Before performing a procedure, a doctor must advise a patient of the potential risks and alternatives to a procedure and must obtain a patient’s informed consent before proceeding with a particular course of action. Obtaining informed consent is particularly important in cases regarding labour and delivery.
In a recent case before the Alberta Court of King’s Bench, a plaintiff alleged that a mid-forceps delivery resulted in permanent paralysis to the child’s left arm. However, the obstetrician claimed that she spoke with the mother before proceeding with a mid-forceps delivery and obtained informed consent before intervening.
Parents claim that obstetrician failed to inform them of risks associated with a mid-forceps delivery
In the recent case of Smartt v. Brar, the plaintiff, FS, was born in 2014 in Calgary at the Foothills Hospital. FS was delivered with mid-forceps; during the delivery, his shoulder got stuck behind his mother’s pubic bone. As a result, he suffered a brachial plexus injury, leaving his left hand and arm permanently paralyzed.
FS’s parents filed a lawsuit against Dr. Kelly Albrecht, the gynecologist and obstetrician involved in his delivery. His parents claimed that Dr. Albrecht failed to inform them of the potential risks of a mid-forceps delivery. Further, they alleged that Dr. Albrecht declined FS’s mother’s request to perform a Cesarean section delivery.
Doctor states that she thoroughly discussed risks associated with various delivery methods
Dr. Albrecht argued that they provided the parents with information regarding the benefits and risks of different delivery options. Additionally, Dr. Albrecht stated that she offered to perform a Cesarean section, but FS’ mother opted for a mid-forceps delivery.
Dr. Albrecht asserted that she followed the mother’s instructions and properly performed the mid-forceps delivery without negligence.
Mother claims that she was told it was too late to have c-section delivery
The Court noted that Dr. Albrecht could have obtained informed consent if she explained the potential risks and alternative delivery options to the mother, offered the mother both delivery options, and the mother ultimately elected to proceed with a mid-forceps delivery. However, there was no evidence to confirm that this was done.
FS’ mother told the Court that during the delivery, Dr. Albrecht stated that “we have to get this baby out now,” and indicated that forceps would be used to deliver FS gently. She further stated that the mother asked Dr. Albrecht to perform a Cesarean section but was told it was too late.
Dr. Albrecht claimed that she had spoken with FS’ mother for approximately five to ten minutes and thoroughly discussed her delivery options.
Court finds insufficient evidence to establish that doctor obtained informed consent from mother
The Court noted that Dr. Albrecht’s delivery note did not establish that she had obtained FS’ mother’s informed consent before proceeding with a mid-forceps delivery. Further, the Court brought attention to the nurses’ notes which conflicted with the timeframe in which Dr. Albrecht allegedly had a five to ten-minute conversation with FS’ mother regarding delivery options.
In this case, the Court gave significant weight to the nurses’ notes and found that Dr. Albrecht downplayed the force and complexity of a difficult forceps pull during the trial.
Court concludes that the obstetrician breached duty of care
Dr. Albrecht failed to provide any chart notes confirming her discussion with the patient and confirmation of the patient’s informed consent before proceeding with a mid-forceps delivery. The Court found that during the trial, Dr. Albrecht’s evidence appeared to deflect blame and create a record of a discussion which did not occur.
The Court determined that Dr. Albrecht did not inform FS’ mother of the risks and alternatives involved in either a Caesarean section or mid-forceps delivery. Further, Dr. Albrecht did not obtain informed consent from FS’ mother before performing a mid-forceps delivery. The Court concluded that due to these reasons, Dr. Albrecht breached the standard of care for an obstetrician in these circumstances.
Court satisfied that child’s paralysis was caused due to mid-forceps delivery
On review of the evidence, the Court found that the mother immediately requested a Caesarean section delivery when faced with the prospect of a mid-forceps delivery. However, Dr. Albrecht still needs to proceed with this request. The Court also found that Dr. Albrecht knew there was a risk of shoulder dystocia with a mid-forceps delivery based on the mother’s weight, age and health condition. Further, that injury could have been avoided by performing a Cesarean section delivery.
Writing for the Court, Justice Hall noted that in cases where there has been a failure to obtain a patient’s informed consent, the plaintiff is not required to demonstrate that the procedure was performed negligently. Instead, the plaintiff is only required to establish that the procedure caused the injury.
Here, the Court was satisfied that Dr. Albrecht’s procedure performance resulted in permanent paralysis to FS’ left arm and hand. The Court awarded the plaintiff $150,000 for general damages, $506,302 for loss of earning capacity, and various allowances for costs related to future care.
The Injury Lawyers at Cuming & Gillespie Help Clients Pursue Claims for Medical Malpractice and Birth Injuries
The medical malpractice lawyers at Cuming & Gillespie help clients pursue claims for medical malpractice and personal injuries. Medical professionals must obtain a patient’s informed consent before proceeding with a certain treatment or procedure. In instances where a medical professional did not obtain informed consent, there may be grounds to commence a medical malpractice claim. If you or a loved one were not informed of a procedure’s risks and subsequently suffered a serious injury, contact us online or call us at 403-571-0555 to schedule a consultation with a member of our medical malpractice team.