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Kernicterus – Why all Babies should be screened for Jaundice

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At least half of babies develop jaundice in the first few days of their lives, and usually it is not a problem. However, in rare cases, if left undiagnosed and/or untreated, jaundice can lead to a condition called kernicterus (toxic deposits of bilirubin in the baby’s brain) that causes severe brain damage and life-long devastating disability. In all cases, this type of brain injury can be prevented by a simple, minimally-invasive and painless test and subsequent prompt treatment. Provinces, like British Columbia, that do not universally administer this test for hyperbilirubinemia should follow the example set by provinces that do, like Alberta, in order to practically eliminate the incidence of kernicterus and the resulting life-long disabilities in previously healthy babies.

What is Jaundice and when is it Dangerous?

Jaundice is a term used to describe the yellow color of the skin and whites of the eyes that happens when there is too much bilirubin produced in a baby’s body. Bilirubin is an orange-yellow pigment that is produced by the liver as a result of the breakdown of red blood cells. Babies’ levels of bilirubin are higher than those of adults for several reasons: 1) babies make more bilirubin because they have more red blood cells; 2) babies’ livers are still developing and they cannot remove as much bilirubin from the blood as adults’ livers; 3) because new babies do not yet stool (poo) within the first few hours of life, they reabsorb some bilirubin that in adults would be normally excreted through stool. All of these three causes are physiological, meaning they are “organic” to your baby’s maturation and adjustment to life outside the womb. Rarely, these causes result in extremely high levels of hyperbilirubinemia that can harm your baby.

In some cases, in addition to the above factors, babies can develop “pathological” jaundice as a result of blood group incompatibility (Rh or ABO). Sometimes, fetal red blood cells cross the placenta during pregnancy causing the mother’s blood cells to develop antibodies. When the antibodies cross over into fetal circulation, they attack the baby’s red blood cells and cause jaundice. The risk of this happening is highest during or at the time of birth. Hyperbilirubinemia occurs as a result of continuous hemolysis and failure of the newborn liver to handle the bilirubin load. This type of jaundice can develop on the first day of life and is more likely to develop into severe hyperbilirubinemia and cause a brain injury if left untreated.

What is Kernicterus?

Kernicterus refers to the yellow staining of the neurons and neuronal necrosis of the basal ganglia and brainstem nuclei (the structures within a brain) due to bilirubin crossing the blood barrier and depositing into these brain structures. It results in permanent and severe brain injury characterized by athetoid cerebral palsy with or without seizures, hearing deficits, developmental delay and cognitive impairments. Unlike many other causes of cerebral palsy, kernicterus is almost always preventable with proper testing and treatment.

What is the Test?

Transcutaneous bilirubin test is a simple minimally invasive and painless test that involves a health care provider placing a bilimeter (an instrument to measure the bilirubin levels) on a baby’s chest and reading the meter results. These results are then used (quire reliably) to predict the levels of bilirubin in the blood. If further testing is required, a simple blood test will measure the precise levels of bilirubin in your baby’s blood.

My Baby is not Visibly Jaundiced – Is the Test Still Necessary?

Visual assessment of jaundice is not a reliable method to either evaluate the levels of bilirubin in a baby’s blood or to predict hyperbilirubinemia.

What is the Treatment?

If your baby’s bilirubin levels are high, he or she will undergo phototherapy which helps with the breakdown of bilirubin. In rare cases, your baby may require a blood transfusion.

How can Kernicterus be prevented?

Kernicterus is almost always preventable. The Canadian Pediatric Society (“CPS”) recommends routine and universal testing for all infants regardless of whether they are visibly jaundiced, or not, in the first 72 hours of life, or at discharge from the hospital. In addition, the CPS recommends that any infant discharged before 24 hours of life be reviewed within 24 hours by someone with experience in the care of the newborn and access to testing and treatment facilities. Finally, the CPS recommends that any infant who is visibly jaundiced in the first 24 hours of life have their bilirubin levels assessed, because any neonatal jaundice that develops in the first 24 hours is usually pathological. If these CPS recommendations of universal testing are adopted by all health authorities across the country, cases of kernicterus can be virtually eliminated.

What is my misery worth? Compensation for Pain and Suffering in Canada

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More than 90% of the callers to our office are motivated by the fact that they have had to endure a great deal of pain and suffering as a result of what they believe was medical negligence. Within minutes of our conversation however, virtually all of those callers are disappointed to learn that in Canada, even with catastrophic injuries, the maximum amount that our courts will award for their misery is considerably less than they expect. So why are the awards for pain and suffering so low?

These sorts of awards are referred to as nonpecuniary damages[1] and it is no accident that they are low in Canada; it is in fact the result of deliberate decisions made by the Supreme Court of Canada. In a trilogy of cases in 1978[2], the Court addressed the issue of compensation for pain, disability and loss of quality and enjoyment of life, grappling with the reality that no amount of money can return a plaintiff to their previous state of good health and that it is difficult to come up with an objective method to measure the impact of a person’s loss. The problem that faced the Court was that the basic legal premise for awarding compensation for the damages was to restore the harmed person to the position they would have been in prior to the negligence of the defendant. The difficulty in awarding damages for nonpecuniary losses is that those losses are both difficult to measure and, often, impossible to adequately compensate. The Court held that extremely high awards for general damages would place an undue burden on society in terms of increasing insurance premiums and the social costs that can go along with that. As a result, the Supreme Court set a maximum of $100,000 for nonpecuniary damages. That number was tied to inflation so the maximum is now about $365,000, which is only available for catastrophic injuries, for example if a healthy and active person becomes paraplegic or quadriplegic, or suffers severe brain damage due to negligence. As a result, while it is not unusual for Pacific Medical Law to achieve settlements for our clients of several million dollars, these awards are primarily to compensate them for their lifelong cost of care, as well as loss of income arising from this injuries.

The Court came to their conclusion as a matter of public policy and noted that the primary concern when awarding compensation is to assure that the injured party has adequate care in the future. Given that such costs as the cost for care or income loss were not capped, the Court was concerned about the social burden of large non-pecuniary awards, recognizing that no amount of money can give back what was lost:

“The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. …

… There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution.”

So then, why are our expectations so far out of line? There really is no mystery here; almost all Canadians are exposed to a flood of American news stories many of which include reference to multi-million dollar awards for what seem to be the most innocuous degrees of pain and suffering. For instance, while our maximum for nonpecuniary damages is $365,000 today, in 2011, New York’s appellate courts awarded amounts of at least 10 times that amount (US$3,500,000) for pain and suffering in 10 cases[3]. But, even more interesting is the fact that a number of American states are enacting legislation to change all of that by putting limits on awards for pain and suffering. For example, New Hampshire has a limit of US$875,000 while the limit is US$350,000 in Maryland. In fact, Ohio, Idaho and California have capped pain and suffering damages at US$250,000[4]. All of which begs the question; was the Supreme Court of Canada actually ahead of its time?

[1] Non-pecuniary damages are damages, commonly called “pain and suffering” and also referred to “loss of enjoyment of life” or “general damages”, are an assessment of how much money is suitable to compensate for losses that cannot be more accurately calculated such as income or medical expenses.

[2] Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, the claimant was a 21 year-old young man who was rendered quadriplegic as a result of a traffic accident.

Arnold v. Teno, [1978] 2 S.C.R. 287, the plaintiff was a 4½ year-old girl who suffered severe brain injuries when she was hit by a car while she was enjoying an ice cream cone, new-bought from a curb-side vendor truck.

Thornton v. School Dist. No. 57 (Prince George), [1978] 2 S.C.R. 267, the plaintiff was 18 year-old lad who was rendered a quadriplegic from an accident during a physical education class.

[3] New York Injury Cases Blog, <http://www.newyorkinjurycasesblog.com/2012/01/articles/amputation-injuries/review-of-the-10-largest-pain-and-suffering-awards-approved-by-new-yorks-appellate-courts-in-2011>

[4] http://www.nolo.com/legal-encyclopedia/state-state-medical-malpractice-damages-caps.html

Removing Financial Barriers for Persons Receiving Disability Assistance

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The British Columbia government recently announced significant changes coming to disability assistance in the province.

Beginning Dec. 1, 2015, people in BC receiving disability assistance will be able to hold substantially more assets without impacting their eligibility for assistance. Individuals designated Persons with Disabilities (PWD) will soon be able to hold $100,000 in assets, and a couple where both partners have PWD designation will be able to hold $200,000 in assets. This is a significant increase from the current limits of $5,000 and $10,000, respectively. The higher asset limit means that money received through inheritance would not have to be put aside in a trust.

As well, people with disabilities will be able to receive cash gifts without affecting their eligibility for assistance. Under the current regime, individuals receiving assistance can only receive one-time gifts without their eligibility being affected. There will also no longer be an annual limit on payments people receiving assistance can receive from trusts. Currently, there is an $8,000 annual cap on trust payments for activities that promote independence.

Almost 96,000 people in BC are designated as PWD and receive assistance from the provincial government. These changes will give them greater independence and choice in enhancing their financial security, and also give their families, friends, and community groups an opportunity to provide additional support without impacting eligibility. The new policies are part of Accessibility 2024 – BC’s 10-year action plan to increase accessibility and remove barriers, with the goal of making BC the most progressive province in Canada for people with disabilities.

September is Disability Employment Month in BC

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Most people know that people with disabilities have to overcome challenges – challenges in finding accessible housing, using public transportation, and finding employment, to name just a few. At Pacific Medical Law, we are reminded of this every day as we work to help our clients with cerebral palsy or spinal cord injuries for example, people who, through no fault of their own, are unable to find employment in a traditional workplace.

September 1st marks the beginning of BC’s second annual Disability Employment Month. It’s a chance to recognize and celebrate the contribution people with disabilities bring to the workplace and recognize the many inclusive employers around the province.

Most progressive province for people with Disabilities

BC has set a goal to have the highest labour-market participation rates for people with disabilities of any province in Canada. This is one of the objectives of Accessibility 2024 – BC’s 10 year action plan to make BC the most progressive province in Canada for people with disabilities. The plan also includes strategies for improving the inclusiveness of government, and communities, as well as increasing accessible housing, transportation and employment, among other things.

A recent letter to the editor in the Vancouver Sun focused on inclusive hiring and highlights a number of reasons why inclusive hiring makes sense. For example:

  • A survey of supervisors with experience managing people with disabilities revealed employees with disabilities performed better than their co-workers in terms of punctuality, attendance, work quality, task consistency, and overall proficiency.
  • A Job Accommodation Network study found more than half of 1,100 employers of people with disabilities benefited from increased overall company morale and productivity. Employees with disabilities also bring a new perspective that can help make a business more welcoming to all.
  • Almost 90 per cent of consumers prefer companies that employ people with disabilities, according to a study cited in a Conference Board report.

Approximately 334,000 British Columbians aged 15 to 64 years self-identify as having a disability – that’s 15% of the population. According to the 2012 Canadian Survey on Disability, only 55% of persons with disabilities aged 15 to 64 years participate in the labour market, compared to 78% of persons without disabilities. The cost of workplace accommodations for a person with disability is $500 or less on average. People with disabilities represent an important employee talent pool that can add value to a workplace. Hiring people with disabilities just makes sense for so many reasons. Here are additional stats on disabilities.

To see the full letter to the editor go to: (It’s just smart business – Vancouver Sun Sept 1, 2015)

More details on the business case for hiring people with disabilities can be found at: https://news.gov.bc.ca/releases/2015SDSI0042-001401

For more information about Accessibility 2024, go to: http://www2.gov.bc.ca/gov/content/governments/about-the-bc-government/accessibility

Was your Child’s Cerebral Palsy Preventable? Unanswered Questions

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We are often asked by parents of children with cerebral palsy whether or not their child’s cerebral palsy may have been preventable with appropriate medical care. This is a question rarely addressed by the child’s treating physicians. Answering this question involves bringing together the medical opinions of a variety of carefully selected medical specialists who must each contribute their opinion on discrete areas of the medical care provided or the injury suffered by the child. Since this does not impact upon the medical treatment being provided to the child, this typically does not occur in the clinical setting. One exception is when the hospital performs a Quality Assurance Review in response to potential concerns about the quality of the medical care provided to a pregnant mother and/or her child; however, the results of these investigations are kept confidential and are not disclosed to the parents of the child with cerebral palsy.

This leaves many parents with unanswered questions. While they may receive fragments of information from various physicians, over the years an exhausted parent’s battle for answers quickly becomes displaced by the daily battle for resources such as therapy, support and equipment. The unanswered questions, however, continue to weigh on the parent’s mind, resurfacing from time to time, only to be buried again by weight of the day-to-day needs of their child.

We are frequently contacted by these parents – sometimes within weeks of their child’s birth, but often many years later. Parents always ask the same question: “Could my child’s injury have been prevented?”

It is understood that cerebral palsy can occur as a result of various medical conditions that are well-known and preventable with appropriate medical care. Some examples we are familiar with are as follows:

During Pregnancy :

  • Failure to diagnose and treat illness in the mother such as high blood pressure;
  • Failure to diagnose and treat symptoms such as maternal bleeding;
  • Failure to properly monitor the growth and development of the fetus; and
  • Failure to fully inform the mother of the risks associated with a VBAC (vaginal birth after caesarian section) delivery.

During Labour and Delivery :

  • Failure to properly monitor the fetal heart rate, and respond appropriately to signs of potential fetal distress;
  • Failure to properly administer oxytocin;
  • Failure to intervene to expedite the delivery of the baby when progress has slowed or stopped;
  • Failure to anticipate and properly manage shoulder dystocia; and
  • Failure to perform a caesarian section in a timely manner to avoid brain injury to the baby.

After Birth :

  • Failure to diagnose and properly treat certain conditions in the baby including hypoglycemia, jaundice and infection; and
  • Failure to properly administer medication, nutrition and/or fluid.

In these circumstances, if we are able to prove that a child’s cerebral palsy was preventable with appropriate medical care, the child is entitled to receive a significant financial settlement to allow the parents to provide for their child’s care, support and therapy, to help their child reach their full potential in life.

It is also understood that cerebral palsy can occur for reasons that are not (yet) understood by modern medicine and in circumstances in which it was not preventable. In these cases, knowing the child’s injury was nobody’s fault, can help relieve any anger or guilt parents may be feeling, and help them to put the circumstances of their child’s birth behind them, and to focus on their child’s future.

Either way, parents often feel it is better to know, rather than to continue to wonder.

If you are a parent of a child with cerebral palsy and have unanswered questions, please feel free to contact us. We will carefully review your concerns with you, conduct a detailed review of the medical records and consult with our experts (depending on the circumstances of each individual case), in order to answer your questions and determine if your child may be entitled to financial compensation.

We will review your case and answer your questions without charging you any fees for our investigation.

You may contact us at 604-685-2361 or toll free at 604-685-2361, or you may visit our website at www.pacificmedicallaw.ca

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