expert?

In a medical malpractice case against a doctor, we must prove the doctor did not provide the appropriate care and treatment (i.e. did not meet the standard of care). For example, if it is standard for a doctor to order blood tests when a patient has specific symptoms, and the doctor does not do this, then our expert may say the doctor did not meet the appropriate standard of care.

The other primary question that must be answered by an expert is whether or not failure to provide appropriate care or treatment caused or contributed to the patient’s condition. For example, if the same patient develops a severe infection leading to a brain injury and the blood tests would have detected the infection and allowed early treatment, then our expert may say the doctor’s inaction or failure caused or contributed to the brain injury.

These are simplified definitions of standard of care and causation. More often than not, the medical investigation with respect to causation is very complex and time consuming.

If you have any additional questions, please feel free to contact us.

What are the next steps when I want to sue?

If you want to sue for a personal injury claim, and together we have determined that your case should be further investigated, our next step will be to review the financial aspects of the investigation again. It is very important that you have sufficient financial information in order to make the decision to move forward with your case. Effectively, you are investing money in order to determine if you have a case. This retainer fee is not refundable in the event the investigation does not support the case.

Retainers create the lawyer-client relationship. This money is used to finance the investigation, which includes:

Obtaining copies of clinical and hospital records
Conducting medical research
Obtaining medical opinions from experts
In some instances, paying for court fees to commence a lawsuit to protect your rights while the investigation continues
Providing an opinion to you about your case

If you have any additional questions, please feel free to contact us.

What initial steps should I take?

Very often, the conditions that existed at the moment of your injury will be lost if not preserved either by video, photography or retention of involved equipment. Therefore, you must do whatever you can to preserve the evidence. As well, take photos of your injuries, bruises and cuts as they may provide valuable information for your lawyer later about how you were injured. If you kept notes or a journal of events as they happened, provide them to your lawyer.

If you have any additional questions, please feel free to contact us.

Would I receive compensation from the association if I make a complaint?

No. The college or association investigates the complaint and determines if disciplinary action should be taken. The doctor, nurse or other health practitioner involved would have an opportunity to respond to the complaint. This response is also sent to you for any additional comments. In some circumstances, the investigating body will retain an expert who will review the medical events and provide an opinion. An expert is someone with similar professional experience as the individual in the complaint and the purpose of the expert is to assist the association in its investigation of the complaint. You will then be advised of the investigating body’s decision.

If you have any additional questions, please feel free to contact us.

What are the alternative options?

If the medical issue involves a doctor, a complaint can be directed to the College of Physicians and Surgeons. Similarly, if it involves nursing care, the College of Nurses of Ontario is the appropriate association to which to direct a complaint. There are governing associations for most medical and health practitioners.

If you have any additional questions, please feel free to contact us.

Will you tell me if I have a case?

Depending on the amount of information you provide, we will be able to recommend whether your case is worth further investigation. Our recommendation is based upon several factors including:

When the medical events occurred
Potential amount of damages
The financial costs involved
Type of injury

If you have any additional questions, please feel free to contact us.

What should I expect at my first meeting?

You will meet with a lawyer at your initial consultation. Before any medical issues and legal procedures are discussed, we need to have a general understanding of what occurred. Apart from background information (birth date, marital status, employment, medical history), we will need to know the following:

Chronology of what occurred
Who you saw and where
What was done
When was it done

At this point, we will explain the legal issues involved (standard of care, causation, damages and limitation period) and how we will proceed to investigate your case. Additionally, we will provide you with information dealing with legal fees and expenses.

If you have any additional questions, please feel free to contact us.

Are there any maximums on Statutory Accident Benefits?

Unfortunately, yes. If your accident occurred on or after September 1, 2010 and your injuries are considered non-catastrophic you are entitled to maximums of $50,000 in medical and rehabilitation benefits over 10 years, $36,000 for attendant care benefits over two years at no more than $3,000 per month unless optional benefits were purchased before the accident. Housekeeping and home maintenance benefits are only available to those involved in collisions on or after September 1, 2010 with non-catastrophic injuries, if optional benefits have been purchased, and then only to a maximum of $100 per week for two years. If your injuries are non-catastrophic, you are only entitled to claim transportation expenses after the first 50 kilometers per trip, even for medical and rehabilitation appointments.

If your injuries are considered catastrophic you are entitled to maximums of $1,000,000 over your lifetime for medical and rehabilitation benefits, $1,000,000 for attendant care benefits over your lifetime at no more than $6,000 per month, and housekeeping and home maintenance benefits to a maximum of $100 per week for life. There is no minimum mileage limit for transportation expenses. You may be entitled to increased benefit maximums if your injuries are catastrophic and you purchased optional insurance before the accident.

If your accident occurred on or after September 1, 2010 and your injuries are considered to be minor, you may be entitled to a maximum of only $3,500 for medical and rehabilitation benefits. Housekeeping and home maintenance benefits are available if you purchased optional benefits to a maximum of $100 per week for two years, but no attendant care benefits are available.

If you have any additional questions, please feel free to contact us.

How long will I receive Income Replacement Benefits?

You are entitled to this benefit until you are able to work in either your own job or another job for which you are reasonably suited. There is no time limit, but the benefit amounts are adjusted after age 65.

If you have any additional questions, please feel free to contact us.

What should I expect to receive in Income Replacement Benefits?

If you are employed and have no benefits through a private insurance policy, your own insurance company is obligated to pay you income replacement benefits for any time you are unable to work because of impairments from injuries sustained in a car crash. As a general rule, if your accident occurred on or after September 1, 2010, the income replacement benefit is 70% of your gross income earned before the accident, less statutory deductions, to a maximum of $400 per week. If you have purchased additional benefits, the maximum may be increased to $600, $800 or $1,000 per week. Your gross income can be calculated on average weekly income earned in the 52 weeks or 4 weeks before the crash, whichever is greater. Benefits are not available for the first seven days following the injury.

If you have any additional questions, please feel free to contact us.

How do I collect medical and rehabilitation benefits?

Your medical and rehabilitation should be under the direction of your physician or other health practitioner, and he or she should recommend appropriate treatment. Some injuries that fit certain legally defined injury categories do not require the insurer’s prior approval in order to receive benefits to fund assessments or treatment. In other cases, the treatment provider must complete a treatment and assessment form, which requires your signature, to obtain permission from your insurer to conduct an assessment or provide treatment. If your insurer agrees that you require the assessment or treatment, they will notify your treatment provider and an assessment can then be done and a treatment plan can be developed, which is then sent to your insurer for funding consideration.

In order to help ensure that your assessment and treatment is not delayed significantly, your insurer has 10 business days to approve a request to conduct an assessment or to approve a treatment plan. If your insurer misses this deadline, the request is considered approved until the insurer ultimately responds. If your insurer does not approve a request to assess or a treatment plan, your insurer may decide to have you assessed by a health practitioner of their own to assist them in their decision. If your insurer maintains its decision, you can either withdraw the request for the benefits, or seek to have your disagreement discussed in the presence of a mediator. Possible further legal steps are arbitration or a lawsuit against your own insurer.

If you have any additional questions, please feel free to contact us.

What rehabilitation expenses will the insurer pay for?

Your automobile insurer must pay all reasonable costs for you to reduce or eliminate the effects of any disability to help you return to your family, society and appropriate work. However, the benefits that may be available to you will also depend on whether your injury fits certain legally defined injury categories and whether you purchased optional insurance coverage before the accident. Rehabilitation benefits can include life skills training, family counseling, social rehabilitation counseling, financial counseling, employment counseling, vocational assessments, vocational or academic training, workplace modifications and/or devices, home modifications and/or home devices, and vehicle modifications.

If you have any additional questions, please feel free to contact us.

What medical expenses will the insurer pay for?

In general, any medical expense arising from the car accident not covered by your health plan, extended health benefits plan or OHIP are payable by your automobile insurer. This may include, but is not limited to:

  • medical
  • surgical
  • dental
  • optometric
  • hospital
  • nursing
  • ambulance
  • audiometric
  • speech-language pathology services
  • chiropractic
  • psychological
  • occupational therapy
  • physiotherapy
  • medications
  • prescription eyewear
  • dentures and other dental devices
  • hearing aids
  • wheelchairs
  • prostheses, as well as orthotics
  • and other assistive devices

However, the benefits that may be available to you will depend on whether your injury fits certain legally defined injury categories and whether you purchased optional insurance coverage before the accident. Additional benefits are available to you if you are very seriously injured; this is referred to as “catastrophic impairment”. If you are considered catastrophically impaired, you are also entitled to a case manager to help you co-ordinate all of your medical and rehabilitation needs.

If you have any additional questions, please feel free to contact us.

I was a pedestrian or bicyclist injured by a car. Can I receive accident benefits?

Cyclists and pedestrians struck and injured by a car can receive accident benefits. If you do not own a vehicle or you are not an insured person under someone else’s automobile insurance policy, you can claim accident benefits from the automobile insurer of the car that injured you.

If you have any additional questions, please feel free to contact us.

How do I get Statutory Accident Benefits from the insurer?

You have to apply to your own insurance company in order to receive Statutory Accident Benefits from your insurer. You will be asked to complete an application form and provide information about your injuries, the collision and your income. After the application is made, there are a number of forms that must be completed by your doctor, employer and perhaps others that will support your right to benefits.

If you have any additional questions, please feel free to contact us.

What are Statutory Accident Benefits?

Statutory Accident Benefits are “no fault” benefits available to you from your own insurer when you are involved in a car crash. This means that no matter who was at fault in the collision, your own insurer must pay for goods, services and other benefits provided for by the insurance policy that you need because of the collision. These benefits may include, but are not limited to, income replacement benefits, caregiver benefits, non-earner benefits, medical and rehabilitation benefits, attendant care, housekeeping and home maintenance, and other expenses incurred for damaged clothing or visitor’s expenses when you are in hospital. The type and amount of benefits that may be available to you will depend on whether your injury fits certain legally defined injury categories and whether you purchased optional insurance coverage before the accident.

If you have any additional questions, please feel free to contact us.

Can I sue the other at-fault driver?

In general, you can sue the driver responsible for an accident in two situations: when you are injured in an automobile accident in Ontario or when a family member has been injured or killed in an accident. However, you may still sue the other driver even if you or the family member is partly responsible for the accident.

If you have any additional questions, please feel free to contact us.

I was in a single car crash. Do I need a lawyer? Who do I sue?

Even in a single car crash you can be a victim of negligence as road authorities can be liable for hazardous road conditions. For example, road authorities, such as cities, counties or the Ministry of Transportation, may be liable for ice and snow covered roads, defects on the road surface before or during road construction and improper road design or sightline obstructions. Other causes of single car crashes can be related to car defects or negligent repairs. In these cases, you would be able to sue your car manufacturer or mechanic if the defect caused your crash.

If you have any additional questions, please feel free to contact us.

My insurance company is handling everything. Why do I need a lawyer?

Your insurance company has its own lawyers to provide it with good legal advice about its rights and responsibilities. You need the same legal advice for yourself. In our experience, insurers can often be helpful at the beginning of a case, but are not looking out for your best interests. In the long run, they are seeking to limit payments to you. As well, insurance companies are not permitted to provide you with legal advice about your right to sue. Therefore, if you have been in a car crash and wish to consider a lawsuit, you need independent advice about your rights. Given that strict time limits apply in some cases, you should not delay in getting legal advice. The scene of the crash may also be important to your case, and early attendance by a photographer, engineer or investigator may be needed to preserve your right to claim. At Legate & Associates, we can help you evaluate your options if you have been injured in a car crash.

If you have any additional questions, please feel free to contact us.

How long will it take to resolve my case?

How long a particular case will take to resolve is very difficult to determine. Some of the factors that go into determining how long a case will take to resolve include:

  • The degree of co-operation we receive from other people and institutions from whom we request records
  • The degree of co-operation we receive from doctors and other health professionals in providing us with copies of clinical notes and records, medical legal reports and prognosis reports
  • How quick you are to respond to our requests for information and documentation
  • The length of time it takes to arrange various assessments that are required with treating practitioners, rehabilitation consultants etc., as well as the duration it takes for these assessors to provide their reports
  • The degree of co-operation we receive from the defense lawyer(s) in arranging and conducting examinations for discovery
  • The length of time it takes for the defense lawyer(s) to arrange various defense medical examinations, which are usually scheduled after you have attended the assessments as required by your treating practitioners and our firm
  • Whether the defense lawyer(s) upon instruction of the insurance adjuster are amenable to holding a private mediation and whether it is in your best interests to attend one
  • The length of time after examinations for discovery have been completed for the Court to provide a date for a pre-trial conference as well as a trial date
  • The attitude and approach taken by the defense lawyer(s) towards the resolution of your case

As you can see, there are many factors that can affect the timing of resolution of a claim which are out of our control. It is therefore difficult to have a concrete timeline for how long it will take for your case to settle.

If you have any additional questions, please feel free to contact us.

What initial steps should I take?

Very often, the conditions that existed at the moment of your injury will be lost if not preserved either by video, photography or retention of involved equipment. Therefore, you must do whatever you can to preserve the evidence. As well, take photos of your injuries, bruises and cuts as they may provide valuable information for your lawyer later on about how you were injured.

If you have any additional questions, please feel free to contact us.

What is it worth?

When you pursue a personal injury case, you can recover damages that will compensate you for your economic losses, your loss of earning capacity, your pain, suffering, loss of enjoyment of life, and for the loss of a family member’s care, guidance, and companionship. You can also recover expenses associated with your ongoing care and future needs. Until the doctors give us your prognosis or prediction about you or your family member’s future disability, we are unable to provide you with specifics on the amount of compensation you can receive.

If you have any additional questions, please feel free to contact us.

Are there any time limits I should know about?

In general, you will have two years to start an action if your claim is after January 1, 2004. However, there may be shorter time limits for starting actions and certain defendants must have notice of your intention to start a lawsuit within days of the incident. If your case involves suing a municipality for failure to remove snow and ice, you must assume you have 10 days to give written notice. In the case of the province of Ontario, assume you have to give written notice within 10 days. As a result, you should consult a lawyer immediately following an incident to ensure that proper notice is provided.

If you have any additional questions, please feel free to contact us.

Does the retainer cover legal fees?

No, legal fees are a separate expense and are often a percentage of the compensation you receive for your case.

If you have any additional questions, please feel free to contact us.

Is the retainer the only money I pay?

No, the retainer only covers out-of-pocket expenses, such as obtaining copies of clinical and hospital records, paying for court fees, and expert medical opinions.

If you have any additional questions, please feel free to contact us.

What are some of the costs and expenses of a personal injury lawsuit?

Costs and expenses of a personal injury lawsuit include disbursements paid to investigate and pursue your case, and the lawyers’ fees.

First are the disbursements. These are expenses that have to be paid for out of pocket. They can include police reports, hospital records, expert opinions, court filing fees and other administrative costs. A monetary retainer is usually requested to assist in paying the initial disbursements expected to be incurred to conduct a preliminary investigation of your case. If you cannot pay your retainer in full, a payment schedule can be set up. In some cases, the retainer can be waived entirely. However, repayment of expenses incurred will be expected in developing your case, either from the insurance company that pays your compensation or from your compensation. In a successful case, the majority of these expenses will be paid by the insurance company.

The second type of cost is the legal fee. The vast majority of experienced personal injury lawyers will charge you a percentage of the compensation that is recovered for you, which is called a contingency fee. The percentage will depend on many factors including the size of the recovery, how difficult the case is, how long it takes to resolve and how much of the lawyer’s own money has to be invested in the case. You should have an idea of the range of the percentage that will be charged. Additionally, lawyers have to charge HST on fees.

If you have any additional questions, please feel free to contact us.

How much will the first visit cost and what will happen during the first visit?

Your first consultation at Legate & Associates is free. You meet with a lawyer who will hear about your case. At your first meeting, be prepared to answer questions regarding how you were injured, who was involved, when it happened and what your injuries were. Other important information to discuss will be how your life has changed since your injuries were sustained including the effect on your work, leisure, family and community life. Your responses will assist the lawyer in determining if you can demonstrate someone else was at fault for your injuries, and if you still have time to sue.

The lawyer will then be able to give you a preliminary idea of whether you have a case and its potential value. It is important that you bring as much information to your first visit as you can; be sure to ask for a list of materials you should bring for your meeting when you book your appointment. Finally, at your initial consultation, you should have a clear and frank discussion about costs and legal fees moving forward.

If you have any additional questions, please feel free to contact us.

Call us, we can help.

First consultation is free.

1.888.221.3043