This is the fifth 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. Letty Condon considers the unique aspects of birth injuries and the nature of obstetric practice. When caring for a patient in labour and delivery, healthcare professionals must know when observation and expectant care is appropriate and also when it is necessary to intervene, for the sake of both the pregnant person and their baby. This article will focus on the standard of care in birth injury cases and, specifically, issues related to the nature of obstetric practice and the patient population, expert obstetric opinion and identifying the applicable standard of care, and the possible pitfalls facing lawyers who take on such cases.
Medical malpractice dates back to 1767 when, in the jury trial of Slater v. Baker, C.B 1767, liability was imposed on a surgeon for re-fracturing the leg of a patient, Mr. Slater. Mr. Slater had injured his leg and the leg had been set by another surgeon. Mr. Slater claimed that the two defendants, Baker and Stapleton, had then negligently broken the callus of his injured leg. In determining what was ultimately the standard of care, Justice Wilmot identified that physicians and surgeons were to be judged by “the usage and law of surgeons, … the rule of the profession as testified to by the surgeons themselves.” In 1767, the Court was permitted to take the description of the surgical experts, as to what they would have done under the circumstance, as the standard for the profession. Physician experts retain significant influence over birth injury claims today.
However, determining the standard of care and demonstrating that it was not met requires the medical malpractice lawyer to do more than obtain supportive expert opinion. A trier of fact must determine the applicable standard of care based on all of the available evidence. Childbirth encompasses a fairly unique set of circumstances within medicine, and this is relevant to determining what evidence can support a claim that the standard of care was not met. Pregnancy is often considered not to be a pathological condition, despite the significant impact that the process can have on the health and well-being of the pregnant person. Accordingly, childbirth is often described as “natural” when a pregnant person goes through labour and delivery without the help of medicine or intervention, and often when there is minimal surveillance of the process. The occurrence of a birth injury can be an unexpected traumatic event as most persons in labour anticipate the delivery of a healthy baby and hope for few, if any, interventions. Healthcare professionals are therefore faced with the challenge of maximising “the use of preventative measures during the normal delivery process to minimize the need for interventions.”