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 are Mike McVeigh and Sheila McGregor from Weir Bowen LLP in Edmonton. Thanks, warren.

Speaker 2: 0:14

I'm glad to be back.

Speaker 3: 0:15

Happy to be back, Warren. It's just been over a year since I was in this chair and I'm excited to be here.

Speaker 2: 0:34

Well, we're glad to have you back. 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 counseled in precedent-setting cases all the way up to the Supreme Court of Canada litigation boutique law firms in Canada by Canadian Lawyer Magazine. We're particularly excited about that because that's a recognition. That's not something a law firm can just buy its way into. It's an honor that's voted by our peers in the legal profession across Canada.

Speaker 1: 0:56

And, as I've been learning, when Bowen is particularly known for its precedent-setting work in obstetrical malpractice cases. Now, for those of us who are laymen might not know what that means. What can you tell us what that is?

Speaker 3: 1:10

Well, as you know, Weir Bowen has a particular focus in medical malpractice cases. A big portion of the medical malpractice cases that we do are obstetrical malpractice cases. Those are where treating physicians or nurses providing obstetrical care negligently caused a preventable injury. But what we want to focus today is on those obstetrical malpractice cases that cause a preventable brain injury to the child, because we think those are the cases that require the most public education to create awareness.

Speaker 2: 1:41

Obstetric malpractice is an area that the lawyers at Weir Bowen spend a lot of our time on, and the majority of our trial decisions in the last 10 years have been in this area as well. Although we've been successful at trial in these kinds of cases, 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 the various barriers to consulting a lawyer to see if their child has suffered a preventable brain injury from obstetrical malpractice.

Speaker 3: 2:12

And there are certainly a number of barriers, be it a lack of information or, as I've come to find, significant emotional barriers to taking that first step in contacting a lawyer. Often the reason why new clients contact us is because they were actually told to contact a lawyer by someone who's already gone through an obstetrical malpractice lawsuit.

Speaker 2: 2:34

And we're Bowen is a member of the Birth Injury Lawyers Alliance of Canada, or BILA for short, and that organization's mission is to educate people on what kinds of injuries may be preventable and when those injuries are outside of the common line of these things happen. There's just not a lot of information out there for parents of children who may have suffered preventable injuries from obstetrical malpractice, and often the crucial medical information that would assist in sorting out what happened is not provided to parents by health care providers sorting out what happened is not provided to parents by health care providers.

Speaker 3: 3:06

We're finding that many of our clients come to us through the Birth Injury Lawyers Alliance website because they'll do an internet search for the kinds of injuries that their children have and then find our website. The Birth Injury Lawyers Alliance website has some of the most comprehensive information about these kinds of injuries and we end up actually educating families about this area.

Speaker 1: 3:25

Now you mentioned the Birth Injury Lawyers Alliance website. That contains a lot of the information about these various injuries. Can you tell us where to find that?

Speaker 2: 3:33

Yes, it's pretty simple BILAca that's B-I-L-Aca. Bila stands for Birth Injuries Lawyers Alliance, and there's also a contact form that you can fill out on the website and it will direct you to the lawyer best suited to your area and it's also based on where you live, and there's also a live chat function that is manned 24-7.

Speaker 3: 3:56

And there's also a lot of great information on the Weir Bowen website as well. You can find that at wwwweirbowencom. So that's wwwweirbowencom.

Speaker 1: 4:11

Now, mike, you had mentioned that Weir Bowen has had a number of trial decisions in this area. Can you tell us a little bit about that, and why should people care about that?

Speaker 2: 4:20

Yeah, sure. So in the past five years, we've had three successful trial results in the area of obstetrical malpractice, including one that I was involved in that the decision just came out this month, and so why should people care about that? Because with these types of cases, in order to have a chance of settling the case, the defense needs to know that your lawyer is willing to take the case to a trial and won't just walk away. And in the unlikely event that the defense runs the trial, you want someone who has trial experience and a history of successful trial results.

Speaker 1: 4:51

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

Speaker 3: 4:59

Yeah, both Mike and I are parents and we know, even as parents-to-be who knew what to look for before we had our kids, that there is a significant lack of information happening when a woman is going through the labor and delivery process as a new parent, especially if you have no medical experience or training, it can be really hard to know if something went wrong during the labor and delivery process or the newborn period. Hard to know if something went wrong during the labor and delivery process or the newborn period. It can even be challenging to knowledgeable physicians who have access to all of the records. Anyone who's been through labor will tell you that it all becomes quite a blur. There are so many things happening even in an optimal labor and delivery scenario, so new parents are more focused on the impending birth of their child and the immediate needs of their new baby. Of course, it may not be until sometime later that a parent even begins to think that something might have gone wrong, let alone that they should be reaching out to a lawyer.

Speaker 2: 5:56

In our experience, people tend to reach out to us because someone else has prompted them to do so. Prompted them to do so Could be a friend, could be a family member who knows someone, or has just heard about someone with a personal experience that resulted in a birth injury lawsuit.

Speaker 3: 6:15

Very frequently, the first words a potential client says to me are I don't know if I should be calling a lawyer about this, but somebody thought this might be worth looking into. So why do you think that is? I think that there are many reasons why so many people don't call a lawyer about these types of claims, and we thought it would make sense to go through some of the reasons that we've identified why people don't reach out to us, and I've broken them down sort of into two categories, one being a lack of information, and then one being the emotional barriers.

Speaker 1: 6:47

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

Speaker 2: 6:54

Well, when it comes to being able to consider a lawsuit in this area, there are generally two areas where people lack information Legal knowledge about lawsuits and a lack of medical knowledge. So I'll address lack of medical knowledge first. So often families are not provided with the information they need to know what happened during labor and delivery, or they're told these things happen. Knowing whether a child's injury happened during labor and delivery or even during the neonatal period or newborn period requires someone to look at the medical records who also has some medical knowledge to know what to look for.

Speaker 2: 7:29

Even if a parent makes a request to a hospital for the labor and delivery records, it's difficult to know what you're looking at. There are nurse's notes, fetal heart rate monitoring strips, sometimes blood work or operative reports, and sometimes the hospital inadvertently doesn't provide all the records we need to see to know what happened, for example, even when the entire chart is requested. Often hospitals don't provide the fetal heart rate monitoring strips that are constantly printing in the delivery room and people who don't have medical training don't necessarily realize what is missing. Generally speaking, parents won't know what they're looking at or how to determine if what they're looking at means someone made a mistake or an error. Unfortunately, a lot of medical practitioners will not volunteer that information either, and as a result we frequently need to get an independent medical expert to review the record for us. But given how many of these cases we have done over the years, our birth injury lawyers have a pretty good idea of what they're looking at and what clues to look for to determine whether or not something may have gone wrong.

Speaker 1: 8:32

And the second thing that we mentioned earlier was a lack of legal information. In your experience, what sorts of legal information do you think is lacking that might stand in the way of somebody calling you?

Speaker 3: 8:43

So one we hear all the time when we tell people we do medical malpractice laws, they say you can't actually sue doctors in Canada. Right, and the answer is we do it all the time, every day. You definitely can sue doctors in Canada. It's not the easiest thing to do, but it is available to you if you have a good claim, and it's our job to figure out if there is a good claim. Often in these cases we need to order the records and get expert opinions before we do that, but it is the only work I do now.

Speaker 2: 9:16

The biggest legal question that we hear is that people think they may be out of time to sue, and this is a common question we hear from our clients who have children who suffer injuries around the time of birth and sometimes they don't have the full extent of the injuries, the knowledge of the full extent of the injuries until the child is quite a bit older, especially if there's a milder injury that affects the child's ability to think or their executive functioning, which can can present with difficulty, with impulse control or the ability to initiate tasks things that you don't really expect to see in children until they get older. And in cases like that people may not realize that their child has significant barriers to living independently or being competitively employable until the child is in late elementary school or even later than that. But they aren't out of time and it's important that people listening today realize that.

Speaker 3: 10:09

I know we talk about deadlines all the time in this show and this is a good opportunity to raise that again. The general rule in Alberta is that you have two years to sue from the date when you knew, or ought to have known, that someone caused you an injury. But there are two important exceptions to that that are relevant here. The first is that children have until their 20th birthday to sue, and the second is that adults who require a trustee to manage their financial and legal matters don't have any limitation date. Now, when I say that, I encourage anyone who suspects that they might have a claim not to wait.

Speaker 3: 10:47

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

Speaker 2: 11:20

Another area where people often lack legal information is in the area of consent forms.

Speaker 1: 11:30

Often, people think that if they signed a consent form, they're not able to sue health care providers, and I would imagine that this is probably something that a lot of people think, but that's not the case, is it?

Speaker 2: 11:37

Right. It's important to point out that signing a consent form is not the same thing as signing a waiver of the sort you would see at a trampoline park or a ski hill or something like that. You do not waive your right to sue for negligence when you sign a consent form. Signing the consent form only confirms that you're consenting to the health care provider performing a treatment or procedure so that it protects those treatment practitioners from a claim in battery. In other words, it's a defense to you saying that they assaulted you by doing the treatment or procedure. That's really all the consent form does.

Speaker 1: 12:09

One thing that I think most people are probably wondering is how much is this all going to cost? If I call you?

Speaker 3: 12:15

Yeah, that's a very fair question. So that's another area where people lack information. They think we're going to charge them a bunch of money and they worry about the cost of looking into a claim like this. At Weir Bowen we treat birth and neonatal injury claims a little differently than other claims. At our firm, because we recognize the immense financial and emotional burden that these families experience, we get paid on a contingency fee basis. What that means is we don't get paid for the time we spend on your case until we get a settlement or a judgment at trial. You won't be paying us hourly for any consultation or phone call.

Speaker 2: 12:51

And one thing we've seen again and again is people not knowing who to approach either. That's part of the reason why we're doing this show today, because there are very few lawyers who regularly and competently do obstetrical malpractice claims and people have a hard time finding the right lawyer to help them.

Speaker 2: 13:06

Obstetrical malpractice claims are not easy to pursue. We have to prove the standard of care was breached and that that breach caused an injury, and proving causation. The connection between the breach of the standard of care and the injury is particularly challenging in these cases and it requires in-depth knowledge of the medicine and connections with the medical experts who can assist us in determining those issues. And people who have a potential obstetrical malpractice claim are ordinary folks who usually have never had to deal with a lawyer in their life and they don't know where to start to find someone who is competent to pursue a claim for them. That's why our firm was a founding member of the Birth Injury Lawyers Alliance of Canada. We felt it was important to ensure that the right information is out there to close the information gap about the medicine, but also to connect people to lawyers who are competent in the area of obstetrical malpractice.

Speaker 1: 13:58

You previously mentioned that being recognized as one of the top 20 litigation boutiques in Canada. I recall from past episodes that a number of Weir Bowen lawyers have been recognized in various published lists of respected lawyers. Does that assist our listeners here?

Speaker 3: 14:14

I think it does. As we've mentioned in past episodes, there are lists published every year recognizing the top lawyers in various practice areas. Two of those lists are the Lexpert rankings and the Best Lawyers rankings. We're proud to be able to say that many lawyers at Weir Bowen are in those rankings in the areas of medical malpractice and personal injury, including my colleague, mike here.

Speaker 2: 14:37

And also including Sheila, who was named the 2025 Lawyer of the Year in Edmonton for personal injury law.

Speaker 1: 14:44

And so this would probably be a really good time to remind people of how they can get a hold of you.

Speaker 3: 14:49

Yeah, thanks, warren. If anyone listening wants to get a hold of us today, they can find us on our website. We're Bowencom, so that's W-E-I-R-B-O-W-E-Ncom. Or they can call our main reception line during business hours at 780-424-2030, and they'll be directed to the right person.

Speaker 1: 15:09

I want to ask you about the broader term of medical malpractice. What exactly do you mean when you talk about malpractice?

Speaker 3: 15:16

A lot of people think that malpractice requires an intentional bad act by a doctor or nurse, but it does not need that. You can use the phrases medical malpractice and medical negligence interchangeably. If you can prove that a doctor, nurse or other medical practitioner was negligent, then that can also be called medical malpractice. And when I say negligent I mean that the medical practitioner's acts or often their omissions failed to meet the standard of care.

Speaker 2: 15:45

Now as lawyers. Neither Sheila nor I, nor any of our partners or associates are actually doctors, so this question of standard of care tends to consume a lot of our time.

Speaker 1: 15:56

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 what the standard of care is if that's your measuring stick for negligence?

Speaker 2: 16:11

Well, it might actually help to first address what negligence isn't, because we do get calls all the time from people who have experienced adverse outcomes following a medical procedure and the sad reality is that even when everything is done perfectly according to the textbooks, things can still go wrong and that's not necessarily anyone's fault. Most interactions with the medical system are going to come with some inherent risk, so there can be a lot of non-negligent reasons for the bad outcomes people call us about, whether it's because of a pre-existing condition, even pregnancy, or inherent risks of a medical procedure. A great deal of medical judgment lies in balancing out the potential benefits a patient might get against those potential risks.

Speaker 1: 16:55

When you talk about risks. Is that what doctors are supposed to talk with you about before asking you to sign a consent form?

Speaker 3: 17:01

That's right. A health care provider is supposed to ensure that the patient provides informed consent. What that means is that the doctor has to take the time to educate patients about the risks, benefits and alternative to the proposed treatment that a reasonable patient would want to know. So when patients are making decisions about their health, they're making those decisions with their eyes wide open, fully informed about the risks, benefits and alternative options that any medical intervention might be. For example, some types of surgeries can expose patients to increased chances of blood clots, infections, bleeding issues and even death.

Speaker 1: 17:41

And you would think that if somebody dies as a result of surgery, there's a good chance that somebody did something wrong.

Speaker 3: 17:48

No, Sometimes, yes, but most of the time probably not. Surgeries can be fraught with inherent risks, and if a patient is in really rough shape, it may be a totally reasonable decision to undertake a surgical intervention, because the risks of not proceeding are even worse than doing nothing.

Speaker 2: 18:05

And, frankly, even when we use an over-the-counter medication like Tylenol or Advil, these products come with all sorts of warnings about the potential risks, so users will be able to decide whether or not the product is right for them. The same thing goes with other medical interventions like surgeries, blood transfusions and, of course, having a baby. So when a patient has an adverse reaction or a bad 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 a procedure, in order to find out what can go wrong, even when the procedure is done by the book. In order to find out what can go wrong, even when the procedure is done by the book. If the risk someone has suffered was within the scope of the risks a patient has accepted when they consented to the procedure, it could be very difficult, if not impossible, to hold a medical treatment provider responsible for that adverse outcome.

Speaker 3: 18:56

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

Speaker 2: 19:31

And that standard of care is something we want to talk about today, as we focus on some kinds of the especially challenging areas of medical malpractice claims, and that's obstetrical malpractice.

Speaker 1: 19:42

Now why do you think this in particular is a challenging area of medical malpractice claims, and that's obstetrical malpractice? Now why do you think this in particular is a challenging area of medical malpractice?

Speaker 3: 19:47

Well, hundreds of thousands of pregnancies occur in Canada every year, but pregnancy itself is somewhat fraught with risk. 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 Statistics Canada, about 1 in 25 Canadian babies will be born each year with some sort of congenital anomaly, and for many of them the cause is unknown or unpreventable. The key is trying to determine whether the child's injury was preventable, and that is especially challenging to determine when the injury is occurring in utero. However, avoidable injuries can and do happen during labor and delivery or in the early neonatal period, and some of these can lead to lifetimes of complications, dependency and very costly care needs.

Speaker 1: 20:40

Today we're talking about the lack of information many people have, who have potential claims in this area. So if somebody calls you, what sort of things are you looking for?

Speaker 2: 20:51

It really depends on the kind of injury. So we can break that down into a few typical kinds of claims that we deal with. The largest area we deal with is children with brain injuries from oxygen deprivation, which doctors generally call hypoxic ischemic brain injuries. Hypoxia can be literally translated as low oxygen, which is obviously dangerous for anyone at any stage of life, but it can cause permanent brain injuries for babies during labor and delivery if it is not recognized and an intervention performed.

Speaker 3: 21:24

In the labor and delivery process. During contractions, sometimes there are short periods of oxygen deprivation to the baby, which our experts tell us is totally normal and expected. So when we are looking at the medical records, these short periods of oxygen deprivation don't set off any red flags in and of themselves.

Speaker 1: 21:42

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?

Speaker 3: 21:51

That's a really good question. I had an expert obstetrician tell me once that obstetricians do two things they recognize risk and they take steps to reduce the risk In labor and delivery. The main tool meant to recognize risk is electronic fetal heart monitoring. Lots of research and scientific study has been devoted to the heart rate patterns that develop when a baby is exposed to different stressors in utero. The point of monitoring the baby's heart rate during labor is to watch for those patterns. Monitoring the baby's heart rate during labor is to watch for those patterns, and the right people need to be watching for these patterns to make judgments on whether the baby is experiencing oxygen deprivation or not, whether the baby's doing well or not. 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 what lead to hypoxic brain injuries.

Speaker 1: 22:43

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

Speaker 2: 22:52

Well, there are some interventions that can relieve causes of oxygen deprivation. So, for example, if the umbilical cord is compressed, moving mom's position may be all that's needed. But if those interventions don't work, the only intervention really is, to be frank, get that baby out. And if the doctors or nurses decide the baby isn't doing well, and other efforts don't fix the problem right away, the key is to end the labor, either through a quick delivery or a cesarean section or C-section, and these decisions need to happen quickly. Letting the situation languish can result in serious injuries.

Speaker 3: 23:28

One of the most crucial things we have to prove is that the injury was preventable. So timing of when that injury occurred is very important. When we're looking at whether there was an avoidable brain injury that happened during labor and delivery, we have to look at the patterns in the fetal heart monitoring records, what the brain imaging shows, what lab reports show and other medical information in the records. And parents generally don't have the benefit of having easy access to that information, nor do they have the knowledge of what to ask for from the hospitals, let alone what to look for. So unless they have someone in their lives who can help them through that, they're often left in the dark. That's why we aim to educate people about what we are looking for. That might prompt someone to call us who otherwise might never reach out.

Speaker 1: 24:16

This is Ask the Lawyer with we're Bowen LLP, Across Alberta on CFWE and CJWE. Today we're speaking with Sheila McGregor and Mike McVeigh 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 2: 24:37

I do, although it's not technically a birth injury. Another area we see is a delay in the diagnosis and treatment of certain conditions in the newborn period, like hypoglycemia, which is low blood sugar, or jaundice.

Speaker 1: 24:52

So hypoglycemia, low blood sugar.

Speaker 3: 24:54

That's right. We sometimes hear about blood sugar levels in the context of diabetes After birth. It's really important that the newborn's blood sugar levels are in the right range, because their brains and regulation systems aren't developed fully, so blood glucose levels that fall below normal can actually be just as catastrophic as low blood oxygen to a baby's brain. One of the most common metabolic problems in newborn infants is hypoglycemia, and some newborns are more vulnerable to having permanent consequences from that. While a baby is in hospital, their blood sugars may need to be monitored to make sure their systems are working properly, because if they aren't, and the baby ends up with a brain injury from low blood sugar, that is an area we often deal with.

Speaker 1: 25:37

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

Speaker 3: 25:39

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 and prolonged hypoglycemia can result in more serious issues, can cause a brain injury that can cause a loss of cognitive function, speech problems, even psychological and behavioral issues.

Speaker 1: 25:58

You said that some newborns are more vulnerable than others to have problems relating to hypoglycemia. Is this something that a parent is supposed to know and be watching for? Is that entirely on the doctors and nurses?

Speaker 2: 26:12

Well, some parents do know about these risks.

Speaker 2: 26:14

For example, if a mom is a known diabetic, they may have some working knowledge about hyper and hypoglycemia and taking care of their own nutrition during pregnancy.

Speaker 2: 26:27

Pregnant moms with diabetes have a higher risk of miscarriage, preterm birth, stillbirth, malformations and high birth weights, so there's a lot to know about managing this condition during pregnancy. When we have cases involving mothers with diabetes, it often translates to the standard of care being higher on the medical practitioners, given the risks that come with diabetes in pregnancy. For example, a diabetic mom may need to have modifications to their usual medications in order to keep their blood sugar stable. However, diabetes can also develop spontaneously during pregnancy. When moms develop gestational diabetes, this is something that should be routinely tested for during prenatal care, because it's surprisingly common and can generally be managed once identified. I've recently read a study that indicated that about 4% of pregnant women develop gestational diabetes. So when a mom has gestational diabetes, treatment practitioners have to keep in mind that the fetus and mom are both at higher risk of things like miscarriage and stillbirth and other things that can happen during the labor and delivery process.

Speaker 1: 27:34

So Sheila Mike also mentioned birth injury cases relating to jaundice. Now, from what I understand, that's a fairly common condition that many babies develop. How would having a jaundiced baby result in a malpractice claim?

Speaker 3: 27:47

You're right, jaundice is very common and generally it goes away pretty quickly and easily. So no, simply having a baby with jaundice doesn't mean we have a reason to sue anyone. It's the management of jaundice that can result in problems. So first let's go to a bit of a primer on what jaundice actually is and why it's so common.

Speaker 3: 28:06

When a baby is 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 the bilirubin, which is generally the job of the liver, and it's a very. In the meantime the bilirubin can build up in the body. Nurses and doctors have ways to measure levels of bilirubin and make sure that the jaundice caused by the bilirubin goes away. Generally it does resolve with regular feeding and bowel movements as the newborn's body figures out how to deal with life on the outside. However, if it doesn't, hospitals have something called phototherapy which they can use to help treat the jaundice as well. A malpractice claim can arise when the doctors or nurses either don't recognize the jaundice or they don't use the proper treatment.

Speaker 1: 28:57

And isn't it pretty obvious to diagnose the jaundice baby? Don't they look kind of yellow?

Speaker 3: 29:03

Yeah, obvious. Jaundice is pretty easy to diagnose and you're right. The classic signs are yellowish skin or yellowish tinges in 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 things, because their systems just aren't developed enough yet. So it's critically important for preemies to be medically monitored for jaundice. Simply waiting to see if they turn yellow is not the best practice from what I understand. So this is done through blood tests to check on those bilirubin levels and if they are too high, it needs to be treated.

Speaker 1: 29:38

So what happens if jaundice goes untreated?

Speaker 2: 29:42

Well, as we said, jaundice often goes away on its own without medical intervention and there aren't any serious consequences. But the most common known treatment for jaundice are those phototherapy lights where babies lie under the lights so that their skin is exposed and that light helps change the bilirubin into a form that's easier for the baby to pass out through their bowel movements. And if that doesn't work, interventions can even include emergency blood exchanges, where the baby's blood is replaced with blood from a donor to quickly bring down the bilirubin levels. This is a pretty significant intervention, but does speak to how critically important it is to get jaundice under control quickly. If it doesn't go away on its own and it isn't treated properly, it can result in a brain injury.

Speaker 1: 30:27

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

Speaker 3: 30:30

Until I started doing this work, I hadn't even heard of the concept of bilirubin. But it's regularly produced in our bodies and normally gets excreted through the liver and urine and bowel movements. And in the newborn period the baby starts feeding and normal bodily functions are just starting to work. But those systems don't always get moving as quickly as they might need to, and if the bilirubin builds up to unsafe levels it can cause brain injuries. If the jaundice doesn't go away with the usual treatment, it might also mean that there's something else happening that needs to be medically investigated, such as an infection or another metabolic problem.

Speaker 1: 31:06

This is Ask the Lawyer on Weir Bowen, with Weir Bowen LLP across Alberta on CFWE and CJWE, and today we are speaking with Sheila McGregor and Mike McVeigh and our topic today is obstetrical malpractice. So, mike, if one of our listeners today thinks their child might have sustained an obstetrical injury, what can they expect if they call a lawyer?

Speaker 2: 31:31

First of all, I want to assure you and your listeners that they should not expect judgment if they call a lawyer at Weir Bowen. We completely understand that the process of pregnancy, labor and delivery and the neonatal period is filled with a lot of emotion, and even for those of us who have brought a child into the world, or a couple of children into the world, there's also a lot of mystery. So we don't have any expectation that your listeners are going to know all the answers about what went wrong or even what questions they should ask.

Speaker 3: 32:05

Almost everyone I talk to with a potential obstetrical malpractice claim has more questions than answers. It's our job to get answers to the questions you have. During that very first phone call. We're going to be asking a bunch of questions in case you do have the information, but many times our potential clients don't know what went wrong. They just suspect that something did go wrong. So we're going to want to get as much information as we can about when your baby was born, where baby was born.

Speaker 3: 32:33

Not all babies are born in hospitals. I've done some claims relating to home births with midwives, and there's also birthing centers. We're going to want to know who was managing mom's prenatal care an obstetrician, a family doctor, a midwife? We'll want to know who delivered the baby and how. Was it a vaginal birth or a c-section? What you might remember about the birth is if anything seemed concerning or if there's other people that were present that can give us some information about that. We're also going to want to know how's your child doing now. Are they hitting all their normal developmental milestones? Are they struggling with anything?

Speaker 2: 33:11

And, as we talked about earlier, we fully expect that most callers are going to have gaps in this information. Even the most knowledgeable client is not going to know or remember everything, and that's fully expected. So we likely would then take some steps to pull medical records together, which usually includes requesting records in relation to mom's health, like pre-pregnancy records, prenatal records, ultrasounds and hospital records, and then we would also want to get our hands on on the baby's health records those records from the hospital and the pediatrician or a family doctor as well, and then we'll take a look at that information and give you our preliminary thoughts on whether we think there could be an issue and what we think we should do from there, which could include recommending getting an expert opinion from a physician.

Speaker 1: 34:03

Now, some of our listeners might ask why do you need expert opinions? Now, some of our listeners might ask why do you need expert?

Speaker 3: 34:09

opinions? Aren't you the experts? Yeah, our expertise is more legal. Even though we do a lot of medical malpractice cases, we still aren't 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 experts review the relevant records and give us an unbiased opinion about the merits of the case.

Speaker 2: 34:40

If we ultimately have to go to trial on a birth injury case, the court requires us to present evidence from various experts to prove our case. So we have to rely heavily on these experts to provide us with insight as to what happened, what went wrong and what should have been done to prevent the injury. And these experts have a tremendously important job in helping us to prepare for trial and in assisting the court with respect to determining the issues in dispute. So it is our practice to make sure we have a solid expert opinion in place, or solid expert opinions in place early in the process.

Speaker 1: 35:15

So let's talk about these other experts. Are they doctors?

Speaker 3: 35:19

Right? Yeah, that's an excellent question. We have an extensive network of medical legal experts and we think having that extensive network is one of the reasons we're set apart in this space of medical malpractice work. We have diligently worked at cultivating relationships with experts who are going to give us an opinion we can trust, even if it's bad news. We want to know that and actually willing to get involved in medical malpractice litigation. There are many doctors and nurses who are simply not willing to weigh in on the conduct of other medical professionals for a variety of reasons. For those who are willing to get involved, we also want to make sure that they have the appropriate background to speak to the issues and that a court will give weight to their opinions.

Speaker 1: 36:03

This is Ask the Lawyer on CFWE and CJWE. Today we are discussing obstetrical malpractice cases with Sheila McGregor and Mike McVeigh from Weir Bowen LLP. You can visit their website, weirbowencom. That's W-E-I-R-B-O-W-E-N. Their phone number is 780-424-2030. So let's say we've reviewed some of the kinds of claims your team deals with. I wanted to go back to something that Sheila said earlier about why parents tend not to look into these kind of claims.

Speaker 3: 36:38

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

Speaker 1: 36:44

So what do you mean about emotional barriers?

Speaker 3: 36:48

emotional barriers Right, so what do you mean about emotional barriers? Well, there's a number of emotional considerations that we see parents go through when they're considering a lawsuit on behalf of their injured child. One of the biggest ones for parents of brain injured children, children with cerebral palsy, children with autism or other neurological disorders, is that they are overwhelmed and have trouble with the thought of adding one more thing to their plate.

Speaker 2: 37:08

Sheila and I are both parents and we know that our schedule can be very busy and hard to juggle, but having seen the number of appointments that our clients have to go to whether they're going to see neurologists, pediatricians or therapists such as a speech, language pathologist or physiotherapist, or occupational therapy it's not hard to imagine how the schedule becomes completely overwhelming.

Speaker 2: 37:32

We often hear from our clients that they're living in the moment, day to day, and they're not able to do anything other than that. It's important for people to know, especially in the early stages of investigating a potential medical malpractice claim, that they don't have to dedicate much time to it at all. There's an initial meeting with us where we gather the information we need, and then we do the work of gathering the medical records and getting the expert opinions we need in order to know whether or not you have a good case, and I think many people think that they need to have all the answers or become involved in that process, and that's really not the case. It's just one meeting and then we do the work and tell you whether or not we think you have a good case, and if you do have a good case, then there is some more involvement required from you after that. But I think, generally speaking, our clients find the process pretty manageable and we support you all the way along and try to make it as convenient as possible for you.

Speaker 1: 38:30

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

Speaker 3: 38:40

This is something our clients worry about a lot, because many of our clients require ongoing care from a variety of doctors and clinics and is another reason why some people are hesitant to bring a claim. Fortunately, in birth injury cases, you generally aren't going to continue to be under the care of the defendant physicians and nurses. Other practitioners, like pediatricians and neurologists, may figure out that you're involved in a lawsuit, but they're often pretty used to caring for patients who are involved in a lawsuit like this. We even have some physicians who tell their clients to consult us, even if they or, pardon me, if they feel that their patient's injuries were preventable with appropriate medical care.

Speaker 2: 39:19

And it's important to note that even if a doctor or other treatment provider is aware of a lawsuit, legally it should not affect the care they provide. They would withdraw from caring for you if you were suing them, but even then they would still need to refer you to someone else who can care for you.

Speaker 1: 39:36

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

Speaker 2: 39:42

It really is. And that's related to another reason why people often don't reach out to us, and that reason is feelings of gratitude towards physicians and nurses. When people go through the kind of medical odyssey that our clients tend to go through, they are highly reliant on doctors and nurses for care and they often feel conflicted about suing. Sometimes the same doctor who saved our client's life or lives in the first place in the case of twins, for example, they also may have negligently caused the dangerous situation in the first place, and our clients don't necessarily know the reason why they were in that dangerous situation in the first place, due to lack of medical knowledge and information that we mentioned earlier. So they wouldn't necessarily think to investigate whether a doctor caused the problem in the first place.

Speaker 2: 40:31

And there's also a general sentiment in our society that doctors and nurses are good people and they shouldn't be criticized, and we agree. Most doctors and nurses provide excellent care and we are very fortunate to have them, especially having faced the difficulties in our healthcare system. We're not here to sue them, especially having faced the difficulties in our health care system. We're not here to sue anyone willy-nilly, but sometimes some doctors and nurses are negligent and cause catastrophic injuries and we have a court system that is meant to hold those people accountable and assist the injured person with the costs associated with the injuries caused by the defendant's negligence. Person with the costs associated with the injuries caused by the defendant's negligence. In these cases, our clients really need financial support to deal with the care that's required as a result of those injuries and they need to replace the income that they otherwise would have been able to earn without those injuries. Often in these cases, once people know about the ability to sue, the injuries are so extensive that they feel they really have to look into things and have no choice.

Speaker 1: 41:30

Today we've covered a lot of reasons why people don't look into obstetrical malpractice claims Sheila. Are there any others?

Speaker 3: 41:38

Yes, and we've saved the biggest one for last. I think I find it can be difficult for parents, especially moms, to think about who may be responsible for what happened to their child in these circumstances. I think it comes down to the natural instincts we have as moms to feel that we can do anything and everything to protect our kids. There's a feeling of guilt associated with what happened to their child, regardless of how rational or irrational that guilt is. Often those feelings of guilt aren't rational, but those feelings remain all the same. The same instinct that allows us to lift cars off our children can make us feel guilty about what has happened, because we feel like we should have been able to protect them. It's something I hear from pretty much every one of my clients who have children with serious injuries 100%, and it's important to emphasize that we are not here to judge parents.

Speaker 3: 42:30

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

Speaker 2: 42:40

Grief is somewhat related to that too, but is another reason why people sometimes have a hard time reaching out to people like us. It can take a long time to process what has happened when someone's child is injured, especially if the parents feel that the injury was preventable.

Speaker 1: 42:55

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?

Speaker 2: 43:04

We find that a lot of parents don't necessarily 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.

Speaker 1: 43:18

What sort of costs might we be talking about?

Speaker 3: 43:21

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 to care for that child 24-7. That's a very large expense that isn't available for people to take on unless they have funding from a lawsuit generally. For example, in our recent trial decisions, the children who are subjects of those are literally going to need millions of dollars of care and assistive devices and other supports to go through the remainder of their lives.

Speaker 1: 43:49

So 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 2: 43:59

That goes back to experts. We have experts to help us with determining whether something went wrong and whether that something caused an injury. We have a whole other 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 the areas of physical therapy and speech, language therapy, psychological therapy and occupational therapy, which addresses how to adapt things to allow the client to perform their activities of daily living that they may have trouble with.

Speaker 3: 44:31

Therapies are a very important component of the damages that we claim for, because they maximize a child's abilities. Another important component is assessments on what a child is likely going to do as an adult, for example, whether they can live independently or be competitively employable, because if they cannot do those things, then we need to seek funding to replace the income that they otherwise would have earned, as well as funding for attendant care to support them to live safely as an adult. We generally will retain neuropsychologists and pediatricians who can make predictions of a child's abilities when they're an adult, as well as a life care planner, who will draw up a life care plan to provide for all of the care the child will need in the future, as well as an accounting expert who can crunch the numbers on the value of those care needs, as well as the value of the lost income.

Speaker 1: 45:20

Well, it sounds to me like there are a lot of considerations to account for in some of these cases. Thank you both very much for coming in today, sheila McGregor and Mike McVeigh of we're Bowen LLP taking us through some of those considerations. If you want to find out more, you can visit we'rebowencom, their website, w-e-i-r-b-o-w-e-ncom. Their phone number 780-424-2030. Covered a lot of ground today on the May edition of Ask the Lawyer with Weir Bowen LLP and Edmonton, and we look forward to learning much more through this series, which takes place on CFWE and CJWE on the last Saturday of every month.