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Author Topic: Stealth attack on women's rights?
Kevin_Laddle
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posted 03 November 2005 07:34 PM      Profile for Kevin_Laddle   Author's Homepage        Edit/Delete Post  Reply With Quote 
Anyone here about this law being proposed in Alberta? Essentially, it would allow a child who was injured while still in their mother's womb to hold the mother legally responisble later in their life.

This just seems so absurd, and so impossible to enforce that I am finding it hard to take it at face value. I sense an ulterior motive; by passing this law it is essentially looking out for the fetus' rights at the expense of the mothers.

quote:
Dave Eggen, a New Democrat member of the legislature, accused the ruling Tories of appealing to the province's social conservatives by eroding the rights of women.

http://www.cbc.ca/story/canada/national/2005/11/03/FetusLaw_051103.html


From: ISRAEL IS A TERRORIST STATE. ASK THE FAMILIES OF THE QANA MASSACRE VICTIMS. | Registered: Feb 2005  |  IP: Logged
HopeForUnity
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posted 03 November 2005 07:49 PM      Profile for HopeForUnity        Edit/Delete Post  Reply With Quote 
Ya it does seem absurd.But on the other hand

quote:
Justice Minister Dave Hancock says that if someone else had been driving the car, the child would have legal recourse because a lawsuit could be launched against them on the child's behalf.

http://www.cbc.ca/edmonton/story/ed_brooklyn20040422.html


So for the childs sake it works out in a weird sort of way.And hell, the Insurance company can afford it,they sure suck enough money out of us.

[ 03 November 2005: Message edited by: HopeForUnity ]


From: NS | Registered: Oct 2005  |  IP: Logged
Kevin_Laddle
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posted 03 November 2005 07:56 PM      Profile for Kevin_Laddle   Author's Homepage        Edit/Delete Post  Reply With Quote 
Yes, but the message this law sends is most troubling. It essentially implies that a women must face certain legal repercussions for how she chooses to do with her OWN body.
From: ISRAEL IS A TERRORIST STATE. ASK THE FAMILIES OF THE QANA MASSACRE VICTIMS. | Registered: Feb 2005  |  IP: Logged
karmapolice
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posted 03 November 2005 07:57 PM      Profile for karmapolice     Send New Private Message      Edit/Delete Post  Reply With Quote 
i heard about that on 1010 earlier today and thought: if a woman had an abortion, could the estate of the dead fetus sue the mother for damages? an attack on a woman's right to choose?
From: T Dot | Registered: Sep 2005  |  IP: Logged
kuri
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posted 03 November 2005 08:05 PM      Profile for kuri   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
I saw this in the Journal today. Very shocking! That article goes into some detail about the Rewega family, whose case apparently is driving the push for the new law.

quote:
Lisa Rewega was pregnant and driving to church on Dec. 31, 2000, when she lost control of her car and was thrown through the windshield in a rollover.

Her daughter, Brooklyn, was born four months later. She was blind and had brain damage and cerebral palsy.

The girl is now four and suffers from seizures throughout the day and needs constant care. The family believes her disabilities resulted from the accident.

Lisa Rewega is considered to be at fault in the crash, but the family is unable to sue her and her insurance company because of the 1999 Dobson decision by the Supreme Court of Canada, which prevents children from making claims against their mothers for events that happened before they were born.

If Brooklynn's father Doug, or anyone else had been driving, a claim could go ahead.


What I don't understand, is: isn't Ms. Rewega part of "the Rewega" family? It nevers seems to say just who is actually suing?


From: an employer more progressive than rabble.ca | Registered: Jun 2003  |  IP: Logged
Rufus Polson
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posted 03 November 2005 08:33 PM      Profile for Rufus Polson     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by karmapolice:
i heard about that on 1010 earlier today and thought: if a woman had an abortion, could the estate of the dead fetus sue the mother for damages? an attack on a woman's right to choose?

Can a dead fetus have an estate? Never having been born, it would hardly have had a chance to inherit anything. It's sort of like leaving your house to your dead father when you die--legally nonsensical, I would think.


From: Caithnard College | Registered: Nov 2002  |  IP: Logged
karmapolice
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posted 03 November 2005 09:17 PM      Profile for karmapolice     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by Rufus Polson:

Can a dead fetus have an estate? Never having been born, it would hardly have had a chance to inherit anything. It's sort of like leaving your house to your dead father when you die--legally nonsensical, I would think.


beats me. a fetus is a potential human, not fully developed. but, some people believe that life begins at conception, not birth, so the estate of an unborn child, ie, in the form of the father or the state, could sue the mother for damages, lost potential wages, etc. how much is a human worth? what would the average person earn in their lifetime?

a scenario. a woman and man are dating and the woman becomes pregnant. they break-up and she gets an abortion, without telling the man. the man, finding this out, sues on behalf of the estate of the aborted fetus.

is this likely to happen? probably not. but a law like this could create a lot of legal and ethical dilemmas.

[ 03 November 2005: Message edited by: karmapolice ]


From: T Dot | Registered: Sep 2005  |  IP: Logged
PEIguy
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posted 03 November 2005 09:34 PM      Profile for PEIguy     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
What I don't understand, is: isn't Ms. Rewega part of "the Rewega" family? It nevers seems to say just who is actually suing?

Apparently it is the Rewega's insurance company that would be paying, essentially giving enough money for the family to support a handicapped child. Hmmm, now we if we just had a healthcare system in this country .....


From: PEI | Registered: Sep 2005  |  IP: Logged
Giggity
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posted 04 November 2005 12:24 AM      Profile for Giggity     Send New Private Message      Edit/Delete Post  Reply With Quote 
I'm leaning towards sentiece as a being a precondition for individual rights. Is this not reasonable?
From: Toronto | Registered: Oct 2005  |  IP: Logged
Section 49
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posted 04 November 2005 01:04 AM      Profile for Section 49     Send New Private Message      Edit/Delete Post  Reply With Quote 
Here's the Dobson case, referred to in a couple of the articles. From Cory J.'s reasons, writing for the majority:

quote:
Although a duty of care to the born alive child may exist, for reasons of public policy, which will be explored later, that duty should not be imposed upon a pregnant woman. Matters of public policy are concerned with sensitive issues
that involve far-reaching and unpredictable implications for Canadian society. It follows that the legislature is the more appropriate forum for the consideration of such problems and the implementation of legislative solutions to them.

Writing concurring but seperate reasons (para 83 - 90), Mclachlan emphasizes the constitutional considerations of holding women liable to their foetuses, but only in the context of the common law, leaving the question of whether particular legislation could be constitutional open. It will be interesting to see if this law, if passed, would survive a Charter challenge.


From: Toronto | Registered: Oct 2002  |  IP: Logged
Nanuq
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posted 04 November 2005 02:14 AM      Profile for Nanuq   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
Interesting legislation, I wonder if it could be extended further to cover fetal exposure to the effects of alcohol and tobacco which can have long term affects on a child's later development. While they're at it, perhaps the mother could be sued for failing to provide proper nutrition for her baby while pregnant? The list goes on and on.
From: Toronto | Registered: Feb 2005  |  IP: Logged
byzantine
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posted 04 November 2005 03:10 AM      Profile for byzantine        Edit/Delete Post  Reply With Quote 
Yeah, Dobson is pretty much the ruling case. Here's the problem: Justice Cory was (rightly) uncomfortable allowing the now child (cause there's no cause of action for the baby until the baby is born alive) to sue the mother because of the possible implications for pregnant women. If mom negligently trips on the steps and damages the baby, will she now be liable? Dobson says that's a step too far as too great an infringement on mom's liberty.
The injustice in this case was that the mother wanted the child to sue so that the insurance company would be liable and that money could help pay for the child's special needs. If anyone else had been driving, including the father, the baby would have had a tort case.
A tough case all around.

From: saskatchewan | Registered: Aug 2005  |  IP: Logged
skdadl
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posted 04 November 2005 08:20 AM      Profile for skdadl     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by PEIguy:

Hmmm, now we if we just had a healthcare system in this country .....


That's the point that needs making.

In any non-trivial case of this kind, the issue is going to be public coverage of people with special long-term needs. So why don't we have in Canada excellent public care for people with special long-term needs?

As others have pointed out above, framing this as an issue of women's liability opens the door to severe limits on women's liberty and equality. Tyrannical ones, in fact. In a decent society, there would simply be no need to do that.


From: gone | Registered: May 2001  |  IP: Logged
cdnviking
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posted 04 November 2005 09:13 AM      Profile for cdnviking        Edit/Delete Post  Reply With Quote 
With respect to abortion and either the aborted fetus's estate or the father being able to sue, I doubt that that could happen.

In Tremblay v. Daigle (1989), the Supreme Court ruled that:

1) The Quebec Charter does not support the injunction restraining Ms. Daigle from having an abortion.

2) The Canadian Charter does not support the injunction restraining Ms. Daigle from having an abortion.

3) A potential father does not have the right to veto a woman’s decisions in respect to an abortion.

It seems that if a man doesn't have a right to veto a woman's choice, he wouldn't have the option of suing on behalf of the unborn fetus either.

I am concerned over what effect this will have on the mother. Are we now giving priority to a "parasitic organism" growing inside a woman's body over a woman's right to control her body (if you think about it, a fetus is a parasitic organism that draws from its host and returns nothing).

I hope this doesn't survive a Constitutional challenge.


From: The Centre of the Universe, Ontario... Just kidding | Registered: Jun 2005  |  IP: Logged
Mr. Magoo
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posted 04 November 2005 10:31 AM      Profile for Mr. Magoo   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
It would appear to be moving ahead.

I look forward to the day I can trash all of my possessions, maybe hit myself with a stick a few times, then sue myself in court, and have an insurance company pay the bill.

I mean, if someone else trashed all my possessions and assaulted me, I could take them to court, right? So what possible reason could there be for denying me the right to take myself to court?

I find this case particularly bizarre.

[ 04 November 2005: Message edited by: Mr. Magoo ]


From: ø¤°`°¤ø,¸_¸,ø¤°`°¤ø,¸_¸,ø¤°°¤ø,¸_¸,ø¤°°¤ø, | Registered: Dec 2002  |  IP: Logged
Stupendous-Girl
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posted 04 November 2005 10:35 AM      Profile for Stupendous-Girl     Send New Private Message      Edit/Delete Post  Reply With Quote 
Very often the Alberta government puts out a press release about "potential" legislation as a means of gauging public outcry or support.

It occurs to me that this might be another example. I doubt very much this issue will ever become law in Alberta.


From: Alberty - Land of the Ralph-Bucks | Registered: Oct 2005  |  IP: Logged
white rabbit
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posted 04 November 2005 02:25 PM      Profile for white rabbit     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by Giggity:
I'm leaning towards sentiece as a being a precondition for individual rights. Is this not reasonable?

Sentience has never been accepted as the precondition for individual rights. It might be a necessary precondition but it's an insufficient one.
The universal norm is that the fetus becomes an individual once it functions independently of the mother. If this proposal succeeds it will lead to
children suing for any range of damages incurred
in utero. This is about the social control of women and nothing more.


From: NS | Registered: Oct 2005  |  IP: Logged
Mr. Magoo
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posted 04 November 2005 02:42 PM      Profile for Mr. Magoo   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
This is about the social control of women and nothing more.

Well, actually it will be about social control of women and nothing more.

But for now it's about jerrymandering a loophole so that a company with big pockets can be made to foot the bill, and nothing more.

The intent seems to be to restrict the right of clumps of cells to sue parents to ONLY damages suffered in an automobile, and to ONLY what the insurance company will pay. Could it be more obvious that they're just looking for a way to offload the social cost of care for this child to the insurance company?


From: ø¤°`°¤ø,¸_¸,ø¤°`°¤ø,¸_¸,ø¤°°¤ø,¸_¸,ø¤°°¤ø, | Registered: Dec 2002  |  IP: Logged
Michelle
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posted 04 November 2005 02:49 PM      Profile for Michelle   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
I think this is ridiculous.

That said, Magoo, your analogy doesn't work. In this case, the family of the child wants to sue the mother (and thus the insurance company) so that a payment will be made either to them or to the child, I think. Whereas your possessions, being inanimate objects, can't sue you (and thus your insurance company) for payment.


From: I've got a fever, and the only prescription is more cowbell. | Registered: May 2001  |  IP: Logged
arborman
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posted 04 November 2005 02:52 PM      Profile for arborman     Send New Private Message      Edit/Delete Post  Reply With Quote 
Yup - while also providing a small sop and window of hope for the socon fundie club in my estimable home province.

The insurance companies, having deep pockets, would likely start and win a Charter case on this.


From: I'm a solipsist - isn't everyone? | Registered: Aug 2003  |  IP: Logged
Mr. Magoo
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posted 04 November 2005 03:01 PM      Profile for Mr. Magoo   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
That said, Magoo, your analogy doesn't work.

I'm just being pragmatic. Mother is suing herself here, realistically speaking. She caused the accident, and now she gets to cash the cheque.

So, why shouldn't I be allowed to cause myself harm, then sue myself for that harm? I know, that's quite absurd, and that was my point.

Interesting thought though: what if the courts ruled that the child could sue Mom, but also ruled that (due to some-or-other clause) the insurance company was NOT liable for the damages. Would Mom be legally obligated to come up with the settlement? Or would Mom, as the parent, have the legal right to "settle out of court" with herself on the child's behalf, perhaps accepting a settlement of a dollar to keep it legal?

[ 04 November 2005: Message edited by: Mr. Magoo ]


From: ø¤°`°¤ø,¸_¸,ø¤°`°¤ø,¸_¸,ø¤°°¤ø,¸_¸,ø¤°°¤ø, | Registered: Dec 2002  |  IP: Logged
Mush
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posted 04 November 2005 03:01 PM      Profile for Mush     Send New Private Message      Edit/Delete Post  Reply With Quote 
Being Friday, this is now at the top of the list for Dumbest Thing I Heard This Week.
From: Mrs. Fabro's Tiny Town | Registered: Mar 2003  |  IP: Logged
skdadl
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posted 04 November 2005 03:15 PM      Profile for skdadl     Send New Private Message      Edit/Delete Post  Reply With Quote 
The underlying issue is still inadequate health care.

We put many families in agonizing and slightly mad bureaucratic quandaries like these because we are unwilling to fund or organize various kinds of care well enough. In Ontario at the moment, eg, we are just beginning to untangle a horrific situation by which the parents of children needing long-term care were being required to sign over custody to the public guardian. Can anyone summon up the details of that scandal (a Harris legacy, of course)?


From: gone | Registered: May 2001  |  IP: Logged
fern hill
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posted 04 November 2005 03:15 PM      Profile for fern hill        Edit/Delete Post  Reply With Quote 
What a can of worms to open, seemingly because the province wants to duck paying long-term care costs and hit up insurance companies instead. Sure, there probably wouldn't be many cases like this, but still, I find it despicable for a government to advance this very bad idea.
From: away | Registered: Jan 2003  |  IP: Logged
Michelle
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posted 04 November 2005 03:25 PM      Profile for Michelle   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by Mr. Magoo:
I'm just being pragmatic. Mother is suing herself here, realistically speaking. She caused the accident, and now she gets to cash the cheque.

So, why shouldn't I be allowed to cause myself harm, then sue myself for that harm? I know, that's quite absurd, and that was my point.


It's still a bad analogy. Your example is of someone who purposefully destroys his belongings in order to make an insurance claim. That's called fraud.

Someone who gets into a car accident, even if the accident was their fault, is not doing it on purpose in order to potentially give birth to a disabled child or to hurt themselves. I mean, depending on your car insurance plan, you CAN collect even if the accident was your fault. That's the whole point of having insurance - in case of an accident or human error.

However, I think it's a mistake to claim damages on behalf of, what as at the time, a fetus and part of the mother's body, as though that fetus were an independent human being.


From: I've got a fever, and the only prescription is more cowbell. | Registered: May 2001  |  IP: Logged
cogito ergo sum
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posted 04 November 2005 03:28 PM      Profile for cogito ergo sum     Send New Private Message      Edit/Delete Post  Reply With Quote 
Assuming this law is being proposed with good intentions (I'm not sure of that, but for argument's sake I'm willing to work on that premise) then it's still the wrong way to go about getting the insurance company to pay for the child's long-term care needs. The right way would be to introduce legislation that states that insurance is liable for the long-term health costs for injuries sustained while a foetus.

As it stands now, an insurance company is liable for anyone's additional health costs as a result of an accident. This even applies drivers at fault. How hard would it be to extend that to cover a foetus? Doing so would solve the particular issue in the Rewega case without getting into the foetal vs. maternal rights morass.


From: not behind you, honest! | Registered: Oct 2005  |  IP: Logged
Stupendous-Girl
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posted 04 November 2005 03:29 PM      Profile for Stupendous-Girl     Send New Private Message      Edit/Delete Post  Reply With Quote 
I am having trouble how any legislation promoting litigation can possibly have good intent..
From: Alberty - Land of the Ralph-Bucks | Registered: Oct 2005  |  IP: Logged
Mr. Magoo
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posted 04 November 2005 03:36 PM      Profile for Mr. Magoo   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
It's still a bad analogy. Your example is of someone who purposefully destroys his belongings in order to make an insurance claim. That's called fraud.

Fair enough. Maybe a better example would be getting shitfaced, going for a drive (not trying to crash, just drinkin' and drivin'), and wrapping my car around a pole. I would think my insurance would either cover that or it wouldn't, but if not, I doubt I'd be permitted to sue myself, and be both plaintiff and defendant at the same time.

"That's right, your honour. I told me not to get behind the wheel, but I wouldn't listen to myself, and now my life is forever changed and it's all the fault of this person right here!"

quote:
I mean, depending on your car insurance plan, you CAN collect even if the accident was your fault.

I suppose that would be spelled out in my policy agreement. And the Rewega's.

quote:
That's the whole point of having insurance - in case of an accident or human error.

Agreed. But a policy has definite conditions, and these are made clear at the time of signing. If the policy were intended to cover an accident like this then I'm guessing it would have, and we wouldn't be hearing about this. If not (and it seems not), I don't see any merit or logic in the law creating a one-time loophole for one family to be allowed to rewrite their policy and collect on something for which they were not covered.


From: ø¤°`°¤ø,¸_¸,ø¤°`°¤ø,¸_¸,ø¤°°¤ø,¸_¸,ø¤°°¤ø, | Registered: Dec 2002  |  IP: Logged
Michelle
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posted 04 November 2005 03:40 PM      Profile for Michelle   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
She's not suing herself. Her family is suing on behalf of the child, are they not?

Also, I would think it would depend on your insurance plan, and how much liability insurance you have. Kind of like life insurance - some have suicide clauses, some don't, and some have a waiting period after which suicide is covered.


From: I've got a fever, and the only prescription is more cowbell. | Registered: May 2001  |  IP: Logged
Mr. Magoo
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posted 04 November 2005 03:48 PM      Profile for Mr. Magoo   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
She's not suing herself. Her family is suing on behalf of the child, are they not?

Well that's what I meant earlier when I said I was being pragmatic. From a legalistic viewpoint, she's acting as an agent for daughter, but this means that she could choose to sue or not to sue, and it means that when it's time to spend the settlement, it'll be her spending it, not her daughter. So realistically, she's suing herself. Or, if you prefer, she and her husband are suing her.

It seems obvious enough to me that were it not for the possibility of picking the insurance company's pocket, she certainly (or the family certainly) wouldn't be suing. That's what makes it look so blatantly opportunistic, to me at least. This isn't about "justice". It's about a loophole, and the bling that can be pulled through it.


From: ø¤°`°¤ø,¸_¸,ø¤°`°¤ø,¸_¸,ø¤°°¤ø,¸_¸,ø¤°°¤ø, | Registered: Dec 2002  |  IP: Logged
v michel
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posted 04 November 2005 04:26 PM      Profile for v michel     Send New Private Message      Edit/Delete Post  Reply With Quote 
There are hundreds of thousands of events that can occur during preganancy and cause significant damage to the fetus. It would be a legal and medical impossibility to sort through them all and determine:

1. Which events caused which disabilities.
2. Which events were under the mother's control, and which were not.
3. Which events carry a risk that a reasonable person would have foreseen and avoided.

Let alone to try and describe the interactions between multiple events and disabilities.

In this case, the family believes that the child's CP is a result of the accident? That's nice that they believe it, and it's certainly likely, but I don't see how they could prove it.

I agree with skdadl that the real shame in this is the lack of adequate care, which inspires people to search for such ridiculous solutions. That said, it raises a question: if the mother were to maliciously damage the fetus, and then give birth, should that child be able to sue as an adult for damages once he is financially responsible for his own care resulting from the disability?

[ 04 November 2005: Message edited by: vmichel ]


From: a protected valley in the middle of nothing | Registered: Jan 2005  |  IP: Logged
skdadl
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posted 04 November 2005 04:33 PM      Profile for skdadl     Send New Private Message      Edit/Delete Post  Reply With Quote 
"bling," Mr M? "bling"? Finding the resources to care for a child with CP is running after "bling"?

You try dealing with a private insurance company for catastrophic health costs. Well: why do I bother advising you to try investigating that situation? One way or another, it will befall you anyway.


From: gone | Registered: May 2001  |  IP: Logged
v michel
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posted 04 November 2005 04:38 PM      Profile for v michel     Send New Private Message      Edit/Delete Post  Reply With Quote 
Yeah, to echo skdadl I'm more inclined to see this as a family resorting to desparate measures than as a greedy loot grab. Whatever they get won't be enough.

[ 04 November 2005: Message edited by: vmichel ]


From: a protected valley in the middle of nothing | Registered: Jan 2005  |  IP: Logged
Mr. Magoo
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posted 04 November 2005 05:11 PM      Profile for Mr. Magoo   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
Albertans have to pay for health care out of pocket?

How do all of the parents of children with disabilities not caused by Mom's driving manage?


From: ø¤°`°¤ø,¸_¸,ø¤°`°¤ø,¸_¸,ø¤°°¤ø,¸_¸,ø¤°°¤ø, | Registered: Dec 2002  |  IP: Logged
brebis noire
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posted 04 November 2005 05:16 PM      Profile for brebis noire     Send New Private Message      Edit/Delete Post  Reply With Quote 
Well Magoo, if the name Robert Latimer doesn't ring a bell, I wonder if you have any understanding at all of the enormity of caring for disabled family members.
From: Quebec | Registered: Oct 2004  |  IP: Logged
skdadl
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posted 04 November 2005 05:17 PM      Profile for skdadl     Send New Private Message      Edit/Delete Post  Reply With Quote 
Probably very badly.

At last. I am so glad that someone finally made that comment, that an oblivious Canadian finally made that comment.

You obviously believe, Mr Magoo, that our health-care system covers all the expenses of catastrophic or chronic illnesses. Think again, Mr Magoo. Inform yourself.

And, I guess, prepare yourself.


From: gone | Registered: May 2001  |  IP: Logged
arborman
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posted 04 November 2005 05:20 PM      Profile for arborman     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by Mr. Magoo:
Albertans have to pay for health care out of pocket?
Albertans pay a monthly fee for health care, as do BC folks. I don't think that's what you mean.

As for private care - there is private health insurance (i.e. Blue Cross) that covers much more than the public care does (drugs etc). This varies significantly from province to province. Often they won't cover pre-existing maladies.

How that applies to a child born with a malady I have no idea.

How do all of the parents of children with disabilities not caused by Mom's driving manage?[/QB]



They likely don't. Chances are they struggle with it constantly, and very possibly have real dangers of bankruptcy etc.


From: I'm a solipsist - isn't everyone? | Registered: Aug 2003  |  IP: Logged
kuri
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posted 04 November 2005 05:26 PM      Profile for kuri   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
I agree that this is a ridiculous way of funding what should be a right of a child (not a foetus). Health care has been seriously neglected in northern Alberta. Numerous hospitals have closed since Klein came to power. A South African doctor in my parents' hometown has left saying that South Africa has more equitably funded health care than Alberta. Since the Rewegas live in the north, you can add huge transportation costs onto whatever other non-covered health costs they may have to cover for specialists, therapy, etc.

That said, I want the Rewegas to fail on this law. It's unjust and the wrong way to get what they need for their child. My main hope is that the power of the insurance companies (who are deadset against it) will effectively kill it. It's a strange world that makes me want to root for insurance companies.


From: an employer more progressive than rabble.ca | Registered: Jun 2003  |  IP: Logged
Mr. Magoo
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posted 04 November 2005 05:26 PM      Profile for Mr. Magoo   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Well Magoo, if the name Robert Latimer doesn't ring a bell, I wonder if you have any understanding at all of the enormity of caring for disabled family members.

What would money have done for Latimer? My understanding is that he didn't kill his daughter because she needed a special wheelchair and he couldn't afford it. My understanding is that he believed she was in constant pain.

Is there something financial about the Latimer story that I'm unaware of?

quote:
You obviously believe, Mr Magoo, that our health-care system covers all the expenses of catastrophic or chronic illnesses. Think again, Mr Magoo. Inform yourself.

Any chance you could be specific? What, exactly, would this child need in the way of medical care that would be out-of-pocket?

We seem to be going on assumption here.


From: ø¤°`°¤ø,¸_¸,ø¤°`°¤ø,¸_¸,ø¤°°¤ø,¸_¸,ø¤°°¤ø, | Registered: Dec 2002  |  IP: Logged
white rabbit
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posted 04 November 2005 05:28 PM      Profile for white rabbit     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by vmichel:

That said, it raises a question: if the mother were to maliciously damage the fetus, and then give birth, should that child be able to sue as an adult for damages once he is financially responsible for his own care resulting from the disability?


Short answer, no, because the complainant was not a person when the alleged harm was inflicted.


From: NS | Registered: Oct 2005  |  IP: Logged
skdadl
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posted 04 November 2005 05:31 PM      Profile for skdadl     Send New Private Message      Edit/Delete Post  Reply With Quote 
As I recall, Robert Latimer and his wife were giving their daughter Tracy (sp?) round-the-clock care with no help at all. That is as in no homecare, eg.

I've done that, but only for a period of months. I've heard stories from paramedics about what happens to people who go on longer. And I believe them.

The Latimers were facing hard choices: I believe that Tracy had further excruciating surgery scheduled, and they may have been faced with giving up custody to an institution. They were obviously strung out. We torture people like that, and then we throw them in jail.

[ 04 November 2005: Message edited by: skdadl ]


From: gone | Registered: May 2001  |  IP: Logged
Loretta
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posted 04 November 2005 06:10 PM      Profile for Loretta     Send New Private Message      Edit/Delete Post  Reply With Quote 
To get back to the original question, I don't think that this is a "stealth" (implying deliberate) attack on women's rights but, if successful, could serve as a starting place for those who are opposed to legalized abortion. Scary.

It should be, in a country with public health care services, unnecessary for someone to have to resort to this attempt in order to have any hope of getting access to adequate care and respite. Sadly, it's not and I don't blame them for trying.


From: The West Kootenays of BC | Registered: Apr 2001  |  IP: Logged
Mr. Magoo
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posted 04 November 2005 07:30 PM      Profile for Mr. Magoo   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
We torture people like that, and then we throw them in jail.

Do you mean in general? Or when they kill their child?


From: ø¤°`°¤ø,¸_¸,ø¤°`°¤ø,¸_¸,ø¤°°¤ø,¸_¸,ø¤°°¤ø, | Registered: Dec 2002  |  IP: Logged
West Coast Tiger
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posted 04 November 2005 07:41 PM      Profile for West Coast Tiger     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by Loretta:
... if successful, could serve as a starting place for those who are opposed to legalized abortion. Scary.

Oh agree with you there! Very scary, indeed! I would most unequivocally call this a stealth attack on women's rights, though.

As if we need any MORE proof that the Canadian Cons and the US Repubs have very similar agendas. Take heed, Canada.


From: I never was and never will be a Conservative | Registered: Aug 2005  |  IP: Logged
v michel
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posted 04 November 2005 08:47 PM      Profile for v michel     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by Mr. Magoo:
Albertans have to pay for health care out of pocket?

How do all of the parents of children with disabilities not caused by Mom's driving manage?


By way of example let's forget the CP and look at the child's brain damage, and assume some sort of mental retardation or learning problem is present. There is a lot of educational and/or behavioral therapy therapy that would be beneficial for a child with learning problems that isn't "medically necessary." This is just for the learning problems -- there are a host of other complications with CP and brain damage that we could examine similarly for costs.

Now I know nothing about Alberta, so this is my question: would this sort of care be covered under the health plan? Is educational and behavioral therapy considered a medical expense?If so, I applaud Alberta. If not, then this is one example of why additional funds mught be necessary for quality care.


From: a protected valley in the middle of nothing | Registered: Jan 2005  |  IP: Logged
skdadl
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posted 05 November 2005 08:53 AM      Profile for skdadl     Send New Private Message      Edit/Delete Post  Reply With Quote 
vmichel, public funding for the kinds of therapy that you're asking about are being debated across Canada right now. Some provinces are more inclined than others to pay for them, and there are controversies over whether such therapies would be considered basic and necessary health care. I've lost track of who is pursuing which cases where, but parents of autistic children, eg, may be preparing to take their challenges to the Supreme Court for rulings on Charter rights and the Canada Health Act.

I'll see if I can do a little research into the current shape of these debates. I know someone from Alberta who is writing a book on the topic.


From: gone | Registered: May 2001  |  IP: Logged
byzantine
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posted 05 November 2005 10:45 AM      Profile for byzantine        Edit/Delete Post  Reply With Quote 
Start with Auton. You'll find the Supreme Court of Canada is unwilling to compel the government to pay $40k or so a person. The battle for funding for autistic children has already been lost (for now).
What amuses me the most on this thread is the empathy some feel for insurance companies: as if insurance doesn't exist for the sole purpose of mitigating risk. So insurance companies can go merrily on, collecting their fees every month and making a mint. But when shit happens and they are called upon to do their job (ie. cover damages suffered) its somehow a big tragedy for them. Interesting.
And on the cause of action front, let me clear something up. A baby can sue for damage sustained in utero already. The only stipulation is that the baby must be born alive. The issue here is whether a baby can sue it's mother. That a baby can't sue the mother for damage in utero is an EXCEPTION to the general rule (See Dobson v. Dobson).

From: saskatchewan | Registered: Aug 2005  |  IP: Logged
skdadl
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posted 05 November 2005 11:07 AM      Profile for skdadl     Send New Private Message      Edit/Delete Post  Reply With Quote 
Thanks, byzantine. Here is the decision of the Supreme Court in the Auton Case.

It is interesting, because complex. vmichel may be interested in the use of the term "novel" to describe ABA.

Ah, well. May these struggles continue.


From: gone | Registered: May 2001  |  IP: Logged
skdadl
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posted 05 November 2005 11:23 AM      Profile for skdadl     Send New Private Message      Edit/Delete Post  Reply With Quote 
byzantine, or anyone else who has thought about these issues, will you help me to sort out in careful language one of the distinctions that I think too few Canadians grasp until they are facing some kinds of catastrophic or chronic illness?

One of the major factors that the court had to consider in the Auton case was the issue of so-called core services and the definition of health-care practitioners.

First, is it the case that only physicians and surgeons are defined as "health-care practitioners" by the Canada Health Act? Does it then follow that only the services delivered by (and/or ordered by?) physicians and surgeons can be considered core services?

Is it the case that these definitions have been worked out entirely between politicians (plus bureaucrats) and the medical profession? Who else has input?

It's fairly obvious why the major expenses of severe or chronic illness would not fall under the definition of core services -- the most important kinds of care delivered in those situations are not delivered by physicians.


From: gone | Registered: May 2001  |  IP: Logged
v michel
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posted 05 November 2005 11:44 AM      Profile for v michel     Send New Private Message      Edit/Delete Post  Reply With Quote 
Thx for the link, skdadl. That was very interesting. I am going to pile on with another question -- could someone explain this in layman's terms?

quote:
The legislative scheme is not itself discriminatory in providing funding for non-core services to some groups while denying funding for ABA/IBI therapy to autistic children. The scheme is, by its very terms, a partial health plan and its purpose is not to meet all medical needs. It follows that exclusion of particular non-core services cannot, without more, be viewed as an adverse distinction based on an enumerated ground. Rather, it is an anticipated feature of the legislative scheme.
[my bolding].

Is this basically saying, we never said the health plan would take care of all your medical needs?


From: a protected valley in the middle of nothing | Registered: Jan 2005  |  IP: Logged
byzantine
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posted 05 November 2005 12:10 PM      Profile for byzantine        Edit/Delete Post  Reply With Quote 
Well, those are good questions. I'm under the gun a little bit today in that I have an assignment to do, but I would suggest going straight to the Canada Health Act or any other relevant statutes. Each statute will often have an "interpretation" section, usually s.1 or s.2, and that would likely contain a defn. of "health care practitioner." Statutes can be found on the relevant government's website.
My personal view, for what it's worth, is that there is a subtext to the Auton case that can't really be ignored. The SCC has always, in my opinion, been a bit reluctant to force government's hand when it comes to massive spending. This is a separation of powers issue. Essentially, the court's reasoning may go something like this: it was a legislative decision not to cover ALL health care costs, only CORE health care costs. This is an "allocation of finite resources" decision, and the judiciary shouldn't interfere.
Now the message the SCC is sending to Canadians is, if you want more generous social programs don't look to the judiciary, look to the legislature. In other words, vote NDP.

From: saskatchewan | Registered: Aug 2005  |  IP: Logged
John K
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posted 05 November 2005 01:31 PM      Profile for John K        Edit/Delete Post  Reply With Quote 
In reply to the thread title, I would answer a cautious 'yes.'

The Rewega family's case - which is being used as the template justifying the need for this new law - has been promoted for several years by a well-known anti-choice lawyer.

As others have noted, if a foetus can gain the legal standing of a person in the admittedly narrow circumstance of being allowed to sue its mother who was at fault in a motor vehicle accident, this creates a legal precedent for a foetus being allowed to sue its mother in other cirucumstances including substance abuse and ultimately maybe suing for the right not to be aborted.

I am aware that this may be a bit of a stretch. The proposed new law will have to be examined very carefully though. If it says a foetus only gains the legal right to sue after it is born would this be a sufficient safeguard, or would it just create two classes of foetuses?


From: Edmonton | Registered: Nov 2002  |  IP: Logged
byzantine
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posted 05 November 2005 02:42 PM      Profile for byzantine        Edit/Delete Post  Reply With Quote 
Again:
"And on the cause of action front, let me clear something up. A baby can sue for damage sustained in utero already. The only stipulation is that the baby must be born alive. The issue here is whether a baby can sue it's mother. That a baby can't sue the mother for damage in utero is an EXCEPTION to the general rule (See Dobson v. Dobson). "

From: saskatchewan | Registered: Aug 2005  |  IP: Logged
Mr. Magoo
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posted 07 November 2005 12:30 PM      Profile for Mr. Magoo   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
What amuses me the most on this thread is the empathy some feel for insurance companies: as if insurance doesn't exist for the sole purpose of mitigating risk. So insurance companies can go merrily on, collecting their fees every month and making a mint.

Uh, I hardly think anything said on this thread was based on some kind of perverse "sympathy" for insurance companies. But we have this li'l thing in Canada called contract law, which suggests that if two parties agree to something then they've agreed, and neither of them gets to alter that agreement unilaterally.

If the insurance policy covers the Rewegas then great; that's what they agreed to.

If not, sorry; that's what they agreed to.

quote:
But when shit happens and they are called upon to do their job (ie. cover damages suffered) its somehow a big tragedy for them. Interesting.

Uh, sorry, but it's not the "job" of insurance companies to make life's little booboos go away, or turn frowns into smiles. It's their job to pay settlements, or not pay settlements, according to the terms that subscribers agreed to. If this policy was never intended to cover the current situation then the insurance company has every right to say "we didn't agree to this".

If you think your current homeowner's insurance or car insurance is some kind of blanket policy that will pay you money any time "something bad" happens, and you truly believe that's your insurer's "job" then you really should read the fine print on your policy.


From: ø¤°`°¤ø,¸_¸,ø¤°`°¤ø,¸_¸,ø¤°°¤ø,¸_¸,ø¤°°¤ø, | Registered: Dec 2002  |  IP: Logged
brebis noire
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posted 07 November 2005 12:40 PM      Profile for brebis noire     Send New Private Message      Edit/Delete Post  Reply With Quote 
If there's consensus by medical examiners that the baby's CP can be traced to the accident, then what is so awful about them paying the damages they owe to the assuree that result from an accident, no matter whose 'fault' it is? To me, this isn't a 'stealth attack on women's rights' - it's more of a recognition that the womb and the fetus are pretty much inseparable from a medical point of view.

Unless there's a 'we don't cover fetal injuries' clause in the insurance agreement, I don't see what the big problem is in asking them to pay up.

Magoo: it's painfully obvious you haven't the slightest notion about lifetime care for the disabled, so why don't you just stuff your wit where the sun don't shine?


From: Quebec | Registered: Oct 2004  |  IP: Logged
Mr. Magoo
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posted 07 November 2005 12:48 PM      Profile for Mr. Magoo   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Magoo: it's painfully obvious you haven't the slightest notion about lifetime care for the disabled

And I'm not trying to talk about lifetime care for the disabled. I'm talking about contracts, actually. Did you read what I just wrote? Can you tell me where, in that couple of paragraphs, I attempted to discuss the realities of palliative care? Where?

quote:
then what is so awful about them paying the damages they owe to the assuree that result from an accident, no matter whose 'fault' it is?

I'm not aware that anyone is obligated to do something just because it "wouldn't be so awful" if they did. Insurance policies cover some things and they don't cover other things. Sure, it would be swell if we could just say "Aw, shucks, c'mon, be a nice insurance company and pay out a fat settlement out of the goodness of your heart", but insurance companies are companies, not charities.

Why is it so difficult to understand the nature of insurance coverage?


From: ø¤°`°¤ø,¸_¸,ø¤°`°¤ø,¸_¸,ø¤°°¤ø,¸_¸,ø¤°°¤ø, | Registered: Dec 2002  |  IP: Logged
brebis noire
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posted 07 November 2005 12:52 PM      Profile for brebis noire     Send New Private Message      Edit/Delete Post  Reply With Quote 
You said:
quote:
but insurance companies are companies, not charities.

To which I repeat:

Unless there's a 'we don't cover fetal injuries' clause in the insurance agreement, I don't see what the big problem is in asking them to pay up.[/QUOTE]

If they can't insure accidents, maybe they shouldn't be in business.


From: Quebec | Registered: Oct 2004  |  IP: Logged
skdadl
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posted 07 November 2005 12:57 PM      Profile for skdadl     Send New Private Message      Edit/Delete Post  Reply With Quote 
Important distinction: "lifetime care for the disabled" is NOT "palliative care." Palliative care is pretty much pain control for those very close to death, and it is pretty much covered by public health insurance in Canada. Long-term care for the disabled is largely not.
From: gone | Registered: May 2001  |  IP: Logged
brebis noire
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posted 07 November 2005 01:09 PM      Profile for brebis noire     Send New Private Message      Edit/Delete Post  Reply With Quote 
Thanks skdadl, for pointing that out. I guess some people think that if you're not walking, then you must be in palliative care, eh? Such a cheering prospect for someone who has a life ahead of them - a challenging life, but a life nevertheless.

(Warning, upcoming thread drift: I often think that if more of us were faced with what wars, bombings, etc. do to human bodies that go on living in spite of the damages, as a country we'd be a lot less excited to go off and wage war, and to think it's a good way to fix diplomacy problems...)


From: Quebec | Registered: Oct 2004  |  IP: Logged
Mr. Magoo
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posted 07 November 2005 01:31 PM      Profile for Mr. Magoo   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Unless there's a 'we don't cover fetal injuries' clause in the insurance agreement, I don't see what the big problem is in asking them to pay up.

Insurance companies pay out settlements every day. So, I'm assuming that the Rewegas were not covered for this particular accident. I don't know the exact nature of their policy, but unless you have some factual information about their policy to share with us, I have no reason to believe that they were covered (and thus the insurance company is in violation of the agreement).

I have to figure that it the policy did indeed cover this, this news item would not exist.


From: ø¤°`°¤ø,¸_¸,ø¤°`°¤ø,¸_¸,ø¤°°¤ø,¸_¸,ø¤°°¤ø, | Registered: Dec 2002  |  IP: Logged
brebis noire
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posted 07 November 2005 01:49 PM      Profile for brebis noire     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by Mr. Magoo:
So, I'm assuming that the Rewegas were not covered for this particular accident.

Seems pretty sad when you think you're insured for accidents, but it turns out you really aren't.

Since you admit you're making assumptions, I'll add mine: insurance companies don't like making payouts.

And I'll repeat: if the baby's injuries can be linked to the accident, and if the insurance company covers ACCIDENTS, the company is liable. The baby was in the womb, the womb was injured during the ACCIDENT, so ACCIDENT INSURANCE is the way to go.

To me, the only reason the company shouldn't pay is if the baby's CP can't be linked to the accident.

And I truly hope that all of your insurance, Magoo, will cover any and all of your ACCIDENTS, so that you never have to go through any of that shit.


From: Quebec | Registered: Oct 2004  |  IP: Logged
v michel
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posted 07 November 2005 02:02 PM      Profile for v michel     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by Mr. Magoo:

Insurance companies pay out settlements every day. So, I'm assuming that the Rewegas were not covered for this particular accident.


I don't understand why their questioning a settlement has to equate with an unjustified cash grab. Yes, insurance companies pay out settlements every day, but once in a while an unusual one comes along (like this) where liability needs to be decided by the courts.

The family has a good argument for why this should be covered. The insurance company has a good argument for why it shouldn't be. The family is taking them to court, as is their right, to seek judgement.

I mean, honestly: the family does have a right to take the company to court if they think the settlement offered is in violation of their contract. That's not an act of greed, that's a legal right that they have. Must we all smile and comply with whatever insurance companies offer, lest we appear to be greedy and looking for "bling?"


From: a protected valley in the middle of nothing | Registered: Jan 2005  |  IP: Logged
Mr. Magoo
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posted 07 November 2005 02:09 PM      Profile for Mr. Magoo   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
They're certainly welcome to try. However, I think it's worth noting that they're not actually taking the insurance company to court in the belief that the policy should have covered this accident. They're attempting to write new law that would allow a child to sue its mother for injuries received in the womb.

I don't think I'm alone in thinking that this is a bit shortsighted. It may be great for the Rewegas — yay! A loophole! — but the repercussions for lots of other mothers whose children are injured in the womb through drinking, drug use or careless behaviour could be far more vast.

Now one might say that it's still a good thing; that injured children should have the protection of law, and that this is anything but a cash grab. However, it would appear that the law, if it's written, will be written in such a way as to ONLY apply to motor vehicle accidents and to be limited to what an insurance company will pay. So it's pretty obvious that this law will be a one-time law, custom written for the Rewegas to allow them to collect money.

If this were really about the principle, there would be no such conditions attached. But clearly the government wants to pick the insurance company's pocket while still looking like it's not opening the door for every kid born with FAS to sue.

If we're really worried about the kids, then why can't a kid born with FAS sue? Seriously.


From: ø¤°`°¤ø,¸_¸,ø¤°`°¤ø,¸_¸,ø¤°°¤ø,¸_¸,ø¤°°¤ø, | Registered: Dec 2002  |  IP: Logged
v michel
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posted 07 November 2005 02:17 PM      Profile for v michel     Send New Private Message      Edit/Delete Post  Reply With Quote 
I agree that it would be a bad law. I am also sympathetic to the family, however, and think they have a very good argument. I just don't see this as a loophole to pick the company's pockets. I think it's a reasonable (although ultimately wrong, I agree) expectation to have that insurance policies of this type cover this kind of damage, and to seek to change a law that prohibits such coverage.

quote:
However, it would appear that the law, if it's written, will be written in such a way as to ONLY apply to motor vehicle accidents and to be limited to what an insurance company will pay.
I totally agree that's wrong.

I think the difference between this and FAS would be that the child's injuries are purported to be the result of an automobile accident, and the parents bought insurance to cover damages caused in automobile accidents. If there were some kind of birth insurance, or drinking insurance, I could see FAS being convered. But comparable insurance doesn't exist for the act that leads to damage in FAS.

[ 07 November 2005: Message edited by: vmichel ]


From: a protected valley in the middle of nothing | Registered: Jan 2005  |  IP: Logged
v michel
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posted 07 November 2005 02:19 PM      Profile for v michel     Send New Private Message      Edit/Delete Post  Reply With Quote 
... although now that I think about it, drinking insurance would be an excellent idea!
From: a protected valley in the middle of nothing | Registered: Jan 2005  |  IP: Logged
Mr. Magoo
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posted 07 November 2005 02:24 PM      Profile for Mr. Magoo   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
If there were some kind of birth insurance, or drinking insurance, I could see FAS being convered. But comparable insurance doesn't exist for the act that leads to damage in FAS.

I'm not aware of any specifics in law that prevent an injured party from suing the person who caused their injury (but that allows them to sue that person's insurance company), nor am I aware of any limitation on tort law that prohibits an injured party from suing the person who caused their injury if that person lacks some kind of special insurance.

In other words, if this were really about kids and their rights, we'd allow kids to sue their parents for injury, full stop. No matter if mom or dad aren't "insured" for that injury. Let mom and dad pay out of pocket. Isn't that what happens when someone is liable for an injury and there's no insurance to pay for it?

But again, this isn't really about kids or their rights, or this wouldn't be restricted to basically this one case. They might as well add that the injury must be in a motor vehicle accident, the amount must be limited to what the insurance company will pay, and the plaintiff must be named Rewega.


From: ø¤°`°¤ø,¸_¸,ø¤°`°¤ø,¸_¸,ø¤°°¤ø,¸_¸,ø¤°°¤ø, | Registered: Dec 2002  |  IP: Logged
byzantine
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posted 07 November 2005 02:36 PM      Profile for byzantine        Edit/Delete Post  Reply With Quote 
Well apparently you're an expert on contract law magoo. But let me teach you a little something about tort law.
Everyone who drives likely (and hopefully) has at the very least PL (as in, personal liability coverage). In the Dobson case, the mother's negligence caused the damage to the plaintiff, her severely disabled child. Therefore, the plaintiff was the child, the defendant the mother.
With me so far? Or does sarcasm at the dangerous levels you espouse it affect your eyesight and/or reasoning abilities? (By the way, did you just discover sarcasm or something? Because that vitriol is the only thing I ever see from you, like a child with a new toy).
Back to your lesson. The mother was negligent viz. the child and therefore was liable for the damage. Remember that whole "personal liability coverage" thing?
The issue is, there's an exception, as I've already said several times, when it comes to mothers and damage in utero. If the father had been driving, LIABILITY WOULD HAVE BEEN IMPOSED and his insurance company WOULD HAVE HAD TO PAY. In other words, this law is only to remove the EXCEPTION in the case of the mother.
So quit being such a fool and go tilt at windmills in some other thread.

From: saskatchewan | Registered: Aug 2005  |  IP: Logged
Mr. Magoo
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posted 07 November 2005 02:44 PM      Profile for Mr. Magoo   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
The mother was negligent viz. the child and therefore was liable for the damage.

So tell us then, Atticus Finch, why it is that a mother can be negligent while driving, cause harm, and be liable for that harm, but if a mother is negligent in her duty of care (eg: by giving her fetus FAS) and she's not liable for that harm?

Gosh, it almost seems like mom is only liable when there's a big insurance company with deep pockets to pay for her liability!

quote:
By the way, did you just discover sarcasm or something? Because that vitriol is the only thing I ever see from you, like a child with a new toy

Ya, I jussst discovered it.

quote:
So quit being such a fool and go tilt at windmills in some other thread.

And it would appear that you've just discovered the fun of being a Mr. Bossypants. Does it need to be explicitly stated that I won't be following your orders? I mean, you must have know that, right?


From: ø¤°`°¤ø,¸_¸,ø¤°`°¤ø,¸_¸,ø¤°°¤ø,¸_¸,ø¤°°¤ø, | Registered: Dec 2002  |  IP: Logged
byzantine
rabble-rouser
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posted 07 November 2005 02:54 PM      Profile for byzantine        Edit/Delete Post  Reply With Quote 
My intent wasn't so much to get your compliance as to point out your cluelessness. So please, stick around and continue to prove me right.

Yours,
Atticus F.


From: saskatchewan | Registered: Aug 2005  |  IP: Logged
byzantine
rabble-rouser
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posted 07 November 2005 02:56 PM      Profile for byzantine        Edit/Delete Post  Reply With Quote 
Quote: "why it is that a mother can be negligent while driving, cause harm, and be liable for that harm, but if a mother is negligent in her duty of care (eg: by giving her fetus FAS) and she's not liable for that harm?"

Read the Dobson case. The reason there's an exception is so that mothers can't be held liable for drinking while pregnant, etc.

A.F.


From: saskatchewan | Registered: Aug 2005  |  IP: Logged
Mr. Magoo
guilty-pleasure
Babbler # 3469

posted 07 November 2005 03:08 PM      Profile for Mr. Magoo   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
The reason there's an exception is so that mothers can't be held liable for drinking while pregnant

Uh, that's what I'm asking. Why is it that if you cause your child injury through unsafe driving, the child has the right to sue, but if you do it with booze, drugs or other unsafe behaviour, the child cannot?

I believe, as I've suggested, that it's quite clearly because there's no insurance company to pay the bill.

If mom took PCP while pregnant? No lawsuit.

If mom inhaled model glue every day while pregnant? No lawsuit.

If mom bungee jumped repeatedly while pregnant? No lawsuit.

Funny how our concern for little Brooklyn seems entirely predicated on the fact that she was injured in a car, eh? If mom had injured her by downing a 40 of pure vodka every day, we wouldn't be having this conversation.

I'm not suggesting that the world would be a better place if every child injured by their parents could seek compensation for that. I'm merely pointing out that making a one-time exception to the general law is pretty transparent. Again, if mom had to pay dad out of her own pocket, there would be no lawsuit, and no news story.


From: ø¤°`°¤ø,¸_¸,ø¤°`°¤ø,¸_¸,ø¤°°¤ø,¸_¸,ø¤°°¤ø, | Registered: Dec 2002  |  IP: Logged
byzantine
rabble-rouser
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posted 07 November 2005 03:11 PM      Profile for byzantine        Edit/Delete Post  Reply With Quote 
The point of the Dobson case is that the child CAN'T SUE THE MOTHER for damage sustained in utero in a car accident, as I mentioned above. The point of this proposal is to put an end to that exception.
Clear as mud? No? Law school awaits you Magoo.

A.F.


From: saskatchewan | Registered: Aug 2005  |  IP: Logged
HeywoodFloyd
token right-wing mascot
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posted 07 November 2005 03:26 PM      Profile for HeywoodFloyd     Send New Private Message      Edit/Delete Post  Reply With Quote 
But can the child sue the mother for FAS?

(sorry, I haven't read the whole thread)


From: Edmonton: This place sucks | Registered: Jun 2003  |  IP: Logged
Mr. Magoo
guilty-pleasure
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posted 07 November 2005 04:38 PM      Profile for Mr. Magoo   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
The point of the Dobson case is that the child CAN'T SUE THE MOTHER for damage sustained in utero in a car accident, as I mentioned above. The point of this proposal is to put an end to that exception.

Ya, I think we're all on the same page in that regard. Children are exempted from suing their mothers for damages incurred in the womb as a result of mom's negligence.

This lawsuit seeks to end this exception. I get that.

But in an attempt to not actually end this exception (ie: lest any kid born addicted to cocaine try to sue mom, thanks to this exception being removed) they add new exceptions: now a fetus can sue its mom, but only if it's injured in a motor vehicle accident, and only for damages up to what an insurance company will pay.

All I'm pointing out is that that kind of makes it look just an eensie bit like an attempt to extract money from insurance companies, rather than a genuine attempt to remove the exception and allow children to seek redress from their parents for ALL injury incurred in the womb.


From: ø¤°`°¤ø,¸_¸,ø¤°`°¤ø,¸_¸,ø¤°°¤ø,¸_¸,ø¤°°¤ø, | Registered: Dec 2002  |  IP: Logged
byzantine
rabble-rouser
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posted 07 November 2005 06:20 PM      Profile for byzantine        Edit/Delete Post  Reply With Quote 
The principle of deep pockets is applicable to all civil law.
If mom walks up to five year old child, hits said child in the head with a baseball bat, and causes damage, child could have an assault/battery case against mom. These cases would in general never arise because collecting a judgment from mom would in most cases merely be taking food out of the child's mouth in any event. In other words, its not about whether the child CAN sue, it's about there being no point to sue (and that's even before you factor in my fees).
Now if mom by chance had an insurance policy that purported to cover any liability arising out of mom's torts, that would be a different story and it might be economically viable for the child to sue mom. That's the way insurance and the law works. That's why there is insurance in the first place. Query whether it would profit you anything to sue a really poor guy for running you over in his van/home, but for insurance. What are you gonna do with the judgment if the guy ain't got no money, no wages and no property? So yeah, deep pockets is operating in this case, just as it operates in EVERY case.
In Dobson, though, the liability of the insurance company is a red herring because the SCC accepts that they are indeed liable for the driver's (ie. mom's) negligence.

From: saskatchewan | Registered: Aug 2005  |  IP: Logged
cdnviking
rabble-rouser
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posted 08 November 2005 10:35 PM      Profile for cdnviking        Edit/Delete Post  Reply With Quote 
I am a tad confused.

I have re-read the thread a few times and gone back to the news stories about the driving force behind this idea (the woman was in a car accident and the injuries sustained damaged the fetus and the child was born with huge medical problems).

The story says she was "at fault" for losing control of her vehicle. Is there a Highway Traffic Act (or Alberta equivilent) conviction assigning fault to her? Was there a trial and said conviction or is this the usual insurance industry assignment of blame, based on civil law ( I cut you off and you rear end me, YOU are at fault for the rear end accident 100%, even though I could be charged with careless driving for cutting you off)?

I am driving along a secondary road, in winter. The driving conditions are atrocious. I am taking "due care", based on driving conditions, weather, etc, and I STILL lose control and smash up my car, and I am seriously injured.

Ontario Law says I am at fault and guilty of careless driving because I "lost control of my vehicle", NO matter the circumstances.

I have my wife in the car, and she is injured (and so is the fetus). The child is born "damaged". The child can sue me but not the mother if the mother were driving?

Is this what has happened in this case or did she drink and drive or something?

In this VERY narrow case, I think I agree that the woman should be sued, the same as the man. I don't quite believe this is an open door to suing a mother over every little thing, if this is the ONLY circumstance permitted by the new law (removing the exemption as byzantine suggests).

If it is "all encompassing", then I have a problem with it!


From: The Centre of the Universe, Ontario... Just kidding | Registered: Jun 2005  |  IP: Logged
Boarsbreath
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posted 04 December 2005 09:11 PM      Profile for Boarsbreath   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
Cdnviking, you're quoting rules of thumb, not the law. Fault is determined in all the circumstances, and theoretically you can drive into a telephone pole, all alone, without being at fault. (Say, if someone painted the yellow line to curve into the pole....those circumstances aren't very likely, which is why people will talk as though the rules of thumb were the law.)

But on the main point, boy, this is a good example of tort law going wrong.

Just trying to do too many things, I reckon. As byzantine suggested way up there, the SCC is just as aware of the implications for suing pregnant women as we are, and that's why they're shy of extending that liability. So they make a special 'exception'. Only, the exception's rationale as nothing to do with the rule's rationale...

The rule, the general rule, is that you are responsible for someone else's injury when it's your fault. You caused it, and did so by behaving in a way we reckon is not good enough. (Remember this has nothing to do with criminal liability.) The exception here -- and this whole thread's point -- is that sometimes we don't want to make that judgment. A pregnant woman negligently (not deliberately) injuring her own foetus is one such time.

Because that relationship is too intimate for lawyers' rule? Because the interference with the woman, and the effective discrimination, is intolerable? Either way, we don't apply the fault rule anymore -- which, I think, is what Mr Magoo's getting at.

Yet we know people can't realistically pay for these injuries. Eventually we'll do what we do in other such fields -- compulsory insurance schemes which don't operate on fault. It's just that to work here, that would have to be the big general one (the medicare system), and face it, that's billions and billions of dollars, and maybe the consensus about not interfering with pregnant women won't hold anymore.


From: South Seas, ex Montreal | Registered: Jul 2005  |  IP: Logged
ShyViolet
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posted 04 December 2005 09:16 PM      Profile for ShyViolet     Send New Private Message      Edit/Delete Post  Reply With Quote 
It's become law.

http://sympatico.msn.cbc.ca/story/canada/national/2005/12/02/albertasuit051202.html

quote:
--------------------------------------------------------------------------------
Alberta has become the first province in Canada to enact legislation allowing children to sue their mothers for injuries suffered in the womb. But the law applies only to damage suffered in car accidents.
....

In a ruling six years ago, the Supreme Court of Canada said a child can't sue its mother for damages suffered in the womb. But the ruling also left a small and very narrow loophole, saying provinces could allow a child to sue its mother, but only in the case of a car accident.

Alberta is now the first province to allow this.

"Had the father been driving, the suit could have been against the father," said Shannon Haggerty of the Alberta Justice Department. "But since the mother was at fault in that case, there was no ability for the child to go after the mother. So this will allow for the mother to also be part of that scope."

....

Other are worried the legislation could open the door to infringement of women's right, such as "suing a woman for causing brain damage in her fetus because she drank or smoked during her pregnancy," said Joyce Arthur of the Abortion Rights Coaltion. "And of course the anti-abortion groups could exploit the law as well."


--------------------------------------------------------------------------------


From: ~Love is like pi: natural, irrational, and very important~ | Registered: Aug 2004  |  IP: Logged
Diane Demorney
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posted 04 December 2005 09:18 PM      Profile for Diane Demorney   Author's Homepage     Send New Private Message      Edit/Delete Post  Reply With Quote 
I'm a little afraid of this law. Call it a hunch, but I'm pretty sure this will only end in tears.
From: Calgary | Registered: Jun 2004  |  IP: Logged
jariax
recent-rabble-rouser
Babbler # 11153

posted 04 December 2005 11:51 PM      Profile for jariax        Edit/Delete Post  Reply With Quote 
Well, I can see how it could be perceived as an attack women's rights - and on pro-choice.

But, realistically, if a child is born with FAS etc, as a result of its mother's drinking, or the father beating the mother while it is still in the womb, I think the child should have every right to sue the person responsible for its condition.

One danger, is that if a woman finds out through ultrasound that her child is damaged, she may decided to abort as a result in order to avoid legalities.

Another question, is that if the child is born deformed or with FAS, who should have the right to sue - only the child - the father, the mother?

And what conditions should allow the child to sue? if the mother falls - if the mother drinks too much, has an allergic reaction, plays ice hockey, smokes, does drugs etc.

Then, of course the causality needs to be shown as well.


From: toronto | Registered: Nov 2005  |  IP: Logged

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