Birth injury is a prominent form of medical malpractice that can occur in Toronto. One the unique aspects of birth injury cases that differentiates them from other types of malpractice or negligence cases is that birth injuries do not manifest the damage that they represent right away.
For example, a child may sustain a brain injury during the birthing process. The effects of that brain injury in terms of the child’s normal growth and development, in terms of the child’s prospects for living a normal life in both personal and professional terms, may only become apparent many years later. Whereas in most personal injury cases, a person is acutely injured and it must be determined what that injury is and how it may affect their life, the complexity in birth injury cases is in tracing how the injuries developed and how the damages at issue in the case will represent what it means to make a person whole in relation to those injuries.
When birth injury becomes apparent, individuals may be able to receive compensation for the damages they have suffered. Skilled Toronto malpractice lawyers have a lot of experience with birth injury malpractice cases in Toronto, and they should be contacted as soon as possible to best help file a strong malpractice claim.
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One of the key types of symptoms of a birth injury shown through malpractice in Toronto is a neurological injury. For example, seizure activity during the birthing process is one of the strongest indicia of cerebral palsy.
Another symptom that can lead to the discovery of cerebral palsy is oxygen deprivation during or just after the birthing process. There are instances where parents have witnessed their children turning blue from lack of oxygen. Oxygen deprivation to the brain during these critical moments can lead to cerebral palsy.
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Erb’s palsy refers to a muscular and neurological disorder in the upper shoulder and arm area. Birth injuries may result in the manifestation of Erb’s palsy where there is a biomechanical injury to the baby during the birthing process.
For example, symptoms that may indicate that a child may be suffering from Erb’s palsy include if there is a compression, dislocation, distortion, or adverse disposition of the baby’s shoulder and arm during the birthing process. Such biomechanical abnormality may be a symptom of the child suffering from Erb’s palsy.
The role of negligence in Toronto birth injury malpractice cases is either with respect to the care and treatment that a mother is getting prior to giving birth or it may relate to negligence that occurs during the birthing process.
For example, if improper screening for certain conditions, such as a mother’s hypertension, is not done prior to the birth, then a failure to perform a caesarian-section could result in harm to the child attributable to negligence predating the birthing process. During the actual birthing process, there is, unfortunately, a very large scope of risks whereby the infant may be injured, ranging from mechanical error on the part of the surgeon operating in the course of the delivery, to improper medication of the mother that may lead to damage to the infant.
The risk of negligence causing injury to an infant exists from the time of conception. Unfortunately, when a child is a fetus, they are completely vulnerable to sustaining injury as a result of the mother’s negligence as well.
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In circumstances where a mother’s negligence is part of the reason why her child sustains a birth injury, the mother would be partially liable for contributing to this injury, even as she would have the standing to sue the doctor in respect of damages sustained by her child as a claimant under Ontario’s Family Law Act. In a Family Law Act claim made by the mother under these circumstances, the mother would be likely to be named as a Defendant in the lawsuit by way of counterclaim. The counterclaim in this Toronto birth injury malpractice case is what the Defendant doctor would have against the mother for her negligent contribution to the infant’s injuries, for which the doctor would otherwise be held liable.
For example, if a child sustained a birth injury that a court would rule was in part attributable to the mother’s negligent use of alcohol, the mother would be liable to indemnify the doctor by contributing to the total damages to which the infant is entitled in proportion to the extent to which the damages are attributable to her negligence.
Statute of Limitations
The application of the statute of limitations in a Toronto birth injury malpractice case, the Limitations Act, is predicated on a few important factors. In any case in Toronto where a person, by virtue of being a minor or by virtue of having a cognitive disability, is, in the eyes of the law, a person under disability without standing to instruct legal counsel, that person has to be represented for the purposes of litigation by someone called a litigation guardian. The litigation guardian instructs the lawyer on behalf of a person who, for whatever legal reason, is unable to give instructions to the lawyer on their own behalf.
When a person appoints a litigation guardian even if they are a minor and/or even if they are under a disability, they then are subject to a two-year limitation period to commence legal action. If a minor does not appoint a litigation guardian during the period where they are under a disability, then the limitation period does not expire until two years after they reach the age of majority—the age where the law regards them as having standing to enforce their own legal rights.
The next factor relevant to the determination of the applicability of the statute of limitations in Toronto birth injury cases is the principle of discoverability. This principle establishes that the limitation period to sue does not commence running until the injury that is the cause of action underlying the lawsuit is discoverable, which means that a reasonable person with reasonable due diligence could determine that they have grounds to make a claim and that the appropriate way to enforce that claim is by a legal action. Only at the point where the law would regard it as plausible for a reasonable person acting with reasonable diligence to discover the cause of their injuries, and that a lawsuit is the most appropriate means of prosecuting a claim in respect of these injuries, would those injuries be held to be discoverable.