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 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:

  1. Initial interview;
  2. Gathering medical records and other information;
  3. Careful review of the records to identify the issues;
  4. Retaining medical experts;
  5. Potential consultation with other BILA lawyers;
  6. Preliminary assessment of damages; and
  7. 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 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 some time 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:

  1. That the medical professional owed you and your child a duty of care;
  2. That the medical professional breached the applicable standard of care;
  3. That the your child and family suffered injury and damages; and
  4. 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 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. To 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 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.