Record malpractice award justified, appeal court rules

Saturday, Sep 11, 2004

Record malpractice award justified, appeal court rules

From Saturday's Globe and Mail


A severely disabled Ontario woman whose calamitous birth in 1983 deprived her of oxygen for 15 minutes deserves the largest personal injury award in Canadian history, the Ontario Court of Appeal ruled yesterday.

The court affirmed a $10-million award for Melissa Crawford, now 20, whose parents have attended to her every need since the delivery left doctors struggling to extricate her from the birth canal.

The appeal judges reached a strong finding that because Melissa's mother was overweight and 40 years old at the time of the birth, and because the baby was abnormally large, two family doctors in Smiths Falls, Ont., ought to have taken special precautions.

The judges ruled that doctors Brian J. Penny and Greg Healey also failed to detect that her mother, Jeanette Crawford, had developed diabetes and that Melissa's birth ought to have been induced much earlier.

The birth became an emergency after only Melissa's head emerged from the birth canal. Doctors desperately pulled at her with forceps, even fracturing the newborn's clavicle in a desperate attempt to prevent death. Finally extracted, blue and apparently lifeless, the infant showed a faint heartbeat moments later.

"It wasn't so much a matter of suing as a matter of us wanting answers to questions that go right back to Melissa's birth," Mrs. Crawford said in an interview yesterday. "We are also getting older now. Our hope is that Melissa will have her own home with people she knows and trusts and that we know and trust to look after her."

Lawyers for the doctors attacked the original 2003 trial ruling, saying that Mr. Justice Denis Power of Ontario Superior Court supplied inadequate reasons for judgment. However, Mr. Justice Jean-Marc Labrosse, Mr. Justice Robert Sharpe and Madam Justice Eleanore Cronk sharply disagreed.

"The trial judge's findings on the delivery issues are clear, supported by the evidence and, in some cases, incontrovertible," the appellate judges said.

Dr. Penny, 57, is listed by the College of Physicians and Surgeons as still practising in Smiths Falls. Dr. Healey, 49, is listed as a family practitioner in Canton, N.Y., 80 kilometres southeast of Smiths Falls.

Robert Roth, a lawyer for the family, said yesterday that the award eclipses any previous personal-injury award. He said $8-million will go to Melissa's care, $1-million to her parents and $1-million to compensate the Ontario Health Insurance Plan for its expenses over the past 20 years.

"This is no windfall," Mr. Roth said. "The parents have made huge sacrifices, and the dedication they have shown is exemplary." Mr. Roth said the costs of past and future care are enormous, both because Melissa can do virtually nothing on her own and because her life expectancy is 56 years.

A quadriplegic, Melissa cannot clean or feed herself, but she recognizes faces and enjoys television shows and having stories read to her. "It's not as if Melissa is an empty shell," Mr. Roth said. "She has emotions."

Mrs. Crawford confirmed that her daughter is well aware of her surroundings. "She not really capable of doing anything physically, and she is non-verbal, but she has a beautiful smile and lots of body language."

Mrs. Crawford retired recently from her job as a nurse at the Rideau Regional Treatment Centre. Her husband, Barry, is a janitor at a chocolate factory. They purposely worked opposite shifts since Melissa's birth so they could tend to her around the clock.

Ken Hamilton, Melissa's brother, said last night that the family remains angry for several reasons.

"We are angry that it happened and was preventable, and we are angry that it took so long to get justice," said Mr. Hamilton, 32, who is now a professional in the field of physical disability. "We were first referred to a lawyer who let it sit in a closet."

After the family realized that they ought to move their case to Mr. Roth's high-powered Toronto firm, Mr. Hamilton said, the justice system still ground along at a glacial pace. "There should be a no-fault system for children with catastophic injuries," he said.

With a report from Jeff Gray


Mr. Justice Denis Power of Ontario Superior Court