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.
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.