Brian Devlin QC

Brian obtained his law degree at the University of Windsor, ON, in 1976. Following this, he articled with the firm of Bennett Jones with Mr. Jack Major Q.C, as he then was, as his Principal. Brian was admitted to the Alberta Law Society in June of 1977 and formed his own firm at that time with , Noel O’Brien, Q.C. He has practiced with Mr. O’Brien Q.C. and his other associate , Don W. MacLeod,Q.C., for approximately thirtysix years.

In his  articling experience he was exposed to medical malpractice litigation, in which Mr. Major was  counsel and after being admitted to the Bar and since forming his own firm he has been representing injured people in  medical malpractice cases since approximately 1979.

In  his career Brian has defended  persons accused of all manner of criminal offences from impaired driving to first degree murder and has appeared on criminal cases at all levels of Court in Alberta and in the Supreme Court of Canada. Over the last fifteen to twenty years of his practice he has become very much focused on medical malpractice litigation and other serious personal injury cases. In the last ten years his practice has been  comprised of approximately 75% medical malpractice and  serious personal injury actions, mainly from motor vehicle accidents. He also continues to act for accused persons in serious  criminal litigation.

In the course of his litigation career dealing with medical malpractice cases, he has conducted approximately 20 full medical malpractice trials of which 6 were litigated at the Court of Appeal level as well, and one involved applications for  leave to appeal to the Supreme Court of Canada.

He has represented Plaintiffs in literally hundreds of medical malpractice cases, in which many cases have been resolved and in some cases gone to trial and appeal. All of these cases have involved obtaining expert opinions, pleadings,discoveries, preparation for trial and negotiations in relation to settlement.

In the course of this work he has dealt with a broad array of medical issues,including but not limited to the following:

1. Obstetrical/gynecological cases involving injury to internal organs during

delivery and brain damage to newborns due to hypoxia, ischemia, and

infection causing encephalopathy;

2. Abdominal surgery cases;

3. Numerous laser eye surgery complications;

4. Delayed diagnosis of glaucoma cases;

5. Orthopaedic and neurosurgical cases involving injuries to the spinal cord

causing paralysis;

6. Delay in diagnosis of cauda equina syndrome and spinal cord injury;

7. Orthopaedic surgery involving ankles, shoulders and foot surgery

complications;

8. Orthopaedic and general surgery cases involving knee replacement and

repair with complications including infection and arterial injury;

9. Emergency room cases involving delay in diagnosis and treatment re:

cardiac problems, internal hemorrhages, brain hemorrhages;

10. Delayed diagnosis and failure to treat breast cancer, skin cancer, bladder

cancer, lung cancer and other forms of cancer;

11. Failed plastic surgery cases and many others.

Brian has, in the area of medical malpractice and personal injury , delivered papers and lectures for the Canadian Institute, Alberta, Ontario and B.C. Trial Lawyer’s Association, Alberta Civil Trial Lawyers Association, as well as various sections of the Alberta Law Society sub-groups.

He has  specifically produced papers in relation to laser eye surgery, preparation and conduct of medical malpractice actions, assessing damages in infant claims involving severe brain damage, chronic pain and the assessment of chronic pain cases, as well as other papers and lectures in this area.

He has  participated in moot court and teaching presentations for various organizations,including the Dermatological Association and conferences put on by Legal Nurse Consulting in the area of medical malpractise..

He been listed in the Canadian Legal Lexpert Directory as "Consistently Recommended" in the area of medical negligence since the said Directory began publication.

He has also been listed in the Best Lawyers in Canada from 2006 through 2016 in personal injury law. This    publication,  is based on peer input. In 2010 he was chosen as Personal Injury  Lawyer of the Year in Southern Alberta by this well known publication  and named Calgary Lawyer of the year 2014 for Medical negligence cases. He is also the co author of the book A Practical Guide to Medical Malpractise Litigation-A Plaintiff's Perspective  published in 2011 and availabe through Carswell.

Mr. Devlin was inducted into the American College of Trial Lawyers in March 2016 (SEE PRESS RELEASE BELOW). 

The induction ceremony at which BRIAN DEVLIN QC   became a Fellow took place recently before an audience of approximately 570 persons during the recent 2016 Spring Meeting of the College in Maui, Hawaii.

Current Cases of Interest (Examples)

Medical Malpractise cases which are resolved or settled involve confidentiality conditions and therefore these cases cannot be commented on except where they have gone to a public trial and disposition. 

 Medical

 Dunlop v. Paras, 2010 ABQB 189 deals with medical malpractise limtation issues regarding children. In this case an action was commenced by Ontario lawyers  on behalf of a baby and her parents in Ontario from alleged negligence which was alleged to have occurred in an Alberta hospital. The action was dismissed in Ontario for lack of jurisdiction as all parties resided in Alberta at the time of birth .

Mr. Devlin was then retained and started an action in Alberta. The Defence lawyers for the Defendant  hospital and Drs.  immediately applied to strike out the action as being past the applicable limitation period. The Judge accepted Mr. Devlin's argument and  dismissed the application as regards  the child allowing her action to proceed . The case involved a precedent setting interpretation of the legislation. The defence has appealed  and the appeal is now set to be argued in the Court of Appeal  February  7, 2011.

Update February 15, 2011

This case was argued on the above date and a decision handed down three days later. The court has upheld the decison of the Court below and the case will be allowed to proceed to trial .

Cory v. Bass ABQB 2011

This case involved an ERCP procedure whereby a scope is placed down the esophagus into the duodenum and then used to explore the pancreatic ducts. In this case serious complications occurred which resulted in lengthy hospitalization and further surgery for the Plaintiff .The Court held that the defendant  Dr. had not obtained a full and proper informed consent from the Patient  and awarded the plaintiff approximately $200,000. including interest and costs. This case is presently being appealed by the defence to the Alberta Court of Appeal and is expected to be heard next April 3. This case has now been argued and the decision has been  reserved by the Court of Appeal.

Update-this case was decided in favour of the Plaintiff who finally received compensation and costs after a lengthy Court battle.

  Insurance 

Duke v. Clarica Life Insurance Company, 2008 ABCA 301

This  case involved a man who purchased a lump sum "critical illness" insurance policy ,a relatively new policy at the time.The policy paid $500,000. in the event that the insured contracted one of a number of diseases including cancer and Parkinson's disease amongst others. When the man was diagnosed with Parkinson's shortly after  the policy becoming effective  the insurance company refused to pay alleging that the man had symptoms of the disease before he bought the policy. The insurer argued that the wording of the policy allowed a denial of the claim in the circumstances since there was evidence of the existence of the disease in retrospect even thought he insured did not know about it and had not been told that any Dr thought he had Parkinson's . Mr. Devlin commenced action on his behalf and was successful at trial in getting the full amount awarded plus costs and interest .

The insurance company was not satisfied and appealed ,however, the verdict was upheld on appeal  and the man received over $600,000. including interest and costs. The case set a precedent for the interpretation  of these types of policies.

Criminal

R. v. Smith, [2004] 3 S.C.R. 507, 2004 SCC 71 

Mr. Devlin's most recent case in the Supreme Court of Canada related to a man who had been accused and convicted at trial of a charge of sexual assault largely on the basis of DNA evidence found on the clothing of the accused. He was sentenced to 30 months in the penetentiary.

Mr. Devlin conducted the trial and then had him released on appeal bail while he appealed the case to the Alberta Court of Appeal. The majority of the Court did not agree however there was a dissenting judgement from one of the appeal judges. Mr. Devlin then took the case  to the Supreme Court of Canada  and was successful in persuading the Court that the trial judge and the Court of Appeal were both in error in their treatment of the DNA evidence. As a result a new trial was ordered in which Mr Devlin again defended the accused before a jury and had him acquitted completely of the charge. The fight had taken 2 trials, two appeals, and over 4 years 

Other Reported Cases of Interest (Most of  these cases can be found on the internet at CLII Canada Legal Institute a free database.)

Anderson-Redick v. Graham, 2000 ABQB 36 (Medical)

Callaghan v. Westfair Foods Ltd., 2001 ABCA 144(Insurance)

Counsel: Brian Devlin, Q.C.