The medical malpractice lawyers at Wagners have represented, and continue to represent, many cerebral palsy patients (and their families) in medical malpractice law suits against the birthing doctor and nurses. Earlier this month the Supreme Court of Canada released an important decision in a medical malpractice case relevant to the assessment of negligence and causation in such cases.
Personal injury lawyers assisting the injured are applauding the clarity of the decision in Ediger v. Johnson. In this important decision, Canada’s highest restored a finding of liability against a doctor involved in the birth of an injured patient. The Court restored a $3.2 million dollar award to the Ediger family.
The birth took place in 1998. The plaintiff’s mother was induced in labour by her obstetrician and gynaecologist, the defendant doctor, after he determined that her pregnancy was high risk. Complications were encountered during the delivery. As a result, the doctor attempted a “mid-level rotation forceps delivery”. This type of deliver method 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. The baby’s head had to be rotated before the baby could be assisted through the remainder of the birth canal.
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. The doctor did not explain these risks to the mother. He did not obtain her consent.
Prior to initiating the forceps procedure, the doctor 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.
The procedure proved unsuccessful. After some time, the doctor made the decision to abandon it and perform an emergency c-section. He called the necessary physicians, but was informed that they were busy that he would have to wait. During this time, the baby’s fetal heart rate suddenly dropped, indicating persistent fetal bradycardia.
An emergency c-section was performed. The baby was delivered approximately 20 minutes after the doctor’s failed forceps attempt (approximately 18 minutes from the onset of bradycardia). As a result of the sustained bradycardia, she 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 significantly reduced: 38 years.
A medical malpractice lawsuit in Canada requires proof of a duty of care, a breach of the standard of care, compensable damage and causation. The Court can drawn inferences against a doctor who does not introduce sufficient evidence. The Supreme Court made its most important on the issue causation. The sole issue before the Court was whether the doctor’s negligence caused the brain injury.
The Court summarized the law of causation as follows:
This Court recently summarized the legal test for causation in Clements v. Clements, 2012 SCC 32,  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,  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”.
Ultimately, the Court concluded that the trial judge was correct in finding that the doctor’s negligent acts caused the cerebral palsy, stating:
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…[Experts’] 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… multiple experts testified that mid-level forceps procedures are potentially dangerous and carry the risk of acute cord compression… 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”.
There was no palpable and overriding error in this conclusion. It was open to Holmes J. to accept Drs. Shone’s and Farquharson’s testimony regarding the displacement theory over Dr. Johnston’s testimony. It was also open to her 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.
This case is important in that it helps patients with cerebral palsy in establishing causation. Where brain damage occurs in utero, it is often difficult to establish the cause with scientific certainty. The Supreme Court of Canada has explicitly endorsed an approach which allows Courts to make reasonable inference necessary to establish a causal link.