Appeal court upholds $11-million award for birthing injuries

 

A huge trial court verdict for the family of a 19-year-old girl for injuries she sustained at birth has been upheld by Ontario's Court of Appeal. The girl's mother sued two family physicians who attended the birth, the Smiths Falls, Ontario hospital and several other medical practitioners.

The baby was born limp and white with a dark-blue head and face. Deprived of oxygen, the baby suffered permanent brain damage during birth and will never be able to take care of herself. She will require full-time care for the remainder of her life.

The baby was born in December 1983, but her mother did not commence the lawsuit until 1994, when the girl was 11 years old. It was only then that she discovered that medical negligence might have caused her daughter's injuries. The case took a further nine years before it was heard before the Ontario Superior Court of Justice.

After a 57-day trial, the judge ruled that the girl's injuries were the result of a lack of oxygen during birth, which was caused by excessive birth weight due to untreated gestational diabetes. The judge awarded the family $9.5 million. With costs and prejudgment interest, this award will exceed $11 million.

The defendants referred the verdict to the Ontario Court of Appeal, which upheld the trial court's decision. The family was awarded a further $255,000 for their cost of the appeal.

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Double quadriplegia road crash tragedy

 

A woman who was rendered quadriplegic by an auto accident has been awarded $3.2 million by the Supreme Court of B.C.

The 47-year-old woman was a passenger in a vehicle travelling on the Island Highway on Vancouver Island in October 2001. Her vehicle was struck by another vehicle and she suffered serious permanent injuries.

Her father, himself a quadriplegic, was also in the car and was killed in the accident. The father's caregiver and three of her children were in the car as well. The children suffered relatively minor injuries.

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Record award for medical class action

 

A $27.5-million settlement has been reached in a class action lawsuit on behalf of medical patients exposed to hepatitis B. Thousands of patients who attended one of six southern Ontario clinics run by Dr. Ronald Wilson were exposed to the potentially fatal liver disease between 1990 and 1996.

The exposure occurred during routine electroencephalogram (EEG) procedures, which involve needles placed in the scalp. Dr. Wilson's technologist, Nicholas Kyprianou, had a highly infectious case of Hepatitis B. The class action alleged that the technologist did not usually wear gloves and that the needles were improperly sterilized.

One thousand patients are likely infected and at least one person has died. Of the known cases, 40 are life-long carriers and will be entitled to at least $130,000 each. Up to 500 more patients are expected to come forward and will be eligible for $65,000 each.

Another 10,000 patients who presented for blood testing will receive $1,000, whether infected or not. The clinic's remaining patients will receive an automatic $100. Lawyers for the plaintiffs will receive 25 per cent of the settlement.

This is said to be the largest settlement for a medical malpractice claim in Canada.

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Dental surgery victim wins $5.1-million settlement

 

A massive anaesthetic overdose during surgery for impacted wisdom teeth in November 1994 left a Brampton, Ontario woman brain damaged and unable to move or take care of herself. The 31-year-old woman will require constant care for the rest of her life.

In March 1997, just one month before the case was due to go to trial, the court approved a $5.1 million structured settlement that could reach $17 million in value if the plaintiff lives to age 78.

The settlement will be paid by insurers for the anaesthetist. Originally, she sued the anaesthetist, the oral surgeon and the hospital, but the actions against the other defendants were dropped earlier.

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Appeal court upholds $3.8-million award for escaped mental patient

 

An Ontario Appeal Court ruling has upheld a lower court verdict that an Owen Sound, Ontario hospital and a physician must pay $3.8 million for catastrophic injuries suffered by a psychiatric patient in an August 1984 suicide attempt.

The patient, who had been assessed as a high suicide risk, escaped from the hospital by smashing through a window in a secure ward on the ground floor.

Shortly afterward, he deliberately ran in front of an automobile, sustaining very serious injuries, which required round-the-clock care.

In December 1996, the trial court ruled that the defendants were negligent on a number of grounds, including the use of easily breakable glass, their failure to ensure constant observation while the plaintiff posed a high suicide risk, failure to hold a timely intake conference and poor charting. The hospital and two physicians were ordered to pay damages to the plaintiff and his mother, who was his principal care-giver. Regrettably, the plaintiff died in 1997.

The hospital and two physicians appealed the 1996 verdict. The appeal court ruled that the second physician should share no part of the blame for the accident. The hospital will pay 75% of the award the physician must pay 25%. Pre- and post-judgement interest and legal fees have increased the cost of this claim to over $6.5 million.

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$2.2-million settlement for girl injured during birth

 

A Prince George girl who was born with cerebral palsy has been awarded a $2.2 million settlement in BC Supreme Court. The girls injury resulted from asphyxiation caused by severe restriction of the umbilical cord, The court found the obstetrician negligent in inducing labour before ensuring the baby's head was fixed against the mothers pelvis.

A concurrent action against the Chilliwack General Hospital was dismissed.

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$3.3-million settlement for mishandled birth

 

A brain-damaged boy has been awarded $3.3 million after medical staff allegedly mishandled his birth. The boy's mother was 3-1/2 weeks overdue when she arrived in labour at Margaret Cochenor Hospital in Red Lake, Ontario, in April 1988.

The fetus was aspirating fecal matter in the amniotic sac, which had no amniotic fluid. But the hospital had no ultrasound machine and attempts to monitor the fetal heartbeat were only intermittent.

The boy's parents said he incurred severe brain damage as a result of the botched birth, and they sued the hospital, two doctors and five nurses.

The court-approved settlement of $3.3 million could be worth up to $30 million if the boy lives to age 70.

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Couple wins $2.9-million for wrongful births

 

In an unusual lawsuit, parents of two boys who were born with a rare congenital condition have won substantial damages from their physicians. They argued successfully that the doctors failed to test for the congenital condition and did not offer the parents enough information about the condition. The jury agreed that had the parents been sufficiently informed, they would never have conceived or they might have chosen to abort one or both of the babies. The court awarded the couple $2,918,965 in damages.

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Brain-damaged in surgery, four-year-old girl awarded structured settlement

 

In April, the Vancouver Sun reported on a court-approved projected $15 million settlement to a 16-year-old Winnipeg girl. Born with a congenital heart defect, the girl underwent corrective surgery in May of 1983, when she was four years old, and suffered brain damage following the surgery.

The judge found two doctors liable for mistakes they made before and during the heart operation, but he absolved the hospital and other staff of any blame. The girl's parents commenced the action against the doctors and hospital almost 10 years ago.

"She's a lovely girl, but she has the mental capacity of a nine-year old," said the girl's lawyer. She'll always require supervision and care. She'll not be able to live independently."

To pay for the life-long care the girl will need, the court approved a settlement that could total more than $15 million if she lives to be 80.

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Medical malpractice — serious brain damage received at birth

 

An obstetrician has been ordered to pay a huge structured settlement, potentially totalling $12 million in compensation. The doctor's failure to perform a Caesarean section on a woman caused her baby to suffer brain and arm injuries in July 1991.

During birth, the child's body was stuck in the birth canal for about 15 minutes, cutting off some of the oxygen supply to his brain. The doctor then used such force to extract the baby that it tore the nerves that control the child's left arm.

The family's lawyer argued that the boy's arm no longer functions at all, and the child is of below average intelligence as a result of his brain injury.

The boy will not start to receive compensation until he is 18 years old, in order to conserve the award. Compensation will begin at the rate of $40,000 a year, rising by instalments to $340,000 a year by age 79, which is his expected life span.

We estimate that this settlement cost the insurer more than $3.5 million for the annuity part of the structured settlement. With defence expenses and other up-front settlement elements, the court-ordered settlement will probably cost nearly $5 million.

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Teenager wins $2.9-million award for surgery malpractice

 

A 15-year-old suffered catastrophic brain injury when she was left unattended while recovering from the effects of anaesthetics at Victoria General Hospital. She had been admitted for a minor surgical procedure in February 2001 — a laparoscopy to investigate abdominal pain. Attending nurses didn't notice that she had gone into cardiac arrest. Her brain was starved of oxygen for several minutes and suffered permanent damage.

The civil trial was due to commence in October 2004. At a preliminary hearing, an attending nurse was ordered to produce notes she had made the day after the injuries occurred. The defendants had argued that the notes were privileged and should not be included in the evidence. Shortly after the hearing, the young woman's family secured a pre-trial settlement for $2.9 million.

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Appeal court upholds $2.3-million award for misdiagnosed tumour

 

The Saskatchewan Court of Appeal has upheld a $2.3-million award to a woman who was wrongly diagnosed and treated for terminal brain cancer.

When the woman was examined in 1994, the defendant, a general surgical pathologist, diagnosed a malignant brain tumour. The patient began radiation treatment, during which she took 35 steroid pills a day.

She experienced frequent seizures brought on by the difficult treatment and suffered permanent mental and emotional incapacity. She became desperately unhappy and had no enjoyment from life or hope of getting better.

When she did not improve, she sought a second opinion from a neurosurgeon, who concluded that the tumour was benign and operable.

The court found that the woman went from being a relatively healthy, successful 26-year-old before the misdiagnosis to someone with significant cognitive deficits who could no longer live independently and required almost one-to-one care.

With legal expenses and pre- and post-judgment interest, this award will likely exceed $4.5 million.

This is thought to be the highest ever award for medical malpractice in Saskatchewan.

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Wife wins $667,000 in damages for HIV case

 

An Australian woman has successfully sued two doctors who failed to warn her that her husband was HIV-positive.

The New South Wales state supreme court awarded the 28-year-old woman, who has now contracted the disease, A$727,000 (Cdn$667,000) in damages.

The court backed the woman's claim that doctors should not have assumed that her partner would tell her about his positive test.

The woman and her husband-to-be, who was in Australia on a visitor's visa, underwent tests for sexually transmitted infections and HIV in November 1998.

All her tests were negative but her fiancé tested positive for HIV and hepatitis B.

The couple were not told each other's results and they subsequently married and had unprotected sex.

The woman told the court that she believed both tests were negative. She said Sydney doctors Nicholas Harvey and King Weng Chen should have warned her of her fiancé's condition. The doctors declined to give her his results. Then, in what the judge said was "despicable conduct," her husband-to-be deceived her by showing her a doctored lab result indicating that he was negative. She only discovered his positive status when she found the true laboratory report 15 months later—shortly before the birth of her child.

The court ruled that the two doctors should have warned the woman's fiancé that he would be breaking the law if he did not tell her he had HIV.

"Had he been asked whether he proposed to tell his future wife of his condition and been reminded that if he had sexual intercourse with her without telling her of it, he was committing an offence, he would, I infer, have said he would tell her," the judge said.

The woman's lawyer said his client was happy with the judge's decision and relieved that the case was over.

"Of course, she has indicated that no amount of money is going to replace what she has lost, but she feels the judgment vindicated her and she's pleased that she had the nerve to take on the medical profession in a case like this," he said.

The Australian Medical Association is examining the ruling in light of concerns that it could have major implications for patient confidentiality.

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Girl wins $11-million for birthing injuries

 

The family of a 19-year-old girl has won a huge award for damages for injuries she sustained at birth.

The girl's mother sued two family physicians who attended the birth; the Smith Falls, Ontario hospital; and several other medical practitioners.

The baby was born limp and white with a dark blue head and face. Deprived of oxygen, she suffered permanent brain damage during birth. She will never be able to take care of herself and will require full-time care for the rest of her life.

The baby was born in December 1983, but her mother did not commence the lawsuit until 1994, when the girl was 11 years old. It was only then that she discovered that medical negligence might have caused her daughter's injuries. The case took a further nine years before it was heard before the Ontario Superior Court of Justice.

After a 57-day trial, the judge ruled that the girl's injuries were caused by a lack of oxygen during birthing, the result of excessive birth weight caused by untreated gestational diabetes. The judge awarded the family $9.5 million. With costs and prejudgment interest, this award will exceed $11 million, but the defendants are likely to appeal.

U.K. court awards record damages to disabled dancer

 

A professional ballroom dancer who suffered severe brain damage during childbirth has won a record award for damages.

Kerstin Parkin, 34, will receive £7 million (Cdn$15.96 million) plus £250,000 (Cdn$570,000) annually for the rest of her life after a series of medical blunders in November 1996. This is the U.K.'s largest-ever award for damages in a medical malpractice claim.

The High Court heard that Parkin was left brain-damaged after having a heart attack while in labour with her first child. Staff at the Farnborough Hospital in Kent failed to take basic steps to prevent injury. The cardiac crash team were unable to reach her because they did not know the security code to get into the ward.

The compensation reflects the actual cost of providing the care, therapy and equipment that Parkin will need for the rest of her life — agreed at another 50 years.

Along with her husband, Mark, Parkin was among the world's best Latin American dancers, but now she depends on around-the-clock care and a range of different and intensive therapies. The only voluntary movement she has is the ability to move her head and eyes slightly.

The hospital admitted liability for her injuries at a High Court hearing in February 1999. They initially argued that Parkin should live in a nursing home, but finally conceded that she should be cared for at her Surrey home, where she has thrived for the past two years.

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Woman wins $3.5-million for cancer diagnosis error

 

A Regina, Saskatchewan woman who was admitted to hospital in October 1994 has won a substantial damages award for the consequences she suffered as a result of a brain cancer misdiagnosis by a staff pathologist.

After six months of radiation and steroid treatment, the woman sought a second opinion. This time the diagnosis was a benign growth in the brain that could be removed by surgery.

The woman suffered badly from the radiation and steroid treatment and her condition did not improve after the surgery.

Her post-operative recovery was complicated by seizures, and her physical and mental condition continued to deteriorate. Since December 2000, she has been living in a lodge for brain-damaged people and requires one-to-one care.

The court concluded that the adverse reaction to the treatment resulted from the misdiagnosis by the pathologist and that the surgical procedure would likely have been more successful if it were not for the six month delay.

The court set damages at $2,359,000. With prejudgment interest and legal expenses, we estimate that this case will cost more than $3.5 million.

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Reader's Digest grandma helps win $3.3-million from family doctor

 

The family of an eight-year-old girl has won a $3.3-million award for damages from their family doctor. The child contracted herpes simplex shortly after her birth in April 1993, leaving her with serious and permanent disabilities.

The girl's grandmother, an avid reader of Reader's Digest, happened to see an article in the magazine about Dr. Stephen Sacks, a world-renowned expert on the herpes simplex virus. Dr. Sacks agreed to examine the child and concluded that the family doctor's treatment had fallen short of the appropriate medical standard.

The baby's mother suffered with the disease during pregnancy, but the infant appeared to be healthy and normal until a week or two after she was born, when she exhibited a cluster of blisters on the crown of her head as well as other symptoms. The family's doctor, Richard Hay, prescribed a topical cream for the herpes blisters, but the baby experienced repeated outbreaks. The virus progressed to attack her central nervous system.

The child is now quadriplegic with severe neurological, visual and auditory impairment. She is totally reliant on her mother and grandmother, who struggle to provide care for her. They sued the family doctor for damages on the child's behalf.

Dr. Sacks and other medical experts for the family testified that if the defendant doctor had chosen a widely accepted treatment for newborns with herpes symptoms, the child would probably have recovered with no neurological damage.

The girl was awarded $200,000 in damages, $1.5 million for the cost of future care and $167,000 for her mother and grandmother for her care since birth. An additional $1.5 million was negotiated outside the court for medical equipment she will need over her lifetime, including a specially built house, for a total of $3,367,000 plus defence expenses.

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Wrong diagnosis costs hospital $2-million

 

A St. John's man has been awarded $2 million by the Newfoundland Appeal Court.

In May 1989, the then 42-year- old plaintiff was rushed to hospital complaining of chest pains. He was hooked up to an electrocardiogram, but a hospital resident told him he was probably experiencing stomach trouble. A cardiologist ordered some more tests but he did not view the results of the tests until several days later.

Cardiologists who testified at the trial agreed that the ECO indicated cardiac distress. The patient should have been given medication to prevent a heart attack. Had he received prompt treatment, he would most likely have left the hospital without any damage to his heart. This award is one of the largest in Newfoundland's history.

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Clinic must pay $724,500 award for patient's car accident

 

A Halifax, N.S. abortion clinic has been ordered to pay $724,500 for injuries incurred by a patient.

After she left the clinic in March 1993, the patient sustained serious injuries in a car accident.

The clinic admitted that it was common for patients to feel faint following the procedure, so they advised patients not to drive home. Even though the patient was a registered nurse and might be expected to have a better medical knowledge than other patients, the court held the clinic solely liable for the injuries she sustained in the accident.

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Doctors negligent in child's birth must pay $6-million to family

 

The family of a seven-year-old boy has been awarded close to $6 million in a malpractice suit against two Toronto doctors.

After a 110-day trial, Dr. Jeremy Wong and Dr. John Provatopoulos were found negligent in their handling of a premature birth at Toronto's Wellesley Hospital in March 1991.

The child is now quadriplegic and suffers from severe brain damage, cerebral palsy and blindness. The judge concluded that the boy will always be dependent on others for his needs and well-being, and despite his illnesses, will likely live to age 45. The damage award included annual payments of up to $142,139 for future care and $123,379 for lost income.

Dr. Wong, as the principal obstetrician, was ordered to pay 75 per cent of the damages. Dr. Provatopoulos is responsible for the remaining 25 per cent.

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Patient had no heart disease&emdash;cardiologist must pay $742,000

 

A Sudbury, Ontario man has been awarded damages of $742,250 from a cardiologist who incorrectly diagnosed him as having a fatal heart disease. As a result of the diagnosis, the plaintiff, who was in his mid-40s, quit his job and suffered significant loss of income. Several years later, another doctor attributed his chest and abdominal discomfort to gall bladder problems.

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Brain-damaged at birth, girl wins multi-million dollar secret settlement

 

A 12-year-old Vancouver, B.C. girl has won a structured settlement worth an estimated $7 million for catastrophic injuries she sustained at birth.

In December 1985, the infant plaintiff's natural mother attended an abortion clinic in Washington State. Three days later, she was admitted to a hospital in Vancouver suffering with complications from an incomplete abortion.

The hospital scheduled a "dilation and curettage" procedure to remove what remained in the womb. During the procedure, the mother gave birth to a two-pound baby, who cried immediately, confirming a live delivery. But the baby did not receive oxygen and other suitable life support for almost 40 minutes. As a result, the child suffered severe cerebral palsy, quadriplegia and other developmental injuries.

The child now lives with her adoptive mother, who has also adopted four other children with head-related or mental disabilities.

A lawsuit was commenced against the hospital and the attending physician and nursing staff. In June 1998, just a few days before the trial was to start, the parties agreed to settle the case privately. They declined to disclose the amount of the settlement, but the plaintiff's statement of claim sought more than $12 million in damages.

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Doctors, hospital to pay $3.5-million for boy brain damaged at birth

 

A 17-year-old boy's family has won a court judgment worth more than $3.5 million in a legal action against the hospital where he was born.

In July 1981, the boy's mother admitted herself to a hospital in Listowel, Ontario. The admitting nurse recognized that the woman was in distress and called the obstetrician, but the patient was left unattended for almost two hours, and the baby was born without further medical attention.

When the nurse came back, she found the baby lying between the mother's legs. The baby was unconscious and had stopped breathing. The baby was revived, but loss of oxygen had caused irreversible brain damage, which resulted in serious cognitive, intellectual and motor handicaps.

in addition to an annuity to pay the annual cost of future care, the boy was awarded $250,000 in general damages and $285,000 in loss of future income. Under Ontario's Family Law Reform Act, his parents and siblings will receive about $150,000. The Ontario Health Insurance Program was awarded $25,500, and Ontario's Ministry of Social Services received $500,134. With interest and legal fees, we estimate that this claim will cost more than $4 million.

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Paralysed during surgery, Quebec City woman wins $3-million award

 

A 23-year-old Quebec City woman went into hospital for routine gall-bladder surgery in February 1976. She emerged paralysed and unable to speak.

This fall, the Quebec Court of Appeal upheld a 1995 Quebec Superior Court decision, which ordered the surgeon to pay the patient $1.9 million in damages. The appeal court ruling also increased the award by $175,000. With interest, the judgement will exceed $3 million.

The court found no fault with the surgeon's technique; however the patient suffered a blood clot, likely provoked by taking birth control pills prior to the surgery. The court ruled that the doctor underestimated the risk of surgery. A doctor must keep abreast of medical news so he can properly inform patients of risk. In 1975, a bulletin had been sent to Canadian doctors warning them to tell patients to cease taking birth control pills before elective surgery.

This may be the largest injury award ever handed down by a Quebec court. More than 21 years passed from the date of injury to this appeal verdict, so this may also be Quebec's longest litigated injury case.

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