'We're struggling,' family says as lawsuit against QEH, doctor hits year 7

Emma Roche turned nine years old last month, but she couldn't open her presents or eat her birthday cake.

Even if she did make a wish, she's never been able to blow out her candles.

And that's how it's been for all her birthdays, according to her family.

When she was eight months old, she suffered severe brain damage at Queen Elizabeth Hospital in Charlottetown, where she was being seen for influenza and croup.

Since then, she has needed 24-hour care, according to her parents. She eats through a tube in her stomach, breathes through a tube in her throat, and urinates through a catheter.

Emma can't walk, can't dress herself or play with her baby brother, said her parents, who also feel it's unsafe for her to go to school.

And though Emma can't talk, her parents, Melissa Driscoll and Danny Roche, are pretty sure she understands what they say.

"She knows us," Driscoll said. "If we talk she will turn her head to look at us. She will smile."

As each birthday passes, it's another reminder of how long it's taking — seven years and counting since it was filed in 2012  — for the family's $22 million lawsuit against the QEH and one of its doctors, Peter Noonan — to get to trial.

"I just want it to be over," Driscoll said.

She's very limited but we're trying to give her the best life experiences that we can.— Melissa Driscoll

Roche and Driscoll accuse Noonan and the QEH of providing inadequate care for Emma when she was brought to the hospital on Jan. 30, 2011, and diagnosed with fever and upper respiratory infection, according to the statement of claim.

Two days later, after being discharged from the hospital and readmitted, Emma went into cardio-respiratory arrest. She was airlifted to IWK Children's Hospital in Halifax and on Feb. 5, cerebral testing confirmed "severe brain injury with limited brain function," according to the family's statement of claim.

In their statements of defence, Noonan and the QEH say they met the requisite standard of care, they have no direct knowledge of her diagnosis and deny all the allegations against them.

The government's statement of defence said any injuries to Emma Roche were caused by the negligence of her parents by exposing her to a sick child, failing to comply with medical advice, and failing to follow treatment recommended.

On Wednesday, Noonan's defence argued a motion in P.E.I. Supreme Court to separate the trial in two — one for liability and one for damages. The defence also asked for a trial by judge alone instead of by a jury. 

In an email to CBC, Noonan's lawyer, Thomas Laughlin, said the purpose of the motions are "to find the most expeditious and efficient way to achieve a resolution in the matter."

'Emma doesn't have a lot of time'

However, the lawyer for Emma and her parents, Ray Wagner, says the motion to separate the trial will cause further delays and expenses in a process that has already taken too long.

Wagner said according to experts provided by the defence and plaintiffs, Emma's life expectancy is anywhere between 13 and 33 years.

"With the prospect of having two trials, maybe appeals in between, maybe more than two trials, and what it does is it causes an incredible increase in expense and time and Emma doesn't have a lot of time," he said.

Off work for years

Driscoll and Roche say as the bills pile up, they just want an outcome so they know what to expect going forward. Driscoll used to be a teacher and Roche a mechanic, but since Emma became ill, they have gone on long-term disability to care for her.

"We're struggling. It's been a long journey. It seems to get more difficult as the years go on," Driscoll said. "She's very limited but we're trying to give her the best life experiences that we can."

Driscoll said she has "recurring nightmares" about that night at the QEH in 2011, but the couple are doing the best they can to get on with their lives. They have since had another child, Max, who is 10 months old — only two months older than Emma was before her brain injury.

The last eight years haven't always been easy on their marriage, Driscoll said, and they're glad they have each other to get through it.

"We made a conscious decision in the beginning that we were going to stick together and this was for Emma and no matter what we were going through, she came first and she does come first and despite the odds, we're stronger for it."

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