Warren Berg: 0:00

Welcome to another edition of Ask the Lawyer Across Alberta on the Windspeaker Radio Network CFWE and CJWE. I'm your host, Warren Berg, and joining us this month are Shelag McGregor and Mike McVeigh from Weir Bowen LLP in Edmonton.

Shelagh McGregor: 0:15

Thanks, Warren, I'm glad to be back.

Mike McVey: 0:17

I'm happy to be here as well

Warren Berg: 0:18

Weir Bowen is an Edmonton-based law firm. However, their lawyers have represented clients across Alberta, BC, Saskatchewan and the Northwest Territories and have been counsel in precedent-setting cases all the way up to the Supreme Court of Canada. And, as I've been learning, Weir Bowen is particularly known for its precedent-setting work in obstetrical malpractice cases. And for those of us who don't really know what that means, can you tell us what that is?

Mike McVey: 0:46

Well, basically, an obstetrical malpractice case is any medical malpractice case where treating physicians or nurses providing care to women during their pregnancy or during their labor negligently cause a preventable injury to the mom or to the baby. 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.

Shelagh McGregor: 1:18

So obstetric malpractice

Mike McVey: 1:43

It continually surprises me, Warren, 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's just not a lot of information out there for parents of children who may have had or experienced preventable injuries from obstetrical malpractice, and often crucial medical information that would assist in sorting out what happened is not provided to parents, although some hospitals are getting better at disclosing adverse medical events, in cases where it's not glaringly obvious that a child suffered a preventable injury, no one is inclined to investigate further. So until we get involved, parents don't have the answers they need in order to contact a lawyer.

Warren Berg: 2:28

Okay. So, Shelagh, let's start with the broader term of medical malpractice. What exactly do you mean when you talk about malpractice?

Shelagh McGregor: 2:37

So a lot of people think that malpractice requires an intentional bad act by a doctor or a nurse, but that's not what that means. It doesn't need that. You can use the phrases medical malpractice and medical negligence interchangeably. If you can prove that a doctor, nurse, midwife or other medical practitioner was negligent, then that can also be called medical malpractice, and by negligent we mean that the medical practitioners' acts, and sometimes even their omissions, fail to meet the standard of care.

Mike McVey: 3:09

Now as lawyers, neither Shelagh nor I or any of our partners or other lawyers in the office are actually doctors, so this question about what is the standard of care tends to consume a lot of our time.

Warren Berg: 3:22

Okay, since you're not doctors and I presume you get calls from people who have been dealing with doctors of virtually every imaginable specialization how exactly do you go about figuring what the standard of care is if that's your measuring stick for negligence?

Mike McVey: 3:39

Well, I guess first it might actually help to talk about what negligence isn't, because we do get a lot of calls from people who have experienced adverse outcomes in the medical system, following a medical procedure, for example, and the sad reality is that even when everything is done perfectly according to the textbooks, things can go wrong and it may not be anyone's fault. Most interactions with the medical system are going to come with some inherent risk, so there can be a lot of non-negligent reasons for bad outcomes which prompt people to call us as well. It may be due to a preexisting condition or a pregnancy or an inherent risk of a medical procedure, but a great deal of medical judgment lies in balancing out the potential benefits for a particular treatment versus the risks that are associated with that treatment.

Warren Berg: 4:32

So let's talk about risks. Is that what doctors are supposed to talk to you about before asking you to sign a consent form?

Shelagh McGregor: 4:39

Yes, exactly. So a healthcare provider is supposed to ensure that the patient provides what's called informed consent. What that means is the doctor has to take the time to educate the patient about the risks, the benefits and the alternatives of the proposed treatment. That are and the risks, benefits and alternatives that a reasonable patient would want to know alternatives that a reasonable patient would want to know. So when patients are making decisions about their health, they're making those decisions with their eyes wide open about the risks, benefits and alternatives of any medical intervention that they're considering. So, for example, some types of surgeries can expose patients to increased chances of blood clots, infections, bleeding issues or even death.

Warren Berg: 5:24

And now you would think that if somebody dies as the result of a surgery, there's a good chance that somebody did something wrong, though no.

Shelagh McGregor: 5:32

Sometimes yes, but many times no. 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.

Mike McVey: 5:49

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. The same thing goes with other medical interventions, like surgeries or blood transfusions or even having a baby. 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. 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.

Shelagh McGregor: 6:52

And, unfortunately, adverse outcomes happen in hospitals all the time, despite the best efforts of hardworking medical staff. But at the same time, not all medical interventions are done properly, and that's where we come in. 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. That's what we mean when we're talking about investigating that standard of care.

Mike McVey: 7:29

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.

Warren Berg: 7:43

So why do you think this is a challenging area of medical malpractice?

Shelagh McGregor: 7:47

So obviously, hundreds of thousands of pregnancies occur in Canada every year, but pregnancy itself is fraught with risks. Even as recently as five years ago, our maternal mortality rate was 8.3 deaths per 100,000 live births. And that's despite having access to some of the most advanced prenatal and obstetrical care in the world. 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. 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. 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.

Mike McVey: 8:51

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

Warren Berg: 9:27

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. What has been your experience?

Shelagh McGregor: 9:35

Yeah. 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. It can even be challenging to knowledgeable physicians who have access to all of the records. Anyone who's been through labor will tell you that it all becomes a blur. 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. 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.

Mike McVey: 10:13

And in our experience, people tend to reach out to us because someone else has prompted them to do so. 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. 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.

Warren Berg: 10:40

Why do you think that is ?

Shelagh McGregor: 10:42

Well, I think there's many reasons why so many people don't call a lawyer about these types of claims. 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.

Warren Berg: 11:00

So let's start by talking about the first category that you mentioned people lack information. What do you mean by that?

Mike McVey: 11:08

People who may have experienced obstetrical malpractice often have a complete lack of information in a number of important areas. One of the first areas where people lack knowledge is with respect to medical information. Often families are not provided with the information they need to know what happened during labor and delivery or they're told something like. 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. 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.

Mike McVey: 11:50

There are nursing notes, fetal monitoring, fetal heart rate monitoring, tracings and strips. Sometimes there's blood work. That's important information as well as operative procedure reports with complicated medical terms and information. 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. Unfortunately, in addition, a lot of medical practitioners will not volunteer that information either. As a result, we frequently need to get independent medical experts to review the records for us to assist with providing this information. 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.

Warren Berg: 12:46

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.

Shelagh McGregor: 12:54

Absolutely. That's another informational barrier that people have. They lack legal information. We hear all the time you can't sue doctors in Canada right, and the answer is I do every day. So yes, you can. You definitely can sue doctors in Canada. It's not the easiest thing to do, but it is available to you if you have a good claim.

Mike McVey: 13:16

And Warren you mentioned. 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. 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. 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. 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.

Shelagh McGregor: 14:15

We talk about deadlines every show and this is a good time to raise it again. 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. But there are exceptions to that, and two important exceptions are one for children they have until their 20th birthday to sue. And for adults who require a trustee to manage their affairs it's often called dependent adults. They don't have any limitation date. So when I say that, I'm not saying just sit and wait. I encourage anyone who suspects that they may have a claim not to wait.

Shelagh McGregor: 14:54

There are many reasons why the passage of time is not our friend, like medical records getting destroyed, memories fading. 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. 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. So don't hesitate to call, even if you're not sure.

Mike McVey: 15:26

Now, another area where people often lack legal information is in the area of consent forms. Often people think that if they signed a consent form, they are not able to sue healthcare practitioners.

Warren Berg: 15:37

Now, I would imagine that this is something that a lot of people think. Is that not the case?

Mike McVey: 15:42

No, it's not. 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. You do not waive your right to sue for negligence when you sign a consent form. 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. 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.

Warren Berg: 16:32

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?

Shelagh McGregor: 16:38

Absolutely. That's one of the first questions we get asked and that's another area where people lack a lot of information. They worry about how much money are we going to charge them? They've got a lot going on, especially if they have a child with significant care needs. They think we're going to charge them a bunch of money. They worry about the cost of looking into a claim like this. 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. So we get paid on a contingency fee basis. What that means is we don't get paid for the time we spend on your case. Unless we get a settlement or a judgment, a trial. You won't be paying us hourly for any consultation or phone call.

Mike McVey: 17:25

Now, one thing that we've seen time and time again is people not knowing who to approach. 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.

Mike McVey: 17:44

Obstetrical malpractice claims are not easy to pursue. We have to prove that the standard of care was breached and that that breach caused an injury, proving causation. 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. 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. 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.

Warren Berg: 18:41

So where do people go if they want more information About the Birth Injury Lawyers Alliance?

Shelagh McGregor: 18:46

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. 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. Both Mike and I are members of that organization.

Warren Berg: 19:12

Now I recall from past episodes that a number of Weir Bowen lawyers have been recognized in various published lists of respected lawyers. Does that assist our listeners here?

Shelagh McGregor: 19:22

I think it does. As we've mentioned in past episodes, there are lists published every year recognizing the top lawyers in various practice areas. 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.

Warren Berg: 19:45

So this is probably a very good time to remind our listeners how they can get a hold of you.

Shelagh McGregor: 19:50

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.

Warren Berg: 20:10

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. So if somebody calls you, what are some of the things that you're looking for?

Shelagh McGregor: 20:24

It depends on the kind of injury, so let's break it down into a few typical kinds of claims that 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 cause permanent brain injuries for babies during the labor and delivery period if it's not recognized and no intervention occurs.

Mike McVey: 20:54

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. 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.

Warren Berg: 21:16

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?

Shelagh McGregor: 21:32

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. The main tool aimed to recognize risk is electronic fetal heart monitoring. 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. 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.

Warren Berg: 22:13

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

Mike McVey: 22:22

To be frank, Warren they need to get the baby out If the baby is not doing well. 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. Letting the situation languish can result in serious injuries.

Shelagh McGregor: 22:46

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. 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. So we look at what the brain imaging shows. We usually have to get experts to look at that. Also, what do the blood tests show?

Shelagh McGregor: 23:12

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. Unless they have someone in their lives that can help them through that, they're often left in the dark. 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.

Warren Berg: 23:46

This is Ask the Lawyer with Weir Bowen LLP across Alberta on CFWE and CJWE. Today we're speaking with Shelagh McGregor and Mike McVey and the topic today is obstetrical malpractice. You've mentioned that brain injuries from oxygen deprivation is one example of a birth injury case. Do you have another one?

Mike McVey: 24:07

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.

Warren Berg: 24:19

Hypoglycemia that's low blood sugar?

Shelagh McGregor: 24:22

Yes, exactly so.

Shelagh McGregor: 24:24

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 actually more vulnerable to having permanent consequences from low blood sugar than others. 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.

Warren Berg: 24:57

So what kind of problems can arise from low blood sugar?

Shelagh McGregor: 24:59

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. But severe hypoglycemia can result in more serious issues, including loss of cognitive function, speech problems and psychological or behavioral problems.

Warren Berg: 25:17

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 or be watching for, or is that entirely on the doctors and nurses?

Mike McVey: 25:31

Some parents do know about these risks. 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. Pregnant moms with diabetes have a higher risk of miscarriage, preterm birth, stillbirth, malformations, high birth weights. So there's a lot to know about managing this condition during the pregnancy. 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.

Mike McVey: 26:16

For example, a diabetic mom may need to have modifications to their usual medications in order to keep their blood sugar stable. However, diabetes can also spontaneously develop during pregnancy, and that's known as 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 it's identified. I recently read a study that indicated approximately 4% of pregnant women develop gestational diabetes during their pregnancy. 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.

Warren Berg: 26:56

How so?

Shelagh McGregor: 26:57

So an occasional hypoglycemic episode during pregnancy is pretty common and is generally not a big deal. 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. 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. But it's not just big babies at risk of hypoglycemia. 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.

Warren Berg: 27:50

So, Mike, when we were talking earlier, you mentioned birth injury cases relating to jaundice. From what I understand, that's a relatively common condition that many babies develop. Can anyone with a jaundiced baby sue for malpractice?

Mike McVey: 28:05

You're right, jaundice is a very common condition and luckily it goes away pretty quickly in most cases. So no, simply having a baby with jaundice doesn't mean that we have a reason to sue anyone. It's the management of the jaundice that can result in the problems. 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.

Mike McVey: 28:32

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. 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. In the meantime, the bilirubin levels can build up, and this is what leads to jaundice. 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. 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. 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. 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.

Warren Berg: 29:44

Isn't it pretty obvious to diagnose a jaundiced baby? I'm not a doctor, but don't they look kind of yellow?

Shelagh McGregor: 29:49

Yep. Obvious jaundice is pretty easy to diagnose, you're right. 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. And premature babies are also more susceptible to jaundice, amongst many other medical issues, because their systems just aren't developed enough yet. So it's critically important for preemies to be medically monitored for jaundice. 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.

Warren Berg: 30:30

So what can happen if jaundice goes untreated?

Mike McVey: 30:33

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. 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. 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. 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.

Warren Berg: 31:30

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

Shelagh McGregor: 31:34

Yeah, until I started doing this work, I hadn't even heard of bilirubin. But it's 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 the bilirubin builds up to unsafe levels, then it can cause brain injuries. 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.

Warren Berg: 32:07

This is Ask the Lawyer with Weir Bowen LLP across Alberta on CFWE and CJWE. Today we're speaking with Shelagh McGregor and Mike McVey and our topic today is obstetrical malpractice. Mike, you mentioned that it's important to hire a lawyer who has experience in this area. Has Weir Bowen had experience in running obstetrical malpractice trials?

Mike McVey: 32:30

Yes, we have. 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. 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. 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.

Warren Berg: 32:58

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?

Mike McVey: 33:09

First of all, I want to assure the listeners of what not to expect if they call we're Bowen and that's judgment. 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. 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.

Shelagh McGregor: 33:40

Yep, that's our job. 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. They just suspect that something did go wrong. So we're going to ask questions to get as much information as we can, things like when was your baby born? Where was your baby born? Not all babies are born in hospitals. Who is managing mom's prenatal care? Was it an obstetrician, a family doctor, a midwife? Who delivered the baby? And how? Was it a natural birth? Was it a C-section? Remember about the birth, which sometimes people don't remember much. Sometimes people remember a lot and if they do remember something, did anything seem concerning? And then we'll ask things about your child, like how's your child doing now? Are they hitting any normal, you know, any of their normal developmental milestones?

Mike McVey: 34:30

and, as we talked about earlier, we fully expect that most callers are going to have gaps in this information. Even the most knowledgeable clients are not going to know everything. 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. 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.

Warren Berg: 35:17

So why do you need expert opinions? I thought you guys were the experts.

Shelagh McGregor: 35:21

Yes, Well our expertise is legal and even though we do a lot of medical malpractice cases, we're still not qualified doctors. So, and honestly, no matter how long a medical malpractice lawyer practices in this niche area, there's 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.

Mike McVey: 35:56

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. 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. So it's our practice to make sure we have solid expert opinions in place and as early as we can in the process.

Warren Berg: 36:30

Who are these experts? Are they other doctors?

Shelagh McGregor: 36:33

Yeah, that's an excellent question. 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. 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. 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. 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. 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.

Warren Berg: 37:21

This is Ask the Lawyer on CFWE and CJWE. Today we're discussing obstetrical malpractice cases with Shelagh McGregor and Mike McVey from Weir Bowen LLP. Their website is weir bowen dot com. That's W-E-I-R-B-O-W-E-N dot com. Their phone number is 780-424-2030. We've reviewed some of the kinds of claims that your team deals with. I wanted to go back to something that Sheila had said earlier about why parents tend not to look into these kind of claims.

Shelagh McGregor: 37:55

Right. I said that there were two categories of reasons a lack of knowledge, which we've covered, and emotional barriers.

Warren Berg: 38:01

Right. So what do you mean about emotional barriers?

Shelagh McGregor: 38:04

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. 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.

Mike McVey: 38:28

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. 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. We often hear from our clients that they are not thinking about pursuing a claim. 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.

Mike McVey: 39:16

There's an initial meeting where you come and meet with us or one of our lawyers. We gather the information that we need as best as we can, and then we do all the work. 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. 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.

Warren Berg: 40:12

You'd mentioned that your clients often have many medical appointments that they need to attend. Do you find bringing a claim affects a person's medical care?

Shelagh McGregor: 40:20

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. 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. So other practitioners like pediatricians and neurologists may figure out that you're not involved with them. 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. 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.

Shelagh McGregor: 41:06

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. 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.

Warren Berg: 41:19

I can imagine that for your clients who are so reliant on medical care, this would be a big consideration.

Mike McVey: 41:25

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.

Mike McVey: 41:36

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.

Mike McVey: 41:49

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. 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. Most doctors and nurses provide excellent care and are doing their best for their patients. But sometimes doctors and nurses are negligent and this can lead to catastrophic injuries. 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. 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.

Warren Berg: 42:49

So we've covered a lot of reasons today why people don't look into obstetrical malpractice claims. Shelagh, are there any others?

Shelagh McGregor: 42:56

Yes, there is, and I think it's a big one. 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. 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. It's something that I hear from pretty much all of my clients who have children with serious injuries,

Mike McVey: 43:33

100%, and And that's why, warren, I said earlier in the show that we are not here to judge parents

Shelagh McGregor: 43:38

Right, 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 are not alone in feeling that way.

Mike McVey: 43:51

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. 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.

Warren Berg: 44:07

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

Mike McVey: 44:17

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.

Warren Berg: 44:34

What kind of costs are we talking about here?

Shelagh McGregor: 44:35

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. That's often a very large expense that isn't available for people to take on unless they have funding from a lawsuit. For example, the twins we spoke about today in this recently decided court decision that we had. They're literally going to need millions of dollars for their care and assistive devices and other supports throughout the remainder of their lives.

Warren Berg: 45:05

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?

Mike McVey: 45:13

The answer to that, Warren, is experts. 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. 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.

Shelagh McGregor: 45:48

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. 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. 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.

Warren Berg: 46:48

Sounds like there are a lot of considerations to account for in these cases. Thanks very much today to Shelagh McGregor and Mike McVey for taking us through some of those considerations. If you would like more information, you can call Weir Bowen at 780-424-2030. You can visit their website, weirbowen dot com. That's W-E-I-R-B-O-W-E-N dot com. 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. Thanks for coming in.

Shelagh McGregor: 47:31

Thanks very much, Warren.

Mike McVey: 47:31

Thank you.