full information about the risks, likelihood of survival, potential complications of prematurity and the right to choose between full resuscitation measures to keep him alive or something less than full resuscitation (down to potentially no resuscitation and only palliative care). If full resuscitation was being planned, betamethasone (a steroid) could be given to improve his lung function/maturation. In the absence of steroids, the plaintiff developed necrotizing enterocolitis, a life-threatening condition that was treated by removing part of his bowel, with lifelong consequences.
Practical and Evidentiary Issues
The main subject of debate in this case was whether Dr. Rivera and Ms. Qu discussed the possibility of preterm birth and the available treatment options. Ms. Qu testified that no such discussion took place; Dr. Rivera told her she was at risk of miscarriage, but nothing about the likelihood that her child might survive or about potential treatment options. Dr. Rivera’s recollection of the conversation was very different. She testified that she explained to Ms. Qu her risk of premature delivery because of her shortened cervix and what that would mean for a baby of 23 weeks and 5 days gestation. Dr. Rivera’s evidence was that she attempted to engage Ms. Qu in a conversation about whether she “would wish everything to be done” in terms of full resuscitation and if she wanted to receive betamethasone. She recalled that this conversation stalled because Ms. Qu was upset at the possibility of premature delivery and unconvinced that the short cervix would be a problem (it wasn’t in her previous delivery). Dr. Rivera testified that Ms. Qu would not engage in the conversation and insisted on going home. Dr. Rivera felt the discharge home reasonable in the circumstances since Ms. Qu was stable, but “negotiated” a follow up ultrasound in two days. Dr. Rivera testified that hoped for a more fulsome discussion about premature delivery and options at the follow up once Ms. Qu had an opportunity to digest the situation.
Witness Credibility
To a certain extent, the judicial fact-finding process is the same in medical malpractice as in any other case. A judge must consider the credibility of each witness: “the witness’s sincerity, that is, his or her willingness to speak the truth as the witness believes it to be.” 2 In addition, the judge must consider the reliability of each witness: the accuracy of the witness’s evidence which “involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue.” 3 In making this assessment, judges consider the following factors: 4
a) The ability and opportunity of the witness to observe events;
b) The firmness of their memory;
c) Their ability to resist the influence of interest to modify their recollection;
d) Whether their evidence harmonizes with independent evidence that has been accepted;
e) Whether the witness changes their evidence during cross-examination (or between
examination for discovery and trial) or is otherwise inconsistent in their recollection;
f) Whether their evidence seems generally unreasonable, impossible or unlikely;
g) Whether the witness has a motive to lie; and
h) The demeanour of the witness generally.
In medical malpractice cases, however, the assessment is often focused less on the memories of the parties and more on the available documentation. The extent to which the party’s recollections harmonize with the other independent evidence is often critical.
