Sommers Roth & Elmaleh Win Over $5.5 Million Trial Award for Child with Serious Birth Injuries

A Barrie, Ontario family was awarded more than $5.5 million (including pre-judgment interest) after a court found that an induced labour (artificially breaking her waters) carried out by nurses at the Royal Victoria Hospital in Barrie, Ontario caused the infant to suffer a perinatal asphyxia and a hypoxic ischemic event (HIE) at birth, resulting in hypotonic cerebral palsy with significant lifelong impairments, challenges, and conditions.

What Happened?

The child in question (Sarah) was born on January 26, 2007. The mother’s pregnancy, with twins, had been normal throughout. Within 30 minutes of the mother’s arrival at Royal Victoria Hospital (RVH) in Barrie, the first twin was delivered normally. Around 1:00 a.m., two nurses artificially ruptured the membranes (broke the waters) of Sarah to induce labour, which resulted in compression of the umbilical cord for about 25 minutes. This caused her oxygen supply to be cut off, causing asphyxia. The obstetrician on-call was not in the hospital. Sarah was ultimately delivered via emergency C-section at 1:30 a.m.

Sarah was depressed at birth, requiring resuscitation with intubation, positive pressure ventilation, and Narcan. Her Apgar scores were low, and her initial arterial cord blood gas was abnormal with a pH of 6.64. Sarah displayed no spontaneous movements or efforts at breathing until more than 5 minutes after the delivery, when she emitted a gasp. Respirations did not begin until about 10 minutes later.

Approximately 26 minutes after delivery, seizure-like symptoms were noted. Sarah did not move her limbs spontaneously until about 2 ½ or 3 hours after delivery. She remained intubated for 10 hours.

Diagnoses

An electroencephalogram (EEG) conducted three days after birth revealed a generalized encephalopathy. Sarah remained in hospital until February 15, 2007. Her discharge diagnosis stated that she had experienced perinatal asphyxia and hypoxic ischemic encephalopathy (HIE) II with seizures.

Sarah was referred to the RVH Neonatal Follow-Up Clinic as well as to a Paediatric Neurologist at the Hospital for Sick Children (HSC) Neurology Clinic. Over the course of several visits the Paediatric Neurologist rated her perinatal asphyxia as “very severe” and diagnosed cognitive delay, developmental delay, and ataxia. A separate treating physician noted residual neurological deficits in August 2007 and developmental delays in February 2008.

An MRI scan was ordered in July 2008. The scans revealed increased signal in the white matter and prominence of the temporal horns of the lateral ventricles with under rotation of the hippocampi. Since the MRI scan did not show the damage that is generally expected of perinatal asphyxia, testing for other genetic or metabolic causes was carried out. These further evaluations showed no abnormalities.

Sarah was diagnosed with hypotonic cerebral palsy in September 2008.

A second MRI was conducted on May 31, 2012 under advice from Sommers Roth & Elmaleh.  Two experts concurred that results from this second MRI suggested that Sarah’s injury would be a lifelong one.

Sarah was diagnosed with cerebral palsy (CP) by a developmental pediatrician as well as by her pediatric neurologists at the Hospital for Sick Children, (HSC).

Sarah also had behavioral issues that presented like Attention Deficit Hyperactive Disorder (ADHD), which were caused by the brain injury.

In 2014, Sarah’s treating physician reviewed Sarah’s medical history, noted that brain imaging is not always completely “classic” for perinatal asphyxia, and concluded that in the absence of developmental regression or any signs of other etiologies, Sarah’s symptoms were likely caused by a hypoxic ischemic event at birth.

Impairments, Challenges, and Conditions

Sarah has suffered from various impairments, challenges, and conditions following her birth injury, including:

•       Ataxic-hypotonic cerebral palsy;
•       Low muscle tone;
•       Lack of coordination;
•       Impaired fine motor skills with hand tremors;
•       Impaired gross motor skills;
•       Poor visual motor skills;
•       Speech delays;
•       Disturbed sleep pattern;
•       Poor impulse control;
•       Poor judgment;
•       Cognitive deficits;
•       Delayed adaptive functioning;
•       Impaired social and emotional functioning;
•       Intellectual deficits;
•       Attention and behaviour difficulties;
•       Drooling and speech impairment; and
•       Poor safety awareness.

The Parent’s Position at Trial

The parents sued the hospital, the nurses who had induced labour, and several other medical professionals.

At trial, the family was represented by the lawyers at Sommers Roth & Elmaleh including Hilik Elmaleh and Michael Hershkop. The trial was presided over by the Honourable Mr. Justice J.R. McCarthy.

Sommers Roth & Elmaleh argued that, as a direct result of the induced labour, Sarah suffered HIE, resulting in cerebral palsy, cognitive impairments, and behavioural problems (ADHD-like behavior). Sarah’s brain injury was the cause of all of the permanent impairments and deficits affecting her gross and fine motor skills, speech, cognition, learning, and behaviour.

In order to cope with her ongoing disabilities and enhance her quality of life, Sarah will require physiotherapy, speech-language therapy, occupational therapy, housing modifications, and other goods and services for the duration of her lifetime.

Sarah is competitively unemployable. She will never be able to live or function independently, and will require 24-hour care for her lifetime.

As a result of all of the above, the parents argued that Sarah is entitled to:

• General non-pecuniary damages for pain and suffering
• Damages for future loss of income (as Sarah is competitively unemployable).

In addition, her family members are entitled to be compensated for loss of care, guidance, and companionship, and also for the extraordinary care and supervision that Sarah requires that she would not have needed but for her injuries.

The Hospital’s Position at Trial

The hospital conceded several things. It admitted that the nurses should not have induced labour on the night in question. It did not dispute that Sarah suffered from neonatal asphyxia that resulted in brain injury, and did not dispute that the neonatal presentation qualified as HIE. The hospital also conceded that the artificial rupturing of the membranes caused Sarah’s ataxic hypotonic cerebral palsy.

However, the lawyers for the Hospital argued that the fact that Sarah suffered asphyxia or HIE in the neonatal period did not mean that this was responsible for all of her current issues. The Hospital argued that they should not be held responsible for all of Sarah’s issues because many of Sarah’s problems were genetic, or inherited from her parents. The Hospital argued that regardless of her brain injury, Sarah would have anyways had attention, cognitive and behavioural issues outside of the neonatal asphyxia. They further argued that Sarah had ADHD, which was causing her cognitive and behavioural deficits. The hospital also claimed that the parents were unwilling to produce important documentation, and that they refused to have Sarah participate in certain assessments.

The hospital also argued that even if all of Sarah’s problems were the responsibility of the hospital, there was no real possibility that Sarah would require all of the treatments and services alleged by her parents. The Hospital’s position was that  Sarah was exaggerating her present-day needs and limitations and  failed to demonstrate that her present-day condition will endure throughout her lifetime.

The Decision

Justice McCarthy ordered the hospital to pay $5.6 million in damages (plus $2.2 million in costs), including loss of future income damages, and damages for personal support she will need for the rest of her life.

Causation

The judge found that the overwhelming evidence was that Sarah did suffer a severe hypoxic ischemic event at birth. All reported signs and symptoms, including low Apgar scores, blood gases, and seizures, in addition to the consistency of the various diagnoses provided by her treating physicians, were consistent with this being a serious event.

The court concluded that the hospital’s entire genetic theory had to fail because it required an unacceptable degree of speculation and would require the parents to prove a negative: that additional genetic testing might rule out a genetic cause for Sarah’s condition.

With respect to the hospital’s claims about ADHD, on a simple balance of probabilities, the hospital could not establish that Sarah has ADHD, or that any ADHD symptoms she exhibits are due to a genetically inherited condition.

Moreover, it is an absolute certainty that Sarah suffered a hypoxic-ischemic brain injury, and that HIE can lead to symptoms that look like ADHD. The judge concluded that he was not satisfied that genetically based ADHD was a materially contributing cause of Sarah’s various problems, but found that:

…but for the birth event and the resultant HIE, Sarah would not have the host of attention, cognitive and behavioural problems which plague her

And that:

It is also plain and obvious on the evidence that the physical impairments and challenges facing Sarah are a feature of her ataxic cerebral palsy which is a direct result of the brain injury suffered during the hypoxic-ischemic event that took place on January 26, 2007.

The court ultimately concluded that the parents had proven causation, noting:

The balance of the evidence points to the hypoxic-ischemic brain injury suffered by Sarah at birth being the sole cause of her cerebral palsy, behavioural and cognitive deficits.  I have carefully considered but dismissed the possibility of other etiologies playing a role in her present condition.  On a balance of probabilities, I find that Sarah’s past and present cognitive deficits, impairments and challenges result solely from the hypoxic-ischemic brain injury suffered on January 26, 2007. 

Damages

General Damages

The judge acknowledged that Sarah’s injuries are serious and permanent and impact on many of her daily activities, but that her situation did not warrant an award of maximum general damages. He noted that Sarah is “still able to enjoy a quality of life that would be denied to individuals with an all-pervading series of impairments”. For instance, she is able to attend school, play and interact, operate a computer, etc.

The judge went on to note:

…while Sarah no doubt feels pain from tremors, social isolation, her own growing realization of the significance of her impairments and the frustration borne of cognitive deficits, there was no evidence that her everyday existence is plagued by any kind of relentless body pain, whole body incapacity or complete dependence.

The court awarded $250,000 for general damages.

Family Law Act Damages

The parents argued that they are each entitled to compensation for their respective losses of care, guidance, and companionship that they would have expected to receive from Sarah but for the birth event. The parents also argued that Sarah’s older siblings should receive compensation as well.

The judge noted that any Family Law Act damages must be confined to loss of companionship for the family since there had been no evidence about losses of care or guidance. He noted that Sarah was exceptionally close to her mother but that “the quality of interaction will never be what it could have been between a health maturing daughter and her mother”.

He also went on to note that “the siblings all still have their adult years ahead of them. Sarah’s deficits are serious and permanent. One can only infer that the loss of ‘quality’ companionship will be on-going and permanent”.

The judge awarded $155,000 in Family Law Act damages, to be split between the parents and siblings, with the mother receiving $50,000, the father $40,000, the twin $25,000, and the older siblings $20,000 each.

Future Loss of Income

The court noted that Sarah would not be competitively employable at any time in her life. Based on her neurocognitive and other weaknesses, the judge found that:

I am satisfied that she will forever lack the skills, abilities, training and competence to engage in remunerative employment. I find that Sarah will remain competitively unemployable during her lifetime and that her earning capacity is effectively nil.

In addition, the court noted:

…no degree of any treatment modality or therapy would have in the past or will in the future serve to alter the fundamental and overriding problems that have plagued her young life so as to make her a suitable candidate for the workforce. 

Based on a number of considerations, including history of average real wages, the judge concluded that Sarah would suffer loss of income in the amount of $1,881,846.

Past Extraordinary Care

Sarah’s parents claimed that, to the date of the trial, they had spent significant extraordinary time giving care and services for Sarah above and beyond what would have been expected from any parent in normal circumstances.

The court noted that Sarah’s problems from birth required “an evolving set of supervisory and assistive type care with self-regulation, hygiene, dressing, toileting, prompting, reminders, extraordinary supervision and attendances at medical and therapy appointments” and awarded $150,000 under this head of damages.

Damages for Future Care

The court accepted evidence that Sarah’s life expectancy would be 69 years of age. Based on this, information provided in a life care plan, and in-depth assessments carried out to ascertain Sarah’s abilities in various areas, the judge awarded the following in future care costs:

• $89,325for future speech-language therapy costs;
• $169,938 for physiotherapy services and assessments;
• $28,000for the orthotic equipment (including assessments);
• $3,745 for accessibility equipment (i.e. canes and walkers);
• $142,000 for occupational therapy;
• $35,000for behavioural therapy;
• $15,000 for a one-time educational assessment;
• $980 for a Central Auditory Processing Assessment;
• $85,000 for five years of day programming;
• $50,000for any other additional therapies;
• $43,540 for extraordinary care and supervision for Sarah between the ages of 9-11;
• $151,869 for extraordinary care and supervision for Sarah between the ages of 12-18;
• $67,200 for extraordinary care and supervision for Sarah between the ages of 18-19;
• $120,000 for extraordinary care and supervision for Sarah between the ages of 19-25;
• $1,635,500 for extraordinary care and supervision for Sarah between the ages of 25-69;
• $75,000 for home accessibility modifications.

Total damages awarded to Sarah and her family were $5,568,393 (including OHIP).

The hospital responded to the decision with a statement, saying “The Royal Victoria Regional Health Centre sincerely regrets the failings surrounding Sarah’s birth and unreservedly apologizes to the Butlers.”

Reaction from the Family

Echoing what other families in similar situations often say, Sarah’s parents told CTV News that they may not have learned the full story of what happened if they had not pursued legal action: “without taking them to court, we never would have found out the answers”.

Indeed, parents may often be left wondering how an otherwise healthy pregnancy went so wrong at birth, why their healthy newborn developed seizures or other issues, or why their baby developed fetal distress during labour and delivery. However, they often do not have the ability, resources, time or energy to investigate further. Oftentimes, the first time that our clients receive a definitive answer as to the cause of their child’s brain injury is following our medico-legal investigation with the help of our team of experts.

If you believe your child suffered an injury at birth that is now significantly impacting them, we can help. Contact the lawyers at Sommers Roth & Elmaleh to find out what options are available for you and your family. We have represented parents, children, and their families in a number of ground-breaking medical malpractice lawsuits and have obtained significant compensation for many individuals with cerebral palsy. Call us at 1-844-777-7372 or contact us online for a free, no obligation consultation.