Last month in Innisfil, Ontario, a decade-long legal struggle ended when Justice John McCarthy awarded Sarah Butler and her family more than $5-million in compensation for the injuries she sustained during her birth at the Royal Victoria Hospital (RVH) in Barrie in 2007. The case “sheds light on the front-line response to serious medical error, and seems to illustrate why so few mistakes ever come to the surface, despite research estimating tens of thousands such errors occur yearly across Canada,” the National Post reports. It also emphasizes a concern that medical malpractice lawyers have been raising for years: that drawn-out personal injury and medical malpractice lawsuits can compound victims’ pain and suffering.

“It tells me that hospitals can and will do everything in their power to avoid paying compensation,” the Butlers’ lawyer, Hilik Elmaliah, told the Post. “It tells us we need to be very, very careful and vigilant when a poor outcome results from a medical treatment. We can’t rely on what was said by a health-care provider … to find out what really happened.”

The case

Sarah Butler’s mother, Jaye, arrived at RVH already in labour. She gave birth to Sarah’s twin brother, Luke, without incident. After Luke was born, nurses decided to rupture the membrane around the second twin to ease the birth. As the amniotic fluid drained, the child’s weight on the umbilical cord cut off oxygen to her brain.

The lack of oxygen caused lasting brain damage resulting in a range of disabilities, including cerebral palsy, poor co-ordination, speech defects, and cognitive deficits. Now 10, Sarah ‘is working at a Grade 1 level in her Grade 4 classroom,’ according to the Barrie Examiner. Her brother appears to be healthy.

The Butler family and their medical malpractice lawyers claimed that the nurses’ decision to prematurely rupture the membrane caused Sarah’s brain damage, but the hospital delivered conflicting information about the event. Sarah’s medical records indicated a spontaneous rupture, while the hospital’s next-day report on the event failed to mention the rupture at all. At the onset of the trial, the hospital finally admitted that although the rupture occurred, Sarah’s health problems were a result of inherited ADHD, not brain damage.


Justice McCarthy disagreed with the hospital’s account of events and awarded the Butler family $5.2-million in damages to cover Sarah’s loss of future income, the support she will need for the rest of her life, and a number of other issues.

The judge’s ruling will likely improve Sarah’s quality of life in the future, but will not reverse more than 10-years of denial by the hospital. Nor will it make up for the fact that Sarah has missed out on years of medical aid, an aspect of Canada’s legal system that personal injury and medical malpractice lawyers regularly decry.

“This whole situation evolved from an emergency they created when the babies were born,” Sarah’s father, Robert, told the Examiner. “The money’s nice, but it can’t fix what’s happened.”

If you or a member of your family has been affected by a birthing injury, contact the medical malpractice lawyers at Neinstein Personal Injury Lawyers’ Medical Malpractice Group today to find out how we can help.

Greg Neinstein