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.

Medical Malpractice Lawyers Face Challenges in Delayed Diagnosis Cases

In Ontario, some medical malpractice lawyers believe two words – “but for” – are making it difficult for injured patients to access compensation for negligence causing delayed diagnosis. Last month, Law Times reported on White v. St. Joseph’s Hospital (Hamilton) a case in which the plaintiff went into septic shock due to an undiagnosed bowel leak but was unable to recover compensation for his injuries.

The “but for” test is a test in Canadian tort law that links the damages the plaintiff has incurred with the defendant’s actions. In Clements v. Clements (2012), the Supreme Court of Canada summed up the test in these words: “the test for showing causation is the but for test. The plaintiff must show on a balance of probabilities that but for the defendant’s negligent act, the injury would not have occurred.”

Medical malpractice lawyers believe this wording confuses juries and makes it extremely difficult to prove liability in cases where negligence has clearly occurred. According to Law Times, plaintiffs have lost four out of the last five delayed diagnosis cases heard in Ontario’s courts.

“’But for’ is meant to encapsulate an event that causes or contributes to the harm,” one lawyer affiliated with the White v. St. Joseph’s case told Law Times. “But juries get confused when they hear that phrase, especially when there’s more than one contributing cause and they hear only the ‘but for’ phrase.”

In White v. St. Joseph’s, the plaintiff alleged that nurses and the hospital should have noticed the bowel leak before he went into septic shock. As a result of the delayed diagnosis, the plaintiff spent an extended time in hospital, including a stay in the intensive care unit, and underwent remedial surgery. However, an expert witness at the trial testified that “most of Mr. White’s outcome was unavoidable,” and the trial judge determined that the hospital had met its standard of care.

The Court of Appeal for Ontario upheld the trial judge’s decision using the ‘but for’ test. “In other words,” the decision read, “’but for’ the alleged delay would the plaintiff have suffered the unfavourable outcome?”

The plaintiff lawyer who spoke with Law Times believes the case leaves plenty of room for confusion and prejudice in subsequent jury trials.

“Nobody says ‘But for my car’s flat tire, I’m late,’ because that’s inconsistent with plain language,” he explained. “They say, ‘I’m late because I had a flat tire,’ and courts should approach causation in the same way.”

While medical malpractice cases involving delayed diagnosis are challenging, Will Davidson LLP’s team of medical malpractice lawyer has successfully secured compensation for its clients at all levels of court. If you’ve been injured in a medical setting, reach out today to learn how we can help.

Unnecessary childhood chiropractic treatments raise alarms among pediatricians


Pediatricians are concerned that certain Canadian chiropractors are promoting unnecessary corrective spinal manipulations for young children and infants, according to a report from the National Post. While the procedures are generally harmless, they put patients at risk of serious injuries that would necessitate the services of a personal injury lawyer.

At the heart of the issue is chiropractors’ claims that spinal adjustments can address a diverse range of childhood ailments, including learning disorders and food allergies. However, the Canadian Paediatric Society (CPS) has warned parents that chiropractic procedures are not an effective substitute to medical treatment. “Parents should be made aware that there is a lack of substantiated evidence for the theory of subluxated vertebrae as the causality for illness in children,” the organization has stated.

Dr. Douglas Mack, an assistant clinical professor at McMaster University, told the National Post that he has treated nut-allergic children who consumed nuts after being told by their chiropractor that spinal therapy could help.

“It’s often an ‘us’ against ‘them’ perspective and I don’t think it needs to be,” Dr. Mack said. “But when they overstate what is outside of their realm, quite honestly that borders on fraudulent.”

According to the Post, some chiropractors tell clients that as many as 80 per cent of newborns suffer trauma at birth, for which spinal manipulation is a safe and beneficial treatment.

“There’s a lot of anecdotal reports and scary memes where they show the obstetrician or midwife pulling the baby out by the neck,” said Dr. Clay Travis Hones, a pediatrician in Massachusetts, to the Post. “But there’s no legitimate evidence that any appreciable per cent of babies suffer subluxations to the spinal bones or any injury that would be amenable to adjustments…. They’re just scare tactics.”

While rare, injuries associated with childhood spinal manipulations can be extremely serious. In 2007, researchers at the University of Alberta reviewed 13 published studies on the subject and found more than a dozen injuries, including nine serious ones and two that resulted in death.

The study also identified two meningitis deaths that occurred when chiropractors attempted to treat the illness rather than referring the patient to a physician. This situation could constitute a form of medical malpractice that a personal injury lawyer would be capable of addressing.

If a member of your family has been injured as a result of an improper medical procedure, contact a personal injury lawyer at Will Davidson LLP’s Oakville offices today to arrange a free, no-obligation consultation. Our team can help you understand your legal options.

Medical regulatory body comes under fire for delayed, lenient punishments


The College of Physicians and Surgeons of Ontario (CPSO) is the regulatory body that oversees and disciplines doctors, nurses, dentists, and other healthcare professionals in the province. Its stated goal, according to its website, is to “regulate the practice of medicine to protect and serve the public interest.” Unfortunately, the CPSO’s long history of leniency toward its members has prompted critics, including some medical malpractice lawyers, to question whether the body is fulfilling its obligation to patients.

Two recent cases exemplify the issue. The first involves Toronto doctor Javad Peirovy, who the CPSO found guilty three years ago of sexually abusing four female patients, according to the Toronto Star.

While the CPSO’s prosecutor argued that Peirovy should lose his license, the body’s disciplinary panel decided on a much lighter sentence that included a six-month suspension. The prosecutor appealed the decision to the Ontario Divisional Court, where it was overturned.

“[The punishment] was inadequate to protect the public and vindicate the integrity of the profession,” the Divisional Court’s decision reads. “The public’s confidence in the medical profession demands more from the disciplinary process than recent sexual abuse discipline cases suggest.”

However, because no final decision has been made on Peirovy’s punishment, he is still actively practicing, with some restrictions.

The second case involves St. Thomas, Ontario, obstetrician-gynecologist Cathy Frank who, the Star reports, has been implicated in more than 60 lawsuits dating to 2003. In February, the CPSO suspended her for two years. Its decision cited numerous medical errors, including failure to determine the causes of patients’ symptoms before performing surgery; failure to establish consent before performing procedures; and failure to adequately monitor and assess post-operative patients.

Critics, including medical malpractice lawyers, have questioned whether Frank’s punishment matches the severity of her mistakes and whether injuries would have been avoided if the CPSO had acted faster.

“While there is that amount of relief, there is anger,” Lorraine Kinninmont, a former patient of Frank’s, told the Star. “Why did the (college) take so long and how can they be held accountable? How can they change their processes to avoid this in the future? This goes back to 2003. I look back and it makes me angry because maybe had the (college) acted properly the first time, I wouldn’t have been injured … My goal has always been to stop other women being hurt.”

When a doctor or other healthcare professional has a history of committing harmful errors, the College of Physicians and Surgeons of Ontario must act to protect the public. Unnecessary delays and lenient punishments put patients at risk of further injuries.

If you or a member of your family has been injured because of the error or omission of a healthcare professional, contact the medical malpractice lawyers at Will Davidson LLP today to arrange a consultation. Our experienced team can help you understand your legal position and guide you on your best path to recovery.


Image credit: Brian Turner/Flickr

Overcrowding at Ontario’s hospitals puts patients at risk


Many of Ontario’s hospitals were dangerously overcrowded in 2017, leading to conditions that put patient safety at risk and can, in some cases, result in a medical malpractice lawsuit. Last December, leaders from the Ontario Hospital Association (OHA) warned in unusually dire terms that the province’s hospitals were “on the brink” of a “crisis,” according to the Toronto Star.

In a prebudget submission to Ontario’s finance committee, the OHA requested a 4.55 per cent funding increase, approximately $815-million, for 2018-19.

“An increase of 4.55 per cent in hospital funding in 2018-19 will ensure that hospitals have the resources needed to avoid a significant capacity crisis in Ontario’s health care system,” reads the document, titled ‘A Sector on the Brink: The Case for a Significant Investment in Ontario’s Hospitals.’

“The sector is heaving under enormous pressure right now,” said OHA president Anthony Hale. “Hospitals really need significant investment next year to maintain access to existing levels of services.”

Approximately half of the province’s 143 hospitals hit 100 per cent occupancy during summer 2017, and some reported 140 per cent occupancy over the course of the year. The international standard for safe occupancy is 85 per cent, the Star reports.

The effects of overcrowding in hospitals are many. The OHA’s prebudget submission lists longer wait times; increased volume in emergency rooms; and run down, past-its-prime equipment. Hospital overcrowding can also put tremendous pressure on staff, force patients to be housed in make-shift facilities like hallways and staff lounges, and increase risk of infection. In other words, overcrowding creates an environment where an error leading to a medical malpractice lawsuit is more likely to occur.

The Government of Ontario has announced several measures intended to ease the overcrowding crisis, including adding 1,200 beds for this year’s flu season; investing $40-million in home care in order to open up hospital beds; and introducing 5,000 new long-term care beds over the next four years. But without additional funding commitments, these actions are unlikely to produce lasting improvements.

Ontario’s population is expected to grow by more than 30 per cent over the next 25 years, during which time the number of seniors in the province is expected to double. By 2041, people aged 65 and over are expected to make up 25 per cent of the population. The coming population boom and overall aging trend will continue to strain hospital capacities unless substantial changes to the healthcare system are made.

If you or someone you love has been injured due to a medical error, contact the Oakville personal injury lawyers at Will Davidson LLP to discuss whether you have grounds to initiate a medical malpractice lawsuit.


Image credit: Master Sgt. Efrain Gonzalez/U.S. Air Force

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