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www.lawtimesnews.com 27 standards of care and had not applied excessive traction. He also said that it was reasonable for the doctor to have used supra-pubic pressure, i.e., pressure on the mother's abdomen above the navel in order to help dislodge the baby. In finding that standards of care were met in Naleaha's birth, Justice Michael Quigley of "In many med-mal cases, the plaintiff and defendant experts are simply drawing different inferences of causation or negligence from the same facts." Andrea Girones, Girones Law the Ontario Superior Court appeared to reject Dr. Menticoglou's suggestion that College guidelines for standard of care are meant, at least in part, to protect physicians. He suggested "miscommunication may have arisen in the commotion and chaos of the delivery room once Naleaha's shoulder dystocia was diagnosed, relating to when the mother should assist the obstetrician by pushing and when she should stop pushing. This is important in the context of . . . whether there could have been factors other than the alleged improperly applied pressure or excessive traction that could have caused or contributed to Naleaha's injury." As well, "[a] Plaintiffs' case that applies an outcome-based retrospective approach and attempts to work backward from the result in order to prove negligence is legally flawed and contrary to established principles." Charles Gluckstein, a partner at Gluckstein Lawyers in Toronto, found the case significant as "a lot of these cases don't get to court, and we don't get to hear about standard of care for birthing." As well, he says, "a couple of other things are unusual here. The judge inserted his own view of what he thought caused the injury [miscommunication], which was not given by any of the doctors. You get a sense that the judge is saying, 'You can't just sue the doctor because you don't like the outcome.'" The judge compared this case to another, Nessler et al. v. Colliton et al., 2008 ABQB 180, which made a similar complaint about a delivering doctor. That case of brachial plexus injury involved complete paralysis, but it was found that "the doctor did everything right," says Gluckstein. The lesson for plaintiffs' counsel is "you have to be very precise in stating what the breach of standard of care here is" in court, says Gluckstein, "and have your expert very strong on this point of view. BIRTH BRACHIAL PLEXUS INJURY BIRTH HYPOXIC ISCHEMIC ENCEPHALOPATHY Every day we deal with catastrophic birth injuries. BBP and BHIE are the focus of our medical negligence practice. We will investigate all such cases anywhere in Canada. Free of charge. Offices in Ottawa, Timmins, and Sudbury 1.866.701.5811 Contingency Fee, Referrals and Co-counsel arrangements accepted.