SYDNEY, N.S. — A Supreme Court jury has rejected a Cape Breton mother’s bid claiming a neonatologist’s negligence resulted in permanent brain damage of her son.
After a three–week trial, the jury panel of four women and three men needed only about an hour of deliberation before finding Dr. Andrzej Kajetanowicz was not negligent in his handling of the case.
The boy’s mother, who the Cape Breton Post will not identify in an effort to protect the identification of her nine-year-old son, filed the civil suit.
The original notice of claim also named the IWK Health Centre in Halifax and the Cape Breton Regional Hospital in Sydney.
However, both institutions settled their claim with the mother less than a month before trial. Both hospitals agreed to a financial settlement, but neither institution admitted negligence. The details of the settlement have not been made public.
Ray Wagner, lawyer for the mother, said Jan. 30 that he and his client will be reviewing the case and strongly suggested an appeal is likely.
“We are very concerned about aspects of the judge’s charge to the jury and we will be reviewing that with my client,” he said.
Justice Robin Gogan presided over the trial that heard testimony from 20 witnesses including the mother and the doctor.
The boy, along with his identical twin brother, was born in 2008. Some 18 hours after birth, blood was taken from both boys as part of the Nova Scotia Newborn Screening Program that tests newborns for a host of various disorders.
The laboratory at the IWK Health Centre is the central testing site for the program in the province. An abnormal result was produced for one of the boys and the results were sent to the program co-ordinator at the IWK. A copy was also sent to the laboratory at the Cape Breton Regional Hospital.
Testimony at the trial indicated the co-ordinator failed to follow-up on the test by contacting the doctor listed on the testing papers or the family.
As for the lab in Sydney, there was no evidence the results were returned to the attending physician or the family.
The Sydney lab did forward a copy of the results to Kajetanowicz who reviewed it before filing it away. He also did not contact anyone about the result relying instead on a comment on the form stating, “Recall has been initiated by the IWK Health Centre.”
Kajetanowicz’s position was that the IWK was initiating a recall and was following up with the parties involved.
Evidence at the trial indicated that the recall comment was computer generated and no physician had verified the results. Kajetanowicz was the only doctor to actually view the form.
Some 14 months after the initial test, the child was again tested and it was discovered he was suffering from primary congenital hypothyroidism (CH) that affects the thyroid gland.
As a result, he was unable to produce a sufficient amount of the thyroid hormone necessary for healthy growth and development.
The delay in diagnosis has had a lasting effect on the child who has a learning disability, attention deficit hyperactivity disorder and autism spectrum disorder. He has difficulty controlling aggression and is considered to be a high risk to develop further mental disorders as he continues to grow. He is never expected to live independently. His twin suffers none of the same disorders.
In his final summation to the jury, lawyer Brian Downie, who represented Kajetanowicz, said his client was satisfied that the note on the form concerning recall by the IWK would result in a follow-up test.
“He was misled and it’s not his fault,” said Downie, adding his client was relying on information provided by the main paediatrics facility in Atlantic Canada.
Wagner, in his final summation, told the jury panel, that Kajetanowicz had a duty of care to follow up on the initial test result.
“He had choices but chose to do nothing,” said Wagner.