Weir Bowen - "Ask The Lawyer"

July 26, 2022

Host: Warren Berg

**INTRODUCTION**

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

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

CPC – "Thanks for having us again, Warren."

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

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. And I understand that one of the areas in which Weir Bowen has set many precedents is in the area of obstetrical malpractice.

**Shelagh, what do you define as an obstetrical malpractice case?**

SLM: "Well, basically an obstetrical malpractice case is any medical malpractice case where treating physicians or nurses providing obstetrical care negligently caused a preventable injury, but what we want to focus on today are those obstetrical malpractice cases that cause a preventable brain injury to the child, because those are the cases that require the most public education to create awareness."

CPC: "Obstetric malpractice is an area that the lawyers at Weir Bowen spend a lot of our time on. But it’s also an area that we’ve found a lot of people don’t even know about. So we wanted to dedicate the show today to educate people on what obstetrical malpractice cases look like and to overcome that informational and sometimes emotional barrier to consulting a lawyer to see if their child has suffered a preventable injury from obstetrical malpractice. I do want to underscore, however, that all the 'Ask The Lawyer' shows we do here are intended to be 'educational' – sort of like public service information. It is not, however, to be construed as legal advice specific to anyone’s unique situation. So, if any of our listeners today hear something on this show that gets them thinking about their child’s difficult delivery, our hope is that the show will prompt them to reach out to speak with a lawyer."

SLM: "It continually surprises me to learn from new clients that often the way they were prompted to contact a lawyer was by someone who had already gone through an obstetrical malpractice lawsuit. There is just not a lot of information out there for parents of children who may have a preventable injury from obstetrical malpractice, and often the crucial medical information that would assist in sorting out what happened is not provided to the parents. Although some hospitals are getting better with disclosing adverse medical events, in cases where it is not glaringly obvious that the child suffered a preventable injury, no one is inclined to investigate further so until we get involved, parents often don’t have any answers."

**This probably a good time to talk about how our listeners can get in touch with you, if they need to talk to a lawyer about a personal injury claim – whether it’s obstetrical malpractice, a motor vehicle accident, or some other type of injury. What is the best way to connect with you?**

CPC – "The easiest way is to check out our website, at Weirbowen.com. On our 'contact us' page, there is a form you can fill in, and our reception staff will make sure your inquiry gets to the right people."

**What if internet isn’t an option?**

SLM – "We also frequently take what we call 'cold calls'. Just call our main reception line at 780-424-2030, and our receptionist can get you in touch with one of our team members."

**So, Cynthia. what do you think prevents parents from knowing they have a potential lawsuit?**

CPC: "One major barrier is that it can be difficult to recognize whether a child has even suffered an injury from obstetrical malpractice until they get older. Often these injuries are subtle at first, but the effects of them can become more obvious over time. What appears to be a phase or a delay that's within normal expectations, becomes more obvious as a child grows up, and the gap widens with their peers."

SLM: "Think about a speech delay from a brain injury. Children don't speak fluently until they are close to elementary school age, and there is such a wide range of what is considered normal with speech development. Parents are told for many years that what appears to be a speech delay may actually just be normal development. It's not until a child gets into school and becomes a bit older that a delay may become more apparent."

CPC: "Behavioral problems are another area that we see delayed recognition of. Autism, which is often a consequence of hypoxic brain injury, can be very hard to diagnose, especially when it's on the milder end of the spectrum. A younger child with mild autism may not be obvious, But when they hit school age, anxiety or social withdrawal or difficult behaviors become more and more apparent."

SLM: "And sometimes when injuries cause behavior issues, parents tend to focus on the environmental factors that they can change, maybe blame their parenting style, but often do not think about whether these issues can be related to a brain injury."

Warren: "It is interesting that you say that autism can be a consequence of a brain injury. I imagine that most of our listeners were under the impression that autism is purely a genetic problem."

SLM: "Autism can definitely be a consequence of a genetic anomaly, but a lot of our cases are for children who have injuries to their frontal lobes that caused executive dysfunction."

CPC: "To give a bit of an idea of what that means, the frontal lobes of our brain control the higher functions of the brain. Things like time management, planning, attention, self-control, emotional self-regulation, memory, self-awareness, and other higher-level function skills."

SLM: "Exactly. You basically can't even test for those things until children are in school. Some of these things are not obvious until kids are teenagers, and often by then parents have struggled for many years trying to get their children to learn how to do things and wonder if the problem is something that they're doing."

CPC: "And the other thing is that a lot of problems with these areas are diagnosed as other things, like autism and ADHD. So a kid can have an ADHD diagnosis, and that ADHD can be from a brain injury. Most ADHD diagnosis or not from a brain injury, but it is something that we see frequently in children with hypoxic ischemic brain injuries from obstetrical malpractice."

SLM: "Similarly with autism, most cases of autism are not caused by brain injuries, but where there is a brain injury, we do often see autism diagnoses. So it can be very hard for parents to even ask the question 'did my child suffer injuries from obstetrical malpractice?' when a lot of the consequences of the brain injuries that we see are commonly seen without brain injuries."

Warren: "It sounds like it would be difficult to determine though whether these behaviors and problems are a result of obstetric malpractice or if it’s just one of those things that happen."

CPC: "That is one of the biggest things that we deal with in trying to prove these cases. That being said, we have many ways to deal with that. We have a stable of experts who we trust will give us honest, balanced opinions. Those experts include neuroradiologists, neurologists, geneticists, pediatricians, obstetricians, obstetric all nurses, just to name a few."

SLM: "Usually the first step we take in investigating any case is obtaining the actual brain imaging that is done on the child and having it reviewed by a pediatric neuroradiologist who we trust."

"Most of the time, if there is any concern after the birth of the child, brain MRI's will be done. The reason those MRIs are done is to look for any brain injuries. Brain injuries from hypoxia, which is the most common cause of brain injury during the labor and delivery process, have a particular pattern that neuroradiologist looks for. That greatly assists us in determining whether a child's deficits are related to a brain injury or something that just happens."

CPC: "The other thing that is occurring more and more is genetic testing. Often when there are deficits that I've seen shortly after birth, or if it was a difficult birth, page genetics clinic will be asked to become involved by the child treating neurologist. The genetics clinic will conduct genetic testing to see if there's any genetic explanation for the problems that they've seen."

Warren: "What if the treating physicians don't recognize any problem following the birth and these things don't occur? As you indicated, these injuries may not be obvious."

SLM: "That does happen, although in my experience brain imaging does get done in any case of a difficult birth and the child demonstrating struggles after birth or needing resuscitation. If the birth occurred in the last 20 years, if no brain imaging was done then it does suggest that the birth was not a difficult one and any injuries or deficits are less likely to be caused by anything that happened in labor and delivery."

"With respect to genetic testing, you're right. I find that it is often not done when I obtain records on behalf of clients. That being said, we do have geneticists that we consult and who can perform genetic testing to rule out any genetic causes of the child’s deficits or problems."

Warren: "All of these experts sound expensive, does that mean that a potential client needs to have a lot of money in order to investigate a potential obstetrical malpractice claim?"

CPC: "Consulting experts definitely costs money, but we recognize that most of our clients who have potential obstetric malpractice claims are not in a position to pay for that."

"If it is our opinion that potential client has a meritorious case, we will generally run these kinds of files on a 'Contingency Fee Agreement,' and we get paid based on a percentage of what we ultimately recover for our clients."

"Law Societies have identified that the cost of legal fees on an hourly basis can present a barrier to justice, particularly for individuals who have been injured as a consequence of someone else’s negligence…"

"So parents don’t need to worry about coming up with resources to pay their lawyer’s fees for years and years while awaiting a settlement for their children… especially since these cases can take many years to work their way through the system."

This is ASK THE LAWYER, across Alberta on CFWE and CJWE. I’m your host, Warren Berg, here with Cynthia Carels and Shelagh McGregor, both lawyers with Weir Bowen LLP, talking about obstetrical malpractice lawsuits and birth injury claims. Can you give us some examples of the types of birth injury claims you’re talking about?

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."

"In the labor 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. The problem is if those periods of oxygen deprivation occur over and over during a lengthy period of time, or if there is more prolonged period of oxygen deprivation that doesn’t relent."

"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?"

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. Doctors are trained to diagnose conditions that can be stopped before permanent damage occurs. Cancer is a good example. We have all sorts of screening tools now to diagnose cancer early, because treatment can actually change the outcome."

"In labor and delivery, the main tool meant to recognize risk is electronic fetal heart monitoring. Electronic fetal heart monitoring shows the patterns of the fetal heart rate. Obstetrics has evolved to the point where doctors and nurses know that certain patterns tell them certain things about how the baby is doing in utero, and if they see certain patterns lasting beyond a certain period of time, they know that the baby is likely experiencing oxygen deprivation and needs to be delivered as soon as possible."

"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 – "In the case of a baby experiencing hypoxia in utero, the way to do that is to deliver the baby as quickly as possible. 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 brain injuries."

SLM – "When we’re looking at whether an avoidable brain injury happened during labor and delivery, we have to look at the patterns in the fetal heart monitoring strip, the brain imaging done of the baby, lab results, and other medical information in the records."

"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. For example, even when we request the entire chart from the hospital, we aren’t provided the fetal heart monitoring strip unless we specifically ask for that. Parents often don’t know what is not in the chart they’ve requested, even if they’ve been provided with some of the medical records."

"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 of Weir Bowen LLP… The offices of Weir Bowen can be reached by phone at 780-424-2020 or online a Weirbowen.com

That’s W-E-I-R B-O-W-E-N dot com.

Our topic today is “Birth Injuries”

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

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

**I believe you mentioned Hypoglycemia in a previous show – that means 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. The cases where we see claims for the consequences of hypoglycemia include where the baby wasn’t growing properly in utero before being delivered, so doesn’t have enough glucose reserves after they’re born, or where they’ve had a difficult delivery and those reserves were used up during the labor and delivery process and the doctors and nurses don’t recognize the risk of hypoglycemia in the baby."

"In circumstances like I just described, the baby’s blood sugars may need to be monitored frequently to make sure their systems are working properly. Hypoglycemia in a newborn can cause a significant brain injury, which leads people to our door."

**What kind of problems can arise from low blood sugar?**

SLM – "It depends on how low the sugars get, 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 psychological/ behavioral injuries."

**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?**

**Why would a parent sue for their baby having jaundice?**

CPC – "Jaundice IS very common, and generally it goes away pretty quickly with no long term consequences. It’s where there’s been poor management of jaundice that lawsuits may arise, because jaundice that is severe and prolonged can result in a brain injury called kernicterus. (kr-NIK-tr-uhs)"

"We reviewed jaundice in a previous show but I want to go through it again so everyone understands."

"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 improve 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” on Windspeaker Radio… CFWE and CJWE.

I am your host, Warren Berg.

We’re here today with Cynthia Carels and Shelagh McGregor from Weir Bowen LLP. Weir Bowen can be reached at 780-424-2030, or online at

WEIRBOWEN.COM

Today we are discussing obstetrical malpractice cases, and some reasons why people don’t contact lawyers.

**What do you think is the biggest reason why people don’t contact lawyers?**

CPC: "Frankly, probably the biggest reason is that most people who have children who have sustained injuries from birth are overwhelmed with the day-to-day reality of caring for a child who has high medical needs."

"After a baby has sustained a brain injury, often families need to attend many medical appointments. These children often have to attend multidisciplinary clinics where they see pediatric neurologists, developmental pediatricians, speech and language pathologists, occupational therapists, physiotherapists, and nurses."

SLM: "Sometimes I will get my clients’ calendars from that first year after birth as part of the evidence we produce in the lawsuit, and it always amazes me how crammed the calendar is with all of the appointments that these families need to attend. It’s truly amazing."

"And it often lasts for quite a while. After the initial period of intense medical appointments, families have to cope with coming to terms with the consequences of their child’s injuries. Some parents may not be able to work because of how much care they need to provide for the child. Some children need to be tube-fed or have seizures that need constant monitoring such that they cannot go to traditional child care. The care that is required often places significant financial strain on the family and the parents are focused on making ends meet and providing the care their children need."

CPC: "Ironically, the very reason why parents have trouble finding the capacity to contact a lawyer is the reason why we urge parents to consider investigating a lawsuit – the care needs of their child generally don’t go away, and as the child gets bigger and the parents get older, the parents aren’t in a position to care for the child the way they used to."

"Children that parents used to be able to carry around cannot be carried once they get to a certain age, and they need extra help or even lifts. Many of the children who have suffered birth injuries will not be able to live on their own as adults, and funding would be required to ensure that someone is around to take care of them when the parents aren’t around anymore."

SLM: "It’s something that is very hard for parents to think about because it is so emotionally overwhelming. Often parents don’t have answers for who will take care of their children when they aren’t able to do so, but it is such a scary thought that it is hard to address directly, and it can take parents a long time to consider reaching out to a lawyer."

CPC: "And often it’s not the parents that reach out initially. We often are contacted by grandparents, or siblings of the parents, who often have more time and emotional bandwidth to consider embarking upon a legal process."

"This would probably be a good place to encourage anyone who is on the fence about reaching out to a lawyer about a potential birth injury to do that. There is absolutely no obligation to pursue any lawsuit just because you reach out to us. Part of our role is to answer questions people have, and explain any aspects they are unsure about."

"And it is really easy to get in touch with us…"

"The easiest way is to check out our website, at Weirbowen.com"

"On our 'contact us' page, there is a form you can fill in, and our reception staff will make sure your inquiry gets to the right people."

"Reaching out to us costs nothing, and making the call to ask questions does not put anyone into a high-pressure obligation type of situation."

"We’re talking about obstetrical malpractice and birth injuries today, and specifically reasons why parents often don’t get in touch with lawyers about these kinds of cases. We’ve talked about parents feeling overwhelmed, or not getting the information they need from health care professionals. Are there other reasons you’ve seen why parents don’t reach out to you?"

SLM – "There is one thing that I come across a lot when I’m talking to mothers about what happened to their children. If you are a mom, you have likely experienced 'mom guilt' at one point or another. I certainly have had my fair share as a working mother. The more I speak with other mothers, the more I realize that it is an almost universal feeling."

"The first thing most moms think of when something happens to their child is whether they could have prevented it because it is very scary to think that there are outside forces that can injure our children that are completely outside of our control. We think of outlandish scenarios in which we can protect our children, and even though we know it’s not rational, we feel that way anyway."

"This may explain why many mothers are hesitant to go down the road of a claim against the doctors or nurses for their child’s injuries – deep down, even though they know it was outside of their control, they blame themselves in some small way. It’s what moms do – it’s functional when we lift cars to save our children, but not so much when it turns into guilt over something we are powerless over."

"A mother who is in labor is in one of the most vulnerable states she will ever be in during her life. She is in pain, on mind-altering medications for that pain, tired, and often scared. Most of the labor process is a blur. Yet many of my clients tell me that they feel they should have done more to prevent what happened while they were experiencing this painful, scary, vulnerable state. I think the fact that we feel that we should have the power over everything that may harm our children causes us to feel that, even in a small way, part of what happened is our fault."

"I have to tell my clients that they had no power over what happened. You place yourself and your baby in the hands of qualified medical professionals, and rely heavily upon them during your labor and delivery. You are not trained to read fetal heart tracings, and you certainly cannot perform a cesarean section if things go badly during labor. The medical professionals are there to intervene in case something goes wrong. You are not in a position to do so. But I do think that many mothers worry about examining whether their child’s injuries were preventable, because it opens an emotional can of worms for them."

CPC - "Another question that many people have is: 'I’ve signed a consent form, doesn’t that mean I can’t sue?' I think a lot of people think that a consent form is similar to signing a waiver of legal rights, which is not the case."

"Even legally trained people ask that question of us. The answer to that question starts with an explanation of informed consent and the purpose of the consent form."

"Every patient is entitled to know the risks, benefits, and alternatives of the treatment proposed. Before a treatment is provided, whether it is administering oxytocin to increase the intensity and frequency of contractions, or using forceps or a vacuum to perform an assisted delivery, or a cesarean section, or some other kind of treatment, the patient is entitled to have the risks, benefits, and alternatives to the treatment explained to them. The consent form is meant to document that the treatment provider has gotten the patient’s consent, and a conversation about the risks, benefits, and alternatives has occurred."

"Now, just because a patient has signed the consent form doesn’t mean that is the end of the inquiry. Often we have cases where the alternatives to treatment – for example, a cesarean section as an alternative to a vaginal delivery – was not offered. Just because a patient signs the form doesn’t mean that it is not available to them to argue that they weren’t offered a cesarean section when they should have been."

"Consent forms are different than waivers. Waivers acknowledge that you are waiving the other person from legal liability if something bad happens. Consent forms just acknowledge that the treatment provider has obtained your consent. They do not address their legal liability for negligence or for failing to provide you all of the information with respect to the risks, benefits, and alternatives to the treatment they propose."

**I imagine a lot of people are concerned about the consequences of suing a physician – do you ever encounter concerns about that?**

SLM – "Absolutely we do. One of the biggest worries that families have when considering whether to sue is whether their children are going to receive worse care than they would otherwise receive if they didn’t sue."

CPC – "Most of the families we see are very reliant on the health care system because their children’s injuries are so significant, and they don’t want to jeopardize their child’s well-being, or access to medical care, over a lawsuit."

**Is that something that families have to worry about?**

SLM – "We can’t speak in absolutes, but generally speaking, our clients get the same care that any other family would get. The health care practitioners that they are suing would not be able to care for them anymore, but for the most part, the rest of the health care practitioners don’t even know that a lawsuit exists, and those that do know, are generally pretty used to caring for people who are involved in a lawsuit. And it’s certainly not something that should be used against a patient."

CPC – "We’ve actually also encountered clients who are quite concerned about suing a doctor because they feel guilty about suing the doctor and worry about the consequences for the doctor. This would be a good opportunity to clear up some misconceptions about that as well."

"Firstly, doctors and nurses have insurance – lots and lots of insurance. Doctors and nurses do not pay settlements or judgments from their own pockets. Insurers pay those settlements and judgments, and those organizations have significant funds to do that. In fact, last year the Canadian Medical Protective Association, the group that defends doctors in Canada, reported that they have $1.6 billion in assets. That’s a lot of money to pay for bad outcomes of negligent medical care."

"Secondly, a successful lawsuit doesn’t mean that a doctor won’t be able to practice medicine again."

SLM - "We hear this from patients over and over – they think that a lawsuit is tied to a doctor’s ability to practice. They are not associated. The doctor’s ability to practice medicine is separate from any lawsuits they are involved in. They are obligated to tell their College of Physicians and Surgeons and any hospital they have privileges at about any lawsuits, but unless they are involved in heaps of lawsuits, it doesn’t affect their ability to practice."

We have covered a lot of ground today, in the July edition of Ask The Lawyer for 2022… with Shelagh McGregor and Cynthia Carels Weir Bowen LLP in Edmonton.

For more information:

Weirbowen.com

780-424-2030

You can also find a link to Ask the Lawyer on our home page, where these shows will be available to stream on demand.

Our thanks again to today to Shelagh and Cynthia

SLM – "It was great being here, Warren."

CPC – "Thanks for giving us the opportunity to share this important information with your listeners!"

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