Birth Injury Claims Involving Midwives in Ontario

Midwifery has been a regulated health profession in Ontario for more than three decades. For low-risk pregnancies, midwives provide continuity of care across the prenatal, intrapartum, and postpartum periods that many patients find more personalized than physician-led care. Midwifery services are publicly funded; patients do not pay for the care. The number of Ontario births attended by registered midwives has been growing steadily and now sits at well over a fifth of all births in the province. Waitlists for midwifery care exceed availability in many catchment areas.

This is a system that works well most of the time. Most midwifery-attended births in Ontario proceed without complication, produce healthy mothers and healthy babies, and never come anywhere near a lawyer’s office. The same can be said of physician-attended births. Birth is mostly safe in Ontario regardless of who is providing the care.

What this post is about is the small but meaningful minority of cases where something has gone wrong. Where a midwife missed a clinical sign that should have triggered an obstetrician consultation. Where a transfer to hospital came too late. Where a baby was born hypoxic and the long-term consequences are permanent. The legal framework for these cases is different in several important ways from the framework for physician-led cases, and the differences matter both for prospective claimants and for clinicians thinking about their own risk exposure.

This guide covers the Ontario regulatory and liability framework that governs midwifery practice, the scope-of-practice rules that define what midwives can and cannot do, the consultation and transfer-of-care obligations that often sit at the heart of midwifery malpractice claims, the common factual patterns in those claims, the home birth question, and the practical considerations for families who think something has gone wrong.

A note before going further. The cases in this area are often very difficult ones, factually and emotionally. The patients are usually young parents. The injuries are usually to a newborn. The long-term consequences are usually permanent. Anyone thinking about a claim against a midwife is almost certainly going through one of the worst experiences of their life. The substantive analysis below proceeds against that reality.

Midwifery in Ontario: the regulatory framework

Midwifery is regulated in Ontario under the Midwifery Act, 1991, S.O. 1991, c. 31, alongside the broader regulatory architecture of the Regulated Health Professions Act, 1991. The Midwifery Act establishes:

• The College of Midwives of Ontario (the “CMO”) as the regulator of the profession
• The legislative scope of practice for midwives
• The controlled acts that midwives are authorized to perform
• The title protection of “midwife” and “registered midwife”

The CMO is the body that registers midwives, sets professional standards, investigates complaints, and conducts discipline proceedings. The CMO publishes a comprehensive Scope of Practice document (most recently updated in 2021) and a series of practice standards that operate as the regulatory baseline for the profession. The CMO Standards of Practice include, among others, the Consultation and Transfer of Care Standard, the Second Birth Attendant Standard, and various standards on record-keeping, informed choice, and professional conduct. These standards are not merely aspirational guidance. They are the operative regulatory framework. They are also typically the first reference point in any malpractice analysis involving a midwife.

Midwifery services are funded by the Ontario Ministry of Health. Patients are not charged for care. Most midwives in Ontario practice within a Midwifery Practice Group (MPG), and most MPGs have privileges at one or more hospitals in their catchment area. Catchment areas are defined by the Ministry as the geographic regions within which a practice provides care. Eligible residents within a catchment area can access midwifery care regardless of whether they have OHIP coverage.

The Association of Ontario Midwives (the “AOM”) is the professional association representing midwives in Ontario. The AOM is distinct from the CMO. The CMO regulates; the AOM advocates and provides supports including the liability insurance arrangement discussed below.

What midwives can do

Midwifery in Ontario is primary care for low-risk pregnancies and healthy newborns. The scope, drawn from section 3 of the Midwifery Act and elaborated in the CMO Scope of Practice document, includes:

• Prenatal care for a normal pregnancy, including history-taking, physical examination, ordering and interpreting prenatal blood work and screening tests, ordering and interpreting obstetric ultrasound, counselling, and nutritional and lifestyle advice
• Intrapartum care for normal labour and birth, including the management of the first, second, and third stages of labour, fetal heart rate monitoring (typically intermittent rather than continuous in low-risk cases), and the management of normal vaginal delivery
• Immediate postpartum care for mother and baby, including assessment of the newborn, neonatal resuscitation when needed, breastfeeding support, and assessment of maternal recovery
• Postpartum care up to six weeks after birth, including follow-up of the mother and the newborn, well-baby checks, and the controlled act of communicating a diagnosis up to that time
• Ordering and administering medications within a defined drug list, including oxytocics for management of postpartum hemorrhage, antibiotics for certain infections, anti-D immune globulin where indicated, and other obstetric medications appropriate to scope
• Performing certain controlled acts authorized under the Regulated Health Professions Act, including managing labour and delivery, suturing perineal lacerations, taking blood samples, and performing the immediate care of the newborn

Midwives in Ontario can deliver in three settings: the patient’s home, a free-standing birth centre, or a hospital. The choice of setting is a shared decision between the patient and the midwifery team, informed by the patient’s clinical risk profile and the available facilities.

What midwives cannot do

The scope is bounded. Midwives in Ontario cannot:

• Perform a caesarean section. Surgical delivery requires an obstetrician (or in some communities, a family physician with surgical training) and an operating room with anaesthetic and nursing support.
• Perform operative vaginal delivery using forceps or vacuum extraction. These instrumental deliveries are within the scope of obstetricians and certain family physicians but not within the scope of midwifery in Ontario.
• Administer epidural or spinal anaesthesia. Regional anaesthesia is administered by anaesthesiologists. Midwives can support a labouring patient who is receiving an epidural placed by an anaesthesiologist but cannot place or manage the block itself.
• Independently manage a high-risk pregnancy. Patients with conditions such as insulin-dependent diabetes, significant cardiac disease, severe preeclampsia, multiple gestation in certain configurations, or other recognized high-risk features fall outside the legislative scope of midwifery and require obstetrical care.
• Prescribe medications outside the defined drug list. The midwifery formulary is substantial but bounded. Medications outside the list require physician involvement.
• Perform certain advanced obstetric interventions. Procedures like external cephalic version for breech presentation, induction of labour, and various other interventions require physician involvement.

The boundary between “in scope” and “out of scope” is not always sharp at the edges. The regulatory framework anticipates this. Where uncertainty exists, the CMO Scope of Practice document and the Consultation and Transfer of Care Standard require the midwife to consult with the most appropriate available health care provider and, where indicated, to transfer responsibility for care. The midwife’s professional obligation is to recognize when the case is no longer hers to manage independently. The failure to recognize this point is one of the most common sources of midwifery malpractice claims.

The consultation and transfer-of-care framework

The CMO Consultation and Transfer of Care Standard is the doctrinal centerpiece of midwifery practice in Ontario and, accordingly, the doctrinal centerpiece of midwifery malpractice analysis.

The standard distinguishes three regulatory dispositions:

Primary care. The midwife manages the case independently within the scope of practice. The midwife is the most responsible provider (MRP). The standard of care is the standard expected of a competent midwife managing the case.

Consultation. The midwife continues to manage the case but obtains formal input from a physician or other health care provider on a specific clinical question. The midwife remains the MRP. The consultation is documented. The recommendations are integrated into the care plan. Consultation does not change the locus of decision-making; the midwife continues to make and execute the clinical plan. Common consultation triggers include unusual prenatal findings, certain medication considerations, atypical labour patterns, mild abnormalities in fetal monitoring, and similar situations that fall within scope but benefit from physician input.

Transfer of care. Responsibility for the patient passes from the midwife to a physician. The physician becomes the MRP. The midwife may continue to provide support and continuity, but the physician is making the clinical decisions. Transfer of care is required where the patient’s condition falls outside the legislative scope of midwifery practice. Common transfer triggers include the development of high-risk conditions during pregnancy, the need for an intervention outside scope (caesarean section, operative vaginal delivery, regional anaesthesia), significant maternal or fetal compromise during labour, and other situations where physician-level care is required.

Most responsible provider analysis is critical in malpractice litigation. Where a transfer of care has occurred, the physician is typically the MRP and bears the primary clinical responsibility for outcomes after the transfer. The midwife’s responsibility extends to the period before transfer and to the adequacy of the recognition and execution of the transfer itself. Where the issue is that transfer should have occurred earlier than it did, the midwife’s responsibility is engaged. Where the issue is that the post-transfer care was substandard, the physician’s responsibility is typically engaged. In some cases both are engaged and the analysis must address each provider’s contribution.

The CMO Scope of Practice document and the Consultation and Transfer of Care Standard together include specific guidance on the indications for consultation and transfer. The published indications include (without being exhaustive):

• Antepartum hemorrhage of any significance
• Hypertensive disorders of pregnancy (gestational hypertension, preeclampsia)
• Suspected fetal growth restriction or macrosomia
• Multiple gestation (twins and beyond)
• Abnormal fetal heart rate patterns
• Prolonged or arrested labour
• Suspected chorioamnionitis or maternal infection
• Prolapsed umbilical cord
• Suspected uterine rupture
• Shoulder dystocia not managed by standard maneuvers
• Significant postpartum hemorrhage
• Neonatal compromise requiring more than basic resuscitation
• Any clinical situation outside the midwife’s individual competence

The midwife’s professional judgment governs the application of these indications in the moment. The midwife is not entitled to ignore an indication; the midwife is also not entitled to apply the framework mechanically without clinical reasoning. The trier of fact in any malpractice case will examine whether the midwife’s recognition and response to the clinical indicators met the standard expected of a competent midwife in the same circumstances.

The liability protection regime

This is one of the most important practical differences between midwifery malpractice and physician malpractice in Canada, and it surprises many people who are not familiar with it.

Physicians in Canada are typically covered for medico-legal claims through the Canadian Medical Protective Association (the “CMPA”), the mutual defence organization that has been the dominant feature of the physician liability landscape for over a century. The CMPA collects fees from individual physician members, defends them in litigation, and compensates patients found to have been harmed by negligent care. I cover the CMPA in some detail in Is Medical Malpractice on the Rise in Canada?.

Midwives in Ontario are not covered by the CMPA. The midwifery liability regime is operated through the Healthcare Insurance Reciprocal of Canada (the “HIROC”), a non-profit reciprocal insurance arrangement that covers a broad range of Canadian healthcare organizations and providers. HIROC is the largest medical malpractice liability insurer for the Canadian healthcare sector outside the physician-specific CMPA framework.

The AOM is the policy holder for the midwifery liability coverage that HIROC provides. Individual midwives access the coverage through their registration with the CMO and their membership in a practice that participates in the AOM-HIROC arrangement. The Ministry of Health funds the coverage as part of the broader funding arrangements for midwifery services in Ontario.

What the HIROC midwifery policy covers:

• Negligence claims brought through the civil courts for clinical care within the CMO-defined scope of practice or otherwise within the public midwifery role
• Defence costs for claims of negligence and for College complaints (a meaningful coverage given how disruptive College proceedings can be)
• Care provided as part of practice-related activities including prenatal classes, courtesy catches of obstetrical patients, episodic care at uninsured clinics where acceptable to the CMO, and similar activities
• HIV/AIDS financial assistance under specified terms

What the HIROC midwifery policy does not cover:

• Clinical activities outside the CMO scope of practice (e.g., a midwife performing a procedure she is not authorized to perform)
• General running of a practice (slip-and-fall injuries, employment issues, premises issues — these require separate clinic insurance)
• Criminal conduct
• Human rights claims unless the practice has elected the additional coverage

The practical implications for litigation:

• A different insurer means a different defence. HIROC defends midwifery cases through its own counsel network. The litigation playbook is similar to CMPA’s in many respects but the specific counsel and the institutional dynamics are different.
• Joint cases involve both insurers. Where a midwife and an obstetrician (or other physician) are both named, HIROC defends the midwife and CMPA defends the physician. The two insurers may align or may diverge on liability theories.
• The damages framework is the same. Whether the defendant is a midwife or a physician, the assessment of damages for catastrophic birth injuries follows the same Canadian tort framework. Lifetime cost of care, lost earning capacity, pain and suffering, family law damages, and management fee considerations apply identically.
• The limitations framework is the same. Ontario’s Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, applies to midwifery claims the same way it applies to physician claims. The standard two-year discoverability framework operates. For minor plaintiffs, the limitation period does not start running until the appointment of a litigation guardian.

Common factual patterns in midwifery malpractice claims

After two decades of doing this work, I have a fairly developed sense of the recurring factual patterns in midwifery cases. The published Canadian case law in this area is thinner than the case law on physician malpractice (most cases settle before trial), but the patterns in the cases I see, and in the cases that have produced reported decisions, cluster around several themes.

Failure to recognize fetal distress. Midwives in Ontario typically use intermittent auscultation rather than continuous electronic fetal monitoring in low-risk labour. The intermittent monitoring framework is well-established and is recommended in clinical guidelines as appropriate for low-risk cases. The problem arises where:

• Risk factors emerge during labour that should have shifted the monitoring approach from intermittent to continuous (e.g., meconium-stained fluid, abnormal patterns on auscultation, suspected fetal compromise)
• The auscultation that was performed was inadequate (insufficient frequency, inadequate duration, inadequate documentation)
• Abnormal findings on auscultation were not recognized or not acted on
• The decision not to escalate to continuous monitoring was not adequately justified

Cases in this pattern often turn on the adequacy of the intrapartum record. The midwife’s chart is the primary evidence of what was monitored, what was found, and what was done in response. Documentation gaps are commonly the centerpiece of these claims.

Failure to consult or transfer in time. This is probably the single most common pattern. The clinical picture deteriorates over a period of hours. There are several recognized triggers for consultation or transfer during that period. The midwife continues to manage the case independently when the standard required escalation. By the time the transfer occurs, the window for safe delivery has narrowed or closed. The newborn is born hypoxic or in distress; the long-term consequences are permanent.

The legal analysis in this pattern engages the CMO Consultation and Transfer of Care Standard directly. The trier of fact will examine each clinical trigger in chronological order and determine whether escalation was indicated and whether it occurred. Where escalation was indicated and did not occur, the breach is established. The causation question becomes whether the timely escalation would have produced a different outcome.

Inappropriate location of birth for the actual risk profile. Where a patient has elected home birth and the clinical picture during labour develops in a way that makes home birth inappropriate, the midwife’s obligation is to transfer to hospital. The window for safe transfer is bounded by distance, traffic, and the time required to mobilize an ambulance and prepare the receiving facility. Where transfer happens too late or does not happen at all, the outcome can be catastrophic.

The cases in this pattern are particularly difficult because they often involve a patient who strongly preferred home birth and who may have resisted transfer at the time. The legal framework requires the midwife to make the clinical judgment about transfer even where the patient’s stated preference is against it. The patient’s preferences are an important part of the informed-choice framework but they do not override the midwife’s professional obligation to recommend and pursue transfer where clinically required.

Failure to manage shoulder dystocia. Shoulder dystocia is an obstetric emergency where the anterior shoulder of the fetus is impacted behind the maternal pubic symphysis after delivery of the head. It requires immediate recognition and a structured response with specific maneuvers (McRoberts maneuver, suprapubic pressure, internal rotation maneuvers, delivery of the posterior arm, and in extreme cases more aggressive interventions). Midwives are trained in the management of shoulder dystocia and the standard of care includes recognizing the emergency and executing the maneuvers in the correct sequence.

Cases in this pattern typically involve brachial plexus injury (Erb’s palsy or more extensive brachial plexus damage) and sometimes more severe outcomes. The legal analysis turns on the adequacy of the recognition, the timing and sequence of the maneuvers, the force used during delivery, the documentation of the event, and the post-delivery assessment.

Failure to recognize maternal complications. Severe preeclampsia, eclampsia, postpartum hemorrhage, peripartum cardiomyopathy, sepsis, amniotic fluid embolism, and other serious maternal complications can develop in midwifery-attended care. The standard of care includes recognizing the early signs, escalating appropriately, and ensuring transfer to physician-level care where indicated. Failure to recognize and act on maternal warning signs is a recurring claim category, particularly where the outcome is maternal mortality or severe maternal morbidity.

Inadequate neonatal resuscitation. Midwives are trained in neonatal resuscitation and maintain Neonatal Resuscitation Program (NRP) certification. Where a newborn is born compromised, the standard of care requires immediate initiation of resuscitation following the NRP algorithm and rapid escalation to physician-level care for ongoing management. Cases in this pattern turn on the adequacy of the initial assessment, the timing and quality of the resuscitation, the availability of appropriate equipment, and the speed of escalation.

Documentation gaps. As with all malpractice litigation, contemporaneous documentation is critical. Where the midwife’s record-keeping is inadequate, the trier of fact may draw adverse inferences against the midwife on disputed factual questions. The principle has been applied in numerous Canadian cases including Barker v Montfort Hospital, 2007 ONCA 282, and is particularly relevant in midwifery cases where the midwife’s chart is often the primary source of evidence about what occurred during a home or birth-centre delivery.

The home birth question

Home birth in Ontario is a clinically supported option for appropriate low-risk patients attended by registered midwives. The evidence on home birth outcomes for appropriately selected patients is reasonably favourable. The published research suggests that home birth for low-risk patients attended by trained midwives produces outcomes broadly comparable to hospital birth for low-risk patients in many measured dimensions.

The legal and clinical question is rarely whether home birth is acceptable as a category. It is acceptable. The question is whether home birth was appropriate for this particular patient at this particular time given this particular clinical picture, and if not, whether the transfer to hospital was executed in time.

The framework for the home birth question:

• Patient selection. Home birth is appropriate for low-risk patients without identified risk factors for intrapartum complications. Patient selection is the first line of defence. Where a patient with relative or absolute contraindications proceeds with home birth, the analysis of what happened later begins with the appropriateness of the initial decision.
• Continuous reassessment. Risk status is not static. The clinical picture can change during the antepartum period and during labour. The midwife’s obligation is to reassess continuously and to recommend a change in plan where the clinical picture changes.
• Transfer logistics. Where transfer to hospital becomes necessary, the time required to execute the transfer is meaningful. Distance to the receiving hospital, traffic conditions, ambulance availability, the receiving hospital’s readiness, and the patient’s clinical condition all factor in. The clinically safe window for transfer is much shorter for some scenarios than for others.
• Documentation. The decision to remain at home, the decision to transfer, the recognition of clinical triggers, and the execution of the transfer all need to be documented contemporaneously. The midwife’s chart is the primary evidence.

In appropriate cases, home birth produces excellent outcomes. In inappropriate cases, or in appropriate cases where the clinical picture changed and the transfer happened too late, home birth produces some of the most catastrophic cases I see.

How midwifery cases differ from physician cases

The substantive legal framework for negligence is the same: duty, breach of the standard of care, causation, and compensable damages. The specific features of midwifery cases that differ from physician cases:

Different defendants. A midwifery case may name the midwife, the practice group, and (where transfer occurred) the obstetrician and any treating hospital. The pleading strategy must address each potential defendant’s contribution.

Different insurer. HIROC defends midwifery cases. CMPA defends physician cases. In joint cases, both are involved. The dynamics between the two insurers can be cooperative or adversarial depending on the liability theory.

Different SOC reference framework. For midwifery cases, the primary reference is the CMO Scope of Practice and the CMO Standards of Practice, particularly the Consultation and Transfer of Care Standard. For obstetrician cases, the primary reference is the SOGC clinical practice guidelines. Where a midwifery case crosses into transferred-care obstetrical management, both frameworks apply.

Different expert pool. Midwifery cases require expert evidence from registered midwives (typically experienced midwives, often academic, with experience in similar clinical settings). Where the case crosses into obstetrical management, obstetrical expert evidence is also required. Where the case crosses into neonatal outcomes, neonatology and pediatric neurology expert evidence is required.

Different practice settings. Midwifery cases may involve home, birth centre, or hospital settings. The standard of care is calibrated to the setting in some respects (e.g., what equipment is reasonably available) but not in others (e.g., the recognition of clinical triggers for escalation).

Different documentation conventions. Midwifery charting conventions differ from physician charting conventions in several respects. The Better Outcomes Registry & Network (BORN) Ontario system collects perinatal data including midwifery encounters and is sometimes a useful source of comparative information.

The legal framework — standard of care, causation, damages

Standard of care. A midwife is held to the standard of a competent midwife in the same circumstances. The Supreme Court of Canada framework in ter Neuzen v Korn, [1995] 3 SCR 674, applies. The CMO Standards of Practice and the published CMO Scope of Practice are typically the most important references. Expert evidence from experienced midwifery practitioners is required. The standard is not adjusted by the practice setting (home, birth centre, hospital) in respect of clinical decision-making; the standard recognises practical realities of the setting in respect of available resources.

The within-scope and outside-scope dual analysis. A midwifery case typically requires two SOC analyses operating in parallel:

• Did the midwife’s within-scope care meet the standard of a competent midwife? (e.g., adequacy of monitoring, adequacy of intrapartum management, adequacy of neonatal resuscitation)
• Did the midwife appropriately recognize when the case fell outside scope and execute consultation or transfer? (the Consultation and Transfer of Care Standard analysis)

Both analyses can produce findings of breach. Either alone is sufficient to establish negligence if causation is also established.

Causation. The causation framework is no different from other birth injury cases. Clements v Clements, 2012 SCC 32, but-for causation; Snell v Farrell, [1990] 2 SCR 311, robust and pragmatic approach where scientific certainty is not available; Athey v Leonati, [1996] 3 SCR 458, where there are multiple causes. The plaintiff must establish on the balance of probabilities that the midwife’s breach caused or materially contributed to the harm. Counterfactual analysis is often required: had the midwife escalated timely, what would have happened?

Damages. Catastrophic birth injury damages in Ontario are substantial and well-developed. The major heads of damage:

• General damages for pain and suffering (subject to the Andrews v Grand & Toy trilogy cap, currently approximately $400,000 indexed)
• Past income loss for the parents who provided care
• Future income loss for the child
• Cost of future care over the child’s lifetime (often the single largest head of damage in catastrophic cases)
• Family law damages for the parents and siblings under section 61 of the Family Law Act, RSO 1990, c. F.3
• Management fees and contingency considerations

For severe outcomes such as cerebral palsy, the lifetime cost of care can exceed $10 million. Damages awards and settlements in birth injury cases routinely reach eight figures where liability is established and the injury is permanent and severe. The framework is the same whether the defendant is a midwife or an obstetrician.

Limitations. Ontario’s Limitations Act, 2002 applies. For an adult mother, the basic limitation period is two years from when she knew or ought to have known of the claim, subject to discoverability. For an infant plaintiff, the limitation period does not run until a litigation guardian is appointed under the Limitations Act s. 6. The ultimate limitation under s. 15 is fifteen years from the date of the act or omission, with specified exceptions including for minors. Limitation analysis in birth injury cases is fact-specific and should be conducted promptly.

Practical considerations for families

If you think something has gone wrong with midwifery-attended care, several practical steps matter.

Gather records promptly. The key records typically include:

• The midwife’s prenatal, intrapartum, and postpartum chart
• BORN Ontario data submissions for the encounter
• Hospital records for any transferred or hospital-based care
• Neonatal records including resuscitation documentation, NICU records if applicable
• Imaging studies (cranial ultrasound, MRI of the head)
• Discharge summaries
• Outpatient follow-up records and developmental assessments
• Specialist consultation records (pediatric neurology, developmental pediatrics, physical therapy, occupational therapy, speech therapy)

You are entitled to your own and your child’s health records under the Personal Health Information Protection Act, 2004 (PHIPA). The midwifery practice and any treating hospital are health information custodians and are obliged to provide access on reasonable request. I cover the records request framework in some detail in A Patient’s Guide to Making Complaints About Health Care in Ontario.

Consider whether to file a College complaint. A complaint to the CMO is a separate process from any civil claim. A CMO complaint can produce regulatory consequences for the midwife (or, in most cases, no consequences). It does not produce compensation. The CMO complaint process and the civil litigation process operate independently and can run in parallel.

Get a legal opinion early. Birth injury cases are among the most resource-intensive forms of medical malpractice litigation. The records are voluminous. The expert evidence requirements are substantial. The damages exposure is large. Counsel needs to look at the file early in the timeline to assess the merits and to preserve evidence. Limitations periods can be short. The earlier the records are reviewed, the better the assessment and the better the strategic options.

Manage expectations. Not every bad outcome is malpractice. Birth is not a controlled environment. Some catastrophic outcomes occur despite competent care. The question for legal purposes is whether the care fell below the standard of a competent midwife in the circumstances and whether the breach caused or materially contributed to the harm. For a candid discussion of how I evaluate these cases, see Suing for Medical Malpractice in Ontario: What You Need to Know.

Understand the timeline. Birth injury cases typically take years to resolve. The investigation phase often runs eighteen months to two years. Litigation, where commenced, often takes several years. Settlement, where it occurs, typically comes after multiple rounds of expert reports, examinations for discovery, and (sometimes) trial preparation. Patience is part of the process.

What it means for midwives and practice leaders

A few observations from the other side of the file, for any midwives or practice leaders reading this.

Documentation matters more than anything else. Contemporaneous documentation of clinical findings, decision-making rationale, consultation considerations, and patient communication is the single most important protective practice for medico-legal purposes. The cases that go badly for midwives in litigation are almost always cases where the documentation does not support the midwife’s account of what occurred.

Recognition of clinical triggers is the operational frontier. The CMO Consultation and Transfer of Care Standard identifies a substantial number of clinical triggers for consultation and transfer. The midwife’s professional reputation in any subsequent dispute will rest substantially on the timely recognition and documentation of these triggers when they emerge.

Communication with the patient about consultation and transfer should be documented. Where a clinical situation develops, the conversation with the patient about consultation or transfer is part of the standard of care. Where the patient initially resists transfer and the midwife continues to recommend it, the conversation needs to be documented contemporaneously. The trier of fact in a later dispute will examine whether the recommendation was made, whether the patient understood, whether the decision was the patient’s informed choice, and whether the midwife persisted appropriately in pursuing the clinically indicated course.

HIROC notification should be prompt. Any incident that might give rise to a claim or complaint should be reported to HIROC promptly. The HIROC framework provides for early support, including access to legal counsel for College matters. Delay in notification can complicate the defence.

The College complaint process is not the same as the civil process. Both can run in parallel. Each requires its own response strategy. HIROC supports both within the scope of coverage.

Conclusion

Midwifery is a long-established and well-regulated profession in Ontario. The great majority of midwifery-attended births proceed without complication and produce excellent outcomes. The legal framework for the small minority of cases that do not is similar in many respects to the physician malpractice framework but differs in several important ways. The regulatory standards are different (CMO Scope of Practice and Standards of Practice rather than SOGC guidelines). The liability insurer is different (HIROC rather than CMPA). The scope-of-practice analysis is central in a way it is not in physician cases. The consultation and transfer-of-care framework is the doctrinal centerpiece for many of the recurring claim categories.

If you think something has gone wrong with midwifery-attended care for you or your child, the practical advice is the same as it is for any potential medical malpractice claim. Gather the records. Get a legal opinion early. Be aware of the limitation periods. Be candid about what you know and what you do not know. And understand that these cases take time.

The first conversation is free and strictly confidential. The earlier we look at the records, the better.