The following summaries outline the process and procedure that surround birth injury lawsuits in Canada.
Stages of a Medical Malpractice Lawsuit
Starting the lawsuit Once the decision has been made that there is merit in pursuing a birth injury claim, the court process starts with filing the lawsuit. The court process can be complex and unfamiliar to someone who has never been through it before. It is sometimes referred to as the litigation process. Most people […]
How do I know if my claim is worth pursuing?
If your child has been injured during the course of labour and delivery, and you have concerns with the medical treatment that was provided, it is important that you contact a BILA lawyer as soon as possible. The lawyer will be able to provide you with some preliminary information as to the process of investigating […]
How do the courts calculate compensation in birth injury cases?
The motivation for most parents to pursue a medical malpractice lawsuit following a birth injury is to obtain the financial resources necessary to provide for their child. As children with cerebral palsy grow and develop, it quickly becomes more and more apparent that their needs throughout their lifetime will be significant, and that the public […]
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Contact us today to learn more about how our birth injury lawyers have helped families provide for their children and receive peace of mind.
Can I afford to hire a lawyer in a birth trauma case?
The prospect of paying for a lawsuit can be overwhelming or daunting. Generally, there are two main arrangements for paying your lawyer and related legal fees. With a Contingency Fee Arrangement (CFA) In many birth injury cases, a contingency fee arrangement (CFA) is appropriate. This means that you will not pay your lawyer for his […]
What is the burden of proof in medical malpractice claims?
It is human nature when something terrible happens to a baby to think that someone should be held responsible. But the most important thing you need to remember in any birth injury claim is that the plaintiff (you) bears the burden of proof. So how much evidence do you need to provide to meet the […]
How does life expectancy affect birth injury claims?
The unfortunate medical reality is that many children who have suffered catastrophic life-altering injuries at birth may have a reduced life expectancy as compared to the average otherwise healthy child. As part of any birth injury claim, your lawyer may need to engage an expert or experts to provide an opinion on whether there […]
How Do I Find an Experienced Birth Injury Lawyer?
After your child suffers a birth injury, you have to deal with a lot – time in the NICU, medical appointments, therapies, and dealing with your own feelings about what happened. In the midst of all of this, it can seem impossible to find a lawyer that you can trust to handle a medical negligence claim.
If your child has suffered a birth injury due to medical malpractice, filing a claim against the at-fault healthcare provider can provide the financial stability that you need to help them thrive. The key is often finding a skilled birth injury lawyer who can take on the medical establishment to secure a favorable outcome. There are certain questions that you can ask to find a trusted birth injury lawyer to handle your claim.
At BILA, we are committed to providing the highest quality legal representation to families throughout Canada. We know that choosing a birth injury lawyer can be hard, which is why we offer free initial consultations so that you can get to know a lawyer and decide if they’re the right person to represent you in your claim. Reach out today to talk to a birth injury lawyer in your province.
Choosing a Birth Injury Lawyer
While there is no shortage of lawyers in every town across Canada, it can be difficult to know how to find the right lawyer for your child’s case. The starting point is that every child should have the benefit of having his or her rights protected.
In the case of birth injury, it is important to have a lawyer on your child’s side who has the experience and resources necessary to effectively advocate for your child’s best interest. While it is always preferable to work with a lawyer who has relevant experience in the area you need help with, this is particularly important in birth injury cases.
First, your child only has one opportunity to obtain full and fair compensation for his or her lifetime for injuries caused by medical negligence. Second, birth injury lawsuits are defended by highly experienced defence lawyers so it is important to level the playing field by having your child’s rights represented by an equally experienced lawyer. Third, birth injury cases are unique and often involve complicated questions of fact related to the proper standard of care for obstetricians and gynecologists.
In the field of birth injury, the playing field is far from level. Physicians in Canada are represented by an organization called the Canadian Medical Protective Association (CMPA), a highly sophisticated and well-funded organization. Its mission statement includes “protecting the professional integrity of physicians,” and they defend these physicians vigorously.
A quick glance at the CMPA’s annual reports reveals high success rates for physicians successfully defending claims brought against them for medical negligence. While not published, hospital insurance programs across Canada also have good rates of successfully defending actions brought against hospitals and nurses.
BILA lawyers will handle your case in a way that improves the odds of success. Importantly, these statistics do not reflect the experience of BILA lawyers. BILA lawyers have a track record of success in representing victims of medical malpractice, particularly children with birth injuries.
There can be no doubt that the CMPA is a formidable foe, with many advantages in its favour. BILA lawyers, however, are committed to creating a level playing field. We do so through our experience, hard work, and collaboration. We share knowledge, resources, and information amongst our alliance of lawyers across Canada. We develop strategies and work together to advance the law in the areas where we perceive unfairness to children living with cerebral palsy and other birth trauma injuries. We have dedicated our professional careers to learning the highly specialized law and medicine involved in birth injury cases and building a network of medical experts prepared to give the type of objective, unbiased opinions necessary to succeed with these cases.
While BILA lawyers have a lot of experience in handling birth trauma cases like yours, the collaboration between BILA lawyers across Canada provides access to the depth of experience that may not be available elsewhere.
Finding the Right Birth Injury Lawyer to Handle Your Child’s Claim
When you are looking for the most capable and experienced lawyer to handle your child’s case, there are some important questions you should ask.
- How many birth trauma cases have you handled?
- BILA lawyers, collectively, have handled hundreds of birth injury lawsuits..
- How do you keep up with the latest developments in obstetrics, neuroradiology, and neonatology?
- BILA lawyers attend and speak at conferences on these issues regularly. BILA lawyers also maintain an extensive library on these subjects.
- Have you taken a birth trauma case to trial? What is your success rate at trial?
- BILA lawyers have taken many of these cases to trial, including leading cases at the Supreme Court of Canada.
- How are you going to access the experienced medical experts needed to prove my case?
- BILA lawyers regularly deal with outstanding experts in all the important medical fields.
- Can you read and interpret what is in the hospital records and the fetal heart rate tracing?
- BILA lawyers have spent thousands of hours learning to read and interpret medical records and fetal heart tracings.
Your case is important. Don’t be afraid to ask any questions you wish and expect direct answers. Remember: you are the one who is making the hiring decision. You have a right to ask questions.
While BILA lawyers represent a wide range of medical malpractice victims, they have a particular interest in birth injury claims. All BILA lawyers have extensive, hands-on experience with birth injury litigation.
Do I Need a Lawyer to File a Birth Injury Lawsuit in Canada?
You are not required to hire a lawyer to file a medical negligence lawsuit in Canada, including birth injury claims. However, it is generally a very good idea to work with a lawyer – particularly in birth injury lawsuits, where you will have to prove that the healthcare provider was negligent in some way.
Burden of Proof in Canadian Birth Injury Lawsuits
The plaintiff (victim) in a birth injury case has the burden of proof to demonstrate that a doctor, nurse, hospital, or other medical professional was negligent. To prove negligence, you will need to show three things:
- That a patient-healthcare practitioner relationship existed (i.e., that this was your or your child’s treating physician);
- That the practitioner was negligent in breaching (violating) the standard of care required; and
- That this negligent action was the cause of the birth injury.
Showing that a healthcare professional did not meet the standard of care for the profession can be particularly challenging. You will not only need to understand what the standard of care actually is, but retain expert witnesses who can testify that the at-fault party (defendant) didn’t meet the standard of care. For example, if a baby shows signs of birth asphyxia, then you will need to understand the standard of care for hypoxic ischemic encephalopathy (HIE). Typically, the treatment for HIE is cooling therapy – but there are specific standards that must be followed for when and how it is utilized.
Even if you can prove that a medical practitioner did not meet the standard of care, the next step is also challenging: proving that their failure was what caused your child’s birth injury. Many birth injuries, such as cerebral palsy, have multiple potential causes. It takes an in-depth understanding of the mechanisms of these injuries to put together a strong claim for compensation.
Birth Injury Lawsuit Experts in Canada
An experienced birth injury lawyer has spent years – or even decades – learning as much as they can about birth injuries and their causes as well as the standard of care for labour and delivery. They will examine your child’s medical records and consult with expert witnesses to prove that not only did a healthcare provider violate the standard of care, but that their violation caused your child’s birth injuries.
In addition to proving negligence, you will also have to comply with province-specific court rules, including strict time limits for filing a lawsuit. For example, in Ontario, you will have to file a Statement of Claim and personally give a stamped copy of the statement to each named defendant within 6 months. If you fail to follow these rules, your case could be dismissed.
Finally, it is important to remember that when you are suing a doctor, they have support through the CMPA. Most physicians in Canada belong to this group, which has a significant “war chest” devoted to defending their members against malpractice suits. The best way to level the playing field is by hiring a seasoned birth injury lawyer in your province. Contact BILA today at 1-800-300-BILA or via our online contact form for more information about a potential legal claim and to discuss your child’s birth injury case.
When is a trial necessary for a birth injury claim?
The vast majority of birth injury claims that BILA lawyers take on will be settled out of court, without the need for a trial. Why is this?
First, BILA lawyers carefully investigate all potential cases to ensure that only meritorious claims are advanced. Second, BILA lawyers retain top-quality experts to build their case. Solid expert support is an essential foundation of any successful malpractice claim. Third, BILA lawyers are highly experienced litigators who have dedicated their professional careers to acting on behalf of victims of medical malpractice, with particular emphasis on birth injury claims.
In short: when faced with a solid case that is persuasive, well-prepared, and proven to be legitimate, most defendants will choose to negotiate a settlement, rather than take their chances in court.
That said, sometimes a trial is necessary. Let’s look at the two main reasons for that:
The defendant refuses to settle
While it is exceptionally rare for the plaintiff to refuse to settle, defendants sometimes take a firm stance on the case and will not agree to settle the claim for any amount. This is usually because they believe they have a strong and defensible case on the merits (standard of care, causation, or both).
Other times, defendants refuse to settle because they believe it will reflect badly on their reputation, or they truly believe that they have done nothing wrong, and seek to be vindicated at trial.
The parties can’t agree on the amount of settlement
When the parties can’t agree on how much the defendant should pay the plaintiff if might be necessary to go to trial, though this generally only occurs where there is a vast difference between what the plaintiff seeks and what the defendant is willing to pay.
Regardless of the situation, it is rare that medical malpractice plaintiffs want to go to trial — the idea of going to trial is actually terrifying to most. It is true that trials involve risk, and birth injury trials are especially complex and challenging.
How do I know if my claim is worth pursuing?
If your child has been injured during the course of labour and delivery, and you have concerns with the medical treatment that was provided, it is important that you contact a BILA lawyer as soon as possible. The lawyer will be able to provide you with some preliminary information as to the process of investigating any potential claim, and will advise you on the applicable limitation period. There is legislation in each province that limits the amount of time you have within which to issue a birth injury compensation claim against the medical practitioners involved.
While each lawyer’s procedure may vary somewhat in terms of the investigation of a potential claim, there are a number of steps that you can likely expect. These include the following:
- Initial interview
- Gathering medical records and other information
- Retaining medical experts
- Potential consultation with other BILA lawyers
- Preliminary assessment of damages
- Meeting to discuss his or her assessment of the claim and whether litigation is warranted.
Again, while there will be variation between the practices of individual lawyers and firms, a general overview of each of these steps is provided below.
1. Initial Interview
Your BILA lawyer will want to meet with you in person to conduct an initial interview about the events leading to your child’s injury. However, if you do not live in or near the same city as a BILA lawyer, this first interview can take place over the telephone. Your lawyer will ask you questions about your medical history, your obstetrical history, and particulars of the pregnancy and delivery in question. He or she will want details of your prenatal care, together with the names of physicians involved. The lawyer will then ask you detailed questions with respect to the progress of your labour and delivery. It will be important to provide as much detail as you are able with respect to the individuals involved, and any discussions that you had with health care professionals during the course of labour. It is usually helpful for you to write out a detailed chronology of the events as you remember them. This will help your BILA lawyer prepare for the first meeting, understand your case, and serve as a way to refresh your memory of events later on in your case.
The lawyer will be interested in the condition of your baby at delivery, and what medical procedures and assessments have been performed since the time of birth. The lawyer will want to know the names of the physicians and other health care professionals who have provided care to your child.
During this initial interview, the lawyer will provide you with general advice as to the process involved in pursuing a medical malpractice claim, as well as advice as to the process involved in investigating to see whether or not a claim is warranted.
In some instances, the lawyer may provide a retainer agreement in relation to the initial investigation, so that you are able to consider whether or not you wish to retain the lawyer to proceed with the investigation.
2. Gathering medical records and other information
Once you and your lawyer have agreed to proceed with an investigation into the potential claim, your lawyer will need to have access to all of the relevant medical records. In some situations, you may be able to obtain these directly from the health care professionals and hospitals involved. In other cases, your lawyer will have you sign authorization forms permitting his or her office to request the relevant medical records on behalf of you and your child. At a minimum, it is usually necessary to obtain the records of the prenatal care, any attendance at the hospital for non-stress tests during the course of the pregnancy, all of the records for labour and delivery, and all newborn records and brain imaging relating to the baby. If your first consultation with your BILA lawyer is sometime after your baby was born it will be necessary to obtain records relating to all the medical care and diagnostic evaluations since initial discharge from hospital.
In some situations, your lawyer may want to obtain written accounts of the memories of other people who were present during the labour and delivery, such as family members. This will depend on the nature of the events, and whether independent recollections as to events and discussions will be critical to an assessment of the claim.
3. Retaining medical experts
As has been described in detail elsewhere on this website, in order to succeed with a medical malpractice claim, it is essential to prove four elements:
- That the medical professional owed you and your child a duty of care;
- That the medical professional breached the applicable standard of care;
- That your child and family suffered injury and damages; and
- That the breach of the standard of care is the legal cause of the injury and damages.
In order to properly investigate a birth injury claim, it is always necessary to obtain independent medical opinions with respect to the standard of care and causation issues.
(a) Standard of care experts
In order to obtain an opinion on the standard of care, your lawyer will first locate an appropriately qualified physician (or other health care practitioner) who is willing to perform the independent review. Typically, the standard of care expert is an obstetrician. BILA lawyers have considerable access to these experts as a result of their work in other cases like yours. Your lawyer will then typically provide the relevant medical records to that expert for his or her review along with a letter summarizing the facts and issues in the case. BILA lawyers, through their experience in birth injury cases, have the ability to identify and analyze the issues in your case. This is crucially important in their interactions with the expert consultants in order to ensure that the right questions are asked and properly addressed by the expert. In this way, your BILA lawyer can properly test and scrutinize the opinions of the expert consultants to ensure that your case has been thoroughly and fairly evaluated on the merits.
Once the expert has reviewed the records, your lawyer will often have a discussion with the expert, either in person or by telephone, to discuss his or her opinion on the appropriate standard of care and whether or not the medical practitioners met the required standard of care during the course of the labour and delivery. In some cases, a written report may immediately follow, but this will depend on the situation and the individual practice of your lawyer. Often your BILA lawyer will meet with the expert in person to canvass the important issues and to be satisfied that your case was properly evaluated.
Depending on the nature of the events, assessing the standard of care issue may require retaining a nursing expert together with either a family physician or obstetrician (depending on the qualifications of the physician responsible for the delivery). In general, it is important to obtain a supportive opinion from an independent expert who has the same or similar qualifications to those who were involved in the delivery in question.
For example, if the delivery occurred in a small rural hospital and was overseen by a family physician, your lawyer will generally want to obtain an opinion from a family physician who does obstetrics work, particularly one who has had experience working at a smaller hospital. While the Courts have moved away from the previously accepted idea that there is a different standard of care in rural and urban areas, there is certainly still a difference in the availability of resources between those centres. As such, it is generally important to seek an opinion from a similarly stationed expert.
By way of further example, if you have had a high-risk pregnancy and the physicians involved were highly qualified specialists, your lawyer will want to obtain an opinion from similarly qualified physicians in a high-risk obstetrics unit. The standard of care applicable to each medical practitioner is the standard of a reasonably competent health care professional of similar qualifications.
(b) Causation experts
With respect to the issue of causation, this is often a very complex issue in birth injury cases. Your lawyer will need to locate experts who are highly qualified and current on the relevant medical literature to provide an opinion as to the nature of the injury sustained by your child, the timing of the injury, and most importantly, its cause. In medical malpractice cases, plaintiffs do not need to establish the cause of an injury beyond a reasonable doubt. On the contrary, the civil burden of proof is “on a balance of probabilities”. This means that you will require an expert who is able to say that it is “more likely than not” (more than 50% likely) that the cause of your child’s injury was the care provided by the medical practitioners involved.
The type of experts who may be required to provide causation opinions could include pediatric neuroradiologists, neonatologists, pediatric neurologists, geneticists, or other specialists depending on the circumstances and the nature of the injury.
Obtaining an opinion on the timing of your baby’s injury is crucial in many cases and involves some very careful analysis by the expert and a considerable body of medical literature. To succeed in these claims, the expert expressing an opinion with regard to the timing of injury must be able to say that the injury occurred after the breach of the standard of care. Only in this way can we prove that had the standard of care been met the injury would have been avoided.
4. Potential consultation with other BILA lawyers
One of the benefits of retaining a BILA lawyer to investigate and potentially prosecute your claim arising from a birth injury is that he or she will have the ability to consult with other BILA lawyers in relation to your claim. In some instances, your lawyer may have a strong sense that there should be a viable claim arising from a particular set of circumstances. However, in some of those situations, the initial experts that are retained may not provide supportive opinions.
In those circumstances, a consultation with another of the BILA lawyers may be very useful in identifying another possible expert or in identifying the theory of causation. This can be invaluable in permitting the case to move forward despite the initial unsupportive opinions.
5. Preliminary assessment of damages
As indicated above, another essential element that must be proven is that damages resulted from your child’s injury. Birth injury cases typically require expert consultation in order to assess the damages of the infant into the future. However, at the stage of the initial consultation and investigation, it is usual for the lawyer to perform a preliminary assessment of the damages issues. This may involve looking at previously decided cases or gathering further information from you as to your child’s prognosis and likely future needs with a care plan. In many cases, it will be too early to accurately predict your child’s future needs at the time of your initial consultation. However, this is something that will be assessed in much more detail as the matter progresses, should it be determined that the case warrants proceeding with a lawsuit.
6. Meeting to discuss assessment of the claim and whether litigation is warranted
Once your lawyer has completed the above steps, he or she will likely want to arrange a meeting with you to discuss his or her assessment of the case. While there are never any guarantees of success in medical malpractice cases including birth injury cases, your lawyer will advise you as to his or her opinion of the merits of your potential claim. This assessment will be based on his or her experience and review of the medical records, together with the expert opinions obtained and any consultations that have taken place with other BILA lawyers.
Your lawyer will generally advise you whether or not he or she recommends that you proceed with an action. This will involve a detailed discussion as to the legal and medical issues involved in your case, together with the legal process should you proceed with a claim. Your lawyer will also discuss with you the fee arrangements that will be required. While this will vary from firm to firm, it is typical that a contingency fee arrangement will be suggested. This means that you will not pay your lawyer for his or her time as the matter progresses, but rather, your lawyer will receive a percentage of the recovery if the matter is successfully resolved either through settlement or after trial.
In some instances, your lawyer may recommend to you that the matter be referred to one of his or her colleagues within BILA. This may depend on the ability of a particular firm to conduct the matter on an appropriate fee arrangement or may be due to the particular skills of one of the other BILA members.
I’m Not Sure About a Lawsuit – What Other Steps Can I Take?
Whether or not you receive legal advice that a lawsuit is warranted, you may wish to pursue other steps against a doctor or hospital. In general, there are two main avenues of complaint/investigation. These are as follows:
Complaint to the physician’s professional regulatory association
Complaint to the hospital/health region.
While these processes do not typically involve any possibility of financial compensation, you may wish to proceed through one or both of these processes as an alternative to, or in addition to, the litigation process.
In many cases, medical malpractice clients elect to pursue all three of these available processes (a professional regulatory complaint, hospital or health region administrative investigation, and litigation). These processes are not mutually exclusive. But it is important to note that the only process through which you can seek financial compensation is the litigation process.
Complaints to a professional regulatory association
Most health care practitioners, including physicians, nurses, chiropractors, pharmacists, and dentists, are members of self-regulating professions. This means that the provincial government does not directly regulate these professions, but instead has established a legislative framework under which these professions regulate their own members. In most jurisdictions, physicians are licensed and regulated by a College of Physicians and Surgeons.
There are certain cases in which a complaint to a professional body is particularly warranted. These would include situations of unprofessional or unethical conduct or one in which the physician or other health care practitioner has exhibited a serious lack of skill or knowledge.
In the vast majority of cases, a complaint to a professional regulatory association does not lead to disciplinary action against the health care practitioner. However, you may feel that it is important to ensure the regulatory association is aware of your concerns, in the event that there has been a pattern of behavior with the particular medical practitioner involved.
Complaints to the hospital/health region
In most provinces, hospitals are operated and administered by a health region or health authority. Each region/authority will typically have an internal complaint or administrative investigative process available for patients who have concerns with the care provided to patients at that facility. This may be a Quality Services department, Patient Relations department, a “Patient Advocate”, or “Client Representative”. In most cases, you can determine the general process by looking at the website of the relevant health region.
In most of these facilities or health regions, this internal complaints process is intended to respond to patient concerns, and also to ensure quality improvement within the facility/region. While the process will vary from region to region, it is typical that once a complaint is received, the “Client Representative” (or other similar individuals) would make inquiries of involved staff, together with the appropriate department heads.
In some instances, you or your family will be invited to attend a meeting of the relevant individuals. Often, a consolidated written response is provided to you in response to the concerns you have raised. In some rare instances, this process may result in disciplinary action or termination of staff. More commonly, it may lead to a change in policy or protocol to improve patient outcomes if similar circumstances arise in the future.
How Long Does a Birth Injury Lawsuit Take?
Any civil lawsuit can take a long time to resolve. For birth injury claims, it may take as long as 2 years to resolve your lawsuit. In most cases, birth injury lawsuits are resolved via settlement.
When you are struggling with the aftermath of a birth injury, waiting 2 years for a settlement may be incredibly frustrating. However, it is often necessary in order to ensure that you get fair compensation for your child’s birth injury. In some cases, a quick settlement may result in financial compensation that isn’t enough to cover the full scope of your expenses and losses.
The CMPA vigorously defends physicians against malpractice claims. It typically takes a fair amount of time to build a strong claim against a healthcare practitioner – one that will stand up against this type of defense. It can also take months or even years to negotiate a fair settlement. If your case goes to trial, then the court’s schedule will also have to be taken into account.
There are many factors that affect the length of time that it takes to resolve a birth injury lawsuit. This includes:
- The severity of the injury: it is important to understand the full scope of your child’s injury before accepting a settlement offer. These agreements include a release of claims, which means that it is a full and final settlement. If you don’t have a good understanding of just how severely your child is hurt, any compensation you recover might not be enough to cover their damages.
- Settlement value: when a birth injury lawsuit is requesting a large amount in compensation, then the likelihood of a lengthier settlement process is higher. In essence, the CMPA and/or insurance company is likely to fight back harder against a significant claim for compensation. That does not mean that your claim is overvalued or that you should settle for less. Instead, it means that your lawyer will have to stand their ground and continue to fight for the compensation that you deserve.
- Type of claim: there are some types of cases where liability is more straightforward than other types of claims. For example, trauma from forceps or a vacuum is often easier to “prove” than a birth injury from a neonatal stroke. Proving that medical negligence occurred and that it caused a birth injury can be challenging in many cases. If your case is more complex in terms of liability, then it may take longer to settle.
Although waiting for a year or longer can be difficult, rushing a settlement rarely works out in your favor. To get the full compensation that you are entitled to, you will often have to be patient.
At BILA, we understand that this process can be frustrating for our clients who are already dealing with so much after a birth injury. Our birth injury lawyers pride themselves on open and honest communication with their clients, including keeping them updated on negotiations and the progress of their case. Reach out to BILA today to schedule a free consultation with a birth injury lawyer in your province.
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