STEPS TO TAKE WHEN YOUR CANADIAN CLIENT IS INJURED IN AMERICA

Over the next couple of posts I’m going to include information from a recent presentation I gave at a Washington State Trial Lawyers Association (WSTLA) event – they are now called the Washington State Association for Justice (WSAJ).

There are reportedly more than 5,000 accidents per year for British Columbians outside of the Province, and I only have the capacity to handle half of them.

I’d expect that, in such cases, you’d find a Washington lawyer with whom to associate so that you could properly maximize your client’s entitlement. What is true in BC is equally true in Washington, that insurance adjusters are simply not going to settle claims for decent value unless and until counsel is able to demonstrate the ability to take a case to trial.

The Health Care System
When you have a Canadian client who was injured in the US, the first problem that you will encounter is the availability of sources of proof.  What most Americans think of as the “Canadian health care system” is actually a system handled differently in each province.  In British Columbia, a “Medical Services Plan” report is commonly used to determine all of the various medical personnel who have treated a plaintiff over a given period and who have received remuneration directly from the Government health system.  Of course, we would never volunteer such a report in an American setting just as we would not allow the defendant to go on a fishing expedition of medical issues unrelated to the injuries giving rise to a claim.

Reviewing a typical MSP report, a Washington lawyer might easily assume that a Canadian plaintiff received significantly less treatment than they claim to.  The cost reflected in the MSP report is so minimal, and does not contain any of the associated expenses that you might find in a typical hospital bill.  While it remains difficult, if not impossible, to delineate the total expenses incurred for a plaintiff, the Medical Services Plan will provide an approximate cost of the Government health care subsidy for each day a plaintiff remains in hospital.  In 2004, that amount was $1,007.00 per day.

Summaries of the Medical Testimony
The second hurdle is trying to secure  summaries of the medical testimony of your client’s treating physicians.  Typically, doctors in British Columbia will assume that they can provide you a detailed medical-legal report that contains a summary of their qualifications, the facts upon which they base their conclusions, a summary of their physical examinations of the plaintiff and their diagnoses and prognoses, for which they are accustomed to charging an exorbitant sum.  They will expect that their report would be tendered as evidence at trial, with the option that opposing counsel might require their presence for purposes of cross-examination on their reports.  They certainly will not expect to have to travel to the United States to give testimony, nor should they have to.  You’ll want to educate the Canadian doctor on your inability to tender their reports as evidence.  You may want to simply order their clinical records and summarize their opinions for them, then ask them to sign off on the summary that you have provided, thereby providing sufficient notice of their intended testimony at trial.  You’ll want to reassure them that you are willing to take their perpetuation deposition in the convenience of their own office, with the understanding that you’ll show a videotape of the doctor’s testimony to a jury at trial, and that you would not inconvenience the good doctor more than necessary to address your client’s concerns.

Immigration and Personal Injury
To secure the testimony of your client’s treating physicians who are willing to come to the US to testify, and even to secure the testimony of your own client at trial, you should make sure that you have addressed the U.S. Immigration requirements, or else your client or witness might find themselves unable to enter the US for trial.  Usually, all that is required is a letter on counsel’s letterhead stating that the Canadian witness is coming to the US to testify in court as a “B-1 Visitor for Business”, whose testimony is vital to a lawsuit being conducted in the US.  If the witness has a prior criminal conviction, you’ll want to talk to an immigration lawyer about getting a “Waiver of Excludability”.

As in any case, you’ll want to get the PIP ledger from your client’s own insurer, which for any British Columbia plaintiff would be the Insurance Corporation of British Columbia (ICBC).  ICBC operates on the mistaken assumption that they’re entitled to full subrogation for any amounts they pay to their insureds for payment of no-fault medical benefits and rehabilitation benefits, for which every vehicle occupant or household member of an ICBC-licensed driver has CDN $150,000 coverage.  If and when you request a summary of ICBC’s payments to their insured, they will often condition such disclosure on an assurance of repayment.  Of course, you will want to educate the ICBC adjusters on the applicability of the Mahler, Winters, Hamm and Thiringer line of cases.

More to follow soon…