Beware those quick emails - you can be sued!

How many times have we all pressed the send button and then wished we hadn't!

The reasons for wishing you could grab back an email are likely to be personal. For example, you suddenly realize you might have hurt someone's feelings, or that you gave out information that might not have been yours to give out. There is another very practical reason why you should think twice before you press send - the increasing risk of being sued if your email is forwarded to a large number of people.

Two years ago, a dispute arose on Salt Spring Island. A 'bubble' was proposed to go over one or two outdoor tennis courts. A public forum was proposed. Someone strongly opposed to the public forum wrote an email to six friends. In the email, he criticized another individual who was organizing the public forum. He made a number of personal remarks about this individual - for example, he stated that the forum was being organized as a platform for the other individual to express his 'personal rantings', that the individual did not represent anyone but himself, and that he had no credibility but his own 'overactive verbiage'. The email ended with a quote from Shakespeare calling the person an idiot, full of sound and fury. One of the people who received the email forwarded it to all of the members of the Salt Spring Island Tennis Association - which at that time numbered over one hundred.

The individual referred to in the email, sued. The lawsuit was not successful - but only because the judge ruled that although the email had been rude, insulting and unfair, mere insult or abuse is not defamation. Had the judge found that the email damaged the reputation of the individual who sued, the lawsuit would have been successful - even more so, given the large number of people it had been forwarded to. Moral of the story: it's not just what you say in an email but also how many people that email gets sent to.

Motor vehicle accidents and medical examinations!

If you are involved in a motor vehicle accident lawsuit and are suing for your injuries, you may or may not be surprised to know that ICBC is entitled to request you to be examined by a medical doctor of their choice. This is to assist them in their attempt to minimize your claim for injuries.

ICBC typically selects from a small group of doctors. Every one of these doctors claims to be “independent” of ICBC and to exercise their best medical judgment. However, lawyers who act for injured parties believe that these doctors tend to be selected by ICBC because the attitudes and values which the doctors hold make it more likely that they will view your injuries to be less serious than the average doctor would.

In many cases, the doctor selected by ICBC for “independent” medical examinations derives a major portion of their income by preparing these reports. With rare exceptions, these doctors are not considered leaders in their field - though in most cases they are considered very knowledgeable. You can decide for yourself why ICBC would insist on using a small group of doctors to perform most of their “independent” medical examinations when these doctors are not considered to be the top experts in their field.

So, here are my nine top tips to prepare you for your ICBC "independent" medical examination:
1. Review your medical records. Your lawyer will have received a copy of these from your doctor.

2. Make an appointment with your own physician for a week before the independent medical examination to have your physician explain your medical condition to you as fully as possible.

3. Be prepared to give your complete medical history in a concise way. The independent medical examination doctor will likely spend the greatest amount of time in the examination taking this history and will usually only take a few moments to examine you.

4. This doctor will expect you to act like a patient. Be candid, honest, thorough and co-operative. Any hesitations on your part will probably to interpreted as a lack of honesty.

5. If the doctor asks you to do something which you feel you are not capable of doing, attempt to do it and stop only when the activity causes you discomfort or pain. Tell the doctor when it causes you this discomfort or pain. If you simply refuse to do something that the doctor asks you to do, the report will likely say that you were uncooperative and that the doctor found no “objective” indications of injury.

6. Always state during the examination that you don’t really care about the money, you would rather have your health back and get better.

7. Always ask the doctor what you can do in order to get better more completely or quickly. It is not the role of a Defence medical examiner to provide this advice to patients, but most will offer some suggestions. Most will form a good impression of you from your request.

8. When you leave the appointment, find a restaurant or nearby location to sit down. Write out all questions and answers that you can recall from the examination. The doctor will be doing the same thing with his dictaphone at that time. It is not uncommon for the doctor’s medical report to quote the patient inaccurately. You will only be able to correct the errors if you have notes made at the time or shortly after your examination.

9. Book an appointment with your physician for a complete examination as soon after the Defence medical examination as you can. When you see your physician describe the examination conducted by the “independant” medical examiner so that your own doctor, who will likely be called as a witness on your behalf, may comment on and conduct the same examinations. This will give a very useful comparison between the reports of the “independent” medical examiner and your doctor - who can be expected to know you much better.

Next week, I'll talk about the process of Discoveries.

FACEBOOK and ICBC!

Most people would be surprised to learn that pictures posted on Facebook can be very damaging evidence in a lawsuit.

A recent client of mine, a young woman, had been involved in a very serious motor vehicle accident. ICBC had admitted liability for the accident so we didn't need to prove who was at fault. The only issue left on the table was the worth of her injuries. In addition to her physical injuries, during the months following the accident this young woman had changed from being a very outgoing, socially active person to being very socially withdrawn. She no longer gained pleasure from being with her circle of friends. Both of her parents described her as 'a changed person'. Expert reports by psychiatrists and other professionals confirmed a personality change. As is normally the case, these expert reports were based in part on self-reports and reports by others who knew my client well.

Prior to going to trial, ICBC agreed to try mediation to settle the case out of court. [BTW, mediation is being used by injured parties more and more these days to avoid the cost and risk of going to trial.] At the mediation ICBC disclosed pictures my client had posted on her Facebook site showing her at parties with friends, engaged in activities typical of individuals her age. These pictures showed her to be anything but withdrawn! The pictures told a strong and different story from the words in the written reports. They were very damaging to her case.

You might be thinking that my client could have avoided this problem by using her security settings on her Facebook site to limit access to trusted individuals. Unfortunately, ICBC has been successful lately in getting a court order requiring the injured party to give ICBC access to the injured party's entire Facebook site.

Moral of the story? If you are involved in a lawsuit because you were injured, and you are now seeking compensation for those injuries - physical or otherwise, be very careful what you post on your Facebook site. You may think you're safe by using security settings, but this is not the case.