After a child suffers a birth injury, parents often experience a number of conflicting emotions. They may feel guilt, anger, sorrow, and fear for their child’s future. They may also have conflicting feelings about pursuing litigation against the at-fault medical provider.
During pregnancy, labour and delivery, parents often form a close bond with their doctor. When something goes wrong, they may be reluctant to pursue a claim even after their child has been diagnosed with a disability like cerebral palsy (CP). While these feelings are understandable, parents should know that there are systems in place to defend medical professionals from medical negligence lawsuits. These types of claims are often the only way to get the financial compensation necessary to provide outstanding care for their child throughout their life.
At BILA, our birth injury lawyers know how difficult it can be for parents to decide to pursue a medical malpractice lawsuit. We offer free initial consultations, where we will listen to your story and advise you of your legal rights and options for filing a claim. If you decide to proceed, we will fight to help your child get the best possible outcome.
Birth Injury Claims Are a Way to Advocate for Your Child
At BILA, we often hear from parents with children who were injured at birth who say that they believe the doctors and nurses involved in the delivery did their very best and they don’t want to see their doctor or nurse get into trouble from a lawsuit. More so, they worry that pursuing a lawsuit against the doctor or nurse may cause them to be unable to practice medicine or nursing in the future, or that they will be punished because of the claim.
While it is understandable to have those thoughts and concerns, we want to explain that there are certain misconceptions with such thinking and reassure you that just because it appears that the doctor or nurse was doing everything they could, that in fact there may be more to the situation that could support a claim. We also want to provide you with information about the purpose and effect of a lawsuit so that you can better understand that bringing a claim does not mean that the doctor or nurse won’t be able to practice medicine or that they will be somehow unduly punished.
The main purpose of a legal claim or lawsuit related to injuries suffered at birth is to seek and obtain financial compensation to redress the injuries that were suffered by your child at birth. To establish a successful claim, we would have to prove that the doctor or nurse’s conduct fell below the standard expected of such a doctor or nurse in the circumstances. Effectively this means we have to show that the doctor or nurse committed an unintentional error or suffered a lapse in professional judgement in how they provided the medical or nursing care.
You should keep in mind that this is a very different thing than saying that the doctor or nurse intended to cause harm to their patient. Of course, as a general rule, doctors and nurses do not intend to cause harm to their patients. We don’t have to prove that to be successful with a claim.
Birth injury lawsuits are therefore almost always about innocent mistakes or a lack of attention to a detail that could have prevented the outcome. In medicine and nursing, there are many protocols, tests and steps that must be followed or implemented depending on the situation that is presented.
Sometimes bad outcomes could have been prevented if an earlier intervention were taken like a c-section or if the issue that caused the injury were identified earlier by properly implementing or interpreting a test or its result. And so even where the doctor or nurse may appear to be doing everything that they could, their care may still have unintentionally missed something or they may have delayed in reacting to something that could have helped prevent the injuries that arise. In some instances, it may have been the hospital’s fault for not having the proper resources or equipment in place to assist the doctors or nurses.
At BILA, we are able to reach out to medical experts who can assist us with analyzing what occurred, whether something should have been done differently, whether there were warning signs that should have been detected and whether the injury was preventable.
We understand that injuries at birth can be catastrophic, tragic, and life-altering for your child and family. Compensation can be very important for your family in such circumstances as the financial burden can be enormous. This can include the cost of such things as attendant and respite care, therapies, renovation costs, and specialized equipment. Your child may also be unable to work later in life and therefore not have a self-generated means of income.
Malpractice Insurance Protects Medical Professionals
A legal claim or lawsuit is not intended to cause the doctor or nurse to lose their ability to practice or punish them for what occurred. In fact, a court is generally not even able to make an order related to the doctor or nurse’s standing to practice. It is only the professional governing body for the doctor or nurse that can truly affect their standing to practice or order other remedial or educational steps for them to take. For that to occur, you would have to initiate a separate formal complaint to their professional body in the Province in which they practice.
For instance, in most Provinces, the professional governing body for physicians is known as the College of Physician and Surgeons, and they would have the ability to consider the professional standing of the doctor and whether they are fit to practice medicine or otherwise require remedial measures. It is always open to you as a patient of the doctor to initiate such a formal complaint, but you do not have to do so in order to pursue a claim or lawsuit for compensation, and not doing so does not affect the merits of any lawsuit. The significant limitation of a complaint to the College of Physicians and Surgeons is that it cannot order or provide any compensation to your family or child for the injuries suffered. But the choice is always open to you as an impacted patient to take either or both options.
Doctors and nurses are human beings and can make mistakes or errors just like any of us. No doubt in most instances the doctors and nurses genuinely care for their patients and would never intend a bad outcome. But unintentional and preventable mistakes may still occur.
Doctors, nurses and hospitals therefore carry insurance or other means of coverage to address compensating victims of such unintentional malpractice. For doctors, they usually have coverage through the Canadian Medical Protective Association (CMPA), and for nurses and hospitals the Healthcare Insurance Reciprocal of Canada (HIROC) usually provides insurance coverage. Doctors, nurses and hospitals carry such coverage as a means to ensure that when negligent errors or mistakes occur, there is a means to compensate people for the injuries that have occurred in those circumstances.
While it is understandable that most of us do not want to cast blame at others or say that someone else is at fault for what occurred, the legal process is the accepted and understood mechanism to obtain compensation for injuries caused by negligent errors or oversights made in the course of medical care. Doctors, nurses and other health care professionals generally understand this as well, and perhaps even more so when it is a child grievously injured at birth.
We hope this information is helpful and informative in understanding why bringing a claim or lawsuit against the doctor or nurse that was involved in your child’s delivery is not a commentary on them as a person or even their professional status. It does not seek to prevent them from practicing in the future nor does it unduly punish them as they will almost always have coverage through entities such as the CMPA or HIROC.
Do You Believe That Your Child Has Suffered a Birth Injury? We Can Help.
If your child has suffered injuries at birth and you are having hesitations about whether to pursue a legal claim for compensation, please feel free to reach out to us at BILA and we would be happy to discuss your concerns in more detail. There is no obligation to pursue a lawsuit just because you reach out to us, we don’t charge you for such a conversation, and rest assured it is confidential.
BILA works with families throughout Canada to help them seek justice for their children. Our process starts with a free initial consultation, where we will listen to your story, address your concerns, and offer you legal advice on your potential claim. If you’d like to talk to an experienced birth injury lawyer in your province, call us 1-800-300-BILA or fill out our online contact form.
The Birth Injury Lawyers’ Alliance of Canada (BILA) was formed in 2016 by a group of lawyers from across Canada with considerable experience in birth injury cases to promote the effective representation of children and families affected by avoidable injuries occurring at or around the time of birth.