As discussed in previous blog posts, medical malpractice claims are difficult to prove due to the complexity and the legal and evidentiary standards of proof required. To be successful in a medical malpractice claim, you must:
- prove that there was an error in judgment or practice on behalf of the medical practitioner or medical institution
- prove that the error in judgment or practice was one that fell below the standard of care
- prove that the error in judgment or practice caused the injury
In Nelson v. British Columbia (Provincial Health Services Authority) 2015 BCSC 1941, the injured claimant sued for injury she alleged to have suffered while delivery her baby in 2009. The claim was brought against the delivery nurse and hospital in negligence for allowing her leg to drop accidentally from the top of the birthing bar in the course of the delivery of her child. From that, she alleged to have suffered a left hip injury which interfered with her employment and otherwise diminished her life. The injured claimant was successful at trial when the trial judge found that the delivery nurse and hospital were liable for her injury.
The Defendants (delivery nurse and hospital) appealed the judgment and the Court of Appeal ordered a new trial.
The new trial recently proceeded (Nelson v. British Columbia (Provincial Health Services Authority) 2019 BCSC 2094). The main question for the trial judge to determine was whether the injured claimant’s left leg fell or was dropped by the birthing bar. If it was determined that it did, then the injured claimant would be successful. If it was determined that it did not, then the claim would be dismissed.
There were 3 possible witnesses to see the leg drop from the bar: the injured claimant herself, her husband and the delivery nurse.
The delivery nurse was adamant and consistent in testifying that she never placed the injured claimant’s legs on the top of the birthing bar, either for resting them or any other reason, that she has never done so with any patient and that she would never do so. She also testified about the explanation of the dangers to the mother and the fetus from placing the mother’s feet and legs on top of the bar, as the injured claimant alleged.
The delivery nurse’s chart notes were scrutinized. In keeping with her obligations and practice, she made extensive notes in the injured claimant’s record throughout her shift during the labour. She testified that, without a doubt, she would have charted (recorded) any leg drop had it occurred, and also would have reported it to the charge nurse. Other nurses testified including the expert witness nurses that an incident like a leg drop would be documented if it occurred.
The trial judge noted that the law is clear that hospital records, including nurses’ notes, should be received in evidence as prima facie proof of the facts stated. According, the absence of any contemporaneous record of the alleged leg drop was, therefore, accepted by the trial judge as further evidence that it did not occur.
The injured claimant’s own evidence was undermined at trial in 2 specific instances. First, she changed her version of events of what occurred 4.5 years after the incident at her examination for discovery without a reasonable explanation. Second, there was no mention in her medical records of complaints relating to her hip pain for 6 months after the incident. The expert witnesses testified that there would need to have been a much closer connection, of no more than 2 weeks, between the trauma and hip pain before it could be concluded the trauma and the pain were linked. This was further complicated by the fact that the injured claimant also suffered from a congenital malformation to her hip and pre-existing osteoarthritis.
Unfortunately, the injured claimant’s husband testimony was largely unhelpful. With the passage of time, his uncertain memory was that he saw his wife’s right foot on the bar once towards the end of the delivery, but that he never saw the deliver nurse drop her leg.
The trial judge dismissed the claim on the basis that the injured claimant did not show, on the balance of probabilities, that the hip pain was caused or contributed by the leg drop during the birthing process as she alleged. The trial judge further noted that “her hip pain probably derives entirely from the pre-existing osteoarthritis, which usually leads to pain when someone is around 35-45 years-old”.