Canadian Lawyer

August 2023

The most widely read magazine for Canadian lawyers

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Page 30 of 51 29 HILLCOUNSEL.COM A reputation built on trust. A litigation boutique for over 30 years, the firm continues to be sought after in the fields of litigation, arbitration and mediation. C-section and had explained to her the risks of both. The judge found that the evidence showed there was not enough time for the doctor to have the discussion she alleged that she had with the patient and that the delivery involved a "difficult pull," which the doctor had sought to downplay in the trial. Rejecting the doctor's testimony and accepting that of the plaintiff and her family, the judge found that the doctor did not properly inform the plaintiff. The plaintiff was required to establish a causal link between the failure to obtain informed consent and the injury. The plaintiff had to show that, had the doctor disclosed material information, a reasonable person in the patient's position would have declined the treatment. The judge found that had the patient been informed of the risks of a forceps delivery compared to the risks of a C-section, she would have chosen the latter. The judge also stated that a brachial plexus injury with complete tearing of the nerves "is not likely caused by maternal forces" but "most often occurs as a result of outside forces applied by the obstetrician, either in the pull of the forceps, or by the maneuvers used to free the baby's shoulder dystocia." Smartt v. Brar is under appeal. Defence counsel in both cases declined Canadian Lawyer's interview requests. TWO CASES BUCK THE TREND IN BRACHIAL PLEXUS LITIGATION In Rathan et al. v. Scheufler et al., 2023 ONSC 3232, and Smartt v. Brar, 2023 ABKB, the plaintiffs were successful in proving negligence on the part of the doctor. The plaintiffs' lawyers say the cases are landmark rulings that represent a shift in the legal landscape around brachial plexus medical malpractice claims.

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