Understanding Obstetrical Malpractice Cases

Warren Berg 0:00

Welcome to another edition of Ask the Lawyer Across Alberta on CFWE and CJWE . We're here once again with Jill Gamez and Shelagh McGregor , both lawyers with Weir Bowen LLP .

Jillian Gamez 0:11

Thanks for having us again , Warren .

Shelagh McGregor 0:12

Thanks , warren , we're very happy to be here .

Warren Berg 0:15

Weir Bowen is an Edmonton-based law firm . However , their lawyers have represented clients across Alberta , Saskatchewan , BC ,N unavut and the Northwest Territories and have been counseled in precedent , sending cases all the way up to the Supreme Court of Canada , and I understand that one of the areas in which Weir Bowen has set many legal precedents is in the area of obstetrical malpractice .

Shelagh McGregor 0:40

Yeah .

Shelagh McGregor 0:40

So basically , an obstetrical malpractice case is any medical malpractice case where treating physicians or nurses provide obstetrical care but did so negligently and that negligence caused a preventable injury .

Shelagh McGregor 0:54

So we've reviewed what negligence is in a previous show . But , to summarize , there are four main things to prove and that we need to prove in an injury lawsuit First , that the treatment providers owed a duty of care to the patient . And this is easy to prove , because courts decided a long time ago that doctors , nurses , midwives and other treatment providers not only owe a duty of care to the mom , but they also owe a duty of care to the unborn child . So secondly , we also need to prove that one or more of the treatment providers was negligent , so that means that they did not meet what we call the standard of care required of them . So thirdly , we need to prove that the plaintiff suffered an injury . And fourth , we need to prove that the negligence of the treatment provider actually caused that injury that we're complaining of . So today we want to focus on 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 .

Jillian Gamez 1:57

Obstetric malpractice is an area that the lawyers at Weir Bowen spend a lot of our time on , but it's also an area that we found a lot of people don't even know about , so we wanted to dedicate the show today to educate people on what obstetrical malpractice cases look like and to overcome that informational and sometimes emotional barrier to consulting a lawyer to see if their child has suffered a preventable injury from obstetrical malpractice .

Shelagh McGregor 2:23

It continually surprises me to learn from new clients that often the way they were prompted to contact us was by someone who had already gone through an obstetric malpractice lawsuit . There's just not a lot of information out there for parents of children who may have suffered a preventable injury from obstetric malpractice , and often the crucial medical information that assists in sorting out what happened isn't provided to the parents , although some hospitals are getting better with disclosing adverse medical events , in cases where it's not glaringly obvious that the child suffered a preventable injury , no one's necessarily inclined to investigate further . So until we get involved , parents often don't have the answers .

Warren Berg 3:05

So what do you ?

Warren Berg 3:05

think prevents parents from knowing that they have a potential lawsuit .

Jillian Gamez 3:09

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

Shelagh McGregor 3:33

So a good example would be a speech delay from a brain injury . Children don't speak fluently until they are close to elementary school age and there's such a wide range of what is considered normal with speech development . So my son , for example , had to see a speech and language pathologist because he made his K sounds sound like T sounds , and parents can be told for many years that what appears to just be a speech delay is just normal development . It's not until a child gets into school and becomes a bit older that a delay outside of what is considered normal may become more apparent .

Jillian Gamez 4:07

So behavioral problems are another area where we see delayed recognition . So autism , which we often see as a consequence of hypoxic brain injury , can be very hard to diagnose , especially when it's on the milder end of the spectrum .

Jillian Gamez 4:22

A younger child with mild autism may not be obvious , but when they hit school age , anxiety or social withdrawal or difficult behaviors become more and more apparent ,

Shelagh McGregor 4:32

and sometimes when injuries cause behavior issues , parents tend to focus on the environmental factors that they can change , maybe blame their parenting style , but often they don't think about whether these issues can be related to a brain injury .

Warren Berg 4:46

Now it's interesting that you say that autism can be a consequence of a brain injury . I would imagine that most of our listeners were under the impression that autism is purely a genetic problem .

Shelagh McGregor 4:57

Autism can definitely be a consequence of a genetic anomaly , but a lot of our cases are for children who have injuries to the frontal lobes of their brain and that can cause what we call executive dysfunction .

Jillian Gamez 5:10

So , to give a bit of an idea of what executive dysfunction means , the frontal lobes of our brain control the higher functions of the brain . So things like time management , planning , attention , self-control , emotional self-regulation , memory , self-awareness and other higher level function skills

Shelagh McGregor 5:27

Right so , and you can't even really test for those things until children are in school .

Shelagh McGregor 5:33

Some of these things aren't obvious until kids are even teenagers , and often by then parents have struggled for many years trying to get their children to learn how to do things and wonder if the problem is something that they're doing .

Jillian Gamez 5:45

Another consideration is that a lot of problems with these areas are diagnosed as other things like autism and ADHD , so a kid can have an ADHD diagnosis and that ADHD can be from a brain injury . Most ADHD diagnosis are not from a brain injury , but it is something that we see frequently in children with brain injuries because they've had oxygen deprivation from obstetrical malpractice .

Shelagh McGregor 6:11

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

Warren Berg 6:33

Now this sounds like . It would be really difficult to determine , though , whether these behaviors and problems are a result of obstetric malpractice or if it's just one of these things that happen .

Jillian Gamez 6:44

Yeah , that's one of the biggest things that we deal with in trying to prove these cases . That being said , we have many ways to deal with this . We have a roster of experts who we trust who will give us honest , balanced opinions .

Shelagh McGregor 6:57

So these experts include neuroradiologists , neurologists , geneticists , pediatricians , obstetricians , obstetrical nurses , and those are just to name a few usually the first step we take in investigating any case is obtaining the actual brain imaging that is done on the child and having it reviewed by a pediatric neuroradiologist who we trust . A pediatric neuroradiologist is a doctor who focuses on brain imaging for children , so it is a highly specialized area . Most of the time , if there's any concern after the birth of the child , brain MRIs will be done , and the reason those MRIs are done is to look for brain injuries . Brain injuries from hypoxia or oxygen deprivation , which is the most common cause of the brain injury during the labor and delivery process , have actually a particular pattern that neuroradiologists look for in the imaging and that helps us a lot in determining whether a child's deficits are related to a brain injury or if this particular set of problems is something that just happens without a brain injury .

Jillian Gamez 8:02

Another thing that we're seeing more and more is genetic testing . So often when there are deficits that are seen shortly after birth , or if there was a difficult birth , a genetics clinic will be asked to become involved by the child's treating neurologist . The genetics clinic will conduct genetic testing to see if there's any genetic explanation for the problems that we're seeing .

Warren Berg 8:22

Now what if the treating physicians don't recognize any problem following the birth and these things don't occur as you indicated ? These injuries may not be obvious .

Shelagh McGregor 8:31

That does happen , although in my experience , brain imaging does get done in any case of difficult birth and the child demonstrates struggles after birth or needs resuscitation . If the birth occurred in the last 20 years , no brain imaging was done , then that does tend to suggest that the birth was not a difficult one and any injuries or deficits are less likely to be caused by anything that happened during the labor and delivery process . Now , with respect to genetic testing , you're right . I find that it is often not done when I obtain records on behalf of clients . That being said , we do have geneticists that we consult and who can perform genetic testing to rule out any genetic causes of a child's deficit or problems , if there are reasons to suspect the problem is due to a genetic cause and it's not obvious that there was a brain injury during labor and delivery .

Warren Berg 9:21

Now , you have big words like pediatric neuroradiologists , All of these experts . They sound expensive . Does that mean a potential client needs to have a lot of money in order to investigate a potential obstetrical malpractice claim ?

Jillian Gamez 9:35

Well , you're right , Warren Consulting experts definitely cost money , but we recognize that most of our clients who have potential obstetric malpractice claims aren't in a position to pay for that . So if it is our opinion that a potential client has a meritorious case , we'll generally run these kinds of files on what we call a contingency fee agreement , which means we get paid based on a percentage of the ultimate settlement for the clients . Law societies across Canada have identified that the cost of legal fees on an hourly basis can present a barrier to justice , particularly for individuals who've been injured because of someone else's negligence . So parents don't need to worry about coming up with the resources to pay their lawyers fees for years and years while awaiting a settlement for their children , especially since these cases often take many years to work their way through the system .

Warren Berg 10:24

This is Ask the Lawyer across Alberta on CFWE and CJWE . I'm your host , warren Berg , here with Jill Gamez and Shelagh McGregor , both lawyers with Weir Bowen LLP , talking about obstetrical malpractice lawsuits and birth injury claims today . Can you give us some examples of the types of birth injury claims that you're talking about ?

Shelagh McGregor 10:44

It depends on the kind of injury . So let's break it down into a few typical kinds of claims that we deal with .

Understanding Birth Injury Complications

Shelagh McGregor 10:51

The largest area we deal with is children with brain injuries from oxygen deprivation , or what we've referred to as hypoxic brain injuries . Hypoxia is literally translated as low oxygen , which is obviously a dangerous state for anyone at any stage of life . During the labor and delivery process , during contractions , sometimes there are short periods of oxygen deprivation to the baby , which our experts have told us is totally normal , totally expected , and babies in utero have reserves that allow them to tolerate those short periods without any trouble . But if those periods of oxygen deprivation occur over and over during a lengthy period of time , or if there's a more prolonged period of oxygen deprivation that doesn't relent , then that's when there could be trouble for the baby .

Warren Berg 11:42

Now , 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 11:54

Well , to quote one of my obstetrical experts I've consulted , obstetricians do two things basically they recognize risk and they take steps to reduce the risk .

Shelagh McGregor 12:04

So doctors are trained to diagnose conditions that can be stopped before permanent damage occurs .

Shelagh McGregor 12:10

Looking at another area of medicine , for example cancer , we have all sorts of screening tools now to diagnose cancer early , because treatment can actually change the outcome . That's why we have mammograms and colonoscopies and those other exams men undergo after age 40 that they don't like to talk about . Going back to obstetrics , though in labor and delivery the main tool aimed to recognize risk is called electronic fetal heart monitoring , so that's the strip that goes on top of mom's belly to monitor the heart rate . So obstetrics has evolved to the point where doctors and nurses know that certain patterns of the fetal heart rate tell them certain things about how the baby's doing inside , and if they see certain patterns lasting a certain period of time or longer , they know that baby is likely experiencing oxygen deprivation and needs to be delivered as soon as possible . The patterns that develop during more prolonged periods of oxygen deprivation are things that the doctors and nurses need to worry about , because those are the things that can lead to hypoxic brain injuries .

Warren Berg 13:15

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

Jillian Gamez 13:29

So in the case of a baby experiencing hypoxia while mom is laboring , the way to do that is to deliver the baby as quickly as possible . So if the doctors and nurses decide that baby isn't doing well , the key is to end the labor , either through a quick delivery or through cesarean section . And these decisions need to happen really quickly . Letting the situation languish or not taking quick steps can result in brain injuries .

Shelagh McGregor 13:49

When we're looking at whether an avoidable brain injury happened during labor and delivery , we have to look at the patterns in the fetal heart monitoring strip , the brain imaging done on the baby , lab results and other medical information in the records . The one thing I wanted to flag for your listeners is something that has developed in the last 20 years or so as a treatment for people who have experienced oxygen deprivation , and that's actually whole body cooling . It's become a very important treatment for babies who have experienced a hypoxic insult to their brain , and whether it was used as a treatment is something that we want to know , because whether a baby was cooled actually makes it much more likely that we can prove that any brain injury that occurred was preventable .

Warren Berg 14:36

A whole body cooling . That sounds like hypothermia .

Shelagh McGregor 14:39

Well , Warren , that's exactly what it is .

Shelagh McGregor 14:41

It is induced hypothermia , Sort of by accident .

Shelagh McGregor 14:45

It was discovered that people who experienced a state of oxygen deprivation and who were also hypothermic ended up without serious brain injuries , when normally people who experience a period without oxygen do end up with hypoxic brain injuries .

Shelagh McGregor 14:59

So there's been a lot of research on why that is brain injuries . So there's been a lot of research on why that is and that hypothermia seems to have a kind of protective effect against hypoxic brain injuries , and also research on what amount of cooling and length of time is safe and effective . So studies have shown that if a baby receives cooling within six hours of the oxygen deprivation , it dramatically reduces the extent of the hypoxic brain injury . Research has shown that a lot of the injury comes from the swelling that occurs after the initial insult . That occurs within the following few days . So in babies who have experienced an insult to their brain as a result of oxygen deprivation , cooling reduces the extent of the swelling quite a bit and thus reduces the extent of the injury quite a bit and thus reduces the extent of the injury . It's now considered the standard of care to cool a baby who has experienced a hypoxic ischemic insult . So why does ?

Warren Berg 15:52

whether cooling was done affect your analysis of a medical malpractice case .

Shelagh McGregor 15:56

Because cooling is only really effective if it's done shortly , like hours after the hypoxic insult . So the doctors have to look at whether the insult occurred during the labor and delivery process . That happens to be the period of time that we also look at , because most obstetric malpractice cases focus on whether there should have been intervention by the doctors , midwives , nurses during the labor and delivery . In most of our cases our argument is that those treatment providers should have intervened sooner , in those last few hours of labor . So we have to prove that the injury occurred during those last few hours . So when a doctor decides to treat a baby with whole body cooling , that doctor has decided that the baby's oxygen deprivation actually occurred during those last few hours of labor . We used to have to go to experts to tell us the timing of the injury . Now the fact that cooling was done tells us when the injury likely occurred . So if someone listening today knows that their baby was cooled after birth and their child isn't meeting milestones , I would encourage that person to give us a call Now .

Warren Berg 17:02

this sounds like a lot of information for parents to know what if they don't have all of that information ?

Jillian Gamez 17:07

Well , it's very common for parents not to have the benefit of easy access to this information , and nor do they know what records to ask for from hospitals , let alone what to look for once they actually get the records . For example , even when our office requests the entire chart from the hospital , we aren't provided the fetal heart monitoring strip unless we specifically ask for that . Parents often don't know what is not in the chart they've requested , even if they've been provided with some of the medical records . So unless they have someone in their lives that can help them through all this information , they're often left in the dark . That's why we aim to educate people about what we're looking for . That might prompt someone to call us who otherwise might never reach out .

Warren Berg 17:47

What is the best way to connect with you ?

Jillian Gamez 17:49

The easiest way is to check out our website at weirbowen dot com so that's w-e-i-r-b-o-w-e-n dot com . On our contact us page at our website there's a form you can fill in and our reception staff will make sure that your question gets to the right people .

Warren Berg 18:07

And what if the internet isn't an option ?

Shelagh McGregor 18:09

We're happy to take phone calls , so you can just call our main reception line at 780-424-2030 and our receptionist can get you in touch with the right person .

Warren Berg 18:21

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

Jillian Gamez 18:41

For sure . Another area we see quite frequently is a delay in the diagnosis and treatment of certain conditions once the child is born in the newborn period , like hypoglycemia and jaundice .

Warren Berg 18:53

And I believe you've talked about hypoglycemia in a previous show . That means low blood sugar .

Shelagh McGregor 18:59

Exactly

Potential Birth Injury Complications

Shelagh McGregor 19:00

so . Blood glucose levels that fall below normal can be just as catastrophic as low blood oxygen to the baby's brain . So one of the most common metabolic problems in newborn infants is hypoglycemia , and some newborns are more vulnerable to having permanent consequences from low blood sugar . The cases where we see claims for the consequences of hypoglycemia include where the baby wasn't growing properly before being delivered , so they don't have enough glucose reserves after they're born , or where they've had a difficult delivery and those reserves were used up during the labor and delivery process and the doctors and nurses don't recognize the risk of low blood sugar in the baby . In the circumstances that I just described , the baby's blood sugars may need to be monitored more frequently to make sure that their systems are working properly . Hypoglycemia in a newborn can cause quite a significant brain injury , which can end up leading people to our door .

Warren Berg 19:57

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

Shelagh McGregor 20:00

Well , it depends on how low the sugars get and for how long . The problems can be relatively mild if caught and treated properly . But severe hypoglycemia can result in more serious issues , including brain injury , so loss of cognitive function , speech problems and psychological and behavior issues .

Warren Berg 20:19

So , Jill , when you were talking earlier , you also mentioned that birth injury cases related to jaundice you mentioned those . Isn't that a very common condition that babies develop , and why would a parent sue for their baby having jaundice ?

Jillian Gamez 20:33

Jaundice is very common and generally it'll go away pretty quickly with no long-term consequences . But it's where there's been poor management of jaundice that lawsuits could arise , because jaundice that's severe and prolonged can result in a brain injury called kernicterus . So to explain briefly what jaundice is and why it happens when a baby's born they have a relatively high level of blood cells but they break down quite quickly and the byproduct of that breakdown is called bilirubin . It can take a newborn's body a few days to get the hang of what to do with this bilirubin , which is generally the job of the liver . In the meantime the bilirubin can build up in the body .

Jillian Gamez 21:11

So nurses and doctors have ways to measure levels of jaundice and make sure that it goes away . Generally it will improve with regular feeding and bowel movements as the newborn's body figures out how to deal with life on the outside . However , feeding and bowel movements as the newborn's body figures out how to deal with life on the outside . However , if it doesn't go away , hospitals have something called phototherapy that they can use to treat the jaundice . A medical malpractice claim can arise when the doctors or nurses either don't diagnose the jaundice or they don't use the proper treatment .

Warren Berg 21:37

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

Shelagh McGregor 21:41

Well , yes , obvious jaundice is pretty easy to diagnose , and you're right . The classic signs are yellowish skin or yellow tinge to the baby's eyes , but on some babies it can be harder to detect , especially in newborns with darker skin pigments and darker eyes . Premature babies are also more susceptible to jaundice , amongst many other issues , because their systems aren't as developed yet . So it is critically important for preemies to be medically monitored for jaundice . Simply waiting to see if they turn yellow is not the best practice , and so this is done through blood tests to check the bilirubin levels , and if they are too high , then it needs to be treated . So what can happen ?

Warren Berg 22:23

if jaundice goes untreated .

Jillian Gamez 22:25

As I said earlier , jaundice will often go away on its own without medical intervention and there won't be serious consequences from it . But the most common known treatment for jaundice are these phototherapy lights , where babies lie under the light so their skin is exposed . That light helps to change the bilirubin into a form that's easier for the baby to pass out of their body . So if the phototherapy doesn't work , interventions might include emergency blood exchanges where the baby's blood is replaced with blood from a donor to quickly bring down those bilirubin levels . That's a pretty significant intervention , but it does speak to how important it is to get jaundice under control . If it doesn't go away on its own and it isn't treated properly , it can cause a brain injury .

Warren Berg 23:09

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

Shelagh McGregor 23:12

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 the urine , and in the newborn period the baby just starts feeding and the normally 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 problems in the brain , brain injuries , and if the jaundice doesn't go away with the usual treatment , it might also mean that there's something else going on that needs to be medically investigated , such as an infection or a metabolic problem .

Warren Berg 23:49

So what do you mean by a metabolic problem ?

Jillian Gamez 23:51

Well , there are lots of processes in our bodies that work together to break down or metabolize things .

Understanding Obstetrical Malpractice Legal Hurdles

Jillian Gamez 23:57

We already talked a little bit about hypoglycemia that could be from a metabolic problem . I've seen cases where the doctors didn't diagnose a congenital pituitary gland malformation that affected hormone development . So in that case the baby wasn't getting the hormones they needed . If the baby has a hormone imbalance , that can be considered a metabolic problem , because we need hormones to help our bodies with everyday functions , like changing food into glucose , for example . So in cases where the pituitary gland malformation wasn't diagnosed , the baby experienced significant hypoglycemia and a permanent brain injury as a result .

Shelagh McGregor 24:36

So those of us who have had babies may recall the public health nurse coming to your house and pricking your baby's foot to get a blood sample that you then put on a piece of paper . That blood is then sent for testing to determine whether the baby has some metabolic conditions , and one of those includes phenylketonuria , or what we call PKU . The reason they test for PKU is because if the baby's positive for it , that means they have a disorder that causes an amino acid called phenylalanine to build up in the body and it can cause a permanent brain injury . So the key with PKU is to diagnose it early so the baby can consume a diet that's low in phenylalanine and to prevent a buildup of that and prevent a permanent brain injury . So these are the sorts of cases that we see rarely , because those conditions are pretty rare . They do happen .

Warren Berg 25:29

This is Ask the Lawyer on Windspeaker Radio CFWE and CJWE . I'm your host , Warren Berg , here today with Jill Gamez and Sheila McGregor from we're Bowen LLP , and today we're discussing obstetrical malpractice cases and some reasons why people don't contact lawyers . What do you think the biggest reason why people don't call you ?

Jillian Gamez 25:49

Well , probably the biggest reason is that most people who have children who have had a birth injury are just trying to get by day to day . They're overwhelmed with the needs and the reality of caring for a child who has a lot of medical needs . After a baby has sustained a brain injury , you can imagine that families usually need to attend many medical appointments . These children often have to attend multidisciplinary clinics where they can see pediatric neurologists , developmental pediatricians , speech and language pathologists , occupational therapists , physiotherapists and nurses .

Shelagh McGregor 26:25

Sometimes I'll get my client's calendars from that first year after birth as part of the evidence that we produce in the lawsuit , and it always amazes me how crammed the calendar is with all of the appointments that these families need to attend . It's truly amazing and it does often last for quite a while . After the initial period of intense medical appointments , families have to cope with coming to terms with the consequences of their child's injuries . Some parents may not be able to work because of how much care they need to provide for their child . Some children need to be tube fed or have seizures that need constant monitorings , such that they can't go to traditional child care . The care that's required often places significant financial strain on the family , and the parents are focused on making ends meet and providing the care that their children need .

Jillian Gamez 27:14

Ironically , the very reason why parents have trouble finding the time to contact a lawyer is the reason we urge parents to consider investigating a claim , because the care needs of their child generally don't go away and as the child gets bigger and the parents get older , the parents just won't be in a position to care for the child the way that they used to . Children whose parents used to be able to carry them around probably can't be lifted once they get to a certain age and they may need extra help or maybe even lifts in the house . So many of the children who have suffered birth injuries won't be able to live on their own as adults and funding will be required to ensure that someone's around to take care of them when the parents aren't around anymore .

Shelagh McGregor 27:55

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

Jillian Gamez 28:17

And usually it's not the parents that reach out initially . In the first case , we often are contacted by grandparents or maybe siblings of the parents , who often have more time and emotional bandwidth to consider maybe starting a lawsuit . So now would probably be a good time to encourage anybody who's on the fence about reaching out to a lawyer about a potential birth injury to do that . There's no obligation to pursue a lawsuit just because you reach out to us . We take our role seriously to answer questions that people have and to also explain any aspects they're unsure about .

Warren Berg 28:51

So this is probably a really good time to remind our listeners how they can get in touch with you if they need to talk to a lawyer about a personal injury claim , whether it's obstetrical malpractice or a motor vehicle accident or some other type of injury .

Jillian Gamez 29:10

For sure , you can check out our website, at weirbowendotcom, that's W" or you can call our main reception line at 780-424-2030 . And our receptionist can get you in touch with one of our lawyers .

Warren Berg 29:22

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

Shelagh McGregor 29:42

There's one thing that I come across a lot , Warren , when I'm talking to mothers about what happened to their children . If you're a mom , you've likely experienced mom guilt at one point or another . I certainly have had my fair share as a working mother . Um , the more I speak with other mothers , the more I realize that it's an almost universal feeling mom guilt . Um , the first thing that most moms think of when something happens to their child is whether they could have prevented it themselves , because it's very scary to think that there's . There are outside forces that could injure our children , that are completely outside of our control . So we think about landish scenarios in which we can protect our children and , even though we know it's not rational , we feel that way anyway . And this may explain why many mothers are hesitant to go down the road of a medical malpractice claim against the doctors or nurses or midwives for their child's injuries , because , deep down , even though they know it was outside of their control , they blame themselves in some sort of small way , and they don't want to start thinking about who's to blame . So blaming yourself is something that moms often do , unfortunately . It's functional when we lift cars to save our children , but it's not so much when it turns into guilt over something that we're powerless over .

Shelagh McGregor 30:57

So a mother who is in labor is in one of the most vulnerable states she will ever be in in her life . She's in pain . She's sometimes on mind-altering medications for that pain . She's tired , she's often scared . Most of the labor process is a bit of a blur .

Shelagh McGregor 31:15

Yet many of my clients tell me that they feel like they should have done more to prevent what happened when they were experiencing this painful , scary , vulnerable state , and I think the fact that we feel that we should have that power over everything that may harm our children causes us to feel that , even in a small way , part of what happened is our fault , and I often have to tell my clients that they had no power over what happened . Place yourself and your baby in the hands of qualified medical professionals and you rely heavily on them during your labor and delivery . You're not trained to read fetal heart tracings . You certainly can't perform a cesarean section if things start to go the wrong way during labor . Perform a cesarean section if things start to go the wrong way during labor . The medical professionals are there to intervene in case something goes wrong and you're not in a position to do so , but I do think that many mothers worry about examining whether their child's injuries were preventable , because that can open an emotional can of worms for them .

Jillian Gamez 32:09

Another question that we see is well , I've signed a consent form . Doesn't that mean I can't sue ? I think a lot of people think that a consent form is like signing a waiver of legal rights , which is actually not the case . Even legally trained people ask that question . The answer to the question starts with an explanation of what informed consent is and the purpose of the consent form . So every patient's entitled to know the risks , benefits and alternatives of the treatment . The decision on whether to proceed with a treatment is up to the patient . Before a treatment is provided whether it's administering oxytocin to increase the intensity and frequency of contractions , or using forceps or a vacuum to perform an assisted delivery , maybe proceeding with a cesarean section or some other kind of treatment the patient's always entitled to have the risks , benefits and alternatives to whatever treatment explained to them . So the consent form is meant to document that the treatment provider has actually gotten the patient's consent and that they've talked about the risks , benefits and alternatives to treatment . So now , just because a patient has signed that consent form doesn't mean that it's an end of the inquiry .

Jillian Gamez 33:21

Often we have cases where the alternatives to treatment so for example , a cesarean section as an alternative to a vaginal delivery was just simply not offered . Just because a patient signs a consent form doesn't mean that it is not available to them to argue that they weren't offered a cesarean section when they should have been . Consent forms are different than waivers . Waivers acknowledge that you are waiving the other person's legal liability if something bad happens . Consent forms , on the other hand , just acknowledge that the treatment provider has obtained your consent . They do not address their legal liability for negligence or for failing to provide you all of the information with respect to the risks , benefits and alternatives to the treatment they propose . A consent form basically helps a medical provider prove that what they did was an assault , but it doesn't really prove anything beyond that in and of itself that what they did was an assault .

Warren Berg 34:14

I would imagine that a lot of the people are concerned about the consequences of suing a physician . Do you ever encounter concerns about that ?

Shelagh McGregor 34:20

Absolutely we do . We hear that a lot . One of the biggest worries that families have when their children have suffered brain injuries is whether their children are going to receive worse care than they would otherwise receive if they didn't sue .

Jillian Gamez 34:36

Yeah , and most of the families we see are very reliant on the health care system because their children's injuries are so significant . So they don't want to jeopardize their child's well-being just for a lawsuit .

Warren Berg 34:47

Is that something that families have to worry about ?

Shelagh McGregor 34:49

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

Jillian Gamez 35:17

We've actually also encountered clients who are quite concerned about suing a doctor because maybe they like the doctor , they feel guilty about suing him or her and they worry about the potential consequences for that doctor . So this would be a good opportunity to clear up some misconceptions about that as well . So , first off , doctors and nurses have insurance , lots and lots of insurance . Doctors and nurses don't pay any settlement or court judgment from their own pocket . Insurance companies pay those settlements and judgments and those organizations have lots of money to do that . In fact , in 2021 , the Canadian Medical Protective Association , the group that defends doctors here in Canada reported that they actually have $1.6 billion in assets . That's a lot of money to cover or pay out for bad outcomes of negligent medical care .

Jillian Gamez 36:09

And secondly , just because a doctor maybe loses a lawsuit doesn't mean they won't be able to practice medicine again . We hear this from patients over and over . They think that being sued will be tied to a doctor's ability to practice . They're actually not associated . The doctor's ability to practice medicine is separate from any lawsuits that they might be involved in . So they're obligated to tell the College of Physicians and Surgeons , at any hospital they have privileges at , about the lawsuits , but unless they're involved in a ton of lawsuits , it won't affect their ability to practice .

Warren Berg 36:42

I guess the bottom line is it usually is . If you have any questions , it never hurts to call a lawyer or to contact you via the website . We have covered a lot of ground here today in this edition of Ask the Lawyer with Shelagh McGregor and Jill Gamez of Weir Bowen LLP in Edmonton . If you want to find out more , you can visit their website , weirbowencom dot com that's W-E-I-R-B-O-W-E-N dot com . You can always give them a call 780-424-2030 . The other thing you can do . You can find a link to Ask the Lawyer on the radio station's homepages at CFWE and CJWE , where these shows will be available to stream on demand . So we thank you once again today , Shelagh and Jill .

Shelagh McGregor 37:30

It was great being here , Warren .

Jillian Gamez 37:32

Thanks , as always , for giving us the opportunity to share really important information with your listeners .

Warren Berg 37:37

And we look forward to learning much more through this series , which will take place here once again on the last Saturday of every month on Winspeaker Radio , cfwe and CJWE .

Short Content Discussion

Warren Berg 37:50

You're lying already . Sorry about that , that's okay .

Shelagh McGregor 37:53

It looks like how you did it .

Jillian Gamez 37:57

They always seem like they have a lot of content . This one seems like it had a lot of content , I know .

Warren Berg 38:01

But it was actually really really short , yeah , incredibly speaking .

Jillian Gamez 38:05

Yes , yeah it was a short one . I'm very focused , trying not to .

Shelagh McGregor 38:08

You guys will be able to make that work right , oh yeah . Yeah .