The first half of 2009 saw two judgments handed down from the Supreme Court of British Columbia, in which Nathan Smith Law now Pacific Medical Law successfully obtained multi-million dollar settlements on behalf of two infants who were injured at birth.

Ediger v Johnston $3.2 Million Judgment for Failure to Advise of Risks of Forceps Delivery
In the first of these, Cassidy Ediger (age eleven at the time of trial) pursued a claim against an obstetrician who had tried to perform a rotational mid-forceps delivery during her birth. In reaching her conclusion, Madam Justice Holmes found that the doctor had been negligent in attempting a potentially risky procedure without the immediate availability of surgical back-up, as advocated by the Society of Obstetricians and Gynaecologists of Canada. During the attempt, Cassidy suffered a severe bradycardia (low heart rate) which ultimately resulted in irreversible brain damage. The judge also held that the doctor had not obtained Mrs. Ediger’s informed consent before he proceeded with the forceps procedure.

Cassidy’s legal team was led by Paul McGivern (liability) and Vince Orchard of Borden Ladner Gervais (damages).

The court accepted Mr. Orchard’s submissions regarding the extent of Cassidy’s injuries and Madam Justice Holmes awarded over $3 million in damages.

The judgment of Madam Justice Holmes can be read here.

Cojocaru v Yue et al $4Million Judgment for Failure to Obtain Informed Consent

The second case involved a claim by Monica Cojocaru and her son Eric (age six at the time of trial) against the doctors and the nurses who had managed Ms. Cojocaru’s pregnancy and attended to Ms. Cojocaru during her labour. Ms. Cojocaru suffered a ruptured uterus, during which Eric sustained irreversible brain damage.

The case was originally developed by Linda Wong, Nathan Smith and Danny Shugarman on behalf of Ms. Cojacaru and Eric. At trial the case was argued by Paul McGivern (liability) and Danny Shugarman of Whitelaw Twining (damages).

Mr. Justice Groves held that the doctor who had treated Ms. Cojocaru during her pregnancy had negligently failed to obtain her informed consent to a VBAC (vaginal birth after caesarean), concluding that a reasonable woman in Ms. Cojocaru’s circumstances would not have consented to a VBAC had she been fully informed of the risks (one of which was uterine rupture and resultant catastrophic injury to her baby.) The judge also held the two doctors who had managed her labour were negligent, the first for failing to obtain her informed consent to an induction of labour with prostaglandin gel and the second, for leaving the hospital and failing to assess her, after she started to experience excruciating pain during her labour, despite the fact that she was considered a “high risk” patient.

The judge also concluded that one of the nurses who had been responsible for providing one-to-one care to Ms. Cojocaru had failed to recognize the early warning signs of impending uterine rupture, primarily because she had not been in the labour and delivery room as required.

The Court awarded Eric the maximum amount for pain and suffering allowed under the Supreme Court of Canada’s ruling on non-pecuniary damages and agreed with Mr. Shugarman’s submissions regarding the extent of Eric’s injuries, resulting in an award in excess of $4million.

The judgment of Mr. Justice Groves can be read here.