COURT OF APPEAL FOR ONTARIO
Feldman, MacPherson and Hoy JJ.A.
BETWEEN
William MacGregor, Laura MacGregor, Matthew MacGregor an infant by his Litigation Guardian, Robert Mahler, Robert MacGregor an infant by his Litigation Guardian, Robert Mahler, Jane Lemke, Ken Lemke, Susan MacGregor and James Hughes
Plaintiffs/ Respondents
and
Peter Potts, Susan Seyler, Grand River Hospital and Kitchener-Waterloo Health Centre
Defendants/ Appellant
Frank J. McLaughlin and Sarah W. Corman, for the appellant
Paul J. Pape and Shantona Chaudhury, for the respondents
Heard: March 6-8, 2012
On appeal from the judgment of Justice J.R. Henderson of the Superior Court of Justice, dated August 27, 2009.
A. INTRODUCTION
1This is an appeal in a medical malpractice case. It is a difficult case for all concerned. Something went wrong in the delivery of the second baby in the family of Laura and William MacGregor. Matthew was born, but with catastrophic injuries. The MacGregors will love and take care of Matthew for the rest of his life.
2Several doctors, nurses and a hospital were involved in Matthew’s birth. The principal doctor, an obstetrician, has devoted his career, with skill and care, to the delivery of several thousand babies.
3The consequences of a medical misfortune for the person injured and often their families can be devastating and life-altering. The same can be true for the medical professional who may have caused the injury. In the medical area, this shared result is very painful because the doctors, nurses and hospitals involved are passionately dedicated to preserving life and health.
4The doctor defendant here is a fine professional man who has devoted his life to the care of mothers and children. The MacGregor family must endure and respond forever to Matthew’s injuries and precarious situation. In this sad context, a judge can – and I do – express my genuine sympathy to the MacGregor family and to Dr. Potts.
5The appellant, Dr. Peter Potts, appeals from the judgment of Henderson J. of the Superior Court of Justice dated August 27, 2009. The trial judge found that Dr. Potts fell below the standard of care in the course of attempting a forceps-assisted vaginal delivery of the infant respondent, Matthew MacGregor, on January 27, 1999, and in failing to obtain informed consent to that procedure.
6The respondents commenced an action in February 2002 and served a jury notice. The trial commenced with a jury. Following the evidence of Matthew’s mother, the respondent Laura MacGregor, and two of the respondents’ obstetrical experts, and over the objection of Dr. Potts, the trial judge granted the respondents’ motion to strike their own jury notice and discharged the jury.
7The trial proceeded over the course of three months with evidence from seven fact witnesses, 11 experts on liability, and nine experts on damages.
8The trial judge determined that Dr. Potts breached the standard of care in three ways and that the breaches caused Matthew’s injuries. Dr. Potts appeals from these findings and asks that the trial judgment be set aside and judgment entered dismissing the action against him or, in the alternative, that a new trial on liability be ordered.
9The respondents cross-appeal on the assessment of damages, in particular the component of the award relating to future care costs for Matthew, and seek to have fresh evidence admitted on this issue only.
B. FACTS
(1) The parties and events
10In 1996, Laura MacGregor delivered her first child, a healthy boy, Robert, at Grand River Hospital in Kitchener. Dr. Tsandelis, an obstetrician at the hospital, delivered Robert with forceps after Mrs. MacGregor had been pushing in the second stage of labour for about two hours.
11At about 1:35 a.m. on January 27, 1999, Mrs. MacGregor came to the same hospital in the first stage of labour for her second child. She was examined in obstetrical triage and transferred to a labour and delivery room. She signed a Consent to Vaginal Delivery form. This general written consent form indicated that she consented to a “vaginal delivery” and “additional or alternative investigative treatment or operative procedures, that ...is immediately necessary during the course of this procedure.”
12Dr. Susan Seyler, the physician on call from the obstetrical family practice in which Mrs. MacGregor was a patient, saw Mrs. MacGregor at about 4:00 a.m. and assumed her care. Dr. Seyler assessed Mrs. MacGregor again at 5:45 and 7:45 a.m. and considered her progress in the first stage of labour to be slower than expected. She decided that it would be prudent to give the obstetrician on call a courtesy ‘heads up’ about Mrs. MacGregor.
13Dr. Potts was the obstetrician on call that day. He was an experienced obstetrician with a busy obstetrical practice at Grand River Hospital. He delivered approximately 300-400 babies per year. By January 1999, he had delivered approximately 3000 babies, including at least 150 forceps deliveries.
14Dr. Seyler spoke to Dr. Potts at about 8:15 a.m. Dr. Seyler told Dr. Potts that Mrs. MacGregor’s labour was proceeding more slowly than expected in the circumstances. Nurse Lorie Freund also had a brief informal conversation with Dr. Potts at about the same time.
15Mrs. MacGregor’s second stage of labour commenced at about 10:45 a.m. Shortly thereafter, she started to push. At about 12:30 p.m., Nurse Freund noted the presence of fetal tachycardia (elevated heart rate). She attempted to contact Dr. Potts, but was unable to do so. She telephoned Dr. Seyler at 12:32 p.m. and informed her that Mrs. MacGregor had been pushing for nearly two hours and that fetal tachycardia had developed. Dr. Seyler said she would return to the hospital. Before she left her office, she spoke to Dr. Potts at his office and formally requested a consult. Dr. Seyler informed Dr. Potts by telephone that Mrs. MacGregor was making slow progress and that there was an elevated fetal heart rate. Dr. Potts agreed to meet Dr. Seyler at the hospital.
16Dr. Seyler arrived in the delivery room at 12:45 p.m. and Dr. Potts attended at 12:50 p.m. Before going to the delivery room, Dr. Potts reviewed Antenatal Record 1 and 2, but no other part of the hospital chart. The records he reviewed did not provide information about the progress of labour or whether there was maternal distress.
17Upon arrival in the delivery room, Dr. Potts reviewed the fetal heart tracing and observed the elevated fetal heart rate. He conducted a vaginal examination of Mrs. MacGregor. He formed the view that Mrs. MacGregor would probably not deliver spontaneously if she continued to push: she had already spent two hours pushing and the most difficult part of the baby’s descent was still ahead; fetal tachycardia was present; and Mrs. MacGregor was tired.
18Dr. Potts advised Mrs. MacGregor that he felt it to be prudent to assist her delivery with forceps. Mrs. MacGregor accepted Dr. Potts’ recommendation.
19Between 12:57 and 12:59 p.m., Dr. Potts applied the Kielland forceps. There were four variable decelerations in the fetal heart rate between 12:57 and 1:03 p.m. He discovered that the fetal head was in a different position than what he had initially thought. This meant that he would need to rotate the fetus to a different position before applying traction. There were no forceps in place between 12:59 and 1:03p.m., but there were variable decelerations at 1:01 and 1:02 p.m. He switched to the Tucker forceps at 1:04 p.m. and began to rotate the fetus.
20Between 1:04 and 1:10 p.m., during the application of the Tucker forceps, the fetal heart tracing showed three more variable decelerations. There was never a complete recovery from the third, which began at 1:08 p.m.
21At about 1:10 p.m., while rotating the fetus with the forceps, Dr. Potts noticed that the umbilical cord had prolapsed (compressed) and was between the forceps blade and the maternal side wall. He immediately recognized this as a rare but also dangerous situation because a prolapsed cord would cut off the supply of blood and oxygen to the fetus.
22Dr. Potts used the forceps to push up the fetal head in an attempt to relieve the pressure on the cord. He directed the nurses to prepare for a caesarean section immediately.
23During Mrs. MacGregor’s next contraction, Dr. Potts applied gentle traction for about 30 seconds in an attempt to deliver the baby. This attempt was not successful. Dr. Potts abandoned the forceps attempt, removed the forceps, and briefly applied upward pressure on the fetal head with his hand in an effort to decompress the umbilical cord. Dr. Seyler replaced Dr. Potts at 1:14 p.m. and manually decompressed the cord thereafter.
24Mrs. Macgregor was taken to the caesarean section delivery room at 1:19 p.m. Dr. Potts delivered Matthew at 1:26 p.m. Matthew had no vital signs. A resuscitation team took over his care immediately. After about five minutes, he was revived. Unfortunately, he was seriously brain damaged. He is now 13 years old and will always be seriously disabled. His life expectancy is about 32 years.
25The above is a very brief, general and neutral description of Matthew’s birth. There are other facts, including contested facts, relevant to the disposition of the various issues in this appeal. I will discuss these facts in the context of the issues to which they relate.
(2) The trial judgment
26In his 370 paragraph judgment, the trial judge found Dr. Potts negligent in three respects: his decision to make a forceps intervention; his performance of the forceps procedure; and his failure to obtain consent for the forceps intervention from Mrs. MacGregor. He held that Dr. Potts’ negligence directly caused Matthew’s injuries. In a section of his reasons titled FINAL CONCLUSION, the trial judge summarized these conclusions in this fashion:
Given the station of the baby and the rate of descent, I find that Potts breached the standard of care expected of a reasonable obstetrician by intervening in the labour with forceps. I also find that Potts breached the standard of care expected of a reasonable obstetrician by disengaging the fetal head during the application of the Tucker forceps. These two breaches of the standard of care constitute negligence.
I find that Potts failed to obtain Laura’s informed consent to the forceps intervention as he failed to give her the option of continuing to push, he failed to inform her of the descent of the baby, and he failed to give her a general explanation of the risks and benefits of a forceps intervention. I also find that if properly informed a reasonable patient in Laura’s circumstances would not have consented to an intervention by forceps. The failure to obtain Laura’s informed consent also constitutes negligence.
Regarding causation, I find that but for Potts’s negligence there would not have been a cord prolapse. The cord prolapse directly caused Matthew to suffer injuries from acute profound asphyxia. The cord prolapse also set in motion a chain of events that caused both acute profound asphyxia and partial prolonged asphyxia. Therefore, but for the negligence of Potts, I find that all of Matthew’s injuries would not have occurred.
27The trial judge awarded damages in two categories. The first was damages agreed upon by the parties to Matthew, his parents, his brother and grandparents, and an OHIP claim to date. These damages totalled about $2,800,000. The second category was future pecuniary damages, the major component of which was $246,838.15 per year for future attendant care costs.
28The appellant appeals the negligence finding. The respondents cross-appeal the future pecuniary damages award.
C. ISSUES
29I would frame the issues on the appeal as:
(1) Did the trial judge err in dismissing the jury?
(2) Did the trial judge err in finding that Dr. Potts was negligent in his treatment of Mrs. MacGregor during the delivery of Matthew?
(3) Did the trial judge err in reaching inconsistent findings on causation?
30I would frame the issue on the cross-appeal as:
(4) Did the trial judge err in his assessment of the cost of future attendant care for Matthew?
D. ANALYSIS
Dr. Potts’ appeal
(1) Dismissing the jury
31The respondents (plaintiffs) filed a jury notice, as was their right. They began to call their evidence. After the evidence of Mrs. MacGregor and two obstetrical experts they, somewhat unusually, brought a motion to strike their jury notice. Dr. Potts opposed the motion. The defendant Grand River Hospital took no position on the motion.
32In a 13 page ruling, the trial judge granted the motion and struck the jury. He observed that the parties proposed to call an additional 21 experts and that the trial would likely last eight weeks. He recognized that “[c]learly it is possible for a jury to hear and decide a medical malpractice case”. He set out the test for discharging a jury in Graham v. Rourke (1990), 1990 7005 (ON CA), 75 O.R. (2d) 622 (C.A.) and Cowles v. Balac(2006), 2006 34916 (ON CA), 83 O.R. (3d) 660 (C.A.). He found that “there are many complex aspects in the factual, medical and legal issues in this case.” He reviewed these in an organized and comprehensive fashion, including the potential obstetrical issues, scientific issues relating to causation, and the complicated future care cost claim. He concluded that “because of complexity, justice for the parties in this case is best served by the discharge of the jury.”
33The appellant contends that the trial judge erred in finding that the case was too complex for a jury. In his factum, the appellant says that the trial judge “misapplied the law and discharged the jury arbitrarily”.
34I do not accept this submission. The appellant does not explain how the trial judge “misapplied the law”; nor does he say what constituted the arbitrariness of his ruling.
35The decision to discharge a jury is a discretionary one. Appellate intervention is not warranted if there is a reasonable basis for the exercise of the trial judge’s discretion: see Cowles v. Balac, at paras. 40-42. Based on the trial record and, frankly, based on the record and the nature of the legal argument in this three-day appeal, the trial judge’s decision to discharge the jury, and his reasons for doing so, were entirely reasonable.
(2) Negligence – the forceps delivery
36The trial judge found that Dr. Potts was negligent in three respects: (1) his decision to intervene with forceps; (2) his conduct of the forceps delivery; and (3) his failure to obtain informed consent by Mrs. MacGregor for a forceps delivery.
37The appellant challenges all three of these findings of negligence. In my view, it is necessary to address only the second of these submissions in order to resolve the negligence issue.
38At trial, one of the respondents’ allegations of negligence regarding the manner in which Dr. Potts performed the forceps delivery was that Dr. Potts disengaged the fetal head from the mother’s pelvic wall as he tried to rotate the fetus to bring it to a position where it could further descend to an ultimate delivery. All of the experts agreed that if Dr. Potts had done this, it would have breached the standard of care for a forceps delivery because, as the trial judge explained in his reasons:
It is acknowledged that an obstetrician should not disengage the fetal head during a forceps intervention. Williams Obstetrics, 20th Edition, states under the heading “Special Forceps Maneuvers” the following:
“The head should not be pushed high enough to allow disengagement because the cord may prolapse.”
39As we know, Matthew’s umbilical cord did prolapse during the forceps delivery. The central question for the trial judge was: did Dr. Potts disengage the fetal head?
40In answering this question, the factor that most influenced the trial judge was Dr. Potts’ own Operative Report written later that same day. Dr. Potts wrote this about his application of the Tucker forceps between 1:04 and 1:10 p.m.:
After removing the patient’s catheter, Tucker McLane forceps were applied without difficulty. ... Application was checked and correct. Between contractions, the head was flexed, disengaged and the fetus was rotated without difficulty to an occiput anterior presentation. During the modified Scanzoni’s maneuver to reapply the Tucker McLane forceps, the infant did not rotate back to an occiput posterior position. In view of this, the infant was again rotated to an occiput anterior presentation and application was checked. During the check of the application of forceps, it became apparent that the fetal umbilical cord had prolapsed down past the right side of the fetus’ head. [Emphasis added by trial judge.]
41In this passage, Dr. Potts describes how he performed the forceps rotation of the fetus and records his recognition of the unexpected and very dangerous development of a prolapse.
42The trial judge said this about Dr. Potts’ report:
Looking at this excerpt from the Operative Report and comparing it to the acknowledged standard of care, it is easy to conclude that Potts breached the standard of care by disengaging the fetal head.
43However, the trial judge did not rest on this “easy” conclusion. In his testimony, Dr. Potts had two responses to his use of the word “disengaged” in his Operative Report.
44Dr. Potts’ first response was that he did not use the word “disengaged” in the traditional sense in his Operative Report. The trial judge described this response and then assessed it in this fashion:
However, when faced with this obvious error Potts stated that when he used the term “disengaged” in his Operative Report he was not using that word in the traditional sense. He testified that there were two separate definitions of “engagement” that were in common usage at the time, and he was using the non-traditional definition of that word.
Williams Obstetrics, 20th Edition, defines engagement as, “The descent of the biparietal plane of the fetal head to a level below that of the pelvic inlet.” I will refer to this definition of engagement as the “traditional definition”. According to Potts, engagement can also mean that the biparietal plane has descended to the level of the maternal ischial spines. I will refer to this definition as the “alternate definition”.
I do not accept Potts’s testimony that the alternate definition of engagement was in common usage as of 1999. The only textbook that Potts could find that mentions this alternate definition was Williams Obstetrics, 21st Edition, which had one reference to the alternate definition, although other references to engagement in the 21st Edition used the traditional definition. Moreover, the one passage from the 21st Edition that used the alternate definition referred the reader back to another chapter in the book that used the traditional definition. One has to wonder if the one reference in the 21st Edition was an error.
Also, Williams Obstetrics, 21st Edition, was published in 2001, two years after Matthew’s birth, and therefore it is not evidence that any such alternate definition was in common usage as of the date of Matthew’s birth when the Operative Report was written.
Further, both of the defendant’s obstetrical experts, Dr. McGrath and Dr. Barrett, stated that they were not aware of the alternate definition of engagement until approximately one week prior to testifying before this court in the fall of 2008. Given that both of these experts practice extensively in this field and regularly write articles and appear before the courts, I find that it cannot be said that the alternate definition was in common usage in 1999. I note that defence counsel did not cross-examine any of the plaintiffs’ obstetrical experts on this alternate definition.
Still further, I have already found that Potts was very sloppy in the language that he used in his Operative Report, and made several errors. In my view Potts is not the type of person to be at the vanguard of the advancement of medical terminology. It is not likely that Potts meant to use an advanced alternate definition of a term that was commonly used in the traditional sense by most obstetricians.
Therefore, I find that when Potts wrote in his Operative Report that he “disengaged” the head, he was using the traditional definition of engagement. He meant that he lifted the biparietal plane of the fetal head to a level above the pelvic inlet. [Emphasis in original.]
45Dr. Potts’ second response at trial was that his detailed description of what he had actually done during the forceps rotation established that he did not mean “disengaged” in the traditional sense when he used it in his Operative Report.
46Again, the trial judge specifically addressed this response:
At trial, Potts denied that he disengaged the fetal head in the traditional sense of that word. Potts testified that he “flexed the head and slightly de-stationed it or disengaged it”, by which he said he meant that he took the BPD slightly above the ischial spines. I accept that it was necessary for Potts to slightly de-station the head in order to rotate the baby.
I have already found that the BPD was at ischial spines when Potts applied the forceps. In most cases the distance from the ischial spines to the pelvic inlet is about 5 centimeters. Dr. McGrath opined that it was “very unlikely” that Potts disengaged the head in the traditional sense because it would be a long push to move the biparietal plane of the fetal head about 5 centimeters from the ischial spines to the pelvic inlet.
I do not find Dr. McGrath’s opinion to be particularly helpful on this issue as he simply sets out the likelihood that Potts was negligent. Again, clinical probability must be considered in conjunction with all of the other evidence.
In this case only Potts knows what he did when he applied the forceps and elevated the fetal head. But, I have contradictory evidence from Potts on this point. In his Operative Report Potts wrote that he disengaged the head, but on the witness stand Potts said that he did not disengage the head.
Given that the Operative Report was dictated at about the time of the events, and given that Potts later reviewed the Operative Report for accuracy, and given that Potts knew that the Operative Report was a very important document that constitutes a record of the events, and given Potts’s credibility problems at trial, I find that the Operative Report is the most accurate version of what Potts did when he applied the forceps. Therefore, I find that when Potts did a rotation of the baby with the Tucker forceps he disengaged the fetal head in the traditional sense of that word.
47I can see no error in these two analyses, let alone a palpable and overriding error needed to upset the factual finding that Dr. Potts in fact disengaged the fetal head. This was a factual finding grounded in credibility, and therefore particularly difficult to disturb on appeal: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at 254-55, Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201 at paras. 347 and 359-60. There was no dispute that if the head had been disengaged, the subsequent use of forceps fell below the standard of care for such a procedure. In these passages, the trial judge identified and carefully considered Dr. Potts’ written description of the forceps rotation, his explanations at trial, the relevant medical text book, and the testimony of experts called by Dr. Potts who did not support him on his personal definition of “disengaged”. He even accepted some of Dr. Potts’ testimony, namely, that it was necessary to slightly move (“de-station”) the fetal head from the mother’s pelvic wall in order to rotate the fetus.
48There can be no doubt that, on the basis of the record, it would have been possible for the trial judge to accept Dr. Potts’ testimony about how he performed the forceps rotation and reach the conclusion that Dr. Potts’ use of the word “disengaged” in his Operative Report was in accordance with an accepted secondary meaning of that word or, alternatively, was only a reporting error in that what he really meant to record was that he appropriately “de-stationed” the fetal head.
49However, acknowledging this potential analytical framework does not come anywhere close to offsetting – by labelling it a palpable and overriding error – the analysis the trial judge did make and the conclusion flowing therefrom. The trial judge fully addressed Dr. Potts’ evidence and decided against him in reasons that are supportable, factually and legally.
(3) Causation
50The appellant acknowledges that the trial judge applied the proper test for causation, the “but for” test from Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.
51However, the appellant contends that the trial judge misapplied the test by making contradictory findings on causation: (1) the disengagement of the head caused the prolapse; and (2) the substandard performance of the forceps rotation led to the prolapse even if the head was not disengaged.
52The trial judge specifically found that the cord prolapse occurred at approximately 1:10 p.m., while Dr. Potts was using the Tucker forceps. Since, as discussed above, the trial judge was entitled to conclude that Dr. Potts improperly disengaged the fetal head during the forceps procedure, on this basis alone it was open to the trial judge to conclude that this resulted in the cord prolapse that caused Matthew’s injuries.
53The trial judge also found that Dr. Potts was negligent in intervening with forceps. He found that the use of forceps caused the prolapse, whether or not the head was disengaged. Therefore liability flowed from the use of forceps even without disengagement.
54The trial judge made this observation in the context of having made a clear finding that the head was disengaged. It is not a contradictory finding. Disengagement of the fetal head was the specific manoeuvre within the application of the Tucker forceps that created the space and opportunity for the umbilical cord to prolapse.
The MacGregors’ cross-appeal
(4) Future attendant care for Matthew
55The MacGregors’ cross-appeal relates to only one component of the damages award in this case, the future care costs for Matthew. In this context, the MacGregors make two submissions.
56First, the MacGregors assert that the trial judge erred by, in effect, co-opting Mrs. MacGregor into Matthew’s continuing care.
57With respect to nighttime care for Matthew, the trial judge awarded damages as follows:
PSW [Personal Services Worker] Nighttime Care – 70 hours per week, 12 weeks per year @ $24.77 per hour = $20,806.80
Laura Nighttime Compensation – 14 hours per week, 40 weeks per year @ $24.77 per hour = $13,871.20
58The MacGregors contend that the trial judge erred by assigning care of Matthew to Mrs. MacGregor, even though compensated. In my view, there are two responses to this submission. First, this assignment flowed from the evidence about Matthew’s care at the time of the trial. Second, it is important to note that, because of Matthew’s condition, the damages award in this case is a complex one, involving many heads of damage and many financial calculations. In my opinion, the global award is fair and reasonable to the MacGregors. Importantly, there is nothing in the record to suggest that, through communication, flexibility and co-operation, the parties cannot make sensible adjustments to the delivery of future care to Matthew. Appellate courts should be very cautious about intervening in a single component of a complex damages award after a long trial, especially when the award, viewed globally, appears to be quite reasonable. For these reasons, I would decline to intervene in the component of the damages award relating to nighttime care for Matthew.
59Second, on the basis of fresh evidence about Matthew’s current condition, the MacGregors assert that Matthew’s nighttime care should be the same as his daytime care, namely, provided by a Registered Practical Nurse. In my view, there is nothing in the fresh evidence to support such an adjustment. I would not admit the fresh evidence because it would not affect the result reached by the trial judge.
E. DISposition
60I would dismiss the appeal and the cross-appeal. I would dismiss the fresh evidence application.
61Success is divided. Given the number and complexity of the issues, the respondents have achieved greater success. I would award costs of the appeal and cross-appeal, globally, to the respondents fixed at $100,000.00, inclusive of disbursements and HST.
Released: April 11, 2012 (“K.F.”)
“J.C. MacPherson J.A.”
“I agree K. Feldman J.A.”
“I agree Alexandra Hoy J.A.”
