Malpractice danger areas in personal injury law
Having practised personal injury law before I joined LAWPRO, I faced constant challenges that threatened to derail my practice if improperly dealt with. Follow me as we take this journey into the life of a hypothetical file and uncover the most common sources of malpractice claims.
The Case of Mr. Smith
Mr. Smith suffers serious injuries in a motor vehicle accident and retains you as his lawyer. He expects an abnormally high settlement, but you inform him that settlements are based on what facts can be proven, not what he feels the case is worth.
To hammer home the point, you advise him that juries are unpredictable. Having set realistic expectations, you meet with your clerk on the file and discuss next steps.
Your first step is to investigate the file. You send out notice letters to the possible defendants requesting any information they may have regarding the accident, including whether there are any other parties involved. You request the complete police file including notes, a corporate search of the owner of the defendant’s vehicle and a driver’s licence search of the defendant. When you receive the police file you review it and realize that some notes are redacted, as they often are, because of privacy regulations. You bring a 30.10 motion to obtain unredacted notes. You remember that a certain claims prevention lawyer at LAWPRO once told you that failure to properly investigate a file is the third most common source of personal injury law claims.
Further to the 30.10 motion, you receive the unredacted police file after a few months, which reveals an unidentified driver was involved in the accident. You thank your lucky stars you brought the 30.10 motion. You look up the law regarding naming unidentified, underinsured, and uninsured defendants. You discover that under your client’s own OPCF44R “Family Protection” auto insurance policy, he can name his own insurer to stand in as the unidentified and uninsured defendant. Upon further research you note the 1-year limitation period and the complex case-law regarding discoverability. You decide it’s best to issue the claim as soon as possible. After all, failure to meet timelines is the most common source of claims in personal injury law.
Commence the Claim
As you review the Statement of Claim, your notes remind you that your client advised his wife has had to look after him since the accident, and they wanted you to include her in the lawsuit. This is a large claim and her damages may end up well above the deductible for Family Law Act claims. You include her as a proper plaintiff. Failure to know the law is the fourth most common source of claims, and failure to follow your client’s instructions is the second most common source of claims in this practice area.
To assess this file properly you arrange discoveries with the parties. Due to scheduling issues the discoveries are a year later. In the meantime you request all relevant clinical notes and records to get a sense of your clients’ pre- and post-morbid damages.
When discoveries are complete you realize you need to investigate both damages and liability further. You obtain appropriate medical reports, an accounting report to quantify the damages, and an accident reconstruction expert to clarify liability.
Having investigated the file to your satisfaction, you are now prepared for mediation and trial. You meet with the clients to discuss how the file is valued and the pros and cons. You want to do a good job for them while also avoiding an improvident settlement malpractice claim, and you know one of the best ways to do this is to communicate clearly your recommendations and expectations with the clients.
Mediation and beyond
You contact the defendants to arrange a mediation and discuss a trial date. Unfortunately, mediation is scheduled at least a year away, and you know the trial may be even further down the road. You look at when you commenced the action, which was before January 1, 2012, and realize under the new Rule 48 you are cutting close to the January 1, 2017 deadline to set the matter down, failing which your action will be dismissed. You consult the Rule 48 Transition Toolkit at practice.pro/Rule48 to confirm your ticklers and warning systems are in order. A voice in your head reminds you that in the last several years one of the costliest source of malpractice claims has been dealing with cases dismissed due to not being set down in time. You set the matter down immediately.
Finally mediation day arrives. Fully prepared, you and your clients go through a grueling full day mediation. At the end of the day you receive an offer you can recommend. Your clients are happy with the offer. On a writing pad you have your clients sign instructions to settle, and you make sure to include not just the all-inclusive number, but also the fees, costs, disbursements and HST. You underline the “take home” amount that your clients will receive in their pocket. Failure to clearly communicate the terms of settlement and to follow instructions to settle (or not settle) are some of the most common reasons clients sue their lawyers.
Your clients sign and you pat yourself on the back for a job well done.
It’s no coincidence that taking care to avoid a malpractice claim can at the same time improve the prospects of your file. Investigating a file, communicating with your client, and meeting timelines makes for a better and less stressful practice. With proper investigation you can nail down liability, with proper communication you can control your client’s expectations, and with proper time management you cut down on your WIP. Malpractice claims in personal injury law are among the costliest. Keep an eye on reducing your claims risk – doing so will benefit both your practice and the profession.