Mar 03, 2022 in News --> Birth Injury

Nova Scotia Supreme Court Decision Highlights Risks and Benefits of Medical Malpractice Claims

In a recent decision, Nova Scotia Supreme Court Chief Justice Deborah Smith wrote that medical malpractice litigation is “fraught with risk,” according to newspaper publisher SaltWire. The assertion was included in her decision on a medical malpractice settlement proposal involving a nine-year-old boy with cerebral palsy and several defendants, including five doctors and the IWK Health Centre in Halifax.

Justice Smith noted risks to both plaintiffs and medical malpractice lawyers, including reliance on expert testimony and the possibility of losing money. However, the case also highlighted some of the potential benefits of birth injury claims, particularly those involving serious injuries.

The plaintiff in the case was nine-year-old Jayden Bailey, who was born at IWK in January 2013; the lawsuit was initiated by his mother, Jessica Bailey. The plaintiffs and their medical malpractice lawyers alleged that several complications were caused by negligence during Jayden’s birth, including birth asphyxia and intraventricular hemorrhage. 

“In particular,” Justice Smith wrote, “the plaintiffs allege that the defendants made critical mistakes by choosing not to intervene in the face of signs of placental abruption and fetal distress.”

Jayden suffered a brain injury because of the complications, leaving him with cerebral palsy, motor dysfunction, and intellectual disabilities.

Each of the defendants filed defences to the allegations, highlighting one of the risks of medical malpractice litigation. Emphatic defences of malpractice allegations are common in Canada; as Smith noted, “the issues of liability (including causation) and damages were strongly contested.”

She also noted that the plaintiff’s expert evidence was somewhat lacking. 

“Expert opinion evidence can be garnered in support of a party’s action, but that evidence is only as good as the author’s ability to hold up under cross-examination,” she wrote. “Many plaintiffs have gone into a medical malpractice trial with strong experts’ reports in support of their case, only to have the action dismissed at the conclusion of the matter.”

“The defendants… had expert opinion evidence that warned of the dire consequences associated with delivering Jayden at less than 31 weeks gestation and, therefore, the appropriateness of 'expectant management,’” Smith continued. “There was similar divergence of opinion on the issues of causation and damages.”

A month prior to the slated trial date in August 2021, the parties met for a two-day settlement conference. There, two of the defendants agreed to a $4.6 million settlement, with $85,000 going to Jessica and the remaining amount going to the cost of future care for Jayden. The actions against the remaining defendants were dismissed without costs.

This turn of events highlights a potential benefit of launching a medical malpractice claim – although some cases do proceed to lengthy trials, others are settled out of court, which is a more efficient and less costly procedure.

In approving the proposed settlement, and by extension the medical malpractice lawyers’ fees, Justice Smith also highlighted the benefits of contingency fee agreements, which are critical to access to justice for malpractice plaintiffs.

“While they may receive more than a reasonable hourly rate on some files, there are likely many others where they will lose money,” wrote Justice Smith of medical malpractice lawyers working on contingency. “Allowing lawyers to recover a reasonable contingency fee, even if it exceeds that which would be reasonable on an hourly rate basis, encourages access to justice for children such as Jayden and for his mother.”

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