This is the first article of our series discussing practical and evidentiary issues in medical malpractice. Each article will examine recent medical malpractice case law and focus on the practical and evidentiary issues within them. The goal is to provide some useful insight into the obstacles that occurred in hopes that future cases can adapt and develop new ways to overcome these challenges.
In medical malpractice cases, where cases may come to trial long after the incident in question and the defendants may have seen hundreds of patients in the interim, witnesses’ memories can often be hazy. In these cases other sources of evidence, including the medical chart and a medical provider’s standard practice, can be critical pieces of evidence. Ensuring that the plaintiff’s theory of the case incorporates, is consistent with or explains any departures from these sources of evidence is vital to the success of the case.
Facts of the Case
This article examines the case of A.G. (Litigation guardian of) v. Rivera,1 a case that involves a premature infant who failed to receive medications intended to reduce the risks and injuries of premature delivery and suffered several medical complications as a result. A.G.’s mother Li Qu, attended hospital on November 30, 2014. Her baby was 25 weeks and 1 day gestational age. Ms. Qu attended hospital with concerns about vaginal bleeding and was assessed. Dr. Rivera did a test to confirm that her membranes had not ruptured, and ordered an ultrasound. The ultrasound reported that her cervix was shorter than expected, a concerning sign indicative of a risk of preterm labour. Ms. Qu was less concerned about a report of shortened cervix as she had been told she had the same issues during her first pregnancy and carried that baby to full term. Ms. Qu reported some irregular cramping in the previous days that had since resolved. There was significant debate at trial about the remainder of that visit. There was also some confusion with the dating of Ms. Qu’s pregnancy. Ms. Qu and the defendants were under the impression that the gestational age of her baby was 23 weeks and 4 days, although was in fact over a week more developed. The mistake’s relevance related to the exponentially increasing risks to a fetus for each additional week of prematurity. Survival rates are only 20% for babies at 23 weeks but increase to 80% by 25 weeks. These realities affect treatment recommendations. The decision always rests with the mother, after being fully informed by her physician, but at earlier gestations some practitioners discourage attempts of resuscitation with a focus on palliative care whereas at 25 weeks, most practitioners would recommend full resuscitation of the infant. Regardless of the correct gestational age, the experts agreed Ms. Qu should have been given
