COURT OF APPEAL FOR ONTARIO

CITATION: Hemmings v. Peng, 2024 ONCA 318

DATE: 20240430

DOCKET: C70752 & COA-22-CV-0325

Brown, Trotter and George JJ.A.

BETWEEN

Sophia Hemmings, by her Litigation Guardian, Rosalie Brown, Rosalie Brown personally, Samantha Camile Gayle and Moses Hemmings, minor by their Litigation Guardian, Rosalie Brown and Samantha Hemmings

Plaintiffs (Respondents)

and

Carol Yuen-Man Peng, Sharon Rose O’Brien, Nina Elizabeth Nalini Venkatarangam, Ritika Goel, Neil Thomas Jamensky*, Andres Bartolome Umoquit, Jennifer Lai-Yee Tsang, Lloyd Gregory Padmore*, Stephanie Sladden, Nora Djizmedjian, Youyi Jian and The Scarborough Hospital*

Defendants (Appellants*)

Cindy Clarke, Kirsten Crain and Daniel Girlando, for the appellant The Scarborough Hospital

Darryl Cruz, Dorothy Charach and Allison Spiegel, for the appellants Neil Thomas Jamensky and Lloyd Gregory Padmore

Duncan Embury, Daniela Pacheco, Amani Oakley, Neil Oakley, John J. Adair and Robert Stellick, for the respondents Sophia Hemmings, by her litigation guardian, Rosalie Brown, Rosalie Brown personally, Samantha Camile Gayle and Moses Hemmings, minors by their litigation guardian, Rosalie Brown and Samantha Hemmings

Heard: October 4, 2023

On appeal from the judgment of Justice Grant R. Dow of the Superior Court of Justice, dated May 3, 2022, with reasons reported at 2022 ONSC 2674.

TABLE OF CONTENTS

I. OVERVIEW.. 5

II. ISSUES ON APPEAL. 7

III. DR. PADMORE’S GROUNDS OF APPEAL REGARDING HIS BREACHES OF THE STANDARD OF CARE. 9

A. Evidence Regarding Dr. Padmore’s Treatment of Ms. Hemmings. 9

Overview……………………………………………………………………………9

Specific consultations. 10

B. Dr. Padmore’s Standard of Care Grounds of Appeal 14

Overview…... 14

The trial judge’s reasons. 16

Dr. Padmore’s submissions. 18

Analysis…….. 18

Conclusion………………………………………………………………………...25

IV. NURSE SAN JUAN’S BREACH OF THE STANDARD OF CARE. 26

Evidence regarding Nurse San Juan’s contact with Ms. Hemmings. 26

The trial judge’s finding on standard of care. 27

V. CAUSATION GROUNDS OF APPEAL. 29

A. Common Causation Ground of Appeal: The Trial Judge Erred by Conflating the Tests for Factual Causation and Legal Causation. 30

A.1 The issue stated. 30

A.2 General principles: Causation-in-fact and Legal causation. 30

Factual causation: The “but for” test 31

Legal causation. 32

A.3 Analysis of this ground of appeal 36

B. Factual causation grounds of appeal advanced by Dr. Padmore. 37

B.1 Factual causation ground No. 1: There was insufficient evidence to permit the trial judge to find that Ms. Hemmings would have chosen an abortion if Dr. Padmore had informed her of that option. 37

The trial judge’s reasons. 38

Analysis……. 39

B.2 Factual causation ground No. 2: Resting causation analysis on a breach of the standard of care that was not found. 42

The issue stated. 42

Analysis……. 43

C. Legal causation ground of appeal advanced by Dr. Padmore and by the Hospital in respect of Nurse San Juan. 44

The issues stated by Dr. Padmore. 44

Issues stated by the Hospital 46

The causation evidence before the trial judge. 48

The evidence of the participants. 48

The expert evidence. 51

Analysis……. 57

VI. CONCLUSION REGARDING DR. PADMORE’S APPEAL. 62

VII. CONCLUSION REGARDING HOSPITAL’S APPEAL FOR VICARIOUS LIABILITY 62

VIII. APPEAL OF THE HOSPITAL: DIRECT LIABILITY. 63

The issue stated. 63

The Resolution Agreement 63

The parties’ closing submissions at trial 64

The trial judge’s reasons. 67

Submissions on appeal 69

Analysis……. 70

IX. APPEAL OF DR. NEIL JAMENSKY. 71

A. The April 20, 2009 C-Section. 71

B. The Trial Judge’s Findings and Dr. Jamensky’s Grounds of Appeal 74

Standard of care grounds of appeal 75

Causation grounds of appeal 76

C. Analysis: Standard of Care Grounds of Appeal 76

C.1 First ground of appeal: The trial judge erred in finding that Dr. Jamensky was negligent in converting Ms. Hemmings to a general anesthetic without making reasonable efforts to maintain the regional anesthetic. 76

Positions of the parties. 76

Analysis……. 77

C.2 Second ground of appeal: The trial judge erred in failing to find that any error in Dr. Jamensky’s decision to convert to a general anesthetic was merely an error in judgment and did not amount to negligence. 89

C.3 Third ground of appeal: There was no expert evidence to support the trial judge’s finding that Dr. Jamensky’s intubation of Ms. Hemmings fell below the standard of care. 91

Positions of the parties. 91

Analysis……. 92

D. Analysis: Causation Grounds of Appeal 96

The issue stated. 96

D.1 First ground of appeal: The trial judge erred in finding that the cardiac arrest was the result of an anesthetic accident or complication. 98

Amniotic fluid embolism.. 98

Anesthetic accident or complication. 101

D.2 Second ground of appeal: The trial judge failed to perform any analysis of factual causation in respect of Dr. Jamensky’s breaches of the standard of care. (Inadequate counterfactual) 111

The positions of the parties. 111

Analysis……. 112

E. Conclusion. 116

X. DISPOSITION. 116

Brown J.A.:

I. OVERVIEW

[1] On April 20, 2009, the respondent, Sophia Hemmings, suffered a cardiac arrest on the operating table during a caesarean section at the Scarborough (General) Hospital (“the Hospital”). At the time, Ms. Hemmings was 29 years old. Ms. Hemmings suffered a severe brain injury. In this proceeding, the parties have agreed on the amount of her damages: $12 million. The action went to trial solely on the issues of liability.

[2] This lawsuit was brought by the respondents, Ms. Hemmings, through her litigation guardian, her mother, sister, daughter, and son. They allege that Ms. Hemmings’ injury was caused by the negligence of several of the treating health care practitioners.

[3] A few of the defendants were let out of the action before trial. In the result, the action went to trial against:

• Dr. Lloyd Padmore, the obstetrician who treated Ms. Hemmings during much of her pregnancy;

• Dr. Carol Peng, an obstetrician who cared for Ms. Hemmings following her admission to the Hospital on April 19, 2009;

• Dr. Sharon O’Brien, the obstetrician who cared for Ms. Hemmings on April 20, 2009, and who performed the C-section that evening;

• Dr. Neil Jamensky, the anesthesiologist during the C-section; and

• The Scarborough Hospital. The claim against the Hospital asserted both direct liability based on the hospital’s record-keeping procedures, and vicarious liability for the conduct of a nurse, Ms. Cecilia San Juan, who conducted a telephone consult with Ms. Hemmings on the evening of April 8, 2009, a few weeks before the delivery.

[4] Ms. Hemmings was admitted to the Hospital on April 19, 2009. She was a higher risk patient given her morbid obesity. Steps to induce delivery were started. Around mid-afternoon on April 20, as the induction attempts continued, a spinal (regional) anesthetic was put in place. By early evening, Dr. O’Brien decided to perform a C-section.

[5] The C-section began under the regional anesthetic. After the initial incision, Ms. Hemmings began to move around on the operating table. Unable to calm Ms. Hemmings, Dr. Jamensky decided to convert to a general anesthetic. During the conversion, which required intubation, Dr. Jamensky took steps to deal with several problems that arose: a difficult airway, as well as concerning end-tidal carbon dioxide levels and airway pressures.

[6] The C-section continued under general anesthetic for about eight to eleven minutes until the baby, the respondent Moses Hemmings, was delivered. Shortly after delivery, Ms. Hemmings had a cardiac arrest that required her resuscitation. As a result of the arrest, Ms. Hemmings suffered a serious, permanent brain injury.

[7] As mentioned, the trial dealt only with the issues of liability. The trial judge dismissed the action against two of the obstetricians, Drs. O’Brien and Peng. The trial judge granted judgment against the appellants, Dr. Padmore, Dr. Jamensky, and the Hospital for an equal share of the respondents’ agreed damages of $12 million.

[8] The appellant physicians and Hospital appeal. They seek an order setting aside the Judgment and dismissing the action against them.

[9] For the reasons set out below, I would allow the appeals of Dr. Padmore and the Hospital but dismiss the appeal of Dr. Jamensky.

II. ISSUES ON APPEAL

[10] The appellants advance numerous grounds of appeal, which I propose to examine in the following order:

• I will start by examining the grounds of appeal concerning the findings of liability the trial judge made about the pre-delivery care Ms. Hemmings received from Dr. Padmore and Nurse San Juan. While the Hospital does not appeal the finding that Nurse San Juan breached the standard of care when she fielded Ms. Hemming’s phone call on April 8, 2009, Dr. Padmore appeals the trial judge’s findings that he breached the standard of care when he acted as Ms. Hemmings primary obstetrician before her admission to the Hospital on April 19, 2009;

• I will then consider the submissions made by Dr. Padmore and the Hospital – in respect of Nurse San Juan – that the trial judge erred in his findings of factual and legal causation regarding their pre-delivery acts and omissions. I will commence that analysis by considering a common ground of appeal asserted by Dr. Padmore and Dr. Jamensky that the trial judge conflated the concepts of factual and legal causation. I will then consider his application of those principles to the breaches of the standard of care he found in respect of Dr. Padmore and Nurse San Juan;

• Next, I propose to consider the Hospital’s submission that the trial judge erred in finding direct liability against it;

• Finally, I will examine the grounds of appeal advanced by Dr. Jamensky regarding his conduct as the anesthetist during Ms. Hemmings’ C-section.

III. DR. PADMORE’S GROUNDS OF APPEAL REGARDING HIS BREACHES OF THE STANDARD OF CARE

A. Evidence Regarding Dr. Padmore’s Treatment of Ms. Hemmings

Overview

[11] Ms. Hemmings’ injuries prevented her from giving evidence at any stage during the proceeding. As a result, the only evidence about her dealings with Dr. Padmore came from his evidence on examination for discovery that was read‑in at trial, as well as his trial evidence. At trial, Dr. Padmore admitted his memory was poor. Indeed, his trial evidence demonstrated that he had no recollection of the events of 2008 and 2009. Instead, he relied on his contemporaneous notes, as well his description of his usual practice at that time.

[12] Dr. Padmore provided obstetrical care to Ms. Hemmings from August 1, 2008 until February 14, 2009, when he became ill and was hospitalized for two months. Although Dr. Padmore arranged for several colleagues to see his patients during his absence, as matters transpired Ms. Hemmings was not seen during the first two weeks of April 2009, a time when she should have been seen weekly.

[13] Dr. Padmore returned to work on April 16, 2009. He saw Ms. Hemmings once more on April 18, 2009. At that point, Ms. Hemmings was significantly past the date Dr. Padmore thought appropriate for her delivery. He immediately referred her to the Hospital for an induced delivery. Ultimately, Moses was delivered by C‑section on April 20.

[14] Dr. Padmore was not involved in the care of Ms. Hemmings during her time in the Hospital.

Specific consultations

[15] Ms. Hemmings attended Dr. Padmore’s office on August 1, 2008 on a referral from her family doctor for “family planning”. Dr. Padmore admitted that, during that visit, he learned Ms. Hemmings wanted birth control and did not want to become pregnant. He conducted several routine tests, including some blood work, ultrasounds, and an ECG. Dr. Padmore considered whether to prescribe birth control but wanted to await the results of his investigations. Dr. Padmore did not order a pregnancy test (a βHCG test) on that visit or on two subsequent visits in late August and early September.

[16] During a consult near the end of September 2008, Ms. Hemmings reported a missed period and nocturia (both signs of pregnancy). Dr. Padmore thereupon ordered a βHCG test. On October 1, 2008, the results confirmed that Ms. Hemmings was pregnant. On October 4, 2008, Dr. Padmore advised Ms. Hemmings that she was pregnant and performed an ultrasound. The ultrasound estimated that Ms. Hemmings was 12 weeks pregnant, confirming that she had conceived prior to her first visit on August 1.

[17] According to Dr. Padmore, Ms. Hemmings did not react to the news of her pregnancy by saying that she did not want the baby.

[18] Dr. Padmore testified that his usual practice in 2008 was not to raise the topic of abortion with a patient, as he did not want to push a patient into doing something she did not want. However, if a patient raised the topic, it meant she was at least interested in discussing it and Dr. Padmore would discuss the option of an abortion.

[19] There was no evidence that Ms. Hemmings ever raised the topic of abortion with Dr. Padmore. The trial judge made no finding that she did. Dr. Padmore testified that, if Ms. Hemmings had introduced the topic of termination, he would have documented it; his patient chart for Ms. Hemmings did not contain any such notation.

[20] At the time of her pregnancy, Ms. Hemmings was morbidly obese, with a body mass index of approximately 40. Dr. Padmore testified that he was comfortable caring for obese patients. Dr. Padmore acknowledged that morbid obesity in pregnancy was associated with a multitude of increased risks to both the mother and child, including the risks of a more difficult labour, the need for a C‑section, and cardiac arrest. As the trial judge found, “Dr. Padmore admitted not discussing these risks with Sophia Hemmings … [and] also decided to handle the pregnancy without discussing the option of referral to a level 3 hospital.” As matters transpired, Dr. Padmore referred Ms. Hemmings to the Hospital for delivery; the Hospital is a level 2 hospital.

[21] As noted by the trial judge, the Ontario Medical Association had developed two documents on which attending physicians were to record their treatment of a pregnant patient: an Antenatal Record 1 and Antenatal Record 2. The records acted as a form of continuing record of a patient’s care during pregnancy, to which any attending physician could refer; the records followed a patient to the hospital.

[22] While Dr. Padmore created such records for Ms. Hemmings and made notations of each visit, the only identified risk factor he recorded on the Antenatal Record 2 was to manage weight and the only entry he made in the “Plan of Management” section referred to a test concerning vaginal bacteria. Dr. Padmore understood the “Plan of Management” section to refer to the plan for delivery. Although he testified that he intended to induce Ms. Hemmings’ delivery no later than week 38 of her pregnancy, he made no notation of that plan on the Antenatal Record 2.

[23] Ms. Hemmings was taken to the Hospital on January 31, 2009, with abdominal pain. She was discharged with advice to arrange an appointment with Dr. Padmore.

[24] Several days later, on February 3, 2009, Ms. Hemmings was unable to stand and was taken by ambulance to St. Michael’s Hospital, where she remained for several days. She was found to have abnormally low potassium levels in her blood and was diagnosed with a renal disorder.

[25] Dr. Padmore then saw Ms. Hemmings on February 14, 2009. He became seriously ill shortly thereafter and was away from his practice from February 14 until April 16, 2009. As mentioned, he arranged for other physicians to see his patients during his absence. Ms. Hemmings saw other physicians on March 7, 14, 21 and 28, 2009. A March 21 ultrasound indicated that the fetus size was at or greater than 90% of those at that stage of pregnancy, a condition called macrosomia. However, Ms. Hemmings did not see an obstetrician during the first two weeks of April, a time when she should have been seen weekly.

[26] On April 8, 2009, Ms. Hemmings called the Hospital’s Labour and Delivery Unit and spoke to Nurse San Juan. Ms. Hemmings complained about frequent vomiting. Later in these reasons I shall deal at greater length with that telephone call. Suffice it to say, in the result Ms. Hemmings did not attend the hospital that evening for assessment.

[27] Dr. Padmore saw Ms. Hemmings on April 18, 2009, after returning from his medical leave. An ultrasound indicated the fetus was between 39 and 42 weeks of age – past the date when Dr. Padmore had planned to induce delivery. It also estimated the fetal weight at 5,206 grams and noted “increased” amniotic fluid, both over the 90th percentile. Dr. Padmore immediately sent Ms. Hemmings to the Hospital with a request for an induced delivery.

[28] Ms. Hemmings went to the Hospital where, initially, she was treated on an out-patient basis. The on-duty obstetrician, Dr. Wilcock, applied prostaglandin, a substance that softens the cervix as part of inducing labour.

[29] Ms. Hemmings returned to the Hospital the next day, April 19, 2009. The on‑duty obstetrician, Dr. Peng, decided to induce labour. However, by late afternoon on April 20, the induction had not progressed and the supervising obstetrician, Dr. O’Brien, decided to perform an urgent C-section. Dr. Jamensky was the anesthesiologist. I will deal with the evidence of that operation later in these reasons.

B. Dr. Padmore’s Standard of Care Grounds of Appeal

Overview

[30] The trial judge articulated the proper standard of care against which to assess the acts and omissions of Dr. Padmore, an obstetrician: his conduct must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence, and skill expected of professionals in Canada in that field – that is the degree of skill of an average specialist in the field: ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, at para. 33.

[31] The trial judge found that Dr. Padmore breached the applicable standard of care in three respects:

(i) Dr. Padmore failed to order a standard pregnancy test – the beta HCG (βHCG) test – as part of his examinations of Ms. Hemmings on August 1, August 26, and September 2, 2008. When Dr. Padmore did order such a test on September 30, 2008, it confirmed Ms. Hemmings was pregnant;

(ii) During the initial consultations, Dr. Padmore failed to raise with Ms. Hemmings the option of terminating her pregnancy; and

(iii) Dr. Padmore failed to document the multiple risk factors associated with Ms. Hemmings’ pregnancy or a plan of management in her clinical records – in particular her Antenatal Records 1 and 2.

[32] In his submissions, Dr. Padmore does not argue the trial judge erred in finding he breached the standard of care by failing to order a pregnancy test prior to September 30, 2008. Accordingly, I will treat that finding as not subject to challenge on appeal.

[33] As well, Dr. Padmore does not submit the trial judge erred in concluding he breached the standard of care by failing to document the multiple risk factors associated with Ms. Hemmings’ pregnancy or a plan of management. However, Dr. Padmore does contend the trial judge conducted his causation analysis using a breach he never found: namely, that Dr. Padmore failed to advise Ms. Hemmings about the multiple risks associated with her pregnancy. I will deal with that submission in the causation section of these reasons. For purposes of considering the grounds of appeal concerning his breaches of the standard of care, I will proceed on the basis that Dr. Padmore does not challenge the trial judge’s finding of his failure to document risks.

[34] That leaves only one ground of appeal concerning Dr. Padmore’s breach of the standard care: his failure to raise the option of terminating her pregnancy with Ms. Hemmings during her initial consultations. I will examine that ground of appeal in the balance of this section.

The trial judge’s reasons

[35] In finding that Dr. Padmore breached the standard of care by failing to discuss the option of abortion with Ms. Hemmings, the trial judge reasoned as follows, at paras. 38-40:

Regarding the second issue of whether Dr. Padmore’s failure to raise termination of the pregnancy pits the very purpose of Sophia Hemmings visit to the Woburn Clinic seeking contraception following unprotected sex because she did not want to get pregnant with Dr. Padmore’s unwavering position (and that of the defendant physicians obstetrical experts) that the topic of abortion must be raised by the patient (Exhibit 40, Tab 26, Q. 645-670). I have concluded Dr. Padmore was negligent in this regard. Dr. Oppenheimer acknowledged in his cross-examination that the standard of care should anticipate a range of knowledge and understanding in patients and the need to tailor conversations with the patient based on the patient’s education, employment status and knowledge (trial transcript pages 5337-5338). I do so on the basis that as of 2009, the existence of the methods available to terminate the pregnancy varied and gave importance to the timeliness and discovery of whether the patient was pregnant and whether the pregnancy was unplanned or unwanted.

Dr. Padmore ought to have been aware of and followed the Canadian Medical Association (CMA) policy issued in 1998 (Exhibit 46) that abortion was a medical decision to be confidential between the patient and physician. Having sought contraception from Dr. Padmore following unprotected sex and not wanting to get pregnant, Sophia Hemmings was to “be provided with the option of full and immediate counselling service in the event of unwanted pregnancy” (at page 1, bullet point 4).

Further, I agree with and accept the evidence of Dr. Braithwaite during his cross-examination by counsel for Dr. Padmore that relied on the November, 2006 Society of Obstetricians and Gynecologist of Canada (SOGC) Clinical Practice Guideline entitled “Induced Abortion Guidelines” (Exhibit 5, Trial Transcript at pages 646-647). That is, the physician has an obligation to discuss options with a patient that comes to him or her for contraception because she did not want to get pregnant and was or becomes pregnant. Had Dr. Padmore given evidence which was accepted or preferably made a note that she wished to continue with the pregnancy (or adoption) and this was rejected by Sophia Hemmings, the standard of care would have been met. I also rely on the evidence regarding the significant percentage of women that choose to terminate an unintended pregnancy (as referenced in Exhibit 70). I find Dr. Padmore’s decision lacked the prudence or diligence of an obstetrician in these circumstances. Dr. Padmore’s failure to discuss the option of termination of the pregnancy with Sophia Hemmings when she attended at his office with concerns about having had unprotected sex and wanting contraception was a clear breach of the SOGC guidelines and falls below the standard of care of an obstetrician in these circumstances. Dr. Padmore was negligent in this regard.

Dr. Padmore’s submissions

[36] As I understand his submissions, Dr. Padmore contends the trial judge’s finding of a breach of the standard of care was based on two misunderstandings or misapprehensions of the evidence:

(i) First, the trial judge misinterpreted certain guidelines issued by the Canadian Medical Association (“CMA”) and the Society of Obstetricians and Gynaecologists (“SOGC”); and

(ii) The trial judge improperly relied on a 2015 article, which was marked as Exhibit 70,[^1] regarding the incidence of abortions in unintended pregnancies to inform his determination of the standard of care applicable in 2008.

Analysis

[37] In his reasons, the trial judge relied on the 1988 CMA policy on Induced Abortion, as well as the 2006 SOGC Clinical Practice Guidelines on Induced Abortion. Dr. Padmore contends that the trial judge erred in so doing, arguing that the policy and guideline only applied to cases where the patient had approached a physician seeking an abortion (an “unwanted pregnancy”), whereas Ms. Hemmings had consulted Dr. Padmore to seek family planning but later discovered that she was pregnant (an “unplanned pregnancy”).

[38] The relevant part of the 1988 CMA policy stated:

1988 CMA Induced Abortion Policy:

The following are the CMA's positions in other matters related to induced abortion.

• The patient should be provided with the option of full and immediate counselling services in the event of unwanted pregnancy.

[39] The 2006 SOGC Guidelines contained a section on “Counselling” that stated:

COUNSELLING

Every woman seeking abortion should receive supportive and compassionate counseling on all the options available, including continuing the pregnancy and having the child adopted or seeking assistance should she wish to parent. Counseling should take place early enough to avoid any delays in the event the woman chooses to terminate the pregnancy. The counsellor should be free of personal bias and responsive to the woman's circumstances.

Contraceptive counseling, including risk behavior and risk reduction strategies (including those to prevent sexually transmitted infections), before and after the termination is imperative to reduce the risk of recurrent unintended pregnancy. The advantages and disadvantages of available contraceptive methods that fit the individual woman's needs, as well as when and how the method of choice will be initiated, should be explained. The physician must assure the patient of the availability post-abortion counseling.

[40] Dr. Padmore also points to a 2007 letter to the editor of the CMA Journal that set out the CMA’s position on how a doctor who would not provide abortions should respond to a patient’s request for one. Dr. Padmore argues that the implication of this letter is that, in 2008, a physician was not obligated to raise the issue of abortion with a patient who did not raise the topic herself. The trial judge’s finding of a breach of the standard of care, Dr. Padmore submits, runs counter to the CMA’s position at that time.

[41] I am not persuaded by Dr. Padmore’s submissions. As the respondents point out – and is apparent from the reasons – the trial judge did not rest his finding of breach of the standard of care solely on the literature cited but also relied on the evidence of obstetrical experts and their opinions about the meaning and practical application of the policy and guideline. The respondents’ obstetrical experts – Dr. Nicholas Braithwaite and Dr. Jon Barrett – testified that the standard of care required Dr. Padmore to initiate a non-judgmental and patient-focused discussion around the options of terminating the pregnancy and the risks of not doing so. In reaching that conclusion, both relied on the fact that Ms. Hemmings had come to Dr. Padmore for contraception, did not want to become pregnant, and the pregnancy carried significant risks.

[42] Dr. Braithwaite directly addressed this issue in his cross-examination, including whether there was any practical, clinical difference in the circumstances between an unplanned and unwanted pregnancy:

Q. Dr. Braithwaite, you rely on the guidelines for the proposition that counseling on the options involving pregnancy should take place early enough to avoid delays in the event the woman chooses to terminate the pregnancy; is that right?

A. Yes, that would be correct, ma'am.

Q. And so this comes up on page 1015 of the guidelines, which is the second page under "Counseling". When we read from the beginning of that section it says:

"Every woman seeking abortion should receive supportive and compassionate counseling on all of the options available, including continuing the pregnancy and having the child adopted, or seeking assistance, should she would wish to parent."

That's what it says?

A. Yes, ma'am.

Q. So according to this document, this type of supportive counseling is essential to provide to women who are seeking abortion; you agree?

A. I see very little difference, ma'am. We have a woman who has come in for contraceptive advice, and she finds herself pregnant. The obligation, in my view, is that the physician acknowledged the fact that she's pregnant. Acknowledged the fact that you understand she did not wish to be pregnant, and you have a discussion as to her options.

Q. Dr. Braithwaite, you agree that this section on counseling, it starts with the proposition that: "Every woman seeking abortion should receive supportive and compassionate counseling..."; you agree?

A. Yes, I do, ma'am. Everyone who is in this position needs compassionate and supportive counseling.

Q. And nowhere in this guideline does it say that a woman who has not sought an abortion requires to be counselled about terminating the pregnancy?

A. I disagree with that, ma'am. Again, we're talking about a woman who has indicated she did not wish to be pregnant. I think if I do not acknowledge that fact, when I've just told her that she is pregnant, it's inappropriate. She needs to know the options, she needs to know the relative merits of those options, so that she's in a position to make the decision. And all I was saying here is that, that discussion has to occur as soon as possible, and it has to be as fulsome as possible, supportive, nonjudgmental, as per this particular clinical practice guideline.

Q. Dr. Braithwaite, you agree with me, that the proposition you were relying on in this clinical practice guideline, it starts with the premise that the woman is seeking an abortion; you agree?

A. Yeah, I agree. I do not see the substantive difference between the two clinical scenarios.

Q. You agree with me, I'm sure, Dr. Braithwaite, that there's a difference between unwanted pregnancy and unplanned pregnancy?

A. One, the unplanned pregnancy is exactly that. Unwanted is a decision that is made after you have had all the counseling of your options and alternatives.

Q. So you agree there is a difference between unwanted pregnancy and unplanned pregnancy?

A. I'm just thinking about the specific question, and the semantics involved. An unplanned pregnancy and an unwanted pregnancy, I don't know, some people would consider them synonymous. Some people would obviously argue there are differences.[^2] [Emphasis added].

[43] One of the appellants’ obstetrical experts, Dr. Lawrence Oppenheimer, gave a contrary opinion. But it is apparent from the trial judge’s reasons that he preferred the evidence of Dr. Braithwaite to that of Dr. Oppenheimer. The trial judge stated, at paras. 49-50:

In reaching these conclusions of Dr. Padmore failing to act prudently or diligently in the circumstances, I have reviewed and considered the obstetrical expert evidence of Dr. Braithwaite and Dr. Oppenheimer. I prefer the opinions of Dr. Braithwaite and his review and analysis of the circumstances of the pregnancy of Sophia Hemmings. Dr. Oppenheimer’s willingness to accept Dr. Padmore’s lack of documentation of what should have been noted undermine his opinion of Dr. Padmore meeting the requisite standard of care. Further, as noted in his cross-examination, Dr. Oppenheimer made assumptions about information without balancing other information available to him which ought to have been considered. As an example, he relied on the existence of the identity of Sophia Hemmings’ partner in the Antenatal Record 1 form as evidence of a stable relationship without considering Sophia Hemmings identification of her sister as next of kin and emergency contact in multiple other medical records.

Further, as part of reviewing the SOGC Clinical Practice Guidelines – Canadian Contraception Consensus as of February, 2004 … Dr. Oppenheimer agreed Dr. Padmore’s evidence was at times, paternalistic … Dr. Padmore’s communication did not meet “being proactive and counselling” … for a patient seeking contraception after having unprotected sex because she did not want to get pregnant. These conclusions are based on the facts known at the time or what should have been known or recorded. It is not a judgment reached by the result or what occurred … [Citations omitted]

[44] It is up to trial judges to determine to what extent, if it all, they find each expert credible and their evidence reliable: R v. Doodnaught, 2017 ONCA 781, 358 C.C.C. (3d) 250, at para. 129. The weight to be given to an expert’s opinion is within the trial judge’s discretion and owed deference on appeal on the same basis as other findings of fact: R. v. S.A.B., 2003 SCC 60, [2003] 2 S.C.R. 678, at paras. 62-63; Palichuk v. Palichuk, 2023 ONCA 116, at para. 55; Slocan Forest Products Ltd. v. Trapper Enterprises Ltd., 2011 BCCA 351, at para. 16. On this issue, I am satisfied that the trial judge did not misapprehend the evidence; it could reasonably support the conclusion reached by the trial judge: Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351 at pp. 358-360. I therefore see no basis for appellate intervention.

[45] Dr. Padmore also submits the trial judge improperly relied on a 2015 article, marked as Exhibit 70,[^1] regarding the incidence of abortions in unintended pregnancies to inform his determination of the standard of care applicable in 2008. The trial judge referenced the article in support of his reliance “on the evidence regarding the significant percentage of women that choose to terminate an unintended pregnancy”.

[46] I see no reversible error by the trial judge in so doing. The article was relied upon by Dr. Padmore’s obstetrical expert, Dr. Oppenheimer, in support of his opinion that Dr. Padmore had not breached the standard of care. Dr. Oppenheimer used the 2015 article, together with another, to proffer the opinion that: "Over 50% of pregnancies were unplanned in Canada in 2006 and only one-quarter of these were aborted".[^3] Table 2 in the article used 2005 Statistics Canada data, not 2015 data. Given that the appellant’s expert relied on the 2015 article, the relevant data in the article were generated in 2005, the expert was cross-examined on the article without objection, and the article was marked as an exhibit without objection, I see no basis for the appellant’s position on appeal that the trial judge somehow erred in referring to the article.

Conclusion

[47] For the reasons set out above, I am not persuaded that the trial judge made a reversible error by concluding that Dr. Padmore breached the standard of care by failing to raise with Ms. Hemmings during her initial consultations the option of terminating her pregnancy.

IV. NURSE SAN JUAN’S BREACH OF THE STANDARD OF CARE

Evidence regarding Nurse San Juan’s contact with Ms. Hemmings

[48] Nurse San Juan was employed by the Hospital.

[49] On April 8, 2009, at around 8:30 p.m., Ms. Hemmings phoned the Hospital’s Labour and Delivery Unit. Nurse San Juan took the call. At the time, the Hospital required a nurse to complete a Labour and Birth Nursing Telephone Advice form when taking such calls. Nurse San Juan partially completed the form.

[50] Nurse San Juan testified that she had no independent recollection of her call with Ms. Hemmings. As a result, her evidence was based on her usual practice and her notations on the form.

[51] Nurse San Juan noted on the form that the reason for Ms. Hemmings’ call was that she had vomited three times that day. Nurse San Juan also noted that Ms. Hemmings did not complain about fever or diarrhea. In the section titled “Fetal Activity”, Nurse San Juan wrote down: “moving well”.

[52] The top of the form contained the following line:

“Antenatal I & II reviewed: [ ] Yes [ ] No. If No, instruct patient to go to their MD or come to hospital for assessment.”

Nurse San Juan did not complete that line for her call with Ms. Hemmings.

[53] In the result, following the call, Ms. Hemmings did not go to the Hospital for assessment. Dr. Padmore sent her to the Hospital ten days later, on April 18, 2009, to be induced.

The trial judge’s finding on standard of care

[54] As the trial judge noted, at para. 97 of his reasons, “[c]ounsel for the Scarborough Hospital sensibly acknowledged Ms. San Juan failed to complete the Labour and Birth Nursing Telephone Advice form (Exhibit 1, Volume 5, Tab 1a, Page 1-01543a) as required.” That failure, together with the absence of any independent recollection by Nurse San Juan of her conversation with Ms. Hemmings, led the trial judge to find that Nurse San Juan had breached the standard of care. As he stated, at paras. 98-100:

It is clear that the Scarborough Hospital had considered and addressed how to make its resources available and deal with telephone calls from pregnant women who were scheduled to give birth in their Labour and Delivery Department. After identifying the individual and the date of the call on the printed Labour and Birth Nursing Telephone Advice form, the first (and I infer from that position) most important duty of the nurse taking the call was to review the Antenatal Record 1 and Antenatal Record 2. Nurse San Juan failed to complete this part of the form. The importance of doing so is emphasized by the direction printed on the form that if it has not been reviewed then the nurse is to “instruct the patient to go to their MD or come to the hospital for assessment”. This is reinforced by inclusion in the versions of the Scarborough Hospital policy and procedure (Exhibit 94) and Telephone Advice Practice Protocol (Exhibit 95) of that requirement. It is further reinforced by Ms. San Juan’s admission of not being aware of this policy and protocol. This conduct did not meet the College of Nurses’ standards for documentation of patient contact (Exhibits 85 and 86).

Indeed, in the absence of any memory of the call, Ms. San Juan relied on her usual practice which did not include any awareness of these requirements. I agree with the plaintiffs’ submissions Ms. San Juan, whose actions the Scarborough Hospital is vicariously liable, had a duty to review the Antenatal Record 1 and 2 and failed to do so. The entirety of this conduct by both the Scarborough Hospital and Ms San Juan falls below the standard of care. It was not prudent or diligent in these circumstances.

The Scarborough Hospital attempted to avoid this finding of negligence based on Ms. San Juan’s normal practice of conducting a “focused” assessment. To that end, it was somehow sufficient and met the standard of care to confirm to that if the fetus was moving well and there was no fever or diarrhea as part of having vomited three times that day, no further action was required aside from monitoring of symptoms and either calling her doctor or calling back in an hour if things did not improve. I disagree. This contradicts the Scarborough Hospital’s own direction as set out in its form.

[55] The Hospital does not appeal the finding that Nurse San Juan breached the standard of care. Instead, the Hospital appeals the trial judge’s conclusion that Nurse San Juan’s breach of the standard of care caused the injuries Ms. Hemmings suffered from her cardiac arrest.

[56] I shall now consider the causation grounds of appeal advanced by Dr. Padmore, as well as those by the Hospital in respect of Nurse San Juan’s breach.

V. CAUSATION GROUNDS OF APPEAL

[57] The parties agreed, and the trial judge accepted, that the hypoxia, hypotension, and cardiac arrest experienced by Ms. Hemmings during the C‑section caused her to suffer an anoxic brain injury.[^4] The cause of those conditions was a disputed issue at trial, which I will examine in the context of the grounds of appeal asserted by Dr. Jamensky.

[58] My analysis in this section will proceed as follows:

• I shall first consider a common ground of appeal advanced by Drs. Padmore and Jamensky that, in his reasons, the trial judge erred in law by conflating the tests for factual and legal causation;

• I shall then examine two factual causation grounds of appeal raised solely by Dr. Padmore;

• I will then consider the legal causation grounds of appeal argued by Dr. Padmore and Nurse San Juan; and

• Finally, in a later section of these reasons, I will examine the other causation-related grounds of appeal raised by Dr. Jamensky.

A. Common Causation Ground of Appeal: The Trial Judge Erred by Conflating the Tests for Factual Causation and Legal Causation

A.1 The issue stated

[59] As I understand their submission, Drs. Padmore and Jamensky submit the trial judge erred by relaxing the “but for” test for factual causation to merely require that the plaintiff demonstrate a reasonable person “would not brush aside as far-fetched” the existence of a causal link. The appellants contend this error resulted from the trial judge conflating the elements of factual causation with those for legal causation.

A.2 General principles: Causation-in-fact and Legal causation

[60] To succeed in a negligence action a plaintiff must demonstrate that (i) the defendant owed her a duty of care, (ii) the defendant’s behaviour breached the standard of care, (iii) the plaintiff sustained damage, and (iv) the damage was caused in fact and law by the defendant’s breach: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 SCR 114, at para. 3. The causation analysis involves two distinct inquiries: whether the defendant’s breach was the factual cause of the plaintiff’s loss and, in addition, the legal cause of the loss: Nelson (City) v. Marchi, 2021 SCC 41, 463 D.L.R. (4th) 1, at paras. 96-97.

Factual causation: The “but for” test

[61] In Canada, the general test for factual causation is the “but for” test. Under it, a plaintiff must show, on a balance of probabilities, that “but for” the defendant’s negligent act or omission, the injury would not have occurred: that is, the defendant’s negligence was necessary to bring about the injury: Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181, at para. 8.; Erika Chamberlain and Stephen G.A. Pitel, eds., Fridman’s The Law of Torts in Canada, 4th ed. (Toronto: Thomson Reuters, 2020), at p. 505.

[62] Application of the “but for” test involves a factual inquiry that does not require scientific evidence of the precise contribution the defendant’s negligence made to the injury but proceeds using a robust, common-sense examination of the evidence: Clements, at para. 9. A trial judge must always remember that employing a robust and common-sense approach does not mean the court is applying a discrete test for causation, rather it involves approaching the evidence relevant to “but for” causation in a certain manner. As this court stressed in Aristorenas v. Comcare Health Services (2006), 2006 CanLII 33850 (ON CA), 83 O.R. (3d) 282 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 487, at para. 54:

[A] robust and pragmatic approach must be applied to evidence; it is not a substitute for evidence to show that the defendant’s negligent conduct caused the injury.

[63] As explained by the authors of Fridman’s The Law of Torts in Canada, at p. 506, a “but for” cause-in-fact inquiry involves a counterfactual exercise where one:

[H]old[s] fixed relevant background facts, together with the fact that the plaintiff suffered the injury complained of, and then hypothetically subtract the defendant’s allegedly negligent conduct from that factual matrix. If, in the counterfactual situation, the plaintiff would still have suffered the same injury, then the defendant is not a “but for” cause of the plaintiff’s injury: since the injury would have happened anyway, the defendant's conduct made no difference. If, on the other hand, the plaintiff's injury would not have occurred in the absence of the defendant’s conduct, then the defendant is said to be a “but for” cause of the plaintiff’s injury. The “but for” test therefore establishes a necessary connection between the defendant’s conduct and the plaintiff’s injury. It shows, in other words, that what the defendant did made a difference.

[64] A plaintiff need not establish the defendant’s negligence was the sole cause of her injury; it is sufficient to prove, on a balance of probabilities, that the defendant’s carelessness was part of the cause of her loss: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, at para. 17.

[65] Although the law recognizes limited, defined exceptions to the “but for” test – applying a “material contribution to risk” test in some circumstances – in the present case the parties agree that the “but for” test governs the factual causation analysis: Fridman, at p. 510-23; Athey, at para. 15.

Legal causation

[66] In addition to showing the defendant’s conduct was a cause-in-fact of her injury, to establish the defendant’s liability a plaintiff must also prove the defendant was a legal cause of her injury: Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 20. The jurisprudence calls this requirement by various names: such as “proximate cause”; not too “remote”; and “cause-in-law”. Whichever term is used, the basic inquiry remains the same: were the injuries suffered by the plaintiff linked in the right way to the carelessness of the defendant?[^5] Or, as put in Mustapha, at para. 12: “whether ‘the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable.’”

[67] In general terms, foreseeability lies at the heart of this inquiry: “it is the foresight of the reasonable man which alone can determine responsibility”: Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] A.C. 388 (P.C.) (“The Wagon Mound No. 1”), at p. 424. Mere possibility that the harm would occur is not sufficient: “possibility alone does not provide a meaningful standard for the application of reasonable foreseeability”: Mustapha, at para. 13. Instead, in Mustapha, the Supreme Court stated the degree of probability or likelihood that would satisfy the reasonable foreseeability requirement is a “real risk”, that is “one which would occur to the mind of a reasonable man in the position of the defendan[t] . . . and which he would not brush aside as far-fetched”: Mustapha, at para. 13, quoting Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617 (P.C.) (“The Wagon Mound No. 2”), at p. 643.

[68] A few additional points should be made about the practical application of the principle of legal causation:

• Forseeability is assessed in the circumstances of the particular defendant: Brenenstuhl v. Caldwell, 2020 ABQB 315, at para. 94. As summarized in Mustapha, at para. 13, whether the risk of harm satisfies that degree of probability turns on whether the risk is “one which would occur to the mind of a reasonable man in the position of the defendan[t] . . . and which he would not brush aside as far-fetched.” [Emphasis added].

• What must be foreseen is the type of harm suffered and not the particular manner in which that harm occurred[^6] or the “precise concatenation of events”: R. v. Côté et al., 1974 CanLII 31 (SCC), [1976] 1 S.C.R. 595, at p. 604. The harm “suffered must be of a kind, type or class that was reasonably foreseeable as a result of the defendant's negligence”: Frazer v. Haukioja, 2010 ONCA 249, 101 O.R. (3d) 528, at para. 51. As was explained in Abbott and Kleysen’s Cartage Co. Ltd. v. Kasza and Ace Construction Company Limited, 1974 CanLII 296 (AB SCTD), [1975] 3 W.W.R. 163 (Alta. S.C.), at p. 172, rev’d 1976 ALTASCAD 80, [1976] 4 W.W.R. 20 (Alta. C.A.):

[T]he manner in which the damage did occur must be foreseeable in the sense that, although the precise manner in which it occurred was not foreseeable, nevertheless the kind of damage which did occur was foreseeable and the precise manner in which the damage occurred was a variant of the foreseeable or within the risk created by the negligence or not fantastic or highly improbable.

• In judging whether a personal injury is reasonably foreseeable, the legal causation analysis looks at a person of “ordinary fortitude”, that is it looks at what kind of injury a person of ordinary fortitude would suffer: Mustapha, at paras. 14-16;

• As to the effect of a subsequent event following that of the original tortfeasor, Gerald B. Robertson and Ellen I. Picard, in Legal Liability of Doctors and Hospitals in Canada, 5th ed. (Toronto: Thomson Reuters, 2017), state, at p. 363, that “[i]f a doctor’s negligence results in the patient requiring further treatment, and this additional treatment causes injury to the patient, the doctor will be liable for the injury if it is a reasonably foreseeable consequence of the negligence”. Others have made this point in slightly different ways:

• In Jones v. Shafer, 1948 CanLII 32 (SCC), [1948] S.C.R. 166, the Supreme Court of Canada stated at pp. 170-71: “[T]he intervening conscious act of a third party will break the line of causation and relieve the party who may be otherwise negligent of liability, unless to a reasonable man in the same circumstances that conscious act would have been foreseeable”;

• The authors of Fridman write, at p. 541, that “[I]f it was likely that something of the sort would or might happen as a result of what the defendant did to the plaintiff then the subsequent cause remains connected to the original negligence”; and

• The Manitoba Court of Appeal in Powell v. Guttman (1978), 1978 CanLII 1933 (MB CA), 89 D.L.R. (3d) 180 (Man. C.A.), stated at p. 192:

Where a tortfeasor creates or materially contributes to a significant risk of injury occurring and injury does occur which is squarely within the risk thus created or materially increased, then unless the risk is spent, the tortfeasor is liable for injury which follows from the risk, even though there are other subsequent causes which also cause or materially contribute to that injury.

A.3 Analysis of this ground of appeal

[69] The appellant physicians acknowledge that the trial judge correctly stated the applicable tests for factual and legal causation set out in Clements and Mustapha. They contend, however, that the trial judge erroneously lessened the plaintiffs’ burden of proof to establish factual “but for” causation on the balance of probabilities. I am not persuaded by this submission.

[70] While the trial judge did not use the term “legal causation” in his reasons, he used other language to express his legal causation analysis: in the case of Dr. Padmore, whether cardiac arrest from an anesthetic complication was “reasonably foreseeable”[^7]; in the case of Dr. O’Brien, whether she could have “anticipated” that Dr. Jamensky’s efforts would result in an anesthetic complication and cardiac arrest.[^8] While a crisper differentiation in the reasons between factual and legal causation certainly would have been helpful, the trial judge recognized the two concepts as distinct and properly identified their main elements. I am not persuaded that, in stating the applicable law, the trial judge conflated the two tests. Whether the trial judge properly applied the distinct concepts is a separate issue. I will consider that issue in the sections that follow.

[71] Accordingly, I would not give effect to this ground of appeal.

B. Factual causation grounds of appeal advanced by Dr. Padmore

[72] Dr. Padmore advances three additional grounds of appeal regarding the trial judge’s causation findings. Two relate to the trial judge’s findings regarding factual (“but for”) causation; the other concerns his finding concerning legal causation.

B.1 Factual causation ground No. 1: There was insufficient evidence to permit the trial judge to find that Ms. Hemmings would have chosen an abortion if Dr. Padmore had informed her of that option

[73] As mentioned, in order to demonstrate factual causation, Clements requires that a plaintiff “must show on a balance of probabilities that ‘but for’ the defendant’s negligent act, the injury would not have occurred.” Usually, a common sense inference of “but for” causation from proof of negligence flows without difficulty: Clements, at paras. 8 and 10. However, some circumstances may prove more problematic, requiring a more elaborate analysis. In Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 487, this court, at para. 47, described this aspect of the causal reasoning process as a “trier of fact’s imaginative reconstruction of reality”; others have characterized it as a counterfactual exercise: Fridman’s The Law of Torts in Canada, at para. 506. Dr. Padmore submits the trial judge erred in concluding in his counter-factual exercise that, had he informed Ms. Hemmings of her option to terminate her pregnancy, she would have chosen to have an abortion.

The trial judge’s reasons

[74] The trial judge reasoned that “but for” Dr. Padmore’s failure to order a pregnancy test before the September 30, 2008 visit, Ms. Hemmings’ pregnancy would have been detected earlier. If it had, he found that Ms. Hemmings would have chosen to terminate the pregnancy, the abortion procedures used at that time for that stage pregnancy would not have involved a general anesthetic and, therefore, the cardiac arrest would not have occurred: at paras. 107-108.

[75] The trial judge was persuaded “that had Sophia Hemmings been advised earlier on about the multitude of risks associated with her pregnancy and her options to terminate the pregnancy by Dr. Padmore, she would have chosen to do just that”: at para. 107. In reaching that conclusion, the trial judge relied, at paras. 107 and 109-110, on the following evidence:

After all, [Ms. Hemmings] attended at the Woburn Clinic where Dr. Padmore practiced because she had unprotected sex and did not want to become pregnant.

I am reinforced in this conclusion by the common sense reality that it was clear by her attendance at the doctor’s office for contraception, Sophia Hemmings had unprotected sex and did not want to get pregnant. Further, Sophia Hemmings’ financial circumstances were such that she had been unable to have her other child come to Canada. Her support of that child was limited to telephone calls when they could be afforded.

In addition, the relatively recent nature of her relationship with the father and her reliance on her sister in various records as the emergency contact also support the conclusion that pregnancy was not only unplanned but unwanted.

Analysis

[76] Dr. Padmore submits that the trial judge’s conclusion is tainted by his failure to refer in his reasons to “the overwhelming evidence to the contrary”. As well, Dr. Padmore contends the trial judge failed to apply the factors set out in the Superior Court of Justice decision in T.S. v. Adey, 2017 ONSC 397, another case that considered whether a patient would have terminated her pregnancy had the physician met the applicable standard of care. Dr. Padmore argues that by disregarding “material evidence”, the trial judge failed to follow the “preponderance” of the factors to the conclusion that “Ms. Hemmings would not have terminated.” [emphasis in original].

[77] I see no reversible error in the trial judge’s conclusion that had Dr. Padmore told Ms. Hemmings at an early stage about the option of an abortion, Ms. Hemmings would have chosen that course of action.

[78] First, Dr. Padmore contends the trial judge erred by failing to apply the factors set out in T.S. v. Adey. I do not read Adey as mandating a fixed list of factors that a court must consider in any such case. Instead, Adey stands as an example of how one court assessed the personal circumstances of a specific plaintiff for purposes of applying the modified objective approach to “but for” causation re-affirmed in Arndt v. Smith, 1997 CanLII 360 (SCC), [1997] 2 S.C.R. 539.[^9]

[79] Second, this was a case where evidence from the injured plaintiff was not available because her injuries rendered Ms. Hemmings unable to provide evidence. As a result, the trial judge was faced with drawing inferences from circumstantial evidence provided by others, including Ms. Hemmings’ mother and sister.

[80] While the trial judge did not enumerate all of the relevant evidence in his reasons, it is clear from counsel’s closing submissions at trial that the trial judge was taken through that evidence and he engaged with counsel on it.[^10] The trial judge’s task was to assess the various pieces of evidence to determine whether the plaintiffs’ had established, on a balance of probabilities, that had Dr. Padmore informed Ms. Hemmings of the option of an abortion, she would have had one. The trial judge determined that issue, and I regard his references to certain of the evidence in paras. 107 and 109-110 of his reasons (set out above) as his identification of the factors that led him to conclude the plaintiffs had discharged that burden of proof.

[81] Dr. Padmore does not contend the trial judge misapprehended the evidence regarding those factors. His submission boils down to the contention that the trial judge should have weighed the evidence differently and reached an opposite conclusion. Absent the demonstration of a palpable and overriding error, it is not our job on appeal to reweigh evidence. Dr. Padmore has not demonstrated such an error. Accordingly, I would not give effect to this ground of appeal.

B.2 Factual causation ground No. 2: Resting causation analysis on a breach of the standard of care that was not found

The issue stated

[82] As mentioned, when conducting his “but for” analysis regarding any causal effect of Dr. Padmore’s conduct, the trial judge stated, at para. 107 “that had Sophia Hemmings been advised earlier on about the multitude of risks associated with her pregnancy and her options to terminate the pregnancy by Dr. Padmore, she would have chosen to do just that.” [Emphasis added]. Dr. Padmore submits this causation analysis is tainted by reversible error as it is based on a breach of the standard of care by Dr. Padmore that the trial judge did not find, namely a failure to advise Ms. Hemmings about the multitude of risks associated with her pregnancy. The trial judge had found a different breach of the standard of care, namely a failure to document such risks.

[83] The respondents argue that a fair reading of the reasons shows the trial judge made an implicit finding that Dr. Padmore breached the standard of care by not discussing risks of the pregnancy with Ms. Hemmings. In their view, the trial judge treated Dr. Padmore’s failure to document the increased risks and the failure to advise Ms. Hemmings of such risks as related to the same obligation.

Analysis

[84] A trial judge’s reasons must be read fairly and as a whole. When the reasons in this case are approached in that manner, I am persuaded by the respondents’ submission.

[85] Paragraph 10 of the reasons provides the appropriate starting point. There, the trial judge noted that “Dr. Padmore admitted not discussing these risks with Sophia Hemmings.” Earlier in that paragraph the trial judge had identified those undisclosed risks:

Sophia Hemmings was morbidly obese when she got pregnant … Morbid obesity in pregnancy is subject to a multitude of increased health risks to the mother and fetus, including cardiac arrest … as admitted by Dr. Padmore and other medical experts during the trial. Other increased risks agreed to by Dr. Padmore included difficult or failed labour…a caesarian section…maternal or fetal death…shoulder dystocia…macrosomia… anesthetic complications … and cephalopelvic disproportion. [Citations omitted].

[86] Later, in the breach of standard of care section of his reasons, at para. 47, the trial judge again noted that Dr. Padmore had acknowledged those risks were increased by obesity in pregnancy and that “all of these conditions presented during Sophia Hemmings pregnancy.” The trial judge then continued:

Dr. Padmore acknowledged being aware of all of these risks as of August, 2008, yet making no record of having any discussions about them with Sophia Hemmings Emphasis added].

[87] In the next paragraph, the trial judge recorded his findings that Dr. Padmore’s “failure to document these risk factors and test results was a clear breach of his duty of care as [Ms. Hemmings’] treating obstetrician.”

[88] Given that Dr. Padmore admitted that he had not discussed these risks with Ms. Hemmings, I read the trial judge’s finding that Dr. Padmore failed to document the risk factors as necessarily subsuming a finding that his failure to discuss the risks with Ms. Hemmings breached the standard of care. In my respectful view, Dr. Padmore’s submission on this point is not based on a fair reading of the reasons as a whole.

[89] Accordingly, I am not persuaded by this ground of appeal.

C. Legal causation ground of appeal advanced by Dr. Padmore and by the Hospital in respect of Nurse San Juan

[90] Dr. Padmore and the Hospital, in respect of Nurse San Juan, both submit the trial judge erred in conducting his legal causation analysis. As their submissions rest on a core common element, I shall consider them together.

The issues stated by Dr. Padmore

[91] It is unclear from the structure of the trial judge’s reasons whether he made a discrete finding of legal causation in respect of Dr. Padmore’s failure to inform Ms. Hemmings about the option to terminate or whether he applied a common causation analysis to that breach as well as to Dr. Padmore’s failure to document the multiple risk factors in her pregnancy. The trial judge posed the legal causation question in the course of his discussion of Dr. Padmore’s failure to document the multitude of risks associated with Ms. Hemmings’s pregnancy given her morbid obesity, namely: “[W]as it reasonably foreseeable Sophia Hemmings would suffer a cardiac arrest arising from an anesthetic complication?”

[92] For purposes of this ground of appeal, Dr. Padmore is prepared, using a generous reading of the reasons, to proceed on the basis that the trial judge found Ms. Hemmings’ injury was not too remote as “Dr. Padmore was aware of the risks of morbid obesity in pregnancy, especially the increased risk of anesthetic complication which ultimately occurred and led to the [cardiac] arrest.”

[93] Dr. Padmore submits the trial judge committed two errors in concluding Ms. Hemmings’ injury was not too remote by:

• proceeding on the erroneous basis that simple awareness of risks provides an adequate basis upon which to find reasonable foreseeability when what the jurisprudence requires is the demonstration of a “real risk”; and

• ignoring the evidence that all experts who were asked agreed that suffering a cardiac arrest during a C-section is an exceedingly rare event.

[94] The respondents submit that the trial judge made no such errors. First, the legal causation inquiry asks whether injury of the general type suffered was reasonably foreseeable, not whether the specific sequence of events or mechanism of injury was foreseeable. In support of this submission they point to R. v. Coté, at p. 604, where the Supreme Court stated: “It is not necessary that one foresee the ‘precise concatenation of events’; it is enough to fix liability if one can foresee in a general way the class or character of injury which occurred.”

[95] Second, although the injury suffered by Ms. Hemmings as a result of an anesthetic complication might be rare, on his own evidence Dr. Padmore acknowledged that he was aware that Ms. Hemmings’ morbid obesity increased the risk of an operative delivery via C-section, marginally increased the risk of anesthetic complications,[^11] and increased the risk of cardiac arrest for the mother.[^12]

Issues stated by the Hospital

[96] In respect of Nurse San Juan’s telephone consult with Ms. Hemmings, the trial judge found that “but for” the nurse’s breach of the standard of care, Ms. Hemmings would have attended the Hospital on the evening of April 8, 2009, where she would have been assessed by an obstetrician. The trial judge conducted a counter-factual “but for” exercise, which led him to conclude, at paras. 118‑120:

At issue is what would have happened had Sophia Hemmings attended and being assessed.

[Ms. Hemmings] would have been seen by an obstetrician on duty. A more fulsome history would have been obtained revealing the multitude of risks in Sophia Hemmings’ pregnancy. Being at least 38 weeks gestation, the fetus was mature but less macrosomic and with less polyhydramnios than on April 20, 2009. Aware of the multitude of risk factors, I find on the balance of probabilities a decision to induce labour would have been made. Alternatively, given she was not full term, an urgent caesarean section would have been performed.

I have concluded that this is not “far-fetched” and merely the application of “robust common sense”. But for the negligence of the Scarborough Hospital, Sophia Hemmings would not have suffered the damages that occurred.

[97] While the trial judge performed that counter-factual causation analysis, the Hospital submits he failed to conduct any legal causation analysis in respect of Nurse San Juan. As well, it submits the trial judge’s conclusion regarding Nurse San Juan was inconsistent with the foreseeability findings he made regarding Dr. O’Brien, who performed the C-section on April 20.

[98] The respondents answer that the trial judge’s “but for” findings were available to him on the evidence. Further, two experts – Dr. Braithwaite and Dr. Suzanne Wong – testified that a delivery on April 8 would have lessened the delivery risks faced by Ms. Hemmings.

The causation evidence before the trial judge

[99] Two kinds of evidence were placed before the trial judge on the issue of whether it was or should have been reasonably foreseeable to a reasonable person in the position of the obstetrics defendants that Ms. Hemmings would suffer a cardiac arrest arising from an anesthetic complication.

The evidence of the participants

[100] First, the trial judge heard the evidence of the obstetrics defendants: Dr. Padmore, Ms. Hemmings’ primary obstetrician for most of her pregnancy; Dr. O’Brien, who performed the C-section; and the labour and delivery nurse, Ms. San Juan, who fielded Ms. Hemmings’ April 8, 2009, telephone call to the Hospital’s triage unit.

[101] During his cross-examination, Dr. Padmore was asked whether he acknowledged that certain risks increased during the pregnancy of morbidly obese women, including anesthetic complications and cardiac arrest. Dr. Padmore gave the following evidence:

Q. And you understood at the time as well, Doctor, that obesity in pregnancy significantly increased the risk of anaesthesia complications; correct?

A. I wouldn't use the word "significantly". I would say it increases the risk, and the anesthetist knows he has to be careful. It is his job. It is his job. It is the obstetrician's job to make sure we get a nice light baby out of it. It is the anesthetist's job to make sure he gets a good anesthetic.

Q. And all I am saying to you, Doctor, you understood at the time that obesity in pregnancy increased the risk of anaesthesia complications, yes?

A. Yes, but just marginally. We can't just say, Oh, boy, she is obese, we can't even anesthetize her. We will to have her – have her have this baby without an anesthetic. That is the risk. There is a risk involved.

Q. And you also understood that obesity in pregnancy increased the risk of cardiac arrest to the mother?

A. Yes.[^13] [Emphasis added].

[102] Dr. O’Brien was asked questions about the increased risk of difficult labour and anesthetic complications. She was not questioned about whether morbid obesity during pregnancy increased the risk of cardiac arrest. Dr. O’Brien’s evidence was as follows:

Q. [Obesity in pregnancy] increases the risk of a difficult labour?

A. It increases the risk of cephalopelvic disproportion and a longer labour perhaps, yes. "Difficult" is an unclear term. I am not sure what exactly medically you are referring to, but yes, higher rates of cephalopelvic disproportion and longer labours perhaps.

Q. So I am just making sure I am clear. You would agree with me that obesity in pregnancy increases the risk of a difficult labour?

A. That sounds about right, yes.

Q. Obesity in pregnancy increases the risk of anaesthesia complications?

A. That may be correct, but I do not practice as an anesthesiologist. I don't do those procedures.

Q. But you knew from your role as an obstetrician in the community, having done lots of deliveries and apparently cared for obese patients, you knew back in 2009 that obesity in pregnancy increased the risk of anaesthesia complications, yes?

A. That is likely true, yes.

Q. And so all those risks that I just went through with you, again, you were aware of all of those risks for an obese pregnant patient when you came in contact with Ms. Hemmings on the morning of April 20th, 2009; correct?

A. That is correct.

Q. And those were all relevant risks to Ms. Hemmings, yes?

A. That is correct.[^14]

[103] Dr. O’Brien also testified that, when she arrived in the operating room on April 20, 2009, she did not have any concerns about fetal or maternal well-being:

When I arrived in the operating room, there was a completely stable mother. There were no concerns at that time outside the fact that she was larger than average, which is a common occurrence for us at Scarborough General, and the fetus was also completely stable. So this was something that would be within the realm of something I would deal with on a weekly basis at Scarborough General. She was very stable.[^15]

At that time, Dr. O’Brien did not “have any reason to believe” that Ms. Hemmings was going to have a panic attack or cardiac arrest because the patient was “completely stable”.[^16]

[104] In contrast to the two obstetricians, Nurse San Juan was not asked whether she knew that morbid obesity in pregnancy increased certain risks, such as anesthetic complications or cardiac arrest.

The expert evidence

[105] The second kind of evidence before the trial judge consisted of opinion evidence given by experts in obstetrics and nursing obstetrics.

[106] The plaintiffs called Dr. Braithwaite as an expert in obstetrics. Two parts of his evidence are relevant to this issue. First, he was asked to compare the risk of an abortion in the August-October 2008 time frame with the risks of Ms. Hemmings proceeding with her pregnancy given her medical condition. Dr. Braithwaite stated:

Her potential risks to a pregnancy is potentially significantly higher. How much higher? Obviously, at that point in time I would not be in a position to state. I mean, I know that she is obese. I know that she has anaemia. I don't know what's going to happen as the pregnancy proceeds.[^17] [Emphasis added].

[107] Second, Dr. Braithwaite also opined, at two places in his evidence, on whether he would anticipate that a patient such as Ms. Hemmings would suffer a cardiac arrest during a C-section:

Q. Very shortly after the baby was delivered, the patient had a cardiac arrest?

A. Yes, ma'am.

Q. This was a dramatic series of events; do you agree?

A. Yes, ma'am.

Q. It was unexpected?

A. Yes, ma'am.

Q. A situation like is very rare?

A. It is definitely -- it is unusual, yes, ma'am.

Q. And looking at this prospectively as an obstetrician, you are not expecting your patient to have a cardiac arrest in the middle of your C-section, are you?

A. Certainly you are not, ma'am.

Q. That would be unforeseeable?

A. In a normal circumstance, I would say yes, that's correct, ma'am. I'm sure we'll get to it, so I'll leave my statement at that.[^18] [Emphasis added].

[108] Later, he testified:

Q. And we have certainly heard you give that opinion, Dr. Braithwaite, but the fact remains that if you had a patient -- and we know you have had patients with Ms. Hemmings' clinical presentation, right?

A. Yes.

Q. And so you would not anticipate that a patient like that would end up having a cardiac arrest during a C‑section, right?

A. I wouldn't anticipate it, but is her risk higher? Her risk is higher probably, yes. But do I expect it to happen? No, I don't expect it to happen.[^19] [Emphasis added].

[109] On the other hand, an obstetrics expert called by the plaintiffs, Dr. Barrett, offered the following opinion in the context of his view that Ms. Hemmings should have been transferred to a high-risk level 3 facility for delivery (a finding that the trial judge declined to make) and his opinion about the cause of her cardiac arrest:

A. And all I'm saying is, in my opinion -- and I think it's substantiated from some of the literature I gave -- that anesthetic complications are a major problem. That to avoid those, we recommend consultation. And in this case, consultation and/or transfer to a place that deals with this, and then look at the complex of events and the findings.

Now some of them are not within my expertise to interpret, and I won't do that. But the literature does have guidance as to, in my opinion as an expert, what the most likely thing is. And I do believe it's the problem with establishing the airway, which an obese woman is even more risky…

Q. Thank you, Doctor. So you mentioned in your answer there, that you felt that this was a predictable problem. Could you tell us a little bit about why you say that?

A. Well, "predictable" implies that, you know, everyone knew this was going to happen. You know, I can't say it's that degree of predictable, but if you look at the guidelines --

Q. Sorry, would "foreseeable" be a better word for --

A. Yeah. I think "foreseeable" would be a better word than "predictable". Because, you know, I think if everyone knew this was going to happen, people would have done things differently. But if we look at the guidelines that are operable at the time for what these particular kind of patients are at risk for, anesthesia issues are highlighted.

The bottom line is, she was predictable to be at a high risk of anesthesia comp -- of risk from -- from everything.[^20] [Emphasis added].

[110] The appellant physicians called Dr. Oppenheimer as an expert in obstetrics. He described a cardiac arrest during a C-section as an event that could not be predicted: “an extremely rare event”.[^21] He opined on the absolute risk of a cardiac arrest:

You know, even if some conditions, as I said earlier, could raise the possibility of these disasters, but they raise it from a tiny fraction to another tiny fraction. These are not, you know, things that really you would obviously anticipate occurring. You know, the cardiac arrest is an extremely rare event in this situation and was not, in my opinion, obviously linked to any particular risk factor in the pregnancy and could not have been anticipated.[^22] [Emphasis added].

[111] Dr. Oppenheimer also gave evidence about the absolute risk of anesthetic complications in obese pregnant women:

And I mention this in my report in relation to a Canadian study by Robinson, which has been referred to before, which referenced that in obese women, the complication rate from anesthesia was around 3 percent, compared to 1.5 percent.

So that's an example where, yes, the odds ratio is doubled for anesthesia complications, but in absolute terms, the rate of anesthesia complications, which includes all types of complications, not just general anesthesia, which would be a small subset, is quite small.[^23] [Emphasis added].

[112] Two experts were called to give opinion evidence on nursing obstetrics. The plaintiffs called Ms. Ashraf Somani. She was not asked any causation‑related questions. The Hospital called Ms. Donna Brown. She, too, was not asked any causation questions on the “but for” counter-factual relating to the April 8, 2009, telephone call fielded by Nurse San Juan or whether it would be reasonably foreseeable to a nurse in the circumstances of Nurse San Juan that morbid obesity would give rise to or increase the risk of anesthetic complications and cardiac arrest if a C-section was used to deliver the child.

[113] To summarize, the evidence before the trial judge on the issue of whether it was foreseeable to a reasonable person in the position of one of the obstetrics defendants, at the time of their respective breaches of the standard of care, that Ms. Hemmings would suffer a cardiac arrest arising from an anesthetic complication was as follows:

• At the time of his material breaches, between August and October 2008, Dr. Padmore was aware that obesity in pregnancy increased the risk of anesthetic complications and cardiac arrest to the mother;

• There was no evidence as to the state of knowledge of Nurse San Juan about such risks on April 8, 2009;

• As of April 20, 2009, Dr. O’Brien knew that obesity in pregnancy increased the risk of a difficult labour and anesthetic complications;

• Dr. Braithwaite stated that the risk of cardiac arrest during a C-section is higher in an obese patient but could not specify how much higher the risk is. He stated that a cardiac arrest during a C‑section is unforeseeable as it is an unusual situation. He would not anticipate this in an obese patient;

• Dr. Oppenheimer described a cardiac arrest during a C-section as an event that could not be predicted – “an extremely rare event”; and

• Finally, Dr. Barrett opined that the risk of anesthetic complications in an obese patient is foreseeable.

Analysis

[114] Legal causation of a plaintiff’s injuries concerns whether the damage was caused in law by the defendant’s breach: Mustapha, at para. 3. As a legal question, it is subject to the correctness standard of review on appeal.

[115] In my view, the trial judge committed reversible error on the questions of whether the breaches of the standard of care by Dr. Padmore and Nurse San Juan caused, in law, the damages suffered by Ms. Hemmings.

[116] Starting with Nurse San Juan, the major error committed by the trial judge was his failure to conduct any legal causation analysis.

[117] The causation analysis the trial judge conducted, at paras. 118-120 of his reasons[^24] concerned the issue of factual causation. There, the trial judge conducted a “but for” counter-factual exercise and set out his findings as to what probably would have happened had Nurse San Juan advised Ms. Hemmings to come to the Hospital on the evening of April 8, 2009. The Hospital submits this counter-factual exercise was tainted by legal error. I accept its submission.

[118] I arrive at that conclusion by comparing the counter-factual analysis the trial judge conducted in respect of Dr. Padmore with that he performed for Nurse San Juan. The counter-factual the trial judge performed in assessing Dr. Padmore’s liability – would Ms. Hemmings have had an abortion if informed of that option? –turned on an assessment of non-expert evidence. By contrast, the counter‑factual about the probable events of April 8 involving Nurse San Juan rested on expert evidence. That evidence was strongly divided on two issues: (i) if Ms. Hemmings had attended the Hospital on April 8, would she have been induced or would she have been sent home? (ii) if she had been induced, would the induction have resulted in a successful vaginal delivery or an emergency C-section? (On the latter issue, the trial judge made no definitive finding, concluding that a decision to induce labour would have been made or, alternatively, an urgent caesarean section would have been performed.) Notwithstanding that division in the expert evidence, the trial judge did not explain why he preferred one expert opinion over the other. On this issue, that constituted a material defect in his reasons: Champoux v. Jefremova, 2021 ONCA 92, at para. 23.

[119] Dealing with the lack of any legal causation analysis by the trial judge, I earlier rejected the appellant physicians’ general submission that the trial judge conflated, or misunderstood, the difference between factual and legal causation. However, in the case of the trial judge’s specific analysis of whether Nurse San Juan’s breaches caused, in law, Ms. Hemmings’ injuries, I conclude the trial judge did conflate the two concepts. At the end of his causation analysis regarding Nurse San Juan, the trial judge wrote, at para. 120:

I have concluded that this is not “far-fetched” and merely the application of “robust common sense”. But for the negligence of the Scarborough Hospital, Sophia Hemmings would not have suffered the damages that occurred.

That paragraph obviously deals with the trial judge’s “but for” analysis. However, he picked out the phrase “far-fetched” from Mustapha’s definition of legal causation and combined it, erroneously, with Clement’sdescription of factual causation analysis employing “robust common sense”, thereby conflating legal causation with factual causation.

[120] In any event, referring to one word from Mustapha does not satisfy the trial judge’s obligation to conduct a meaningful legal causation analysis of Nurse San Juan’s conduct.

[121] Such a meaningful analysis was required in the case of Nurse San Juan for two reasons. First, as I have described above, the record before the trial judge lacked any evidence from Nurse San Juan regarding her knowledge about the risks at issue as of April 8, 2009, or any expert evidence as to whether such risks were “real risks” that would occur to the mind of a reasonable person in the position of Nurse San Juan. The trial judge was obliged to explain how he could find that Ms. Hemmings’ damages were caused in law by Nurse San Juan’s breaches in the absence of such evidence. He failed to do so.

[122] Second, a meaningful causation analysis was required because of the temporal dimension of the legal causation issue involving Nurse San Juan: namely that the only interaction between Ms. Hemmings and Nurse San Juan took place during the telephone call on the evening of April 8, 2009, twelve days before Ms. Hemmings underwent the C-section. By contrast, Dr. O’Brien, who cared for Ms. Hemmings throughout the day on April 20, 2009, and performed the C‑section early that evening, testified that she did not “have any reason to believe” that Ms. Hemmings was going to have a panic attack or cardiac arrest because the patient was “completely stable”. The trial judge obviously accepted that evidence because, in dismissing the action against Dr. O’Brien, he wrote, at para. 114:

It could not be anticipated by Dr. O’Brien that Dr. Jamensky’s efforts would result in an anesthetic complication and cardiac arrest. [Emphasis added].

[123] That finding by the trial judge raises the obvious question: If Dr. O’Brien could not anticipate, or reasonably foresee, that a C-section on Ms. Hemmings would result in an anesthetic complication and cardiac arrest, how could Nurse San Juan, whose interaction with Ms. Hemmings was limited to a telephone call twelve days before delivery?

[124] Framed differently, if it was not reasonably foreseeable to a reasonable obstetrician in the circumstances of Dr. O’Brien at the time of the C-section that Ms. Hemmings would suffer a cardiac arrest arising from an anesthetic complication, on what evidentiary basis would such a risk be reasonably foreseeable to a reasonable obstetrical nurse in Nurse San Juan’s circumstances twelve days earlier or to a reasonable obstetrician in Dr. Padmore’s circumstances many months earlier when he was found to have breached the standard of care in the August-October 2008 time period?

[125] The trial judge’s reasons provide no answers to these questions.

[126] In its factum, the Hospital submits the trial judge’s conclusions that Dr. O’Brien could not anticipate the anesthetic complications and cardiac arrest and yet Nurse San Juan was liable in negligence “are in direct contradiction and cannot stand”. I agree that such an inconsistency exists in the trial judge’s reasons, not only concerning his liability conclusion in respect of Nurse San Juan but also in his legal causation finding in respect of Dr. Padmore. Even applying a very generous reading, the trial judge’s reasons do not provide any insight into how he resolved those patent inconsistencies to reach his legal conclusions regarding Dr. Padmore and Nurse San Juan: Champoux, at para. 18. In those circumstances, the trial judge’s conclusions that the plaintiffs had demonstrated that Ms. Hemmings’ injuries were caused in law by the breaches of the standard of care found in respect of Dr. Padmore and Nurse San Juan cannot stand; they must be set aside as they are tainted by legal error on the issue of legal causation: Manary v. Strban, 2013 ONCA 319, at para. 60, per Doherty J.A. (dissenting, but not on this point), leave to appeal refused, [2013] S.C.C.A. No. 303.

[127] I see no reason in the circumstances to direct a new trial on the issue of causation regarding Dr. Padmore and Nurse San Juan. On this appeal, the trial judge’s dismissal of the action against Dr. O’Brien is not challenged. One is left with the trial judge’s finding that Dr. O’Brien, as an obstetrician, could not anticipate that Dr. Jamensky’s efforts, as an anesthetist, would result in an anesthetic complication and cardiac arrest. Based on my review of the trial record, that conclusion was supported by the weight of the evidence. So too, the evidentiary record (which in the case of Nurse San Juan included the absence of evidence) supports the conclusion that the respondent plaintiffs have not demonstrated that the acts or omissions of Dr. Padmore and Nurse San Juan, two of the obstetrical health care practitioners, caused, in law, the injuries suffered by Ms. Hemmings.

VI. CONCLUSION REGARDING DR. PADMORE’S APPEAL

[128] As a result, I would allow the appeal by Dr. Padmore, set aside the Judgment against him, and dismiss the action against him.

VII. CONCLUSION REGARDING HOSPITAL’S APPEAL FOR VICARIOUS LIABILITY

[129] Similarly, I would allow the appeal by the Hospital in respect of Nurse San Juan’s acts and omissions and dismiss that part of the action against the Hospital based on vicarious liability.

VIII. APPEAL OF THE HOSPITAL: DIRECT LIABILITY

The issue stated

[130] The Hospital submits that, in addition to finding it vicariously liable for the negligence of Nurse San Juan, the trial judge found it directly liable for negligence on the basis of its failure to assemble the records detailing Ms. Hemmings’ pregnancy: at para. 117. The Hospital argues that it was not open to the trial judge to make such a finding in light of an agreement the parties made at the outset of the trial. In any event, the Hospital contends the finding cannot stand given the absence of any reasons by the trial judge concerning how the Hospital breached any standard of care regarding record-keeping or how such a breach caused Ms. Hemmings’ injuries in fact and law.

[131] For the reasons that follow, I am persuaded by the Hospital’s submission. To understand this ground of appeal first requires an examination of the agreement reached by the parties, their final submissions at trial, and then the trial judge’s reasons.

The Resolution Agreement

[132] The respondents served a motion just before the start of trial that sought to limit certain evidence the Hospital could call. The respondents and the Hospital settled that motion by entering into a Resolution Agreement, which stated, at para. 4:

4. The Plaintiffs will advise the Court that the sole remaining issue between the Plaintiffs and the Hospital is in relation to what will be referred to in the evidence as the April 8, 2009, telephone call.

[133] The trial judge was told about the Resolution Agreement and the trial proceeded on that basis.[^25]

The parties’ closing submissions at trial

[134] After the respondents had closed their case-in-chief, the Hospital disclosed that certain answers to discovery undertakings given back in 2017 were incorrect. At that time, the Hospital had advised that no policy was in place in 2009 concerning how a nurse should handle a patient’s telephone call to the triage unit. That was incorrect. In fact, long before 2009, the Hospital had in place both a policy and protocol about how a nurse should handle such a call. However, by the time the Hospital disclosed that state of affairs part way through the trial, it was only able to produce the 2016 versions of the policy and protocol; the versions in place in 2009 were no longer available. As the trial judge stated, at para. 94:

[T]he Scarborough Hospital maintained from June, 2016 until after the plaintiffs had closed its case and apparently after it began calling evidence at trial that no policies or practice protocols for completing the Labour and Delivery Phone Advice Form existed. This was incorrect as the policy and procedure form and practice protocol forms both referred to original dates of earlier versions predating April, 2009. Those earlier versions could not be located. However, it appears the versions in place in 2009 were requested in the action prior to the revised versions being put into practice, which, it was inferred, resulted in disposing of the 2009 version.

[135] The respondents’ closing trial submissions focused on their claim that the Hospital should be found vicariously liable for the negligence of Nurse San Juan in handling Ms. Hemmings’ April 9 telephone call. However, the respondents also asserted additional claims against the Hospital:

• The Hospital’s inability to produce the versions of the telephone call policy and protocol in place in 2009 constituted spoliation of evidence, which should attract an adverse inference against the Hospital that the 2016 Policy and Protocols that were produced reflected those in effect in April 2009 or that the 2009 versions “would have been less helpful to the Defendant Hospital’s position on the required standard of care than the Policy and Protocol that was produced”;[^26]

• the Hospital was negligent for failing to train nurses, such as Nurse San Juan, about the requirements of the telephone call policy and protocol;[^27] and

• the Hospital was negligent for failing to share among healthcare providers documentation and information about Ms. Hemmings’ condition, specifically; the information Dr. Padmore’s office sent to the Hospital on April 18, information about Ms. Hemmings’ attendance at the Hospital in January 2009, and her April 8, 2009, telephone call. In their written submissions the respondents stated: “These failures were negligent, and hindered the ability of many of the other Defendants to provide better care.”[^28]

[136] In response to the trial judge’s request at the end of their oral submissions‑in-chief for a “high level summary” of their case, the respondents advised there was a claim of direct liability against the Hospital: the Hospital’s failure to adequately train its nursing staff on policies and make sure they followed them appropriately.[^29]

[137] In its closing, the Hospital submitted: (i) there was no basis for a spoliation claim, as the destruction of the 2009 versions of the policy and protocol was not intentional; and (ii) there was insufficient evidence to support the respondents’ negligent training claim.

[138] In regard to the respondents’ claim that the Hospital was negligent for failing to share documentation and information about Ms. Hemmings’ condition among healthcare providers, the Hospital argued the Resolution Agreement precluded the respondents from asserting such a claim since the documents underpinning the claim had been produced to the respondents long before trial:

The Plaintiffs also allege that the Hospital failed to ensure safe systems of communication. The Plaintiffs contend that the Hospital failed to put a safe, functional and working system of communication with respect to documentation and medical record management. They cite the issue with the St. Mike's records which were produced in 2015, lack of information about the arrival time of the antenatal records, and Dr. Jamensky's missing note as examples.

Now, Your Honour will recall that the Hospital and the Plaintiffs reached an agreement at the outset of trial, provided the Hospital agreed not to call certain witnesses, and that the Plaintiffs agreed that the sole remaining issue against the Hospital relates to the April 8th, 2009 phone call. And so the alleged communication issues that the Plaintiffs now raise in their closing submissions have been known for years, and the Plaintiffs never pursued them. And they cannot attempt to do so now in their closing arguments.[^30]

[139] In their reply submissions at trial, the respondents addressed the issues of spoliation and failure to train, but did not respond to the Hospital’s submission that the failure to communicate information and documents claim was precluded by the Resolution Agreement.

The trial judge’s reasons

[140] The trial judge commenced his examination of the issue of the Hospital’s negligence by dealing with the respondents’ position that the Hospital’s manner of dealing with the disclosure of its policies and protocols on handling patient calls to the triage unit should attract findings of spoliation and adverse inference. He declined to make such findings. Instead, he stated, at para. 96.

Fortunately, the existence of the subsequent policy and protocols and other actions (or inaction) by Ms. San Juan is sufficient to determine this issue of whether the Scarborough Hospital was negligent and not specially rule on spoilation or adverse inference.

[141] The trial judge then proceeded to consider whether Nurse San Juan had fallen below the standard of care in handling the April 8, 2009, telephone call from Ms. Hemmings. He found that she had: at paras. 99-101. The trial judge concluded this portion of his reasons with the following statements, at para. 102:

In addition, the records created by the Scarborough Hospital, such as the Labour and Birth Nursing Telephone Advice form and the January 31, 2009 emergency records … were not referenced as reviewed by Doctors Peng, O’Brien or Jamensky. In addition, there is inconsistent evidence about the availability of the records Dr. Padmore provided to Sophia Hemmings to bring to the hospital with her on April 18. [Citation omitted].

[142] The trial judge returned to the issue of hospital records in the causation portion of his reasons. There, he stated that the Hospital was not only responsible for Nurse San Juan’s negligence but also directly negligent itself writing, at para. 117:

For the Scarborough Hospital, the negligence of Ms. San Juan was in her handling of the April 8, 2019 phone call and in the Hospital’s failure to assemble the records detailing Sophia Hemmings’ pregnancy. As stated in Clements v Clements, supra “scientific proof” is not required but a “robust and pragmatic” approach is to be taken (at paragraph 46). I was directed to this statement of the law by counsel for the defendant hospital.

[143] Two paragraphs followed in which the trial judge conducted a counter-factual exercise in respect of Ms. Hemmings’ April 8 phone call to the Hospital’s triage unit. He concluded his causation analysis regarding the Hospital, at paras. 120-121 where he stated:

I have concluded that this is not “far-fetched” and merely the application of “robust common sense”. But for the negligence of the Scarborough Hospital, Sophia Hemmings would not have suffered the damages that occurred.

The liability of the defendant Scarborough Hospital has been established. I am reinforced in this conclusion by the evidence of Dr. Padmore, which bears repeating, that is, no obstetrician would have “gone past 38 weeks” … [Citation omitted].

Submissions on appeal

[144] On appeal, the Hospital submits the trial judge’s finding of direct liability based on its “failure to assemble the records detailing Sophia Hemmings’ pregnancy” should be set aside for two reasons:

• The finding concerned a matter that lay outside the scope of the issue the parties placed before the trial judge for adjudication as a result of the Resolution Agreement;

• Alternatively, and in any event, the finding amounts to a bald conclusion by the trial judge, unsupported by any analysis of the requisite elements to establish negligence: identification of the standard of care; consideration of the conduct that would amount to a breach of the standard of care; and analysis of how any breach of the standard of care by the Hospital in that regard caused Ms. Hemmings’ injuries. The Hospital submits the trial judge’s failure to deal with those elements in his reasons demonstrates that his finding of direct negligence against it lacked any factual or legal basis.

[145] The respondents’ factum is silent on the issue of the Hospital’s direct liability.

Analysis

[146] It is a basic principle of civil litigation that a judge commits an error of law when he or she decides a proceeding “on a basis that was not ‘anchored in the pleadings, evidence, positions or submissions of any of the parties’”: Union Building Corporation of Canada v. Markham Woodmills Development Inc., 2018 ONCA 401, at para. 13, leave to appeal refused, [2018] S.C.C.A. No. 214.

[147] In the present case, the Resolution Agreement between the respondents and the Hospital defined the issue those parties wanted the trial judge to adjudicate: the April 8, 2009, telephone call between Ms. Hemmings and Nurse San Juan.

[148] As I read the trial judge’s reasons, his finding that the Hospital was negligent for failing to assemble the records detailing Ms. Hemmings’ pregnancy rested on (i) the lack of availability of records for review by Drs. Peng, O’Brien or Jamensky, none of whom were involved in the April 8 call, and (ii) the lack of availability of the records Dr. Padmore provided to Ms. Hemmings to take to the Hospital on April 18. Neither of those issues concerned the April 8, 2009, telephone call. As well, this is not a case where the documents in question were discovered or produced after the parties had entered into the Resolution Agreement. The documents had been produced during the pre-trial discovery process. Accordingly, on that basis alone I would set aside the trial judge’s finding.

[149] However, I would add that the trial judge’s finding amounts to the assertion of a bald conclusion. It was not supported by the adjudicative analysis required to assess a claim of negligence. A finding of negligence unsupported by any analysis cannot stand.

[150] For those reasons, I would allow the Hospital’s appeal in respect of the trial judge’s finding of direct liability on its part. When coupled with my conclusion that I would allow the Hospital’s appeal on the issue of vicarious liability, I would allow both aspects of the Hospital’s appeal, set aside the judgment against it, and dismiss the respondent’s action against it.

IX. APPEAL OF DR. NEIL JAMENSKY

A. The April 20, 2009 C-Section

[151] As mentioned earlier, Ms. Hemmings was admitted to the Hospital on April 19, 2009, and steps to induce delivery were initiated. Around 3:30 p.m. on the afternoon of April 20, as induction attempts continued, Ms. Hemmings complained about pain and was offered a regional anesthetic by the attending anesthetist, Dr. Jamensky. He assessed her, including examining her airway and, in the result, put in place a spinal anesthetic, which alleviated her pain.

[152] When Dr. O’Brien, the obstetrician, re-assessed Ms. Hemmings at 5:30 p.m, labour had not further progressed. Dr. O’Brien determined that the baby’s head was too large to pass through Ms. Hemmings’ pelvis, so she advised Ms. Hemmings that an urgent C-section should be performed. Ms. Hemmings consented.

[153] Dr. Jamensky was the on-duty anesthetist at the time and he was asked to participate in the C-section. As he was involved in other surgery when he was called, the C-section could not start until he was free. The C-section started around 7:00 p.m.

[154] The C-section proceeded under the regional anesthetic, which Dr. Jamensky had “topped up” to the level appropriate for the surgery. Dr. Jamensky took his position at Ms. Hemmings’ head, and Dr. O’Brien created a sterile field around the area of the pelvis where the incision would be made. In accordance with standard practice, a sheet was draped across Ms. Hemmings, at her mid‑section, with the result that Dr. O’Brien did not have a clear view of what Dr. Jamensky was doing, nor did Dr. Jamensky have an unobstructed clear view of the incision area.

[155] What happened next was described by the trial judge, at paras. 24-28 of his reasons:

After the caesarean section commenced, that is, the initial incision of Sophia Hemmings’ skin was made, Sophia Hemmings became “++ panicking, thrashing” as recorded by Dr. Jamensky (Exhibit 1, Volume 1, Tab 10, page 1-032). Dr. O’Brien recorded a “panic attack” in her Operative Report. Efforts were made to calm her including having her sister, Samantha Hemmings enter the labour and delivery operating room. Samantha Hemmings observed her sister to be responsive, to her name being called and advising Samantha that she could not breathe and wanting to sit up. When Samantha Hemmings attempted to take her sister’s hand, she was prevented from doing so by the only male (Dr. Jamensky) in the operating room and Samantha Hemmings was told by him that her sister was going to be put to sleep and the baby taken out. Samantha Hemmings was then removed from the operating room.

The intubation of Sophia Hemmings did not proceed as planned. After the general anesthetic drugs had been administered, Dr. Jamensky attempted to insert a tube down Sophia Hemmings throat using a device called a laryngoscope with a “Mac-3’ blade on it. He was unable to so. He then made an effort to fill Sophia Hemmings’ lungs with oxygen enriched air by use of laryngal airway mask before proceeding with a larger bladed, “Mac-4” laryngoscope which permitted him to insert the tube to its proper position at the top of Sophia Hemmings’ lungs and began breathing for her.

Dr. Jamensky observed Sophia Hemmings’ blood pressure, pulse and End-tidal CO2 levels drop. During this time the caesarean section was completed and the baby was delivered.

The handwritten records of the cardiac arrest (or Code Blue) team indicated their actions began at 19:43 with Dr. Jamensky having started chest compressions. A pulse and heart rate were recorded again as of 19:48. The next notation of a blood pressure was at 20:04.

The caesarean section was completed and Sophia Hemmings transferred to the Intensive Care Unit where assessment of what occurred and efforts to treat her were made …

[156] Ms. Hemmings’ child, Moses, was delivered safely.

B. The Trial Judge’s Findings and Dr. Jamensky’s Grounds of Appeal

[157] As I read his reasons, the trial judge found that Dr. Jamensky fell below the standard of care in two main respects:

• His decision to convert Ms. Hemmings from a regional to a general anesthetic was made negligently in that the decision was made before he had attempted or exhausted all reasonable options to avoid administering a general anesthetic;[^31] and

• He was negligent in intubating Ms. Hemmings’ airway once he began to administer the general anesthetic.[^32]

[158] The trial judge further found that Dr. Jamensky’s negligent conduct was “the direct cause” of the cardiac arrest suffered by Ms. Hemmings.[^33]

[159] Finally, the trial judge did not accept the defendant doctors’ submission that Ms. Hemming’s cardiac arrest resulted from a rare phenomenon called amniotic fluid embolism. Instead, he found that the arrest was the result of an “anesthetic accident or complication”.[^34]

[160] On this appeal, Dr. Jamensky advances several grounds of appeal in respect of the trial judge’s findings:

Standard of care grounds of appeal

• The trial judge’s finding that Dr. Jamensky was negligent in converting Ms. Hemmings to a general anesthetic without making reasonable efforts to maintain the regional anesthetic was based on opinion evidence that assumed facts which contradicted the actual facts of the case;

• The trial judge erred in failing to find that any deficiency in Dr. Jamensky’s decision to convert to a general anesthetic was merely an error in judgment, not negligence; and

• There was no expert evidence to support the trial judge’s finding that Dr. Jamensky’s airway assessment and intubation of Ms. Hemmings fell below the standard of care.

Causation grounds of appeal

• The trial judge erred in finding that the cardiac arrest was the result of an anesthetic accident or complication;

• The trial judge failed to perform any analysis of factual causation in respect of Dr. Jamensky’s breaches of the standard of care.

C. Analysis: Standard of Care Grounds of Appeal

C.1 First ground of appeal: The trial judge erred in finding that Dr. Jamensky was negligent in converting Ms. Hemmings to a general anesthetic without making reasonable efforts to maintain the regional anesthetic.

Positions of the parties

[161] The appellant submits that the trial judge “relied solely” on the expert evidence of Dr. Eric Goldszmidt in finding that Dr. Jamensky had fallen below the standard of care in converting Ms. Hemmings to a general anesthetic. However, Dr. Goldszmidt’s opinion that Dr. Jamensky did not do everything to avoid converting to a general anesthetic was premised on Ms. Hemmings’ presentation as a calm patient, whereas the trial judge concluded that she was panicking at the time. Since Dr. Goldzmidt’s opinion was predicated on facts that did not occur, the trial judge erred in relying on it.

[162] The respondents contend the appellant’s assertion that Dr. Goldszmidt’s opinion was premised upon a “calm” patient, and therefore was inapplicable, is incorrect. Dr. Goldszmidt accepted that Ms. Hemmings was agitated, at times to the point of panic, but he was unequivocal that she was not so panicked that it was appropriate to convert her to general anesthetic.

Analysis

[163] I accept as an accurate summary of the evidence adduced at trial the following statement in the respondents’ factum:

The evidence at trial was overwhelming that: (i) delivery under a regional anesthetic was the safest; (ii) converting to a general anesthetic created significant additional risks; (iii) and those risks were exacerbated by obesity.[^35]

As the trial judge noted, the additional risks included reduced patient blood pressure and depressed cardiac function.[^36]

[164] Dr. Jamensky agreed that a regional anesthetic is safer to use with a morbidly obese pregnant patient than a general anesthetic. He further agreed that he would not convert a morbidly obese pregnant patient to a general anesthetic unless he had exhausted all other options.[^37] As he stated during his cross‑examination: “It was a procedure of last resort here, and it is a procedure of last resort”:^38

Q. And following along with that, you would agree with me that conversion to a general anesthetic in a morbidly obese pregnant patient would be something you would avoid if at all possible?

A. If I was able to avoid it, I would have avoided it.[^39]

[165] I also accept that the trial judge did not err in accepting the expert evidence of Dr. Goldszmidt of the need for an anesthetist to do everything available to avoid converting to a general anesthetic because of its dangers and risks for a morbidly obese pregnant patient. The other experts shared that view. In light of that evidence, the trial judge did not err in formulating the standard of care as a requirement that an anesthetist attempt and exhaust “all reasonable options” before converting a morbidly obese pregnant patient from a regional to a general anesthetic.[^40]

[166] That standard of care was not in dispute at trial. What was in dispute was whether, in the particular circumstances, Dr. Jamensky had attempted and exhausted all reasonable options to calm Ms. Hemmings sufficiently that the C‑section could proceed under the regional anesthetic, thereby avoiding conversion to general anesthetic.

[167] That cardinal issue involved the need to make findings of fact on two issues: (i) the extent of Ms. Hemmings’ anxiety and movement on the operating table after Dr. O’Brien had made the initial skin incision; and (ii) whether Dr. Jamensky had afforded Ms. Hemmings’ sister, Samantha, an adequate opportunity to calm her down.

[168] The trial judge heard evidence from four witnesses who were present at various times during the C-section.

[169] First, Dr. Jamensky testified that shortly after Dr. O’Brien made her first incision, Ms. Hemmings began to panic. She repeatedly said that she could not breathe and was thrashing. The last time Ms. Hemmings said she could not breathe she used a “very loud, clear, ominous sounding” voice. Ms. Hemmings turned her upper body from side to side, lifted her head and, in Dr. Jamensky’s words:

[A]t one point she did something that I had never seen before, prior to or even since. She actually lifted the entire upper part of her body off the operating room table.

Nobody had ever done that; I had never seen that before. I've never knew of colleagues that saw that before, where a patient literally tries to sit up in the middle of a case, especially a Cesarean section.

I thought we were losing control of the situation pretty fast, because while she's doing this, she keeps saying, "I can't breathe. I can't breathe".

I remember somebody -- when she did this sit-up, I remember somebody, and I don't know who yelling "hey". So H-E-Y, "hey" very loud. Someone pushed her back onto the bed pretty quickly.

And we tried again telling her, "Please don't move, you can't move, you're having surgery." These are things that we always tell the patients.

And it was just a situation that was not amenable to continuing the surgery. She just wouldn't stop moving, and she wouldn't stop saying "I can't breathe."[^41]

[170] Dr. Jamensky testified that at that point he “hit [his] first crossroad” and decided to convert to a general anesthetic because in his judgment “this was not a patient who was going to calm down despite everything that I had done.”[^42]

[171] Although Dr. Jamensky testified that he knew Ms. Hemmings’ sister, Samantha, was brought into the operating room, his recollection of his interaction with her was vague: “I honestly have no memory of that part, to be honest with you … I really don’t remember speaking to Ms. Hemmings’ sister. I don’t even know if I did speak to her, to be perfectly honest with you.”[^43] Dr. Jamensky agreed, on cross-examination, that given his description of the sequence of Ms. Hemmings’ movements, he made the decision to convert to a general anesthetic before her sister, Samantha, had come into the room.[^44]

[172] The second witness was Dr. O’Brien, the surgeon. She testified that after she had started to make a superficial skin incision, Ms. Hemmings started to move around from side to side, as if she was trying to sit up, with the result that her abdomen was also moving.[^45] From her tone of voice, Ms. Hemmings appeared to be very panicked and distressed, as if she was having a panic attack.[^46] As a result of Ms. Hemmings’ movements, Dr. O’Brien stopped the procedure and waited for Dr. Jamensky to assess the situation before continuing. While she recalled that Dr. Jamensky was talking to Ms. Hemmings, she could not recall the specific conversation. She also remembered that Dr. Jamensky brought a female relative in to assist in trying to calm Ms. Hemmings.[^47] Dr. Jamensky converted to a general anesthetic and the procedure continued.

[173] Nurse Nora Djizmedjian was the third witness. She was one of the operating nurses present during Ms. Hemmings’ C-section. She testified that as part of the preparation of Ms. Hemmings for surgery, a “seat belt” was put over her legs between the hip and the knee. Although Nurse Djizmedjian testified that she remembered the event in the operating room only “vaguely”,[^48] she did recall Ms. Hemmings becoming agitated. However, Nurse Djizmedjian recalled that the agitation took place “where they were about to take the baby out”, which was after the general had started, whereas Drs. Jamensky and O’Brien recalled the agitation starting earlier, just after the first incision was made. Nurse Djizmedjian testified:

[Ms. Hemmings] was very much agitated and trying to sit up, and it is at the crucial point where they were about to take the baby out and she was like -- kept saying, I can't breathe, I can't breathe, and was trying to sit up. And of course, her arms are tied down, and she lifted her shoulders off the table. And the biggest fear was, like, she might fall off the table because, again, that table is narrow and she is kind of like -- part of her body is over the table.

And so we tried to hold her down and, thinking that she was just having a panic attack, we tried to lower the drapes a little bit to give her some air. And then her -- I ‑- she started de-satting. Her saturation levels started coming down.

And at this point, we were told in the OR when a situation like this happens to immediately ask the anesthesia should we go and push the red button, which is the emergency button, so extra help could come in.

I didn't even wait. I actually took it upon myself, without even asking Dr. Jamensky, I ran over and I pushed that red button because we needed help in that OR. This part I remember very well. And by the time I came back from pushing the bell, because they were starting CPR, and he intubated her somewhere along that kerfuffle period there.

[174] Finally, the trial judge heard from Samantha Hemmings. She testified that her sister, Sophia, wanted her to be in the room for the delivery of her baby. When it was determined that a C-section would be necessary, Samantha was given a gown, which she put on, then waited for “a long time” in the hallway. Then, as she testified:

A nurse came out and said to me, "Can you come and help us talk to your sister? She's not settling." I followed the nurse because I was behind the nurse, I walked in and I, I yelled her name, I said "Posie", and she turned and looked at me. I said, "What's wrong?" And she said, "Help me up, Lisa, I can't breathe." She reach her hand out to me, and I was about to grab her hand and a doctor or a nurse, I don't know what he is, he said, "Don't touch her. She's on the operating table." And I said, she said she can't breathe. And he never said anything and they just take me out of the room.[^49]

Her evidence continued:

Q. Can I go back? You mentioned that a nurse came to get you and you went into the room.

A. Yes.

Q. Can you tell us what your observations of your sister Sophia were at that point?

A. She was just lying there. She wasn't looking my way. So when I yelled, so when I yelled, "Posie, what's wrong?" she turned and look at me. She, I said what's wrong with you, and she said, "I can't breathe, help me up." So she reach out her arm and I'm about to grab it, and the doctor said leave her alone. I said, "Do you hear she can't breathe?" And he said: "Nothing is wrong with her, she's panicking. I'm going to put her to sleep and take the baby."

Q. Before Sophia reached for your arm, when you first walked in, was, was Sophia moving at all, to your observation?

A. No, she wasn't. She wasn't even looking my way. She was looking the other way. When I yelled her name, she turned and looked at me and told me she couldn't breathe. I reach her hand out. As I'm about to grab it, that's when the doctor stopped me and said, "You can't move her, she's on the operating table."

Q. I expect that Dr. Jamensky may say that Sophia was moving around or thrashing about. Did you observe anything like that?

A. No, I didn't. And she was very calm. If Sophia was moving, I would not leave her in the room. They, they told me to leave the room. So I didn't even get to see the baby born or anything. I would not leave if my sister was moving around.[^50]

[175] When faced with that conflicting evidence, the trial judge made specific findings of credibility regarding the testimony of Dr. Jamensky and Nurse Djizmedjian. He found their evidence about the efforts taken to calm Ms. Hemmings to be unreliable. He gave detailed reasons for that conclusion.

[176] As to the lack of reliability of Dr. Jamensky’s evidence about the extent of Ms. Hemmings’ movement on the operating table, the trial judge wrote, at paras. 68 to 70:

Dr. Jamensky’s evidence is particularly noteworthy for two significant incidents. The first was his description at trial, for the very first time, of Sophia Hemmings doing “something that I had never seen before, prior to or even since. She actually lifted the entire upper part of her body off the operating room table” (trial transcript, page 4052). This event was not specifically pleaded. There were submissions about this with his counsel relying on there being no onus to disclose this evidence as it was not asked about specifically at his examination for discovery. It was also submitted as having been pleaded sufficiently at paragraph 40 of the physicians’ Statement of Defence where Sophia Hemmings started to “panic and began thrashing”.

I would be inclined to agree with this submission had the physicians only denied what was being alleged as having not occurred in their pleading. However, that was not what was pleaded. Rather, the events in the operating room on April 20, 2008 were pleaded in detail as contained in paragraphs 38 to 50 of the physicians’ Statement of Defence. “Panic and began thrashing” does not equate to “actually lifted the entire upper part of her body off the operating room table”. To that end, it undermines the reliability of Dr. Jamensky’s evidence.

This is compounded by the other noteworthy incident being the loss of Dr. Jamensky’s second page of notes detailing the events in the labour and delivery operating room on April 20, 2008 made later that evening. This document was referenced in the Scarborough Hospital Operating Room and Anesthetic Record (Exhibit 1, Volume 1, Tab 10, Page 1-032) where the eight lines of “Comments” section begins “@ 1930: PT + + panicking, thrashing” and concludes “(see next page re details)”. The evidence at trial was Dr. Jamensky made no separate copy of this document and the Scarborough Hospital was unable to locate it. It was looked for by the Scarborough Hospital when advised of its existence years before trial at the time of examinations for discovery (trial transcript, page 6958). It first came to the court’s attention during Dr. Jamensky’s examination in chief. Again, the fact that no mention was made of an event “never seen before, prior to or even since” in the first eight lines of the description of the events further undermines the reliability of Dr. Jamensky’s evidence.

[177] The trial judge also discounted the reliability of Nurse Djizmedjian’s recollection about the extent of Ms. Hemmings’ movement on the operating table, for reasons he set out, at paras. 71 and 74-75:

By comparison, it should be noted at this point that the evidence of Nurse Nora Djizmedjian also references Sophia Hemmings having “lifted her shoulders off the table” (trial transcript, page 3809). The events of that evening were so dramatic for Ms. Djizmedjian that she testified having made notes of the events (trial transcript, page 3822). She took those personal notes home. Unfortunately, Ms. Djizmedjian retired soon after these events and was not able to be located by any of the litigants or their counsel until 2019. Her notes were misplaced in the interim.

When finally located and questioned about the events of April 20, 2009 several years later, Ms. Djizmedjian was without her notes and relied on her memory of the events. She logically admitted her memory had been affected by the passage of time such that she could be confused about what occurred, certain details were quite vague and that she could not even recall if a cardiac arrest (the other dramatic event that evening) had occurred (trial transcript, pages 4007-4008). This undermines the reliability of Ms Djizmedjian’s evidence.

I am reinforced in this conclusion by the contradiction in Ms. Djizmedjian’s evidence about the “biggest fear” being Sophia Hemmings might fall off the operating room table (see Trial Transcript, Pages 3809-3810). Despite this, Ms. Djizmedjian left her position at the side of the operating table where she could assist in keeping Sophia Hemmings on the operating table to go to the other side of the room, without being asked, to push the emergency button for extra help. There were others in the room, such as residents, that she could have asked to do this task. Ms. Djizmedjian’s evidence, as an experienced operating room nurse, of also being “amazed how fast” Dr. Jamensky intubated Sophia Hemmings contradicts Dr. Jamensky’s undisputed repeated efforts the intubation actually required.

[178] By contrast, the trial judge’s reasons disclose he preferred the evidence of Ms. Hemmings’ sister on this issue:

• He accepted “Samantha Hemmings evidence that her sister was responsive while she was in the operating room”;[^51]

• While recognizing that “the level of agitation or panic is in dispute”, the trial judge regarded as a significant aspect of Samantha Hemmings’ evidence her recollection that Dr. Jamensky told her he was “going to” or had made the decision to put Sophia Hemmings to “sleep”, that is, under general anesthetic, “before Samantha Hemmings had been given a fair opportunity to calm her sister”;[^52] and

• The trial judge accepted that evidence by the sister. He concluded, at para. 89, that Samantha’s presence in the operating room occurred after the “decision made to convert to a general anesthetic.”

[179] Those findings of credibility and the further findings of fact that flowed from them were open to the trial judge to make on the record before him. The appellant, Dr. Jamensky, has not demonstrated any palpable and overriding error in them.

[180] Those findings also support the trial judge’s conclusion that Dr. Jamensky “made the decision to convert to general anesthesia before all reasonable options had been attempted let alone exhausted,” thereby resulting in Dr. Jamensky falling below the standard of care. Not only had Dr. Goldszmidt opined of the need for an anesthetist “to do everything available to avoid converting to a general anesthetic because of the dangers and risks” involved with a general in the case of a morbidly obese pregnant patient, the defence anesthesiology experts gave similar opinions.[^53] As stated by Dr. Paul Westacott:

Q. And you would not make a decision to expose a patient to the risks involved in a general anesthetic before you had attempted your reasonable manoeuvres or steps that we've talked about and seen what effect they may have, correct?

A. That would be reasonable, yes.[^54]

[181] Finally on this issue, I do not accept the appellant’s submission that the trial judge erred, at para. 77 of his reasons, because the opinion of Dr. Goldszmidt that he preferred and relied on was premised on a calm patient, whereas Ms. Hemmings was agitated.[^55] As the respondents point out in their factum, in giving his opinion Dr. Goldszmidt was aware and took account of the evidence regarding the movements Ms. Hemmings made on the operating table.[^56] They accurately state that while Dr. Goldszmidt understood Ms. Hemmings was moving on the operating table, he did not see a basis for concluding that she was so panicked that Dr. Jamensky was justified in deciding to move to a general anesthetic.[^57]

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

C.2 Second ground of appeal: The trial judge erred in failing to find that any error in Dr. Jamensky’s decision to convert to a general anesthetic was merely an error in judgment and did not amount to negligence.

[183] This ground of appeal by Dr. Jamensky contains two parts: the first essentially amounts to an exercise in semantics; the second is squarely factual in nature.

[184] As to the first part, at trial Dr. Jamensky advanced the argument that his decision to convert to a general anesthetic was “only hasty which implies it was an exercise of clinical judgment that meets the requisite standard of care.” The trial judge rejected that argument.[^58] On appeal, Dr. Jamensky contends that since Dr. Goldszmidt agreed in cross-examination that the decision to convert was “too hasty”, it somehow follows that the decision merely involved an error in judgment, not negligence.

[185] With respect, this submission ignores the opinion that Dr. Goldszmidt gave at trial. He did not opine that Dr. Jamensky made an error in judgment; he opined that Dr. Jamensky was negligent as he fell below the standard of care:

Q. And you've told us that -- I take it it's in a patient such as Ms. Hemmings that the goal would be to avoid general anesthetic at all costs?

A. Yes, the goal would be to avoid it if you can.

Q. And was that standard met in your opinion in this case by Dr. Jamensky?

A. No.[^59]

[186] As to the second part of his submission, Dr. Jamensky argues the trial judge “ignored” the evidence of the two anesthesiologists who supported the care he gave Ms. Hemmings. I do not accept this submission. The trial judge’s reasons disclose that he was well aware of the areas in which the experts agreed and those in which they disagreed. He did not ignore expert evidence. However, he did prefer some experts’ evidence over others, as in the case of his preference of Dr. Goldszmidt in para. 77 of his reasons. That is what trial judges do: they assess conflicting evidence and express their view as to what (if any) evidence they prefer. I see no reversible error in the trial judge’s rejection of the appellant’s “error in judgment” submission.

[187] For the reasons given in respect of the first and second grounds of appeal, I see no reversible error in the trial judge’s conclusion that Dr. Jamensky fell below the standard of care in deciding to convert to general anesthetic before all reasonable options had been attempted and exhausted.

C.3 Third ground of appeal: There was no expert evidence to support the trial judge’s finding that Dr. Jamensky’s intubation of Ms. Hemmings fell below the standard of care.

Positions of the parties

[188] Dr. Jamensky submits that there was no expert evidence to support findings that his assessment of Ms. Hemmings’ airways as “moderately difficult” to intubate before administering the regional anesthetic on the afternoon of April 20, 2009, or that his intubation of Ms. Hemmings during the C-section that evening fell below the standard of care. Dr. Jamensky points out that, although Dr. Richard Novak was critical of his failure to use a GlideScope during his first attempt to intubate Ms. Hemmings, the trial judge did not rely on Dr. Novak’s opinion.

[189] On their part, the respondents submit there was ample expert evidence to support findings that Dr. Jamensky failed to assess and adequately intubate Ms. Hemmings’ airway during the C-section, pointing to the evidence of Dr. Novak.

Analysis

[190] In reviewing the trial judge’s reasons to assess the various grounds of appeal advanced by the appellants, I have attempted to read those reasons in the most generous way reasonably possible in the circumstances, drawing heavily on the record to inform that review. I understand that to be the approach appellate courts should take to implement the teachings of the Supreme Court of Canada about the sufficiency of reasons, recently summarized in R. v. G.F., 2021 SCC 20, [2021] S.C.R. 801. In that case, at paras. 69-70, the Supreme Court stated that when it is alleged a trial judge’s reasons are insufficient, an appellate court:

• must read those reasons in a functional and contextual manner;

• eschewing any fine parsing of the trial judge’s reasons in a search for error;

• instead, assessing whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review; and

• when assessing the sufficiency of a trial judge’s reasons, an appellate court must review the record because if the trial reasons do not explain the “what” and the “why”, but the answers to those questions are clear in the record, there will be no error. [Emphasis added].

[191] When applying that approach to this ground of appeal, I confess that I am unable to determine “what” the trial judge decided and “why”, even after reading almost all of the record from below.

[192] The trial judge appeared to find that Dr. Jamensky’s management of Ms. Hemmings’ airway issues was negligent in two respects. First, he found that Dr. Jamensky was negligent “in intubating Sophia Hemmings’ airway on April 20, 2009 from when he met her to obtain her consent and provide pain relief from labour to his efforts to convert the regional anesthetic to a general anesthetic.”[^60] Second, after setting out the steps Dr. Jamensky took to intubate Ms. Hemmings during the C-section, the trial judge wrote that he found “as Dr. Goldszmidt testified, these events distracted Dr. Jamensky from Sophia Hemmings’ falling blood pressure and cardiac function. Dr. Jamensky’s conduct was not prudent or diligent in these circumstances.”[^61]

[193] While it is true that Dr. Goldszmidt testified that it was not clear what airway problems Dr. Jamensky recognized and when he recognized them,[^62] Dr. Goldszmidt was not prepared to say that the intubation steps performed by Dr. Jamensky fell below the standard of care.[^63]

[194] Dr. Goldszmidt did criticize Dr. Jamensky for failing to adequately prepare for the possibility of encountering a difficult airway in a morbidly obese pregnant patient. He testified that while an anesthetist should avoid a general anesthetic at all costs, if an anesthetist decides to convert from a regional to a general anesthetic during a C-section, appropriate preparations should be in place. The big risk in Ms. Hemmings’ situation would be “the difficult intubation, which means that you want your first attempt to be your best attempt. You need to have back up plans and skilled assistance.” Dr. Goldszmidt opined that he did not see any indication on the materials he reviewed that “those necessary preparation steps had been done”. He specifically addressed whether Dr. Jamensky had met the standard of care in that regard:

Q: You've also mentioned that in the event that, for whatever reason, a conversion to general anesthetic does become necessary, the standard would be to make sure all appropriate preparations and precautions were taken before undertaking that?

A: Yes, to the extent possible under the circumstances.

Q: And was that standard of care met in this case by Dr. Jamensky?

A: No.[^64]

[195] The other expert in anesthesiology called by the respondents, Dr. Novak, also criticized Dr. Jamensky for not ensuring that skilled assistance was present to help him.[^65]

[196] However, the trial judge did not identify such lack of adequate preparation as an element of Dr. Jamensky’s negligent intubation.

[197] Dr. Novak also voiced the opinion that Dr. Jamensky should have taken more time to pre-oxygenate Ms. Hemmings and use a GlideScope, a kind of videoscope, on his first attempt to intubate the patient.[^66] However, the trial judge did not identify either matter as an aspect of Dr. Jamensky’s intubation negligence nor did he make any reference to the evidence of Dr. Novak.

[198] In my respectful view, the trial judge’s reasons, even when read in conjunction with the extensive record, fail to explain what act or omission of Dr. Jamensky’s during the intubation process fell below the standard of care and why. In those circumstances, the reasons do not permit substantive appellate review of the issue raised by this ground of appeal. I therefore would accept the submissions of Dr. Jamensky that the finding he was negligent in intubating Ms. Hemmings lacks proper evidentiary support.

[199] Of course, that does not absolve Dr. Jamensky from liability for negligence. As I concluded earlier in these reasons, there is no basis to interfere with the trial judge’s finding that Dr. Jamensky was negligent in converting Ms. Hemmings from a regional anesthetic to a general one.

D. Analysis: Causation Grounds of Appeal

The issue stated

[200] The trial judge found that the cause of Ms. Hemmings’ cardiac arrest was an “anesthetic accident or complication”, not an amniotic fluid embolism as the appellant physicians had argued.[^67] As to whether Dr. Jamensky’s negligence caused Ms. Hemmings injury, the trial judge wrote, at para. 116:

For Dr. Jamensky, his negligence, both in failing to adequately assess Sophia Hemmings’ airway and his failure to take sufficient or adequate steps before converting to general anesthetic were the direct cause of Sophia Hemmings’ cardiac arrest. That is, and mindful of Dr. Westcott and his agreement with Dr. Barrett, that without the administering of a general anesthetic the cardiac arrest would not have occurred, causation has been made out.

[201] Dr. Jamensky challenges these conclusions arguing that the trial judge committed two errors in his cause-in-fact analysis. First, he submits the trial judge erred in finding that the cardiac arrest was the result of an anesthetic accident or complication. At trial, the defendant physicians argued that Ms. Hemmings’ cardiac arrest had been caused by amniotic fluid embolism (“AFE”), which is a maternal reaction to amniotic fluid that enters the bloodstream.[^68] If AFE was found to be the cause of the cardiac arrest, no liability likely would attach to Dr. Jamensky as the consensus evidence was that AFE was an extraordinarily rare event, unpredictable, and could happen under a regional or general anesthetic: Clements, at para. 11.[^69]

[202] Second, Dr. Jamensky contends the trial judge failed to perform any analysis of whether his breach of the standard of care in fact caused Ms. Hemmings’ cardiac arrest and the resulting anoxic brain injury. In other words, the trial judge failed to perform an adequate counterfactual analysis.

D.1 First ground of appeal: The trial judge erred in finding that the cardiac arrest was the result of an anesthetic accident or complication.

[203] Dr. Jamensky rests this ground of appeal on what this court identified in Sacks v. Ross as the first step of a court’s cause-in-fact analysis: namely, to determine what likely happened in actuality.[^70] As I understand this ground of appeal, it has two parts. First, Dr. Jamensky argues the trial judge erred in rejecting AFE as the probable cause of the cardiac arrest. Second, the trial judge failed to explain the “anesthetic accident or complication” that he accepted caused the cardiac arrest. With respect, I am not persuaded by either submission.

Amniotic fluid embolism

[204] As to the first part, the trial record discloses that the trial judge accurately described the contending positions of the parties about the cause of the cardiac arrest in para. 84 of his reasons, where he wrote:

This leads to determining what was the cause of Sophia Hemmings’ cardiac arrest. The plaintiffs’ theory and submission was that it was caused by the actions of Dr. Jamensky. The defendants’ theory and submission was that it was the result of an Amniotic Fluid Embolism (or AFE). It was not disputed Amniotic Fluid Embolism can occur when amniotic fluid enters the blood stream of the mother. This was submitted by counsel for the defendant physicians and I accept it to be an “extraordinarily rare event” (Defendant Physicians Written Submissions at paragraph 453). Only a few of the many medically trained witnesses at this trial had actually witnessed such an event. It results in sudden cardiorespiratory collapse.

[205] The trial judge reached his conclusion that AFE “was not what occurred here”[^71] on the basis that AFE (i) is a rare event, (ii) is used as a diagnosis of exclusion,[^72] and (iii) usually presents with a spectrum of conditions, one of which is coagulopathy. The trial judge’s approach was fully supported by the expert evidence adduced by the parties.

[206] The trial judge accurately noted, at para. 87 of his reasons, that Ms. Hemmings’ cardiac arrest was not accompanied by coagulopathy. In the trial judge’s view, the absence of coagulopathy “reduced the likelihood of an extraordinarily rare event [namely, AFE] becoming an even much less likely possibility.”[^73] Dr. Jamensky has not demonstrated that that finding was tainted by palpable and overriding error.

[207] Dr. Jamensky argues that the trial judge erred by not relying on the evidence of any of the anesthesiology experts to determine the causation issue, including excluding AFE as the cause of Ms. Hemmings’ cardiac arrest. The record does not bear out that submission. It was open to the trial judge to rely, as he did, at para. 88 of his reasons, on the evidence of Dr. Barrett, an obstetrician, regarding the cause of the cardiac arrest as Dr. Barrett had been qualified to give opinion evidence about causation issues.[^74]

[208] Moreover, the opinion of Dr. Barrett that AFE was not the likely cause of Ms. Hemmings’ cardiac arrest echoed opinions offered by expert anesthetists called by both the plaintiffs and the defendant physicians. Perhaps the best illustration of this can be found in the cross-examination of Dr. Paul Westacott, an expert anesthetist called by the defendant physicians. At one point in his cross‑examination, Dr. Westacott was taken to a portion of his expert report in which he agreed with Dr. Goldszmidt, whom the plaintiffs had called. The following exchange occurred:

Q. You say, at the bottom, under the "Comments on the second report of Dr. Goldszmidt"; do you see that?

A. Which paragraph?

Q. Second paragraph under the subheading, "Comments on the second report of Dr. Goldszmidt."

A. Yes.

Q. And what you say, at the end of that paragraph, Doctor, is:

"[...] I agree with Dr. Goldszmidt that from the evidence in the records makes that diagnosis --" that is amniotic fluid embolism" -- less likely."

Yes?

A. Yes, I agree with that. We didn't have any hard evidence of -- I say "we" – there was no hard evidence of amniotic fluid embolus. There was evidence of cardiomyopathy. So, therefore, I would consider that the evidence that you have a problem to be greater, and I would lean on that as the potential cause rather than the amniotic fluid embolism, realizing, of course, that I cannot rule amniotic fluid embolus out.

Q. I understand you can't rule anything out, Doctor, and nothing is certain in medicine –

A. That's right.[^75] [Emphasis added].

[209] The trial judge’s conclusion that the cardiac arrest was not caused by AFE was certainly open to the trial judge to make in light of the expert anesthesiology evidence filed.

Anesthetic accident or complication

[210] As to the second part of Dr. Jamensky’s submission, I am not persuaded that the trial judge failed to explain the “anesthetic accident or complication” which he accepted caused the cardiac arrest.

[211] Consideration of this ground of appeal starts by recalling two basic principles applicable to the review of the trial judge’s reasons on this issue. First, the factual, or “but for”, causation analysis must be applied in a robust common sense fashion and there is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury: Clements, at para. 9. Second, when reviewing a trial judge’s reasons, an appellate court must read the reasons in context, as a whole, in light of the live issues at trial, and together with the record created to ascertain whether they explain what the trial judge decided and why: G.F., at paras. 69-70.

[212] Applying those principles, do the trial judge’s reasons explain what the anesthetic accident was and how it gave rise to the hypoxia, hypotension, and cardiac arrest? When read as a whole, in light of the record, they do. While I would observe, with respect, that the trial judge’s reasons could have been much better organized in some areas, at the end of the day I am satisfied that they “explain what the trial judge decided and why” about the cause of Ms. Hemmings’ cardiac arrest.

[213] Three portions of the trial judge’s reasons, when read together and in light of the record, explain the “anesthetic accident and complication” that caused the cardiac arrest:

• First, the reasons explain why a general anesthetic should be used only as a last resort in the case of a C-section procedure:

I prefer and rely on the expert opinion evidence of Dr. Goldszmidt of needing to do everything available to avoid converting to a general anesthetic because of the dangers and risks (trial transcript pages 1715-1716);[^76]

• Next, the reasons contain a specific finding of the sequence of events that accompanied the conversion to a general anesthetic:

Rather than conclude either of the records are or are not accurate, I prefer to rely on the sequence of known events. That is, spinal anesthesia was followed by an initial incision, followed by agitation, administering Midazolam, a decision made to convert to a general anesthetic, sister Samantha Hemmings’ presence and observations in the operating room, administering the general anesthetic, the difficult airway and delay in intubation, the birth, dropping blood pressure and pulse, cardiac arrest and then efforts to revive Sophia Hemmings. The cardiac arrest occurred before Dr. Jamensky began performing chest compressions;[^77]

• Finally, the reasons detail the consequences of the attempts at intubation on Ms. Hemmings’ blood pressure (hypotension) and oxygen levels (hypoxia):

The steps necessary to intubate required filling the patient’s lungs with oxygen. This was to be done by placing a mask over the patient’s mouth and having her take several deep breaths of air enriched with oxygen. The intent is have this oxygen in the lungs to be processed while the medication, in this case propofol and succinyl choline renders the patient unconscious and unable to breath on their own. While unconscious and not breathing, Dr. Jamensky was required to insert the tube which will carry oxygen to the spot where it can fill both lungs using the laryngoscope. The tube must be inserted through the vocal cords. The uncontested expert anesthetic evidence is to have the first effort be the best as the patient’s lungs are processing the available oxygen, a process called desaturation.

As stated above, Dr. Jamensky’s first attempt failed. An effort was made to add oxygen to Sophia Hemmings’ lungs with a laryngal airway mask before the second attempt with a larger blade on the laryngoscope succeeded.

I find, as Dr. Goldszmidt testified, these events distracted Dr. Jamensky from Sophia Hemmings’ falling blood pressure and cardiac function…[^78]

The birth must have also likely occurred while or after Dr. Jamensky had administered the general anesthetic and Sophia Hemmings was no longer moving. Dr. Jamensky was dealing with her high airway pressure, inserting a suction catheter and then a bronchoscope to verify the tube placement in Sophia Hemmings’ throat. Dr. Jamensky was also dealing with dropping end-tidal CO2, blood pressure and cardiac function caused by the general anesthetic, in combination with the spinal anesthetic. My conclusion was that Dr. Jamensky’s decisions were not errors of judgment, but rather conduct below the standard of care for an anesthesiologist possessing a reasonable level of knowledge, competence and skill in his field or specialty. [Emphasis added].[^79]

[214] In his evidence, Dr. Goldszmidt explained the anesthetic complications that, in his opinion, caused Ms. Hemmings’ cardiac arrest:

A: So I think it's a combination of several things that all came together. So she had a surgical spinal block in place which causes dilation of the blood vessels. They open up; it may be associated with low blood pressure.

On top of that she was given general anesthesia which also can do that by itself, but they potentiate each other. So I would argue someone with a full block, who gets general anesthesia on top of that, hypotension, low blood pressure is to be expected. I would be expecting that and be prepared to manage. That is the first thing.

So there's that happening. And what we didn't know but found out subsequently is that there's also a diagnosis of dilated cardiomyopathy that is made in the ICU when she gets an echocardiogram.

So two full anesthetic plus cardiomyopathy, it is not surprising that significant hypotension developed. Also, during all of these airway manoeuvres I would have expected some degree of hypoxia, which is not going to help the situation.

So I would expect trouble oxygenating her. I would expect their levels to drop right after induction under the best of circumstances, and these were far from the best of circumstances, unfortunately, given all the airway management difficulties which weren't anticipated.

Q. You mentioned there, and I just want to make sure I understood it. You said that the spinal block and the general anesthetic potentiate each other?

A. Yes, they both lower blood pressure, and you put them together you get an additive effect at a minimum.

Q. I'm trying to put the pieces together. So that would cause a drop in blood pressure?

A. Yes. How profound, it's hard to predict. But most definitely a drop…[^80]

[215] Dr. Barrett gave a similar opinion about the cause of Ms. Hemmings’ cardiac arrest. Given that Dr. Westacott, an expert anesthetist called by the defendant physicians, referred to Dr. Barrett’s opinion and the trial judge tracked some of Dr. Barrett’s language in his reasons, the latter’s opinion evidence merits quoting at some length:

Q. Thank you. So let me start by asking you, Dr. Barrett, did you reach a conclusion on the likely cause of Ms. Hemmings' profound anoxic brain injury?

A. Yes, I did.

Q. And what was that conclusion?

A. It's in my opinion, you know, you can never be sure. These are one of these things --there's always going to be some element of doubt, in my opinion, as to what caused this tragic event. In my opinion, though, on the strong balance of probability, the cause was a cardiac arrest as a consequence of an anesthetic problem subsequent to a difficult and challenging administering of a general anesthetic on the operating table.

That was my main -- on the balance of probability, much more likely than not that was the cause in this case.

Q. And in terms of what you're speaking about with respect to the anesthetic problem, Doctor, can you assist the Court as to what is the stage that you say that you believe there might have been a problem with the anesthetic?

A. Well, I believe the problem was in the conversion to the general anesthetic...[^81]

In my opinion, for these reasons, in this case the most likely cause was an anesthetic accident. There was no evidence of laboratory abnormality of coagulation. There was a clear anesthetic issue related to the intubation. And so on that basis, in my opinion, although, you know, it is reasonable to think of it at the time – you know, at the time that it happens, you haven't got the lab and clinically you have to think it could be - but on the balance of probability, in my opinion, this article [Trial Ex. 12] clearly puts the most likely cause to be the anesthetic complication that occurred in this case.[^82]

Q. And, Dr. Barrett, I want to put up on the screen your second report, page 15, at the bottom. So starting in the middle of the paragraph there that is at the very end of this page, you said:

"The cardiorespiratory arrest that occurred in this case was eminently explainable as a complication of a poorly conducted and inappropriately chosen anaesthetic and poor airway management [...]"

You said that?

A. That is what I wrote.

Q. And you know as an expert that you must only provide an opinion on matters that are within your expertise?

A. Correct.

Q. You are not an expert in anesthesiology?

A. Correct.

Q. You can't say whether the anesthetic in this case was poorly conducted?

A. What I can say is that, in all my experience as an obstetrician, to convert an anesthetic to a general anesthetic when you have already got a block is a poor choice because that is my remit. I can also comment that I know there was a difficult intubation, and that is what I can say.[^83] [Emphasis added].

[216] Finally, Dr. Westacott gave a similar explanation for the cause of the cardiac arrest drawing, in part, on the opinion of Dr. Barrett. During his cross-examination, the following exchanges took place:

Q. Okay. And in your December 10 report, on page 4, Doctor, if you've got that in front of you.

A. I have, yes.

Q. Okay. At item -- the numbered paragraph 3 there, do you see where I'm looking?

A. Yes.

Q. You said:

"It is my opinion that the 'Anoxic brain injury' referred to was more likely caused by the initially low blood pressure that occurred following the induction of anesthesia."

Yes?

A. I believe that, yes, that is correct.

Q. Okay. And that's what we – what I'm talking about with hypotension, right?

A. That is correct, yes.

Q. Okay. And you went on, at the bottom of that page, Doctor, under -- there's a heading "Comments on the report of Dr. Barrett"?

A. Yes.

Q. The second paragraph that starts, "Furthermore"?

A. Yes, I have that paragraph.

Q. Okay. What you said there, you said:

"Furthermore he" -- being Dr. Barrett "-- suggests that if the anesthetic had been provided by an 'Anesthesiologist who completed the anesthetic under regional block without resorting to general anesthesia, then almost certainly she would not have suffered from the cardiac arrest.'"

And you said:

"I agree with this statement."

A. Yes, I do.

Q. Okay. So we can agree, then, based on your expertise in anesthesiology, Doctor, that if Ms. Hemmings had not been administered a general anesthetic that evening by Dr. Jamensky, that almost certainly she would not have suffered the cardiac arrest, yes?

A. Yes, but if you look at my preceding comments, you see that I am relating this to the potential cause being a cardio -- undiagnosed cardiomyopathy.[^84] [Emphasis added].

[217] Those passages from the reasons and the evidence at trial satisfy me that the trial judge explained the “what” and the “why” of his conclusion that an anesthetic accident and complication caused Ms. Hemmings’ cardiac arrest. The foundations of his decision on that issue are discernable when looked at in the context of the evidence, the submissions of counsel, and the history of how the trial unfolded: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 17, quoting Doherty J.A. in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 525.

[218] One final comment needs to be made about this ground of appeal. Dr. Jamensky argues that the trial judge erred in not making a finding as to whether the times he recorded in his Anesthetic Record were accurate. Had the trial judge found that they were accurate, then no foundation would exist for the plaintiffs’ theory of the cause of the cardiac arrest. I see no merit in this fact-focused submission.

[219] Two main records were prepared about events that took place during the C‑section: a cardio-resuscitation record created contemporaneously with the events by the Code Blue team who responded to the cardiac arrest; and an Anesthetic Record prepared by Dr. Jamensky after Ms. Hemmings had been taken to the ICU. Dr. Jamensky’s record was based, in part, on data recorded by the anesthetic equipment. Times for some events differed in the two records.

[220] The trial judge explained, at para. 89, why he was not prepared to accept Dr. Jamensky’s submission that the record he prepared was the only place the court should look for vital signs:

As noted, those record are incomplete and undermine the reliability of Dr. Jamensky’s evidence. Rather than conclude either of the records are or are not accurate, I prefer to rely on the sequence of known events.

[221] It was open to the trial judge to make that finding on the evidence before him. I see no palpable and overriding error in it.

[222] Accordingly, I am not persuaded by this ground of appeal.

D.2 Second ground of appeal: The trial judge failed to perform any analysis of factual causation in respect of Dr. Jamensky’s breaches of the standard of care. (Inadequate counterfactual)

The positions of the parties

[223] As his final ground of appeal, Dr. Jamensky submits the trial judge erred in finding that his act of converting the regional anesthetic to a general was a “direct cause” of Ms. Hemmings’ cardiac arrest because there was no evidence that any further or delayed steps by him would have calmed Ms. Hemmings, thereby avoiding the need to convert to a general anesthetic to allow the C-section to proceed.

[224] The respondents counter by arguing there was ample evidence before the trial judge that, had Dr. Jamensky attempted other steps to calm Ms. Hemmings, they more likely than not would have been effective.

Analysis

[225] To assess this ground of appeal I start by recalling the observations made by the Supreme Court of Canada in Clements, at para. 10:

A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss.

[226] To that I add, again, the principle set out in Clements, at para. 9, that factual, or “but for”, causation must be applied in a robust common sense fashion and there is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. Those two principles apply to a court’s consideration of its “but for” analysis of what would likely have happened had the defendant not breached the standard of care in the way found by the trial judge: Sacks, at para. 47.

[227] While the addition of a few more lines in the trial judge’s reasons referencing the evidence relied on to support his conclusion that Dr. Jamensky’s negligence was the “direct cause” of Ms. Hemmings cardiac arrest would have been salutary, as the respondents point out in their factum the record contains evidence that efforts to calm an anxious patient undergoing a C-section usually are successful. That evidence was given by two expert anesthetists – Dr. Goldszmidt, whom the plaintiffs called, and Dr. Stephen Halpern, whom the defendant physicians called – and by Dr. Jamensky:

Dr. Goldszmidt:

Q. You mentioned earlier on in your examination that you had had occasion in the course of your practice to treat patients who are panicky or who are complaining of being unable to breathe?

A. Yes. I've had a number of patients who have this numb chest phenomenon and they say I can't breathe and usually explain it to them very quickly and talk them through it. I've never had to do very much to reassure somebody. I may have had to reassure them several times because of it keeps coming up. But once you get through the initial part, get the partner in, get the baby out, once the baby is out and they can focus on the baby, that's usually the end of the anxiety.

Q. And in those circumstances have you ever had occasion where you've had to convert such a patient to a general anesthetic?

A. You mean for anxiety?

Q. Yes.

A. I have never, and I am not aware of that ever having happened at our institution.[^85]

Dr. Halpern:

Q. And it is important to reassure the patient calmly, yes?

A. Yes.

Q. And slowly, right?

A. It is important to reassure the patient.

Q. To explain to them the sensation [shortness of breath] that they are feeling, yes?

A. If you can, yes.

Q. And to make sure, calmly and methodically, you can explain that to them so that they understand what they are actually feeling, yes?

A. If you can, yes.

Q. And normally, that process of calmly reassuring the patient about what they are feeling is sufficient to address their concerns, right?

A. Yes.[^86]

Dr. Jamensky:

Q. And you'd agree with me as well that reassurance is usually all that is required to calm the patient?

A. I would say that, I cannot give an exact number, but the majority of time, all you have to do is reassure the patient, sometimes sit them up a little bit, and that's all that's needed.

Q. So, again, maybe phrase it a different way, most patients can be reassured, yes?

A. Yes.[^87] [Emphasis added].

[228] “But for” causation need only be established on the balance of probabilities; the law does not require demonstrating certitude or scientific precision. Accordingly, the record supports the trial judge’s conclusion that Dr. Jamensky’s negligence was the “direct cause” of Ms. Hemmings’ injuries.

[229] Dr. Jamensky contends the trial judge’s reasons do not permit such a conclusion because of statements the trial judge made when dealing with the allegations of negligence against Dr. O’Brien. In considering whether Dr. O’Brien should have continued the delivery under the regional anesthetic, the trial judge wrote, at para. 62:

The court can only speculate on the success this manner of delivery of the child as there was insufficient evidence about whether or how it would have avoided an anesthetic complication and subsequent cardiac arrest. There was evidence the safest method of a caesarean section delivery is by regional anesthetic. There was also evidence the least safest method is converting to a general anesthetic after or while a regional anesthetic has been utilized.

Dr. Jamensky argues that this comment by the trial judge means that a conclusion the general anesthetic caused Ms. Hemmings’ outcome was not available.

[230] I do not read that passage in the same way as the appellant. I accept the respondents’ submission that the trial judge made those comments in the context of assessing the conduct of the surgeon who conducted the C-section, not in the context of assessing the conduct of the anesthetist who bore the responsibility for attempting to calm the patient. Accordingly, I am not persuaded by this ground of appeal.

E. Conclusion

[231] For the reasons set out above, I would dismiss Dr. Jamensky’s appeal from the Judgment.

X. DISPOSITION

[232] By way of summary, for the reasons set out above, I would:

• Allow the Hospital’s appeal, set aside the Judgment against it, and dismiss the action against the Hospital;

• Allow Dr. Padmore’s appeal, set aside the Judgment against him, and dismiss the action against him; and

• Dismiss Dr. Jamensky’s appeal and vary para. 1 of the Judgment to state that he is solely responsible to pay the respondents the damages as agreed to by the parties in the amount of $12 million.

[233] As to the costs of the appeals, based upon the agreement of the parties I would award the Hospital its costs of its appeal (C70752) fixed in the amount of $30,000, plus applicable taxes.

[234] Given the divided success in respect of the appeal by the two appellant physicians, who were represented by the same counsel, I would order that each party to the physician’s appeal (COA-22-CV-0325) bear their own costs of the appeal.

[235] By costs Order dated January 4, 2023, the trial judge awarded the successful plaintiffs costs fixed in the amount of $4,218,052.00 “all in”, with two‑thirds ($2,812,034.67) payable by Drs. Padmore and Jamensky and one-third ($1,406,601.33) payable by the Hospital.

[236] The only specific request before us regarding the costs of the trial was made by the Hospital, which seeks its costs below of $1,116,302.02 in the event its appeal is granted. The respondents and appellant physicians did not make any submissions about how the costs below should be treated in the event of divided success.

[237] The trial judge’s cost endorsement dated January 4, 2023 discloses that the proceeding to fix the costs below involved numerous issues, of some complexity, and a large volume of documents. Having reviewed that endorsement, in my view, the trial judge is best placed to assess the fair and reasonable costs for the proceeding below. I therefore would remit to the trial judge the issue of any revision to the order of costs below in light of our disposition of the appeals.

Released: April 30, 2024 “D.B.”

“David Brown J.A.”

“I agree. Gary Trotter J.A.”

“I agree. J. George J.A.”

[^1]: Amanda Black et al., “The Cost of Unintended Pregnancies (CoUP) in Canada: Estimating Direct Cost, Role of Imperfect Adherence, and the Potential Impact of Increased Use of Long-Acting Reversible Contraceptives” (2015) 37:12 J Obstet Gynaecol Can at 1086.

[^2]: Transcript, Vol. 6, pp. 119-121.

[^3]: Transcript, Vol. 29, p. 112.

[^4]: Exhibit Book, Ex. 28.

[^5]: Fridman, at p. 529.

[^6]: Fridman, at p. 534.

[^7]: Reasons, at para. 111.

[^8]: Reasons, at para. 114.

[^9]: In Arndt, the Supreme Court re-affirmed the approach adopted in Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880, which asks whether a reasonable person in the circumstances of the plaintiff would have consented to the proposed treatment if all the risks had been disclosed.

[^10]: The evidence about Ms. Hemmings’ personal circumstances was canvassed by counsel in their closing submissions and the trial judge engaged counsel on those submissions. See: Plaintiffs’ closing, Transcript, Vol. 41, pp. 42-58; Defendant physicians’ closing, Vol. 42, pp. 155-157; Vol. 43, pp. 27-41.

[^11]: Transcript, Vol. 18, pp. 52-53.

[^12]: Transcript, Vol. 18, pp. 53-54.

[^13]: Transcript, Vol. 18, pp. 52-54.

[^14]: Transcript, Vol. 21, pp. 117-118.

[^15]: Transcript, Vol. 21, p. 28.

[^16]: Transcript, Vol. 21, p. 28.

[^17]: Transcript, Vol. 3, p. 179.

[^18]: Transcript, Vol. 5, p. 30.

[^19]: Transcript, Vol. 5, pp. 75-76.

[^20]: Transcript, Vol. 7, pp. 169-175.

[^21]: Transcript, Vol. 26, p. 54.

[^22]: Transcript, Vol. 28, p. 115.

[^23]: Transcript, Vol. 30, p. 134.

[^24]: Reproduced at para. [96] above.

[^25]: Reasons, at para. 92.

[^26]: Plaintiffs’ Written Submissions, para. 254; Transcript, Vol. 43, p. 243.

[^27]: Plaintiffs’ Written Submissions, paras. 259 and 264; Transcript, Vol. 43, p. 244.

[^28]: Plaintiffs’ Written Submissions, paras. 269-270.

[^29]: Transcript, Vol. 41, p. 161.

[^30]: Transcript, Vol. 43, pp. 118-119.

[^31]: Reasons, para. 77.

[^32]: Reasons, para. 76.

[^33]: Reasons, para. 116.

[^34]: Reasons, para. 88.

[^35]: Respondents’ factum, para. 41.

[^36]: Reasons, para. 67.

[^37]: Transcript, vol. 25, p. 57.