Conclusion
As can be seen from the examples discussed in this article, advancing a medical malpractice claim for a birth injury requires careful consideration of, and expert evidence, on the causal link between the criticized care and the injuries of the plaintiff. The uncertainties in medicine, particularly with respect to the timing and source of injuries sustained prior to the birth of a child, make causation a key issue in these cases. Those same uncertainties can make it difficult for parents to accept that, although the physician, nurse or midwife erred and mishandled their medical care and their child suffered an injury, they will not receive compensation because there is insufficient evidence to prove a link on the balance of probabilities. It is incumbent on the legal team to ensure they understand the medical issues at play and to work with their experts to compile a solid and convincing explanation for how the breach of the standard care, more likely than not, caused the child’s injury.
- Whitehouse v. Jordan and another, [1980] 1 All ER 650 at 652 (C.A.), aff’d [1981] 1 All ER 267 (H.L.)
- Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181.
- Wiebe v. Fraser Health Authority, 2018 BCSC 1710 at para 114
- Wiebe, supra at 113
- Stirrett v. Cheema, 2020 ONCA 288
- Wiebe, supra
- [2016] A.J. No. 867
- [2018] B.C.J. No. 334
- 2013 SCC 18
