The legal shift in medical malpractice brachial plexus litigation

_{Andrea Girones}

Since 1976, there have been only three reported cases dealing with brachial plexus birth injuries in Canada, she says. And in all three, the plaintiff failed to prove the injury occurred due to the doctor’s negligence.

But Girones’ case Rathan et al. v. Scheufler et al., 2023 ONSC 3232, and another from Alberta, Smartt v. Brar, 2023 ABKB, represent a reversal of the trend.

“They’re both landmark decisions,” says Steven Breslauer, plaintiff’s counsel in Smartt v. Brar. Breslauer is founding partner at Law Fifty One, a personal injury and medical malpractice litigation firm in Calgary.

_{Steven Breslauer}

“These brachial plexus injuries have always been a hotly contested topic.”

He says a common defence for doctors is that the injuries occur from “maternal forces of nature,” which means the contractions from a mother’s uterus during birth cause the injury. The courts in both decisions found that contractions cannot cause an avulsion, where the nerve is completely detached from the spinal cord.

“In both cases, you have two infants delivered vaginally, and both with a permanent brachial plexus injury,” says Breslauer. “And in both cases, the defense of the CMPA was that this was not caused by the delivery by the doctors, but rather it happened before the children were delivered.”

“In neither case [has] the court accepted that as the cause of these injuries... I think this is a big shift in the brachial plexus landscape when it comes to causation.”

In Rathan et al. v. Scheufler et al., which was released on May 31, the plaintiff was born with her right shoulder lodged in her mother’s uterus behind the pubic bone – a circumstance known as shoulder dystocia. There were two competing theories on the cause of the her injury. The plaintiff’s side said that the doctor “applied more than gentle traction” after dystocia had been identified. According to the doctor’s side, she was injured by “propulsive, in-utero forces.”

Rathan was bolstered by the Supreme Court of Canada decision in Ward v. Armstrong, says Girones. Ward “clarified many causation issues that have really made things quite difficult for plaintiffs 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 the plaintiff'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 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.