Birth and obstetric injury litigation asks lawyers to untangle complex medical evidence, work across multiple clinical specialties, and build a case that accounts not only for what went wrong but for the lifetime consequences that may follow. The result is one of the most technically demanding corners of personal injury law, where every stage, from discovery to expert evidence to long-term care planning, depends as much on scientific understanding as legal strategy.
‘A unique medical situation’
For Aleks Mladenovic, head of the medical malpractice group at Thomson Rogers LLP, the legal complexity begins with the medicine. Labour and delivery rarely present straightforward clinical choices. Instead, obstetrical teams are balancing competing risks to two patients while making decisions that may later be scrutinized in court.
“The obstetrical team is not just responsible for treating the fetus or baby, but also the mother,” Mladenovic explains. “It's a unique medical situation where different issues can conflict with one another.”
Compounding that challenge is the fact that the fetus cannot be observed directly. Fetal wellbeing is assessed on an electronic fetal monitor, and to a large degree that’s the extent of the assessment. Reading the resulting fetal heart rate tracing is itself an interpretive act, and one prone to inter-observer variability. That further complicates demonstrating a breach of the standard of care and lends itself to dispute among witnesses and experts.
The issue of causation is also fraught, with two questions at its centre: what was the mechanism of injury, of which there can be many, and what was the timing. The second is where these cases turn.
“The real challenge for us lies in establishing that the injury occurred as a result of or after the breach of the standard of care,” Mladenovic says. “In order to make that determination, you rely on a host of very complex data sets.”
Within all those domains, issues arise in interpretation and correlation of the findings to the mechanism and timing of injury. A good example is neuroimaging, which reveals which areas of the fetal brain were adversely affected. An acute, near-total asphyxia tends to involve the deeper brain structures, while a prolonged partial hypoxic ischemic injury shows up in regions such as the brain's watershed areas.
But the picture is rarely tidy. If a prolonged partial event continues long enough, Mladenovic notes, it can begin to damage the deeper structures too, including the basal ganglia and the thalamus.
“The science lends itself to analysis and argument between the experts about how to interpret all of these data points separately and individually.”
The good, the bad, and the always evolving science
The data sets these cases are built on are not static. Guidelines and assumptions about the nature of fetal neurological injuries and their link to intrapartum events have evolved over time. As just one example, Mladenovic notes that the so-called “essential criteria” for linking an intrapartum event to fetal hypoxic ischemic injury has changed significantly over the years.
In 2003, the Americal College of Obstetricians and Gynecologists (ACOG) promulgated guidelines, entitled “Neonatal Encephalopathy and Cerebral Palsy” (informally known as the Green Book). For years after the Green Book’s publication, defence experts and counsel argued that to establish that intrapartum events caused brain injury, the child had to ultimately be found to suffer from spastic quadriplegic cerebral palsy.
“This was always nonsense based on bad science and misrepresentation of the data,” says Mladenovic. “In reality, intrapartum asphyxia results in a much broader range of neurologic outcomes than just spastic quadriplegic CP — in fact, not all babies who suffer significant intrapartum hypoxia or ischemia go on to develop cerebral palsy, and their motor function in many cases is totally preserved.”
In 2014, ACOG revised its Green Book to take out the essential criteria, calling its revised guidelines “Neonatal Ecephalopathy and Neurologic Outcome.” Mladenovic notes that “removing cerebral palsy from the title and replacing it with neontatal encephalopathy was telling.”
But Mladenovic claims that even this revised version of the Green Book is “defence-oriented and serves as a litigation shield for obstetrical care providers; there’s still plenty of bad science in the later version of ACOG’s Green Book.”
The technology underpinning the science is also constantly advancing, uncovering more about what tests and images can reliably show. For example, there’s a body of literature about how rapidly cord gasses change — the rate at which measures like base excess and pH shift in the event of a total asphyxia — and that literature is part of how the timing of an injury is reconstructed.
Much of the literature is contradictory or contested, with various groups of doctors and organizations backing different positions. While lawyers rely on experts to a large degree, “it behooves those practicing in this area to understand the basic science and keep pace with the literature.”
“Some is useful; some, as I’ve said, is frankly bad science,” Mladenovic notes. “You have to be able to distinguish between them and be prepared to challenge defendants and their experts on what the literature actually says.”
He points to his experience that defendants, defence counsel and their experts sometimes raise a line of criticism about the value of electronic fetal monitoring on the basis that it hasn't reduced rates of C-sections or intrapartum injury. Mladenovic considers this argument to be a red herring. A genuine intrapartum injury, he argues, never fails to leave a mark on the monitor.
“The real question you should be asking is, ‘what does the tracing tell us about how this baby is doing, and when did it start to show signs of distress?’ If a baby is in distress from hypoxia or ischemia, it always manifests on the tracing.”
From theory to trial: proving the case in practice
Answering the decisive question of when the injury occurred calls for a single coherent account of evidence that doesn’t always agree. Mladenovic typically begins by having a neuroradiologist read the pattern of damage and opine on whether it was an acute, profound, total asphyxia or a prolonged partial event and approximate that the injury occured at or near the birth. From there the picture is assembled piece by piece.
“We marry that opinion with evidence from the fetal heart rate tracing, which often tells us when the insult began,” Mladenovic explains, adding they layer on the newborn’s condition after delivery including data from cord gases, APGAR scores, whether the baby seized within the first 8 to 12 hours, whether there was multi-organ involvement, what resuscitation was needed, and whether the baby had to be cooled.
“When you take all of that information and combine it, only then can you clearly get a sense of the mechanism and the timing of the injury,” he says. Then comes the question of whether earlier or different intervention would have changed the outcome.
Reconciling the evidence and opinions into one theory is its own discipline, at times requiring experts to formulate a considered consensus and test where the case is strong and where it is not.
But where cases are truly won or lost, Mladenovic says, is at examinations for discovery. It’s not a fight for the inexperienced. On the other side sits the Canadian Medical Protective Association (CMPA), whose counsel know how to mount a strong defence.
“That’s where you really earn your keep,” he says. “Secure the right admissions there, and you have a good chance of developing a strong case on standard of care and also bolstering your case on causation.”
As an illustration of the complexity of obstetrical malpractice cases, Mladenovic points to a case he litigated through to trial, involving an undiagnosed placental abruption. In Milne v. St. Joseph's Health Centre, the court found the obstetrical team liable for the child's cerebral palsy, caused by asphyxia after a delayed Cesarean section in the setting of an abruption. One defendant, a junior resident, settled; before trial; the case proceeded to trial solely against the hospital and its obstetrical nurse. The result was a significant trial victory for the plaintiffs. Mladenovic singles the case out for its detailed causation analysis, including how the evidence can be read backward, through measures like base excess and pH, to determine when the injury began.
A lifetime to account for
When it comes to the damages component, the work of costing a child’s future care and income loss must wait not only for the question of fault to be largely settled, which can take years, but also for a firm diagnosis from a neurological standpoint. Cerebral palsy, for example, is often not confirmed until the child is three years old. Cognitive impairments and behavioural problems may not fully manifest until the child is much older.
Even with a diagnosis, the full prognosis isn’t immediately clear. Putting a price on the support the child will need into adulthood requires a wide roster of expertise. Mladenovic and his team turn again to its experts, gathering the opinions of paediatric neurologists, neonatologists, occupational and physical therapists, and speech-language pathologists. Each speaks to a different dimension of what the child will require across a lifetime and culminates in a life-care plan.
The difficulty, Mladenovic says, is that so much is a projection. Will the child ever live independently? Will they need assistive aids at home, or round-the-clock care? Will behavioural issues require supervision for life? The answers may not emerge until later: aggressive personality and disinhibition look much different at fourteen than two, for example.
“Those are challenging issues because to some degree, you're crystal ball gazing — at any time, but particularly in the early stages,” he says, adding that his team must balance resolving the case with building as comprehensive an understanding as possible of the child’s needs.
Obstetrical negligence cases are high-risk, high-reward, and demand an expertise that necessitates mentorship. Mladenovic learned from skilled senior counsel who knew the area well and, as a twenty-year veteran in the space, he now passes on his knowledge to those coming up behind him. That includes his belief that while it’s not an easy area of law, it’s deeply gratifying.
“What our clients endure to get there, often seeing no money over the first decade of their child’s life, is a sacrifice that’s frankly heroic,” Mladenovic says. “When we get a good result in these cases, the award or settlement is almost invariably life changing. That’s what stays with me.”
This article was produced in partnership with Thomson Rogers LLP