Legal arguments given in a birth gone horribly wrong

Saturday February 8 2020


By Dr Sylvester Onzivua

A mother sued a hospital when her first born son suffered severe injuries at birth. The mother was a diabetic. The size of her baby was big and she had expressed fears during the antenatal visits about a normal delivery on account of the baby’s size. The doctor attending to her did not disclose to her the dangers associated with the delivery of a big baby and the doctor did not offer her the option of a caesarean section. The baby’s shoulders got stuck in the birth canal during delivery and the baby had to be forcefully pulled out.
The case therefore rested on failure to offer a patient appropriate options and failure to disclose important risks of a medical procedure.

First court’s decision
There was evidence before the trial judge to the effect that any other competent doctor would have acted the same way as the doctor who attended to the mother. The trial judge therefore ruled in favour of the hospital although there was another medical opinion to the contrary.
Another ground upon which the judge based ruling was that the mother did not ask the doctor specific questions related to the complication which arose during the delivery of her baby. The mother appealed the judgment.

Mother appeals
In her appeal the mother again argued that she ought to have been informed of the risk that arose during the delivery and that she should have been advised about the alternative delivery by caesarean section.
It is established in law that a medical practitioner should inform a patient of any significant risk which would affect the judgment of a reasonable patient. The appellant court was, however, of the opinion that the law would only require a doctor, in advising a patient of risks, to follow the practice of a responsible body of medical practitioners.

The appellant court accepted that there may be exceptional cases but in this case exceptional circumstances were not demonstrated. To court, the relevant risk in this case was not of the baby being stuck in the birth canal but rather the much smaller risk of injuries to the baby.

Doctor’s duty to answer
It is also in law that when a doctor is questioned specifically by a patient about risks of a medical procedure, it is the doctor’s duty to answer truthfully and as fully as the question requires.
The trial judge had rejected the mother’s evidence that she had repeatedly asked her doctor about the risks of normal delivery in respect of her baby.
The lawyer acting for the mother also told court of the mother’s undisputed expression to her doctor of concerns about the size of her baby, and her ability to deliver the baby normally.

This, to the lawyer, was in substance a request for information about the risks involved in delivering the baby normally and was equally apt to trigger a duty to advice of the risks involved therein.
This argument was also rejected by the appellant court on the grounds that “communication of general anxieties or concerns, in a manner which does not clearly call for the full and honest disclosure of factual information in reply, falls short of (the legal requirements)”. To court, the mother’s concerns had been of a general nature only, and unlike specific questioning, general concerns set no obvious parameters for a required response.


Court was of the opinion that “too much in the way of information may only serve to confuse or alarm the patient, and it is therefore very much a question for the experienced practitioner to decide in accordance with normal and proper practice, where the line should be drawn in a given case”. The appellant court concluded that the doctor owed no duty to the mother to advise her of the risks associated with normal delivery and the question of how the mother might have reacted, or what treatment she might have opted for, if she had been advised of the risks did not therefore arise.
The legal question was whether the mother had been advised of the very small risks of grave consequences arising out of a baby being stuck in the birth canal, she would have opted for a caesarean section and thus avoided the injury to the baby.

Trial judge’s omission
The trial judge omitted to evaluate the evidence given by the doctor that had the complications of a baby being stuck in the birth canal been disclosed to the mother then she would no doubt have requested a caesarean section as would any mother today.
The appellant court considered that this evidence was given in the context of a discussion about professional practice in the matter of advising of the risks of a normal delivery rather than a focused consideration of the likely attitude and response of the mother.