DATE: 20050128

DOCKET: C40743

COURT OF APPEAL FOR ONTARIO

RE: DONNA M. KNIGHT, COREY E. KNIGHT, TAYLER A. KNIGHT and LUCAS M. KNIGHT, by their Litigation Guardian, Corey E. Knight, ROSE H. PRATT and GREG D. PRATT (plaintiffs (Respondents)) – and – ST. THOMAS ELGIN GENERAL HOPSITAL, DR. W. GEORGE SLOAN, ET AL. (Defendant (appellant))

BEFORE: MOLDAVER, BLAIR and LaFORME JJ.A.

COUNSEL: David I. Hamer and Troy H. Lehman

For the appellant

Paul Bates and David B. Williams

For the respondents

HEARD: January 24, 2005

On appeal from the judgment of Justice B. Thomas Granger of the Superior Court of Justice dated September 8, 2003.

E N D O R S E M E N T

[1] The appellant is an obstetrician. He was found liable for negligence in the delivery of the respondent Donna Knight’s second child. He appeals from that finding.

[2] In seeking to overturn the finding of liability, the appellant submits that the trial judge made overriding and palpable errors in his findings of fact. To be more precise, he submits that in arriving at the impugned finding, the trial judge either misapprehended material facts or failed to take material facts into account.

[1] For reasons that follow, we would not give effect to the appellant’s submissions. This appeal is largely fact driven. The trial judge gave clear and cogent reasons for his decision. In doing so, he demonstrated a strong grasp of the evidence, including the evidence of the appellant and the witnesses that favoured him. In the end, he chose to rely upon the evidence of the respondents’ expert and other evidence which, in his view, established that the appellant was negligent in the delivery of Ms. Knight’s child. That was his prerogative and we are not persuaded that he erred in arriving at the conclusion he did.

Improper Use of Forceps

[2] Based on the record, and particularly the evidence concerning Ms. Knight’s history of cephalopelvic disproportion and second stage arrest, we are satisfied that it was open for the trial judge to find that the appellant fell below the requisite standard of care in using forceps when he did to deliver the baby. We are further of the view that the trial judge was entitled to find that the appellant’s improper use of the forceps occasioned injuries to Ms. Knight’s uterus that required suturing.

[3] In so concluding, we have not ignored the appellant’s evidence, supported by his expert witnesses, that it was appropriate to use the forceps when he did, and that in any event, his use of the forceps did not cause the injuries to Ms. Knight’s uterus. The trial judge was fully alive to that evidence but he rejected it, choosing instead to accept the evidence of the respondents’ expert and that of Ms. Knight and her husband. He committed no error in doing so.

[4] Nor have we ignored the appellant’s argument that the trial judge erred in failing to decide whether the injuries to Ms. Knight’s uterus would have occurred had the appellant delayed his use of the forceps or alternatively, had he not used forceps at all but simply performed a caesarean section. While we accept that the trial judge did not resolve those issues, in our view, he was not required to do so. The issues are factual in nature and they were either not raised by the appellant at trial or not properly developed on the evidence. Any reference to them was at best tangential. In our view, even if the trial judge had considered them, his decision would inevitably have been the same.

[5] The appellant fairly concedes that if the trial judge did not err in finding that his use of the forceps fell below the requisite standard of care and that but for their use, Ms. Knight would not have suffered injuries to her uterus that required suturing, then there is no basis for interfering with the finding of liability. We agree. Accordingly, on that basis alone, we would dismiss the appeal.

Improper Suturing

[6] The trial judge further found that the appellant was negligent in suturing Ms. Knight’s injuries. Specifically, he found as a fact that the appellant placed a suture in Ms. Knight’s broad ligament and that in doing so, he occluded her right ureter, and failed to take appropriate corrective measures. In coming to that conclusion, the trial judge acted on the evidence of Ms. Knight’s expert witness, Dr. Manning, and certain admissions made by the appellant to Dr. Black and to Ms. Knight.

[7] The trial judge rested his finding of negligence on one of the following two alternatives. First, if the appellant was required to suture Ms. Knight’s broad ligament to repair the injury, he was negligent in failing to ensure that he had not occluded her ureter in the process. Second, if Ms. Knight’s injuries were confined to her uterus, the appellant was negligent in occluding the ureter by placing a suture outside of her uterus.

[8] The appellant forcefully challenges this aspect of the trial judge’s analysis. In particular, he submits that it ignored a third possibility, attested to by his expert witnesses, that in suturing within the uterus, the appellant may have unwittingly picked up some peri-uretal tissue which, upon tightening, caused a kink or partial occlusion of the ureter. On that scenario, the appellant submits that a finding of liability could not be sustained since he would have had no reason to suspect, let alone know, that he had done anything to damage Ms. Knight’s ureter.

[9] We acknowledge that the trial judge’s reasons on this issue are somewhat less than clear. That said, read in context and as a whole, we are satisfied that the trial judge rejected this possibility and concluded instead that the appellant knew or should have known that as part of the suturing process, he had gone outside the uterus and gathered in peri-uretal tissue which surrounded the ureter. That being so, the appellant was negligent in failing to ensure that the ureter was not occluded following the suturing process.

[10] In our view, that finding was an available alternative to the trial judge’s principal finding that the appellant had placed a suture in Ms. Knight’s broad ligament and that in doing so, he occluded her ureter and failed to take appropriate corrective measures. Accordingly, for that reason as well, we would dismiss the appeal.

Costs

[11] The respondents are entitled to their costs of the appeal. If the parties cannot agree, they may submit brief submissions (not exceeding three pages double-paced) to the court within ten days of the release date of these reasons.

Signed: “M.J. Moldaver J.A.”

“R.A. Blair J.A.”

“H.S. LaForme J.A.”