However, their description that Ms. Brodeur had asked at every appointment for a caesarean section and their claim that she was not made aware of the risks of VBAC was not accepted by the Court. Furthermore, although the Court did acknowledge that Dr. Delisle’s description of what her typical risk discussion would involve “was somewhat artificial given the context,” her testimony was held to be credible and reliable. Given that the court found that Dr. Delisle met the standard of care regarding informed consent, the judge did not continue to the causation analysis for the lack of informed consent claim.
Proving that informed consent was not obtained remains a challenge for medical malpractice lawyers. In Brodeur, the court noted that Ms. Brodeur had refused medical advice before and determined that she did so based on her “belief in her own well-being.” Specifically, it was Ms. Brodeur’s decision to continue working, although she had been advised to stop work and go on bedrest, that informed the Court’s finding that Dr. Delisle did provide the required information about the risks. The court used Ms. Brodeur’s decision to continue working as evidence to support the finding that the reason she went ahead with the VBAC was not because she was not informed of the risks, rather it was that she believed that everything would be fine.
There are perhaps many reasons why a person may feel they must, can, or should continue to work but, appropriate or not, decisions such as this may influence a claim for medical negligence on the basis that informed consent was not obtained. Conversely, in Ediger, the Court determined that Mrs Ediger’s “primary concern” was for the welfare of her baby. When Dr. Johnston delivered the infant plaintiff by a “mid-level” forceps delivery, the Court found that Dr. Johnston had a duty to obtain informed consent from Mrs. Ediger prior to proceeding with the forceps delivery. This included informing Mrs Ediger of “the material risks associated with the procedure, including the risk of bradycardia.” The trial judge stated that there was “no doubt” that “Mrs. Ediger would “have undertaken a risk to herself in order to avoid a risk to the baby,” and the Supreme Court of Canada was confident that the trial judge “would have concluded that Mrs. Ediger would have foregone the forceps delivery and opted instead for a C-section.” Consent was not an issue to be decided by the Court on this occasion but this decision does reveal how the plaintiff’s testimony can strongly influence whether or not the healthcare professional met the standard of care expected when obtaining informed consent.
Changes over time
Obstetric care has changed in the last 20 years and some changes specifically impact on the risk of birth injury and the standard of care expected of obstetric healthcare professionals. For example, the Society of Obstetricians and Gynaecologists of Canada issued a Clinical Practice Guideline in April of 2019 that recommended antenatal magnesium sulphate for fetal neuroprotection. Specifically, the use of magnesium sulphate in pregnancy at less than 34 weeks’ gestation, when the person presents in active labour or when preterm birth is planned, reduces the risk of death and moderate to severe cerebral palsy. There have also been changes to way in which babies are delivered with caesarean sections representing 19.9% of deliveries in 1999 and 29.9% of deliveries in 2019. Caesarean sections performed when full dilatation has occurred, or second stage caesarean delivery, is also becoming more common and is associated with an increased risk of neonatal trauma and admission to the neonatal unit.
