Grass (Litigation Guardian of) v. Women's College Hospital, 2005 ONCA 11387

Grass et al. v. Women's College Hospital et al. [Indexed as: Grass (Litigation Guardian of) v. Women's College Hospital]

75 O.R. (3d) 85

[2005] O.J. No. 1403

Docket: C41282

Court of Appeal for Ontario,

Feldman, Cronk and Armstrong JJ.A.

April 15, 2005

• Application for leave to appeal to the Supreme Court of Canada was dismissed with costs October 27, 2005 (Major, Fish and Abella).

Torts -- Negligence -- Medical malpractice -- Child suffering brain damage as result of oxygen and blood circulation deprivation prior to and after birth -- Trial judge finding that obstetrician was negligent in attempting to deliver child through application of third set of forceps in labour room rather than in hospital delivery room, where c-section could have been carried out more speedily -- Doctor's appeal allowed -- Trial judge erring in basing negligence finding on theory of negligence that was not advanced by plaintiffs or developed at trial and by imputing knowledge of severe fatal distress to doctor at critical time through inadvertent application of hindsight.

The minor plaintiff, N, was deprived of critical oxygen and blood circulation immediately prior to and for some time after her birth, resulting in severe brain injuries. She was delivered by an emergency c-section following unsuccessful attempts by the defendant obstetrician to perform a low forceps vaginal delivery while her mother, M, was in the second stage of labour in a labour room at the hospital. An action against the defendant for damages for negligence was allowed. The trial judge rejected the plaintiffs' theory that N's outcome resulted from ischemia, that is, reduction of critical blood supply, caused by the cumulative effect of compression on the fetal head, occasioned by the defendant's application of instruments, including forceps, to the fetus during her efforts to achieve a low-forceps vaginal delivery. She found that N suffered a sudden, near complete asphyxia (deprivation of oxygen), probably from the occult cause of cord compression. She found that N suffered a near-total hypoxic ischemic insult likely after the application of the second set of forceps. She found that, after the application of the second set of forceps and to the knowledge of those in the labour room, the fetus was in grave danger and the defendant knew or ought to have known that. She held that the defendant was negligent in attempting to deliver N through the application of a third set of forceps in the labour room, rather than in a delivery room of the hospital. The trial judge held that if M had been transferred earlier to a delivery room, where a c-section could be speedily carried out, a significantly shorter delivery insult to N would have occurred and N likely could have been resuscitated more easily. She also found in the alternative that the delay in transferring M to a delivery room materially contributed to N's injuries. The defendant appealed.

Held, the appeal should be allowed.

The trial judge erred in her negligence analysis by anchoring her negligence finding on a "risks management" theory of negligence that was not a theory of the plaintiffs' case. The case put against the defendant was not a case of excessive risk due to the delayed transfer of M to a delivery room for determination, in that setting, of an appropriate delivery method. The theory of the plaintiffs' case at trial was that N's injuries were caused by compressive forces on the fetus due to excessive traction applied through the sequential and negligent use of a series of instruments in the labour room at the hospital, which injuries would have been avoided if a c- section had been undertaken earlier in a delivery room. Although there was some evidential support for the "risks management" theory of negligence and the "transfer option" relied upon by the trial judge to ground her finding of negligence against the defendant, neither of these were central issues at [page86 ]trial. They were not pleaded, argued, advanced or otherwise developed by the plaintiffs as the basis upon which liability in negligence should be imposed. Moreover, neither the defendant nor any of the defence obstetrical witnesses were cross-examined on the transfer option or the risks management theory of negligence as formulated by the trial judge. Moreover, none of the obstetrical experts testified that the defendant failed, after the application of the second set of forceps, to identify, assess and minimize the risks to M and the fetus of the available delivery options. The defendant could not be held negligent on a theory of negligence that was not developed at trial and that formed no part of the plaintiffs' case against her.

The trial judge also erred by attributing knowledge of severe fetal distress to the defendant through, in part, the inadvertent application of hindsight. The trial judge's imputation of knowledge to the defendant of grave fetal distress before the application of the third set of forceps was driven, for the most part, by her finding that the recorded fetal heart rate ("FHR") readings were unreliable. This finding of unreliability was reached with the benefit of hindsight, based on the obstetrical experts' interpretations at trial of the FHR readings, the trial judge's own determination of causation based on the evidence adduced at trial, post-delivery notes and discussions, and N's outcome. There was no evidence at trial that the defendant knew, or could have known upon inquiry, that the FHR readings were inaccurate or unreliable at the time that she decided to apply the third set of forceps in the delivery room. Nor did the trial judge so find. In addition, there was no evidence that any health care professional involved in the labour room suggested to the defendant at the critical time (shortly before the application of the third set of forceps), or at any time, that the FHR readings were inaccurate or unreliable. The defendant could not be held accountable in law for a treatment decision based on unreliable patient data when its unreliability was neither known to her, nor available to be discovered by her upon reasonable inquiry, at the critical time.

APPEAL by the defendant from the judgment of Lang J. of the Superior Court of Justice, sitting without a jury, for the plaintiffs in a negligence action, reported at [2003] O.J. No. 5313, [2003] O.T.C. 1122 and [2004] O.J. No. 1519, [2004] O.T.C. 322 (S.C.J.). [page87]

Cases referred to Commisso (Litigation Guardian of) v. North York Branson Hospital, 2003 48421 (ON CA), [2003] O.J. No. 20, 168 O.A.C. 100; Crits v. Sylvester 1956 34 (ON CA), [1956] O.R. 132, 1 D.L.R. (2d) 502 (C.A.), affd 1956 29 (SCC), [1956] S.C.R. 991, 5 D.L.R. (2d) 601; Grass (Litigation Guardian of) v. Women's College Hospital, 2001 8526 (ON CA), [2001] O.J. No. 1766, 200 D.L.R. (4th) 242, 5 C.C.L.T. (3d) 180, 144 O.A.C. 298 (C.A.), revg [1999] O.J. No. 5034 (S.C.J.) [Leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 372]; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 219 Sask. R. 1, 211 D.L.R. (4th) 577, 286 N.R. 1, 272 W.A.C. 1, [2002] 7 W.W.R. 1, 30 M.P.L.R. (3d) 1, 10 C.C.L.T. (3d) 157, revg [2000] S.J. No.58, Sask. R. 51, 216 W.A.C. 51, [2000] 4 W.W.R. 173, 50 M.V.R. (3d) 70, 9 M.P.L.R. (3d) 126, 2000 SKCA 12 (C.A.); Lapointe v. Hôpital Le Gardeur, 1992 119 (SCC), [1992] 1 S.C.R. 351, [1992] S.C.J. No. 11; Rann v. Twitchell, 82 Vt. 79 (1909); ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674, [1995] S.C.J. No. 79 , 11 B.C.L.R. (3d) 201, 127 D.L.R. (4th) 577, 188 N.R. 161, [1995] 10 W.W.R. 1 (sub nom. Neuzen v. Korn); Waxman v. Waxman, 2004 39040 (ON CA), [2004] O.J. No. 1765, 186 O.A.C. 201, 44 B.L.R. (3d) 165 (C.A.); Wilson v. Swanson, 1956 61 (SCC), [1956] S.C.R. 804, 5 D.L.R. (2d) 113 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194

Harry Underwood and Frank J. McLaughlin, for appellant/ respondent by way of cross-appeal. Paul J. Pape, for respondents/appellants by way of cross- appeal.

The judgment of the court was delivered by

CRONK J.A.: --

I. Overview

[1] Natalie Grass was born on September 1, 1992 at Women's College Hospital in Toronto. She was delivered by an emergency caesarean section ("c-section") following unsuccessful attempts by the appellant obstetrician, Dr. Fay Weisberg, to perform a 'low forceps' vaginal delivery while Natalie's mother, Marilyn Grass, was in the second stage of labour in a labour room at the hospital.

[2] Tragically, Natalie was deprived of critical oxygen and blood circulation immediately prior to and for some time after her birth, resulting in severe brain injuries. She was born with no detectable signs of life. Although she was ultimately resuscitated, Natalie suffers from 'hypoxic ischemic encephalopathy', a brain disease that includes, in her case, cerebral palsy, spastic quadriplegia and cognitive deficits. She has no verbal communication abilities and limited motor skills and requires 24-hour care, including gastric tube feeding.

[3] In August 1993, Marilyn Grass sued Women's College Hospital, Dr. Weisberg and various nurses on behalf of Natalie and herself, seeking damages for alleged negligence in the management of her labour and Natalie's delivery. Her action was subsequently dismissed as against all defendants save for Dr. Weisberg, and the action proceeded to trial against only the doctor. The quantum of damages was agreed and the sole issue at trial was liability.

[4] The trial was conducted before Jennings J. of the Superior Court of Justice in 1998. By judgment dated December 21, 1999, he dismissed the action against Dr. Weisberg: [1999] O.J. No. 5034. In 2001, this court allowed an appeal and ordered a new trial on the basis that the trial judge erred in addressing the issue of negligence without resolving the competing causation theories advanced at trial. The costs of the first trial were reserved to the judge who conducted the second trial: 2001 8526 (ON CA), [2001] O.J. No. 1766, 200 D.L.R. (4th) 242 (C.A.). In 2002, Dr. Weisberg's application for leave to appeal to the Supreme Court of Canada was dismissed: [2001] S.C.C.A. No. 372.

[5] The second trial was conducted in the fall of 2003 before Lang J. By judgment dated December 31, 2003, she found that [page88 ]Dr. Weisberg was negligent in attempting to deliver Natalie through the application of a third set of forceps in the labour room, rather than in a delivery room of the hospital. The trial judge held that if Ms. Grass had been transferred earlier to a delivery room, where a c-section could be speedily carried out, a significantly shorter delivery insult to Natalie would have occurred and Natalie likely could have been resuscitated more easily, thereby avoiding her dismal outcome. She also found, in the alternative, that the delay in transferring Ms. Grass to a delivery room materially contributed to Natalie's injuries.

[6] The trial judge awarded the respondents their costs of both trials on a partial indemnity basis. However, she denied their claim for the payment of a premium to their counsel by Dr. Weisberg and limited their total counsel fees at trial to the maximum partial indemnity amounts set out in the costs grid under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[7] Dr. Weisberg appeals from the trial judge's liability judgment. Among other grounds, she argues that the trial judge erred: (i) by finding, contrary to the expert medical evidence at trial, that Dr. Weisberg's 'trial of forceps' should have been abandoned before the application of the last set of forceps (the "Kiellands"); (ii) by basing her negligence finding on a risks management theory of negligence that was neither advanced by the respondents, nor supported by the evidence at trial; (iii) by misapprehending the evidence and inadvertently applying hindsight in her assessment of Dr. Weisberg's knowledge of the fetus' condition when she decided to apply the Kiellands; (iv) by failing to address key expert obstetrical evidence, and preferring one expert obstetrical opinion to another body of expert obstetrical opinion, without rejecting the latter, in holding that the decision to apply the Kiellands while Ms. Grass was still in the labour room was negligent; (v) by applying a subjectively-based, rather than an objectively-based, standard of care; and (vi) by making a finding of causation on the basis of a four-minute delay in calling for an immediate c-section.

[8] The respondents seek leave to cross-appeal and, if leave is granted, cross-appeal from the trial judge's costs award. They submit that the trial judge erred: (i) by denying them their costs of both trials on a substantial indemnity basis; (ii) by rejecting their claim for the payment of a premium to their counsel by Dr. Weisberg; and (iii) by limiting counsel fees at trial to the maximum partial indemnity amounts permitted in the costs grid under the Rules.

[9] For the reasons that follow, I conclude that the trial judge erred by basing her negligence finding against Dr. Weisberg on a [page89] theory of negligence that was not advanced by the respondents nor developed at trial, and by imputing knowledge of severe fetal distress to Dr. Weisberg at the critical time through, at least in part, the inadvertent application of hindsight. In my opinion, these errors necessitate a new trial in the circumstances of this case. Accordingly, I would allow the appeal. Since the issues on the cross-appeal are premised on the respondents' success at trial and I have concluded that a new trial is required, I would grant leave to cross-appeal and dismiss the cross-appeal.

II. Facts

[10] Ms. Grass' pregnancy with Natalie, her first child, was uncomplicated and a normal delivery of the baby was anticipated. Ms. Grass went into labour in the early hours of August 31, 1992. By 0538 hours, she had been admitted to the labour room at the hospital under the care of Dr. Weisberg, who had also managed her care during her pregnancy.

[11] The first stage of Ms. Grass' labour was lengthy but progressed normally, assisted by medication to facilitate dilation and ease pain. Ms. Grass was examined on several occasions by Dr. Weisberg, including at 2300 hours on August 31, by which time Ms. Grass was fully dilated. This marked the onset of the second stage of labour.

[12] The second stage of labour proceeded over the next two hours and 24 minutes. During this interval, the vertex (the crown of the baby's head) descended only slightly in Ms. Grass' birth canal. At 0108 hours on September 1, the attending obstetrical nurse detected "some caput", that is, swelling and fluid on the fetal head caused by contact between the head and the maternal pelvis. Its presence signalled some descent of the fetus, as well as the potential for the bony landmarks of the fetal scalp to be obscured.

[13] From the time that she became fully dilated until 0118 hours on September 1, Ms. Grass pushed regularly in an effort to advance the vertex. Throughout these efforts, Natalie's fetal heart rate ("FHR") was normal and no concerns arose regarding fetal safety; nor were there any indications for a c- section.

[14] At 0124 hours on September 1, Dr. Weisberg was contacted by the nursing staff to assess the 'position' and 'station' of the vertex. Vertex 'position' refers to the placement of the fetus during its descent in the mother's birth canal. Vertex 'station' refers to the location of the fetal head in relation to the mother's mid-pelvis.

[15] In most cases, a fetus descends in the 'occiput anterior' ("OA") position with its face positioned towards the mother's [page90 ]back. This is the optimal position for delivery because the fetus presents the smallest diameter of the fetal head to fit through the mother's pelvis. A fetus in the OA position will usually be delivered within two hours after the onset of the second stage of labour.

[16] A fetus may also descend in the 'occiput posterior' ("OP") position, with its face positioned towards the mother's abdomen. Although vaginal delivery of a fetus in the OP position is possible, it is potentially more difficult because the fetus presents a larger diameter to the maternal pelvis. An OP position can also lead to prolonged second stage labour.

[17] The vertex can also be in an intermediate placement, between the OA and the OP positions, with the fetal face positioned towards the mother's right or left side. In this 'occiput transverse' ("OT") position, vaginal delivery of the fetus is not possible.

[18] When Dr. Weisberg examined Ms. Grass at 0124 hours on September 1, she concluded that Natalie was in the OA position. In fact, the fetus was in the OP position. None of the obstetrical experts who testified at trial suggested that this initial misdiagnosis of the fetal position was negligent. To the contrary, the evidence established that mistaking an OP for an OA position is not an uncommon error. The trial judge accepted this evidence and concluded that the initial misdiagnosis of the vertex position was not negligent. However, as I will describe, it did influence subsequent delivery events.

[19] Vertex 'station' is measured in relation to the mother's ischial spines, that is, in relation to the curved bones that anatomically form the base of the pelvis. A vertex station of '+2+3' indicates that the head of the fetus has descended to two or three centimetres below the ischial spines. A forceps delivery at this station is a 'low forceps' delivery, the least risky of all forceps interventions for both the mother and fetus. When Dr. Weisberg examined Ms. Grass at 0124 hours on September 1, she concluded that the vertex station was favourable, at +2+3.

[20] Dr. Weisberg made no notation in Ms. Grass' chart of her observations of the vertex position and station until after Natalie's delivery by c-section.

(1) Chronology of events

[21] The trial judge's factual findings establish the following chronology of events during the last 24 minutes of Ms. Grass' labour and Natalie's delivery:

0124 hours -- Dr. Weisberg conducted a vaginal examination of Ms. Grass, determined that the vertex station was +2+3, and concluded that the fetus was in the OA position. She decided to conduct a vaginal delivery with the use of instrumentation; [page91]

Vacuum Application

0128 to 0129 hours -- Dr. Weisberg twice applied a vacuum extraction device to the fetal head, accompanied by traction. The cup popped off on each occasion, as intended if resistance is encountered. Neither effort was successful in advancing the vertex and use of the vacuum was discontinued without any damage to the fetus;

Simpsons Application

0130 hours -- Dr. Weisberg decided to attempt a forceps delivery. The trial judge found that she applied Simpsons forceps ("Simpsons")"once with gentle traction" for a duration within accepted professional standards. However, Dr. Weisberg was uncomfortable with the positioning of the Simpsons and removed them. Thereafter, she ordered a 'top-up' of Ms. Grass' epidural medication, which was administered;

Discovery of OP Position

0131 hours -- Dr. Weisberg then conducted a further vaginal examination of Ms. Grass and discovered, contrary to her earlier belief, that the fetus was in the OP rather than the OA position.

The obstetrical nurse proposed that Ms. Grass be transferred to a delivery room, a suggestion rejected by Dr. Weisberg. Instead, Dr. Weisberg decided to apply Tucker-McLane forceps ("Tuckers") to rotate the fetus from the OP to the OA position. She intended, thereafter, to remove the Tuckers and re-apply the Simpsons to deliver the fetus with traction;

Tuckers Application

0132 hours -- In between contractions, Dr. Weisberg applied the Tuckers and successfully rotated the fetus from the OP to the OA position. The trial judge held that Dr. Weisberg "likely only applied the Tuckers for rotation" and did not apply traction.

Dr. Weisberg then removed the Tuckers and requested that Ms. Grass bear down and push during her next contraction. However, this did not produce any movement of the fetus;

0133 hours -- Dr. Weisberg conducted another vaginal examination and discovered that the fetus had moved from the OA to the OT position, from which it could not be delivered vaginally.

She decided to apply the Kiellands to rotate the fetus from the OT to the OA position, with the intent of then applying traction with the Kiellands to deliver the fetus. She asked a nurse to obtain the Kiellands; [page92]

Kiellands Application

0136 hours -- Dr. Weisberg applied the Kiellands, successfully rotated the fetus to the OA position and then applied "moderately strong traction on two occasions". However, the fetus did not move;

The c-section

0140 hours -- Dr. Weisberg called for an immediate c- section and Ms. Grass was transferred to a delivery room;

0143 hours -- Preparations for a c-section were undertaken;

0146 hours -- The c-section was commenced and concluded rapidly;

0148 hours -- Natalie was delivered 'flat' and resuscitation efforts were immediately and successfully undertaken in the neonatal intensive care unit by the attending neonatologist.

Natalie exhibited none of the hallmark physical signs of the injudicious use of forceps. On delivery, cephalo-pelvic disproportion was evident, that is, a mismatch between the size of the fetus' vertex and Ms. Grass' pelvis.

(2) Expert obstetrical evidence

[22] Three obstetricians testified at trial on the issue of negligence: Dr. Frank Manning on behalf of the respondents, and Drs. Walter Hannah and Michael McGrath for the appellant. In most instances, Dr. Manning's opinions on the use of forceps for vaginal deliveries and on the propriety of Dr. Weisberg's use of them in this case differed dramatically from those of the defence experts.

[23] Dr. Manning obtained his medical and obstetrical specialty training in Winnipeg in the mid-1970s, where he also practised obstetrics for several years. He has never been licensed to practise medicine in Ontario. At the time of trial, he had a high-risk pregnancy and general obstetrics practice in New York City. He also served as the Chair of Obstetrics and Gynaecology at NYU Downtown Hospital in that city. His qualifications as an expert obstetrician were not challenged by the appellant at trial.

[24] Dr. Manning is not a proponent of the use of forceps in obstetrical practice. Indeed, he has serious concerns regarding their obstetrical use and offered the opinion that there was an overuse of forceps at Women's College Hospital in 1992. He confirmed that the use of forceps for deliveries is "exceedingly rare" and has "largely disappeared" in New York State, where he practises medicine. The trial judge noted that Dr. Manning's standards for the application of forceps fall at the conservative end of obstetrical opinion. [page93]

[25] Notwithstanding Dr. Manning's views concerning the use of forceps, the trial judge concluded that their obstetrical use was clearly within the standard of care at Women's College Hospital in 1992. This finding is not challenged by the respondents.

[26] It was Dr. Manning's original opinion in this case that Dr. Weisberg's use of each of the vacuum extractor and the Simpsons, Tuckers and Kiellands forceps fell below the requisite standard of care. However, during his testimony, he made important concessions regarding the propriety of Dr. Weisberg's attempts to deliver Natalie vaginally, including her use of forceps. I discuss certain of these concessions, and their significance for the disposition of this appeal, later in these reasons.

[27] Dr. Hannah served for two decades as Gynaecologist-in- Chief at Women's College Hospital and, for nine years, as Obstetrician and Gynaecologist-in-Chief at Toronto Hospital, both teaching hospitals in Toronto. He is a former Chair of Obstetrics and Gynaecology at the University of Toronto and has lectured and written widely on a variety of obstetrical topics. In contrast to Dr. Manning, Dr. Hannah expressed concerns regarding the prevalence of c-sections, and confirmed his confidence in the propriety and safety of forceps use in obstetrical practice in Canada.

[28] Dr. McGrath enjoys specialty designations in both obstetrics and gynaecology. He is affiliated with both the Kingston General and Hotel Dieu Hospitals in Kingston and is a past Chair of the Maternal-Fetal Medicine Division of Queen's University in the same city, where he continues to teach obstetrics. Like Dr. Hannah, Dr. McGrath frequently lectures and publishes on various obstetrical topics. He uses forceps in his clinical obstetrical practice and used them to assist with deliveries in 1992.

[29] Drs. Hannah and McGrath both testified that Dr. Weisberg's use of instrumentation, including her use of the Kiellands, was appropriate in the circumstances of this case and did not fall below the standard of care expected of obstetricians in Ontario in 1992.

[30] As I describe in the next section of these reasons, the trial judge accepted that Dr. Weisberg was not negligent in her use of the vacuum extractor, the Simpsons and the Tuckers. She concluded, however, that Dr. Weisberg's use of the Kiellands in the labour room, in the circumstances then prevailing, was negligent.

[31] In the trial judge's view, the negligence issues in this case were reduced to the question of the propriety of the Kiellands application in the circumstances and setting in which it occurred. No complaint was raised at trial concerning the conduct or duration of the c-section procedure. The trial judge found that it was carried out with remarkable and commendable speed and skill, once undertaken. [page94]

(3) Trial judge's decision

(i) Causation

[32] All of the experts who testified on causation at this trial agreed that Natalie suffered hypoxic ischemic encephalopathy, primarily as the result of a 'near-total' hypoxic ischemic insult. As described by the trial judge"The experts agreed that no definitive answer could be given as to what caused that interruption of oxygen and blood flow, but they could say a 'sentinel' event happened minutes before her birth. They disagreed as to the likely cause of that insult." As well, a prolonged 'partial insult' to the brain occurred, causing additional brain damage.

[33] The respondents attributed Natalie's outcome to ischemia, that is, reduction of critical blood supply, caused by the cumulative effect of compression on the fetal head, occasioned by Dr. Weisberg's application of instruments, including forceps, to the fetus during her efforts to achieve a low-forceps vaginal delivery. In contrast, the appellant attributed the cause of Natalie's 'near-total' insult to a severe and sudden compression of the umbilical cord.

[34] The trial judge rejected the respondents' theory of forceps compression, holding that Natalie suffered "a sudden, near-complete asphyxia [deprivation of oxygen], most probably from the occult cause of cord compression". She found that Natalie sustained a 'near-total' insult"likely after the application of the Tuckers forceps at about 1:35 a.m. She then suffered a subsequent prolonged partial insult, which continued until her heart and respiratory functions were fully restored." She also held that the four-minute delay in proceeding with a c-section, occasioned by Dr. Weisberg's application of the Kiellands in the labour room, materially contributed to Natalie's brain damage.

(ii) Standard of care

[35] The trial judge found that at 0135 hours on September 1, after the application of the Tuckers at 0132 hours and to the knowledge of those in the labour room, the fetus was in "grave danger" and that Dr. Weisberg "knew, or ought to have known, that she had a fetus in jeopardy". She held that, in these circumstances, Dr. Weisberg had three options: (i) she could elect an immediate attempt at forceps delivery in the labour room; (ii) she could move directly to a c-section; or (iii) she could transfer Ms. Grass to a delivery room, monitor the FHR, and then decide on a delivery method (the "Transfer Option").

[36] Dr. Weisberg chose the first of these. The trial judge concluded that this decision fell below the applicable standard of care [page95 ]and that Dr. Weisberg should have elected the Transfer Option. She held that Dr. Weisberg was obliged to transfer Ms. Grass to a delivery room at 0135 hours, following the application of the Tuckers. Thereafter, based on continued monitoring of the FHR, Dr. Weisberg would be positioned to assess the risks and benefits of her available delivery options and to determine whether to apply the Kiellands or to perform a c-section in a delivery room. In the trial judge's view, only this 'risks management' approach, and the Transfer Option upon which it depended, would preserve Dr. Weisberg's delivery options in a manner that minimized the risks associated with a failed Kiellands application.

III. Issues

[37] Of the various grounds of appeal raised by the appellant, I address three issues in these reasons:

(i) whether, contrary to the expert medical evidence at trial, the trial judge erred by finding that Dr. Weisberg's 'trial of forceps' should have been abandoned before the Kiellands application;

(ii) whether the trial judge erred by basing her negligence finding on a 'risks management' theory of negligence that was neither advanced by the respondents, nor supported by the evidence at trial; and

(iii) whether the trial judge erred by inadvertently applying hindsight in her assessment of Dr. Weisberg's knowledge of Natalie's condition when she decided to apply the Kiellands.

IV. Analysis

A. Appeal

[38] There is no dispute in this case concerning the general standard of care expected of a physician, including a specialist like Dr. Weisberg. The Supreme Court of Canada described this standard in ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674, [1995] S.C.J. No. 79, at para. 33 in this fashion:

It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist, such as a gynaecologist and obstetrician, the doctor's behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist, such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average [page96] specialist in his field: see Wilson v. Swanson, 1956 61 (SCC), [1956] S.C.R. 804, at p. 817, Lapointe v. Hôpital Le Gardeur, 1992 119 (SCC), [1992] 1 S.C.R. 351, at p. 361, and McCormick v. Marcotte, 1971 52 (SCC), [1972] S.C.R. 18.

(Citations in original).

See also Commisso (Litigation Guardian of) v. North York Branson Hospital, 2003 48421 (ON CA), [2003] O.J. No. 20, 168 O.A.C. 100, at para. 17 and Crits v. Sylvester, 1956 34 (ON CA), [1956] O.R. 132, 1 D.L.R. (2d) 502, at p. 143 O.R. (C.A.), at p. 143 O.R., affd 1956 29 (SCC), [1956] S.C.R. 991, 5 D.L.R. (2d) 601.

[39] The trial judge's reasoning in support of her conclusion that Dr. Weisberg's decision to apply the Kiellands in the labour room fell below the applicable standard of care was set out in the following key paragraphs of her reasons ([2003] O.J. No. 5313):

[Dr. Weisberg] was obliged, in my view, to err on the side of fetal safety and move the mother to a delivery room. Had she done so, she could then have reasonably made a decision to apply Kiellands, or to perform a caesarean, based on the then status of the fetal heart. In the circumstances of this case, by proceeding instead in the labour room, she did not adequately consider all the circumstances, the possibility of the failure of forceps, and the fetal damage that could then ensue with a further delay to caesarean. All these matters would have been considered by a similarly situate obstetrician with her experience in 1992.

Moreover, Dr. Weisberg had time to make the transfer to the delivery room. ... The hospital record and the witnesses confirm that all now believed the situation to be an emergency. Had the transfer been made, Dr. Weisberg would have continued to have options.

Dr. Weisberg had a choice. She knew, or ought to have known, that fetal brain damage begins within eight minutes and that some fetuses are more vulnerable than others. If she proceeded with the Kiellands, and was unsuccessful, the fetus would already have suffered some minutes of compromise and would suffer an additional delay awaiting a caesarean delivery. If she transferred Ms. Grass to the delivery room and the [FHR] recovered en route, she retained the option of first attempting Kiellands before proceeding to an immediate caesarean. By remaining in a labour room, she reduced her options and increased the risk associated with a failed attempt at Kiellands. She put the fetus at an unacceptable and unnecessary risk.

Had Dr. Weisberg made a documented, reasoned, judgment call, based on all the facts, to proceed to a Kiellands application, then that may have been a call balancing risks and benefits and would have been within the standard of care. The decision to proceed, however, was not one of reasoned judgment made quickly in the circumstances of the moment. Rather, it was made in the context of a number of factual errors and in a determination to proceed to the last step without consideration for the primary goal of fetal safety.

Dr. Weisberg's decisions to move to vacuum and two forceps attempts can be classified as matters of judgment and therefore fall within the standard of care. Her decision, however, to proceed to a third application of forceps in the labour room fell below the applicable standard of care in the circumstances. Transfer to the delivery room should have been ordered when Dr. Weisberg realized the fetus had rotated to an [OT] position and was experiencing [page97] asphyxia. Had she done so, Natalie would likely have been delivered by 1:42 a.m., or by 1:44 a.m. at the latest. In that circumstance, she would have endured a significantly shorter insult and her resuscitation would have likely been much easier.

[40] As well, when considering the issue of causation at an earlier point in her reasons, the trial judge stated:

The experts agreed that Natalie likely would not have suffered the same outcome had she been delivered earlier by caesarean and not suffered a number of minutes of insult. Thus, on a balance of probabilities, Dr. Weisberg's decision, after the application of the Tuckers at 1:32 a.m., to wait until 1:36 a.m. and apply the Kiellands twice, and to not first transfer Ms. Grass to a delivery room, delayed Natalie's caesarean delivery and materially contributed to her brain damage.

[41] It is important to observe that this was a long and complex negligence trial conducted by a very experienced trial judge. The trial judge's thoughtful and detailed reasons make it clear that she carefully considered and assessed much of the often conflicting evidence relating to Dr. Weisberg's conduct.

[42] However, with respect, I am of the view that the trial judge erred in her negligence analysis by anchoring her negligence finding on a 'risks management' theory of negligence that was not a theory of the respondents' case, and by attributing knowledge of severe fetal distress to Dr. Weisberg through, in part, the inadvertent application of hindsight. The effect of these errors, in my opinion, necessitates a new trial.

(1) Abandonment of 'trial of forceps' before the Kiellands application

[43] Dr. Weisberg argues that the trial judge erred by finding that the 'trial of forceps' should have been abandoned before the application of the Kiellands and that this finding is contrary to the expert medical evidence at trial. The respondents submit that this argument is misconceived and that the trial judge did not find that the use of forceps should have been abandoned.

[44] I agree with the respondents' submission. In this case, a 'trial of forceps' refers to an attempt to use forceps to achieve a vaginal delivery of Natalie. The trial judge did not conclude that the 'trial of forceps' embarked upon by Dr. Weisberg should have been abandoned prior to the application of the Kiellands, or that the Kiellands should not have been utilized. Rather, her holding that Dr. Weisberg's conduct fell below the applicable standard of care was based on her conclusion that the Kiellands should not have been applied by Dr. Weisberg, and the decision to apply them should not have been made, in the labour room at the hospital. [page98]

[45] As I mentioned previously, the trial judge held that, after the application of the Tuckers, Dr. Weisberg should have pursued the Transfer Option and thereafter determined an appropriate delivery strategy. On the trial judge's analysis, the negligent aspects of the Kiellands application pertained to the timing of their application and the location within the hospital where Dr. Weisberg elected to use them. Accordingly, the appellant's first ground of appeal must fail.

(2) 'Risks management' theory and transfer option

[46] The trial judge's negligence finding against Dr. Weisberg is grounded in her view that, by rejecting the Transfer Option, Dr. Weisberg failed to identify, assess and minimize the potential risks associated with her available delivery options, and failed to preserve these options, after the application of the Tuckers. In the trial judge's view, the use of the Kiellands was a possible viable non-negligent option for the delivery of the fetus so long as the Transfer Option was followed, that is, so long as Ms. Grass was first transferred to a delivery room where a c-section could be performed promptly if necessary, and so long as Dr. Weisberg made the decision to apply the Kiellands based on the status of the FHR when Ms. Grass was en route to and in a delivery room.

[47] The trial judge stated concerning this 'risks management' theory of negligence (at paras. 248-53):

[Dr. Weisberg] was obliged, in my view, to err on the side of fetal safety and move the mother to a delivery room. Had she done so, she could then have reasonably made a decision to apply the Kiellands, or to perform a caesarean, based on the then status of the fetal heart. ...

Had the transfer been made, Dr. Weisberg would have continued to have options.

Dr. Weisberg had a choice. ... If she proceeded with the Kiellands, and was unsuccessful, the fetus would already have suffered some minutes of compromise and would suffer an additional delay awaiting a caesarean delivery. If she transferred Ms. Grass to the delivery room and the [FHR] recovered en route, she retained the option of first attempting Kiellands before proceeding to an immediate caesarean. By remaining in a labour room, she reduced her options and increased the risk associated with a failed attempt at Kiellands. She put the fetus at an unacceptable and unnecessary risk.

Had Dr. Weisberg made a documented, reasoned, judgment call, based on all the facts, to proceed to a Kiellands application, then that may have been a call balancing risks and benefits and would have been within the standard of care.

The obstetrician, in the absence of charting the course of labour, put herself in a position where she could not properly weigh the risks and benefits to her patient and to the child.

(Emphasis added) [page99]

[48] During oral argument before this court, the respondents did not dispute that the trial judge adopted this 'risks management' theory of negligence, or that it underlies her negligence finding against Dr. Weisberg. Nor did they assert that this theory and the associated Transfer Option were conceived or advanced by them prior to or at trial. They submit, however, that the theory of their case was that the Kiellands should not have been used and that Dr. Weisberg's failure to move rapidly to a c-section in a delivery room occasioned avoidable damage to Natalie, leading to her tragic outcome. In particular, they argue that the 'risks management' theory of negligence utilized by the trial judge was subsumed in their theory of negligence and, as a result, Dr. Weisberg suffered no prejudice from the trial judge's reliance on the 'risks management' theory and the Transfer Option.

[49] I disagree. The case put against the appellant was not a case of excessive risk due to the delayed transfer of Ms. Grass to a delivery room for determination, in that setting, of an appropriate delivery method. The theory of the respondents' case at this trial was that Natalie's tragic injuries were caused by compressive forces on the fetus due to excessive traction applied through the sequential and negligent use of a series of instruments in the labour room at the hospital, which injuries would have been avoided if a c-section had been undertaken earlier in a delivery room.

[50] Having read and reread the transcripts of the expert obstetrical evidence at trial, the pleadings, and the available written final arguments made by the parties at trial, I conclude that the 'risks management' construct of negligence adopted by the trial judge (and the Transfer Option upon which it was based) comprised a different theory of negligence from that advanced by the respondents. Accordingly, on the record in this case, this theory could not serve as the linchpin for a finding of negligence against Dr. Weisberg. I reach this conclusion for the following reasons.

(i) Failure to plead 'risks management' theory

[51] In their statement of claim, the respondents alleged various acts of negligence against Dr. Weisberg. These included allegations that she failed to make a timely diagnosis of fetal distress, thereby delaying Natalie's delivery and causing her birth injuries, and that she failed to take appropriate precautions for an allegedly "high risk" delivery candidate like Ms. Grass. However, no claim was made that Dr. Weisberg acted negligently by attempting to deliver Natalie with forceps in a labour [room], as opposed to a delivery room at the hospital; by failing to transfer Ms. Grass to a delivery room; by failing to perform a timely [page100] c-section; or by failing to identify and assess the comparative risks to Ms. Grass and Natalie of various delivery strategies or options. No pleadings amendment appears to have been sought by the respondents before or at trial.

[52] On a generous reading of the respondents' pleading, it does not clearly encompass an allegation of negligent 'risks management' by Dr. Weisberg or a claim that she was negligent by failing to act in accordance with the Transfer Option, as described by the trial judge. At best, the allegations of negligence particularized in the pleading are ambiguous concerning the respondents' asserted theory of negligence. Similarly (and not unexpectedly given the contents of the respondents' pleading), Dr. Weisberg's statement of defence does not address the 'risks management' theory of negligence or the Transfer Option that forms the crux of that theory.

[53] I recognize that in complicated negligence actions, like this case, the parties' positions are often refined, clarified and sometimes augmented over time during the pre-trial discovery and production processes and at trial. Thus, the issues framed by the pleadings in such actions do not always reflect the developed positions of the parties or the precise issues as articulated and pursued at trial. Nevertheless, at the end of the day, the issues between the parties are defined by and confined to those pleaded. In this case, the respondents' pleading supports the conclusion that the parties did not join issue on the 'risks management' theory of negligence and the Transfer Option relied upon by the trial judge. On the basis of the pleadings, it cannot be said that they were live issues in this action in any meaningful sense.

(ii) Failure to argue 'risks management' theory

[54] Following oral argument before this court, we requested the parties to provide, to the extent available, copies of the transcripts of the final submissions or any written final arguments of counsel before the trial judge. In response, we received copies of the respondents' final brief (together with a 29-page unofficial transcription of the oral arguments at trial prepared on behalf of the respondents' counsel) and the appellant's written argument and compendium, as filed with the trial judge.

[55] Based on these materials and the reasons of the trial judge, I agree with the appellant's submission that the 'risks management' theory of negligence and the associated concept of the Transfer Option were not argued by the respondents at this trial. To the contrary, the negligence theory advanced by the respondents was focused on the appellant's failure to proceed to a c-section in a [page101] delivery room following the application of the Simpsons and, to a lesser extent, following the use of the Tuckers. During their closing arguments, the respondents did not make allowance for any application of the Kiellands, in any setting in the hospital. Their overriding submission was that a c-section should have been undertaken after the Simpsons. No doubt for this reason, the corresponding focus of the defence's final arguments at trial was on the contention that the applicable standard of care was breached by the appellant following her application of the Simpsons.

[56] I observe, however, that during the final oral submissions of counsel for the appellant, the trial judge appears to have posed questions that could be interpreted as relating to the Transfer Option and the 'risks management' theory of negligence. In particular, she questioned Dr. Weisberg's counsel regarding Dr. Weisberg's decision to proceed with the use of the Kiellands in light of the fetus' declining FHR immediately prior to their application.

[57] This questioning of the appellant's counsel was a brief exchange during lengthy final submissions. It did not flow from any argument or theory of negligence advanced on behalf of the respondents in final argument or during the evidential phase of this trial.

[58] In these circumstances, it cannot be said that the 'risks management' theory of negligence and the Transfer Option were part of the respondents' assertions of negligence against Dr. Weisberg. They simply were not on the parties' radar as central, or even live, contested issues.

(iii) Evidential support for 'risks management' Theory and Transfer Option

[59] As I have stated, the appellant contends that the 'risks management' theory of negligence and the Transfer Option cannot be supported by the evidence at trial. To the extent that this suggests that they lacked any evidential foundation, I disagree.

[60] In my view, Dr. Manning's evidence provided some support for the Transfer Option and the 'risks management' theory of negligence. However, neither formed any part of the core of the respondents' negligence case against the appellant. Nor did either figure in any prominent fashion in the evidence adduced at trial.

[61] The trial judge described the respondents' position on negligence, as articulated by Dr. Manning in his testimony, in these terms: "Dr. Manning, for the plaintiffs, said that, in his opinion, Dr. Weisberg was outside the standard of care when she applied vacuum and when she applied the Simpsons, Tuckers and Kiellands forceps." During oral argument before this court, counsel [page102] for the respondents candidly acknowledged that this was a correct, albeit succinct, description of Dr. Manning's evidence and that it accurately reflected the respondents' position at this trial.

[62] Neither Dr. Hannah nor Dr. McGrath testified that Dr. Weisberg failed to properly manage the potential risks associated with her available delivery options following the application of the Tuckers, or that she failed to preserve all available options in order to minimize those risks. Nor did they say that, by remaining in the labour room, Dr. Weisberg reduced her delivery options and increased the risks for the fetus and Ms. Grass attendant on a possible failure of the Kiellands to achieve delivery of the fetus. In addition, they were not cross-examined on these issues.

[63] Accordingly, any evidential support for the trial judge's conclusion that Dr. Weisberg was negligent by failing to elect the Transfer Option and to manage the risks of her available delivery options, including those risks attendant on the decision at 0136 hours to apply the Kiellands in the labour room, must be found in Dr. Manning's evidence.

[64] Dr. Manning was equivocal, and his articulation of the appellant's breach of the applicable standard of care shifted, throughout his testimony.

[65] Dr. Manning began his evidence-in-chief by asserting that any attempt at vaginal delivery using instrumentation was inappropriate when the position of the fetal head was not known and when the second stage of labour was prolonged. By the end of his direct examination, however, Dr. Manning had resiled from this position and offered the opinion that Dr. Weisberg was negligent in attempting to deliver the fetus vaginally following her failed attempt with the Simpsons. At its clearest, Dr. Manning's opinion was that Dr. Weisberg acted within the standard of care in using the vacuum and the Simpsons in the labour room, but that she breached the standard once she attempted further forceps applications, regardless of the location within the hospital of those attempts.

[66] A close examination of Dr. Manning's evidence reveals the ambiguity and inconsistencies in his opinions concerning the propriety of Dr. Weisberg's conduct. At times in his testimony, he seemed implicitly to allow for the use of the Tuckers so long as their application was carried out in a delivery, rather than labour, room at the hospital. For example, during his direct examination, he said:

Q. Do you have any comments at that stage, doctor, the Tuckers were applied in the same birthing room?

A. Remember why they were applied because the fetal heart rate has slowed here. I think this is, um, very descriptive of obstetrics that is [page103] below the standard. The anticipation was I presume has to be by Dr. Weisberg that the forcep delivery was going to be successful, it was being done now for concern about the fetal heart rate. This is done after already two attempts have failed. The decision not to take her to a delivery room where in the event, and I think the likely event that the third attempt at operative vaginal delivery could fail that a Caesarean section could be done immediately. The failure to do that I think is an overt breach in the standard of care. Now, you have a fetus that the obstetrician has described as being in distress, and still there is no attempt to move this patient back to the facility where if vaginal delivery can't occur Caesarean section can.

(Emphasis added).

In referring to the "third attempt at operative vaginal delivery", Dr. Manning was clearly referencing the Tuckers application. On this evidence, therefore, any subsequent use of the Kiellands was a breach of the applicable standard of care.

[67] During cross-examination, Dr. Manning appeared to again acknowledge that the use of the Tuckers was not a breach of the standard, if carried out in a delivery room:

Q. My question was: It's your opinion, is it, that it breached the standard for Dr. Weisberg to carry out the trial of forceps at least from the Tuckers on in the [labour] room?

A. Yes, it does -- or, yes it is my opinion.

Q. And that opinion applies whatever the indications are for forceps use?

A. That opinion applies in the context of having had two previous failed attempts at operative vaginal delivery. The, um, third -- and certainly the third attempt in my opinion had to -- the failure had to have been anticipated, and it had to take place in a circumstance where immediate delivery could occur.

(Emphasis added)

[68] These parts of Dr. Manning's evidence signalled a retreat by him from his initial position that any application of the Tuckers in the circumstances of this case constituted a breach of the standard of care. Even these concessions, however, do not contemplate the Transfer Option, that is, the possible application of the Kiellands following a transfer of Ms. Grass to a delivery room and a reassessment by Dr. Weisberg of the presenting risks of various delivery options during and following that transfer.

[69] It is important to underscore that, under the trial judge's formulation of the Transfer Option, it was possible that the Kiellands could have been applied by Dr. Weisberg in a delivery, rather than the labour, room at the hospital without any breach of the standard of care. The trial judge necessarily concluded, therefore, that the use of the Kiellands, by itself, did not fall below the requisite standard. [page104]

[70] In contrast, at least initially, Dr. Manning flatly denied that any use of the Kiellands could come within the applicable standard. However, during cross-examination, he said:

A. As I understand the standard of care it's not a line that's drawn in the sand, but rather it's an envelope. And if you operate within that envelope then you are within the standard of care. And within that envelope judgment comes to play. Outside of that envelope judgment is no longer part of the definition of the standard of care.

Q. Right. But the collective bodies do not in every -- do not foresee each and every fact situation and lay down in advance the standard applicable to that set of circumstances, do they?

A. Well, they actually -- they do. Um, I guess they're not infinite in their wisdom so they miss some possibilities. But, for example, that pertains to this case specifically in the presence of cephalo-pelvic disproportion and in a failed attempt at operative delivery, that second attempt or third attempt or fourth attempt ought to take place in an environment where were that to fail that the ultimate recovery method, which is Caesarean section, could be instituted. I think it's agreed, at least as I understand the definition of trial of forceps, that it be done in a setting where if it were to fail or a complication were to ensue maternal or fetal that prompt Caesarean section could be done.

(Emphasis added)

Dr. Manning's reference in these comments to a "fourth attempt" at delivery was clearly a reference to the use of the Kiellands.

[71] Dr. Manning also gave the following evidence under cross-examination:

Q. Do you agree that it is within the realm of judgment for the doctor to proceed to use the forceps to correct the deviation of the fetal head, and having achieved that correction to carry on a trial of traction using one small pull?

A. So I understand your assumptions, I want to remind myself that in this case what happened is that you have a prolonged second stage, a failed vacuum, a misdiagnosis, an application of the Simpson, Simpsons off, a Tucker-McLane. Now, you have -- and by the way concurrently through this you have progressive decline in the fetal heart rate, and now you have an acute collapse of the fetal heart rate. That's what happened.

But if I take, ah, the assumption you gave me that things were fine and there was no reason to be concerned about the forceps up until the attempt at the Tucker-McLane rotation, and then everything went to pieces. Under those circumstances if access to an operating room was not immediately available, then delivery by Kielland forcep, rotation now a second time and extraction would be an option that would be -- that would be an option that you could consider. Um, I think it -- I think in -- that applying such judgment would have to be in context of what transpired before you made that decision, and where you are when you made that decision. At Women's College Hospital, with I [page105] understand an operating room virtually within -- well, a couple minutes away, that I think that a more prudent decision would have been to take that patient to the operating room and then perhaps try the technique. But not to try once again and with the anticipation of failure. I mean, you -- the decision to put on the Kielland on in now a precipitated fetal distress, under the scenario you've given me always assumes it's going to work.

Q. I gave it to you as assumption that the doctor has no reason to believe that safe vaginal delivery cannot be accomplished properly?

A. And I answered that assumption as saying if that were the assumption then I understand that decision. But in this case the assumption that a safe vaginal delivery can be achieved after really now three attempts that have failed -- or at least two. Tucker, you can't call a failure. Two. I don't know how you can make that assumption. But if you made that assumption, if you knew that in [the] presence of fetal distress that you could put a Kielland on and deliver this baby then that would be reasonable to do. Of course, in this case you know you can't do that.

(Emphasis added)

[72] Viewed collectively, these passages from Dr. Manning's testimony can be interpreted as providing some evidential support for the 'risks management' theory of negligence and the Transfer Option. They establish that, during his cross-examination, Dr. Manning acknowledged the possible non-negligent application of the Kiellands in a delivery, rather than the labour, room at the hospital.

[73] However, these passages must also be placed in context. Throughout his evidence, Dr. Manning repeatedly said that Dr. Weisberg breached the standard of care by failing to proceed to a c-section following the application of the Simpsons. This clearly indicated Dr. Manning's opinion that the Kiellands should not have been used at any time following the Simpsons application, in any setting in the hospital.

[74] As well, it can fairly be said that Dr. Manning made some allowance for the propriety of a Tuckers application, but only if this occurred in a delivery room. As I have indicated, the trial judge rejected this evidence, finding that the Tuckers application, in the labour room, was within the standard of care.

[75] Finally, Dr. Manning also conceded under cross-examination that a physician exercises clinical judgment in determining whether to proceed with a forceps delivery when a fetus is in distress, so long as the physician believes that the use of forceps will succeed in delivering the fetus. However, he remained steadfast in his opinion that, after the Tuckers application, Dr. Weisberg could not assume that the Kiellands would succeed in delivering the fetus and, accordingly, they should not have been used. [page106]

(iv) Conclusion

[76] In summary, although Dr. Manning's testimony afforded some evidential support for the 'risks management' theory of negligence and the Transfer Option relied upon by the trial judge to ground her finding of negligence against Dr. Weisberg, neither of these were central issues at trial. They were not pleaded, argued, advanced or otherwise developed by the respondents as the basis upon which liability in negligence should be imposed. Moreover, none of Dr. Weisberg or the defence obstetrical witnesses were cross-examined on the Transfer Option or the 'risks management' theory of negligence as formulated by the trial judge. As well, and importantly, none of the obstetrical experts testified that Dr. Weisberg failed, after the application of the Tuckers, to identify, assess and minimize the risks to Ms. Grass and the fetus of the available delivery options.

[77] Counsel for Dr. Weisberg argues that, in these circumstances, the use by the trial judge of the 'risks management' theory of negligence and the Transfer Option to impose liability in negligence prejudiced Dr. Weisberg and constituted an error of law.

[78] With respect, I agree. Dr. Weisberg could not reasonably have anticipated and she had no opportunity to meaningfully respond in either the evidential or final argument phases of the trial to the very foundation upon which she was ultimately found to have been negligent. Had this foundation for liability been in issue at trial, the evidence adduced by the defence, especially the expert obstetrical evidence, may well have been different. In my view, the appellant cannot be held negligent on a theory of negligence that was not developed at trial and that formed no part of the respondents' case against her.

(3) Dr. Weisberg's knowledge of acute fetal distress

[79] The trial judge held that Dr. Weisberg should have ordered Ms. Grass' transfer to a delivery room after the application of the Tuckers, when she realized that the fetus had rotated to the OT position and was experiencing asphyxia (a condition associated with persistent bradycardia, that is, abnormally slow heart action).

[80] In her causation analysis, the trial judge concluded that Natalie's 'near-total' insult occurred after the application of the Tuckers, at about 0135 hours. She also held that, within one minute of the Tuckers application (that is, at 0134 to 0135 hours), the FHR became bradycardic, falling below 100 beats per minute ("b.p.m.") and, to the extent that the FHR was detectable thereafter, it remained bradycardic until Natalie's delivery at 0148 hours. [page107]

[81] Based on these findings, the trial judge held that it was clear at about 0135 hours, just before the use of the Kiellands, that the fetus was "unequivocally in difficulty", the "seriousness of Natalie's condition was immediately apparent", and "[E]veryone in the labour room [including Dr. Weisberg], knew that the fetus was in grave danger." She also held that Dr. Weisberg knew then, or ought to have known, that she had a fetus "in jeopardy", thus triggering the need to pursue the Transfer Option.

[82] Before this court, Dr. Weisberg does not dispute the trial judge's finding of severe fetal distress at 0135 hours. She submits, however, that this degree of fetal distress could only be determined after the fact, with the benefit of hindsight, and that, as a result, the trial judge erred in holding that Dr. Weisberg knew, or ought to have known, at 0135 hours that Natalie was in "grave danger" and "in jeopardy".

[83] This finding attracts considerable deference from this court. Judicial review of a trial judge's factual findings is precluded absent overriding and palpable error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31 and Waxman v. Waxman, 2004 39040 (ON CA), [2004] O.J. No. 1765, 44 B.L.R. (3d) 165 (C.A.), leave to appeal to the Supreme Court of Canada refused, [2004] S.C.C.A. No. 291.

[84] With respect, I conclude that this high threshold for appellate intervention has been met in this case.

[85] In her analysis of the evidence concerning the post-Tuckers condition of the fetus, the trial judge indicated that"Perhaps the most important information is provided by the fetal heart monitor." The monitor, which was located in the labour room, had a digital display and an audio heart rate device. The paper printouts from the monitor were generated outside the labour room. Dr. Weisberg testified that, while she was attending to Ms. Grass in the labour room, she listened throughout to the audible heart rate and did not review the printouts. There is no suggestion that she was negligent by failing to stop her delivery efforts to interpret the printouts.

[86] The FHR readings were key to an assessment of the fetus' condition. Considerable evidence was introduced at trial regarding the readings during Ms. Grass' labour, especially the last 24 minutes of the second stage of her labour. However, the readings were difficult to interpret and the expert obstetrical evidence concerning them was contradictory.

[87] The FHR readings from the monitor were recorded in Ms. Grass' chart by the obstetrical nurses contemporaneously with events in the labour room. They indicate that the FHR was 96 b.p.m. when the Tuckers were applied at 0132 hours and that it [page108] rose to 136 b.p.m. at 0136 hours when the Kiellands were applied. However, the monitor readings were not continuous at 0136 hours, that is, the FHR signal was intermittently lost. Thereafter, according to the chart entries, when preparations for a c-section were underway in the delivery room by 0145 hours, the FHR was 98 b.p.m.

[88] In addition to the monitor readings, Dr. Weisberg applied a fetal scalp clip to the fetus immediately after the application of the Kiellands to obtain a FHR reading. She did this because the FHR signal from the monitor was no longer audible. The scalp clip yielded a reading of 110 b.p.m.

[89] Dr. Weisberg testified that she did not diagnose and had no evidence of fetal distress based on the FHR that she was hearing prior to her application of the Kiellands. She said that, after the application of the Simpsons, she observed that the FHR was slow to recover to a normal level but that fetal decelerations are normal with contractions and, in the event, the FHR did recover. Similarly, she testified that, after the use of the Tuckers, the FHR again fell and was again slow to recover, but it did recover. This, and other factors, led her to decide to apply the Kiellands, in order to deliver the fetus promptly.

[90] Both defence obstetrical experts supported Dr. Weisberg's use of the Kiellands in the labour room in the face of concerns regarding the FHR.

[91] Dr. McGrath testified that after the Tuckers were applied, the FHR briefly returned to a normal level and then fell. He agreed that the last monitor readings showed a low heart rate attributable to either bradycardia or decelerations but said that the printout was incomplete, preventing confident interpretation.

[92] For his part, Dr. Hannah said that after the application of the Tuckers, the FHR was "reassuring". It rose to 130 b.p.m., then experienced a "slight drop" and then rose again to 160 to 170 b.p.m. He said, as did Dr. McGrath, that no reliance could be placed on the last tracings on the printout because the FHR readings were discontinuous. However, it was his opinion that prior to the fetal heart signal being lost at 0136 hours, there was no evidence from the monitor readings of the fetus being in any difficulty.

[93] Moreover, according to Dr. Hannah, any concerns about the status of the FHR "add[ed] more power" to Dr. Weisberg's decision to attempt to deliver the fetus in the most expeditious manner possible, that is, through the use of the Kiellands.

[94] In contrast, Dr. Manning initially maintained that the monitor readings indicated fetal distress from the time that the vacuum extractor was applied. More generally, he contended that the readings exhibited a pattern of consistent, and increasingly [page109] alarming, decelerations during the second stage of labour with evidence of clear and sharp fetal compromise after the use of the Tuckers. He said that from about two minutes after the use of the Tuckers (that is, at about 0135 hours), the FHR signal was lost, there were significant gaps in the printout readings, and an "acute collapse" of the FHR occurred.

[95] However, there does not appear to be any serious dispute that FHR readings of 136 b.p.m. at 0136 hours and 110 b.p.m. shortly thereafter are inconsistent with severe fetal distress and an "acute collapse" of the FHR at 0135 hours.

[96] The trial judge found that the recorded FHR readings from the monitor and the reading produced by the fetal scalp clip were unreliable. She held that, in order for Natalie to be born with no detectable signs of life at 0148 hours"She must have been deprived of oxygen and circulation for more than a few minutes." She also held that the unreliability of the FHR readings was consistent with a neonatal recording of "no heart-beat for eight minutes before birth", post-delivery discussions regarding Natalie, and Natalie's ultimate outcome.

[97] This conclusion of unreliability was made with the benefit of hindsight, based on the obstetrical experts' interpretations at trial of the FHR readings, the trial judge's own determination of causation based on the evidence adduced at trial, post-delivery notes and discussions, and Natalie's outcome.

[98] There was no evidence at trial that Dr. Weisberg knew, or could have known upon inquiry, that the FHR readings were inaccurate or unreliable at the time that she decided to apply the Kiellands in the labour room. Nor did the trial judge so find.

[99] In addition, there was no evidence that any health care professional involved in the labour room suggested to Dr. Weisberg at the critical time (shortly before the application of the Kiellands), or at any time, that the FHR readings were inaccurate or unreliable.

[100] The respondents argue that the suggestion at 0131 hours by Ms. Gherson, an obstetrical nurse in the labour room, that Ms. Grass be transferred to a delivery room was motivated by concern for the fetus and that this transfer proposal demonstrated that Dr. Weisberg should have focused then on fetal distress and proceeded to an immediate c-section. Ms. Gherson testified that her intention in suggesting the need for a transfer was to secure a larger room that would provide more space to manoeuvre. Dr. Weisberg said that this was the intent of Ms. Gherson's proposal, as she understood it. The respondents assert that this testimony was disingenuous and that Ms. Gherson and Dr. Weisberg were not forthright in their evidence on this issue. [page110]

[101] The trial judge held that Ms. Gherson suggested a move to a delivery room because she was concerned about the unfolding events and thought that a move should be made so that an immediate c-section would be available. The trial judge also commented, however, that"It does not necessarily follow from this finding ... that her concerns were well founded, or that Dr. Weisberg erred in rejecting her suggestion." Ultimately, the trial judge made no finding that the fetus was in difficulty at the time of Ms. Gherson's suggestion for a transfer or that this suggestion called into question the reliability of the FHR readings.

[102] It is important to emphasize that Ms. Gherson's transfer suggestion was made before the application of the Tuckers. The trial judge held that the application of the Tuckers was appropriate and within the applicable standard of care. She also found that the fetus did not become bradycardic until after the Tuckers were used. On these findings, it cannot be said that Dr. Weisberg ignored or rejected indications from the obstetrical nurse that the fetus' condition was sufficiently compromised as to require an immediate c-section, or that the nurse was communicating a concern about the reliability of the available FHR information.

[103] In my view, in these circumstances, the evidence concerning the FHR information available to Dr. Weisberg at the time of her application of the Kiellands did not support the finding that she knew, or ought to have known, that the fetus was then in grave distress or jeopardized.

[104] In Wilson v. Swanson, 1956 61 (SCC), [1956] S.C.R. 804, 5 D.L.R. (2d) 113, at p. 812 S.C.R., the Supreme Court of Canada approved the following statement in Rann v. Twitchell, 82 Vt. 79 (1909), at p. 84:

[A physician] is not to be judged by the result, nor is he to be held liable for an error of judgment. His negligence is to be determined by reference to the pertinent facts existing at the time of his examination and treatment, of which he knew, or in the exercise of due care, should have known. ...

(Emphasis added)

[105] In this case, the trial judge's imputation of knowledge to Dr. Weisberg of grave fetal distress at 0135 hours was driven, for the most part, by her finding that the FHR readings were unreliable. This finding of unreliability, in turn, was based on information not available to Dr. Weisberg when she decided to apply the Kiellands in the labour room: Natalie's ultimate outcome, the cause and timing of her injuries, and expert obstetrical interpretations at trial of the FHR readings.

[106] Dr. Weisberg cannot be held accountable in law for a treatment decision based on unreliable patient data when its [page111] unreliability was neither known to her, nor available to be discovered by her upon reasonable inquiry, at the critical time. I conclude, therefore, that the trial judge's key finding that Dr. Weisberg knew, or ought to have known, that the fetus was "in jeopardy" and "grave danger" at 0135 hours is tainted by overriding and palpable error.

(4) Other issues

[107] The respondents argue that the trial judge's liability finding flowed, in part, from her adverse assessment of Dr. Weisberg's credibility, thus constraining appellate review. Although it is true that the trial judge rejected Dr. Weisberg's evidence on some points, she also accepted her evidence on other important issues. I am not persuaded that the foundation of the trial judge's liability finding was critically affected by her assessment of Dr. Weisberg's credibility so as to preclude appellate intervention.

[108] The respondents also point out that, in addition to her finding of negligence based on Dr. Weisberg's failure to pursue the Transfer Option, the trial judge was critical of various other aspects of Dr. Weisberg's conduct during Ms. Grass' second stage of labour. In particular, she found that Dr. Weisberg failed to accurately inform herself of the duration of the second stage of labour, to make accurate post-delivery notes and to contemporaneously chart the course of the second stage of labour and her treatment of Ms. Grass.

[109] Although the trial judge described certain of these deficiencies as falling "outside the standard of care", her finding of negligence against Dr. Weisberg did not rest on them. It is significant, in this regard, that the trial judge held that Dr. Weisberg's record-keeping deficiencies, and her failure to chart basic information concerning the progress of Ms. Grass' labour and the condition of the fetus, had no impact on the outcome of this case because Dr. Weisberg did not rely on information in the chart in making her treatment decisions.

(5) Conclusion on appeal

[110] The trial judge's finding of negligence rests on Dr. Weisberg's application of the Kiellands in the labour room and her failure to pursue the Transfer Option. I reiterate the trial judge's seminal concluding words (at para. 254 [[2003] O.J. No. 5313]):

[T]o proceed to a third application of forceps in the labour room fell below the applicable standard of care in the circumstances. Transfer to the delivery room should have been ordered when Dr. Weisberg realized the fetus had rotated to an [OT] position and was experiencing asphyxia. Had she done so, Natalie would likely have been delivered by 1:42 a.m., or by 1:44 a.m. at the latest. ... [page112]

[111] However, in imposing liability on this basis, the trial judge erred in the ways that I have described. The effect of these errors on trial fairness necessitates a new trial.

[112] Because I have concluded that a new trial is required, for the reasons given, it is unnecessary to address the remaining grounds of appeal raised by the appellant.

B. Cross-appeal

[113] All the issues raised by the respondents on their cross-appeal concern the trial judge's costs award in their favour. Hence, they are premised on the respondents' success at trial. As I would allow the appeal and direct a new trial, it follows that the issues sought to be raised on the cross-appeal are moot.

V. Disposition

[114] Accordingly, for the reasons given, I would allow the appeal and direct a new trial. I would also grant leave to cross-appeal and dismiss the cross-appeal.

[115] The result of this decision is to require a third trial in this case, if the parties are so advised and they are unable to resolve this matter by other means. A third trial is regrettable for all concerned. For this reason, I conclude by echoing, and adapting to the facts of this case, the comments of L'Heureux-Dubé J. in Lapointe v. Hôpital Le Gardeur, 1992 119 (SCC), [1992] 1 S.C.R. 351, [1992] S.C.J. No. 11, at p. 380 S.C.R.:

I cannot leave this matter, however, without expressing great sympathy for [Natalie's] tragic fate ... and for the pain and suffering imposed upon her parents since then. Guided by sympathy alone, my task here would have been much easier. As a judge, however, I must uphold the law and sympathy is a poor guide in such matters. Justice according to law is the only guide and justice must work for both parties engaged in litigation, plaintiffs as well as defendants.

These words are especially apt here.

[116] The appellant is entitled to her costs of this appeal, if sought, on a partial indemnity basis, fixed in the amount of $50,000, inclusive of disbursements and Goods and Services Tax.

[117] The appellant was successful at the first trial of this action, while the respondents were successful at the second trial. In light of this decision, a third trial may take place. In these unusual circumstances, I am disinclined to make any disposition concerning the costs of the first and second trials without receiving further submissions from the parties on the issue. Accordingly, I would direct the parties to inform this court in writing, through the Registrar and within ten days from the [page113] date of this decision, of their respective positions concerning the costs of both prior trials.

Appeal allowed.