Will the science of genetics play a greater role in birth injury lawsuits in the future? As the science of genetics continues to advance, it is sometimes suggested that a child’s birth injury may be caused by genetic abnormalities rather than any difficulties encountered during labour. In this article, Andrea and Paul examine the current medical understanding of the role of genetics in neurodevelopmental disorders such as cerebral palsy, and how Canadian courts have approached the defence of genetic predisposition in birth injury claims.

To win a medical malpractice law suit the plaintiff must prove two things:  that the health care providers did not meet the standard of care expected of them, and that the failure to meet the standard of care is what caused the plaintiff’s injuries.  This second element is called “causation.”  Causation is often the more difficult hurdle for the plaintiff to meet.  In the following article, Lindsay McGivern provides a description of how the courts view causation in complex medical malpractice claims.

Although paper medical records still exist, more and more clinics, offices and hospitals are moving to electronic records.  These electronic records in some cases are nothing more than digitized versions of what would normally appear in a patient’s paper chart.  In other cases, information from monitors such as blood pressure monitors or heart monitors may be recorded digitally and stored centrally in a database for the institution.   The following article discusses some of the issues associated with electronic medical records, including the use of audit trails and access logs to understand who has reviewed a record, and if changes were made to the record.

In order to succeed in a claim for mental injury due to negligence, a plaintiff must prove that the defendant breached the standard of care owed to the plaintiff, that the plaintiff sustained damage, and that the damage was caused by the defendant’s negligence. In this article, Andrea discusses a recent Supreme Court of Canada finding that a diagnosed psychiatric illness is not necessary to prove a mental injury claim.

Medical malpractice cases sometimes involve deeply personal issues involving the plaintiff’s behaviours and beliefs. As advocates it can be easy to downplay or even entirely overlook the client’s responsibility to protect themselves from harm. When you first meet a potential client and consider both the likelihood of success and the potential compensation for damages suffered, you must consider the potential for a contributory negligence defence, which can have a significant impact on the outcome of your case.

The law of adverse inference allows a court to presume that a court has not called a certain witness because that witness would not have helped the party’s case. In medical malpractice cases, an adverse inference is often sought against a plaintiff who fails to call his or her treating physician as a witness. This article discusses the factors a court will consider in determining whether to draw an adverse inference against a plaintiff in these circumstances.