Antenatal corticosteroids are among the most evidence-based interventions in obstetric practice. A single course of betamethasone given to a mother at risk of preterm delivery between 24 and 34 weeks of gestation substantially reduces neonatal mortality, respiratory distress syndrome, intraventricular hemorrhage, and necrotizing enterocolitis. The Society of Obstetricians and Gynaecologists of Canada and the American College of Obstetricians and Gynecologists both endorse the practice. Failure to offer antenatal corticosteroids in a clear preterm risk situation would typically be a breach of the standard of care.
A.G. v Rivera, 2024 BCSC 242, is a case where the obstetric standard for preterm risk counselling was not in dispute, but the factual question of whether the standard was met turned on a more difficult issue: what does a physician do when a patient declines to engage in the discussion? The Supreme Court of British Columbia dismissed a birth injury claim brought on behalf of a baby boy born at 25 weeks with short gut syndrome and other complications of extreme prematurity. The court accepted the defence factual account that the OBGYN had attempted to discuss the preterm risk and the available options, that the patient had been reluctant to engage, and that the physician’s management was reasonable in the circumstances.
The case is doctrinally significant because it illustrates the operation of the patient refusal framework, the clinical context of extreme preterm delivery, and the limits of malpractice exposure where the substantive discussion was attempted in good faith.
The clinical context: extreme preterm delivery and antenatal corticosteroids
A baby born at 25 weeks of gestation faces substantial clinical risks. With active resuscitation in a tertiary neonatal intensive care unit, survival is approximately 80 to 85 percent in modern Canadian practice. Survival, however, does not equate to absence of morbidity. Substantial proportions of survivors experience:
- Respiratory distress syndrome from immature lung development
- Intraventricular hemorrhage (bleeding into the ventricles of the brain)
- Necrotizing enterocolitis (NEC) — a serious bowel inflammation that can require bowel resection and lead to short gut syndrome, the complication the child in this case has experienced
- Retinopathy of prematurity (which can lead to blindness)
- Neurodevelopmental impairment including cerebral palsy
- Chronic lung disease
- Hearing impairment
A single course of antenatal corticosteroids — typically betamethasone, given as two injections 24 hours apart — substantially reduces the incidence and severity of several of these complications. The evidence base goes back to the 1970s and has been confirmed in numerous randomized controlled trials and meta-analyses. Antenatal corticosteroids are not optional in modern obstetric practice for patients at risk of preterm delivery in the relevant gestational age window; they are standard.
The other components of preterm risk management include:
- Consideration of resuscitation level (active resuscitation vs comfort care, particularly at the margins of viability)
- Transfer to a tertiary care centre with NICU capability
- Maternal-fetal medicine (MFM) consultation in complex cases
- Management of any underlying pathology (cervical insufficiency, infection, placental abnormalities)
In a patient presenting with bleeding and a risk of preterm delivery in the 24 to 34-week window, the standard of care requires the obstetrician to discuss these components with the patient. The discussion is part of the medical care, not a separate ethical or administrative obligation.
The substantive facts
The expectant mother presented to the emergency room of Richmond General Hospital on November 10, 2014, with concerns of bleeding during pregnancy. She was assessed by a nurse who recorded her gestational age as 23 weeks and 5 days. Her actual gestational age — as a later ultrasound report demonstrated — was 25 weeks and 1 day. The discrepancy is significant because the 24-week threshold has historically operated as the boundary of active resuscitation discussions.
Dr. Rivera, the attending obstetrician and gynecologist, assessed the patient and identified her as at risk of preterm delivery. The plaintiff’s theory at trial was that the applicable standard of care required Dr. Rivera, in this situation, to:
- Discuss the implications of preterm delivery
- Discuss active resuscitation vs comfort care for the baby
- Discuss the potential use of antenatal corticosteroids (betamethasone)
- Discuss the possibility of transfer to a tertiary care hospital
The plaintiff alleged that Dr. Rivera failed to have any of these discussions, and that the failure constituted a breach of the standard of care.
Dr. Rivera’s evidence at trial was that she had attempted these discussions but the patient was reluctant to engage. Specifically, Dr. Rivera testified that:
- She advised the patient of the risk of preterm delivery
- She raised the question of active resuscitation versus comfort care
- She mentioned betamethasone as part of the active resuscitation package
- She offered inpatient admission for observation as her preferred option
- The patient declined to engage with the resuscitation discussion
- After several hours of observation with no further bleeding or cramping, the patient was discharged with instructions about when to return
In the early hours of December 1, 2014, the patient woke with lower abdominal pain. She drove herself to the hospital. Her cervix was measured at 0.7 to 0.9 cm — down from 1.6 cm the previous day. She received a dose of betamethasone but delivered her premature baby a few hours later, before the second dose of the corticosteroid course could be given (the standard regimen requires two doses 24 hours apart for full effect).
The trial analysis
The trial judge accepted Dr. Rivera’s factual account in material respects.
The discussion was attempted. The court found that Dr. Rivera had advised the patient of the risk of preterm delivery and had raised the question of whether the patient wanted active resuscitation or comfort care for the baby. This was the foundational discussion that the standard of care required. It had occurred.
Betamethasone was on the table. The court found that Dr. Rivera had mentioned the possibility of betamethasone as part of the active resuscitation package. The drug would be administered if the patient chose active resuscitation. The court specifically accepted that Dr. Rivera was open to commencing betamethasone on November 30, 2014, regardless of which gestational age she had in mind.
The gestational age error was not material. The hospital had recorded the gestational age as 23w5d but the actual was 25w1d. The trial judge found that Dr. Rivera’s course of action would not have changed had she been aware of the correct gestational age. She was prepared to offer betamethasone regardless.
The other components followed the threshold discussion. Consultation with a neonatologist or MFM specialist, and consideration of transfer to a tertiary centre, were all downstream from the threshold question of whether the patient wanted active resuscitation. If the patient was not engaging with the threshold question, the downstream components could not meaningfully be advanced.
Discharge was reasonable. The court found that, given the patient’s reluctance to engage in the conversation and the absence of further bleeding or cramping over a period of observation, it was appropriate to discharge her with clear instructions about when to return. Inpatient admission for observation had been Dr. Rivera’s preferred option but had not been forced.
The court therefore concluded that the plaintiff had failed to prove a breach of the standard of care. Given that finding, causation was not considered.
The patient refusal doctrine
A.G. v Rivera engages a doctrinal area that is undertheorized in Canadian malpractice jurisprudence: what happens when a patient declines to engage in a clinical discussion that the standard of care requires.
The starting point is that the physician’s obligation is to attempt the discussion. The standard of care does not require the physician to extract engagement against the patient’s will; that would be inconsistent with patient autonomy and impractical in any event. The physician must:
- Initiate the conversation in good faith
- Provide information in an accessible format
- Be available for follow-up questions
- Document the patient’s response
Where the patient engages, the physician proceeds with informed consent or informed refusal of specific interventions. Where the patient does not engage, the physician’s obligation is to:
- Document the attempt
- Take reasonable clinical decisions consistent with the patient’s apparent wishes (or, where wishes are not expressed, with conservative clinical management)
- Arrange appropriate follow-up
- Reattempt the discussion at appropriate intervals
The doctrine is distinct from informed consent and informed refusal in the Reibl v Hughes sense. Informed consent governs disclosure for accepted procedures. Informed refusal governs disclosure for proposed procedures the patient declines. The patient refusal doctrine, as it operates in cases like A.G. v Rivera, governs the situation where the patient declines to engage with the discussion itself.
The doctrinal point is that the standard of care is procedural, not outcomes-based. The physician is held to the standard of attempting the discussion competently, not to the standard of producing a particular discussion. Where the discussion fails to occur because the patient will not engage, the physician’s responsibility is satisfied if the attempt was reasonable and properly documented.
In A.G. v Rivera, the court found Dr. Rivera had met this standard. She had attempted the discussion, mentioned the key options, and arranged follow-up when the patient declined to engage further.
The causation question — not reached
The trial judge invoked the standard rule that where SOC is not breached, causation need not be considered. The plaintiff failed at the SOC stage; the analysis stopped there.
This is doctrinally correct. The four elements of the negligence cause of action are duty, breach, damage, and causation. Failure on any one defeats the claim. The convention in malpractice cases is to address them in order, and to stop at the first element that defeats the claim — both to avoid unnecessary additional findings and to preserve issues for any potential appeal.
The choice not to address causation is also strategically significant in A.G. v Rivera. The causation question would have engaged complex issues:
- Whether earlier antenatal corticosteroid administration would have changed the outcome
- Whether the patient would have accepted betamethasone had it been more emphatically offered
- Whether transfer to a tertiary centre on November 10 would have changed neonatal management
- Whether short gut syndrome from NEC would have been avoided
These are genuinely difficult issues with substantial clinical complexity. The court was not required to engage them and chose not to do so.
The doctrinal lessons
The case stands for several propositions.
The standard of care for risk counselling is procedural. The physician’s obligation is to attempt the discussion of standard treatment options in a competent manner. Where the discussion is attempted and the patient declines to engage, the standard is satisfied. The standard does not require the physician to extract engagement.
Documentation of refusal matters. Where a patient declines to engage with a discussion, the physician’s documentation of the attempt and the patient’s response is critical evidence. In A.G. v Rivera, the documentation supported the defence factual account that the discussion was attempted and the patient was reluctant.
Patient refusal is distinct from informed refusal. Informed refusal under Reibl v Hughes requires disclosure for procedures the patient declines. Patient refusal of engagement is a different doctrinal situation — the patient is declining to engage with the discussion itself. The physician’s responsibilities differ accordingly.
Causation need not be addressed where SOC fails. The standard rule of judicial economy — address causation only if SOC is breached — operates appropriately even in cases with substantial clinical complexity. Where the SOC analysis is dispositive, the causation analysis is unnecessary.
Gestational age errors may not always be material. The hospital recorded 23w5d; the actual was 25w1d. The error did not change the outcome because Dr. Rivera was prepared to offer betamethasone regardless. The materiality of a gestational age error depends on whether it would have changed the clinical course.
Antenatal corticosteroids are standard but require patient engagement. The intervention is among the most evidence-based in obstetrics, but it cannot be administered against the patient’s will. A patient who is unwilling to engage with the discussion of active resuscitation will not receive the antenatal corticosteroids that are tied to that pathway. Patient autonomy operates as a constraint on the standard of care even for highly evidence-based interventions.
Cross-province cluster: BC at six cases
A.G. v Rivera is the sixth British Columbia case in the rewritten cross-province sub-cluster on this site. The BC sub-cluster now provides the most comprehensive single-province coverage in the library:
- Massie v PHSA: class action certified against imposter nurse
- Sheoran v IHA: physician suing hospital after patient assault
- Gilmore v Love: birth injury (newborn skull fractures, real-time informed consent during labour)
- Lal v Anderson: procedural (jury notice motion)
- Hanson-Tasker v Ewart: appellate (kernicterus causation; competing experts; Snell discretion)
- A.G. v Rivera (this case): birth injury (preterm risk counselling)
The six cases together cover certification, intentional torts, real-time labour decisions, procedural defaults, appellate causation analysis, and patient refusal doctrine. For BC malpractice practice generally, this is a useful reference set.
The broader cross-province sub-cluster now spans six provinces and twelve cases:
Birth injury sub-cluster
A.G. v Rivera is the ninth case in the birth injury sub-cluster:
The cluster now covers the major birth injury contexts: term cerebral palsy (Woods); failed referral in high-risk pregnancy (KY); shoulder dystocia and brachial plexus injury (Rathan); delivery complications and informed consent (Gilmore); jury procedure (Lal); kernicterus and post-delivery causation (Hanson-Tasker); maternal AFE catastrophic injury (Bendah); ARM and birth brain injury (Penate); and preterm risk counselling (A.G.). The clinical and doctrinal scope of birth injury malpractice is comprehensively represented.
Causation/SOC defeat sub-cluster
A.G. v Rivera is the eleventh case in the causation/SOC defeat sub-cluster. It joins:
The cluster now provides comprehensive coverage of the realistic patterns of malpractice defeat: SOC breach without causation; SOC met; expert qualification failure; appellate affirmance; cancer natural history; competing experts; expert evidence unravel; AFE causation defeat; and patient refusal preventing SOC breach.
Why this case matters
For prospective clients. A bad outcome in a preterm delivery situation does not necessarily mean the obstetrician breached the standard of care. Where the physician attempted the discussion of antenatal corticosteroids, resuscitation, and transfer to tertiary care, and the patient declined to engage, the physician’s responsibility is generally satisfied. Prospective clients evaluating preterm delivery malpractice claims should consider carefully what the medical records show about the discussion that occurred (or was attempted) before the delivery. For more on the realistic assessment of malpractice claims, see Suing for Medical Malpractice in Ontario: What You Need to Know.
For plaintiff counsel. The case is a reminder that the standard of care for risk counselling is procedural, not outcomes-based. The physician’s obligation is to attempt the discussion competently. A claim that depends on the proposition that the discussion did not occur will need strong evidence — typically including absence of documentation, contradictions in the physician’s account, and a credible alternative narrative from the patient. The defence will marshal the documentation aggressively; counsel should anticipate that.
For defence counsel. A.G. v Rivera is useful precedent on the patient refusal doctrine. Where the medical record supports the physician’s account that the discussion was attempted and the patient declined to engage, the case will turn on the credibility assessment at trial. Documentation contemporaneous with the patient interaction is the most powerful evidence.
For practising obstetricians and gynecologists. The case reinforces the importance of documenting discussions of preterm risk and the available management options. Even where the discussion is brief because the patient is not engaging, the documentation of the attempt is what survives in the malpractice analysis years later. The mantra “if it isn’t documented, it didn’t happen” operates against you when the patient interaction was difficult and you moved on without making a thorough note. Conversely, careful documentation of attempted discussions and patient responses provides substantial protection.
For more on birth injury malpractice generally, see Birth Injury Lawyer in Toronto. For more on informed consent and the related framework of informed refusal, see Thorburn v Grimshaw: Summary Judgment in an Informed Consent Case and Denman v Radovanovic.
Decision Date: February 13, 2024
Jurisdiction: Supreme Court of British Columbia
Citation: A.G. v Rivera, 2024 BCSC 242 (CanLII)
Key clinical authorities: Society of Obstetricians and Gynaecologists of Canada (SOGC) and American College of Obstetricians and Gynecologists (ACOG) guidance on antenatal corticosteroid therapy for preterm birth
A.G. v Rivera: Preterm Delivery Counselling and the Patient Who Declined
A birth injury claim alleging failure to discuss antenatal steroids and resuscitation in a 25-week preterm risk situation was dismissed. The discussion was attempted; the patient declined to engage.
Antenatal corticosteroids are among the most evidence-based interventions in obstetric practice. A single course of betamethasone given to a mother at risk of preterm delivery between 24 and 34 weeks of gestation substantially reduces neonatal mortality, respiratory distress syndrome, intraventricular hemorrhage, and necrotizing enterocolitis. The Society of Obstetricians and Gynaecologists of Canada and the American College of Obstetricians and Gynecologists both endorse the practice. Failure to offer antenatal corticosteroids in a clear preterm risk situation would typically be a breach of the standard of care.
A.G. v Rivera, 2024 BCSC 242, is a case where the obstetric standard for preterm risk counselling was not in dispute, but the factual question of whether the standard was met turned on a more difficult issue: what does a physician do when a patient declines to engage in the discussion? The Supreme Court of British Columbia dismissed a birth injury claim brought on behalf of a baby boy born at 25 weeks with short gut syndrome and other complications of extreme prematurity. The court accepted the defence factual account that the OBGYN had attempted to discuss the preterm risk and the available options, that the patient had been reluctant to engage, and that the physician’s management was reasonable in the circumstances.
The case is doctrinally significant because it illustrates the operation of the patient refusal framework, the clinical context of extreme preterm delivery, and the limits of malpractice exposure where the substantive discussion was attempted in good faith.
The clinical context: extreme preterm delivery and antenatal corticosteroids
A baby born at 25 weeks of gestation faces substantial clinical risks. With active resuscitation in a tertiary neonatal intensive care unit, survival is approximately 80 to 85 percent in modern Canadian practice. Survival, however, does not equate to absence of morbidity. Substantial proportions of survivors experience:
A single course of antenatal corticosteroids — typically betamethasone, given as two injections 24 hours apart — substantially reduces the incidence and severity of several of these complications. The evidence base goes back to the 1970s and has been confirmed in numerous randomized controlled trials and meta-analyses. Antenatal corticosteroids are not optional in modern obstetric practice for patients at risk of preterm delivery in the relevant gestational age window; they are standard.
The other components of preterm risk management include:
In a patient presenting with bleeding and a risk of preterm delivery in the 24 to 34-week window, the standard of care requires the obstetrician to discuss these components with the patient. The discussion is part of the medical care, not a separate ethical or administrative obligation.
The substantive facts
The expectant mother presented to the emergency room of Richmond General Hospital on November 10, 2014, with concerns of bleeding during pregnancy. She was assessed by a nurse who recorded her gestational age as 23 weeks and 5 days. Her actual gestational age — as a later ultrasound report demonstrated — was 25 weeks and 1 day. The discrepancy is significant because the 24-week threshold has historically operated as the boundary of active resuscitation discussions.
Dr. Rivera, the attending obstetrician and gynecologist, assessed the patient and identified her as at risk of preterm delivery. The plaintiff’s theory at trial was that the applicable standard of care required Dr. Rivera, in this situation, to:
The plaintiff alleged that Dr. Rivera failed to have any of these discussions, and that the failure constituted a breach of the standard of care.
Dr. Rivera’s evidence at trial was that she had attempted these discussions but the patient was reluctant to engage. Specifically, Dr. Rivera testified that:
In the early hours of December 1, 2014, the patient woke with lower abdominal pain. She drove herself to the hospital. Her cervix was measured at 0.7 to 0.9 cm — down from 1.6 cm the previous day. She received a dose of betamethasone but delivered her premature baby a few hours later, before the second dose of the corticosteroid course could be given (the standard regimen requires two doses 24 hours apart for full effect).
The trial analysis
The trial judge accepted Dr. Rivera’s factual account in material respects.
The discussion was attempted. The court found that Dr. Rivera had advised the patient of the risk of preterm delivery and had raised the question of whether the patient wanted active resuscitation or comfort care for the baby. This was the foundational discussion that the standard of care required. It had occurred.
Betamethasone was on the table. The court found that Dr. Rivera had mentioned the possibility of betamethasone as part of the active resuscitation package. The drug would be administered if the patient chose active resuscitation. The court specifically accepted that Dr. Rivera was open to commencing betamethasone on November 30, 2014, regardless of which gestational age she had in mind.
The gestational age error was not material. The hospital had recorded the gestational age as 23w5d but the actual was 25w1d. The trial judge found that Dr. Rivera’s course of action would not have changed had she been aware of the correct gestational age. She was prepared to offer betamethasone regardless.
The other components followed the threshold discussion. Consultation with a neonatologist or MFM specialist, and consideration of transfer to a tertiary centre, were all downstream from the threshold question of whether the patient wanted active resuscitation. If the patient was not engaging with the threshold question, the downstream components could not meaningfully be advanced.
Discharge was reasonable. The court found that, given the patient’s reluctance to engage in the conversation and the absence of further bleeding or cramping over a period of observation, it was appropriate to discharge her with clear instructions about when to return. Inpatient admission for observation had been Dr. Rivera’s preferred option but had not been forced.
The court therefore concluded that the plaintiff had failed to prove a breach of the standard of care. Given that finding, causation was not considered.
The patient refusal doctrine
A.G. v Rivera engages a doctrinal area that is undertheorized in Canadian malpractice jurisprudence: what happens when a patient declines to engage in a clinical discussion that the standard of care requires.
The starting point is that the physician’s obligation is to attempt the discussion. The standard of care does not require the physician to extract engagement against the patient’s will; that would be inconsistent with patient autonomy and impractical in any event. The physician must:
Where the patient engages, the physician proceeds with informed consent or informed refusal of specific interventions. Where the patient does not engage, the physician’s obligation is to:
The doctrine is distinct from informed consent and informed refusal in the Reibl v Hughes sense. Informed consent governs disclosure for accepted procedures. Informed refusal governs disclosure for proposed procedures the patient declines. The patient refusal doctrine, as it operates in cases like A.G. v Rivera, governs the situation where the patient declines to engage with the discussion itself.
The doctrinal point is that the standard of care is procedural, not outcomes-based. The physician is held to the standard of attempting the discussion competently, not to the standard of producing a particular discussion. Where the discussion fails to occur because the patient will not engage, the physician’s responsibility is satisfied if the attempt was reasonable and properly documented.
In A.G. v Rivera, the court found Dr. Rivera had met this standard. She had attempted the discussion, mentioned the key options, and arranged follow-up when the patient declined to engage further.
The causation question — not reached
The trial judge invoked the standard rule that where SOC is not breached, causation need not be considered. The plaintiff failed at the SOC stage; the analysis stopped there.
This is doctrinally correct. The four elements of the negligence cause of action are duty, breach, damage, and causation. Failure on any one defeats the claim. The convention in malpractice cases is to address them in order, and to stop at the first element that defeats the claim — both to avoid unnecessary additional findings and to preserve issues for any potential appeal.
The choice not to address causation is also strategically significant in A.G. v Rivera. The causation question would have engaged complex issues:
These are genuinely difficult issues with substantial clinical complexity. The court was not required to engage them and chose not to do so.
The doctrinal lessons
The case stands for several propositions.
The standard of care for risk counselling is procedural. The physician’s obligation is to attempt the discussion of standard treatment options in a competent manner. Where the discussion is attempted and the patient declines to engage, the standard is satisfied. The standard does not require the physician to extract engagement.
Documentation of refusal matters. Where a patient declines to engage with a discussion, the physician’s documentation of the attempt and the patient’s response is critical evidence. In A.G. v Rivera, the documentation supported the defence factual account that the discussion was attempted and the patient was reluctant.
Patient refusal is distinct from informed refusal. Informed refusal under Reibl v Hughes requires disclosure for procedures the patient declines. Patient refusal of engagement is a different doctrinal situation — the patient is declining to engage with the discussion itself. The physician’s responsibilities differ accordingly.
Causation need not be addressed where SOC fails. The standard rule of judicial economy — address causation only if SOC is breached — operates appropriately even in cases with substantial clinical complexity. Where the SOC analysis is dispositive, the causation analysis is unnecessary.
Gestational age errors may not always be material. The hospital recorded 23w5d; the actual was 25w1d. The error did not change the outcome because Dr. Rivera was prepared to offer betamethasone regardless. The materiality of a gestational age error depends on whether it would have changed the clinical course.
Antenatal corticosteroids are standard but require patient engagement. The intervention is among the most evidence-based in obstetrics, but it cannot be administered against the patient’s will. A patient who is unwilling to engage with the discussion of active resuscitation will not receive the antenatal corticosteroids that are tied to that pathway. Patient autonomy operates as a constraint on the standard of care even for highly evidence-based interventions.
Cross-province cluster: BC at six cases
A.G. v Rivera is the sixth British Columbia case in the rewritten cross-province sub-cluster on this site. The BC sub-cluster now provides the most comprehensive single-province coverage in the library:
The six cases together cover certification, intentional torts, real-time labour decisions, procedural defaults, appellate causation analysis, and patient refusal doctrine. For BC malpractice practice generally, this is a useful reference set.
The broader cross-province sub-cluster now spans six provinces and twelve cases:
Birth injury sub-cluster
A.G. v Rivera is the ninth case in the birth injury sub-cluster:
The cluster now covers the major birth injury contexts: term cerebral palsy (Woods); failed referral in high-risk pregnancy (KY); shoulder dystocia and brachial plexus injury (Rathan); delivery complications and informed consent (Gilmore); jury procedure (Lal); kernicterus and post-delivery causation (Hanson-Tasker); maternal AFE catastrophic injury (Bendah); ARM and birth brain injury (Penate); and preterm risk counselling (A.G.). The clinical and doctrinal scope of birth injury malpractice is comprehensively represented.
Causation/SOC defeat sub-cluster
A.G. v Rivera is the eleventh case in the causation/SOC defeat sub-cluster. It joins:
The cluster now provides comprehensive coverage of the realistic patterns of malpractice defeat: SOC breach without causation; SOC met; expert qualification failure; appellate affirmance; cancer natural history; competing experts; expert evidence unravel; AFE causation defeat; and patient refusal preventing SOC breach.
Why this case matters
For prospective clients. A bad outcome in a preterm delivery situation does not necessarily mean the obstetrician breached the standard of care. Where the physician attempted the discussion of antenatal corticosteroids, resuscitation, and transfer to tertiary care, and the patient declined to engage, the physician’s responsibility is generally satisfied. Prospective clients evaluating preterm delivery malpractice claims should consider carefully what the medical records show about the discussion that occurred (or was attempted) before the delivery. For more on the realistic assessment of malpractice claims, see Suing for Medical Malpractice in Ontario: What You Need to Know.
For plaintiff counsel. The case is a reminder that the standard of care for risk counselling is procedural, not outcomes-based. The physician’s obligation is to attempt the discussion competently. A claim that depends on the proposition that the discussion did not occur will need strong evidence — typically including absence of documentation, contradictions in the physician’s account, and a credible alternative narrative from the patient. The defence will marshal the documentation aggressively; counsel should anticipate that.
For defence counsel. A.G. v Rivera is useful precedent on the patient refusal doctrine. Where the medical record supports the physician’s account that the discussion was attempted and the patient declined to engage, the case will turn on the credibility assessment at trial. Documentation contemporaneous with the patient interaction is the most powerful evidence.
For practising obstetricians and gynecologists. The case reinforces the importance of documenting discussions of preterm risk and the available management options. Even where the discussion is brief because the patient is not engaging, the documentation of the attempt is what survives in the malpractice analysis years later. The mantra “if it isn’t documented, it didn’t happen” operates against you when the patient interaction was difficult and you moved on without making a thorough note. Conversely, careful documentation of attempted discussions and patient responses provides substantial protection.
For more on birth injury malpractice generally, see Birth Injury Lawyer in Toronto. For more on informed consent and the related framework of informed refusal, see Thorburn v Grimshaw: Summary Judgment in an Informed Consent Case and Denman v Radovanovic.
Decision Date: February 13, 2024
Jurisdiction: Supreme Court of British Columbia
Citation: A.G. v Rivera, 2024 BCSC 242 (CanLII)
Key clinical authorities: Society of Obstetricians and Gynaecologists of Canada (SOGC) and American College of Obstetricians and Gynecologists (ACOG) guidance on antenatal corticosteroid therapy for preterm birth
Paul Cahill
Partner, Davidson Cahill Morrison LLP | LSO Certified Specialist in Civil Litigation
Paul represents victims of medical malpractice across Ontario, with trial experience including a $11.5M jury verdict in a birth injury case. He is recognized in Best Lawyers in Canada and serves as trial counsel to other lawyers on complex medical negligence matters.
About PaulMore on medical malpractice in Ontario.
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