As a parent of a child with a birth injury, I had to make the very difficult decision to file a medical malpractice claim. My son’s birth injury was entirely preventable, and led to a diagnosis that will affect him for the rest of his life. While the choice to file a birth injury claim was difficult, I believe that we made the best possible decision for him.
I have been asked numerous times over the years why we decided to pursue legal action against the hospital and doctors who were responsible for the errors that led to our son Maclain’s brain injury. Talking about our decision making, our experience and our outcome has become easier over the years, despite the hurt that we still feel over what happened to put us in that gut wrenching position.
Our Son’s Story
Our son was born at 29 weeks, a twin to twin transfusion survivor, who spent 3 months in the NICU. His start in this world was rough, but he was doing really well the first few days working through typical preemie issues like breathing, feeding and blood pressure challenges. Things were actually looking up and we were cautiously optimistic that he would come out of things unscathed.
On about day 3-5 of life he developed jaundice, a very normal newborn condition, and one which if treated quickly and effectively, thebaby will be healthy. Sadly for us, our son was not treated for jaundice despite displaying classic clinical signs and the jaundice progressed to Kernicterus, which left our son profoundly deaf and with a diagnosis of Cerebral Palsy. His brain injury was 100% preventable.
We spent 2 years chasing down his diagnosis, not settling for vague explanations that blamed his early birth, or the demise of his brother in utero. I wanted to know why and how, and I felt we deserved to know that information. The only way I felt we could address his needs in the best way was by knowing exactly what we were dealing with.
It was over the course of those two years that we found out via imaging and neurological assessments that our son did in fact have Kernicterus. This of course led to much googling and researching and then I discovered how preventable this condition was. So why did this happen to our son while in the care of one of the best hospitals in our country? And were there other babies who had also been affected while at this hospital?
How We Decided to Pursue Legal Action
That was what started us on the journey of trying to find out why, to get some answers and to see if we could make sure this didn’t happen to anyone else. That was the initial resolution that we were seeking, and we knew that we would need someone to help us figure these things out. It was what led us to make some calls and reach out to some law firms to see what they thought. I am so grateful everyday that we made that call for so many reasons.
Over the course of our legal journey we did in fact discover that our son’s diagnosis was correct, that it could have been prevented and in fact that the hospital was using outdated protocols and guidelines, which would have impacted other babies. And through the process the hospital updated these items, so we felt good that this would hopefully prevent another family having to go through what we had gone through.
We also got some financial resolution with our case, and while this wasn’t our initial goal, anyone who says the money isn’t important isn’t telling the truth. Raising a child with a disability is expensive. Emotional, worrisome, heartbreaking, rewarding and expensive.
Therapies, equipment, home modifications, accessible vehicles, lost wages, attendant care and much, much more. These costs often break families financially and leave them with no hope for the future and simply put – that is not ok. Not by any stretch.
Mistakes happen, we are all human, doctors and nurses are people, hospitals are institutions, and no one wakes up one day deciding to intentionally cause harm to a patient. But when that happens, there needs to be accountability and there needs to be resolution. And this is what our legal case provided to us.
I ran into one of the doctors shortly after our statement of claim was filed, and he asked me point blank why I would do this to them. My reply was simple: I didn’t do this to them, I was doing this for my son, for my family, and for our future. It wasn’t easy. It was emotional and it took time to get us to the point of being able to move forward but I would do it again in a heartbeat, without hesitation.
That day in the courthouse, when we settled our case and we survived yet another challenge, I felt for the first time in a long time something I hadn’t felt much or often. Hope.
How BILA Can Help
The decision to file a medical malpractice claim for a birth injury is a deeply personal one. Many families struggle with the choice as they simultaneously try to find answers and get the best possible care for their kids. Ultimately, many parents decide to file a claim so that they can help their child thrive.
The Birth Injury Lawyers Alliance (BILA) works with families throughout Canada to provide them with legal advice and guidance about their legal rights and options. If you decide to file a claim, we will aggressively advocate for full compensation for your family. To schedule a free initial consultation with a birth injury lawyer in your province, give us a call at 1-800-300-BILA or fill out our online contact form.
- Kernicterus: https://www.ncbi.nlm.nih.gov/books/NBK559120/
- Guidelines: https://publications.aap.org/pediatrics/article/114/1/297/64771/Management-of-Hyperbilirubinemia-in-the-Newborn?autologincheck=redirected
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.