COURT OF APPEAL FOR ONTARIO
Gillese, van Rensburg and Hourigan JJ.A.
BETWEEN
Taylor Achneepineskum and Jasmine Achneepineskum, by their Litigation Guardian, Samuel Achneepineskum, Martha Achneepineskum, Olivia Achneepineskum, Daryl Achneepineskum, Samuel Achneepineskum Jr., and the said Samuel Achneepineskum, personally
Plaintiffs (Appellants)
and
Roy Laine, Geraldton District Hospital, Astra Zeneca Canada Inc., and Merck Frosst Canada Ltd.
Defendants (Respondent)
Alan A. Farrer, Richard C. Halpern and Kate L. Cahill, for the appellants
Darryl A. Cruz, Chris Hubbard and Sara Kushner, for the respondent
Heard: May 7, 2014
On appeal from the judgment of Justice J.F. McCartney of the Superior Court, dated February 27, 2013.
van Rensburg J.A.:
OVERVIEW
1The appellants appeal the dismissal of their claim for damages against the respondent Dr. Roy Laine, as a result of alleged negligence in the prenatal care of his patient Martha Achneepineskum prior to the birth of her daughter Taylor Achneepineskum.1
2Taylor was born on April 7, 1993 at Geraldton District Hospital. She was subsequently diagnosed with cerebral palsy. The consensus of the expert evidence at trial was that Taylor suffered a hypoxic-ischemic event that occurred immediately prior to or during her birth, when her brain and heart tissue were damaged due to a lack of oxygen in her blood supply. The hypoxia caused Taylor to release meconium, or fecal matter, which she aspirated from the surrounding amniotic fluid. The aspirated meconium resulted in continued levels of high blood pressure within Taylor’s lungs, which further impeded the supply of oxygen to her brain, damaging Taylor’s brain tissue. Taylor was not breathing when she was born, and she was resuscitated by Dr. Laine.
3It was acknowledged that the respondent was not negligent in his delivery of Taylor or her post-delivery care. The two principal issues at trial were whether he failed to meet the standard of care in his prenatal care of Martha, in particular in addressing her elevated blood pressure in the third trimester of pregnancy, and whether any breach in the standard of care caused the hypoxic-ischemic event that resulted in Taylor’s condition of cerebral palsy. The parties had agreed to the quantum of damages in the event that the respondent was found liable for Taylor’s condition.
4At trial, the principal theory of the appellants with respect to the respondent’s liability was that Martha’s ingestion of the blood pressure medication enalapril (with the trade name “Vasotec”) had caused Taylor to become hypotensive, leading to a reduction of oxygen to her vital organs, and that Dr. Laine had breached the standard of care in prescribing a drug that was contraindicated in pregnancy because of its known risks to the fetus.
5Briefly, the trial judge concluded that there was no breach of the standard of care for a physician in the early 1990s to have prescribed a low dose of Vasotec, and that in any event, the very low amount Martha had consumed (the only evidence being that she had taken only four sample pills and had not filled the prescription), would not have caused Taylor to become hypoxic.
6The “Vasotec theory” was not pursued on appeal to this court. Instead, the appellants contend that the trial judge erred in rejecting their alternative theories of causation and liability – that Martha suffered from pre-eclampsia, or at least elevated blood pressure during the third trimester of pregnancy, that caused Taylor to be unable to withstand the rigours of birth, and that Dr. Laine was negligent in failing to induce or to refer Martha to an obstetrician.
FACTS
7At trial, the clinical history in relation to Martha’s pregnancy with Taylor and Taylor’s birth was introduced by way of an agreed statement of facts. There were 12 witnesses, including Martha and Dr. Laine, and expert witnesses testified on the issues of standard of care and causation. Only the facts that are relevant to this appeal are set out here.
8When Martha became pregnant with Taylor, she was living in Ogoki Post, a fly-in-only First Nations community of 300 residents in Northern Ontario, located 435 km from Thunder Bay and 227 km from Geraldton.
9The respondent had practised family medicine in Geraldton since 1979, and since 1980 had provided a broad range of medical services, including obstetrics, to Ogoki Post.
10Martha had been Dr. Laine’s patient since around 1985, and he provided prenatal care from September 22, 1992, approximately three months into the pregnancy, until Taylor’s delivery on April 7, 1993 at full term.
11Prior to her pregnancy with Taylor, Martha had a history of elevated blood pressure. She was prescribed anti-hypertensive medications over the years. All of the expert witnesses agreed that the blood pressure medication that Martha was taking before delivery of Taylor, the beta-blocker Atenolol, played no role in the hypoxia at or prior to Taylor’s birth.
12Dr. Laine was aware of Martha’s history of hypertension, and noted this in her first prenatal visit on September 22, 1992, when he also ordered blood work, a urinalysis and an ultrasound. At that time he also refilled her prescription for Atenolol.
13Martha had approximately 14 medical attendances for her pregnancy with Taylor, which occurred in Dr. Laine’s office in Geraldton, at the Geraldton District Hospital and at the clinic in Ogoki Post.
14Although one of the expert witnesses, Dr. Rachlis, initially expressed concern about Taylor’s size (which would have led him to classify the pregnancy as “high-risk” and requiring consultation with an obstetrician), he ultimately agreed with the other experts that fetal growth was normal and within the 25th percentile. This was confirmed by four ultrasounds indicating normal fetal growth.
15Although Dr. Laine recorded an incorrect date each time he noted Martha’s due date in her records, Taylor was born at term, during the period predicted by an ultrasound six months before her birth. From the last ultrasound on April 1, 1993, five days before Taylor’s delivery, Martha presented normal measurements of the fetus, the fundal placenta, and the amount of amniotic fluid.
16The expert witnesses agreed that there was nothing in any of the tests prior to Taylor’s birth to indicate any problem with the pregnancy or concern about the fetus. The only exception was an elevation in Martha’s blood pressure during the third trimester. All of the experts agreed that, until that point, Martha’s hypertension was well-controlled.
17Martha’s blood pressure was in the normal range until she attended at the Geraldton District Hospital on February 19 complaining of swollen hemorrhoids. Her blood pressure was measured at 150/90, and Dr. Laine ordered tests, including a urinalysis and ultrasound.
18There is no notation of blood pressure on Martha’s next visit on March 9 at the Ogoki Post clinic.
19On March 26, Martha’s blood pressure was recorded at 150/90 and Dr. Laine ordered a non-stress test, which was conducted at Geraldton District Hospital on March 29.
20Two days later, and one week before Taylor’s birth, Martha’s blood pressure was measured at 160/90 during her visit to Dr. Laine’s Geraldton office. On that occasion, in addition to ordering another non-stress test, ultrasound and urinalysis, Dr. Laine prescribed a low dose (5 mg rather than the normal recommended dose of 40 mg) of Vasotec and gave her a sample pack of about four pills. Martha took the sample pills, but did not have the prescription filled.
21On April 1, 1993, when Martha attended for a non-stress test and ultrasound, her blood pressure was recorded as 130/80. At her next visit with Dr. Laine, on April 5, 1993, Martha’s blood pressure was recorded as 130/80. On her admission to Geraldton District Hospital the following day, Martha was in labour and her blood pressure was 160/100.
22When presented with Martha’s elevated blood pressure, Dr. Laine was aware of the risk that she might be developing pre-eclampsia. Pre-eclampsia is a condition, as described by the trial judge, “which can sicken the mother and reduce oxygen going from the mother’s blood to the placenta, and then on to the fetus”. The signs of pre-eclampsia are a sudden increase in blood pressure and protein in the urine and/or edema (generalized swelling).
23Two urinalyses before February 19, 1993 showed no protein in Martha’s urine. However the results of urinalyses that, according to the clinical records, had been ordered on February 19 and March 31, were missing from the records.
24On April 6, 1993, Martha went into spontaneous labour. Contractions began at 1:00 p.m. and she was admitted to Geraldton District Hospital at 10:30 p.m.
25During labour and delivery, Taylor’s fetal heart rate was monitored electronically. From 11:00 p.m. to 11:30 p.m., the heart rate hovered at 117 to 125 beats per minute, which was normal. As midnight approached, the nurses noted two decelerations of Taylor’s fetal heart rate, but these decelerations were resolved when Martha turned onto her left side.
26Taylor was born at 12:12 a.m. on April 7, 1993. Dr. Laine described Taylor’s condition as “moribund” and severely depressed. She had no heartbeat, she was not breathing, and she was covered in meconium from her surrounding amniotic fluid.
27Dr. Laine began emergency neonatal resuscitation procedures on Taylor. He administered oxygen and fluids and performed cardiac massage. Taylor’s condition worsened by 12:55 a.m. but slowly began to improve at 1:15 a.m. By the time Dr. Laine accompanied Taylor in an air ambulance for transfer to the Port Arthur General Hospital in Thunder Bay, she was stable. Taylor was subsequently diagnosed with cerebral palsy.
TRIAL DECISION
28The trial judge dismissed the appellants’ action. He concluded that they had failed to prove on a balance of probabilities that Dr. Laine’s prenatal care of Martha and Taylor fell below the standard of care and that Dr. Laine’s actions or omissions caused Taylor’s injuries.
29The court heard evidence from a number of expert witnesses. On the issue of the standard of care of a family doctor in prenatal care and delivery, and whether Dr. Laine had breached the applicable standard, there were three experts: Dr. Gregory Davies and Dr. Val Rachlis, who were called by the appellants, and Dr. Lawrence Oppenheimer, who was called by the respondent.
30Dr. Laine also testified at trial respecting his care of Martha and Taylor’s delivery.
31Dr. Derek Armstrong, a pediatric neuro-radiologist, was called by the appellants. He provided an opinion that the first injury was a hypoxic-ischemic event caused by a drop in blood pressure associated with heart stoppage that occurred around the time of birth, and that the second injury was multiple brain hemorrhaging resulting in cerebral palsy. This opinion was unchallenged.
32The following expert witnesses gave evidence on the issue of causation, specifically, what led to the hypoxic-ischemic event: Dr. Davies, Dr. Jacques Belik and Dr. Michael Rieder, who were called as witnesses by the appellants, and Dr. Gideon Koren and Dr. Michael Marrin, who were called by the respondent.
33The trial judge found that, although Dr. Laine made certain record-keeping errors, he did not breach the applicable standard of care in his prenatal care of Martha, in his response to her condition of hypertension and her elevated blood pressure in the third trimester.
34The trial judge concluded that the failure to make an accurate notation on each occasion of Martha’s due date fell below the standard of care. Nevertheless, Taylor was not post-term but born on the date indicated by the first ultrasound.
35There was nothing in Taylor’s fetal growth to require a referral to an obstetrician. Ultimately, all of the experts agreed that Taylor’s growth was normal, as demonstrated by the ultrasounds. The weight of the evidence (the opinion of all experts except Dr. Davies) was that this was a Grade “B” pregnancy2, “meaning it was not high risk but possible problems had to be watched out for”: at para. 30.
36The trial judge concluded that the respondent did not breach the standard of care in failing to induce labour in the final few days of the pregnancy. He accepted the opinion of Dr. Oppenheimer that this was a matter of clinical judgment, properly exercised by Dr. Laine. The appellants’ expert Dr. Rachlis, who initially expressed the opinion that Martha should have been induced, was not aware that inductions were not permitted at the Geraldton District Hospital. He eventually agreed that, unless there was evidence of protein in the urine, the situation did not call for induction.
37The trial judge concluded that there was no breach in the standard of care in Dr. Laine’s response to Martha’s hypertension. Martha’s blood pressure was well-controlled until February 19, 1993. The trial judge accepted that, although there was no notation, Dr. Laine would have taken Martha’s blood pressure on March 9, and that her blood pressure was measured on every visit. None of the readings were considered severe by the experts, and none were ignored by Dr. Laine. He ordered appropriate tests to monitor the growth of the fetus and to rule out pre-eclampsia.
38The trial judge accepted that, although the results of two urinalyses were missing from the clinical records, “this does not mean that the tests were not done and reviewed by Dr. Laine.” He rejected the opinion of Dr. Davies that a 24-hour urine test would have been more accurate for protein in the urine and should have been carried out, accepting the opinion of Dr. Oppenheimer and Dr. Rachlis, that the dip-stick tests ordered by Dr. Laine met the standard of care. The trial judge accepted Dr. Oppenheimer’s opinion that it was highly unlikely that there was any abnormal protein in Martha’s urine during the pregnancy.
39The trial judge concluded that Dr. Laine’s prescription of the ACE inhibitor Vasotec did not breach the standard of care. Although the manufacturer had sent a letter to physicians, including the respondent, warning against enalapril during pregnancy, the drug was still being prescribed by doctors to their pregnant patients in 1993. The 1992 version of the leading text on obstetrics suggested that one should balance the risks against potential benefits of ACE inhibitors during pregnancy. The 1993 version of the same text stated that ACE inhibitors were contraindicated during pregnancy. Dr. Laine’s decision to prescribe Vasotec would have been taken after weighing the possible risks with the benefits.
40On the issue of causation, the trial judge found that Taylor’s injuries were not caused by enalapril or Martha’s elevated blood pressure or pre-eclampsia.
41The trial judge rejected the opinions of the appellants’ expert witnesses, Dr. Belik and Dr. Davies, that the cause of Taylor’s injury was hypotension caused by Vasotec before birth. He also rejected the conclusion of Dr. Rieder that Vasotec prevented Taylor from responding to the stresses of labour.
42The trial judge preferred the opinions of Dr. Koren and Dr. Marrin that Vasotec was not involved. This was because there was no fetopathy – Taylor did not show the expected effects of enalapril, such as a decrease in urine, or any other evidence that her kidneys were impaired. In addition, the amount of Vasotec consumed by Martha was very small, and even if the prescription for one week at 5 mg had been filled, very little of the drug would have crossed the placenta to the baby. As such, the amount of Vasotec taken by Martha would not have been enough to have affected Taylor.
43The trial judge also rejected the appellants’ argument, based on the testimony of Dr. Marrin in cross-examination, that, although it was a dramatic intrauterine event at the time of birth that caused the hypoxic-ischemic situation, Martha’s pre-eclampsia or elevated blood pressure resulted in less oxygen getting to the placenta, which made Taylor more vulnerable to the stresses of delivery. The trial judge noted that this was a difficult argument to make, as the plaintiffs’ evidence on causation was all directed at enalapril.
44The trial judge noted that on the evidence it was unlikely Martha had a protein problem, and pre-eclampsia did not appear to have occurred. The appellants’ expert Dr. Belik testified that any placental insufficiency was not enough to hinder Taylor’s fetal growth. Dr. Belik excluded Martha’s high blood pressure as a significant factor affecting the fetus. Dr. Davies indicated that Martha’s hypertension without the addition of enalapril would have been unlikely to cause such a bad outcome.
45The trial judge characterized Martha’s condition as very mild hypertension, based on her blood pressure readings which only went over 150/90 on March 31 and dropped after enalapril was given. If there had been a hypoxic situation, it should have shown up on the fetal heart strip. The trial judge noted that the four ultrasounds and heart monitors were reassuring, showing no cause for concern.
46The trial judge observed: “For the most part, all witnesses agreed that at some time during the few minutes between the end of the fetal heart monitor strip and Taylor’s birth an event occurred which led to her injury. We are not sure what that event was.” He then referred to a passage from Dr. Marrin’s re-examination and stated: “So it seems that Dr. Marrin is identifying the likely “but for” cause of Taylor’s injuries to be interruption of oxygen due to cord compression or difficult uterine contractions at birth”: at para. 99. The trial judge concluded that the appellants had failed to prove that Martha’s hypertension or pre-eclampsia was the cause of Taylor’s injuries.
47Finally, the trial judge concluded that there was no obligation for Dr. Laine to have informed Martha of the pregnancy risks associated with Vasotec or to have offered the alternative of induction. He noted that, in any event, it was unlikely that she would not have followed his recommendations.
STANDARD OF REVIEW AND ISSUES ON APPEAL
48The issues raised on appeal seek to challenge the trial judge’s findings of fact regarding standard of care and causation. As such, to succeed in the appeal, the appellants must demonstrate a palpable error, leading to a wrong result. Deference is accorded to a trial judge’s findings of fact, including inferences of fact, unless a palpable and overriding error is established: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10 and 25.
49The appellants contend that there were such errors in this case. They assert that the trial judge, after rejecting the “Vasotec theory”, gave insufficient credence to their alternative theory that Dr. Laine had failed to properly respond to Martha’s high blood pressure by inducing her or by referring her to an obstetrician.
50The appeal raises the following specific issues:
Did the trial judge err in failing to find that Martha had pre-eclampsia? In particular, did the trial judge err in “giving the benefit of the doubt” to Dr. Laine with respect to the missing urinalysis results, and in permitting Dr. Oppenheimer to testify about proteinuria and in accepting his opinion that Martha did not have protein in her urine?
Did the trial judge err in concluding that the respondent was not negligent in his management of Martha’s blood pressure, in particular in finding that he met the standard of care when he failed to refer Martha to an obstetrician or to induce her when she was at term? On this issue, did the trial judge fail to give appropriate weight to what the appellants contend were Dr. Laine’s own admissions to having breached the standard of care?
Did the trial judge err in dismissing the appellants’ causation theory once the “Vasotec theory” was undermined? In this regard, did the trial judge seize on conjecture with respect to the role of cord compression and difficult uterine contractions, ignoring that a healthy fetus would have tolerated these stresses?
Did the trial judge err in concluding that the appellants had failed to establish an informed consent claim?
ANALYSIS
Issue One – Challenge to the Finding re: Pre-eclampsia
51The appellants submit that the trial judge erred in his conclusions respecting pre-eclampsia during the third trimester of Martha’s pregnancy. This, in turn, is related to other arguments on appeal – that Martha, if pre-eclamptic, ought to have been referred to an obstetrician or induced, and that pre-eclampsia itself was a cause of the hypoxia leading to Taylor’s condition after birth.
52The appellants do not challenge the trial judge’s conclusion that Dr. Laine’s method for assessing protein in urine (dip-stick rather than 24-hour urinalysis) was adequate, and his rejection of Dr. Davies’ opinion to the contrary. Instead, they point to the missing urinalysis results at the time that Martha’s blood pressure was significantly elevated, together with Dr. Laine’s own “admissions” that in the absence of certain information he should have presumed pre-eclampsia. They assert that the trial judge erred in “giving the benefit of the doubt” to Dr. Laine on the issue of whether there was protein in Martha’s urine, when there were clear inadequacies in his record-keeping. The appellants also contend that the trial judge ought not to have accepted certain evidence of Dr. Oppenheimer. Specifically, they assert that the trial judge erred in permitting Dr. Oppenheimer to provide an opinion, based on the available readings, including a measurement taken after Taylor’s birth, that Martha did not have protein in her urine, although this opinion was not included in his report served prior to trial.
53I will deal with each of the appellants’ specific arguments with respect to this issue in turn.
54First, in my view, it is wrong to characterize the trial judge’s findings with respect to the missing urinalyses as “giving the benefit of the doubt to Dr. Laine”. If the results from the two significant urinalyses had been available, pre-eclampsia might well have been established, or ruled out. Instead, the trial judge had to determine what inference should be drawn from the fact that the records were missing, and whether, on the basis of the available evidence, including the opinions of the expert witnesses, it was likely that Martha had developed pre-eclampsia in the third trimester.
55The trial judge accepted that Dr. Laine was aware of the risk of pre-eclampsia, and the need to test Martha’s urine for protein. All of the evidence was consistent with these findings, as well as the fact that Dr. Laine had ordered urinalyses on the dates in question, February 19 and March 31. The trial judge observed that the fact that the results were missing did not mean that the tests were not done and reviewed by Dr. Laine. He noted, “considering that he was operating out of three locations…and 20 years having elapsed, it is not unlikely that some records, available at the time, are no longer available”.
56The appellants suggest that Dr. Laine’s poor record-keeping (the repeated errors in noting Martha’s correct due date and his failure to take a complete history as required when he first attended Martha on her pregnancy) should give rise to a negative inference in respect of the missing urinalyses. I disagree. In my view, Dr. Laine’s record-keeping shortcomings do not provide sufficient reason to conclude that he failed to obtain and review the urinalyses that were ordered and that were missing in the records. The evidence that Dr. Laine knew of the importance of the tests and was aware of the risk of pre-eclampsia, suggests the contrary.
57It is important to observe that the trial judge did not infer from this evidence alone that the urinalyses were negative for protein in the urine; instead and in the absence of the urinalysis results, he had to consider all of the evidence as to whether it was likely that Martha had pre-eclampsia. The evidence consisted of the various blood pressure readings, the fact that Martha had not complained of ill health during the pregnancy, the lack of protein in the available urinalyses, Dr. Laine’s evidence that he did not believe that Martha was pre-eclamptic, and the opinions of the expert witnesses based on the available information.
58The appellants assert that, on the question of whether Martha was pre-eclamptic, the trial judge accepted an opinion of Dr. Oppenheimer, an expert witness called by the respondent, that ought not to have been admitted. At para. 25 of his reasons, the trial judge referred to the evidence of Dr. Oppenheimer that “with negative tests September 9, 1992, and December 10, 1992 and only a “trace” showing on a test April 13, 1993 [post-delivery], it was highly unlikely there was any abnormal protein in Martha’s urine during the pregnancy”.
59The appellants contend that the trial judge erred in permitting Dr. Oppenheimer to testify about the likelihood of protein in Martha’s urine during her pregnancy with Taylor when this topic had not been addressed in his expert report.
60It is useful to recall how this evidence developed at trial. In his testimony in chief, Dr. Davies, as an expert witness called by the appellants, offered the opinion that the standard of care required 24-hour urine tests rather than the dip-stick tests ordered by Dr. Laine. Over the objection of the respondent’s counsel, Dr. Davies was permitted to offer an opinion as to the likelihood that a 24-hour urine test would have revealed protein in Martha’s urine at the time that Martha’s blood pressure was elevated. Later in the trial, when Dr. Oppenheimer was called as an expert witness by the respondent, counsel elicited his opinion respecting the use in 1993 of 24-hour urine tests and their reliability. The appellants’ counsel objected on the basis that Dr. Oppenheimer’s written report had not addressed the question of 24-hour urine tests. The trial judge permitted him to testify on this issue, in part because Dr. Davies had been allowed to provide his opinion. (Ultimately the trial judge concluded that the dip-stick testing employed by Dr. Laine met the standard of care, and this finding is not challenged on appeal.)
61Later in his evidence Dr. Oppenheimer testified without objection about Martha’s blood pressure of 180/120 in June 1989 and a urinalysis at that time that showed protein. Counsel then asked Dr. Oppenheimer whether any of the blood pressures he saw during Taylor’s antenatal care were of such severity that protein in the urine might be expected. When objection was taken, this question was withdrawn. Dr. Oppenheimer was then taken to the available urinalyses and asked to opine as to the likelihood of false negatives, again exploring the reliability of such testing against the 24-hour urinalysis. The appellants’ counsel again objected that this was not in his report, and, consistent with the earlier ruling, the trial judge permitted Dr. Oppenheimer to continue. When objection was taken to the inclusion in counsel’s question of reference to the post-delivery urine test (showing no protein in the urine), counsel rephrased the question to refer only to the pre-delivery urinalyses. Ultimately, Dr. Oppenheimer was asked, “What’s your opinion as to whether there was any abnormal protein during this pregnancy?” He responded, “I think on the basis of those two tests, it’s extremely unlikely”.
62In my view, there was no error by the trial judge in relation to the permitted scope of Dr. Oppenheimer’s evidence respecting protein in Martha’s urine. The principal objection was to Dr. Oppenheimer testifying about the reliability of the dip-stick urine tests performed by Dr. Laine as compared with a 24-hour urinalysis. Dr. Davies’ evidence suggested that a 24-hour urine test might have shown protein in Martha’s urine. It was a proper exercise of the trial judge’s discretion, having permitted such evidence to be led by the appellants, to allow Dr. Oppenheimer to express his own opinion based on the available urinalyses, whether it was likely Martha had protein in her urine during the pregnancy. In essence he was testifying about the reliability of the tests that were administered as opposed to the 24-hour urinalysis that Dr. Davies contended should have been performed. The evidence of Dr. Oppenheimer with respect to the inferences to be drawn from the available urinalyses was not outside the scope of his expertise and was relevant to the trial judge’s task of assessing all available evidence on the question of whether Martha had pre-eclampsia.
63While the trial judge, at para. 25 of his reasons, referred to the April 13 (post-delivery) urinalysis test result in his summary of Dr. Oppenheimer’s conclusions on this point, this was not a palpable or overriding error. From Dr. Oppenheimer’s testimony, it was clear that he found it “extremely unlikely” that Martha’s urine contained protein during the pregnancy, even without the April 13 reading.
64While I find no error in the trial judge’s consideration of Dr. Oppenheimer’s evidence on the inference to be drawn from the available urinalysis results, I note that, even if such testimony were ignored, the weight of the other evidence at trial does not support the appellants’ contention that Martha had developed pre-eclampsia.
65As already noted, Martha did not complain of ill health at any time during the pregnancy, including the third trimester. None of the expert witnesses characterized her elevated blood pressure as severe. As the trial judge noted, the diastolic blood pressure (the second number) is the most important because it is less subject to fluctuation. Before she was in labour, Martha’s diastolic blood pressure never measured over 90. Her systolic pressure never rose over 150 until March 31, when it was at 160 and was lowered after the administration of Vasotec. Dr. Davies testified that Martha did not develop Homolysis Elevated Liver Enzymes and Low Platelets (HELLP), a severe complication associated with pre-eclampsia, and, without any readings of protein in the urine, he could not affirmatively conclude that Martha had pre-eclampsia. Another of the appellants’ expert witnesses, Dr. Rachlis, testified that Martha’s weight gain was normal, suggesting that there was no edema – another indicator of pre-eclampsia.
66Dr. Laine’s own evidence was that pregnant patients should be tested for proteinuria at every visit, and that this was his normal practice. The only time that Dr. Laine “admitted” that he should have presumed that Martha had pre-eclampsia was when he responded to questions that were premised on the assumption that he had no information about Martha’s blood pressure or urinary protein levels between February 19 and March 26, 1993. In fact, he was unequivocal in stating that he did not suspect that Martha was developing pre-eclampsia during her pregnancy.
67Finally, on this issue, the appellants assert that the trial judge confused the symptoms of eclampsia with pre-eclampsia in para. 92 of his reasons when he stated:
Preeclampsia as explained by Dr. Davies does not appear to have occurred here. It is very serious, some of the effects being seizures, brain hemorrhages, myocardial events, and placental disruption. There is a more severe form called HELLP syndrome, which can cause dysfunction of the liver, a breaking up of blood cells, and a dysfunction of platelets. None of these symptoms were ever exhibited by Martha, who reported a pregnancy without any problems.
68I would not read this paragraph in the way suggested by the appellants. The trial judge was summarizing some of the evidence of Dr. Davies about the hypertensive disorders of pregnancy that he observed “can occur along a spectrum”. He described some of the consequences of severe pre-eclampsia, which could lead to eclampsia or seizures in the mother. The “more severe form” referred to by the trial judge as HELLP syndrome, was described by Dr. Davies as at the end of the spectrum of pre-eclampsia where abnormal liver function, a breaking down of blood vessels and low platelet count could occur. The trial judge concluded that none of these symptoms, that is, symptoms of a severe form of pre-eclampsia, were exhibited by Martha.
69I disagree with the appellants’ assertion that the trial judge found that Martha did not suffer from pre-eclampsia because she did not exhibit all the symptoms along the spectrum of pre-eclampsia and eclampsia. The trial judge did not limit his conclusions with respect to pre-eclampsia to what he stated in para. 92. Indeed, his review of the evidence and conclusions on this issue are contained elsewhere in his decision, at paras. 18 to 26. The reasons make it clear that the trial judge was aware of the indicia of pre-eclampsia that Dr. Laine would have had to be concerned about – elevated blood pressure and protein in the urine and/or edema, and these were the focus of his review on the question of whether Dr. Laine had properly responded to Martha’s hypertension, and whether Martha was pre-eclamptic.
70Accordingly, I would not give effect to this ground of appeal. The appellants have not met their burden of proving that the trial judge made any palpable and overriding error in respect of his conclusions regarding pre-eclampsia.
Issue Two – Standard of Care
71The appellants submit that Dr. Laine breached the standard of care by failing to refer Martha to an obstetrician or to induce Martha a week or two before her actual delivery in response to her elevated blood pressure.
72Specifically, the appellants assert that the trial judge erred in not according weight to Dr. Laine’s own admissions during his evidence at trial that his conduct had fallen below the standard of care.
73Dr. Laine acknowledged that his practice at the time focused on low-risk pregnancies, that Martha was not a low-risk case, and that, when faced with her elevated blood pressure on February 19, 1993, he should have considered referring Martha to an obstetrician. Dr. Laine admitted that he had no experience in dealing with mothers with hypertension, and that travel from Okogi Post to Thunder Bay or Geraldton to see an obstetrician posed no financial or health barriers to Martha. Dr. Laine also admitted that, when faced with Martha’s high blood pressure and a suspicion of pre-eclampsia during the last pre-delivery appointment, he should have erred on the side of delivering the baby. Dr. Laine acknowledged that, by March 31, Martha’s pregnancy was at term and that he did not consider inducing Martha into labour. Dr. Laine admitted that it would have been better to deliver the baby at that time, rather than to prescribe medication such as Vasotec that could have potentially harmed the fetus.
74While the appellants point to these alleged admissions as evidence that Dr. Laine, in his own words, fell below the standard of care, the respondent argues that this evidence must be considered in its proper context. Dr. Laine was testifying many years after the events in question, with little memory of the details and with hindsight. He was clearly his own worst critic. What is important is that the evidence of the other expert witnesses, which was referred to and relied upon by the trial judge, did not support a finding that Dr. Laine was in breach of the standard of care in failing to induce Martha or to refer her to an obstetrician.
75I agree with the respondent’s submissions. The trial judge noted that Dr. Laine was honest and straightforward in his testimony, but had a memory of events from 20 years ago that “was far from sure.” The trial judge also noted that many of the “admissions” of Dr. Laine were in response to hypothetical questions.
76This is evident from the various passages in Dr. Laine’s cross-examination that the appellants focused on during the appeal. Dr. Laine’s purported admissions that he ought to have referred Martha to an obstetrician or induced were premised on the absence of information as to whether there was protein in her urine, to rule out pre-eclampsia. The evidence was however that the urinalyses were performed, even if the results were missing, and that Dr. Laine never considered Martha to have pre-eclampsia. In these circumstances, there was no error in the trial judge’s approach to Dr. Laine’s “admissions”. It would have been an error for the trial judge to have accepted such evidence, out of context, as determinative of the question of whether Dr. Laine breached the standard of care, and to have ignored all of the other evidence.
77Accordingly, there was no error on the part of the trial judge in his treatment of the evidence of Dr. Laine on the question of standard of care. Moreover, his conclusion that Dr. Laine did not breach the standard of care in failing to consult an obstetrician or to induce Martha was well-supported by the evidence.
78Whether consultation with an obstetrician was required depended on the grade of Martha’s pregnancy, based on Taylor’s growth and other risk factors. The trial judge accepted the opinion of all of the experts, except Dr. Davies, that this was a Grade “B” pregnancy and that it was not a breach of the standard of care for Dr. Laine not to have referred Martha to an obstetrician. In any event, there was no evidence that a referral to an obstetrician would have changed the outcome.
79As for induction, the trial judge concluded that the decision to wait rather than to induce was a clinical judgment and did not fall below the standard of care. In this regard he accepted the opinion of Dr. Oppenheimer, and ultimately the concession of the appellants’ expert Dr. Rachlis, that induction was not required. The key considerations were that Taylor’s fetal growth appeared normal and there was no evidence of protein in the urine. The non-stress tests were normal. All of the experts agreed that up to the time of delivery, there were no signs of any problem with the fetus.
80In support of their position that Dr. Laine should have induced Martha in late March or early April, the appellants rely on Dr. Davies’ statement that, had Martha been induced on March 26 or March 31 Taylor could have avoided the complications associated with Martha’s hypertension.
81It is apparent from a review of Dr. Davies’ evidence however that this opinion was tied to his assertion that enalapril was the cause of Taylor’s hypoxia. As such, induction should have occurred rather than the prescription of a risky drug. Again, that theory was rejected by the trial judge and is not argued on appeal.
82For these reasons, I would not give effect to this ground of appeal. The appellants have not demonstrated any palpable and overriding error in the trial judge’s consideration of the evidence and findings with respect to standard of care.
Issue Three – Causation
83The appellants contend that the trial judge erred in failing to find that Martha’s untreated pre-eclampsia or high blood pressure created hypoxia in utero in the hours leading up to delivery, which reduced Taylor’s ability to withstand the stresses of labour. According to the appellants, had Martha been induced, Taylor’s injuries would have been avoided.
84There are two principal arguments here: first, that the trial judge did not properly consider, or misunderstood, this theory of causation after rejecting the “Vasotec theory”, and second, that in arriving at this conclusion, the trial judge erred in his treatment of certain evidence of Dr. Marrin, who testified as an expert witness called by the respondent.
85During his cross-examination, Dr. Marrin was taken through a “differential diagnosis” as to the possible causes of the hypoxic-ischemic event. The appellants contend that it was Dr. Marrin’s opinion that the only possible causes after Vasotec and Atenolol were ruled out, were pre-eclampsia or Martha’s hypertension.
86The appellants rely on this evidence as the foundation for their argument respecting causation, but they assert that it was wrong for the trial judge to accept other evidence of Dr. Marrin, elicited in re-examination, to the effect that Taylor’s injury may have been caused by cord compression or difficult uterine contractions at birth. They argue that the trial judge seized on such comments and ignored the evidence and the appellants’ contention that such complications would have been tolerated by Taylor but for her hypoxia, and instead found that they actually caused her injuries. The appellants submit that a healthy baby would have withstood these normal rigours of labour, but that Taylor was vulnerable to the stresses of childbirth because of the hypoxic environment surrounding her. These conditions decreased the flow of oxygen to the uterus and placenta, reducing Taylor’s ability to withstand the stresses of labour.
87There are a number of difficulties with the appellants’ submissions on this issue. First, an examination of the trial judge’s reasons shows that he did not misconstrue Dr. Marrin’s evidence or reject the appellants’ alternative theory unfairly; rather, as he was required to do, he reviewed the evidence relevant to this theory before concluding that the appellants had not established that Martha’s hypertension caused Taylor’s outcome.
88Second, the appellants’ theory of causation appears to rest on a specific passage from Dr. Marrin’s evidence elicited in cross-examination, and seeks to ignore the other evidence at trial, including that of the appellants’ own expert witnesses. The trial judge addressed that evidence in the context of the other evidence, including Dr. Marrin’s own evidence in re-examination.
89Finally, the evidence at trial did not support the alternative theory of causation advanced by the appellants. The evidence was to the contrary – that Taylor’s outcome was caused by a sudden and acute interruption of oxygen at or during birth. There was no evidence to support the contention that, had Taylor been delivered early, this unfortunate event, which all the experts agreed was not foreseeable based on the progress of Martha’s pregnancy, would have been avoided.
90The trial judge gave careful consideration to the “pre-eclampsia or hypertension” theory of causation. At the outset of his analysis he noted that there were two theories of causation at trial: the “Vasotec theory” and the theory that the “but for” cause of Taylor’s injury was Martha’s hypertension in the third trimester. He observed that this second theory had its roots in the evidence of Dr. Marrin, who, in cross-examination, provided a “differential diagnosis” in which he ruled out Atenolol and Vasotec as contributing to the hypoxic-ischemic event, and stated that the only two remaining causes were pre-eclampsia and a gradual increase in maternal blood pressure.
91The trial judge noted, correctly in my view, that the hypertension causation argument was a difficult argument to make, as the appellants’ evidence on causation was all directed at enalapril. Indeed, Dr. Belik excluded Martha’s high blood pressure as a significant factor affecting the fetus and Dr. Davies indicated that Martha’s hypertension, without the addition of enalapril, would have been unlikely to cause such an outcome. Each of these experts implicated Vasotec as the “but for” cause, with Dr. Rieder expressing the opinion that Vasotec had caused hypotension in Taylor that made her unable to withstand the normal rigours of labour and birth.
92The trial judge reviewed the relevant evidence. First, he had already concluded that Martha did not have pre-eclampsia, based on his acceptance that it was unlikely that Martha had a protein problem during the pregnancy and the absence of other symptoms. With respect to whether Martha’s hypertension was a cause, the trial judge observed that Martha’s blood pressure in the third trimester suggested only “mild” hypertension. As for its impact, he referred to the fact that the appellants’ expert witness Dr. Belik, when commenting on Dr. Marrin’s report, said that there may have been some placental insufficiency, but certainly not enough to hinder fetal growth. (Placental insufficiency would be an indicator of reduced oxygen to the fetus.) The trial judge also recalled Dr. Davies’ evidence that, if a hypoxic (decrease in oxygen) situation was occurring, it should show up on the fetal heart monitor strip, much of the time, as variations on the strip, and that the March 29 strip did not show such variations. The four ultrasounds taken throughout the pregnancy were reassuring, as were the fetal heart monitors, all suggesting that there was no cause for concern.
93I pause here to observe that the trial judge was referring to evidence that was inconsistent with the appellants’ theory that Martha’s hypertension had created a reduced oxygen environment or hypoxia in utero,that in turn reduced Taylor’s tolerance for labour and delivery.
94The trial judge concluded instead that there had been a sudden interruption of oxygen just at the time of Taylor’s birth. He noted: “For the most part all witnesses agree that at some time during the few minutes between the end of the fetal heart monitor strip and Taylor’s birth an event occurred which led to her injury. We are not sure what that event was”: at para. 99.
95The trial judge then referred to Dr. Marrin’s re-examination, when he was asked specifically what would have accounted for the drop in oxygenation in the minutes before Taylor’s birth. Dr. Marrin responded:
Well, the - if I understand the question correctly, what will account for the drop in oxygenation is some - something fairly acute has happened during the course of the labour which has interrupted oxygen delivery to the baby. We don't really know what that something was, but the fall in oxygen delivery would have occurred - could have occurred quite rapidly reaching that inflection point where there is now a - a steady decline toward decompensation. I'm not sure if I understood the question correctly…
96Dr. Marrin was asked about the potential reasons for the drop in oxygenation. He stated:
Well they will include compression - compression of the blood vessels feeding the - the mother's blood vessels going to the uterus and supplying the placenta so that with each uterine contraction there will be some compression of those vessels and at least a transient or intermittent interruption of oxygen delivery to the placenta and therefore to the fetus. Another possibility is the next probably likely possibility, given that common things are common, is that there was some at least intermittent or at least partial compression of the umbilical cord such that the oxygen that was coming from the mother's body getting across the uterus to the placenta was not able to be delivered through the umbilical cord from the placenta to the baby. Those would be the two common scenarios for an intrapartum kind of hypoxic ischemic process. We talked about other more catastrophic things that may occur such as abruption of the placenta, but that we - we don't have evidence that that occurred here.
97With respect to timing, Dr. Marrin testified:
… I wonder if it may be important to clarify that this kind of decompensation could not occur, absent some very sudden change in oxygen delivery to the fetus, and have that child survive for more than a couple of hours in that kind of an environment. So, all of the discussion that we have had about whether or not there was placental sufficiency, to what degree there may have been interruption of sufficient oxygen delivery to the fetus, and to what extent Taylor may have shown that she was trying to adapt to that environment, those things would not by themselves create the scenario that we have outlined on the graph here. There has to have been a new, very substantial interruption of oxygen delivery to result in this, and the pattern that we discussed this morning illustrated here would likely be evolving over less than an hour, something in that range.
98The trial judge concluded that the appellants had failed to prove that Martha’s hypertension or pre-eclampsia were the cause of Taylor’s injuries.
99In support of their causation argument, the appellants rely almost entirely on certain evidence of Dr. Marrin elicited in cross-examination, coupled with the testimony of certain witnesses (Dr. Belik and Dr. Davies) that, if Martha had been induced prior to March 31, the outcome would have been different.
100Dr. Marrin was taken through a “differential diagnosis” in which he identified pre-eclampsia or Martha’s hypertension as the remaining potential causes, after Vasotec and Atenolol were eliminated. It is apparent from the record however that Dr. Marrin’s evidence was carefully elicited, and somewhat circumscribed by the questions he was asked. The evidence must be considered in context. At one point in responding to the “differential diagnosis” line of questions, Dr. Marrin stated that he would “add in umbilical cord compression during the labour as a cause of hypoxia ischemia leading to brain injury”. Counsel however stated that there was no obstetrical evidence about that, and asked Dr. Marrin to focus on elements of the differential diagnosis for which there was “clear evidence that those things existed”. It is apparent from this discussion that Dr. Marrin was not purporting to offer a definitive opinion. In his re-examination he provided a more detailed explanation of what he believed had precipitated the sudden hypoxic-ischemic event leading to Taylor’s outcome.
101Dr. Marrin’s opinion that there must have been a sudden and acute event that interrupted oxygen delivery to the fetus was consistent with that expressed by the other expert witnesses at trial. This was not, as suggested by the appellants, a “new theory” raised only during Dr. Marrin’s re-examination. Both Dr. Rieder and Dr. Belik testified that an acute and sudden interruption in oxygen occurred just before birth. Dr. Belik testified that the stress of labour caused the crash in utero before delivery (albeit he opined that Vasotec impaired Taylor’s ability to respond), and he acknowledged that other stresses at birth such as the umbilical cord around the neck, very forceful labour, or the baby’s position squeezing the umbilical cord could have caused the same situation. Dr. Rieder testified that the stress of birth and labour was the “precipitating” factor (although he also was of the view that enalapril prevented Taylor from responding well due to its effects on her).
102In any event, it is incorrect to say that the trial judge “accepted” Dr. Marrin’s opinion about the possible causes of the sudden reduction in oxygen, as the cause in fact. It is more accurate to say that the trial judge’s conclusion was as he stated in para. 99, that “we are not sure what that event was.” His conclusion was that “the [appellants] had failed to prove that Martha’s hypertension or pre-eclampsia was the cause of Taylor’s injuries”: at para. 101.
103Ultimately, none of the experts at trial suggested that Martha’s elevated blood pressure was responsible for the harm to Taylor. Dr. Oppenheimer testified that her blood pressure was consistent with “mild” hypertension, which characterization was accepted by the trial judge. Dr. Rachlis and Dr. Davies conceded that Martha’s blood pressure readings were not dramatically high and that none of her readings qualified as “severe hypertension”, and Drs. Belik and Davies confirmed that Martha’s hypertension did not have any material effect on Taylor’s level of oxygenation.
104One final point here. The appellants argue that causation was made out because of the testimony of certain witnesses (Dr. Belik and Dr. Davies) that, if Martha had been induced prior to March 31, the outcome would have been different. As we have seen however these conclusions were tied to their opinion that Vasotec caused hypotension in Taylor, and that Dr. Laine, instead of prescribing this drug, ought to have induced Martha in response to her elevated blood pressure.
105In the end, the appellants have not established any error in the trial judge’s conclusions with respect to causation, and in particular their theory of causation based on Martha’s hypertension. As such, I would not give effect to this ground of appeal.
Issue Four – Informed Consent
106The trial judge concluded that Dr. Laine was not obliged to inform Martha of the risks associated with Vasotec or the alternative of induction. Dr. Laine was not aware of Vasotec’s pregnancy risks when he prescribed the drug, and he had decided, through a proper exercise of clinical judgment, that induction was not indicated. As such, it made no sense for him to inform Martha of the risks or alternatives. And, even if Dr. Laine had presented warnings and alternatives to Martha, the trial judge found that Martha would have likely followed Dr. Laine’s advice, based on the history of their relationship.
107On the issue of informed consent, the appellants submit that the trial judge erred in concluding that Dr. Laine did not need to warn Martha of Vasotec’s risks or of its alternatives, such as the option of induction. The appellants submit that a reasonable person, informed of Vasotec’s risks and alternatives, would have opted for induction. However, they contend, it was impossible to obtain Martha’s informed consent because of Dr. Laine’s lack of knowledge of Vasotec’s risks. Again, they point to Dr. Laine’s acknowledgment that he should have induced rather than prescribed Vasotec to Martha.
108In my view, the appellants cannot succeed on this ground of appeal. The question here is whether Dr. Laine was required under the standard of care in 1993 to have informed himself of Vasotec’s risks and to have disclosed those risks to Martha, and if so whether that would likely have changed the outcome. As the evidence at trial showed, Dr. Laine was not in fact aware of any existing or developing concerns with Vasotec when he prescribed a low dose of the drug to Martha, and knowledge regarding enalapril was evolving at the time. As for the option of induction, the standard of care did not require an induction. Dr. Laine did not consider induction because the results of the investigations and surveillance during the pregnancy were normal and reassuring. Induction had its own risks, and at the time could not be done at the Geraldton District Hospital. There was no error in the conclusion that the standard of care did not require Dr. Laine to offer Martha the option of being induced into labour, and there was no evidence in any event that, had the option of induction been presented, the injury to Taylor would have been avoided.
109Accordingly, I would not give effect to this ground of appeal.
CONCLUSION
110For all of these reasons I would dismiss the appeal. I would make no order as to costs, as the parties indicated that they have resolved the question of costs between themselves.
Released: “KMvR” SEP 19, 2014 “K. van Rensburg J.A.”
“I agree E.E. Gillese J.A.”
“I agree C.W. Hourigan J.A.”
