The Impact of Contemporaneous Medical Records on Credibility Disputes

Standard of Care

The factual finding that Dr. Rivera had attempted to discuss the possibility of premature delivery and the treatment options with Ms. Qu led to another evidentiary issue in this case. The defendants served expert reports opining that Dr. Rivera met the standard of care by making this attempt and that she was not required to administer betamethasone if Ms. Qu didn’t consent. The plaintiff had served an expert report that assumed no steroids were offered because of the presumed gestational age. They had no expert evidence on the applicable standard of care in a scenario where the physician attempted to discuss possibility of prematurity and the patient was unwilling or unable to engage in the conversation. The burden was on the plaintiff to prove a breach of the standard of care and, absent exceptional circumstances, negligence cannot be proven in the absence of expert evidence.⁸

Causation

Whether betamethasone administration on November 30, 2014 would have avoided the plaintiff’s injuries was another very complicated issue. The plaintiff’s primary lasting injury from his premature birth resulted from his bowel resection for necrotizing enterocolitis. Necrotizing enterocolitis is a known complication of prematurity. Betamethasone is known to improve lung function in preterm babies. The plaintiff’s position was that betamethasone’s positive impact on the baby’s lungs would improve oxygenation to the rest of his body and have a domino effect on his other organs. That is, the results of this global improvement in his health would have prevented the necrotizing enterocolitis.

Causation was not addressed in the judgment because of the conclusion that Dr. Rivera had met the standard of care. These highly complex analyses of causation in medical malpractice cases are a frequent source of failure and often the most difficult part of advocacy in this legal field. The practical and evidentiary issues related to causation will be addressed in future articles in this series.

Conclusion

This case serves as a reminder that the plaintiff’s medical chart is often the foundation of any medical malpractice case. In any case, counsel should spend considerable time thoroughly examining the medical chart along with appropriate medical experts to identify practical and evidentiary issues that must be addressed and review and discrepancies between the information contained medical records and your client’s recollection of the events. Given the weight afforded to contemporaneous medical records, counsel should look to obtain any available  evidence which would suggest that the plaintiff’s version of events should be preferred over the written records.   The failure to consider potential, and sometimes obvious arguments to be raised by the opposing party can result in challenges, including potentially a complete dismissal of the claim. 

1. 2024 BCSC 242
2. R. v. Morrissey (1995), 22 O.R. (3d) 514 at 526, 1995 CanLII 3498 (C.A.)
3. Ibid.
4. Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296
5. Gilmore v. Love, 2023 BCSC 1380 at para 62
6. RSBC 1996, c 124
7. Gilmore, supra at para 54-55
8. Basil v. Interior Health Authority, 2012 BCSC 1158 at para 35, 37-39