This is the sixth article in our series aimed at providing a detailed examination of the challenges and pitfalls in different types of medical negligence lawsuits and approaches to overcoming them. Each article will focus on specific injuries and will highlight the obstacles a plaintiff faces in bringing their case to a successful conclusion. By comparing cases involving similar injuries, we hope to illustrate how the plaintiff succeeded, and, when they did not, strategies that may have been available to improve their chance of success.
This article will focus on causation in birth injury cases and, specifically, issues related to proving that different treatment would have been available if appropriate care had been provided and the treatment available would likely have avoided the outcome.
Introduction
Causation defences in birth injury cases were, historically, somewhat rare. The focus in the past seemed to be more on defending the care provided rather than building up a strong defence that, even if the medical practitioner provided inadequate care, the plaintiff had failed to prove the causal connection between that care and the ongoing injuries. In more recent birth injury litigation, causation defences arise in most, if not all, cases.
Causation can be difficult to prove in any medical case; there is simply so much that is still unknown in medicine. This uncertainty, despite all the advances that have been made in science and technology can make it impossible for a plaintiff to prove the factual cause of an injury, let alone the legal cause.
In birth injury cases, the uncertainties are even greater. With adult patients, the physician can speak to the patient and collect a history including past medical issues and current symptoms. The physician can observe the condition of the patient and perform a physical assessment. Blood can be drawn, urine samples can be obtained, lumbar punctures can be performed. These routine tests all provide additional information as to what is happening with the patient. Care for an unborn child is drastically different. Most of the information as to the health and wellbeing of the fetus is obtained from ultrasound images, the presence or absence of fetal movement and an assessment of the fetal heart rate. Direct assessments of a fetus, if even possible, carry significant risks (including miscarriage) and are therefore quite rare. The limitations on the information available to medical practitioners can make it extremely difficult, or impossible, to establish when and how an injury occurred.
In addition, the process of childbirth carries many risks to the fetus from numerous potential non-negligent sources. An oft cited quote from Lord Denning appears in the defence submissions in many birth injury claims:
Being born is dangerous for the baby. So much so that an eminent professor in this case tells us that: ‘Throughout history, birth has been the most dangerous event in the life of an individual and medical science has not yet succeeded in eliminating that danger.’ He parodies the psalmist by referring to ‘valley of the shadow of birth’.
This has its legal consequences. It follows that, when a baby is stillborn or dies soon after birth or is born damaged or deformed, that fact is no evidence of negligence on the part of the doctors or nurses attending the birth. It does not speak for itself. The maxim res ipsa loquitur does not apply.1
Within this valley of the shadow of birth, identifying the factual cause of an injury and then linking that injury to inadequate care is frequently the most challenging part of the case.