Allen v Bishop of Victoria [2016] BCSC 1078 was a decision earlier this week of a trial judge (Supreme Court, British Columbia) focusing on fetal monitoring. Of significance was the use of intermittent auscultation as opposed to electronic monitoring (CTG) monitoring. The claim failed as:

[134] The evidence most favourable to the plaintiffs’ case raises some suspicion that more attentive monitoring by more sophisticated equipment, might have led to earlier intervention. On balance, however, and gauged in light of all of the other evidence, the plaintiffs’ case points a mere possibility insufficient to discharge the burden of proof in the circumstances.

[136] In view of the catastrophic result in this case one is compelled to consider whether EFM would have made a difference. But IA was conscientiously applied. There was no apparent deterioration. The notion that in the face of that evidence, an inference should be drawn that EFM would have shown something different was addressed by Satanove J. in Smith at para. 67: I cannot draw the inference the plaintiffs asked me to draw from the expert evidence or from the medical records. To draw such and inference would be worse than speculating or conjecturing because it is inconsistent with the established facts. The only reasonable inference to draw in the circumstances is that electronic fetal monitoring before 2:50 am would not have shown a deterioration of the fetus because there was no deterioration.

[137] Here, had Nurse Bradley continued EFM until contact was more satisfactory, she would not have seen a deterioration and EFM would, in accordance with current best practice have been discontinued in any event, before the damage occurred in the 30-40 minutes before delivery.

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