Suwary v. Librach, 2015 ONSC 2100

CITATION: Suwary v. Librach, 2015 ONSC 2100

COURT FILE NO.: CV-05-291159

DATE: 20150416

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROBERT GREGORY SUWARY AND KYLIE SUWARY, MINORS BY THEIR LITIGATION GUARDIAN, KIMBERLY LONG-SUWARY, ROBERT EDWARD SUWARY, KATIE BUCHANAN AND THE SAID KIMBERLY LONG-SUWARY PERSONALLY

Plaintiffs

• and –

CLIFFORD LIBRACH

Defendant

Jerome R. Morse and Lori Stoltz, for the Plaintiff

Frank McLaughlin and Eli D. Mogil, for the Defendant

HEARD: April 22 to 25, May 1 and 2, May 5 to 8, May 12, 14 and 15, May 20 to 22, May 26 to 30, June 2, 4, 27 and August 1, 2014

WHITAKER J.

REASONS FOR JUDGMENT

TABLE OF CONTENTS

1. OVERVIEW
2. FACTS a. Chronology of Events on January 29, 1999 b. Initial Trial and Appeal
3. ISSUES
4. POSITIONS OF THE PARTIES
5. GENERAL PRINCIPLES APPLICABLE TO MEDICAL NEGLIGENCE ACTIONS a. Informed Consent b. Duty of Care c. Standard of Care d. Causation
6. ANALYSIS a. Expert evidence and credibility b. Did Dr. Librach’s care fall below the accepted standards of practice with respect to his recognition of risk factors relevant to Ms. Long-Suwary’s pregnancy? i. Failure to properly consider Ms. Long-Suwary’s obstetrical history ii. Failure to properly consider the key features of Kylie’s birth iii. Failure to recognize and document a “Risk B” pregnancy iv. Failure to properly assess fetal size v. Summary: Risk factors c. Did Dr. Librach fail to obtain Ms. Long-Suwary’s informed consent to the vacuum-assisted delivery? i. Facts regarding the issue of informed consent ii. Did Dr. Librach fail to obtain Ms. Long-Suwary’s informed consent? iii. If actual consent was not obtained, would a reasonable person in Ms. Long-Suwary’s position have consented? d. Did Dr. Librach’s decision to proceed by vacuum-assisted delivery fall below the accepted standards of practice? i. Did Dr. Librach apply the vacuum without medical indication? ii. Dr. Librach’s reasons for obstetrical intervention iii. What was the standard for operative vaginal intervention in January 1999? iv. What credible evidence is there regarding the information contemporaneously available to those present in the labour room pertaining to the FHR? v. How many decelerations were there between 0330 and 0341, how were they spaced in that interval, and how are they properly characterized?
7. Number and timing of decelerations
8. Nature of the decelerations vi. Even if Dr. Librach was non-reassured by the FHR, should he have applied a scalp clip prior to resorting to the use of the vacuum? vii. Had the scalp clip revealed a worrisome FHR, should Dr. Librach have attempted intrauterine resuscitative measures prior to resorting to the use of the vacuum? e. If use of the vacuum was medically indicated, did Dr. Librach’s decision to proceed with vacuum-assisted delivery in the labour room fall below the accepted standards of practice? f. If any of Dr. Librach’s decisions or actions fell below the accepted standards of practice, did those decisions or actions cause the injuries to Robert? i. Nature, extent, and cause of Robert’s brain injury ii. Probable timing and mechanism of Robert’s brain injury iii. No acute near total brain injury but for Dr. Librach’s failure to transfer to the delivery room for vacuum attempt
9. CONCLUSIONS

1. OVERVIEW

[1] This is an action in medical negligence. The plaintiff infant Robert Suwary (“Robert”) suffered a catastrophic brain injury caused by an almost complete interruption of blood supply (and, therefore, of oxygen) to his brain during birth. In technical terms, this is known as an acute near total asphyxial event. The injury resulted from an occult cord prolapse which occurred in the minutes before birth.

[2] An occult cord prolapse occurs when the umbilical cord falls down beside the head rather than remaining around the fetus’s mid-section. It can then, as in this case, become caught between the head and the uterine wall, where it is subject to compression. When the prolapse is occult, it cannot be seen from a physical examination of the patient.

[3] The defendant physician, Dr. Clifford Librach (“Dr. Librach”), provided medical services to Robert and his mother, Kimberly Long-Suwary (“Ms. Long-Suwary”). The other plaintiffs are family members.

[4] Dr. Librach is alleged to have committed various acts of medical malpractice in connection with the birth of Robert and the labour of Ms. Long-Suwary.

[5] The plaintiffs’ position is that Dr. Librach unnecessarily prolonged Robert’s birth, causing irreversible brain damage, and that his medical management of the labour and delivery as well as related aspects of prenatal care fell below accepted standards of practice.

[6] Dr. Librach maintained that Robert’s injuries were caused by a number of factors that were neither predictable, nor his responsibility. His position is that these occurred despite his best efforts and strict adherence to all appropriate standards of care.

2. FACTS

[7] The events between 0330 and 0341 were the subject of much evidence at trial and are heavily disputed by the parties. What follows is therefore a summary of the chronology and events that are not disputed. The disputed facts and chronology are dealt with at length under the “Analysis” portion of these reasons.

a. Chronology of Events on January 29, 1999

[8] Ms. Long-Suwary was transported to Women’s College Hospital (the “hospital”) after midnight on January 29, 1999. She was in the first stage of labour, the dilation of the uterus.

[9] Ms. Long-Suwary was first attended by an obstetrical resident, Dr. Sarah Ferguson (“Dr. Ferguson”), and an obstetric nurse, Ms. Laura Lee (“Nurse Lee”).

[10] Ms. Long-Suwary was placed in the delivery room. This was not the operating room (“O.R.”) in which operative procedures would occur.

[11] Responding to a page, Dr. Librach arrived in the delivery room at the hospital around 0230.

[12] While at the hospital and around 0300, Ms. Long-Suwary moved to the second stage of labour. This is the pushing stage. Ms. Long-Suwary requested pain relief and was given a spinal epidural before 0300.

[13] Ms. Long-Suwary was considered to be progressing well and her membranes were artificially broken. Dr. Librach performed a vaginal examination shortly after he arrived. Ms. Long-Suwary’s cervix was totally dilated, her membranes were clear, and the fetal head was in the right position, although Robert was presenting face up, in the right occiput posterior position (“ROP”).

[14] Ms. Long-Suwary was asked to begin pushing. She recalls being told to begin pushing, but does not recall what else was said at this point.

[15] Ms. Long-Suwary had maternal and fetal heart monitors attached to her abdomen.

[16] Fetal heart rate (“FHR”) is described by the monitor for those in the room in three ways - sound, a digital interface, and etchings on a paper roll.

[17] Between 0330 and 0341 the fetal heart rate monitor revealed some decelerations in the heart rate. The number, nature, and duration of those decelerations are disputed. Also disputed is whether the FHR pattern should have caused Dr. Librach to become non-reassured.

[18] At 0341, Dr. Librach decided to intervene by applying a vacuum extractor to Robert’s scalp. This instrument is as it sounds – a low pressure vacuum that creates a pull or traction on the fetal scalp in an effort to position the fetal head so as to rotate and draw the fetus out. The vacuum was used in the delivery room.

[19] Dr. Librach attempted the vacuum procedure three times unsuccessfully. This took eight minutes in total, from 0341 to 0349. In keeping with governing policy guidelines which recommend no more than three trials with a vacuum, Dr. Librach removed the instrument.

[20] The FHR continued to decelerate with each pull on the vacuum. Following the removal of the vacuum, Robert was in a state of bradycardia.

[21] Dr. Librach moved Ms. Long-Suwary down the corridor to the O.R., where mid-forceps or Caesarian section (“C-section”) delivery could be attempted.

[22] At 0401, Dr. Librach applied forceps and achieved a mid-pelvic delivery. The head was rotated so Robert could be delivered in the correct face down position. At 0402, following the forceps rotation, the FHR returned to normal range.

[23] Robert was born at 0406. When delivered he had no detectable heart rate. He began to breathe six minutes after delivery. His Apgar score was 0.

[24] The oxygen deprivation Robert suffered during birth caused brain damage. Robert’s brain injury presents as one of the most severe forms of cerebral palsy, affecting his entire body.

[25] Robert’s scope of disability includes cognitive communication delays and learning disabilities. He functions below age level. He has limited expressive speech, articulation difficulties, and feeding/swallowing challenges.

[26] There is no doubt that the injuries suffered by Robert have, as the plaintiffs submit, fundamentally changed the lives of those in Robert’s family and of Robert himself.

b. Initial Trial and Appeal

[27] The plaintiffs originally brought a medical negligence action against Nurse Lee, the Women’s College Hospital, and Dr. Librach. After 38 days of trial before another judge, the action was dismissed on June 19, 2009. The plaintiffs successfully appealed the trial judge’s decision with respect to Dr. Librach’s liability. The appeal was dismissed with respect to the plaintiffs’ claims against the nurse and the hospital. By decision dated October 31, 2011, the Court of Appeal found the first trial judge erred in a number of respects, most significantly, in making inconsistent findings of fact concerning what was said, done, and heard in the delivery room.

[28] On the direction of the Court of Appeal, the matter was remitted to the Superior Court for retrial on the issue of Dr. Librach’s liability.

[29] The remitted matter was tried for a second time during 28 days of evidence and with written and closing argument made at a later date.

3. ISSUES

[30] Dr. Librach cast the central issue in this action as “whether there was a proper, bona fide basis for [his] exercise of clinical judgment to intervene and expedite the delivery with the vacuum.”

[31] The plaintiffs argued that there are three central issues in this action: (1) whether Dr. Librach’s indication for vacuum met accepted standards of practice; (2) whether Dr. Librach’s failure to transfer Ms. Long-Suwary to the operative delivery room before using the vacuum met accepted standards of practice; and (3) whether Dr. Librach failed to obtain Ms. Long-Suwary’s informed consent.

[32] I note that the issue of damages has been resolved between the parties on consent. The only issues before me were the applicable standard of care, whether it was breached, and causation.

[33] I have addressed the following questions in this order:

1. Did Dr. Librach’s care fall below the accepted standards of practice with respect to his recognition of risk factors relevant to Ms. Long-Suwary’s pregnancy?

2. Did Dr. Librach fail to obtain Ms. Long-Suwary’s informed consent to the vacuum-assisted delivery?

3. Did Dr. Librach’s decision to proceed by vacuum-assisted delivery fall below the accepted standards of practice?

4. If use of the vacuum was medically indicated, did Dr. Librach’s decision to proceed with vacuum-assisted delivery in the delivery room fall below the accepted standards of practice?

5. If any of Dr. Librach’s decisions or actions fell below the accepted standards of practice, did those decisions or actions cause the injuries to Robert?

4. POSITIONS OF THE PARTIES

[34] The positions of the parties with respect to the various issues and sub-issues are dealt with at some length below. However, it is appropriate at this point to set out the broad positions that the parties to this litigation took in the course of trial.

Plaintiffs

[35] The plaintiffs took the position that Dr. Librach’s medical management of Ms. Long-Suwary’s pregnancy, labour, and delivery of Robert fell below accepted standards of practice and caused Robert’s permanent disabilities. Specifically, the plaintiffs contended that Dr. Librach proceeded with a vacuum-assisted operative delivery with a fetus in the mid-pelvis, OP position, and at high risk of fetal macrosomia without indications or an informed consent from Ms. Long-Suwary.

[36] The plaintiffs alleged that Dr. Librach failed to meet accepted standards of practice in the following ways:

1. application of the vacuum without indication;

2. failure to apply a scalp clip when confronted with difficulty picking up a FHR;

3. if indicated by the scalp clip (i.e. if tracing proved abnormal), failure to attempt intrauterine resuscitative measures (“IR measures”), including lateral repositioning of Ms. Long-Suwary;

4. failure to obtain and/or consider other important information relevant to his decision to apply the vacuum: fetal station (mid-pelvis); fetal presentation (OP); and fetal size (increased risk of macrosomia);

5. failure to transfer Ms. Long-Suwary to the O.R. before attempting delivery with the vacuum; and

6. failure to obtain Ms. Long-Suwary’s informed consent to attempt operative delivery with the vacuum in the delivery room.

Defendant

[37] Dr. Librach took the position that it was well within the standard of care to proceed to operative vaginal delivery with the vacuum in the circumstances. He had Ms. Long-Suwary’s general consent to any operations or procedures associated with delivery, and in light of the exigent circumstances, quickly informed her of his concerns and his reason for proceeding by vacuum. In any event, Dr. Librach took the position that a reasonable person in Ms. Long-Suwary’s position would have consented.

[38] Dr. Librach contended that there was ample evidence of a pattern of repetitive, deep decelerations of the fetal heart rate prior to 0341. The evidence establishes that the fetal heart rate pattern was non-reassuring and raised his concern for fetal well-being. This alone was an appropriate indication for intervention, and there was no need to apply a scalp electrode or to attempt IR measures in the circumstances.

[39] There was similarly no need to incur additional delay by moving Ms. Long-Suwary to the O.R. before attempting the vacuum delivery. It was within the standard of care, as indicated in hospital and Society of Obstetricians and Gynecologists of Canada (“SOGC”) guidelines, to proceed with vacuum delivery in the delivery room rather than the O.R. The eight minute delay necessitated by the move to the O.R. when the vacuum proved unsuccessful was delay that would have been incurred anyway before forceps rotation could be attempted.

5. GENERAL PRINCIPLES APPLICABLE TO MEDICAL NEGLIGENCE ACTIONS

a. Informed Consent

[40] Physicians are required to obtain the informed consent of their patients to medical treatments. In Hopp v. Lepp, 1980 CanLII 14 (SCC), [1980] 2 S.C.R. 192 at p. 210, the Supreme Court summarized this fact-specific obligation as follows:

… in obtaining the consent of a patient for the performance upon him of a surgical operation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed opera­tion, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation. However, having said that, it should be added that the scope of the duty of disclosure and whether or not it has been breached are matters which must be decided in relation to the circumstances of each particular case.

[41] The requirement to obtain a patient’s informed consent is derived from the important right of self-determination belonging to all competent adults. It is “plainly intended to ensure the freedom of individuals to make choices concerning their medical care”: Malette v. Shulman, [1980] O.J. No. 450 (C.A.) at para. 19 (see generally paras. 17-19).

[42] In order to establish a claim on the basis of a failure to obtain informed consent, a plaintiff must prove that the physician failed to adequately disclose a material risk or indicated treatment alternative: Nichols v. Young, [2002] O.J. 515 (S.C.) at paras. 62-63, aff’d [2003] O.J. No. 4376 (C.A.).

[43] It is important to note that a physician need only disclose treatment alternatives that the physician believes will offer the patient an advantage. In Cameron (Litigation Guardian of) v. Louden, [2000] O.J. No. 858 (S.C.) at para. 285, the court described this duty as follows:

One further aspect of the physician’s duty of disclosure is to advise the patient of “any available alternatives to the treatment being proposed, as well as the material risks associated with those alternatives”; however this extends only to alternatives which the physician believes “offer some advantage and are reasonably likely to achieve a beneficial result.” (Picard, E.I. and Robertson, G.B. Legal Liability of Doctors and Hospitals in Canada, 3rd edition (Agincourt: Carswell, 1996), p. 130).

[44] Whether a physician has an obligation to disclose alternative treatment options will depend on the specific factual circumstances: “[i]t is impossible to delineate the reach of a doctor’s disclosure obligation without regard to the facts and circumstances of specific cases”: Van Dyke v. Grey Bruce Regional Health Centre (2005), 2005 CanLII 18841 (ON CA), 255 D.L.R. (4th) 397, [2005] O.J. No. 2219 (C.A.) at para. 67, leave to appeal refused, [2005] S.C.C.A. No. 335.

[45] An important consideration is whether the procedure is an elective one. In Kungl v. Fallis, [1989] O.J. No. 15 (H.C.J.) at para. 152, the plaintiff accused the doctors of failing to inform her of the risks inherent in a mid-forceps delivery. Associate Chief Justice Callaghan (as he then was) held that if the procedure is not “truly elective” there can be no complaint of a lack of informed consent:

In this case, I am inclined to the view that while a specific consent might be required for the more extensive, invasive operation of caesarean section, the use of forceps in delivery is a standard method of birthing and is covered by the general consent granted. There was only one “procedure” involved, namely the vaginal delivery of the infant by whatever method and that is exactly what Mrs. Kungl consented to in her general consent form. Accordingly, this is not a question of an elective procedure at all, or a more extensive procedure, or a question of whether to undergo the whole procedure or not. The consent was given with respect to the process of birth and delivery either manually or by forceps. In my view, consent to the use of forceps in the course of vaginal delivery must be contained within the general consent to a birthing procedure. [emphasis added]

[46] In Goguen v. Crowe, [1987] N.S.J. No. 207 (S.C. T.D.), the plaintiff argued that there had been no informed consent for a forceps delivery of the plaintiff’s second child. In dismissing the claim, the court at para. 10 relied on the fact that the delivery of a child is not an elective procedure and that having already delivered a child by forceps, the defendant doctor was entitled to assume, in the absence of any questions, that the plaintiff must have understood the procedure:

It seems to me that if a physician is entitled to make certain assumptions as to knowledge of a patient in the case of a surgical procedure, the case is even stronger where a physician is dealing with a patient who has already experienced a forceps delivery…

[47] Citing Kungl, Rapson J. in Look (Next Friend of) v. Himel, [1991] O.J. No. 1073 (Gen. Div.), reached the same conclusion:

Like the Kungl and Goguen cases, in this case there was an option between methods of conducting the procedure involved. Mrs. Look had consented to the procedure of delivering a baby. The methods of delivery used were standard ones and covered by the general consent. The methods used cannot be classified as elective procedures. For these reasons the plaintiffs cannot complain of a lack of informed consent.

[48] Even where a plaintiff establishes that the doctor failed to adequately disclose a material risk or treatment alternative, the informed consent claim will still fail unless that lack of disclosure caused the plaintiff’s damages: Nichols, supra at paras. 70-71 and 77.

[49] A modified objective test is used to determine causation pertaining to informed consent. A plaintiff must satisfy both a subjective and objective element of the test. Subjectively, the plaintiff must lead evidence that if properly informed of the risk in question, he or she would not have agreed to the procedure. The plaintiff must also establish that objectively, a reasonable person in the plaintiff’s circumstances would not have consented to the procedure. Only then is a court entitled to conclude that the injury would have been avoided with disclosure of the allegedly undisclosed information: Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880 at page 15; Arndt v. Smith, 1997 CanLII 360 (SCC), [1997] 2 S.C.R. 539 at para. 17; Nichols, supra at para. 63.

b. Duty of Care

[50] With respect to the provision of health care during child birth, the plaintiff must show there was a duty owed by a health care provider to an infant born live, in relation to medical care provided during labour and delivery. The plaintiff must then show the duty was breached, causing compensable damage: Ediger v. Johnston, 2013 SCC 18, [2013] 2 S.C.R. 98 at para. 24.

[51] Duty of care is described in Crawford (Litigation Guardian of) v. Penney, [2003] O.T.C. 16, [2003] O.J. No. 89 (S.C.) at paras. 205-209:

[205] The decisions of the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79, [2002] 1 W.W.R. 221 and Edwards v. Law Society of Upper Canada (2001), 2001 SCC 80, 206 D.L.R. (4th) 211, outline the approach to be taken by courts in assessing whether a defendant owes a duty of care to a plaintiff. The Supreme Court considered and modified the test for duty of care set out by the House of Lords in Anns v. Merton London Borough Council, 1978 CanLII 745 (AB QB), [1978] A.C. 728.

[206] The first stage of the test requires the court to consider whether the harm that occurred was a reasonably foreseeable consequence of the defendant's act, and whether there is a sufficient proximity to establish a duty of care. The proposed duty of care need not fall within any recognized category of recovery. At this stage, the court looks at whether there exists any relationship between the two parties sufficient to establish a duty of care. If the case does not fit within previously recognized situations where a duty of care was found to exist, the focus should include broad considerations of policy. These considerations are relational factors arising, again, from the relationship between the parties and the nature of the harm.

[207] Once a duty of care has been established, the second stage of the test requires the court to consider whether there are any residual policy considerations which justify denying liability. Residual policy considerations can include: the need to balance public and private interests, the effect of such decisions on the public, the deference that should be accorded to policy decisions, indeterminate liability and the impact of this decision on our legal system.

[208] … The law with respect to the duty of care of physicians was summarized by the Supreme Court of Canada in Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226 at 270-271:

The relationship of physician and patient can be conceptualized in a variety of ways. It can be viewed as a creature of contract, with the physician’s failure to fulfill his or her obligations giving rise to an action for breach of contract. It undoubtedly gives rise to a duty of care, the breach of which constitutes the tort of negligence… but perhaps the most fundamental characteristic of the doctor-patient relationship is its fiduciary nature. All the authorities agree that the relationship of physician to patient also falls into that special category of relationships which the law calls fiduciary.

[209] The court noted that in previous decisions it had attributed the following characteristics to a fiduciary relationship:

(a) The fiduciary has scope for the exercise of some discretion or power;

(b) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests;

(c) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

[52] There is no real dispute between the parties as to the existence of a duty of care. Dr. Librach, as a physician who provided medical care during labour and delivery, owed a duty to Robert, an infant born alive: Leibig v. Guelph General Hospital, 2010 ONCA 450 at paras. 6-8.

c. Standard of Care

[53] The standard of care in a medical negligence action is well established. The standard requires a physician to exercise the degree of skill and care expected of a prudent and diligent physician in the same group as the defendant in the same circumstances. In Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] S.C.R. 804 at page 817, Abbott J. described the standard as follows:

The test of reasonable care applies in medical malpractice cases as in other cases of alleged negligence. As has been said in the United States, the medical man must possess and use that reasonable degree of learning and skill ordinarily possessed by practitioners in similar communities in similar cases, and it is the duty of a specialist such as appellant, who holds himself out as possessing special skill and knowledge, to have and exercise the degree of skill of an average specialist in his field.

[54] A specialist such as Dr. Librach must exercise the degree of skill expected of an average practitioner in his field. As Schroeder J.A. explained in Crits and Crits v. Sylvester et al. (1956), 1956 CanLII 34 (ON CA), 1 D.L.R. (2d) 502, [1956] O.J. No. 526 (C.A.) at para. 13, a medical practitioner “is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.”

[55] In order to meet the standard of care, a doctor must take reasonable precautions responsive to a recognized risk: Ediger v. Johnston, 2013 SCC 18, [2013], 2 S.C.R. 98 at para. 53. The standard of care is informed by the foreseeable risk of the treatment, and the proper exercise of judgment is one that is made after assessing and evaluating the available information: Crawford at para. 229. As the court explained in Crawford, at para. 224, “As the degree of risk involved in a certain treatment or procedure increases, so rises the standard of care expected of the doctor.”

[56] The court will look to common practice in assessing whether the defendant met the standard of care: “Generally, conformity with a common practice will exonerate a physician of a complaint of negligence”: Crawford at para. 227.

[57] In Gent and Gent v. Wilson, 1956 CanLII 128 (ON CA), [1956] O.R. 257, [1956] O.J. No. 535 (C.A.) at para. 13, Schroeder J.A. indicated as follows:

If a physician has rendered treatment in a manner which is in conformity with the standard and recognized practice followed by the members of his profession, unless that practice is demonstrably unsafe or dangerous, that fact affords cogent evidence that he has exercised that reasonable degree of care and skill which may be required of him.

[58] It will not be open to the court to find a standard medical practice negligent unless it “fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact”: ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674 at para. 51.

[59] It may be that there are competing theories regarding treatment and medical management in a given situation. The practice of medicine requires a physician to exercise his or her judgment and to choose one theory or treatment approach, when several may be available. Often there is no universally accepted rule or approach. The choice of one option over another does not amount to negligence as long as the physician evaluated the choices as would a reasonably competent physician in the circumstances.

[60] Speaking for the Supreme Court of Canada, L’Heureux-Dubé J. in Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351 made the point that the role of the court is not to settle scientific argument but rather, to permit physicians to prefer or choose between competing medical theories. There should only be liability where there has been a violation of “universally accepted” rules of medicine – an extremely high standard (at pages 363-364):

Given the number of available methods of treatment from which medical professionals must at times choose, and the distinction between error and fault, a doctor will not be found liable if the diagnosis and treatment given to a patient correspond to those recognized by medical science at the time, even in the face of competing theories. As expressed more eloquently by André Nadeau in “La responsibilité médicale” (1946), 6 R. du B. 153, at p. 155:

[TRANSLATION] The courts do not have jurisdiction to settle scientific disputes or to choose among divergent opinions of physicians on certain subjects. They may only make a finding of fault where a violation of universally accepted rules of medicine has occurred. The courts should not involve themselves in controversial questions of assessment having to do with diagnosis or the treatment of preference.

[61] These same principles were articulated cogently by Lord Scarman for the House of Lords in Maynard v. West Midlands Regional Health Authority, [1985] 1 All E.R. 635 (H.L.) at pages 638-639, as follows:

It is not enough to show that there is a body of competent professional opinion which considers that theirs was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances … I do not think that the words of the Lord President Clyde in Hunter v. Hanley … can be bettered.

In the realm of diagnosis and treatment, there is ample scope for genuine differences of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men … The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor with ordinary skill would be guilty of if acting with ordinary care …

Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of others, in the problems of professional judgment. A court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence.

I have to say that a judge’s “preference” for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge’s finding, he erred in law even though elsewhere in his judgment he stated the law correctly. For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary.

[62] As indicated by L’Heureux-Dubé J. in Lapointe, there is an important distinction between an honest error and a professional fault. Where, in the face of competing theories or treatment options, there is an honest exercise of clinical judgment based on experience and training, an error in such exercise will not be an act of negligence. The court in Turkington v. Lai, [2007] O.J. No. 4418 (S.C.) explained the distinction:

When a doctor is faced with different diagnostic and/or treatment options, the fact that the ultimate decision reached later proves injurious does not mean that the treatment was negligent. As long as a reasonable doctor similarly situated could reasonably arrive at that conclusion, the act is only an error of judgment.

[63] In Crits, Shroeder J.A. quoted Denning L.J. in Roe v. Minister of Health et al.; Woolley v. Same, [1954] 2 Q.B. 66 at 83, [1954] 2 All E.R. 131 on the importance of maintaining this distinction:

… [W]e should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.

[64] It is unreasonable to assume perfect outcomes regardless of the skill and experience of the physicians. Negative consequences do not amount to negligence.

[65] For these same reasons, the defendant’s conduct must be assessed in light of the information that the defendant had or ought to have had at the time of the act. When faced with competing theories or a range of alternative treatment options, the fact that the approach which was not selected would have, in hindsight, been the preferable one, is not in itself an indication of negligence. Further, it would not be an act of negligence in failing to adopt a theory which was only proven true after the event: ter Neuzen at para. 34.

[66] In summary, the following principles concerning standard of care, as outlined above, are relevant to this proceeding:

1. the plaintiff must prove a failure to exercise the due care and diligence of an average specialist in the field;

2. a failure to recognize pertinent risk factors and take reasonable precautions responsive to those risks will constitute a breach of the standard of care;

3. acts done in conformity with a respectable body of opinion will not be negligent just because there is another contrary view;

4. there is a distinction between an error and a fault constituting negligence. The choice of one treatment option in the face of competing theories is not negligence provided there has been an honest exercise of clinical judgment based on experience and training; and finally,

5. the physician can only be judged on what could reasonably have been known at the time.

d. Causation

[67] Without causation, there will be no liability even if the defendant has breached the standard of care. As the Supreme Court explained in Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, causation “is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.”

[68] In Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181 the Supreme Court provided the following summary of the law of causation:

8 The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury -- in other words that the injury would not have occurred without the defendant's negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

9 The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant's negligence made to the injury. See Wilsher v. Essex Area Health Authority, [1988] A.C. 1074, at p. 1090, per Lord Bridge; Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311.

11 Where “but for” causation is established by inference only, it is open to the defendant to argue or call evidence that the accident would have happened without the defendant’s negligence, i.e. that the negligence was not a necessary cause of the injury, which was, in any event, inevitable. As Sopinka J. put it in Snell, at p. 330:

The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced. If some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield's famous precept [that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” (Blatch v. Archer (1774), 1 Cowp. 63, 98 E.R. 969, at p. 970)]. This is, I believe, what Lord Bridge had in mind in Wilsher when he referred to a “robust and pragmatic approach to the ... facts” (p. 569). [Emphasis added.]

[69] The Ontario Court of Appeal noted in Aristorenas v. Comcare Health Services (2006), 2006 CanLII 33850 (ON CA), 83 O.R. (3d) 282, that the “robust and pragmatic approach to the facts” should not be used as a means of making findings or drawing inferences in the absence of evidence that the defendant’s negligence caused the injury. The court held at para. 54:

The “robust and pragmatic” approach is not a distinct test for causation but rather an approach to the analysis of the evidence said to demonstrate the necessary causal connection between the conduct and the injury. Importantly, 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.

[70] As long as the defendant is a necessary part of the cause of the injury, the defendant is liable, even though his act alone was not enough to create the injury: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at para. 17. It is important to note that the issues of causation and damages should not be confused, as each is governed by distinct legal rules. On that issue, the Supreme Court held the following in Blackwater v. Plint, 2005 SCC 38, [2005] 3 S.C.R. 3, at para. 78:

It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey.

[71] While the traditional test for causation is the “but for” test, the Supreme Court in Clements established that in exceptional cases, the “material contribution to risk” test may apply, and the plaintiff may recover without showing factual “but for” causation. At para. 46, the court established the criteria that must be met before this alternative “material contribution to risk” test can apply:

Exceptionally, a plaintiff may succeed by showing that the defendant's conduct materially contributed to risk of the plaintiff's injury, where (a) the plaintiff has established that her loss would not have occurred "but for" the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or "but for" cause of her injury, because each can point to one another as the possible "but for" cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

[72] There is only one tortfeaser at issue here; therefore, the requirements set out above are not met, and the “but for” test for causation applies. Accordingly, the plaintiffs must demonstrate that Dr. Librach’s negligence was necessary to bring about Robert’s injury.

6. ANALYSIS

a. Expert evidence and credibility

[73] Drs. Fruitman, Lightheart, Davies and Oppenheimer testified as expert witnesses at trial. Drs. Fruitman and Lightheart were called by the plaintiffs, while Drs. Davies and Oppenheimer were called by the defence.

[74] The four criteria for the admissibility of expert evidence are: (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of any exclusionary rule; and (4) a properly qualified expert: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at para. 17. There is no question that the expert evidence in this case was relevant, was of great assistance in reaching my conclusions, was not excluded by a rule of evidence, and was given by a properly qualified expert in each case.

[75] In addition, experts giving evidence owe a duty to the court to remain independent and impartial. They must give evidence borne of their independent analysis and assessment, and should not become advocates for the party or the positions of the party by whom they have been retained: Carmen Alfano Family Trust (Trustee of) v. Piersanti, 2012 ONCA 297, [2012] O.J. No. 2042 at paras. 107-108. The expert’s duty to provide “fair, objective and non-partisan” opinion evidence is found in r. 4.1.01 of the Rules of Civil Procedure, R.R.O. 1994, Reg. 194.

[76] I find that Drs. Fruitman, Oppenheimer and Davies displayed the requisite level of independence. Each gave his evidence in a clear and convincing manner. Additionally, each fairly conceded certain points on cross-examination without becoming hostile or combative. Conversely, Dr. Lightheart was particularly argumentative and defensive on cross-examination. A lengthy and argumentative exchange between Dr. Lightheart and the defendant’s counsel with respect to SOGC guidelines regarding the location for vacuum-assisted delivery is but one example. Furthermore, Dr. Lightheart’s displayed interest in supporting the plaintiffs’ claims rendered her evidence unreliable and of little assistance. Dr. Lightheart’s assertion that the FHR could have descended in a matter of five seconds, notwithstanding the demonstrated length of other decelerations, was merely one example of her palpable desire to bolster the plaintiffs’ case. Where Dr. Lightheart’s evidence is inconsistent with that of Drs. Davies, Oppenheimer or Fruitman, I prefer the evidence of the latter three.

b. Did Dr. Librach’s care fall below the accepted standards of practice with respect to his recognition of risk factors relevant to Ms. Long-Suwary’s pregnancy?

[77] In order to have properly exercised his judgment in determining a plan of delivery, Dr. Librach must have assessed and evaluated the relevant available information. As the court stated in Crawford, at para. 229, “the information upon which a judgment or decision is reached must be as complete as is reasonably available and possible in the circumstances.”

[78] It was the plaintiffs’ position that Dr. Librach failed to recognize or consider a number of risk factors pertaining to Ms. Long-Suwary’s pregnancy and delivery of Robert. This failure to appreciate the risks resulted in Dr. Librach’s subsequent failure to take appropriate intervention in Robert’s birth.

[79] The plaintiffs identified four separate “failures” on Dr. Librach’s part: (i) failure to properly consider Ms. Long-Suwary’s obstetrical history; (ii) failure to properly consider the key features of Kylie’s birth; (iii) failure to recognize and document Ms. Long-Suwary’s pregnancy with Robert as a “Risk B” pregnancy; and (iv) failure to properly assess fetal size.

[80] Dr. Librach took the position that there were, in fact, no risk factors present, or, to the extent that they were present, there is no evidence that those factors indicated he should have approached the birth any differently than he did.

[81] Below I consider the arguments of both parties on each of these grounds. For the reasons that follow, I conclude that to the extent any risk factors did exist, Dr. Librach appropriately took them into account in his delivery plan.

i. Failure to properly consider Ms. Long-Suwary’s obstetrical history

Position of the Plaintiffs

[82] Ms. Long-Suwary had a history of fertility problems prior to her pregnancy with her second child, Kylie, in 1995. These problems included a miscarriage at eight weeks in 1984, a period of infertility following the birth of her first child in 1985, fertility treatment and the early loss of a pregnancy, in vitro fertilization in 1993, and the stillbirth of twins at 21 weeks. In addition, Ms. Long-Suwary was, as characterized by the plaintiffs, of “late maternal age.”

[83] The plaintiffs submitted that this history should have been relevant to Dr. Librach’s assessment of Ms. Long-Suwary’s risk during pregnancy with Robert. They submitted that this history increased Ms. Long-Suwary’s level of risk during pregnancy with Robert and during delivery. They also linked this history to whether she would have consented to use of the vacuum in the delivery room, an argument I address separately under the issue of consent.

[84] It was not clear to me from the plaintiffs’ submissions what effect this obstetrical history should have had on Dr. Librach’s course of action. In other words, as a result of this obstetrical history, Ms. Long-Suwary was at increased risk of what specifically? Further, what action should Dr. Librach have taken which he did not to address that risk?

[85] However, in conjunction with their other arguments, it appears to me that the plaintiffs’ suggestion was that this history should have factored into Dr. Librach’s decision to proceed with vaginal birth and/or specifically to proceed with the vacuum in the delivery room, but that it did not.

Position of the Defendant

[86] Dr. Librach argued that the evidence does not support the plaintiffs’ contention that he did not appreciate Ms. Long-Suwary’s obstetrical history and any prenatal risk factors. Dr. Librach provided the fertility treatment to Ms. Long-Suwary in 1995 that resulted in the successful conception and delivery of Kylie. When Dr. Librach first met Ms. Long-Suwary (when she saw him for fertility treatment), he took an extensive history. He testified to that history, and demonstrated awareness of all the matters the plaintiffs pointed to in their argument.

[87] Furthermore, in the defendant’s submission, these prenatal risk factors had no bearing (nor should they have had any bearing) on his decision to intervene in the birth by attempting the vacuum.

Findings and Analysis

[88] On the evidence before me, the suggestion that Dr. Librach was not aware of Ms. Long-Suwary’s history and the circumstances of Kylie’s birth simply defies belief. Dr. Librach provided fertility support to Ms. Long-Suwary and advised her throughout the course of her pregnancy with Kylie. Dr. Librach delivered Kylie. Dr. Librach closely followed Ms. Long-Suwary’s pregnancy with Robert.

[89] There is no doubt that Dr. Librach had a detailed and historical knowledge of Ms. Long-Suwary’s health and the health of her family. He took a lengthy obstetrical and family history when he first met Ms. Long-Suwary, and I find that this was understood.

[90] I also find that this obstetrical history was considered and appropriately acted on. There was no evidence that Ms. Long-Suwary’s obstetrical history created a greater risk that the vacuum would fail, or that as a result of this history it was otherwise inappropriate to resort to the vacuum in the circumstances. The plaintiffs seemed to suggest that vaginal birth may not have been appropriate. However, there is no evidence supporting this position, and the expert evidence presented by experts for both sides was that elective C-section was not indicated.

ii. Failure to properly consider the key features of Kylie’s birth

Position of the Plaintiffs

[91] The plaintiffs argued that in his antenatal records for Ms. Long-Suwary’s pregnancy with Robert, Dr. Librach incorrectly noted Kylie’s birth as “normal vaginal delivery,” and as a result failed to appreciate the difficulties with that birth, and the effect these difficulties could have on a subsequent birth.

[92] Ms. Long-Suwary’s labour with Kylie was induced. When Ms. Long-Suwary delivered Kylie, Kylie was macrosomic, weighing 10 lbs, 1 oz. Dr. Librach, who delivered Kylie, intervened with a low vacuum due to maternal exhaustion after one hour of pushing. Kylie was delivered three minutes later, and suffered from a pneumothorax (collapsed lung) at birth.

[93] In the plaintiffs’ submission Kylie’s pneumothorax is significant because it was, they suggested, caused by shoulder dystocia. This was the evidence of Dr. Barrett, then an obstetrical resident who attended Kylie’s birth as Ms. Long-Suwary’s friend. Ms. Long-Suwary also testified that she remembers being told that the pneumothorax was caused by shoulder dystocia.

[94] The fact that Kylie was macrosomic, the plaintiffs submitted, created an increased risk that Ms. Long-Suwary’s subsequent baby would also be macrosomic. Macrosomia carries an increased risk of failure of operative vaginal birth and of shoulder dystocia. Shoulder dystocia in turn causes an increased risk of birth injury. In other words, the plaintiffs’ contention was that because Kylie was macrosomic, there was an increased risk that Ms. Long-Suwary’s subsequent child would suffer birth injuries and/or a failed operative vaginal birth.

[95] These aspects of Kylie’s delivery were relevant to Dr. Librach’s approach to the delivery of Robert. Drs. Lightheart and Fruitman both agreed that the key aspects of Kylie’s birth should have formed part of Dr. Librach’s risk assessment for Ms. Long-Suwary’s subsequent labour and delivery.

Position of the Defendant

[96] With respect to Kylie’s birth, the defendant’s position was that there was no shoulder dystocia. Dr. Librach made no notation of shoulder dystocia in his records, which he would have done had it occurred. Further, a pneumothorax is not associated with shoulder dystocia.

[97] The defendant did not dispute that Ms. Long-Suwary was at risk for another macrosomic baby. However, his position was that there is no evidence that the potential for a large baby called for a different approach to labour and delivery, given that Ms. Long-Suwary had previously successfully delivered one such baby.

Findings and Analysis

[98] In the circumstances, I do not find there is any evidence to support a finding that Kylie suffered shoulder dystocia. Shoulder dystocia occurs when the fetal shoulders fail to deliver after the head, because one or both shoulders are impacted against the maternal pelvic bones. While Ms. Long-Suwary and Dr. Barrett both recollected manoeuvers used prophylactically to deliver the shoulders (such as the lifting back and up of the mother’s legs), and Dr. Barrett recollected that Kylie’s body did not immediately follow the delivery of the head, such occurrences are not by themselves indicative of shoulder dystocia.

[99] I accept the evidence that there was some delay between the delivery of the head and the shoulders, and that as Kylie was a large baby, certain prophylactic maneuvers were used to assist in the delivery of the shoulders. However, in light of all the evidence presented, I find that no shoulder dystocia occurred.

[100] Kylie was born vaginally on February 17, 1996, by low vacuum extraction. Dr. Librach did not recall any difficulty or complications in Kylie’s birth. He reviewed his notes of Kylie’s delivery and was indicated there was no notation of shoulder dystocia.

[101] There were no notations supporting shoulder dystocia in any of the medical records. It would be highly unusual for shoulder dystocia to have occurred and to not have been recorded in Dr. Librach’s records, the nursing records, or the paediatric records. Dr. Fruitman on cross-examination agreed that the absence of notation of shoulder dystocia strongly supported the conclusion that no such dystocia occurred.

[102] The success of the vacuum within three minutes of application was also not consistent with any difficulty such as should dystocia.

[103] Drs. Oppenheimer and Davies testified that there was no evidence of injury associated with shoulder dystocia.

[104] Mr. Suwary similarly did not recall any difficulties with Kylie’s birth after the application of the vacuum. He confirmed that after the vacuum was applied it only took a few minutes to deliver Kylie.

[105] With respect to macrosomia, there is no dispute between the parties that Kylie was macrosomic, and that Ms. Long-Suwary was at risk for another macrosomic baby. Nevertheless, Ms. Long-Suwary had previously delivered two babies vaginally, one of whom was macrosomic. All the experts agreed that this boded well for her ability to deliver a third baby vaginally as well.

[106] The plaintiffs’ assertion that a prior macrosomic baby creates an additional risk requiring a different delivery plan was refuted by the expert evidence. Dr. Davies testified, and Dr. Fruitman agreed, that “a diagnosis of macrosomia does not warrant early induction, or a booked caesarean.” Dr. Fruitman further confirmed that there is no way to diagnose shoulder dystocia until it happens, and that it can be managed at the time that it occurs, through a series of maneuvers.

[107] In the circumstances, there was no need for Dr. Librach to proceed via booked C-section or to otherwise plan the delivery differently than he did.

iii. Failure to recognize and document a “Risk B” pregnancy

Position of the Plaintiffs

[108] Throughout Ms. Long-Suwary’s pregnancy with Kylie, Dr. Librach recorded her pregnancy as a “B” risk pregnancy on the standard antenatal records. He did not do so for Ms. Long-Suwary’s pregnancy with Robert.

[109] In discovery, Dr. Librach indicated that he not identify any risk factors with this pregnancy. The plaintiffs suggested that this response was inconsistent with his testimony on direct examination at trial that he “would and did” make a risk assessment.

[110] The plaintiffs submitted Dr. Librach should have assessed this pregnancy as a “B” risk pregnancy, and his failure to do so represents a breach of the standard of care. Dr. Lightheart testified to that effect.

Position of the Defendant

[111] In response to the plaintiffs’ argument that Ms. Long-Suwary’s antenatal chart should have been marked “Risk B,” the defendant submitted that there was no evidence that such a notation would have altered the appropriate approach to managing the labour and delivery.

[112] Dr. Librach was aware of Ms. Long-Suwary’s history (having managed her most recent pregnancy and delivery). Dr. Lightheart, on cross examination, admitted that Dr. Ferguson’s admission notes captured all of the potential concerns for the labour and delivery arising from Ms. Long-Suwary’s history. All the other physicians present for the labour and delivery were therefore similarly apprised of the relevant concerns.

Findings and Analysis

[113] With respect to this alleged failure on behalf of the defendant, I do not find it necessary or appropriate to determine what level of risk applied to Robert’s birth and what notation should have been included in Ms. Long-Suwary’s antenatal chart. In my view it is determinative that Dr. Ferguson’s admission notes captured all the potential concerns arising from Ms. Long-Suwary’s obstetrical history. I find that the failure to mark Ms. Long-Suwary’s chart with “Risk B,” if that was a failure, did not affect the delivery plan.

iv. Failure to properly assess fetal size

Position of the Plaintiffs

[114] The plaintiffs’ final contention was that Dr. Librach failed to properly measure the fetal size, and therefore ignored the high risk of macrosomia. Dr. Librach determined fetal size by measuring the biparietal diameter (“BPD”) rather than symphasis fundal height (“SFH”). This approach to measurement was, in the plaintiffs’ submission, substandard. The plaintiffs argued that, given Ms. Long-Suwary’s history, a physician who did not expect macrosomia would have failed to meet the accepted standards of practice.

[115] Over the course of her pregnancy, and during her visits with Dr. Librach, Ms. Long-Suwary had mentioned a concern that she harboured about the size of the fetus and whether it was macrosomic, like Kylie had been. She recalls Dr. Librach telling her to not worry.

Position of the Defendant

[116] Dr. Librach argued that it was of no consequence that he used the PBD rather than the SFH method of measurement, given the inaccuracies of fetal size assessments by any method.

[117] Further, even if it had been possible for Dr. Librach to know the exact size of the fetus, that would not have changed his management of the birth and labour. Dr. Fruitman and Dr. Davies both testified that macrosomia does not warrant early induction or a booked C-section. Dr. Oppenheimer testified that even certain knowledge of a macrosomic baby would not have changed anything in the management of the delivery.

Findings and Analysis

[118] It was clear to me from the divergent viewpoints of the experts that there are different schools of thought on the best approach to fetal height measurement, and this is an area of practice in which physicians must exercise their own judgment as to whether in any given circumstance more valuable information can be obtained beyond that provided by the obstetrician’s clinical assessment.

[119] Most of the experts agreed that the assessments of fetal height methods, including SFH, were inaccurate to a certain extent. Dr. Oppenheimer testified that “methods of assessment can be quite inaccurate when you’re trying to assess the [fetal] size,” and that performing these measurements do not yield much more useful information that a clinical assessment. Further, I accept the defendant’s testimony that he appreciated the risk of macrosomia, but that, given Ms. Long-Suwary’s history and the general likelihood of safe, injury-free vaginal delivery of a macromosic baby, the risk of macrosomia did not require him to proceed differently in the circumstances. Dr. Oppenheimer agreed that in the circumstances of Ms. Long-Suwary’s pregnancy with Robert, he would not have been particularly focused on determining the exact size of the baby because “it would be expected it would be big and … [a measurement] would just confirm the clinical expectation.” It would not require different treatment.

[120] Even had it been scientifically possible for Dr. Librach to determine the exact size of the fetus in this case, it would have had no effect on Dr. Librach’s management of the birth. Assessment of fetal size is therefore of no consequence in this case.

v. Summary: Risk factors

[121] In conclusion, I do not find that any of the alleged failures on Dr. Librach’s part were in fact failures. Dr. Librach obtained and considered the relevant information. His delivery plan was appropriate in the circumstances and was consistent with the standard of care required of him.

c. Did Dr. Librach fail to obtain Ms. Long-Suwary’s informed consent to the vacuum-assisted delivery?

i. Facts regarding the issue of informed consent

[122] Ms. Long-Suwary signed two identical consent forms entitled “Consent for Surgical, Obstetrical and Special Procedures,” one dated January 13, 1999, and the other undated, both countersigned by Dr. Librach. The consent forms state:

I, Kim Long hereby consent to the following procedure(s) being performed upon me

Procedure: Operations or Procedures associated with Pregnancy, Labour, Delivery and the Care of my Baby

The anticipated nature and effect of the procedure(s), possible alternative method of treatment, the risks involved and the possibility of complications have been explained to me and I confirm that I understand the explanation.

I also consent to whatever other procedures may be deemed immediately necessary during the course of the procedure(s) and to the administration of a general or other anaesthetic as is necessary.

I understand that Women’s College Hospital is a teaching hospital and that various medical care personnel may assist in my care…

[123] This was Ms. Long-Suwary’s third vaginal delivery, and she had signed at least one previous identical consent form, dated November 30, 1995, for the delivery of Kylie.

ii. Did Dr. Librach fail to obtain Ms. Long-Suwary’s informed consent?

Position of the Plaintiffs

[124] The plaintiffs contended that in order to obtain Ms. Long-Suwary’s informed consent, Dr. Librach was required to discuss with her the matters found at s. 11(3) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, as they applied to his intention to use the vacuum in the delivery room to assist in delivery: the nature of the treatment, the expected benefits of the treatment, the material risks of the treatment, alternative courses of action, and the likely consequences of not having the treatment. Both Drs. Fruitman and Lightheart acknowledged that the time available for discussion would have been limited, but insisted that such a discussion could and should have occurred.

[125] The plaintiffs argued that the generic consent form signed by Ms. Long-Suwary on January 13, 1999, did not discharge Dr. Librach’s obligation to obtain her informed consent to the decision to proceed by way of vacuum. Ms. Long-Suwary testified on re-examination that the consent form was contained amongst a number of other papers given to her by Dr. Librach’s receptionist or a nurse, that she signed the form in the waiting room, and that she had not discussed the consent form with Dr. Librach.

[126] The plaintiffs’ position was that Dr. Librach simply told Ms. Long-Suwary that he was going to proceed with the vacuum, that he did not discuss the risks or alternatives, and that he did not obtain her informed consent to the procedure. They also took the position that Dr. Librach admitted the following in the course of cross-examination:

1. that the options open to him included transferring Ms. Long-Suwary to the operative delivery room for use of the vacuum, a forceps delivery, or C-section delivery;

2. that one of his concerns was that cord compression was causing the deep decelerations experienced by Ms. Long-Suwary;

3. that there was a risk, known to Dr. Librach, of umbilical cord compression when he applied the vacuum;

4. that persistent fetal bradycardia was one of the possible outcomes he would have considered;

5. that if there was hypoxia, he would want to deliver the baby as soon as possible to avoid injury to the baby; and

6. that he did not share with Ms. Long-Suwary the fact that if the vacuum failed, he would have to transfer her from the delivery room to the O.R., entailing a delay of at least 8 minutes.

Position of the Defendant

[127] Dr. Librach’s position was that the standard of care required him to advise Ms. Long-Suwary of his concerns and his recommendation, and that he met the standard. This was Ms. Long-Suwary’s third vaginal delivery and she had signed at least one identical consent form, dated November 30, 1995, for the delivery of Kylie. The delivery of a child is not an elective procedure, the general consent form covered all “operations or procedures associated with pregnancy labour, delivery and the care of [Ms. Long-Suwary’s] baby,” and Ms. Long-Suwary, having previously delivered a child vaginally and with the assistance of a vacuum, knew and understood the various risks and possible procedures. Finally, Dr. Librach contended that evidence given on examination for discovery indicates that Ms. Long-Suwary had no memory of anything having to do with signing the consent forms, and that her testimony in re-examination to the contrary should not be relied upon.

Findings and Analysis

[128] Ms. Long-Suwary gave her general consent to vaginal delivery in two signed consent forms, one dated January 13, 1999, and the other undated. No further, specific consent for vacuum delivery was required. She consented to all “Operations or Procedures associated with Pregnancy, Labour, Delivery and the Care of [her] Baby,” a phrase whose ambit easily captures vacuum-assisted delivery. The court’s holding in Look v. Himel, supra, is highly persuasive in this regard.

[129] I find that, as she attested to in the signed consent forms, “the nature and effect” of operative vaginal delivery was explained to Ms. Long-Suwary, and she understood the explanation. At her examination for discovery, Ms. Long-Suwary admitted that she did not remember anything about signing the forms.

[130] Having had a vacuum delivery for Kylie, I find that Ms. Long-Suwary was aware that:

a. the options for delivery were either vaginally or by C-section;

b. there was no guarantee that vaginal delivery would be successful;

c. if she needed assistance to deliver vaginally, one of the procedures to assist with delivery was the vacuum, and the vacuum had helped her deliver a healthy baby girl in her previous delivery.

[131] These are significant pieces of information which indicate that Ms. Long-Suwary was not uninformed about the complications that can arise in the course of labour and the possibility of medical interventions. She was even familiar with vacuum-assisted delivery. In this respect, the reasoning in Goguen v. Crowe, supra, with respect to a forceps delivery is equally applicable in this case with respect to vacuum delivery.

[132] Dr. Librach did not have a specific memory of discussions with Ms. Long-Suwary regarding the vacuum, but testified that he has a standard practice in these types of circumstances. His standard practice involves letting the patient know he is concerned about the baby, explaining quickly what he thinks the right option is in the circumstances, and obtaining the patient’s consent. In circumstances where the goal is to expedite the delivery of the baby, “a long discussion of every hospital detail and option would not be appropriate.” Therefore, although Dr. Librach’s primary position was that his decision was subsumed within the signed general consent, he maintained that he would have obtained verbal consent for the procedures performed, though he did not have a specific recollection of having done so in this case.

[133] I accept Dr. Librach’s testimony with respect to his standard practice in such a situation, and I find that he advised Ms. Long-Suwary, however briefly, that he had concerns and would be proceeding with the vacuum. Ms. Long-Suwary admitted that she has poor memory of this time period, and on cross examination she confirmed that she has “no specific recollection of what [Dr. Librach] said or what anyone said” between 0320, when Dr. Librach arrived, and 0330, when she was instructed to push. Her first memory is the instruction to push. From 0330 onwards, Ms. Long-Suwary was focused on pushing. She admitted to not knowing how long the vacuum was on for, how many pulls, nor did she have any specific memory of what anyone else was doing during the vacuum extraction. She does not remember that Dr. Librach told her that they were going to the O.R. for forceps rotation; she only remembers Dr. Librach telling her they were going to “get the baby out another way.” Ms. Long-Suwary’s understandably limited memory of the events at issue informs the reliability of her evidence on what she says Dr. Librach told her.

[134] I also accept the testimony of Drs. Oppenheimer and Davies that all Dr. Librach would be required to convey in the circumstances to meet the standard of care is his intended course of action and his reasons for doing so. In cross-examination, Dr. Lightheart admitted that in an urgent situation there would not be time to engage in the type of discussion that would otherwise be preferable. Dr. Librach’s brief interaction with Ms. Long-Suwary therefore discharged his obligations in the circumstances.

iii. If actual consent was not obtained, would a reasonable person in Ms. Long-Suwary’s position have consented?

Position of the Plaintiffs

[135] Ms. Long-Suwary’s counsel posited a scenario in which she had been fully apprised of certain information she was not in fact given. He asked her how she would have responded given that information. Ms. Long-Suwary replied that she would have instructed Dr. Librach to “get the baby out, don’t take a risk and I, I would rather have the c-section.” When asked why, she responded “I want the safest delivery for Robbie. I want – I’m not worried about anesthetic. I’m not worried about a scar. I’m not worried about that. I just want Robbie to be safe.” In addition, Dr. Lightheart testified that, in her experience, the vast majority of mothers will instruct doctors to do what is safest for the baby.

Position of the Defendant

[136] Dr. Librach’s position was that no expert who testified at trial testified that a C-section was medically indicated at the relevant moments in time, and that a physician is not obliged to discuss or offer procedures that are not medically indicated. Further, Drs. Fruitman, Lightheart, Oppenheimer, and Davies all agreed on cross-examination that in 1999, it was within the standard of care to proceed with forceps after a failed vacuum.

[137] Dr. Librach further took the position that Ms. Long-Suwary’s history of accepting his medical recommendations and her admitted trust in his abilities mean that she would have accepted the proposal to proceed with the vacuum had it been more fully explained to her. In any event, a reasonable person in Ms. Long-Suwary’s position would undoubtedly have accepted Dr. Librach’s recommendation, and any suggestion otherwise is coloured by knowledge of the outcome.

Findings and Analysis

[138] I have already found that Ms. Long-Suwary consented to the procedure. Moreover, I find that even given a more fulsome explanation of the vacuum procedure, Ms. Long-Suwary would have consented. I do not doubt for one second that Ms. Long-Suwary would have prioritized the health of her child over her own health in that situation, as she attested in response to questions from her counsel. However, no expert testified at trial that a C-section was medically indicated at that moment in time and I cannot draw this conclusion from the evidence before me. Therefore, while Ms. Long-Suwary chose a C-section in the hypothetical put to her by counsel, a C-section was not medically indicated and Dr. Librach was not obligated to put that option to her: Commisso v. North York Branson Hospital, 2000 CanLII 22374 (ON SC), [2000] O.J. No. 1866 (S.C.) at paras. 108-111, aff’d 2003 CanLII 48421 (ON CA), [2003] O.J. No. 20 (C.A.). The expert evidence also supports the position that it was within the standard of care to proceed with a forceps delivery after a failed vacuum attempt. It was therefore not necessary for Dr. Librach to put the option of a C-section to Ms. Long-Suwary at that moment in time either.

[139] Further, Ms. Long-Suwary has a history of accepting Dr. Librach’s recommended courses of action. She had previously followed Dr. Librach’s suggestions with respect to two fertility treatments, with respect to using the vacuum to deliver Kylie, and with respect to inducing labour with Robert. Therefore, given Dr. Librach’s clinical judgment that the vacuum was the best way to proceed, I find that had consent not been obtained, Ms. Long-Suwary would nonetheless have consented to Dr. Librach’s recommendation.

[140] Finally, a reasonable person in Ms. Long-Suwary’s position would have consented to proceeding with the vacuum in the delivery room. The vacuum was the only option that could be proceeded with immediately in the delivery room. This fact is important given my findings on FHR and the urgency of the situation in the delivery room (set out below). The vacuum is safe and generally results in few complications. Most significantly, it is the option that was recommended by Dr. Librach. The expert evidence was clear, and I accept, that patients almost always go along with the recommendations of their physicians, especially where they have a prior relationship with that physician.

d. Did Dr. Librach’s decision to proceed by vacuum-assisted delivery fall below the accepted standards of practice?

[141] Obstetrical interventions must be medically indicated. The SOGC Forceps Guideline provided that indications for operative vaginal delivery could be maternal and/or fetal. There is no suggestion that maternal indication was at issue in this case; rather, the issue is whether there was convincing, compelling, and documented indication referable to the well-being of the fetus.

[142] Based on the evidence before me and for the reasons that follow, I agree with Dr. Librach’s submission that he appropriately exercised his clinical judgment in consideration of all the risk factors and in the circumstances. Operative vaginal delivery was medically indicated and the option to proceed by vacuum was within the standard of care. Dr. Librach was not required to attach a scalp clip prior to proceeding to the vacuum. Nor did the accepted standards of care require him to attempt IR measures. Dr. Librach was non-reassured concerning the FHR and he embarked on a course of action aimed at achieving an expedited delivery.

[143] I further note that it is generally accepted that the use of the vacuum carries similar levels of risk as a mid-forceps delivery. In other words, the forceps are no safer than the vacuum. Furthermore, Drs. Fruitman, Oppenheimer, and Davies, three of the four experts who opined on this point, were in agreement that the forceps could be used after the unsuccessful attempt to use the vacuum.

i. Did Dr. Librach apply the vacuum without medical indication?

Positions of the Plaintiffs

[144] The plaintiffs submitted that Dr. Librach applied the vacuum in response to Nurse Lee’s difficulty picking up the FHR, and not out of concern for fetal well-being. They argue that this is most consistent with his evidence given on discovery and with the contents of the obstetrical record. In particular, they urged the court to accept Nurse Lee’s contemporaneous charting and notations where they are in conflict with “late entry notes” or Dr. Librach’s testimony.

[145] The plaintiffs asked the court to draw the “clear inference” from Nurse Lee’s reports that Dr. Librach responded to her reported difficulty picking up the FHR by deciding to apply the vacuum. They further argued that there is no suggestion in the contemporaneous notes of any concern for fetal well-being prior to the application of the vacuum at 0341. The notes from prior to 0341 document variable decelerations without worrisome or concerning features and therefore did not provide proper indication for the use of the vacuum. The plaintiffs conceded that between 0342 and 0345, there was a prolonged, deep deceleration that provided Dr. Librach with indication for a mid-forceps delivery.

Position of the Defendant

[146] Dr. Librach argued that the evidence established a pattern of repetitive, deep decelerations that occurred with pushing/contractions. This pattern was indicative of non-reassuring fetal status, an appropriate indication for operative vaginal delivery. The tracing, the partogram notes, the late entry nursing notes, Dr. Librach’s notes, and the testimony of Drs. Ferguson and Librach all support this conclusion. The prerequisites for the application of the vacuum were met and Dr. Librach’s decision to intervene to expedite delivery was appropriate and within the standard of care.

Findings and Analysis

[147] For the reasons below, I find that there was a pattern of deep, repetitive decelerations with minimal variability and a slow return to baseline. By accepted standards of practice, these decelerations were non-reassuring and provided medical indication for Dr. Librach to intervene. Moreover, these decelerations were an important part of Dr. Librach’s stated and documented reasons for intervention. Dr. Librach was not required to apply a scalp clip, nor was he required to attempt further IR measures beyond the wedge. In other words, there is no basis upon which to impugn Dr. Librach’s exercise of clinical judgment to proceed to a vacuum-assisted delivery in the face of a non-reassuring FHR.

ii. Dr. Librach’s reasons for obstetrical intervention

[148] As a preliminary matter, I will address one of the plaintiffs’ central theses: that Dr. Librach applied the vacuum solely in response to difficulty in picking up the FHR and not because he was also non-reassured. I reject this assertion entirely as it is not supported by the evidence. There is no doubt that Nurse Lee noted difficulty in picking up the FHR at 0335 and 0340; indeed, there are gaps in the tracing throughout the period from 0330 and 0341. Dr. Librach readily admitted this fact at trial and testified that difficulty monitoring the FHR was one of the reasons he chose to proceed by vacuum. However, Dr. Librach testified that he was also non-reassured by the FHR and that this formed a second, concurrent reason to apply the vacuum at 0341. His testimony to this effect at trial was consistent with his notes and his answers on discovery.

[149] Dr. Librach’s non-reassurance is supported through evidence other than his own testimony. His dictated Operative Report, prepared shortly after the birth, suggests that decelerations caused his intervention: “With contractions she pushed and there were decelerations noted by external monitoring. After a few contractions the decelerations persisted and it was decided to aid in her delivery.” The language is even stronger in Dr. Librach’s handwritten Delivery Summary: “Pushing at fully [dilated]. … Decels with contractions therefore vacuum applied” (emphasis added). The conclusion to be drawn from these documents is that Dr. Librach applied the vacuum as a result of observed decelerations in the FHR. Dr. Librach has consistently taken the position that non-reassurance regarding the FHR was one of the two reasons he intervened.

[150] These two stated reasons for intervention are not incompatible or mutually exclusive. The information that Dr. Librach possessed by 0341 gave him independent cause to be non-reassured by the FHR pattern. He would have been justified in intervening on this basis alone. However, it is reasonable to conclude that the ongoing difficulties in maintaining consistent FHR monitoring added to the situation’s sense of urgency, especially given the non-reassuring nature of what Dr. Librach did know. Paragraph 14 of Dr. Librach’s statement of defence, delivered prior to any examinations for discovery or the preparation of any expert reports, supports this duality of reasons and I find nothing incompatible or inherently contradictory in the circumstances of this case.

iii. What was the standard for operative vaginal intervention in January 1999?

Positions of the Plaintiffs

[151] The plaintiffs argued that fetal distress was the required indication for medical intervention, a concept separate and distinct from non-reassuring fetal status. They took the position that a March 1995 SOGC Policy Statement re Fetal Health Surveillance in Labour suggests that medical practitioners consider operative delivery in the context of non-reassuring tracing. However, SOGC’s Forceps Guideline, issued in December 1995, continues to define the indication as fetal distress.

Position of the Defendant

[152] Dr. Librach argued that fetal distress was not the appropriate standard by which to measure whether there was an indication for intervention. Obstetricians attempt to avoid actual fetal distress, and the appropriate standard for intervention was a non-reassuring fetal status. Dr. Librach also advanced the position that all experts testifying at trial agreed that three or more decelerations down to the range of 70 bpm would be non-reassuring and an indication for delivery.

Findings and Analysis

[153] Dr. Librach testified that fetal distress was his stated indication for the mid-forceps delivery, and there is no issue with this evidence. Following the unsuccessful vacuum attempts, there is no doubt that the situation had become one of fetal distress, demanding expedited delivery. The plaintiffs have properly conceded that the recorded FHR between 0342 and 0345 provided the necessary medical indication to proceed with a mid-forceps delivery. However, Dr. Librach’s stated indication to apply the vacuum was a non-reassuring FHR, which he maintains reflected accepted standards of practice in January 1999.

[154] In my view, the authorities do not support the plaintiffs’ proposition that there must be fetal distress in order for operative vaginal delivery to be medically indicated. Dr. Lightheart testified that the SOGC Forceps Guideline applied equally to Dr. Librach’s use of the vacuum. The SOGC Forceps Guideline indicates that forceps are medically indicated where there is “clinical evidence of increasing fetal hypoxia and/or asphyxia requiring prompt delivery of the infant.” On the other hand, the 1998 ALARM course syllabus described the threshold for vacuum intervention as “clinical evidence suggestive of hypoxia requiring immediate delivery” [emphasis added]. This difference in phrasing is instructive.

[155] More importantly, I accept the defendant’s explanation that the terminology and standard for operative vaginal intervention was changing in and around January 1999. The plaintiffs acknowledged that there was some evidence that a shift away from the term fetal distress had begun in or about January 1999. However, the plaintiffs maintained that non-reassuring tracing was not the indication for operative vaginal delivery and that fetal distress continued to be the applicable standard. While the SOGC Forceps Guideline continued to use the term fetal distress, I find that the obstetrical community was moving towards the term non-reassuring fetal heart tracing. This shift was amply supported by the testimony of Drs. Oppenheimer, Davies and Librach. It was also supported in documentary fashion by the use of that term in an SOGC Policy Statement: Fetal Health Surveillance in Labour (March, 1995), and in ALARM Course Materials (winter/spring 1998). The SOGC Policy Statement provided that operative delivery should be considered in the face of non-reassuring FHR patterns. The use of non-reassuring was crystallized by August 2004, when non-reassuring fetal status was listed as an indication for operative vaginal birth in the SOGC Guidelines for Operative Vaginal Birth. While the SOGC Forceps Guideline had not yet been revised in January 1999, the shift in terminology was under way and a lower standard for operative vaginal delivery was being implemented. The reason for this shift was explained both in testimony and in the literature. As Dr. Fruitman testified, a non-reassuring fetal status was the appropriate indication for operative vaginal delivery and the clinical purpose was to intervene before compromise occurred. In other words, fetal distress was precisely that which operative intervention was attempting to avoid.

[156] The various pieces of literature and testimony referred to above indicate that in January 1999, if a non-reassuring FHR was encountered, operative vaginal birth (including vacuum) should have been considered. I therefore accept that the vacuum was an appropriate intervention so long as the FHR in this case met the threshold of non-reassuring.

iv. What credible evidence is there regarding the information contemporaneously available to those present in the labour room pertaining to the FHR?

Position of the Plaintiffs

[157] Nurse Lee was not called to testify on Dr. Librach’s behalf. Dr. Ferguson testified that there were gaps in the audible signal from the EFM, but that there were no prolonged periods of time when the FHR was not audible. The plaintiffs submitted that there is no credible evidence to support a finding as to what the audible FHR revealed beyond what is charted in obstetrical records.

[158] The plaintiffs submitted that none of Dr. Librach’s late entry records – the Delivery Summary, the Operative Report, and his Admission Record – can be read to indicate that the decelerations were “deep and prolonged.” To this effect, the plaintiffs also relied on Dr. Librach’s evidence on discovery, read in at trial, regarding his interpretation of the tracing to the moment in time that the vacuum was applied. In their view, Dr. Librach attempted to resile from or modify some of his answers given on discovery, and the plaintiffs argued that his discovery evidence should be given more weight in the final analysis. Further, they submitted that Dr. Librach’s contention at trial that he “felt” non-reassured regarding FHR does not meet the objective standard of “convincing and compelling” indication for operative vaginal delivery. The plaintiffs also noted that Dr. Ferguson, when interpreting the tracings at trial, identified four decelerations but did not describe any of the decelerations as “deep.” They argued that the fourth deceleration identified by Dr. Ferguson (at 0340+) should not be relied upon by the court.

Position of the Defendant

[159] Dr. Librach contended that Nurse Lee’s notes indicate four decelerations between 0335 and 0340, two of which were charted contemporaneously in the partogram and two of which were charted in her late entry note. Dr. Librach testified to recalling three to five decelerations during that same time. Dr. Ferguson’s evidence is that there were at least three decelerations.

[160] Dr. Librach argued that he and Dr. Ferguson had access to three sources of information to evaluate FHR in real time: the digital display on the monitor, the paper tracing, and the audible heartbeat. The plaintiffs’ suggestion that there is no credible evidence to support a finding concerning what the audible heart rate revealed is unfounded. The expert evidence all conceded that, to one degree or another, this information would have been available and would have been used to form an opinion as to the non-reassuring status of the FHR.

Findings and Analysis

[161] I do not accept the plaintiffs’ contention that there is no credible evidence regarding what could be seen or heard in the delivery room concerning the FHR. The fetal heart could be clearly heard and no one saw any purpose in attaching a fetal monitor, which would have just indicated the information which was already being heard. All of the records in Dr. Librach’s notes, Dr. Ferguson’s notes, the partogram, the tracing, and the late entry nursing notes were consistent with Dr. Librach’s evidence on this point.

[162] There were certainly gaps in the audible signal from the EFM, and there are gaps in the tracing. Nurse Lee’s notes twice note a difficulty in picking up the FHR, once at 0335 and another at 0340. This does not mean, however, that the contemporaneously produced documentary evidence is the only source of credible evidence regarding decelerations in the FHR. I categorically reject the plaintiffs’ assertion to this effect, an assertion that would have me significantly discount the value of the “late entry notes” of Nurse Lee and Dr. Librach, as well as the testimony of Drs. Librach and Ferguson. The experts concurred that audible and visual information would have been available to those in the room and that such information is not precisely captured or replicated through contemporaneous charting or Nurse Lee’s note taking. Rather, it is preserved in the “late entry notes” of Drs. Librach and Ferguson and Nurse Lee, as well as the testimony of those who were present. Further, the experts conceded that decisions could and would be based upon that information, information which is now only available for review through the testimony of those present in the room at the relevant times.

[163] Therefore, in determining how many decelerations occurred between 0330 and 0341, how they were spaced, and how they are properly characterized, I have weighed and considered all of the evidence: the partogram, Nurse Lee’s contemporaneous and late entry records, Dr. Librach’s late entry records, Dr. Librach’s testimony, Dr. Librach’s evidence given on examination for discovery and read-in at trial, and Dr. Ferguson’s testimony. I have also considered the evidence of all four experts called to testify at trial: Drs. Lightheart and Fruitman for the plaintiffs, and Drs. Oppenheimer and Davies for the defendant. I understand that contemporaneously created notes are distinguishable from late entry notes, as the latter are created after the fact at a time when memory may be more fragile and possibly coloured by the outcome of events. Nonetheless, an accurate picture of what precisely occurred in the minutes between 0330 and 0341 can only be accomplished with reference to all of the available evidence. In the analysis below, I have carefully considered and analyzed all the evidence tendered at trial.

v. How many decelerations were there between 0330 and 0341, how were they spaced in that interval, and how are they properly characterized?

Position of the Plaintiffs

[164] The plaintiffs noted that Nurse Lee charted four decelerations: two in the partogram (at 0335 and 0340/0341), and two in the late entry notes (at 0336 and 0337/0338). Nurse Lee’s rough notes indicate only three decelerations during the relevant period of time: 0335, 0336, and 0337/0338. The plaintiffs relied on the opinion of Dr. Fruitman, who testified that he identified two decelerations: one documented in the partogram at 0335 and in the late entry notes at 0336; and the other documented in the partogram at 0340 and in the late entry notes as 0337/0338. The plaintiffs conceded in closing that there were “probably” three decelerations (0334/0335, 0336, and 0337/0338), and that those decelerations may even have been “deep.” However, they maintained that none of the decelerations met the requirements to qualify as “complicated” under SOGC guidelines. Regardless of the number of actual decelerations, the plaintiffs argued that Nurse Lee’s contemporaneous notes are the most accurate information available to the court and that none of the decelerations were understood by Nurse Lee at the time to demonstrate any of the potentially worrisome features of a deceleration that would indicate the need to proceed to operative vaginal delivery.

Position of the Defendant

[165] Regarding the expert evidence concerning the FHR, Dr. Librach took the position that all experts ultimately agreed that, based on the records, there was a pattern of repetitive, deep decelerations. He also argued that, beyond their depth and repetitiveness, there were additional aspects of the decelerations which reinforced their non-reassuring nature: their duration (one minute or more), their loss of variability, and a slow return to baseline following each deceleration.

[166] All of the necessary prerequisites for operative vaginal delivery were met, most important of which were an engaged head, fully dilated cervix, ruptured membranes and an adequate pelvis. Dr. Librach’s Operative Note reveals that the persistent decelerations with contractions caused his intervention. He testified that the vacuum presented the safest and most rapid way to effect delivery, and that he anticipated being successful with the vacuum.

Findings and Analysis

[167] This issue is at the core of the plaintiffs’ case, and indeed of this case in its entirety. The plaintiffs’ position is, in essence, that Dr. Librach’s decision to apply the vacuum was a response to difficulties in picking up the FHR. In other words, prior to applying the vacuum, the FHR was not non-reassuring and Dr. Librach had no documented, credible reason to be non-reassured. Dr. Librach contended that there was ample support in the documentary evidence and in his own recollection of events to support his position that he applied the vacuum in response to deep, persistent and repetitive decelerations in the FHR, decelerations that caused him to become non-reassured prior to the vacuum’s application.

[168] The plaintiffs, at the outset of their written reply submissions, set out an “either/or” scenario as the fulcrum of this case. According to the plaintiffs, either the tracing was reassuring and Dr. Librach applied the vacuum in response to Nurse Lee’s difficulty in picking up the FHR, which would be an intervention without medical indication, or Dr. Librach was concerned about the FHR and resorted to the vacuum without obtaining additional information via a scalp clip or attempting less invasive IR measures, both of which would have provided a convincing and compelling indication for operative delivery.

[169] For the reasons that follow, I do not find that either of these scenarios accurately captures what transpired in the early morning of January 29, 1999. Rather, I am persuaded that there was a pattern of deep, persistent, and repetitive decelerations between 0330 and 0341. This pattern meets the definition of a non-reassuring pattern and was understood as such by Dr. Librach at the time. In other words, the FHR between 0330 and 0341 was an appropriate indication for obstetrical intervention.

[170] The parties agreed on the following:

1. A “deep” deceleration is one to 70 bpm or lower.

2. The criteria for a “complicated” deceleration are:

a. decelerations below 70 bpm that last longer than 60 seconds;

b. decelerations with a demonstrated slow return to baseline; or

c. decelerations with a demonstrated loss of variability in the baseline.

3. The experts were agreed that three or more deep, variable decelerations of a concerning nature are an appropriate indication for operative delivery.

4. The experts were agreed that FHR can be audible and visible to those in the room, even when it does not leave any evidence by tracing.

[171] The plaintiffs strongly cautioned against relying on the testimony of Drs. Librach and Ferguson with respect to whether the FHR was non-reassuring and provided indication for operative vaginal delivery. They urged the court to be guided by the contents of Ms. Long-Suwary’s obstetrical record, both generally but also specifically when at odds with Dr. Librach’s testimony at trial. They contended that both Drs. Librach and Ferguson testified only in a general manner that the FHR was audible and visible, without providing more concrete information or specifics. Nor would they be expected to, according to the plaintiffs, because it would be unrealistic to expect such detailed recall more than 15 years after the events in question.

[172] I accept the plaintiffs’ general proposition that Ms. Long-Suwary’s obstetrical records are an important, contemporaneous piece of documentary evidence. However, for the reasons outlined above, I do not give effect to their broader assertion that this court ought to place little or no weight on the testimony of Drs. Librach or Ferguson regarding what was audible or visible in the room. Dr. Librach did not rely solely on his recollection of events to defend this action. He relied on it to augment, supplement, and help interpret the documentary record. It is undisputed that there are gaps in the FHR tracing; Nurse Lee’s notes twice indicate a difficulty in picking up the FHR. It is also undisputed that the audible and visual components of the FHR would be sources of information available to those in the room that are presently unavailable for review. Even Mr. Suwary testified to hearing the audible FHR while in the delivery room. The experts differed with respect to how much information that is missing on the tracing would have been available to Dr. Librach aurally or visually. In this respect, I note that Nurse Lee’s own records twice chart decelerations down to 50 bpm, levels not seen on the paper tracing. This evidence was not challenged and strongly supports the conclusion that audible and visual information regarding the FHR was available to those in the room but does not survive in the tracing.

[173] A significant amount of evidence and testimony was called with respect to the number, spacing, and nature of decelerations in the period between 0330 and 0341. A summary of the evidence and testimony offered on this point will be helpful in the final analysis.

Partogram: Nurse Lee charted two decelerations in the partogram:

1. 0335 – deceleration to 50-70 bpm, up to 140 bpm

2. 0340/0341 – deceleration to 50-70 bpm, up to 140-145 bpm

Nurse Lee’s late entry notes: Nurse Lee charted two decelerations in her late entry notes:

1. 0336 – deceleration to 78 bpm, up to 140 bpm

2. 0337/0338 – deceleration to 74-95 bpm, up to 125-150 bpm

Nurse Lee’s rough notes: Nurse Lee’s rough notes chart three decelerations prior to application of the vacuum:

1. 0335 – deceleration to 50-70 bpm, up to 120-145 bpm

2. 0336 – deceleration to 78, up to 140 bpm

3. 0337/0338 – deceleration to 74-95 bpm, up to 125-150

Dr. Librach’s late entry notes: Dr. Librach produced the following documents:

1. Delivery Summary: “Pushing at fully [dilated]. … Decels with contractions therefore vacuum applied.”

2. Operative Report: “With contractions she pushed and there were decelerations noted by external monitoring. After a few contractions the decelerations persisted and it was decided to aid in her delivery.”

3. Admission Record: Contains no information regarding the decelerations.

[174] Dr. Lightheart: Dr. Lightheart identified the same three probable decelerations as Dr. Librach: 0334/0335, 0336, and 0337/0338. She did not identify a probable deceleration at 0340; rather, like Dr. Davies, she agreed that this was probably artifact. She testified that none of these decelerations were of a non-reassuring nature, and that they are more consistent with maternal pushing. In cross-examination, Dr. Lightheart agreed that the first deceleration had a documented recovery period of 45 seconds and that the total deceleration was “likely” longer than that. She agreed that 43 seconds of the second deceleration were visible on the incomplete tracing. Finally, she agreed that the third deceleration was 50 to 60 seconds in length, based on the tracing. Dr. Lightheart was adamant that no stretch of tracing from 0330 to 0340 was suitable for an assessment of variability in FHR due to gaps in the tracing record. She identified increased variability at 0341, following the application of the vacuum.

[175] Dr. Fruitman: Dr. Fruitman’s opinion was that the tracing for the period 0330 to 0341 contained so little information that he was not prepared to place reliance on it. In cross-examination, Dr. Fruitman did not identify the tracing at 0334/0335 as a deceleration. He identified the tracing at 0336 as a deceleration and agreed that it was longer than 35 seconds, but he could not identify how much longer. He identified the tracing at 0337/0338 as a probable deceleration but did not speculate as to its duration. Dr. Fruitman conceded that the nurse’s notes documented four decelerations, but maintained that there were in fact only two: the one in the partogram at 0335 and documented in the late entry notes at 0336; and the second in the partogram at 0340 and documented in the late entry notes at 0337/0338. Dr. Fruitman testified that there were no periods of sufficient tracing between 0330 and 0341 to permit an assessment of variability.

[176] Dr. Davies: Dr. Davies testified that there were at least four decelerations in the nurse’s notes. Based on a review of the tracing, he identified the following decelerations: 0333, 0334/0335, 0336, and 0337/0338. In closing arguments, the plaintiffs strongly argued against any interpretation of the tracing at 0333 as indicating a deceleration. Dr. Davies testified that the deceleration charted at 0340 “may” represent another deceleration at that time, though he did not identify it as such in his review of the tracing. Dr. Davies characterized the decelerations as a pattern of deep, repetitive decelerations and concluded that the tracing evidence in the period after 0331, taken collectively, was non-reassuring. Dr. Davies testified that the four decelerations show minimal variability, which is a reflection of a degree of hypoxia occurring in the fetus. The plaintiffs vigorously attacked this aspect of Dr. Davies’ testimony as well. He also testified that the tracing does not indicate the duration of the decelerations but that additional information would have been available to those in the room. Dr. Davies’ opinion was that the FHR information was non-reassuring and was an appropriate indication for operative vaginal delivery.

[177] Dr. Oppenheimer: Dr. Oppenheimer identified and labelled five decelerations on the tracing, identifying the same decelerations as Dr. Davies but identifying an additional deceleration at 0340. Dr. Oppenheimer opined that the timing of the decelerations lined up with the established pattern of contractions, occurring once every two minutes and lasting for one minute. Like Dr. Davies, he interpreted the tracing as showing a lack of variability in the decelerations. Ultimately, Dr. Oppenheimer opined that there was an appropriate indication for operative vaginal delivery at the time that Dr. Librach intervened.

[178] Dr. Librach: Dr. Librach recalled “at least three to five” decelerations in period 0330 to 0341. When taken through the tracing on cross-examination, Dr. Librach identified three probable decelerations in the period prior to 0341. He testified that the first deceleration was at 0335, as identified in the partogram. He observed another deceleration at 0336, which would correspond to Nurse Lee’s late entry and rough notes for 0336. He identified a third deceleration at 0337/0338. Dr. Librach testified that the depth and persistence of the decelerations was non-reassuring, but that the situation was not an emergency since they returned to baseline. Dr. Librach took the position that the deceleration charted at 0340 on the partogram was a fourth deceleration that preceded the vacuum’s application at 0341. The plaintiffs challenged Dr. Librach’s interpretation of the tracing on cross-examination. They read in his answers given on examination for discovery, during which he also interpreted the tracing evidence. The plaintiffs argued that these answers indicated that Dr. Librach was not non-reassured by the tracing. Rather, he indicated that the tracing was “reassuring” and returning to baseline at a normal rate.

[179] Dr. Ferguson: Dr. Ferguson recalled repetitive decelerations of the FHR. She testified to recalling “at least three” such decelerations. Upon review of the tracing, Dr. Ferguson identified four decelerations. The plaintiffs contended that the first three (0334/0335, 0336, and 0337/0338) corresponded to those identified by Dr. Librach. The plaintiffs strenuously argued against the existence of the fourth deceleration identified by Dr. Ferguson (at 0340+) on the basis that she was not an obstetrician and was not before the Court as an expert. Dr. Ferguson testified that Nurse Lee did not contemporaneously chart all decelerations, as evidenced by the decelerations added in her late entry notes. The plaintiffs asked the court to disregard this assertion as well. Dr. Ferguson testified that her “impression” at the time was that Dr. Librach was applying the vacuum in response to repetitive decelerations in the FHR. However, the plaintiffs noted that Dr. Ferguson did not describe these decelerations as “deep” or “complicated” while reviewing the tracing. Finally, Dr. Ferguson testified that the FHR was audible most of the time but that there were gaps, as documented by Nurse Lee at 0335 and 0340.

[180] I note that each side asked that I draw an adverse inference against the other for their failure to call Nurse Lee as a witness to testify on their respective behalves. I decline to do so. Nurse Lee’s notes formed an integral part of the evidence at trial and either party could have called her to explain and clarify them. Each side relied on her notes and their interpretation to support its case. While her testimony would undoubtedly have shed additional light on what happened during the crucial moments between 0330 and 0341, I do not see any principled basis upon which to draw an adverse inference against either party based on their failure to call her as a witness.

1. Number and timing of decelerations

[181] Based on my review of the documentary evidence, as well as the testimony of Drs. Librach and Ferguson and the experts giving evidence for both parties, I find that the following decelerations occurred prior to application of the vacuum:

1. 0334/0335: A deceleration is charted at 0335 in the partogram and in Nurse Lee’s rough notes. Drs. Lightheart, Davies, Oppenheimer and Ferguson all identified a deceleration at 0334/0335. Dr. Librach testified that a deceleration occurred at 0335. Dr. Fruitman identified a deceleration at 0335/0336 based on his review of Nurse Lee’s rough notes.

2. 0336: Nurse Lee’s late entry notes indicate a deceleration at 0336, as do her rough notes. Furthermore, each of Drs. Lightheart, Fruitman, Davies, Oppenheimer, Librach and Ferguson identified a deceleration at 0336 (though Dr. Fruitman did so in cross-examination only; based upon a review of Nurse Lee’s notes, Dr. Fruitman concluded that 0335/0336 represents a single deceleration.)

3. 0337/0338: This deceleration is charted in Nurse Lee’s late entry notes as well as her rough notes. Furthermore, upon review of the tracing, it was identified by Drs. Lightheart, Fruitman, Davies, Oppenheimer, Librach and Ferguson.

4. 0340+: A deceleration at 0340/0341 is charted in the partogram, and Dr. Librach testified that this deceleration occurred prior to application of the vacuum. A deceleration at 0340 was identified in the tracing by Dr. Oppenheimer. Dr. Davies testified that this tracing “may” represent another deceleration, though concluded that it was probably artifact, as did Dr. Lightheart. Dr. Ferguson identified a deceleration at 0340+ in the tracing and testified that this deceleration occurred prior to the vacuum. Dr. Fruitman identified the deceleration charted at 0340/0341 in the partogram as the same one at 0337/0338 in Nurse Lee’s rough notes.

[182] The plaintiffs conceded that there were probably three decelerations prior to the application of the vacuum. However, they strongly argued that the deceleration at 0340/0341 occurred after the vacuum was applied to Robert’s scalp and suction had commenced, relying on Nurse Lee’s late entry and rough notes (which suggest that the deceleration occurred after application of the vacuum). None of the plaintiffs’ experts identified the tracing at 0340/0341 as indicating a deceleration prior to application of the vacuum.

[183] In this regard, I accept the testimony of the two witnesses who were present in the delivery room and who can provide a firsthand account – Drs. Librach and Ferguson. We do not have Nurse Lee’s testimony to assist in interpreting her notes or in determining whether the deceleration at 0340/0341 occurred prior to or after the application of the vacuum. As the attending obstetrician, Dr. Librach was in the best position to recall the relevant sequence of these two events (the deceleration and the application of the vacuum). He specifically testified that the deceleration charted at 0340/0341 on the partogram occurred prior to the vacuum’s application. Furthermore, the beginning of the deceleration was identified by Drs. Ferguson and Oppenheimer as occurring at 0340, while the vacuum was not applied until 0341 according to the notes. A 0340 start is also confirmed in the partogram. I therefore accept the testimony of Dr. Librach on this point, which is confirmed by the circumstantial evidence of the relative sequence of these events.

2. Nature of the decelerations

[184] The plaintiffs’ position was that repetitive (i.e. three or more) decelerations, even if “deep,” do not constitute “complicated” decelerations and are not an indication for operative vaginal delivery. The plaintiffs maintained that none of the evidence suggests that the decelerations between 0330 and 0341 were “complicated” decelerations. The plaintiffs noted that none of Dr. Librach’s own late entry records describe the decelerations as “deep and prolonged.” They also pointed to answers given on examination for discovery, read in as “admissions” at trial, in which Dr. Librach did not identify any non-reassuring decelerations on a panel-by-panel review of the tracing in this case. They argued that this was evidence that Dr. Librach applied the vacuum in response to Nurse Lee’s reported difficulty in picking up the FHR and not out of concern for fetal well-being. The plaintiffs also argued that Dr. Librach had offered four different explanations as to whether, when and why he was non-reassured when he applied the vacuum.

[185] Dr. Librach maintained that the decelerations were repetitive, deep, and non-reassuring. Dr. Ferguson testified that her “impression” at the time was that Dr. Librach applied the vacuum in response to the decelerations. Finally, Drs. Davies and Oppenheimer both testified that Dr. Librach’s intervention was medically indicated on the basis of the nature of the decelerations.

[186] I have already determined that Dr. Librach applied the vacuum in response to being non-reassured by the FHR pattern. I am therefore left to determine whether the documented decelerations in the period 0330 to 0341 were in fact of a non-reassuring nature such that Dr. Librach’s decision to use the vacuum was medically indicated. In order for them to constitute grounds for obstetrical intervention, the repetitive decelerations must have been “complicated.” As indicated, the parties were agreed on the criteria to be applied in determining whether a deceleration is complicated. They disagreed with respect to whether the decelerations in this case meet that definition.

[187] I note at this juncture that it may not be appropriate to, in the words of Dr. Oppenheimer, “adhere slavishly” to guidelines for what constitutes a “deep,” “prolonged,” or “variable” deceleration and what may therefore be indicative of the need for operative vaginal delivery. A deceleration may not quite reach 70 bpm, or may last close to but not quite 60 seconds, and still be cause for concern. Dr. Oppenheimer testified that decelerations which go very close to 70 bpm, particularly in the context of other decelerations which do go below 70bpm, would still be considered “clearly deep.” In his experience, when decelerations “get deep, they tend to be consistent.” It would be “splitting hairs” to suggest these decelerations that are just above 70bpm do not meet the definition of “deep.” Dr. Davies echoed this position, indicating that the guideline numbers are just generalized numbers, and that if a deceleration goes “to 72 instead of 70” or lasts “55 seconds instead of 60 or 50 seconds instead of 60” it would not change the significance. Dr. Lightheart admitted in cross-examination that obstetricians form general impressions and do not necessarily make fine distinctions. Therefore, while the plaintiffs argued that only one of the three decelerations identified by Dr. Librach was “deep,” the others were close enough to 70 bpm that I would not impugn his exercise of clinical judgment on this basis alone. The exercise of clinical judgment means the ability to determine, with some leeway and in all of the circumstances, that a particular deceleration or series of decelerations meets the definition of “deep,” “prolonged,” “variable,” or “complicated,” even if it does not do so, strictly speaking.

[188] I find that the decelerations between 0330 and 0341 were “deep.” The plaintiffs argued that only one of the decelerations met the clinical definition of “deep,” that being the deceleration charted in the partogram at 0335 at 50-70 bpm. They seemed to concede that a deceleration “within that range but possible higher” could possibly be characterized as deep upon review. I have no hesitation in characterizing all four decelerations as “deep.” Those charted in the partogram descended to a range of 50-70 bpm, while the others (78 bpm at 0336 and 74-95 bpm at 0337/0338) descended close enough to the 70 bpm benchmark.

[189] I also find that the decelerations in that time period were “complicated” and warranted intervention. First, I find that the decelerations were likely close to 60 seconds each in their duration, if not longer. The parties are agreed that repetitive, deep decelerations lasting longer than 60 seconds are “complicated” and constitute indication for intervention. I accept Dr. Davies’ testimony that although gaps in the tracing mean that there is no physical evidence that the decelerations lasted greater than 60 seconds, additional information was available to those in the room upon which to base a decision. Dr. Oppenheimer opined that the contractions occurred at regular intervals and lasted approximately one minute. When taken through the various decelerations in cross-examination, Dr. Lightheart acknowledged that only 43-60 seconds of each deceleration were visible on paper but that each was potentially longer than what was documented in the tracing. Therefore, based upon the tracing and reasonable extrapolations therefrom, I find that the decelerations lasted in the vicinity of 60 seconds, if not longer. The depth and duration of the decelerations made them “complicated,” and Dr. Librach’s non-reassurance is medically supported on that basis alone.

[190] However, I also accept the evidence of Drs. Oppenheimer and Davies that the tracing displays minimal variability, and that this reflects a concerning level of fetal hypoxia. Both Drs. Fruitman and Lightheart insisted that no stretch of tracing was appropriate for an assessment of variability due to gaps in the tracing record, though Dr. Lightheart did identify increased variability at 0341, at a time following the vacuum’s application. The position taken by Drs. Lightheart and Fruitman on the issue of variability was singularly unhelpful to the task at hand. Given my findings with respect to Dr. Lightheart’s credibility, I have not relied on her testimony on this issue. I accept that the decelerations reveal a loss of variability, and that both parties acknowledged that loss of variability renders repetitive decelerations “complicated.” Therefore, the loss of variability coupled with the repetitiveness of the decelerations means that vacuum intervention was medically indicated. This indication for intervention existed independently of the indication provided by the depth and duration of the repetitive decelerations. However, it undoubtedly added to the sense of urgency felt by Drs. Librach and Ferguson.

[191] Finally, the plaintiffs contended that nothing in the contemporary notes indicates that Nurse Lee or Dr. Librach considered these decelerations to be “deep,” “prolonged” or “complicated” at the time. They have effectively asked me to draw an inference against Dr. Librach on the basis that the obstetrical records do not make sufficient explicit reference to these concepts. First, I reiterate that Dr. Librach’s Operative Report and Delivery Summary suggest that the decelerations caused the intervention. To a certain extent, the fact that the decelerations were non-reassuring is implicit in these documents. Second, while it is true that the obstetrical record does not explicitly refer to “deep,” “prolonged” or “complicated” decelerations, the data recorded in the partogram, Nurse Lee’s late entry notes, and Nurse Lee’s rough notes provide objective confirmation that the decelerations were, at the very least, repetitive and deep. The testimony of Drs. Librach and Ferguson confirms that the decelerations were worrisome, and they are supported in this interpretation by the testimony of Drs. Davies and Oppenheimer.

vi. Even if Dr. Librach was non-reassured by the FHR, should he have applied a scalp clip prior to resorting to the use of the vacuum?

Position of the Plaintiffs

[192] The plaintiffs took the position that the information available to Dr. Librach from 0330 onwards regarding FHR was incomplete and did not serve as a proper indication for operative delivery with the vacuum at 0341. In the alternative, the plaintiffs argued that even if Dr. Librach was non-reassured as to fetal well-being from 0336, accepted standards of practice called for the placement of a scalp clip (or “scalp electrode”) to directly and continuously monitor FHR and provide better information upon which to base a decision.

[193] The plaintiffs suggested that the testimony of Drs. Librach and Ferguson regarding audible heart sounds coming from the fetal heart monitor was sheer speculation. They argued that Nurse Lee’s charting at 0335 and 0340 is objective, credible, and reliable evidence that the FH was not audible for periods of time between 0330 and 0340.

[194] The plaintiffs characterized the choice, as of 0340, between “action” (the vacuum) and “further assessment” (a scalp clip) as a “false dichotomy.” They alleged that Dr. Librach would have had plenty of time to apply a scalp clip had he done so as of 0336, the time at which he first became non-reassured regarding the FHR.

Position of the Defendant

[195] Dr. Librach argued that the issue of whether a scalp clip should have been applied is irrelevant. It would likely have confirmed the pattern of deep decelerations and would not have altered his course of action, one which was based on his non-reassurance regarding the FHR.

Findings and Analysis

[196] I have already determined that Dr. Librach became non-reassured by decelerations in the FHR that occurred between 0330 and 0341. However, I must decide whether this non-reassurance ought to have been dealt with by placement of a scalp clip in order to obtain better information upon which to base any subsequent decision. For the reasons that follow, I would not give effect to this aspect of the plaintiffs’ claim. The decision to not apply the scalp clip was within the clinical judgment of Dr. Librach.

[197] First, as indicated above, a non-reassuring FHR was an indication to proceed directly to operative vaginal delivery. To that extent, the plaintiffs are incorrect to assert that Dr. Librach ought to have applied a scalp clip in response to being non-reassured at 0336. Prior to his application of the vacuum, Dr. Librach had sufficient information to be non-reassured regarding the FHR, and this alone was enough information. It would perhaps have been within accepted standards of practice to obtain more information through the application of a scalp clip. This does not mean that the failure to do so was necessarily outside accepted standards of practice.

[198] Second, the plaintiffs’ position with respect to the application of a scalp clip is only valid if one accepts the premise of their broader argument: that Dr. Librach proceeded to the vacuum on the basis of Nurse Lee’s difficulty in picking up the FHR, and not out of legitimate concern for fetal well-being. If indeed Dr. Librach had resorted to the vacuum based solely on the difficulties the medical team was having with respect to monitoring the FHR, the plaintiffs’ position would make sense. In that case, it is arguable that Dr. Librach would have been obliged to at least attempt to obtain better information regarding the FHR before proceeding to the vacuum.

[199] However, those are not the facts as I have found them. There are documented difficulties in maintaining continuous FHR tracing, both in Nurse Lee’s notes and in the testimony of Drs. Librach and Ferguson. However, Dr. Librach testified that he intervened because he became non-reassured about the FHR, and there is ample documentary evidence, reviewed at great length above, to support this proposition. Drs. Oppenheimer and Davies testified that once an obstetrician has information that causes him to become non-reassured, the situation is urgent and action is required.

[200] Had Dr. Librach had inadequate information to provide an indication for operative vaginal delivery, he may have been obligated to obtain more and better information prior to proceeding. But that is simply not the case. Dr. Librach had enough information to establish a pattern of repetitive, deep decelerations. This pattern caused him to become non-reassured. There was no need to gather additional information. In fact, the scalp electrode would not have provided any different information (as Drs. Fruitman and Lightheart conceded in cross-examination), and its application would have unnecessarily and dangerously delayed Dr. Librach’s operative intervention. Dr. Librach had serious concerns about fetal well-being and he acted with dispatch based on those legitimate concerns.

vii. Had the scalp clip revealed a worrisome FHR, should Dr. Librach have attempted intrauterine resuscitative measures prior to resorting to the use of the vacuum?

Position of the Plaintiffs

[201] The plaintiffs argued that, had application of the scalp clip produced a tracing that revealed worrisome decelerations, Dr. Librach should have attempted IR measures prior to resorting to operative vaginal delivery. According to Drs. Lightheart and Fruitman, the accepted standards of practice demanded attempted IR measures as a first recourse prior to operative vaginal delivery. Pointing to discrepancies in his trial testimony and evidence given on examination for discovery, the plaintiffs argued that it was Dr. Librach’s practice to employ IR measures (not just consider them), and that he had admitted that such measures were required by accepted standards of practice in the circumstances. The question at this stage is whether accepted standards of practice required that IR measures be attempted – the question of whether they would have worked or not is properly dealt with under the rubric of causation.

Position of the Defendant

[202] As with the scalp electrode, Dr. Librach took the position that his decision to proceed with operative vaginal delivery rather than attempting lateral repositioning (an IR measure) was a reasonable exercise of clinical judgment. Dr. Librach disputed the characterization of his evidence on discovery and maintained that it was his practice to consider resuscitative measures. He testified that he opted for the vacuum as it would guarantee the alleviation of the non-reassuring fetal heart problem, whereas Dr. Davies testified that it would take 5-10 minutes or longer to determine whether the IR measures have had any effect. In essence, the fact that the SOGC indicated delivery as a clinical action when faced with a pattern of variable decelerations with decreased FHR means that it cannot be a breach of the standard of care.

Findings and Analysis

[203] Dr. Librach attempted one IR measure – the wedge – at 0337. In his testimony, the manoeuvre had “no effect at all,” and the FHR suffered further deep, repetitive decelerations. The plaintiffs acknowledged that “the wedge” constituted an attempted resuscitative manoeuvre. However, they disputed the claim that it did not improve the FHR. They conceded that there was at most one further deceleration (at 0340), though they vigorously maintained that the court should reject this interpretation of the evidence and find that there was no deceleration at 0340 and consequently, that there were no decelerations between the wedge (0337) and the application of the vacuum (0341).

[204] The plaintiffs argued that Dr. Librach ought to have attempted other IR measures prior to the vacuum, specifically referring to lateral repositioning. His failure to do so was a departure from accepted standards of practice and did not represent a reasonable exercise of clinical judgment, according to the plaintiffs. For the reasons that follow, I agree with Dr. Librach that his decision to forego any attempt at lateral repositioning and move straight to the vacuum was a reasonable exercise of his clinical judgment.

[205] I reject the plaintiffs’ assertion that Dr. Librach had agreed that it was his practice to employ IR measures. This is not how I read his evidence given on examination for discovery. Such an interpretation would require me to assume that he always employed IR measures. I accept that he always considered whether IR measures were appropriate. I do not accept that he testified that it was his practice to always employ them. I pause to note that Dr. Librach did attempt one IR measure in this case, to no avail.

[206] Nor do I accept that the use of IR measures prior to vacuum intervention was required by accepted standards of practice. The SOGC Policy Statement on Fetal Health Surveillance in Labour (March 1995) indicates that “delivery may be necessary” in situations involving a worrisome pattern of variable decelerations associated with decreased FHR variability or variable decelerations with slow recovery.

[207] Dr. Lightheart testified that lateral repositioning will resolve FHR abnormalities in most cases, whether the underlying cause is uterine pressure on the maternal great vessels or pressure on the umbilical cord. However, I do not accept her testimony on this point in light of her palpable desire to support the plaintiffs’ claims and of the other evidence in the case.

[208] I accept Dr. Davies’ evidence that IR measures tend to be used more frequently in the first stage of labour when the only option for delivery is to move to a C-section. In that stage, obstetricians do not have the option of proceeding to vaginal delivery because the patient is not yet fully dilated. The uncontroverted evidence in this case is that Ms. Long-Suwary was fully dilated and that vaginal delivery was possible.

e. If use of the vacuum was medically indicated, did Dr. Librach’s decision to proceed with vacuum-assisted delivery in the labour room fall below the accepted standards of practice?

[209] Dr. Librach made the decision to attempt vacuum delivery in the delivery room rather than the O.R. The parties agreed that it was open to Dr. Librach to transfer Ms. Long-Suwary to the O.R. before attempting delivery with the vacuum. Dr. Librach admitted this in his testimony.

[210] It was the position of the plaintiffs that his failure to do so was a breach of accepted standards of practice. In contrast, Dr. Librach argued his decision was appropriate and in line with accepted standards, as evidenced by hospital and SOGC guidelines.

Position of the Plaintiffs

[211] The plaintiffs argued that Dr. Librach knew or ought to have known that there were several factors predictive of failed operative vaginal delivery. These included the increased maternal age, higher body mass index, fetal macrosomia, the fact that delivery was from the mid-pelvic cavity, the OP position of the fetal head, and the induction of labour. Because of the potential failure of the vacuum, they submit that its use in the delivery room carried increased risk, and Ms. Long-Suwary should have been moved to the O.R. before the vacuum was attempted. In these circumstances, the use of the vacuum should have been considered a trial instrumental delivery.

[212] The SOGC Attendance Guidelines for 2000, which all parties agreed reflected the standard of care in 1999, provided as follows in paragraphs 9 and 10:

9. For planned delivery from the mid-pelvic cavity with forceps or vacuum, breech or twin vaginal birth, a Caesarian section should be immediately available. The presence and availability in the hospital of anaesthetic, obstetrical, neonatal and nursing personnel trained in Caesarian delivery are essential.

10. Mid-cavity deliveries with forceps or vacuum, breach vaginal delivery and multiple gestations can be attempted in the delivery suite or the operating room.

[213] The plaintiffs argued that the mandatory “presence and availability in the hospital” of the enumerated personnel, as per para. 9 of the SOGC Attendance Guidelines, required in this context that the procedure to be done in the O.R. They indicated that because forceps rotation and C-section were both back-up options identified by Dr. Librach, he was required to have these options immediately available in the O.R. to respond to the risk of failure of vacuum delivery.

[214] In their written closing submissions, the plaintiffs also relied in part on the recent Supreme Court case of Ediger v. Johnston, 2013 SCC 18, [2013] 2 S.C.R. 98. In that case, the doctor attempted mid-level forceps rotation and delivery without taking steps to ensure surgical backup was immediately available. The trial judge found that the application of the forceps likely caused the obstruction of the child’s umbilical cord and led to bradycardia. The Supreme Court confirmed the trial judge’s finding that the doctor should have known of the risk of bradycardia resulting from mid-level forceps rotation and that it was a breach of the standard of care for him to fail to have surgical backup immediately available before attempting the forceps delivery.

Position of the Defendant

[215] Dr. Librach relied on the same SOGC Attendance Guidelines, reproduced above, and hospital policy as supporting his position that it was appropriate for him to use his clinical judgment and proceed with the vacuum in the delivery room.

[216] The defendant pointed to para. 10 of the SOGC Attendance Guidelines as directly contradicting the plaintiffs’ argument. Dr. Librach was conducting a mid-cavity delivery with vacuum, which the guidelines specifically indicate can be conducted in either the delivery suite or the O.R. The hospital policy “Standard of Nursing Care: Vaginal Delivery” indicates that all forceps rotation deliveries are to be in an O.R. Accordingly, Dr. Librach transferred Ms. Long-Suwary to the O.R. before attempting the forceps rotation. In contrast, it was reasonable for him to attempt the vacuum in the delivery room, as permitted by the SOGC Guidelines.

Findings and Analysis

[217] I do not find that the case of Ediger v. Johnston assists the plaintiffs. That case dealt with a mid-level forceps rotation and delivery. The court accepted that such a procedure carries a known risk that rotation could cause the obstruction of the umbilical cord. The forceps’ displacement of the head could leave a space into which the cord could fall and subsequently become compressed.

[218] The same risk does not exist for the use of a vacuum. The difference in risk is reflected in the SOGC guidelines, which require forceps rotation to be done in an O.R., and do not require the same for vacuum delivery.

[219] In this case, I find there was no known risk which Dr. Librach disregarded. I specifically reject the plaintiffs’ contention that Dr. Librach “assumed” – in other words, decided without applying his professional judgment to the information available – the vacuum would succeed. I accept his testimony that he used his clinical judgment and determined the vacuum had a likely chance of success and offered the quickest and best option in the face of the non-reassuring FHR. This was a reasonable conclusion in the circumstances, given his experience with the vacuum and his knowledge of Ms. Long-Suwary’s history.

[220] “Immediate availability” of C-section is required by the SOGC Attendance Guidelines for delivery from the mid-pelvic cavity with forceps or vacuum. “Immediate availability” is defined in the same document as the presence in the hospital of an anaesthetist and nursing staff trained in C-sections. The definition does not require these personnel to be present in the room, or require the vacuum to be attempted in the O.R. In this case, the personnel were immediately available. When the vacuum proved unsuccessful after three pulls, anaesthesia and paediatrics arrived within minutes of being paged and there was no undue delay in carrying out the forceps rotation.

[221] The parties generally disputed the extent to which Ms. Long-Suwary’s previous successful vaginal deliveries could reasonably support a belief that she could successfully deliver Robert with the assistance of the vacuum. Dr. Librach relied on the two successful births, one of a macrosomic baby and with vacuum assistance, as indicating a high chance of success in this case. The plaintiffs relied on the differences between Kylie’s delivery and Robert’s as indicative of a high likelihood of vacuum failure.

[222] Based on the SOGC guidelines, the testimony of Dr. Librach, and expert opinion at trial, I do not find that fetal station or position, or possible macrosomia, created a risk such that it was a breach of the applicable standard of care for Dr. Librach to attempt the vacuum in the delivery room.

[223] No expert testified that macrosomia is a contraindication for the vacuum. I accept Dr. Fruitman’s testimony that macrosomia is associated with a risk of failure of the fetus to progress during birth and with a risk of shoulder dystocia. However, macrosomia does not in itself preclude vaginal or operative vaginal delivery. The SOGC Attendance Guidelines are, I find, reflective of the standard of care, and these guidelines specifically allow for mid-pelvic cavity delivery with forceps or vacuum in the delivery room.

[224] Further, the fetal OP position does not preclude vacuum use in the delivery room. Drs. Fruitman and Lightheart conceded on cross-examination that babies in OP will often rotate naturally as they descend, whether that descent occurs naturally or through vacuum extraction. Dr. Librach testified that as of 1999 he had successfully delivered babies in the OP position from the mid-pelvis “many times” with use of the vacuum.

[225] All the experts agreed that the guidelines allowed mid-pelvic delivery to be carried out in the delivery room, including with forceps and vacuum. The experts differed on their opinion as to what they would have done, and what was appropriate, in the circumstances of Ms. Long-Suwary’s delivery.

[226] Dr. Lightheart testified that in the circumstances (mid-pelvic station, malpresentation and a likely big baby) the safe and prudent place to be would be the O.R. Dr. Fruitman indicated that if there is a significant possibility of failure with the vacuum it should be attempted in the O.R., because that attempt is likely to cause further compression. Drs. Oppenheimer and Davies emphasized that location was a matter for the clinical judgment of the obstetrician, and that given the high likelihood of success of the vacuum, moving the patient would in most cases simply cause unnecessary delay in the presence of a non-reassuring pattern of FHR. In the context of repetitive deep decelerations, the objective would be to deliver the fetus as quickly as possible. Dr. Davies emphasised that certain features are associated with (as distinguished from predictive of) failed operative vaginal delivery, but that it was a reasonable choice for Dr. Librach to expect to succeed with the vacuum and to therefore proceed in the delivery room.

[227] The combined testimony of the experts indicates that the choice of location for the vacuum procedure was one of clinical judgment. The experts differed in their emphasis of the various factors, but I do not find that the plaintiffs have succeeded in demonstrating that Dr. Librach’s decision was an unreasonable one or fell below the standard of care. It was informed by the patient’s past birth history, the objective of quick delivery in the face of repetitive deep decelerations in FHR, and the rate of success of the vacuum.

[228] Dr. Oppenheimer testified that the vacuum has only an 11% failure rate (an 89% chance of success), as compared to the forceps’ 7.5% failure rate (or 92.5% chance of success). While the difference is statistically significant, Dr. Oppenheimer testified that this difference is not significant “in the general sense” of the word. Both have a very high success rate. In addition, the vacuum offers other benefits over forceps, including less risk of maternal trauma, less need for anaesthesia, and therefore the advantage of speed.

[229] Finally, I note the somewhat inconsistent nature of the plaintiffs’ argument on this ground. Their primary position was that it was not reasonable for Dr. Librach to apply the vacuum at 0341 because there was no sign of fetal distress warranting operative vaginal intervention. Their position here is that Dr. Librach failed to respond appropriately to the risk, and that at 0340, Dr. Librach should have known that Robert was at increased risk of serious birth injury.

[230] The only way these two arguments can be reconciled is if there was a known risk that the vacuum would lead to bradycardia. Only in that case would it be reasonable for Dr. Librach not to have been concerned that the pattern of deep, repetitive deceleration before 0340 might lead to a bradycardia, but nevertheless to be concerned about the application of the vacuum.

[231] After the attempted use of the vacuum, the FHR became bradycardic. However, bradycardia is not a known risk of the vacuum. The plaintiffs’ argument was premised on the assumption that there was a recognized risk of bradycardia associated with failed vacuum use. Such an assumption is not supported by the evidence.

f. If any of Dr. Librach’s decisions or actions fell below the accepted standards of practice, did those decisions or actions cause the injuries to Robert?

[232] The plaintiffs must demonstrate on a balance of probabilities not only that Dr. Librach’s conduct fell below the standard of care, but also that “but for” his negligent conduct, Robert’s injury would not have occurred. While, for reasons set out above, I do not find that Dr. Librach’s conduct fell short of the applicable standard of care, I must now consider whether, had I found any breach of the standard of care, such breach could be said to have caused Robert’s injury.

[233] For the reasons that follow, I find that the evidence does not support a finding that Dr. Librach’s conduct caused or contributed to the injury.

i. Nature, extent, and cause of Robert’s brain injury

[234] There is no real dispute between the parties with respect to the nature, extent, and general cause of Robert’s brain injury. The parties agree that Robert’s cerebral palsy is attributable to an acute near total brain injury. The interruption of blood supply and oxygen to the brain resulted in a pattern of injury to the deep structures of the brain.

[235] Dr. Armstrong, a pediatric neuroradiologist who testified on behalf of the plaintiffs, described the results of the MRI performed on Robert in March 2000, after his diagnosis with cerebral palsy, and indicated that the affected areas of the brain included the posterior putaminae, basal gangli thalami, internal capsules, corticospinal tracts, and rolandic cortex. These injuries result in a pattern of motor and cognitive impairment that includes, among other things, difficulties with communication and swallowing and learning disabilities.

ii. Probable timing and mechanism of Robert’s brain injury

[236] The parties and the experts in obstetrics all agreed that the blood supply to Robert’s brain was interrupted due to an occult cord prolapse. It is most likely that the cord was positioned behind the fetal head. As the head came down, it therefore compressed the cord. This was in turn responsible for the deep decelerations in FHR, indicating an interruption in blood supply.

[237] There was consensus that brain injury would occur about 10-15 minutes after the flow of blood was interrupted and that the injury could continue for some short period of time, perhaps two minutes, after birth.

[238] The parties also agree that there were decelerations in FHR before the vacuum was applied at 0341; that bradycardia commenced at 0342, subsequent to the application of the vacuum; and that at 0402, following the forceps rotation, the FHR returned to normal range.

[239] While the general mechanism of injury is therefore common ground between the parties, their positions differ with respect to exactly when and how the occult cord prolapse led to the acute near total interruption in blood supply. Specifically, the parties disagree as to whether the application of the vacuum caused the acute near total interruption in blood supply and the resultant injury, or whether that interruption began before the use of the vacuum and would have occurred in any event as the head descended through labour.

Position of the Plaintiffs

[240] As detailed above, the plaintiffs conceded that there were probably three decelerations in FHR between 0335 and 0341, before the application of the vacuum. It is not disputed that these decelerations represented interruptions in blood flow. However, the plaintiffs contended that these interruptions were not of sufficient duration or frequency to impact fetal well-being. Dr. Yaeger, who testified for the plaintiffs, indicated that after each of these decelerations, the FHR recovered to normal baseline, suggesting these decelerations were not of a level to cause or contribute to brain injury.

[241] The plaintiffs argued, and Dr. Lightheart testified that, even if a cord is positioned behind or beside the head during labour, this circumstance can resolve itself in the course of labour without intervention, for example if the fetus turns from the OP position normally with pushing in the second stage of labour. Descent of the fetal head need not, on its own, exacerbate the compression.

[242] In the plaintiffs’ submission, the application of the vacuum caused the abrupt decrease in FHR and the acute near total interruption in blood supply to his brain. When traction was exerted on the fetal head by the vacuum, the cord was further compressed, causing interruptions in blood flow sufficient to create injury. Had Dr. Librach not applied that vacuum, Robert would not have suffered the acute near total brain injury that he did.

Position of the Defendant

[243] The defendant argued that the “asphyxial event,” meaning the compromise of cardiac and circulatory function, began with the first deep deceleration at 0335, and bradycardia would have occurred around 0341 with or without use of the vacuum. As the baby moved through the birth canal, there would be more intense compression and likely complete occlusion of the cord, resulting in the conversion of severe variable decelerations to bradycardia.

[244] The defendant testified that in his opinion the cord was partially obstructed at 0335, before the application of the vacuum, and that the cord was compressed with descent of the fetal head through labour. As suggested by the testimony of Dr. Davies, the cord was likely wedged between the fetal head and the uterine side wall. Every time the head was pushed down through labour, the head would push against the cord, beginning with the first observed deceleration at 0335. This theory is consistent with the observed relief in the FHR pattern that occurred with the forceps rotation at 0402. Such relief would only have occurred with head rotation if it was in fact the head that was compressing the cord.

[245] The application of the vacuum was incidental to the occult cord prolapse. It did not cause the prolapse. Bradycardia was the culmination of a problem that had begun before the application of the vacuum and would have occurred as the head descended, by whatever means. The act of pushing itself increased compression on the cord.

Findings and Analysis

[246] My findings with respect to the number, nature, and spacing of the decelerations between 0330 and 0341 are pertinent to this issue. As indicated above, I have found that there were four decelerations in the period between 0334/0335 and 0340+, prior to the application of the vacuum. I found they were deep, they lasted 60 seconds each, if not more, they were repetitive, and they constituted grounds for obstetrical intervention.

[247] I find that – to use Dr. Oppenheimer’s phrase – the vacuum was “somewhat incidental to the problem” of the cord prolapse and did not cause the prolapse. The pattern of deep, repetitive, and complicated decelerations in FHR that began at 0335, as well as the relief observed at 0402, are both consistent with the theory that the cord was already obstructed and was being compressed with the descent of the fetal head. Such a finding is also consistent with the testimony of the experts, considered together.

[248] Dr. Lightheart agreed that a pattern of worsening decelerations followed by bradycardia usually indicates cord compression. She however did not believe there was a pattern of worsening decelerations from 0330 to 0341 that would suggest impending bradycardia.

[249] Dr. Fruitman was of the view that the prolapsed cord was likely in position to do damage before the application of the vacuum. This means that further compression of the cord would have occurred whether or not the vacuum was used.

[250] Dr. Oppenheimer was of the opinion that the cord prolapse rather than the vacuum was the cause of the FHR abnormalities, including the bradycardia. This is supported by the fact that the vacuum only goes on the exterior portion of the head, and does not go near the cord. Dr. Oppenheimer agreed that the same damage to the fetus would have occurred whether or not there had been a trial of the vacuum.

[251] I find no causal relationship between Dr. Librach’s conduct and the event of injury to Robert. As all four experts have concluded, there is no theory capable of explaining why the occult cord prolapsed. Once the cord was prolapsed, further compression would have occurred with or without the vacuum. The vacuum cannot be said to have caused the injury.

[252] I reject the plaintiffs’ assertion that the prolapse could have resolved itself through the normal course of labour, had the vacuum not been used. Consistent with the testimony of Drs. Oppenheimer and Davies, I find that the cord was compressed between the head and the pelvis before the application of the vacuum. This is consistent with the pattern of FHR decelerations observed before the decision to use the vacuum, and with the information gleaned after the fact regarding the likely position of the cord at that time. Dr. Librach’s decision to use the vacuum to attempt quick delivery (delivery representing the best way to relieve the cord compression) cannot be said to have caused the injury.

[253] Circulatory dysfunction began to occur around 0335. Dr. MacGregor, who is a pediatric neurologist at the Sick Children’s Hospital, testified that when this type of insult begins, there is an immediate injury to the highly metabolic, more vulnerable parts of the brain.

iii. No acute near total brain injury but for Dr. Librach’s failure to transfer to the delivery room for vacuum attempt

Position of the Plaintiffs

[254] Because in the plaintiffs’ submission the vacuum caused the near total interruption in blood supply to Robert’s brain, the delay necessitated by the transfer to the O.R. for forceps rotation becomes relevant to the plaintiffs’ argument on causation.

[255] Had Dr. Librach undertaken the vacuum procedure in the O.R., the delay created by the transfer from the delivery room to the O.R. (which all parties agree would have to have occurred at some point) would have occurred before the vacuum rather than after, and therefore, in the plaintiffs’ submission, before the acute near total interruption of blood supply to Robert’s brain commenced. This, in turn, would have decreased the duration of the acute near total event to within the 10-15 minute window.

Position of the Defendant

[256] The defendant argues that, since in his submission the insult began at 0335, the injury would have resulted as of approximately 0345, regardless of Ms. Long-Suwary’s location during the intervening 10 minutes. If, rather than attempting use of the vacuum in the delivery room at 0340/0341, Dr. Librach had commenced the process of transferring Ms. Long-Suwary to the delivery room, the damage to the fetus would have occurred as she was en route to the O.R., rather than before. Either way, the eight minutes of transfer time would have occurred before the forceps rotation could occur (such rotation requiring transfer to the O.R.).

Findings and Analysis

[257] Having found that the insult began around 0335 and preceded the application of the vacuum, I accordingly do not find that the timing of the transfer to the O.R. had any effect on the injury that occurred. I find, consistent with the opinion of Dr. Yaeger, that the deep decelerations would have culminated in bradycardia in any event, and this means that an earlier transfer to the O.R. would have made no difference.

[258] I agree with the assertion by the defendant that three discreet steps – vacuum application, transfer, and forceps rotation – had to occur, and that the shortest period of time for all three of these steps to occur would be about 25 minutes. The order of these steps had no effect on the ultimate result.

[259] The plaintiffs, despite their assertion to the contrary, attempted to prove that Dr. Librach ought to have foreseen the precise combination of events that led to Robert’s brain injury, when, as I have said, this precise series of events could not have been known. With the exception of Dr. Lightheart, the obstetrical experts agreed that occult cord prolapse is highly unusual and could only be diagnosed after the fact, so no blame for failing to detect the injury could be attributed to Dr. Librach.

[260] The plaintiffs attempted to essentially chart an ideal course of action that, if pursued in a precise order and precise manner, could have prevented the prolonged interruption in blood supply and Robert’s brain injury. I agree that, had everyone involved had the benefit of perfect hindsight, and known the position of the cord at 0335, that the fetal head was causing cord compressions that would worsen as the head descended, and that the vacuum attempt would not succeed, it could be that a perfect intervention strategy might have been crafted to avoid or reduce the injury that occurred. I sympathize with the anguish that must certainly attend the plaintiffs’ sense that Robert’s injury was therefore not in the strictest sense inevitable. There can be no doubt that these events have had a catastrophic effect on the Suwary family.

[261] Nevertheless, Dr. Librach’s conduct can only be evaluated on the basis of information that could reasonably have been available to him at the time. While, as the plaintiffs submitted, it is open to the court to have regard to information gleaned after the fact when determining causation, it is not appropriate in these circumstances to suggest that Dr. Librach should have known or been able to predict all of this information at the time. I therefore conclude that even had I found Dr. Librach’s conduct to have fallen below the standard of care, such breach cannot be said to have caused the harm done to Robert.

7. CONCLUSIONS

[262] As Ms. Long-Suwary’s obstetrician, Dr. Librach owed Ms. Long-Suwary a duty of care. Furthermore, Robert suffers from serious, lifelong injuries which will affect him and those who care for him for years to come.

[263] However, for the reasons set out above, I have determined that Dr. Librach is not responsible for the injuries sustained by Robert in the course of his delivery. Dr. Librach was aware of and accounted for any risks associated with Ms. Long-Suwary’s pregnancy. Dr. Librach had Ms. Long-Suwary’s informed consent to proceed with vacuum-assisted delivery. Moreover, vacuum-assisted delivery was medically indicated by a series of repetitive, deep decelerations of the FHR. These decelerations had other features – a duration of 60 seconds or longer and decreased variability – that caused Dr. Librach to become non-reassured and prompted his resort to the vacuum to expedite delivery. Dr. Librach’s decision to proceed with vacuum-assisted delivery in the delivery room accorded with SOGC guidelines and accepted standards of practice. In the face of the non-reassuring FHR, Dr. Librach used his professional judgment and determined that the vacuum was the best method of intervention in the circumstances. Finally, I am not able to determine on a balance of probabilities that application of the vacuum caused Robert’s injuries.

[264] For all of these reasons, I am not satisfied that the plaintiffs have proven their claims on a balance of probabilities. Accordingly, the claim for damages arising from alleged negligence is dismissed.

[265] If the parties are unable to agree on the matter of costs, they may file written submissions according to the following timetable: the defendant, within 30 days of receipt of these reasons; the plaintiff, within 20 days of the delivery of the defendant’s submissions on costs.

Whitaker J.

Released: April 16, 2015