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Family Awarded $11.5 Million in Lawsuit Against Obstetrician

Posted in: Blog, Verdicts/Settlements // Written on behalf of Cuming & Gillespie
May 2, 2019

As we continue to blog about medical malpractice lawsuits in Canada, this blog will focus on birth injuries, which is one type of trauma that can result in a lawsuit (sometimes referred to as obstetrical malpractice). 

A recent jury verdict awarded the parents of a daughter who was left quadriplegic at birth $11.5 million in damages in their lawsuit against their obstetrician, Dr. Allan Jackiewicz, of Niagara Falls, Ontario.

WHAT IS OBSTETRICAL MALPRACTICE?

Birth trauma or obstetrical malpractice includes any damage an infant sustains just prior to or during the birthing process and delivery.  Some of these injuries may be unavoidable, however some injuries may be caused by preventable mistakes or negligence on the part of health care professionals. 

Incidents such as failure to provide adequate prenatal care, delay of delivery or in performing a caesarean section, delay of or failure to recognize warnings signs that the baby is in distress, misuse of labour inducing drugs, and the improper use of forceps are just a few examples of negligent actions that can occur.

The most common birth injuries stem from a disruption of blood flow to the baby’s brain, stroke or hemorrhage (bleeding).  This can occur before or during labour and during or after delivery of the infant. 

Birth trauma can result in life-long struggles to an infant.  In Canada, some of the most common types of birth injuries are:

  • Cerebral palsy;
  • Erb’s palsy (also known as Brachial Plexus Palsy);
  • Bleeding in the brain;
  • Collarbone fractures;
  • Injury to the brain cells from a lack of oxygen;
  • Brain swelling;
  • Torn facial nerve from forceps;
  • Skull fractures;
  • Mental retardation;
  • Epilepsy;
  • Autism;
  • Seizures; and
  • Stillbirths.

JURY AWARD OF $11.5 MILLION

Bernice Booth (“Booth”) and Michael Woods sued Dr. Allan Jackiewicz on behalf of their daughter, Kelsey, for failure to maintain the standard of care required of an obstetrician.   At birth, Kelsey suffered from brain damage which led to the diagnosis of cerebral palsy.

Kelsey and her twin, Karli, were diagnosed with twin-to-twin transfusion syndrome.  This occurs when twins share the placenta and an artery, and one twin receives a reduced blood flow and develops at a slower rate.

According to evidence at trial, Booth had an ultrasound on May 28, 1991, which confirmed that she had a twin pregnancy and there were no apparent abnormalities.  Booth became progressively uncomfortable over the next couple of weeks and returned to see Dr. Jackiewicz in July 1991.  She was instructed to return home and to lay on her left side. Three days following this examination, Booth went into premature labour. 

The twins were born prematurely at 27 weeks.  Kelsey is a quadriplegic and is dependent upon her parents for her care.  She is unable to walk, bathe, or care for herself. 

Karli, who was also a plaintiff in the lawsuit, was born with significant hearing loss.

According to expert evidence heard during the trial, a timely diagnosis, the performance of amniocentesis and the reduction of the volume of amniotic fluid could have prolonged the pregnancy, which would have resulted in a “normal outcome” for the twins. 

During the trial, Dr. Jackiewicz denied that he was negligent and provided evidence showing that he carried out his examinations and treatment with care, competence and diligence.

After a three week trial, the jury found Dr. Jackiewicz liable and awarded the family $11.5 million.

The jury did not hear evidence about the disciplinary hearing completed by the College of Physicians and Surgeons regarding Dr. Jackiewicz’s obstetrical practice.  Dr. Jackiewicz was once the chief of obstetrics and gynecology at Niagara Falls General Hospital.  Three experts concluded that Dr. Jackiewicz was “incompetent” and “failed to maintain the standard of practice of the profession”.  Furthermore, he was found “not amendable to rehabilitation as he was unwilling to take any suggestions”.   Following this disciplinary hearing, Dr. Jackiewicz agreed to let his medical licence expire and signed an undertaking that he would not reapply.

MEDICAL MALPRACTICE AS A CAUSE OF CEREBRAL PALSY

More than 60,000 Canadians are living with cerebral palsy.  Unfortunately, some of these individuals could have been prevented from living with the challenges they face if they had received proper medical care.

Cerebral palsy is defined as a disorder of movement, muscle tone or posture that is caused by damage that occurs to the developing brain, most often before birth.  It can also affect other body functions that involve motor skills and muscles, such as breathing, bladder and bowel control, eating, and talking.

Cerebral palsy is often caused by insufficient amounts of oxygen reaching the brain of the baby before birth.  This may have occurred due to an abnormally long labour, difficult delivery, umbilical cord positioning that cuts off oxygen to the baby’s brain or external pressure exerted on the baby’s brain for too long, amongst other causes. 

It is the responsibility of the hospital, attending physician and/or obstetrician to exercise precautions to prevent any complications during the pregnancy and delivery.  However, should the health professionals fail to meet the standard pregnancy and delivery care procedures, they could be liable for failing to provide the best medical health care for the baby.

At Cuming Gillespie Lawyers we are committed to helping you and your loved ones.  If your child has suffered an injury due to obstetrical malpractice, our experienced personal injury lawyers may be able to help you obtain financial compensation.  Contact our knowledgeable and experienced personal injury lawyers to learn what options are available at 403-571-0555 or online today.

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