Canadian Lawyer

August 2023

The most widely read magazine for Canadian lawyers

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Page 27 of 51

26 LEGAL REPORT MEDICAL MALPRACTICE Two Superior Court cases have moved the law forward in medical malpractice litigation involving brachial plexus injuries, say lawyers Shift in brachial plexus legal landscape TWO RECENT decisions may represent a shift in the legal landscape around medical malpractice cases involving brachial plexus birth injuries. Both cases involved infants who sustained permanent injuries during birth. The brachial plexus is a network of nerves connecting the spinal cord to the shoulder. In these injuries, the nerves are stretched or torn, and the result can be permanent underdevelopment or paralysis of the arm. Andrea Girones, a personal injury and medical malpractice lawyer, says that while brachial plexus birth injuries are the source of much litigation in the United States, they have mostly settled out of court in Canada until recently. But the Canadian Medical Protective Association (CMPA) has recently decided to litigate these cases more frequently, she says. Since 1976, there have been only three reported cases dealing with brachial plexus birth injuries in Canada, she says. And in all three, the plaintiff failed to prove the injury occurred due to the doctor's negligence. But Girones' case Rathan et al. v. Scheufler et al., 2023 ONSC 3232, and another from Alberta, Smartt v. Brar, 2023 ABKB, represent a reversal of the trend. " T he y 're both landmark decisions," says Steven Breslauer, plaintiff 's counsel in Smartt v. Brar. Breslauer is founding par tner at L aw Fifty One, a personal injury and medical malpractice litigation firm in Calgary. "Since 1976, there have been only three reported cases ... in Canada... In all three, the plaintiff failed to prove ... negligence" Andrea Girones, Girones Lawyers

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