COURT OF APPEAL FOR ONTARIO

CITATION: Goodwin v. Olupona, 2013 ONCA 259

DATE: 20130425

DOCKET: C53018

Laskin, Blair and Epstein JJ.A.

BETWEEN

Adam Goodwin by his litigation guardian Debra Goodwin, Debra Goodwin, Brian Goodwin, Rachel Goodwin by her litigation guardian Debra Goodwin, and Jessica Goodwin by her litigation guardian Debra Goodwin

Plaintiffs

and

Dr. Samuel Olupona, Dr. Orest Sochaniwshyj, Dr. Edward Cormode, Dr. Jane Doe, Nurse Jane Doe I Sulabha Burhanpurkar, Nurse Jane Doe II Bernice Thibedeau, and Orillia Soldiers’ Memorial Hospital

Defendants/Appellants/Respondent

Steven Stieber and Elizabeth Bowker, for the appellants

Peter W. Kryworuk and Cynthia B. Kuehl, for the respondent

Heard: October 2, 2012

On appeal from the judgment of Justice Bruce A. Glass of the Superior Court of Justice, sitting with a jury, dated November 5, 2010.

Epstein J.A.:

A. Overview

[1] On August 22, 2002, Debra Goodwin gave birth to twins. The first, Jessica, was delivered vaginally without complications. The second, Adam, was delivered by Caesarean section (“C-section”). Unfortunately, Adam was injured prior to birth and, shortly after he was born, was diagnosed with spastic quadriplegia. Mr. and Ms. Goodwin, on their own behalf and on behalf of their three children, brought a negligence action against the health professionals involved in Adam’s delivery and against the hospital where Adam was born.

[2] The defendants in that action were:

• Dr. Samuel Olupona, the physician in charge of the twins’ delivery;

• Nurse Sulabha Burhanpurkar, the nurse primarily responsible for Ms. Goodwin’s care until 7:00 p.m., which was a little more than an hour before the first baby was born;

• Nurse Bernice Thibedeau, the nurse who replaced Nurse Burhanpurkar, and the nurse primarily responsible for Ms. Goodwin’s care between 7:00 p.m. and immediately prior to the twins’ births; and

• the Orillia Soldiers’ Memorial Hospital.

[3] A few days into the trial, the plaintiffs settled with Dr. Olupona. The trial therefore proceeded as a cross-claim by Dr. Olupona against the hospital and the two nurses.

[4] After a 32-day jury trial, followed by 8 days of deliberations, the jury returned a verdict finding Nurse Burhanpurkar 75 per cent liable and the hospital 25 per cent liable for Adam’s injuries. The jury found no negligence on the part of Dr. Olupona or Nurse Thibedeau and the claims against them were therefore dismissed.

[5] Nurse Burhanpurkar and the hospital appeal.[^1]

[6] The first main ground of appeal is that the jury returned an unreasonable verdict. While, in different respects, both appellants challenge the findings of negligence, the real focus is causation. The appellants submit that the jury’s verdicts were unreasonable as there was insufficient evidence to establish that any established negligence on their part caused Adam’s injuries.

[7] As a second main ground of appeal, the appellants submit that the charge to the jury contained reversible errors.

[8] For the reasons that follow, I would dismiss the appeal. In my view, there was sufficient evidence to support the jury’s conclusions that both Nurse Burhanpurkar and the hospital failed to meet the requisite standard of care, and that their negligence caused Adam’s injuries. The verdict in these respects cannot be said to be unreasonable. Further, I find no error in the charge to the jury.

B. BACKGROUND

[9] At 2:00 p.m. on August 22, 2002, Ms. Goodwin checked into the hospital for an elective induction to give birth to twins. There was no indication at that point that the babies were other than healthy. At approximately 4:30 p.m., Dr. Olupona performed an ultrasound. The first twin, Jessica, was in the proper vertex (head-down) position. However, the second twin, Adam, was in a footling breech position, meaning that with a vaginal delivery one or both feet would come out first. The doctor did not notify anyone about the twins’ presentation or his birth plan. Nurse Burhanpurkar, the nurse primarily in charge of Ms. Goodwin’s care at that time, was present during the ultrasound and had access to Dr. Olupona’s recorded findings in the chart.

[10] At about 4:45 p.m., Dr. Olupona examined Ms. Goodwin and found her to be four centimetres dilated. He broke her water to induce labour, a process known as Artificial Rupture of the Membrane (“ARM”). Shortly after administering the ARM, Dr. Olupona notified the anaesthetist and the paediatrician of the impending delivery, and ordered blood work. He made a further order, noted on Ms. Goodwin’s chart, for an “Epidural PRN”. This order directs the nurses to provide an epidural if needed or if requested by the patient. The administration of an epidural is a two-step process. First, the nurse establishes a mainline intravenous with saline solution. Second, an anaesthetist inserts a tube into the patient’s lower back through which the pain-relieving substances are delivered. After writing his orders, Dr. Olupona returned to his office, a three-minute walk from the hospital.

[11] Ms. Goodwin began to have contractions at about 5:00 p.m. These contractions, together with the extent of her dilation, meant that sometime after that point, and by 6:00 p.m. at the latest, Ms. Goodwin was in active labour.

[12] Mr. and Ms. Goodwin’s uncontradicted evidence is that she asked an unidentified nurse for an epidural at 6:00 p.m., and once again between 6:30 p.m. and 6:45 p.m. She was not given one. Nurse Burhanpurkar testified that she was not aware of the requests or that Ms. Goodwin was even in labour.

[13] While Nurse Burhanpurkar was responsible for Ms. Goodwin’s care, the twins’ heart rates were not monitored continuously using an electronic foetal heart rate monitor. Rather, they were checked only twice – at 4:45 p.m. and 6:00 p.m. using a portable doctone, a device that measures the heart rate at a point in time. The results of the FHR are an indication of the health of the foetus.

[14] At 7:00 p.m. Nurse Thibedeau took over from Nurse Burhanpurkar and assumed care of Ms. Goodwin. Nurse Thibedeau was incorrectly advised that both twins were in the vertex (head first) position. She moved Ms. Goodwin into the labour and delivery area. No one there was aware that the second twin was in footling breech position. Nurse Thibedeau checked the FHRs with a doctone sometime between 7:00 p.m. and 7:30 p.m. The rates were within the acceptable range.

[15] Nurse Thibedeau inserted an intravenous line in preparation for an epidural. Dr. Rosati, the anaesthetist on call, had been advised of the need to provide Ms. Goodwin with an epidural. However, he was busy in the O.R. with another patient and indicated he could not attend to Ms. Goodwin’s needs until the completion of the surgery in which he was involved.

[16] Dr. Orest Sochaniwskyj, who was filling in for Ms. Goodwin’s regular family doctor, contacted the hospital shortly before 7:30 p.m. to inquire after Ms. Goodwin. Nurse Linda Veitch advised him that Ms. Goodwin had requested an epidural. Dr. Sochaniwskyj told the nurse to immediately contact Dr. Olupona. He then left for the hospital. Nurse Thibedeau commenced electronic FHR monitoring at 7:56 p.m., and normal heart rates were registered.

[17] When Dr. Sochaniwskyj arrived at the hospital, Ms. Goodwin had been transferred from the labour and delivery room to case room two, and delivery was imminent. Dr. Olupona, who was not contacted until 8:00 p.m., arrived at the hospital at 8:11 p.m., just in time to supervise Dr. Sochaniwskyj’s vaginal delivery of Jessica at 8:24 p.m. An epidural had not been administered.

[18] Following the Jessica’s delivery, Ms. Goodwin advised Dr. Olupona that she had been asking for an epidural since 6:00 p.m. Nurse Thibedeau testified that Dr. Olupona was shocked and angry that his order for an epidural had not been followed.

[19] Dr. Olupona examined Ms. Goodwin and conducted an ultrasound. The second twin remained in breech position. Dr. Olupona had no choice but to deliver the second baby by C-section in the O.R.; he could not deliver a breech baby vaginally unless the mother had an epidural. He also could not perform a C-section in case room two as it was poorly lit and the anaesthesia machine was not functioning well. Dr. Olupona ordered the O.R. to be made ready “quickly”.

[20] Nurse Thibedeau monitored the FHR of the second baby at 8:35 p.m. and observed a deceleration from the normal range. She turned Ms. Goodwin on her side, the standard practice under such circumstances, and the heart rate returned to normal. The heart rate was monitored once again at 8:45 p.m., and the results were normal.

[21] At 8:57 p.m., Ms. Goodwin was moved into the O.R., and Adam was delivered at 9:24 p.m. by C-section. He was “flat,” and required resuscitation. He was subsequently diagnosed with spastic quadriplegia.

C. ISSUES

[22] The appellants advance two main grounds of appeal:

1. The jury’s verdict was unreasonable and unsupported by the evidence with respect to its conclusions that:

a. having accountable supervision of nursing staff and providing adequate resources in case room two was part of a hospital’s standard of care;

b. Nurse Burhanpurkar’s negligence in failing to properly monitor the FHR, and the hospital’s negligence in failing to supervise and provide adequate facilities, caused Adam’s injury; and

c. having a plan of care was part of a nurse’s duty of care, and Nurse Burhanpurkar’s negligence in failing to prepare one and her failure to administer an epidural in a timely manner caused Adam’s injury.

2. The jury charge was deficient in that the trial judge failed to:

a. properly explain the legal test for causation;

b. mention certain material facts; and

c. set out the standard of care of nurses.

D. ANALYSIS

1) Unreasonable verdict

[23] It is well-established that a jury verdict will be set aside only if it is “so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it”: McCannell v. McLean, 1937 CanLII 1 (SCC), [1937] S.C.R. 341, at p. 343. Further, “[w]here there is some evidence to support the verdict, a jury will be accorded a high degree of deference”: Gutbir (Litigation guardian of) v. University Health Network, 2012 ONCA 66, 287 O.A.C. 223, at para. 5.

[24] At the beginning of oral argument, the appellants conceded that there was sufficient evidence upon which the jury could find that Dr. Olupona met the standard of care. Nevertheless, in order to provide context for the causation analysis central to this appeal, I will here set out some of the evidence that supported this verdict.

[25] Dr. Andrew Browning, qualified as an expert in obstetrics, gave evidence on behalf of Dr. Olupona. Dr. Browning testified that an elective primary C-section was much less common in 2002 when Adam was born. In his opinion Dr. Olupona’s plan to deliver the twins vaginally and only resort to a C-section if necessary was therefore reasonable. The fact that the second twin was in breech position did not, in Dr. Browning’s view, change the appropriateness of Dr. Olupona’s birth plan, since he had experience in, and felt comfortable with, performing vaginal breech extractions.

[26] Dr. Browning further opined that Dr. Olupona’s order of an epidural PRN was also standard protocol. In fact, he said that an order that one be placed immediately or at a specified time would not have been reasonable, as the timing of giving the mother an epidural depended on the onset of labour.

[27] Dr. Browning also supported Dr. Olupona’s actions after being summoned to the hospital. He agreed that when Dr. Olupona became aware that his order for an epidural had not been complied with, the only reasonable option for Adam’s delivery was to perform a C-section in the O.R. Dr. Olupona did what he could to hasten the delivery of the second twin.

[28] The appropriateness of Dr. Olupona’s response to the urgency of the situation was also supported by Nurse Thibedeau, who testified that Dr. Olupona not only ordered the O.R. to be prepared “quickly” but also actually assisted the nurses in preparing the O.R.

[29] In sum, the evidence indicated that Dr. Olupona decided upon a reasonable birth plan, gave reasonable directions to the nursing staff, and reasonably expected the nurses to follow his orders and otherwise carry out their nursing duties in accordance with the standard of care expected of them.

a. Did the jury err in finding negligence on the part of the hospital given the lack of evidence as to the hospital’s standard of care?

[30] The hospital submits that since Dr. Olupona called no expert evidence on the hospital’s standard of care, the jury had no basis to conclude that the hospital was negligent.

[31] In ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, the Supreme Court opened the door for a jury to decide upon a standard of care without the assistance of expert evidence. The court held that a jury was free to find that standard practice in the medical industry violated the standard of care, and consequently, the jury could decide for itself what constitutes the standard of care even where expert evidence says otherwise.

[32] Whether expert evidence is required turns on “whether the nature of the issue can be decided on the basis of the ordinary knowledge possessed by the jury or, on the contrary, the matter requires expert evidence because it is beyond the ken of the average juror”: ter Neuzen, at para. 55. See also Ellen I. Picard and Gerald B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 4th ed. (Toronto, Ont.: Thomson Carswell, 2007), at p. 460.

[33] Here the jury identified the hospital’s breach of the standard of care as being its failure to provide appropriately trained nursing staff and ensure that they were sufficiently supervised, and its failure to provide adequate equipment and resources in its labour and delivery facility.

[34] Identifying these fundamental obligations – that a hospital must provide staff and facilities capable of meeting the basic needs of patients – is well within the “ken of the average juror”. These responsibilities form the very foundation of a hospital’s duties to its patients.

[35] I note that while not dispositive, during pre-charge discussions, appellants’ trial counsel made no objection to the charge on the hospital’s standard of care and in fact resisted efforts to make changes. Nevertheless, I see no error as, in my view, the evidence of the two doctors, combined with the conventional knowledge of the jurors, was sufficient to equip the jury with the information necessary to determine the hospital’s standard of care in these areas.

[36] The jury’s findings that the hospital did not meet its standard of care were also borne out by the evidence.

[37] In terms of the hospital’s obligation to ensure proper training and supervision of its nurses, the jury had to look no further than Nurse Burhanpurkar herself who admitted that she had limited experience caring for a woman pregnant with twins. It was open for the jury to find that Nurse Burhanpurkar was not sufficiently competent to care for Ms. Goodwin, and attribute part of this lack of competence to the hospital’s failure to train and supervise its nurses.

[38] In terms of the hospital’s obligation to maintain and equip its facilities to the point that they were functional and safe, as I mentioned above, the jury heard from Dr. Robinson and Dr. Olupona to the effect that they would not operate in case room two as the lighting was bad and the anaesthetic equipment was unreliable. Again, maintaining the physical plant and equipment at a level capable of meeting the patients’ needs is the hospital’s responsibility.

[39] In my view, the jury’s verdict concerning the hospital’s negligence was supported by the evidence and is reasonable.

b. Was the jury’s finding that the appellants’ negligence caused Adam’s injuries unreasonable?

[40] Nurse Burhanpurkar concedes that she fell below the standard of care in failing to continuously monitor the FHRs after Ms. Goodwin entered labour; Guidelines from the Society of Obstetricians and Gynaecologists of Canada indicate that with the commencement of labour the FHR should be continuously monitored. Additional evidence concerning this obligation was provided by Nurse Kathryn Doren, who gave expert testimony that as soon as regular contractions began, a nurse in Nurse Burhanpurkar’s circumstances should have commenced continuous FHR monitoring to ascertain a baseline heart rate.

[41] I have already held that the jury’s verdict that the hospital deviated from its standard of care is reasonable.

[42] The appellants’ negligence is established. However, to succeed in his cross-claim, Dr. Olupona had to show that the appellants’ negligence caused Adam’s damages.

[43] This is the core of the appellants’ arguments. They submit that there was insufficient evidence upon which a properly instructed jury could reasonably have found that the negligence of Nurse Burhanpurkar and the hospital caused Adam’s injury.

i. The applicable law

[44] In Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, the Supreme Court reaffirmed the primacy of the “but for” test in causation, and in particular its application in a robust, common-sense fashion. The court made it clear, at paras. 9 and 38, that in concluding that causation has been established, the trier of fact may rely on inferences that are reasonably available on the evidence:

The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.

In many cases of causal uncertainty, it is conceivable that with better scientific evidence, causation could be clarified. Scientific uncertainty was referred to in Resurfice[Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333] in the course of explaining the difficulties that have arisen in the cases. However, this should not be read as ousting the “but for” test for causation in negligence actions. The law of negligence has never required scientific proof of causation; to repeat yet again, common sense inferences from the facts may suffice.

[45] This issue was also discussed recently in Goodman v. Viljoen, 2012 ONCA 896, 299 O.A.C. 257. Doherty J.A. (dissenting, but not on this point) reviewed Clements, at para. 76:

The robust and pragmatic approach takes into account the nature of the factual issues underlying the causation question and the kind of evidence that the parties are reasonably capable of producing on those issues. The approach acknowledges that the causation inquiry is essentially a practical one based on the entirety of the evidence and made with a view to determining whether the plaintiff has established causation on the balance of probabilities and not to a scientific certainty.

See also Ediger v. Johnston, 2013 SCC 18, at para. 36.

[46] It can be seen that this approach involves a consideration of two things – the nature of the factual issues underlying causation and the kind of evidence the parties are able to adduce.

ii. The jury’s findings

[47] My analysis of whether there was evidence to support the jury’s conclusions regarding causation starts with the specific acts of negligence found by the jury. Its answer to the question of whether Nurse Burhanpurkar fell below the requisite standard of care was as follows:

• Nurse Burhanpurkar was aware of her responsibilities of a high risk pregnancy, but failed to perform the majority of her duties, which were critical to the well-being of Debra Goodwin + twins.
• Nurse Burhanpurkar failed to follow Dr. Olupona’s orders.
• Nurse Burhanpurkar did not perform external [foetal] monitoring for 30 minutes or longer and did not record an intrapartum flow sheet at the time of formal admission of Debra Goodwin.
• Nurse Burhanpurkar failed to create a plan of care that addressed the patients[’] needs and well[-] being.
• Nurse Burhanpurkar did not perform adequate monitoring for the duration of her shift, such as [foetal] heart monitoring, monitoring of contractions and progress of labour.
• Nurse Burhanpurkar did not follow[]up on Debra Goodwin[’]s progress + whereabouts.
• Nurse Burhanpurkar did not perform adequate communication + documentation including no progress notes by Nurse Burhanpurkar.

[48] The jury also concluded that the hospital breached its standard of care, “by failing to have accountable supervision of nursing staff, and fail[ing] to provide adequate equipment and resources in case room #2”.

[49] The jury found that Nurse Burhanpurkar’s negligence caused Adam’s injuries as follows:

By not monitoring Debra Goodwin, time of labour was unknown and the patient was not transferred from the triage area to the labour and delivery unit. Had this transfer been conducted, the labour and delivery nurses would have had time to prepare[,] including starting an IV and arranging for an epidural. In being transferred to the labour and delivery unit the patient would have received one on one monitoring + care, and Dr. Olupona would have been notified in regards to patient[’]s progressive condition.

By not monitoring Debra Goodwin + babies[,] any signs of distress were not recorded or acted upon[,] which could have accumulated and most likely contributed to Adam Goodwin’s brain injury.

Debra Goodwin’s request[s] for an epidural were not acted upon nor did Nurse Burhanpurkar determine that the patient receive an epidural, therefore the patient did not receive an epidural in a timely fashion[,] which directly contributed to the events that happened after, which most likely [led] to Adam Goodwin’s brain injury.

Nurse Burhanpurkar did not have a proper plan of action that addressed Debra Goodwin and babies needs + well-being and relied upon the patient to notify her of any changes in her condition. This resulted in the next shift that began at 7:00 p.m. not having a progressive report of the patient[’]s condition[,] which contributed to the actions that were undertaken later which[,] most likely have led to Adam Goodwin’s brain injury.

[50] With respect to the hospital, the jury concluded:

We believe that had [accountable supervision of nursing staff] been in place[,] the monitoring of Debra Goodwin and babies[,] which involved a high risk pregnancy in a level 2 hospital would have indicated any distress during the progression of labour and actions taken most likely would have prevented the brain injury of Adam Goodwin.

[51] An examination of the jury’s answers to the questions involving the appellants’ negligence and how they caused Adam’s injury discloses two prevailing themes – lack of awareness of the progress of Ms. Goodwin’s delivery and the babies’ health, and delay in the delivery.

[52] Certain facts relevant to these themes are not in dispute:

• Ms. Goodwin went into active labour sometime between 5:00 p.m. and 6:00 p.m;

• Dr. Olupona was not called to come to the hospital until 8:00 p.m;

• notwithstanding Ms. Goodwin’s requests for an epidural between 6:00 p.m. and 7:00 p.m., the first steps to comply with her request were not taken until after 7:00 p.m., at which time the anaesthetist was unavailable;

• arrangements for an O.R. to be made available did not start until about 8:34 p.m., and the O.R. was only properly prepared at 8:57 p.m.;

• Nurse Burhanpurkar did not monitor the FHRs in accordance with her obligations;

• Nurse Burhanpurkar failed to administer an epidural in accordance with Dr. Olupona’s order; and

• Nurse Burhanpurkar did not maintain any notes of Ms. Goodwin’s progress and treatment.

iii. The expert evidence

[53] Two experts were called on the issue of causation.

[54] Characteristic of medical malpractice litigation, the jury was required to assess the competing opinions of these highly qualified experts and come to conclusions based on factual uncertainty.

[55] Dr. Michael Marrin, a neonatologist qualified to provide expert opinion evidence with respect to the nature and timing of the injury to Adam, testified on behalf of the appellants. Dr. Marrin’s view was that Adam’s neurological problem was, on balance, due to a sudden hypoxic ischemic injury (insufficient oxygen to the tissues of the body) that occurred less than 30 minutes, and more likely less than 20 minutes, before birth. On his theory, FHR monitoring would not have revealed any abnormalities, and could not have prevented the injury.

[56] Dr. James Low, an expert in foetal monitoring and asphyxia, was qualified as an expert in obstetrics and gynaecology on the cause and timing of brain injuries suffered by Adam. He gave evidence on behalf of Dr. Olupona. Dr. Low’s opinion was that it was more likely that Adam had sustained intermittent foetal hypoxia – periodic episodes in which Adam’s tissues were deprived of oxygen. Over time, these short recurrent episodes of foetal asphyxia had a cumulative effect that sensitized or weakened the foetus to the point where the brain was damaged.

[57] As can be seen, the primary divide between the two respected experts was over the timing of the event that may have caused Adam’s injury. I use the word “may” as neither doctor could say with certainty the circumstances that led to Adam’s injury. Both experts offered well-thought out and well-researched opinions, but, by their own admission, the persuasiveness of their opinions was necessarily diminished by the evidentiary uncertainty that is inescapable when dealing with injuries in utero.

[58] Dr. Low candidly acknowledged the challenges presented by the immutable scientific reality that in these circumstances, clinical evidence needed to establish causation with any degree of scientific certainty is simply not available in the vast majority of cases. He went out of his way to qualify his evidence using phrases such as “we are just speculating” and “we can’t say for sure”. These qualifications notwithstanding, Dr. Low did provide the jury, as best he could, with a causative route to Adam’s injury and with clinical evidence to support that route. I refer to evidence of intrauterine growth retardation and of the post-delivery discovery of elevated nucleated red blood cells.

[59] While Dr. Low cautioned the jury about his views, the jury was entitled to accept them, and evidently did so. . The jury found that Adam’s injury occurred between 8 a.m. and birth and not necessarily only in the last twenty or thirty minutes. This conclusion is inconsistent with Dr. Marrin’s theory. As well, the jury’s causation answers set out above demonstrate that the time period upon which it focussed in finding causation was when Ms. Goodwin was in labour.

[60] While the vexing question of causation did not find a definitive answer in the expert evidence, the jury accepted the opinion of a decidedly qualified expert who was careful not to overstate the certainty with which he held his views and who was able to point to supporting clinical evidence.

[61] By subscribing to Dr. Low’s view, the jury accepted, on balance, that Adam’s brain injury resulted from the combined effect of intrauterine growth retardation, intermittent hypoxia episodes during labour, and then possible asphyxia within the last 20 minutes before birth.

[62] However, the appellants submit that even on Dr. Low’s theory of causation, the evidence does not support the conclusion that Adam would not have been injured but for the negligence of Nurse Burhanpurkar and, through her, the hospital.

iv. The causal link

[63] I now to turn to the analysis of this issue.

[64] According to Dr. Low, the episodes of hypoxia, upon which his opinion of what caused Adam’s injury is based, manifest themselves in sudden, brief decelerations of the FHR. An episode of hypoxia can be detected by monitoring the FHR. The longer Adam is in the womb without proper FHR monitoring, the greater the risk that episodes of hypoxia go undetected. The greater the number of undetected episodes of hypoxia Adam experienced, the greater the danger of asphyxia leading to brain injury.

[65] This evidence supports the finding that had Nurse Burhanpurkar monitored the FHRs as she was required to do, and had she detected periodic decelerations of Adam’s heart rate, Dr. Olupona would have been alerted and he would have delivered Adam immediately. The evidence is clear that Adam could have been delivered hours earlier than he was. Earlier delivery could have resulted in Adam being born before his injury.

[66] In oral argument, the appellants relied on the lack of evidence that any hypoxic episodes actually took place while Ms. Goodwin was in Nurse Burhanpurkar’s care to support their argument that since causation could not be established the jury’s verdict was unreasonable. Specifically, if no hypoxic episodes took place between 5:00 p.m. when Ms. Goodwin went into labour, triggering the requirement to monitor the FHR on a continuous basis, and 7:00 p.m. when Nurse Burhanpurkar went off duty, then her negligence in failing to monitor the FHRs could have no impact on the injury caused in accordance with Dr. Low’s theory.

[67] I am not persuaded by this argument.

[68] First, direct evidence of causation is not necessary. This court’s recent decision in Gutbir was a case, where, as in this case, a baby was born with a permanent brain injury. The jury in that case found the cause of the injury to be prolonged partial hypoxic insult – a continuous deprivation of oxygen prior to birth. As in this case, the nurse in Gutbir breached her duty of care by failing to monitor the FHR. The jury found, on a balance of probabilities, that heart rate abnormalities that should have been detected were not.

[69] In upholding the jury’s verdict, this court held, at para. 43:

While there was no direct evidence of causation, there is evidence from which the jury could properly infer a causal connection. Dr. Carson testified that, if [electronic foetal monitoring] had been used or [manual intermittent auscultation] had been done properly, the distress of the foetus would have been detected, detection would have prompted intervention, and intervention would likely have been beneficial in this case. The jury's answer tracks Dr. Carson's evidence which indicates that they accepted it. The evidence of Dr. Hill, a paediatric neurologist, was that it takes one or two hours of hypoxic ischemic insult before injury results. The extent of the injury increases as time goes on. The evidence of Dr. Carson and Dr. Hill establishes that, had the standard of care with respect to foetal monitoring not been breached, the distress of the foetus would have been detected and, once detected, there was sufficient time to deliver Zmora before injury to her brain resulted.

[70] I acknowledge that the medical opinions expressed in Gutbir were stronger and more certain than the opinion Dr. Low offered in this case. Further, the jury in Gutbir expressly acknowledged which theory of causation it accepted. However, as set out above, Dr. Low’s opinion, one that the jury was entitled to accept and that it did accept, provided an evidentiary basis for the jury’s finding: because Nurse Burhanpurkar did not monitor the FHR, “any signs of distress were not recorded or acted upon which could have accumulated and most likely contributed to Adam Goodwin’s brain injury”.

[71] As this court did in Gutbir, I would reject the appellants’ submission that in order for causation to be established, evidence was required as to the exact timing of Adam’s irregular foetal heart beat. Here, upon accepting Dr. Low’s theory of causation and his evidence that concentrated the timing of the hypoxic episodes to when Ms. Goodwin was in labour, the jury could reasonably infer that during the first half of Ms. Goodwin’s labour: from 5:00 p.m. to 7:00 p.m., when Nurse Burhanpurkar was in charge of her care, Adam experienced an episode or several episodes of foetal hypoxia.

[72] This takes me back to the words of the Supreme Court of Canada in Clements that causation evidence should be approached in a robust and pragmatic fashion, having regard to the nature of the factual issues underlying causation and the kind of evidence the parties are able to adduce. A review of the evidence of both Dr. Marrin and Dr. Low makes it clear that the factual issues underlying causation in this case are particularly complex. In addition, Dr. Olupona was not able to adduce the clinical evidence that may have provided direct evidence of causation. This is because due to Nurse Burhanpurkar’s own negligence, the FHRs, reliable information about Adam’s welfare while Ms. Goodwin was in labour, was not available.

[73] Accepting the appellants’ argument would effectively immunize nurses in similar circumstances from liability, despite an acknowledged departure from the standard of care: c.f. Ediger, at para. 44. This would mean that where intermittent foetal hypoxia is the theory of causation, the nurse’s own negligence in failing to monitor the foetal heart rate would render it virtually impossible for the nurse to be held liable.

[74] Nurse Burhanpurkar and the hospital should not be allowed to hide behind a lack of evidence brought about by their own negligence, in the face of expert evidence supporting Dr. Olupona’s position.

[75] In my view, there was evidence capable of supporting the jury’s findings of negligence and causation - that on a balance of probabilities but for Nurse Burhanpurkar’s failure to properly monitor the FHRs, for which both the nurse and the hospital bear a degree of responsibility, it was likely that Adam’s injury could have been avoided.

c. Were the jury’s other findings unreasonable?

[76] The evidence was replete with areas where it could be said that Nurse Burhanpurkar breached the standard of care of a nurse in her situation. Generally, Nurse Burhanpurkar displayed a persistent lack of attention to Ms. Goodwin and lack of response to the progress of her labour. She failed to administer an epidural in accordance with Dr. Olupona’s order. She failed to prepare a plan of care and maintain proper records. She did not move Ms. Goodwin from the triage area (holding and assessment) to the labour and delivery birthing room, as she should have done so that Ms. Goodwin would have received the attention she needed.

[77] However, given my conclusion on the issue of FHR monitoring and causation, it is unnecessary to decide whether Nurse Burhanpurkar’s other breaches of the standard of care were also capable of grounding the causation analysis.

d. Conclusion on unreasonable verdict

[78] Since there was a sufficient evidentiary basis for the jury’s conclusions, I would not give effect to the argument that the verdicts were unreasonable.

2) The Jury charge

[79] As set out by this court in Pereira v. Hamilton Township Farmers’ Mutual Fire Insurance Co. (2006), 2006 CanLII 12284 (ON CA), 209 O.A.C. 127 (C.A.), at para. 51, an appellate court reviewing a trial judge’s charge will not hold the instructions to a standard of perfection. Instead, the focus should be on whether the jury would, having regard to the charge in its entirety, have properly understood the law.

[80] Further, not all errors necessitate a new trial. The appellant must establish that the error produced “some substantial wrong or miscarriage of justice”: Courts of Justice Act, R.S.O. 990, c. C.43, s. 134(6). See also Landolfi v. Fargione (2006), 2006 CanLII 9692 (ON CA), 79 O.R. (3d) 767, at para. 121; Pereira, at paras. 72-76.

[81] I also note that “a failure by counsel to object to a jury charge in a civil case, while not dispositive, will tell strongly against an appellant’s request for a new trial based on alleged flaws in the jury charge”: Kerr v. Loblaws Inc., 2007 ONCA 371, 224 O.A.C. 56, at para. 32.

[82] The appellants challenge the jury charge in three respects.

a. Improper instructions regarding the legal test for causation

[83] The appellants submit that the trial judge failed to explain to the jury the “but for” test and therefore failed to properly set out the law regarding causation.

[84] The proper test for causation, set out in Clements, at para. 8, is the “but for” test: “The plaintiff must show on a balance of probabilities that ‘but for’ the defendant’s negligent act, the injury would not have occurred.” It is clear that the trial judge was well aware of the test and properly instructed the jury on it. In his charge the trial judge explicitly set out and repeatedly reminded the jury of the “but for” test. For example, the trial judge stated:

The law requires that if the physician did not perform medical services within the standard of care for an obstetrician, it must be proven on a balance of probabilities that the injuries to Adam Goodwin would not have occurred but for the action or lack of actions by Doctor Olupona… [Emphasis added.]

[85] This type of wording was used every time the trial judge instructed the jury with respect to its consideration of whether a causal connection had been made out in relation to each defendant. This wording was also incorporated into the questions the jury was required to answer. Furthermore, when giving his instruction on the principle of proximate cause, the trial judge clearly used language tantamount to ‘but for’: “[t]he proximate cause of an injury is that cause which produces the injury, and without which the result would not have happened” (emphasis added).

[86] In my view, therefore, the trial judge did, contrary to the appellants’ position, properly instruct the jury on the “but for” test.

[87] I would therefore not give effect to this ground of appeal.

b. Omission of material facts in the charge

[88] The appellants also submit that the trial judge failed to reference certain facts in his charge to the jury and that this failure amounted to a miscarriage of justice. The appellants contend that the following facts, material to the jury’s consideration of the issues, were omitted from the charge:

a) Ms. Goodwin’s pregnancy was high risk;

b) Dr. Olupona was the physician in charge of the delivery of Ms. Goodwin’s twins;

c) when a foetus is in breech, there are increased risks associated with its delivery;

d) Dr. Olupona’s order for the epidural PRN was for Ms. Goodwin to receive the epidural as needed or for pain;

e) although Dr. Brown stated that if Dr. Olupona called the hospital, there was nothing for him to do, Dr. Olupona did not call the hospital to check on Ms. Goodwin;

f) Nurse MacPhail, the respondent’s nursing expert, only ever provided nursing care in a level III hospital, and not in a level II hospital;

g) at the time of Ms. Goodwin’s 4:30 p.m. ultrasound, Dr. Olupona did not inform her that Twin B was breech; and

h) in her testimony on the nursing standard of care, Ms. MacPhail thought there was a mandatory requirement for FHR monitoring after 5:00 p.m., but elsewhere in her testimony she indicated that there was a range of acceptable practice for monitoring in the 5:00 p.m. timeframe.

[89] I note that the jury instructions do not have to include reference to all of the facts and evidence: see Landolfi, at para. 120. On my review of the charge as a whole, the bulk of the facts upon which the appellants rely in this aspect of their appeal were either explicitly or implicitly addressed. The remainder were rejected by the trial judge in pre-charge discussions for reasons that I would not interfere with.

[90] Moreover, I am not persuaded that any of the facts allegedly omitted were so material that their omission resulted in a substantial wrong or miscarriage of justice.

[91] I would therefore reject this argument.

c. Omission in the charge of the standard of care for nurses and the hospital

[92] The appellants submit that the jury charge did not sufficiently outline the standard of care applicable to a nurse and hospitals.

[93] I have already dealt with an aspect of this argument in addressing the hospital’s argument that no evidence was adduced on a hospital’s standard of care. To repeat, the jury was entitled to determine the hospital’s standard of care in the absence of expert evidence. I would add the following to respond to this ground of appeal.

[94] A further difficulty I have with the appellants’ submission is that it is contrary to the position their trial counsel took in pre-charge discussions. Dr. Olupona’s trial counsel expressed concern about focusing on the issue of Dr. Olupona’s standard of care, as opposed to that of the nurses or the hospital. The appellants’ trial counsel disagreed, stating:

Your Honour, there are as it relates to the nurses at Orillia Soldiers’ Memorial … there are probably four to five paragraphs in your standard of care section that talks about that.

And first of all your general – the first general paragraph about standard of care generally and how it applies to physicians, you then confirm that the general principles are also with respect to the nurses. But I have counted … four specific paragraphs on either the nurses and/or Orillia Soldiers’ Memorial … But I don’t have the same view my friend has in that regard. And I don’t know what she is suggesting is missing with respect to it.

I think it’s clear when you read that that the jury will have to consider the standard of care of not only each of the physicians[,] each of the nurses, and the Orillia Soldiers’ Memorial Hospital not only in its capacity as being vicariously liable but also in its capacity as providing training and/or resources. So I’m not sure what is missing.

[95] It is trite law that “in a civil jury trial, the failure to object will be given considerable weight”: Brisco Estate v. Canadian Premier Life Insurance Co., 2012 ONCA 854, 113 O.R. (3d) 161), at para. 70. The appellants’ trial counsel not only failed to object to the charge on this basis, but also actively opposed the inclusion of more detail about the standard of care applicable to the nurses and the hospital – perhaps in an attempt to encourage the jury to concentrate more on Dr. Olupona than on the appellants. In my view, the appellants should not be entitled to resile from that position now.

[96] In any case, I am not persuaded that the charge was deficient in terms of providing the jury with assistance concerning the standard of care expected of the appellants. I refer to the following passage in the charge:

Nurses and a hospital also have duties towards patients to exercise the degree of care in all they do for a patient which could be reasonably expect[ed] of a normal prudent nurse with the same professional qualifications and training as Nurse Burhanpurkar and Nurse Thibedeau. The Orillia Soldiers Memorial Hospital is a Level II hospital, and it has a duty to its patients to provide the degree of care for a patient that could be reasonably expected of a Level II hospital when a woman attends for the delivery of twin babies.

[97] Further, after detailing the standard of care for a physician, the trial judge indicated that “the same concept of duty of care and meeting the standard of care applies for [the nurses and the hospital] in their positions as registered nurses and a Level II hospital.” It would have been unnecessary to repeat the exact same instruction twice, substituting the nurses’ and hospital’s names for that of the physician.

[98] One can reasonably assume that the jury understood the trial judge’s instructions. The jury, one that clearly took its job seriously, did not ask for any additional assistance on any of these issues.

[99] I would not give effect to the argument that the trial judge committed reversible error in any aspect of his thorough instructions to the jury.

E. CONCLUSION AND DISPOSITION

[100] In my opinion, based upon the proper instructions the trial judge provided, the jury was able to appreciate its duty. The members of the jury worked hard - participating in a long trial and tenaciously deliberating for eight days. At the end of the trial, the jury acted in accordance with its duty and rendered a verdict that was open to it on the evidence. The verdict is entitled to deference.

[101] I would therefore dismiss the appeal.

[102] The respondents are entitled to their costs, which, based on the agreement of counsel, are fixed in the amount of $40,000, including disbursements and applicable taxes.

Released:

“APR 25 2013” “Gloria Epstein J.A.”

“JL” “I agree John Laskin J.A.”

“I agree R.A. Blair J.A.”

[^1]: Although Nurse Thibedeau is listed as an appellant in this appeal, neither side contests the jury’s conclusion as to her liability. Consequently, in referring to appellants I mean only Nurse Burhanpurkar and the hospital.