Claim alleges paediatricians' breaches in standard of care resulted in serious brain damage
The Superior Court of Justice of Ontario has approved a $4.5 million settlement in a medical malpractice lawsuit involving a 17-year-old boy who sustained a serious brain injury shortly after his birth.
The defendants in Hughes v. Peterborough Regional Health Centre, 2024 ONSC 4957 included the Peterborough Regional Health Centre (PRHC) and two paediatricians who provided medical care to an infant during his admission between Dec. 21–24, 2006.
The baby was delivered without complications on Dec. 4, 2006. He developed nasal congestion, cough, and poor feeding on Dec. 20, 2006. The next day, he was admitted to the PHRC for an infection with the respiratory syncytial virus.
According to the medical evidence, the now 17-year-old boy has hypoxic-ischemic encephalopathy, allegedly due to the care that he received during his hospital stay when he was two weeks old. His disability led to cognitive delays, behavioural issues, and intellectual and psychological impairments.
In 2010, his parents filed a suit making claims under the Ontario’s Family Law Act, 1990 and seeking damages for losses as a result of their son’s injuries due to alleged breaches of the standard of care.
In response, the defendants raised two theories of injury that could potentially defeat the plaintiffs’ claims. They were also prepared to present a neuroradiologist’s evidence, which could potentially prove that the injuries alleged by the plaintiffs did not lead to the brain injury that resulted in the boy’s challenges.
Through judicial mediation, the parties reached a settlement totalling $4.5 million. This amount comprised $3.825 million for the parties’ claims and the pre-judgment interest; $375,000 in partial indemnity costs and HST; and $300,000 in disbursements and HST.
The balance would be $2,614,008 upon deducting the legal fees to Gluckstein Personal Injury Lawyers and other amounts.
The amount of $2.4 million, representing the boy’s claim, would be placed in a guaranteed lifetime annuity. This annuity was projected to yield $62,638.08 in the first year, tax-free and indexed at an annual rate of two percent. Starting in 2029, he would be receiving lump-sum payments of $25,000 every five years. The remaining balance of $14,008 would be paid to the court.
As for his parents, they would receive $100,000 each for their claims.
The parties moved for the approval of the settlement and the dismissal of the action and the cross-claims involved in this case.
The Ontario Superior Court of Justice approved the settlement valued at $4.5 million upon finding it in the boy’s best interests. The structured financial arrangement would provide the injured party with significant annual income that was free of taxes and that would accrue for the rest of his life, the court said.
The court acknowledged that there was a contingency agreement with a rate of around 24 percent. The court found the amount of legal fees requested fair and reasonable. The court noted that the litigation involved complicated issues and significant risks for both the plaintiffs and the defendants, with neither side guaranteed a successful outcome.
The court also upheld the amount requested for disbursements, which were directly related to the litigation and which were reasonable, considering the complexity of the litigation and the issues involved.
