Failure to appropriately detect and treat bilirubin levels allegedly causes neurological problems
A recent Ontario ruling said that it was unusual that the plaintiffs’ lawyer did not support the terms of a proposed settlement of a medical negligence action despite receiving instructions to bring the motion seeking court approval of the settlement.
In July 2013, a child of Nigerian descent was born prematurely at 32 weeks gestation. He had a low birthweight and a glucose-6-phosphate dehydrogenase enzyme (G6PD) deficiency, which caused his red blood cells to break down prematurely. He soon developed hyperbilirubinemia and severe jaundice, caused by excess bilirubin in the blood.
After the discovery of his elevated bilirubin levels, he was transferred to a hospital where he underwent a transfusion to exchange his blood with donor blood with normal bilirubin levels. Despite that, he suffered neurological injury due to hyperbilirubinemia and kernicterus.
He experienced the following conditions: cerebral palsy, spastic quadriparesis, increased tone peripherally, a bilateral loss of hearing, coordination issues, fine motor control issues in his hands that made it difficult for him to dress and to eat, balance and mobility issues, and bilateral ankle/foot orthoses.
The plaintiffs’ medical negligence action alleged that the defendants’ failure to timely and appropriately monitor, detect, and treat his bilirubin levels caused permanent neurological damage.
Last August, during mediation, the plaintiffs and the defendants made all-inclusive settlement offers of $6 million and $4.85 million, respectively. The defendants then accepted the plaintiffs’ offer of $5 million.
The next month, the plaintiffs’ counsel wrote an opinion directed to the minor’s mother and father, who was also the litigation guardian. He explained why he did not recommend the proposed settlement and would not swear a supporting affidavit for the court’s approval.
After reading the opinion, the minors’ parents gave the lawyer written instructions to proceed with the proposed settlement and to seek court approval. The lawyer acknowledged that the parents loved and cared for the minor.
In Anjayi v. Miller, 2023 ONSC 6246, the Ontario Superior Court of Justice granted a partial sealing order to preserve solicitor-client privilege and to avoid prejudicing any continuation of the action. The court then approved the settlement and fees for this case.
The court accepted that the minor’s complex claim involved potential risks relating to causation and liability and that the potential trial outcome was uncertain. The court concluded, based on the evidence, that the proposed settlement would:
- serve the minor’s best interests
- fairly, appropriately, and responsibly meet his ongoing needs
- avoid the need for a lengthy and difficult trial
- fully and finally conclude the proceeding
- give closure and stability to the family
- provide a fair and reasonable basis for resolving the claim
The retainer of plaintiffs’ counsel set a contingency fee payment of 35 percent of damages plus harmonized sales tax. The court found the proposed legal fee, which reflected a reduction of the contingency fee to around 29 percent plus HST, fair and reasonable.
The court, in reaching this conclusion, considered the complexity of the case, the monetary value of the issues, counsel’s skill and experience, the risk he took to pursue the claim, the potential recovery amount, the negotiated result, and the potential for success.