Canadian Lawyer

August 2023

The most widely read magazine for Canadian lawyers

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Page 28 of 51 27 "These brachial plexus injuries have always been a hotly contested topic." He says a common defence for doctors is that the injuries occur from "maternal forces of nature," which means the contractions from a mother's uterus during birth cause the injury. The courts in both decisions found that contractions cannot cause an avulsion, where the nerve is completely detached from the spinal cord. "In both cases, you have two infants delivered vaginally, and both with a permanent brachial plexus injury," says Breslauer. "And in both cases, the defense of the CMPA was that this was not caused by the delivery by the doctors, but rather it happened before the children were delivered." "In neither case [has] the court accepted that as the cause of these injuries... I think this is a big shift in the brachial plexus landscape when it comes to causation." Rathan et al. v. Scheufler et al. was released on May 31 and dealt with Sankavi Rathan, born in 2009 in Mississauga, Ontario. During Sankavi's birth, her right shoulder lodged in her mother's uterus behind the pubic bone – a circumstance known as shoulder dystocia. There were two competing theories on the cause of Sankavi's injury. The plaintiff 's side said that the doctor "applied more than gentle traction" after dystocia had been identified. According to the doctor's side, Sankavi was injured by "propulsive, in-utero forces." Rathan was bolstered by the Supreme Court of Canada decision in Ward v. Armstrong, says Girones. Ward "clarified many causation issues that have really made things quite difficult for plaintiffs

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