Court of Appeal Upholds Decision in Will Davidson LLP Birthing Injury Case

Last month, the Ontario Court of Appeal upheld a 2019 jury decision in favour of Bernice Booth, Michael Woods, and their daughter Kelsey in a suit against obstetrician Dr. Allan Jackiewicz. The family alleged that a birthing injury caused by Dr. Jackiewicz’s negligence resulted in serious brain damage at birth, which caused Kelsey to experience catastrophic cerebral palsy. They were represented by Will Davidson LLP personal injury lawyer Paul Cahill.

Medical malpractice lawsuits in Ontario are notoriously challenging for plaintiffs; this case took nearly a decade to resolve and resulted in an award of more than $11-million for Kelsey and her family.

“It was an emotional verdict. Two of the jurors were in tears when the verdict was read. Everyone was emotional,” Cahill told the St. Catharines Standard following the initial jury decision in 2019. “You can imagine a lifetime of caring for a disabled child and finally getting the recognition that it was the fault of someone else. It was a very powerful moment.”

The jury heard expert testimony from both sides of the dispute. Jackiewicz’s legal team argued that the evidence provided no proof of substandard care or lack of due diligence. He denied all wrongdoing.

What Happened?

Kelsey was born in July 1991. In May of that year, Booth underwent an ultrasound that determined she was pregnant with twins. No abnormalities were detected. In the following weeks, Booth experienced growing discomfort and began to quickly gain weight. She visited Dr. Jackiewicz in early July. Following an exam, the doctor instructed her to return home, lie on her side and watch TV; he believed it would be more than a month before she entered labour.

Just days later, on July 7, Booth entered labour and Kelsey was born with serious developmental impairments. Her twin sister, Karli, experienced significant hearing loss; she was also named in the claim.

Booth was diagnosed with twin-to-twin transfusion syndrome, a condition where one of the twins in the womb receives reduced blood flow. The plaintiff’s expert witness testified that with a timely diagnosis and proper treatment, Booth’s labour could have been delayed and the pregnancy would have resulted in a “normal outcome.”

How Were Kelsey and her Family’s Lives Affected?

Kelsey’s life has been severely impacted by her condition. As Cahill told the Standard, “Kelsey is a quadriplegic. She is completely dependent on her parents for care. She can’t walk. She can’t do anything for herself. They have to bathe her and change her diapers”

“When we first brought the children home it was utter chaos,” added Booth. “There was still a lot of medical care. They were on oxygen, so we had these two babies with little oxygen tanks. Just taking them to the doctor’s office was an ordeal. They hadn’t learned to feed properly. They didn’t have it in them yet. I had to take a tube and put it right down their throat into their stomach and fill up the syringe They ate that way for a couple of months.”

“I was sort of a caregiver-nurse, which sometimes interfered with me being a mum,” she continued. “There was the constant worry about them getting enough oxygen. It was quite a struggle.”

The Appeals Process

Because Dr. Jackiewicz appealed the lower court’s decision, Kelsey’s parents did not receive any of the compensation they were awarded.

“Bernice and Kelsey haven’t received any money yet,” personal injury lawyer Paul Cahill told the Standard in an interview last month. “The doctor can still try to seek leave from the Supreme Court of Canada for another appeal, so this isn’t necessarily over. It’s more like Round 2 of a pretty tough fight, but when you read the appeal decision it doesn’t really appear Dr. Jackiewicz had the strongest position.”

Indeed, the Court of Appeal wrote in its decision that it was “not persuaded that there was any material misdirection or non-direction by the trial judge that warrants appellate intervention.”

Despite the threat of another appeal from the defendant, Kelsey’s family was reportedly pleased with the appellate court’s decision in the birthing injury case.

“I would say the family is overjoyed with the result from the court and the decision to dismiss the physician’s appeal,” said Cahill. “They are very much looking forward to focusing on using the funds they will hopefully now receive to make Kelsey’s life better.”

Contact a Will Davidson LLP Personal Injury Lawyer

If you or a member of your family has been affected by a birthing injury as a result of medical negligence, contact Will Davidson LLP today to schedule a free, no-obligation consultation with an experienced personal injury lawyer. Our team has a wealth of experience in every area of personal injury law, including serious medical and birthing errors.

Will Davidson LLP offers its services on a contingency basis, meaning our clients are not asked to pay hourly, up-front legal fees. Instead, our team will accept a percentage of the final settlement as payment. This approach allows us to offer access to justice for all Ontarians.

Birthing injuries involving forceps are on the rise in Canada

Childbirth is an unforgettable experience, but also a risky moment in a woman’s life, even in a country like Canada where doctors have access to advanced medical technology. As obstetrical malpractice lawyers can attest, medical errors or omissions during childbirth can cause injuries that have serious, long-lasting impacts on a mother or child.

A study published recently in the Canadian Medical Association Journal found that injuries during childbirth are on the rise in Canada, especially among deliveries involving forceps.  The study included almost two-million one-baby deliveries occurring in Alberta, Saskatchewan, Manitoba, and Ontario between 2004 and 2015.

The Mayo Clinic describes forceps as “an instrument shaped like a pair of large spoons or salad tongs.” They are used in operative vaginal deliveries where certain problems exist, such as stalled labour, heartbeat issues, or the baby facing the wrong direction. The benefits of forceps deliveries include reduced delivery times and avoiding Caesarian-section (C-section).

However, there are also risks, and the risks are growing. The authors of the Canadian Medical Association Journal study declared that their findings suggest “the safety of the procedures is declining in Canada, especially after forceps use.” In 2004, 19.4 per cent of first-time mothers suffered birthing injuries during forceps- or vacuum-assisted delivery; in 2014, 26.5 per cent did. Women with previous C-sections saw an even steeper climb, with just 17 per cent experiencing injuries in 2004 and 26 per cent experiencing them in 2014.

Trauma to babies also increased but remained relatively rare: the study reported 4.5 injuries per 1,000 deliveries in 2004 and 6.8 injuries per 1,000 deliveries in 2014.

The most common injuries to mothers were third- and fourth-degree perineal tears; babies most commonly suffered brachial plexus injuries.

Increasing injury rates have prompted doctors and obstetrical malpractice lawyers in Canada and around the world to suggest changes. In Australia, some experts have called for a ban on forceps use, while some American hospitals already prohibit it. As C-section deliveries become increasingly common – a third of babies are now delivered by C-section – young doctors will have fewer and fewer chances to become comfortable with the practice. According to the National Post, a 2007 study found that only about half of American residency program graduates felt competent using forceps.

If your family has been affected by a birthing injury involving the use of forceps, contact the obstetrical malpractice lawyers at Will Davidson LLP today to find out how we can help. Our experienced team of personal injury and medical malpractice lawyers can explain your legal options and guide you on your path to compensation and recovery.


Image credit: Gilberto Santa Rosa/Wikimedia Commons

My Child Was Injured During Childbirth – Do I Have a Case?


Childbirth is among the most meaningful and memorable moments in a person’s life; it is also a time of significant vulnerability, both for the mother and her child. Though most birthing injuries are fairly mild and do not cause long-term impairment, a serious birthing injury can have devastating, lifelong impacts. If you believe your child has been injured due to the errors of a medical professional, contact a birthing injury lawyer at Will Davidson LLP today for help.

Causes of birth trauma

There are several reasons why a birthing injury may occur, most of them natural or purely accidental. For instance, particularly large babies, especially those weighing more than 4,000 grams (8 pounds, 3 ounces) are susceptible to injury. So, too, are premature babies – those born before 37 weeks of pregnancy – due to their underdeveloped and fragile bodies.

Other factors like awkward fetal positioning or the size and shape of the mother’s pelvis can cause problems.

In some cases, birth trauma is caused or contributed to by the errors or negligence of medical professionals. It is in these instances that malpractice may have occurred and the injured family may have grounds to pursue a medical malpractice lawsuit.

Forms of birth trauma

Birthing injuries come in many forms and vary widely in severity. Swelling, bruising, and cuts are all particularly common, especially in births involving vacuum extractors or forceps. These are unlikely to have long-lasting impacts.

Other relatively common injuries include cephalohematoma, where bleeding occurs beneath the child’s cranial bones; subconjunctival hemorrhage, when small blood vessels in the baby’s eyes break; facial paralysis caused by pressure on the face during birth; and fractures, most often to the clavicle or collarbone.

Brachial plexus injuries are perhaps the most common form of serious muscle-related birth trauma. The brachial plexus is a group of nerves that supplies a person’s arms and hands. Injuries to the grouping most often occur when there is difficulty delivering a baby’s shoulders. In cases where the plexus is bruised or swollen, the baby may temporarily lose the ability to flex and rotate its arms; if the nerves are torn, the paralysis can be permanent.

Many of the most serious birth traumas are caused by the deprivation of oxygen to a child’s brain, known as hypoxic-ischemic encephalopathy (HIE). This injury is believed to cause more than 800,000 neonatal deaths per year, globally, and can stem from a wide range of causes, including brain or skull trauma, infections, prolonged late stages of labor, and umbilical cord accidents or issues. HIE can result in epilepsy, developmental delays, motor impairment, neurodevelopmental delays, cognitive impairments, and in rare cases Cerebral Palsy.

Should I consult a birthing injury lawyer?

If your child has suffered a birthing injury that you believe was caused by the errors or negligence of a medical professional, contacting an experienced birthing injury lawyer should be a top priority. However, not all medical errors are ground for a malpractice case. In Canada, medical malpractice has not occurred unless the error or omission would not have been made by another medical professional in a similar situation.

If medical malpractice has occurred, a birthing injury lawyer at Will Davidson LLP may be able to help you access compensation. Call us today at 1-800-661-7606 to arrange a no-obligation consultation and learn how we can help.


Quebec birthing injury lawsuit sparks interest

A Quebec woman is taking legal action against her obstetrical team after suffering significant injuries in the 2010 birth of her child. The plaintiff’s child was also injured during what court documents describe as “a traumatic and chaotic birth that caused numerous damages to the plaintiffs, notably a permanent paralysis to the [baby’s] right arm,” according to the Toronto Star. Will Davidson LLP’s team of medical malpractice lawyers has experience with cases involving birth trauma, and as such was interested in the specifics of this claim.

The Star reports that Anik Bourbeau and Pascal Lessard’s doctors neglected to perform an ultrasound to evaluate the size of the baby, which was delivered naturally at 13 pounds. Bourbeau had a history of difficult pregnancies and explicitly expressed a willingness to undergo a C-section, which the doctors did not recommend.

“The defendants omitted to proceed to an evaluation of the child’s size, while the clinical evolution of Madame Bourbeau demanded it,” the court documents read.

Childbirth should be a profound, meaningful, and celebratory moment in an individual’s life, which is why birthing injuries and obstetrical malpractice are such painful experiences. Significant birth traumas can have devastating and even life-long effects on both the mother and the child, which is why experienced medical malpractice lawyers are often called on to help access compensation.

Bourbeau and Lessard are seeking $1.4-million in damages from their doctors and the hospital where the birth occurred. This compensation is intended to cover loss of income for both parents, future medical costs for the child, and general damages. The case will likely be heard in Quebec’s Superior Court next May.

When a child suffers a serious injury at birth, his or her parents will often feel the impact for years. For instance, birthing complications that cut off the child’s oxygen can result in developmental disabilities, which may require extensive employment and lifestyle sacrifices from the parents. Caring for a disabled child is expensive and exceptionally challenging – if the disability was caused by a healthcare professional’s preventable error, the child and child’s family may be entitled to financial compensation.

Medical malpractice cases in Canada are often lengthy and extremely complex, which is why injured patients should contact an experienced and accomplished team of medical malpractice lawyers, like the ones at Will Davidson LLP. Our team has been helping injured Ontarians access compensation for their injuries for years; call us today to set up a free consultation and learn how we can help you put your life back on track.


Image credit: Gilberto Santa Rosa/Wikimedia Commons

Injuries in childbirth can be devastating. Here’s how an experienced birthing injury lawyer can help.

For most parents, discovering they will be welcoming a new child into their lives is an exciting and joyous time. They endlessly prepare their homes and their hearts to ensure everything is just right when the new member of their family comes along.

Few people expect the birthing process to be easy, of course. But fewer still anticipate the prospect of birthing complications, from cuts and bruises to life-threatening injuries, which can impact the health of both mother and child. If you or your spouse has suffered an injury during childbirth, consider contacting a birthing injury lawyer at Will Davidson LLP today.

What is a birth injury?

Birthing injuries can be divided into two distinct categories:

Birth defects: Birth defects are caused by a prenatal condition or action, such as genetic defects or maternal drug use. They manifest in a variety of ways, including down syndrome, congenital heart defects, and physical malformations.[1]

Birth Injuries: Birth injuries, on the other hand, occur during the actual birthing process. While most injuries are minor (bruises, small lacerations, etc…) and often resolve themselves, some can be more severe. For example, birth injuries can lead to brain hemorrhaging, nerve injuries, and perinatal asphyxia, which can result in permanent developmental disorders. [2]

In the United States alone, approximately 28,000 children suffer birthing injuries each year.[3] However, the distinction between birth injuries and birth defects is not always clear cut. It can be difficult to tell if a child’s developmental disorder is the result of the birthing process or a pre-existing genetic condition, which is why families who have endured this tragic experience should contact an experienced birthing injury lawyer before considering a legal claim.

What are the consequences of a birthing injury?

Birthing injuries can have a staggering impact on an individual or a family’s quality of life. To begin with, they can cause serious developmental disorders, like cerebral palsy, in affected children. Parents must face not only the emotional consequences of these injuries, but also cope with the financial challenges that come with caring for a disabled child. Between healthcare, physical therapy, counseling, and wages lost to providing care, birthing injuries can take a powerful financial toll on families.

If you believe your child has suffered a birth injury, there may be benefits to initiating a lawsuit. Contact a birthing injury lawyer at Will Davidson LLP to better understand how a lawsuit could help recoup past, ongoing, and future medical expenses; lost wages; and damages for pain and suffering or emotional harm.

In cases where the injury is a result of negligent medical practices, a successful birthing injury lawsuit can also act as a deterrent against future similar events. By initiating a personal injury claim, you may be sparing other parents your difficult experiences.

How do I bring a successful lawsuit?

Birth injury lawsuits require demonstrating that a medical practitioner or individual responsible for the birthing process owed you a duty of care which was breached in a negligent manner, and that this negligence resulted in an injury to your child. This can be a difficult process for several reasons.

First, it is not always easy to distinguish between a birth injury and a birth defect. As such, expert opinions supporting your claim are crucial to building a viable case against an obstetrician.

Second, proving the negligence of a medical practitioner can be an onerous task, one which requires obtaining and carefully examining many pages of medical records.

Due to these challenges, it is important to retain an experienced medical malpractice or birthing injury lawyer who can effectively build a strong case for you.

 I think my child may have suffered injuries during the birthing process. What do I do next?

If the birthing process has left your child with a developmental disorder or serious injury, there is a possibility that he or she may have suffered a birth injury. An experienced birthing injury lawyer from Will Davidson LLP can help assess your case and get you the results you deserve. Call us today to schedule your no-obligation consultation.




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