SUPREME
COURT OF CANADA
Between:
Cassidy
Alexis Ediger, an infant by her Guardian Ad Litem, Carolyn Grace Ediger
Appellant
and
William
G. Johnston
Respondent
Coram: McLachlin C.J. and LeBel, Rothstein, Cromwell, Moldaver,
Karakatsanis and Wagner JJ.
Reasons
for Judgment:
(paras. 1 to 62)
|
Rothstein and Moldaver JJ. (McLachlin
C.J. and LeBel, Cromwell, Karakatsanis and Wagner JJ. concurring)
|
Ediger v. Johnston, 2013 SCC 18, [2013] 2 S.C.R. 98
Cassidy Alexis Ediger, an infant by her Guardian
Ad Litem, Carolyn Grace Ediger Appellant
v.
William G. Johnston Respondent
Indexed as: Ediger v.
Johnston
2013 SCC 18
File No.: 34408.
2012: December 4; 2013: April 4.
Present: McLachlin C.J. and LeBel, Rothstein, Cromwell,
Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for british columbia
Torts
— Negligence — Causation — Doctor attempted mid‑level forceps delivery of
baby — Baby’s umbilical cord became compressed causing bradycardia and brain
injury — Doctor did not arrange for back‑up Caesarean section delivery or
advise mother of mid‑level forceps delivery risks prior to attempting
forceps delivery — Whether doctor’s attempted forceps delivery caused
bradycardia — Whether doctor’s failure to arrange for back‑up Caesarean
section delivery or to advise mother of mid‑level forceps delivery risks
prior to attempting forceps delivery caused baby’s injury.
C
suffered from persistent bradycardia during her birth, which led to her severe
and permanent brain damage. After C’s mother’s labour did not progress as
anticipated, the doctor decided to attempt to deliver C using a mid‑level
forceps procedure. Prior to initiating the procedure, the doctor did not inform
C’s mother of the material risks of a mid‑level forceps delivery, which
included bradycardia, and did not inquire into the immediate availability of
surgical back‑up to perform an emergency Caesarean section in the event
of bradycardia. After the doctor applied the forceps, he decided to abandon
the procedure and left the labour room to make arrangements for a Caesarean
section. In the minutes that followed, C’s umbilical cord became obstructed,
leading to persistent bradycardia. C was delivered by Caesarean section
approximately 18 minutes after the onset of the bradycardia and now suffers
from spastic quadriplegia and cerebral palsy. The trial judge found that the
doctor’s application of the forceps likely caused the obstruction of C’s
umbilical cord that led to the bradycardia because the forceps displaced C’s
head and left a space into which the cord fell and became compressed upon a
subsequent maternal contraction. The trial judge found that the doctor
breached the standard of care, which required him to have surgical back‑up
immediately available before attempting the mid‑level forceps procedure and
to obtain the mother’s informed consent for that procedure. The doctor,
however, successfully appealed from the trial judge’s finding that his breaches
of the standard of care caused C’s injury.
Held: The appeal should be allowed.
The
sole issue here is causation: Did the doctor’s breaches of the standard of care
cause C’s injury? Because causation is a factual inquiry, the standard of
review for the trial judge’s causation findings is palpable and overriding
error. There was no such error
here.
Contrary
to the Court of Appeal’s conclusion, the trial judge did not err by failing to
account for the delay between the end of the forceps attempt and the onset of
bradycardia. The trial judge accepted expert testimony that the doctor’s
attempt to position the forceps may have displaced the baby’s head such that
her umbilical cord would become compressed upon a subsequent maternal
contraction, leading to bradycardia. It was open to the trial judge to do so.
This theory explained the delay between the failed forceps attempt and the
onset of bradycardia.
The
trial judge also did not err when she concluded that the doctor’s failure to
have surgical back‑up immediately available was a “but for” cause of C’s
injury. Although the issue here is causation, the dispute turns on a proper
understanding of the “immediately available” standard of care set forth by the
trial judge. The doctor argues that the standard required only that he ensure
prior to the forceps procedure that an anaesthetist would be available. The
doctor argues that satisfying this standard would have made no difference in
the time it took to deliver C. The problem with the doctor’s interpretation of
the standard of care is that it is unresponsive to the risk in question.
Considering the trial judge’s reasons in their entirety, it is clear that the
trial judge contemplated a standard of care that required the doctor to take
reasonable precautions responsive to the recognized risk of bradycardia and the
severe damage to the baby that results when bradycardia persists.
It
is beyond dispute that the doctor did not take precautions to ensure that, in
the event of bradycardia, C could have been delivered by Caesarean section
without injury. He took no steps before beginning the mid‑level forceps
procedure to have surgical back‑up immediately available even though
there was no urgency that precluded him from doing so. He did not even inquire
into the availability of an anaesthetist. That fell below the standard of
care.
Because
the trial judge did not err in finding that the doctor’s breach of the duty to
have surgical back‑up immediately available caused C’s injury, it is not
necessary to consider whether the doctor’s breach of the duty to obtain the
mother’s informed consent also caused C’s injury. However, the trial judge’s
informed consent analysis further confirms that the duty to have back‑up
surgical staff “immediately available” required more than simply ensuring that
an anaesthetist was available.
Cases Cited
Referred
to: Hill v. Hamilton‑Wentworth Regional Police Services Board,
2007 SCC 41, [2007] 3 S.C.R. 129; Clements v. Clements, 2012 SCC 32,
[2012] 2 S.C.R. 181; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1
S.C.R. 333; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1
S.C.R. 401; Snell v. Farrell, [1990] 2 S.C.R. 311.
APPEAL
from a judgment of the British Columbia Court of Appeal (Saunders, Smith and Groberman JJ.A.),
2011 BCCA 253, 19 B.C.L.R. (5th) 60, 305 B.C.A.C. 271, 515 W.A.C. 271, 333
D.L.R. (4th) 633, [2011] 8 W.W.R. 466, 82 C.C.L.T. (3d) 228, [2011] B.C.J.
No. 974 (QL), 2011 CarswellBC 1279, setting aside a decision of
Holmes J., 2009 BCSC 386, 65 C.C.L.T. (3d) 1, [2009] B.C.J. No. 564
(QL), 2009 CarswellBC 773. Appeal allowed.
Vincent R. K. Orchard, Q.C., Steven Hoyer,
Susanne Raab and Paul T. McGivern, for the appellant.
James M. Lepp, Q.C., Michael G.
Thomas and Daniel J. Reid, for the respondent.
The
judgment of the Court was delivered by
[1]
Rothstein and
Moldaver JJ. — Cassidy Ediger,
now 15 years old, suffered from persistent bradycardia during her birth that
caused severe and permanent brain damage, leaving her with spastic quadriplegia
and cerebral palsy. Cassidy, by her guardian ad litem, sued Dr. William
G. Johnston, the obstetrician who delivered her, alleging that her injury
resulted from negligence associated with an attempt to deliver her using a
mid-level forceps procedure. The trial judge found that Dr. Johnston breached
the standard of care expected of him in the circumstances by failing to ensure
that back-up surgical staff would be immediately available to deliver Cassidy
by Caesarean section (“C-section”) upon complications arising from the
mid-level forceps delivery, and by failing to inform Cassidy’s mother about the
material risks associated with the forceps procedure. The only issue before us
is whether the trial judge committed a palpable and overriding error in
determining that Cassidy’s injury was caused by these breaches. In our view,
there was no such error.
I. Facts
[2]
Cassidy was born on January 24, 1998, to Carolyn
and Scott Ediger. Early in the course of Mrs. Ediger’s pregnancy, her family
physician, Dr. Lisa LeGresley, referred her to Dr. Johnston based on a concern
unrelated to the injury Cassidy ultimately sustained at birth.
[3]
Mrs. Ediger consulted Dr. Johnston throughout
her pregnancy. Based on a number of factors, Dr. Johnston considered her
pregnancy to be high risk. As a result, he decided to induce the pregnancy
before term, at 38 weeks. It is undisputed that the factors that made Mrs.
Ediger’s pregnancy high risk are irrelevant to Cassidy’s subsequent injury.
[4]
On January 23, Mrs. Ediger was admitted to
Chilliwack General Hospital and Dr. Johnston began the induction process. The
next day, Mrs. Ediger’s labour stalled, despite contractions that were strong
in duration and intensity. Dr. Johnston determined that the baby was in deep
arrest with its head positioned sideways. He therefore elected to proceed with
a mid-level forceps rotation to deliver the baby. A forceps delivery involves
positioning a forceps blade on each side of the baby’s head and assisting the
baby through the birth canal. A “mid-level” forceps delivery is the riskiest
type of forceps delivery that obstetricians are permitted to attempt because it
takes place when the baby is at the beginning of the birth canal. In this
case, the baby’s head had to be rotated before the baby could be assisted
through the remainder of the birth canal.
[5]
Dr. Johnston did not anticipate that anything
would go wrong with the mid-level forceps procedure and therefore did not
inform Mrs. Ediger of the potential risks associated with it. These risks
included compression of the baby’s umbilical cord, leading to persistent fetal
bradycardia (a sustained drop in the baby’s heart rate prior to delivery),
which may in turn cause severe brain damage.
[6]
Dr. Johnston attempted the forceps procedure
while Mrs. Ediger was in a regular labour room, located close to a high risk
operating room that was used to perform C-sections. Prior to initiating the
forceps procedure, Dr. Johnston did not inquire into the availability of an
anaesthetist or operating room staff to assist with an emergency C-section in
the event that complications were to arise during the forceps attempt.
[7]
According to the evidence accepted by the trial
judge, Dr. Johnston applied the first forceps blade and attempted to apply the
second forceps blade. Unhappy with the placement of the second blade, however,
he elected to abandon the forceps procedure and proceed with a C-section.
[8]
At that point, Dr. Johnston left the labour room
to make arrangements for a C-section. He contacted the on-call anaesthetist,
Dr. Charles Boldt, to assist. Dr. Boldt informed Dr. Johnston that he was
occupied with an emergency life or death surgery in another operating room and
anticipated that he would be unavailable for another hour. Dr. Boldt suggested
that Dr. Johnston contact the next on-call anaesthetist, who was off site but
could arrive within 30 minutes.
[9]
While Dr. Johnston was attempting to make these
arrangements, Dr. LeGresley, who remained in the labour room with Mrs. Ediger,
saw the baby’s heart rate drop on the heart rate monitor. Dr. LeGresley, over
the course of 20 to 30 seconds, confirmed that the drop continued, indicating
persistent fetal bradycardia. She then called out to Dr. Johnston that Mrs.
Ediger needed an emergency C-section.
[10]
When Dr. Johnston returned to the room, he
attached a fetal scalp clip to the baby’s head to confirm that the heart
monitor observed by Dr. LeGresley provided an accurate representation of the
baby’s heart beat. Within approximately two minutes, he was able to confirm
persistent bradycardia. It is undisputed in these proceedings that the
persistent bradycardia resulted from an obstruction of the baby’s umbilical
cord.
[11]
At this point, Dr. Johnston again contacted Dr.
Boldt, who was still occupied in the other emergency surgery, and informed him
that Mrs. Ediger needed an emergency C-section. Mrs. Ediger was transferred to
the high risk operating room, where she was prepped for surgery. In the
meantime, Dr. Boldt stabilized his patient and rushed over to anaesthetize Mrs.
Ediger. On arrival in the operating room, Dr. Boldt anaesthetized Mrs. Ediger
and then Dr. Johnston delivered Cassidy by C-section.
[12]
In the end, Cassidy was delivered approximately
20 minutes after Dr. Johnston’s failed forceps attempt (approximately 18
minutes from the onset of bradycardia). As a result of the sustained
bradycardia, Cassidy suffered severe and permanent brain damage. She lives her
life with spastic quadriplegia and cerebral palsy. She is non-verbal,
tube-fed, confined to a wheel chair and totally dependent on others for all of
her daily needs. Her life expectancy is 38 years.
II. Procedural History
A. Supreme Court of British Columbia, 2009 BCSC 386, 65
C.C.L.T. (3d) 1
[13]
Cassidy filed a statement of claim in the
Supreme Court of British Columbia alleging that Dr. Johnston was negligent in
his attempt at a forceps delivery. In particular, she alleged that the
standard of care required Dr. Johnston to perform the forceps procedure with a
“double setup”. In the alternative, Dr. Johnston was required to arrange for
back-up staff that would be immediately available to deliver Cassidy by
C-section if the forceps procedure failed. Cassidy also alleged that Dr.
Johnston was negligent for failing to obtain Mrs. Ediger’s informed consent to
the forceps procedure because he did not advise her of the material risks
associated with the mid-level forceps procedure.
[14]
A great deal of the evidence at trial focused on
whether a “double setup” was required by the standard of care for mid-level
forceps deliveries. Where a double setup is used, the forceps delivery is
performed in an operating room with an anaesthetist and operating room staff
standing by, and all of the materials for a C-section prepped. If the forceps
procedure fails, the mother’s legs are lowered, her abdomen is painted with an
antiseptic and the baby is delivered by C-section. The evidence at trial indicated
that in a double setup situation, a baby could be delivered by C-section two to
five minutes from the time a forceps procedure is abandoned.
[15]
In her reasons for judgment, Holmes J. rejected
Cassidy’s claim that the standard of care at the time mandated a double setup.
Holmes J. acknowledged the testimony of some experts who stated that the
well-recognized high risks associated with a mid-level forceps delivery
required a double setup. Although she agreed that the trend was to perform
these procedures with a double setup, she accepted the testimony of Dr.
Johnston and his experts that, at the time of Cassidy’s delivery, it was not
uncommon to proceed without a double setup.
[16]
Holmes J. agreed with Cassidy, however, that the
applicable standard of care incorporated the less stringent requirement that
surgical back-up be “immediately available” to deliver the baby by C-section
upon failure of the mid-level forceps attempt, consistent with the guidelines
of the Society of Obstetricians and Gynaecologists of Canada. She found that
Dr. Johnston did not meet this standard of care. According to Holmes J., when
Dr. Johnston initiated his forceps attempt, he faced a non-urgent scenario and
had time to assemble a surgical team. Instead, however, he took “no steps” to
ensure that surgical back-up would be immediately available (para. 94). Holmes
J. emphasized that Dr. Johnston had not even inquired as to whether the on-call
anaesthetist was available prior to initiating the forceps procedure. As a
result,
Dr. Boldt [the anaesthetist] and his
nursing staff were “present” in the hospital only in the most literal sense,
when Dr. Johnston attempted the mid-forceps delivery. They were completely
occupied with another very high-risk situation, and expected to remain so
occupied for at least another hour. No other anaesthetist was in the hospital
or even formally on-call . . . . [para. 83]
Holmes J. found that, by
proceeding in the manner that he did, Dr. Johnston breached the standard of
care expected of a physician in the circumstances.
[17]
Holmes J. also found that Cassidy had
established causation. In particular, she found that Dr. Johnston’s forceps
attempt was a “but for” cause of the persistent bradycardia and that Dr.
Johnston’s failure to have surgical back-up immediately available was a “but
for” cause of Cassidy’s injury. She concluded:
In the result, back-up was provided
and Cassidy was delivered within about eighteen minutes. This was probably the
best possible outcome in the circumstances Dr. Johnston had created when he
proceeded with the attempt while Dr. Boldt was tied up with another life and
death situation. However, minutes mattered, and with the passage of time
Cassidy’s bradycardia had done its damage. Had back-up been available even
five to ten minutes more quickly, most — possibly even all — of Cassidy’s
injuries could have been avoided. [para. 138]
These causation findings,
which are a subject of this appeal, are examined in detail below.
[18]
Holmes J. also found that Dr. Johnston breached
his duty to obtain informed consent before proceeding with the forceps delivery
by failing to advise Mrs. Ediger of the material risks associated with the
procedure. Holmes J. found it unnecessary to determine whether Mrs. Ediger
would have foregone the forceps procedure altogether if she were properly
advised because she found that, at the very least, Mrs. Ediger, properly
informed, would have delayed the forceps procedure until Dr. Johnston had
arranged for immediately available surgical back-up. Given Holmes J.’s earlier
finding that Cassidy’s injury would have been avoided with surgical back-up, it
followed that Dr. Johnston’s failure to advise Mrs. Ediger also caused
Cassidy’s injury.
[19]
Holmes J. thus concluded that Cassidy had
successfully established her negligence claim. She awarded Cassidy $3,224,000
in damages, which included non-pecuniary loss, special damages, future care and
loss of earnings.
B. British Columbia Court of Appeal, 2011 BCCA 253, 19
B.C.L.R. (5th) 60
[20]
The Court of Appeal for British Columbia allowed
Dr. Johnston’s appeal. On appeal, Dr. Johnston did not dispute the trial
judge’s articulation of the standard of care expected of him or the trial
judge’s finding that his performance fell below that standard. With respect to
his liability for negligence, Dr. Johnston challenged only whether his breaches
of the standard of care had in fact caused Cassidy’s injury. The parties also
cross-appealed on the damages award.
[21]
Writing for a unanimous court, Smith J.A. held
that the trial judge erred in finding that Dr. Johnston’s breaches caused
Cassidy’s injury for two reasons. First, the evidence did not support the
trial judge’s conclusion that Dr. Johnston’s forceps attempt caused the cord
compression and the resulting bradycardia that led to Cassidy’s injury.
According to Smith J.A., “[t]he undisputed evidence was that fetal bradycardia
would occur within seconds of cord compression. Therefore, if Dr. Johnston’s
attempted forceps delivery had caused the cord compression, fetal bradycardia
would have occurred almost contemporaneously with the forceps procedure” (para.
86). Because the trial judge found that the fetal bradycardia began
“within at most one and two minutes” after the forceps attempt (para.
124), the bradycardia could not have been caused by the forceps attempt.
[22]
Second, Smith J.A. held that the trial judge
erred in finding that Dr. Johnston’s failure to have adequate back-up available
caused Cassidy’s injury. Although it was conceded that Cassidy probably would
have been unharmed if she were delivered 10 minutes earlier, there was no
evidence that having a back-up team present would have sped up her delivery.
Thus, it was not established that Cassidy’s injury would have been avoided if
Dr. Johnston had arranged for immediately available surgical back-up or if Mrs.
Ediger, properly informed, had delayed the forceps attempt until back-up was
available.
[23]
Having found that Cassidy failed to establish
causation, Smith J.A. allowed the appeal and dismissed the action without
considering Dr. Johnston’s appeal and Cassidy’s cross-appeal as to the damages
award. Cassidy now appeals to this Court.
III. Analysis
[24]
An action for negligence requires proof of a
duty of care, breach of the standard of care, compensable damage, and causation
(Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41,
[2007] 3 S.C.R. 129, at para. 96). Here, Dr. Johnston does not dispute that
the first three requirements are met. He had a duty to meet the requisite
standard of care by arranging for surgical back-up to be “immediately
available” before attempting the mid-forceps procedure. And he had a duty to
obtain Mrs. Ediger’s informed consent. He breached both of these duties.
Furthermore, as described above, Cassidy suffered severe and permanent brain
damage that leaves her completely dependent on her family and community for
care, clearly compensable damage.
[25]
The sole issue here is causation: Did Dr.
Johnston’s breaches of the standard of care cause Cassidy’s injury?
[26]
Dr. Johnston advances three arguments as to why
the trial judge erred in concluding that his breaches were the cause. The
first argument relates to a threshold matter of whether Cassidy’s fetal
bradycardia was caused by the forceps procedure or would have arisen
independent of the procedure. Dr. Johnston submits that the fetal bradycardia
would have occurred independent of the procedure and thus his breaches of the
standard of care leading up to the procedure were not “but for” causes of
Cassidy’s injury. Dr. Johnston’s second and third arguments accept the premise
that the forceps procedure caused Cassidy’s bradycardia and argue that
causation is not established because Cassidy’s injury would have occurred even
if he had met the standard of care. In particular, Dr. Johnston argues that
even if he satisfied his duty to have an anaesthetist immediately available,
Cassidy would not have been delivered sooner. He also argues that even if Mrs.
Ediger, properly advised of the material risks of proceeding without back-up,
would have postponed the forceps procedure, there is no evidence that the
result would have been different in the postponed forceps attempt.
[27]
In sum, the following three issues are raised
with respect to causation:
(1)
Did the trial judge err by concluding that Dr.
Johnston’s attempted forceps delivery caused the persistent bradycardia?
(2)
Did the trial judge err by concluding that Dr.
Johnston’s failure to arrange for “immediately available” surgical back-up
caused Cassidy’s injury?
(3)
Did the trial judge err by concluding that Dr.
Johnston’s failure to advise Mrs. Ediger of the material risks of a mid-level
forceps procedure caused Cassidy’s injury?
A. The Legal Test for Causation
[28]
This Court recently summarized the legal test
for causation in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R.
181. Causation is assessed using the “but for” test (Clements, at
paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R.
333, at paras. 21-22). That is, the plaintiff must show on a balance of probabilities
that “but for” the defendant’s negligent act, the injury would not have
occurred (Clements, at para. 8). “Inherent in the phrase ‘but for’ is
the requirement that the defendant’s negligence was necessary to bring about
the injury — in other words that the injury would not have occurred without the
defendant’s negligence” (para. 8 (emphasis deleted)).
[29]
Causation is a factual inquiry (Clements,
at paras. 8 and 13). Accordingly, the trial judge’s causation finding is
reviewed for palpable and overriding error (H.L. v. Canada (Attorney
General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 53-56).
B. Did the Trial Judge Err by Concluding That Dr. Johnston’s
Attempted Forceps Delivery Caused the Persistent Bradycardia?
[30]
It is undisputed that the persistent bradycardia
that led to Cassidy’s injury was caused by an obstruction of Cassidy’s
umbilical cord. The issue is whether the obstruction was caused by Dr.
Johnston’s forceps attempt or whether it arose independently of the procedure.
Dr. Johnston submits that the obstruction arose independently of the procedure
and thus the trial judge erred when she concluded that Dr. Johnston’s failure
to have back-up immediately available and failure to obtain informed consent
were “but for” causes of Cassidy’s injury.
[31]
The trial judge concluded that it was more
likely than not that Cassidy’s umbilical cord became obstructed when it was
compressed as a result of the forceps procedure. Dr. Johnston’s argument
against this conclusion tracks the Court of Appeal’s reasons. According to the
Court of Appeal, the evidence showed that “if Dr. Johnston’s attempted forceps
delivery had caused the cord compression, fetal bradycardia would have occurred
almost contemporaneously with the forceps procedure” (para. 86). This could
not be reconciled with the trial judge’s finding that the bradycardia began
“within at most one and two minutes” of the forceps attempt. In the
Court of Appeal’s view, “[t]his was a critical finding of fact that had to be
addressed by the trial judge” (para. 87).
[32]
With respect, the trial judge did address the
gap in time between the forceps attempt and the onset of the bradycardia. In
particular, she considered testimony by Drs. Neal Shone and Duncan Farquharson
that a physician’s attempt to position the forceps blades may displace the
baby’s head such that the baby’s umbilical cord would become compressed upon a
subsequent maternal contraction. This sequence of events accounts for the delay
between the end of the failed forceps procedure and the onset of bradycardia.
As the trial judge explained:
Dr. Shone explained the mechanics of potential cord
compression in a rotational mid-forceps procedure. . . . [W]ith the second
blade applied, the head must be manoeuvred, usually by twisting it out of the
position in which it is lodged; that process creates space around the baby’s
head, and the cord may become trapped around the side of the head or under the
forceps blades.
Dr.
Farquharson explained similarly that, for a rotational mid-forceps procedure, a
minor elevation or displacement of the baby’s head from its position firmly
fixed against the pelvis is necessary before the head can be rotated. He
testified that if the umbilical cord is, for example, alongside the baby’s
cheeks or neck at the time of the minor elevation or displacement of the head,
the cord may slip down into the space created, and the next labour contraction
will compress the cord against the pelvis, causing umbilical obstruction.
[paras. 125-26]
[33]
Holmes J. expressly accepted this “displacement”
theory as an explanation for how Cassidy’s cord became obstructed. She
recognized that this explanation was consistent with Dr. LeGresley’s account of
what had happened. Dr. LeGresley testified that Dr. Johnston applied both
forceps blades, but abandoned the forceps procedure because he was unhappy with
the placement of the second blade. This sequence of actions, the trial judge
concluded, would have created the space necessary for the umbilical cord to be
trapped and compressed.
[34]
Furthermore, as Holmes J. observed, the
“displacement” theory set forth by Drs. Shone and Farquharson, which is
consistent with Dr. LeGresley’s account of the facts, explains the gap in time
between the forceps attempt and the cord compression. Holmes J. stated:
. . . some
of the medical experts discussed or mentioned the effect of labour
contractions, which occur periodically and may cause adjustment of the relative
positioning within the birth canal. Thus, a displacement may not cause cord
compression at the time, but a labour contraction afterwards may cause further
movement that forces the cord into the space created earlier. [para. 132]
[35]
Holmes J. thus addressed how the forceps attempt
could have caused the umbilical cord obstruction notwithstanding the gap in
time between the procedure and the onset of bradycardia. With respect, the
Court of Appeal was incorrect to find that Holmes J.’s findings were
inconsistent.
[36]
The Court of Appeal’s reasons also suggest that
it understood the trial judge to have improperly relied on Snell v. Farrell,
[1990] 2 S.C.R. 311, in order to draw an “inference of causation” (paras.
83-85). Snell stands for the proposition that the plaintiff in medical
malpractice cases — as in any other case — assumes the burden of proving
causation on a balance of the probabilities (pp. 329-30). Sopinka J. observed
that this standard of proof does not require scientific certainty (Snell,
at p. 328; Clements, at para. 9). The trier of fact may, upon weighing
the evidence, draw an inference against a defendant who does not introduce
sufficient evidence contrary to that which supports the plaintiff’s theory of
causation. In determining whether the defendant has introduced sufficient evidence,
the trier of fact should take into account the relative position of each party
to adduce evidence (Snell, at p. 330).
[37]
In the present case, there is no reason to
believe that the trial judge failed to follow the approach described above. At
trial, Dr. Johnston introduced some evidence contrary to the “displacement”
theory of causation. Dr. Johnston testified that he never applied the second
forceps blade to the baby’s head. This was inconsistent with Dr. Shone’s
explanation of the “displacement” theory. According to Dr. Shone, it is the
application of the second forceps blade that requires the baby’s head to be
manoeuvred, creating the space necessary for the umbilical cord to become
trapped, such that it is later compressed by maternal contractions. Holmes J.
acknowledged that Dr. Johnston’s testimony was inconsistent with the
“displacement” theory. She explained, however, that she rejected Dr.
Johnston’s testimony because he had a weak recollection of the facts and
instead accepted Dr. LeGresley’s recollection that Dr. Johnston had applied
both forceps blades before abandoning the procedure.
[38]
Dr. Johnston also testified that, contrary to
Drs. Shone and Farquharson’s “displacement” theory, applying both forceps
blades would not create sufficient space for the umbilical cord to slip and
become trapped. He also adduced evidence of other possible causes of
umbilical cord obstruction, including a short, kinked or nuchal cord (where the
umbilical cord is wrapped around the baby’s neck).
[39]
Faced with this conflicting expert testimony on
the feasibility of the “displacement” theory and evidence of other potential
causes, it was incumbent upon Holmes J. to weigh the evidence before her and
determine whether Cassidy had proven causation on a balance of the probabilities.
Holmes J. ultimately concluded that Cassidy did satisfy this burden for three
reasons. First, as already described, Drs. Shone and Farquharson’s testimony
regarding the physical effects and distortions of labour contractions, as well
as the timing of the steps leading up to a cord compression, were consistent
with what occurred here. Second, multiple experts testified that mid-level
forceps procedures are potentially dangerous and carry the risk of acute cord
compression. Third, the close proximity in time of the forceps attempt and the
bradycardia supported the conclusion that the forceps attempt was connected to
the cord compression. As a result, Holmes J. concluded that, although she
could not be certain of the precise mechanics leading to cord
compression, “[t]he only reasonable inference from all the evidence is that the
mid-forceps attempt likely caused the cord compression that in turn caused the
bradycardia” (para. 135).
[40]
There was no palpable and overriding error in
this conclusion. It was open to Holmes J. to accept Drs. Shone and
Farquharson’s testimony regarding the displacement theory over Dr. Johnston’s
testimony. It was also open to her to conclude that the close proximity in
time between the forceps attempt and the bradycardia, combined with the
well-recognized risk of bradycardia associated with mid-level forceps
deliveries, supported a finding of causation in this case.
C. Did the Trial Judge Err by Concluding That Dr. Johnston’s
Failure to Arrange for “Immediately Available” Surgical Back-up Caused
Cassidy’s Injury?
[41]
As we have described, the trial judge found that
Dr. Johnston failed to meet the standard of care applicable to mid-level
forceps procedures because he failed to arrange for surgical back-up that would
be immediately available to deliver Cassidy by C-section upon the onset of
bradycardia. Dr. Johnston does not dispute that he breached the standard of
care. He argues that the trial judge erred in finding causation because
Cassidy failed to show that her injury would have been avoided if he had
satisfied the standard of care. As we explain below, the trial judge did not
err. She found that the standard of care required Dr. Johnston to take
reasonable precautions that would have been responsive to the recognized risk
of bradycardia and the severe damage to the baby that results when bradycardia
persists. The evidence shows that Dr. Johnston did not take such precautions
and, in our view, the trial judge made no error in finding that Dr. Johnston’s
failure to have back-up immediately available caused Cassidy’s injury.
[42]
Although the ultimate issue before us is
causation, the dispute here turns on a proper understanding of the “immediately
available” standard of care set forth by the trial judge. Dr. Johnston’s argument
is straightforward. He argues that the standard of care contemplated by the
trial judge required only that he ensure prior to the forceps procedure that
the anaesthetist, Dr. Boldt, was not in another surgery and was instead
standing by to assist in the event of bradycardia. Dr. Johnston concedes that
had he delivered Cassidy within approximately 10 minutes, her injury could have
been completely avoided, but argues that Dr. Boldt’s presence alone would not
have made a difference in the time it took to deliver Cassidy. The delivery
still would have taken 18 minutes from the onset of bradycardia and, thus,
Cassidy’s injury would not have been avoided. He supports his argument by
pointing to evidence in the record indicating that it took approximately 13
minutes to confirm the drop in Cassidy’s fetal heart rate, move Mrs. Ediger to
the operating room and get her ready for surgery. At that point, just as Mrs.
Ediger was ready for surgery, Dr. Boldt arrived to anaesthetize her and Cassidy
was born five minutes later. According to Dr. Johnston, there is no evidence
that Cassidy would have been delivered faster if Dr. Boldt had arrived earlier
and, thus, Cassidy failed to establish that the failure to have Dr. Boldt
standing by caused her injury.
[43]
We accept Dr. Johnston’s submission that the
record does not establish that Cassidy would have been delivered faster had Dr.
Boldt arrived earlier than he did. Accordingly, it would have been a palpable
error for the trial judge to find that Dr. Boldt’s initial absence, on its own,
caused Cassidy’s injury. But we do not think that this accurately represents
the trial judge’s finding.
[44]
The problem with the standard of care, as
interpreted by Dr. Johnston, is that it would be unresponsive to the risk in
question and potential harm arising from it. Dr. Johnston reads the trial
judge’s reasons to say, in response to the risk of bradycardia, that he was
required to have an anaesthetist standing by. At the same time, he submits
that having an anaesthetist standing by would make no material difference in
the ability to respond to bradycardia. As Dr. Johnston’s counsel conceded at
oral argument, Dr. Johnston’s interpretation of the “immediately available”
standard of care would mean that the attending physician would never be
liable for breaching the standard where fetal bradycardia results and leads to
debilitating injury.
[45]
We read the trial judge’s reasons differently.
Considering them in their context, and in light of the facts and evidence
adduced in this case, we have no difficulty concluding that the trial judge
contemplated a standard of care that would have been responsive to the
recognized risk of fetal bradycardia associated with mid-level forceps
deliveries. That standard of care required Dr. Johnston to take reasonable
precautions such that Cassidy could have been delivered without injury upon the
occurrence of bradycardia. It did not allow him to disregard that risk, as he
did here.
[46]
The primary dispute at trial was whether the
standard of care required a mid-level forceps attempt to be performed with a
double setup. As indicated, the expert testimony at trial established that,
with a double setup, the forceps procedure is performed in an operating room
with an anaesthetist and operating room staff standing by and all of the
materials prepped for use. If the forceps procedure fails, the mother’s legs
are lowered, her abdomen is painted and the baby is delivered by C-section. In
such circumstances, full delivery takes two to five minutes upon a failed forceps
attempt.
[47]
As Holmes J. recognized, the undisputed evidence
at trial was that a baby begins to suffer injury approximately 10 minutes from
the onset of bradycardia. Dr. Alfonso Solimano, a specialist in neonatology,
testified that if a baby is delivered before the 10-minute mark, the chances
are very high that the baby will be born unharmed. It follows that with a
double setup delivery, damage should be avoided.
[48]
Despite the evidence presented at trial that all
hospitals providing obstetrical care have the ability to provide double setups,
and that such arrangements are commonplace for mid-level forceps deliveries,
the trial judge rejected Cassidy’s argument that the standard of care
necessarily required a double setup. After giving consideration to the costs
and risks involved, she found that the standard of care was more flexible,
requiring only that surgical back-up be “immediately available”, consistent
with the guidelines of the Society of Obstetricians and Gynaecologists of
Canada.
[49]
Although it is more flexible in that it does not
contemplate the two-to-five minute delay for delivery provided by a double
setup, the “immediately available” standard of care endorsed by the trial judge
nonetheless requires that the attending physician take precautions that are
responsive to the risk of persistent fetal bradycardia resulting from the
mid-level forceps procedure. That the standard of care was tied to the risk
and harm posed by the forceps procedure is evident from the trial judge’s
reasons. At the outset, for instance, the trial judge summarizes her reasons
by stating: “Minutes mattered, and because of Dr. Johnston’s failure
to ensure that surgical back-up was reasonably available, the damage was done
before Cassidy could be delivered by Caesarean section and resuscitated.
Cassidy’s claim in negligence is proven” (para. 9 (emphasis added)). Later, in
assessing causation, the trial judge reiterated:
.
. . minutes mattered, and with the passage of time Cassidy’s bradycardia had
done its damage. Had back-up been available even five to ten minutes more
quickly, most — possibly even all — of Cassidy’s injuries could have been
avoided. Dr. Alfonso Solimano, specialist in neonatology, testified that,
according to undisputed clinical opinion, injury begins in most cases at ten
minutes from the onset of bradycardia; with delivery within ten minutes,
chances are very high that the baby will be uninjured. [para. 138]
The trial judge also
recognized that although she did not find that the standard of care mandated a
double setup, the fact that “a sizable portion of the relevant medical
community” concluded that the double setup was required underscored the
expectation that the reasonable practitioner take precautions to protect against
injury (para. 91).
[50]
We acknowledge that the trial judge at times
referred to a duty to have surgical back-up immediately available and at other
times referred to a duty to have inquired into the availability of the
anaesthetist. But we must read the trial judge’s reasons in their full
context. Doing so, we think the most logical reading of her reasons is that
she considered the availability of an anaesthetist to be a component of the
broader duty to have surgical back-up immediately available.
[51]
It is beyond dispute that Dr. Johnston did not
take precautions to ensure that, in the event of bradycardia, Cassidy could
have been delivered by C-section without injury. As the trial judge observed,
Dr. Johnston took “no steps” before beginning the mid-level forceps procedure
to have surgical back-up immediately available even though there was no urgency
that precluded him from doing so (para. 94). He did not even inquire into the
availability of an anaesthetist. Indeed, Dr. Johnston’s argument before this
Court is centered on the premise that, given the arrangements in place at the
time he undertook the mid-level forceps procedure, Cassidy could not have been
delivered less than 18 minutes from the onset of bradycardia, long after severe
injury would have been all but guaranteed. That, as the trial judge found,
fell below the standard of care.
[52]
We do not suggest that a standard of care must
prevent injury in all circumstances, at all costs. Here, we simply interpret
and apply the standard of care determined by the trial judge, which was
specific to the facts before the court.
[53]
In sum, although Holmes J. did not find that the
standard of care at the time of Cassidy’s birth required Dr. Johnston to
proceed with a double setup, she also did not find that the standard of care
permitted Dr. Johnston to act in a manner that disregarded the recognized risk
of bradycardia associated with a mid-level forceps rotation. Dr. Johnston was
required, before he initiated the forceps procedure, to take reasonable
precautions that would have been responsive to the recognized risk of
bradycardia and the injury that results if bradycardia persists for more than
10 minutes. Because it is undisputed that Dr. Johnston failed to take these
precautions, which would have resulted in a faster delivery and likely
prevented injury from bradycardia, the trial judge’s causation finding is
sound.
D. Did the Trial Judge Err by Concluding That Dr. Johnston’s
Failure to Advise Mrs. Ediger of the Material Risks of a Mid-level Forceps
Procedure Caused Cassidy’s Injury?
[54]
Having upheld the trial judge’s finding that Dr.
Johnston’s breach of the duty to have surgical back-up immediately available
caused Cassidy’s injury, we need not consider whether Dr. Johnston’s breach of
the duty to obtain Mrs. Ediger’s informed consent caused Cassidy’s injury. As
we will explain, however, the trial judge’s informed consent analysis further
confirms the implausibility of the “immediately available” standard advanced by
Dr. Johnston.
[55]
The trial judge concluded that Dr. Johnston had
a duty to obtain Mrs. Ediger’s informed consent before proceeding with the
forceps delivery. As part of that duty, Dr. Johnston was required to inform
Mrs. Ediger of the material risks associated with the procedure, including the
risk of persistent bradycardia. These conclusions are not challenged before
this Court.
[56]
In analyzing whether the failure to obtain
informed consent caused Cassidy’s injury, the trial judge did not make a
finding as to whether Mrs. Ediger, properly advised of the risks, would have
foregone the forceps delivery altogether in favour of a C-section. She
acknowledged that there was conflicting evidence on this point. In particular,
the evidence established that “Mrs. Ediger’s primary concerns throughout her
pregnancy and delivery were for the health of her baby”, from which the trial
judge had “no doubt” that “Mrs. Ediger would have undertaken a risk to
herself in order to avoid a risk to the baby” (para. 166). In addition,
there was some expert testimony that a prospective mother, properly advised of
the risks, would opt for a C-section. However, Dr. Johnston testified that in
his experience, patients advised of the risks would nevertheless opt for a
forceps delivery.
[57]
The trial judge found it unnecessary to decide
whether Mrs. Ediger would have completely foregone the forceps delivery because
she found that, at the very least, Mrs. Ediger, properly informed that surgical
back-up was not immediately available to deliver Cassidy in the event that
complications arose, would have opted to wait until Dr. Johnston had arranged
for such back-up.
[58]
The trial judge’s approach to the informed
consent question is incompatible with Dr. Johnston’s submission that his duty
to have back-up surgical staff “immediately available” required him only to
confirm that an anaesthetist was present and unoccupied in the hospital, with
no further precautions. As we have explained, under Dr. Johnston’s version of
the “immediately available” standard of care, it would not have been possible
to deliver Cassidy in less than 18 to 20 minutes, thereby making severe brain
damage a virtual certainty upon realization of the risk of bradycardia. If
such injury were a virtual certainty, Dr. Johnston’s duty to obtain informed
consent would have included the duty to advise Mrs. Ediger that proceeding with
the mid-level forceps delivery included the risk of bradycardia, and that in
the event that that risk materialized, her baby would necessarily be born with
severe and permanent brain damage because of the time required to arrange for
surgical back-up. Alternatively, she could proceed with a C-section, which
primarily poses risks to the mother. If Dr. Johnston were correct about the
standard of care, we are confident that the trial judge — who recognized that
Mrs. Ediger’s “primary concern” was the health of her baby and found “no doubt”
that “Mrs. Ediger would have undertaken a risk to herself in order to
avoid a risk to the baby” (para. 166) — would have concluded that Mrs. Ediger
would have foregone the forceps delivery and opted instead for a C-section. In
that case, there would have been no mid-level forceps attempt, no resulting
bradycardia, and no harm to Cassidy for that reason.
[59]
This rather obvious incompatibility between the
“immediately available” standard of care advanced by Dr. Johnston and the trial
judge’s actual reasons provides further support for rejecting Dr. Johnston’s
conception of the “immediately available” standard.
IV. Conclusion
[60]
In sum, the trial judge did not err by finding
that Dr. Johnston’s failure to have surgical back-up immediately available
before attempting the mid-level forceps procedure caused Cassidy’s injury. It
follows that there is no basis for interfering with the finding of liability
made by the trial judge.
[61]
Because the Court of Appeal did not consider the
parties’ appeal and cross-appeal on the trial judge’s damages award, the matter
is remitted to the Court of Appeal to consider that issue.
[62]
The appeal is allowed with costs to Cassidy
throughout.
Appeal
allowed with costs throughout.
Solicitors for the
appellant: Borden Ladner Gervais, Vancouver.
Solicitors for the
respondent: Harper Grey, Vancouver.