Pacific Medical Law

A founding member of BILA

Law, Justice And Compassion | Call Today

1-604-685-2361

Call
Contact
Blog

Cerebral Palsy

People with Disabilities Among Those Most at Risk from Covid-19

By

Public health and government officials are urging Canadians to practice social distancing. For some, social distancing could make the difference between life and death.

Andrew Gurza, a Toronto-based disability awareness consultant, has cerebral palsy. His condition could make him seriously vulnerable if he were to contract COVID-19. In an interview with CBC, Gurza, who uses a wheelchair for mobility, said that his lung function is impacted due to the fact that he is sitting down all the time. This makes him more vulnerable to complications from respiratory illnesses, such as COVID-19. Gurza indicated that in addition to the toll of the illness, he fears catching the illness at a time when the hospital staff is overwhelmed, especially if they need to manage someone with complex disability needs such as himself.

Gurza has taken steps to reduced risk and practicing social distancing as much as possible. He has cancelled all of his speaking engagements, and he is doing his best to reduce contact with his caregivers, who he relies on for many daily activities such as bathing and dressing.

Gurza asks the public to please be responsible. You never know if the person sitting next to you is vulnerable due to a visible or invisible disability. While contracting the virus may not be serious for one individual, it could have dire ramifications for someone else. He urges the government to let the public know who is going to be particularly affected: the elderly, the disabled, and the immunocompromised.

Staying positive at this time is important to Gurza. He suggests thinking of social distancing as a chance to take a break, and do things we may otherwise not have time for.

The goal of social distancing is to reduce transmission of the virus. It is transmitted when an infected person speaks, coughs, or sneezes. Droplets may land on surfaces in common spaces when someone coughs, and then be transmitted when someone touches the surface later.

Social distancing may be difficult or even impossible for some people with disabilities who may rely on close caregiver support for daily living tasks such as washing and dressing, and use shared services, such as public transportation. They also may have stamina and immune issues which can increase risk of catching the virus. Therefore, it is important for those who are able to reduce their contact with others to do so, in order to protect the vulnerable.

The full interview with Gurza as well as an interview with a public health expert can be found here: https://www.cbc.ca/radio/frontburner/when-social-distancing-is-a-matter-of-life-and-death-1.5499767

Canadian Adaptive Snowsports – Andrea Donaldson Volunteers

By

Andrea Donaldson of Pacific Medical Law recently received her Canadian Adaptive Snowsports (CADS) Level 1 certification, allowing her to teach skiing to people with disabilities.

CADS instructor training courses are held throughout Canada for people wishing to learn and improve their skills as instructors for people with disabilities. Level 1 consists of personal ski improvement and teaching progression, use of teaching aids and adaptive equipment (such as outriggers, tethers, and sit skis), basic safety procedures, and lesson format.

Andrea is excited to use her training and certification to volunteer this winter with Vancouver Adaptive Snow Sports (VASS), which runs ski and snowboarding programs for people with physical and cognitive disabilities at the local Vancouver mountains of Grouse, Cypress, and Seymour.

VASS is operated by volunteers who are dedicated to making the mountains accessible to all, regardless of age or disability. Volunteer positions are available on the mountain as a ski or snowboard instructors or assistants, or off the mountain in fundraising, marketing, or volunteer coordinating roles. Further information is available at www.vass.ca/volunteer.

This year’s session begins in late January 2020, and there are still a few spots left for students as well as space on the waitlists. Students must be at least 6 years old. If you or someone you know is living with a disability and interested in learning or improving their skills in skiing and snowboarding, more information is available at www.vass.ca, or by emailing [email protected].

Was your baby cooled immediately after birth?

By

Babies are cooled immediately after birth if they have hypoxic ischemic encephalopathy (HIE). HIE is a condition that occurs when an infant’s brain is deprived of oxygen. It is a significant cause of death and long-term disability in infants. The severity of the infant’s HIE determines his or her risk of cognitive impairment and disability.

Oxygen deprivation resulting in HIE typically occurs in the perinatal period – that is, just before, during or shortly after delivery. Potential causes of oxygen deprivation leading to HIE include problems with the umbilical cord, placental abruption, or uterine rupture.

Cooling Treatment for HIE

Cooling treatment – known as neonatal therapeutic hypothermia – is a relatively new option for treating HIE. It involves reducing the infant’s total body temperature by 2-3 degrees Celsius, resulting in modest hypothermia. The treatment works by reducing the brain’s use of energy, which slows disease progression and reduces the chances of the infant suffering from severe brain damage. Research suggests that therapeutic hypothermia is safe and provides long-term protection for the brain.

To meet the criteria for this treatment, infants must be at least 36 weeks’ gestation. The infant must be less than 6 hours old to start cooling treatment. After 6 hours of age, cooling does not provide the same level of protection. Infants may not be eligible for the treatment if they have certain congenital abnormalities or if they have a very low birth weight. Cooling is only used in very specific situations – the infant must have severe acidosis demonstrated by a low umbilical cord pH, abnormal blood gases or base deficit, and a complicated delivery and low Apgar scores, or have needed at least 10 minutes of help breathing. The infant must also show evidence of moderate to severe encephalopathy, demonstrated by a combination of signs and symptoms such as seizures, lethargy or coma, decreased or no activity, abnormal posture, decreased muscle tone, weak or absent reflexes and abnormal heart rate, pupils or breathing.

Because it can be difficult to assess some infants’ injuries, consultation with a neonatologist is sometimes necessary.

There are two main methods of cooling the infant – whole body cooling and selective head cooling. The type of cooling used depends on the hospital, but both methods have been shown to be safe and effective in bringing core body temperature down to therapeutic levels. Rewarming begins after 72 hours of cooling, and serial monitoring of the infant’s core temperature is important to prevent overheating.

Follow-Up for Cooled Infants

Cerebral palsy or other severe disability occurs in more than 30% of newborns affected by HIE and is most common in those who suffer severe encephalopathy. Because of the broad spectrum of developmental impairments found in infants who suffer from HIE, following affected infants throughout their development is important. Specialists such as neonatologists, physiotherapists, neurologists, occupational therapists, pediatricians, ophthalmologists, and audiologists working together to assess long-term outcomes is an important component of care for infants who have received therapeutic hypothermia.

Cerebral palsy may or may not be due to negligence on the part of the medical team attending the delivery. Our cerebral palsy attorney at Pacific Medical Law has a lengthy and established record of determining the cause of the infant’s cerebral palsy and, in appropriate cases, obtaining judgments and settlements on the child’s behalf.

HIE has Severe Consequences

HIE is a condition that can have severe consequences. Over the past decades, therapeutic hypothermia has emerged as an effective treatment option and has been shown to decrease severe long-term disability and death in infants with moderate to severe HIE. Further research is still needed to increase understanding of the progression of HIE, identify additional treatments, and develop more precise ways of predicting long-term outcomes. The use of therapeutic hypothermia can be expected to be more widely used as the process is perfected, with more infants benefiting from its use.

If your child received therapeutic hypothermia treatment and you have unanswered questions about what caused your baby’s HIE, contact our pediatric injury lawyers in Vancouver. We would be happy to discuss your concerns and outline the options available for your child.

Here is an infographic which shows the cooling process:


BILA Canada

Do Women Have a Right to Caesarean Section?

By

The issue of patients’ rights with respect to their medical decisions is always an important consideration, but one that does not often get a lot of attention. Our society, as a whole, has a great respect for the medical profession. Part of that respect is a recognition that physicians have more extensive and much deeper knowledge of medical issues and treatments than the general public. As a result, patients very frequently defer to their physicians when making medical decisions and will proceed with whichever treatment option the physician recommends. The consequence of this is that a patient’s rights to make contrary decisions are rarely considered in depth. The rights do exist, however, and physicians must abide by established rules when discussing medical treatments with their patients.

The law has long recognized individuals’ rights to self-determination. A core part of that right is a right to accept or refuse medical treatment. Battery is the “unprivileged and unconsented to invasion of one’s bodily security” (Reibl v Hughes, [1980] 2 SCR 880). The provision of medical treatment without consent is battery. So long as a patient has capacity, he or she must give consent (free from coercion or undue influence) to any medical treatment before it can be provided. A claim in battery will arise even if there is no subsequent injury. A plaintiff must simply prove that he or she did not consent to the treatment provided. Battery cases arising from medical care rarely appear among reported cases.

Consent in the medical malpractice context, however, extends beyond simple consent and battery. In medical cases, consent must also be “informed”. The theory behind the informed consent doctrine is that, in order for patients to make a meaningful decision about their medical options, the information imbalance between physicians and patients must be addressed. Physicians have an obligation to inform a patient of the nature of his or her condition, as well as the risks and benefits of the proposed treatment and alternatives (Brodeur v. Provincial Health Services Authority, 2016 BCSC 968). All material risks of a treatment op tion must be disclosed. This includes all risks that “a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to… in deciding whether or not to undergo the proposed therapy” (Hopp v. Lepp, 1980 CanLII 14 (SCC)). Material risks includes risks of complications that are likely to occur and risks of complications that are rare but have serious consequences (such as paralysis or death). In their discussions with patients about the risks and benefits of the proposed treatment, physicians must also disclose to their patients the alternative treatments.

The informed consent doctrine is part of the law of negligence. To succeed in an informed consent case, the plaintiff must prove that the defendant owed a duty of care to the plaintiff, that the defendant breached the standard of disclosure, that “but for” the failure to obtain informed consent a reasonable person in the patient’s position would not have gone ahead with the procedure/treatment, and that the procedure/treatment caused the plaintiff’s injury. The procedure/treatment itself need not have been performed negligently to succeed in a claim based on informed consent.

Physicians are expected to know exactly what risks, benefits and alternatives are relevant to the treatment in question and will discuss it all with their patients before recommending one option or another. In some circumstances, however, the line between what alternatives must be discussed/offered and what treatments are beyond the realm of required disclosure can become quite controversial. One great example of this is childbirth.

The Society of Obstetricians and Gynecologists of Canada (SOGC), the professional body that sets guidelines for practicing obstetricians, released a Committee Opinion statement last year making it clear that informed consent must be obtained in the obstetrical realm (No. 361 – Caesarean Delivery on Maternal Request July 2018, Volume 40, Issue 7, Pages 967-971, Eman Alsayegh, MD – Toronto, ON, Hayley Bos, MD – Victoria, BC, Kim Campbell, RM – Vancouver, BC & Jon Barrett, MD – Toronto, ON). Caesarean section births are on the rise, and twenty-eight percent of the babies born in Canada in 2017 were born via caesarean section (-p. 968). As more women opt for caesarean sections, there has been significant controversy over whether physicians are required to provide elective caesarean sections with no medical indications (-p. 968).

There are situations where vaginal delivery will carry a higher than usual risk and physicians will recommend a planned caesarean section. These can include positional issues with the baby, multiple pregnancies, infections or medical concerns with the mother, scars from previous abdominal surgeries and babies showing signs of distress. Under these circumstances, the physicians are expected to outline the risks and benefits of vaginal birth and the risks and benefits of caesarean section. The patient then has a choice (with a physician likely making a recommendation). When there are no medical indications for caesarean section over vaginal birth, some physicians believe they need not offer elective caesarean sections to their patients. Often the underlying rationale for this belief is that caesarean section, like any other surgery, carries risks (including infection, blood loss, cardiac arrest, respiratory issues for the baby, reactions to anesthetic). In addition, consideration must be given to utilizing limited resources for an elective procedure when those resources are simultaneously in demand from patients with medical issues on waitlists for corrective surgeries.

Vaginal birth is not without risk. Vaginal deliveries carry a higher risk of pelvic floor damage and postpartum hemorrhage in the mother. Also, there are risks to the baby from a variety of causes which, if not treated immediately, can lead to brain tissue death. Importantly, in addition to consideration of any risks, women have a fundamental right to control what happens to their bodies. The law requires physicians to discuss the proposed treatment, its risks and benefits and any reasonable alternatives with their patients. It does not matter, legally, if the physician disagrees with the patient’s choice or believes that a different treatment would be safer, cheaper, or more beneficial. If the patient’s choice is one of the reasonable treatment options, he or she is entitled to make that choice and the physician cannot impose his or her recommended treatment. Yet, somehow, obstetrics is an area in which this informed consent process has historically been lacking. In the past, it has been acceptable to refuse a patient’s request for a caesarean section if it was not, in the doctor’s opinion, medically necessary. This practice, however, is slowly changing (Stechyson, Natalie, ‘Pregnant Women Have The Right To An Elective C-Section To Avoid Vaginal Birth, Doctors Say’).

The obligation of the medical team (doctors, nurses, midwives) is to communicate to their patients, in an understandable way, the risks and benefits of both planned caesarean section (for non-medical reasons) and of attempted vaginal delivery. The discussion of risks should include both common risks (i.e. pain after delivery) and rarer, long term consequences (brain damage, death, complications in future pregnancies, etc.).

The SOGC points out that there are currently no studies comparing the safety to mother and baby of these two methods of delivery. Studies have been done on the safety of caesarean section versus vaginal delivery but this data includes the risks associated with all caesarean sections, including those done on an emergency basis for medical crises. Some of the information from existing studies can aid in the risk/benefit discussion, but the inclusion of emergency caesarean sections in the studies likely results in higher numbers of poor outcomes from caesarean sections. What is needed are studies which only include caesarean sections that were done at the mother’s choice, without medical reasons to choose caesarean section over vaginal delivery (-p. 698).

The SOGC is clear that the discussion about elective caesarean section should be focused on the individual patient. Medical professionals should not assume that all people place the same value on the mode of delivery. They have an obligation to provide up-to-date, evidence-based information and the risk/benefit discussion needs to take into account their patient’s values, beliefs and individual needs. The physician/midwife is required to explore the patient’s reasons for the request, fears and concerns. The discussion should be culturally appropriate and the physician should respect cultural differences (-p. 967, 970).

Without diminishing the importance of medical professionals offering medical recommendations for the appropriate mode of delivery, the SOGC mandates respect for the patient’s autonomy. The mode of delivery is not to be imposed by a physician. The patient must agree with the planned method of delivery without bias or coercion. Physicians are not obligated to perform a caesarean section if they are not comfortable (for medical, ethical or other reasons) with the decision to proceed with this method of delivery. If a patient requests a caesarean section, however, the physician must either perform it, refer the patient for a second opinion or transfer her care to another physician. Physicians may not simply refuse to perform a caesarean section and force the patient to have a vaginal delivery (-p. 971).

This article was originally published in the Verdict. You can read the PDF on our Publications page.

2019 Janna Epp Bursary Recipient

By

We are pleased to introduce Kira – our 2019 bursary recipient.

Kira 2019 Jana Epp Bursary Recipient

Kira is a sweet, smart and funny little girl who lives a beautiful life of love and inclusion.  She has recently started school and when her parents pick her up from school, her smile beams and she is overflowing with excitement.

Kira’s parents are determined to do everything they can to keep Kira healthy and to optimize her potential.  They plan to use these bursary funds to assist them in providing stem cell therapy for Kira to help create new neural pathways and to retrain her brain and body.

We are hopeful that this therapy will make a meaningful difference in the quality of Kira’s life.   

We have had the privilege of reading the stories of many exceptionally devoted and committed parents who need assistance in providing the specialized care, support, therapy and equipment their child needs and deserves to reach their full potential in life.  Pacific Medical Law will continue to honor Janna’s memory, and support these families in the years to come, by providing this bursary to one family every year.   We recognize, however, that this is not enough.  This bursary, while very helpful to the annual recipient, is a small drop in the bucket for the CP community.  We will continue to do what we can to help families with children living with CP in any way we can.

Individually, we will help families who have questions about the management of their pregnancy, labour and delivery, or the circumstances of the birth of their child.  We will assist these families in obtaining answers from their treating nurse or physician, or expert opinions on why their child suffered their birth injury and whether it could have been avoided. We will do so free of charge.   If the injury could have been avoided with appropriate and safe medical care, we will work to obtain fair compensation for your child to ensure they have optimal care, support and therapy during their lifetime.

At a community level, we remain committed to supporting the Cerebral Palsy Association of BC.  As the President of the Board of the Cerebral Palsy Association of BC, I am working closely with the board and the staff on an ambitious plan to expand our services and supports for people living with CP throughout the province.

There is always more we can do.  If there is a way we can help your family, please call us – we are here to help.

How Can We Help You?

Contact Us