Shoulder Dystocia, hypoxic ischemic encephalophy (HIE) and Cerebral Palsy Victim receives $10 million malpractice award, Sept. 11, 2004

Twenty-one year quadriplegic, hypoxic ischemic encephalophy (HIE) and cerebral palsy (CP) victim has been awarded $10 Million dollars for birth injuries:

 Globe and Mail press release. . .the Original excerpts regarding this Upheld action, is following the news release.

This url for your convenience is:  www.lotusbirth.com/doc/FEB2003Lotusbirth-954.htm

The Globe and Mail, Saturday, September 11, 2004, page A8-Canada

More information at:  http://www.sommersandroth.com/press/otla_update_2003_03_04.htm

The news release is typed out, verbatim.

    "$10-million ruling upheld for woman brain-damaged at birth 20 years ago by

Kirk Makin, Justice Reporter

    "A severely disabled Ontario woman whose calamitous birth in 1983 deprived

her of oxygen for 15-minutes deserves the largest personal injury award in

Canadian history, the Ontario Court of Appeal ruled yesterday.

    The court affirmed a $10-million award for Melissa Crawford, now 20,

whose parents have attended to her every need since the delivery left

doctors struggling to extricate her from the birth canal.

    The appeal judges reached a strong finding that because Melissa's mother

was overweight and 40 years old at the time of the birth, and because he

baby was abnormally large, two family doctors in Smith Falls, Ont.., ought

to have taken special precautions.

    The judges ruled that doctors Brain J. Penny and Greg Healy also failed

to detect that her mother, Jeanette Crawford, had developed diabetes and

that Melissa's birth ought to have been induced much earlier.

    The birth became an emergency after only Melissa's head emerged from the

birth canal.  Doctors desperately pulled at her with forceps, even

fracturing the newborn's clavicle in a desperate attempt to prevent death.

Finally extracted, blue and apparently lifeless, the infant showed a faint

heartbeat moments later.

    "It wasn't so much a matter of suing as a matter of us wanting answers

to questions that go right back to Melissa's birth," Mrs. Crawford said in

an interview yesterday.  "We are also getting older now.  Our hope is that

Melissa will have her own home with people she knows and trusts--and that we

know and trust--to look after her."

    Lawyers for the doctors attacked the original 2003 trial ruling, saying

that Mr. Justice Denis Power of Ontario Superior Court supplied inadequate

reasons for judgment.  However, Mr. Justice Jean-Marc Labrosse, Mr. Justice

Robert Sharpe and Madam Justice Eleanore Cronk sharply disagreed.

    "The trial judge's findings on the delivery issue are clear, supported

by the evidence and, in some cases, incontrovertible," the appellate judges

said.

    Dr. Penny, 57, is listed by the College of Physicians and Surgeons as

still practicing in Smith Falls.  Dr. Healey, 49, is listed as a family

practitioner in Canton, N.Y., 80 kilometers southeast of Smith Falls.

    Robert Roth, a lawyer for the family, said yesterday that the award

eclipses any previous personal-injury award.  He said $8-million will go to

Melissa's care, $1 million to her parents and $1-million to compensate the

Ontario Health Insurance Plan for its expenses over the past 20 years.

    "This is no windfall," Mr. Roth said.  "The parents have made huge

sacrifices, and the dedication they have shown is exemplary."  Mr. Roth said

the costs of past and future care are enormous, both because Melissa can do

virtually nothing on her own and because her life expectancy is 56 years.

    A quadriplegic, Melissa cannot clean or feed herself, but she recognizes

faces and enjoys television shows and having stories read to her.  "It's not

as if Melissa is an empty shell," Mr. Roth said.

    Mrs. Crawford confirmed that her daughter is well aware of her

surroundings.  "She is not really capable of doing anything physically, and

she is non-verbal, but she has a beautiful smile and lots of body language."

With a report from Jeff Gray

End of quotation:

_____________________________________

Other reports of more detailed information, as the defence had appealed and tried to blame the mother in dealing with counselling to perceived problems of a diabetic mother, with diabetic parents, having a diabetic child and a large child:

Sun. Sep. 26, 2004. | Updated at 11:46 PM

20-year old Gets $10 Million award upheld, after it was appealed by the defendants.  

 http://www.thestar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_Type1&c=Article&cid=1086732611186&call_pageid=970599119419

Jun. 9, 2004. 01:00 AM

Tragic birth fuels court fight Physicians appeal $10 million award over 1983 delivery Judge had ruled negligence caused damage in baby

TRACEY TYLER, LEGAL AFFAIRS REPORTER

When Melissa Crawford wants to communicate, she kicks her left foot and leg. She laughs when she's happy and cries when she's in pain.

Unable to speak, walk or eat anything but liquids through a tube, Melissa was permanently brain-damaged as a result of what a judge called an "obstetrical catastrophe" caused by the negligence of two family doctors.

Twenty-one years later, a legal battle pitting Melissa's parents, Jeanette and Barry Crawford, of Smiths Falls, Ont., against Dr. Brian Penney and Dr. Greg Healey, two local physicians, has reached Ontario's highest court.

At issue: The standards expected of Ontario doctors, Melissa's future care and $10 million — one of the largest medical malpractice awards in Canadian history.

In awarding the Crawfords that sum last year, Mr. Justice Dennis Power, of the Superior Court of Justice, said Penney and Healey were negligent in almost every aspect of their care. Weighing nearly 11 pounds at birth, Melissa's shoulders got stuck in the birth canal and her brain was starved of oxygen for 15 minutes.

Her left collarbone was deliberately broken in a desperate bid to get her out, but when she was born — the day before Jeanette Crawford's 41st birthday —  she was "basically dead ," as Penney, who resuscitated her, put it later.

In appealing Power's decision, the doctors say they acted "reasonably and skilfully" during the emergency and Melissa was left with cerebral palsy in spite of their best efforts, not because of them.

"They're denying everything," Jeanette Crawford said outside a courtroom at Osgoode Hall, where a three-judge panel of the Ontario Court of Appeal heard the case over two days, ending yesterday. "It's like they're trying to blame me because I had a baby at 40."

In his 103-page ruling last year, Power called Melissa's injuries "foreseeable."

Her shoulders were impacted because of her excessive birth weight, which in turn was caused by her mother's untreated gestational diabetes — which could have been diagnosed had she been given the proper test, said the judge, who suggested alarm bells should have gone off.

In addition to becoming pregnant at age 40, Crawford was somewhat overweight, had a family history of diabetes and had given birth to a large baby before. (A daughter, born in 1966, weighed 6 lbs. 7 oz. Ken, born in 1971, was 9 lbs. 10 oz.).

Given the circumstances, Penney should have known her condition was beyond a family physician's competence and referred her to a specialist, said the judge.

Instead, Penney went ahead with the delivery at Smiths Falls hospital, which didn't have the necessary back-up facilities for infants in distress, the judge said.

Healey was called for a second opinion when Penney decided to induce labour five days early. Power said Healey should have physically examined her before agreeing to the plan.

In fact, Penney should have considered inducing labour even sooner and both doctors failed in not giving serious consideration to delivering Melissa through a Caesarean section or having an emergency back-up plan, the judge said.

But Domenic Crolla, a lawyer representing the doctors, told Justices Marc Labrosse, Robert Sharpe and Eleanore Cronk on Monday that Power took a "retrospective, fault-finding approach" instead of assessing their conduct against 1983 standards.

Back then, it wasn't the norm to deliver large babies by C-section and a study of 1.7 million Canadian pregnancies between 1984 and 1995 showed most doctors didn't test for gestational diabetes, he said.

The judge also ignored testimony from five defence experts who, among other things, said acceptable options for Melissa's delivery included everything from the use of a specialist to a midwife, Crolla told the court.

"I find that unbelievable that a specialist would say a woman who is 40, who had a big baby before, whose parents had diabetes, would be delivered by a midwife," said Labrosse. "I just find that thoroughly unbelievable."

"It just doesn't make any sense."

The court reserved its decision.

Reference: Toronto Star Newspapers Limited. www.thestar.com online since 1996.

_________________________________

Other reports:

Original excerpts from the trial

http://www.sommersandroth.com/press/otla_update_2003_03_04.htm

OTLA Update

Medical Malpractice - Brain Injury - Shoulder Dystocia at Birth - Locality

 March / April 2003

Crawford v. Penney et al, [2003] Carswell Ont 82, per: Power J.

Melissa Crawford was born on December 27, 1983 at Smith Falls Hospital. She sustained catastrophic injuries in the form of hypoxic ischemic encephalophy resulting from shoulder dystocia, the obvious cause of which was excessive birth weight caused by untreated diabetes in pregnancy. Melissa also suffered a right brachial plexis injury and a fractured right clavicle during the course of her delivery. Through her litigation guardian, Melissa sued the physicians who delivered her and the hospital.

The two general practitioners who performed the delivery and pre-natal care, Dr. Penny and Dr. Healey were found negligent in their administration of pregnancy of Melissa's mother and delivery of Melissa herself. Penny and Healey did not provide the appropriate standard of care expected of a normal, prudent, general practitioner practising obstetrics in 1983 in a small community which had quick and easy access to major medical centres and experts. They also did not recognize their own limitations, failed to account for the dangers of macracomia (large baby) and shoulder dystocia and the associated factors of maternal obesity, family history of large gestational infants and gestational diabetes or diabetes as it relates to the science of babies and complications in child birth that flow therefrom.

This case is factually complicated and is over 321 paragraphs in length. It cannot be fully digested here. However, three salient points are worthy of note.

(1) In respect of conflicting expert evidence regarding the standard of care in medical malpractice cases, the court addresses the concerns raised in Maynard v. West Midlands Regional Health Authority, [1985] 1 All E.R. 635 wherein the House of Lords stated:

“In the realm of diagnosis and treatment, there is ample scope for genuine differences of opinion and one man clearly is not negligent because his conclusion differs from that of other professional men... The true test for establishing negligence in diagnosis or treatment on the part of a doctor, is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty if acting with ordinary care...”

In response to this point raised by the defendants, the court relied on the case of Tacknyk v. Lake of the Woods Clinic and Brown [1982] O.J. No. 170 (Ont. C.A.) which held:

“The standard of care is a matter for the court and not medical experts although their view will be taken into consideration in setting the appropriate standard.”

From this case and from the case of Dorion v. Beaupre and Bolduc, [1991] 1 S.C.R. 374 at 430-1 Power J. concludes:

“... indeed the appropriate standard of care is determined by the trier of fact. Where there are conflicting expert opinions, the trier of fact must weigh the conflicting testimony and ultimately assess the weight to be given to the evidence...There is no necessitated dismissal of medical negligence claims simply because honest and competent experts disagree over a doctor's diagnosis or treatment.”

(2) During the course of the trial, counsel for the defendant doctors took the position that a lower standard of care should be expected of general practitioners practising obstetrics outside of major urban localities. In respect to that proposition, the court replied:

“... a physician practising in a small town must be particularly vigilant to risk factors because of a lack of availability of immediate help. The need to refer patients to specialists, therefore, may be greater in a rural setting than in an urban setting. A rural physician practising his/her profession is under the same obligation as a physician with a similar practice in an urban setting to keep up with developments in areas of medicine pertinent to their practises.

Bearing in mind that in 1983, in Ontario, 50% of babies were delivered by family physicians, particularly in rural areas. It would be a sad comment indeed for the law to apply a lesser standard of care in some communities as opposed to others. This is not to say, however that all physicians possess the same ability and have access to the same resources. These physicians and localities must recognize the limitations and refer patients, where possible, to experts and to larger medical facilities.”

(3) The third important point is that the court awarded $80,000.00 in damages to each of Melissa's parents for loss of care, guidance and companionship.

Plaintiffs counsel: Richard Sommers Q.C.* and Robert Roth*, of Toronto, ON.

Extract from OTLA Update,

p. 2, March / April 2003.

OTLA Update is published by

the Ontario Trial Lawyers Association.

_____________________________________-

Donna Young

Natural Birth Education

Box 504

Dawson Creek, BC

V1G 4H4

Canada

Tel:  1-250-782-9223

Home page with table of contents: www.lotusbirth.com

Petition:  Protect Babies and Mothers, Too

www.thepetitionsite.com/takeaction/102580814

Note comments of Donna Young:

      Sommers and Roth have helped others for compensation in millions of dollars for other severally birth-damaged children whose fetal circulation was cut off.  See the Chow and Ing Case-laws, Ontario, Canada.  In the Chow-case-law the placenta blood went missing.  I, personally, suspect, that since the 1980's, that placenta blood is valuable for stem cell research and drug companies, and human transplants.  The use of human hormones and enzymes, means many babies have been early clamped causing compounded oxygen debt, to other birth injuries. The training of Canadian doctors and those in the United States is a trend to immediate cord clamping.

    See ACOG's Education Bulletin #216 November 1995, now retired in print, but still in practice, and current trends and Policies by SOGC, #71,

December 1998 and #89 May 200.

        To likely increase suits to midwives and doctors, for world wide damaged babies, there was press release that this would be the trend.  USAID, November 7, 2003, shared that the trend of midwifes and doctors policies are to drug all women with oxytocin to treat the fear of bleeding of all women believing all women to be anemic at birth. When the drug oxytocin is used, going under the names of Pitocin, Syntocinon, Toesen, and other names of low-cost drugs used for fear of bleeding, the  medical persons are directed to do early cord clamping by the World Health Organization. The 3rd and 7th edition of the Lippincott Nurses Medical Practices of Nursing states 60 % more blood into the baby if clamping is not done on the umbilical cord if all pulsation in the cord has ceased.

     Women are not advised of no clamping of the cord, and the right of primal birth traditions, warm water births, and a signed birth contract for unassisted births, even at hospitals, using a birth contract/waiver.

    Suggested is a Birth Credit given to them by the Medical Insurance Plans.  How it ought to work, and politicians should be encouraged to approve this is that the birthing women are encouraged to become educated for natural birth experiences, rather than be actively managed, and mostly without informed consent.

    The women, then can birth unassisted and then pay, at to their education and freedom of choice for any active management interventions, paying for them and requesting them at their own risks, such as drugs, and cutting of their bodies for flat on the back and semi-sitting birth positions (gravity births, are better and in warm water).  The women by knowing all risks and told the worst, that they could die or their children damaged by the drugs, with short term and life time consequences, as to allergies, to themselves or their fetus, neonate.

    The Birth Credit would be for approximately $3,000 per child born. And the medical costs, over that birth credit, if used up in selection of care of active management to c-sections, of course, as is now, is paid by the insurance plans.

    The mother then has freedom of control of what is or not done to her person and her baby, including to cut off 60 percent of total placenta blood volume as is now done by doctors following immediate cord clamping trends, but not approved by informed mothers.  Such a caused anemic child is likely to need blood expanders and whole blood, at the risk of diseases in blood.  If the addition of blood to an anemic child is not quickly done after early clamping, the child may die of shock.  Such deaths do happen and the child's organs are sought for harvesting as is the case of an aborted fetus.

    If natural birth, to interventions to the mother or to the child, after birth, and this is unassisted at hospitals, and is accomplished, the woman gets the remainder of what she does not purchases with informed risks, all drugs have all ingredients and risks to the mother and fetus, made known by the food and drug manufacturer or those that dispense the drug to a birthing mother.

    Such early clamped babies, causing oxygen and nutrient debt, have, naturally, low immunities to have adequate healing to other caused birth trauma.

     Some drugs, commonly used to manage labor are  oxytocin, advances labor contractions, most common, and morphine drugs, such as Demerol, which delay labor contractions.

     The Asian boys, Chow and Ing, do live, but they are blind, deaf or mute, and paralyzed.  I am sure they would have had a normal birth, not active management and to be whole and well persons.

______________