Notably, it is open to the trier of fact to find evidence outside of the medical record as a more reliable account of the events. In Ediger, the trial judge, whose decision was upheld by the Supreme Court of Canada, held that the most specific and reliable account of the events around the time of the bradycardia was from the recollection of a doctor involved at the time of delivery. This doctor’s evidence was preferred over the documentation of the nurses present at the time. The trial judge identified that “minutes mattered” and, following the onset of the infant’s bradycardia, “[h] ad back-up been available even five to ten minutes more quickly, most – possibly even all – of the injuries could have been avoided.” In part because the trial judge found the timing described by the physician present at the time to be more reliable, Dr. Johnston was found liable for the infant plaintiff’s injury as a result of his failure to ensure immediate surgical back-up, and so he failed to meet the standard of care.
Consent
Patient autonomy is a foundation for decision-making in labour and delivery and can help make birth safer both for the pregnant person and the baby. Consent is a key aspect of decision-making and Slater introduced the idea of informed consent into medical malpractice. The court stated that the patient had “information needs” and “the treating surgeons had a duty to provide that information.” During pregnancy and labour, the information needs include those of the pregnant person regarding both their own health and wellbeing and the health and wellbeing of their unborn baby. However, paternalism continues to affect how decisions are made in obstetrics and how the person in labour is presented with information about how their labour will be managed. Historically, the locus of control in decision making has resided with the doctor, but there are calls for healthcare professionals to proactively clarify that the locus of control lies with the person in labour, who should be advised that they will be supported in labour even where they decide to take a riskier option.
Whether a physician has obtained informed consent from a pregnant person, and thereby met the standard of care expected, was considered in Brodeur (Litigation guardian of) v. Provincial Health Services Authority, 2016 BCSC 968. The infant plaintiff was delivered by emergency caesarean section when her mother, Amanda Brodeur, suffered a uterine rupture during her labour. Prior to this pregnancy, Ms. Brodeur had already delivered a child by caesarean section. The plaintiffs alleged that Ms. Brodeur did not provide informed consent to proceeding with a vaginal delivery instead of an elective caesarean section. Specifically, they argued that Dr. Delisle, when providing antenatal care to Ms. Brodeur, failed to adequately inform her of the risk of uterine rupture during vaginal birth after caesarean delivery (VBAC).
The Court found a different doctor and a nurse negligent in their care of Ms. Brodeur, but Dr. Delisle was found to have met the standard of care. The Court identified that a physician “has a duty of care to answer any specific questions asked and to volunteer, without being asked, information about a patient’s treatment options and to disclose any material, special or unusual risks.” Moreover, applying Hopp v. Lepp, [1980] 2 SCR 192, the Court stated that “the scope of this duty is determined on a case-by-case
basis, and is assessed via an application of the standard of care.” Dr. Delisle identified that she had checked the “VBAC box” on the antenatal record and would only have done so when she had discussed the topic and the associated risks. Dr. Delisle demonstrated in court what her typical VBAC risk discussion would involve. The medical record showed that “Ms. Brodeur expressed preference for a repeat caesarean section,” and Ms. and Mr. Brodeur were both found to be credible witnesses.
