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Personal Injury

Damages likely to be inadequate for victims of flawed drug tests

No amount of money can compensate for the damage caused to families ripped apart by faulty drug and alcohol testing, Toronto personal injury lawyer David Derfel tells AdvocateDaily.com.  

The Toronto Star reports that a two-year provincial investigation into flawed drug and alcohol testing at a Toronto hospital lab found 56 families were “broken apart” after the parents’ failed tests played a significant role in decisions to remove their children from their custody.

The story quotes one mother who managed to overturn a Crown wardship order six years later but noted that she was one of only four parents to have their children returned.   

“It’s so tragic. As a father of three kids, I can’t even imagine having them taken away and not having the money, resources or knowledge to fight it to be completely powerless in the face of something so devastating and overwhelming,” says Derfel, founder and principal of Derfel Injury Lawyers.

According to the Star, a series of lawsuits involving at least 300 plaintiffs have been launched against the hospital and key players in the lab.

“No amount of money could ever compensate a parent for that experience,” Derfel says. “It does make you reflect on the differences between our system for awarding damages and what happens in the U.S., where damages could be in the tens of millions of dollars. Here, it will be much less. An award of damages will never reflect the damage caused.”

The $10-million commission made 32 recommendations designed to prevent a recurrence, including a call for legislative amendments to improve judicial education and parents’ representation. The commission found that testing was “imposed on people who were among the poorest and most vulnerable members of our society, with scant regard for due process of their rights to privacy and bodily integrity.”

“Most of the parents who were tested were powerless to resist. They told us that they submitted to the testing under duress, in fear of losing custody of or access to their children,” says the commission report.

According to the Star, criticism of the lab first reached public attention in 2014 after a woman’s drug-related criminal convictions were overturned due to questions about the reliability of its hair testing results.   

Use of the hair test was suspended the following year, before the hospital formally apologized and the commission was launched.

Derfel says many claimants whose children were removed have a strong chance of establishing negligence against the hospital.

“Obviously there was a duty on the hospital to conduct appropriate tests. There is a direct causal link between the test results and the actions of the children’s aid societies,” he explains.

Regardless of the outcome of litigation, he says the whole episode makes a strong argument for oversight of hospitals, government agencies and other major institutions.  

“It’s important to have checks and balances because you can see how the actions can have such a devastating impact on the most vulnerable in our society,” Derfel says.

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