Wagners Medical Malpractice Lawyer Blog

Babies are born every day in Nova Scotia, New Brunswick and PEI. While the birth of a new baby is usually one of the joyful moments in parents' life, tragically, there are times when that happiness can become catastrophic. All too often, as a result of the negligence a doctor or nurse, things go wrong in the hours or days before a birth causing lifelong permanent injuries to the child.

Because so many things can go wrong, mothers and babies need extra attention in the final stages of pregnancy and in the hours that lead up to delivery. Problems too often occur in a hospital delivery room, when the baby's injury is the avoidable result of negligent conduct by a doctor or nurse, or both.

There are many ways that birth injuries can occur. Injuries caused by a lack of oxygen are the most common. A lack of oxygen may cause an injury in a number of different ways. It may be the result of a lack of blood flow to the tissues (ischemia) or a lack of oxygen within the blood (hypoxia) or a combination of the two.

A baby who does not get enough oxygen during the labour and delivery process will usually demonstrate fetal distress. In the face of fetal distress, doctors and nurses are required to act with haste or else tragedy will occur. Brain injuries associated with oxygen deprivation are usually preventable. Through monitoring (usually by electronic fetal monitoring), fetal distress can often be picked up at an early stage and steps can be taken to have the baby delivered urgently in order to avoid any injury.

If oxygen deprivation goes undetected, or if the doctors and nurses do not act with appropriate urgency, a baby will likely sustain a brain injury. After birth, the baby may show low apgar scores. The baby may require resuscitation before he or she is able to breathe on his or her own. The baby may have poor tone, poor colour, a poor cry, poor suck, have a need for tube feeding, and/or have persistent abnormal tone. Seizures are often associated with fetal brain injuries. Such injured babies may require medications like Phenobarbital for seizures or antibiotics like Ampicillin and Gentamicin.

Babies who have suffered a brain injury may undergo extensive testing after birth. Abnormal blood gasses, x-rays, CT scans and MRIs may each be indicators of a brain injury.

Some babies with brain injury may have blindness or other vision deficits, epilepsy, quadriplegia or developmental delays. Some have more subtle injuries, which may not be as outwardly obvious but may still be very serious or disabling.

The costs of providing the life-long care and rehabilitation that a child with a brain injury needs can be huge. In addition, that child may not be able to grow up to be independent, or to earn a living in the future. A legal action may provide the funding needed to ensure that an injured child is properly taken care of in the future.

All too often babies in Nova Scotia, New Brunswick and PEI are born with preventable brain injuries. The experienced medical malpractice lawyers at Wagners have acted on behalf of many of their families and are pleased to have been able to achieve excellent results for many of them. Such funding will help the injured babies receive treatment and care suitable for their needs and, as best as possible, help them take steps to live with a degree of functional independence as they grow into adults.

Unfortunately it happens all too often that patients in Nova Scotia, New Brunswick and PEI are injured by amedical error. Medical malpractice cases can often be difficult to prove because the medical/hospital records are not readily available due to the passage of time. An experienced medical malpractice lawyer can still achieve justice on behalf of an injured patient in spite of the destruction of records. An example of this can be seen in a recent case out of the Ontario Court of Appeal.

The facts in Gutbir v. University Health Network are tragic. In January of 1984, a pregnant mother was admitted to hospital in her 42nd week of pregnancy. At 7am the next morning she went into labour. The attending nurse came into the room every 30-40 minutes to listen to the foetal heart rate. The foetal heart rate gives nurses and doctors an assessment of the condition of the infant. The nurse permitted everything to proceed normally. There was no sense of urgency. The mother assumed that her baby was healthy.

Her daughter was born at 3:45 pm. She was blue, silent and in critical condition upon delivery. A sense of panic set into the room for the first time. A specialist was promptly called. The baby was intubated and given oxygen. She survived but her brain was permanently damaged.

After the infant stabilized and was released, the family moved to Israel. It would be 15 year later, when the infant had aged and the extent of her injuries were fully realized, that the family commenced a lawsuit. By 2001, the Hospital where the child was born had destroyed all records relating to the birth. Fortunately, some records from other facilities were still available.

The lawsuit alleged that the doctor and main nurse were negligent in failing to detect signs of foetal distress through the heart monitoring. It was further alleged that by failing to detect the in-utero suffocation, the doctor and nurse permitted labour to continue instead of prompting urgent delivery; had they met the standard of care, and noticed the foetal distress, the brain injury could have been avoided. The doctor settled before trial. The hospital (who employed the nurse) did not.

Following a jury trial that lasted several weeks, the jury found in favour of the injured child. The records, having been destroyed, did not permit evidence on exactly what information was known by the nurse. However, the jury inferred from the evidence that the baby must have been in distress and that this would have been detectable by fetal heart monitoring. It agreed that the nurse must have been negligent for failing to see what was there to be seen: an infant in distress. The jury found that by failing to make this necessary observation, the baby stayed in the womb when she should have been promptly removed. The jury found that the failures of the nurse caused the brain injury.

The hospital appealed on the grounds that there was no evidence available to support these findings. Essentially, the hospital argued that because the records had been destroyed, the injured patient was unable to prove what information was available to the nurse and what the nurse may have done with that information.

The Court of Appeal carefully reviewed all of the evidence available to the jury at trial. Despite the lack of hospital records, the Court found that there was sufficient evidence to support the inferences of negligence and causation made by the jury. On the issue of causation, the Court stated:

[43] While there was no direct evidence of causation, there is evidence from which the jury could properly infer a causal connection. Dr. Carson testified that, if EFM had been used or IA had been done properly, the distress of the foetus would have been detected, detection would have prompted intervention, and intervention would likely have been beneficial in this case. The jury's answer tracks Dr. Carson's evidence which indicates that they accepted it. The evidence of Dr. Hill, a paediatric neurologist, was that it takes one or two hours of hypoxic ischemic insult before injury results. The extent of the injury increases as time goes on. The evidence of Dr. Carson and Dr. Hill establishes that, had the standard of care with respect to foetal monitoring not been breached, the distress of the foetus would have been detected and, once detected, there was sufficient time to deliver Zmora before injury to her brain resulted.

[44] Further, given the evidence that the attending nurse fell below the standard of care with respect to foetal heart rate monitoring, and the jury's rejection of the alternate theory that hypoglycaemia was a major contributor to Zmora's brain damage (which is not contested on appeal), the nurse's breach is the only reasonable explanation for the cause of Zmora's brain injury.

[45] The appellant further submits that the jury only found that any negligence on its part was found by the jury to be a "lost chance" to prevent permanent brain injury as opposed to a finding on the balance of probabilities that the appellant caused or materially contributed to Zmora's injuries. The appellant's submission is based on the following sentence in the jury's answer to question 2-b (i.e., how the attending nurse's breach of the standard care caused or materially contributed to the injuries of Zmora): "[Detection of foetal heartbeat abnormalities] would have allowed an earlier intervention, (birth of the baby), which could have prevented permanent brain injury." While this sentence taken in isolation can be read in the manner submitted by the appellant, when the jury's answers to the questions are read as a whole and in conjunction with Dr. Carson's evidence, we are satisfied the jury's finding was based on a balance of probabilities.

[46] Indeed, the jury's answer to the question on causation begins with, "On the balance of probabilities, Zmora's brain injury was caused by prolonged partial hypoxic insult. This would have taken place one to three hours before birth." The wording of the sentence relied on by the appellant reflects the jury's understanding that the longer the negligent situation prevailed, the more likely it was that serious permanent brain injury would result.

[47] Finally, we reject the appellant's submission that in order for causation to be established evidence as to exactly when irregular foetal heart beat began was required. Having regard to the evidence and the jury's answers to the two questions, if, as required by the standard of care, EFM had been used, or IA done after a contraction for the required length of time and with the required frequency, it is likely that the irregularities in the foetal heartbeat would have been noticed at a stage when permanent brain injury could have been prevented. In other words, the injuries were preventable on a balance of probabilities.

Sometimes direct evidence is not available. This case in an excellent example of how inferences can support findings of negligence and causation even in cases where direct evidence is not available.

Patients who are harmed by doctors or hospital staff usually are unaware that the harm resulted from negligence. Medical negligence is often far from their mind in such a situation. Recent data suggests that it should not be.

Recent data contained in a series of two reports from the Organization for Economic Co-operation and Development has shed light on how Canada compares to other nations with respect to the various aspects concerning health care. The results are troubling but not surprising.

While in some aspects Canada does very well and ranks quite highly in terms of health care, the authors of the reports observed and noted Canada's health care system shows alarmingly high rates of hospital errors. It the reports found this errors to be very concerning.

Although Canada is ranked quite high in breast cancer survival rates and also has a good record of preventable hospital stays when it comes to complications arising from asthma as well diabetes episodes, the Organization for Economic Co-operation and Development, which comprises 34 member nations, found that residents of Canada tend to be subjected to higher rates of hospital mistakes, unfavourable events, and sadly birth traumas which occur during delivery.

Another disturbing trend in Canada has to do with surgical procedures and foreign objects remaining in individuals who have had surgery. While any object left in a person after surgery is a significant occurrence, the higher rates may reflect on Canada's diligent process in collecting data related to hospital errors, the OECD report notes.

The OECD report also found in a survey of 11 countries, that Canada had the longest wait times for patients attempting to see medical specialists or to undergo elective surgeries.

The Canadian Institute for Health Information has reviewed the OECD data and has found that these multi-country comparisons are quite useful in assisting in the identification of the various shortcomings in Canada's health-care system.

In 2009, Canada spent just over 11% of its GDP on health, more than the average of all countries included in the OECD report. Per person spending was also more than the OECD average.

Hopefully these studies will provide an incentive for further studies aimed at identifying why Canada's hospital's show these troubling high rates of error. Why does Canada, a relatively prosperous nation with a purported first class health care system, continue to show such high hospital error rates? This important question needs to be addressed so that doctors and hospitals can take the necessary steps to keep their patients safe.

Pregnancy is an exciting time for expecting parents. While expecting mothers will typically do all the right things (eating healthy, exercising, etc.), complications still sometimes arise. Fortunately, the majority of these complications are preventable with proper medical care.

Preventing and/or treating birth complications starts with prenatal care. Prenatal care is recommended to all pregnant women because of its potential to improve the health of mothers and infants. According to The Centre for Disease Control and Prevention , inadequate use of prenatal care is associated with increased risk for low infant birth weight, premature births, neonatal mortality, infant mortality, and maternal mortality.

Prenatal care is typically performed by family doctors competent in obstetrics. If the family doctor does not practice obstetrics, an appropriate referral should be made. These doctors should identify possible risk factors and plan treatment accordingly.

During a mother's first visit, a full exam should be undertaken, this can include a series of tests used to detect or anticipate possible complications:

• a complete blood cell count (CBC)
• blood typing and screening for Rh antibodies
• for infections such as syphilis, hepatitis, gonorrhea, chlamydia, and (HIV)
• for evidence of previous exposure to chickenpox, measles, mumps, or rubella
• for cystic fibrosis
• for diabetes

Following this initial visit, even if there are no complications the doctor should schedule regular follow up examinations throughout the pregnancy. After several months the doctor should use an ultrasound as part of the care. This can detect fetal heartbeat or breathing movements and identify a variety of abnormalities that might affect the remainder of the pregnancy or delivery. If appropriately recognized through proper medical care, pre-labour complications can be addressed in a timely manner so minimize the harm to the baby.

During labour, most mothers are monitored regarding the well-being of their baby using external electronic fetal monitoring. These devices are attached to the mother's abdomen. The doctors and nurses are to monitor the fetal heart rate and the frequency and length of contractions. The doctors and nurses are trained to regularly review and interpret the monitoring and be on the lookout for signs of complications. The monitoring will be classified into either of three categories:

1. Reassuring - Based on the monitoring patterns, the baby can be assumed to have normal oxygen and acid base status
2. Non-reassuring - Red flags should be raised. Monitoring patters cannot reliably whether the baby is receiving sufficient oxygen or is acidotic.
3. Ominous - Fetal heart rate patterns should are associated with a dangerously low heart rate.

Where the fetal monitoring is non-reassuring or ominous, doctors and nurses must act. It is negligent not to. Ominous signs require urgent intervention because minutes count during the birth process. The failure to perform a timely c-section can result in a serious birth injury and is considered medical negligence. It is also negligent to fail to give needed oxygen to troubled babies post-birth.

Tragically each year in Nova Scotia, New Brunswick and P.E.I., there are many babies born with preventable serious birth injuries, including:

• Brain injury, such as cerebral palsy
• Muscle tightness, including spastic diplegia
• Brachial plexus injuries, such as erb's palsy
• Paralysis
• Excessive bleeding
• Infections
• Bleeding
• Skull and clavical fractures
• Cranial nerve trauma
• Spinal cord damage

Timely and proper treatment will significantly increase the likelihood that all children will be born healthy. Sadly, such treatment is not always provided and many damaged babies will suffer the consequences. The lawyers at Wagners are the most experienced birth injury lawyers in the Atlantic Provinces. They understand the physical, emotional and financial turmoil that can result from negligent birthing care and have assisted many families in obtaining the financial assistance needed to lessen or eliminate the monetary burden caused by the injuries.