20 Aug Acheson Whitley Sweeney Foley settles Shaken Baby claim for $13,000,000

Acheson Whitley Sweeney Foley settles Shaken Baby claim for $13,000,000

In December 2011, Acheson Whitley Sweeney Foley successfully negotiated a $13,000,000 settlement on behalf of E.B., a catastrophically injured infant who was shaken in a Saanichton foster home in November 2008. E.B. was only ten weeks old when she was violently shaken by Avtar Basi, the boyfriend of E.B.’s foster mother. Word of the historical settlement recently reached the media and public interest has focused on several central questions:

1. Why was the settlement so large? E.B.’s settlement for her severe and profound brain injury is the largest award for a single injured person in British Columbia legal history. Her settlement reflects the catastrophic nature of her injuries, E.B. will never live independently and will require 24 hour monitoring for the rest of her life, which is estimated to be 65 years. E.B. will also require extensive specialized equipment to assist with her mobility, daily functioning and activities of daily living. E.B.’s care needs were recently the subject of a ChekTV news story. It is important to understand that E.B.’s settlement is not a “windfall.” The settlement funds are monies that E.B.’s trustees will have to spend over the course of her life to properly care for her and meet her basic living needs.

2. What happened? E.B. was removed from her mother at birth by MCFD social workers. After two short term initial placements, she was placed into a third foster home, where six other children were already residing. Shortly after E.B.’s removal, her grandfather moved from Ontario to British Columbia and sought custody of E.B. Unfortunately, MCFD social workers did not move quickly to assess the grandfather’s suitability and E.B. remained in the foster home until it was too late. In the meantime, MCFD social workers were aware that E.B.’s foster mother had allowed a recent boyfriend to move into the foster home before his suitability as a caregiver could be assessed. When the responsible social worker learned of the presence of the boyfriend, Avtar Basi, she undertook a preliminary criminal record screen which was inconclusive but suspicious enough that it required immediate action and investigation. At that point, the social worker should have either removed all of the foster children from the home or required Mr. Basi to move out. This was not done and three months later, Mr. Basi shook E.B. causing her injuries. On the morning in question, the foster mother had left Mr. Basi in the home alone with four foster children, three of whom were under the age of 2. Unfortunately, it was not until after E.B. was shaken by Mr. Basi that MCFD evaluated the suitability of the grandfather, who is now the guardian and primary care giver for E.B. These injuries were tragic and clearly preventable had MCFD social workers responded appropriately and/or in a timely manner. The foster mother should not have left Mr. Basi alone with four foster children when he had not been approved by MCFD.

3. What is Shaken Baby Syndrome (SBS)? SBS is caused when an adult shakes an infant causing rapid acceleration/deceleration of the infant’s neck and head. Normally, severe damage is done to the blood vessels and brain tissue. Medical experts use the term “abusive head trauma” to describe the reality of SBS. Usually this type of shaking is seen in association with a flustered, overwhelmed parent or caregiver who reacts violently to normal infant inconsolable crying. The precise forces required to cause SBS are not well defined, but experts describe the forces as “significant, violent, and repetitive shaking: the type of force which to an observer would obviously cause serious injury or death.” SBS is sufficiently common that the British Columbia Government has sponsored an initiative called “The Period of Purple Crying” in which all new birth parents in the Province are issued an instructive DVD and brochure of the risks of SBS with advice on how to respond to inconsolable infant crying.

In another case, Acheson Whitley Sweeney Foley recently successfully represented a Nanaimo infant who was catastrophically injured when he was shaken by a foster parent in a Nanaimo foster home. “C.J.” received a settlement of $5,500,000 as compensation for a 2006 assault when he was only 6 months old. While C.J.’s injuries were severe, his regained level of function was better and his care needs were not as significant as with less fortunate SBS survivors, such as E.B.

Acheson Whitley Sweeney Foley is committed to achieving justice for victims who have been injured at the fault of another person or organization, regardless of the challenges and complexities of the case and regardless of the financial or legal resources of the defendant. In another recent case, Meghji v. Lee et al the firm was successful in the pursuit of a large institutional defendant whose negligence caused significant injury to an innocent pedestrian. To succeed, the firm hired electrical and road safety engineers to undertake a forensic engineering audit of the roadway lighting at a Victoria, BC intersection going back to 1977. The audit turned up a critical mistake in 1983 which created a dark zone in the crosswalk at the precise location where the pedestrian was hit by a motorist. The case not only resulted in compensation for the injured pedestrian, but also caused the Ministry of Transportation and Highways to remedy the lighting deficits, making the roadway safer for pedestrians, cyclists, and motorists.

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