Defining the Standard of Care: When Will a Generalist be Held to a Standard Approaching that of a Specialist?

Nessler v. Colliton¹³ was a case involving a brachial plexus injury to an infant plaintiff as a result of shoulder dystocia – an obstetrical event where the anterior shoulder of the fetus is impacted on the mother’s pelvic bone during labour. Allegations of negligence were raised against the general practitioner involved in the delivery. The plaintiff’s obstetrical expert, who subspecialized in maternal fetal medicine and high risk pregnancies, opined that the brachial plexus injury was the result of downward traction applied to the brachial plexus during delivery of the anterior shoulder. The defendant used several maneuvers once shoulder dystocia was encountered: moderate directional supra-pubic pressure, the McRoberts maneuver, the corkscrew maneuver, and delivery of the posterior arm. The plaintiff alleged that these maneuvers were incorrectly performed, resulting in traction to the brachial plexus, while the defense presented evidence that such an injury can occur regardless of the force applied by the physician.

The defendant had been a family physician for over 25 years and delivered 100-150 babies per year. She was also an instructor of the Society of Obstetricians and Gynecologists “Advances in Labour and Risks Management” (ALARM) course for obstetricians and family doctors which included dealing with shoulder dystocia as part of the curriculum. The court found that the corkscrew maneuver and posterior arm sweep are difficult to do in cases of severe shoulder dystocia, and that expertise in these more difficult maneuvers is not within the standard of care of most family practitioners, but “given that Dr. Colliton testified that she has taught the ALARM course for the SOGC, which includes the issue of shoulder dystocia as part of the curriculum, and given her evidence that she has encountered severe shoulder dystocia which did not respond to the more routine maneuvers, I conclude that the Woods corkscrew and posterior shoulder sweep maneuvers were within the realm of her experience and expertise”¹⁴ and therefore she was required to perform these up to the requisite standard of care. Ultimately, the court found that the defendant met the standard of care and was unable to conclude from the evidence or infer from the injury that she applied excessive traction as opposed to the level of traction necessary in order to deliver the baby in the face of severe shoulder dystocia.

As these cases illustrate, the standard of care between a specialist and a generalist is often not clear cut, and even absent formal training, the experience of the generalist may require them to be held to a higher standard than their credentials would suggest at first glance. If a generalist assumes a role typically taken on by a specialist, they may be held to a standard approaching that of a specialist, or at least to the standard of knowing when the task at hand is out of their area of expertise and making the appropriate referral. It is important for plaintiff’s counsel to delve deeply into the defendant’s experience, informal training, and confidence with the procedure in question, as well as specialist resources available, in order to accurately demonstrate what standard of care should be applied to the defendant’s conduct.

1. Crits v. Sylvester, (1956) 1 DLR (2d) 502 (Ont. C.A.) at 508, aff’d [1956] SCR 991.
2. 2024 MBCA 4 [Dumesnil].
3. Dumesnil v. Jacob, 2021 MBQB 240 at para 114.
4. Dumesnil, supra note 1, at para 33. See also Allen v. Mueller, 2002 ABCA 195 at para 8.
5. 2004 CanLII 20532 (ONSC) at para 20, as cited in Dumesnil, supra note 1 at para 65.
6. Dumesnil, supra note 1 at para 70.
7. Ibid at para 43.
8. Ibid at para 59.
9. Ibid at para 76.
10. 2015 BCSC 884.
11. Ibid at para 68.
12. Ibid at para 71.
13. 2008 ABQB 180.
14. Ibid at para 150.