“…Sommers & Roth is recognized as one of the leading medical malpractice firms in Canada. I agree with this assertion. Both Mr. Elmaleh and Mr. Seibart … have a great deal of experience in litigating obstetrical negligence actions.”---Judge of the Superior Court of Ontario
Birth Trauma Lawyer in Canada
We consider obstetrical negligence/obstetrical malpractice to be our ‘sub-specialty’, as demonstrated by a sample of the cases we have successfully litigated countless successful cases and recovered millions of dollars at-trial for clients affected by birth injury.
Hundreds of thousands of healthy babies are born in Canada every year. Sometimes complications in pregnancy, labour and delivery can arise. In a small number of births, obstetricians (OBGYN), nurses, midwives, ultrasound technicians or other health-care professionals make errors that injure the mother and/or her baby and significantly affect their lives post-birth.
The long-term effects of obstetrical malpractice can include neurological injury and permanent brain damage, disabilities such as cerebral palsy, epilepsy/seizures, cardio-pulmonary disorders, scoliosis, paralysis, quadriplegia, cognitive impairment, developmental disabilities, intellectual delay, learning disabilities, ADHD-like symptoms, auditory neuropathy (hearing loss), and ophthalmological disorders such as Neurological visual impairment (NVI) (referred to as cortical visual impairment (CVI) and/or cortical blindness).
Parents of children injured by obstetrical malpractice during pregnancy, labour and delivery often are never informed that their baby’s injury and permanent disability may have been caused by medical malpractice and that they should contact a medical malpractice lawyer. In some cases, the injury is not recognized until the baby is old enough to miss normal milestones in physical and/or intellectual development, or be delayed in meeting those milestones.
Brain Damage or Physical Injury After a Difficult Pregnancy, Labor And Delivery
Children or mothers injured due to medical error or negligence during childbirth may be entitled to compensation for their injuries and can bring an obstetric malpractice claim to recover damages. Obstetric malpractice claims often raise complex questions of both medicine and law, and require representation by lawyers with in-depth knowledge and extensive medical malpractice trial experience. At Sommers Roth & Elmaleh, we are leaders in the field of medical malpractice law, regularly litigating successful cases, setting ground-breaking precedents, and always at the forefront of developments in the practice area.
$8.5 Million Trial Award for Family, More Than 20 Years After Botched Birth and Destruction of Medical Records
At birth the baby was floppy and did not cry. Her skin was blue and she required resuscitation. There was a sense of panic in the room. At one hour of age, the infant was still profoundly acidotic and hypoxemic. The baby was transferred to The Hospital for Sick Children (Sick Kids Hospital), with evidence of meconium aspiration, seizures and low blood glucose levels. The baby suffered permanent neurological deficits due to birth asphyxia.
Mr. Elmaleh and the team at Sommers Roth & Elmaleh obtained a Judgment against University Health Network (Toronto General Hospital) on behalf of a girl who suffered asphyxia and resulting brain injury at birth. The Court found that the obstetrical nurse was at fault for not monitoring the unborn baby’s heartbeat properly. The Judgment was upheld by the Ontario Court of Appeal. This case was also complicated by the defendant Hospital’s illegal destruction of the labour and delivery records, including the electronic fetal heartrate monitor tracing.
Common Errors Made Before or During Pregnancy
Over the course of pregnancy (sometimes referred to at the pre-natal, antenatal or antepartum stage), a diligent obstetrician will detect potential issues and take precautions. However, these can be missed or ignored. Common errors include:
- Failure to diagnose pregnancy and prescribing medications or drugs that can cause birth defects or brain damage, such as skin treatment medication (Accutane/Isotretinoin), anticonvulsants or epilepsy medication (magnesium sulfate, valproic acid/valproate), anticoagulants (heparin or warfarin);
- Failure to monitor a mother’s weight, measure symphysis-fundal height (SFH) or take a history of prior deliveries;
- Failure to detect and treat gestational diabetes mellitus (GDM);
- Failure to detect abnormal fetal development such as Intrauterine growth restriction/ fetal growth restriction (IUGR), reduced fetal growth/small for gestational age, or detect macrosomia (large for gestational age);
- Failure to perform genetic testing;
- Failure to test for and treat viral or bacterial infections during pregnancy such as Herpes (e.g.: Cytomegalovirus or CMV), Sexually Transmitted Diseases (such as Syphilis, Chlamydia, or Gonorrhea), or Listeria or Group B streptococcus (GBS), and plan accordingly, e.g.: administer antibiotics and prepare for caesarean section (c-section);
- Failure to order, perform or interpret diagnostic testing, such as an ultrasound, biophysical profiles, non-stress tests, sonogram or blood test;
- Failure to recognize or properly respond to bleeding;
- Failure to detect oligohydramnios (low amniotic fluid), polyhydramnios (excessive amniotic fluid), or fetal hydrops/mirror syndrome;
- Failure to detect abnormal baby’s (fetal) development or cephalopelvic disproportion;
- Failure to detect congenital (genetic) birth defects, or malformations including spina bifida, cleft palate, clubfoot, omphalocele and congenital dislocated hip;
- Failure to detect placental issues such as placental insufficiency (uteroplacental vascular insufficiency), placental previa, or placental abruption;
- Twin-to-twin transfusion: failure to detect growth discordance or amniotic fluid discordance.
Common Errors Made During Birth Labour & Delivery
There are certain common medical errors made by obstetricians and other medical professionals such as nurses or midwives during delivery that may lead to serious, life-long injury to the baby or the mother. These errors include:
- Unnecessary delay in delivery, including delay in performing a caesarian section (c section);
- Mistakes during breech delivery;
- Mistakes made during assisted delivery, including improper forceps and vacuum extractions (which can cause cephalohematoma and caput);
- Misuse of prostin, prostaglandin, oxytocin, or syntocin, which is used to induce labour;
- Delay in recognizing problems with fetal heart rate;
- Failure to monitor fetal heart rate (tachycardia, bradycardia, late decelerations) and respond to a non-reassuring or ominous fetal heart rate;
- Failure to respond to signs of fetal distress, including an emergency caesarean section (c section);
- Failure or delay in recognizing umbilical cord compression, umbilical cord prolapse, umbilical cord tangle, nuchal cord;
- Maneuvers to deliver a baby during shoulder dystocia;
- Failure to recognize and respond to uterine rupture or placental abruption;
- Misinterpretation of fetal heart monitoring strips;
- Leaving the baby without oxygen for a prolonged period of time (asphyxia).
Babies injured during birth can suffer serious, permanent brain injuries, brachial plexus injury, or other disorders such as cerebral palsy. Neonates (newborns) with brain injury often experience brain dysfunction shortly after birth called neonatal encephalopathy (NE) or hypoxic-ischemic encephalopathy (HIE).
Common Errors Made After Birth/Delivery (Neonatal)
There are certain common errors made by pediatricians, hospital nurses and other medical professionals following delivery that may lead to serious injury to the baby. These errors include:
- failure to detect and treat hyperbilirubinemia (jaundice), which can cause neurological disorders and permanent disabilities such as Bilirubin-induced neurologic dysfunction (BIND);
- failure to treat meconium aspiration syndrome;
- failure to monitor neonatal glucose for hyperglycemia or hypoglycemia;
- failure to detect and treat infection (such as meningitis and encephalitis);
- failure to treat complications of neonatal encephalopathy caused by asphyxia or hypoxia-ischemia such as Persistent pulmonary hypertension of the newborn (PPNH), seizures;
- Improper use of neo-natal treatments including lorazepam, phenobarbital, dilantin, resuscitation, neonatal therapeutic hypothermia, and/or cooling therapy.
Injuries to newborn babies can have devastating consequences and lead to permanent brain injury and cerebral palsy.
Damages in Obstetric Malpractice Cases
A child or a mother who suffered a birth injury a result of a medical error or medical negligence may be eligible for the following types of damages (i.e. compensation):
- General Damages: money awarded in recognition of the stress and anxiety of raising a child with disability.
In addition to damages that may be awarded to victims and families in recognition of the injuries suffered, families may also be eligible to receive other compensation. This includes funds for:
- Home Accessibility Modifications including necessary elements such as widened doorways, a modified kitchen, or customized bathrooms.
- Attendant Care Services including any that are not covered by provincial government funding, including personal support workers (PSW), disability support workers (DSW), or private nurses (RN/RPN).
- Purchase of a New Home with better access to hospital and other medical care.
For over 40 years, we have won multimillion dollar awards for our clients that pay for their child’s care, therapies, equipment, medical supplies, modified housing and transportation, and other expenses. The highly experienced and respected medical malpractice lawyers at Sommers Roth & Elmaleh can walk you through the process of making an obstetric malpractice claim, and help explain what sort of compensation you may be able to obtain. In order to succeed in an obstetrical malpractice lawsuit, we retain numerous experts including experts in obstetrics, perinatology, neonatology, pediatric neurology, pediatric neuroradiology, genetics, and other speciality areas, and typically invest hundreds of thousands of dollars into each of our client’s cases.
Sommers Roth & Elmaleh: Experienced Medical Malpractice Lawyers Helping Patients Obtain Compensation in Obstetric Malpractice Cases
If you or your child has suffered a birth injury due to medical error or a health care professional’s negligence, contact Sommers Roth & Elmaleh for trusted legal advice and guidance. Our lawyers are well respected in both the legal and medical communities and have assisted clients in Ontario, Alberta, British Columbia, and Quebec. We offer compassionate, skilled, and knowledgeable guidance on all aspects of obstetric malpractice claims. Contact us online or call us at 1-416-961-1212 for a free consultation.