A review of the case law in British Columbia over the last decade reveals that while courts have adopted a less paternalistic and more “patient-centered” approach to informed consent, these cases continue to fail on the causation branch of the analysis. This paper will discuss why these cases continue to fail, and what counsel can do to tip the balance in favour of their clients.

The Canadian Medical Protective Association is the primary insurer for Canadian physicians faced with medical malpractice lawsuits. The Association’s 2011 Annual Report indicates that out of 894 civil action cases closed that year, 293 settled out of court (approximately one-third). Of the legal actions that proceeded to trial, 13 judgments were rendered for the plaintiff (patient) and 55 for the defendant (doctor). According to Professor Russell Brown most plaintiffs fail in medical negligence cases because they are unable to prove that the medical professional’s negligence caused the plaintiff’s injury. As this paper will examine, this is especially true in birth trauma cases, where proving causation is often the most trying and costly part of the case.

In the 20th century a patient’s hospital care was overseen daily by a dedicated family doctor who heralded the arrival at birth and pronounced passing at death. Today this traditional model of hospital care is fading. This paper will focus on this change as it raises new issues that are almost certain to be litigated in future medical negligence cases.