Moncton Family Receives $2.9M Injury Settlement

"Justice: Boy suffered brain damage during routine dental surgery"

MONCTON - A New Brunswick family has received a multimillion-dollar settlement after their son suffered brain damage during dental surgery five years ago.

Heidi Paul of Elsipogtog says the money will help care for her eight-year-old son Davey for the rest of his life, but it won't undo what happened to him.

"This is not about the money,'' says Paul. "It's never been about the money. I would give the money back to have him back the way he was the day before he walked into that hospital.''

Davey was a couple of months shy of age 3 when he went to the Dr. Georges-L. Dumont Regional Hospital for dental surgery on Aug. 2, 2002. The surgery was done under general anesthesia but something went wrong. He was deprived of oxygen and suffered brain damage.

The family hired Halifax lawyer John McKiggan and launched a civil suit in December 2002 against anesthetist Dr. Amr Mahmoud, dentist Dr. Anil Joshi and the Beausejour Regional Health Authority. The matter dragged on for years before a trial date was finally set earlier this year. The trial was supposed to start Monday and was scheduled for five weeks in front of Moncton Court of Queen's Bench Justice David Smith.

But settlement talks over the last few weeks resulted in a deal being struck to avoid the lengthy trial.

According to the settlement document, litigation guardian Heidi Paul will receive $1.18 million, in addition to structured settlement payments funded in the amount of $1.7 million. The $1.7 million will be placed in an annuity and the family will receive tax-free monthly payments for Davey's future care.

The payments start this month at $7,384 and increase every year. By the time Davey reaches age 25, the cumulative amount paid out will be $1.9 million, by age 35, $3.3 million, by 45, almost $5 million, by 55, more than $7 million, and so on.

The $1.7 million comes from Mahmoud's insurance company, while the $1.18 million payment is made up of $400,000 from Mahmoud, $500,000 from the health authority, $200,000 from Joshi and an additional $80,000 to the plaintiff for costs.

Paul says the family is not receiving a big cheque with the settlement money. She says their lawyer hired an accountant to handle the money for them.

A spokeswoman for the health authority refused to comment on the settlement Friday, while Mahmoud's lawyer, Rodney Gillis, was unavailable.

Joshi's lawyer, John Barry, says his client agreed to the settlement to bring an end to the matter.

"The overall situation was a tragic situation,'' says Barry.

The lawyer says there were several expert reports done leading up to the trial and all of them agreed Joshi was not at fault in this incident. He was simply present to perform the dental work on Davey.

"In order to get this (legal) matter resolved, Dr. Joshi's insurer, with Dr. Joshi's agreement, said it would make a contribution (to the settlement) to bring about closure. It could have been a very tragic, extended trial.''

Barry said it's been a tough five years for Joshi, who still runs a pediatric dentist practice in Moncton.

"It's been very difficult for Dr. Joshi and his family,'' says Barry. "It still haunts him, but he didn't do anything wrong.''

Mahmoud no longer practises medicine and is believed to have left the province.

Paul lives with her common-law spouse Jamie Paul and their children Davey, 8, Isaac, 5, and 15-month-old Jessie Lynn. She says she's glad this legal ordeal is finished.

"I wanted to get it over with, I was sick of everything,'' she says. "I just felt like it was never going to end.''

She describes Davey as a happy, smart little boy before the surgery, who loved helping the family wash the car and loved riding his bike. His favourite thing in the world was the school bus and he was looking forward to starting school.

"Now we'll never get to see him on the bus for the first day of school or walking down the aisle at his graduation,'' Paul says.

After Davey was injured during the surgery, he was transported to the IWK children's hospital in Halifax and doctors told the family he would be a "vegetable,'' according to Paul.

When he first came home, Davey couldn't sit up and had to use a feeding tube. There has been some improvement over the years, but things are still bleak. Davey is in a wheelchair, must be fed and changed and can't communicate. Paul says she's trying to teach him to answer yes and no to questions. He does go to Rexton Elementary School, where teaching assistants work with him.

"Some days when I walk into a room, he smiles at me,'' says the boy's mother.

Other days, he doesn't have much of a reaction at all. Heidi says when he was five, doctors tested him and said he had the intellect of a nine-month old child.