Butler v. Royal Victoria Hospital, 2017 ONSC 2792

Nurses found liable for injuries to child suffered at birth – $5.2 million dollars awarded

Released May 5, 2017 | Full Decision [CanLII]

This medical negligence trial took place in front of Justice John McCarthy in Barrie between May and October 2016. In his Reasons for Decision Justice McCarthy found liability against the defendant Hospital and awarded the minor plaintiff and her family more than $5.2 million plus costs and disbursements.

The minor plaintiff Sarah Butler was born on January 26, 2007. Sarah was born at Royal Victoria Hospital (RVH) in Barrie. She was a twin. Her twin brother Luke was delivered vaginally and had a normal delivery. Sarah was later delivered by emergency Caesarean section (c-section). Sarah displayed no spontaneous movements or efforts at breathing for more than 5 minutes after delivery. She was later diagnosed with hypotonic cerebral palsy. She has ongoing problems with speech, motor skills, learning and behaviour. Expert pediatric neurologists concluded that Sarah’s ongoing symptoms were caused by her lack of oxygen at birth.

Sarah, via her parents as Litigation Guardian, sued the Royal Victoria Hospital alleging negligence on the part of nurses who artificially ruptured the membrane of Twin B (Sarah) on January 26, 2007. There was evidence that the nurses falsified the chart of Sarah’s mother obscuring actions that led to Sarah’s brain damage. RVH admitted at the outset of trial that the nurses had breached the standard of care. The trial proceeded on causation and damages.

The plaintiffs alleged that Sarah was unemployable and will require 24 hour care for the rest of her life. Sarah also claimed damages for pain, suffering and loss of enjoyment of life and damages for future care costs. Her family members brought claims for the loss of Sarah’s guidance, care and companionship under the Family Law Act.

RVH did not dispute that Sarah suffered a lack of oxygen that caused a brain injury due to the rupture of the membranes. However, it argued that Sarah’s ongoing attentional, cognitive and behavioural issues were due to Attention Deficit Hyperactive Disorder (“ADHD”) and not due to her brain injury. It also argued that the plaintiffs greatly exaggerated Sarah’s limitations and failed to demonstrate that her condition will endure throughout her lifetime.

The plaintiffs called, amongst others, the following expert witnesses: Dr. David Berbrayer (Physiatrist), Dr. Robert Zimmerman (Pediatric Neuroradiologist), Dr. Alan Hill (Pediatric Neurologist), Dr. Phillip Wyatt (geneticist) and Dr. Max Perlman (Neonatologist).

The hospital called, amongst others, Dr. Michael Shevell (Pediatric Neurologist). He put forward a diagnosis of ADHD and Oppositional Defiance Disorder (ODD). Justice McCarthy called his evidence “a poorly veiled attempt to put forward an alternative cause for Sarah’s present difficulties other than the brain damage caused by the hypoxic ischemic event”.

Justice McCarthy ultimately concluded that the hypoxic-ischemic brain injury suffered by Sarah at birth was the sole cause of her cerebral palsy and ongoing behavioural and cognitive deficits.

Justice McCarthy awarded $250,000 to Sarah for general damages. He awarded a total of $155,000 in damages for the five family members claiming for their loss of Sarah’s guidance, care and companionship. He awarded Sarah $1,881,846 in future income loss as a result of his conclusion that she will never be competitively employable.

Justice McCarthy accepted Dr. Berbrayer’s unchallenged evidence that Sarah would live to age 69. He awarded future care costs including occupational therapy, physiotherapy, speech language therapy, behavioural therapy, attendant care to age 25 and supported independent living from the age of 25-69. The total past and future care costs awarded exceeded $2,800,000.

Judgment issued for $5,236,693.29 plus pre-judgment interest and costs to be determined.

Read the full decision on CanLII

Counsel for the Plaintiffs: Hilik Y. Elmaliah, Jeremy Syrtash and Michael Hershkop

Counsel for the Defendant RVH: Valerie Wise and Julia Lauwers

Written by

A partner at Oatley Vigmond, Ryan joined the firm in 2006 shortly after he was called to the bar in 2005. Ryan holds an Honours B.A. from York University, as well as a Bachelor of Laws (LL.B.) and a Master of Laws (LL.M.) (Civil Litigation and Dispute Resolution) from Osgoode Hall Law School.

When Ryan is not practicing law, he enjoys golfing and spending quality time with his wife and two young children.