By: Marc Kazimirski, JD,
Re: Courts plugged with ICBC cases
Issue: BCMJ,
vol. 54, No. 5, June 2012,
Pages 226-227 Letters
Re: Courts plugged with ICBC cases
I write in response to the editorial “Supreme Court plugged with ICBC cases” [BCMJ 2012;54:117]. The author blames civil injury claims as the cause of delays in criminal trials and states that “violent criminals are going free in part because lawyers and judges are tied up arguing about how much compensation a complainant deserves for their accident-related persistent neck or back pain.”
Unfortunately, this article is factually inaccurate, and quite frankly, offensive to patients that have been injured in motor vehicle accidents.
The author states “there are approximately 1500 new criminal trials per year in BC” and this “pales in comparison to the roughly 65000 new civil cases tried in this court yearly” of which “20% to 25% are personal injury claims involving ICBC.”
The author suggests that the number of personal injury claims overwhelms the court’s ability to deal with criminal cases. However, the vast majority of criminal cases are filed in the provincial court of BC and not in the Supreme Court of BC. In 2011 there were 93564 adult criminal filings in the provincial court compared to 1503 filed in the Supreme Court. These statistics confirm that personal injury claims filed in the Supreme Court have no bearing on the criminal cases filed in the provincial court.
The delay of criminal cases in the provincial court is troubling and the latest report titled “Justice Delayed: A Report of the Provincial Court of British Columbia Concerning Judicial Resources” confirms there are 2522 criminal cases that have been pending for more than 18 months (the point at which charges could be stayed due to unreasonable delay). The number of criminal cases stayed in 2011 doubled from the year before.
The provincial court is short 18 full-time judges and British Columbia is the only province with fewer judges now than in 2005. The province spends 30% less on legal aid compared to the national (per capita) average and the legal aid budget has been reduced by 35% since 2001. Collectively, the lack of funding for the provincial court has helped create historic backlogs.
The author suggests that personal injury claims are frivolous and states “based on my experience the cases that go to trial aren’t about fractures, chest trauma, or abdominal injuries. They usually involve soft tissue injuries of the neck and back… They [the patients] have persistent pain and are often unable to work or enjoy their recreational pursuits (ever wonder why patients never seem to have persistent pain and disability after falling skiing or cycling?)… Usually a lawyer is involved early on… Interestingly, after a claim is settled these patients’ injury-related office visits and complaints seem to come to an end.”
These comments suggest the author is skeptical regarding his patients’ injuries, and unfortunately, that attitude has become increasingly common in the last decade. The Supreme Court of Canada’s decision in Nova Scotia (Workers’ Compensation Board) v. Martin [2003] 2 S.C.R. 504 succinctly summarized the prejudice against individuals with chronic pain as follows:
There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real… Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians.
The author’s comments serve to perpetuate this prejudice against chronic pain patients and I believe this is based upon a common misunderstanding of personal injury claims. Let me dispel the myth of the “claims conscious plaintiff” as follows:
• The vast majority of people injured in accidents do not retain a lawyer.
• Most personal injury claims (approximately 98%) are settled and do not proceed to trial.
• Personal injury claims deal with myriad injuries (orthopaedic, neurological, psychiatric, chronic pain) and are not restricted to soft-tissue injuries.
• Of the personal injury cases that proceed to trial, the injured plaintiff is successful in the majority of cases.
• These cases are won because the plaintiff’s injuries are supported by medical opinions from treating family doctors and specialists.
• Our court system penalizes frivolous lawsuits and requires the losing litigant to pay the other side’s legal costs.
Perhaps I am confessing my prejudices given that I am a lawyer in a family of physicians (my parents and brother are family doctors from Nova Scotia); however, it is my belief that no amount of money is sufficient to compensate an injured individual for chronic and debilitating injuries. That is why I make every effort to assist my clients with their recovery. I work with the treating doctors to facilitate funding for treatment and arrange further medical investigations that the treating doctor cannot access in a timely way through the public health care system. And when advocating for my clients we rely upon the treating doctors to explain the etiology and diagnosis of the injuries, the impact this has on the patient’s functioning, and most importantly, what can be done to help treat or ameliorate the patient’s injuries.
Lawyers and doctors can (and should) do a better job in these cases. That will only happen with open communication and cooperation between the medical and legal professions.
—Marc Kazimirski, JD
