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The mother of a boy who was born with severely debilitating brain injuries on Vancouver Island has settled a lawsuit against her midwife and local health authority for more than $3-million, as well as annual payments that could add millions of dollars to the cost of the case.
The annual $400,000 payments outlined in the settlement are rare, but a legal expert says if they become more common they could add an unpredictable liability to the B.C. government's finances.
Cabe Crossman was born in December, 2011, at the Cowichan District Hospital in Duncan, located about 60 kilometres northwest of Victoria. Due to injuries suffered during the delivery, he now has severe cerebral palsy and intellectual impairment, and will require extensive care for the rest of his life.
His mother, Sarah Corrin, sued her midwife, Selina Boily, the Vancouver Island Health Authority and two unidentified nurses alleging the care she received, first from the midwife and then at the hospital, was negligent. She alleged that her labour and delivery was not properly monitored, assessed or responded to. The defendants admitted liability and a B.C. Supreme Court judge approved a settlement earlier this month.
The boy's life expectancy could be anywhere from 12 to 30 years, according to the court ruling, meaning the final cost to the provincial government could be well over $10-million. In addition to ultimately being responsible for the health authority, the province also sponsors the Midwives Protection Program, an insurance plan unique to B.C. across the country.
The program provides midwives with legal expenses and covers claims against them alleging negligence while practising, if they pay an annual fee of $1,800 per year.
A separate liability insurance program for midwives is also used in Ontario, Saskatchewan, Manitoba and Nova Scotia. It was not immediately clear about the situation in other provinces.
The Midwives Association of B.C. says the cost of malpractice insurance was halved in 2007 by the Ministry of Health "due to the excellent record that midwives currently hold in relation to large claims," and reduced again in 2014.
As of this year, midwives in B.C. are required to also hold commercial general liability insurance, which they can get through the insurance provider of their choice
Paul McGivern, a lawyer with Pacific Medical Law who specializes in medical malpractice and infant injury cases, said that over the past decade he has seen a trend in which settlements for obstetric cases in British Columbia have been going up – not in quantity, but in dollar value.
Mr. McGivern, who was not involved in the Corrin family's lawsuit, has worked on many cases that have involved $3-million claims or more.
"Part of it is that the cost of care is going up. Part of it is that counsel are presenting much more sophisticated analysis of the cost of care – the evidence is getting better as to how much things cost," he said.
However, Mr. McGivern said incremental payments in the agreement, without insurance backing, is unusual.
"It is very difficult to predict what your ongoing financial obligations are going to be," he said.
"If you have one case or two cases, you can manage that. If you've got 100, 200 or 500 of those cases that build up over time, your finances can become incredibly difficult to manage and predict."
A recurring payment in a case such as this "is not unprecedented," said Barbara Webster-Evans, the lawyer who represented Ms. Corrin. "But it's probably rare."
Ms. Webster-Evans said the family requested privacy and that agreements are in place that prevent her from discussing the case in detail.
"Any of these cases when they occur are tragedies for the child as well as the family," she said.
Ms. Webster-Evans also said the value of settlements in child-delivery cases is increasing over time.
"The cost of living has gone up. The cost of care as a result has gone up – when we talk about obstetric malpractice cases, what we're really talking about is the cost of taking care of a catastrophically injured child."
The Vancouver Island Health Authority said it could not comment on whether the nurses, named in the case only as Jane Doe #1-2, had been sanctioned or if any action had been taken, as "it is personal information and we are prohibited from sharing it."
The College of Midwives of B.C., the self-regulating body for the profession, would not comment about the settlement or whether any action had been taken against Ms. Boily.