Apr 07, 2022 in News --> Birth Injury

Large Award Justifies Complex and Lengthy Birth Injury Claim

We have repeatedly established on this blog that medical malpractice cases in Canada, including birth injury cases, can be extremely costly, time-consuming, and challenging for legal teams to successfully litigate. However, successful claims can have a massive impact on plaintiffs’ lives, as a recent Ontario Court of Appeal decision proves. In Cheung v. Samra, the plaintiffs sought compensation for life-altering injuries incurred by an infant. Here’s what happened, according to a March article from Canadian Lawyer:

The doctors in the case diagnosed the fetus with an intrauterine growth restriction at 35 weeks of pregnancy. This serious condition puts newborns at risk of a variety of grave complications, including asphyxia, cerebral palsy, developmental delays, and more. The fetus’s condition deteriorated, but despite ‘increasingly worrying test results,’ the mother was discharged from hospital in April 2006. 

She returned the next day suffering from vaginal bleeding. The doctors ordered an emergency C-section; the baby was born blue, pale, and limp. For 28 minutes it had almost no heartbeat and it did not breath for half an hour. The child was eventually resuscitated through chest compressions, intubation, ventilation, and the administration of cardiac arrest drugs.

The next month, the baby was discharged with instruction that she could be breastfed and fed by bottle. In July 2006, the baby suffered a seizure and was readmitted to hospital. She could no longer feed independently or control her head. Today, the child has ‘severe brain damage,’ hypotonic cerebral palsy and developmental delays. She cannot walk, talk, or eat on her own, and requires assistance with all activities. 

At trial, the jury found that the defendant physicians had breached the standard of care by failing to advance the delivery. It also found that the breach had caused the minor plaintiff’s injuries.

The defendants objected to the trial judge entering judgment in accordance with the jury verdict.  The trial judge ordered a new trial on the basis that the jury’s ‘particulars of causation … were insufficient and failed to explain the injury’s physiological mechanism.’ The plaintiffs disputed this decision, and the Divisional Court sided with the Superior Court Justice in a majority decision.

The Ontario Court of Appeal, however, set aside the Superior Court’s decision, finding that the jury provided brief answers only as directed, and that it did not provide ‘answers tainted by doubt or ambiguity.’ The Court awarded the plaintiffs $14.9 million in damages.

It took countless hours of legal work and numerous disputes and appeals over sixteen years, but the award the plaintiffs eventually received in Cheung v. Samra was likely worth the time and effort. With the compensation they were awarded, they will be able to provide excellent care for their daughter for years to come. 

If you or a member of your family has been injured in a medical setting, contact Neinstein Medical Malpractice Lawyers today to schedule a free, no-obligation consultation. Our experienced team has handled every manner of medical malpractice case, from birth injury to surgical error to misdiagnosis. Reach out today to learn more.

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