Lawyers collect 42 percent of $1.25-million structured legal settlement for disabled teen

As part of the agreement, Russell & Dumoulin received a $104,000 premium above what it charged for its billable hours

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      A Vancouver mother will make a last-ditch effort before the B.C. Court of Appeal on November 27 to gain the right to try and stop the public trustee from allowing some Vancouver lawyers to charge more than a half-million dollars in legal fees, taxes, and disbursements in a medical malpractice suit arising from the birth of her disabled daughter.

      Donella Oliver, a former medical secretary, filed the original lawsuit in 1984, almost two years after her daughter, Tarryn, was born with cerebral palsy and other handicaps.

      Since then, Oliver has hired and dismissed several lawyers, battled the public trustee’s office, and, most recently, fired off a letter to Attorney General Ujjal Dosanjh demanding a public inquiry.

      “What has transpired in this case I believe proves our justice system is really sick,” Oliver wrote in her letter.

      Oliver, whose original suit claimed that her family doctor failed to diagnose diabetes during her pregnancy, alleged to the Georgia Straight that inaction by several lawyers resulted in legal guardianship of her 13-year-old daughter being transferred to the public trustee’s office in 1992.

      In April 1994, B.C. Supreme Court Justice Carol Huddart approved a $1.25-million settlement reached between lawyers for two doctors, Grace Hospital, and the public trustee, which is Tarryn Oliver’s legal guardian even though she lives with her mother in an East Vancouver co-op housing project. Oliver has challenged the legitimacy of the settlement and continues her own lawsuit against the doctors and Grace Hospital.

      Tarryn Oliver, 13, has been diagnosed with cerebral palsy, legal blindness, learning deficits, and emotional problems, and she walks with a heavy limp and has suffered seizures in the past.

      An irrepressibly friendly girl, she occasionally chuckles when she overhears her mother discussing her case. However, her mother finds no humour in Huddart’s decision, nor her subsequent February 1995 judicial order, which approved the legal fees.

      That resulted in the disabled girl receiving approximately $650,000 in trust while various law firms were paid $433,484.12 in legal fees and taxes and $97,729.62 in disbursements and taxes.

      The law firm Russell & DuMoulin, which handled Tarryn Oliver’s case for the eight-month period leading up to the settlement, charged for the disbursements along with $331,049.23 in legal fees before taxes. Another $49,200 was divided between five other law firms that handled the case during the previous nine years.

      The settlement called for Donella Oliver, as the mother who looked after Tarryn since birth, to receive $50,000 in trust. Another $18,786.30 plus interest went to the public trustee “to be applied immediately to care costs” for the girl.

      “Who had a right to do this? Did the public trustee have a right?” Oliver demanded in an interview with the Straight.

      The defendants paid another $100,000 into court to cover any future payments to Donella Oliver, who is attempting to gain the right to appeal her daughter’s settlement.

      According to Huddart’s order, if Oliver is awarded less than the amount paid into court, the remainder—minus one-third [up to $25,000] for legal fees to Russell & DuMoulin—will go to her daughter in a trust account.

      One of Russell & DuMoulin’s lawyers who worked on the case, Ward Branch, has filed an affidavit saying that the billable hours for handling the case amounted to $226,530.25. Another $104,518.98 was charged as a “premium”.

      Shortly after Huddart issued her order, the original trial judge, Justice Kenneth Meredith, issued a memorandum to counsel that signalled his displeasure with this premium.

      He stated that Donella and Tarryn Oliver’s lawyer, Lauri Ann Fenlon, of Russell & DuMoulin, “was in no position to recommend settlement resulting in payment to her firm of premium in fees over cost. Did the recommendation serve the interests of her client or her firm? The apparent conflict would not arise if the amount of recovery were left to the trial judge.”

      Meredith also wrote: “I conclude that the purported settlement might be set aside because the judge [Huddart] hearing the motion (not being the trial judge) mid-trial, was in no position to resolve issues raised in the pleadings, whether agreed to by some of the parties or not.”

      Lawyer David Hay acted for Oliver in her unsuccessful attempt to persuade Huddart to reduce the legal bills.

      “I would think those kind of comments would provoke some discussion among members of the bar, but I’m frankly not sure whether or not that occurred,” Hay told the Straight.

      Branch told the Straight that his firm had no comment because Oliver’s case is still before the courts. Deputy public trustee June Laker, who approved the settlement on Tarryn Oliver’s behalf, refused comment for the same reason.

      In a March 21, 1994, letter to Fenlon, however, Laker wrote: “In my opinion, the premium is warranted, given that additional time will be required to conclude the settlement; your firm has carried substantial disbursements; the case has been complex with particular difficulties and risk related to liability, causation and care management; and a good result has been obtained.”

      On October 3, Oliver urged Dosanjh to order a public inquiry into the public trustee’s office, which looks after the legal rights and financial interests of people incapable of doing it themselves. Deputy minister Maureen Maloney wrote back to Oliver on November 8, saying her complaints had been forwarded to the public trustee’s office.

      “I think that’s outrageous in that I have a complaint against the public trustee,” Oliver said.

      Even though the office of the public trustee falls within the attorney general’s ministry, Maloney told the Straight that it acts independently.

      Oliver, citing a report for the plaintiffs by economist Robert H.W. Carson, alleged that her daughter could have won up to $2.5 million plus legal costs at trial. She believes Tarryn Oliver’s vision problems were linked to her own undiagnosed diabetes during pregnancy, and she has uncovered medical research linking calcium and glucose shortages in infants of “uncontrolled diabetic” mothers to the development of cataracts shortly after birth.

      After the plaintiffs had presented their case before Meredith, the trial was halted because lawyers for all sides agreed on the settlement and the defence called no witnesses. That settlement was sent to Huddart for approval.

      Huddart determined that Meredith would have assessed damages at considerably less than $2.5 million, even if he concluded the cataracts resulted from medical negligence.

      “I looked at the damages as probably, at the most, without the blindness caused by the cataracts, $500,000 to $600,000,” Huddart said, according to a transcript of her oral reasons for judgment.

      Medical malpractice is one of the most challenging areas of law, and Russell & DuMoulin lawyers had only eight months to prepare an extremely difficult case.

      Before Huddart approved the $1.25-million settlement, Fenlon wrote to the public trustee’s office saying that the very best the plaintiffs could hope for in a judgment from Meredith was $1.7 million. The letter pointed to “very real risks” in not accepting the settlement offer.

      Fenlon suggested Oliver’s reluctance to allow cataract surgery on her daughter and the difficulty in proving the cause of the cataracts as factors that might reduce damages at the end of the trial.

      Fenlon also wrote “the Judge [Meredith] has made comments which demonstrate that he has little tolerance for Mrs. Oliver and her parenting skills. This could affect the award in a number of ways which would probably not be appealable. For example, the Judge could find that Tarryn would not have gone on to post-secondary education because of the mother’s attitudes. This finding would reduce substantially Tarryn’s future wage loss claim.”

      Fenlon ceased to be Oliver’s lawyer in June 1994. Oliver’s current lawyer, Dorothy-Jean O’Donnell, will appear before the B.C. Court of Appeal to try to obtain standing for her client so she can have her daughter’s legal bills reviewed.

      O’Donnell has also asked the court to extend the time for Oliver to file appeal books in the case. Oliver told the Straight that she hopes to obtain standing so that she can eventually appeal her daughter’s settlement and have a mistrial declared.

      Oliver claimed that Huddart did not have all the facts to approve the settlement because lawyers had deleted sections of expert medical opinions prior to entering them as exhibits on the official court record.

      Lawyer Andrew Wilkinson, who defended the doctors, told the Straight that deletions were made with the consent of all the lawyers involved.

      “Ultimately, what’s admissible as evidence is a judicial decision,” Wilkinson said. “And lawyers sometimes anticipate judicial decisions by agreeing what’s admissible and what isn’t. If all the lawyers agree, then the judge will generally agree.”

      On November 8, Oliver and a Straight reporter visited the exhibit room in B.C. Supreme Court to examine some of those documents. From a box full of official court exhibits, Oliver pulled out a three-page expert medical opinion signed by psychiatrist Dr. Brian Harris.

      He is listed on the court record as Tarryn Oliver’s “case manager” and has treated her since shortly after she was born with cerebral palsy in 1982.

      Then Oliver turned to a binder that she had brought in herself, which she claimed contained Harris’s actual opinion, which ran for seven pages. The applicable words were identical to what appeared in the shorter version, except this version was twice as long and heaped lavish praise on Oliver as a devoted mother.

      “Our position,” Wilkinson said, “was that that wasn’t proper evidence before the court.”

      Another letter from Harris on the exhibit file didn’t include the following comments, which Oliver showed in the original: “It might be said that in addition to Tarryn’s painstaking 11 years as a handicapped child, largely outside the mainstream of normal development and normal peer relationships, that the mother has also lost 11 years of her life too.”

      When reached by phone, Harris told the Straight that he would have initialled any changes that he approved of, although no initials appeared on his opinions in the exhibit file.

      “I would have thought that something like that should not have been introduced as evidence, with great big gaps like that...” Harris said.

      Notes from a conversation with orthopaedic surgeon Dr. Martin Mankey and a letter from Okanagan Rehabilitation Consulting Ltd. in the official exhibit file also contained deletions.

      In the notes of Mankey’s comments, there was white tape placed over the sentence: “Even without surgery, the optimal physiotherapy schedule for Tarryn is three times a week.” These exhibits were entered by Russell & DuMoulin.

      In the exhibit file of Donella Oliver’s medical records, there were notes attributed to Dr. Heather Morrison dated April 4, 1982, August 3, 1982, and November 15, 1982. Each note was written in very different handwriting.

      Morrison told the Straight—with Oliver’s consent—that Oliver first visited her office in November 1982, almost five months after Tarryn was born.

      In the exhibits of Tarryn Oliver’s medical records, there was an April 4, 1982, note identical to a note of the same date in Donella Oliver’s medical records. Oliver claimed that this note was written by the family doctor who was sued for not diagnosing gestational diabetes. These exhibits of Donella and Tarryn Oliver’s medical records were entered by the doctors’ lawyers with the firm of Harper Grey Easton.

      Wilkinson said he couldn’t comment on specific documents without seeing them, and he declined the Straight’s offer to visit the exhibit room.

      “How those things work is that documents just go in by agreement,” Wilkinson said. “It happens in 25 courtrooms [at the courthouse] every day. You just have to go and sit through a trial for a while and see how documents and opinion evidence is edited.”

      When asked if expert medical witnesses know deletions are sometimes made to their opinions, Wilkinson replied: “You’d have to ask each of them. There are varying levels of sophistication.”

      Oliver claimed that deleting single words, not to mention entire paragraphs, risks changing the meaning if it’s done without the approval of the witnesses.

      Earlier this year, the original trial judge, Meredith, rejected Oliver’s bid for a mistrial based on discrepancies in the exhibits. He also rejected applications to introduce examination-for-discovery transcripts and a “wage-loss” document.

      The original lawsuit was filed almost two years after Tarryn Oliver was delivered by caesarean section at Grace Hospital.

      In one of his letters entered in court, Harris wrote: “Subsequently, it became clear that Tarryn had multiple handicaps, including cerebral palsy causing numerous orthopaedic problems, petit mal seizures and an abnormal E.E.G., eye problems giving rise to legal blindness, and perceptual handicaps presumably arising out of central brain damage, this latter condition resulting in severe learning problems and considerable visual confusion at a central rather than peripheral origin.”

      In one of the sections that didn’t appear in the exhibit file during the original trial, Harris wrote: “I have never failed to be impressed with the sensible manner and perseverance with which this parent functioned as she sought to educate herself about Tarryn’s handicaps. Mrs. Oliver is an excellent mother who will leave no stone unturned, to achieve and obtain not just adequate but the best help for her child.”

      Not everyone has agreed with that interpretation. In 1987, neurologist Dr. J.E. Jan reported Oliver to the Ministry of Social Services and Housing, accusing her of child abuse for not allowing cataract surgery on her daughter.

      Two months later, the ministry dropped the matter after finding no evidence of abuse.

      Oliver showed the Straight an excerpt from a medical textbook that suggested 40 percent of all patients develop bilateral retinal detachment following congenital cataract extraction. Another eye specialist claimed that the risk of retinal detachment over a lifetime could be at least as high as 10 percent.

      Tarryn Oliver’s opthalmologist had recommended surgery in 1986 but concluded the decision to operate was something only a parent could make.

      Tarryn Oliver can read large print when it’s held close to her eyes. Her mother worried that surgery might cause total blindness, which she said would be too much for her daughter, given all her other handicaps.

      For periods of time, Oliver kept her daughter out of school when she wasn’t provided with a one-on-one tutor in the classroom. According to a letter from Laker to Fenlon, two expert witnesses felt the girl’s withdrawal from school “compounded her learning problems”.

      Harris, however, wrote that he supported Oliver’s decision because of the “essential nature” of one-on-one training.

      Oliver went through several lawyers and trial dates prior to the case finally being heard in January 1994. When one of her lawyers sought an adjournment in 1992, Justice J. Blair refused.

      “The defendants say that the guardian ad litem, Mrs. Oliver, has made a practice of retaining and dismissing counsel as trial dates draw nigh,” Blair said, according to a transcript of his oral reasons for the October 2 judgement.

      However, Oliver told the Straight that by 1992, none of her lawyers had obtained written reports from expert witnesses before trial, and that’s why she chose to change law firms every couple of years.

      Blair suggested an adjournment might be allowed if the public trustee were to assume guardianship of Oliver’s daughter.

      Shortly afterward, Oliver agreed to allow the public trustee to become Tarryn Oliver’s guardian, and in May 1993, the public trustee hired Russell & DuMoulin to act for Tarryn Oliver in court.

      Donella Oliver also hired the firm to act for herself in a separate claim within the same case, and unlike Oliver’s previous lawyers, Russell & DuMoulin obtained written reports from many expert witnesses.

      The plaintiffs argued that Tarryn Oliver’s problems resulted in part from the general practitioner failing to diagnose gestational diabetes in her mother. Shortly before the trial was to begin, the doctor’s lawyers acknowledged that gestational diabetes hadn’t been diagnosed but did not accept that it caused damage to the child.

      The plaintiffs also argued that the obstetrician delayed performing a caesarean section after clear signs of fetal distress, which was denied by the defendants.

      The settlement carries no breakdown of responsibilities. It provides Tarryn Oliver with $2,461 per month beginning on July 21, 1994, indexed at three percent and compounded annually. There are several guaranteed lump sums: $20,000 in 2001, $30,000 in 2007, $50,000 in 2012, $100,000 in 2022, and $150,000 in 2032.

      In her letter to the public trustee’s office prior to the settlement, Fenlon wrote a detailed breakdown of what she thought “the best” that the Olivers might receive at trial. It included $75,000 in past wage loss for Donella Oliver and $389,000 in future wage loss for Tarryn Oliver.

      In Fenlon’s letter, another $100,000 was suggested for a life-skills worker, $132,021 for educational equipment, $109,533 for education services (reduced by Fenlon by 66 percent because she believed there would “be substantial resistance to providing the cost of one-on-one aid”), and nothing for psychological treatment, a speech-language pathologist, or medication. There was $10,000 listed for physiotherapy.

      Factors influencing a settlement can include loss of income, cost of care, and pain and suffering. In Oliver’s letter to Dosanjh, she alleged that the deletion of Mankey’s recommendation on physiotherapy “has cost Tarryn thousands of dollars”.

      She told the Straight that indexing payments at three percent per year will leave her daughter in poverty well before old age—even with the lump-sum payments—because inflation and medical costs will eat up the settlement.

      Huddart, however, concluded that the settlement “will provide Tarryn with a guaranteed income that does not depend on her or someone else’s management abilities”, and that the girl has “a significant intellectual ability” and “is not going to be totally handicapped”.

      Oliver filed notice of appeal, but Huddart had said no appeal could go ahead until she had addressed the issue of legal fees.

      As a result, Oliver applied to to the Court of Appeal in Chambers for an order extending the time for filing the appeal books. Lawyers for the defendants and the public trustee’s office fought that, claiming that Oliver had no standing because her daughter was already represented by the public trustee.

      Chief Justice Allan McEachern ruled that Oliver had no standing and therefore didn’t approve extending the time for filing the appeal books. Oliver then sought to have McEachern’s decision reviewed before Appeal Court Justices Taylor, Ryan, and Goldie, but Goldie stepped aside because he worked at Russell & DuMoulin up until four years ago.

      A new panel will hear the review application on November 27. If Oliver is denied standing again, her only recourse will be the Supreme Court of Canada.

      In the meantime, because Oliver did not accept her settlement, her lawsuit against the doctors and the hospital is still before Meredith, the trial judge. He won’t deliver a decision until the other appeals have been completed.

      Last March, Meredith wrote that he awaits further developments, “but with the prospect of retirement at age 75 on February 4, 1997 if I survive that long.”