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Friday, April 15, 2011
Fresh Medical Concern / 505
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The doctors should check to see if the testicular sack has not yet closed, due to Josiah's premature birth. In about 20-30% if premature male infants, there is an opening from the gut that allows some of the intestine to enter the scrotal sack, giving the appearance of a bruise, a bluish color, and even a hernia. That is, if this is the area of concern.
ReplyDeleteMy premature son had this problem located a month after it was reported to MCFD as a deliberately inflicted bruise / hernia. Expert examination proved otherwise a month later.
There was an interesting item in todays paper.
ReplyDeleteIt concerned a childbirth that went badly wrong and the parents sued the BC. Womens hospital and health care centre for damages. Supreme court justice Joel Groves awarded the parents five million dollars in damages after a thirty day trial.
However, the award was turned down on appeal and a new trial was ordered. This was a two to one decision. The reason for overturning the judgement was "plagiarism." The judge quoted large sections of the defence submission. This is acceptble PROVIDING HE MAKES IT CLEAR THAT HE IS QUOTING ANOTHER SOURCE. This he did not do. One justice disagreed What he said in effect was if the defence statement was fair and accurate, it did not matter much. However, all three judges agreed to a new trial. 321 out of 368 paragraphs were directly copied.
However, the thing that struck me was the following quote from the appeal judges."None of the parties to this litigation was fairly treated by the failure of the trial judge to grapple properly with this case." They continued " neither they nor they nor members of the public can be satisfied that justice was done. THE REASONS ARE NOT TRANSPARENT AND PERSUASIVE and their acceptance by this court would undermine the confidence of the public in the administration of justice."
Of course among other things, procedure once more reigns supreme in a court of law. It does not matter so much what the judge actually said but what mattered was not quoting his source. Of course without a copy of the defence submission, you would never know. However, I was struck by that phrase about the reasons not being transparent and persuasive. After Crabtree's ruling, I had begun to think that such things mattered not one jot. After all Doug Christie argued that a continuing care order would demand "clear and compelling evidence." Of course the same should apply to a temporary order. Judge Crabtree provided no transparent and persuasive arguments. He made his ruling on the fuzzy grounds that Mrs. Bayne showed inconsistency in her recall of things that happened three years earlier. Tranparent and persuasive? I don't think so and neither would an appeal court.
It should be noted the importance of a well crafted final argument as a strategy by the winning side. I have paid specialized research firms to construct such argument to make it harder for a judge to ignore.
ReplyDeleteIt is quite a compliment to a lawyer that a judge would reference parts of their argument. It is bias when a judge does not explain why the other side's argument does not work.
It is very interesting and useful to read that claiming plagiarism is a workable strategy to catch biased judges.
On lesser scale, in the Baynes case Judge Crabtree did not specify where he got some of his information such as the Baynes not cooperating with a risk assessment, but it is there in black and white in Finn Jensen's closing argument transcript. There are likely more examples.
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On a side note, canlii.org has posted the Bayens ruling by Crabtree at http://www.canlii.org/en/bc/bcpc/doc/2011/2011bcpc72/2011bcpc72.html
Unfortunately, there is no links from at least one relevant referenced ruling I'm interesting in reading the full text of, D.M.G v. Director, BCJ 682. Can someone please find this judgment.
To Anon 1:30 AM April 18
ReplyDeleteThis is a very informative listing of links, so thanks for that early morning research and submission.
To 10:57 AM April 17
ReplyDeleteThank you for your informed and perceptive comments.
And as always Ray Ferris, you cut to the heart of our worries for justice to people like the Baynes and this most recent comment you are right on with your remark, "Doug Christie argued that a continuing care order would demand "clear and compelling evidence." Of course the same should apply to a temporary order. Judge Crabtree provided no transparent and persuasive arguments."
ReplyDeleteRay Ferris at April 15, 2011 4:18 PM:
ReplyDeleteThat, I think, was a purely political decision, in order to prevent the award against the hospital, which was clearly liable. Groves is an honest judge.