Birth botched, dream on hold

This post was written by Andrea Girones:

Alecia Fisher dreams of a day she has her own place.

At age 21, that’s not unusual for a young woman — but it is a special dream for the London woman who’s a quadriplegic, requires 24-hour care and relies heavily on her mother.

A second multi-million dollar court victory against London’s Victoria Hospital could change that, but Fisher and her mom, Wendy Durnin, aren’t counting on that yet.

After another roller-coaster ride through the courts, Fisher and Durnin are waiting to see if their second civil court victory will be appealed.

“It’s delaying her move into the future,” Durnin said. “She would like to have her own place and she deserves to and pay for her own supports.”

This week, Superior Court Justice Wolfram Tausendfreund ruled in favour of Fisher again in a case that has gone back and forth in the courts.

Durnin led the fight, knowing that something had gone terribly wrong in the delivery room.

Tausendfreund oversaw a retrial of the case heard in 2006 and 2007 by Justice Helen Rady. Rady awarded Fisher $5.3 million after determining negligence by hospital staff during her delivery on Feb. 4, 1991.

Tausendfreund, like Rady did five years ago, ruled that hospital staff failed to check Alecia’s fetal heart rate for 90 minutes while her mother was in labour.

During that time, Alecia was deprived oxygen, leading to her birth with severe brain injury and spastic quadriplegia.

Durnin’s pregnancy had been normal up to those minutes before her daughter was born.

“The neurological injuries Alecia sustained would not have happened or would have been substantially reduced,” Tausendfreund said, but for the negligence of the nurses who failed to check the baby’s heart rate.

Since the first court victory, Fisher hasn’t seen a cent of her settlement. The hospital appealed to the Ontario Court of Appeal and won a new trial, with the court determining that the original judgment didn’t properly set out the reasons for finding liability with the nurses.

Fisher’s lawyer Lorenzo Girones of Timmins was denied an appeal at the Supreme Court of Canada.

The new trial in London, with the damages already set in the first trial, began last fall and only lasted four weeks, compared to the eight months of the original trial. The outcome was the
same.

Durnin said, however, she was advised before the trial ended the hospital would be appealing again. The courthouse journey “has really tarnished my opinion of our judicial system,” Durnin said.

“Every time it’s delayed, it’s the victims being re-victimized again and again because we want closure. I can’t get on with my life.”

Durnin has remarried and moved, but still provides 90% of Alecia’s care. Alecia is on a waiting list with a non-profit organization for supports — a five-year waiting list. The settlement would allow her to fulfil her dream of independence.

“She deserves to and pay for her own supports,” Durnin said.

In the meantime, they wait to see if the appeal begins. “It’s never ending and I need it to end,” Durnin said.

LHSC spokesperson Rachelle Wood said no decisions have been made regarding the judge’s ruling. She said the decisions to appeal are not made by the LHSC but by legal counsel for its insurance company.

“We realize how very difficult the circumstances are for the family and the difficulties encountered through such a lengthy legal process. Due to privacy legislation, the hospital can’t speak to the specifics of the case,” said Wood in a statement to The Free Press.

E-mail jane.sims@sunmedia.ca, or follow JaneatLFPress on Twitter.

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