Canada: Labour And Delivery: Finding Out Why – Birth Injuries And Medical Malpractice

Last Updated: April 7 2017
Article by Neil E. Sacks

Mark Twain wrote that the two most important days in your life are the day you are born and the day you find out why. However, birth injuries arising from medical malpractice mean some children are forever denied the opportunity to learn their birth story. In these circumstances, it is difficult for parents to know what to do and where to turn. In this blog I review the nature of birth injuries, the definition of medical negligence, and how to prepare to consult with a lawyer.

Nature of Birth Injuries

Occurrence & Causes

Birth injuries usually take the form of a neurological disorder or brain injury. According to the Child Neurology Foundation, a neurological disorder relates to any condition that is caused by a dysfunction in part of the brain or nervous system which results in physical and/or psychological symptoms. In infants, neurological disorders are commonly caused by:

  • Blunt force trauma to the head (forceps extraction);
  • Prolonged compression of the brain in the birth canal; or
  • Oxygen deprivation / asphyxia (an infant's oxygen supply is compromised before, during, or after birth).

These types of trauma typically result in malformations and deformations of certain parts of the brain; damage and destruction of tissue in the brain, fluid build-up inside the brain (Hydrocephalus), and bleeding in various parts of the brain (Hemorrhaging).


Though not necessarily definitive, an infant's appearance soon after birth can sometimes indicate the presence of a neurological disorder. Common physical and behavioural symptoms include:

  • Abnormally large forehead or small head;
  • Deformed spine;
  • Distorted facial features;
  • Seizures;
  • Excessive crying and fussiness;
  • Problems sleeping while laying down; and
  • Feeding issues.

While neurological disorders are identified in some infants soon after birth, in others the symptoms are not detected until later in life when they begin to cross developmental thresholds. At this stage, symptoms of a neurological disorder may include impairments in the following areas:

  • Cognitive: attention, concentration, memory, processing language, impulse control, and communication;
  • Behavioural/Emotional: attention deficit disorder (ADD), attention deficit hyper disorder (ADHD), Asperger's Syndrome, and Autism;
  • Perceptual: spatial disorientation, vision and/or hearing issues, and pain hypersensitivity; and
  • Physical: paralysis, tremors, sleep disorders, extreme fatigue, and light sensitivity.

Additional physical symptoms relate to delayed or missed developmental thresholds such as crawling, walking, running, unassisted ascending and descending of stairs, hopping, skipping, unassisted feeding, tying shoes, balancing, drawing/colouring, unassisted dressing, and grasping/holding items.

What is Medical Malpractice?

Medical malpractice arises when a doctor falls below the standard of care. A doctor is held to a standard of reasonableness – not perfection. A doctor may fail to act in a reasonable manner in connection with:

  • Obtaining informed consent from a patient;
  • Diagnosing a patient's condition; and/or
  • Providing appropriate treatment to a patient.

The circumstances, symptoms, and condition of a patient together with the specialized skills and knowledge to be expected from the treating doctor determine the standard of care owed to a patient. The critical question is whether the treating doctor exercised the same degree of care and skill which could reasonably be expected of a similar, prudent medical professional, in similar circumstances.

Informed Consent

Under the Health Care Consent Act 1996 and common law, before proceeding with a proposed course of treatment or medical procedure, a doctor must:

  • Disclose to a patient the risks associated with treatment (this includes informing a patient of the risks specific to their unique condition);
  • Address all questions and concerns of the patient; and
  • Obtain informed consent from the patient.

In order to satisfy these requirements, there must be reasonably sufficient communication between the doctor and patient such that a patient's questions and concerns are adequately addressed. The principle of informed consent is based on the presumption that a patient has the mental capacity to make a decision about their treatment.


Once it is established that a doctor breached the standard of care, the issue becomes whether that breach caused the patient to suffer injury. This question of causation is one which is ultimately determined by a court. However, even if a patient cannot prove that a doctor specifically caused their injury to a scientific certainty, the doctor does not necessarily avoid liability. Causation is established where a patient can prove, on a balance of probabilities, that the doctor caused their injury.

Preparing to Consult with a Lawyer

There are a number of steps you can take to better prepare for consulting with a lawyer about a potential infant brain injury claim:

  • Speak with your family doctor, obstetrician, and hospital birthing staff about what happened before, during, and after the birthing process. You have the right to know what occurred during the birth of your child.
  • Obtain your child's medical records. In Ontario, you are entitled to obtain a copy of your child's medical records without any explanation whatsoever. These records provide a picture of the short-term treatment received by your child and possibly insight into the long-term medical support that your child may need.
  • Find the right lawyer. The right lawyer will have extensive medical malpractice and medical negligence experience and be as compassionate as they are tenacious. The right lawyer will:
    • Have a legal practice focusing on birth injury cases;
    • Be recognized as a leading lawyer in the medical malpractice field;
    • Possess strong trial experience and a willingness to see your child's case through to the end; and
    • Be caring, dedicated, and able to help you understand the complexities of your child's case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions