Doctor who failed to obtain patient's consent guilty of malpractice: Alberta Court of King's Bench

Obstetrician failed to explain to the patient the risks involved in C-section delivery

Doctor who failed to obtain patient's consent guilty of malpractice: Alberta Court of King's Bench

The Alberta Court of King’s Bench has ruled that an obstetrician who failed to obtain the patient’s informed consent before delivering her baby breached the required standard of care.

In Smartt v Brar, 2023 ABKB 4, Filip Smartt was born in 2014 at the Foothills Hospital in Calgary. During a mid-forceps vaginal delivery, Filip’s shoulder got stuck behind the mother’s pubic bone, resulting in a brachial plexus injury. Filip’s left arm and hand were permanently paralyzed.

Filip’s parents, Morana Grba and Gairy Smartt, sued Dr. Kelly Albrecht, the obstetrician and gynecologist who performed Filip’s delivery. Grba and Smartt alleged that Dr. Albrecht did not properly inform them of the risks of mid-forceps delivery and that she refused to carry out a Caesarian section birth, even when asked by Grba to do so.

In a mid-forceps delivery, the doctor uses specifically designed forceps to reach into the birthing canal. She would affix the forceps such that they would grab each side of the head. Then, as the mother pushed during a contraction, the doctor would pull on the forceps to assist in getting the baby delivered.

Dr. Albrecht consistently maintained that she had fully discussed birthing options with Filip’s mother, explaining the benefits and risks of various forms of delivery. She said she even offered Grba the option to have a Caesarian section, but Grba chose the mid-forceps delivery. Dr. Albrecht asserted that she had properly performed the delivery without negligence.

No informed consent

The Alberta Court of King’s Bench noted that Dr. Albrecht would have obtained informed consent in a “complete textbook fashion” if she had discussed the risks and alternatives with Grba, offered her the option of a forceps delivery or a C-section, and Grba had then elected forceps delivery.

Grba testified that during delivery, Dr. Albrecht said, “we have to get this baby out now,” and explained that she would gently use forceps to deliver the baby. Grba then asked for a C-section, but Dr. Albrecht allegedly said it was “too late, the baby was too far down.”

On the other hand, Dr. Albrecht asserted that shortly before delivery, she performed a vaginal examination on Grba. Dr. Albrecht then spoke with Grba for five to 10 minutes about her delivery options and the risks involved.

The court observed that Dr. Albrecht’s delivery note did not indicate that she had obtained informed consent from Grba for the mid-forceps delivery. The court also found that the nurses’ notes record conflicted with the timing of Dr. Albrecht’s alleged five to 10-minute discussion with the patient.

The court gave more weight to the nurses’ notes, which show that Dr. Albrecht did not have a five to 10-minute discussion with Grba as she alleged. The court further found that during the forceps delivery, a difficult pull was involved and that Dr. Albrecht tried to downplay it at the trial.

The court found that the absence in Dr. Albrecht’s chart note of reference to obtaining informed consent was not adequately explained. The evidence Dr. Albrecht presented was an attempt to deflect blame and to record an informed consent discussion that never took place.

The court ultimately concluded that Dr. Albrecht did not properly inform Grba about the alternatives of either a mid-forceps delivery or a C-section. She failed to advise the patient about the risks of each alternative procedure to Grba and her baby. She did not obtain informed consent from Grba before performing the mid-forceps delivery. As a result, Dr. Albrecht breached the standard of care of an obstetrician in this situation. 

Causal link

The court observed that when faced with the prospect of a forceps delivery, Grba immediately asked to have a C-performed. However, Dr. Albrecht did not offer that alternative, saying it was too late. The court said Dr. Albrecht knew that due to Grba’s age, weight, and health condition, there was a risk for shoulder dystocia to arise during a mid-forceps delivery, and the only way to avoid the injury was to deliver the baby by C-section.

The court was satisfied that if Grba had been informed of the risks to her baby from a forceps delivery compared to the risks to her baby from a C-section, she reasonably would have chosen the C-section.

The court emphasized that in a case with a lack of informed consent, the plaintiff does not have to show that the doctor performed the procedure negligently. They must only demonstrate that it caused the injury. In this case, the court was satisfied that, on a balance of probabilities, Dr. Albrecht caused Filip’s permanent paralysis.

Recent articles & video

Nominations open for the 2024 Lexpert Rising Stars

Data and full lifecycle analysis crucial for ESG reporting, says Miller Thomson’s Christie McLeod

Navigating negligence: legal strategies in E.R negligence litigation

Jennifer Teskey, the Canadian managing partner at Norton Rose Fulbright, on talent and motivation

Marina Paperny on rejoining BLG to advise litigators after a nearly 30-year judicial career

Public Safety Minister emphasizes cyber defences in response to Auditor General's report

Most Read Articles

Whether 'open banking' or 'consumer-driven' banking, the goal of sharing data remains the same

BC Supreme Court awards damages in ICBC privacy breach class action

How to spot ChatGPT output masquerading as legal analysis

Husband's transfer of matrimonial home to wife fraudulent: Ontario Court of Appeal