By Desmond Bill Toronto Star

An obstetrician whose failure to perform a caesarean section on a woman caused her baby to suffer brain and arm injuries has been ordered to pay $12 million in compensation.

After the child was born, his parents lost their claim for refugee status and had to leave Canada. Immigration Minister Sergio Marchi gave them special permission to return to testify in the case.

They must now go back to French Guyana but are leaving their son here with an aunt so that he may receive medical treatment not available in that country.

The obstetrician, Dr. Francis B. Sam, did not enter a defence after a two-week hearing before Madam Justice Susan Lang in Ontario Court, general division.

His lawyers admitted liability and agreed on the settlement for damages with Richard Sommers, lawyer for the parents of Brian Charran.

Sommers presented evidence that Durmatie Charran expected - on the basis of previous medical advice - to undergo a caesarean operation when she went to Doctors Hospital after going into labor on July 13, 1991.

She told the receiving nurse she was to have a caesarean delivery and the necessary preparations were made for one. But when Sam arrived, he did not proceed with one on the obese, 4- foot-11 woman.

Subsequently, the child's head came out of the birth canal but his body was stuck for about 15 minutes, cutting off some of the oxygen supply to his brain.

The doctor then used such force to extract the baby that it tore the nerves that control the child's left arm.

The child's arm does not function at all, Sommers said, and he is of low average intelligence as a result of his brain injury.

"I feel great about the award in that at least there is security for Brian but no award can make up for what happened. Nothing can do that," the child's father, Deobarran Charran, told The Star last night in a phone interview.

The Charrans came to Canada in May, 1991, after having fled Guyana to live in Surinam, formerly Dutch Guyana. Brian was born two months later and they left this country in July, 1994, after losing their claim for refugee status and went to live in French Guyana.

They were at first refused a visa to return to Canada to give evidence in this case but then were given special permission to enter by Marchi.

Charran said he was "very, very grateful" to Marchi and his lawyer, Sommers, said that if Marchi had not allowed them to come and give evidence, "the consequences could have been disastrous for Brian's future."

The Charrans have appealed to Marchi to be allowed to stay in Canada on compassionate grounds and hope for a favorable decision before they are forced to leave Canada again in five weeks' time.

"It's a heartbreaking thing," Sommers said. "They must leave their son here because he can't get the medical treatment he needs in French Guyana."

He said that if Marchi doesn't let them stay, "they'll never be able to re-enter Canada. When will they see their child again?"

If the Charrans are not allowed to stay, Brian will live with his aunt, Roxana Gopaul, of Royal York Rd.

The boy will not start to receive compensation until he is 18 years old in order to conserve the award.

Compensation will begin at the rate of $40,000 a year, rising by instalments to $340,000 a year by age 79, which is his expected life span.

The settlement was ratified by Lang on Wednesday.

-30-