Speaker 1: 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 once again are Sheila McGregor and Cynthia Carrolls from Weir Bowen LLP in Edmonton.

Speaker 2: 0:14

Thanks, warren, very happy to be here. Yeah, it's always great to be back with you.

Speaker 1: 0:18

Weir Bowen is an Edmonton-based law firm. However, their lawyers have represented clients across Alberta, bc 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 have been learning, weir Bowen is particularly known for its precedent-setting work in medical malpractice cases.

Speaker 3: 0:37

Yes, indeed, medical malpractice cases tend to make up a pretty significant percentage of the calls that we get at Weir Bowen from potential clients who are looking for lawyers, and they also actually tend to make up a pretty significant percentage of the cases that Weir Bowen ends up taking to trial and to those various courts of appeal that we were talking about. So you know, in fact, actually we just received a fairly important decision on one of the obstetrical medical malpractice cases that Weir Bowen recently ran to trial. So Sheila and I were talking and we thought this would probably be a good time to do a bit of a deeper dive into medical malpractice cases generally, and then we want to spend a bit more time on an even more specialized area under that banner of those obstetrical and birth injury cases, including this recent decision that Weir Bowen was a part of.

Speaker 1: 1:26

Okay, Sheila, let's start with the broader term of medical malpractice. What exactly do you mean when you talk about Weir Bowen's work in the area of medical malpractice?

Speaker 2: 1:36

So that's a good question. A lot of people think that medical malpractice requires an intentional bad act by a doctor or a nurse, but it actually doesn't need that. You can use the phrases medical malpractice and medical negligence interchangeably. So if you can prove that a doctor, nurse or other medical practitioner was negligent, then that can also be called medical malpractice, and by negligent we mean that the medical practitioner's acts or their omissions failed to meet the standard of care.

Speaker 3: 2:07

Now as lawyers. Neither Sheila or I or any of our partners or associates are actually doctors, so this question of the standard of care actually tends to consume a lot of our time.

Speaker 1: 2:19

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

Speaker 3: 2:34

You know, it actually might help to first address what negligence isn't, because we do get calls all the time about people who have experienced adverse outcomes following a medical procedure and unfortunately the sad reality is that even when everything is done perfectly according to the textbooks, things can go wrong that truly aren't anyone's fault. You know any interface that you have with the medical system is going to come with some built-in risks there, and there can be a lot of non-negligent reasons for the bad outcomes that people will call us about all the time, and a great deal of medical judgment truly lies in balancing out those potential benefits a patient might be able to get against those potential built-in risks.

Speaker 1: 3:18

Now, when you talk about risks, is that what doctors are supposed to talk to you about before asking you to sign a consent form?

Speaker 2: 3:25

Yes, exactly so. A health care provider is supposed to take the time to educate patients about those risks. So when a patient is making a decision about their health, they're making those decisions with their eyes wide open about the risks of any medical intervention. For example, some types of surgeries can expose patients to increased chances of blood clots, other bleeding, infections and even death.

Speaker 1: 3:51

You would think that if somebody dies as a result of surgery, there's a good chance that somebody did something wrong. Though Am I wrong on this?

Speaker 2: 3:59

Well, sometimes that's true, but sometimes it's not. Surgeries can be fraught with risk, but if a patient is in really rough shape, it may be reasonable to undertake a surgical intervention, because the risks of not proceeding are even worse than doing nothing.

Speaker 3: 4:16

Yeah, you know, even honestly, warren, when we use an over-the-counter medication like Tylenol or Advil, those products come with all sorts of warnings about the potential risks, so users will be able to decide whether the product is right for them. And the same thing goes with other medical interventions like surgeries or blood transfusions and even having a baby. So when a patient has an adverse reaction or outcome, we need to go right back to the basics about that medical intervention, to see what the medical community has to say about the potential risks and benefits of that intervention in order to find out what can go wrong. Even when that procedure is done according to the books and if someone has suffered, you know what was sort of within the scope of risks that a patient accepted when they consented to that medical intervention it can be very difficult, if not impossible, to hold a medical treatment provider responsible if the person has an adverse outcome.

Speaker 2: 5:12

So, unfortunately, bad things happen in hospitals all the time, despite the best efforts of very hardworking medical staff, but at the same time, not all medical interventions are done properly. And that's where we come in. We're going to seek out independent medical experts who can review a client's medical records to tell us what went wrong, why it happened, and also help us sort out if somebody actually did or failed to do something that they should have done in the circumstances. That's what we mean when we're talking about investigating the standard of care.

Speaker 3: 5:44

Yeah, and that standard of care is something we're going to talk about today, as we turn our focus to that very specific area of medical malpractice that Weir Bowen focuses on, and that's these obstetrical malpractice claims.

Speaker 1: 5:56

So what do you mean by obstetrical malpractice?

Speaker 2: 6:00

So when we use the term obstetrical malpractice, we mean a whole host of things that can go wrong during the preconception stage, during pregnancy, as well as the labor and delivery process, as well as even shortly after the birth of a baby, and this is a pretty big part of what we do, and it's also a pretty complicated area of medical malpractice.

Speaker 1: 6:20

And why is this such a uniquely challenging area of law?

Speaker 2: 6:25

malpractice, and why is this such a uniquely challenging area of law? So hundreds of thousands of pregnancies occur in Canada every year, but pregnancy, as Cynthia mentioned, is fraught with risk and even as recently as five years ago, our maternal mortality rate was 8.3 deaths per 100,000 live births, despite having access to some of the most advanced prenatal and obstetrical care in the world. In addition, according to Stats Canada, about 1 in 25 Canadian babies will be born each year with some sort of congenital abnormality, and for many of them, the cause is unknown or unpreventable. However, avoidable medical injuries can and do happen, involving embryos, fetuses and newly born babies, and some of these can lead to lifetimes of complications, dependency and very costly care needs.

Speaker 3: 7:12

Yeah, weir Bowen is actually one of the founding members of the Birth Injury Lawyers Alliance was formed to improve the quality of representation for clients who have children who have suffered from injuries that were sustained at or around the time of their birth. So we call that group BILA, so B-I-L-A. And another goal of BILA is to educate the public on potential areas of obstetrical malpractice claims in order to make sure that families are more comfortable with picking up the phone and calling a lawyer who is experienced in this area. So, honestly, that's one of the big reasons why we wanted to dedicate an entire episode of Ask the Lawyer to these specific types of claims. It's really in line with what BILA does.

Speaker 1: 7:58

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

Speaker 2: 8:06

Well, I've been a new parent before, and as a new parent, it can be really hard to know if something went wrong during the labor and delivery process or during the newborn period. Anybody who's been through it will tell you that it all becomes a blur. There are so many things happening, even in the most optimal labour and delivery scenario, so new parents are focused on the impending birth of their baby and their immediate needs, and it may not be until sometime later that a parent even begins to think about how something might have gone wrong, let alone that they should be reaching out to a lawyer.

Speaker 3: 8:40

You know, in our experience people tend to reach out to us because somebody else has actually prompted them. It could be a friend or a family member, somebody who knows someone or has heard about someone else with a personal experience that resulted in one of these birth injury lawsuits. You know, I can't tell you how many times the first words of a potential client, you know the first words out of their mouth are I don't know if I should be calling a lawyer, but you know somebody so and so thought it might be worth looking into. And why do you think that is?

Speaker 2: 9:11

Well, I think there's two main reasons why people don't call a lawyer about these types of claims. The first reason a complete lack of information, and that's part of the reason why we're here today. And the second is that it can be a very emotional thing for a parent to decide to sue a hospital or a doctor for their child's injuries.

Speaker 1: 9:29

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

Speaker 3: 9:35

Knowing whether a child's injury happened during labor and delivery or that neonatal period requires someone to look at the medical records.

Speaker 3: 9:44

But you can't just look at the medical records without also having some medical knowledge to know what to look for. You know, even if a parent was to make a request to a hospital for the labour and delivery records, it is extremely difficult to know what the heck you're looking at. You know there's nurses notes in there, there's fetal monitoring strips, sometimes there's blood work and operative procedure reports. It's really quite overwhelming and parents, generally speaking, won't know what they're looking at or even how to determine if what they're looking at means that someone made an error, and unfortunately a lot of medical practitioners aren't really volunteering that information up either. So as a result, we frequently need to get an independent medical expert to review those records for us. But given how many of these cases we've done over the years, our birth injury lawyers are getting pretty good at figuring out what we need to look for and we can take a look at those records now and at least look for clues that something might have gone wrong.

Speaker 1: 10:44

I would imagine that there are people who also wonder about things like whether they're too late or maybe there's some legal reason why they can't bring a claim.

Speaker 2: 10:52

Yeah, absolutely. We hear all the time from people you actually can't sue doctors in Canada, can you? And I answer I do it every day. So yes, you can. It's not the easiest thing to do, but it's definitely available to you if you have a good claim.

Speaker 3: 11:08

Yeah, and you mentioned, you know, people wondering whether it's too late to bring a claim, and this is a common question from our clients who have children who suffered injuries around the time of their birth, because sometimes the full extent of the injuries doesn't even become apparent until the child is quite a bit older. You know, especially if it's something that's maybe a milder injury that affects the child's ability to think or use that higher level executive functioning, things like impulse control, behavioral issues, ability to initiate tasks you know things that you don't really expect to see in kids until they get older. And in cases like that, people may not realize that their child has significant barriers to living independently, you know, as an adult, or being competitively employable until their child is, you know, in late elementary school or sometimes even later than that. So it is important for your listeners to know I know we talk about limitation periods all the time, but if you have a child still, they are not out of time and it is important for people to realize that.

Speaker 2: 12:12

Yeah, as Cynthia mentioned, we talk about deadlines all the time in the show because deadlines run our lives, but this is a good time to raise it again. So the general rule in Alberta is that you have two years to sue from the date that you knew, or ought to have known, that someone caused you an injury. But there are exceptions to that, and two important exceptions are for children, who have until their 20th birthday to sue, and for adults who require a trustee to manage their financial affairs, who don't have any limitation date. So now, when I say that, I encourage anyone who suspects that they may have a claim not to wait.

Speaker 2: 12:48

There are other reasons why the passage of time isn't our friend, like medical records being destroyed or memories fading. But, for example, if you have a child who's maybe 15 years old and has been diagnosed with cerebral palsy and you suspect it was preventable, do not hesitate to contact us. You're not out of time. You probably won't know for sure whether it was preventable because, as we said, we generally need the medical records and expert opinions on those records to tell us whether there is a case. But don't hesitate to call if you're not sure.

Speaker 1: 13:22

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

Speaker 3: 13:27

Yes, thanks, warren. If anyone listening wants to get a hold of us today, they can most easily find us on our website, which is we'rebowencom, that's W-E-I-R-B-O-W-E-Ncom, or they can call our main reception line during business hours, the phone number there is Warren.

Speaker 2: 13:50

I also wanted to mention another legal issue that I hear people ask about a lot. So, aside from time limits, some people also have a misapprehension about other legal issues that can affect whether they can bring a claim as well. So, for example, we've heard the question can I sue, even though I signed a consent form at a hospital?

Speaker 3: 14:13

Yeah, and we've dealt with consent forms in another episode. But it is really important to sign, or to point out that signing a consent form is not the same thing as signing a waiver. You know, like the sorts that you would sign. You know, if you're going to a trampoline park or some other risky activity like that, you are not waiving your rights to sue for negligence when you sign a medical consent form. Signing the consent form only confirms you are consenting to have them do the procedure and it protects those treatment practitioners from a claim that we call battery. In other words, it's a defense to saying that you were assaulted by the doctor who's doing the procedure, and that's really what the consent form does.

Speaker 1: 14:50

I would imagine that one of the things that most people are wondering as well. How much is this all going to cost me if I call you yeah, for?

Speaker 2: 14:56

sure that's something everybody's thinking about, right? And that's another misapprehension people have. They think we're going to charge them a bunch of money. And that's another misapprehension people have. They think we're going to charge them a bunch of money. We treat birth and neonatal injury claims a little differently than the other claims at our firm because we recognize the immense financial and emotional burden that these families experience. So we get paid on a contingency fee basis for all of our medical malpractice claims and what that means is we don't get paid for the time we spend on your case unless we get a settlement or judgment at trial. You will not be paying us hourly for any consultation, any phone call, any emails.

Speaker 1: 15:34

And we've talked before about the lack of information that many people have who have potential claims in this area. So if somebody calls you, what sorts of things are you looking for?

Speaker 2: 15:44

So that depends on the kind of injury that we're dealing with. So let's break it down into a few typical kinds of obstetrical malpractice claims that we deal with. So the largest area we deal with is for children with brain injuries from oxygen deprivation, which doctors generally call hypoxic brain injuries. Deprivation, which doctors generally call hypoxic brain injuries. Hypoxia can be literally translated as low oxygen, which is obviously dangerous for anyone at any stage of life but can have permanent, devastating impacts on a baby with a fragile brain that's still developing.

Speaker 3: 16:18

And in the labor and delivery process, especially during contractions. Sometimes there are short periods of oxygen deprivation to a baby and our experts tell us that is generally totally normal and expected. So when we're looking at the medical records, these little short periods of oxygen deprivation don't necessarily set off red flags in and of themselves.

Speaker 1: 16:40

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

Speaker 2: 16:50

Yeah, that's something that I wondered about when I first started this work, so I'll put it this way If you ask an expert obstetrician what they do I've heard one expert describe it this way they say that they're trained to recognize risk and take steps to reduce the risk. That's all they do is basically what she said. So in labor and delivery, the main tool meant to recognize the risk is electronic fetal heart monitoring. The point of monitoring the baby's fetal heart rate during the labor is to watch for the patterns that develop, because and the right people need to be watching for these patterns to make judgments on whether or not the baby is experiencing oxygen deprivation or not, or is doing well or not Because the patterns that develop during the more prolonged periods of oxygen deprivation are things that the doctors and nurses need to worry about, because those are what can lead to hypoxic brain injuries.

Speaker 1: 17:49

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

Speaker 3: 17:57

To be blunt, they got to get the baby out. If the doctors or nurses decide the baby is not doing well, the key is to end the labor, either through a quick delivery or a cesarean section, and these decisions need to happen fast. Letting the situation languish is what can result in very serious injuries.

Speaker 2: 18:16

So when we're looking at whether there was an avoidable brain injury that happened during the labour and delivery, we look at those patterns in the fetal heart monitoring records and as well as other information in the medical records. There's things like looking at the blood work. Certain readings in the blood work tell us when the injury happened and whether it was preventable. Same thing with medical imaging of the brain. That tells us a lot about what happened, and so parents generally don't have the benefit of having easy access to that information information. Or do they know what to be looking for and the meaning of these different things in the medical records, or even what to ask for when?

Speaker 3: 18:55

they're asking for records from the hospitals.

Speaker 2: 18:57

Yeah, because even you know, sometimes, even when we request medical records from hospitals, we don't get the fetal heart monitoring strip, and we have to specifically request that. So unless they have someone in their lives who can help them through all of that, they're often left in the dark, and that's why we aim to educate people about what we're looking for and that might prompt someone to call us who otherwise might never reach out.

Speaker 1: 19:20

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

Speaker 3: 19:41

Absolutely. We have a whole long list, Warren. We can go on for days, but we'll talk about sort of the main ones that we see on for days, but we'll talk about the sort of the main ones that we see. Another area that we do see is a delay in the diagnosis and treatment of certain conditions in newborn babies, such as hypoglycemia and jaundice.

Speaker 1: 19:58

And as I've been studying Latin hypoglycemia, you mean low blood sugar.

Speaker 2: 20:03

Exactly exactly. 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 a newborn baby is hypoglycemia, and some newborns are actually more vulnerable to having permanent consequences from low blood sugar than others. While a baby is in the hospital, their blood sugars may need to be monitored to make sure that their systems are working properly, because if they aren't and the baby ends up with a brain injury from low blood sugar, that's an area that we often end up dealing with ourselves.

Speaker 1: 20:37

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

Speaker 2: 20:40

So it depends on how low the sugar is getting, for how long. The problems can be relatively mild if it's not too low and it's caught early and treated properly. But severe hypoglycemia can result in more serious issues, including like a permanent brain injury that affects cognitive function, causes speech problems and even causes psychological and behavioral problems.

Speaker 1: 21:03

Now you said that some newborns are more vulnerable than others to having problems relating to hypoglycemia, that some newborns are more vulnerable than others to having problems relating to hypoglycemia. Is this something that a parent is supposed to know and be?

Speaker 3: 21:16

watching for? Or is that entirely on the doctors and nurses? Some parents do know about these risks. For example, you know if a mother is known to be diabetic. They may have some working knowledge about the importance of watching for signs of hypoglycemia and taking care of their own nutrition during their pregnancy.

Speaker 3: 21:31

Pregnant moms with diabetes do have a higher risk of miscarriage and preterm birth or stillbirth malformations or high birth weights. So there is definitely a lot to know about managing diabetes during pregnancy, and a known diabetic may even need to have modifications to their own medications during pregnancy in order to keep their own blood sugars stable for the benefit of the baby. However, diabetes can actually spontaneously manifest itself during pregnancy as well, when moms develop what's known as gestational diabetes, and this is something that should be routinely tested for during prenatal care, because it is surprisingly common and can generally be managed once it's identified. You know, I recently read a study that indicated about 4% of pregnant people develop gestational diabetes, but if this condition goes undiagnosed or it's improperly managed, it can be hugely problematic for both the mom and the fetus, even after the baby is born.

Speaker 2: 22:34

How so? So, from what I understand, an occasional hypoglycemic episode during pregnancy is pretty common and generally not a big deal. I had one of those myself.

Speaker 2: 22:41

It's a little scary, but got a little shaky on the feet, yeah. But, like Cynthia mentioned, babies born to diabetic mothers are known to be at risk for growing too large, and they often need to be delivered through cesarean section to avoid an even more potentially preventable problem like a condition called shoulder dystocia, where the baby's shoulder gets stuck on the mom's pelvis during delivery. So babies from diabetic mothers can also require a lot more by way of nutrition when they're born, so they can be more vulnerable to hypoglycemia after they're born too. But it's not just big babies that are at risk of hypoglycemia. It's also babies that have struggled during the labor and delivery process, or those babies that we talked about that have hypoxic injuries during the labor delivery process. They're actually prone to hypoglycemia too because their organs aren't functioning as they should. After that happens and the doctors and nurses should know that.

Speaker 1: 23:38

So, cynthia, when we were talking earlier, you mentioned birth injury cases relating to jaundice. Isn't that a very common condition that many babies develop? Can anyone with a jaundiced baby sue for malpractice?

Speaker 3: 23:52

Jaundice is very common and generally it does go away pretty quickly. So no, simply having a baby with jaundice doesn't mean that we have a reason to sue anybody. It's truly the management of the jaundice that can result in the problems that we look at. So first of all, a bit of a primer on what jaundice actually is and why it is so common.

Speaker 3: 24:14

When a baby is born they have a relatively high level of blood cells, but those blood cells break down quickly and the byproduct of that breakdown is called bilirubin. And it can take a newborn's body a few days to kind of get to get the hang of what to do with the bilirubin, which is generally the job of our livers. But in the meantime bilirubin can build up in the body and nurses and doctors have ways to measure levels of jaundice and make sure that the jaundice goes away. And, like I said, generally it does resolve with regular feeding, you know, some some good healthy bowel movements, as the baby's body kind of figures out how to deal with life on the outside. But if it doesn't, hospitals actually have something called phototherapy that they can use to treat the jaundice and a malpractice claim can arise when the doctors or nurses either don't diagnose the jaundice or if they don't use proper treatment.

Speaker 1: 25:10

Now I always thought that it was pretty easy to diagnose a jaundiced baby, Don't they look kind of yellow?

Speaker 2: 25:16

Yeah, obvious. Jaundice is pretty easy to diagnose and you're right, the classic skins are the yellowish skin or yellow tinges in baby's eyes. But on some babies it can be harder to see, pardon me, especially in newborns with darker skin pigments or darker eyes. And premature babies are also more susceptible to jaundice, amongst many other issues, because their systems just aren't fully developed yet. So it's critically important for preemies to be medically monitored for jaundice and simply waiting to see if, they pardon me, turn yellow isn't the best practice. This is done through blood tests to check on those bilirubin levels, which is what causes the yellowness, and if they are too high, then it needs to be treated.

Speaker 1: 25:58

So what can happen if jaundice goes untreated?

Speaker 3: 26:01

So you know, as I said earlier, jaundice often goes away on its own without medical interventions, and there really aren't serious consequences from it without medical interventions, and there really aren't serious consequences from it. The most commonly known treatment for jaundice, though, are those phototherapy lights. So that's where you see the babies lying under those lights so that their skin is exposed to the UV therapy, and that light actually helps to change the bilirubin into a form that's easier for the baby to pass out of their body. So you see the little babies with the things over their eyes looking like they're enjoying a day in the sun. But if that doesn't work, the interventions can even include emergency blood exchanges. So that's where the baby's blood is replaced with blood from a donor, and that will help to quickly bring down those bilirubin levels. Now, that is obviously a pretty significant intervention, but it does speak to how critically important it is to get jaundice under control, because if it doesn't go away on its own and it's not treated properly, it can cause a brain injury.

Speaker 1: 27:04

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

Speaker 2: 27:07

Yeah, yeah, bilirubin was a new word to me when I started doing this work, but it's regularly produced in our bodies. It normally gets excreted through the liver and the urine, and in the newborn period the baby starts feeding and the normal bodily functions are just starting to work. But those systems don't always get moving as quickly as they might need to, and if the bilirubin builds up to unsafe level, it does accumulate in the brain and cause a brain injury. So 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.

Speaker 1: 27:45

This is Ask the Lawyer with we're Bowen LLP across Alberta on CFWE and CJWE. Today we are speaking with Sheila McGregor and Cynthia Carrolls and the topic is obstetrical injuries. Now, cynthia, at the beginning of the show, you mentioned that Weir Bowen had recently been involved in an obstetrical malpractice trial. What happened in that case? So?

Speaker 3: 28:07

this case. It's a really interesting case involving twins who were born premature. They were born at 26 weeks and six days of gestation and they had a critical feature, or a critical feature of the pregnancy itself was an affliction that's known as what we call twin towin transfusion syndrome. Now, obviously, pregnancies involving multiple fetuses are just simply more risky than a singleton pregnancy, but these particular twins also had a vascular connection between the two of them, making an avenue for transfusion, essentially between the two twins.

Speaker 2: 28:49

Right. So the mother in this case, had been followed by a family doctor whose practice was restricted to low-risk pregnancies, which this pregnancy was not, unfortunately. Well, during one of the mother's ultrasound appointments, a radiologist identified that these twins were sharing some important structures, like in the placenta they were basically sharing one placenta and promptly notified the family doctor. So, but unfortunately, the evidence showed that the family doctor, although he started a referral to an obstetrician who's more equipped to deal with a twin pregnancy, he never actually completed the referral. So this meant that the mother was never seen by a specialist, despite the elevated risks associated with her pregnancy.

Speaker 3: 29:34

So this mother went on to develop some fairly significant distress and went to the hospital, not having had the benefit of a referral to an obstetrician. And that's where the ER doc actually identified what was going on and identified that the twins were suffering from this severe stage of the twin-to-twin transfusion syndrome and instead of saying that multiple times, I'm just going to call it TTTS. So while in utero, blood flow to one of the twins was actually excessive and blood flow to the other twin was deficient. So the mother was eventually transferred to a bigger hospital in Calgary and then ultimately had to go on to a hospital that was capable of doing a surgery to fix the problem, but unfortunately by that point the damage had already been done to the fetuses. The twins did go on to be born naturally and prematurely, but both of them suffered from neurodevelopmental injuries.

Speaker 2: 30:34

So the court in this case determined that if the family doctor had referred the mom to an obstetrician when he should have, the twins' injuries would have been less than they'd actually suffered.

Speaker 3: 30:46

The court agreed with our expert evidence, which demonstrated that there are medical interventions that should have been done that likely would have corrected the circulatory imbalance between the twins and they would have not been born so prematurely as a result yeah, but you'll note that Sheila's reference to this decision says the twins injuries would have been less than they actually suffered, and a statement like that really sums up the nuance of the kinds of things we have to navigate in these kinds of cases. Because the fact remains, this was still an inherently risky pregnancy, riskier than just a single birth, and the court did find that these babies still likely would have been born premature and they still would have had a greater risk of some sort of neurodevelopmental injury.

Speaker 2: 31:38

Right. The court just found that they wouldn't have been as premature, but still would have been born prematurely, and we relied heavily on a long list of experts to help us sort out what the trajectory of these twins' lives likely would have been had they received appropriate treatment in utero, and then also to sort out what their lifelong needs are going to be now with their injuries. But further complicating this case is the fact that the extent of the injuries of each twin are actually quite different, so one of the twins is considerably more compromised than the other physically. So, just like we do for every one of our clients, we need to assess their unique needs and their damages individually.

Speaker 1: 32:21

So even with the same pregnancy, the damages your client suffers can be totally different. If one of our listeners today thinks that their child might have sustained an obstetrical injury, what can they expect if they call a lawyer?

Speaker 3: 32:34

The first thing that Sheila and I want to assure your listeners of is what not to expect. If you call Weir Bowen and that is judgment Please do not expect to be berated with a whole bunch of questions about why you didn't do things differently. That is not what these calls are about. Sheila and I both completely understand the process of pregnancy. Labor and delivery is filled with emotion, it's filled with fear, it's filled with excitement, and even for those of us who have brought a child or two into the world, it still is filled with lots of mystery and we don't have any expectation that our listeners are going to know all the answers about what went wrong or even truly what questions to ask.

Speaker 2: 33:19

Right. Knowing what questions to ask is our job. So during that very first phone call we're going to be asking a lot of questions. But many times our potential clients don't know the answers of what went wrong. They just suspect that something did go wrong. So we're going to want to get as much information as we can from you about when the baby was born, where baby was born. Not all babies are born in hospitals. We, you know, have claims against midwives, for example, at for home deliveries, um, who is managing mom's prenatal care? That can be a gp, it can be an obstetrician, it can be a midwife care that can be a GP, it can be an obstetrician. It can be a midwife. Who delivered the baby? And how? Was it? A natural, like vaginal delivery? Was it a c-section? Um, what you might remember about the birth and everything, if anything, seemed concerning? There's often a little bit that people know not very much, but a little bit and we want to know what you know, um, and how's your child doing now? Are they hitting all their normal developmental milestones?

Speaker 3: 34:21

And obviously we fully expect most callers are going to have gaps in this information. Even the best historian is not going to know everything. They might even know that somebody wasn't telling them something or have that gut feeling that somebody wasn't telling them something. So we are probably going to recommend that you take some preliminary steps to pull together records for us, and that might include, you know, the mom's health records, including those pre-pregnancy records, prenatal records, as well as hospital records, and of course we're going to want the baby's health records as well, from the hospital, their pediatrician, family doctor, and we're going to take a look at all that information and sort of give you our preliminary thoughts, which could or probably will include a recommendation to get some expert opinions.

Speaker 1: 35:06

So now, why do you need expert opinions? Aren't you guys the experts?

Speaker 2: 35:10

Yeah, so I know it sounds like it, but our expertise is legal. Even though we do a lot of medical malpractice cases, we are not doctors and, honestly, no matter how long a medical malpractice lawyer practices in this niche area, there's always new things to learn. Obstetrical cases are frequently filled with surprises and before we recommend anyone launches into a lawsuit for a birth injury claim, we want to have an independent medical expert usually more than one review the relevant records and give us an unbiased opinion on the merits of the case.

Speaker 3: 35:46

And if we ultimately have to go to trial on a birth injury case which happens, which we literally have just gone through and now have a brand new trial decision, we are going to rely heavily on those experts to provide us with insight as to what happened, what went wrong and what should have been prevented. And these experts have a tremendously important job in helping us to prepare for trial and in assisting the court as well with respect to determining the issues in dispute. So it is our practice to make sure that we get those solid expert opinions in place very early in the process.

Speaker 1: 36:22

Who are these experts and are they other doctors?

Speaker 2: 36:25

Yeah, so that's a good question. Our extensive network of medical legal experts is definitely what sets us apart. I think in this space we have diligently worked to cultivate relationships with experts who are actually going to give us an opinion we can trust, even if it's bad news. We want to know it's an honest opinion and actually willing to get involved in the medical malpractice litigation. So there are many doctors and nurses who are simply not willing to weigh in on the conduct of other medical professionals for a variety of reasons. But for nurses who are simply not willing to weigh in on the conduct of other medical professionals for a variety of reasons, but for those who are willing to get involved, we also want to make sure that they have the appropriate background to speak to these issues and a court will give weight to their opinions.

Speaker 1: 37:09

This is Ask the Lawyer on CFWE and CJWE. Today we are discussing obstetrical malpractice cases with Sheila McGregor and Cynthia Carrolls from Weir Bowen LLP. Their website is weirbowencom. That's W-E-I-R-B-O-W-E-Ncom. If you want to get a hold of them over the phone 780-424-2030. We've reviewed some of the kinds of claims that your team deals with. I want to go back to something that Sheila had said earlier about why parents tend not to look into these kinds of claims.

Speaker 2: 37:46

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

Speaker 1: 37:51

So let's touch on that. What do you mean about an emotional barrier?

Speaker 2: 37:54

So I find that it can be difficult for parents, especially moms, to think about who may be responsible for what happened to their child. I think it comes down to our natural instincts that we have to feel that we can do anything and everything to protect our children, and so that same instinct that allows us to lift cars off of our children can make us feel guilty about what's happened to them, because we feel like we should have been able to protect them. It's something I hear from pretty much all of my clients who have had children with serious injuries 100% and truly.

Speaker 3: 38:30

that is why I underscored earlier that we are not here to cast judgment against parents Right, because guilt is something that we see so often with our clients.

Speaker 2: 38:39

I think it's important to say that, in case there's someone out there who's having these struggles, they're not alone in that.

Speaker 3: 38:45

You know, and grief is truly somewhat related to this too. It's another reason why people can have a hard time reaching out to people like us. It can take a really long time to process what has happened when someone's child is injured, especially if the parent feels that they did something wrong or suspects they did something wrong, or especially if they feel like that injury was preventable.

Speaker 1: 39:11

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 tend not to reach out to lawyers when their children suffer birth injuries? Why do you want people to reach out?

Speaker 3: 39:19

You know we find a lot of parents don't realize the costs that are going to be associated with a permanently disabled child over the course of their lifetime no-transcript.

Speaker 2: 39:38

So for children with serious injuries, if they can't care for themselves when they're adults, we seek for the defendant to pay for someone who can care for that child 24 hours a day, seven days a week, and that's often a very large expense that isn't available to people unless they have funding from a lawsuit. So, for example, the twins we spoke about today in this recently decided court case they're literally going to need millions of dollars of care and assistive devices and other supports that they need throughout the remainder of their natural lives.

Speaker 1: 40:09

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

Speaker 3: 40:16

It is a huge project it truly is and it's one that we can likely spend another whole show on. In fact, the case that we discussed today resulted in a judgment that was over 400 pages long. I don't know that I've ever seen another personal injury case with a judgment that is that long. You know, we're still, as the law firm, still going through it to sort out how it's going to impact future cases that we have in our hopper already, so I'm sure we are going to have much more to discuss about these cases in future shows.

Speaker 1: 40:50

Again. We've covered a lot of ground today in the May edition of Ask the Lawyer with we're Bowen LLP in Edmonton, and we look forward to learning much more through this series, which takes place here on CFWE and CJWE on the last Saturday of every month. Our thanks again to Sheila McGregor and Cynthia Carrolls for returning for another episode and, once again, if you want to find out more, you can visit their website we'rebowencom, that's W-E-I-R-B-O-W-E-Ncom. Their phone number is 780-424-2030. Thanks again for stopping by.

Speaker 2: 41:28

Thank you, thanks, warren.