Canadian Lawyer

August 2023

The most widely read magazine for Canadian lawyers

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Page 29 of 51

28 LEGAL REPORT MEDICAL MALPRACTICE for many years." In Ward, the SCC adopted the dissenting opinion of Ontario Court of Appeal Justice Katherine van Rensburg, who found that sometimes it was necessary for a judge to flip the order of the typical analysis. Usually, judges determine the applicable standard of care and whether there was a breach in the standard, before moving on to decide whether that breach caused the injury. This prevents them from improperly reasoning backward from the fact of the injury to determine that the standard has been breached. "Determining factual (and not 'but-for') causation is sometimes necessary before a conclusion can be reached on whether there has been a breach of the standard of care," said van Rensburg. Girones says it is advantageous for the defence if the court looks at the standard of care first in brachial plexus injuries where there is an avulsion. That is because the medical literature contains no other cause for the injury other than "physician traction," she says. Plaintiffs in medical malpractice cases can use circumstantial evidence to raise an inference of causation and negligence, says Girones. Her expert witnesses testified that given the circumstances of the birth, which shoulder was injured, the length of the delivery, and the severity of the injury, the most probable cause of Sankavi's injury was physician traction. The judge found that it was a prima facie case of causation, and the burden was then on the defendant to produce evidence of an alternate cause, which they failed to do, she says. In Smartt v. Brar, the baby also experienced shoulder dystocia, and the doctor used mid-forceps to maneuver him out. The delivery resulted in a severe brachial plexus injury that permanently paralyzed the baby's arm and hand. The main issues in the case were whether the doctor properly informed the mother of the risks of a mid- forceps delivery, whether the doctor gave her the option of a Caesarian section, and whether the doctor negligently conducted the delivery. The plaintiff said she had asked for a C-section, but the doctor had said that it was not an option. She also said that the doctor used the forceps without explaining their risks. The doctor said she had given the mother the option between forceps and a "They're both landmark decisions... These brachial plexus injuries have always been a hotly contested topic" Steven Breslauer, Law Fifty One WHAT IS A BRACHIAL PLEXUS INJURY? The brachial plexus is a "network of intertwined nerves that control movement and sensation in the arm and hand." Birth injuries can involve the nerves being stretched, torn, or pulled out at the root. The injury can cause underdevelopment and paralysis of the arm.

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