Tuesday, May 22, 2018

A Massage Therapy Discovery


*This post was written by a MT who wishes to remain anonymous because it deals with legal issues. Their lawyer has advised them that while it is fine to share the information, to help us all, it is better to stay un-identified due to the legal concerns.  

So this is not the deep soul searching, self-reflective, becoming a better person type of discovery that I am talking about but rather an examination for discovery of the legal variety. 

That being said this legal discovery did help me discover that I dislike discoveries. I also discovered that lawyers can be pretty darn nice and helpful…at least the ones I interacted with.

Before I get into the discovery itself I would like to say; I wish I could give the details as to what occurred but, as recommended by my lawyer, I cannot give any details which may affect client confidentiality. Due to my strong desire not to be sued, there will be no names, specific details, or any information directly related to the treatment. 

If the information was to get out and people began to talk I would then need to hire Jamie “Knuckles” Johnston for his…ahem… “silencing skills” but he is far too busy and his fees, although a great value, can add up quickly. 

What I can say is I have been an RMT for a good number of years, I had treated this patient quite a number of times over a few years, there was a long break between treatments and then there was an MVA followed by a good number of treatments. I should also mention there were a couple of underlying pathological issues on top of the typical MVA injuries.

A Legal Discovery

I think many of us have given a treatment when someone has had difficulty getting off the table, they were sorer afterwards, they were bruised, or perhaps there was a snap, crackle, or pop that occurred. On that fateful day, I gave one of those treatments and this is a bit of the process that followed.

After the treatment when the incident occurred I did a lot of thinking, rethinking, over thinking and then I thought about it some more. After all of the thinking, I felt very confident in the treatment I gave. The patient returned a few more times over the next few weeks and then life goes on and life continues.

Fast forward 22 months after the incident. I received a 3rd party notice for Civil Claim from defendants from the MVA.

A claim of negligence:

  • failing to recognize the physical & medical condition of the plaintiff
  • failing to use reasonable care & skill
  • failing to properly examine, investigate, assess, test

*The clinic where I work also named in the lawsuit

I immediately contacted a lawyer, then my insurance company, and so the paper trail began. All of my notes for the treatments for the MVA and previous to the MVA were scanned and emailed.  In the first brief phone conversation with the lawyer, we discussed some of the basics from the treatments. I was told my charting was pretty good which should make things a bit easier. That was the first bit of good news I had received which helped to make me slightly less stressed.

FYI: should you ever receive such a notice it states that you must respond within 21 days if you reside in Canada, 35 days if you reside in the U.S. and 49 days if you reside elsewhere.

Approximately 6 weeks after the 3rd party notice, 28 months after the incident, I received another envelope (really starting to develop a phobia of large envelopes at this point). It was a Notice of Civil Claim from my patient. Apparently, this is a normal part of the process that would allow the plaintiff to claim against me, as well as the MVA defendant.

Our Reply was sent a couple of weeks after the 2nd notice, so it seems the time period you must respond by was not quite as much of a “MUST DO” as originally stated. My Lawyer called their Lawyer and told them of our intentions so it was all good.

And now we wait.

During this waiting period, expert witnesses are used by both parties to review my clinic notes. The expert witness used by my Lawyer was of the view that I met the standard of care in the circumstances. Not gonna lie, I was really hoping for more of a statement like “there is absolutely no chance, no way, no how that I could ever in a million years have done anything even remotely wrong,” but I will take what I can get.

42 months after the incident I learned that bad news does not have to come in a large envelope as I received an email that did not make me happy. I received a notice that I have been requested for Discovery in two and a half weeks. There were many emails back & forth to my Lawyer over these next couple weeks as I had many questions as my anxiety grew. Although I am sure panic, stress, irrational thoughts, endless questions and emails are probably fairly normal with this type of procedure I can only imagine what my poor Lawyer must have been thinking about me.

Here are some of the tips that I received from my lawyer:

  • The Supreme Court Civil Rules allow each party an opportunity to question the other parties for up to 7 hours, I anticipate that counsel will likely only take half a day to ask you questions about your knowledge of the treatment that was provided to the plaintiff.
  • Answer the question being asked and not to offer any information. The general rule is that you answer with as little information as possible to address the specific question asked, so it is very important that you understand the question.
  • This is not your opportunity to “make your case” or to convince the other side that you did nothing wrong. An examination for discovery is a hurt not help situation. I cannot use anything that you say at the examination for discovery as evidence, however, the other side can. If we went to trial then we would make sure that you provided a full explanation of your background, training, and involvement with the plaintiff.
  • You cannot be asked about your opinion regarding the plaintiff’s condition or anything else at issue in the litigation. I will be present to ensure that the questions are not objectionable. Some examples of objectionable questions are those that are ambiguous, those that seek your opinion, or those that seek information which is covered by privilege. We can also object on the grounds of relevance, although the scope of what is relevant to discovery is quite broad.
  • If I do object, then I will instruct you not to answer the question and it is very important that you follow my instructions, even if you think the answer to the question might be helpful to our case.
  • The most important advice I can give you is that you listen very closely to the question you are asked and that you answer honestly and accurately (to the best of your ability).

Requests made by Defence Counsel, I needed to provide the following information/documents:

  • Advise as to what continuing education course you last took prior to the incident
  • Provide a copy of any contract that was in place between you and the clinic you work at as of the date of the incident.

Important Advice For Every Massage Therapist

D -Day Arrives (42 1/2 months )

I met with my Lawyer one hour before Discovery to further discuss, answer questions, and calm my frazzled nerves. I am feeling pretty good, although still quite nervous.

And so it begins.

In the conference room we all gather:  court recorder for transcript & audio recorder, ICBC lawyer for the MVA defendants, Lawyer for another healthcare practitioner, Lawyer for the Plaintiff, and last but not least my Lawyer and of course myself. I am a little disappointed that not one of them is wearing the white wig you see on Canadian TV shows.

I was questioned only by the one Lawyer.

We went over and briefly discussed EACH and EVERY treatment. There were more specific questions if/when the treatments or any other details changed. And even more discussion/questions for the day of the “incident”. I can say that I did not feel pressured, harassed or intimidated. A couple of the questions did catch me off guard and made me think a bit but nothing that wasn’t fair. The questioning lasted approx 2 hours. At the end of the Discovery, I shook hands with the opposing Lawyers and exchange pleasantries that actually felt pretty genuine. The questioning Lawyer said something along the lines of would have been nice to meet under different circumstances. We left the room but the other 3 Lawyers stayed behind to discuss their next step….that hopefully did not involve me being stepped on.

Thankfully I was able to have a bit of a post-discovery debriefing with my Lawyer. I was told I represented myself and my case well. There were a couple of points that I guess I didn’t pick up on but overall I felt good and I could begin to breathe again. Sadly I had to go back to work at this time even though I would have really liked to go to a pub to celebrate.

49 months after this all began I received an email that made me quite happy, it was the lawyer stating I am to be let out of legal action.  Thankfully the information gathered at my Discovery combined with my patient stating during her Discovery that during the treatment I did not do anything different than previous when “the incident” occurred allowed them to come to the conclusion I was not at fault.

What have I learned from all of this?

  1. Charting is important!!! VERY, VERY important! I was able to easily understand everything in my charts years after the treatments and the Lawyers could also understand them. Very little clarification needed.
  2. Listen to your gut. There were a couple of comments made by my patient in the treatments that immediately followed the incident that I wished I would have charted. I recall thinking that was an odd statement but then failed to put it in my notes. Chart that stuff too!!!!
  3. ALWAYS work within our scope of practice. I cannot even begin to imagine how this could have ended if I had done anything even remotely questionable.
  4. Insurance is a good thing. I know we all complain, at least sometimes, at that time of year when our fees are due. I will never complain again (at least not out loud).
  5. Lawyers are not like they are portrayed on TV….at least not all of them, BUT they are VERY expensive, so please go back and re-read point number four!
  6. Oh yes and one more thing large envelopes are very bad!!!

There are still some unanswered questions for me about this ordeal but it is not very likely that I will ever find the answers. I just have to be happy with the outcome and move on.

58 months later and I just got the official paperwork to say I am in the clear.

from Beauty Salon, Spa, Massage https://themtdc.com/a-massage-therapy-discovery/

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