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FEATURE 26 www.lawtimesnews.com Appeal dismissed in brachial plexus injury case Plaintiff-side counsel, experts must be precise in defining breach of standard of care and in challenging inferences THE RECENT dismissal of a claim for permanent brachial plexus injury that occurred at birth provides "a real lesson on how to handle causation in a medical malpractice case," says Ottawa personal injury lawyer Andrea Girones. In Jones-Carter v. Warwaruk, 2019 ONSC 1965, the parents of a girl who had been permanently injured at birth lost their suit on her behalf against the obstetrician and the birthing hospital, when the judge decided that the doctor's actions during the girl's delivery had not violated the established standard of care. In this case, the facts were that Naleaha Jones-Carter, born in 2004 in Windsor, Ont., sustained a brachial plexus injury during her birth. The brachial plexus is a network of nerves that extends from the spinal cord, through the neck, over the first rib and into the armpit. Damage to the brachial plexus may occur at birth, when a baby's shoulder gets stuck in the mother's pelvic bone (known as shoulder dystocia) and a doctor pulls the baby's head (applying traction) in order to remove the baby from its mother. A resultant brachial plexus injury may be temporary or permanent, partial or complete. In Naleaha's case, the injury was partial (she will never have full use or development of her left arm) and permanent. Girones says her firm, Girones Lawyers in Toronto, has handled 20 to 25 such cases of brachial plexus injury resulting from shoulder dystocia during birth. "This is common; there's a temporary and a permanent" injury, Girones explains. "The baby's neck can stretch a little. If a nerve has not been disrupted, it can heal. It's only the ones that are more serious, that don't heal, that we deal with." In Naleaha's case, the injury was severe enough as to leave her with only partial use of one arm. The defence inferred that brachial plexus injury could be caused by other things, and its expert testified that it was not always caused by traction, says Girones. "A plaintiff is allowed to make inferences from facts, but the defence will also infer the opposite: no causation." At trial, the experts for the plaintiffs and the defence disagreed over what the standard of care should be and whether the extensive scientific literature adduced was authoritative and what conclusions could be drawn from it. The medical literature shows that by far the most common cause of brachial plexus injury is traction, says Girones. "There are random other causes, but they're very rare, relating to a defect of the fetus," for example. The plaintiffs' expert, Savas Menticoglou, an obstetrician and gynecologist, gave the opinion that there is a tendency for doctors and obstetricians to pull too hard on the baby's head when shoulder dystocia presents itself and that that is the direct cause of brachial plexus injuries in newborn infants. He also challenged other delivery practices, such as the method for performing certain manoeuvres to dislodge the baby's shoulder and found that "the standard of care required the obstetrician to be as gentle as possible and to not persist in pulling on the baby." On cross-examination, he agreed that the only concern was with the claimed use of excessive traction by the delivering doctor, Allan Warwaruk, a senior obstetrician with almost 40 years of practice experience. The defence expert, Jonathan Barrett, an obstetrician specializing in fetal high risk, gave his opinion that Dr. Warwaruk had met the "You have to be very precise [in court] in stating what the breach of standard of care here is." Charles Gluckstein, Gluckstein Lawyers FOCUS ON MEDICAL MALPRACTICE