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 Cynthia Carels and Mike McVey from Weir Bowen LLP in Edmonton.

Cynthia Carels: 0:13

Thanks very much, Warren. Glad to be back.

Mike McVey: 0:15

I'm happy to be here as well, Warren.

Warren Berg: 0:17

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 known for its work in the area of medical malpractice, including precedent-setting work in the obstetrical malpractice cases, and we've talked about this area before. But for those of us who don't recall what all of that really means, can you refresh our memory?

Mike McVey: 0:48

No problem. Basically, a medical malpractice case is a lawsuit where the allegations are that a patient was hurt as a result of the negligence of a health care provider, such as a doctor or a nurse, or one of the many kinds of therapists, or a nurse or one of the many kinds of therapists. An obstetrical malpractice case is any malpractice case where a treating physician or nurse providing obstetrical care negligently caused a preventable injury. The focus of an obstetrical malpractice case typically revolves around an allegation that the obstetrical team did or did not do something which caused a preventable brain injury to the child, because those are the cases that require the most public education to create awareness.

Warren Berg: 1:28

Which makes a show like this the perfect platform to do a bit of that public educating.

Cynthia Carels: 1:33

Yeah, absolutely Now. Obstetrical malpractice is an area that the lawyers at Weir Bowen do spend a lot of our time on, and we have dedicated a couple of previous episodes to certain topics in medical malpractice issues and obstetrical cases. For example, I think it was September of 2023 that we discussed some different types of cases that we do see during labor and delivery and in that newborn period as well, and we also talked about some of the barriers that might impact whether a parent who suffered one of these injuries will even pick up the phone to contact a lawyer.

Mike McVey: 2:06

Yeah, that's right, Cynthia. My experience has been that one of the barriers to contacting a lawyer occurs when a person thinks there's no way we can be sure about what happened, or I can't prove beyond a reasonable doubt what happened to my child. That understanding may be as a result of a discussion with a health care professional, or it might just be a feeling that the parent has when thinking or talking about the particular scenario. So I thought that it would be a good idea today to provide some information about this issue of what do you need to prove and to what standard, and how do we do that?

Warren Berg: 2:38

Okay. So, Cynthia, let's start with a question about what do you need to prove? What do you mean by that?

Cynthia Carels: 2:50

Well, first, I think it's probably important to recognize that there are many, many different kinds of lawsuits, and we've talked about, you know, a number of them on Ask the Lawyer. But people can bring lawsuits for all sorts of things, you know enforcement of debts or nuisance or recovery of property. But when we're talking about medical malpractice or obstetrical malpractice, we're really talking about two very specific types of lawsuits. So number one is a negligence lawsuit, which is a type of tort law. Now, that's a legal term, but it essentially relates to wrongful acts or omissions that actually cause people harm or injury. And number two, we're talking about a breach of contract law.

Cynthia Carels: 3:26

So, for the most part, in a medical malpractice case, both of these areas are going to be revolving around that same issue that ends up in the same result. Basically, in order to prove a claim in negligence, the person who brings the lawsuit must prove four distinct elements to the court and if even one of those elements fails, the whole lawsuit can collapse. So, first of all, in a tort claim, there needs to be a duty of care that is owed by the health care provider to the patient. So, in other words, there needs to be a special relationship that we can prove between the health care provider and the patient, where the health care provider and the patient, where the health care provider knows, or should know, that if they're negligent, it's foreseeable that their patient could be injured.

Warren Berg: 4:12

In a doctor-patient relationship. Isn't that totally obvious?

Cynthia Carels: 4:15

Well, yeah, most of the time it is. It's rarely an issue in a medical malpractice case and the defense actually will frequently admit that that duty of care is owed.

Warren Berg: 4:24

So what's next?

Cynthia Carels: 4:25

Well. Secondly, the patient needs to establish that the health care provider was negligent or acted in some way that fell below the standard of care. Now a lot of people think that malpractice requires an intentional bad act by a doctor or a nurse, but it actually doesn't require that act by a doctor or a nurse. But it actually doesn't require that Negligence itself just means that the medical practitioners did, or sometimes didn't do, something that a reasonably careful medical practitioner would have done in the same circumstances, and we'll provide some examples of negligence in a minute. But the third thing that the person who's bringing the claim must show the court is that the negligence or that breach in the standard of care actually caused the patient an injury. So lawyers use this term of causation, and causation is often the most difficult part of proving a medical malpractice claim.

Cynthia Carels: 5:25

person bringing the lawsuit must prove to the court the extent to which they were harmed and the extent to which those harms and injuries resulted in or will result in future losses.

Mike McVey: 5:31

Now getting back to this issue about what is negligence. As we have said on previous shows before, we're lawyers, we're not doctors.

Warren Berg: 5:40

Okay, so since you're not doctors, how exactly do you go about figuring out whether or not there was a breach in the standard of care?

Mike McVey: 5:47

Well, warren, in order to do that, we need to obtain medical records and ultimately we need to provide those records to an independent expert who can give us an opinion and ultimately to the court or help the court understand what is required by the standard of care in a particular scenario. The courts have often said that the standard of care is not perfection. The standard that a healthcare provider needs to meet is the standard of a reasonably prudent doctor or nurse or other healthcare professional in similar circumstances. That often means that there was more than one reasonable way to proceed in a particular scenario. The challenge for us is to show what was done was unreasonable in comparison to what a careful health care provider would do in those circumstances.

Warren Berg: 6:35

You mentioned that you would be able to provide some examples of cases where health care providers were found to have been negligent or, I suppose, in other words, did not act reasonably.

Cynthia Carels: 6:44

Yeah, for sure we can do that and I think that will help to actually give some concreteness to these, you know, sort of abstract, illegal terms. So, first of all, in medicine and in nursing there are often hospital policies and procedures that should guide the practice of physicians and nurses in specific situations. And one common issue that we see occurs with mums who are really close to labour. They might even be overdue from their due date or they might require a little help to get things moving along, and in those circumstances the mums can either be induced so that's an obstetrical term where the team is actually trying to start the labor or they can receive some medications to augment the labor or to make contractions stronger.

Cynthia Carels: 7:28

And in those scenarios what can happen is that the mom's uterus can become hyper-stimulated and that can result in contractions that are too long, and those are called prolonged contractions. Or they may be too close together, and when those contractions are too close together, that's called tachycystole. And the problem with prolonged contractions or tachycystole has to do with the fact that contractions cause a baby to experience stress and in some cases they can actually impact the baby's ability to circulate oxygen to the body and the brain. Now, most of the time, babies do have ways to deal with contractions, so they can generally withstand a lot of stresses of labor until those contractions end and at that point the baby's systems reset and recover until the next contraction hits. But when there are excessive contractions the baby doesn't have time to recover and when that happens oxygen levels in the bloodstream drop. And if the stresses of contractions are severe enough or last long enough without enough recovery time, oxygen supplies will continue to decrease and can ultimately lead to brain injury or even death.

Warren Berg: 8:37

Now this sounds absolutely terrifying. Is there anything that can be done once this prolonged contractions start happening?

Cynthia Carels: 8:44

Well, the majority of hospitals do have policies on what to do if a mom is having prolonged contractions or is experiencing tachycystole while receiving those medications for the induction or augmentation of labor. The simple answer, according to those policies turn off the medication, particularly when the baby is showing signs of distress. That can mean they're suffering from low oxygen levels. So when we're looking for examples of negligence, we see cases where healthcare providers either don't recognize prolonged contractions or tachycystole or they don't take the step of shutting off the medications, which usually that will usually result in the contractions going back to normal limits. So when that happens and everything looks good with the baby, then labor should be able to continue naturally.

Warren Berg: 9:32

You mentioned that a baby might be showing signs of distress. How is the team going to figure out if the baby is showing signs of distress?

Mike McVey: 9:40

This is actually another example of where we see negligence in obstetrical cases. In all of our cases, the baby's heartbeat is being monitored while in the uterus. We talked about the fact that most hospitals have policies and procedures for dealing with induction and augmentation. The same is true about monitoring the baby's heartbeat during labor. During labor, this area is also the subject of many medical guidelines, which are published by professional associations like the Society of Obstetricians and Gynecologists of Canada, which is also called the SOGC. These guidelines provide valuable information on what the obstetrical team should be looking for and how a particular situation should be handled.

Mike McVey: 10:22

Now there are two main ways to monitor a baby's heartbeat while in the uterus. The first way is through intermittent auscultation, which is also called IA, and the second way is what's known as continuous electronic fetal monitoring, which doctors refer to as EFM. With IA or intermittent auscultation, the nurse or doctor is using a listening device such as a stethoscope or a special type of ultrasound to listen to the baby's heartbeat periodically or from time to time. Usually with the contractions, the doctor or nurse would listen for any rise or drop in the heartbeat. Rises are called accelerations, drops in the heartbeat are called decelerations, and they listen to for those to try to get an idea of how the baby is tolerating the labor. But IA has its limitations and is less sensitive than EFM, which is the other option.

Warren Berg: 11:19

So what's that all about?

Mike McVey: 11:20

With continuous EFM. The obstetrical team is listening to the baby's heartbeat all the time using two circular devices called transducers. One transducer is listening to the heartbeat and the other is detecting the presence of contractions. They're actually strapped onto the mother's stomach to try to listen into the uterus. Now, while this is going going on, the machine, or the monitor, is creating a tracing on a strip and the tracing on the strip can be reviewed to watch for abnormalities in the heartbeat or the contractions over a period of several minutes or hours. Now, once you have several minutes of tracing or strip, you then can look for the fetal heart rate pattern and the contraction pattern that develops With EFM.

Mike McVey: 12:13

The obstetrical team is looking for certain types of patterns. For example, as mentioned earlier, they're looking at the contraction pattern to see if the contractions are too long or occurring too close together. They will also watch the fetal heart rate pattern and they'll be looking for those drops or decelerations in the heartbeat. Now, not all decelerations are created equal, some types of decelerations, called variable decelerations and late decelerations. When we see those over and over and over, where they become repetitive, these patterns can give the obstetrical team a warning that the baby may be experiencing oxygen deprivation and is not tolerating the labor. Now, when we see drops in heartbeat for an extended period of time, that may be either something called a prolonged deceleration, when it happens for more than two minutes. Now, when that drop in the heartbeat lasts for more than 10 minutes, it's considered something called bradycardia, which is an abnormally slow heartbeat.

Mike McVey: 13:10

Now, this seems like a lot of stuff to be watching for that's right, but that's not even the full spectrum of red flags that the obstetrical team should be watching for. Another factor that doctors and nurses assess while looking at the fetal heart rate tracing or strip is the fetal heartbeat variability. In looking at decelerations and accelerations, these changes occur over a period of about 15 seconds or longer. Variability is different. This is the change in the heart rate literally beat to beat, or changes that occur over milliseconds.

Mike McVey: 13:42

Now, if anyone's ever seen a fetal heart rate tracing and many mothers have this is a common way of monitoring. The line that's being traced is supposed to look fairly rough, with lots of little peaks and valleys. When that line goes from looking rough to looking more smooth, and where the line looks smooth for 40 minutes or more, that should raise a concern with the obstetrical team that the baby might not be tolerating the labor as well. So another example we see in our cases is that the team did not recognize a concerning fetal heart rate pattern or they did not act quickly enough in response to that pattern.

Warren Berg: 14:18

Let's touch on that for a second. When you say that they did not act quickly enough, what exactly do you mean by that?

Mike McVey: 14:23

That's a good question. The main goal of fetal monitoring protect those babies who are not doing well or are not tolerating the labor well. Effective monitoring allows the obstetrical heave to intervene and expedite the delivery of the baby before the injury occurs. That's the key. They can do this either by using forceps or a vacuum to help deliver the baby more quickly, depending on the stage of labor, or they can do an emergency C-section. So with nursing staff. An example of negligence may be that they did not notify a doctor of a concern right away or, in the case of a doctor, that the doctor may not have called a C-section soon enough when the fetal heart rate pattern was concerning.

Warren Berg: 15:07

You mentioned injuries with newborns. Do you have any examples where, let's say, maybe things went well during the delivery, but then the newborn was injured after the birth?

Cynthia Carels: 15:17

Oh yeah, we do have some of those cases as well.

Cynthia Carels: 15:20

The most common issues we see in those cases is where the health care providers aren't recognizing or they don't act on signs of infection, hypoglycemia or low blood sugar, or with babies who've developed severe jaundice which is due to elevated bilirubin levels, and in many cases healthcare providers should be assessing for risk factors. So, for example, a child whose mom had some sort of infection during labor and delivery is at risk of contracting an infection as well, with hypoglycemia. Babies with mums who perhaps had diabetes during labour or who are very large for their age are at risk for developing low blood sugar. So while a patient is in the hospital, it's the job of that care team to not only deal with any problems that might have arisen, but also to be on the lookout for the development of problems so they can be dealt with early. These include asking questions of the parents and in cases where babies were injured by infection, hypoglycemia or due to elevated bilirubin levels, often what happens is that the risk factors were missed and then early signs of problems weren't recognized until it was too late.

Warren Berg: 16:32

Speaking of things that we leave too late, this is probably a good time to remind our listeners of how they can get a hold of one of you.

Cynthia Carels: 16:38

Absolutely, and if anyone wants to get a hold of us today, they can find us on our website. That's we'rebowencom, w-e-i-r-b-o-w-e-ncom, and there is a contact us tab right off the homepage. That will take you to a form you can fill in. That will get you to one of our lawyers. But I also know internet is not everyone's friend, and reliable internet may not even be an option for some listeners. So for those who would prefer to call us, our main reception line is open Monday to Friday during regular business hours 780-424-2030.

Warren Berg: 17:12

This is Ask the Lawyer on Winspeaker Radio across Alberta on CFWE and CJWE. I'm your host, Warren Berg, and joining us today are Mike McVey and Cynthia Carels of Weir Bowen LLP in Edmonton. Once again, that's W-E-I-R-B-O-W-E-N. Their phone number 780-424-2030, or online at weirbowen dot com. So, before we get back to our topic of the day, I know that from previous episodes that Weir Bowen is also a member of the Birth Injury Lawyers Alliance and, given that we're talking today about obstetrical cases, why don't you tell us more about the Birth Injury Lawyers Alliance and where do people go if they want more information about this organization?

Mike McVey: 18:00

I can answer that, Warren. The Birth Injury Lawyers Alliance, or BILA as we sometimes call it, is a group of lawyers from across Canada who have taken a great deal of time, energy and devotion to learn not only the legal principles that apply in obstetrical malpractice cases, but also the medical principles involved as well. BILA lawyers are dedicated to providing effective representation for children and their families affected by avoidable injuries around the time of birth. If people want to read more about BILA or the Birth Injury Lawyers Alliance and its members, they can go to the BILA website, which is wwwbilaca. That's B-I-L-A dot C-A. Weir Bowen is the Alberta member of BILA, and there's also a live chat function on the website and it connects to every member lawyer's profile and you can email individual lawyers through that website as well. Several of my partners and I are members of that organization.

Warren Berg: 19:05

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

Cynthia Carels: 19:15

Oh, I think it does. As we've mentioned in those past episodes, there are lists published every year that recognize the top lawyers in various practice areas, and two of those lists, the ones that are largely to be considered the most credible, are the Lexpert rankings and the Best Lawyers rankings. And you know, at Weir Bowen. We're very 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 who are here today.

Warren Berg: 19:43

Okay, so you've given us some examples of where there might be some negligence involved in the care. You also told us that people pursuing claims also need to know that negligence caused an injury. I think that you call that one causation. Do I have that right?

Cynthia Carels: 19:59

Yeah, that is right. So if the negligence happened before birth and you can't really see what's going on inside someone's uterus during labor, it is kind of a challenge to make that connection between negligence and a birth injury. So you know, it is a really interesting question and a challenge and it's one that both that all of our birth injury lawyers have spent a lot of time learning about. But before we get into the nitty gritty behind how we do that, we should probably talk a little bit more about the legal principles behind this term causation and, more specifically, the standard that needs to be met when trying to prove causation. So it is common for us to be contacted by someone who says something to the effect of we can't really be sure what happened exactly, or I can't prove that an injury would have been prevented beyond a reasonable doubt. And you know that's language that you hear in. You know legal dramas all the time about proving something beyond a reasonable doubt. But in our cases, fortunately, that's not the standard we have to meet.

Cynthia Carels: 20:58

In criminal cases the prosecution does need to prove their cases beyond a reasonable doubt. So that's largely where that comes from in the criminal scope. But in medical malpractice cases are not criminal cases. They're known as civil cases, and in civil cases, the standard is different in that the person who's bringing the claim only needs to prove their case on a balance of probabilities or based on what is more likely than not. So, for example, in a case where it's alleged that an obstetrical team should have completed a c-section and delivered a baby at an earlier point in time, we actually don't need to be certain as to whether or not an earlier birth would have prevented an injury. We simply need to prove that it is likely that an injury would have been avoided with an earlier delivery by C-section, and that is obviously much different than having to prove something to the point of being absolutely certain.

Warren Berg: 21:50

Does that make sense? That makes sense. Now is now where you tell us how you would do that.

Cynthia Carels: 21:55

Yes, we'll lay the cards out now. Let's get into that. So in order to understand how to prove whether an injury occurred during labor and delivery, we also need to understand the nature of the injury and what actually happened to cause a brain injury. And the injury we see primarily in newborns is called hypoxic ischemic encephalopathy. That is quite a mouthful and I don't want to have to say it again, so we'll just simply refer to it as HIE. So the H in that acronym, or hypoxia, means low oxygen, the I for ischemia means restricted or reduced blood flow. And when either or both of those things occur within the brain and last long enough, this can result in injury to the brain and ultimately to the death of the brain tissue.

Mike McVey: 22:40

Now, warren, you had said earlier that we can't really see what's going on inside the uterus, and that's absolutely true. You know, we do have the ability to do an ultrasound which can give a doctor a glimpse inside, but that's not typically done in the labor and delivery room. So what we need to do as lawyers is to look at a few different puzzle pieces to see if they fit together to try to show what likely happened. Now, first of all, when we are contacted, the people who are calling us are calling because they have gone through a very traumatic experience, and a life-changing experience during labor and delivery. So, in addition to that, we need to know that their child suffered a brain injury.

Warren Berg: 23:20

Now I can imagine that these must be really difficult and emotional discussions to have with distraught parents.

Mike McVey: 23:26

Yes, there's no question that that's the case. But this information knowing that a child has suffered a brain injury and most people do know that when we get these calls and we know the outcome the fact that we know the outcome allows us to take a look backwards with a critical eye to try to explain why and how this injury likely happened. It may come as a surprise to people that we don't get to look at the outcome when we're talking about negligence or whether there was a breach in the standard of care, but we do get to look at the outcome when we're talking about the causation piece. We need to prove so. With that in mind, from here I'll walk through those various puzzle pieces, perhaps in chronological order, to explain what we're looking at and why.

Warren Berg: 24:10

Chronological order would help, because it seems to me like there are a lot of different moving pieces here.

Mike McVey: 24:15

That's true. That's definitely true. One of those puzzle pieces, one of the first things that we look at, relates to what I spoke about earlier regarding the electronic fetal monitoring in the fetal heartbeat. As I had said earlier, there are certain types of patterns in the fetal heartbeat which are recognized in various guidelines throughout the world as being concerning for oxygen deprivation. Those patterns, such as the smooth heartbeat line or where we see repetitive drops in the heartbeat, or those decelerations, should raise a concern for the obstetrical team that the baby is experiencing oxygen deprivation. Now I use the phrase should raise a concern for oxygen deprivation, and I say that because the fetal heart rate pattern still does not allow us to see into the uterus.

Mike McVey: 25:03

Not all cases where the obstetrical team sees concerning decelerations actually results in an injury to the child. The point is is that there is a concern that needs to be acted upon in order to intervene before injury occurs. So the obstetrical team should be ready to act in response to those concerns, which goes to whether or not there was negligence in the care. However, when we can see after the fact that there were these patterns present, that gives us a clue that oxygen deprivation might be the reason for this newborn suffering a brain injury and that the oxygen deprivation happened right before delivery or in that time period. Now another puzzle piece we look at is the newborn's condition at birth. Babies who have suffered oxygen deprivation during labor and delivery are often born in critical condition. One way this is assessed is through APGAR scoring.

Warren Berg: 26:00

And I think I've heard that term before what are APGAR scores again?

Cynthia Carels: 26:05

So the APGAR score is essentially the result of an assessment that's done at 1, 5, and 10 minutes after the birth to check to see how well the newborn tolerated the labor and now how the newborn is doing outside of the womb. So the team assesses the child's breathing, their heart rate, their muscle tone, reflexes and skin color and then they give a score of 0, 1, or 2, with the highest score being 10. Overall, the higher the score, the better the baby is doing after birth, and anything above 7 is generally considered to be normal. But lower scores, especially scores less than 7, mean that that newborn needs medical attention.

Mike McVey: 26:47

Right. So, as I alluded to before, another one of those puzzle pieces that we're looking at are those APGAR scores and the newborn's overall condition at birth.

Cynthia Carels: 26:58

Yeah, and right around that period of time we're also going to be looking to see whether the baby experienced seizures. Seizures in that first day of life are a sign that the brain has been injured. We're also looking for signs as to whether or not meconium had been released while the baby was in the uterus as well. And meconium, you know for anybody who's been through the labor and delivery process has probably heard that term, but for other people not so clear Meconium is actually the baby's first bowel movement and if that happens while the baby is still in the uterus, that can be a sign that that baby may have been in distress in the uterus, uterus, that can be a sign that that baby may have been in distress in the uterus. So both of these factors the Apgar score as well as the meconium can be a clue that there was oxygen deprivation during the labor.

Warren Berg: 27:39

Okay, so two puzzle pieces you're looking at are the fetal heart rate pattern and the newborn's condition at birth. Is there anything after that?

Mike McVey: 27:48

Yeah, there are a couple more really important puzzle pieces we look at to get an understanding if a child suffered brain injury during the birth process. These puzzle pieces involve a couple of types of testing. The first type of testing and the first type of test results that we are looking at are from, and they're a form of blood work. When a baby is born, the obstetrical team can take blood from the umbilical cord and perform testing to determine the blood gas results.

Warren Berg: 28:16

Okay, let's touch upon that a little bit. Blood gases what are we talking about there?

Mike McVey: 28:20

Now, this is really important information, and I'll tell you why. As children, teenagers or adults or anyone who's been born, really, we have all tried holding our breath. There are some people who have trained themselves to be able to hold their breath for a really long time, but for the rest of us, after about a minute, maybe two, we just can't do it anymore or else we're going to pass out. Babies in the uterus are a little bit different. Babies in the uterus are connected to the umbilical cord, which is how they get their oxygen and nourishment. When the flow of blood or oxygen is interrupted, it's Like they're trying to hold their breath.

Mike McVey: 28:58

Babies in the uterus have an amazing ability to hold their breath for a really long time. They can go for about 15 minutes with little to no oxygen without suffering any type of injury. Now, after that, they can still survive for another 15 minutes with little or no oxygen, even if they are starting to suffer some injury. So, knowing that, knowing that medicine and knowing that we're receiving a call about a child with an injury, that gives us an idea as to when intervention needed to occur in order to make a difference in the outcome. Now, in addition, going back to the blood gas results or the umbilical cord blood gas results. When the baby's experiencing ongoing reduced blood flow and reduced oxygen, the blood becomes more acidic while the baby's systems are compensating for the oxygen deprivation. So when we see these test results blood that is very acidic is very strong evidence that the baby was experiencing oxygen deprivation right before the testing was done or right before delivery.

Warren Berg: 30:03

This is Ask the Lawyer with Weir Bowen LLP across Alberta on CFWE and CJWE. Once again, that's W-E-I-R-B-O-W-E-N, and today we're speaking with Cynthia Carrolls and Mike McVeigh. And Mike, you were just telling us about the different puzzle pieces that you try to look at to prove whether or not a brain injury occurred during the birth process. Are there any other puzzle pieces that we should watch for?

Mike McVey: 30:27

Yes, there's a couple of more of those puzzle pieces I'd like to touch on today. Now, the next puzzle piece we look at is probably pretty obvious to most people. We look at what the care team did in caring for the baby after he or she was born in poor condition and whether they thought the condition of the baby at that time was explained by oxygen deprivation. In particular, we are interested to know if the newborn received a type of treatment called therapeutic hypothermia.

Warren Berg: 31:00

Now I always come across all these new terms when we do these. Ask the Lawyer shows A bunch of new scientific things that pop into my everyday conversation, like therapeutic hypothermia. What exactly is that?

Cynthia Carels: 31:12

Yeah, this will be a great one for your next party. This is essentially where the body is cooled down intentionally in order to lessen the impact of an injury due to oxygen deprivation.

Mike McVey: 31:24

Now what's important about cooling in particular is we know from medical studies that it's only effective if it started within six hours after the injury. So if a newborn undergoes cooling, it' s really good evidence that the doctors who provided care to the newborn think that the baby suffered oxygen deprivation and that the oxygen deprivation and the injury that resulted was recent meaning, they think itoccured x d d d d j during tlabour or just t d b jundefined labour ... suffered

Mike McVey: 31:35

oxygen deprivation and that the oxygen deprivation and the injury that

Mike McVey: 31:35

resulted

Cynthia Carels: 32:02

So if a newborn undergoes cooling, it's really good evidence that the doctors who provided be alert to the possibility that your child may have had a concerning period of oxygen deprivation injury while in the uterus, because that is what the care team was left worried about.

Warren Berg: 32:14

Okay, are there any other puzzle pieces left?

Cynthia Carels: 32:17

Yeah, the last puzzle piece we want to talk about today is imaging of the brain. So hospitals that are equipped to help with really sick babies also do have access to MRIs, which is an advanced imaging technique that really lets doctors take detailed pictures of the brain. And these pictures are important puzzle pieces for two main reasons and, mike, I'll turn that back over to you.

Mike McVey: 32:39

Sure. So first of all, with brain injuries, doctors who specialize in looking at MRI pictures of the brain are called neuro neuroradiologists. Now, neuroradiologists know from medical research and from prior experience that there are particular parts of the brain that are injured. When a baby suffered oxygen deprivation in the uterus, these are called injury patterns, and where those patterns are seen, this is an important piece of the puzzle in determining what happened. There are two main types of patterns that develop, although you can see both patterns with any particular child as well. That's called a mixed pattern. But the differences between the two main patterns are based on the severity of the reduced blood flow and oxygen deprivation. Now, where the reduction in blood flow and oxygen deprivation is severe and happens suddenly, this is known as an acute profound injury. When the reduction in blood flow and oxygen deprivation occurs, and where that's less severe and goes on for a longer period of time, or where the decrease is more slow, eventually this will result in death of the brain tissue. This type of injury the slow injury that occurs over a longer period of time, is called a partial prolonged injury. Now, acute profound and partial prolonged injuries affect different parts of the brain and MRI imaging can help differentiate between the two. This information helps us know what we need to prove with respect to when earlier delivery would have prevented the injury. So, for example, with an acute, profound injury, we may only need to show that the delivery needed to happen 15 minutes earlier, whereas with a partial, prolonged injury, we may need to show that the delivery needed to happen 30 minutes or an hour earlier in order to prevent the injury. So what else can an MRI provide?

Mike McVey: 34:32

So the second way an MRI can provide useful information is to assist with the timing of the injury.

Mike McVey: 34:40

This is a little bit complicated, but when a brain injury occurs during labor and delivery, it usually takes a few days before an MRI can detect the injury.

Mike McVey: 34:49

For this reason, mri is usually not done right away, but is delayed for three days or up to a week after birth. Now, because it takes time for a brain injury to be visible on MRI the day the MRI is completed after birth. Now, because it takes time for a brain injury to be visible on MRI the day the MRI is completed after birth, and the degree to which injury is seen can provide an idea or clue as to when the injury did not occur, for example, if certain findings are present on day three of life. We know that the injury did not happen on day two of life because there wouldn't have been enough time for those injuries to be detected. In addition, some MRI findings will go away after a period of time as well, so the presence of those findings means that the injury occurred recently and not weeks or months before. Otherwise they would not be seen on MRI on that day.

Warren Berg: 35:37

We've talked about a lot of different puzzle pieces here.

Mike McVey: 35:39

This seems like real detective work, isn't it? It really can be. Now, this understanding that it takes time for injuries to be seen on MRI and the understanding that certain findings will go away, allows us to create a window of time where the injury must have happened. This information can be combined with other forms of imaging, such as ultrasound, to help further narrow down that window in which the injury must have occurred. This is also true with other types of brain injuries from low blood sugar, or from those babies with severe jaundice, from elevated bilirubin levels. Those injuries have particular patterns that are typically seen on MRI as well. Now, those are the main ways that we go about proving to the court that a child has suffered a brain injury, when it has happened and at what time it could have been avoided.

Warren Berg: 36:29

So, Cynthia, with all of this complex information that needs to be explored, it seems to me that it's really important to hire a lawyer who has some experience in this area. Can you tell me more about the experience? Weir Bowen has experience in running obstetrical malpractice cases.

Cynthia Carels: 36:46

You know, I can confidently say that Weir Bowen has run more medical and obstetrical malpractice trials than any other law firm in Alberta, and with a very good track record. In fact, we were recently successful in a case involving a delay in diagnosis of twin-to-twin transfusion syndrome, and that one actually caused brain injuries in both twins. And I can think of another five or so obstetrical trials that we've run in the last 10 years or so. But another reason to hire an experienced medical malpractice lawyer isn't just the trial experience, but it's also due to our experience working with medical legal experts.

Warren Berg: 37:21

Who are these experts? Are they other doctors?

Cynthia Carels: 37:24

Yeah, that's an excellent question, and our extensive network of medical legal experts is definitely another factor in what sets we're Bowen apart in this space. We have diligently worked at cultivating relationships with experts who are, first of all, going to give us an opinion we can trust, and when I say that I mean we need to actually be able to rely on them to tell us sometimes what we don't want to hear.

Cynthia Carels: 37:47

But we need to have that objective opinion, and the other thing is that we need experts who are actually willing to get involved in medical malpractice litigation. You know there are many, many doctors and nurses who are, quite frankly, busy enough just trying to keep up with the demands of the health care system, and there are many 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 they have the appropriate background to speak to the issues that we're actually asking for and applying the right legal standards.

Warren Berg: 38:22

So, going back to that discussion about certainties versus what the court is likely to give weight to their opinions, so with today's topic, you've reviewed some of the how you do what you do, but I'm also interested in knowing more about the why. Why did you think it was important to talk about those topics here today?

Cynthia Carels: 38:41

Well, you know, we think it's really important for you know, just the general public, our listeners today to have an understanding of what we do, so that those who are wondering whether there actually was negligence involved in their care or the care of their children might actually know where to seek help. And we often hear from people that they have been told that medical malpractice cases are impossible. So by providing information in a forum like Ask the Lawyer, we're hoping to let people know that is not true. They're difficult but they're not impossible. So, number one, we're hoping to increase knowledge about errors in the medical system and, number two, that you can do something about it if it happened to you. Now, there are also a lot of emotional reasons why people find it difficult to seek help, and one of the ways that we're trying to help people overcome those emotional barriers and is just really, truly by talking about this and helping people to understand what we do.

Warren Berg: 39:39

Right now. What do you mean about emotional barriers?

Cynthia Carels: 39:41

Well, there are a number of emotional considerations that come up with parents of injured children in any context, and 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 they're already overwhelmed with all that they have to do in their day-to-day life and you know they have trouble with the thought of adding one more thing to their plate.

Mike McVey: 40:09

Now I have four kids myself, actually, and I know firsthand that the schedule can be very busy and very hard to juggle Now. That being said, my schedule is nothing like what we see our clients going through. Warren, having seen the number of medical and therapy appointments that our clients have to go to, whether they're with neurology, pediatrics or therapy such as speech, language, physiotherapy or occupational therapy it's not hard to imagine how the schedule becomes completely overwhelming. You know, we often hear from our clients that 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 understand, especially in the early stages, or what we call the investigation stage of a potential malpractice claim that they don't have to dedicate very much time to it at all. There's, of course, disclaim that they don't have to dedicate very much time to it at all.

Mike McVey: 41:03

There's, of course.

Mike McVey: 41:08

We have to have an initial meeting where we get authorizations and identification and we gather as much information as we can from the parents, and then we do the work of going and getting medical records and getting expert opinions, and you know the opinions we need in order to know whether or not there's a good case and I think many people think that they have to have all the answers for us or that they have to get records or just become involved in the process, and that's really not the case.

Mike McVey: 41:30

They don't have to have the answers, they don't need to get us the records, they don't have to have all the information even that's why we do our investigation and in terms of a time commitment, it's really just one meeting and we do what we need to do to get the records and the opinion and then we come back and tell you whether or not we think you have a good case. And if you do have a good case, then there's some more involvement at that point. But generally, I think our clients find it pretty manageable and we support you all the way along and try to make it as convenient and easy as possible for you.

Warren Berg: 42:03

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

Cynthia Carels: 42:11

You know that's an excellent question and it's something that our clients worry about a lot. In fact, it's another reason why some people are hesitant to bring a claim at all, but fortunately, in birth injury cases, you generally aren't going to be continuing to be under the care of the defendant. Physicians and nurses who were involved in the labour and delivery. Other practitioners, like pediatricians and neurologists, might find out that you're involved in a lawsuit because we're going to need to request those records, but they're often pretty used to caring for patients who are involved in lawsuits like this, and we even have some physicians who are the ones who tell our clients that they should call us in the first place if they feel that their patient's injuries were preventable with appropriate medical care.

Mike McVey: 42:56

It's also important to note that even if a doctor or another kind of treatment provider is aware of the lawsuit, legally, that should not affect your care or the care of your child. If you sue a doctor, they would withdraw from caring for you, but even then they would need to refer you to someone else or your child to someone else who can provide the care. Now, remember, we do have rights in Canada and one of those rights are to bring lawsuits, and there's nothing wrong with doing that, and there's certainly nothing wrong with talking to a lawyer about whether or not you have a good claim in the first place.

Warren Berg: 43:30

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

Mike McVey: 43:37

It is, and it's another reason why people often don't reach out to us Feelings of gratitude towards physicians or nurses. When people go through the kind of medical journey that our clients tend to go through, they are highly reliant on doctors and nurses for their care and they often feel conflicted about talking to a lawyer or bringing a lawsuit, feel conflicted about talking to a lawyer or bringing a lawsuit. Sometimes the same doctor who saved our client's life in the first place was also negligent and caused the dangerous situation. And our clients don't necessarily know the reason why they were in that dangerous situation in the first place and that's probably due to their lack of medical knowledge or the lack of information that they receive from from doctors or nurses, 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 For that reason they shouldn't be criticized and, quite frankly, I agree.

Mike McVey: 44:37

Most doctors and nurses provide excellent care and are good people, but sometimes some doctors and nurses are negligent and they cause catastrophic injuries. In those cases our clients really need financial support to deal with the care that is required as a result of those injuries and to replace the income that those people otherwise would have earned without the injuries. Often in these cases, once people know about the ability to sue, the injuries are so extensive that they feel they're really obliged to look into things further. And some people worry about how a doctor could, quote-unquote, ruin the lives of doctors or nurses. The reality is that doctors, nurses, hospitals they all have insurance to compensate people who are injured because of negligence. Now, of course, nobody would be excited about getting sued there's no doubt about that but it's not the case that bringing a lawsuit, even a successful lawsuit, ruins the lives or careers of the particular doctor or nurse.

Warren Berg: 45:37

Today we've covered a lot of reasons why people don't look into obstetrical malpractice, claims Cynthia. There's got to be some others.

Cynthia Carels: 45:45

Yeah, and it's the one we often hear about. I find it can be difficult for parents, especially for moms, to think that someone may have been responsible for what happened to their child. And, at the root of it, I think it comes down to our natural instincts that we have as parents, as mama bears, to think that we can do anything and everything to protect our children. You know, that's the same kind of instinct that allows us to lift cars off our kids and that can make us feel really guilty about what has happened to them because we feel we should have been able to protect them. And this is something that we hear from pretty much all of the clients who have children with serious injuries 100% we do, and I really think it's important to emphasize today that we're not here to judge parents.

Cynthia Carels: 46:33

Because guilt is something that we see so often with our clients. I think it's important to say, in case there's anyone out there who is having these struggles, they are not alone in that.

Mike McVey: 46:44

And I think grief is also related to the guilt as well, but that's another reason why people sometimes have a hard time reaching out to people like us. It can take a very long time to process what has happened when someone's child has been injured, especially if the parent feels that the injury may have been preventable.

Warren Berg: 47:02

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: 47:11

We find that a lot of parents just 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.

Warren Berg: 47:26

What sort of costs are we talking about here?

Cynthia Carels: 47:28

Well for children with serious injuries if they can't care for themselves when they're adults. We're going to seek for the defendant to pay for someone to care for that child, sometimes as much as you know, 24 hours a day, seven days a week, and that's going to involve someone with medical training, like a nurse, and that is often a very large expense that isn't available for people to take on unless they have funding from a lawsuit. So, for example, those twins we spoke about earlier today in, you know, that recently decided court case, those twins are literally going to need millions of dollars worth of care and assistive devices and other supports throughout the remainder of their natural lives.

Warren Berg: 48:05

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

Mike McVey: 48:13

That goes back to what we talked about earlier, those experts that we retain. We have experts to help us with the medical issues and whether there's negligence and whether those negligence caused an injury. We have a whole nother stable of experts we retain to determine how much we should 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 and language therapy, psychological therapy, occupational therapy. All of these things address how and what type of care the client will need to adapt and perform their activities of daily living that they would have trouble with.

Cynthia Carels: 48:52

And therapies are a very important component of the damages that we're actually claiming for, because they're going to maximize a child's residual abilities in the face of their disabilities.

Cynthia Carels: 49:03

Another important component is assessments on what a child is likely going to be able to do as an adult, For example, whether they're ever going to be able to live independently or be competitively employable.

Cynthia Carels: 49:17

Because if they can't do those things, then we need to seek funding to replace the income they otherwise would have earned, as well as funding for the attendant care they're going to need to support them to live safely as an adult. Now, when the kids are you know, little kids living at home, the parents are filling a lot of those needs, but the parents are not going to be there forever, nor should the parents have to be supporting that child, you know, for the rest of their natural lives if there was actually negligence involved here. So we're generally going to be retaining, you know, neuropsychologists and pediatricians and they're going to help us to make predictions of a child's abilities when they're an adult. We'll even get life care planners involved who can draw up these life care plans to provide for all of the care that a child is going to need in the future, as well as accounting experts who can calculate the value of those care needs, as well as the value of that child's loss of earning capacity.

Warren Berg: 50:11

It sounds like there are a lot of considerations to account for in these cases.

Cynthia Carels: 50:15

Indeed, there are Warren, and you know that's why we're just so deeply appreciative of the opportunity to come here, you know, the last Saturday of every month on Ask the Lawyer, so that we can come in here and talk about, you know, some of these main issues. Anyways, to give people a general start on what we do, and thank you to you, cynthia Carols and Mike McVeigh.

Warren Berg: 50:33

We're Bowen LLP for taking us through some of these considerations. If you want to find out more, you can always visit their website. We're Bowencom. That's W E I R B O W E Ncom. Their phone number 7, 8 0, 4, 2, 4, 2 0, 3 0. You can also find a streaming of this show and some of the other ones we've done on the radio station websites on CFWE and CJWE, and we really look forward to learning a whole lot more through this series, which takes place here the last Saturday of every month on Windspeaker Radio, cfwe and CJWE.