DATE: 20010511

DOCKET: C33544

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., CATZMAN and AUSTIN JJ.A.

B E T W E E N:

NATALIE GRASS, a minor by her Litigation Guardian, MARILYN GRASS, and the said MARILYN GRASS

Paul J. Pape, for the appellants

Plaintiffs (Appellants)

• and -

WOMEN’S COLLEGE HOSPITAL, JANE DOE, JOHN ROE, BETH GHERSON and FAY WEISBERG

Harry C.G. Underwood and Timothy J. Murphy, for the respondent Fay Weisberg

Defendant (Respondent)

Heard: April 26, 2001

On appeal from the judgment of Justice John R.R. Jennings dated December 21, 1999.

CATZMAN J.A.:

The appeal

[1] Marilyn Grass’ pregnancy was normal and uneventful. She went into labour and entered hospital at around 5:00 a.m. on a Monday morning. At 11:00 p.m., she was fully dilated and ready to enter the second stage of labour. By 1:24 a.m., she had been pushing for over two hours and was exhausted. The labour room nurse called the attending physician, Dr. Fay Weisberg. Dr. Weisberg applied a vacuum extractor and forceps but it appeared that efforts for a normal vaginal delivery would be unavailing. At 1:40 a.m., Dr. Weisberg called for a Caesarian section, and Marilyn was transferred to the operating room. Her baby was delivered at 1:48 a.m.

[2] Upon delivery, Natalie Grass was lifeless. Concerted efforts were undertaken to resuscitate her. Nine minutes passed before a heartbeat was detected. Fifteen minutes passed before she was resuscitated. Now nine years old, Natalie has since her birth suffered from spastic quadriplegia and cerebral palsy.

[3] On behalf of Natalie and herself, Marilyn Grass sued Dr. Weisberg, the nurses and the hospital. The action proceeded to trial against only the doctor. The quantum of damages was agreed, and the sole issue at trial was that of liability. The trial judge exonerated Dr. Weisberg of negligence and dismissed the action.

[4] This is an appeal from that decision.

The positions of the parties

[5] The parties agreed that Natalie’s condition was caused by brain damage resulting from a hypoxic-ischemic insult to her brain prior to delivery. In layman’s terms expressed in the context of this case, hypoxia is a decrease in oxygen below normal levels and ischemia a reduction in the supply of oxygenated blood to Natalie’s fetal brain.

[6] The parties also agreed that Dr. Waisberg employed three types of forceps in the labour room, but disagreed about the use she made of them. Dr. Waisberg testified that she applied traction with only one moderate pull on the third set of forceps. The appellants’ evidence was that the cause of Natalie’s condition was severe compression of her skull by repeated instrumentation resulting from excessive force and traction applied with all three sets of forceps. It was their position that the hypoxic ischemic insult occurred at the end of labour as a result of the misuse of the instruments to effect delivery. It was the respondent’s position that it occurred more than two hours prior to the onset of labour, before the mother came to the hospital.

The trial judge’s reasons

[7] The trial judge’s written reasons for judgment were released over a year after the conclusion of the trial. He set out the facts, noting the serious dispute between the parties respecting the amount of force (traction) used with the three forceps in the labour room. He rejected the evidence of Marilyn Grass and her birth coach, Michelle St. Hilaire (who was present with her in the labour room), where it contradicted the nursing records and the evidence of Dr. Weisberg and the attending nurses. He found that Dr. Weisberg applied traction, in the manner she described, only with the third set of forceps. He canvassed the evidence of four of the expert witnesses who testified. He quoted from Crits v. Sylvester (1956), 1956 34 (ON CA), 1 D.L.R. (2d) 502 (Ont. C.A.) and Picard, Legal Liabilities of Doctors and Hospitals in Canada, 2nd ed. (Toronto: Carswell, 1984). He then concluded his reasons as follows:

The preponderance of the evidence before me, led by both the plaintiff and the defendant, is that the procedures followed by Dr. Weisberg prior to the C-Section were reasonable and prudent and that the place in which the procedures were attempted was appropriate. That evidence established that Dr. Weisberg’s actions were in conformance with the applicable standards of obstetricians and gynecologists practicing in Ontario in 1992.

I accept that evidence.

The plaintiff has failed to establish negligence on the part of Dr. Weisberg. It is accordingly unnecessary for me to assess the conflicting theories relating to causation.

The action must be dismissed, with costs, if demanded.

Causation

[8] The appellants’ principal submission was that the trial judge erred in addressing the issue of negligence before making, and without making, any determination of the cause of Natalie’s condition on the conflicting evidence that was before him. In support of that submission, Mr. Pape relied strongly and, in my view, rightly on the decision of this court in Meringolo v. Oshawa General Hospital (1991), 46 O.A.C. 260 (leave to appeal refused (1991), 50 O.A.C. 159.

[9] In Meringolo, a patient sustained brain damage during a bronchoscopy, leaving him in a permanent vegetative comatose state. The trial judge dismissed his action for negligence against his respirologist and his anaesthesiologist. This court allowed the patient’s appeal and found the anaesthesiologist liable for failing to monitor the patient during the procedure, holding that that failure resulted in non-ventilation or under-ventilation of the patient which in turn led to hypoxic brain damage.

[10] The application of Meringolo to the present case lies not in the similarity of the facts but rather in the legal proposition that case enunciated. There, as here, the trial judge

• reviewed the evidence dealing with the patient’s condition in hospital, reviewed the medical evidence[^1] and, before dealing with the cause of the patient’s brain damage, concluded that the doctors were not negligent;

• dealt not only with the doctors’ evidence but also with the issue of their credibility;

• expressed a preference for the opinions of medical experts called on behalf of the doctors[^2]; and

• made no finding as to the probable cause of the patient’s brain damage.

[11] In allowing the patient’s appeal in Meringolo, this court accepted the submission that the issue of negligence ought to have been deferred until the issue of causation had been first addressed. Speaking for the court, Osborne J.A. said, at ¶55, 56 and 65:

[55] The cause of the appellant’s brain damage was a critical trial issue. The appellant’s position on this issue is that the appellant was inadequately ventilated during the bronchoscopy procedure, with the result that he sustained hypoxic brain damage. This was followed by a cardiac arrest which was resolved by cardio-pulmonary resuscitation. The respondents’ position is that pulmonary embolism was a possible cause of the appellant’s brain damage. The respondents’ theory is that pulmonary embolism caused cardiac arrest which led to brain damage. The respondents’ causation analysis also incorporates, at least as a possible contributing cause, the capacity of the lungs to deliver oxygen to his blood and his brain.

[56] The critical causation issue to which I have referred above is, in my view, preliminary to the traditional negligence causation question, that is, whether it has been established that a tortfeasor’s conduct (breach of duty) caused a plaintiff’s injury. In this case, before the breach of duty issue can be appropriately addressed, what happened in the operating room on May 10, 1983, must be determined in order to provide an answer to the question, what caused the appellant’s brain damage, or, to put it more broadly, how did the appellant sustain brain damage. It is only after that issue is examined that the issue of the respondents’ alleged negligence should be considered.

[65] … before the issue of the respondents’ negligence can appropriately be addressed, findings of fact dealing with the cause of the appellant’s hypoxic brain damage must be made or it must be determined, on the basis of a consideration of all of the evidence, that such findings cannot be made. (emphasis added.)

[12] As set out in the concluding portion of his reasons in para. 7, above, the trial judge in the present case disposed of the action by finding that the appellants had failed to establish negligence on the part of Dr. Weisberg and thereby finding it unnecessary to assess the conflicting theories relating to causation. In doing so, he fell into the error articulated in Meringolo. The resolution of the question of causation might have led to different findings of fact with respect to what transpired in the labour room and to a different conclusion with respect to negligence. As in Meringolo, the appellants were entitled to the benefit of the trial judge’s findings with respect to causation or to his determination, on the basis of a consideration of all of the evidence, that such findings could not be made, before he came to address the issue of negligence.

Misapprehension of the evidence

[13] In an alternative submission, Mr. Pape argued that the trial judge erred in misapprehending material evidence in making the findings he did. He reviewed the trial record extensively, as did Mr. Underwood in reply. Both counsel took us through a great deal of testimony and nurses’ notes and hospital charts and records relating to fetal heart rate, the application and trial of forceps, fetal distress and the physical condition of the baby at birth.

[14] Having regard to my conclusion on Mr. Pape’s principal submission and to the disposition I propose to make, it is not necessary for me to express any concluded view on this alternative submission. However, I share the appellants’ concern that, in his reasons, the trial judge appears to have overlooked or ignored the evidence of Marilyn’s mother and aunt, both registered nurses with considerable experience, regarding the appearance of Natalie’s condition when they saw her in the neonatal intensive care unit shortly after her birth, and also appears to have overlooked or ignored the evidence of several expert witnesses who testified before him. On the latter subject, his reasons recited that each side “called two experts to testify as to the standard of care required and whether there was a breach of it”. In fact, the appellants called five expert witnesses[^3] and the respondent called four expert witnesses. At no point in his reasons did the trial judge identify by name or refer to the evidence of three of the appellants’ experts[^4] or identify by name or refer to the evidence of two of the respondent’s experts. These omissions fortify my conclusion that the disposition of this action at trial was flawed and cannot stand.

Disposition

[15] In Meringolo, this court found itself able, on an analysis of evidence not in dispute, to determine the question of causation and award judgment to the appellant on the basis of that determination. It was, it said, in as good a position as the trial judge to draw proper inferences from those basic facts from which there was no dispute and from which the liability of the anaesthesiologist was clear: Meringolo, ¶ 88. We do not find ourselves in that position in the present case and, indeed, Mr. Pape did not invite us to make such a determination. In his submission, with which I agree, the appropriate remedy must be a new trial.

[16] I would allow the appeal, set aside the judgment under appeal, and direct a new trial. The appellants are entitled to their costs of this appeal forthwith after their assessment. I would reserve the disposition of the costs of the first trial to the judge presiding at the new trial.

Released: MAY 11 2001 Signed: “M.A. Catzman J.A.”

RRM “I agree R.R. McMurtry C.J.O.”

“I agree Austin J.A.”

[^1]: although, with respect to the present case, see the section on Misapprehension of the evidence, below [^2]: ibid. [^3]: including a neonatologist, who was in the witness box for two full days [^4]: including the neonatologist, whom the respondent’s factum describes as “the plaintiffs’ causation expert”