Hospital found liable for child’s ataxic hypotonic cerebral palsy

An Ontario judge this month awarded Sarah Butler, age 10, and her family over $5 million in compensation for preventable neurological damage she suffered at birth. The defendant, Royal Victoria Hospital in Barrie, Ontario, conceded shortly before trial that its nurses had breached the standard of care in delivering Sarah nearly ten years ago. The nurses artificially ruptured the membranes of the child, resulting in a compression of the umbilical cord for approximately 25 minutes, during delivery.

The National Post reports that the nurses appeared to falsify medical records following Sarah’s delivery in 2007. A ‘SROM’, or spontaneous rupture of membranes, was written on the labour and birth record, when it was, in fact, an ‘AROM’, or an “artificial” rupture of membranes. The hospital then denied any wrongdoing for almost a decade.

Justice McCarthy, Ontario Superior Court of Justice, held there to be overwhelming evidence that the plaintiff suffered a severe hypoxic ischemic event at the time of birth: “the constellation of signs and symptoms, including Apgar scores, blood gases, and seizures, in the immediate postpartum period are entirely consistent with this having been a serious event”. Sarah was diagnosed with ataxic hypotonic cerebral palsy in 2008. She continues to suffer from the following impairments:

  • low muscle tone
  • lack of coordination
  • impaired fine motor skills with hand tremors
  • impaired gross motor skills
  • poor visual motor skills
  • speech delays
  • disturbed sleep pattern
  • poor impulse control
  • poor judgment
  • cognitive deficits
  • delayed adaptive functioning
  • impaired social and emotional functioning
  • intellectual deficits
  • attention and behaviour difficulties
  • drooling and speech impairment
  • poor safety awareness

At trial, the hospital admitted that the nurses ought not to have ruptured the membranes. It also conceded that this breach in the standard of care caused Sarah to suffer neonatal asphyxia, resulting in brain injury manifested in cerebral palsy.

Instead, the hospital argued that the fact that Sarah suffered severe oxygen deprivation in the neonatal period does not prove that this event is responsible for all of Sarah’s issues, namely Attention Deficit Hyperactive Disorder, which is genetically inherited. Justice McCarthy rejected this theory as unacceptably speculative, dismissing it as requiring the plaintiff to prove a negative: “that genetic information which might emanate from more sophisticated genetic testing would rule out a genetic cause of Sarah’s condition”.

The balance of evidence indicated that the child’s cognitive deficits, impairments, and challenges resulted solely from the hypoxic-ischemic brain injury suffered at birth.