Accessing compensation is difficult for Ontario’s medical injury victims, as every medical malpractice lawyer knows and as demonstrated by the recent dismissal of a birthing injury case involving a brachial plexus injury. In Jones-Carter v. Warwaruk, the parents of Naleaha Jones-Carter alleged that the actions of Dr. Allan Warwaruk breached the appropriate standard of care and caused the injuries that left their daughter with a permanent disability. Law Times recently reported on the subject.

The Case

Naleaha was born in 2004 in Windsor, Ontario. During her delivery, her shoulder became stuck in her mother’s pelvic bone, an event known as shoulder dystocia. Dr. Warwaruk applied traction – pulled the child’s head – in order to remove her. The complex birth left Naleaha with a partial, permanent brachial plexus injury.

According to the American Society of Surgery of the Hand, the brachial plexus is “a group of nerves that come from the spinal cord in the neck and travel down the arm. These nerves control the muscles of the shoulder, elbow, wrist and hand, as well as provide feeling in the arm.” Some brachial plexus injuries are relatively minor and may heal completely; others are permanent and can cause significant disability.

Naleaha has only partial use of one of her arms. Her lawsuit and the expert witness hired by her medical malpractice lawyer alleged that Dr. Warwaruk breached the standard of care requiring obstetricians “to be as gentle as possible and to not persist in pulling on the baby,” according to Law Times. The defence expert witness countered that brachial plexus is not only caused by applying traction, and that Dr. Warwaruk had not applied excessive force.

Decision and Implications

 Ontario Superior Court Justice Michael Quigley sided with the defence, agreeing that the experienced obstetrician had not breached the standard of care. He dismissed the claim.

The decision laid bare what every medical malpractice lawyer in Canada understands: that securing compensation for victims of serious medical injuries is an uphill battle. In this case, the plaintiffs may not have been specific enough in identifying an error.

“You have to be very precise in stating what the breach of standard of care here is … and have your expert very strong on this point of view,” one Toronto-based lawyer told Law Times.

“In many med-mal cases, the plaintiff and defendant expert are simply drawing different inferences of causation or negligence from the same facts,” added another malpractice lawyer, from Ottawa. “Is this a good inference based on sound medical judgement and/or solid scientific literature? Or is it an inference not supported by the scientific/medical studies?”

Contact Neinstein Personal Injury Lawyers

 Neinstein’s medical malpractice group has extensive experience in all manner of medical malpractice claim, including those involving serious birthing injuries. If you or a member of your family has been affected by a medical error, contact Neinstein today to schedule a meeting with a seasoned medical malpractice lawyer. Our team will assess the viability of your claim and provide advice as you consider your legal options.

Greg Neinstein

Greg Neinstein, B.A. LLB., is the Managing Partner at Neinstein Personal Injury Lawyers LLP. His practice focuses on serious injury and complex insurance claims, including motor vehicle accidents, slip and fall injuries, long-term disability claims and insurance claims. Greg has extensive mediation and trial experience and has a reputation among his colleagues as a skillful negotiator.
Greg Neinstein