Setting The Stage: Birth Injuries

Warren Berg 0:00

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

Cynthia Carels 0:12

Yeah, thanks, Warren, and glad to be back.

Michael McVey 0:14

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

Warren Berg 0:15

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

Michael McVey 0:42

Well, sure, but maybe to make it a little bit easier, we can use the term we generally use, which is birth injury cases.

Warren Berg 0:48

Which is easier to say.

Michael McVey 0:49

Definitely. Definitely. So basically, uh, this is any type of medical malpractice case where uh treating physicians or nurses providing care to moms during labor and delivery delivery negligently cause a preventable injury. And so today we'll talk about cases where there was a preventable brain injury to a child because those are the cases that require the most public education to create awareness.

Cynthia Carels 1:11

Yeah, so birth injury or obstetrical malpractice is an area that the lawyers at We're Bowen actually spend quite a bit of our time on. But it's uh also an area that we found a lot of people actually don't really even know about. So we wanted to dedicate the show today to educating people on what obstetrical malpractice cases look like and to overcome some of those barriers uh that people have with respect to consulting a lawyer, especially if they want to see whether or not their child has suffered a preventable injury arising from obstetrical malpractice.

Michael McVey 1:43

And it happens a lot when we meet with new clients that they tell us the only way they even knew they could contact a lawyer was because they were told to do so by someone else who had already gone through an obstetrical malpractice lawsuit. And unfortunately, there is just not a lot of information out there for parents of children who may have suffered a preventable injury from obstetrical malpractice. And often the crucial medical information that would assist in sorting out what happened is not provided to parents. Although some hospitals are getting better with disclosing adverse medical events, in cases where it is not glaringly obvious that the child suffered a preventable injury, no one is really inclined to investigate further. So until we get involved, parents often don't have the answers they need.

Warren Berg 2:25

Okay, so Cynthia, let's start with the term medical malpractice from a legal standpoint. What exactly do you mean when you talk about malpractice?

Cynthia Carels 2:32

Yeah, that's a great starting point. And you know, a lot of people have a misconception of what malpractice is. Uh they think it might re require like an intentional bad action by a doctor or a nurse. And obviously, while malpractice can include those intentional acts, that is not all that it includes. And most of the time, what we're dealing with are actually negligent mistakes. So you can use the phrase medical malpractice or medical negligence interchangeably. And if you can prove that a doctor or a nurse or some other medical practitioner was negligent, then that can also be called medical malpractice. And by negligent, we're meaning the medical practitioners' acts and sometimes even their omissions, things that they fail to do will have failed to meet that standard of care that we're looking for.

Michael McVey 3:22

Now, as lawyers, neither Cynthia nor I or any of our partners or associates are actually doctors. So we spend a lot of time

What Counts As Negligence

Michael McVey 3:30

trying to figure out or answer the question, what is that standard of care?

Warren Berg 3:34

Okay, since you aren't doctors and I'm not, and most of our listeners are not doctors either, how exactly do you go about figuring what the standard of care is if if that's the measuring stick for negligence?

Michael McVey 3:46

Well, it might actually help to first talk about what is not negligence. Because we do get a lot of calls all the time from people who have experienced bad outcomes following uh a medical procedure, for example. And the reality is that even when everything is done perfectly, uh, you know, according to the textbooks, things can go wrong and it and it may not be anyone's fault. Um, most of the time in the medical system, there are going to be what we call inherent risks of any particular treatment, or the choice not to get treatment for that matter. So there can be a lot of non-negligent reasons for bad outcomes. A great deal of medical judgment needs to balance out the potential benefits a patient might be able to get against those potential risks.

Warren Berg 4:29

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

Cynthia Carels 4:36

Yeah, exactly. So a healthcare pro practitioner is supposed to ensure that patients are providing what we call informed consent. And the key word there is that the decision needs to be made after the patient has been properly informed. So this means that the doctor actually has to take the time to educate patients about the risks as well as the benefits and even perhaps some alternatives of the proposed treatment that a reasonable patient is going to want to know before they make that decision. So when patients are making decisions about their health, they are making those decisions with their eyes wide open about those risks, those benefits, and any options that they might have to that medical intervention that's being proposed. For example, you know, some types of surgeries can expose patients to increased chances of blood clots or infections, um, some sometimes bleeding issues and even death.

Warren Berg 5:31

One might think that if somebody dies during surgery, then someone must have done something wrong, no?

Cynthia Carels 5:38

Uh sometimes yes, but uh most of the time, actually, no. Because surgeries carry risk, and the medical community may recognize that certain procedures are going to carry certain risks even when they're performed by like the world's best surgeons at doing everything right. So sometimes the best course of action might actually be to avoid that surgery. Uh however, if a patient is in really rough shape, it might be totally reasonable to undertake some sort of surgical intervention because the risks of not proceeding are worse than actually doing nothing. And again, we're going to be getting back to that balancing of that risk-benefit analysis where the benefits are being compared to those risks.

Michael McVey 6:19

And we can even think about those over-the-counter medications like Tylenol or Advil that people take every day, every week, or every month. Uh, even these 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 for other medical interventions like surgeries, blood transfusion, and even having a baby. So when a patient has a bad reaction or a bad outcome, we need to go right back to the basics about that particular 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 that procedure is done by the book. And if the risk someone has suffered was within the scope of the risks a patient accepted when they consented to a medical intervention, it could be very difficult, if not impossible, to prove negligence and hold a medical treatment provider responsible for the outcome.

Cynthia Carels 7:15

And you know unfortunately, adverse outcomes happen in hospitals all the time, despite the best efforts of hard working medical staff . . .but at the same time, not all medical interventions are done properly, And that's where lawyers like Mike and I come in.

Warren Berg 7:30

S o where do you start?

Cynthia Carels 7:31

So we we start really by seeking out independent medical experts who can review a client's medical records as well as the medical research that was in effect at the time to tell us what went wrong, uh why it happened, and also to help us sort out if somebody did or failed to do something that they should have done under the circumstances. So that's what we mean when we're talking about investigating that standard of care.

Michael McVey 8:00

And that standard of care is something we're gonna talk about a lot today as we turn our focus to an especially especially challenging but important category of medical malpractice cases that we focus on and at Weir Bowen, and and those are birth injury or obstetrical malpractice claims.

Warren Berg 8:16

So why do you think that this might be a particularly challenging area of medical malpractice?

Cynthia Carels 8:20

Well, you know, first and foremost, uh the medical legal issues are complex. And and truth be told, pregnancy itself, uh labor and delivery, you know, the whole birth process actually carries a lot of risk overall. You know, if we think about it, there are hundreds of thousands of pregnancies that occur in Canada every year. And even as recently as five years ago, uh Canada's maternal mortality

Informed Consent And Real Risk

Cynthia Carels 8:45

rate was 8.3 deaths per 100,000 live births. And that is despite having some of the most advanced prenatal and obstetrical care in the world. Um, and in addition, according to Stats Canada, about one in 25 Canadian babies will be born each year with some sort of congenital or genetic anomaly. And for many of them, uh the cause of those um uh conditions might be unknown or entirely unpreventable. And so the key is trying to determine whether the child's injury was actually preventable, but it is especially challenging to determine when that injury is occurring before somebody's even born, you know, in utero. Um so however these avoidable injuries can and do happen during labor and delivery or in that early neonatal period, like after just after a child's been born, um, you know, it's really important for us to figure that out because some of these issues can lead to lifetimes of complications, uh, dependency, and very costly care needs.

Michael McVey 9:47

Weir Bowen is actually one of the founding members of an organization called the Birth Injury Lawyers Alliance, or BILA for short. And and this group was formed to improve the quality of representation for clients who have children who have suffered uh injuries sustained at or around the time of birth. And and and one of the main goals of the Birth Injury Lawyers Alliance is to educate the public on potential areas of obstetrical malpractice in order to make families more comfortable with picking up the phone and calling a lawyer who is experienced in that area. So that is a big reason why we wanted to dedicate an entire episode of Ask the Lawyer to these specific types of claims.

Warren Berg 10:28

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

Cynthia Carels 10:35

Aaron Powell Oh my goodness. You know, as a new parent, it can be really hard to know uh night from day in the first place. But then it can also be really hard to know uh if something actually did go wrong during the labor and delivery process or that newborn period. Uh and it can be even challenging for knowledgeable physicians who ac have access to all of the records to figure out what happened. Um, and you know, honestly, anybody who's been through labor and delivery is going to tell you it all becomes a blur. Uh, and there are so many things that are happening, even in an optimal labor and delivery scenario. So parents are focused really on the impending birth of their child and the immediate needs of their new baby. And it might not be until sometime later that a parent even begins to think something might have gone wrong here, um, you know, let alone even thinking that they might want to reach out to a lawyer.

Michael McVey 11:28

And as I said earlier in our experience, people tend to reach out because someone else prompted them to do so. Uh, you know, we've seen clients contact us because uh a friend or a family member, someone who knows someone or has heard about a lawsuit, uh, or someone who's had personal experience uh in in a lawsuit, they've referred these clients to us uh uh who to look into a possible birth injury. And very frequently the first words that uh a p a possible client says to me are, I don't know if I should be calling a lawyer, but somebody thought this might be worth looking into. ]

Warren Berg 12:00

So why do you think that is?

Cynthia Carels 12:01

You know, I think there's many reasons why people don't call a lawyer about these kinds of claims. Uh so we thought we'd go through some of the reasons that we've identified why people don't tend to reach out to us, and they generally fall into two primary categories. Uh the first one is a lack of information, and then the second can be uh actual emotional barriers that make reaching out really difficult as well.

Warren Berg 12:23

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

Michael McVey 12:29

Well, um people who may have a possible medical malpractice claim often have uh a complete lack of information in a number of different areas. You know, one of the main areas is that people lack uh the medical knowledge enabled uh that would enable them to break down the medical information to understand if there's been an error. Uh and often families are not provided with that information uh by the healthcare providers, and they're just told sometimes these things happen. And so knowing whether a child's injury happened during labor and delivery or the neonatal period or that early newborn period requires someone to look at the medical records who also has uh medical knowledge uh regarding uh what they need to be looking for. And even if a parent makes a request to the hospital for the labor and delivery records, it's really difficult to know what you're looking at in a lot of cases. There are nurses' notes, uh, fetal monitoring strips, blood work, uh, operative reports, all those sorts of things. And so generally speaking, parents won't know what they're looking at or how to determine if they're looking at something that tells them that there was an error. And unfortunately, a lot of uh, as I said, medical providers won't volunteer that information, and so we need to get medical experts to review the records for us. But given how many of these cases we've done over the years, our birth injury team has become pretty good at looking these, looking at these records for uh possible clues that something might have gone wrong.

Warren Berg 13:53

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

Cynthia Carels 14:01

Absolutely. Um, and that is another informational barrier that people have, uh, just lacking the information to know if they should or even can contact a lawyer. And, you know, we'll hear things all the time like, you can't sue doctors in Canada, right? Uh and the answer is honestly, we do it every day. So yeah, you definitely can sue doctors in Canada. It's not the easiest thing to do, but it is available to you if there actually is a good claim.

Michael McVey 14:30

And Warren, you also mentioned people are often wondering whether it might be too late to bring a claim. Uh, this is a common question we get from clients who have children who suffer injuries around the time of birth. Uh, but sometimes the full extent of the injuries doesn't appear or become apparent until uh the child is quite a bit older, especially if there's a mild injury that affects the child's ability to think or or their executive functioning, uh, which can include things like uh poor impulse control, the ability to initiate tasks, things that you don't really expect to see in children until they get quite a bit older. And in cases like that, people may not realize that their child is going to have significant barriers to living independently or becoming competitively employable until that child is in late elementary school or even after that. Uh but that doesn't mean they are out of time. And it's important for people listening today to understand that there is more time for children.

Cynthia Carels 15:23

And I know we talk about deadlines in a hundred percent of the shows we do here on Ask

Why Birth Injury Cases Are Hard

Cynthia Carels 15:30

the Lawyer. Uh, so it is a good time to raise it again because the general rule in Alberta that um is that people have two years to sue from the date when they knew or they ought to have known that someone caused them an injury. Uh but there are exceptions to that rule, and and two important exceptions are for children uh who actually have until their 20th birthday to sue. So the clock doesn't start ticking for them with that two-year limitation until their 18th birthday. Um, and then also there's an exception for adults who require a trustee to manage their affairs. Because believe it or not, those individuals don't have any limitation date to sue. Now, when I say that, I'm going to be encouraging anyone who suspects that they might have a claim not to wait, uh, because there are many other reasons why the passage of time is truly not our friend. Uh, things like medical records uh being destroyed or you know, difficult to find. Um, witnesses can die, memories can fade. Um, but for example, like let's say if you have a child who's 15 years old and has been diagnosed with a condition like cerebral palsy and you suspect it might have been preventable, uh, please don't hesitate to contact us. If you, you know, if the child is 15 and you think, oh no, I'm way out of time, that is really important for you to know. Um, because you're probably actually not going to know for sure whether or not that condition was preventable. And that's okay because as we said, we're generally going to need to get those medical records and expert opinions on those records to tell us whether there even is a case. So please do not hesitate to call us, even if you are not sure.

Michael McVey 17:09

Another area where people often lack legal information is in the area of informed consent and how what is the effect of a consent form. Uh often people think that if they signed a consent form, they are not able to sue the treatment provider.

Warren Berg 17:23

I would imagine that that's probably something that a lot of people think. Is that not the case?

Michael McVey 17:29

Uh no, it's not the case. And it's important to point out that signing a consent form is not the same thing as signing a waiver or that sort of thing that you might sign at a trampoline park or a ski hill or something like that. Uh you do not waive your rights to sue for negligence when you sign a consent form for medical treatment. Signing the consent form only confirms that you are consenting to the procedure being done. Uh, so it protects the treatment provider or treatment treatment practitioner from uh a legal claim known as battery. Uh in other words, it's a defense to you saying that they assaulted you during a particular pre-procedure. Um it does not, however, provide a blanket protection for everything that might go wrong during a medical intervention.

Warren Berg 18:11

Aaron Powell One thing that I think a lot of people might still be wondering is what is all this going to cost me if I pick up the phone to call you?

Cynthia Carels 18:18

Aaron Powell That is a huge area of misunderstanding and also an area where people lack a lot of information. And, you know, there's obviously this perception that uh we're, as lawyers, going to be charging people a bunch of money and they need to be worrying about the cost of even looking into a claim like this. But uh at We're Bowen, we we treat these birth and neonatal injuries a little differently than some of the other kinds of claims we do at our firm because we recognize that there is an immense financial and emotional burden that these families experience, especially when they're caring for a high needs child. But the way that we get paid is not on an hourly basis. So we don't have a clock running in the background for every minute that we spend working or talking to people about these kinds of cases. We actually get paid on what's called a contingency fee basis. And what that means is we're not going to get paid for the time we spend on your case unless we actually get a successful settlement or judgment at trial. So you will not be paying us hourly for any consultations or phone calls.

Michael McVey 19:22

And and one more thing we've seen over and over is people not knowing who to approach either.

Cynthia Carels 19:28

Right. The the who is just as important.

Michael McVey 19:30

Right. And that's part of the reason why we do this show as well, because there are very few lawyers who regularly and competently do birth injury claims, and people have a hard time finding

Bila And Finding The Right Lawyer

Michael McVey 19:40

the right lawyers to help them. And truth be told, obstetrical malpractice claims are not easy to pursue. We have to prove the breach in the that the standard of care was breached and that that breach actually caused an injury that otherwise wouldn't have happened. And proving causation or that connection between the breach in the standard of care and the injury is particularly. Particularly challenging in these cases, and it requires in-depth knowledge of the medicine and the connections with medical experts who can assist us in putting all of the pieces to these puzzles together. And people who have potential birth injury claims are usually pretty ordinary folks, and most of the time they've never had to deal with a lawyer in their life, except for maybe in a real estate transaction. So they don't even know where to start to find someone who is competent to pursue a claim for them. And 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 that information gap about the medicine, but also to connect people to lawyers who are competent than competent in this area.

Warren Berg 20:42

So where do people go if they want to find out more information about the Birth Injury Lawyers Alliance?

Cynthia Carels 20:47

So if people want to read more about uh the Birth Injury Lawyers Alliance and its members, they can go to the website, which is actually B-I-L-A.ca. So Bila.ca. And uh We'Bowen is the actual Alberta member of Bila. Uh there's a live chat function right there on the website, and it's going to be connecting to every member lawyer's profile. And you can even uh email individual lawyers uh through that form as well.

Warren Berg 21:12

And I also recall from past episodes that a number of We're Bowen lawyers have been recognized in various published lists of respected lawyers. Does that assist our listeners here?

Cynthia Carels 21:23

Well, I think it does. I know as we've mentioned in past episodes, there are lists published every year recognizing the top lawyers in various practice areas. And two of those lists that are well trusted in the industry are the Lexpert rankings, so that's L-E-X-P-E-R-T, as well as the best lawyers rankings. And we're actually proud to be able to say that many lawyers at We're Bowen are in both of those publications, ranking both in the areas of medical malpractice as well as the broader scope of personal injury.

Warren Berg 21:53

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

Cynthia Carels 21:56

Yeah, good idea, Warren. Uh so if anyone wants to get a hold of us today, they can find us on our website at Weirbowen.com, and that's W E I R B O W E N dot com. Or they can call our main reception line during regular business hours at 780-424-2030, and our intake team will make sure that you get your inquiry connected with a lawyer who can help you out.

Warren Berg 22:23

So once again, that's 780-424-2030 or online at WeirBowen.com. This is Ask the Lawyer on Windspeaker Radio across Alberta on CFWE and CJWE. I'm your host, Warren Berg, and we are here today with Cynthia Carrolls and Mike McVeigh of Weirbowen LLP. And today we're talking about medical malpractice claims and specifically obstetrical malpractice claims. And we're trying to address the uh maybe the lack of information that many people feel uh who might have potential claims in this area. So if somebody calls you, what sorts of information are you and your team looking for from a caller?

Cynthia Carels 23:02

So it's really going to depend on the kind of injuries. Let's break it down into a few typical kinds of claims that we deal with in this area of birth injuries. So the largest area that we deal with is children who have sustained brain injuries from oxygen deprivation, which doctors generally call hypoxic brain injuries. And hypoxia can literally be translated as low oxygen. And that's obviously very dangerous for anyone at any stage in life, but it can be really serious for baby-sized brains and can cause permanent brain injuries for babies during the labor and delivery period if it's not recognized and if intervention doesn't happen in time.

Michael McVey 23:42

So in in the labor and delivery process

Barriers: Missing Info And Deadlines

Michael McVey 23:45

during contraction, sometimes there are short periods of oxygen deprivation or reduced blood flow, that's called ischemia, uh, to the baby, and and our experts tell us that's totally normal and expected. So when we're looking at these medical records, these short periods of oxygen deprivation don't necessarily set off red flags in and of themselves.

Warren Berg 24:07

So if 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?

Cynthia Carels 24:16

Aaron Powell So that can definitely be a nuanced question. And we have had expert obstetricians tell us that they're going to do two things when they're looking at the records. Number one, they want to recognize the risk, and number two, they want to see that steps were taken to reduce the risk. And in labor and delivery, the main tool meant to recognize risk is electronic fetal heart rate monitoring. And the purpose of monitoring the baby's heart rate during labor is to watch for patterns that develop. And the right people need to be watching for these patterns to make judgments on whether the baby is experiencing concerning oxygen deprivation or not, and whether the baby is doing okay. And the patterns that develop more during more prolonged periods of oxygen deprivation are the things that the doctors and nurses do need to worry about because those are the things that can lead to those hypoxic brain injuries.

Warren Berg 25:08

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

Michael McVey 25:17

Well, to be frank, they need to get the baby out. Um, if if doctors or nurses decide that the baby isn't doing well, the key uh is to end the labor. Either through uh uh quick delivery, they can use forceps or vacuum, or the other alternative is uh a cesarean section or a C-section. And these decisions need to happen quickly. Letting the situation language can result in in serious injuries.

Cynthia Carels 25:41

Yeah. So when we're looking at whether an avoidable brain injury happened during labor and delivery, we're gonna be looking at the patterns in those fetal art heart monitoring records, uh what the brain imaging might show, as well as what lab reports show and other medical information in the records. And truly, parents generally don't have the benefit of having easy access to that information, uh, nor do they have the knowledge of what to even ask for from the hospitals, let alone what to look for once they get the records. Um, and unless they have someone in their lives that can help them through that, they're often left in the dark. And that's why we aim to educate people about what we're going to be looking for that might prompt someone to call us who might otherwise never reach out.

Warren Berg 26:20

Aaron Powell So you've mentioned that brain injuries from oxygen deprivation is one example of a birth injury case. Do you have another example that listeners should know about?

Michael McVey 26:30

Well, sure. Um another group of birth injury or neonatal cases that we see involves a delay in the diagnosis and treatment of certain conditions in the newborn period, like hypoglycemia or jaundice.

Warren Berg 26:43

Hypoglycemia, that's low blood sugar, right?

Cynthia Carels 26:46

Bingo. Uh blood glucose levels that fall below normal can actually be just as catastrophic as low blood oxygen to a baby's brain. And one of the most common metabolic problems in newborn infants i actually is hypoglycemia. And some newborns are more vulnerable to having permanent consequences from low blood sugar. So while a baby is in hospital, their blood sugars may need to be monitored to make sure that, you know, all 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 people are often calling us about.

Warren Berg 27:20

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

Cynthia Carels 27:23

So it it really depends on how low the sugars get and for how long, because in many cases the problems can be relatively mild if caught and treated properly. Uh, but severe hypoglycemia can result in more serious injuries, including loss of cognitive function, uh, speech problems, and even things like psychological or behavioral issues.

Warren Berg 27:44

Now you said that some newborns are more vulnerable than others when it comes to having problems relating to hypoglycemia. Is this something that a parent is supposed to know and be watching for, or is that entirely on the doctors and nurses?

Michael McVey 27:57

Some parents do know about these risks. You know, for example, 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 pregnancy. Uh pregnant mums with diabetes have a higher risk of miscarriage, preterm birth, stillbirth, malformations, uh, high birth weights. So there's a lot to know about managing this condition during pregnancy. When we have cases involving mothers with diabetes, the risk is higher, so that often means the standard of care is higher on the medical practitioners given that the risks, given the risks that come along with that. So, for example, a diabetic mom may need to have modifications to their useful m usual medications in order to keep their blood sugar stable. However, diabetes can also spontaneously develop during a pregnancy when moms develop something called gestational diabetes. And this is something that should be root should be routinely tested for during regular prenatal care because it's surprisingly common. And that can generally be managed once it's properly identified. And I recently read a study that indicated about 4% of pregnant women develop gestational diabetes during their pregnancies. And um, you know, again, that can be treated, but if this condition goes undiagnosed or it's improperly managed, it can be problematic for both the mom and the baby, even after the baby's born. How so?

Cynthia Carels 29:24

Well, from what I understand, an occasional hypoglycemic episode during pregnancy is pretty common, uh, generally not a big deal. I experienced uh a couple myself. Um, but like mentioned uh like Mike mentioned, babies who are born to diabetic mothers are known to be at risk for getting too big, and they more often need to be delivered by C-section to avoid even more potentially preventable problems, um, such as a condition known as shoulder dystocia, where the baby actually gets stuck in the birth canal because they're too big. Um, babies from diabetic mothers can also require a lot more by way of nutrition when they're born. So they are going to be more vulnerable to hypoglycemia after they're born too. But it's not just big babies at risk of hypoglycemia, it's also babies that have struggled in the labor and delivery process that can be prone to hypoglycemia, and that's something that doctors and nurses should know about as well.

Warren Berg 30:18

So, Mike, when we were talking earlier, you had mentioned uh birth injury cases relating to jaundice. Isn't that a very common condition that a lot of babies develop? Uh and can anybody with a jaundice baby sue for malpractice?

Michael McVey 30:32

Well, jaundice is a very common condition, and and generally it goes away pretty quickly. 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, a bit of a primer on what jaundice actually is and and why it's common. Uh so when a baby is born, they have a relatively high level of blood cells, uh, but those blood cells get broken down quite quickly, and the byproduct of that breakdown is called bilirubin. And it can take a newborn's body a few days to adjust uh or to get the hang of what to do with this bilirubin, which is generally the job of the liver. In the meantime, uh, that can result in bilirubin building up in the body. And so knock doctors and nurses have ways to measure levels of jaundice and make sure the jaundice goes away uh when it should. And generally, uh it does resolve with regular feeding and and bowel movements uh as the baby's body figures out how to deal with life on the outside. However, if the baby is unable to adjust quickly enough, uh hospitals

Costs, Contingencies, And Access

Michael McVey 31:40

have something called phototherapy or light therapy 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 they don't implement the proper treatment protocols quickly enough.

Warren Berg 31:53

Now, isn't it pretty easy to diagnose a jaundice baby? Don't they look well kind of yellow?

Cynthia Carels 31:58

Well, obvious jaundice is pretty easy to diagnose, and you're right. Uh the classic signs are those yellowish skin, yellowish tinges in baby's eyes. But on some babies it can be harder to see, especially in newborns with darker skin pigments and darker eyes. And premature babies are also more susceptible to jaundice, uh, amongst many other issues, uh, because their systems just aren't developed enough yet. So it is critically important for premies to be medically monitored for jaundice. Um, simply waiting to see if they turn yellow is not the best practice. And this is done through blood tests to check on those bilirubin levels, and if they are too high, then it's going to need to be treated.

Warren Berg 32:38

So, what happens if jaundice goes untreated?

Michael McVey 32:41

Well, as I said earlier, jaundice often goes away on its own and and there aren't any serious consequences. Um where it doesn't go away on its own, the most common treatment for jaundice are are those phototherapy lights where babies literally lie under these specialized blue lights with their skin exposed, uh, and that light actually helps change the bilirubin into a form that's easier for the baby to pass out through their body. Now, if that doesn't work, uh interventions can include uh emergency blood exchanges where the baby's own blood is replaced with blood from a donor to quickly bring down the bilirubin levels. And that's 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.

Warren Berg 33:27

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

Cynthia Carels 33:30

You know, until I started doing this work, I don't really remember even hearing about bilirubin other than maybe one quick chapter in like a high school biology class. Uh but bilirubin is regularly produced in our bodies and normally gets excreted through the liver and urine. And in the newborn period, the baby, you know, starts feeding and those normal bodily functions are just starting to work. But if they don't get moving as quickly as they might need to, uh it can cause brain injuries. And if the jaundice doesn't go away with the usual treatment, it might also mean there's something else going on that might need to be medically investigated, such as perhaps an infection or a metabolic problem.

Warren Berg 34:08

This is Ask the Lawyer on CFWE and CJWE across Alberta with We'Bowen L L P. Their phone number is 780-424-2030. Their website is WeirBowen.com. That's W-E-I-R-B-O-W-E-N.com. And today we're speaking with Cynthia Carrolls and Mike McVeigh. And our topic today is obstetrical malpractice. So, Mike, you had mentioned that it's important to hire a lawyer who has experience in this area. Has Weirbowen had experience in running obstetrical malpractice trials?

Michael McVey 34:42

Uh yes, we have a lot of experience in that area. I can confidently say that Weirbowen has run more obstetrical malpractice trials than any other law firm in Alberta with a very good track record as well. In fact, we recently uh were successful in a case involving the failure to urgently proceed to C-section when the baby was known to be in breach position or uh uh in feet first position, and then the fetal heart rate was showing signs that the baby wasn't doing well. Uh, you know, another example uh is a case where we were successful in and and the issue there involved a delay in the diagnosis of uh of an interesting syndrome known as twin-to-twin transfusion syndrome or or TTTS. Uh this is a serious condition in in some kinds of twin pregnancies where uneven blood flow through a shared placenta results in one of the twins receiving too much blood uh while the other receives insufficient blood. And uh in in a case of TTTS, um that can lead to injuries to both twins, uh interestingly enough. And where that condition should have been diagnosed and treated, uh you can have a a successful claim there for uh for brain injuries in both twins, as I said.

Warren Berg 35:55

So if one of our listeners today thinks that their child may have sustained a birth injury, what can they expect when they call a lawyer?

Michael McVey 36:03

Well, first of all, um I want to ensure your listeners of what not to expect if they call Weir Bowen, and and they should not expect any judgment of any kind. Uh we completely understand that the process of pregnancy, labor, and delivery, uh, you know, the neonatal period, that's filled with a lot of emotion.

First Call: What We Ask For

Michael McVey 36:20

Uh, and even for those of us who have brought a child or two into the world, there's a lot of mystery there.

Cynthia Carels 36:25

Yeah.

Michael McVey 36:26

So we don't have any expectation that your listeners are gonna know all the answers about what went wrong or even what questions to ask.

Cynthia Carels 36:32

Honestly, knowing what questions to ask is our job. And during the very first phone call, we're we're going to be ants asking a lot of questions. And, you know, many times our potential clients don't actually know what went wrong. They they might just suspect something did go wrong or possibly went wrong. So we're gonna want to get as much information as we can from you about, you know, where the baby was born, uh, when the baby was born. Um, you know, not all babies are born in hospitals, so we might want to know about who was managing uh mom's prenatal care. Was it an obstetrician? Was it a family doctor? Was it a midwife, a doula? Um, who delivered the baby and and how the baby was delivered? Was it a natural birth or a C-section? Uh, you know, we'll be inquiring about things that you might remember about the birth and if there was anything that seemed concerning to you. And obviously, we're gonna want to know about how your child is doing now. Um, are they hitting all of their normal developmental milestones?

Michael McVey 37:28

And as we talked about earlier, we fully expect that most callers are gonna have gaps in the information. Uh, even the most knowledgeable client is not gonna know everything. So we would likely take some steps to get records. Uh that would include getting records, you know, mom's health records, including the um pre-pregnancy records, prenatal records, uh, as well as the hospital records. We'd also want to get uh the baby's records from the hospital where they were born and and probably their pediatrician or family doctor as well. And then we'll take a look at that information and give you our preliminary thoughts, which could include a recommendation to get an expert opinion.

Warren Berg 38:05

So why would you need expert uh opinions? I would assume that you are the experts.

Cynthia Carels 38:10

You know, our expertise is truly legal. Uh, it is not medical. And even though we do a lot of medical malpractice cases, uh, we're not doctors. And honestly, no matter how long a medical malpractice lawyer practices in this little niche area, there are always new things to learn. And obstetrical cases are frequently filled with surprises. So before we recommend that anyone launches into a lawsuit for a birth injury claim, we want to have an independent medical expert review those relevant records and give us an unbiased opinion about the merits of the case and also those risks, because in many cases, experts are going to be seeing things that we as lawyers just simply aren't picking up on because we're not the ones who are in those labor and delivery suites day after day.

Michael McVey 38:52

And if we ultimately do have to go to trial on a birth injury case, we rely heavily on these experts to provide us with insight uh as to what happened, what went wrong, and and what should have done to been done to prevent the injury. And and these experts have a tremendously important job in helping us 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 on on each of the important issues early on in the process.

Warren Berg 39:23

Aaron Powell So who are these experts? Are they other doctors?

Cynthia Carels 39:26

Yeah, you know, that's an excellent question. And our extensive network of medical legal experts is definitely what sets Weir Bowen apart in this space because we have diligently worked at cultivating and curating relationships with experts who are going to give us opinions we can trust, even if it's bad news about a case. Um, and there are also going to be experts who need to be willing to get involved in medical malpractice litigation. That means not only reviewing records and writing reports, but actually also showing up at court to give expert evidence and to be cross examined under. Under oath by defense counsel lawyers. And there are many doctors and nurses who are simply not willing to weigh in on the conduct of their peers or 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 and the requisite credentials to be able to speak to the particular issues arising from that case so that the court is going to give weight to their opinions.

Warren Berg 40:28

So you've reviewed some of the kinds of claims that your team deals with, but let's go back to something Cynthia said earlier about why parents tend not to look into these kinds of claims.

Cynthia Carels 40:38

Right. So I initially said there are two categories that prevent people from picking up the phone. Number one is a lack of knowledge, which we've talked about quite a bit today, but also emotional barriers.

Warren Berg 40:50

Right. So now what do you exactly mean when you talk about emotional barriers?

Cynthia Carels 40:54

Oh boy, there are a number of emotional factors that we see parents go through when they're considering a lawsuit on behalf of their injured child. And one of the biggest ones is that parents of brain-injured children, uh children with things like cerebral palsy or children with autism or other neurological differences, is that they are honestly overwhelmed. They have trouble with the thought of adding yet another thing to their plate. And many of these families are literally operating just in survival mode.

Michael McVey 41:24

I have four kids myself, and I know that the 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 seeing neurologists, pediatricians, uh other therapists such as speech language, physio, or occupational therapy, it's not hard to imagine how the schedule becomes completely overwhelming. We often hear from our clients that they are living in the moment or or living day by day uh because they are not able to do anything other than that. So it's important for people to know, especially in the early stages of investigating a potential malpractice claim, that they don't have to dedicate a lot of time to it. There's going to be a couple things, like they'll there'll be an initial meeting uh where we gather the information we need, uh, and then we do the work in gathering the medical records and getting the expert opinions. Um, you know, and I think many people think that they have to have all the answers or be more involved in the process. But it's really, you know, just a meeting. Uh we get the records and then uh we'll go through everything and and at the end of the day we'll we'll tell you if we think you have a good case or not. And if you do have a good case, then there's some more involvement that's required after that. Uh, but I think generally our clients find it pretty manageable and and we support you all along the way uh to try to make it as convenient as possible for you.

Warren Berg 42:42

You had 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?

Cynthia Carels 42:51

That is something that our clients worry about a lot. Uh, and it's actually another reason why some people are are even hesitant to reach out to a lawyer or to consider bringing a claim. Um, fortunately, in birth injury cases, uh, you know, you're generally not going to be continuing to be under the care of the defendant physicians and the nurses that we might have to sue on a go-forward basis once you leave the labor and delivery ward. Um other practitioners, though, like pediatricians

Hypoxia And Fetal Monitoring

Cynthia Carels 43:20

and neurologists, uh, they may find out that you are involved in a lawsuit. And people do have a lot of concern about that. Um, you know, but these professionals are often pretty used to caring for patients who are involved in lawsuits like this. Um, and in fact, we even have some physicians who were the very people who told our clients to call us in the first place. Um, if they feel that their patient's injuries uh may have been preventable with appropriate medical care.

Michael McVey 43:49

Aaron Ross Powell And it's important to know that even if a doctor or other treatment provider is aware of a lawsuit, legally it should not affect your care. They uh 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.

Warren Berg 44:03

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

Michael McVey 44:11

It it it really is, and and it's related to another reason why people uh sometimes don't reach out to us, and and that's because they feel grateful towards physicians and nurses. You know, when 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 at all. You know, sometimes the same doctor who saved our client's life also negligently caused the dangerous situation in the first place, and our clients don't necessarily know the reason why they were in that dangerous situation in the first place, which may have been due to the lack of medical knowledge that they have or that lack of information that that we talked about earlier. So they wouldn't necessarily think to investigate whether that doctor caused the problem in the first place. And there's also a general sentiment, sentiment in our society that doctors and nurses are good people and they shouldn't be criticized. And, you know, generally we agree, most doctors and nurses provide excellent care. Uh, but sometimes doctors and nurses are negligent and and that negligence causes a catastrophic injury. And in those cases, our clients really need financial support to deal with the care that is required as a result of those injuries and to replace the income that they otherwise would have been able to earn without those injuries. Often in these cases, once people know about the bill the ability to sue, the injuries are so extensive that they feel they really have to look into things further.

Warren Berg 45:33

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

Cynthia Carels 45:41

Yeah, uh, and it's a big one, and I find it can be really difficult for parents, and I don't want to generalize here, but uh we find especially moms to think about who might actually be responsible for what happened to their child. And I think it comes down to the fact that as parents, we tend to feel we should be able to do anything and everything to protect our kids. And that same instinct that allows us to do extraordinary things for our kids can also make us feel extremely guilty if something does go wrong, because we feel like we should have been able to protect them. And it's something I hear from pretty much all of my clients who have children with serious injuries, uh, whether it's in a medical malpractice case setting or, you know, honestly, even in a car accident.

Michael McVey 46:29

Trevor Burrus, Jr.: 100%. And that's why I want to repeat what I said earlier in the show. We are not here to judge parents.

Cynthia Carels 46:35

Aaron Powell, yeah, because you know, guilt is something that we see so often with our clients. And I think it's important to say that uh, you know, in case there's someone out there who is having those kinds of struggles, please know you are not alone in feeling that way.

Michael McVey 46:48

Aaron Powell And grief is somewhat related to this as well. But you know, this 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 fee if the parent feels that the injury was preventable.

Cynthia Carels 47:04

Aaron Powell Yeah, and to be frank, uh those weeks and months after a birth of a child can be filled with a dizzying array of emotions at the best of times. But if something has gone wrong with a birth, it can feel exceptionally strange to, you know, move into celebrations like baby showers or rites of passage, like baptisms or baby dedications. Uh and you know, what was supposed to be a really happy time in that family's life might actually be filled with grief, like Mike said, um, and even an instinct to uh you know withdraw from traditions and networks that might otherwise have provided families with support.

Warren Berg 47:42

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

Michael McVey 47:54

Well, we find that a lot of new parents don't totally appreciate the costs associated with caring for a permanently disabled child over the course of their lifetime. Uh in those early years, they may have been expecting to have to pay for car seats and strollers and they were gonna have to provide 24-hour care regardless. But most of us expect our kids to grow out of these needs over time and and eventually become independent. That's the goal at least. And and when a child's been left with uh permanent impairments due to a birth injury, a lot of those care costs may never go away, and in fact, they can increase substantially uh throughout the course of the child's life. So this is a really big reason we think it's worth talking to a lawyer to see if a lawsuit can assist with paying for some of those costs. So what sort of costs are we talking about?

Cynthia Carels 48:42

You know, for for kids with serious injuries, if they can't care for themselves when they become adults, we may actually need to seek the cost of having someone available to care for that individual 24-7 for the rest of their lives. And that is far beyond the degree of care expected from, you know, your average typical parent. That is often a very large expense that is not available for people to take on unless they have some sort of funding from a lawsuit settlement or judgment award. Uh, you know, for example, we can talk about the the twins that we spoke about earlier today in that twin-to-twin transfusion syndrome case, those kids are literally going to need millions of dollars of care and assistive devices and other supports through the remainder of their natural lives. And if it wasn't for the successful lawsuit and the court's clear appreciation that these expenses could have been avoided with proper diagnosis and treatment of their twin-to-twin transfusion syndrome, uh, this family would not have had access to funds for all of the exceptional needs that these kids are going to have going forward.

Warren Berg 49:45

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

Michael McVey 49:53

Aaron Powell Well, that goes back to the experts we talked about. We have a whole other group of experts we retain to determine how much money we should be claiming for those future expenses. Often our clients need to be assessed by experts known as life care planners who can give us opinions on their needs in the areas of, you know, physical therapy, speech language therapy, psychological therapy, occupational therapy, and that addresses how uh how to adapt to things that allow the client to perform activities of daily living that they have trouble with due to their injuries.

Cynthia Carels 50:26

And the therapies are truly a very important component of the damages

Newborn Risks: Hypoglycemia

Cynthia Carels 50:30

that we're claiming for because they're going to maximize a child's residual capacities. You know, so even though these kids are compromised, they can still do amazing things when they have access to the right team of treatment practitioners and funding, obviously, to support their work. Uh and in fact, because of the work that We're Bowen has done in this area, we've actually come to deeply appreciate the networks of nonprofits in this province that support families and kids living with disabilities. For example, we are very proud to sponsor a number of initiatives with Cerebral Palsy Alberta and the work that they do to enrich and support the lives of kids and adults with cerebral palsy. Every year we send an entourage of lawyers to their annual fundraising gala where we get to connect and learn about the incredible accomplishments of their clients, especially when they get the benefit of those appropriate supports.

Warren Berg 51:23

So obviously the future care needs are a big piece of these kinds of claims. Are there other elements that you and your team have to figure out in a birth injury lawsuit?

Michael McVey 51:32

Yes. You know, another important component uh is assessments of what that child is or was likely going to do as an adult. Uh for example, uh whether they can live independently or or whether they can be competitively employable. Because if they cannot do those things, then they need we need to seek funding to replace the income they otherwise would have earned, as well as funding for attendant care to support them to live safely as an adult.

Warren Berg 51:58

So how can you predict all that?

Michael McVey 52:00

Well, again, more experts. We generally will retain uh neuropsychologists and pediatricians who have made careers out of working with children. And and with their years of uh experience and and their education, they are in the best position to make predictions uh as to what a child may or may not be able to do when they become an adult.

Cynthia Carels 52:19

And we may also recruit people known as vocational experts who will look at uh the overall family situation to make predictions about what that child's future likely would have entailed had they not been injured in a birth injury. Um so they're gonna be looking at statistical evidence regarding outcomes for kids depending on things like you know their parents' highest level of education and earnings or how their siblings do. And that's going to help to give the court an analysis of what the child's future likely otherwise could have been. And then we might also get uh an economist involved who can calculate the present value of you know that future loss of a child's earning capacity combined again with the present value of all of those future care needs they might require as well.

Warren Berg 53:06

It sounds like there's a lot of different considerations to account for in these types of cases. Indeed there are.

Cynthia Carels 53:12

You know, and no matter how many of these cases our team at Wearbowen runs, we are always learning something new. So um so thanks, I guess, you know, to you, Warren, for having us on today so that we have been able to share a bit of this information uh with all of your listeners as well.

Warren Berg 53:27

And our thanks to you as well for sharing that information. Cynthia Carrolls and Mike McVeigh of Wereben L L P here on Ask the Lawyer. If you would like more information, you can visit their website, Weirbowen.com. That's W E I R B O W E N dot com. Their phone number is seven eight zero four two four two zero three zero. We've covered a lot of ground today in the January edition of Ask the Lawyer, 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.