By Thaddeus M. Baklinski
TORONTO, November 30, 2009 (LifeSiteNews.com) – Barbara and Timothy Farlow, parents of a baby girl born with the non-fatal genetic disorder Trisomy 13 and who died in 2005 at 80 days old, have lost a malpractice suit against Toronto's Hospital for Sick Children.
The parents claimed that the hospital failed to give their daughter Annie proper medical care because she was disabled and alleged that the hospital placed a “do not resuscitate” order on the child without their consent.
The couple brought the suit to Small Claims Court following unsuccessful attempts at having their case heard by the Chief Coroner of Ontario and the Ontario Human Rights Commission, a process they began shortly after Annie's death four years ago.
The Farlows were not seeking a monetary settlement so much as a change in the hospital's policy to provide only “supportive care” for children with serious genetic conditions, and a review of their palliative care system.
Ontario Superior Court Justice Thea Herman ruled that Small Claims Court was an inappropriate venue, and if the case was to proceed it must be heard in Superior Court because of the complicated nature of the suit.
“I appreciate that for the Farlows this case is not about money but is about systemic change,” Judge Herman stated. “However, the remedies that Mrs. Farlow articulated in court [various orders against the hospital requiring it to, for example, change its narcotics dispensing system and give mandatory education to physicians on laws of consent] represent a significant broadening beyond the $10,000 sought in the existing claim.”
The Farlows have not used legal counsel throughout their journey seeking a resolution to their daughter's death, and an improvement in the care of the disabled, fearing the financial burden of the case might jeopardize their home, especially if they should be faced with legal costs of a court decision against them.
Judge Herman wrote that it was “difficult to determine whether the access to justice issue is about the cost to retain legal counsel, the potential for an adverse costs award, or the time and energy that would be required to pursue a claim in Superior Court,” but added that hearing the case in a higher court would “increase the likelihood that the court's ultimate disposition is based on a full and proper airing of all the evidence.”
Barbara Farlow told the National Post that she had not yet decided on what further action to undertake.
“What will we do now? Drop the case? Appeal the decision? We honestly don't know,” she wrote in an email. She said her “greatest disappointment” was her belief that the judge “failed to understand what we feel to be the significance of the issue.”
“Admittedly, we fought a poor battle,” Mrs. Farlow said. “It is not wise to learn about legal procedures in a self-taught manner while assuming a novel argument against a strong opponent.”
Alex Schadenberg, executive director of Canada's Euthanasia Prevention Coalition (EPC) told LifeSiteNews he was greatly concerned that “due to the costs associated with taking a case like this to court, the Farlow family may be forced to drop the case, and yet this is a case that needs to be heard.”
“It is sad,” Schadenberg observed, “that there isn't a contingency fund or a group of organizations or legal teams who are willing to take on important cases to attempt to establish justice for families or situations like the Farlow case. The Farlow family has already spent tens of thousands of dollars in their attempt to have justice served in the death of their daughter Annie.”
Though the hospital has consistently denied the Farlow's claim that their daughter was not receiving a normal standard of care in the hospital, Annie's medical records show conflicting diagnoses of her condition when she was readmitted to hospital with “periodic respiratory distress” three days before she died, and also indicate a “do not resuscitate” order had been placed in Annie's records without her parents' knowledge or consent.
“The fact is that Sick Children's Hospital in Toronto should be ashamed because from the beginning this case was not about money, and it was not about embarrassing a hospital. It was about establishing what actually happened to Annie, and ensuring that this never happens again,” Schadenberg stated.
See previous LSN coverage:
Parents of Disabled Girl File Human Rights Complaint against Toronto Sick Children's Hospital over Tragic Death
To read an account of Annie Farlow's life and death please see Annie's Story:
Part I https://www.lifesitenews.com/ldn/2008/jun/08061911.html
Part II https://www.lifesitenews.com/ldn/2008/jun/08062010.html