COURT OF APPEAL FOR ONTARIO
LABROSSE, WEILER and CHARRON JJ.A.
B E T W E E N :
LUCA LIUNI and VALERIE LIUNI, minors by their Litigation Guardian, DALIA LIUNI, the said DALIA LIUNI, ANTONIO LIUNI, FRANCESCA LIUNI PACITTI, GAETANO PACITTI and ANNA-MARIA LIUNI
David Stockwood, Q.C., Elaine Shin and Hilik Elmaliah, for the Appellants
Plaintiffs (Appellants)
R. Paul Steep and Andrew J. Reddon, for the Respondents
- and -
CHRISTINE J. PETERS, MARKHAM STOUFFVILLE HOSPITAL, UNA CLENNAN, JOYCE ZAWIERZENIEC and SHARON WHYTE MOORE
Heard: November 8, 2001
Defendants (Respondents)
On appeal from the judgment of Justice John R. Jennings dated December 31, 1999.
1The appellants (plaintiffs) appeal the dismissal of their action for damages for medical malpractice arising out of the delivery and birth of the minor Luca Liuni. The appellant Dalia Liuni gave birth to Luca by way of an emergency caesarean section performed by the respondent Dr. Peters, the attending obstetrician at the Markham Stouffville Hospital. Luca is now eleven years old. He has cerebral palsy with athetoid dyskinesia and spastic quadriplegia. He is essentially totally dependent for all aspects of his care. He is non-verbal but has a good understanding of his surroundings.
2The action proceeded to trial before Jennings J. only against the respondent Dr. Christine J. Peters. The action was settled or dismissed against the other named defendants. The parties agreed on the quantum of damages and the trial proceeded on the issues of standard of care and causation.
3The appellants contend that the trial judge erred in failing to make a finding on causation of Luca’s injury and that this failure affected his conclusion on liability. They also contend that the trial judge misapprehended the evidence with respect to Dr. Peters’ arrival at Mrs. Liuni’s bedside, the evidence of the appellants’ experts and the evidence of the information and options available to Dr. Peters prior to the delivery. They submit that the trial judge failed to apply the proper standard of care for a breech delivery. They further submit that Dr. Peters breached an undertaking to Mrs. Liuni to perform a caesarean section at the first sign of fetal distress.
4The appellant Mrs. Liuni had a normal and healthy second pregnancy. However, the baby was in a breech position. The period of time that was relevant in this action was from the time of Mrs. Liuni’s admission at the hospital at 17:00 and the delivery of Luca at 18:50 on March 30, 1990. More specifically, the time between 18:05, when Dr. Peters was called to reassess the patient, and approximately 18:30 when the decision to proceed with the caesarean section was made, is especially pertinent.
5All experts agreed that Dr. Peters’ initial assessment following Mrs. Liuni’s admission was complete and appropriate. There was no criticism of Dr. Peters’ conduct at any time until after she was paged to reassess the patient.
6At the bedside, there was little to assist Dr. Peters with fetal heart rate. There were technical difficulties with the hospital equipment in monitoring the fetal heart rate and for a short time there was an absence of useful tracing. The experts’ opinions varied greatly on the question of when fetal distress became apparent in this case. The plaintiffs’ experts were inconsistent among themselves on the question of when it occurred and on whether it required immediate intervention.
7Dr. Peters became concerned about possible fetal distress at 18:20 and decided at that time that delivery by the most expeditious route was necessary. As the active labour was progressing quicker than first anticipated, she determined that a short trial vaginal delivery was indicated and in the event of fetal distress or inadequate progress, a caesarean section would be performed. Numerous experts agreed that Dr. Peters’ decision was reasonable and appropriate.
8When vaginal delivery did not succeed, Dr. Peters immediately proceeded with a caesarean section. Mrs. Liuni was prepared for the surgery at 18:40 and the baby was delivered at 18:50. There was no criticism of Dr. Peters’ performance of the caesarean section.
9It is well accepted that in civil cases, appellate courts will not interfere with the factual findings of the trier of fact “unless it can be established that the learned trial judge made some palpable and overriding error which affected his assessment of the facts”. See Stein v. The Ship “Kathy K”, 1975 CanLII 146 (SCC), [1976] 2 S.C.R. 802 at 808.
10As O’Connor J.A. stated in Keljanovic Estate v. Sanseverino (2000), 2000 CanLII 5711 (ON CA), 186 D.L.R. (4th) 481 at para. 25:
It is well accepted that an appellate court will only interfere with a finding of fact where a trial judge has made a clear or manifest error. The requirement that errors be clear or manifest imposes a deferential standard of reasonableness, not correctness. This means that an appellate court will not interfere simply because it disagrees with the finding of fact, but only if it concludes that the finding is unreasonable.
11In Toneguzzo-Norvell v. Burnaby Hospital, 1994 CanLII 106 (SCC), [1994] 1 S.C.R. 114 at 122, a malpractice case similar to the present case, McLachlin J. held that “the principle of non-intervention of a Court of Appeal in a trial judge’s findings of facts does not apply with the same force to inferences drawn from conflicting testimony of expert witnesses where the credibility of these witnesses is not in issue”. However, she went on to note that “[t]his does not…change the fact that the weight to be assigned to the various pieces of evidence is under our trial system essentially the province of the trier of fact, in this case the trial judge.”
12One of the main grounds of appeal concerns the failure of the trial judge to deal with the issue of causation. The appellants maintain that unless this court is disposed to make the necessary finding, this was an error that requires a new trial. They rely on the decisions of this court in Meringolo (Committee of ) v. Oshawa General Hospital, [1991] O.J. No. 91 (Ont. C.A.) and Grass v. Weisberg, 2001 CanLII 8526 (ON CA), [2001] O.J. No. 1766 (Ont. C.A.).
13Although it is usually preferable, whenever possible, to determine causation explicitly in a medical malpractice action, there is no absolute rule or legal prescription to this effect. Whether the failure to determine causation will constitute legal error will depend on the facts of each case.
14In Meringolo, the critical issue on liability was whether the plaintiff’s brain damage suffered during the course of a surgical procedure was caused by pulmonary embolism and resulting cardiac arrest or by the anesthetist’s failure to ensure adequate ventilation. If the cause was the latter, it would give rise to an inference of negligence. However, the trial judge dismissed the action against the surgeon and the anesthetist without making any finding on the issue of causation, finding that neither had breached his professional duty. On appeal, this court held that the trial judge had erred in failing to make a finding on the issue of causation. On its review of the medical evidence, the court found that it was necessary to determine the issue of causation as a preliminary matter before a proper assessment could be made on the appropriate standard of care. In the circumstances of that case, this court held that it was in as good a position as the trial judge to make the necessary findings and it proceeded to do so.
15Grass was another case where there were conflicting theories on causation. The plaintiff’s theory was that the misuse of forceps during delivery was the cause of the plaintiff’s brain damage. The defendant took the position that the brain damage occurred prior to the onset of labour. The trial judge found it unnecessary to resolve this conflict and dismissed the action on the basis that there had been no breach of standard of care. As in Meringolo, this court held that the “resolution of causation might have led to different findings of fact … and to a different conclusion with respect to negligence.” Hence the court found that the trial judge had erred in failing to make the critical finding on the issue of causation. Unlike Meringolo, the court did not find itself in a position to resolve the conflict on the basis of the record and consequently ordered a new trial.
16In the present case, there was no issue as to the cause of the injury to Luca. Both parties agreed that it was due to oxygen deprivation during labour. While the parties at trial advanced conflicting positions as to when the injury occurred, this conflict had no bearing on the trial judge’s assessment of the evidence related to the appropriate standard of care. The critical issue remained whether, on the basis of all the evidence, Dr. Peters’ decision to proceed first with a trial vaginal delivery before resorting to the caesarian section met the requisite standard of care. Further, it is implicit from the trial judge’s reasons that he accepted the appellant’s position that the injury occurred during the time that Mrs. Liuni was in Dr. Peters’ care and not before she came to the hospital. Otherwise, he would have dismissed the action outright without considering the standard of care. In my view, the issues on appeal can be determined on the basis of the same implicit findings. I would not give effect to this ground of appeal.
17The appellants submit that the trial judge misapprehended the evidence with respect to Dr. Peters’ arrival at Mrs. Liuni’s bedside when she was paged to reassess the patient. The evidence is quite clear that she was paged at 18:05, as found by the trial judge.
18The appellants also submitted that the trial judge misapprehended the evidence of the plaintiffs’ experts in relation to the information available to Dr. Peters when she returned to assess the patient at 18:05 and that as a result, the trial judge discounted their evidence. The trial judge commented that the evidence of the plaintiffs’ experts was tainted because the experts based their analysis on a script from the central monitor prepared months after the accident and not on the basis of what was being seen at the bedside by Dr. Peters.
19The comment made by the trial judge does not indicate that he misapprehended the evidence. On the contrary, the trial judge carefully reviewed the evidence of the experts, assessed the weight to be given to their evidence, and for logical reasons he preferred the evidence of the defence experts.
20Much evidence was heard at trial and much was said on appeal about the central monitor at the Markham Stouffville Hospital. As mentioned earlier, there were technical problems with the bedside monitor. The appellants argued that Dr. Peters should have obtained the information that would have been available from the central monitor.
21It was pointed out in the evidence that at 18:05 Dr. Peters was coming back to a patient who had experienced a normal pregnancy. She immediately proceeded to examine the patient and took steps to do her own monitoring. There was evidence about the questionable reliability of electronic monitoring. There was also evidence that the doctor’s place was with her patient where she was not running the risk of missing any signs that helped her assess the condition of her patient.
22In these circumstances, it was clearly open to the trial judge to conclude that with respect to the issue relating to the central monitor, Dr. Peters did not breach the acceptable standard of practice.
23A similar issue was raised with respect to the failure of Dr. Peters to take a blood sample of the baby in order to ascertain its condition. It is uncertain, on the evidence, whether a blood sample would have assisted Dr. Peters in her assessment of Mrs. Liuni. First, there was a question whether it would have been practical to take a blood sample because of the time involved in getting the results back. Second, there was evidence that it would be of doubtful benefit to obtain a blood sample in a case of a breech presentation of this kind. In any event, in addition to the defence evidence, it was agreed by one expert for the appellants that standard practice did not require that a blood sample be taken.
24The appellants further contend that the trial judge erred in failing to adopt the “Breech Plus Rule” as the appropriate standard of care. The “Breech Plus Rule” provides that a trial of vaginal delivery in a breech presentation is reasonable only if the labour is normal and there is no sign of fetal distress. The assertion of an absolute rule that vaginal delivery instantly becomes inappropriate with a breech presentation at the first sign of fetal distress is not consistent with the preponderance of the evidence.
25Finally, I see no merit in the appellants’ submission that Dr. Peters had breached her undertaking to Mrs. Liuni that she would proceed to deliver the baby by caesarean section at the first sign of fetal distress. There was no pleading of a breach of undertaking nor was it argued at trial. In any event, there is cogent evidence that what was said was that Dr. Peters would proceed with a caesarean section if she was concerned about fetal distress or inadequate progress in labour. That is exactly what she did.
26This case was essentially a factual one. In the end, the trial judge found no breach of the standard of care in relation to the diagnosis and treatment of Mrs. Liuni on March 30, 1990. This finding is reasonable and it is amply supported by the evidence.
I would dismiss the appeal with costs.
RELEASED: DEC 04 2001
Signed: “J.-M. Labrosse J.A.”
“I agree K.M. Weiler J.A.”
“I agree Louise Charron J.A.”
