This birth malpractice case (Cojocaru v. British Columbia Women’s Hospital and Health Centre,2013 SCC 30) resulting in brain injury affirms the direction that Canadian Courts are taking  to informed consent in personal injury malpractice cases. The multi-million dollar award was upheld against one doctor for failing to provide the claimant with informed consent for the  “vaginal birth after caesarean section” or “VBAC”.
There was no issue with respect to the established case law in this area. A claimant must establish:
1. That there was a material risk attending the proposed surgery which the physician or surgeon did not disclose.
2. That a reasonable person in the position of the plaintiff to whom that risk was disclosed would have declined the surgery.
The Supreme Court of Canada  focused their greatest attention however on the propriety of judicial copying of  lawyer submissions. The trial judge had extensively copied from the written submissions of the injury claimant’s lawyer when making his decision.  I’m not sure any personal injury lawyer was surprised with the comment at paragraph 75 that, “It would have been better if the reasons had not copied extensively from the plaintiffs’ submissions.  However, to set aside the decision of the trial judge requires more.  To rebut the presumption of judicial integrity, the defendants must establish that a reasonable person apprised of all the circumstances would conclude that the trial judge failed to consider and deal with the critical issues before him in an independent and impartial fashion.  The defendants have not done so.”
Some  personal injury lawyers may be more interested or dismayed that all other claims against other doctors and nurses involved in the care that rendered the infant brain damaged were dismissed. Specifically, this dismissal is despite the finding of the trial judge that the nurse fell below the standard of care expected of her in failing to properly monitor the mother during her labour, by failing to communicate the concerns of the patient and the patient’s family and to investigate the repeated requests for repeat caesarean.  Evidence is to be weighed according to the power of one side to produce proof and in the power of the other side to contradict that proof and in that context it was open to the court to accept that legal causation was proven for the brain injury, which it did not.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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