Judge approves $6,625,000 Settlement for Child born with Severe Brain Injury

Posted by Stevenson Whelton LLP
April 15, 2019

Based on Canadian data for 2014-2015, about 1 out of every 18 (or 6 per cent) of patients who are admitted to hospitals experience a harmful incident that could likely have been prevented.  And, in about 20 percent of these cases, the patient actually experienced more than one harmful incident while in hospital.  

According to Statistics Canada, the most common harmful event in Canadian hospitals is surgical error, followed by errors in medication or fluids given to a patient.  Other events that are also not uncommon are infections and injurious falls.  The information on medication errors is retrieved from clinical records and is recognized as being incomplete since it’s believed that only potentially life-threatening errors (about 5 percent of errors) are actually recorded in patients’ charts. 

Patients who have multiple medical conditions, such as diabetes and heart disease, are at a higher risk of error or harm while in hospital.  This is related to the fact that such patients are typically being treated by several specialists and have more complex health issues. The data for hospitals in Canada doesn’t indicate whether or not, or how many, patients died as a result of these events, but many medical errors have the potential to cause death or a serious injury or illness, particularly for patients who are at higher risk due to their health, age or another risk factor.

Medical malpractice case: Batalla v. St. Michael’s Hospital (2016)

A personal injury lawsuit arose after a baby was born with severe brain damage, which resulted in very limited cognitive functioning, visual impairment, seizures and diminished motor skills.  The child’s cognitive functioning is expected to remain at a two- or three-year-old level; he will always be dependant on caregivers; and will never be employable.   

The plaintiffs sued the hospital and treating physician alleging that negligence during the delivery caused the baby’s injuries, and claimed that the baby’s brain damage occurred during labour. There was a brief period when the baby did not receive oxygen just prior to his birth and he responded well to resuscitation.  However, his mother was diagnosed with Group B Streptococcus before being admitted to hospital and this added another severe compromise to his health in the days before his birth, as well as an infection in the placenta and umbilical cord.  Together, it was asserted that these circumstances led to the child’s severe brain damage. 

The defendants disagreed with the plaintiffs’ arguments, arguing that the child’s brain injury resulted from an infection in the mother’s uterus which existed before the delivery, and this opinion was supported by the defence’s medical experts.

Total damages in the amount of $6,625,000, were agreed to by the opposing parties in mediation, subject to approval by Justice Wilson.  In her consideration of the motion to accept the settlement, the judge noted that the defendants did not submit reports suggesting that they met the standard of care or that the treatment provided by the hospital and physician was appropriate in the circumstances.  In the absence of such reports, Justice Wilson concluded that the defendants were not seriously pursuing the ‘standard of care’ issue and therefore, she would accept the plaintiff’s expert evidence alleging that the standard of care was breached and the defendants are negligent.

The lawyer for the plaintiffs proposed that damages be reduced by 35 percent, in the hopes that an apportionment of 65/35 liability in favour of the plaintiffs would eliminate the need for a trial.  The lawyer stated that if this case went to trial, there is a risk that the jury may accept the defendants’ explanation for causation which attributes the baby’s injuries to an infection in utero, rather than an event that took place during labour.

Justice Wilson stated that a 35 percent reduction in liability is a reasonable approach, given the uncertainty of the outcome on causation, in a future trial.  Also, the judge approved the $6,625,000 settlement but stated that she believes that this amount is low based on the severity of the child’s injuries, his inability to communicate effectively, and the fact that he will always be totally dependant on caregivers. The judge suggested that, given the child’s severe disabilities and expected life expectancy of 60-65, $8.8 million reflects the low end of the range of damages that might be awarded at trial and a reasonable assessment of damages is closer to $10-$12 million.  


Lawsuits involving alleged errors in childbirth where the baby has a compromised outcome are particularly complex. But, like other malpractice actions, they typically must resolve the issues of negligence, causation, standard of care and damages.

At Stevenson Whelton MacDonald & Swan, our medical malpractice lawyers can provide you with a realistic assessment on the strength of your claim, if you became injured or had your health compromised due to negligence by a medical practitioner or hospital.  Call our office today for a free no-obligation consultation.

Disclaimer: Our blog is intended to inform our existing and prospective clients about topics pertinent to their lives. While our goal is to provide accurate and factual information, this in no way should be taken as legal advice or applied to specific cases. It is in your best interest to contact a licenced and practising lawyer for legal representation, as matters of the law are often complicated and cannot be fully assessed without knowing all of the details of a case.