$5.2M award in Ontario birth injury lawsuit

Case sheds rare light on response to medical errors

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.