DATE: 2003-01-13
DOCKET: C34481
COURT OF APPEAL FOR ONTARIO
ABELLA, MACPHERSON AND SIMMONS JJ.A.
B E T W E E N :
FRANCESCO COMMISSO and LORIDANA COMMISSO, minors by their litigation guardian ROSA COMMISSO, the said ROSA COMMISSO, DOMENIC COMMISSO, VINCE STALTERI, MARIA STALTERI AND FRANCESCO COMMISSO
Plaintiffs (Appellants)
- and -
NORTH YORK BRANSON HOSPITAL, SAM RUBENZAHL, ALLAN R. HANDYSIDES, HENRY T. LOK, MANUEL M‑C YUNG, A. SOONG, K. ANDRE, B. HERNANDEZ, V. COLEMAN, B. CHEESMAN and CELINE THOMAS, MERILYN TENERIFE and CYNTHIA DALEY
Defendants (Respondent)
Counsel:
Paul J. Pape for the appellants
J. Thomas Curry and Frank J. McLaughlin for the respondent Allan R. Handysides
Heard: October 21 and 22, 2002
On appeal from the judgment of Justice Katherine E. Swinton of the Superior Court of Justice dated May 25, 2000, reported at 2000 22374 (ON SC), 48 O.R. (3d) 484.
MACPHERSON J.A.:
[1] The appellants appeal from the judgment of Swinton J. dated May 25, 2000 dismissing their action against the respondent Dr. Allan Handysides. They ask that the judgment be set aside and that judgment be granted finding Dr. Handysides negligent and awarding the agreed damages to the appellants.
[2] The infant appellant, Francesco Commisso, suffers from cerebral palsy with resultant quadriplegia and neurological damage caused by an acute asphyxial event that occurred in the period shortly before his birth. After Francesco’s mother had not delivered her baby following several hours in delivery, Dr. Sam Rubenzahl, the general practitioner performing the delivery, consulted with Dr. Handysides, the head of the obstetrics department at North York Branson Hospital.
[3] Dr. Handysides decided to perform “a trial of mid-forceps” delivery. The word “trial” means an attempt. At the trial of this action, Dr. Handysides’ decision to attempt a mid-forceps delivery was not questioned by any of the medical experts (Dr. Manning and Dr. Bernstein who were called by the plaintiffs and Dr. Barrett who testified as a defence witness).
[4] Dr. Handysides’ attempt at a mid-forceps delivery failed because the baby’s head was too large to navigate the mother’s birth canal. At the trial, no issue was taken with the location in which Dr. Handysides applied the forceps or the manner in which he applied them.
[5] Once the trial of mid-forceps failed, delivery by caesarean section (“c‑section”) was inevitable. Dr. Manuel Yung, an anesthetist who was in the delivery room, moved to the operating room just down the hall. Pursuant to hospital policy, there was a dedicated operating room with operating room nurses available to perform the c-section.
[6] Dr. Handysides left the delivery room and walked a few paces to a nursing station to place a call to Dr. Kurt Andre, the pediatrician on call, to request that he attend for a c‑section. While on the phone, Dr. Handysides was told by a nurse that the baby’s heart rate had dropped. He rushed back into the delivery room. He quickly checked the fetal monitor to determine the baby’s heart rate; however, he could not obtain a reliable tracing. In order to determine whether there was a problem with the monitor or an abnormal heart rate, Dr. Handysides applied a scalp electrode directly to the fetal head. He confirmed the abnormal heart rate for a few seconds and declared a dire emergency.
[7] Mrs. Commisso was moved quickly to the operating room. Dr. Yung applied the anesthetic and an emergency c‑section was performed. The baby was delivered; sadly, it is profoundly disabled, probably because the trial of mid-forceps caused a blockage in the umbilical cord. The consequences, as found by the trial judge, were:
I find that there was asphyxial insult following the application of the forceps, which caused hypoxic ischemic encephalopathy - that is, brain dysfunction due to inadequate oxygen delivery and blood flow to the brain. I also find, on a balance of probabilities, that this was the cause of Francesco’s current neurological status - that is, his cerebral palsy.
[8] It is important to note that although the plaintiffs sued the hospital, four doctors and several nurses, the trial itself unfolded against only Dr. Handysides. As explained by the trial judge in the first two paragraphs of her 44 page judgment:
The plaintiffs seek damages as a result of the brain injury allegedly suffered by the minor plaintiff, Francesco Commisso, at the time of his birth on April 27, 1989. As the action was settled against the nurses and the North York Branson Hospital, the issues at trial related only to the liability of Doctors Allan Handysides, Manuel Yung, Kurt Andre and Samuel Rubenzahl . . . .
At trial, the plaintiffs essentially pursued their case only against Dr. Handysides, the obstetrician who delivered Francesco. The evidence led by them does not support any claim of negligence against Doctors Rubenzahl, Yung and Andre, and, therefore, the action against them is dismissed without further comment. [Emphasis added.]
[9] It is also important to observe that at trial the plaintiffs did not allege that Dr. Handysides was negligent in making the decision to attempt a mid-forceps delivery or in the manner in which he performed the procedure.
[10] At trial, the plaintiffs’ case proceeded on two bases: first, that Dr. Handysides was negligent, in the words of the trial judge, in not “ensuring that all preparations for a caesarean had been made before the vaginal delivery was attempted” and, in particular, not providing for “a double setup, so that the caesarean section could have been done in the same room as the trial of forceps”; and, second, Dr. Handysides was negligent “in failing to proceed to a caesarean section without delay - more precisely, within the ten minute period necessary to avert permanent damage”.
[11] The trial judge engaged in a careful and extensive review of the evidence. Relying on the testimony of both of the plaintiffs’ experts, she found that the standard of care did not require a double setup in 1989:
Dr. Manning conceded that the standard of care in 1989 did not require that the trial of forceps be done in a room equipped for an immediate caesarean section. Rather, he agreed that the standard of care required that it be possible to do an “immediate” caesarean section, and that standard could be met it there was an operating room close by, staffed and with an anesthetist available. What was important to him was the immediate response to an emergency, not the location of the operation.
Dr. Bernstein’s testimony on this issue was virtually identical.
[12] On the second issue - the speed of delivery of the baby after a dire emergency was declared - the trial judge rejected “a fixed ten minute standard of care for the delivery”. Rather, she held that the appropriate standard of care was “where a fetus is at risk . . . the doctor must move as expeditiously as possible to deliver the baby, having due regard for the safety of both patients - baby and mother”. After reviewing the evidence, she concluded that Dr. Handysides met this standard.
[13] On appeal, the appellants challenge the trial judge’s reasoning and conclusions on both the preparation and speed issues.
[14] Before turning to a consideration of these issues, it is important, in my view, to set out the chronology of events as found by the trial judge. A central issue at trial was how much time elapsed between the failure of the trial of forceps and the delivery of the baby. The reason a large amount of time was devoted to this issue at trial was that the delivery took place in two rooms, the delivery and operating rooms, and the crucial events were recorded using three different instruments or methods - the time recording monitor clock in the delivery room, the clock in the operating room and Dr. Yung’s watch, with Dr. Yung being present in both rooms throughout the procedures. The trial judge made a factual finding that there was “a difference of four to five minutes in the times recorded using Dr. Yung’s watch and those found on the tracing from the fetal heart rate monitor”. She then analyzed the evidence relating to the various steps taken during the emergency and made a factual conclusion “that the time between the removal of the forceps and the delivery of the baby was about 17 minutes”.
[15] Using 5:24 p.m. as the time of delivery, and working back through the steps and times described by the trial judge, it is clear that she found the chronology to be (all times within one minute):
5:07 p.m.
Forceps removed Dr. Handysides leaves room
5:10 p.m.
Dr. Yung leaves room Dr. Handysides returns in haste
5:10 - 5:13 or 5:14 p.m.
Dr. Handysides checks fetal heart rate, monitors results, applies a scalp electrode and inserts catheter in mother
5:13 - 5:14 p.m.
Team transfers mother from delivery room to operating room
5:15 - 5:20 p.m.
Anesthetic administered while patient prepped and doctors scrub
5:20 p.m.
C-section commences
5:24 p.m.
Baby delivered
[16] Against the backdrop of this chronology, I turn to the two issues advanced by the appellants on this appeal.
[17] The general standard of care expected of a medical practitioner, including a specialist like Dr. Handysides, is not in dispute. As expressed by Schroeder J.A. in Gent and Gent v. Wilson, 1956 128 (ON CA), [1956] O.R. 257 at 265 (C.A.):
Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.
[18] The appellants contend that the trial judge erred by not finding that the standard of care for an obstetrician who elects to attempt a mid-forceps delivery requires him to anticipate failure and therefore make all preparations in advance for an immediate c‑section. The appellants also submit that the trial judge erred by not finding that Dr. Handysides failed to meet this standard.
[19] I disagree. The appellants’ argument on this point is essentially a restatement of their argument at trial in favour of a double setup in a single delivery/operating room. That position was not supported by their own experts at trial who conceded that the standard of care in 1989 with respect to preparedness for an emergency c‑section could be met by ensuring that a staffed operating room was immediately available. Moreover, the appellants’ experts offered no evidence at trial about other preparations, different than a double setup, that Dr. Handysides should have made before attempting a trial of mid-forceps delivery.
[20] As well, I reject, for two reasons, the appellants’ claim that the total elapsed time between identifying a dire emergency and delivery creates an inference that Dr. Handysides failed to make all necessary preparations in advance for an immediate c‑section. First, I conclude that the trial judge’s findings produce the chronology set out in paragraph 15, which yields an elapsed time of 13‑14 minutes between identifying a dire emergency and delivery (and not the 18½ minutes asserted by the appellants). Second, the trial judge found that the steps taken prior to Mrs. Commisso’s arrival in the operating room, which fully account for the time elapsed in the relevant interval, were reasonable for the reasons that I accept. As I will explain more fully later, trial counsel (not appeal counsel) chose not to attack the steps taken after Mrs. Commisso arrived in the operating room. The total elapsed time does not therefore give rise to an inference that Dr. Handysides failed to make all necessary preparations for an immediate c‑section in advance.
[21] Accordingly, on the first issue I agree with the trial judge’s statement that “the standard of care in 1989 required that an obstetrician should have an operating room immediately available before attempting a mid-forceps delivery”. I also agree with her application of this standard of care to the facts of the case:
[T]he next issue is whether Dr. Handysides met the standard of care. At the time he commenced the trial of mid-forceps, he had Dr. Yung available with him in the delivery room. He would have known that there was an operating room available a short distance away down the hall, because an operating room, staffed with nurses, was assigned to Dr. Yung. Therefore, I find that the facilities necessary to perform the cesarean section were immediately available when he commenced the trial of forceps.
[22] Turning to the second issue, the speed of the delivery once a dire emergency was identified and declared, the appellants make two submissions which parallel their submissions on the previous issue - first, the trial judge erred in her formulation of the standard of care; and second, she erred in her application of the standard of care to the facts of the case.
[23] The standard of care adopted by the trial judge was “where a fetus is at risk . . . the doctor must move as expeditiously as possible to deliver the baby, having due regard for the safety of both patients - baby and mother”. The appellants submit that the words “as expeditiously as possible” set too low a standard; they propose a formulation of “as fast as humanly possible”.
[24] I do not see a real difference in these formulations. The New Oxford Dictionary of English (Oxford: Claredon Press, 1998) defines “expeditious” as “done with speed and efficiency”. Moreover, it is clear from the seven pages of analysis following her formulation of the standard of care that the trial judge regarded it as a very high standard indeed, requiring great skill and speed on the part of the specialist doctor.
[25] On the issue of application, the appellants contend that the trial judge erred by not finding that the c‑section should have been performed in less that 10 minutes from the declaration of a dire emergency. The trial judge rejected this contention in the circumstances of this case. She reasoned:
Despite the plaintiffs’ submission that the standard of care required that a caesarean section be completed in ten minutes, the evidence of their two medical experts did not support that standard, given that one or both did not criticize certain steps taken by Dr. Handysides prior to the delivery that took ten minutes or more. Doctors Manning and Bernstein testified that the four minute period to perform the actual caesarean was acceptable - indeed, Dr. Bernstein thought it was fast. They also testified that the decision as to the appropriate form of anesthesia was one to be made by the anesthetist, and Dr. Handysides could not be criticized because it took five minutes from the commencement of the anesthetic induction to the incision. Both accepted that the transfer of the patient to the operating room met the standard of care - if done in one to two minutes, according to Dr. Manning; for Dr. Bernstein, the time was variously referred to as one and two to three minutes. In addition, Dr. Manning did not question the application of the scalp electrode, which would take approximately one minute, nor the draining of the mother’s bladder in preparation for surgery. Added to this must, of necessity, be the time reasonably taken to recognize the emergency.
All of this suggests the inappropriateness of a fixed ten minute standard of care for the delivery. The fact that the defendants’ expert, Dr. Barrett, testified that caesareans could be done more quickly than ten minutes in emergency situations does not mean that the standard of care requires performance within that time frame, without consideration of the facts of the particular case, including the time at which the emergency was recognized or should have been recognized, the reasonableness of the steps taken to respond, and the conditions of both baby and mother.
[26] I agree with the trial judge’s reasoning and conclusion on this issue. Importantly, the appellants’ attempt to define speed in terms of less than 10 minutes is, in my view, almost completely undermined by the fact that at the trial, counsel (not appeal counsel) chose not to attack in any way Dr. Handysides’ conduct during the final nine minutes of the emergency. As the trial judge noted, “there was no criticism by the plaintiffs’ experts of events after entry into the operating room - that is, the five minutes for the anesthetic (from 17:15 to 17:20) and the four minutes from incision to delivery”. Indeed, not only was there no criticism of the doctors’ conduct during these nine minutes; rather, Dr. Manning and Dr. Bernstein were highly complimentary on the doctors’ performance, with Dr. Bernstein going as far as to say that Dr. Handysides “gets a medal for that” - the c‑section and delivery of the baby in four minutes.
[27] In my view, the appellants’ argument that delivery of the baby should have taken place within 10 minutes of the declaration of a dire emergency simply dissolves in light of their acknowledgement at trial that the final nine minutes of the delivery procedure were well‑handled. It would be impossible for the doctors to perform the other steps in less than one minute. Moreover, the trial judge carefully considered those other steps - Dr. Handysides checked the baby’s fetal heart rate, monitored the results, applied and read a scalp electrode and inserted a catheter in the mother - and found that the time it took Dr. Handysides to perform them, plus the one minute to transfer the mother to the operating room, were as expeditious as possible. Indeed, with respect to these steps, Dr. Manning made no criticism of Dr. Handysides and Dr. Bernstein criticized only Dr. Handysides’ decision to use a scalp electrode (a step which was supported by Dr. Manning and Dr. Barrett).
[28] In the end, the trial judge found as a fact that the time between the removal of the forceps and the delivery of the baby was about 17 minutes. The time from declaration of emergency to delivery was about 13 - 14 minutes (not 18½ minutes as asserted by the appellants). Based on my review of the record, I see no basis for interfering with the trial judge’s findings on these crucial matters. Indeed, they seem entirely correct, as does her legal conclusion that Dr. Handysides’ conduct during this time frame complied with the standard of care “to move as expeditiously as possible to deliver the baby”. In any event, even if I had some concern about the trial judge’s factual findings and legal conclusions (which I do not), in a long and complex negligence case they would be entitled to substantial deference: see Housen v. Nikolaisen, 2002 SCC 33.
[29] For these reasons, I would dismiss the appeal, with costs if demanded.
RELEASED: January 13, 2003 (“RSA”)
“J. C. MacPherson J.A.”
“I agree R. S. Abella J.A.”
“I agree Janet Simmons J.A.”