On February 13, 2024, the Supreme Court of British Columbia dismissed a birth injury medical malpractice claim arising from the premature birth of a baby boy who has suffered a variety of medical complications, including short gut syndrome, as a result of his prematurity.
The expectant mother claimed that the Defendant physician failed to offer her treatment options for her risk of preterm birth including antenatal steroids and resuscitation options.
According to the American College of Obstetricians and Gynecologists: “Corticosteroid administration before anticipated preterm birth is one of the most important antenatal therapies available to improve newborn outcomes.”
The defence, however, successfully proved that the mother had in fact been offered treatment options but refused to consider them. She had been asked to return in two days for reassessment, which was determined to be reasonable management, but unfortunately she went into premature labour and delivered her son the next day at 25 weeks gestation.
FACTS
On November 10, 2014, the expectant mother presented to the emergency room of Richmond General Hospital with a concern of bleeding during pregnancy. She was sent to the labour and delivery room at the hospital for further assessment where she was seen by a nurse and the Defendant obstetrician and gynecologist (OBGYN), Dr. Rivera.
The mother’s gestational age was noted by the nurse to be 23 weeks and 5 days, however her actual gestational age was 25 weeks and 1 day.
She was assessed and determined to be at risk of preterm delivery.
The Plaintiff asserted the applicable standard of care required that, when a patient presents with a risk of preterm delivery, the OBGYN should discuss (or attempt to discuss) the issues of resuscitation, the potential use of antenatal steroids, and the possibility of transfer to a tertiary care hospital. On the disputed facts of this case, the Plaintiff alleged that the Defendant physician failed to meet this standard.
The defence position was that the doctor appropriately attempted to discuss with the patient the risk of preterm delivery, which included a discussion of resuscitation and the option of steroids.
The Defendant further submitted that, when the pregnant mother refused to engage in a discussion about issues of resuscitation and antenatal sterioids, it was reasonable to arrange for her to leave and return for follow-up.
In the very early hours of the morning of December 1, 2014, the Plaintiff awoke on at least two occasions with pain in her lower abdomen. She drove herself to the hospital reporting more cramping and bleeding. Her cervix was measured between 0.7 and 0.9 cm. The day previous it had been 1.6 cm. She received a dose of betamethasone and delivered her premature baby a few hours later.
The trial judge observed that extreme pre-term delivery carries significant risk:
Cases of extreme preterm delivery also involve significant risk of various long-term impairments including neurodevelopmental handicaps. For infants that survive, possible health concerns that might arise in the immediate days to weeks after birth or, in some cases, as chronic health conditions, include difficulty breathing, possible bowel surgery, anemia requiring blood transfusion, infections, brain injury, chronic lung disease, blindness, deafness, cerebral palsy, and neurodevelopmental impairment. [para. 17]
EXPERTS
Plaintiff
Dr. Dennis Hartman is an obstetrician and gynecologist in BC.
Defence
Dr. Jerome Dansereau is an obstetrician and gynecologist with a subspecialty in maternal-fetal medicine (“MFM”). MFM specialists have specific additional training with respect to dealing with high-risk maternity patients, including those at risk of premature labour.
Dr. Nancy Kent is an obstetrician and gynecologist with an MFM subspecialty. In 2014, she was practicing as an MFM at BC Women’s Hospital, and part of her practice at the time involved assessing and counselling women at risk of an extreme preterm delivery and delivering those babies.
DECISION
The trial judge determined that Dr. Rivera did advise the mother that she was at risk of preterm delivery, and that as a result, she needed to put her mind to whether she would want active resuscitation or only comfort measures for her baby.
The court accepted that Dr. Rivera did mention the possibility of betamethasone, as a part of the package of interventions comprising active resuscitation, as betamethasone was something that could be done right away if the patient had decided in favour of active resuscitation.
The court specifically accepted Dr. Rivera’s evidence that she was open as of November 30, 2014, to commencing betamethasone that afternoon, even though she believed the gestational age was only 23 weeks and 5 days, and that her course of action would have been no different had she been aware of the actual gestational age. As a result, her failure to recognize the different gestational age when she eventually saw the November 19 ultrasound report would have made no difference.
The court further concluded that discussion of offering consultation with a neonatologist or MFM specialist or considering transfer to a tertiary care centre all followed upon the initial discussion of whether the patient was considering full resuscitation. The evidence indicated that a decision as to full resuscitation instead of comfort care was the starting point for development of a plan for treatment and care.
It was accept that the Defendant physician offered the Plaintiff inpatient admission for observation, and advised her that was her preferred option. However, in light of the mother’s reluctance to engage in the conversation, and given that there had been no further cramping or bleeding over a period of several hours of observation, it was appropriate to discharge her with clear instructions as to when to return.
The court did not accept the Plaintiffs’ submission that Dr. Rivera should have discussed betamethasone on the morning of November 30, 2014. At that time, Dr. Rivera was not aware of the short cervix and was in the course of investigating a number of different potential causes for the bleeding and cramping that had occurred. Nothing in the expert reports suggests that Dr. Rivera should have proceeded to a discussion of the risks of preterm delivery before completing her investigation of those risks.
Finally, the court did not agree that Dr. Rivera’s failure to recognize the revised gestational age when she reviewed the November 19 ultrasound report made any difference in the circumstances given the patient’s refusal to engage in a discussion of the risk of preterm delivery and the options to be considered upon grappling with that risk.
For these reasons, the court concluded that the Plaintiffs had failed to prove a breach of the standard of care. Given this finding, the Court elected not to consider or decided the issue of causation in dismissing the claim.
Decision Date: February 13, 2024
Jurisdiction: Supreme Court of British Columbia
Citation: A.G. v Rivera, 2024 BCSC 242 (CanLII)
