‘IT TELLS ME THAT HOS­PI­TALS CAN AND WILL DO EV­ERY­THING IN THEIR POWER TO AVOID PAY­ING COM­PEN­SA­TION’: FAM­ILY’S LAWYER IN LAW­SUIT IN­VOLV­ING HOS­PI­TAL THAT FAL­SI­FIED RECORDS RE­GARD­ING BIRTH IN­JURY.

Case sheds rare light on re­sponse to med­i­cal er­rors

Edmonton Journal - - NP - Tom Black­well Na­tional Post tblack­well@na­tion­al­post.com Twit­ter.com/Tomblack­wellNP

An On­tario hos­pi­tal ap­peared to fal­sify med­i­cal records to cover up the se­vere brain in­jury it caused a new­born baby, then de­nied any wrong­do­ing for years af­ter­ward, sug­gest court doc­u­ments that raise trou­bling ques­tions about the han­dling of health-care er­rors.

A judge last week awarded Sarah But­ler and her fam­ily over $5 mil­lion in com­pen­sa­tion for neu­ro­log­i­cal dam­age she suf­fered at birth.

Bar­rie’s Royal Vic­to­ria Hos­pi­tal did even­tu­ally ad­mit that its neg­li­gence trig­gered the in­jury — but not un­til the start of a mal­prac­tice trial last spring, nine years af­ter Sarah was born.

The case sheds rare light on the front-line re­sponse to se­ri­ous med­i­cal er­ror, and seems to il­lus­trate why so few mis­takes ever come to the sur­face, de­spite re­search es­ti­mat­ing tens of thou­sands such er­rors oc­cur yearly across Canada.

“It tells me that hos­pi­tals can and will do ev­ery­thing in their power to avoid pay­ing com­pen­sa­tion,” said Hi­lik El­maliah, the But­lers’ lawyer. “It tells us we need to be very, very care­ful and vig­i­lant when a poor out­come re­sults from a med­i­cal treat­ment. We can’t rely on what was said by a health-care provider … to find out what re­ally hap­pened.”

The brain dam­age that Sarah, a twin who is now 10, suf­fered at birth in 2007 has left her with dis­abil­i­ties rang­ing from cere­bral palsy and poor co-or­di­na­tion to cog­ni­tive deficits and speech im­pair­ment, Jus­tice John McCarthy noted in his rul­ing last week.

McCarthy or­dered the hos­pi­tal to pay $5.2 mil­lion in dam­ages, cov­er­ing loss of fu­ture in­come, per­sonal sup­port she will need for the rest of her life and other is­sues.

Royal Vic­to­ria said this week that pri­vacy leg­is­la­tion bars it from com­ment­ing on the But­ler case.

But Rachel Kean, the hos­pi­tal’s chief qual­ity and pri­vacy officer, said in a state­ment the fa­cil­ity does carry out a com­pre­hen­sive qual­ity re­view when an “in­ci­dent” oc­curs, de­vel­op­ing ac­tion plans and learn­ing from the ex­pe­ri­ence.

“RVH sin­cerely and un­re­servedly re­grets the fail­ings sur­round­ing Sarah’s birth,” Kean added. “We rec­og­nize how dif­fi­cult this has been for the But­ler fam­ily and the chal­lenges they face. The birth of a child is a joy­ous ex­pe­ri­ence and we hope Sarah and her fam­ily re­ceive the sup­port they need.”

The hos­pi­tal said it could not in­di­cate whether the nurses who wrote false in­for­ma­tion on the baby’s chart, ob­scur­ing ac­tions that caused the brain dam­age, have faced any kind of sanc­tion in­ter­nally.

A spokes­woman for the On­tario Col­lege of Nurses said a nurse who is­sues a doc­u­ment that she knows con­tains false or mis­lead­ing pa­tient in­for­ma­tion would be guilty of pro­fes­sional mis­con­duct. The reg­u­la­tor’s web­site gives no in­di­ca­tion the Bar­rie nurses were dis­ci­plined.

Jaye But­ler was al­ready in labour when she ar­rived at the hos­pi­tal early one Jan­uary morn­ing 10 years ago, and soon there­after gave birth to the first twin, Luke.

The on-call ob­ste­tri­cian was not in the hos­pi­tal, but the nurses tend­ing to her an­nounced they were go­ing to rup­ture the pro­tec­tive mem­brane around the sec­ond baby to help ease her birth, court was told.

As the am­ni­otic fluid drained away, the baby’s weight pressed down on the um­bil­i­cal cord, de­priv­ing her brain of oxy­gen and in­flict­ing last­ing dam­age.

Nine years later, the hos­pi­tal con­ceded that it had breached the stan­dard of care when its nurses “ar­ti­fi­cially” rup­tured the mem­brane, and that their ac­tion re­sulted in the girl’s cere­bral palsy, said McCarthy’s judg­ment.

But a much dif­fer­ent pic­ture emerged at the time.

Sarah’s med­i­cal charts that morn­ing in­di­cated there had been a SROM — spon­ta­neous rup­ture of mem­brane — not one de­lib­er­ately caused by the nurses. And an “un­usual in­ci­dent re­port” the next day made no men­tion of the rup­ture at all.

The But­lers’ court fil­ings in­di­cate Royal Vic­to­ria in­ves­ti­gated and even­tu­ally con­firmed in 2007 that its staff had bro­ken the mem­brane, af­ter the par­ents raised the is­sue with of­fi­cials.

But as the law­suit began, the hos­pi­tal fell back into de­nial. Its state­ment of defence makes no men­tion of the rup­ture, say­ing only that Sarah be­came “dis­tressed” and was de­liv­ered by emer­gency cae­sarean sec­tion. Staff “ap­pro­pri­ately mon­i­tored and cared” for the pa­tients, the doc­u­ment said.

Af­ter fi­nally ad­mit­ting to the mis­take last year, the hos­pi­tal still ar­gued in court that most of Sarah’s prob­lems were a re­sult, not of the brain dam­age, but of at­ten­tion-deficit and hy­per­ac­tiv­ity dis­or­der (ADHD) that she had in­her­ited.

The judge re­jected the ar­gu­ment, not­ing there was no ev­i­dence she had ADHD or that any of her prob­lems were ge­netic.

The case was fought “tooth and nail,” de­lay­ing much of the help Sarah re­quired, said El­maliah, who was as­sisted in the case by lawyers Jeremy Syr­tash and Michael Her­shkop.

A landmark 2004 study es­ti­mated that 70,000 pre­ventable er­rors oc­cur in Cana­dian hos­pi­tals yearly, re­sult­ing in 9,000 to 23,000 deaths. Sim­i­lar stud­ies since have pegged the rate of er­ror as slightly higher, or slightly lower.

Re­gard­less, in those provinces that pub­lish ad­verseevent statis­tics pro­vided by health-care fa­cil­i­ties, a tiny frac­tion of that num­ber is ever re­ported pub­licly.

JONATHAN HAY­WARD / THE CANA­DIAN PRESS

B.C. Lib­eral Leader Christy Clark waves to the crowd fol­low­ing her mi­nor­ity elec­tion win Wed­nes­day. A Lib­eral vic­tory was key to the sur­vival of Trudeau’s grand de­sign on the econ­omy and en­vi­ron­ment, writes John Ivison.

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