A Most Uneven Playing Field, The Case of Baby Morgan

The is the first in a series of six stories on the Canadian Medical Protective Association provided to the Monitor Telegram.

In Canada, the system of publicly-funded universal health care, despite being incomplete in that it does not cover prescription drugs, dental, vision care or other supplementary services, is regarded as being one of the best in the world.  Countless Canadians have received first-rate life-enhancing and life-saving treatment from competent and caring doctors.

And some haven’t.

Just ask Wylie Bystedt whose infant daughter, Morgan, was irreparably harmed by a physician who correctly diagnosed the newborn’s ailment but failed to treat it.  As a result, Morgan is now a spastic quadriplegic with severe neurological, visual and auditory impairment and requires constant specialized care.  Wylie, a single mother struggling to support Morgan and her sister, battled for years to get the financial compensation she so desperately needed.

After a lengthy court battle, Morgan was awarded around $1.8 million for her ongoing care but Morgan was ten years old before she saw a dime, thanks to the efforts of the defendant doctor’s lawyers who were bought and paid for the by Canadian Medical Protective Association, a private organization who uses their multi-billion dollar war chest in the defense of doctors with a no-holds-barred approach.

These lawyers, acting in accordance with what has been called the CMPA’s “scorched earth defense strategy”, denied the doctor did anything wrong and blamed the mother saying that the baby’s ailment was contracted in the womb.  And the CMPA brought in a whole host of rented “experts” to say so.

But the judge didn’t buy it, saying:

“In short, the defendant’s theory of causation is like trying to fit a square peg in a round hole.  Some of the corners fit if positioned correctly but the whole peg just won’t go in.”

The judge also had this to say about what that little baby had to endure:

1. I have no doubt that she suffered considerably from the disease. 
2. She had numerous SEM outbreaks [serious respiratory disease] in the first 14 months of her life which remained untreated. 
3. During the first six months of her life, she experienced the onset and progression of encephalitic episodes [swelling of the brain] that caused profound damage to her central nervous system and destroyed her brain tissue. 
4. She cried inconsolably as if in pain and only fell asleep when exhausted. 
5. She went through adductor surgery to loosen the tendons and muscles of her hips and was on painkillers for some time after the surgery. 
6. She had further surgery for the insertion of a G-tube so she could obtain the necessary nutrition to live. 
7. The evidence supports a finding that Morgan has suffered considerably in her short life.

Wylie Bystedt asked the Court for the sum of $286,000 for baby Morgan’s pain and suffering.  The CMPA lawyers had the unspeakable effrontery to counter with the sum of $50,000 because the baby was too damaged to appreciate more than that.  They said:

Morgan’s ability to cognitively appreciate her position in relation to others or to appreciate any money spent to improve her condition is unfortunately negligible at best, thereby diminishing her claim under this head of damage.

 But, wait.  There’s more.

Morgan’s mother also asked for costs for the ongoing care that the child is certainly going to need.  The CMPA lawyers opined that Morgan’s life expectancy was 20-23 years and that the award should be based on that and not the 45 years that the plaintiff put forth.  In other words, “she’s not going to live that long anyway so we shouldn’t have to pay as much”.

 And you thought the story of the man murdering his parents and then pleading for leniency because he’s an orphan was just an old joke.

When all was said and done, the Judge awarded baby Morgan $1.8 million in damages and cost of past and future care.

Wylie’s lawyer, Thomas Harding, describes the CMPA defense strategy like this:  “If my dog bit you, it wasn’t my dog … you weren’t bitten … it wasn’t you … the dog was drunk … you goaded the dog … you bit the dog”.

Interestingly, one of the CMPA lawyers, in that case, says that he is now “acting exclusively in plaintiffs’ medical negligence and infant injury litigation cases”.  Perhaps he lost his stomach for the egregious defense tactics of the CMPA.

And guess what – Morgan’s mother paid for the CMPA lawyers.  So did I.  So did you.