Birth Injury Litigation: Why birth injury is the most complex fight in medical malpractice

Lexpert’s Health Sciences special edition recently spoke with Thomson Rogers LLP partner Aleks Mladenovic about what makes birth and obstetric injury litigation one of the most technically demanding areas of medical malpractice and personal injury law in Canada.

Why the medicine drives the law

Mladenovic explains that labour and delivery rarely offer a clean set of clinical choices, since obstetrical teams are weighing risks to both mother and baby at the same time.

“The obstetrical team is not just responsible for treating the fetus or baby, but also the mother,” he says. “It’s a unique medical situation where different issues can conflict with one another.”

The central question in birth injury cases: what and when

For Mladenovic, proving causation in a birth injury claim comes down to two linked questions: what caused the injury and when it happened. The second question is where most cases are decided.

“The real challenge for us lies in establishing that the injury occurred as a result of or after the breach of the standard of care,” he says.

Building that case means relying on complex, sometimes contradictory data, from neuroimaging to fetal heart rate tracings to cord gas readings and reconciling all of it into a single coherent account of what happened and when.

Where medical malpractice cases are won or lost

Mladenovic points to examinations for discovery as the real turning point in birth injury litigation, particularly against experienced opposing counsel from the Canadian Medical Protective Association (CMPA).

“That’s where you really earn your keep,” he says. “Secure the right admissions there, and you have a good chance of developing a strong case on standard of care and also bolstering your case on causation.”

A lifetime of uncertainty for families

Even once liability is resolved, Mladenovic notes that costing a child’s future care often takes years to finalize. A firm diagnosis, such as cerebral palsy, may not come until the child is older, and projecting long-term needs can remain uncertain well into adolescence.

“Those are challenging issues because to some degree, you’re crystal ball gazing,” he says.

Real the full article here and learn more in Lexpert’s Health Sciences special edition.

Aleks Mladenovic is a personal injury lawyer and partner at Thomson Rogers LLP. Aleks is listed in peer-reviewed publications, Lexpert® and The Best Lawyers™ in Canada, in the areas of health law, medical malpractice and personal injury. Aleks can be reached at 416-868-3204 or by email.