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Birth Injury

The question of medical negligence in British Columbia’s Cambridge affair

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As described in part one of this series, Drs. Sean and Rosemarie Cambridge, two foreign-trained physicians, provided medical care to hundreds of patients in Chilliwack, B.C., from 2011 to 2017, under a provisional medical licence issued by the College of Physicians and Surgeons of British Columbia.

In the fall of 2017, the Cambridge physicians’ medical licences were cancelled on the basis that they had failed to meet the requirements for continued registration and licensure. Specifically, they had failed to pass the first of two required examinations designed to evaluate the physicians’ skills and medical knowledge, notwithstanding several failed attempts and several deadline extensions required for personal reasons.

Cancellation of Licenses

The cancellation of the Cambridge physicians’ medical licences naturally leads many patients to question the care they received from these doctors, and whether any medical problems they suffered were caused by substandard care, or could have been avoided with appropriate treatment.

In considering a potential medical negligence claim, it is important to recognize that the Cambridge physicians do not get the benefit of being held to a lower standard of care on the basis that they were still in the process of qualifying. The standard of care expected of them is the same as the standard of care expected of any physician, which is that he or she use that reasonable degree of learning and skill ordinarily possessed by practitioners in similar communities in similar cases (Wilson v. Swanson [1956] S.C.R. 804; Robinson v. Sydenham District Hospital Corp. [2000] O.J.

Susanne Raab

No. 703).

If a physician holds him or herself out as a family physician, he or she is held to the same standard of care as all other family physicians, regardless of whether the licensure is provisional or full. This aspect of the law makes sense as it accords with the reasonable expectations of patients who expect any physician licensed to provide medical services in British Columbia to be competent to provide a safe level of care.

Potential Liability of the Physicians

It is, however, important to appreciate that the fact that these physicians did not satisfy the examination requirements is not evidence that they fell below the required standard of care in their treatment of any individual patient. In considering potential liability on the part of these physicians, it is, in fact, not even sufficient to prove that they fell below the standard of care. In order to succeed in a medical malpractice case, in addition to establishing a duty of care and breach of the standard of care, a plaintiff must prove, usually through expert evidence, that a specific breach of the standard of care was the legal and factual cause of the plaintiff’s injury or loss (Ter Neuzen v. Korn [1995] 3 S.C.R. 674).

Even if multiple breaches in the standard of care are proven, the most challenging part of any medical negligence case is establishing that one or more of these breaches of the standard of care caused or contributed to the injury or loss. This is most often where cases fail.

Proving Medical Malpractice

Proving causation in medical malpractices cases can be challenging because typically the plaintiff has pre-existing injuries or illnesses (the impetus for seeking the impugned medical treatment in the first place) and the precise mechanism of the injury is often unknown or alternatively explained by multiple contributing factors.

Further, advances in science can serve to muddy the waters rather than connect the dots between the breach of the standard of care and the injury or loss by adding to the proliferation of “known unknowns” or potential non-negligent causes of the injury or loss.

Indeed the difficulties in proving causation in medical malpractice cases is borne out by their dismal success rate. The statistics reveal that since 1996, the success rate of plaintiffs in medical malpractice trials has never exceeded 30 per cent.

The most recent annual report of the Canadian Medical Protective Association reveals that a mere 16 per cent of medical malpractice trials in Canada in 2016 were decided in the plaintiff’s favour.

While the statistics for settlements are somewhat more favourable to plaintiffs, they still fall in the minority.

For this reason, a cautious approach, informed by a thorough and comprehensive assessment of the case with the benefit of expert opinion, is required before any medical negligence case is commenced against a physician, even a physician whom the college has deemed to be not qualified to practise medicine.

This piece was originally posted in The Lawyers Daily. You can also read the PDF from our Publications page. 

Message from the President of the Cerebral Palsy Association of BC: Moving boldly forward, together

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People living with cerebral palsy are tenacious. This I know for sure. When they fall, they get back up, and try and try again, until they succeed. They do not let obstacles stand in their way, and they do not allow others to tell them what they can and cannot do. They move forward with courage and a sense of humour to soften the blows of failure along the way. It is only fair that the Board of the Cerebral Palsy Association of BC try to emulate this enviable courage and determination in steering the Association forward on behalf of its members.

You can read the rest on the Cerebral Palsy Association website.

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.

Supreme Court of Canada Win for Twelve-year old with Cerebral Palsy

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On Friday, May 24, 2013, the Supreme Court of Canada delivered a judgment that is of interest to judges and lawyers across the country, and has special significance for one BC family.

As a result of this decision, a child who suffered a significant brain injury as a result of medical negligence will obtain over $4 million in compensation to pay for the extensive therapy and support that he requires.

The Injury

Monica Cojocaru gave birth to her first child by ceasarean section. In the spring of 2001, when she was approaching the delivery of her second child, her physician recommended to her that she deliver the baby vaginally. A vaginal birth after a caesarean section is known as a VBAC delivery. Mrs. Cojocaru was not warned about the implications of this procedure with regard to the health of her baby should a uterine rupture occur.

During this delivery, her uterus did indeed rupture and the baby was extruded into the mother’s abdomen, depriving him of oxygen for over 20 minutes. As a result, Eric Cojocaru suffered a brain injury known as hypoxic ischemic encephalopathy. He was left with cerebral palsy, a severe and permanent condition that affects every aspect of his life. Described as a sweet-natured and likeable boy, Eric is not able to carry out the most basic daily activities and has memory problems and communication difficulties due to his brain injury.

The First Win at the BC Supreme Court

Eric and his mother sued the hospital, nurses and doctors for negligence causing his brain injury. The judgment from the BC Supreme Court was released in April 2009. The trial judge found the hospital, a nurse and three doctors liable in negligence and awarded Eric and his mother $4 million in damages.

Defence Appeals the Win

A substantial portion of the plaintiff’s submissions were copied into the judge’s decision, and the defence appealed the decision. The defence’s appeal centred primarily on the allegation that the reproduction of large portions of the plaintiff’s submissions showed that the trial judge had not given full and fair consideration to their position. The defence asked that the judgment be set aside and a new trial ordered.

In a judgment released in April 2011, the BC Court of Appeal did just that, stating that the judge’s reasons were “substantially a recitation of the [plaintiff’s] submissions” which, to their mind, was sufficient to displace the presumption of judicial integrity and impartiality.

This was a terrible loss for Eric and his mother, but they were not prepared to give up.

The Supreme Court of Canada

On November 13, 2013, Paul McGivern  argued Eric’s case in front of the Supreme Court of Canada. In his opening remarks Paul told the court that

“This case deals with a brain damaged child and his mother who are trying to deal with the ramifications of an issue which in many respects sits outside the legal disputes between the parties. …

The manner in which the judiciary expresses itself is something that my client has no control over. …

At the end of the day I need a judgment so this child can get the care that he needs.”

And that’s exactly what the Court did.

Victory for Eric

In a unanimous decision, the Court addressed the two major issues in the case.

They first addressed and clarified the law on judicial “copying.” This is a procedural matter of keen interest to judges and lawyers, but of interest to Eric and his mother only because it had the potential to send the case back for a new trial. The Supreme Court of Canada acknowledged that it would have been better if the trial judge had not copied extensively from the plaintiff’s submissions, but determined that was not reason enough to set aside the decision of the trial judge and require a new trial.

The Court then turned to the issue of liability and found one doctor negligent on the issue of informed consent. The Court found that the doctor did not provide Eric’s mother with the information she needed to make an informed decision about having a VBAC. The information which was provided fell short on two fronts. First, the doctor over-estimated the likelihood of a successful VBAC given Ms. Cojocaru’s particular situation. More importantly, the Court agreed with the trial judge’s finding that while the doctor discussed the statistical risks of a VBAC including the risk of uterine rupture, she didn’t explain what those statistics meant in terms of the risk to her life and the life of her baby if a uterine rupture were to occur.

The Supreme Court of Canada ordered that the doctor compensate Eric for his injuries. The original award of $4 million was reinstated. Over half of the award is for the costs of the care that Eric will need for the rest of his life to maximize his health and quality of life despite his permanent injuries. After years of struggling to manage the special challenges of a life with cerebral palsy, Eric and his mother will now be able to obtain the equipment, housing and care that Eric so desperately needs.

Read the Supreme Court of Canada judgment here

Read the BC Court of Appeal judgment here

Read the BC Supreme Court judgment here

Win for an injured infant at the Supreme Court of Canada

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Paul McGivern and Susanne Raab were among the team winning the hard-fought battle at the Supreme Court of Canada for an infant with cerebral palsy injured as a result of a failed attempt at a forceps delivery – April 4, 2013 (Full decision available here)

Paul McGivern  and Susanne Raab were among the four lawyers representing the plaintiff Cassidy Ediger in a birth trauma lawsuit. Cassidy was born on January 24, 1998. The circumstances of her birth were tragic: she was born “flat” (asphyxiated) and had to be resuscitated. She suffered a severe and permanent brain injury during her birth resulting in grave disabilities: spastic quadriplegia and cerebral palsy. As a result of her injuries, she is unable to speak, is tube-fed and uses a wheelchair. Her life expectancy has also been reduced to 38 years of age.

The Trial Decision

After years of investigation and preparation, the case went to trial in spring of 2008. The trial judge’s decision came out in 2009 finding the obstetrician negligent for using the forceps to assist the delivery without explaining the risks of the procedure to Cassidy’s mother when obtaining her consent to the procedure, and failing to ensure that immediate surgical backup was available to deliver Cassidy by cesarean section in the event that the attempt at forceps delivery fails. The placement of the forceps displaced Cassidy’s head allowing the umbilical cord to become compressed during the contractions and leading to bradycardia, a decrease in a baby’s heart rate, which deprived her brain of necessary oxygen. The trial judge awarded $3,224,000 in damages to Cassidy.

The BC Court of Appeal

The defence appealed the decision of the trial judge to the BC Court of Appeal, and the appeal was heard in the fall of 2010. The judgment of the Court of Appeal came out in spring of 2011 overturning the trial judge’s award of damages to Cassidy and dismissing her claim, essentially saying that the trial judge erred in her finding that the forceps procedure caused the bradycardia which led to Cassidy’s injuries.

The decision of the Supreme Court of Canada

Our lawyers did not abandon Cassidy’s claim, but appealed it to the Supreme Court of Canada, which is the final court of appeal in our country and only hears cases of national importance. Before the case is heard by our highest court, the appealing party needs to demonstrate that the case involves an issue of public importance or raises an important issue of law. Out of approximately 600 applications for leave to appeal filed each year, the Supreme Court only hears about 80 cases.

The Supreme Court of Canada granted leave to hear Cassidy’s case and heard the issues in the fall of 2012. In April of 2013, the Supreme Court restored the trial judge’s decision finding the obstetrician liable for Cassidy’s injuries. Cross-appeals about the amount of damages were referred back to the B.C. Court of Appeal for consideration.

Standard of Care

The Supreme Court of Canada upheld the trial judge’s finding that Dr. Johnston did not meet the standard of care. The Court stated at para. 53,

[53]…Dr. Johnston was required, before he initiated the forceps procedure, to take reasonable precautions that would have been responsive to the recognized risk of bradycardia and the injury that results if bradycardia persists for more than 10 minutes. Because it is undisputed that Dr. Johnston failed to take these precautions, which would have resulted in a faster delivery and likely prevented injury from bradycardia, the trial judge’s causation finding is sound.

The Supreme Court of Canada also found that the standard of care must be “responsive” to the risks involved.

Causation

The Supreme Court of Canada reaffirmed the legal test for causation enunciated in Snell v. Farrell, [1990] 2 S.C.R 311 at para. 36,

[36] The Court of Appeal’s reasons also suggest that it understood the trial judge to have improperly relied on Snell v. Farrell, [1990] 2 S.C.R 311, in order to draw an “inference of causation” (paras. 83-85). Snell stands for the proposition that the plaintiff in medical malpractice cases – as in any other case – assumes the burden of proving causation on a balance of the probabilities (ibid., at pp. 329-30). Sopinka J. observed that this standard of proof does not require scientific certainty (ibid., at p. 328); Clements, at para. 9. The trier of fact may, upon weighing the evidence, draw an inference against a defendant who does not introduce sufficient evidence contrary to that which supports the plaintiff’s theory of causation. In determining whether the defendant has introduced sufficient evidence, the trier of fact should take into account the relative position of each party to adduce evidence (Snell, at p. 330).

The Supreme Court of Canada concluded that in the face conflicting expert testimony, it was open to the trial judge to accept the plaintiff’s theory of causation over that of the defence having regard to all of the evidence:

[39] Faced with this conflicting expert testimony on the feasibility of the “displacement” theory and evidence of other potential causes, it was incumbent upon Holmes J. to weigh the evidence before her and determine whether Cassidy had proven causation on a balance of the probabilities. Holmes J. ultimately concluded that Cassidy did satisfy this burden for three reasons. First, as already described, Drs. Shone’s and Farquharson’s testimony regarding the physical effects and distortions of labour contractions, as well as the timing of the steps leading up to a cord compression, were consistent with what occurred here. Second, multiple experts testified that mid-level forceps procedures are potentially dangerous and carry the risk of acute cord compression. Third, the close proximity in time of the forceps attempt and the bradycardia supported the conclusion that the forceps attempt was connected to the cord compression. As a result, Holmes J. concluded that, although she could not be certain of the precise mechanics leading to cord compression, “[t]he only reasonable inference from all the evidence is that the mid-forceps attempt likely caused the cord compression that in turn caused the bradycardia” (para. 135).

[40] There was no palpable and overriding error in this conclusion. It was open to Holmes J. to accept Drs. Shone’s and Farquharson’s testimony regarding the displacement theory over Dr. Johnston’s testimony. It was also open to her to conclude that the close proximity in time between the forceps attempt and the bradycardia, combined with the well-recognized risk of bradycardia associated with mid-level forceps deliveries, supported a finding of causation in this case.

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