Full Transcript for Understanding Birth Malpractice and Parental Legal Steps (September 2023)

result of a surgery, there's a good chance that somebody did something wrong, though no. 00:05:32.461 --> 00:05:34.447 Sometimes yes, but many times no. 00:05:34.447 --> 00:05:48.771 Surgeries can be fraught with inherent risks, but if a patient is in really rough shape, for example, it may be a totally reasonable decision to undertake a surgical intervention, because the risks of not proceeding are even worse than doing nothing. 00:05:49.500 --> 00:06:04.165 And honestly, Warren, even when we use over-the-counter medications like Tylenol or Advil, those products come with all sorts of warnings about the potential risks, so users are able to decide whether the product is right for them in those particular circumstances. 00:06:04.165 --> 00:06:11.076 The same thing goes with other medical interventions, like surgeries or blood transfusions or even having a baby. 00:06:11.076 --> 00:06:34.274 So when a patient has an adverse reaction or outcome, we need to go right back to the basics about that medical treatment or intervention, to see what the medical community has to say about the potential risks and benefits of the particular intervention or procedure in order to find out what can go wrong, even when the procedure is done by the book. 00:06:34.274 --> 00:06:51.646 If the risk someone has suffered or the injury someone has suffered was within the scope of the risks a patient accepted when they consented to a medical intervention, it can be very difficult to hold a medical treatment provider responsible for that adverse outcome in those circumstances. 00:06:52.548 --> 00:06:59.713 And, unfortunately, adverse outcomes happen in hospitals all the time, despite the best efforts of hardworking medical staff. 00:06:59.713 --> 00:07:05.797 But at the same time, not all medical interventions are done properly, and that's where we come in. 00:07:05.797 --> 00:07:24.093 So when we get involved, we're going to seek out independent medical experts who can review a client's medical records to tell us what went wrong, why it happened, and also help us sort out if someone actually did or failed to do something that they should have done under the circumstances. 00:07:24.093 --> 00:07:28.591 That's what we mean when we're talking about investigating that standard of care. 00:07:29.220 --> 00:07:43.019 And that standard of care is something we're going to talk about today, as we turn our focus to an especially challenging but important category of medical malpractice claim that Weir Bowen has a particular focus on, and that's obstetrical malpractice claims. 00:07:43.444 --> 00:07:46.803 So why do you think this is a challenging area of medical malpractice? 00:07:47.125 --> 00:07:55.029 So obviously, hundreds of thousands of pregnancies occur in Canada every year, but pregnancy itself is fraught with risks. 00:07:55.029 --> 00:08:03.326 Even as recently as five years ago, our maternal mortality rate was 8.3 deaths per 100,000 live births. 00:08:03.326 --> 00:08:09.435 And that's despite having access to some of the most advanced prenatal and obstetrical care in the world. 00:08:09.435 --> 00:08:23.430 And in addition, according to Statistics Canada, about one in every 25 Canadian babies will be born each year with a sort of congenital abnormality, and for many of them the cause is unknown or unpreventable. 00:08:23.430 --> 00:08:33.111 The key is trying to determine whether the child's injury was preventable, and that's especially challenging to determine when the injury is occurring in utero. 00:08:33.111 --> 00:08:50.950 However, avoidable injuries can and do happen during labor and delivery or in the early neonatal period, and some of these can lead to lifetimes of complications, dependency on others for activities of daily living and very costly care needs. 00:08:51.009 --> 00:09:07.922 And Weir Bowen is actually one of the founding members of an organization called the Birth Injury Lawyers Alliance, which was formed to improve the quality of representation for clients who have had children who have suffered injuries at or around the time of their birth. 00:09:07.922 --> 00:09:20.633 Another goal of the Birth Injury Lawyers Alliance is to educate the people on potential areas of obstetrical malpractice claims in order to make families more comfortable with picking up the phone and calling a lawyer who is experienced in the area. 00:09:20.633 --> 00:09:27.065 So that is a big reason why we wanted to dedicate an entire episode of Ask the Lawyer to these specific types of claims. 00:09:27.505 --> 00:09:33.086 Now I would imagine that it could be very difficult for a parent of a child with birth injuries to reach out to a lawyer. 00:09:33.086 --> 00:09:35.232 What has been your experience? 00:09:35.720 --> 00:09:36.101 Yeah. 00:09:36.101 --> 00:09:43.408 So as a new parent, it can be really hard to know if something went wrong during the labor and delivery process or in the newborn period. 00:09:43.408 --> 00:09:49.207 It can even be challenging to knowledgeable physicians who have access to all of the records. 00:09:49.207 --> 00:09:53.090 Anyone who's been through labor will tell you that it all becomes a blur. 00:09:53.090 --> 00:10:03.933 There are so many things happening even in an optimal labor and delivery scenario, so new parents are focused on the impending birth of their child and the immediate needs of their new baby. 00:10:03.933 --> 00:10:12.426 It may not be until sometime later that a parent even begins to think that something might have gone wrong, let alone that they should be reaching out to a lawyer. 00:10:13.207 --> 00:10:17.831 And in our experience, people tend to reach out to us because someone else has prompted them to do so. 00:10:17.831 --> 00:10:30.068 It could be a friend or a family member who knows someone or has heard about a potential lawsuit or has had personal experience that's resulted in a birth injury lawsuit itself. 00:10:30.068 --> 00:10:39.466 Very

frequently, the first words we hear from a potential client are I don't know if I should be calling you or not, but thought this might be worth looking into. 00:10:40.469 --> 00:10:42.019 Why do you think that is ? 00:10:42.881 --> 00:10:48.274 Well, I think there's many reasons why so many people don't call a lawyer about these types of claims. 00:10:48.274 --> 00:11:00.573 We thought we'd go through some of the reasons that we've identified why people don't reach out to us, and they generally fall into two categories a lack of information, and then there's some emotional barriers. 00:11:00.779 --> 00:11:05.951 So let's start by talking about the first category that you mentioned people lack information. 00:11:05.951 --> 00:11:06.812 What do you mean by that? 00:11:08.174 --> 00:11:16.533 People who may have experienced obstetrical malpractice often have a complete lack of information in a number of important areas. 00:11:16.533 --> 00:11:22.072 One of the first areas where people lack knowledge is with respect to medical information. 00:11:22.072 --> 00:11:30.025 Often families are not provided with the information they need to know what happened during labor and delivery or they're told something like. 00:11:30.025 --> 00:11:42.051 These things happen, and knowing whether a child's injury happened during labor and delivery or the neonatal period requires someone to look at the medical records who also has some medical knowledge to know what to look for. 00:11:42.051 --> 00:11:50.172 Even if a parent makes a request to a hospital for labor and delivery records, it can be really difficult to know what you're even looking at. 00:11:50.340 --> 00:11:56.373 There are nursing notes, fetal monitoring, fetal heart rate monitoring, tracings and strips. 00:11:56.373 --> 00:11:58.043 Sometimes there's blood work. 00:11:58.043 --> 00:12:05.250 That's important information as well as operative procedure reports with complicated medical terms and information. 00:12:05.250 --> 00:12:17.091 Parents, generally speaking, won't know what they're looking at or how to interpret the records to determine if what they're looking at means that someone may have made an error. 00:12:17.091 --> 00:12:24.114 Unfortunately, in addition, a lot of medical practitioners will not volunteer that information either. 00:12:24.114 --> 00:12:32.772 As a result, we frequently need to get independent medical experts to review the records for us to assist with providing this information. 00:12:32.772 --> 00:12:45.928 But given how many of these cases we have done over the years, our birth injury lawyers have a pretty good idea of what they're supposed to be looking for and clues that something may have gone wrong, which they can later try to confirm with their experts. 00:12:46.279 --> 00:12:54.149 I would also imagine that there are people who also wonder about things like whether they're too late or maybe there's some legal reason that they can't bring a claim. 00:12:54.711 --> 00:12:55.253 Absolutely. 00:12:55.253 --> 00:12:58.089 That's another informational barrier that people have. 00:12:58.089 --> 00:13:00.087 They lack legal information. 00:13:00.087 --> 00:13:07.655 We hear all the time you can't sue doctors in Canada right, and the answer is I do every day. 00:13:07.655 --> 00:13:08.219 So yes, you can. 00:13:08.219 --> 00:13:10.928 You definitely can sue doctors in Canada. 00:13:10.928 --> 00:13:15.552 It's not the easiest thing to do, but it is available to you if you have a good claim. 00:13:16.301 --> 00:13:17.443 And Warren you mentioned. 00:13:17.443 --> 00:13:27.865 People wonder whether it's too late to bring a claim, and this is also a common question from potential clients who have children who have suffered injuries around the time of birth. 00:13:27.865 --> 00:13:50.451 But sometimes the full extent of the injuries doesn't become apparent until the child is quite a bit older, especially if it's a milder injury that affects the child's ability to think or their executive functioning Things like impulse control, aggression, ability to initiate tasks things that you don't really expect to see in children until they get a little bit older. 00:13:50.451 --> 00:14:05.229 And in cases like that people may not realize that their child has significant barriers to living independently or being competitively employable until they're late in elementary school or even in junior high or beyond that. 00:14:05.229 --> 00:14:14.167 But those people need to know that they're not out of time and it's important that they contact a lawyer in those circumstances regardless. 00:14:15.081 --> 00:14:20.068 We talk about deadlines every show and this is a good time to raise it again. 00:14:20.068 --> 00:14:27.850 The general rule in Alberta is that you have two years to sue from the date that you knew, or ought to have known, that someone caused you injury. 00:14:27.850 --> 00:14:37.208 But there are exceptions to that, and two important exceptions are one for children they have until their 20th birthday to sue. 00:14:37.208 --> 00:14:43.327 And for adults who require a trustee to manage their affairs it's often called dependent adults. 00:14:43.327 --> 00:14:45.250 They don't have any limitation date. 00:14:45.250 --> 00:14:50.096 So when I say that, I'm not saying just sit and wait. 00:14:50.096 --> 00:14:54.807 I encourage anyone who suspects that they may have a claim not to wait. 00:14:54.868 --> 00:15:02.292 There are many reasons why the passage of time is not our friend, like medical records getting destroyed, memories fading. 00:15:02.292 --> 00:15:12.261 But, for example, if you have a child who's 15 years old and has been diagnosed with cerebral palsy and you suspect it was preventable, don't hesitate to call us. 00:15:12.261 --> 00:15:21.760 You probably won't know for sure whether it was preventable because, as we said, we generally need the medical records and expert opinions on those records to tell us whether

there is a case. 00:15:21.760 --> 00:15:24.565 So don't hesitate to call, even if you're not sure. 00:15:26.187 --> 00:15:31.315 Now, another area where people often lack legal information is in the area of consent forms. 00:15:31.315 --> 00:15:37.745 Often people think that if they signed a consent form, they are not able to sue healthcare practitioners. 00:15:37.765 --> 00:15:39.892 Now, I would imagine that this is something that a lot of people think. 00:15:39.892 --> 00:15:41.822 Is that not the case? 00:15:42.344 --> 00:15:43.546 No, it's not. 00:15:43.546 --> 00:15:56.634 It's important to point out that signing a consent form is not the same thing as signing a waiver, such as the types of forms that you see at trampoline parks or in ski hills or in those types of places. 00:15:56.634 --> 00:16:01.250 You do not waive your right to sue for negligence when you sign a consent form. 00:16:01.250 --> 00:16:19.631 Signing the consent form only confirms that you were consenting to the healthcare provider performing a procedure or treatment, so it protects that practitioner from a claim for battery or, in more common language, for an assault. 00:16:19.631 --> 00:16:31.494 So, in other words, it's a defense to you saying that you were assaulted by a healthcare practitioner and performing a procedure, but it doesn't prevent a claim in negligence. 00:16:32.360 --> 00:16:38.173 One thing that I think that most people are probably wondering is how much is this all going to cost me if I call you? 00:16:38.399 --> 00:16:39.624 Absolutely. 00:16:39.624 --> 00:16:44.090 That's one of the first questions we get asked and that's another area where people lack a lot of information. 00:16:44.090 --> 00:16:48.187 They worry about how much money are we going to charge them? 00:16:48.187 --> 00:16:52.567 They've got a lot going on, especially if they have a child with significant care needs. 00:16:52.567 --> 00:16:55.503 They think we're going to charge them a bunch of money. 00:16:55.503 --> 00:16:58.794 They worry about the cost of looking into a claim like this. 00:16:58.794 --> 00:17:11.034 At Weir Bowen we treat birth and neonatal injury claims a little differently than other claims at our firm because we recognize that there's an immense financial and emotional burden that these families experience. 00:17:11.034 --> 00:17:14.009 So we get paid on a contingency fee basis. 00:17:14.009 --> 00:17:17.988 What that means is we don't get paid for the time we spend on your case. 00:17:17.988 --> 00:17:20.452 Unless we get a settlement or a judgment, a trial. 00:17:20.452 --> 00:17:23.930 You won't be paying us hourly for any consultation or phone call. 00:17:25.201 --> 00:17:29.788 Now, one thing that we've seen time and time again is people not knowing who to approach. 00:17:29.788 --> 00:17:43.263 That's part of the reason we do this show, because there are very few lawyers who regularly and competently do obstetrical malpractice claims and people have a hard

time finding the right lawyer to assist them with these types of cases. 00:17:44.287 --> 00:17:46.943 Obstetrical malpractice claims are not easy to pursue. 00:17:46.943 --> 00:17:53.390 We have to prove that the standard of care was breached and that that breach caused an injury, proving causation. 00:17:53.390 --> 00:18:06.310 That connection between the breach of the standard of care or negligence and the injury can be particularly challenging in these cases and it requires in-depth knowledge of the medicine and connections with the medical experts who can assist us. 00:18:06.310 --> 00:18:19.873 People who have a potential obstetrical malpractice claim are ordinary folks who have usually never had to deal with a lawyer in their life and they don't know where to start to find someone who is competent in the area to pursue a claim for them. 00:18:19.873 --> 00:18:40.990 That's why, or an important reason why, our firm was a founding member With the Birth Injury Lawyers Alliance of Canada, and that was because we felt it was important To ensure that the right information is out there, to close that information gap about the medicine and, in addition, to connect people with lawyers who are competent in this important area of practice. 00:18:41.363 --> 00:18:44.703 So where do people go if they want more information About the Birth Injury Lawyers Alliance? 00:18:46.374 --> 00:18:54.871 So if people want to read more about the Birth Injury Lawyers Alliance and its members, they can go to the website, which is b-i-l-a dot ca. 00:18:54.871 --> 00:19:08.849 So bila dot ca Weir Bowen is the Alberta member of BILA, and there's a live chat function on the website and it connects to every member lawyer's profile as well, so you can email an individual lawyer through the website as well. 00:19:08.849 --> 00:19:11.528 Both Mike and I are members of that organization. 00:19:12.000 --> 00:19:19.815 Now I recall from past episodes that a number of Weir Bowen lawyers have been recognized in various published lists of respected lawyers. 00:19:19.815 --> 00:19:22.027 Does that assist our listeners here? 00:19:22.681 --> 00:19:23.362 I think it does. 00:19:23.362 --> 00:19:30.954 As we've mentioned in past episodes, there are lists published every year recognizing the top lawyers in various practice areas. 00:19:30.954 --> 00:19:45.134 Two of those lists are the Lexpert rankings and the Best Lawyers rankings, and we're proud to be able to say that many lawyers at Weir Bowen are in those rankings in the areas of medical malpractice and personal injury, including both of us sitting here today. 00:19:45.420 --> 00:19:49.688 So this is probably a very good time to remind our listeners how they can get a hold of you. 00:19:50.087 --> 00:20:09.910 Thanks, so anyone listening if they want to get a hold of us today, they can find us on our website, and that's at weirbowen dot com weirbowencom W-E-I-R-B-O-W-E-N dot com, or they can call our main reception line during business hours at 780-424-2030. 00:20:10.290 --> 00:20:19.779 This is Ask the Lawyer on the Windspeaker Radio Network, and today we're talking about the lack of information that a lot of people have who might have potential claims in this area. 00:20:19.779 --> 00:20:23.916 So if somebody calls you, what are some of the things that you're looking for? 00:20:24.811 --> 00:20:30.020 It depends on the kind of injury, so let's break it down into a few typical kinds of claims that we deal with. 00:20:30.020 --> 00:20:38.694 The largest area we deal with is children with brain injuries from oxygen deprivation, which doctors generally call hypoxic brain injuries. 00:20:38.694 --> 00:20:53.643 Hypoxia can be literally translated as low oxygen, which is obviously dangerous for anyone at any stage of life, but it can cause permanent brain injuries for babies during the labor and delivery period if it's not recognized and no intervention occurs. 00:20:54.391 --> 00:21:06.801 So in the labor and delivery process, during contractions, sometimes there are short periods of oxygen deprivation that the baby experiences, which our experts tell us is totally normal and expected. 00:21:06.801 --> 00:21:15.395 So when we look at the medical records, these short periods of oxygen deprivation don't necessarily set off red flags in and of themselves. 00:21:16.416 --> 00:21:25.405 If these periods of oxygen deprivation occur naturally during labor and delivery, even if everything is totally normal, how can there be medical malpractice associated with it? 00:21:32.130 --> 00:21:38.030 So I'll put it this way I've had an expert obstetrician say once that they do just two things they recognize risk and they take steps to reduce the risk In labor and delivery. 00:21:38.030 --> 00:21:43.301 The main tool aimed to recognize risk is electronic fetal heart monitoring. 00:21:43.301 --> 00:21:57.875 The point of monitoring the baby's heart rate during labor is to watch for patterns that develop, and the right people need to be watching for these patterns to make judgments on whether the baby is experiencing oxygen deprivation or not, or is doing well or not. 00:21:57.875 --> 00:22:12.605 The patterns that develop during more prolonged periods of oxygen deprivation are things that the doctors and nurses are trained to look for and need to worry about, because those are the things that can lead to hypoxic brain injuries. 00:22:13.287 --> 00:22:17.621 You mentioned that doctors are trained to recognize risk and take steps to reduce the risk. 00:22:17.621 --> 00:22:21.990 How do doctors do that in the example that you just gave ? 00:22:22.030 --> 00:22:27.398 To be frank, Warren they need to get the baby out If the baby is not doing well. 00:22:27.398 --> 00:22:41.097 The key in preventing injuries is to end the labor, either through a quick delivery or a cesarean section, or C-section as it's more commonly known, and these decisions need to happen quickly. 00:22:41.097 -->

00:22:45.461 Letting the situation languish can result in serious injuries. 00:22:46.451 --> 00:22:53.941 So when we're looking at whether there was an avoidable brain injury that happened during the labor and delivery, we have to look at a number of things. 00:22:53.941 --> 00:23:03.784 As I mentioned, we have to look at the patterns in the fetal heart, monitoring tracings, and then after birth, brain imaging is also usually done. 00:23:03.784 --> 00:23:06.317 So we look at what the brain imaging shows. 00:23:06.317 --> 00:23:08.041 We usually have to get experts to look at that. 00:23:08.041 --> 00:23:11.776 Also, what do the blood tests show? 00:23:12.278 --> 00:23:32.256 Often there's blood gases that are done and that tells us information, and there's all sorts of are done and that tells us information, and there's all sorts of other medical information in the records that can help us, depending on the context of the case, and so parents generally don't have the benefit of having easy access to that information, nor do they have the knowledge of what to ask for from the hospitals, let alone what to look for in the records. 00:23:32.256 --> 00:23:38.000 Unless they have someone in their lives that can help them through that, they're often left in the dark. 00:23:38.000 --> 00:23:46.220 That's why we aim to educate people about what we are looking for, and that might prompt someone to call us who might otherwise never reach out. 00:23:46.820 --> 00:23:52.297 This is Ask the Lawyer with Weir Bowen LLP across Alberta on CFWE and CJWE. 00:23:52.297 --> 00:23:59.674 Today we're speaking with Shelagh McGregor and Mike McVey and the topic today is obstetrical malpractice. 00:23:59.674 --> 00:24:06.116 You've mentioned that brain injuries from oxygen deprivation is one example of a birth injury case. 00:24:06.116 --> 00:24:06.939 Do you have another one? 00:24:07.882 --> 00:24:19.776 Another area we see quite frequently is cases involving a delay in the diagnosis and treatment of certain conditions in the newborn period like hypoglycemia or jaundice. 00:24:19.776 --> 00:24:21.980 Hypoglycemia that's low blood sugar? 00:24:22.641 --> 00:24:23.883 Yes, exactly so. 00:24:24.605 --> 00:24:31.089 Blood glucose levels that fall below normal can be just as catastrophic as low blood oxygen to a baby's brain. 00:24:31.089 --> 00:24:43.226 One of the most common metabolic problems in newborn infants is hypoglycemia, and some newborns are actually more vulnerable to having permanent consequences from low blood sugar than others. 00:24:43.226 --> 00:24:57.226 While a baby is in the hospital, their blood sugars may need to be monitored to make sure their systems are working properly, because, if they aren't, and the baby ends up with a brain injury from low blood sugar, that's an area that we often will deal with. 00:24:57.589 --> 00:24:57.911 So what kind of problems can arise from low blood sugar? 00:24:59.849 --> 00:25:06.990 So it depends on how low the sugars get and for how long, and the problems can be relatively mild if caught and treated properly. 00:25:06.990 --> 00:25:17.071 But severe hypoglycemia can result in more serious issues, including loss of cognitive function, speech problems and psychological or behavioral problems. 00:25:17.875 --> 00:25:23.451 You said that some newborns are more vulnerable than others to have problems relating to hypoglycemia. 00:25:23.451 --> 00:25:30.035 Is this something that a parent is supposed to know or be watching for, or is that entirely on the doctors and nurses? 00:25:31.057 --> 00:25:33.506 Some parents do know about these risks. 00:25:33.506 --> 00:25:50.442 For example, if a mother is known to be a diabetic, they may have some working knowledge about the importance of watching for signs of hypoglycemia or what the signs are in addition, and they understand that they need to take care of their own nutritional needs during the pregnancy. 00:25:50.442 --> 00:25:59.480 Pregnant moms with diabetes have a higher risk of miscarriage, preterm birth, stillbirth, malformations, high birth weights. 00:25:59.480 --> 00:26:02.986 So there's a lot to know about managing this condition during the pregnancy. 00:26:02.986 --> 00:26:14.265 When we have cases involving mothers with diabetes, it often translates to the standard of care being higher for the medical practitioner, given the risks that come along with gestational diabetes. 00:26:16.508 --> 00:26:21.260 For example, a diabetic mom may need to have modifications to their usual medications in order to keep their blood sugar stable. 00:26:21.260 --> 00:26:28.038 However, diabetes can also spontaneously develop during pregnancy, and that's known as gestational diabetes. 00:26:28.038 --> 00:26:37.614 This is something that should be routinely tested for during prenatal care because it's surprisingly common and can generally be managed once it's identified. 00:26:37.614 --> 00:26:45.736 I recently read a study that indicated approximately 4% of pregnant women develop gestational diabetes during their pregnancy. 00:26:45.736 --> 00:26:56.651 But if this goes undiagnosed or unrecognized and it's not managed or properly managed, it can be problematic for both the mom and the baby, even after the baby is born. 00:26:56.891 --> 00:26:57.271 How so? 00:26:57.833 --> 00:27:03.932 So an occasional hypoglycemic episode during pregnancy is pretty common and is generally not a big deal. 00:27:03.932 --> 00:27:25.382 But, like Mike mentioned, babies born to diabetic mothers are known to be at risk for growing too large, and they are more often needing to be delivered by C-section to avoid even more potentially preventable problems like a condition called shoulder dystocia, where the baby's shoulder gets stuck up against the mom's pelvis in the birth canal. 00:27:25.382 --> 00:27:35.180 Babies from diabetic mothers can also require a lot more by the way of nutrition when they're born, so they're more vulnerable to

hypoglycemia after they're born too. 00:27:35.180 --> 00:27:38.519 But it's not just big babies at risk of hypoglycemia. 00:27:38.519 --> 00:27:50.255 There's also babies that have struggled with the labor and delivery process or have hypoxic injuries that are also prone to hypoglycemia on top of that, and the doctors and nurses should know that too. 00:27:50.911 --> 00:27:56.462 So, Mike, when we were talking earlier, you mentioned birth injury cases relating to jaundice. 00:27:56.462 --> 00:28:01.122 From what I understand, that's a relatively common condition that many babies develop. 00:28:01.122 --> 00:28:04.324 Can anyone with a jaundiced baby sue for malpractice? 00:28:05.028 --> 00:28:13.163 You're right, jaundice is a very common condition and luckily it goes away pretty quickly in most cases. 00:28:13.163 --> 00:28:19.462 So no, simply having a baby with jaundice doesn't mean that we have a reason to sue anyone. 00:28:19.462 --> 00:28:23.141 It's the management of the jaundice that can result in the problems. 00:28:23.141 --> 00:28:31.137 So to give you a little bit of a primer on jaundice and what it is and why it's so common, I'd just like to explain that for a second. 00:28:32.171 --> 00:28:43.721 When a baby is born, they have a relatively high level of blood cells, but those blood cells break down quite quickly and then the byproduct of that breakdown is called bilirubin. 00:28:43.721 --> 00:28:53.734 It can take a newborn's body a few days to figure out how to eliminate the bilirubin from the body, and that's generally done by the liver. 00:28:53.734 --> 00:28:59.756 In the meantime, the bilirubin levels can build up, and this is what leads to jaundice. 00:28:59.756 --> 00:29:10.278 Now nurses and doctors have ways to measure the levels of bilirubin and jaundice to make sure that it goes away and that the levels don't get too high. 00:29:10.278 --> 00:29:20.143 Generally, as I said, this does resolve itself with regular feeding and bowel movements, as the newborn's body figures out how to deal with life on the outside. 00:29:20.143 --> 00:29:36.789 However, if it doesn't, if the jaundice levels continue to rise or don't fall appropriately, hospitals have something called phototherapy, which is just light therapy they can use to treat the jaundice therapy. 00:29:36.789 --> 00:29:43.811 A malpractice claim can arise when the doctors or nurses don't diagnose the jaundice appropriately or promptly enough, or where they don't use the proper treatment. 00:29:44.393 --> 00:29:47.079 Isn't it pretty obvious to diagnose a jaundiced baby? 00:29:47.079 --> 00:29:49.173 I'm not a doctor, but don't they look kind of yellow? 00:29:49.835 --> 00:29:50.075 Yep. 00:29:50.075 --> 00:29:53.482 Obvious jaundice is pretty easy to diagnose, you're right. 00:29:53.482 --> 00:30:03.482 The classic signs are yellowish skin or yellow tinges in the baby's eyes, but in some babies it can be harder to see, especially in newborns with darker skin pigments or darker eyes. 00:30:03.482 --> 00:30:13.500 And premature babies are also more susceptible to jaundice, amongst many other medical issues, because their systems just aren't developed enough yet. 00:30:13.500 --> 00:30:19.335 So it's critically important for preemies to be medically monitored for jaundice. 00:30:19.335 --> 00:30:29.773 Simply waiting to see if they turn yellow is not the best practice, and that's done through blood tests to check on the bilirubin levels, and if they're too high, then it needs to be treated. 00:30:30.214 --> 00:30:32.521 So what can happen if jaundice goes untreated? 00:30:33.310 --> 00:30:42.931 So, as I said earlier, jaundice often goes away on its own without medical intervention and in those cases there aren't serious consequences from the elevated levels. 00:30:42.931 --> 00:30:59.694 The most commonly known and used treatment for jaundice are those phototherapy lights where babies lie under lights so their skin is exposed and that light helps to change the bilirubin into a form that is easier for the baby to pass out of their body. 00:30:59.694 --> 00:31:15.741 Now, if that doesn't work, interventions can increase from there, including emergency blood exchanges or transfusions where the baby's blood is replaced with a blood from a donor which can quickly bring down bilirubin levels. 00:31:15.741 --> 00:31:29.935 This is pretty significant intervention, but it does speak to how important it is to get jaundice under control, and if they don't get jaundice under control or manage it appropriately, it can result in a brain injury to the baby. 00:31:30.390 --> 00:31:33.638 And I would imagine that a lot of our listeners would wonder how that could happen. 00:31:34.141 --> 00:31:38.121 Yeah, until I started doing this work, I hadn't even heard of bilirubin. 00:31:38.121 --> 00:31:43.170 But it's regularly produced in our bodies and normally gets excreted through the liver and urine. 00:31:43.170 --> 00:31:48.739 In the newborn period, the baby starts feeding and the normal bodily functions are just starting to work. 00:31:48.739 --> 00:31:57.458 But those systems don't always get moving as quickly as they might need to, and if the bilirubin builds up to unsafe levels, then it can cause brain injuries. 00:31:57.458 --> 00:32:07.296 If the jaundice doesn't go away with the usual treatment, it might also mean that there's something else that needs to be medically investigated, like an infection or a metabolic problem. 00:32:07.836 --> 00:32:13.977 This is Ask the Lawyer with Weir Bowen LLP across Alberta on CFWE and CJWE. 00:32:13.977 --> 00:32:20.318 Today we're speaking with Shelagh McGregor and Mike McVey and our topic today is obstetrical malpractice. 00:32:20.318 --> 00:32:25.394 Mike, you mentioned that it's important to hire a lawyer who has experience in this area. 00:32:25.394 --> 00:32:29.770 Has Weir Bowen had experience in running obstetrical malpractice trials? 00:32:30.250 --> 00:32:30.811 Yes, we have.

00:32:30.811 --> 00:32:39.805 I can confidently say that Weir Bowen has run more obstetrical malpractice trials than any other law firm in Alberta and that we have a good track record. 00:32:39.805 --> 00:32:48.845 We recently were successful in a case involving a delay in the diagnosis of a condition called twin to twin transfusion syndrome, which can cause brain injuries to both twins. 00:32:48.845 --> 00:32:58.045 And on top of that I can think of about five obstetrical trials we've run in the last 10 years or so in cases which we weren't able to resolve before trial. 00:32:58.650 --> 00:33:08.444 If one of our lawyers or one of our listeners sorry today thinks that their child may have sustained an obstetrical injury, what can they expect if they call a lawyer? 00:33:09.651 --> 00:33:16.503 First of all, I want to assure the listeners of what not to expect if they call we're Bowen and that's judgment. 00:33:16.503 --> 00:33:28.742 We completely understand that the process of pregnancy, labor and delivery is filled with a lot of emotion, and even for those who have brought a child into the world, or two into the world, there's still a lot of mystery around the process. 00:33:28.742 --> 00:33:35.624 So we don't have any expectation that your listeners are going to know all the answers about what went wrong or even what questions to ask. 00:33:40.470 --> 00:33:40.832 Yep, that's our job. 00:33:40.832 --> 00:33:44.227 During the very first phone call we're going to be asking a lot of questions, but many times our potential clients don't know what went wrong. 00:33:44.227 --> 00:33:46.756 They just suspect that something did go wrong. 00:33:46.756 --> 00:33:53.732 So we're going to ask questions to get as much information as we can, things like when was your baby born? 00:33:53.732 --> 00:33:55.375 Where was your baby born? 00:33:55.375 --> 00:33:57.537 Not all babies are born in hospitals. 00:33:57.537 --> 00:34:00.338 Who is managing mom's prenatal care? 00:34:00.338 --> 00:34:03.261 Was it an obstetrician, a family doctor, a midwife? 00:34:03.261 --> 00:34:05.163 Who delivered the baby? 00:34:05.163 --> 00:34:05.924 And how? 00:34:05.924 --> 00:34:07.306 Was it a natural birth? 00:34:07.306 --> 00:34:08.347 Was it a C-section? 00:34:08.347 --> 00:34:17.835 Remember about the birth, which sometimes people don't remember much. 00:34:17.835 --> 00:34:21.164 Sometimes people remember a lot and if they do remember something, did anything seem concerning? 00:34:21.164 --> 00:34:25.295 And then we'll ask things about your child, like how's your child doing now? 00:34:25.295 --> 00:34:29.853 Are they hitting any normal, you know, any of their normal developmental milestones? 00:34:30.675 --> 00:34:36.197 and, as we talked about earlier, we fully expect that most callers are going to have gaps in this information. 00:34:36.197 --> 00:34:39.849 Even the most knowledgeable clients are not going to know everything. 00:34:39.849 --> 00:34:52.583 So we would

likely take some steps to obtain medical records, which might include the mom's health records, including prenatal records, hospital records from the labor and delivery, the labor and delivery. 00:34:52.583 --> 00:35:17.369 In addition, we would be obtaining the baby's health records, potentially from the hospital, their pediatrician or their family doctor, and then we will take time to have a look at that information and give you our preliminary thoughts where we see areas of concern or not, and following that we may also make a recommendation to obtain an expert opinion or opinions on the matter. 00:35:17.831 --> 00:35:19.416 So why do you need expert opinions? 00:35:19.416 --> 00:35:21.240 I thought you guys were the experts. 00:35:21.429 --> 00:35:29.983 Yes, Well our expertise is legal and even though we do a lot of medical malpractice cases, we're still not qualified doctors. 00:35:29.983 --> 00:35:39.425 So, and honestly, no matter how long a medical malpractice lawyer practices in this niche area, there's always new things to learn. 00:35:39.425 --> 00:35:55.340 Obstetrical cases are frequently filled with surprises and before we recommend anyone launches into a lawsuit for a birth injury claim, we want to have independent medical experts review the relevant records and give us an unbiased opinion about the merits of the case. 00:35:56.001 --> 00:36:08.974 And if we ultimately do have to go to trial on a obstetrical malpractice case, we rely heavily on these experts to provide us with insights as to what happened, what went wrong and what should have been done to prevent the injuries. 00:36:08.974 --> 00:36:22.025 And these experts have a tremendously important job in helping us prepare for trial and, in addition, in assisting the court with respect to determining the issues or deciding the issues in dispute. 00:36:22.025 --> 00:36:29.443 So it's our practice to make sure we have solid expert opinions in place and as early as we can in the process. 00:36:30.070 --> 00:36:31.173 Who are these experts? 00:36:31.173 --> 00:36:32.800 Are they other doctors? 00:36:33.711 --> 00:36:35.036 Yeah, that's an excellent question. 00:36:35.036 --> 00:36:45.563 We do have an extensive network of medical legal experts and, in my humble opinion, I think that's what sets Weir Bowen apart in the medical malpractice space. 00:36:45.563 --> 00:36:55.217 We've diligently worked at cultivating relationships with experts who are going to give us an opinion we can trust, even if it's bad news and not supportive of a case. 00:36:55.217 --> 00:37:04.014 We want to know, we can rely on their opinions and we want experts who are actually willing to get involved in medical malpractice litigation. 00:37:04.014 --> 00:37:11.719 There are many doctors and nurses who are simply not willing to weigh in on the conduct of other medical professionals for a variety of reasons. 00:37:11.719 --> 00:37:20.391 So for those who are willing to get involved, we also want to make sure that they have the appropriate background to speak to the issues and that a court will give weight to their opinions. 00:37:21.094 --> 00:37:24.824 This is Ask the Lawyer on CFWE and CJWE. 00:37:24.824 --> 00:37:30.875 Today we're discussing obstetrical malpractice cases with Shelagh McGregor and Mike McVey from Weir Bowen LLP. 00:37:30.875 --> 00:37:33.938 Their website is weir bowen dot com. 00:37:33.938 --> 00:37:39.565 That's W-E-I-R-B-O-W-E-N dot com. 00:37:39.565 --> 00:37:43.365 Their phone number is 780-424-2030. 00:37:43.365 --> 00:37:48.561 We've reviewed some of the kinds of claims that your team deals with. 00:37:48.561 --> 00:37:54.983 I wanted to go back to something that Sheila had said earlier about why parents tend not to look into these kind of claims. 00:37:55.362 --> 00:37:55.583 Right. 00:37:55.583 --> 00:38:00.735 I said that there were two categories of reasons a lack of knowledge, which we've covered, and emotional barriers. 00:38:01.117 --> 00:38:01.277 Right. 00:38:01.277 --> 00:38:03.177 So what do you mean about emotional barriers? 00:38:04.152 --> 00:38:10.438 There are a number of emotional considerations that we see parents go through when they're considering a lawsuit on behalf of their injured child. 00:38:10.438 --> 00:38:27.039 One of the biggest ones is that parents of brain injured children, children with cerebral palsy, children with autism or other neurological disorders is that parents, are overwhelmed and have trouble with the thought of adding just one more thing to their very full plate. 00:38:28.206 --> 00:38:39.679 Now I actually have four kids myself, Warren, and as a parent of four kids, I know that the schedule, or the kid's schedule, can be very busy and hard to juggle. 00:38:39.679 --> 00:38:57.887 Having seen the number of appointments that our clients have to go to whether they are going to see neurologists, pediatricians, therapists such as speech, language, physio or occupational therapy it's not hard to imagine how the schedule becomes completely overwhelming for parents of a child who suffered an injury. 00:38:57.887 --> 00:39:03.867 We often hear from our clients that they are not thinking about pursuing a claim. 00:39:03.867 --> 00:39:16.244 They're just living in the moment, day to day, because they're not able to do anything other than that, and it's important for people to know, especially in the early stages of investigating a potential claim, they don't have to dedicate much time to it at all. 00:39:16.847 --> 00:39:21.481 There's an initial meeting where you come and meet with us or one of our lawyers. 00:39:21.481 --> 00:39:27.067 We gather the information that we need as best as we can, and then we do all the work. 00:39:27.067 --> 00:39:56.597 After that, we gather the medical records, we are contacting experts and getting expert opinions in order to know whether or not we have a good case, and I think many people think that they need to have all the answers or to be more

involved in the process and the reality is is it's just one meeting and then we do the work and contact you when we have the answers to our questions and if you do have a good case, then there's some more involvement that's required after that. 00:39:56.597 --> 00:40:11.969 But generally I think it's fair to say that our clients find the process pretty manageable when it comes to the time involvement, and we do our best to support you all the way along and try to make it as convenient as possible for you and your family knowing about what you're going through on a daily basis. 00:40:12.349 --> 00:40:16.655 You'd mentioned that your clients often have many medical appointments that they need to attend. 00:40:16.655 --> 00:40:20.268 Do you find bringing a claim affects a person's medical care? 00:40:20.829 --> 00:40:27.594 I think that's something that our clients tend to worry about a lot and is another reason why some people are hesitant to bring a claim. 00:40:27.594 --> 00:40:42.559 Fortunately, in birth injury cases, you generally aren't going to be continuing under the care of the defendant physicians and nurses, because you come into contact with them when you're pregnant and when you're no longer pregnant you're not involved with them. 00:40:42.559 --> 00:40:45.271 So other practitioners like pediatricians and neurologists may figure out that you're not involved with them. 00:40:45.271 --> 00:40:52.976 So other practitioners, like pediatricians and neurologists, may figure out that you're involved in a lawsuit, but they are often pretty used to caring for patients who are involved in a lawsuit like this. 00:40:52.976 --> 00:41:01.112 We even have some physicians who tell our clients to consult us if they feel that their patient's injuries were preventable with appropriate medical care. 00:41:06.277 --> 00:41:09.909 And it's important to note that even if a doctor or other treatment provider is aware of a lawsuit, legally, it should not affect your care. 00:41:09.909 --> 00:41:18.668 They would withdraw from caring for you if you were suing them, but even then they would still need to refer you to someone else who can provide the care that's needed. 00:41:19.331 --> 00:41:24.909 I can imagine that for your clients who are so reliant on medical care, this would be a big consideration. 00:41:25.650 --> 00:41:35.315 It is, and it is related to another reason why people often don't reach out to us, and those reasons are feelings of gratitude towards physicians and nurses. 00:41:36.117 --> 00:41:49.099 When people go through the kind of medical odyssey that our clients tend to go through, they are highly reliant on doctors and nurses for their care and they often feel conflicted about bringing a claim or even consulting a lawyer. 00:41:49.784 --> 00:42:10.217 Sometimes the same doctor who saved our client's life also negligently caused the dangerous situation in the first place, and our clients don't necessarily know the reason why they were in that dangerous situation due to the lack of medical knowledge and information that we talked about earlier, so they wouldn't necessarily think to investigate whether the doctor caused the problem in the first place. 00:42:10.217 --> 00:42:18.853 There's also a general sentiment in our society that doctors and nurses are good people and that they shouldn't be criticized, and we generally agree with that. 00:42:18.853 --> 00:42:23.157 Most doctors and nurses provide excellent care and are doing their best for their patients. 00:42:23.157 --> 00:42:28.652 But sometimes doctors and nurses are negligent and this can lead to catastrophic injuries. 00:42:28.652 --> 00:42:40.148 In those cases, our clients really need the financial support to deal with the care that is required as a result of those injuries and to replace the income that they otherwise would have been able to earn if they hadn't been injured. 00:42:40.148 --> 00:42:48.817 Often in these cases, once people know about the ability to sue, the injuries are so extensive that they feel they really have no choice but to look into things further. 00:42:49.385 --> 00:42:54.438 So we've covered a lot of reasons today why people don't look into obstetrical malpractice claims. 00:42:54.438 --> 00:42:56.429 Shelagh, are there any others? 00:42:56.891 --> 00:42:59.291 Yes, there is, and I think it's a big one. 00:42:59.291 --> 00:43:19.398 I do find that it can be difficult for parents, especially moms, to think about who may be responsible for what happened to their child, and I think it comes down to the natural instincts that we have as moms to feel that we can do anything and everything to protect our children. 00:43:19.398 --> 00:43:31.108 The same instinct that allows us to lift cars off our children can make us feel guilty about what has happened because we feel like we should have had, we should have been able to protect them. 00:43:31.108 --> 00:43:33.655 It's something that I hear from pretty much all of my clients who have children with serious injuries, 00:43:33.675 --> 00:43:38.373 100%, and And that's why, warren, I said earlier in the show that we are not here to judge parents 00:43:38.735 --> 00:43:42.548 Right, because guilt is something that we see so often with our clients. 00:43:42.548 --> 00:43:50.217 I think it's important to say that, in case there's someone out there who is having these struggles, they are not alone in feeling that way. 00:43:51.244 --> 00:43:58.590 And grief is somewhat related to that too, but it's another reason why people sometimes have a hard time reaching out to people like us. 00:43:58.590 --> 00:44:06.827 It can take a long time to process what has happened when someone's child is injured, especially if the parent feels that the injury was preventable. 00:44:07.668 --> 00:44:13.411 We've talked about some of the reasons why parents tend not to reach out to lawyers when their children suffer birth injuries. 00:44:13.411 --> 00:44:15.976 Why do you want

people to reach out? 00:44:17.065 --> 00:44:33.775 We find that a lot of parents don't realize, initially at least, the costs associated with caring for a child with a permanent disability over their lifetime, and it's worth talking to a lawyer to see if the lawsuit can assist with paying for those costs, both in the past and in the future. 00:44:34.164 --> 00:44:35.592 What kind of costs are we talking about here? 00:44:35.985 --> 00:44:44.976 So for children with serious injuries, if they can't care for themselves when they're adults, we'll seek the defendant to pay for someone to care for that child 24-7. 00:44:44.976 --> 00:44:51.932 That's often a very large expense that isn't available for people to take on unless they have funding from a lawsuit. 00:44:51.932 --> 00:44:57.516 For example, the twins we spoke about today in this recently decided court decision that we had. 00:44:57.516 --> 00:45:04.715 They're literally going to need millions of dollars for their care and assistive devices and other supports throughout the remainder of their lives. 00:45:05.286 --> 00:45:12.454 So how do you possibly figure out what a child is going to need over the course of a whole life if their child sustains a birth injury? 00:45:13.746 --> 00:45:15.773 The answer to that, Warren, is experts. 00:45:15.773 --> 00:45:27.286 We talked about experts already, but we have a whole stable of experts we retain to determine not only should we succeed, but how much should we claim for. 00:45:27.286 --> 00:45:47.954 Often our clients need to be assessed by experts who can give us opinions on their needs in areas of physical therapy, speech, language therapy, psychological therapy and occupational therapy, which addresses how to adapt things in their world to allow the client to perform activities of daily living that they would have trouble with otherwise. 00:45:48.565 --> 00:46:08.851 So therapies are a very important component of the damages that we claim for, because they maximize a child's abilities, but another important component is assessments on what a child is likely going to be able to do as an adult, for example, whether they can live independently or whether they can be competitively employable. 00:46:08.851 --> 00:46:20.996 Because if they can't do those things, then we need to seek funding to replace the income that they would have otherwise earned, as well as funding for attendant care to support them to live safely as an adult. 00:46:20.996 --> 00:46:47.759 We generally will retain experts like neuropsychologists or pediatricians, who can make predictions of a child's abilities when they're an adult, as well as a life care planner who will draw up a plan for the child's whole life of what they're going to need for the care in their future, and will also retain an accounting expert who can calculate the value of those care needs as well as the value of the lost income. 00:46:48.445 --> 00:46:52.757 Sounds like there are a lot of considerations to account for in these cases. 00:46:52.757 --> 00:46:58.818 Thanks very much today to Shelagh McGregor and Mike McVey for taking us through some of those considerations. 00:46:58.818 --> 00:47:05.684 If you would like more information, you can call Weir Bowen at 780-424-2030. 00:47:05.684 --> 00:47:08.713 You can visit their website, weirbowen dot com. 00:47:08.713 --> 00:47:14.878 That's W-E-I-R-B-O-W-E-N dot com. 00:47:14.878 --> 00:47:29.454 We have covered a lot of ground today in the September edition of Ask the Lawyer with Weir Bowen LLP in Edmonton and we look forward to learning much more through this series, which takes place here on CFWE and CJWE on the last Saturday of every month. 00:47:29.454 --> 00:47:30.338 Thanks for coming in. 00:47:31.021 --> 00:47:31.865 Thanks very much, Warren. 00:47:31.947 --> 00:47:32.228 Thank you.