CITATION: Suwary v. Women's College Hospital, 2011 ONCA 676
DATE: 20111031
DOCKET: C50772
COURT OF APPEAL FOR ONTARIO
Simmons, Armstrong and LaForme JJ.A.
BETWEEN
Robert Gregory Suwary and Kylie Suwary, minors by their Litigation Guardian, Kimberly Long-Suwary, Robert Edward Suwary, Katie Buchanan and the said Kimberly Long-Suwary, personally
Plaintiffs (Appellants)
and
Women's College Hospital, Clifford Librach, Sarah Ferguson, Sharon Unger and Laura Lee
Defendants (Respondents)
Paul J. Pape and Shantona Chaudhury for the appellants
Frank McLaughlin, Ken Morris and Sharon Wilmot for the respondent Clifford Librach
Michael K. McKelvey and Anna L. Marrison for the respondents Women's College Hospital and Laura Lee
Heard: April 26, 27 and 28, 2011
On appeal from the judgment of Justice Patrick Moore of the Superior Court of Justice dated June 19, 2009 with reasons reported at 2009 ONSC 31985 (Ont. S.C.).
By the Court:
I. Introduction
[1] The appellants appeal from the dismissal of their action for medical negligence relating to Robbie Suwary’s birth.
[2] Robbie was born at Women’s College Hospital on January 29, 1999. Tragically, he was deprived of oxygen before birth and, as a result, suffers from cerebral palsy.
[3] The central issues on appeal relate to the medical management of Robbie’s delivery between 3:30 a.m., when his mother began pushing, and 4:06 a.m., when Robbie was born.
[4] Robbie’s mother entered the second, active, stage of labour at around 3 a.m. At 3:30 a.m., Dr. Librach, the attending obstetrician, told her to begin pushing. Robbie was a large baby (just over 10 lbs.) and was presenting in the face-up position, potentially requiring manual rotation to the face-down position before birth. Nonetheless, all appeared fine to that point.
[5] Between 3:30 a.m. and 3:41 a.m., a fetal heart monitor attached to Robbie’s mother’s abdomen revealed some decelerations in the fetal rate. Expert evidence at trial indicated decelerations with contractions are not uncommon in the second stage of labour. However, depending on their type and duration, decelerations can be a cause for concern, and, in some cases even alarm.
[6] At 3:41 a.m., Dr. Librach applied a vacuum extractor in an effort to expedite Robbie’s delivery. Soon after the vacuum was applied, the fetal heart rate became abnormally low and remained that way for a lengthy period of time – in medical terms, the fetal heart rate became bradycardic.
[7] At 3:49 a.m., after three pulls on the fetal head, Dr. Librach removed the vacuum. The head had not made much progress and the fetal heart rate was still bradycardic. Dr. Librach concluded the situation was now an emergency. He transferred Robbie’s mother from the labour room to an operative delivery room. At 4:01 a.m., Dr. Librach applied forceps to rotate the fetus to the face-down position. Robbie was born at 4:06 a.m.
[8] Robbie was not breathing when he was born and he had no detectable heart rate. He took his first breath five minutes after delivery. Unfortunately, the oxygen deprivation he suffered caused permanent brain damage, which, in turn, led to cerebral palsy. As was noted by the trial judge, Robbie’s cerebral palsy will affect him and those who live with him and care for him throughout his life.
[9] The Suwarys sued Dr. Librach, the hospital, the attending obstetrical nurse (Nurse Laura Lee), an obstetrical resident (Dr. Sarah Ferguson) and a neonatal fellow (Dr. Sharon Unger), claiming damages for medical negligence.[^1] After a 38-day trial dealing exclusively with liability issues, Moore J. dismissed the Suwarys’ action.
[10] There was no real dispute at trial that Robbie’s brain injury was the result of an acute near total asphyxia[^2] likely caused by an occult prolapse of the umbilical cord.[^3]
[11] However, the appellants argued that it was the application of the vacuum that triggered the bradycardia that began around 3:41 a.m. In addition, and among other things, the appellants claimed that Dr. Librach committed the following three breaches of the standard of care:
• he failed to apply a fetal scalp clip (an internal fetal heart rate monitor attached to the fetal scalp) when faced with an uninterpretable fetal heart rate tracing from an external heart rate monitor;
• he applied the vacuum extractor without an indication; and
• he failed to anticipate and make proper preparations for the possibility that the attempt at vacuum delivery in the labour room might fail.
[12] Various expert witnesses gave opinion evidence about the standard of care issues. All agreed that the standard of care requires that there be an indication for applying a vacuum extractor. The experts’ opinions about whether such an indication existed were premised, to a large extent, on paper tracings of the fetal heart rate produced by the external fetal heart rate monitor attached to Robbie’s mother’s abdomen.
[13] The experts disagreed about whether gaps in the paper tracings made the tracings uninterpretable. The gaps occurred during the period between 3:30 a.m., when Robbie’s mother started pushing, and 3:41 a.m., when Dr. Librach applied the vacuum.
[14] The disagreement over gaps in the tracings, in turn, led to disagreement about whether the standard of care required Dr. Librach to apply a fetal scalp clip so he could obtain better fetal heart rate information before deciding on delivery options.
[15] The external monitor that was used to monitor the fetal heart rate had three types of output: a visible paper tracing; a digital readout; and an audible output.
[16] The trial judge essentially disregarded the expert evidence concerning the interpretability of the fetal heart rate tracings – he determined that the expert witnesses had an incomplete factual underpinning for the opinions they offered because they had no information about the audible or digital output from the external fetal heart rate monitor.
[17] Importantly, the trial judge also found that the evidence did not establish whether Dr. Librach, Nurse Lee or Dr. Ferguson could see the digital readout from their location(s) in the delivery room. Further, he said there was “no evidentiary basis upon which [he could] find that people in the room would have heard all or any of the audible output normally generated by the monitor in times coincident with tracing gaps.”
[18] Nonetheless, the trial judge accepted Dr. Librach’s evidence that he and others present in the labour room were “well aware of fetal heart activity as the result of the visual and audible outputs from the [external fetal heart rate] monitor”.
[19] The trial judge dealt with standard of care issues and causation in various sections of his reasons.
[20] Early in the analysis portion of his reasons, when discussing informed consent, the trial judge noted that Dr. Librach “appreciated that Robbie had endured several deep decelerations [drops in the fetal heart rate] and … was concerned about hypoxia” when he applied the vacuum.
[21] Later in his analysis, the trial judge addressed the causation and standard of care issues vis-à-vis Dr. Librach in a section of his reasons entitled “Allegations against the Defendants”.
[22] In the trial judge’s view, “the asphyxial insult that led to Robbie’s brain injury” began around 3:30 a.m. shortly after Robbie’s mother began pushing. Further, he concluded that “the deep and prolonged decelerations of the fetal heart that occurred between 3:41 and 3:49 a.m. (during the time that Dr. Librach attempted vacuum extraction) would have occurred even if Dr. Librach had opted to delay applying the vacuum and apply a scalp clip” instead.
[23] As for Dr. Librach’s role in these events, the trial judge found that there was “no credible evidence supporting a case for application of a scalp clip before [3:41 a.m.]”. In any event, it was “sheer speculation to predict whether Robbie’s outcome would have been different, let alone more favourable” had Dr. Librach opted to delay the vacuum and to apply a scalp clip to obtain more information about the fetal heart rate.
[24] The trial judge observed that the asphyxial insult produced a “clinically emergent situation”. In such circumstances, Dr. Librach acted appropriately in deciding to apply the vacuum rather than embark on further diagnosis. The trial judge found no merit in the appellants’ submission that it was inappropriate to apply the vacuum in a labour room.
[25] In the end, the trial judge expressed the view that “Dr. Librach could not have determined the cause of the insult that produced Robbie’s brain injury prospectively”. He concluded that the respondents “neither caused nor contributed to the insult and/or the injury.”
[26] The appellants raised multiple issues on their appeal against the dismissal of their claim against Dr. Librach, which we have summarized in Appendix “A”. In our view, it is unnecessary that we deal with all of these issues in order to dispose of the appeal. For the reasons that follow, we draw the following two conclusions that require us to allow the appeal with respect to the claim against Dr. Librach:
i) the trial judge made inconsistent findings concerning the fetal heart rate evidence thereby undermining his finding that that “everyone in the room was well aware of fetal heart rate activity as the result of visual and audible outputs from the monitor”; and
ii) the trial judge failed to explain the basis for his conclusion that “the deep and prolonged decelerations of the fetal heart that occurred between 0341 and 0349 (during the time that Dr. Librach attempted vacuum extraction) would have occurred even if Dr. Librach had opted to delay vacuum and to apply a scalp clip.” We can find no evidentiary basis for this conclusion. Without this finding, we are not satisfied that the trial judge’s conclusion on causation would have been the same.
[27] The appellants pursued only one issue on their appeal against the dismissal of their claims against Nurse Lee and Women’s College Hospital. For reasons we will explain we do not give effect to that ground of appeal.
II. Background
i) Obstetrical History relevant to Robbie’s Birth
[28] Robbie’s mother, Kimberley Long-Suwary, and her husband, Robert Suwary, initially consulted Dr. Librach to obtain fertility treatment. With Dr. Librach’s help, Ms. Long-Suwary bore two children: Kylie, who was born in 1996, and Robbie, who was born in 1999.
[29] Kylie was a large baby (10 lbs. one oz.), but was delivered successfully with the assistance of a vacuum extractor.
[30] Ms. Long-Suwary attended Women’s College Hospital on January 28, 1999 by pre-arrangement to have Robbie’s birth induced. Once she was fully dilated, an obstetrical resident, Dr. Ferguson, ruptured her membranes around 3 a.m. on January 29, 1999, signifying the beginning of the second, active stage of labour.
ii) The Gaps in the Paper Tracings of the Fetal Heart Rate during the Second Stage of Labour
[31] During the second stage of labour, maternal contractions and the fetal heart rate were to be tracked by external monitor(s) attached to Ms. Long-Suwary’s abdomen – a tocodynamometer to track maternal contractions and a transducer to track the fetal heart rate. From 3:32 a.m. onward, no maternal contractions were recorded by the tocodynamometer and it appears that that monitor may have fallen off. After 3:32 a.m., Nurse Lee tracked maternal contractions manually by palpating Ms. Long-Suwary’s abdomen.
[32] As we have said, the transducer tracking the fetal heart rate had three sources of output: a visible paper tracing (which also traced tocodynamometer output when available), a digital readout, and an audible output.
[33] Soon after Ms. Long-Suwary began pushing, significant gaps appear in the paper tracings produced by the transducer.
[34] In the 12 one-minute blocks of the tracings from the notation “0330 pushing” to the notation “0341 vacuum applied by Dr. Librach”, there are approximately seven minutes of gaps showing no tracing whatsoever – and no continuous area of tracing that exceeds 45 seconds.
[35] It is these gaps in the paper tracings that led to disagreement among the experts (Dr. Harman and Dr. McGrath for the appellants, and Dr. Davies for Dr. Librach) concerning whether the paper tracings were interpretable.
iii) Evidence Relating to Robbie’s Birth
[36] While in the labour room, Nurse Lee made contemporaneous notes charting the active phase of Ms. Long-Suwary’s labour. The contemporaneous notes refer to decelerations in the fetal heart rate at 3:35 and 3:40 a.m. In both instances, the fetal heart rate recovered to its previous level within a short period of time:
• 3:20 [a.m.] – 148 [beats per minute]
• 3:30 [a.m.] - 140 [beats per minute]
• 3:35 [a.m.] - 50-70 ^ 140 [beats per minute]
• 3:40 [a.m.] - 50-70 [beats per minute]
• 3:41 [a.m.] - 140-145 [beats per minute].
[37] Nurse Lee made additional notes following Robbie’s birth (late entry notes) that set out the basic chronology of events between 3:20 a.m. and 3:41 a.m., when Dr. Librach applied the vacuum in the labour room. The late entry notes refer to two additional decreases in the fetal heart rate at 3:36 and 3:37 a.m. and also document the extent of the fetal heart rate recovery:
• 0320 Dr. Librach arrived V/E [vaginal examination] fully dilated
• 0330 starting to push at Dr. Librach's request. Dr. Librach present.
• 0336 FH [fetal heart rate] down to 78 up to 140 [beats per minute]
• 0337 FH 74-95 [beats per minute] with pushing …
• 0338 FH 125-150 [beats per minute]
• 0340 difficulty picking up FH. Dr. Librach aware and requested vacuum
• 0341 vacuum applied by Dr. Librach FH down to 55 [beats per minute] up to 140-145 [beats per minute].
[38] According to Dr. Librach, following the application of the vacuum, the fetal heart rate dropped to between 60 and 80 beats per minute and stayed there for a prolonged time. There was a brief recovery at around 3:45 a.m. and then another deceleration with vacuum application followed by another recovery.[^4] After three pulls on the vacuum with contractions the fetal head did not come down and rotate, and the attempt to expedite delivery using the vacuum was declared a failure at 3:49 a.m.
[39] The trial judge found that because of the unanticipated bradycardia, “Dr. Librach decided that this was now an emergent situation.” It was necessary that he immediately transfer Ms. Long-Suwary to an operative delivery room where another form of delivery could be attempted.
[40] To facilitate Ms. Long-Suwary’s transfer to the delivery room, the labour room transducer tracking the fetal heart rate was removed and a new transducer was attached once she arrived in the delivery room at 3:58 a.m. Following her arrival, the fetal heart rate remained abnormally low until 4:01 a.m. when Dr. Librach applied forceps to rotate the fetus to a face-down position. Dr. Ferguson and Dr. Librach then completed the delivery and Robbie was born at 4:06 a.m.
[41] After Robbie was born, Dr. Librach prepared a handwritten delivery summary and dictated an operative report, both of which referred to decelerations in the fetal heart rate as the reason for applying the vacuum. The delivery summary includes the following notations:
Pushing at fully … ROP[^5] position … Decels with contractions therefore vacuum applied, did not come with 3 contractions, Transferred to Delivery room for forceps rotation to ROA[^6] … FH [up] as soon as head rotated. Then delivered easily. [Emphasis and footnotes added.]
[42] The operative note refers to a “Mid-forceps delivery” and includes a pre-operative diagnosis explaining the need for that procedure: “Fetal distress, posterior position”. Like the delivery summary, the operative note refers to decelerations in the fetal heart rate as the reason for applying the vacuum:
At the time of her assessment at full dilation the baby's head was right occiput posterior position and she began to push. With contractions she pushed and there were decelerations noted by external monitoring. After a few contractions the decelerations persisted and it was decided to aid in her delivery. [Emphasis added.]
iv) Dr. Librach’s Evidence
[43] The crux of Dr. Librach’s evidence in-chief at trial was that he applied the vacuum because, after Ms. Long-Suwary began pushing, she “began to have decelerations with contractions and recovery after those decelerations became more slow with time.” The depth of the decelerations was quite deep, “down to at least 80 or below” – and Dr. Librach was “becoming concerned” because of “the persistence of these deep decelerations.”
[44] As a result of his concern, Dr. Librach examined Ms. Long-Suwary. The fetal head was engaged but in the face-up position. He recalled thinking, “we are not going to have a delivery imminently”. Accordingly, because he was becoming concerned about the “persistent and recurrent deep decelerations”, he decided to “expedite delivery.” Although he considered putting on a scalp clip, he decided not to as it would take time and merely confirm what he already knew.
[45] A key issue at trial was Dr. Librach’s credibility. Following his examination in-chief, he was cross-examined over approximately five days. Among other things, he was challenged on alleged discrepancies between his trial evidence and his evidence at his examination for discovery.
[46] The appellants maintained that Dr. Librach’s discovery evidence indicated he was not particularly concerned about the status of the fetal heart rate before he applied the vacuum – he saw some evidence of decelerations with contractions but overall he was reassured by the fact that following the decelerations the fetal heart rate returned to baseline. He applied the vacuum because he wanted to “aid in” the delivery.
[47] The appellants argued that, at its core, Dr. Librach’s discovery evidence did not reveal a proper basis for applying the vacuum, a form of operative vaginal delivery.
[48] Despite Dr. Librach’s change in evidence, the trial judge found him a credible witness.
v) Evidence about the Classification of Fetal Heart Rate Decelerations
[49] The classification of fetal heart rate decelerations was a significant topic of expert testimony. According to Dr. McGrath, there are three main types of decelerations and they are defined in terms of their relationship to uterine contractions. The classifications are: early, variable and late.
[50] On a tracing, early decelerations look like a contraction upside down. They essentially mirror the contractions, with their nadir at the peak of the contraction – and they resolve when the contraction ends. Variable decelerations are variable in their timing and appearance. They can occur with or following contractions. While their duration can vary, they generally commence and recover very rapidly. Late decelerations begin during a contraction, have their nadir following the peak of the contraction and resolve after the contraction.
[51] Dr. McGrath testified that decelerations occurring at the same time as pushing are common in the second stage of labour. While they may be deep, they are not prolonged and would by themselves likely not indicate operative vaginal delivery – meaning use of a vacuum or forceps. As pushing coincides with contractions, this evidence appears to refer to early decelerations.
[52] Significantly, Dr. McGrath agreed during his testimony that deep, prolonged variable decelerations tend to accompany the early stages of severe cord compression.
III. The Trial Judge’s Reasons
[53] For the purposes of this appeal, the key portions of the trial judge’s reasons are those relating to fetal heart rate evidence, standard of care and causation. We will set out the trial judge’s reasons relating to fetal heart rate evidence in detail when discussing our conclusion on that issue. For now, we will provide a brief summary of his credibility findings and set out his findings concerning standard of care and causation.
i) The Trial Judge’s Credibility Findings
[54] The trial judge found Dr. Librach, Dr. Ferguson and Nurse Lee to be credible witnesses. As for the expert witnesses, the trial judge said he valued the input of Dr. McGrath (for the appellants) and Dr. Davies (for the respondents). He found that these two witnesses “gave objective and balanced accounts of their views.” On the other hand, he found Dr. Harman to be a partisan witness who “offered standards of care … that did not stand up to scrutiny in cross-examination.”
ii) The Trial Judge’s Findings about Standard of Care and Causation
[55] The trial judge structured his reasons under a variety of headings that did not include standard of care and causation as free-standing issues. In our view, his findings on these subjects are found under at least two headings. As these findings are important to the issues on the appeal against the dismissal of the claim against Dr. Librach, we will set out his findings on the first two alleged breaches of the standard of care and causation in full:
Informed Consent
239 At the time that Dr. Librach recommended use of the vacuum, he appreciated that Robbie had endured several deep decelerations and Dr. Librach was concerned about hypoxia45 and its clinical sequelae and he knew that time was becoming of the essence. I accept as reasonable that he exercised his judgment in favour of a brief discussion with Kimberly and that he chose not to specifically discuss the risks associated with a C-section then, as it was not called for... [Emphasis added.]
240 The experts agreed that the scenario that followed upon the application of the vacuum in this case was one that could not have been predicted and it is not one that I find ought to have been discussed with Kimberly in advance. No expert was heard to opine that C-section should have been offered prior to 0341…
Allegations Against the Defendants
255 The evidence that I accept and value confirms that a scalp clip, also referred to as a scalp electrode, is a fetal heart monitoring device that is designed to be screwed into the fetal scalp in order to obtain information about fetal heart activity. It is not a treatment tool. It is a diagnostic device. It cannot be used at the same time as a vacuum is in use.
256 I cannot find that attaching a scalp clip could have revealed normal fetal heart activity after 0341 and there is no credible evidence supporting a case for application of a scalp clip before 0341.
257 Even Dr. Harman stops short of saying that fetal head compression, cord prolapse or both occurred only after 0341; as such, I must find that the deep and prolonged decelerations of the fetal heart that occurred between 0341 and 0349 (during the time that Dr. Librach attempted vacuum extraction) would have occurred even if Dr. Librach had opted to delay vacuum and to apply a scalp clip.
258 It is sheer speculation to predict whether Robbie's outcome would have been different, let alone more favourable, had this theoretical alternative path been followed.
259 In my view, the asphyxial insult that lead to Robbie's brain injury incepted shortly after Kimberly entered the second stage of labour and began pushing, around 0330.50 The insult produced the deep decelerations that Dr. Librach and Nurse Lee observed, two of which Nurse Lee also recorded.
260 The insult produced a clinically emergent situation that Dr. Librach analyzed and applied his best clinical judgment to. He determined that a vacuum and not further diagnostic intervention was called for. I agree.51 I cannot fault Nurse Lee for assisting Dr. Librach fully in responding to the situation.
F/N 45 A view supported by the opinion of Dr. Davies who read the relevant portion of the tracing and testified (on 2 April 09, p. 139) that between 0332 and 0341 the fetal heart rate was non-reassuring and (p. 124) the tracing showed repetitive decelerations demonstrating a fetus that "is either in an hypoxic environment or an environment that has the potential for hypoxia".
F/N 50 Drs. McGrath and Davies agree that the heart rate pattern changed suddenly. Dr. McGrath concluded, in retrospect, that the sudden change began shortly after Kimberly started to push and Robbie's injuries began during the last 30 minutes before his birth.
F/N 51 Agate v. Burrows, [1988] B.C.J. No. 586 (B.C.S.C.) at p. 8.
IV. Analysis
1) The Trial Judge Made Inconsistent Findings concerning the Fetal Heart Rate Evidence
i) Introduction
[56] Much time and energy at trial was devoted to leading evidence about the state of the fetal heart rate between 3:30 and 3:41 a.m., when Dr. Librach applied the vacuum extractor.
[57] The appellants submit that the trial judge found, at paras. 85 to 87 of his reasons, that the expert evidence concerning whether the paper tracing was interpretable was conflicting and that he also concluded, at paras. 86 and 215, that the output from the fetal heart rate monitor, both audible and visual, was uninterpretable.
[58] The appellants contend that, having made those findings, the trial judge made a palpable and overriding error by accepting, at para. 222, Dr. Librach’s evidence that everyone in the labour room was well aware of fetal heart rate activity based on the output from the fetal heart rate monitor and that his (Dr. Librach’s) decision to apply the vacuum was informed by that information.
[59] This finding, in turn, formed the underpinning of the trial judge’s subsequent conclusions that Dr. Librach perceived deep persistent decelerations of the fetal heart rate and that that information justified Dr. Librach’s decision to apply the vacuum rather than attach a fetal scalp clip.
[60] The appellants contend that as a result of the trial judge’s palpable and overriding error in accepting Dr. Librach’s evidence that everyone in the labour room was well aware of fetal heart rate activity, the trial judge made two additional errors. First, he failed to resolve the conflict in the expert evidence concerning whether the paper tracing was interpretable. Second, he failed to determine whether the standard of care required application of a scalp clip.
[61] For reasons that we will explain, we accept these submissions.
ii) The Trial Judge’s Reasons
[62] At paras. 85 to 87 of his reasons, in the concluding portion of a preliminary section of the reasons entitled “Labour and Delivery Records”, the trial judge made statements about the interpretability of the fetal heart rate tracings that the appellants say are inconsistent with the trial judge’s subsequent finding at para. 222 that “everyone in the [delivery] room was well aware of fetal heart activity as the result of the visual and audible outputs from the monitor.” According to the appellants, para. 87 also confirms that the trial judge was satisfied that the expert witnesses disagreed about whether the paper tracings were interpretable:
85 What is not clear from a reading of these notes and records and is a central feature of this case is that the external electronic monitor that was tracking both fetal heart rate and maternal uterine contraction activities … became largely un-interpretable as the final stage of labour unfolded. As well, from about 0332 forward to about 0353, when the monitor was removed to facilitate transferring Kimberly … the tracing of maternal uterine activity is not recorded by the external monitor at all…
86 …In this case, not only did the monitor fail to provide continuous evidence of both sets of activity but it also failed to provide consistent information capable of meaningful interpretation regarding the fetal heart rate and therefore the well-being of the fetus during many minutes before Robbie's birth.
87 The loss of maternal tracing is clear. The tracing of the fetal heart rate is less so. The experts do not agree on whether or at what point(s) the tracing became un-interpretable. [Emphasis added.]
[63] The trial judge’s subsequent findings about the interpretability of the output from the fetal heart rate monitor appear at paras. 215 and 222 in a part of the analysis section of his reasons entitled “Fetal Heart Rate Evidence”. However, before reviewing these paragraphs, it is important to put them into context.
[64] On our reading of it, there are at least three components of the “Fetal Heart Rate Evidence” section of the trial judge’s reasons, which consists of paras. 206 to 234.
[65] In the first component, the trial judge found the fetal heart rate evidence fraught with problems. He noted that the fetal heart rate monitors were not produced in evidence. While he heard evidence of a lag time of as much as two minutes in the appearance of printed information on the paper tracings produced by the fetal heart rate monitor, he was not told whether there was a lag time in the digital or audible outputs from the monitor.
[66] Further, the evidence did not establish whether Dr. Librach, Dr. Ferguson or Nurse Lee could see the monitor readout in the labour room and the position of the monitor readout screen in the delivery room was not described.
[67] In addition, there were significant gaps in the paper tracings produced by the fetal heart rate monitor during the critical time frame after 3:30 a.m. Moreover, Dr. Librach, Dr. Ferguson and Nurse Lee all acknowledged that audible sounds from the fetal heart monitor were not continuous -- in other words, there were also gaps in the audible output from the fetal heart rate monitor.
[68] Para. 215 forms part of this first component of the “Fetal Heart Rate Evidence” section of the trial judge’s reasons and reads as follows:
215 As discussed elsewhere in these reasons, there are gaps in the tracing on the fetal heart monitor strip. The evidence is unclear on just what one might hear in the labour room when the monitor is not recording a tracing. Dr. Librach, Nurse Lee and Dr. Ferguson were all in the labour room and all admitted that audible sounds from the fetal heart monitor were not continuous. There is no evidentiary basis upon which I can find that people in the room would have heard all or any of the audible output normally generated by the monitor in times coincident with tracing gaps. [Emphasis added.]
[69] Before concluding the first component of the “Fetal Heart Rate Evidence”, the trial judge went on to note that the fact witnesses who were involved in the delivery tended to blur the distinction between audible and visual signals produced by the monitor and moved between what they could see and hear on the monitor readout and what was visible on the tracings. The trial judge concluded that in so doing the witnesses overlooked the fact that all three sources of information were not instantly available.
[70] Moreover, Nurse Lee “readily admitted” that the times she wrote on the paper tracings, which was the only indication of time on the tracings, could be out by one or two minutes in each case.
[71] In the result, the trial judge concluded that he “must take care in considering the evidence of what witnesses saw on and heard from the monitor, because even if a witness saw or heard audible or digital readout information of relevance, that witness simply could not have contemporaneously seen the related heart activity depicted on the tracing.”
[72] In the second component of his reasons concerning the “Fetal Heart Rate Evidence”, the trial judge was critical of the expert evidence purporting to opine on standard of care issues based on hospital records, fetal heart rate tracings and discovery evidence. He pointed out that it is not now possible to divine from a review of the labour and delivery records the extent to which anyone in the labour room “looked at the monitor display, at the tracing or listened to audible sounds in the course of making professional judgements” while in the labour room.
[73] The trial judge commented at para. 220: “Nevertheless, the experts who opined about standards of care issues did just that; they looked at the WCH records and particularly at the fetal heart rate tracings for the factual foundation to support their expert opinions.”
[74] Further, the trial judge observed that although the experts (with the exception of Dr. Harman) reviewed Dr. Librach’s discovery transcripts, “neither the portions of the discovery transcripts read in nor other evidence at trial describes the extent to which digital readout-based information or audible sounds from the monitor informed decisions made” by the doctors and nurses.
[75] In the final component of his reasons concerning the “Fetal Heart Rate Evidence”, at paras. 222 and 223, the trial judge accepted Dr. Librach’s trial evidence that everyone in the room was well aware of fetal heart rate activity and that his decision to apply the vacuum was informed by information from the fetal heart rate monitor. In doing so, the trial judge also observed that the experts had an incomplete factual underpinning for the opinions they offered because they did not have the same information as Dr. Librach and were not in a position to put themselves in his shoes:
222 Upon the trial evidence of Dr. Librach, however, his decision to apply the vacuum was indeed informed by information he saw and heard from the labour room monitor. He maintained at trial, and I accept, that everyone in the room was well aware of fetal heart activity as the result of the visual and audible outputs from the monitor. The experts had no information about audible or digital display information at all and, therefore, an incomplete factual underpinning for the opinions they offered.
223 … In fact, none of the experts reviewing this case could put themselves into the shoes of Dr. Librach because they did not have objective, quantifiable and complete evidence of exactly what Dr. Librach saw and heard from the heart monitor and from his patient in the critical timeframe at issue. [Emphasis added.]
iii) Discussion
[76] We are unable to reconcile the statements made by the trial judge in paras. 85-87 and 215 with his finding in para. 222 that “everyone in the [labour] room was well aware of fetal heart activity as the result of the visual and audible outputs from the monitor.”
[77] Para. 86 includes a clear statement that the fetal heart rate monitor “failed to provide consistent information capable of meaningful interpretation regarding the fetal heart rate and therefore the well-being of the fetus during many minutes before Robbie’s birth.”
[78] Although it might be argued that paras. 85 – 87 were merely introductory and in any event were intended to address only the paper tracing output from the fetal heart rate monitor and that the trial judge simply misspoke himself in referring to the output from the monitor generally in para. 86, that interpretation is not confirmed by the last sentence of para. 215.
[79] The last sentence of para. 215 reads as follows: “There is no evidentiary basis upon which I can find that people in the room would have heard all or any of the audible output normally generated by the monitor in times coincident with tracing gaps” (emphasis added).
[80] Read in context, the plain meaning of the last sentence of para. 215 is that there was no evidence adduced at trial that would permit the trial judge to conclude that Dr. Librach (and the others present in the labour room) heard audible output from the fetal heart rate monitor during periods that coincided with the gaps in the paper tracings produced by the fetal heart rate monitor.
[81] As the trial judge explained, the flaws in the fetal heart rate evidence precluded that conclusion. Although there was evidence of time lags of up to two minutes in production of the paper tracings emitted by the fetal heart rate monitor, there was no evidence concerning the timing of the audible output from the monitor. Was the audible output in real time? Or was there a time lag? If there was a time lag, was it the same as the time lag for the paper tracings? The trial judge simply did not know.
[82] Before making the statement in the last sentence of para. 215, the trial judge had already observed that he did not know whether Dr. Librach (or the others present in the labour room) could see the fetal heart rate monitor from their location(s) in the labour room. The combined effect of that finding and the last sentence of para. 215, is that the trial judge had no evidentiary basis for concluding that Dr. Librach (or the others present in the labour room) had more information than the information provided by the paper tracings produced by the fetal heart rate monitor.
[83] Yet the clear implication of para. 222 is that Dr. Librach and the others present in the labour room had more information than was available on the paper tracings – a finding that is inconsistent with the last sentence of para. 215.
[84] Moreover, in the light of his finding at para. 215, in our view, the trial judge was required to assess the expert evidence relating to the interpretability of the paper tracings produced by the fetal heart rate monitor before drawing a conclusion concerning whether he accepted Dr. Librach’s evidence that “everyone in the room was well aware of fetal heart activity as the result of the visual and audible outputs from the monitor.” The trial judge’s determination of whether the paper tracings were interpretable was critical to his assessment of both the credibility and the reliability of the fact witnesses’ evidence.
[85] If Dr. Librach (and the others present in the labour room) had no more information than the information provided by the paper tracings produced by the fetal heart rate monitor and if the paper tracings were uninterpretable, that undermined both the reliability and credibility of Dr. Librach’s evidence that “everyone in the room was well aware of fetal heart activity as the result of the visual and audible outputs from the monitor.”
[86] As the trial judge’s finding at para. 222 is inconsistent with his finding at para. 215 and as the trial judge failed to determine whether the paper tracings produced by the fetal heart rate monitor were interpretable, his finding that “everyone in the room was well aware of fetal heart activity as the result of the visual and audible outputs from the monitor” cannot stand.
[87] Further, as that finding was integral to the trial judge’s conclusions concerning whether the standard of care required the application of a scalp clip and concerning whether there was an indication to apply the vacuum, those conclusions cannot stand.
[88] In reaching these conclusions, we acknowledge that the Dr. Librach argued that, by the end of the trial, there was no real conflict in the expert evidence concerning the interpretability of the paper tracings. However, if that was the trial judge’s view, he was required to say so and explain the basis of his conclusion.
[89] In addition, Dr. Librach argued that the trial judge’s findings were consistent with his findings on factual causation. Given that the asphyxial insult began just after 3:30 a.m., that supported the likelihood that Dr. Librach perceived what he said he perceived – persistent, deep decelerations of the fetal heart rate that raised a concern about hypoxia, and provided an indication to apply the vacuum.
[90] We agree there is some force to this argument. That said, the fact that there was likely a problem with the fetal heart just after 3:30 a.m. does not mean that Dr. Librach was able to discern it based on the information he had – nor does it mean he was able to make a proper assessment of what delivery option to choose based on the information he had. In the light of his finding in the last sentence of para. 215, in our view, the trial judge was required to resolve the conflict in the expert evidence concerning whether the paper tracings produced by the fetal heart rate monitor were interpretable in order to make those determinations.
2) The Trial Judge Erred in Finding that “the Deep and Prolonged Decelerations of the Fetal Heart that Occurred between 0341 and 0349 (during the time that Dr. Librach attempted vacuum extraction) would have Occurred even if Dr. Librach had Opted to Delay Vacuum and to Apply a Scalp Clip.”
[91] The trial judge addressed causation at paras. 256 to 259 of his reasons. Central components of his reasoning were his findings that:
i) the asphyxial insult that led to Robbie’s brain injury began shortly after his mother entered the second stage of labour and began pushing, around 3:30 a.m.;
ii) the “deep and prolonged decelerations of the fetal heart” that occurred between 3:41 and 3:49 (during the time that Dr. Librach attempted vacuum extraction) would have occurred even if Dr. Librach had opted to delay the vacuum and to apply a scalp clip instead; and
iii) it was sheer speculation to predict whether Robbie’s outcome would have been different, let alone more favourable, had this theoretical alternative path been followed.
[92] As these paragraphs of the trial judge’s reasons are central to this ground of appeal, we will set them out again in full:
256 I cannot find that attaching a scalp clip could have revealed normal fetal heart activity before 0341 and there is no credible evidence supporting a case for application of a scalp clip before 0341.
257 Even Dr. Harman stops short of saying that fetal head compression, cord prolapse or both occurred only after 0341; as such, I must find that the deep and prolonged decelerations of the fetal heart that occurred between 0341 and 0349 (during the time that Dr. Librach attempted vacuum extraction) would have occurred even if Dr. Librach had opted to delay vacuum and to apply a scalp clip.
258 It is sheer speculation to predict whether Robbie's outcome would have been different, let alone more favourable, had this theoretical alternative path been followed.
259 In my view, the asphyxial insult that lead to Robbie's brain injury incepted shortly after Kimberly entered the second stage of labour and began pushing, around 0330.50 The insult produced the deep decelerations that Dr. Librach and Nurse Lee observed, two of which Nurse Lee also recorded.
FN 50 Drs. McGrath and Davies agree that the heart rate pattern changed suddenly. Dr. McGrath concluded, in retrospect, that the sudden change began shortly after Kimberly started to push and Robbie's injuries began during the last 30 minutes before his birth. [Emphasis added.]
[93] On appeal, the appellants argued that all three components of the trial judge’s reasons on causation were in error. In our view, it is sufficient to dispose of the appeal by addressing only the last two components.
[94] Assuming that it was open to the trial judge to find that the asphyxial insult began around 3:30 a.m., in our view, the evidence at trial did not support the trial judge’s finding that the bradycardia that began around 3:41 a.m. would have happened in any event.
[95] The trial judge’s finding that the bradycardia would have happened in any event appears to be premised solely on his conclusion that the asphyxial insult began shortly after 3:30 a.m. However, that chain of reasoning ignores undisputed evidence that Robbie’s heart rate became bradycardic suddenly and unexpectedly when the vacuum was applied. Significantly, it also ignores expert evidence that pulling on a prolapsed cord will quite likely cause a bradycardia.
[96] For example, Dr. McGrath testified that, where there is an occult cord prolapse, pulling on the fetal head will most likely compress the umbilical cord and cut off circulation to the fetus. According to Dr. Davies, the fetus responds to oxygen deprivation with a lower heart rate. Bradycardia can occur when the fetus is either lower in the pelvis, or the umbilical cord becomes completely or almost completely occluded. In cross-examination, Dr. Davies agreed with a suggestion that it was his opinion that the fetal heart rate fell as it did after the vacuum was applied because of the traction that occurred with the use of the vacuum – traction that compressed the umbilical cord further than any compression that had occurred prior to the vacuum. In his factum on appeal, Dr. Librach did not dispute the evidence that the vacuum likely compressed the cord further.
[97] In our view, the timing of the bradycardia and the expert evidence we have referred to suggests the likelihood that the bradycardia was triggered by the application of the vacuum.
[98] Moreover, while there was some evidence that a bradycardia could have occurred at some point in any event because of the cord prolapse and the progress of labour[^7], that evidence does not go far enough to support a finding that it was likely that a bradycardia would have occurred at 3:41 a.m.; nor does it support a finding that a bradycardia was inevitable prior to Robbie’s birth.
[99] Once the finding that the bradycardia would have happened in any event is removed, it is not clear to us what finding the trial judge would have made concerning causation. If Dr. Librach breached the standard of care by applying the vacuum instead of applying a scalp clip, the question becomes would applying the scalp clip have made any difference.
[100] Dr. Librach’s evidence was that he decided to apply the vacuum extractor because he thought the fetal heart rate was concerning. Accepting that the asphyxial insult began around 3:30 a.m., the trial judge had to determine whether a applying scalp clip, which would have produced a clear fetal heart rate tracing, would have revealed a fetal heart rate that would have been more serious than “concerning” and that would have led Dr. Librach to choose an alternative form of operative delivery, namely forceps or c-section.[^8]
[101] Dr. McGrath testified that it would take at least three to four minutes after making the decision to apply a scalp clip to obtain sufficient information to make a decision on an appropriate course of action. That means that if Dr. Librach had applied the scalp clip at 3:41 a.m., he could have been in a position to make a decision as early as 3:44 or 3:45 a.m.
[102] Would Dr. Librach have made the decision to move to an alternative form of operative delivery instead of attempting a vacuum delivery if he had applied a scalp clip?
[103] In our opinion, that was a question for the trial judge to answer taking account of the whole of the evidence and his finding that the asphyxial insult began around 3:30 a.m. Had he chosen an alternative form of operative delivery, bradycardia may not have occurred in the relevant interval – or, it may have occurred closer to the time of Robbie’s birth. Moreover, had Dr. Librach made the decision to use forceps, the total time to delivery could have been reduced by as many as five minutes. All of these factors could have reduced the risk or severity of injury to Robbie’s brain.
[104] In all the circumstances, we are not persuaded that the trial judge’s conclusion on causation would necessarily have been the same but for his erroneous finding that the bradycardia that occurred at 3:41 a.m. would have happened in any event.
[105] In the result a new trial is required.
3) The Appellants’ Appeal from the Dismissal of their Claims against Nurse Lee and the Hospital
[106] At paragraph 254 of his reasons, under the heading “Allegations Against the Defendants”, the trial judge wrote:
Further, as I have found that Dr. Librach's clinical judgment was sound and in accord with applicable standards of obstetrical practice, the notion floated by Nurse Wood [an expert witness for the appellants] that Nurse Lee should have offered a scalp clip to Dr. Librach and/or objected to or enquired into the medical reasons supporting Dr. Librach's clinical decision are without merit.
[107] The appellants argue that because the trial judge linked his findings concerning the liability of Nurse Lee and the Hospital to his finding concerning Dr. Librach’s liability, if a new trial is ordered in relation to their claim against Dr. Librach, a new trial is required in relation to their claims against the Hospital and Nurse Lee.
[108] We disagree. The trial judge made the finding set out above after making the following specific findings negating liability on the part of Nurse Lee (and therefore the Hospital):
• Nurse Lee maintained vigilant overview of Ms. Long-Suwary’s contractions and of the fetal heart activity;
• the evidence did not support the appellants’ contention that additional resuscitative measures should have been undertaken, beyond the application of the wedge, a measure undertaken by Nurse Lee at 3:37 a.m.; and
• the evidence did not support a finding that Nurse Lee departed from standards of nursing practice at or before the time Dr. Librach decided to apply and then applied the vacuum extractor, as these were medical matters and not within the scope of nursing practice.
[109] Particularly in the light of the trial judge’s specific finding that the evidence did not support a finding that Nurse Lee departed from standards of nursing practice at or before the time Dr. Librach decided to apply and then applied the vacuum extractor, the finding set out above was unnecessary to the trial judge’s conclusion that the claims against Nurse Lee and the Hospital should be dismissed. We do not give effect to this ground of appeal.
IV. The Trial Judge’s Discussion of the Expert Evidence
[110] Before concluding our reasons, we wish to comment briefly on one aspect of the trial judge’s discussion of the expert evidence.
[111] At the outset of his analysis, at paras. 174 to 183 of his reasons, the trial judge expressed his chagrin at the adversarial approach to trial preparation adopted by the experts in this case. He noted that, during the course of the trial, particularly during cross-examination, “differences of expert opinion narrowed and large pools of overlapping opinion emerged.”
[112] The trial judge opined that “opposing experts should meet before trial and attempt to assist the trial judge by narrowing their differences to the extent possible and, in any event, to identify the true and meaningful differences at issue.”
[113] In one key paragraph of this section of his reasons, the trial judge expressed his frustration at the experts’ failure to focus their evidence concerning the standard of care issues:
180 A central issue and perhaps the central issue in this case is whether Dr. Librach acted precipitously in applying the vacuum where and in the circumstances he did. Had the experts met and discussed this case before trial, that issue would undoubtedly have arisen and a focus could/should have been placed on how to help the court to an understanding of the issue and the medical science pertaining to it. Drs. McGrath and Davies each practice obstetric medicine in the same hospital in Kingston. Their views on this issue differ and their experience regarding the time needed to deliver a baby at their hospital differed and yet they chose not to discuss their differences before attending to share them with this court; incredible! [Emphasis added.]
[114] In our view, this criticism of the expert witnesses was unfair and somewhat at odds with the trial judge’s other findings about Drs. McGrath and Davies. We do not agree with the trial judge’s criticisms of the expert witnesses in this case because they failed to meet with each other and review the issues prior to the trial. While it would no doubt be open to counsel to agree on such an approach, and while such an approach might well be desirable in some cases, that is a decision for counsel, not for the experts, to make.
V. Conclusion
[115] Based on the foregoing reasons, we allow the appeal with respect to the appellants’ claim against Dr. Librach and order a new trial and we dismiss the appeal with respect to the appellants’ claim against Nurse Lee and the Hospital.
[116] Nurse Lee and the Hospital are entitled to costs of the appeal if demanded. If the parties are unable to agree on any such costs, they may make brief written submissions to the panel.
[117] The appellants may file brief written submissions on costs with respect to Dr. Librach within 15 days from the date of release of these reasons and Dr. Librach may respond within 15 days thereafter.
Signed: “Janet Simmons J.A.”
“Robert P. Armstrong J.A.”
“H. S. LaForme J.A.”
RELEASED: “JS” October 31, 2011
Appendix “A”
The appellants raised six main issues on appeal:
(1) Did the trial judge err in law by failing to provide adequate reasons for his preference of Dr. Librach’s evidence at trial to his conflicting evidence on discovery?
(2) Did the trial judge make a palpable and overriding error in finding that Dr. Librach was “well aware of fetal heart activity as a result of the visual and audio output from the monitor” despite having found that the output from the fetal heart rate monitor, both visual and audible, was uninterpretable?
(3) Did the trial judge make a palpable and overriding error by disregarding the expert evidence on the state of the fetal heart rate in the minutes before the vacuum was applied?
(4) Did the trial judge err in law by failing to determine the standard of care in this case?
(5) Did the trial judge make a palpable and overriding error in finding that Robbie's injuries were caused by an insult that began at 3:30 a.m., and that Dr. Librach’s response to the situation therefore “neither caused nor contributed to the insult and/or the injury”?
(6) Did the trial judge err in failing to decide whether Robbie’s delivery involved risk factors that Dr. Librach had to take into account?
In advancing their arguments concerning these issues, the appellants also submitted that the trial judge decided the case retrospectively; made contradictory findings; made palpable and overriding errors of fact; drew analysis-free conclusions; and either failed to address or misunderstood various aspects of the appellants’ case.
[^1]: The Suwarys’ claims against Drs. Ferguson and Unger were dismissed prior to trial.
[^2]: This type of insult involves a very abrupt and almost complete interruption of the blood supply to the fetal brain.
[^3]: The trial judge said prolapse “describes a squeezing or compression of the umbilical cord such that the flow of blood through the cord … is impeded.” He explained that occult “describes a condition that cannot be ascertained from a physical examination of the patient.” The evidence at trial indicated that the fetal heart rate declines in response to oxygen deprivation, which is caused by a reduced blood flow, and that this response varies in relation to the degree of compression.
[^4]: Nursing notes revealed the following fetal heart rates in the interval between 3:41 and 3:49 a.m.: 3:41 FH down to 55 up to 140-145; 3:42 FH 52 per 60 seconds Patient pushing with contractions 2-3 min; 3:43 FH 68 – 70 per 60 seconds; 3:44 FH 60 – 62 pushing; 3:45 FH increasing 64 up to 124; 3:47 FH down to 68 up to 110 pushing; 3:48 FH 85 – 110; 3:49 vacuum removed V/E by Dr. Librach OP position.
[^5]: ROP means Right Occiput Posterior or face-up position.
[^6]: ROA means Right Occiput Anterior or face-down position.
[^7]: Dr. McGrath testified that “one of the risks of cord prolapse if you do nothing is that nature itself causes compression of the cord and can compromise gas exchange. He also stated “[y]ou will certainly aggravate it when you pull on the head”, but he did not rule out the prospect that a bradycardia would have occurred in any event.
In addition, Dr. Macnab (a paediatrician and neonatologist called by the appellants) testified that where there are cord problems, the progress of labour can worsen cord compression. According to Dr. Davies, the fetal heart rate returned to normal after Dr. Librach performed the forceps rotation, likely because the forceps rotation alleviated the cord compression and restored blood flow to the fetus.
[^8]: For example, Dr. McGrath testified that if the occult cord prolapse occurred before the vacuum, a scalp clip probably would have shown the fetal heart changes that accompany the early stages of severe cord compression, which tend to be deep, prolonged, variable decelerations.