08 Jul Medical Malpractice During a Delivery

Difficultly during a delivery can cause catastrophic damage to the baby. It is natural for the parents to look for an explanation as to what went wrong and who is to blame. Sometimes it is the fault of the medical professionals involved and sometimes it is not. This determination will be made based on the standard of care expected.


It is well established in our courts that a medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing. This standard is not a standard of perfection. There will be no negligence if a generally accepted standard of practice is followed.


In addition, there can be differences of opinion with respect to diagnosis and treatment. A medical professional is not negligent just because his conclusion differs from other professionals, or because he has displayed less skill or knowledge than others would have shown.


In Allen v. Bishop of Victoria, 2016 BCSC 1078, the Plaintiff suffered an acute profound hypoxic ischemic brain injury during delivery at St. Joseph’s General Hospital in Comox. As a result, she has cerebral palsy and is profoundly disabled. The Plaintiff’s mother brought an action on her behalf for damages suffered at her birth. Defendants were The Bishop of Victoria (operator of the hospital) and two nurses involved in the delivery.


The case turned on what happened in the early morning hours of the delivery. During that time the Plaintiff must have suffered a period of 20 minutes or more of oxygen deprivation. This should have been reflected in a marked deceleration of the fetal heart rate. The fetal heart rate was continuously monitored and nothing of concern was noted by the nurse. The issue before the court was whether the readings taken by the nurse were indicative of fetal distress, about which something should have done, or whether they were unremarkable.

The Court found that there was no basis in the evidence to infer that the nurse did not accurately record the fetal heart rate. Her evidence was straightforward and she was sure she was meeting an appropriate standard. There was some suggestion that she might have made the mistake of confusing the maternal heart rate and the baby’s heart rate but the Court was satisfied she did not make that mistake. Evidence that more attentive monitoring by more sophisticated equipment might have led to earlier intervention was insufficient to discharge the burden of proof in the circumstances.

The Court held that although there were some decreases in the fetal heart rate, the weight of the medical opinion was that they were not a signal that the baby was in distress. The question of why the monitoring of the fetal heart rate in this case did not detect the child’s hypoxic state remained unanswered. The Court dismissed the Plaintiff’s case.