This article will consider some of the unique aspects of this area of medical malpractice law. Although childbirth is strongly influenced by a desire not to intervene, there is always a need to be prepared for complications, given that minutes can matter if a problem arises. Cases that featured a failure to be prepared and intervene in a timely way will be reviewed. The autonomy and decision-making power of the person in labour is of profound importance, and we will illustrate how issues of informed consent are often argued in these cases. And finally, we will examine the impact that the evolution of the standard of care over time can have on a birth injury case, and how the courts view the use of guidelines.
Failing to intervene
Obstetricians and other healthcare professionals may be liable for medical negligence where they fail to act. Patient factors may impact upon whether interventions are provided to people in labour. Racialised women have reported significantly higher rates of mistreatment during pregnancy and childbirth, and are less likely to receive medical interventions. Racialised women are also at an increased risk of maternal mortality and adverse infant health outcomes. Nearly half of maternal deaths and severe maternal morbidity events are preventable. Preventable factors in maternity care include where there has been a delay in diagnosis and delay in providing treatment, or where there is a failure to prepare for complications during labour. These factors can lead to delays and complications in labour that result in birth injuries.
Where obstetricians fail to prepare for complications that arise during labour and delivery, they may not meet the standard of care expected of them in their role. In Ediger (Guardian ad litem of) v. Johnston, 2013 SCC 18, [Ediger], the infant plaintiff brought a claim for medical malpractice at the time of her birth. She suffered from severe and permanent brain damage as a result of a persistent bradycardia around the time she was delivered. Mrs. Carolyn Ediger, the plaintiff’s mother, was induced and, the following day, her labour stalled. Dr. Johnston, the defendant, elected to proceed with a “mid-level” forceps delivery in a regular labour room, without ensuring the immediate availability of an anesthetist or operating staff, despite this being “the riskiest type of forceps delivery.”
Although the appeal concerned causation, the decision turned on the trial judge’s finding that the applicable standard of care required “that surgical back-up be ‘immediately available’ to deliver the baby by C-section upon failure of the mid-level forceps attempt.” Dr. Johnston proposed that this only required him to ensure that the anaesthetist was standing by to assist and not occupied by another surgery. However, the standard proposed by Dr. Johnston was held to be “unresponsive to the risk in question and potential harm arising from it.” The standard of care endorsed by the trial judge, of “immediately available” surgical back-up, was identified by the Supreme Court of Canada to require the physician to “take precautions that are responsive to the risk of persistent bradycardia resulting from the mid-level forceps procedure.” Failing to pre-empt risk in an obstetric setting is not always evident in the medical records of the person injured and documentation does not always reveal where a person has failed to take precautionary steps. Here, the anaesthetist that Dr. Johnston was relying upon if Ms. Ediger required emergency care, was occupied at the time of the infant plaintiff’s bradycardia with another patient, one in a “life and death situation.”
