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Brain Damage

BC Brain Injury Association – Improving the lives of people living with brain injuries

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It is estimated that 50,000 Canadians suffer a traumatic brain injury each year – and the majority of these are young adults.

At Pacific Medical Law, we can assist people who have suffered as a result of a delayed diagnosis of a traumatic brain injury or a failure by a physician or other health care professional to diagnose an underlying medical condition such as an impending stroke.

Traumatic brain injury is the leading killer and disabler of Canadians under 40 years of age. Thanks to medical advances many people who would once have died from their injuries are able to survive; however, these individuals will require lifelong care because of the cognitive impairments and emotional effects of their injuries.

The BC Brain Injury Association (BCBIA) is a non-profit organization established in 1982 to serve the interests of people living with acquired brain injuries. Founded on the belief that every person with an acquired brain injury has the right to be considered as a full participating and impactful member of society, BCBIA’s mission is to be a leader in improving the lives of people who live with acquired brain injury in BC. Brainstreams.ca, the organization’s official website, provides continual access to information and support resources for the thousands of individuals in BC and beyond who experience brain injury each year. Visitors can also find news on medical breakthroughs, inspirational stories from survivors of brain injury, and upcoming events in the community.

For those interested in supporting this important cause, the BCBIA hosts an annual Cocktail Gala to help improve the lives of people living with acquired brain injuries by raising funds and awareness. This year’s Gala will take place on Thursday, February 5, 2015, and will feature mental health advocate Margaret Trudeau and brain injury awareness advocate Ellie Ennis as guest speakers. Tickets and more information are available at brainstreams.ca.

Paul McGivern spoke at the Birth Trauma Conference – June 7, 2013

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Paul McGivern  was an invited speaker and a panelist at the Birth Trauma Conference organized by CanLNC and held at the Vancouver Pan Pacific hotel on June 7, 2013. Susanne Raab and Natalia Ivolgina also participated in the conference. The conference featured top lawyers in the province practicing in birth trauma litigation and covered topics such as causes of cerebral palsy, standards of fetal monitoring, challenges in proving causation, and recent developments in the Supreme Court of Canada. Paul shared his knowledge in such areas as the use of experts in medical malpractice cases and recent pronouncements from the Supreme Court.

Paul highlighted the fact that birth trauma lawsuits are highly expert opinion driven which translates into enormous financial stakes for both the family and the law firm involved. Paul shared that in his practice, to minimize the risks he always investigates the case with the experts even before the lawsuit is commenced. Paul also discussed the types of experts usually required to build a winning case and how to work with the experts to ensure that their opinion is unbiased and that they would present as credible witnesses at trial.

Paul discussed the legal significance of Ediger and Cojocaru cases that he had recently won at the Supreme Court of Canada. In both of these cases the Court was critical of the physicians’ failure to properly inform the mothers of the risks involved in the treatment they recommended when obtaining their patients’ consent to the procedures. The Court essentially stated that it is not enough to simply inform the patients of the risks associated with a proposed treatment; it must be explained what these risks mean in terms of real-life consequences should they materialize.

In other words, it is not enough to simply say, “There is a risk of bradycardia” in the context of the facts in Ediger, for instance, where the physician decided to use a mid-level forceps procedure during the delivery. Instead, it must be explained that “there is a small risk of cord compression if I attempt this procedure. Cord compression may deprive your baby of oxygen. We would monitor for potential asphyxiation by paying attention to any signs of fetal bradycardia. However, in the event that cord compression occurs, I may not have enough time to organize an OR room and deliver the baby in time before a permanent brain injury occurs”. In Ediger, the physician did not warn the mother of any risks, and was found liable on the basis of failing to ensure that the emergency back-up was immediately available by calling the operating room before attempting the mid-forceps procedure which happened to be occupied with another surgery.

Similarly, in Cojocaru, the physician was found liable solely on the basis of her failure to bring the significance of the risks home to the mother when she recommended that she attempts vaginal delivery after having had a Cesarean section previously (commonly referred to as VBAC). The physician in Cojocaru only told the mother that there is a 1 in 200 risk of uterine rupture associated with a VBAC; she did not tell the mother that if this risk materializes there is a significant chance of her baby suffering permanent damage because there likely would not be enough time to recognize the signs of uterine rupture, arrange for an emergency Cesarean section and deliver the baby before a permanent brain injury is sustained.

Find full details of the conference here

Find full decision of Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 here

Find full decision of Ediger v. Johnston, 2013 SCC 18 here

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

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