Chilliwack girl’s suit goes to highest court

Cassidy suffered brain damage at birth

OTTAWA — A 14-year-old Chilliwack girl who sustained permanent brain damage when she was born will have her appeal to sue her mother’s obstetrician heard by Canada’s top court.

Cassidy Ediger was braindamaged at birth and is suing the doctor who delivered her for malpractice. She was awarded $3.2 million in damages at trial, but the decision was later overturned and Ediger appealed to the Supreme Court in August 2011.

On Thursday, the court announced it would hear her case.

Cassidy’s mother, Carolyn Ediger, said the decision validates her fight for her daughter.

“We knew it was a long shot,” she said. “Going from almost no hope to having hope again . . . it’s really been a roller-coaster.”

The first judge to hear the case found the doctor who delivered her, William Johnston, breached the standard of care during her birth. That finding was later overturned by a B.C. court of appeal.

Cassidy, who is represented by her mother, was deprived of oxygen for 18 minutes during her birth, causing severe and permanent brain damage.

Late in Ediger’s labour, Johnston attempted to assist the delivery with a forceps procedure.

When that didn’t work, Ediger had to have a caesarean section and Cassidy had to be resuscitated.

During the 18 minutes between the abandoned forceps procedure and her resuscitation, Cassidy’s heart slowed and deprived her brain of oxygen.

Ediger said she hopes the case will give her family the means to provide for Cassidy’s care and treatment and get the help she needs.

“Our ultimate hope would be that the appeal court’s decision is overturned,” said Ediger. “Though it’s been a long journey, if we can get there one way or another that’s what we’re hoping for.”

“We knew it was a long shot. Going from almost no hope to having hope again . . . it’s really been a roller-coaster.”

— Carolyn Ediger, who is appealing her daughter’s case to the Supreme Court of Canada

In the original action, Ediger sought damages for Cassidy’s pain and suffering, loss of enjoyment of life, loss of income-earning capacity and the cost of her care, according to court documents.

The average life expectancy for someone with her kind of brain damage is 38 years, according to court documents.

The original trial judge concluded that Johnston breached the standard of care by trying a forceps delivery without making sure there was available backup for a caesarean birth, the documents said. The judge also concluded that the attempted forceps delivery is what caused Cassidy’s heart to slow. Ediger was awarded $3.2 million.

Johnston successfully appealed the decision last year after a court of appeal found that it was not possible to prove that one caused the other.

“Medical negligence cases, particularly those involving the delivery of a child, can be challenging in many respects. One can only feel sympathy for the tragic consequences that Cassidy has suffered from the injuries she sustained in birth, and for the demanding responsibilities that her parents lovingly provide in meeting her daily challenges,” Justice Daphne Smith said in the 2011 decision.

“However, the burden of proof in any tort action remains with the party who advances the claim. In my view, that burden was not met on the evidence in this case.”

No date for the hearing before the Supreme Court has been set.