Jun 02, 2023 in News --> Birth Injury

Obstetricians Must Get Informed Consent Before It’s “Too Late”, Childbirth Injury Lawyers Explain

Last Minute Consent Not ‘Informed Consent’: Childbirth Injury Lawyers Explain Alberta Court’s Decision

Filip Smartt was born in 2014. His shoulder got stuck during vaginal delivery. The obstetrician attempted a mid-forceps delivery, but he suffered a severe brachial plexus injury.  Filip’s left arm and hand would be permanently paralyzed. An Alberta court found the obstetrician to not have explained the birthing options to the mother adequately, and found her liable. Our childbirth injury lawyers explain why.

Failure to Obtain Informed Consent in a “Complete Textbook Fashion”

Before Justice R.J. Hall was a seemingly straightforward question: did the obstetrician delivering Filip obtain informed consent for the mid-forceps procedure she performed? After an extensive consideration of the facts, he found she had not.

Here’s what he found lacking:

1. The doctor failed to prove that she had spent “5-10 minutes” discussing delivery options and the risks involved with the mother. Neither the doctor’s notes, the resident doctor’s testimony, nor statements from nurses supported this.
2. The doctor knew that due to the mother’s age, weight and health, there was a risk of shoulder dystocia during a mid-forceps delivery. The only way to avoid it would have been a caesarean.
3. The mother immediately asked for a C-section when she was informed of a mid-forceps delivery, but the doctor refused the alternative because it was too late.
4. If the mother had been informed of the risks to her baby from a forceps delivery, she would have chosen a caesarean instead.  
5. The doctor’s notes immediately post-birth and subsequently transcribed notes contradicted each other, and there were inaccuracies in her observations.

“This Baby Has to Come Out” (That’s Not Informed Consent, Say Childbirth Injury Lawyers)

Filip’s head had emerged after the first pull but his shoulders got stuck behind the mother’s pubic bone. The doctor discussed a mid-forceps delivery with the mother, who asked for a caesarean. That request was denied, with the doctor saying “we have got to get this baby out now”.

Moments later the doctor used forceps to perform an episiotomy and pull out the baby. 

Justice Hall found that under the circumstances, and by telling the mother it was too late for a caesarian, the doctor had failed to obtain informed consent. She had breached the standard of care in the situation. 

Even the Defence’s Own Expert Disagrees (and Why Child Injury Lawyers Say That’s Significant)

On the issue of consent, perhaps the biggest setback for the defence was the testimony of their own expert witness, Dr. Herer, a renowned obstetrician gynaecologist. Dr. Herer noted that a failure to offer a C-section given the mother’s medical condition would mean that the doctor had failed to meet the requisite standard of care for an obstetrician.

Moreover, it would have been reasonable for the mother to have chosen a C-section if she had been offered that option.

Defence injury lawyers call expert witnesses to support their arguments. For the expert to disagree with their own case demonstrates significant weaknesses in their arguments, and ultimately the failure to counter liability.

Childbirth Injuries Are Unfortunately Common and You Need to Speak to Child Injury Lawyers

Obstetric trauma occurs in up to 19.4% of C-sections, found a Canadian study looking at four provinces (including Ontario). Put another way, 1 in 5 C-sections causes injuries to the mother or the baby. When injuries do occur, proving liability can seem like an insurmountable barrier. 

That’s where an experienced team of personal Injury lawyers and one of the leading medical malpractice teams makes the difference. You will work with injury lawyers in Toronto who have the resources and know-how needed to pursue medical malpractice claims and get the compensation you need.

Book a free, no-obligation consultation to discuss your injuries. Discussions are confidential so you can talk to us about your matter worry-free, and make informed decisions about how to proceed next.

We offer “no win, no fee”, meaning if you don’t receive compensation, you don’t have to pay legal fees.