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How Will Ontario Courts Compensate My Child After a Birth Injury?


A catastrophic birth injury can rob your child of his or her future even before your child take a breath in this world. Parents who planned to celebrate the arrival of their new baby instead must face the question of how to pay for a lifetime of medical care for a severely injured child. In many cases, such questions also include assessing the potential liability of the doctor or hospital that oversaw the delivery. Medical malpractice is a leading cause of birth injuries, and when parents can prove that was the case, they are entitled to recover significant economic damages from the responsible parties.

Butler v. Royal Victoria Hospital: Child Suffers Cerebral Palsy Following Birth Nurse’s Errors

Birth injury cases are seldom straightforward. Even when a medical provider admits liability, they may still challenge the nature and extent of the available damages. This is further complicated by the fact it is often difficult to quantify the exact impact of a lifelong injury.

Recently, the Court of Appeal for Ontario addressed a tragic case involving a now-11-year-old girl who was born with cerebral palsy. The girl was born in 2007 together with her twin brother. The brother was delivered vaginally without apparent incident. But the girl was delivered by Cesarean section after nurses at the hospital artificially ruptured her membranes. The rupturing “resulted in a compression of the umbilical cord for some 25 minutes,” according to court records.

Within half an hour of birth, the girl suffered “seizure-like activity.” She was also unable to move her limbs spontaneously for approximately three hours. Subsequent tests revealed the girl experienced “perinatal asphyxia” — that is to say, deprivation of oxygen — that was diagnosed as “very severe” by her paediatric neurologist. About a year after birth, the girl was formally diagnosed with cerebral palsy.

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In effect, the girl suffered severe brain damage at birth. As a result, according to her parents’ subsequent medical malpractice lawsuit, the girl sustained “serious and permanent” damage to her “gross and fine motor skills, speech, cognition, learning and behaviour.” She will never be in a position to live independently without 24-hour care. It also goes without saying the girl will never be able to attend normal schools or university, or to be employed in the job market.

Hospital Tries to Blame Victim’s Learning Disability on “Genetic” ADHD

At trial before Justice John R. McCarthy of the Ontario Superior Court of Justice, the defendants — the hospital and medical staff who delivered the girl — admitted that they erred in rupturing the membranes during delivery. They denied the parents could establish this mistake was the “but for” cause of their daughter’s asphyxia or the development of her cerebral palsy, however.

The defense further attempted to shift blame to the parents. They pointed to the parents’ “refusal to have [their daughter] participate in behavioural therapy” or undergo genetic testing that might have revealed she suffered from an inherited condition, such as attention deficit hyperactivity disorder (ADHD), that was the real cause of her present learning disabilities. The defendants further stipulated that even if damages were justified as a consequence of their negligence, the parents “greatly exaggerated” their daughter’s limitations and “gross and fine motor skills, speech, cognition, learning and behaviour.”

Justice McCarthy largely rejected the defence’s arguments. In a May 5, 2017 judgement, he concluded that the “balance of the evidence points to the hypoxic-ischemic brain injury suffered by [the girl] at birth being the sole cause of her cerebral palsy, behavioural and cognitive deficits.” The Court expressly rejected the defense’s suggestion that the girl had simply inherited ADHD. To the contrary, no doctor ever diagnosed the girl with ADHD, and in any event, Justice McCarthy said the medical evidence showed the probability of someone genetically inheriting such a condition was “less than 30%.”

Determining “Future Loss of Income”

Ultimately, the judge awarded total damages of nearly $5.6 million. Of that figure, about $1.9 million was for the girl’s “future loss of income.” The defence did not contest Justice McCarthy’s findings that the girl “will not be employable” at any point during her lifetime. But they nevertheless maintained the evidence failed to show that the girl “would have completed college” but-for her birth injury. Accordingly, they sought a reduction in the damages for future loss of income.

At trial, Justice McCarthy said that based on the parents’ own “education history” and “work ethic,” it was more likely than not that their daughter “would have been able to attain a college diploma and enter into the work force at age 21.” The Court of Appeal said this conclusion was “reasonable” and supported by “ample evidence.”

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The trial court also acted reasonably in accepting the testimony of the parents’ expert witness, an economist, who estimated the total loss of their daughter’s future earnings based on a number of factors. The mere fact the defence presented their own expert whose contrary conclusions the judge afforded less weight to does not, in and of itself, constitute reversible error. At the end of the day, the Court of Appeal noted, “Calculation of the future loss of income of any child, let alone one born profoundly disabled is not an exact science.”

Speak with a Toronto Serious Birth Injury Lawyer Today

Birth injuries are among the most emotionally and legally complicated kinds of medical malpractice claims. One issue that often arises is that it may take a few months or years before the injured child starts to manifest symptoms of a brain injury or developmental delay. As the above case illustrates, even once the effects are known, the hospital or doctors who performed the original birth will go out of their way to shift the blame to some other phantom cause.

This is why it is essential for parents to contact an Ontario birth injury lawyer if they have any reason to suspect their child has sustained permanent damage due to medical negligence. Hiring a lawyer does not mean you plan to go charging into court. In fact, at Preszler Injury Lawyers we usually take a more cautious approach. It is more important to make sure your child undergoes proper testing and evaluation before presenting a claim to a judge. If you need legal advice or assistance on how to deal with your child’s condition, call us today to schedule a free consultation.

Sources:

http://www.ontariocourts.ca/decisions/2018/2018ONCA0409.htm

https://www.canlii.org/en/on/onsc/doc/2017/2017onsc2792/2017onsc2792.html

 
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