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.

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.

Phenylketonuria ("PKU") is a treatable condition in which a baby is born without the ability to properly break down an amino acid called phenylalanine. This causes levels of the amino acid to build up in the body, which is harmful to the central nervous system and cause brain damage.

Because it's treatable if detected early, doctors routinely screen newborn babies for PKU. The usually screening test is known as a "Guthrie" test. It is important to the baby's health that this test be performed early and that the results are appropriately followed up on.

A recent case shows the tragic consequences which can occur when a doctor performs the testing negligently.

The newborn baby at the center of the case had an initial Guthrie test at two days of age. The lab reported the results as elevated levels of phenylalanine. A second test at seven days of age also showed elevated levels. Under established guidelines, the results were positive for PKU.

The lab results were made known to the baby's family doctor. Rather than starting treatment, the doctor chose to wait until the baby was one month old, at which point he sent him for a third round of testing. This time the lab reported results of "not elevated". The baby's doctor chose to do no further testing.

Three years later, over concerns about his mental development, the infant was assessed by developmental paediatrician for further investigation. The investigation revealed that the infant had classical PKU, the most severe form of the disorder. Unfortunately, because of the long delay in diagnosing the condition, treatment was too late. The family sought compensation for the negligence of the baby's family doctor, who had failed to follow up on the early elevated findings.

After a trial, the judge found that the doctor's treatment had fallen below the standard of care. The judge stated that the first two elevated test results "should have raised a level of suspicion that [the baby] had PKU". The doctor should have done diagnostic testing, instead of ordering a third Guthrie test. The judge found that it was negligent for the doctor to have discharged the baby from further follow-up without a diagnostic test.

The doctor appealed the finding of negligence. He advanced what is known as the "respectable minority principle". This principle holds that where the practice followed by a doctor is adhered to by at least a respectable minority of competent medical practitioners in the same field; it is not for the court to prefer the practice of the majority over that of the respectable minority. The doctor argued that his treatment fell within the "respectable minority". The Court of Appeal rejected this argument.

In a recently released decision, the Court of Appeal also found in favour of the injured child. It did not accept the "respectable minority" argument, stating that the principle"does not absolve a doctor from liability in negligence whenever there is a conflict in the expert evidence led at trial concerning the reasonableness of a doctor's conduct". Instead the Court agreed with the conclusion that that the expert evidence did not establish that the doctor's decision to order a third Guthrie test in the face of two successive borderline elevated phe levels, instead of ordering a diagnostic test, accorded with a practice adopted by a respectable minority of the medical profession. It found no error in the finding that the doctor's actions fell below the standard of care and that, accordingly, he was negligent and liable for his patient's injuries.

This case represents an important ruling for medical patients in Nova Scotia, New Brunswick and P.E.I. who are injured as a result of the negligence of a doctor.