Medical Malpractice Claim Over Birth Injuries Dismissed
An obstetrician’s failure to obtain informed consent was not the legal cause of an infant’s brain damage, according to a decision from Ontario.
The Ontario Court of Appeal just released a ruling upholding a trial decision dismissing a claim of obstetric malpractice.
In Cruz v. Robins the trial judge held that the use of forceps during the infant plaintiff’s delivery caused the baby’s brachial plexis injury and brain damage. The judge found that the parents, Mr. and Mrs. Cruz should have been consulted and should have been informed of the option of a caesarean section and its risks. Further, he found that they should have been advised of the risks involved in proceeding with a mid-forceps delivery. Nevertheless, the trial judge concluded that had the appellants been advised and given the choice, the same result would have occurred.
In other words, even if the parents had known the risk, they would have agreed to assume the risk.
Even though the plaintiff’s were able to prove that the defendant doctor was negligent in failing to obtain proper informed consent, they were not able to prove that the failure would have changed the outcome of the delivery. The Court of Appeal repeated the words of the trial judge who said:
[Dr. Robins’] failure to seek and obtain informed consent is of no consequence to the outcome of this case. The same procedure would have been pursued and the same results would have been experienced.
The decision highlights the huge hurdles plaintiff’s face in medical malpractice claims and why 98% of Canadian victims of medical malpractice never recevieve compensation for their injuries.
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