COURT OF APPEAL FOR ONTARIO
Doherty, Miller and Sossin JJ.A.
BETWEEN
Sabrin Farej, an infant under the age of eighteen years by her Litigation Guardian Amara Idris, Amara Idris, personally and in her capacity as Estate Trustee of the Estate of Romodan Farej
Plaintiffs
(Appellants/Respondents by Cross-Appeal)
and
George Fraser Fellows
Defendant
(Respondent/Appellant by Cross-Appeal)
AND BETWEEN
Murad Farej and Muntasir Farej, a minor by his Litigation Guardian Murad Farej
Plaintiffs
(Appellants/Respondents by Cross-Appeal)
and
George Fraser Fellows
Defendant
(Respondent/Appellant by Cross-Appeal)
John J. Adair, Jordan V. Katz, Duncan Embury, Daniela M. Pacheco and Brandyn Di Domenico, for the appellants
Peter W. Kryworuk and Jacob R.W. Damstra, for the respondent
Heard: October 27 and 28, 2021 by videoconference
On appeal from the judgment of Justice Kelly A. Gorman of the Superior Court of Justice, dated November 23, 2020, and reported at 2020 ONSC 3732, dismissing the action.
I
overview
1This is a truly tragic case. Sabrin Farej (“Sabrin”) was born on June 3, 2007 in London, Ontario. She was profoundly disabled at birth and continues to be so. Sabrin cannot walk, talk or feed herself. Sabrin requires 24-hour a day care, is totally dependent on her family and caregivers, and will be for the rest of her life. Sabrin’s life expectancy is about 38 years.
2Sabrin suffered acute near total oxygen deprivation for about 25 to 30 minutes before her birth. The oxygen deprivation led to severe brain damage and damage to other vital organs, leaving Sabrin with multiple devastating, permanent disabilities.
3Sabrin, her parents, Amara Idris and Romodan Farej, and her two brothers sued Ms. Idris’ obstetrician, Dr. George Fraser Fellows, alleging he was negligent during Sabrin’s delivery.
4The evidence at trial focused primarily on the 26 minutes between Dr. Fellows’ arrival in the delivery room at 11:01 p.m. and Sabrin’s delivery at 11:27 p.m. Dr. Fellows faced an obstetrical emergency when he walked into the delivery room. Sabrin was not getting an adequate oxygen supply. Dr. Fellows believed he had to deliver Sabrin as quickly as was safely possible. Dr. Fellows elected to proceed with a vaginal delivery. After two unsuccessful attempts to deliver Sabrin, Dr. Fellows was able to deliver her on his third attempt, some 26 minutes after he entered the delivery room.
5The plaintiffs alleged that Dr. Fellows fell below the applicable standard of care in several respects. Their main argument focused on Dr. Fellows’ decision to deliver Sabrin vaginally with the assistance of forceps. The plaintiffs argued that the applicable standard of care required Dr. Fellows to proceed immediately with an emergency C-section at 11:05 p.m., by which time he had assessed the situation and observed blood in Ms. Idris’ amniotic fluid after he ruptured her membranes. The plaintiffs maintained that by this time, Dr. Fellows knew there was reason to suspect that Ms. Idris had suffered a uterine rupture, a life-threatening complication. He also knew Sabrin’s head was above her mother’s pelvic bone. Both the uterine rupture and the position of the baby’s head contraindicated a vaginal delivery.
6The plaintiffs argued that, had Dr. Fellows proceeded immediately with an emergency C-section, as he should have, Sabrin would have been delivered within 8 to 10 minutes, approximately 12 to 14 minutes before she was actually delivered. The plaintiffs submitted that this delay caused or materially contributed to the catastrophic injuries Sabrin had when she was born.
7In addition to arguing that Dr. Fellows should have proceeded immediately with an emergency Caesarean section, the plaintiffs argued that after Dr. Fellows decided to proceed with a vaginal delivery, he made a series of decisions that fell below the applicable standard of care. Those errors, considered individually or cumulatively, caused or materially contributed to Sabrin’s injuries.
8The trial judge dismissed the action. She found against the plaintiffs on all three issues relevant to liability. First, she found the plaintiffs had failed to establish any breach of the applicable standard of care by Dr. Fellows. Second, she found no causal link between any of Dr. Fellows’ actions and Sabrin’s injuries. Third, she rejected the argument that Dr. Fellows had failed to obtain the required informed consent before proceeding with a vaginal delivery using forceps.
9Although the trial judge found no liability, she proceeded to consider damages. Her damages assessment largely adopted the position advanced by the plaintiffs.
10Sabrin, her mother, her brothers, and her father’s estate (her father unfortunately died before trial) appeal from the dismissal of the action.1 They accept that, on the evidence, the trial judge could have dismissed the action. They submit, however, that the reasons are legally inadequate in that they do not permit meaningful appellate review. The appellants advance several arguments which they assert demonstrate the inadequacy of the reasons on most of the crucial issues at trial.
11With respect to remedy, the appellants submit that if this court concludes the reasons are inadequate and the judgment must be set aside, this court is not the appropriate forum in which to examine the complicated and conflicting evidence and engage in the extensive fact-finding and credibility assessments necessary to resolve the many contested issues. Counsel submits that the interests of justice require that this court order a new trial on liability.
12The respondent describes the appellants’ submissions as an attempt to relitigate the credibility assessments and findings of fact made by the trial judge. The respondent submits that a review of the reasons shows the trial judge had a firm grasp of the evidentiary record, an understanding of the applicable legal principles, and an appreciation of the issues to be resolved. The respondent further contends that the bases upon which the trial judge decided the material issues are clear when the reasons are read in the context of the evidence, and the detailed written and oral submissions made at trial.
13Alternatively, the respondent submits that, if the appeal is allowed and a new trial ordered, the new trial should be on all issues, including damage-related issues. The respondent points out that only some of the damage-related issues were addressed by the trial judge. The respondent further contends that if Dr. Fellows is found liable on a retrial, the findings of facts relevant to liability may be relevant to the assessment of damages. Only the trial judge at the retrial can properly make that damage assessment.
14The respondent also brings a cross-appeal, challenging aspects of the trial judge’s damages assessment. This appeal is contingent upon this court both ordering a new trial on liability and rejecting the respondent’s submission that if there is to be a new trial, it should be on all issues, including damages.
15The respondent submits, that if this court reaches the contingent cross-appeal, the trial judge made two very significant errors, both of which require a recalibration of the damages as assessed by her.
II
my conclusion
16The evidence at trial was lengthy and complex. The trial judge had to consider a series of difficult factual issues. Her reasons are, in many respects, comprehensive and clear. The appellants contend, however, that the reasons are inadequate in respect of several issues that were central to the appellants’ case on liability.
17For the reasons that follow, I am satisfied that two of the arguments advanced by the appellants should succeed. The trial judge’s reasons with respect to causation and her reasons dealing with one of the several allegations of negligence are inadequate. On these two issues, the reasons do not reveal critical findings that had to be made, and do not explain how the trial judge arrived at some of the conclusions she did reach. This court cannot meaningfully review her decision on those two issues. The inadequacies in the reasons, taken together, require the setting aside of the judgment dismissing the action. I agree with the appellants that, in the circumstances, a new trial is the appropriate remedy. I also agree with the respondent that the new trial should be on all issues relating to liability and damages.
18In the reasons that follow, I explain why I conclude the trial judge’s reasons are fatally inadequate in respect of the two issues identified above. Given my conclusion that those errors require a new trial, it is unnecessary to deal with all of the other alleged inadequacies identified by the appellants. I will, however, examine what I see as the other main arguments advanced by the appellants. In my view, none of those arguments should succeed.
III
the facts
19This is a fact-intensive appeal. Both counsel, in their written and oral submissions, have gone through the evidentiary record in considerable detail. Different parts of the evidence are germane to different arguments advanced by the appellants. I will leave most of the details of the evidence until I address those specific arguments. What follows is a summary intended to provide the essential narrative and context for the arguments advanced on appeal.
20Ms. Idris and her husband, Romodan Farej, immigrated to Canada in 1997. They had a son Murad, born in 1999, and a second son, Muntasir, born in June 2005. Dr. Fellows provided pre- and post-natal care in both pregnancies, but he was not involved in either delivery. By all accounts, Ms. Idris and her husband got along well with Dr. Fellows and they developed a good relationship over the years. Ms. Idris was happy with the care he provided.
21When Ms. Idris was pregnant with her first child, Murad, she told Dr. Fellows she would prefer to deliver vaginally. It turned out, however, that Murad was in a breech position and a Caesarean section was necessary. There were no problems with the delivery or the postnatal care.
22When Ms. Idris was pregnant with Muntasir, she told Dr. Fellows she wanted to deliver Muntasir vaginally, even though her first baby was born by Caesarean section. Dr. Fellows explained to her that vaginal birth after a Caesarean (“VBAC”) was possible. Ms. Idris eventually gave birth vaginally, although the attending obstetrician had recommended a Caesarean section when Ms. Idris’ labour became prolonged. Ms. Idris, however, persisted and her baby was born vaginally. There were no problems.
23Just as with Ms. Idris’ two earlier pregnancies, Dr. Fellows provided prenatal care to Ms. Idris when she was pregnant with Sabrin in 2006. They discussed how Ms. Idris would give birth. They agreed they would make the decision based on how things were going in the hospital at the time of the birth. The pregnancy was uneventful and Dr. Fellows had no concerns about Ms. Idris’ or the baby’s wellbeing during the pregnancy.
24On June 3, 2007, Ms. Idris went into labour with Sabrin. She arrived at the hospital at about 7:30 p.m. with her husband and a friend. Ms. Idris was told Dr. Fellows was in the hospital and would deliver the baby. The nursing staff immediately put a fetal heart monitor (“FHM”) in place.
25According to Ms. Idris, she began to experience considerable pain at around 9:30 p.m. The pain continued even after an epidural. She asked to see Dr. Fellows but was told by the nursing staff that it was not time to call him.
26By 10:24 p.m., Ms. Idris was fully dilated. As of approximately 10:45 p.m., the FHM had been showing variable decelerations in Sabrin’s heart rate for close to an hour. At 10:55 p.m., her heart rate dropped precipitously and remained in a prolonged deceleration, indicating that blood flow to Sabrin’s brain had essentially stopped.
27The attending nurse paged Dr. Fellows at 10:55 p.m. He was delivering another baby. Dr. Fellows arrived at Ms. Idris’ bedside at 11:01 p.m. He quickly determined that Sabrin was not getting an adequate oxygen supply and was in severe distress. At 11:04 p.m., Sabrin’s heart rate was bradycardic, meaning it was at or below 60 beats a minute. Bradycardia was a clear sign to Dr. Fellows that Sabrin was not getting oxygen to her brain. Dr. Fellows knew he was facing an obstetrical emergency and had to take immediate action to deliver Sabrin as quickly as safely possible.
28Dr. Fellows performed a vaginal and abdominal examination of Ms. Idris. He could see the position of the baby’s head. Dr. Fellows realized, that because of Sabrin’s positioning, her head would have to be turned if she was delivered vaginally.
29At 11:05 p.m., Dr. Fellows artificially ruptured the membranes to facilitate delivery. There was blood in the amniotic fluid. The presence of blood in the amniotic fluid gave Dr. Fellows added concerns about the wellbeing of both Sabrin and her mother. Dr. Fellows suspected a placental abruption, meaning the placenta had detached from the uterus, thereby separating Sabrin from her source of oxygen. Dr. Fellows’ differential diagnosis included the possibility that Ms. Idris’ uterus had ruptured. A uterine rupture can result in quick and substantial blood loss by the mother and is a life-threatening complication for both the mother and the baby. The two conditions share many symptoms. Both conditions are serious and must be addressed immediately. A uterine rupture is more serious, but a placental abruption is more common.
30Dr. Fellows testified that, after he ruptured the membranes, he believed he was dealing with a placental abruption, but was alive to the possibility of a uterine rupture. Dr. Fellows indicated his immediate concern was Sabrin’s wellbeing. She had to be delivered immediately. Ms. Idris was stable and alert.
31Dr. Fellows decided that a vaginal delivery would be the fastest and safest way to deliver Sabrin. In his evidence, Dr. Fellows outlined several considerations that led him to that conclusion, including Ms. Idris’ successful prior vaginal delivery of her second son, who was a larger baby than Sabrin. Dr. Fellows told Ms. Idris to push, but quickly concluded that pushing alone would not deliver Sabrin. Dr. Fellows decided to use forceps to deliver Sabrin.
32Using Tucker-McLean forceps, Dr. Fellows began to move the baby down the birth canal. To turn Sabrin’s head so she would be in a proper position for delivery, Dr. Fellows had to release the forceps and then reapply them. He anticipated that Sabrin would remain near the crowning position when he released the forceps. Instead, when he released the forceps, there was a large gush of blood and Sabrin retreated back up the vaginal cavity. This occurred at about 11:07 p.m. The blood made Dr. Fellows more concerned about the possibility of a uterine rupture.
33Dr. Fellows decided to make a second attempt to deliver Sabrin using forceps. This time, he used Kielland forceps which would allow him to deliver Sabrin without releasing the forceps during delivery. Dr. Fellows applied the forceps and once again the baby began to descend the birth canal. However, as Sabrin approached the crowning position, Dr. Fellows became concerned that if he completed the delivery with the Kielland forceps, the configuration of those forceps would cause considerable damage to Ms. Idris’ perineum. Dr. Fellows decided to remove the Kielland forceps, believing that Ms. Idris could push the baby out. When he released the forceps, Sabrin again retreated back into the vaginal cavity.2 Dr. Fellows now suspected a uterine rupture.
34Dr. Fellows was cross-examined as to how long his efforts to remove Sabrin with the Kielland forceps took. As I read his evidence, Dr. Fellows agreed his efforts with the Kielland forceps took about five minutes.
35Dr. Fellows made a third attempt to deliver Sabrin vaginally with forceps. This time, using the Tucker-McLean forceps, and after performing an episiotomy, which involves cutting the perineum, Dr. Fellows successfully manoeuvred Sabrin to a crowning position. He released the forceps and told Ms. Idris to push. Sabrin arrived about 30 seconds later at 11:27 p.m.
36In argument, counsel for the appellants submitted that Dr. Fellows agreed the third and ultimately successful attempt to deliver Sabrin took about 15 minutes. Counsel for the respondent submitted that, while the appellants suggested to Dr. Fellows that the third effort to deliver Sabrin took 15 minutes, he did not agree with that suggestion.
37Counsel for Dr. Fellows’ reading of the evidence may be accurate. Some of the times relied on by the appellants in their timeline for the delivery are clearly approximations. They are, however, estimates made within an undoubtedly very narrow timeframe. Taking into account the overall timeframe of 26 minutes from Dr. Fellows’ arrival in the delivery room to the delivery of Sabrin, and the agreed upon times at which other events occurred, it seems reasonable to conclude the third and successful attempt to deliver Sabrin took something in the order of 15 minutes.
38After Dr. Fellows delivered Sabrin, he took Ms. Idris to the operating room and performed a laparotomy. Dr. Fellows located a laceration on the back of her uterus. Ms. Idris had lost a significant amount of blood. Dr. Fellows successfully repaired and reattached the lower uterine section of the uterus to the walls of the vagina. Ms. Idris stayed in the hospital for seven or eight days, but recovered without further incident.
39Ms. Idris was told within a few days that Sabrin had suffered a catastrophic brain injury and would never be able to eat, walk or talk. Ms. Idris had a brief conversation with Dr. Fellows about a month after the delivery. He told her everything was fine until the last minutes.
40Dr. Fellows testified that he remains convinced, even with the benefit of hindsight, that he chose the proper mode of delivery and that he was correct in attempting to continue to effect the delivery with forceps even after two unsuccessful attempts. In Dr. Fellows’ opinion, had he abandoned vaginal delivery with the use of forceps in favour of a C-section, he “would be dealing with a dead baby”.
IV
were the reasons inadequate?
A. The Applicable Legal Principles
41Reasons for judgment fully and clearly explaining both the result and the reasons for the result serve several important purposes. Reasons for judgment improve the transparency, accountability and reliability of decision-making, thereby enhancing public confidence in the administration of justice: R. v. Sheppard, 2002 SCC 26, [2002] 1 S. C.R. 869, at para. 5; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 98; R. v. G.F., 2021 SCC 20,459 D.L.R. (4th) 375, at para. 68; Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388, [2009] I.L.R. I-4839, at paras. 95-99; Dovbush v. Mouzitchka, 2016 ONCA 381, 131 O.R. (3d) 474, at paras. 20-23.
42In the context of the appeal process, however, the focus is not on the overall quality of the reasons given at trial, or the extent to which those reasons serve all of the purposes outlined above. Instead, the focus is on whether the reasons allow the appeal court to engage in a meaningful review of the substantive merits of the decision under appeal. As Binnie J., with his usual clarity, explained in Sheppard, at para. 28:
It is neither necessary nor appropriate to limit circumstances in which an appellate court may consider itself unable to exercise appellate review in a meaningful way. The mandate of the appellate court is to determine the correctness of the trial decision, and a functional test requires that the trial judge’s reasons be sufficient for that purpose. The appeal court itself is in the best position to make that determination. The threshold is clearly reached, as here, where the appeal court considers itself unable to determine whether the decision is vitiated by error. Relevant factors in this case are that (i) there are significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment, (ii) the confused and contradictory evidence relates to a key issue on the appeal, and (iii) the record does not otherwise explain the trial judge’s decision in a satisfactory manner. Other cases, of course, will present different factors. The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed. [Emphasis added.]
43A submission that trial reasons are legally inadequate does not necessarily attack the sufficiency of the evidence, the reasonableness of the factual findings, or allege legal errors in the trial judge’s analysis. Rather, the submission that reasons are inadequate amounts to a claim that proper substantive review of the trial judge’s reasons is foreclosed by the inadequacy of those reasons. In other words, counsel cannot effectively make arguments about the sufficiency of the evidence, the reasonableness of the fact finding, or alleged errors in law because the reasons of the trial judge do not provide the window into the trial judge’s conclusions and reasoning process necessary to make those arguments.
44The appellants have a statutory right of appeal from the dismissal of their action. If the appellants are correct and the reasons do not reveal the factual or legal basis for the trial judge’s conclusions, the appellants are effectively denied the exercise of their statutory right of appeal. That denial amounts to both an error in law and can result in a miscarriage of justice.
45There is now a deep jurisprudence addressing the sufficiency of reasons as a ground of appeal. The cases repeatedly make two important points. First, the adequacy of reasons must be determined functionally. Do the reasons permit meaningful appellate review? If so, an argument that the reasons are inadequate fails, despite any shortcomings in the reasons. Second, the determination of the adequacy of the reasons is contextual. Context includes the issues raised at trial, the evidence adduced, and the arguments made before the trial judge. For example, if a review of the evidence and arguments indicates that a certain issue played a minor role at trial, the reasons of the trial judge cannot be said to be inadequate because they reflect the minor role assigned to the issue by the parties at trial: Sheppard, at paras. 33, 42 and 46; R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at p. 525; Dovbush, at para. 23.
46In G.F., the Supreme Court of Canada recently cautioned against appellate courts reviewing trial judge’s reasons with an overly critical eye, especially in cases turning on credibility assessments: G.F., at paras. 74-76. The majority said, at para. 79:
To succeed on appeal, the appellant’s burden is to demonstrate either error or the frustration of appellate review. Neither are demonstrated by merely pointing to ambiguous aspects of the trial decision. Where all that can be said is a trial judge may or might have erred, the appellant has not discharged their burden to show actual error or the frustration of appellate review. Where ambiguities in a trial judge’s reasons are open to multiple interpretations, those that are consistent with the presumption of correct application must be preferred over those that suggest error. It is only where ambiguities, in the context of the record as a whole, render the path taken by the trial judge unintelligible that appellate review is frustrated. An appeal court must be rigorous in its assessment, looking to the problematic reasons in the context of the record as a whole and determining whether or not the trial judge erred or appellate review was frustrated. It is not enough to say that a trial judge’s reasons are ambiguous – the appeal court must determine the extent and significance of the ambiguity. [Emphasis added.] [Citations omitted.]
47The caution sounded in G.F.applies in this appeal. The position of Sabrin’s head when Dr. Fellows decided to proceed with a forceps delivery was one of the main contentious factual issues at trial. There was arguably a dramatic inconsistency between Dr. Fellows’ description of the position of the head in his operative note and Dr. Fellows’ testimony describing the position of Sabrin’s head. The appellants vigorously challenged Dr. Fellows’ credibility, claiming he fabricated evidence to avoid the implications of the operative note.
48The trial judge clearly believed Dr. Fellows’ evidence relating to the position of Sabrin’s head. The appellants argue she did not adequately explain how she came to that conclusion. In considering that argument, this court cannot engage in its own assessment of Dr. Fellows’ credibility under the guise of a purported review of the adequacy of the trial judge’s reasons for believing Dr. Fellows: R. v. Ramos, 2020 MBCA 111, at para. 53, aff’d 2021 SCC 15, 457 D.L.R. (4th) 369.
49While G.F. sounds a clear cautionary note to appellate courts considering arguments based on allegations of the inadequacy of trial reasons, the case does not go so far as to suggest that if reasons that suffer from ambiguity can possibly be read so as to remove the ambiguity, the reasons are legally adequate. If it is not possible to resolve the ambiguity by determining which of multiple possible meanings the trial judge actually intended, the reasons will be incapable of effective appellate review. Ambiguity is of course only one sort of error that can make reasons insufficient for the purpose of appellate review. The appellants in this appeal rely more on the absence of findings or explanations for the findings than they do on any ambiguities in the findings.
50Because the adequacy of trial reasons is assessed functionally and depends on the ability of the appellate court to effectively review the correctness of the decision arrived at by the trial court, the appellate court is entitled to look at the record as a whole when determining the trial judge’s findings and the reasons for those findings are adequately laid out. For example, in reasons for judgment, the trial judge may find the evidence of a certain witness incredible but say very little about why that finding was made. However, a review by the appellate court of the testimony of that witness may make the reasons for the trial judge’s assessment crystal clear. In that circumstance, the appellate court can, by reference to the testimony, effectively review the trial judge’s credibility assessment. Consequently, the reasons do not prevent meaningful appellate review and are not legally inadequate: G.F., at para. 70; Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520, 389 D.L.R. (4th) 711, at paras. 30-32.
B. The issues at trial
51There were three broad issues to be resolved at trial. The trial judge set them out early in her reasons (paras. 11-13):
Did Dr. Fellows have the informed consent of Amara to proceed in the fashion in which he did? [informed consent]
Did Dr. Fellows fall below the reasonable standard of care of an obstetrician/gynaecologist? In particular, did his failure to immediately perform an emergency Caesarean section fall below the standard of care? [standard of care]
If Dr. Fellows was negligent, did his acts or omissions cause or materially contribute to the injuries suffered by Sabrin Farej? [causation]
52Setting aside the informed consent issue, to succeed at trial, the appellants had to establish both causation and a breach of the standard of care. The trial judge found against the appellants on both issues. To succeed on appeal based on arguments alleging the reasons to be inadequate, the appellants must show the reasons are inadequate with respect to causation and at least one of the standard of care issues. If the causation reasons do allow for meaningful appellate review of the causation finding, there would be no reason to interfere with the trial judge’s finding the appellants failed to prove causation and the appeal would be dismissed, regardless of the adequacy of the reasons relating to standard of care issues. Similarly, if the reasons relating to the standard of care issues allow for meaningful appellate review, the trial judge’s finding there was no breach of the standard of care would stand, and the appeal would be dismissed even if the causation reasons were inadequate.
53Each of the three issues raised a number of sub-issues, most of which turned on findings of fact. The appellants submit the trial judge failed to make necessary findings and failed to adequately explain those findings she did make. I will examine those arguments by considering the reasons in the following order:
The causation reasons;
The standard of care reasons; and
The informed consent reasons.
C. are the reasons on causation adequate?
(i) The Evidence
54When Sabrin was born, she was suffering from acute near total asphyxia (oxygen deprivation) brought on by a loss of blood flow to her brain prior to delivery. In all likelihood, Ms. Idris’ uterine rupture precipitated Sabrin’s acute near total asphyxia.
55Sabrin’s oxygen deprivation lasted for about 25 to 30 minutes before her delivery. At some point in time during that timeframe, Sabrin suffered permanent brain damage as a result of the ongoing oxygen deprivation.
56Oxygen deprivation as a result of acute asphyxia does not lead immediately, or inevitably, to permanent brain damage. Oxygen deprivation will, however, cause permanent brain damage and ultimately death if the deprivation goes on for a sufficiently long time period.
57The experts agreed that Sabrin’s acute near total asphyxia began between 10:55 p.m., when Sabrin’s heart rate dropped precipitously, and 11:04 p.m., when the FHM showed she was bradycardic. None of the experts could say exactly when the acute near total asphyxia began, or when it first caused permanent brain damage. They all agreed the length of time required before permanent brain damage would occur varied and depended on a number of variables.
58Dr. Oppenheimer, the defence expert, testified that the state of the baby’s oxygen reserves when the acute asphyxia occurred was one of those important variables. Sabrin’s heart rate had decelerated at various times in the hour before Dr. Fellows arrived in the delivery room. Dr. Oppenheimer testified that those decelerations put stress on Sabrin’s oxygen reserves and would have compromised, to some degree, her ability to withstand the acute near total asphyxia that occurred some time between 10:55 p.m. and 11:04 p.m. I do not read the evidence of the appellants’ experts as contradicting this aspect of Dr. Oppenheimer’s evidence.
59The experts, as well as Dr. Fellows, also accepted that, as a general rule, the longer and more severe the oxygen deprivation suffered by the baby, the more extensive and severe the brain injuries and other consequential injuries to the baby are likely to be. The increase in the severity of brain damage is not, however, linear or consistent in the sense that it proceeds at a known or predictable rate, or results in the loss of certain specific brain functions in a given order or at specific points in time.
60The experts agreed that Sabrin’s acute near total asphyxia caused the permanent brain damage which led to her many injuries and disabilities. They gave various estimates as to when Sabrin may have suffered permanent brain damage. The experts made it clear, however, that these were estimates and Sabrin could have suffered permanent brain damage almost at any stage of the asphyxia and certainly before or after the timeframes estimated by the experts.
61Dr. Oppenheimer testified that permanent brain damage could occur as quickly as 10 minutes after the initial event causing the acute asphyxia occurred, or permanent damage could occur significantly later. It was Dr. Oppenheimer’s position that the initial event compromising Sabrin’s oxygen supply occurred as early as 10:55 p.m. and as late as 11:04 p.m. If the initial incident causing the acute asphyxia occurred at 11:04 p.m., Dr. Oppenheimer testified the permanent brain damage could have occurred by 11:14 p.m.
62Dr. Oppenheimer was asked whether Sabrin’s injuries could have been avoided or lessened had Sabrin been delivered by Caesarean section as soon as reasonably possible. He responded:
I think it’s quite unlikely that – that she could have been delivered more quickly and, even if she had been delivered more quickly, I think it’s unlikely her injuries could have been avoided.
63Dr. Shah, the appellants’ expert, agreed that Sabrin’s acute near total asphyxia began some time between 10:55 p.m. and 11:04 p.m. He also agreed that babies have a limited ability to defend against such events and that the defences can be compromised by a history of heart decelerations during the labour.
64Dr. Shah testified that it was his estimate that Sabrin’s permanent brain damage occurred between 20 and 30 minutes after the onset of her acute near total asphyxia (10:55 p.m. – 11:04 p.m.). On this estimate, Sabrin could have suffered permanent brain damage as early as 11:15 p.m. Dr. Shah also testified that he would place the onset of Sabrin’s permanent brain damage nearer the time of her actual birth as had it occurred earlier and closer to the 20-minute mark, he did not believe Sabrin would have been born alive.
65In cross-examination, Dr. Shah agreed that he could not say with any degree of confidence that Sabrin had not suffered a permanent brain injury within a short period of time after Dr. Fellows arrived in the delivery room. Similarly, he could not say with any confidence that Sabrin had not suffered a permanent brain injury even before Dr. Fellows first attempted to deliver Sabrin vaginally using forceps.
(ii) The causation arguments at trial
66There is no suggestion Dr. Fellows did anything, or failed to do anything, that caused Sabrin’s acute near total asphyxia. It would appear that the uterine rupture was the physical cause of her near total asphyxia. In legal terms, the near total asphyxia was a non-tortious cause of Sabrin’s ultimate injuries. She, in all likelihood, was suffering from acute oxygen deprivation before Dr. Fellows arrived in the delivery room at 11:01 p.m.
67The appellants advanced their causation argument at trial through a series of possible scenarios, each based on an alleged act of negligence by Dr. Fellows and a comparison of the time at which the appellants said Sabrin could have been delivered, but for Dr. Fellows’ negligence, with the time Sabrin was actually delivered. The appellants argued that the lost time attributable to Dr. Fellows’ negligence, which ranged from about 15 minutes on most of the scenarios to 30 seconds on one scenario, caused, or at least materially contributed to, the catastrophic injuries Sabrin had when she was born: see Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, at paras. 13-16; Donleavy v. Ultramar Ltd., 2019 ONCA 687, 60 C.C.L.T. (4th) 99, at paras. 72-73.
68The respondent met the appellants’ causation arguments with the submission that the timelines advanced by the appellants were based on speculation and not evidence. In particular, the respondent submitted that the appellants’ contention that he could have delivered Sabrin by emergency Caesarean section in 8 to 10 minutes from the time he made the decision to do an emergency Caesarean section was unrealistic. At trial, Dr. Fellows testified that 8 to 10 minutes took into account only the time between incision and delivery and did not take into account the time needed for the necessary preparation prior to commencing the actual operation.
69The respondent also took on the appellants’ argument that he caused Sabrin’s injuries on a broader front. The respondent argued that on the evidence, especially the evidence of the appellants’ expert, Dr. Shah, the appellants had failed to establish on the balance of probabilities that had he delivered Sabrin by emergency Caesarean section as soon as reasonably possible, her delivery at that time would have made any material difference to her physical condition when she was born. The respondent argued that, apart entirely from whether he was negligent, the appellants had failed to demonstrate on the balance of probabilities that anything he did or did not do caused or materially contributed to Sabrin’s injuries. If this argument carried the day, the appellants’ other arguments, save one, would necessarily fail.3
(iii) The trial judge’s causation reasons
70The trial judge correctly identified the causation issue early in her reasons, at para. 13:
If Dr. Fellows was negligent, did his acts or omissions cause, or materially contribute to the injuries suffered by Sabrin Farej?
71The trial judge’s analysis of the causation issue begins at para. 306. After a thorough and accurate review of the legal principles (paras. 307-23), the trial judge correctly identified the “but for” test as the applicable test to determine causation (para. 325).
72The trial judge next reviewed some of the evidence relevant to causation (paras. 326-37). She had outlined the evidence in some detail earlier in her reasons.
73After summarizing the evidence, the trial judge turned to the appellants’ arguments (paras. 338-41, 343). The trial judge rejected those arguments. In reference to the submission that Dr. Fellows should have done an immediate C-section, or performed a C-section immediately after the first attempt to deliver Sabrin vaginally failed, the trial judge said, at para. 342:
These submissions are not founded in the evidence. Dr. Fellows testified that he could perform an emergency c-section within eight to ten minutes from incision to delivery. This estimate does not account for delivery room preparation, patient transportation and the administration of anaesthesia, and there was no evidence called in that regard.
74The trial judge next focused on the argument that, on the third attempt to deliver Sabrin, Dr. Fellows had been negligent in removing the forceps and allowing Ms. Idris to push Sabrin out. The appellants argued that by having Ms. Idris push rather than removing Sabrin with the forceps, Dr. Fellows added 30 seconds to the delivery, causing additional brain damage to Sabrin. The appellants emphasized that, by this time, Sabrin had been in an acute asphyxic state for up to 32 minutes. The trial judge dismissed this argument, at para. 344:
At its highest, this argument is grounded in “loss of chance”. As the court stated in Laferriere (supra), a mere loss of chance is not compensable in medical malpractice cases.
75The trial judge had, earlier in her reasons, summarized the case law distinguishing between causation and a mere loss of chance (para. 323).
76After rejecting the appellants’ arguments, the trial judge turned to the respondent’s submission that the appellants had failed to prove on the balance of probabilities that anything Dr. Fellows did or failed to do was causally linked to Sabrin’s injuries. The trial judge referred to Dr. Oppenheimer’s evidence that he did not think it likely that a quicker delivery would have avoided the injuries suffered by Sabrin. The trial judge also referred to the evidence that permanent brain damage may have occurred within 10 minutes of the initial near total asphyxia. On the evidence of both experts, near total asphyxia may have occurred as early as 10:55 p.m. Finally, the trial judge referred to Dr. Fellows’ evidence that had he abandoned the forceps delivery, he “would be dealing with a dead baby”. The trial judge then concluded, at para. 348:
I can find no causal connection between Dr. Fellows’ actions and Sabrin’s injuries.
77I read this as a finding that the appellants had not proved that Dr. Fellows did or failed to do anything that materially contributed to the injuries Sabrin had when she was born. The appellants vigorously argue that this simple, short, single sentence all but ended their case. They submit they were entitled to an explanation as to how the trial judge arrived at that conclusion.
(iv) The appellants’ submissions
78In support of their contention that the reasons do not explain the trial judge’s causation finding, the appellants submit that the trial judge never came to grips with the evidence about the time needed to perform an emergency Caesarean section. They contend the trial judge, at para. 342, wrongly concluded “there was no evidence” as to the time needed to perform an emergency Caesarean section. The appellants point to the evidence of Dr. Cohen in which he opined that 8 to 10 minutes to perform an emergency Caesarean section was a generous estimate and included the minimal preparation time needed for the procedure.
79The appellants submit that without coming to a conclusion as to the time needed to perform an emergency Caesarean section, the trial judge could not rationally decide whether the failure to perform an emergency Caesarean section caused or materially contributed to Sabrin’s injuries. The determination of whether any causal link existed between the failure to perform an emergency Caesarean section and Sabrin’s injuries could only be properly made after a finding of what delay, if any, occurred between the time at which Sabrin could have been delivered by way of emergency Caesarean section and the actual delivery time. If the trial judge found the failure to perform an emergency Caesarean section did delay Sabrin’s birth, she would then have had to determine whether that delay caused or materially contributed to the injuries Sabrin had when she was born.
80The appellants further submit that, although the trial judge recognized early in her reasons that a material contribution to Sabrin’s injuries sufficed to establish causation, she ignored the “material contribution” component of the causation inquiry when considering the effect of any delay in the delivery of Sabrin on her catastrophic condition when she was born. The appellants submit the trial judge’s reasons on causation indicate she approached causation as if the injuries Sabrin had when she was born occurred at a specific point in time when she suffered permanent brain damage, rather than over a period of time after she had suffered permanent brain damage due to acute oxygen deprivation. The appellants contend that it cannot be determined from the trial judge’s reasons whether in finding no causal connection between Dr Fellows’ actions and Sabrin’s injuries, the trial judge even considered whether an earlier delivery by way of emergency Caesarean section would have materially reduced the extent of Sabrin’s permanent brain damage and the injuries suffered by her.
81The appellants argue the absence of any reference in the reasons to the possibility that the failure to perform an emergency Caesarean section may have materially reduced Sabrin’s injuries, even if it did not entirely eliminate the brain damage caused by the near total asphyxia, is especially important given the nature of the evidence adduced in this case. The experts and Dr. Fellows agreed that time was of the essence and minutes counted, both in respect of the likelihood of permanent brain damage and the potential severity of that damage. The appellants ask rhetorically what did the trial judge make of the consensus opinion that the longer Sabrin suffered oxygen deprivation, the more probable permanent brain damage and the more severe that permanent brain damage was likely to be? The appellants submit the reasons provide no answer to this fundamental question.
(v) The respondent’s submission
82The respondent replies that the reasons of the trial judge reveal a full command of the evidence and the legal principles applicable to causation, including the recognition that causation extends to factors which materially contribute to the injury.
83The respondent urges the court in assessing the adequacy of the causation reasons to consider those reasons in the context of the evidence relating to causation. The respondent maintains that the evidence, especially the evidence of the appellants’ expert, Dr. Shah, offers no support for the conclusion that Dr. Fellows did anything that caused Sabrin’s injuries. The respondent submits that, on the evidence, no one could say that Sabrin was not permanently brain damaged before Dr. Fellows was in the delivery room, and no one could say what effect any delay in the delivery had on the extent of the injuries actually suffered by Sabrin. Nor could any of the experts indicate that had Sabrin been delivered before a specific point in time she would not have suffered the same kind of injuries she ultimately suffered. The respondent emphasizes that the appellants had the burden of proof on causation. Evidence that Dr. Fellows may or may not have caused or materially contributed to Sabrin’s injuries would not suffice to meet that burden.
(vi) Analysis
84I agree with the thrust of the appellants’ submissions on the causation issue. The reasons tell us that the trial judge decided that nothing Dr. Fellows did caused the injuries. Unfortunately, the reasons do not tell us how the trial judge arrived at her conclusion, or whether in doing so she addressed not only causation in the narrowest sense, but also causation by way of a material contribution to the injuries actually suffered by Sabrin: Dunleavy v. Ultramar Ltd., at paras. 72-73.
85To decide whether Dr. Fellows’ decision to proceed with a vaginal birth rather than an emergency C-section caused, or materially contributed to, Sabrin’s injuries, the trial judge had to make three factual findings:
When would Sabrin have been delivered had Dr. Fellows elected to proceed with an emergency C-section at 11:05 p.m.?
What delay occurred as a result of Dr. Fellows’ decision to proceed with a vaginal delivery rather than an emergency Caesarean section? This calculation required a comparison of the time of the delivery had a C-section been done and the actual time of delivery.
Did the delay, as quantified at step 2, cause or materially contribute to the injuries Sabrin had when she was born?
86If the trial judge found the delay did cause or materially contributed to Sabrin’s injuries, she would have had to go on and determine whether that delay was the product of Dr. Fellows’ negligence, that is did his decision not to perform an emergency Caesarean section fall below the applicable standard of care?
87The evidence indicates that Dr. Fellows was in the position to determine the appropriate mode of delivery at 11:05 p.m. By that time, he had assessed the patient and artificially ruptured the membranes. He fully appreciated the urgency of the situation, believed that Ms. Idris had suffered a placental abruption, but also realized that a uterine rupture was a possibility.
88There was conflicting evidence about how long it would take Dr. Fellows to deliver Sabrin by Caesarean section had he decided to follow that course of action. On Dr. Cohen’s evidence, 8 to 10 minutes from decision to delivery was a generous estimate and, in many cases, the delivery could be completed in less time. Dr. Cohen explained there was virtually no preparation involved in an emergency Caesarean section once the patient was in the operating room and anesthetized. The operating room was directly across from the delivery room, and there was an anesthetist available.
89Dr. Fellows indicated in his discovery that it would take 8 to 10 minutes to complete an emergency Caesarean section. He later explained at trial that 8 to 10 minutes referred to the time needed from incision to delivery and did not include preparation time.
90In extracts from his discovery read in at trial, Dr. Fellows indicated that a “normal emergency Caesarean section” took “15, 20 minutes”. When asked to “deal with this case”, Dr. Fellows stated that if Ms. Idris was properly anaesthetized, an emergency Caesarean section could be done within 8 to 10 minutes.
91The trial judge did not refer to the evidence given by Dr. Fellows on his discovery. She also made no finding as to how long the necessary preparation would take. In her reasons (para. 342), she wrongly indicated there was “no evidence called” on that issue. In fact, as summarized above, Dr. Cohen had testified the preparation time would be very brief.
92Dr. Oppenheimer agreed with Dr. Fellows’ evidence that the 8 to 10-minute estimate did not include preparation time. As I read his evidence, he offered no opinion as to the length of that preparation time and no opinion as to the time needed to complete a Caesarean section in the circumstances faced by Dr. Fellows.
93There was also evidence that Ms. Idris’ first son was born by way of emergency Caesarean section at the same hospital. That procedure took seven minutes from administration of the anaesthesia to completion of the procedure. The circumstances, however, at the time of the birth of Ms. Idris’ first child were very different than those faced by Dr. Fellows.
94On my review of the reasons, the trial judge accepted Dr. Fellows’ evidence that the estimate of 8 to 10 minutes to conduct an emergency Caesarean section did not include preparation time. The trial judge made no findings beyond that.
95This was no minor factual matter. I agree with the appellants that without arriving at a time, or at least a timeframe, within which the emergency Caesarean section could have been completed, the finding of no causal connection between Dr. Fellows’ actions and the injuries is unintelligible. This is particularly true bearing in mind that causation is established if the delay brought about by the failure to perform the immediate Caesarean section materially contributed to Sabrin’s ultimate injuries.
96In light of the evidence that Sabrin’s permanent brain damage occurred over a period of time during which she was acutely oxygen deprived, and that the damage worsened the longer the deprivation lasted, it was critical to the causation inquiry that the trial judge decide when Sabrin could have been delivered by emergency Caesarean section. Without a finding of at least a timeframe within which the Caesarean section could have been completed, there could be no finding as to how long, if at all, Sabrin was oxygen deprived as a consequence of the failure to deliver her by way of emergency Caesarean section. Without that finding, there could be no meaningful inquiry into whether the delay, if any, caused or materially contributed to Sabrin’s injuries.
97There are avenues through the evidence which, if followed by the trial judge, could reasonably have led her to conclude that even if an emergency Caesarean section had been performed, Sabrin would not have been delivered sufficiently prior to 11:27 p.m. to make any material difference to the outcome. Nothing in the reasons, however, allows me to conclude the trial judge followed one of those roads.
D. are the reasons on the standard of care issues adequate?
98The trial judge correctly identified the applicable standard of care (paras. 230-38) – did Dr. Fellows exercise the degree of skill and knowledge expected of an average competent obstetrician in the circumstances: ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, at para. 46. The trial judge approached the standard of care issues by asking herself three questions:
Did Dr. Fellows fall below a reasonable standard of care in failing to document any discussion with Ms. Idris, including benefits, risks and options?
Did Dr. Fellows fall below a reasonable standard of care in failing to recognize Ms. Idris’ uterine rupture?
Did Dr. Fellows fall below a reasonable standard of care in performing a forceps delivery when Sabrin was station -1?
(1) Did the trial judge ask herself the wrong question?
99This submission focuses on the second of the three questions posed by the trial judge. The appellants submit that, while Dr. Fellows’ failure to diagnose a uterine rupture had some relevance to the standard of care issues, none of the appellants’ arguments depended on a finding that Dr. Fellows was negligent in failing to recognize Ms. Idris’ uterine rupture.
100At trial, the appellants argued the applicable standard of care required Dr. Fellows to perform an immediate Caesarian section if a uterine rupture was on his differential diagnosis, even if he believed a placental abruption was the more likely cause of Sabrin’s distress and the bleeding.
101A differential diagnosis recognizes various possible causes of a given medical problem. A uterine rupture, and a placental abruption, can generate many of the same symptoms. Both were on Dr. Fellows’ differential diagnosis from the outset. After his initial assessment of Ms. Idris, Dr. Fellows believed that a placental abruption was the more likely diagnosis, but a uterine rupture remained on his differential diagnosis.
102The appellants contend that, under the applicable standard of care, Dr. Fellows was required to first address the most serious condition on his differential diagnosis. A uterine rupture is a more serious diagnosis than a placental abruption. A uterine rupture puts the life of both the mother and the baby at very real risk. The appellants submit an immediate Caesarean section was the only way to properly address the risks posed by a uterine rupture.
103The appellants submit that, despite the centrality of the appellants’ submission that a differential diagnosis, including a uterine rupture, requires an immediate Caesarean section, the trial judge ignored Dr. Fellows’ acknowledgement that a uterine rupture was on his differential diagnosis, and instead focused on the reasonableness of Dr. Fellows’ diagnosis of a placental abruption as the more likely cause of Sabrin’s bradycardia. The appellants argue that the trial judge’s ultimate determination that Dr. Fellows’ diagnosis of a placental abruption was reasonable, at para. 277, did nothing to resolve the crucial question of whether the applicable standard of care required him to proceed immediately with an emergency Caesarean section.
(i) The evidence on whether Dr. Fellows was required to proceed with an immediate Caesarean section
104Dr. Cohen, the appellant’s expert, testified:
He should have been suspicious of uterine rupture, and unless the fetus is able to be readily delivered, meaning at the perineum, or basically crowning, he should have proceeded to laparotomy [Caesarean section].
105Dr. Cohen indicated that in the face of a possible uterine rupture, both the mother and baby were in jeopardy. Dr. Fellows had to “expedite delivery”. In Dr. Cohen’s opinion, in the circumstances faced by Dr. Fellows, an emergency Caesarean section was the only way to adequately expedite delivery.
106In advancing his opinion, Dr. Cohen relied on guidelines prepared by the Society of Obstetricians and Gynecologists (“SOGC”) and, in particular, recommendation No. 7:
Suspected uterine rupture requires urgent attention and expedited laparotomy to attempt to decrease maternal and perinatal morbidity and mortality.
107Dr. Fellows acknowledged that a uterine rupture was a possible diagnosis. In his view, regardless of the cause of the problem, it was imperative that Sabrin be delivered as quickly and safely as possible both for her wellbeing and her mother’s wellbeing. Delivering Sabrin as quickly as possible was essential, given her acute fetal distress. A quick delivery of Sabrin would also allow Dr. Fellows to examine Ms. Idris’ uterus and conduct any needed repairs. Those repairs could not be performed until Sabrin was delivered.
108The SOGC guidelines were put to Dr. Fellows. He testified he did not treat the guidelines as rules, but as aides to the exercise of his clinical judgment. That clinical judgment had to be made depending on the exact circumstances in any specific case.
109Dr. Oppenheimer agreed with Dr. Fellows’ approach. In his opinion, if, on a clinical assessment, a vaginal delivery was appropriate, the possibility of a uterine rupture did not dictate that a Caesarean section was the only appropriate mode of delivery. The essence of Dr. Oppenheimer’s evidence is set out below:
There are any [m]any causes, of course, of fetal distress but in this scenario the causes we’re concerned about are potentially abruption or uterine rupture, those are the two, and you can perform a forceps delivery, it doesn’t matter what you consider the underlying etiology, if the patient meets your, you know, prerequisites and you feel you are going to succeed you can go ahead and do a forceps. The indication is not an issue.
[I]n every case where you come in the room and you have pain, bleeding and severe fetal distress, the differential diagnosis is always abruption versus rupture and you do not always assume that it’s – that it’s rupture because if it’s abruption then – well it doesn’t matter. Either way, the action is the same, urgent delivery. So, it doesn’t matter which one you’re prioritizing in what we discussed before in the differential, urgent delivery is the treatment of both.
110As I read the evidence of the experts and Dr. Fellows, the primary concern had to be to deliver Sabrin as quickly as safely possible. Delivering Sabrin would not only address her ongoing oxygen deprivation, but would also allow the doctor to locate and fix any uterine rupture Ms. Idris may have suffered.
111The experts differed on one essential point. In Dr. Cohen’s view, an urgent delivery meant a delivery by way of emergency Caesarean section, except in those cases where it was obvious from the positioning of the baby that it could be delivered immediately vaginally. On the view of Dr. Fellows and Dr. Oppenheimer, the question of how best to deliver the baby quickly and safely involved a greater element of clinical judgment and an assessment of various factors. In Dr. Oppenheimer’s opinion, Dr. Fellows exercised that judgment appropriately when he decided to proceed with a vaginal delivery.
(ii) Analysis
112I agree with the appellants’ submission that the reasonableness of Dr. Fellows’ diagnosis of a placental abruption was not determinative of whether Dr. Fellows was negligent in failing to conduct an immediate Caesarean section. The trial judge’s analysis of the reasonableness of Dr. Fellows’ diagnosis of placental abruption (paras. 268-79) provides no answer to the claim that he was negligent in failing to perform an emergency Caesarean section once a uterine rupture was on his differential diagnosis. Although the trial judge, at para. 12, properly identified the issue as being whether Dr. Fellows fell below the standard when he failed to perform an immediate Caesarean section, her ultimate analysis, to the extent it focused on whether the failure to diagnose a uterine rupture was negligent, misapprehended the case advanced by the appellants.
113This misstep by the trial judge in her reasons does not, however, mean the reasons are inadequate. The reasons must be considered as a whole. Reasons may address issues that do not have to be addressed, or reasons may mischaracterize issues. What is important in an inquiry into the adequacy of the reasons is not necessarily the shortcomings of the reasons, but whether they ultimately explain the basis for the decisions which had to be made to render the judgment in question. Effective appellate review may involve more work with some judgments than others. As long as the review can be conducted, the reasons are adequate.
114Looking at the reasons as a whole, it is clear the trial judge reviewed the evidence of Dr. Fellows concerning his decision to proceed with a vaginal delivery in some detail when she was outlining the evidence of various witnesses: at paras. 90-111, 143, 165, 171-84. The trial judge also thoroughly reviewed the experts’ evidence and the differing opinions as to whether the applicable standard of care required an immediate emergency Caesarean section. The trial judge specifically accepted Dr. Oppenheimer’s evidence to the effect that “a forceps delivery was clearly the best choice” (paras. 294-95). She also accepted, at para. 298, his evidence of the interpretation of the relevant guidelines as not precluding a forceps delivery in the circumstances faced by Dr. Fellows.
115The reasons of the trial judge reveal an appreciation of the conflicting evidence on the issue of whether Dr. Fellows should have proceeded with an emergency Caesarean section. The reasons demonstrate that the trial judge resolved the conflicting evidence by preferring the evidence of Dr. Oppenheimer over Dr. Cohen’s evidence. The trial judge preferred the approach which placed more emphasis on individual clinical judgments over Dr. Cohen’s approach, which favoured more of a bright line rule when a uterine rupture was on the differential diagnosis. The trial judge’s clear command of the content of the evidence given by the experts and Dr. Fellows supports the conclusion that she preferred Dr. Oppenheimer’s opinion after a critical assessment of the evidence offered by both experts for and against their respective positions. The trial judge appreciated the substance of the evidence given by the experts, the points of contention between them, and ultimately determined she preferred Dr. Oppenheimer’s evidence on this point.
116The clarity of the trial judge’s reasons may have been enhanced had she dealt with the question of whether an immediate emergency Caesarean section was Dr. Fellows’ only option under its own specific heading. Formatting deficiencies will, however, seldom render reasons unintelligible. The reasons for the trial judge’s finding that Dr. Fellows was not negligent in proceeding with a vaginal forceps delivery reveal both what the trial judge decided and why she rendered that decision. The reasons permit meaningful appellate review.
(2) Did the trial judge fail to engage with and decide Dr. Fellows’ credibility in respect of his evidence that Sabrin’s head was engaged when he attempted the forceps delivery?
117The position of Sabrin’s head when Dr. Fellows elected to proceed with a vaginal delivery using forceps was a crucial factual issue at trial. If her head was not engaged, meaning it was above Ms. Idris’ pelvic bone, Dr. Fellows and the experts agreed that a forceps delivery should not be attempted.
(i) The evidence on the location of Sabrin’s head
118In his operative note prepared shortly after the delivery, Dr. Fellows referred to Sabrin’s head as being at station -1 when he conducted his vaginal exam. Dr. Fellows made no mention of whether the head was “engaged”.
119Dr. Cohen testified that a reference to the baby’s head being at station -1 meant that the head was above the pelvic bone and, therefore, not engaged. To be engaged, the head had to be at station 0 or lower (station +1). Dr. Cohen referred to various texts in support of his definition of “engaged”.
120Dr. Cohen was asked about Dr. Fellows’ evidence on his discovery to the effect that Sabrin’s head was “engaged at station -1”. Dr. Cohen replied that as a trained experienced obstetrician, Dr. Fellows would know that if the head was at station -1, it could not be engaged.
121The appellants submitted that Dr. Fellows’ operative note accurately described the position of Sabrin’s head when Dr. Fellows attempted a forceps delivery. That position effectively ruled out the use of forceps and, therefore, by necessary implication, a vaginal delivery.
122Dr. Fellows acknowledged that when he initially did his vaginal examination, Sabrin’s head was “just above spines”, meaning the head was not engaged. Dr. Fellows indicated that when he ruptured the membranes, the head descended slightly. By the time he completed the pelvic exam, Sabrin’s head was engaged and remained so. Dr. Fellows agreed that his operative note made no reference to the head being engaged and that he did not amend the document at any time.
123Dr. Oppenheimer testified that Sabrin’s head may have descended from station -1 before Dr. Fellows applied the forceps. The descent may have been caused by the rupture of the membranes, or Ms. Idris’ pushing. Contrary to Dr. Cohen, Dr. Oppenheimer indicated that a designation of the head as being at station -1 was not necessarily incompatible with the observation that the head was below the pelvic bone and, therefore, engaged.
(ii) Analysis
124The trial judge ultimately accepted Dr. Fellows’ evidence that he could see that Sabrin’s head was engaged before he used the forceps. The trial judge accepted this evidence for two reasons. First, Dr. Fellows indicated the rupture of the membranes caused the head to descend (para. 301). Second, Dr. Fellows, who was by all accounts an experienced and skilled obstetrician, testified as to what he saw, and in particular, the location of Sabrin’s head. He knew the significance of the location of the head when considering whether to attempt a forceps aided delivery (para. 304).
125The trial judge reviewed the relevant evidence at length. It was open to her to accept Dr. Fellows’ evidence. She did not misapprehend any of the evidence relevant to this point. The two reasons she gave for accepting Dr. Fellows’ evidence offer an intelligible explanation for her conclusion.
126Dr. Fellows’ evidence that Sabrin’s head moved slightly downward after he ruptured the membranes was supported, to some extent, by evidence from the experts, including Dr. Cohen, who agreed that a rupture of the membranes could cause the baby’s head to move downward.
127I am satisfied that, the trial judge did not take an improper approach in her assessment of Dr. Fellows’ evidence by taking into account his acknowledged experience and expertise. The trial judge found it unlikely that a person of Dr. Fellows’ experience and expertise would, be mistaken in his observation of the location of Sabrin’s head, a crucial consideration in determining how best to deliver Sabrin. The trial judge, for the same reason, found it implausible that Dr. Fellows would proceed with a vaginal delivery using forceps unless he was satisfied the head was engaged, a prerequisite to proceeding with a vaginal delivery.
128The trial judge did not engage in circular reasoning, but simply took into account Dr. Fellows’ experience and expertise when considering the credibility and reliability of his evidence as to what he saw when he examined Ms. Idris in preparation for the delivery of Sabrin.
129The appellants, as they did at trial, argue that Dr. Fellows tailored his evidence about the location of Sabrin’s head to coincide with certain suggestions found in Dr. Oppenheimer’s report. They contend Dr. Fellows first testified that Sabrin’s head moved downward after his initial examination after Dr. Fellows had read Dr. Oppenheimer’s report in which he offered that possible explanation. The appellants submit the trial judge failed to consider this argument.
130Dr. Fellows did refer to Sabrin’s head as being engaged in his discovery evidence, although he coupled that reference with an indication it was at “station -1”. It does not appear that Dr. Fellows was asked questions on discovery about the position of Sabrin’s head or any movement of her head after his initial assessment.
131Certainly, it was open to the appellants to argue that Dr. Fellows’ trial evidence as to the positioning of Sabrin’s head was coloured by his reading of Dr. Oppenheimer’s report. The appellants made that argument at trial and I have no doubt the trial judge considered it. Her failure to address the argument specifically in her reasons does not undermine the explanation she gave for accepting Dr. Fellows’ evidence as to the position of Sabrin’s head. Trial judges are not required to answer every argument made by counsel at trial, particularly an argument predicated in part on the submission that the trial judge should draw an adverse inference with respect to credibility because a party failed to volunteer information on discovery. The reasons admit of meaningful appellate review.
(3) Did the trial judge fail to explain why she rejected the appellants’ submission that Dr. Fellows should have done an emergency Caesarean section after the first attempt to deliver with forceps failed?
(i) The appellants’ argument
132The first attempt to deliver Sabrin with forceps failed at about 11:07 p.m. The appellants submitted that as of 11:07 p.m., Dr. Fellows had two new additional factors to take into account when deciding how to proceed. First, the gush of blood and the immediate retreat of Sabrin’s head gave Dr. Fellows even more reason to suspect Ms. Idris had suffered a uterine rupture. Second, under the SOGC guidelines, the failure to successfully deliver a baby using one technique was itself a reason to consider using a different approach.
133The appellants submit that these two new considerations should have led Dr. Fellows to change the mode of delivery from a vaginal delivery with forceps to an emergency Caesarean section. His failure to do so cost valuable time and caused or materially contributed to Sabrin’s injuries.
134The appellants acknowledge that the trial judge rejected this argument. She said, at para. 304:
Given the exigent circumstances and what was known at the time, Dr. Fellows acted reasonably in pursuing an operative vaginal delivery with forceps. Once he made that decision it was imperative that he follow through. Failure to do so, in all likelihood, would have resulted in the death of the baby.
135The appellants submit that the trial judge’s reasons offer no explanation for her conclusion that Sabrin would likely have died had Dr. Fellows decided to perform an emergency Caesarean section at about 11:07 p.m. The appellants also submit the reasons offer no explanation for the trial judge’s conclusion that it was “imperative” that Dr. Fellows follow through with a vaginal delivery, despite the change in the relevant circumstances.
(ii) Analysis
136There is merit to the appellants’ submission. The trial judge’s reasons shed no light on how the trial judge came to her conclusion that Sabrin would in all likelihood have been dead before she was born had Dr. Fellows ordered an emergency Caesarean section at 11:07 p.m. Certainly, Dr. Fellows gave that evidence. However, Dr. Fellows offered no evidence as to when he could have completed a Caesarean section had he decided at 11:07 p.m. to abandon the vaginal delivery in favour of an immediate emergency Caesarean section.4
137It may be that Dr. Fellows concluded that as Sabrin was born alive at 11:27 p.m., she would have been delivered some time after 11:27 p.m. had he decided to perform a Caesarean section at or about 11:07 p.m. Unfortunately, Dr. Fellows did not explain in his evidence why he believed Sabrin would not have survived the birth had he proceeded with a Caesarean section. Nor does the trial judge explain how she came to accept Dr. Fellows’ evidence that Sabrin would not have survived had he proceeded with a Caesarean section when he gave no evidence as to when he believed she could have been delivered had he decided to proceed with a Caesarean section.
138Despite the shortcomings described above, the trial judge’s reasons on this issue can be effectively reviewed in this court. As outlined above, the trial judge accepted the defence evidence that, regardless of the medical cause of the problem faced by Dr. Fellows, Sabrin’s delivery as quickly as it could be safely done had to be the priority, both from Sabrin’s perspective, and from Ms. Idris’ perspective. Because the trial judge accepted the defence evidence that the need to deliver Sabrin as quickly as possible remained the primary concern regardless of the cause of the problem, Dr. Fellows’ added suspicion of a uterine rupture after the blood gush during the first failed attempt to deliver Sabrin would not have caused him to rethink the appropriate mode of delivery. The speed with which he could deliver Sabrin safely remained the primary concern.
139There was also nothing in the failed attempt to deliver Sabrin which would have suggested to Dr. Fellows that a further attempt to deliver with forceps would delay Sabrin’s birth beyond the time needed to effect the delivery by way of emergency Caesarean section. Dr. Fellows had moved Sabrin to crowning position within about one minute of the application of the forceps. Sabrin’s size presented no impediment to a vaginal delivery. It was reasonable for Dr. Fellows to conclude he could reapply the forceps, this time using a kind of forceps that would avoid releasing the head, and deliver the baby immediately.
140A fair reading of the reasons as a whole demonstrates that the trial judge rejected the argument that Dr. Fellows was negligent in not going to a Caesarean section after the first attempt to deliver with forceps failed for essentially the same reasons that he was not negligent in his initial decision to deliver vaginally with forceps. The two decisions were made within a minute or two of each other. In both instances, Dr. Fellows made a clinical judgment that it was essential to deliver Sabrin as quickly as it could be safely done. In both instances, he decided a vaginal delivery provided the most expeditious route. Dr. Oppenheimer agreed with the reasonableness of that assessment. The trial judge accepted Dr. Oppenheimer’s opinion.
(4) Did the trial judge fail to consider whether Dr. Fellows was negligent when he failed to deliver Sabrin using the Kielland forceps?
(i) The evidence
141After his initial attempt to deliver Sabrin with the Tucker-McLean forceps failed, Dr. Fellows made a second attempt using Kielland forceps. He believed that the shape of those forceps would allow him to deliver Sabrin without removing the forceps or relieving the traction. Sabrin had retreated back up the birth canal when Dr. Fellows had removed the forceps on his first attempt to deliver Sabrin.
142Dr. Fellows brought Sabrin to the crowning position using the Kielland forceps. He was confident he could deliver the baby quickly with those forceps.
143Dr. Fellows, however, became concerned that if he used the Kielland forceps to complete the delivery, those forceps, because of their shape, would destroy or damage Ms. Idris’ perineum. Dr. Fellows decided to release the Kielland forceps and have Ms. Idris push Sabrin out. This same strategy had failed only a few minutes earlier on Dr. Fellows’ first attempt to deliver Sabrin. Releasing the Kielland forceps also nullified the very reason Dr. Fellows had decided to use the Kielland forceps rather than the Tucker-McLean forceps. When Dr. Fellows released the forceps, Sabrin moved back up the birth canal just as she had moments earlier when Dr. Fellows released the Tucker-McLean forceps in his first attempt to deliver Sabrin.
144Dr. Fellows decided to use the Kielland forceps to deliver Sabrin at about 11:07 p.m. His attempt to deliver her with those forceps had failed by about 11:12 p.m. This led to the third effort to deliver Sabrin vaginally. That attempt eventually succeeded at 11:27 p.m.
145Dr. Cohen testified that the removal of the Kielland forceps when Sabrin was crowning and ready to be delivered was a breach of the applicable standard of care. He said:
[I]f one is assuming that the fetal heart rate is extremely low, or non-existent, you want to expedite delivery, so you want to get that baby out in the quickest fashion possible, or the most timely fashion possible. So, the extraction with the forceps should have been done in my opinion.
146Dr. Oppenheimer did not comment on Dr. Fellows’ release of the Kielland forceps in his report. In his testimony, he indicated the removal of the Kielland forceps was “common practice” done to avoid trauma to the perineum.
147Dr. Oppenheimer was not asked to consider Dr. Fellows’ decision to remove the Kielland forceps in the context of the circumstances of this case. Specifically, Dr. Oppenheimer was not asked whether Sabrin’s prolonged acute near total asphyxia placed this case outside of the realm of “common practice”.
(ii) Appellants’ position
148At trial, the appellants alleged Dr. Fellows was negligent in releasing the Kielland forceps rather than delivering Sabrin immediately with those forceps. They claimed he should have appreciated the need to urgently deliver Sabrin and the risk that she would once again retreat up the birth canal if the forceps were removed. In support of their position, the appellants relied on the following:
Ms. Idris had been unable to push Sabrin out a few minutes earlier;
Dr. Fellows was more suspicious of a uterine rupture after the first failed attempt to deliver Sabrin with forceps;
Sabrin had been acutely oxygen deprived for at least eight minutes and, according to Dr. Fellows, probably longer by the time Dr. Fellows elected to remove the Kielland forceps;
Given Sabrin’s position in the vagina immediately before Dr. Fellows released the forceps, and Dr. Fellows’ expertise, he could, in all likelihood, have delivered Sabrin immediately had he kept the Kielland forceps in place and used them for the delivery;
Dr. Fellows had elected to release the forceps on his first attempt to deliver Sabrin. She had retreated up the birth canal when he did so. Despite this, he released the Kielland forceps only a few minutes later, only to have Sabrin retreat up the birth canal for a second time; and
Neither Dr. Fellows nor Dr. Oppenheimer offered an opinion as to why the preservation of the perineum justified potentially delaying Sabrin’s birth, given her near total ongoing acute oxygen deprivation. In fact, Dr. Fellows cut the perineum when he performed an episiotomy a few minutes later during the third and successful attempt to deliver Sabrin.
149The appellants’ timeline as it relates to this argument is clear and simple. With the Kielland forceps, Sabrin could have been delivered at or very shortly after 11:12 p.m. She was actually delivered at 11:27 p.m. The 15-minute delay in delivering Sabrin is attributable to Dr. Fellows’ negligent failure to complete the delivery with the Kielland forceps.
(iii) Analysis
150Although the trial judge acknowledged, at para. 280, that the appellants had argued Dr. Fellows should have completed the delivery with the Kielland forceps, she never addressed the merits of that argument. Apart from a brief reference to Dr. Oppenheimer’s evidence that the release of a forceps was “common practice”, the trial judge made no reference to any of the evidence relevant to this issue.
151The trial judge’s silence in respect of the allegation of negligence based on the failure to deliver Sabrin with the Kielland forceps cannot be answered by reference to her analysis of whether Dr. Fellows was obliged to conduct an emergency Caesarean section immediately, or whether the position of Sabrin’s head precluded a forceps delivery.
152The argument that Dr. Fellows was negligent in not completing the delivery with the Kielland forceps did not depend in any way on whether he should have conducted an emergency Caesarean section immediately. Nor did it turn on when an emergency Caesarean section could have been completed. The resolution of those issues in favour of the respondent was no answer to the allegation of negligence based on the failure to deliver with the Kielland forceps.
153Similarly, the trial judge’s conclusion that Sabrin’s head was engaged when Dr. Fellows decided to deliver Sabrin was of no consequence in deciding whether Dr. Fellows was negligent when he did not complete the delivery with the Kielland forceps. There was no doubt that Sabrin’s head was fully engaged and she was capable of being delivered with forceps when Dr. Fellows released the Kielland forceps.
154The central findings by the trial judge, which foreclosed a finding of negligence on the main arguments advanced by the appellants at trial, had no application to the allegation that Dr. Fellows was negligent when he withdrew the Kielland forceps. This allegation stood on an entirely different evidentiary footing. It was essential that the trial judge address this allegation separately and explain why she rejected it.
155There was evidence supporting the appellants’ position that Dr. Fellows acted negligently in failing to complete the delivery with the Kielland forceps. There was also evidence that his failure to do so caused a significant delay in the delivery of Sabrin. On the causation evidence, it would have been open to the trial judge to infer that the delay resulting from the failure to complete the delivery with the Kielland forceps (about 15 minutes) caused or materially contributed to Sabrin’s catastrophic injuries.
156My review of the reasons leaves me uncertain as to whether the trial judge gave any separate consideration to the argument that the failure to complete the delivery with the Kielland forceps constituted negligence and, if so, whether it caused or materially contributed to Sabrin’s injuries. Even if I were to assume, in light of the arguments put to the trial judge, that she must have considered and rejected the argument that the failure to complete the delivery with the Kielland forceps was negligent, I see no analysis of the appellants’ submissions and no explanation in the reasons for the rejection of the appellants’ arguments on this issue.
157The absence of any analysis makes it impossible to determine why the trial judge rejected the claim that Dr. Fellows was negligent in not completing the delivery with the Kielland forceps. The trial judge refers to Dr. Oppenheimer’s evidence that releasing the forceps was “common practice”. She refers to no other evidence and no basis upon which she could conclude that Dr. Oppenheimer’s reference to “common practice” had application to the circumstances as they existed when Dr. Fellows decided to release the Kielland forceps. This court does not know what the trial judge made of Dr. Oppenheimer’s description of releasing the forceps as “common practice”. In the same vein, the reasons offer no insight into why avoiding damage to the perineum justified any risk of additional delay in Sabrin’s delivery. By that stage, Sabrin had been suffering from acute near total asphyxia for at least eight minutes.
158The reasons as they relate to the allegation that Dr. Fellows should have delivered Sabrin with the Kielland forceps are inadequate and do not admit of appellate review. The appellants’ allegation is tenable on the evidence and provides a basis upon which Dr. Fellows could be found to have caused Sabrin’s injuries.
E. the reasons on the informed consent issue
159At trial, the appellants’ argument in relation to informed consent focused on Dr. Fellows’ admitted failure to obtain Ms. Idris’ express consent to the use of forceps during the delivery. On appeal, the appellants argue the trial judge never addressed the issue of informed consent, but only considered whether Dr. Fellows had documented his conversations with Ms. Idris. The appellants refer to the question posed by the trial judge in her reasons:
Did Dr. Fellows fall below a reasonable standard of care in failing to document any discussion with Ms. Idris, including benefits, risks and options?
160Dr. Fellows conceded that he did not document any of his discussions with Ms. Idris or Mr. Farej after he arrived in the delivery room at 11:01 p.m. Dr. Fellows did, however, testify to discussions he had with Ms. Idris and Mr. Farej after he arrived in the delivery room.
161The appellants submit the trial judge miscast their informed consent argument as turning exclusively on the failure to document any discussions that may have occurred. The appellants acknowledge they placed significant evidentiary weight on the failure to document. However, they maintain the trial judge ultimately had to decide what in fact Dr. Fellows said to Ms. Idris and whether, in the circumstances, Ms. Idris gave her informed consent to the forceps delivery.
(i) The evidence
162Dr. Fellows testified that as he was examining Ms. Idris, he was in constant verbal and visual contact with Ms. Idris and Mr. Farej. He told them their baby was in serious distress and that she should be delivered as quickly as possible. He told Ms. Idris and Mr. Farej that he believed that the safest way to proceed was not by Caesarean section, but by a forceps delivery.
163In cross-examination, Dr. Fellows indicated he was speaking to both Mr. Farej and Ms. Idris during the time he was rupturing the membranes. He told them he could proceed using forceps or a Caesarean section and, in his clinical judgment, a forceps delivery was the most appropriate procedure.5 Dr. Fellows testified he was speaking to both Mr. Farej and Ms. Idris, although he knew Mr. Farej, who had a better command of the English language than his wife and had medical training, would also be communicating with Ms. Idris. Dr. Fellows testified he emphasized the immediate risk to the baby’s life, as at that point Ms. Idris’ vital signs were stable.
164Dr. Fellows agreed that given the urgency, he probably did not discuss the risks and benefits associated, either with a forceps delivery or a Caesarean section. When asked who made the decision to proceed with a forceps delivery, Dr. Fellows said:
I felt it was my obligation as a professional who was fully aware of the acuity of the situation that I would make those decisions while I was talking to the two of them, but I would ultimately be the one that made that decision for her.
165Dr. Fellows indicated that based on his prior experiences with Ms. Idris, she was aware that delivery by way of a Caesarean section or a vaginal delivery were the two possible options. They had discussed those options during her previous pregnancies and, to some extent, during this pregnancy. Ms. Idris had previously expressed a preference for a vaginal delivery. Dr. Fellows believed his relationship with Mr. Farej and Ms. Idris was such that they would trust his recommendation as to the appropriate way to proceed with Sabrin’s delivery.
166Mr. Farej’s testimony from his discovery was read into the trial record. The trial judge set that evidence out in her reasons (para. 68). Mr. Farej testified that his wife had a very good relationship with Dr. Fellows. In one of the prenatal appointments, they discussed whether Ms. Idris should deliver by Caesarean section or vaginally. She told Dr. Fellows that it would depend on the situation when Ms. Idris was in the hospital and ready to deliver. Dr. Fellows agreed.
167Mr. Farej testified that when Dr. Fellows came into the delivery room, he quickly examined Ms. Idris. He told them she was bleeding and the situation was serious. Mr. Farej recalled Dr. Fellows telling him “I have to save your wife” by delivering the baby. Mr. Farej told Dr. Fellows “yes. Just go.” Dr. Fellows proceeded immediately with a forceps delivery.
(ii) The trial judge’s reasons
168The trial judge summarized the law of informed consent at paras. 240-44. She recognized that Dr. Fellows was faced with an obstetrical emergency in which seconds counted. She recognized that the urgency of the medical situation was a circumstance to be taken into account in assessing the adequacy of the information provided to the patient by the doctor. The trial judge said, at para. 244:
When patients are in distress and the physician is making rapid assessments and judgments of the indicated alternative courses of action, it is not necessary or appropriate to require the physician to have a complicated, detailed discussion of all possible risks and benefits of each alternative procedure in such circumstances. In an obstetrical emergency, all the obstetrician is “required to convey in the circumstances to meet the standard of care is his intended course of action and his reasons for doing so”.
169The trial judge also acknowledged that there was nothing in the records documenting any discussion between Dr. Fellows and Ms. Idris or recording Ms. Idris’ consent to Dr. Fellows’ course of action. The trial judge, however, went on to find that the discussions described by Dr. Fellows in his evidence, and Mr. Farej, to some extent in his evidence, did occur.
(iii) Analysis
170Although the heading used by the trial judge misdescribes the informed consent issue, her analysis under that heading is directed at the evidence relevant to whether consent was given and the application of the earlier stated legal principles to the circumstances as found by the trial judge.
171The trial judge obviously accepted Dr. Fellows’ evidence. She also accepted Mr. Farej’s evidence on discovery, which in her view confirmed, at least in some respects, the evidence given by Dr. Fellows.
172The trial judge was satisfied Dr. Fellows informed Mr. Farej and Ms. Idris that the situation was extremely urgent. He advised them in general terms of the potential dire consequences, especially to Sabrin. He identified the delivery options available, and told Mr. Farej and Ms. Idris which of those two options should be followed. In the context of a rapidly evolving, life and death medical emergency, and having regard to the existing relationship between Dr. Fellows, Ms. Idris and Mr. Farej, I am satisfied it was open to the trial judge to conclude the information provided by Dr. Fellows was sufficient and allowed Ms. Idris to make an informed decision as to the mode of delivery. It was also open to the trial judge to conclude that Ms. Idris, along with her husband, accepted Dr. Fellows statement that the baby had to be delivered immediately and a vaginal delivery was the best way to accomplish that end.
173As I am satisfied the trial judge’s reasons explain why she rejected the argument that Ms. Idris did not consent to the procedure, I will not address the causation arguments tied to the question of informed consent.
V
the appropriate order
174The trial judge’s failure to give adequate reasons in respect of causation and one of the standard of care issues means this court cannot meaningfully review either the finding the appellants failed to prove causation, or the finding the appellants failed to prove Dr. Fellows was negligent. The judgment dismissing the action cannot stand.
175The appellants ask for a new trial. The respondent did not argue that if the appellants convinced the court the reasons were inadequate, this court could, or should, decide the case on the existing record.
176I accept the appellants’ position. The evidence is complicated and the numerous issues are interrelated and interdependent. I agree the interests of justice are served by ordering a new trial and I would so order. I am sure experienced, capable counsel will be able to make use of the existing trial record to expedite any subsequent proceedings which prove necessary.
177I accept the respondent’s contention that the new trial should be on both liability and damages. If Dr. Fellows is found liable, findings on the liability portion of the trial may impact the damage assessment.
178I would dismiss the contingent cross-appeal as moot, given the order directing a new trial on both liability and damages.
179The appellants are the successful party on the main appeal. The parties agreed that the successful party on the main appeal should have costs in the amount of $60,000, inclusive of disbursements and relevant taxes. There should be no order as to costs on the cross-appeal.
Released: “March 29, 2022 DD”
“Doherty J.A.”
“I agree B.W. Miller J.A.”
“I agree. Sossin J.A.”
Footnotes
- For ease of reference, I will refer to the appellants/plaintiffs as the appellants in the rest of these reasons.
- In Dr. Fellows’ operative note, he indicated the baby retracted “into the abdomen”. In his testimony, Dr. Fellows stated that the note was an error and that it should have read “into the vagina”.
- The appellants’ argument that Dr. Fellows was negligent in not completing the delivery with the Kielland forceps rather than releasing them and having Ms. Idris attempt to push the baby out would still have to be considered as the question of when Sabrin could have been delivered by way of Caesarean section is not relevant to that allegation of negligence. I address that argument below at paras. 141-58.
- Dr. Fellows did give evidence on his discovery about the time needed to perform an emergency Caesarean section. Those parts of his discovery were read in at trial and are summarized above at paras. 88-91.
- In his cross-examination on June 10, 2019, at p. 86, l 7-8, the transcript has Dr. Fellows telling Ms. Idris that a Caesarean section was the most appropriate way to deliver the baby. It seems obvious, having regard to Dr. Fellows’ evidence as a whole, that he misspoke on this one occasion. I do not understand the appellants to suggest otherwise.
