Weir Bowen - “Ask The Lawyer”

February 18, 2022 

Host: Warren Berg

INTRODUCTION

Welcome to another edition of ASK THE LAWYER, across Alberta on CFWE and CJWE

We are happy to have our new sponsor with us, WEIR BOWEN LLP. 

Weir Bowen is an Edmonton based law firm, however their lawyers have represented clients across Alberta, B.C., and the Northwest Territories… and have been counsel in precedent setting cases all the way up to the Supreme Court of Canada.

We are here again today with Cynthia Carels and Shelagh McGregor, both lawyers with Weir Bowen.

CPC – Thanks for having us again, Warren.

SLM – Thanks Warren, we’re very happy to be here!

I understand that Cynthia moved to Weir Bowen last summer.  Shelagh, what does Cynthia bring to Weir Bowen?

SLM – We were very excited to bring Cynthia on to our team.  Cynthia is very experienced with personal injury claims, particularly motor vehicle accidents, and has been named as one of Edmonton’s Best Lawyers in personal injury litigation for the last 2 years.  

She consistently gets rave reviews from her clients, probably because she is both very talented and also compassionate.

CPC – thanks Shelagh. I would say that talent and compassion are qualities that Weir Bowen’s lawyers have in abundance, which is a big reason I looked to join the firm this past summer.

As we talked about during our show last month, 7 of Weir Bowen’s lawyers were named to the Best Lawyers in Canada list for 2022… in a broad range of practice areas from insurance law, to personal injury and medical malpractice. 

As I have been learning… Weir Bowen is known for its work in medical malpractice.  Shelagh, what is “medical malpractice”?

SLM – A lot of people think that medical malpractice requires an intentional bad act by a doctor or a nurse, but it doesn’t need that.  

You can use the phrases medical malpractice and medical negligence interchangeably.  If you can prove that a doctor, nurse, or other medical practitioner was negligent, then that can also be called medical malpractice.  

And by “negligent,” we mean that the medical practitioner’s acts … and even sometimes their omissions… failed to meet the standard of care.

CPC – So that “standard of care” is something we are going to talk about today, as we turn our focus to a specific area of medical malpractice that Weir Bowen focuses on…   Birth injury claims.

Birth injury claims? What do you mean by “birth injury”?

SLM – So, when we use the term “birth injury”, we mean injuries that occur at or around the time of birth. 

Avoidable injuries can and do happen during the labour and delivery process and shortly after birth.  It’s a big part of what we do, and it is a pretty complicated area of medical malpractice.

CPC – Weir Bowen is actually one of the founding members of the Birth Injury Lawyers’ Alliance, which was formed to improve the quality of representation for clients who have children who have suffered from injuries sustained at or around the time of birth.  

Another goal of the Birth Injury Lawyers Alliance is to educate the public on potential areas of obstetric malpractice claims, in order to make families more comfortable with picking up the phone and calling a lawyer who is experienced in the area.  

So that is a big reason why we wanted to dedicate an entire episode of “Ask The Lawyer” to these specific types of claims.

I imagine it could be difficult for a parent of a child with birth injuries to reach out to a lawyer.  What has been your experience? 

SLM – As a new parent, It can be really hard to know if something went wrong during the labour and delivery process or the newborn period.  

Anyone who’s been through it will tell you that it all becomes a blur… There are so many things happening, even in an optimal labour and delivery scenario…  so new parents are focused on the impending birth of their child and the immediate needs of their new baby.  

It may not be until some time 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.

CPC -  In our experience, people tend to reach out to us because someone else has prompted them… it could be a friend, or family member, who knows someone, or has heard about someone with a personal experience that resulted in a birth injury lawsuit.

I can’t tell you how many times the first words a potential client says to me are: “I don’t know if I should be calling a lawyer about this… but [somebody] thought this might be worth looking into…”

Why do you think that is?

SLM – I think there are 2 main reasons why so many people don’t call a lawyer about these types of claims.  

The first reason: a complete lack of information. 

The second: is that it can be a very emotional thing for a parent to decide to sue a doctor or a hospital for their child’s injuries.

Let’s start by talking about the first reason you mention: people lack information.  What do you mean by that?

CPC – Knowing whether a child’s injury happened during labour 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. 

Even if a parent makes a request to a hospital for the labour and delivery records, it is really difficult to know what you are looking at… there are nurses notes, fetal monitoring strips, sometimes blood work and operative procedure reports… 

Parents generally speaking, won’t know what they are looking at, or how to determine if what they’re looking at means someone made an error.

Unfortunately, a lot of medical practitioners will not volunteer that information either.  As a result, we frequently need to get an independent medical expert to review the records for us.

But given how many of these cases we have done over the years, our Birth Injury Lawyers have a pretty good idea of where to look for clues that something may have gone wrong.

What sorts of things are you looking for?

SLM – It depends on the kind of injury, so let’s break it down into a few typical kinds of claims we deal with.  

The largest area we deal with is children with brain injuries from oxygen deprivation, which doctors generally call “hypoxic brain injuries.”

Hypoxia can be literally translated as “low oxygen,” which is obviously dangerous for anyone, at any stage of life… but it can be especially dangerous for a baby with a fragile brain that is still developing.

CPC – In the labour and delivery process, during contractions, sometimes there are short period of oxygen deprivation to the baby, which our experts tell us is totally normal and expected. 

So, when we are looking at medical records, these short periods of oxygen deprivation don’t necessarily set off red flags in and of themselves.

If these periods of oxygen deprivation occur naturally during labour and delivery, even if everything is totally normal… how can there be medical malpractice associated with it?

SLM – Well, if you asked an expert obstetrician what they do, they may say they are trained to recognize risk, and take steps to reduce the risk. 

In labour and delivery, the main tool meant to recognize risk is electronic fetal heart monitoring, 

The point of monitoring the baby’s heart rate during labour 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, is doing well or not.

The patterns that develop during more prolonged periods of oxygen deprivation are things that the doctors and nurses need to worry about… because they can lead to hypoxic brain injuries.

You mentioned that doctors are trained to recognize risk and take steps to reduce that risk.  So, how do doctors do that, in the example you just gave?

CPC – To be blunt: get the baby out.

If the doctors or nurses decide the baby isn’t doing well, the key is to end the labour, either through a quick delivery or cesarean section.

And these decisions need to happen quickly. Letting the situation languish can result in serious injuries…

SLM – So, when we’re looking at whether an avoidable brain injury happened during labour and delivery, we have to look at:

- the patterns in the fetal heart monitoring records, 

- other medical information in the records, 

and 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. 

Unless they have someone in their lives that can help them through that, they are often left in the dark.  That’s why we aim to educate people about what we are looking for… that might prompt someone to call us, who otherwise might never reach out.

This is ASK THE LAWYER with Weir Bowen LLP, across Alberta on CFWE and CJWE. Today, we are speaking with Shelagh McGregor and Cynthia Carels… and our topic today is “Birth Injuries”

So, you’ve mentioned that brain injuries from oxygen deprivation is one example of a “birth injury” case.  Do you have another one?

CPC -  Absolutely!

Another area we see is a delay in the diagnosis and treatment of certain conditions in the newborn period, like hypoglycemia and jaundice.

Hypoglycemia – do you mean low blood sugar?

SLM – Yes, exactly.  Blood glucose levels that fall below normal can be just as catastrophic as low blood oxygen to a baby’s brain.

One of the most common metabolic problems in newborn infants is hypoglycemia… And some newborns are more vulnerable to having permanent consequences from low blood sugar.

While a baby is in 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 is an area that we often deal with.

What kind of problems can arise from low blood sugar?

SLM – it depends on how low the sugars gets, and for how long…. 

The problems can be relatively mild, if caught and treated properly.

But severe hypoglycemia can result in more serious issues including loss of cognitive function, speech problems, and even psychological/ behavioural injuries.

You said that some newborns are “more vulnerable” than others to have problems relating to hypoglycemia.

Is this something that a parent is supposed to know, and be watching for, or is that entirely on the doctors and nurses?

CPC – Some parents DO know about these risks… for example, if a mother is known to be diabetic, they may have some working knowledge about the importance of watching for signs of hypoglycemia, and taking care of their own nutrition during pregnancy. 

Pregnant moms with diabetes have a higher risk of miscarriage, preterm birth, still birth, malformations, and high birth weights, so there is a lot to know about managing this condition during pregnancy.

A known diabetic may even need to have modifications to their usual medications, in order to keep their blood sugars stable…. However… diabetes can also spontaneously manifest itself during pregnancy, when moms develop “Gestational Diabetes.” 

This is something that should be routinely tested for during prenatal care, because it’s surprisingly common – and can generally be managed once identified. I recently read a study that indicated about 4% of pregnant women develop Gestational Diabetes.

But if this condition goes un-diagnosed or improperly managed, it can be problematic for both the mom and the fetus. 

How so?

SLM – an occasional hypoglycemic episode during pregnancy is pretty common, and not usually a big deal. 

But for a Mom who is experiencing symptoms of:

 Shakiness/ dizziness, 

 sweating ,

difficulties with concentration,

unusual hunger,

unusual heart rhythms

….These are important warning signs that should be properly investigated, and if warranted, properly treated.  In severe cases, pregnant women with diabetes/ hypoglycemia can lead to seizures, coma, and even death…. Along with problems for their fetuses... 

Like Cynthia mentioned, these fetuses are known to be at risk for growing too large, and they often need to be delivered via c-section to avoid even more potentially preventable problems. But it’s not just big babies at risk with hypoglycemia… it’s also babies that have struggled in the labour and delivery process or have HIE that are prone to it, and the doctors/ nurses should know that.

So Cynthia… when we were talking earlier, you also mentioned birth injury cases relating to jaundice.  Isn’t that a very common condition many babies develop? 

Can anyone with a jaundiced baby sue for malpractice?

CPC – Jaundice IS very common, and generally it goes away pretty quickly.  So no…  simply having a baby with jaundice doesn’t mean we have a reason to sue anyone.

It’s the MANAGEMENT of jaundice that can result in problems.  

So first – a bit of a primer on what jaundice actually is, and why it’s so common – 

When a baby is born, they have a relatively high level of blood cells, but they break down quite quickly, and the by-product of that break down is called “Bilirubin.” It can take a newborn’s body a few days to get the hang of what do with this bilirubin – which is generally the job of the liver. In the meantime, this can build up in the body.

Nurses and doctors have ways to measure levels of jaundice and make sure the jaundice goes away.  Generally, it does resolve with regular feeding and bowel movements, as the newborn’s body figures out how to deal with “life on the outside.” 

However, if it doesn’t, hospitals have something called “phototherapy” they can use to treat the jaundice.  

A malpractice claim can arise when the doctors or nurses either don’t diagnose the jaundice… or don’t use the proper treatment.

Isn’t it pretty obvious to diagnose a jaundiced baby? Don’t they look kind of yellow?

SLM – “obvious jaundice” IS pretty easy to diagnose. And you’re right… the classic signs are yellowish skin, or yellow tinges in a baby’s eyes.

But on some babies, it can be harder to see… especially in newborns with darker skin pigments and darker eyes. 

Premature babies are also more susceptible to jaundice (amongst many other issues), because their systems just aren’t developed enough yet. So, it is critically important for preemies to be medically monitored for jaundice – simply waiting to see if they turn yellow isn’t the best practice.

This is done through blood tests to check on those bilirubin levels… and if they are too high, it needs to be treated.

What can happen if jaundice goes untreated?

CPC – As I said earlier, jaundice often it goes away on its own without medical interventions… and there aren’t serious consequences from it.  

The most commonly known treatment for jaundice are those “phototherapy” lights – where babies lie under the lights, so their skin is exposed. That light helps to change the bilirubin into a form that is easier for the baby to pass out of their body.

If that doesn’t work – interventions can even include emergency blood exchanges, where the baby’s blood is replaced with blood from a donor to quickly bring down the bilirubin levels. 

This is a pretty significant intervention, but it does speak to how critically important it is to get jaundice under control.

If it doesn’t go away on its own and it isn’t treated properly, it can cause a brain injury.

I imagine a lot of our listeners wonder how that could happen.

SLM – Until I started doing this work, I hadn’t even heard of bilirubin. 

But it is regularly produced in our bodies, and normally gets excreted through the liver and urine.  In the newborn period, the baby starts feeding and the normal bodily functions are just starting to work. 

But those systems don’t always get moving as quickly as they might need to… and if bilirubin builds up to unsafe levels, it can cause brain injuries. 

If the jaundice doesn’t go away with the usual treatment, it might also mean there is something else going on that needs to be medically investigated, such as an infection, or a metabolic problem… 

This is ASK THE LAWYER with Weir Bowen LLP, across Alberta on CFWE and CJWE. Today, we are speaking with Shelagh McGregor and Cynthia Carels… and our topic today is “Birth Injuries”

So Cynthia – if one of our listeners today is thinking their child might have sustained  “birth injury” what can they expect if they call a lawyer?

CPC – first of all, I want to assure your listeners of WHAT NOT to expect

 if they call Weir Bowen… and that is judgement. 

We completely understand that the process of pregnancy, labour and delivery is filled with a lot of emotion, and, even for those of us who have brought a child or two into the world… a lot of mystery!  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.

SLM – That’s our job… during the very first phone call, we are going to be asking a lot of questions, but many times our potential clients don’t know what went wrong… they just suspect that something DID go wrong.

So, we are going to want to get as much information as we can from you about:

• When the baby was born?
• Where the baby was born? Not all babies are born in hospitals!
• Who was managing mom’s prenatal care?
• Who delivered the baby, and how (was it a natural birth, or a C-section)?
• What you might remember about the birth, and if anything seemed concerning
• How your child is doing now?
• Are they hitting all their normal developmental milestones?

CPC – And we fully expect that most callers are going to have “gaps” in this information… even the best historian is not going to know everything. So, we may recommend that you take some steps to pull together records for us… which might include

• Mom’s health records (including pre-pregnancy records, prenatal records, and hospital records)
• Baby’s health records – from the hospital and their pediatrician or family doctor

We will take a look at the information, and give you our preliminary thoughts… which could include a recommendation to get expert opinions.

Why do you need expert opinions? Aren’t YOU the experts? 

SLM – Our expertise is LEGAL… and even though we do a lot of medical malpractice cases, we are not doctors. And honestly, no matter how long a medical malpractice lawyer practices in this niche area… there are always new things to learn. 

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.

CPC – if we ultimately have to go to trial on a birth injury case, we rely heavily on these experts to provide us with insight as to what happened, what went wrong, and what should have been prevented. 

These experts have a tremendously important job in helping us to prepare for trial… AND in assisting the Court with respect to determining the issues in dispute. So, it is our practice to make sure we have solid expert opinions in place, early in the process.

Who are these experts? Are they other doctors?

SLM – That is an excellent question – and our extensive network of medical legal experts is definitely what sets Weir Bowen apart in this space. 

We have 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
• Actually WILLING to get involved in medical malpractice litigation.

There are many doctors/ nurses who are simply not willing to weigh in on the conduct of other medical professionals for a variety of reasons. 

For those who ARE willing to get involved, we also want to make sure they have the appropriate background to speak to the issues, and that a court will give weight to their opinions.

THIS IS “ASK THE LAWYER” ON CFWE/ CJME

TODAY WE ARE DISCUSSING OBSTETRICAL MALPRACTICE CASES WITH SHELAGH MCGREGOR AND CYNTHIA CARELS FROM WEIR BOWEN LLP

WEBSITE: weirbowen.com

PHONE: 780-424-2030

So, you’ve reviewed some of the kinds of claims your team deals with.  I wanted to go back to something Shelagh said earlier about why parents tend not to look into these kinds of claims.

SLM – Right, I said that there are two reasons – a lack of knowledge, and an emotional barrier.

Right – what did you mean about an emotional barrier?

SLM – I find it can be difficult for parents, especially moms, to think about who may be responsible for what happened to their child. 

I think it comes down to natural instincts we have as moms to feel that we can do anything and everything to protect our children.  

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 been able to protect them.  It’s something I hear from pretty much all of my clients who have children with serious injuries.

CPC – 100%... and that’s why I underscored earlier in the show that we are NOT here to judge parents…  

SLM – Because guilt is something that we see so often with our clients, I think it’s important to say that, in case there’s someone out there who is having these struggles.  They’re not alone in that.

We have talked about some reasons why parents tend not to reach out to lawyers when their children suffer birth injuries.  Why do you want people to reach out?

CPC – We find that a lot of parents don’t realize the costs associated with caring for a permanently disabled child over their lifetime, and it’s worth talking to a lawyer to see if a lawsuit can assist with paying for some of those costs.

What sort of costs are we talking about?

SLM – For children with serious injuries, if they cannot care for themselves when they are adults, we seek for the defendant to pay for someone to care for that child 24/7.  That is often a very large expense that isn’t available for people to take on unless they have funding from a lawsuit.

CPC – Another big cost is the cost of therapies the child is going to need.  (discuss OT, PT, SLP, psychological therapy) 

So how can you possibly figure out what a child is going to need over the course of their whole life, if their child sustains a birth injury?

CPC – it is a huge project, and one that we can likely spend another whole show on.

• Explain the role of occupational therapists and life care plans

SLM – In addition to their lifelong needs for care, we also need to determine the impact of these injuries on our client’s future employment.

• Explain the role of vocational assessors
• Economists

Again, we have covered a lot of ground today, in our second episode of Ask The Lawyer for 2022… with our new sponsor, Weir Bowen LLP in Edmonton.

We will look forward to learning much more through this series, which will take place here on CFWE and CJWE, on the last Saturday of every month.

Our thanks today to Shelagh McGregor and Cynthia Carels for returning for another episode.  

For more information:

Weirbowen.com

780-424-2030