CITATION: TS v. Adey, 2017 ONSC 397

COURT FILE NO.: 6484/12

DATE: August 16, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TS and AY

Plaintiffs

– and –

Christopher Karl Adey and Bradley Jasey

Defendants

B. Legate and D. Hynes, for the Plaintiffs

M. Royce, M.J. Lilles and D. Glatt, for the Defendants

HEARD: November 21, 22, 23, 24 and 25, 28, 29 and 30, December 1, 2, 5, 7, 8 and 9, 13, 14, 2016

LEITCH J.

THE CLAIM... 3

ISSUES. 3

THE RELEVANT LEGAL PRINCIPLES. 4

FACTS. 9

The plaintiffs. 9

The defendants. 10

(i) Dr. Bradley Jasey. 10

(ii) The functioning of Dr. Jasey’s obstetrical clinic. 10

(iii) Dr. Christopher Adey. 11

(iv) The functioning of Dr. Adey’s practice. 11

The health practitioners who treated TS. 12

(i) Dr. Jordan Schmidt 12

(ii) Dr. Jack Jung. 12

The expert witnesses retained by the plaintiffs. 13

(i) Dr. Jon Barrett 13

(ii) Dr. Walter Romano. 13

(iii) Dr. George Arnold. 14

The expert witnesses retained by the defendants. 15

(i) Dr. Michael Shannon. 15

(ii) Dr. Edward Lougheed. 16

The birth of baby girl S, […], 2010 and baby boy S, […], 2012. 17

The initial involvement of Dr. Kuprowski 19

The first trimester ultrasound—November 5, 2009. 20

The December 22, 2009 appointment with Dr. Jasey. 20

The maternal serum screen—December 2009. 23

The January 19, 2010 appointment with Dr. Jasey. 23

The January 27, 2010 second trimester ultrasound performed on TS. 24

Dr. Adey’s report on the January 27, 2010 ultrasound. 28

Confirmation that the contents of Dr. Adey’s report meet the standard of practice. 31

Dr. Adey’s communication of his findings to Dr. Jasey. 31

The February 16, 2010 appointment with Dr. Jasey. 32

Dr. Jasey’s concession regarding his receipt of Dr. Adey’s report on the January 27, 2010 ultrasound. 32

Dr. Jasey’s review of the January 27, 2010 ultrasound on February 17, 2010 and his requisition of a follow-up ultrasound 34

The follow-up ultrasound March 10, 2010. 35

TS’ appointment with Dr. Jasey March 16, 2010. 36

TS’ appointment at the Fetal Development Clinic March 23, 2010 at 28 weeks’ gestation. 38

ANALYSIS. 41

(a) Standard of Care. 41

(i) Did Dr. Adey’s communication of his report on the January 27, 2010 ultrasound meet the required standard of care?. 41

(ii) Did Dr. Jasey meet the required standard of care in his review of the January 27, 2010 ultrasound and his care of TS thereafter?. 52

(b) Causation. 64

(i) But for the actions of Dr. Adey and Dr. Jasey, would a reasonable patient in TS’ circumstances have elected to terminate the pregnancy?. 64

(c) Mitigation. 86

(i) Did TS have a duty to mitigate by terminating the pregnancy at a later stage when she became aware of the condition of her baby?. 86

CONCLUSION.. 87

THE CLAIM

[1] The plaintiffs are the parents of a child who has a SALL4 gene mutation. Their child has no thumbs; her left arm is very short and is mainly just tissue and fingers tucked up close to her body; and, her right arm is short with her elbow and wrist fixed in position.

[2] The plaintiffs make claims of negligence against the defendants, Dr. Adey, a community radiologist who performed two obstetrical ultrasounds on TS (most significantly one on January 27, 2010), and Dr. Jasey, a community obstetrician who provided prenatal care to TS up to March 31, 2010.

[3] In brief, the plaintiffs allege that Dr. Adey did not clearly communicate his findings of the January 27, 2010 ultrasound, an acknowledged key ultrasound, in an appropriate way and that Dr. Jasey did not review the results of the ultrasound or advise TS of the concerns raised by the ultrasound in a timely manner. The plaintiffs allege that Dr. Jasey and Dr. Adey did not ensure that the plaintiffs were provided an opportunity to act on the ultrasound and choose to electively terminate the pregnancy.

[4] Originally, the plaintiffs also advanced a claim against Dr. Gary Kuprowski, TS’ family doctor; CML Health Care Inc. (“CML”), the facility where a number of ultrasounds were performed on TS; and Windsor Regional Hospital. As a result of minutes of settlement entered into prior to trial, the action and all cross-claims were dismissed as against these original defendants. It was agreed in the minutes of settlement that no evidence would be led and no position would be expressed, at trial or thereafter, that these original defendants were negligent or caused or contributed to the harm or damages sustained by the plaintiffs.

[5] Prior to trial, the parties agreed upon the amount of damages to be paid to the plaintiffs if either or both of the defendants are found to be liable.

ISSUES

[6] The following questions are the issues to be decided.

(a) Standard of Care

(i) Did Dr. Adey’s communication of his report on the January 27, 2010 ultrasound meet the required standard of care?

(ii) Did Dr. Jasey meet the required standard of care in his review of the January 27, 2010 ultrasound and his care of TS thereafter?

(b) Causation

(i) But for the actions of Dr. Adey and Dr. Jasey, would a reasonable person in TS’ circumstances have elected to terminate the pregnancy?

(c) Mitigation

(i) Does the duty to mitigate extend to terminating the pregnancy at a later stage when TS became aware of the condition of her baby?

THE RELEVANT LEGAL PRINCIPLES

[7] Counsel prepared a joint statement of law which sets out the established legal principles I have applied to the issues in this action, including the following:

(a) in relation to the standard of care:

(i) as stated by the Ontario Court of Appeal in Crits v. Sylvester, 1956 CanLII 34 (ON CA), [1956] O.R. 132, at 143 (C.A.), aff’d 1956 CanLII 29 (SCC), [1956] S.C.R. 991, every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He 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;

(ii) further as set out in Crits at 142, if a medical practitioner holds himself out as a specialist, a higher degree of skill is required of him than one who does not profess to be qualified by special training and ability;

(iii) physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances;

(iv) a specialist who holds himself out as possessing a special degree of skill and knowledge must exercise the degree of skill of an average specialist in his field: see ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 SCR 674 at para 33;

(v) the relevant standard of care is a standard of care at the time of the alleged negligence: see ter Neuzen, at para 34;

(vi) courts must not, with the benefit of hindsight, judge too harshly doctors who act in accordance with the prevailing standards of professional knowledge: see ter Neuzen, at para 34;

(vii) although it is easy to be wise after an event, and to start from the result and work backwards to find negligence, the court should be on its guard against this, especially in cases against doctors: see Crits at 143–144;

(viii) the plaintiff has a significant onus to demonstrate that any lapse is more than an error in judgment and that it rises up to the level of unskillfulness, carelessness, or lack of knowledge: see Stell v. Obedkoff (2000), 100 A.C.W.S. (3d) 703 at paras 203–204 (Ont. Sup. Ct.);

(ix) an error of judgment does not amount to negligence where the physician appropriately applies clinical judgment: see Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] S.C.R. 804 at 812.

(x) in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a physician is not negligent merely because his or her conclusion differs from that of other professional men and women: see Stell at paras 203–204);

(xi) the duty to refer involves a physician’s judgment, and the court will examine the grounds on which that judgment is exercised. This includes if the physician is unable to diagnose the patient’s condition and if the patient needs treatment which the physician is not competent to give, among others: see Crawford (Litigation guardian of) v. Penney (2003), 119 A.C.W.S. (3d) 843 at para 230(Ont. Sup. Ct.), aff’d 134 A.C.W.S. (3d) 719, (Ont. C.A.), leave to appeal to SCC dismissed [2004] S.C.C.A. No. 496;

(xii) a doctor, who treats a patient in accordance with a respectable body of medical opinion, even if it is a minority opinion, will not normally be held liable in negligence. A judge’s preference for one body of distinguished professional opinion over another is not sufficient to establish negligence in a physician whose actions have received the seal of approval of those whose opinions, truthfully expressed and honestly held, were not preferred. Liability in negligence requires a finding of the failure to exercise the ordinary skill of a doctor (in the appropriate specialty, if he is a specialist): see Maynard v. West Midlands R.H.A., [1985] 1 All E.R. 635 (U.K. H.L.) at 639; and C. (H.) v. Waxman (1990), 19 A.C.W.S. (3d) 444 at paras 42–43 (Ont. H.C.);

(xiii) the dominant approach in the Canadian common law is to treat an expert’s independence and partiality as bearing on both the weight given to the evidence and, in certain circumstances, on its admissibility: see White Burgess Longill v. Abbott and Haliburton Co, 2015 SCC 23 at paras 39, 40, 45, [2015] 2 SCR 182; and

(xiv) the factors to be considered in weighing and assessing conflicting medical testimony include:

(a) the relevance of the training, experience, and specialty of the witness to the medical issues before the court;

(b) whether the medical standard propounded reflects the standard of the great majority of medical practitioners in the field in question;

(c) any reason for the witness to be less than partial; and

(d) whether that testimony appears credible and persuasive compared and contrasted with the other expert testimony at the trial: see Conn v. Darcel, 2013 ONSC 5080 at para 114, 230 A.C.W.S. (3d) 1215.

(b) in relation to causation:

(i) wrongful birth as a cause of action includes claims instituted by parents of a child who was born with birth defects. The liability case is framed as “but for the negligence we wouldn’t have had the child”: see Paxton v. Ramji (2006), 2006 CanLII 9312 (ON SC), 146 A.C.W.S. (3d) 913 at para 156 (Ont. Sup. Ct.); Arndt v. Smith, 1997 CanLII 360 (SCC), [1997] 2 S.C.R. 539; and Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, [2002] 1 S.C.R. 205.

(ii) 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 to the latter out of the pocket of the former. If a defendant breaches his or her duty causing injury to the plaintiff, the law requires the defendant to compensate the plaintiff for the losses suffered as a result of the defendant’s conduct;

(iii) in a medical malpractice action, the plaintiff is required to prove that the treatment provided breached the standard of care and that it was causally connected with the injury in question. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred: see Resurfice Corp. v. Hanke, 2007 SCC 7 at para 21, [2007] 1 S.C.R. 333.

(iv) the determination of causation requires the application of the modified objective test: a consideration of what a reasonable patient in the plaintiffs’ circumstances would have done if faced with the same situation. The court considers the subjective experience of the plaintiff at the time the decision was made in conjunction with the reasonableness of her decision in light of the circumstances and medical advice provided to her: see Arndt, at paras 42, 44.

(v) the “but for” test is a factual inquiry and must be applied in a robust, common sense fashion: see Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at para 14; Clements (Litigation Guardian of) v. Clements, 2012 SCC 32 at paras 7, 8–9, [2012] 2 S.C.R. 181; Snell v. Ferrell, 1990 CanLII 70 (SCC), [1990] 2 SCR 311 at 323–324, 330;

(vi) where the plaintiff alleges delayed treatment, the “but for” test requires the plaintiff to prove the delay caused or contributed to the unfavourable outcome. Proof that meeting the standard of care would have afforded a chance to avoid the outcome is not sufficient; it must be proven that adequate treatment more likely than not would have avoided the eventual outcome. “Loss of chance” is not compensable: see Cottrelle v. Gerard (2003), 2003 CanLII 50091 (ON CA), 67 O.R. (3d) 737 at para 25 (Ont. C.A.); Resurfice at para 23; and

(vii) the plaintiff’s burden of proof will not be satisfied where the evidence leaves important questions unanswered with respect to what treatment decisions may have been made under different theoretical circumstances: see Ratz v. Desa, 2015 ONSC 7745 at para 222, 262 A.C.W.S. (3d) 793.

(c) in relation to mitigation:

(i) the plaintiff has an obligation to mitigate damages by taking reasonable steps toward medical treatment and rehabilitation. The reasonableness of those steps is not judged against a standard of perfection, it is judged relative to what a reasonable person would do in the circumstances: see Cartner v. Burlington (City) (2008), 168 A.C.W.S. (3D) 1114 at para 99 (Ont. Sup. Ct.); and

(ii) mitigation in a wrongful birth case is assessed on the standard of a reasonable person in the position of the plaintiff, based on the evidence. The trier of fact will decide the probable reaction of an ordinary reasonable woman by relying on reasonable inferences from the evidence, including the evidence of the plaintiff herself: see Fredette v. Wiebe (1986), 1986 CanLII 1102 (BC SC), 29 D.L.R. (4th) 534 (B.C. S.C.). The court must apply an objective test to assess the reasonableness of a plaintiff’s conduct.

[8] As the defendants emphasize, the standard of care is not a “standard of perfection”. It is important to pay attention to the evidence of the experts with respect to the question of the standard of care. In evaluating the conduct of the defendants, their conduct must not be viewed through the lens of hindsight; reasonable and competent physicians can disagree about a particular clinical situation; an error in judgment is not in and of itself a negligent act; and an error in judgment has long been distinguished from an act of unskillfulness or carelessness and from an act due to lack of knowledge: see Wilson at 812.

[9] The defendants also note that to the extent that an expert testifies to what he himself would do in a situation, rather than what the standard of care requires, his testimony does not establish the standard of care nor does it demonstrate the defendant doctor breached the standard of care: see Bafaro v. Dowd (2008), 169 A.C.W.S. (3d) 437 at para 36 (Ont. Sup. Ct.).

[10] As the defendants also set out in their statement of law, opinions on the standard of care given by a specialist may be accepted where the specialist’s experience overlaps with the standard of care of a general practitioner. If a specialist testifies that a non-specialist has met the standard of care in the specialist’s area of expertise, it follows that the defendant physician has met the standard of a care of a non-specialist. However, where a specialist criticizes the standard of care of a generalist, the court must approach this opinion with caution. The courts have warned that such criticisms will “inevitably be coloured and determined by [the experts’] specialty”: see Lee v. Lee, 2015 ONSC 7509 at paras 60–61, 261 A.C.W.S. (3d) 219.

[11] The plaintiffs emphasize that the standard of care must be responsive to the risk of harm, which they submit is the loss of the right to choose elective termination of pregnancy in Ontario. They rely on the Supreme Court of Canada statement in Ediger v. Johnston, 2013 SCC 18 at para 49, [2013] 2 S.C.R. 98 that a physician is required to take precautions in a patient’s care that are responsive to the risks imposed on the patient.

[12] The plaintiffs also highlight the following component of the duty of care described in Crawford at para 230:

The duty to refer a patient to another physician in a timely fashion where the attending physician cannot, him/herself, make a diagnosis or where he/she has a reasonable doubt concerning the correctness of the diagnosis; – in coming to a diagnosis, the physician must, as aforesaid, conduct a thorough patient history and conduct the necessary tests. Where, however, the physician cannot make a diagnosis or encounters difficulty in making a diagnosis, he/she must refer the patient to a physician possessing expertise in the area in question.

[13] As emphasized by the plaintiffs, a patient is entitled to know, and physicians are required to disclose, the risks involved in undergoing or foregoing medical treatment to ensure the patient can make informed decisions regarding their health care: see Arndt; Brisco.

[14] In Ontario, the Health Care Consent Act, 1996 S.O. 1996 c. 2, Schedule A, ss.10–11, sets out the requirements regarding consent to medical treatment. The plaintiffs highlight that informed consent requires that a patient receive information about alternative courses of action.

[15] As a general rule, a medical practitioner must disclose the nature of the proposed treatment; its gravity; any material, special or unusual risks involved; and the availability of alternative options: see Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880 at 884; Van Dyke v. Grey Bruce Regional Health Centre (2005), 2005 CanLII 18841 (ON CA), 197 O.A.C. 336 at para 67 (Ont. C.A.). Further, there is an obligation to ensure that the patient understands the information provided: see Ciarlariello v. Schacter, [1993] 2 S.C.R. 111 at 140.

[16] The plaintiffs acknowledge that they bear the onus of satisfying the court that a reasonable person in the circumstances of TS would have made a different choice in treatment if provided with the information: see Arndt at paras 36, 41. What would a reasonable patient have done in the circumstances of TS if the defendants had not been negligent? The plaintiffs concede they must prove that but for the defendants’ negligence it is more likely than not that they would have terminated their pregnancy by an elective termination in Ontario.

[17] The plaintiffs acknowledge that they have a duty to mitigate damages; that underlying the duty to mitigate is the notion that an injured party may not increase his or her damages by unreasonable conduct and plaintiffs are bound to act with the defendants’ interests in mind as well as their own. The issue then arises of whether the duty to mitigate extends to terminating the pregnancy at a later stage when she becomes aware of the condition of her baby.

FACTS

The plaintiffs

[18] TS was born […], 1983 and grew up in Windsor, Ontario. She lived in her parents’ home until she was aged 22, when her parents lost their home because of their financial circumstances. Her parents then moved to Chatham where her mother managed a seasonal campground. Her father was unable to return to work after being injured and suffered from severe depression.

[19] After her parents moved to Chatham in 2005, TS rented a one-bedroom apartment in Windsor and worked at Walmart to support herself.

[20] In 2007, TS enrolled in a pre-nursing program at St. Clair College. She completed the first year of practical nursing in 2008/2009. She intended to complete the last year of the two-year diploma program in 2009/2010 and then apply to a “bridging program” to obtain her RN. Although her community college program was full-time, she continued to work part-time at Walmart. She had student loans that she was responsible for and her parents were not in a position to provide any financial support. TS’ only asset was a 1998 Sebring vehicle.

[21] TS met her fellow employee, AY, at Walmart. Around June 2009, about a year after they met, their relationship evolved into a romantic one. AY was attracted to TS because she was very friendly but, in particular, because she was eager, motivated, and ambitious. He described her as a shy, passive, and non-confrontational person who would never cause a scene.

[22] In late August 2009, TS believed she was pregnant. After taking an at-home pregnancy test, she made an appointment with Dr. Kuprowski who confirmed her pregnancy. Her mother was the first person she told about the pregnancy and AY was the second. AY received the news better than she expected. She thought AY would find her news stressful because the pregnancy was unplanned, their relationship was new, and he was starting a new job in Toronto where he had just moved to live with two roommates to save expenses. He had paid off his student loans and his expenses to attend Police College. His only asset was an older vehicle.

[23] Although AY was shocked and surprised when he learned that TS was pregnant, he was happy with the news and confident they could make it work. He considered himself mature and old enough to be a father at age 32. He described TS as having similar feelings and being confident she could continue her schooling and pursue her goals even though she had a lot of stress in her life, in addition to school and work responsibilities and the challenges of her financial circumstances.

[24] In the fall of 2009, TS’ father attempted suicide and thereafter her mother was, as TS put it, “a wreck”. TS spoke to her mother daily and provided support to her. Perhaps because of these stressors, TS failed a key course during the 2009 fall term, which put in jeopardy her ability to continue in her program. TS filed an appeal, which required her to participate in a hearing in early January 2010. Fortunately, she ultimately learned that her appeal was successful.

The defendants

(i) Dr. Bradley Jasey

[25] Dr. Jasey graduated from medical school in 1995, completed his post-graduate residency training in obstetrics and gynecology in the following five years and became a fellow of the Royal College of Physicians and Surgeons of Canada in 2000. Since that time, he has served as a staff obstetrician-gynecologist at Windsor Regional Hospital. He has served on a number of hospital administrative committees and since 2004 has held academic positions at the Windsor Campus, Western University, Schulich School of Medicine.

[26] While he was a resident at St. Joseph’s Health Care Centre in London, Ontario, he did rotations through the Fetal Development Clinic where he referred TS, as I will discuss further in these reasons.

[27] In 2010, 50 percent of Dr. Jasey’s practice was obstetrics and he estimated that he delivered about 400 babies each year. He was a very busy, well-patronized obstetrician in the Windsor community. His records for the days TS had appointments reveal that fact: on December 22, 2009 he saw 45 patients (including six new patients) and performed a caesarian section, and while on-call after hours, he saw two patients and delivered a baby; on January 19, 2010 he saw 54 patients and performed two caesarean sections, and while on-call after hours, he saw 12 patients; on February 16, 2010 he saw 64 patients, performed one caesarean section and a delivered a baby, and while on-call after hours, he saw 12 patients; and on March 16, 2010 he saw 55 patients, and while on-call after hours, he saw one patient.

(ii) The functioning of Dr. Jasey’s obstetrical clinic

[28] Ms. Sandra Lauzon, a 27-year clerical staff employee at Windsor Regional Hospital, was the ward clerk in the obstetrical clinic in 2009/2010. She and a registered nurse worked in the obstetrical clinic each day from 8:00 a.m. until 4:00 p.m. and took a lunch break from 12:00 until 1:00 p.m. There was a different obstetrician responsible for the clinic each day. On Tuesdays, Dr. Jasey was in the clinic.

[29] Obstetrical patients would be admitted through the hospital admitting department and given paperwork which they then would deliver to Ms. Lauzon for insertion into the doctor’s chart and the hospital’s file.

[30] The registered nurse in the obstetrical clinic would take a urine sample from each patient, do their blood work, and determine their weight.

[31] Ms. Lauzon indicated that a resident would see all the patients and then report to the obstetrician, but no patient would be discharged until seen by the obstetrician.

[32] At 4:00 p.m. she and the registered nurse would be encouraged to leave. They would fill the examining rooms with the waiting patients and the obstetrician would continue to work until all his or her patients were seen.

(iii) Dr. Christopher Adey

[33] Dr. Adey completed medical school at Memorial University in Newfoundland in 1977. He was certified to practice in diagnostic radiology in 1985. After his fellowship was completed in 1986, he worked in a hospital and in private practice Ottawa, ultimately becoming the director of mammography screening. During the time, he lived in Ottawa, he served as an assistant professor at the University of Ottawa. He was actively engaged in publications and research while in Ottawa.

[34] In 1999, Dr. Adey moved to Windsor and joined Dr. Newell at the predecessor clinic to CML. Since 1999, he has had only a clinic-based practice.

[35] In 2010, he performed, as he put it, the “entire gambit of diagnostic imaging”.

(iv) The functioning of Dr. Adey’s practice

[36] Dr. Adey and Dr. Newell share reporting responsibilities at CML’s two major hubs. It was their practice to arrive at the facility in the morning to undertake the procedures that the radiologist must perform. In the afternoon, they review the preliminary reports and the images completed by their sonographers. It was Dr. Adey’s personal practice to report on studies the same day or, at the latest, first thing the next morning.

[37] Margaret Dzus, the sonographer who performed TS’ January 27, 2010 ultrasound, had worked for Dr. Adey since her graduation in 2006. She had a comfortable working relationship with Dr. Adey, who was available for consultation if she needed him.

[38] Dr. Adey testified that 99.9 percent of the time he does not see any images in real time and in preparing his reports he reviews the requisition, any earlier scans, the sonographer’s preliminary report, and the images she has taken. He considered Ms. Dzus to be a very talented sonographer and had confidence in her.

[39] The employees of CML, who Dr. Adey considers quite trustworthy and diligent, include a transcriptionist, a receptionist, a manager, and a courier. They provided evidence admitted by written statement.

[40] When the radiologist at CML signed reports, he would place them in the bottom level of a tray and whenever a receptionist or the transcriptionist would go into his office they would take the signed reports from the tray and bring them to reception for sorting. The receptionist sorts the reports into stacks with one stack to be faxed, a second stack to await the courier, and a third stack to be delivered within the building. The staff knew the courier would pick up the reports at approximately 10:00 a.m. and 3:00 p.m. each day and they worked quickly to have the envelopes ready for those times.

[41] Dr. Adey indicated that for a sensitive or complex patient matter creating an emergency or some urgency, his practice is to fax the report to the referring physician. Dr. Adey referred to such a report as “a verbal report”. All other reports are delivered to referring physicians by courier and he expects that they will be delivered within 24 to 48 hours.

[42] The courier delivered approximately 100 to 110 diagnostic reports each day. The courier followed a two-day schedule pursuant to which he would make deliveries in one-half of the city of Windsor one day and the other half of the city on the following day. Dr. Jasey’s office was one of his regular stops, where he would deliver seven to ten envelopes every other day.

[43] In 2013, Dr. Adey reported about 1100 obstetrical ultrasound scans (55 percent were first trimester or dating scans performed at less than 16 weeks’ gestational age and the balance were second trimester or anatomical ultrasounds performed at 18 to 22 weeks’ gestational age). He had no reason to think that 2013 would differ in any substantial or significant way from 2008, 2009, or 2010. He estimated that this work was maybe 10 to 15 percent of his total workload.

The health practitioners who treated TS

(i) Dr. Jordan Schmidt

[44] Dr. Jordan Schmidt was the maternal fetal medicine specialist who saw TS and AY on March 23, 2010, after Dr. Jasey referred them to the Fetal Medicine Clinic in London. Dr. Schmidt ultimately delivered Baby girl S on […], 2010.

[45] Dr. Schmidt was qualified as a maternal fetal medicine specialist in 2005. He described maternal fetal medicine as a sub-specialty of obstetrics and gynecology that deals primarily with the management and care of pregnancies complicated by maternal or fetal issues, in other words high-risk obstetrics.

[46] Dr. Schmidt outlined what the plaintiffs would have been advised if they had been referred to the Fetal Development Clinic around 24 weeks’ gestation.

(ii) Dr. Jack Jung

[47] Dr. Jack Jung, a pediatrician with sub-specialty training in medical genetics, was referred to TS and AY on June 25, 2010 by the neonatologist involved with Baby girl S’ newborn care.

[48] In 2010, he was the director of the Medical Genetics Program for Southwestern Ontario; an author of a number of publications related to medical genetics; a full professor within the department of pediatrics, with a cross-appointment in obstetrics and gynecology; and was the Chief of the division of medical genetics at Western University.

[49] Dr. Jung testified that a very significant part of his practice in 2010, perhaps one-third of all the patients he saw, were pregnant couples facing very serious issues with a pregnancy. He provided genetic counselling to those couples, which he described as being very complicated. He endeavoured to provide unbiased information in a non-judgmental fashion recognizing that there are cultural aspects that impact how people deal with this type of information. As he explained, different ethnic groups might regard a particular problem to “be extremely bad” whereas other societies are “much more liberal”.

[50] Dr. Jung described what information a geneticist would have provided TS and AY if they had been referred to the Fetal Development Clinic around 24 weeks’ gestation.

The expert witnesses retained by the plaintiffs

(i) Dr. Jon Barrett

[51] Dr. Barrett testified as an expert in the field of maternal fetal medicine and obstetrics. He has practised in this sub-qualification of obstetrics since 1995 in Canada and prior to that he practised in this area in the United Kingdom. He currently practises as a maternal fetal medicine specialist at Sunnybrook Health Sciences Centre in Toronto. In 2009/2010, he was either at Women’s College Hospital or his clinic had moved to Sunnybrook Health Sciences Centre by then).

[52] Dr. Barrett did not comment on the standard of practice of an obstetrician, but provided evidence as to the interrelationship between obstetricians and maternal fetal medicine specialists and how they interact with one another.

[53] I acknowledge, as the defendants emphasized, that TS was ultimately referred to the Fetal Development Clinic in London, and it must be borne in mind that it is the relevant centre in this case.

(ii) Dr. Walter Romano

[54] Dr. Romano provided opinion evidence in the field of radiology, including the interpretation, reporting, and communication of obstetrical ultrasound in a community setting and at the tertiary level hospital setting.

[55] Dr. Romano qualified as a radiologist in 1991. Since that time, he has practised regularly in clinical settings and at small community hospitals, but as well in a tertiary centre. For 22 years, he was the Director of Ultrasound at St. Joseph’s Health Care in London, Ontario, a tertiary centre. He also worked in the community at an x-ray clinic, held privileges at a number of community hospitals in southwestern Ontario, and was an Associate Professor of Radiology at Western University.

[56] In 2009/2010, in addition to teaching at Western University and working as the Director of Ultrasound at St. Joseph’s Healthcare London, he was also the coordinator of the Fetal Development Clinic and held appointments on the residency training committee for obstetrics and for radiology at Western University. However, 30 to 40 percent of his work was undertaken in smaller community hospitals and in independent clinics.

[57] Dr. Romano provided his opinion on whether Dr. Adey met the standard of care required of a community radiologist in 2010. Specifically, he provided his opinion on how the findings on the January 27, 2010 ultrasound should have been communicated.

[58] Dr. Romano had previously provided expert reports and testified in defence of radiology colleagues, but had never testified on behalf of a plaintiff in a medical negligence case.

(iii) Dr. George Arnold

[59] Dr. Arnold was qualified as an expert in the area of obstetrics. He obtained his medical degree in 1986 and was certified by the Royal College of Physicians and Surgeons as an obstetrician/gynaecologist in 1992. From 1999 to the present, he has been the chief of the department of obstetrics and gynaecology at the Markham-Stouffville Hospital. In 2009/2010 about 50 percent of his practice was obstetrics and the other 50 percent was gynaecology. In 2009/2010, he would have performed approximately 300 to 400 deliveries a year.

[60] Dr. Arnold has held leadership positions in the Ontario Society of Obstetrics and Gynaecologists and has sat on a number of surgical advisory committees, medical advisory committees, the Board of Directors, and committees at the hospital in Markham. Since 2003, he has been a medical consultant to the College of Physicians and Surgeons of Ontario, now referred to as a medical inspector and has advised the College on whether or not obstetrics and gynaecologists have met the standard of care. He also has been a member of the quality assurance committee at the College of Physicians and Surgeons and since 2004 is a standing member of the obstetrics panel of the complaints committee of the College.

[61] Dr. Arnold has been qualified as an expert in obstetrics in the Superior Court of Ontario and has provided opinions on behalf of hospitals or nurses. He has also provided opinions to the Canadian Medical Protective Association (“the CMPA”), but has not appeared in court on behalf of anyone who has obtained representation through the CMPA. He acknowledged on cross-examination that he provided an opinion on behalf of doctors “a long time ago”, so for many years it has been plaintiffs who have sought out his opinions.

[62] Dr. Arnold provided his opinion on whether Dr. Jasey met the standard of care required of a community obstetrician in 2010.

The expert witnesses retained by the defendants

(i) Dr. Michael Shannon

[63] Dr. Shannon provided his opinion on the standard of care required of a community obstetrician in 2010 and whether Dr. Jasey met that standard.

[64] Dr. Shannon obtained his medical degree in 1987 from the University of Toronto, completed a rotating internship in 1988, was a resident in the Department of Obstetrics and Gynaecology at Western University from 1988 to 1992 and became a fellow of the Royal College of Physicians and Surgeons of Canada with a specialist certificate in obstetrics and gynaecology in 1992.

[65] From 1992 to April 1, 2001, he worked in the Department of Obstetrics and Gynaecology at Stratford General Hospital and from there moved to the Cambridge Memorial Hospital where he worked from March 2001 to July 2003. Since July 2003, he has been a member of the Department of Reproductive Medicine at Grand River Hospital in Kitchener, Ontario.

[66] In 2010, 70 percent of his practice was devoted to obstetrics and the balance to gynaecology. He estimated that he delivers 300 to 350 babies a year. He regularly orders and reviews anatomical ultrasounds.

[67] He has provided legal opinions on behalf of plaintiffs and his medical colleagues, who are defendants. He has also reviewed competency to practise under the Regulated Health Professions Act.

[68] On cross-examination, Dr. Shannon acknowledged that in 2009 on a website publication entitled “Doctor of Dogmatic Theology and Ob/Gyn Condemn Early Induction Abortions at Catholic Hospital in London”, he had expressed opinions about termination policies at St. Joseph’s Health Care in London, Ontario and indicated his opposition to early induction in cases of lethal fetal anomalies. Dr. Shannon acknowledged a number of his comments within the article including the following statements attributed to him:

The teaching of the Catholic Church is clear – pregnancy termination for whatever reason is just that – pregnancy termination.

The ‘feelings’ or ‘prayerful discernment’ of the couple have nothing to do with the consistent teachings of the Catholic Church in these situations and objective moral truth.

In 16 years of practice as an obstetrician, gynecologist I have never seen or heard of a case of anencephaly which resulted in the mother’s life being put at medical risk. In fact, in the case of a woman carrying an anencephalic child I would always counsel the couple to allow the pregnancy to go to term and induce labour then if it has not occurred naturally (or to the point where the child died in utero) and intervene at that time for necessary medical indications. The parents then have the consolation that they have not terminated the pregnancy and have allowed nature to ‘take course’.

[69] Dr. Shannon explained that undertaking this procedure in a Catholic hospital and the endorsement of the procedure by the clergy was his issue, not the actual procedure itself.

[70] Ultimately the following exchange took place between Dr. Shannon and counsel for the plaintiffs:

Q: All right, can we agree that you are opposed personally to the act of termination of a pregnancy based on your religious beliefs? And I don’t wish to – to denigrate them in anyway at all sir. I just need to understand your testimony.

A: You – you are. You are, but none the less, what I’m saying is I don’t perform them.

[71] On re-examination, Dr. Shannon indicated that he is Catholic and has personal views on abortions. Dr. Shannon clearly does not perform abortions. However, the defendants emphasize that this is not a case about whether Dr. Shannon performs abortions and, regardless of his personal views, Dr. Shannon does make referrals to his tertiary centre in Hamilton on behalf of patients who wish to terminate their pregnancies. Dr. Shannon also stated on re-examination that his membership in any type of organization (one of which was discussed with him during his cross-examination) and his personal beliefs do not play any role in whether or not he makes such referrals following a second trimester ultrasound.

(ii) Dr. Edward Lougheed

[72] Dr. Edward Lougheed provided his opinion on the standard of care required of a community radiologist in 2010 and whether Dr. Adey met that standard.

[73] Dr. Lougheed graduated from medical school in 1981 and, after completing a rotating internship, undertook a year of family practice in northern Ontario. He then entered a residency program in radiology, which he completed in 1987, and thereafter obtained his specialty designation from the Royal College of Physicians and Surgeons.

[74] Since 1987, he has served as a radiologist at the Royal Victoria Hospital in Barrie, Ontario, which originally was a small community hospital but has become a large community hospital serving as a regional centre and is, as he put it, “pretty close to a tertiary centre but not completely there”. From 1993 to 2000, he was the Chief of Imaging Services or the Chief of the Radiology Department at that hospital. He also has privileges at the Georgian Bay General Hospital in Midland, Ontario, a small community hospital.

[75] He has served as president of the medical staff at the Royal Victoria Hospital representing the medical staff on the Board of Directors of the hospital. He has also served on the hospital’s medical advisory committee and in other administrative roles.

[76] In addition, since 1987 he has had a clinic-based practice as one of 12 radiology partners with seven clinics providing services under the name Georgian Radiology Consultants.

[77] Dr. Lougheed estimated that he has read thousands of obstetrical ultrasounds in his practice.

The birth of baby girl S, […], 2010 and baby boy S, […], 2012

[78] Both AY and TS were very emotional when they testified about the birth of Baby girl S. Neither of them knew what to expect or how their baby would look. They were concerned with how they would feel. Would they bond with their baby? They described a very crowded delivery room and were concerned about their privacy not wanting a lot of curious people looking at their baby. They were grateful for the support of TS’ mother (who unfortunately is now deceased).

[79] As the social work records of St. Joseph’s Health Care indicate, consistent with TS’ and AY’s testimony, before Baby girl S was born they were “worried, concerned and afraid of the outcome for their baby”. However, after Baby girl S was born, they were “relieved and happy”, because Baby girl S’ arms had mobility and she had hands.

[80] As Dr. Schmidt similarly testified, the outcome for Baby girl S was more positive than they had anticipated before she was born. He testified that they had been “fairly accurate” in terms of what they had anticipated seeing based on an ultrasound March 23, 2010. However, they had been unable to deter0mine before the baby was born what level of mobility and functionality there may be. As he put it, “we were quite pleased that the right arm appeared to be fairly mobile and separate. The hand was definitely abnormal but did appear to have mobility within it”. They were “encouraged” that the left arm appeared to have more mobility and “more activity available within that limb” than anticipated from the appearance on the ultrasound. There were fingers on both hands, although the left hand continued to have the flipper appearance that he described to the plaintiffs during their March 23, 2010 appointment at the Fetal Development Clinic, which I will detail below.

[81] Dr. Jack Jung saw TS and AY in the Neonatal Intensive Care Unit at St. Joseph’s Hospital. He described the challenge of meeting with parents in these very crowded conditions, in “almost a circus atmosphere”, where there is no privacy. While it was not an ideal situation in which to have a discussion, it was important to provide some information to the parents at that time. They were wondering, as any parents would, why their child had this significant condition.

[82] After conducting a physical examination of Baby girl S, Dr. Jung offered them a number of differential diagnoses for the limb reduction defect, which was his major finding, although there were other issues noted. He spoke to them about a number of possibilities including that Baby girl S could have these characteristics because a brand-new mutation had occurred or her parents could carry the gene but not reveal any characteristics.

[83] As Dr. Jung explained, a molecular genetic test is not easily done and requires the services of a specialized laboratory in the United States thus requiring prior approval by the Ontario Ministry of Health. He prepared the forms for TS and AY to sign to permit out-of-country testing.

[84] Dr. Jung concluded his discussion with TS and AY by noting that there would be genetic follow-up at North York General Hospital (as TS moved to Toronto to live with AY just prior to the birth of baby girl S).

[85] Dr. Mendoza, a clinical geneticist at the Hospital for Sick Children (where Baby girl S has been treated since her discharge from St. Joseph’s Health Care) provided the following physical description of Baby girl S in a report dated August 19, 2010 to a referring plastic surgeon:

Her upper limbs, on the right side, showed a short forearm with a hand showing four digits and ulnar deviation. There is no thumb present. On the left side, there is a very short upper arm and forearm. There are three digits visible and there is absence of the thumb as well … There are some minor anomalies on face including a preauricular tag and a pit.

[86] As AY and TS described, they have had many doctors’ appointments and many investigations for Baby girl S. Her heart was investigated. She has had plastic surgery. She has no hearing in her right ear. She has had considerable occupational therapy and physiotherapy.

[87] Baby girl S has also been under the care of Dr. Bedford, a paediatric geneticist. According to Dr. Bedford’s reports, and as TS and AY testified, TS and AY were understandably anxious to learn what the future held for Baby girl S and what the risks were if they were to have other children.

[88] In her preliminary report dated March 14, 2011, Dr. Bedford indicated that if TS were to become pregnant “the best tool to identify a recurrence would be [an] ultrasound”. TS became pregnant again in 2011, which was an unplanned pregnancy. They consulted with their obstetrician and informed him about everything they knew about Baby girl S.

[89] TS had a second trimester ultrasound on December 2, 2011 during which she and AY asked to see the baby’s limbs. TS described herself as “a crazy person” at this ultrasound and explained that she was “terrified” and needed reassurance. She and AY were shown the arms of their second baby on the ultrasound and were informed that they were normal. They were also shown the toes and fingers. They were very relieved and happy.

[90] On December 12, 2011, Dr. Bedford sent a consultation note to TS and AY’s family doctor in which she reported on the result of her investigations and her ultimate diagnosis that Baby girl S had a SALL4 gene mutation that resulted from a rare and spontaneous event.

[91] Dr. Jung testified that up to, and subsequent to, 2010 he has had no experience with a SALL4 gene mutation. Dr. Jung noted that Dr. Bedford’s analysis and investigation required nine months and he credited her “for being tenacious in her investigations”.

[92] Dr. Bedford reported to TS and AY that cognitive delay is not usually a feature of the SALL4 condition. Similarly, Dr. Jung indicated that while cognitive delay is reported within SALL4 mutations, it is not in the majority of people with SALL4 mutations.

[93] As Dr. Bedford acknowledged in her December 12, 2011 consultation note, TS informed Dr. Bedford that she was 21 weeks pregnant and that she had had a detailed ultrasound at 19 weeks’ gestation, in which it had been reported that all four limbs appeared normal. Dr. Bedford noted that this was “reassuring given the high frequency of radial ray anomalies in people with a SALL4 mutation, however some findings may be subtle or not detectable by ultrasound”. As a result, Dr. Bedford indicated that an ultrasound would not rule out a SALL4 related condition in the baby.

[94] As Dr. Bedford reported, the SALL4 mutation is a dominant gene and if either TS or AY carried it, the chance of having another child with a SALL4 related condition would be 50 percent in each pregnancy. If neither had the mutation there would have been a de novo mutation in Baby girl S and the chance for her parents to have another child with that condition would be much lower, in the range of one to five percent.

[95] Dr. Jung indicated that a one-to-five percent risk of having a child with this mutation was a “significantly elevated risk as compared to the general population”. Dr. Jung also agreed with Dr. Bedford’s advice to TS and AY that an ultrasound would not rule out a SALL4 related condition in their second baby.

[96] In her consultation note, Dr. Bedford stated that she discussed with TS and AY the option of amniocentesis for definitive testing and TS and AY declined amniocentesis. As TS testified, based on what she was shown during the second trimester ultrasound, she felt confident that her second pregnancy would not be affected by what had affected her first and, as a result, she did not have an amniocentesis during her second pregnancy.

[97] TS, AY, and their second baby, who was born […], 2012, have been tested and they are all negative for SALL4.

[98] The fact that TS and AY declined amniocentesis during their second pregnancy will be discussed further when I address the issue of causation.

The initial involvement of Dr. Kuprowski

[99] Dr. Kuprowski, who had been TS’ family physician her whole life, saw TS on October 6, 2009 when she reported that she had a positive home pregnancy test after her last menstrual period August 22, 2009. He confirmed the pregnancy, prescribed prenatal vitamins, and referred her to Dr. Jasey.

The first trimester ultrasound—November 5, 2009

[100] AY joined TS for her first trimester ultrasound on November 5, 2009.

[101] As Dr. Romano explained, a first trimester screening ultrasound between 11 and 13 weeks’ gestation has been advocated in Ontario since about 2003. This ultrasound is performed in conjunction with blood work.

[102] Dr. Adey’s written report to Dr. Jasey on the first trimester ultrasound was dictated, transcribed, and printed on November 6, 2009. Dr. Adey described this ultrasound as an entirely normal scan. It indicated a gestational age of nine weeks, identified a positive fetal heart rate, and estimated her delivery date as June 9, 2010.

The December 22, 2009 appointment with Dr. Jasey

[103] The records reveal that TS reported into the admitting department at Windsor Regional Hospital at 12:45 p.m. She then proceeded to the obstetrical clinic, checked in with the ward clerk, and provided the nurse with her urine sample. She recalled having her vital signs taken. She testified that she then waited in the waiting room and had an ultrasound in the clinic. TS did not recall who performed the ultrasound or where in the hospital it was done.

[104] TS testified that after waiting a long time she inquired with the ward clerk whether her wait would be much longer. She was told that Dr. Jasey had been called away and could not see her that day. TS testified that the nurse then provided her with a card indicated she had been scheduled for an appointment four weeks later on January 19, 2010. In her day planner, for December 22, TS noted the following:

Ultrasound number 2

Dr. Jasey 1 pm

Cancelled, sent home

[105] TS’ evidence that she did not see Dr. Jasey on December 22, 2009 was contradicted by Dr. Jasey.

[106] Dr. Jasey recalled that TS was a nursing student. He testified that he completed the history on the antenatal record and physically examined TS on December 22, 2009. However, he did not chart anything regarding the physical examination. He explained that he does not always document his physical examination on the record and instead details his examination in his note back to the referring family doctor.

[107] Dr. Jasey was on-call on December 22 and he dictated his consultation notes for that day’s clinic after midnight. Dr. Jasey testified that his consultation note to Dr. Kuprowski reflected his findings on the physical examination of TS or was information TS provided to him: her past history was remarkable for wisdom tooth extraction, her family history was negative for known congenital or genetic syndromes, she was taking pre-natal vitamins, she had no allergies, she was in no distress when assessed, her chest exam was normal, her heart sounds were normal, and her abdomen was normal. TS confirmed the accuracy of the history contained in Dr. Jasey’s consultation note.

[108] Dr. Jasey testified that it is his general routine on a first visit to use the portable ultrasound and scan the patient. The records reflect that an image was taken on December 22 at 3:16 p.m.

[109] TS had a requisition for a maternal serum screen and a second trimester ultrasound signed by Dr. Jasey. She had no recollection of when, or how, she got these requisitions and denied that Dr. Jasey gave them to her.

[110] Dr. Jasey testified that he gave TS the requisition for the maternal serum screen on which he noted that TS smoked cigarettes during the pregnancy, information he testified that he obtained from TS. This notation and other clinical information was in his handwriting.

[111] In Dr. Jasey’s antenatal record he accurately noted that TS was no longer smoking. He explained that it was critical that her smoking during the pregnancy was noted for the maternal serum screen requisition because that activity alters the parameters of the test.

[112] Dr. Jasey also testified that he gave TS a requisition for a second trimester ultrasound at her December 22 visit and advised her to have the ultrasound performed between 18 and 22 weeks’ gestation.

[113] Dr. Jasey acknowledged on cross-examination that if TS was seen December 22 at 3:16 p.m. at the time the ultrasound was taken, she would have been in his clinic for two and a half hours at that point, which was 45 minutes prior to the time the clinic was scheduled to close. As previously noted, he had 45 patients scheduled to be seen that day (including six new patients) and he performed a caesarian section. He acknowledged that if he had been running two and a half hours behind schedule he would not have finished his clinic until approximately 6 p.m., after which he was on-call, saw two patients and delivered a baby. He was challenged on his ability to recall after midnight the physical examination that he conducted of TS distinct from any of the other patients he saw that day, which was required in order to complete his note to Dr. Kuprowski because he had made no note of a physical examination. He testified that he documents by exception so that if he found anything abnormal he would have documented that for his dictation afterwards.

[114] It was pointed out to Dr. Jasey that his consultation note indicated that thus far in the pregnancy TS denied difficulty with bleeding, which he acknowledged involved cramping, whereas the antenatal record included a note by someone in his office that she had some cramps.

[115] Dr. Jasey’s schedule was summarized for Dr. Arnold. Dr. Arnold indicated that in these circumstances, it would probably be very challenging for Dr. Jasey when he dictated the consultation note after midnight to remember what he had done the day before for a particular patient, if he had no recording of his physical examination.

[116] It was put to Dr. Jasey that it was possible that TS left the clinic on December 22 without seeing him and the requisitions were provided to TS later. Dr. Jasey was adamant that such a scenario was not possible.

[117] I accept that Dr. Jasey did see TS on December 22. An ultrasound was performed, and as Dr. Jasey and Ms. Lauzon testified, only Dr. Jasey performs the ultrasounds. I note that Dr. Shannon’s evidence was that there was “no way” a nurse, a nursing student, or a resident would have been able to perform the ultrasound taken on December 22, 2009 and delineate the measurements reflected in the records.

[118] Further, Dr. Jasey’s handwriting was on TS’ chart and on the maternal serum screen requisition. The information that he noted in relation to her wisdom teeth extraction and the fact that she was not smoking then, but had smoked during the pregnancy came from TS. The presentation of that information on the maternal serum screen requisition and on her chart, reflects a conversation with TS. I note that Dr. Shannon concurred with the significance of noting on the requisition that TS had smoked during the pregnancy.

[119] In addition, the maternal serum screen requisition and the requisition for the second trimester ultrasound were signed by Dr. Jasey. I find that Dr. Jasey gave those requisitions to TS on December 22, 2009.

[120] Considering the foregoing, I cannot find that Dr. Jasey did not see TS. Such a finding would mean that Dr. Jasey billed OHIP for services he did not perform and was not forthright and honest in his consultation note to Dr. Kuprowski, which is not appropriate considering the evidence described above. Furthermore, such a finding would be inconsistent with the evidence of Ms. Lauzon. She indicated that occasionally a patient leaves before the obstetrician sees them but in that event the patient would be told to return the next week, go to the triage clinic or call the office for an appointment to be seen at the obstetrician’s private office particularly if it was at a first visit. Ms. Lauzon agreed with the suggestion put to her on cross-examination that it would not happen that a patient would be told to come back in four weeks and if TS testified to that effect, she most likely was mistaken.

[121] I am satisfied that TS was mistaken in her belief that she did not see Dr. Jasey on December 22, 2009. Dr. Jasey’s practice was a very busy one. He would have had very little time to spend with TS, and I find it unsurprising that TS did not recall him seeing her that day.

[122] While I have not accepted TS’ evidence in relation to Dr. Jasey’s absence on December 22, 2009, I do not find that she was intentionally misleading the court or that her belief was not an honest one. Rather, she was simply mistaken in this respect and this finding does not detract from her credibility.

[123] I note here that I found that both TS and AY were credible witnesses and that their beliefs were honestly held. They offered evidence that reflected candour in contrast to rehearsed version of events (for example, TS’ evidence that she no memory of conversations with Dr. and Mrs. Kuprowski on March 16, 2010 and AY’s evidence of a statement he attributed to TS of their meeting with the Kuprowskis on March 16, 2010, which I discuss further below). Overall, their evidence was honest and straightforward, although, as I have found, not always reliable.

The maternal serum screen—December 2009

[124] Both Dr. Schmidt and Dr. Shannon testified that the maternal serum screen involves blood work at 15 to 16 weeks’ gestation. This test provides a calculation of risk as to whether or not a baby will have a chromosomal problem or certain structural birth defects.

[125] TS noted in her day planner for December 28, 2009 that she had her blood work done. A copy of the requisition for the maternal serum screen dated December 29, 2009 was given to her employer to explain her absence from work.

[126] TS understood that the maternal serum screen was to determine if her baby had Down’s Syndrome or another defect. She testified that if the results had been positive she would have explored her options and would have been prepared to terminate her pregnancy.

[127] The results, which were printed January 4, 2010, were normal.

The January 19, 2010 appointment with Dr. Jasey

[128] TS testified that her appointment with Dr. Jasey on January 19, 2010 was scheduled for 1:00 pm. At this point, TS was at 19 weeks, 6 days’ gestation.

[129] TS again provided the nurse with a urine sample and had her vital signs taken. She recalled she saw a medical student who assessed her, measured the fundus, and heard the baby’s heartbeat. She reported that she was under a lot of stress and her abdomen was uncomfortable.

[130] She testified that after she met with the student, her appointment was concluded and she was given a card for an appointment four weeks later. There was no mention of her second trimester ultrasound.

[131] TS noted her January 19 1 p.m. appointment in her day planner. She also noted the following:

cancelled; med student, measured and heartbeat only.

[132] TS testified that after January 19 she became concerned that she had not yet seen Dr. Jasey. She discussed this with AY and her best friend, Lisa Goland. Ms. Goland and AY both recalled TS discussing her concerns. Ms. Goland recommended her obstetrician, Dr. Hazin.

[133] TS called Dr. Kuprowski’s office and spoke to his wife and nurse, Mrs. Kuprowski, and asked for a referral to another obstetrician. TS testified that she understood from Mrs. Kuprowski that she could not be referred to Dr. Hazin because she had already had prenatal care.

[134] Mrs. Kuprowski confirmed that in January 2010, TS was unhappy with Dr. Jasey because he had not seen her and requested a referral to Dr. Hazin. Mrs. Kuprowski testified that she advised that such a referral was not possible and TS should call Dr. Jasey and demand to be seen. There is no evidence that any such call was made by TS or that she raised her concerns with Dr. Jasey’s office.

[135] Dr. Jasey had no specific recollection of the January 19, 2010 visit. His writing was not on the record for this date and he confirmed it was his medical student that took the notes. He testified that he and the student would have seen TS together and he would have ensured that what the student found was accurate.

[136] Dr. Jasey testified that, by this point in time, the results of the maternal serum screen were available and he would have advised TS of these results. He testified he would have also determined whether her second trimester ultrasound had been completed or scheduled. He would have been satisfied if he had been told that her ultrasound was scheduled for January 27, 2010 at 21 weeks’ gestation. There are no notes confirming these discussions and as will be discussed below Dr. Jasey’s record keeping was deficient in some respects.

[137] Dr. Shannon testified that the fact that TS saw a medical student at this appointment was “perfectly normal” and that students take the history and then see the patient with the physician. Dr. Shannon expressed the opinion that it was extremely unlikely that TS would only be seen by the medical student at this appointment.

[138] Again, I am satisfied that TS was mistaken in her belief that Dr. Jasey did not see her. I am satisfied Dr. Jasey would have followed his usual procedures and spoken to her very briefly on January 19, 2010 during his very busy day in the clinic.

The January 27, 2010 second trimester ultrasound performed on TS

[139] As Dr. Romano emphasized, ultrasound is “a real-time tool” so that sonologists, who Dr. Romano described as the “eyes and hands” of a radiologist, can assess anatomic landmarks and movement. As he put it, the sonologist is “actually getting to see a movie of the baby” whereas the radiologist sees static pictures at the end.

[140] Ms. Dzus typically performed two to three obstetrical ultrasounds each day as part of her employment with CML. Fifty minutes were allocated for a second trimester ultrasound.

[141] As Dr. Romano, Ms. Dzus, and Dr. Adey outlined, the factors that might impede a sonographer’s ability to see the structures that are supposed to be seen are: the position of the fetus, the position of the placenta, the size and weight of the mother, the volume of amniotic fluid, and the gestational age of the baby.

[142] As Ms. Dzus explained, if the baby’s chest is up the baby’s heart is seen best. If the baby’s chest is down, the baby’s spine is seen best. An anterior placenta can cause problems imaging certain structures. If a mother is larger, the images are not as good. If the amniotic fluid is low, sonographers do not see as well. As the baby gets bigger, the structures are easier to see but it is harder to penetrate through the bones and once a certain gestational age is passed it becomes difficult to see certain things. As a result, an ultrasound is best done at 18 to 22 weeks.

[143] TS had her second trimester ultrasound within the 18 to 22 week window. Again, AY joined TS for her appointment. He recalled that they learned they were going to have a girl. They left the appointment, as he put it, “on cloud nine”. They were very happy and had no concerns.

[144] Ms. Dzus explained that in her preliminary report prepared for Dr. Adey she noted the previous ultrasound on November 5, 2009. She observed fetal movement. She confirmed there was one fetus, the baby was presenting in the cephalic position meaning that the baby’s head was down by the cervix, the amniotic fluid volume was normal, the position of the placenta was fundal, and the cervix was clear.

[145] Under the fetal anatomic study, she indicated that the ventricles, cerebellum, spine, stomach, bladder, kidneys, three vessel cord, cord insertion, diaphragm, and four-chamber heart “were seen and appeared normal”, and she recorded the heartbeat.

[146] Ms. Dzus did not make the same marking in relation to the four limbs. Instead, she circled “four limbs” and added the phrase, “see below”.

[147] At the bottom of her report under comments, she noted the following:

• single L.I.G. [single baby, live intrauterine gestation];

• 21 W0D [21 weeks, 0 days’ gestation based on the measurements she made];

• unable to image the left forearm and humerus over entire exam;

• the arm never extended and the hand remained flexed;

• right arm normal.

[148] Ms. Dzus explained that her comments indicated that she had gone back and looked at the left arm multiple times but was unable to image it.

[149] She took still photos at 11:22:49 and 11:22:36 which reflected her two attempts to image the left hand. As she put it, these images were “the best pictures I could take to show what I could at that time”. The timing of these photos indicated that she took them close to the end of her examination. As she explained, she does not take a picture to prove that she cannot see something and instead moves on and then goes back and tries to find what she’s looking for again. If she is not able to find what she’s looking for, she moves on again to something else and then goes back.

[150] During her testimony, Ms. Dzus reviewed the images that she took on January 27, 2010. She confirmed that the baby did move side to side because in some pictures the baby’s heart is up, which means the chest was up and in some pictures the spine was up.

[151] Ms. Dzus confirmed that there was nothing that impeded her ability to view the fetus and this ultrasound was conducted at a time which fell “into the ideal window” to do the scan.

[152] Dr. Adey acknowledged that there were no impediments to Ms. Dzus’ viewing of the fetus and none of the factors that affected the visibility of the ultrasound were present. He agreed that the fact that she was able to see virtually all of the structures that were intended to be seen suggested that conclusion.

[153] Similarly, Dr. Romano was confident that this was not a situation where the sonologist was not able to see the left extremity and he noted that Ms. Dzus commented not only on its morphology but also its function.

[154] Ms. Dzus indicated that the only difficulty that she had in conducting the scan was in relation to the left forearm and humerus area,

because the baby was cephalic, means [sic] the head was down. The arm was further away from my probe and based on my images it looks like the baby did not move from the cephalic position so I had one window or one angle to assess that area.

“Ideally” she would have had “more than one window to get different angles at that area”. She further confirmed in cross-examination that the fact that the baby was in the cephalic position throughout the examination might be another reason or a contributing factor to her inability to ultimately get a good view of the left side. As she explained, she would “like to come at it from one way and then to come at it from another way to see it”.

[155] Ms. Dzus also explained that because of her inability to image the left forearm and humerus, further investigation was required because you could not say from a single scan at one time that the left forearm or humerus “wasn’t there, but you need to find out why it wasn’t seen”.

[156] When Ms. Dzus began her evidence, she was asked by plaintiffs’ counsel to define some terms and was asked what the word “typical” meant to her. Ms. Dzus answered that typical is what she would see on a normal fetus. She was then asked what the word “atypical” meant to her and she responded, “abnormal, not what I would expect to see on a normal fetus”. She was asked further why she considered the word atypical was the equivalent to abnormal and she responded, “because it’s not normal and it’s not what I would expect to see”. Ms. Dzus went on to say that she characterized the images described in her report as not typical so her report would be considered an abnormal one.

[157] On cross-examination, Ms. Dzus agreed with the proposition that:

(i) when she used the word “typical” in relation to an ultrasound she means an ultrasound where basically all of the structures are visualized and she’s ticked off all of her boxes as normal;

(ii) when she used the term “atypical” or “abnormal” what she is referring to is a situation “where not everything is perfectly normal”;

(iii) when she uses the word “atypical” she does not mean that there is some kind of confirmed abnormality with the fetus. “It just means that you have not achieved a perfect ultrasound examination”;

(iv) it is possible when she is performing a second trimester obstetrical ultrasound, that she is able to confirm that there is something wrong with the fetus or if there is an abnormality you can actually see, but there is also a category of ultrasounds where it is not a perfectly normal ultrasound but you certainly cannot conclude conclusively that there is a definitive abnormality;

(v) this latter category of ultrasounds would also fall into the atypical category she had described during her examination-in-chief;

(vi) “atypical” does not mean a confirmed abnormality with the fetus and she explained that “there could be an abnormality, but at that time I can’t say for certain that there is one”; and,

(vii) her report did not reflect “a significant confirmed abnormality” and was “properly characterized as an inconclusive study”.

[158] In cross-examination, Ms. Dzus confirmed that, particularly in obstetrical ultrasounds, it is not unusual that she is unable to visualize one of the structures, it is not something that is alarming to her nor is it something that would cause her to speak to the radiologist. As she explained, even the inability to visualize a four-chamber heart is not something that would cause her to verbally report to the radiologist that there is a problem. Similarly, TS’ January 27, 2010 ultrasound was not the type of ultrasound that would cause her to speak to Dr. Adey because it did not raise any urgent concern for her.

[159] The fact that she could not image the arm did not “necessarily mean at that particular point in time that the arm was missing”, just that she could not image it. She confirmed on cross-examination that the fact that she had an image of the left hand created the possibility that there was a limb. She agreed that if she had formed the impression that the arm was missing she would have noted that in her report. On re-examination, she confirmed that she could not determine if the limb was there or not. She could only determine that she could not see it.

[160] The bottom line from Ms. Dzus’ testimony is that her preliminary report reflected that she had not seen a normal fetus as she expected, which was not unusual or alarming to her, and she could not confirm there was an abnormality or that the arm was missing.

Dr. Adey’s report on the January 27, 2010 ultrasound

[161] Dr. Adey’s report on the January 27, 2010 ultrasound was dictated, transcribed, and printed that day.

[162] The Canadian Association of Radiologists (“CAR”) and the Society of Obstetricians and Gynecologists of Canada (“SOGC”) published guidelines which are applicable to the conduct of the defendants.

[163] CAR published a standard, approved on September 25, 2010, titled “CAR Standard for Performing Diagnostic Obstetric Ultrasound Examinations”. These guidelines note that “adequate documentation of each examination is critical” and reporting should be in accordance with the CAR Standard for Communication of Diagnostic Imaging Findings.

[164] The CAR guidelines detail that, amongst other things, fetal cardiac activity, the estimate of amniotic fluid, the placenta location, and an estimation of gestational age should be reported. Fetal growth and weight should be assessed.

[165] The portion of the CAR guidelines relating to the fetal anatomic survey prepared jointly with the SOGC requires an assessment of “all four limbs to the level of the hands and feet and the presence or absence of hands and feet”.

[166] The CAR guidelines state that “the fetal anatomic structures should be reported as normal or abnormal (with details) or not adequately seen (with details)”.

[167] The SOGC guidelines require the same assessment and reporting as set out in a clinical practice guideline published March 2009 titled “Content of a Complete Routine Second Trimester Obstetrical Ultrasound Examination and Report”. Specifically, it states that the contents of a complete obstetrical ultrasound report in relation to fetal anatomy “should be reported as: normal or abnormal (with details) or not seen, with explanation” and “all four limbs to the level of the hands and feet should be visualized, and the presence of hands and feet should be noted”.

[168] The SOGC guidelines also state:

If a structure was not seen, this should be reported, along with the reason it was not seen. If fetal or maternal abnormalities are reported, a differential diagnosis and, when appropriate, a recommendation for further investigation should be provided.

The report should comment on any significant technical difficulty of the examination....

Any significant fetal or maternal abnormalities need to be reported promptly to the caregiver. The communication should be recorded in the patient’s file.

[169] Dr. Adey’s report on the January 27, 2010 ultrasound included the following:

The left hand was noted to be flexed and non-mobile during the entire examination and the left forearm and left humerus could not be imaged. It is possible that this is related to the persistent flexion at this level through the exam but the right arm appeared normal anatomically and demonstrated good movement throughout the exam. Otherwise, fetal anatomy is unremarkable.

[170] Dr. Adey described this ultrasound as an incomplete examination. He emphasized that the presumed significance of Ms. Dzus’ findings were entirely uncertain. As he explained further, frequently (in 10 to 20 percent of ultrasounds) there is some part of the anatomy which is not seen well and usually it is the heart. However, it is “not unusual” to not see the limbs. Perhaps for that reason, he had no recall of this ultrasound “in any way shape or form”. He expected Dr. Jasey to return the patient in the short term for a targeted reassessment of the arms.

[171] On cross-examination, Dr. Adey elaborated that he saw nothing on the imaging that would need emergent treatment, because he was neither seeing a placenta previa that needed immediate communication nor anything that was imminently going to affect the life of the mother or child.

[172] Dr. Adey acknowledged during cross-examination that

i. Ms. Dzus had not identified that the left arm and left humerus could not be imaged because of the persistent flexion and that it was he who had reported such a possibility even though she was in the best position to evaluate if there was an impediment to her vision and it would be her habit to note such an impediment in her preliminary report;

ii. given that Ms. Dzus saw the right arm move, he would have expected to see the left arm move as well and that lack of movement was a concern;

iii. the absence of fetal movement is abnormal if a fetus is not clearly asleep (which was the case here);

iv. the absence of a limb is abnormal;

v. most frequently, the structures or body parts that are not seen are the heart, the cranium, and the bottom of the spine, and it is not limbs that are most frequently not viewed;

vi. it is unusual for limbs not to be seen at 20 to 21 weeks; however, such a situation is not unheard of;

vii. the absence of movement in the hand and its fixed flexed position is abnormal; he commented that he had not been aware that Ms. Dzus claimed she had gone back and tried to take images of the hand until he had an opportunity to review a transcript of her testimony at trial and, as he pointed out, he only had two photographs of the left hand taken within seconds of each other, “at 11:22:49 and 11:22:36”; however, he had to acknowledge that Ms. Dzus clearly noted that the hand remained flexed over the entire exam, which he conceded referenced from the time she started the scan until she completed the scan [Ms. Dzus testified that she was allocated 50 minutes to do a second trimester ultrasound]; and,

viii. a flexed hand for the entire exam is unusual and potentially abnormal.

[173] Dr. Adey provided the following evidence regarding the flexed left hand:

Q. I’m asking about the flexed hand?

A. High potential that that may well be abnormal, yes.

Q. High potential?

A. Yes.

Q. More likely than not?

A. More likely than not, but not definite.

Q. But it’s abnormal?

A. Yes.

[174] With respect to the non-mobility during the entire exam, Dr. Adey acknowledged that it was “worrisome” and “potentially” significant.

[175] Dr. Adey agreed that the flexing of the left hand and the non-mobility of that hand during the entire exam was an abnormality that he wanted to make sure he pointed out to Dr. Jasey.

[176] Dr. Adey also conceded that he made reference to the forearm and the left humerus not being imaged because he would “probably” go as far as to say it was worrisome. However, he also conceded that he didn’t say in his report that the non-imaging was probably related to the persistent flexion, just that it possibly was and it was “always a possibility” that it wasn’t seen because it wasn’t there. However, Dr. Adey was steadfast that it was still only possible that the limbs were not there and he would not accept that such a result was probable unless he had a reproducible finding on a follow-up short-term scan.

[177] Notwithstanding the fact that conclusively there were abnormal and worrying signs with the flexed left hand, Dr. Adey still regarded the scan as incomplete because of the lack of the visualization of the left forearm regardless of what the appearance of the left hand was.

Confirmation that the contents of Dr. Adey’s report meet the standard of practice

[178] Dr. Romano indicated that in a community setting, the second trimester ultrasound is normal in 95 percent of the cases. With respect to the remaining small percentage, he would place them into the category of (i) a questionable abnormality, which he described as one arising when a sonologist could not view what was being screened ultimately requiring another ultrasound in the community in several days to re-look at the area in question; (ii) a probable abnormality; or (iii) a definite abnormality. Probable or definite abnormalities would require that the patient be referred to a tertiary centre where a comprehensive ultrasound could be performed.

[179] Dr. Romano prepared a report from his blind reading of Ms. Dzus’ preliminary report and her scanned images. He included a finding that “the left upper extremity did not appear normal” and an impression that “the findings are concerning for a structural abnormality”.

[180] It is clear that Dr. Adey’s report was not as fulsome as Dr. Romano’s report from his blind reading in that Dr. Adey simply reported the findings and did not express a view that the findings “did not appear normal” and were “concerning”. However, both Dr. Romano and Dr. Lougheed were of the opinion that the contents of Dr. Adey’s report met the standard of practice and included the items required by the CAR guidelines.

Dr. Adey’s communication of his findings to Dr. Jasey

[181] Dr. Adey was adamant that his January 27, 2010 findings did not demonstrate anything emergent to the mother or the fetus and thus were not of a nature that required what he referred to as “a verbal report” to Dr. Jasey. Therefore, Dr. Adey’s report was not faxed to Dr. Jasey and was delivered in the usual way, by courier, to Dr. Jasey’s office.

[182] Dr. Adey testified that he has never used an asterisk, bold type or handwriting to differentiate his reports. On Dr. Jasey’s examination for discovery, Dr. Jasey was asked if he had ever had conversations with Dr. Adey about urgent matters or those requiring timely attention. Dr. Jasey responded that he did not have such discussions with Dr. Adey but that he had received reports from Dr. Adey “that were labeled as urgent or … they used to place asterisks I recall on reports that were urgent or needed to be read or that were of concern”. Dr. Jasey went on to indicate that, “…the way CML reported…there would be asterisks framing sometimes or it would be bold. But there would be some indication on the report outside of standard text that would indicate that this was an urgent report”.

[183] Dr. Jasey’s evidence from his examination for discovery was read into the record by the plaintiffs and Dr. Adey was questioned about it.

[184] Dr. Adey disagreed with Dr. Jasey’s discovery evidence that he had received reports from Dr. Adey that were labelled “urgent” or included asterisks or bolding to indicate a report was urgent. Dr. Adey testified that he had never prepared reports in that manner and suggested that Dr. Jasey was confusing him with another radiologist. That in fact turned out to be the case. When Dr. Jasey testified, he produced a copy of a 2009 report from Dr. Newell that indicated in capital letters in a starred portion that the report had been faxed to Dr. Jasey, which Dr. Jasey indicated was a method of delivery that alerted him to the fact that needed to be reviewed immediately.

[185] According to Dr. Jasey, Dr. Adey’s report did not highlight to Dr. Jasey that the report was urgent, needed to be read, or was of concern. Dr. Romano and Dr. Lougheed differed in their opinions as to whether Dr. Adey met the standard of care in communicating his findings to Dr. Jasey, an issue I will address after the complete outline of the facts.

The February 16, 2010 appointment with Dr. Jasey

[186] TS’ mother went with TS to her appointment with Dr. Jasey on February 16, 2010. TS’ best friend, Ms. Goland, recalled visiting with TS and her mother that day because her daughter was in the neo-natal intensive care unit.

[187] TS testified that she saw Dr. Jasey for the first time on February 16, 2010. She recalled that he measured her fundus and used the Doppler to measure the baby’s heartbeat. Overall the appointment was fairly quick. She asked Dr. Jasey to show her mother the baby and he used the portable ultrasound in the exam room to do so. They saw the baby quickly but the battery died as he was performing the ultrasound.

[188] In her day planner for February 16, 2010, TS noted seeing Dr. Jasey with her mother, meeting Ms. Goland, Dr. Jasey’s use of the ultrasound, the battery dying, and that they heard the baby’s heartbeat.

[189] TS testified that her January 27 ultrasound was not discussed with Dr. Jasey and she did not raise it because she had no concerns at that time. She acknowledged that if Dr. Jasey had made an inquiry she would have confirmed her January 27, 2010 appointment. I am satisfied that did happen because Dr. Jasey noted “OUS” in her chart on February 16, 2010, which indicated that the ultrasound report had not been received.

[190] Dr. Jasey should have reviewed Dr. Adey’s report on the January 27th ultrasound by the time of TS’ February 16, 2010 appointment. Dr. Jasey conceded a deficiency in his practice in relation to this issue, which I will next outline.

Dr. Jasey’s concession regarding his receipt of Dr. Adey’s report on the January 27, 2010 ultrasound

[191] Dr. Arnold explained that the antenatal form prepared by the Ontario Medical Association in conjunction with the Ontario Ministry of Health and Long-Term Care, provides a uniform way of collecting pertinent information regarding a mother and her pregnancy and every health care professional providing obstetrical care would be familiar with that form. The health care professional is to record the date on which the first and second trimester ultrasounds are performed, the gestational age of the fetus on those dates and the results from the ultrasounds. However, Dr. Jasey made no such notations in relation to TS’ ultrasounds.

[192] As Dr. Arnold observed, Dr. Jasey saw TS on January 19, at 19 weeks 6 days’ gestation, when he would have expected to review a second trimester ultrasound.

[193] Dr. Arnold indicated that in 2010, Ontario obstetricians were expected to have a process in place for ensuring that second trimester ultrasounds were ordered and performed between 18 and 22 weeks’ gestation, that results were obtained in a timely fashion and results reviewed with the patient in a timely fashion.

[194] Dr. Arnold agreed that booking the second trimester ultrasound for January 27, 2010 (at 21 weeks and 5 days’ gestation) was “comfortably within the acceptable time line”. However, Dr. Arnold was clear that if Dr. Jasey had no system to follow up on the second trimester ultrasound that would not meet the standard of practice of an obstetrician in Ontario.

[195] It is important to note that the SOGC guidelines state that “an ultrasound scan performed between 18 and 22 weeks’ gestation provides the pregnant woman and her care provider with information about multiple aspects of her pregnancy”. These guidelines are clear that the recommended timing for performance of the second trimester ultrasound “will allow pregnancy options if an anomaly is diagnosed”. The time sensitivity of the ultrasound and the time sensitivity of the review of the ultrasound is apparent from the guidelines.

[196] According to the evidence of the CML employees, the report of the January 27, 2010 ultrasound would have been delivered to Dr. Jasey’s office January 27, January 28, or January 29. According to Dr. Jasey’s records, he was in his office February 1, 3, 8, and 10 and his office was closed February 11–15, 2010.

[197] According to Dr. Jasey’s evidence on his discovery that was read into the record by the plaintiffs, he did not “see” the report on the January 27, 2010 ultrasound until February 17, 2010. When he came into the office the morning of February 17, 2010 a faxed copy of the report (which he had requested after TS’ February 16, 2010 appointment) and the original report was in his office tray. Dr. Jasey did not know where the original came from that day. This evidence was confirmed by Dr. Jasey when he testified.

[198] Dr. Jasey acknowledged that he was supposed to have noted each of TS’ ultrasounds on the antenatal record and in failing to do so his practice was distinct from the practice of his colleague Dr. Rawlins, who noted the March 23 ultrasound at the Fetal Medicine Clinic when she saw TS on April 8 and the practice of Dr. Schmidt, who noted all of TS’ ultrasounds in his record.

[199] Dr. Jasey also acknowledged that he made no note regarding an expectation that TS was to have an ultrasound on January 27, 2010, nor did he have any follow-up system to ensure that a second trimester ultrasound was actually performed. This was so despite the fact that he agreed, as Dr. Arnold testified, that such an ultrasound is a very important tool in the obstetrician’s toolbox providing critical information for the patient’s care and it is important to have a follow-up system. Dr. Jasey also acknowledged that if he had a follow-up system, he would have received Dr. Adey’s report on the January 27, 2010 ultrasound within a couple of days.

[200] After Dr. Jasey testified, it was conceded by the defence that Dr. Jasey should have seen Dr. Adey’s report on the January 27, 2010 ultrasound during the week of February 1, 2010. This concession was based on the fact that either the report did arrive in his office that week but it was not brought to his attention, or he or his staff did not follow-up in relation to that ultrasound. In either event, he acknowledged he is vicariously liable for the conduct within his office.

[201] Dr. Jasey’s position was that if he had reviewed the report on the January 27, 2010 ultrasound during the first week of February he would have followed the same course of action as I will describe below and would have requisitioned a repeat ultrasound without indicating any urgency.

[202] I pause to note here some of the evidence of Dr. Shannon, who it seemed to me was very willing and quick to excuse any deficiencies in Dr. Jasey’s practice. Dr. Shannon indicated that he identified the deficiencies in Dr. Jasey’s completion of the antenatal record that Dr. Arnold had described. In addition, he noted that Dr. Jasey did not record information respecting his physical examination but dictated that it was normal; did not do certain cultures; and did not circle that there had been a maternal serum screen, although that procedure was performed. However, Dr. Shannon testified that the inclusion of this information is optional and many people do not include it, although he does.

[203] Even more surprising was the fact that, although Dr. Shannon testified that in his own practice he follows up to ensure a timely second trimester ultrasound to the point where he indicated: “I physically don’t allow the patient to leave until I have that ultrasound report physically in my hand”, Dr. Shannon excused Dr. Jasey’s lack of follow-up by differentiating his practice from Dr. Jasey’s. As he put it: “I don’t practice in multiple spots as Dr. Jasey did. I’m in my office all the time, in one location”.

[204] Therefore Dr. Shannon was prepared to excuse conduct, which Dr. Jasey conceded was wanting.

Dr. Jasey’s review of the January 27, 2010 ultrasound on February 17, 2010 and his requisition of a follow-up ultrasound

[205] Dr. Jasey’s evidence from his examination for discovery, which was read into the record, was that the main reason to do a second trimester ultrasound between 18 and 22 weeks was because that is when the full anatomy of the baby generally can be seen, anomalies can be identified and appropriate obstetrical action can be taken which includes the mother’s right to be counselled about the option of termination if there is a fetal anomaly.

[206] Unlike Dr. Kuprowski (who had obviously reviewed the January 27, 2010 ultrasound prior to TS and AY’s March 16, 2010 visit, which I will discuss later), Dr. Jasey did not underline reference to the left hand nor did he put asterisks beside the entire passage in Dr. Adey’s report where the findings relating to the limbs were set out.

[207] Dr. Jasey remembered the ultrasound because the findings were relatively rare and there was something odd about the hand. He recalled rechecking the maternal serum screen to refresh his memory that that test was normal. With that confirmation, and what he described as “an isolated one-sided situation and not a bilateral problem”, he did not consider the possibility of a genetic problem.

[208] Instead, Dr. Jasey interpreted Dr. Adey’s report as follows:

My interpretation of that report is I’ve got someone who can’t even get a good view of the arm and also the hand is in flexion. So I’m questioning the capacity of that ultrasound to give me an accurate diagnosis of the problem and when I’m questioning I have to pursue it to find out in truth is it an abnormality or is it normal. I can’t decide based on that information.

[209] Dr. Jasey described the ultrasound as incomplete. He acknowledged that the Fetal Development Clinic would accept a referral if an anomaly or a possibility of an anomaly was identified and understood that the clinic would conduct their own ultrasound following the referral. However, he took the position that if he sent every incomplete ultrasound to London, they would not have time to see anyone else and as a result, he does not make a referral to the Fetal Development Clinic until he confirms there is a problem.

[210] Although Dr. Jasey acknowledged on cross-examination that it is relatively rare for an 18 to 22 week ultrasound not to visualize the arms and a flexed hand is a “completely unique and an uncommon finding” that he had never seen before, those rare and unusual findings were not marked by him on Dr. Adey’s report nor did he expedite the repeat ultrasound.

[211] Instead, on February 17, 2010, Dr. Jasey’s signed a requisition for another ultrasound, which was faxed to the hospital making a request to “please reassess limbs (see attached previous of January 27/10)”. It is clear that he scheduled a repeat ultrasound at Windsor Regional Hospital without noting any type of urgency even though I note that an urgent request would have been accommodated. Ms. Lauzon testified she would often get a date “right away” for a repeat ultrasound. As she put it, she would never be turned down by the hospital.

[212] The hospital replied by fax on February 23 confirming an appointment was booked for March 2, 2010. After that, the appointment was changed to March 10, something Dr. Jasey was not involved in.

[213] Not surprisingly, given Dr. Jasey’s course of conduct, there was no sense of urgency conveyed to TS, and she believed the further ultrasound was a fairly routine matter.

The follow-up ultrasound March 10, 2010

[214] TS felt that the ultrasound on March 10 took a long time and she was asked to change positions a number of times.

[215] TS became worried after the sonographer excused herself from the room and brought in a second sonographer. She overheard them saying that they couldn’t find something as they were both looking at the images on the screen. They left the room and spoke to people in white lab coats while they continued to look at the screen. When she made eye contact with one of them, they closed the door. She later expressed concern to the sonographers but was advised she would have to speak to her doctor.

[216] TS remained worried about her ultrasound, but believed she would be called by Dr. Jasey if there was a problem. She received no such call. Because of TS’ concerns, AY again travelled to Windsor to join TS at her next appointment with Dr. Jasey scheduled for March 16, 2010.

TS’ appointment with Dr. Jasey March 16, 2010

[217] TS testified that her March 16, 2010 appointment began like earlier appointments. When she saw Dr. Jasey, he measured her fundus and used the Doppler to detect the heartbeat. According to TS and AY, Dr. Jasey did not mention the March 10, 2010 ultrasound and it was after prompting from AY that TS asked Dr. Jasey about her latest ultrasound, which she felt uneasy about. Dr. Jasey indicated he did not yet have the report and he excused himself from the room.

[218] According to TS and AY, when Dr. Jasey returned to the examining room he indicated that “he was sorry that he didn’t know how he had missed this”. He sat down, flipped over TS’ chart and drew a left arm and hand and right arm and hand to explain what was there and not there on each side. This drawing is on the reverse side of a preliminary technical observation report from the sonographer who conducted the follow-up ultrasound on March 10, 2010.

[219] AY described March 16, 2010 as the worst day of his life. AY testified that Dr. Jasey mentioned there were problems in TS’ pregnancy, that the baby might not have a left arm and that he was in shock. He testified that TS was crying and upset.

[220] TS testified that she felt like someone had knocked the wind out of her. She couldn’t breathe. She felt like everything she pictured in her mind about her baby was at an end. She was concerned about what was going to happen to her as a mother and what was going to happen to she and AY as a couple.

[221] TS and AY testified that Dr. Jasey then left the room. They remained in the examination room with the door open wondering if Dr. Jasey would be coming back. AY went to the reception desk and learned that the appointment was over and that TS would next be seen in the Fetal Development Clinic in London.

[222] Dr. Jasey recollected the March 16, 2010 visit with TS differently than TS and AY. He wrote in the comments section of her record “concern re limbs short”. Dr. Jasey testified that he had been alerted mid-morning on March 16, 2010 to the findings on the ultrasound by a call from Dr. Ramsewak in the radiology department at Windsor Regional Hospital.

[223] Dr. Jasey checked to see when TS’ next appointment was and after learning it was that very afternoon, he arranged to see her, as he put it, “preferentially”.

[224] The preliminary technical observation report from Windsor Regional Hospital (printed March 16, 2010 at 2:32 p.m.), which was in Dr. Jasey’s file by the time he saw TS on March 16, 2010 stated:

Right Arm – humerus seen, shortened rad/ulna seen,

constant flexion of hand seen,

Left arm – shortened humerus seen, rad/ulna not seen,

constant flexion of hand seen, hand seen attached to humerus

There were asterisks on each side of this passage and the words “not seen” and “hand seen attached to humerus” were underlined.

[225] This report noted also that:

Dr. Ramsewak [the radiologist] reviewed the images and will comment further.

This statement was also underlined.

[226] Dr. Jasey recalled breaking the news to TS that the baby had significant abnormalities and that she was very upset. He recalled drawing a sketch on the reverse side of the above referenced preliminary report. He did not recall if AY was present but acknowledged that he could have been.

[227] Dr. Jasey testified he took his time with TS and AY and informed them that he would be referring TS to the Fetal Development Clinic in London. He recalled that TS asked a number of questions, including why she had to go to London. He testified that they had no discussions regarding the termination of the pregnancy. In fact, he testified that he would never raise that topic in that kind of scenario. He indicated that counselling and discussions of that nature were always left to his London colleagues.

[228] The differences in how Dr. Jasey and TS and AY recalled this appointment need not be resolved. What is important is that TS and AY were discontent with Dr. Jasey by this point in time which is relevant to their acceptance of a statement they allege he made to the effect that they had to continue with the pregnancy. I will discuss this statement later in these reasons.

[229] Dr. Ramsewak’s report was “released” and faxed March 17, 2010 at 11:18. He reported:

The radius and ulna of the right hand is shortened with fixed flexion of the wrist.

There is a shortened left humerus with a very shortened radius and ulna and an abnormal hand.

[230] Dr. Jasey sent a fax to the Fetal Development Clinic on March 17, 2010. Dr. Jasey wrote:

“Urgent – ASAP!!” on the top of his referral.

Under the heading “diagnosis” he wrote:

Consult – Left upper limb anomaly

• ASAP – Pt. is 28.1 wks

[231] TS was scheduled to be seen at the Fetal Development Clinic on March 23, 2010.

TS’ appointment at the Fetal Development Clinic March 23, 2010 at 28 weeks’ gestation

[232] Consistent with the triage described by Dr. Schmidt, TS’ appointment at the Fetal Medicine Clinic was not scheduled urgently. Dr. Schmidt explained that an appointment for TS six days after she was referred was quite appropriate given her gestational age of 28 week because:

Since termination of pregnancy is typically not available beyond 24 weeks for non-lethal anomalies, the fact that she was already beyond the 24 week mark at the time of her referral, indicated that there was no urgency to get her in within the next 24 to 48 hours.

[233] I note that the same procedure would have been followed in Dr. Barrett’s clinic. When Dr. Barrett was asked to comment on the urgency of an appointment for someone such as TS who was referred to a maternal fetal medicine specialist at 28.1 weeks, he indicated the following: “there’s not as much of an urgency as there would have been before 24 weeks. After 28 weeks, the [option] … of subsequent termination is much more complicated and difficult”.

[234] Similarly, Dr. Romano, reflecting on his experience as one of the founders of the Fetal Development Clinic, indicated that the gestational age biased whether an appointment at the Fetal Development Clinic was booked urgently. According to Dr. Romano, a patient beyond the gestational age of 24 weeks would not be not seen as urgently because “it would be difficult to obtain a termination for non-lethal after 24 weeks”.

[235] TS testified that she was emotionally distraught prior to her appointment at the Fetal Development Clinic. She described her appointment as the “most overwhelming experience” and “an extremely intimidating situation” but she felt free to raise questions and discuss things with the specialists. She did recall that when the ultrasound was performed in London on March 23, the images were explained to her and she was advised they had difficulty imaging her left side and she was also told that there were concerns on the right side. The right side concerns were a surprise to her because she had only understood from her March 16 appointment with Dr. Jasey that there was a problem on the left. I note that in the diagram Dr. Jasey drew for the plaintiffs, he showed nothing abnormal on the right—that is he drew a humerus, a radius, an ulna, and five fingers on the right. He marked and circled his diagram of the left arm and drew only four digits on the left side. Also, his referral to the Fetal Development Clinic referenced a consult for a “left upper limb anomaly”. It appears that he emphasized the problems with the left arm without addressing the problems on the right arm.

[236] TS testified that they were in London most of the day and saw a resident and Dr. Schmidt in the morning. In the afternoon, they participated in a meeting in a boardroom, with many people including Dr. Schmidt, a genetics counsellor, an orthopaedic person and a social worker.

[237] TS also testified that when Dr. Schmidt reviewed the January 27 ultrasound with them it was “right then and there” that she and AY “came to find out” that the problem had been noted in January, something they were unaware of. TS testified that she was angry that she had not known of any problem all of these months. When she indicated that she couldn’t believe that she was just finding out about the situation at that time, there was no response from anyone.

[238] TS retained little of what she learned. There were many possibilities presented to her but essentially she understood they had to “wait and see” until the baby was born.

[239] Dr. Schmidt recalled meeting TS and AY because their case was “fairly unique in terms of the findings that were seen”. Dr. Schmidt described AY and TS as being “definitely upset” when they learned that the information noted in the January 27 ultrasound (when TS was 21 weeks pregnant) had not been acted upon earlier and they wondered why they had not been referred to the Fetal Development Clinic earlier.

[240] The clinic’s ultrasound revealed that the left limb was definitely very difficult to visualize, there was a concern that there was either an abnormal arm with a hand which looked like a flipper on the end or the hand actually originated directly from the shoulder region. The right arm had noted abnormalities which were more limited to the extremity. The right hand appeared to be abnormally positioned and they could not clearly visualize the fingers. However, the right extremity was clearly more separate from the body and mobile than the left side which appeared to be more fixed and restrictive against the body.

[241] Dr. Schmidt informed TS and AY that it was very difficult to make a conclusive assessment as to what might be the underlying ideology. It could be a very individual isolated structural anomaly; it could potentially arise from an underlying genetic syndromic problem; and there was also the possibility there could be a major chromosomal anomaly.

[242] Dr. Schmidt testified that he was able to reassure TS and AY that the fact that the baby otherwise appeared to be perfectly normal was reassuring for a low risk of chromosomal anomaly. He also reassured TS and AY that the results of the ultrasound did not fit with classical presentation of genetic disorders. Dr. Schmidt advised them that there was nothing in the current picture that made him specifically concerned about a genetic abnormality which they were able to test for.

[243] Dr. Schmidt also raised the possibility of an amniotic band syndrome, however, Dr. Schmidt delivered Baby girl S and he confirmed that the appearance of the limbs was more in keeping with an abnormal development of the limbs as opposed to a normal limb having been truncated or affected by an amniotic band syndrome.

[244] Dr. Schmidt advised the parents that their findings were likely isolated to the limbs; this was likely a physical issue; there was no acute risk or problem to the pregnancy, her pregnancy care would be no different than routine; and, at the time of delivery the baby would need to be assessed by the special baby care nursery and by the orthopaedic team.

[245] He informed the parents that it would be very difficult to give a definitive assessment at that stage as to what the overall functioning of those limbs may be and that would not be known until they were able to visualize the limbs at birth.

[246] Dr. Schmidt also testified that TS raised with them the fact that she might have been exposed to a Cytotoxic medication as a nursing student when she was 18 to 20 weeks pregnant. As TS testified, she was concerned she had not been cautious enough. However, she was advised that it was highly unlikely that such exposure had actually been the cause of the anomalies that were seen.

[247] Ultimately, it was determined that TS would see Dr. Mundle, a fetal medicine specialist practicing in Windsor for her following visits and she would return to London for her delivery and at any prior point if concerns developed.

[248] After TS was seen by Dr. Schmidt, Dr. Jasey received a March 23, 2010 consultation report from Dr. Schmidt. There was no indication that Dr. Schmidt had any discussion regarding termination of TS’ pregnancy although as I will discuss more fully below Dr. Jasey was certain that such a discussion would have occurred at the Fetal Development Clinic. As a result, when Dr. Jasey saw the plaintiffs on March 31 and reviewed Dr. Schmidt’s consult with them, he did not discuss termination. As he put it, he would “fully presume” termination would have been discussed at the Fetal Development Clinic.

[249] After March 31, as recommended by Dr. Schmidt, Dr. Mundle provided care to TS (although Dr. Jasey’s partner, Dr. Rawlins, saw TS on April 8 as her first appointment with Dr. Mundle could not be scheduled until April 19, 2010).

[250] Dr. Mundle’s evidence given by written statement was that he did not recall discussing the issue of pregnancy termination with TS but he would have answered any questions she would have asked about that option. As he also stated, it would not be his practice to offer a termination of pregnancy at a gestational age of greater than 32 weeks because he cannot provide that service and in fact he does not believe that service is available.

ANALYSIS

(a) Standard of Care

(i) Did Dr. Adey’s communication of his report on the January 27, 2010 ultrasound meet the required standard of care?

[251] The contentious issue in relation to Dr. Adey’s care related to the fact that he did not prioritize, or otherwise highlight to Dr. Jasey, the findings in his report.

[252] The CAR standard for Communication of Diagnostic Imaging Findings specifies the following under the heading “Verbal or other Direct Communication”:

Radiologists should attempt to coordinate their efforts with those of the referring physician in order to best serve the patient’s wellbeing. In some circumstances, such coordination may require direct communication of unusual, unexpected or urgent findings to the referring physician in advance of the formal written report. These include: … detection of life or limb threatening abnormalities which might not have been anticipated by the referring physician.

In these circumstances, the radiologist, or his or her representative, should attempt to communicate directly (in person or by telephone) with the referring physician or his or her representative. Alternative methods including fax, text messaging or email (if not already in place) could be used for these purposes if there is a way of verifying receipt of the report. The timeliness of direct communication should be based upon the immediacy of the clinical situation.

[253] Dr. Adey acknowledged that limb abnormalities have an association with systemic genetic chromosomal abnormalities. This was the topic of a continuing education program at Mount Sinai Hospital, “It’s All In the Hands and Feet”, that he participated in. He agreed (as did Dr. Lougheed) that, as outlined in the materials from that program, hands and feet anomalies include alplasia (absence of limbs), abnormal motion, abnormal morphology, abnormal alignment (which includes persistent flexion), and abnormal size. He agreed that if one of the reasons the hand appeared flexed was potentially because of a vascular disruption, the report ought to be prioritized and treated as urgent. He further agreed that erring on the side of caution is very patient-centred and faxing the report of January 27 would have cost nothing. It would have resulted in the report being “pulled from the courier files and put into a different queue than the usual reports”.

[254] However, Dr. Adey was adamant that he would only prioritize a report if it revealed something deleterious to the condition of the mother or the fetus.

[255] Dr. Adey was also adamant that a second trimester ultrasound did not have anything to do with the patient’s choices or options and it was irrelevant that TS’ ultrasound was done at 21 weeks’ gestational age. As a result, the gestational age of the fetus and the prospect that his findings might lead to the termination of the pregnancy did not factor into his decision as to how he would communicate his findings.

[256] While Dr. Adey ultimately agreed that a second trimester ultrasound reveals important findings in relation to the anatomy of the fetus, which is relevant to the patient’s choice of treatment options, including the right to consider termination of her pregnancy, he added the following “caveat”:

To the best of my knowledge termination of pregnancy is available well beyond 24 weeks even into the third trimester in the United States. So this is not something that I would have considered as in any way, shape or form, necessitating the expediting of this report.

[257] It is important to note that while Dr. Adey believed that “availability is not an issue”, he agreed that there may be barriers in terminating a pregnancy after 24 weeks, and a patient would no longer have the option to terminate the pregnancy for any reason.

[258] Like Dr. Adey, Dr. Lougheed was of the opinion that the findings of the January 27, 2010 ultrasound report did not justify prioritization. Dr. Lougheed agreed with Dr. Adey’s description of the left hand and characterized the findings as “some sort of possible abnormality or possibly just not well seen”. While Dr. Lougheed acknowledged on cross-examination that there was “a possibility that [the left arm is] abnormal for sure”, he would not go so far as to say there was a suspected anomaly, but rather his opinion was that the result was “uncertain” or “unclear”. He testified that “inconclusive or incomplete” would be the term that he would use in relation to the findings.

[259] According to Dr. Lougheed, a radiologist determines whether a report should be a prioritized based on whether the information is so critical that the referring physician needs to have the information that day and in that case, he would deliver a report by a phone call or by fax to ensure that the referring physician received information immediately. Dr. Lougheed gave examples of such an emergency situation in an obstetrical case as being a fetal death; funnelling of the cervix, which could cause the patient to go into premature labour; or low amniotic fluid volume where the fetus could be in significant distress.

[260] As a result, in Dr. Lougheed’s opinion, Dr. Adey’s dictation, transcription, and printing of the January 27 report and delivery by ordinary means with the expectation that it would be delivered within 48 to 72 hours met the standard of practice. As he explained, there was nothing in the report “that is going to cause any immediate … concern for the health or well-being of either the fetus or the mother”.

[261] In assessing Dr. Lougheed’s opinion, I find it significant that Dr. Lougheed acknowledged on cross-examination that he had not included in his reports, which were prepared and served prior to trial, his opinion that whether a report was urgent depended on the level of concern for the mother’s health or the health of the fetus.

[262] I also find it significant that Dr. Lougheed acknowledged on cross-examination that he did not use the word “inconclusive” or “incomplete” in his reports. He indicated he noted those words when he read the transcript of Dr. Adey’s testimony at trial. It was put to him, and he agreed, that the characterization of the report as inconclusive or incomplete arose during his preparation for his testimony.

[263] These acknowledgments, and the fact that the words “inconclusive” or “incomplete” do not appear in the CAR standard for reporting on an obstetrical ultrasound, are factors that detract from the weight I will give Dr. Lougheed’s opinion.

[264] Further, Dr. Lougheed’s opinion was not consistent with the CAR standard of communication for unusual finding. Dr. Lougheed acknowledged on cross-examination that the hand remaining in the flexed position and its failure to move throughout the entirety of the exam was unusual. At first, Dr. Lougheed did not agree that the standard indicated that unusual findings ought to be prioritized or highlighted for the referring physician. He recognized that in “some circumstances” direct communication to the referring physician is required, but in his opinion, the unusual findings on the January 27, 2010 ultrasound did not fit into that category. Ultimately, on cross-examination Dr. Lougheed acknowledged that the CAR standard required that findings that were unusual and unexpected had to be directly communicated in advance of a formal written report, not just urgent findings.

[265] In addition, the fact that Dr. Lougheed’s opinion does not reflect the significance of gestational age in the SOGC guideline’s express purpose of performing the ultrasound at that stage to “allow pregnancy options if an anomaly is diagnosed” detracts from the weight I am prepared to give his opinion. Like Dr. Adey, Dr. Lougheed indicated that the second trimester ultrasound is done between 18 and 22 weeks because that time frame offers the best visualization of the fetus and the availability or non-availability of an abortion does not influence how a report is delivered.

[266] I note here parenthetically that Dr. Adey’s and Dr. Lougheed’s perspectives were shared by Dr. Shannon, who was very clear that the ability to terminate pregnancy is not a factor relevant to a community obstetrician’s review of, and response to, the results of a second trimester ultrasound. Like Dr. Adey and Dr. Lougheed, Dr. Shannon’s opinion was the product of his perspective that termination of pregnancies at any gestational age were “readily available” in the United States.

[267] In contrast to Dr. Adey and Dr. Lougheed, Dr. Romano was “concerned” by the January 27, 2010 ultrasound. He found it “significant”. As a result, he would have proceeded differently from Dr. Adey and Dr. Lougheed. Dr. Romano was of the opinion that Dr. Adey’s conduct in this case fell below the standard of care required of a community radiologist in 2010.

[268] Dr. Romano indicated that he agreed that the “questionable upper limb abnormality” had “not been completely, definitely elucidated” but he was “concerned” about something structurally abnormal and there was “a behavioral component”, “the arm wasn’t moving normally”, “this is a significant finding and would be …or ideally referred to a tertiary centre”. As he explained, his concern and the findings on the ultrasound were:

Significant because there’s really two things here, morphology, so the left upper extremity did not look normal. She was not able to demonstrate that despite demonstrating the other extremities and other anatomic landmarks in this fetus. But also the fact that the limb appeared flexed, it wasn’t moving. So it’s not only visibly abnormal looking but that its function appears to be abnormal.

[269] Dr. Romano testified that he expected a community radiologist to understand the recognized association between structural problems and chromosomal abnormalities.

[270] The following passage of Dr. Romano’s cross-examination is important and was emphasized by the defendants who submitted that this evidence “ends the question of whether the communication of this report was appropriate”:

Q. And so as far as I understand it, you’re [sic] only ongoing concern with respect to Dr. Adey’s care in this case is with the communication which you described as the communication of the report, correct?

A. Correct.

Q. And particular your concern is with the timing of the delivery of that report, right?

A. Correct.

Q. Right. And we know that…in your view it needed to be sent within 24 to 48 hours, right?

A. Yes, correct.

Q. And you said it could go by fax, courier or a telephone call, right?

A. Correct.

Q. Right. So any of those options would be acceptable?

A. Right with the caveat that any of those typically have some annotation that this is important.

Q. Right.

A. Typically if I fax something I call – I have my staff to call as well to say, you know Romano’s sending a report, please make the doctor aware of – of this report.

Q. So, I just want to be clear that your evidence earlier to Ms. Legate was that it would be acceptable in this case to courier it within 24 to 48 hours?

A. Yup.

Q. So, if you were told or if this Court finds that what happened in this case was that – as we know the ultrasound was performed at 11 o’clock in the morning roughly. It was dictated by Dr. Adey that same day, transcribed that same day, printed that same day and Dr. Adey’s evidence will be it was signed that afternoon or first thing in the next morning and sent out of the clinic, at least as far as he believes. So that his expectation is, is that it did arrive within 48 to 72 hours by courier. If this Court finds that, you would agree with me that that meets the standard that you have just described doesn’t it Dr. Romano?

A. Yes.

[271] I find that the above evidence, to use the defendants’ words, does not end the question of whether Dr. Adey appropriately communicated his findings to Dr. Jasey. Rather, I find it confirms the delivery of Dr. Adey’s report to Dr. Jasey by courier met the required standard of care. In other words, the timing of the delivery of the report was not Dr. Romano’s concern. However, this evidence does not diminish Dr. Romano’s opinion that Dr. Adey was required to communicate to Dr. Jasey that his report was outside the realm of a routine scan and it needed to be addressed.

[272] Dr. Romano explained that most obstetric ultrasounds are normal but there is a small percentage that are outside that realm. In Dr. Romano’s opinion, the January 27, 2010 ultrasound fell within that small percentage. As I have already noted, there were what he described as, “concerning findings”, which required “some sort of censorship to suggest that this isn’t a routine ultrasound”, and that it “fell outside that realm”. He stated that these findings “need to be highlighted to the clinician in whatever way you might highlight”. He went on to indicate that a call to the clinician that day was not required because it did not have that level of urgency and “24 to 48 hours would be a reasonable time based on what we talked about in terms of pregnancy options”.

[273] Dr. Romano explained that radiology centres prioritize reports in different ways. He stated that in his centre, in a case such as this, there would be a notation at the bottom of the report indicating that it was faxed to the referring physician, which is the method they follow to communicate an urgent report. He noted that others use asterisks. Some say STAT across the top.

[274] I have cautioned myself to be cognizant of the fact that Dr. Romano has practised regularly in a tertiary centre which raises the possibility that he might assess Dr. Adey’s conduct against a standard of a radiologist practising in a tertiary centre. However, Dr. Romano was very clear when opining on the standard of care that he was assessing Dr. Adey’s conduct against the standard required of a community radiologist, and there is no doubt that Dr. Romano had extensive experience as a community radiologist in 2009/2010.

[275] Dr. Romano opined that Dr. Adey did not meet the standard of practice of a community radiologist in the way in which he reported to Dr. Jasey because:

We have an abnormal screening test with what looked – what appeared to be significant findings on two levels … this is a – requires timely reporting to your clinical partner. It is outside the realm of the dozens and dozens of routine scans and I believe it is critical for a radiologist to communicate this to your clinical partner that…this is that one in a one hundred … that is not normal and needs to be – needs to be addressed.

[276] In other words, in Dr. Romano’s opinion, Dr. Adey should have prioritized this report in some way to indicate to Dr. Jasey that this was a report that was “outside the realm” of a routine scan. While Dr. Romano did not specify how this prioritization was to be accomplished (i.e. what method of prioritization had to be used), it is important to note that when Dr. Romano testified, he was aware Dr. Jasey had stated on his examination for discovery that Dr. Adey delivered annotated reports that included “some indication on the report outside of standard text” that would indicate that the report was “urgent or needed to be read or was of ‘concern’”.

[277] Dr. Romano did not, and could not, know that Dr. Jasey would testify that he mistakenly believed Dr. Adey had sent him the report he described on his examination for discovery while in fact it was Dr. Newell who had provided the annotated reports.

[278] Dr. Romano was very clear that there is a time sensitivity in relation to a report of a second trimester ultrasound. As he put it:

Obstetrical care has limited windows. The entire gestation is 40 weeks and we do know that typically we like to make diagnoses as early in pregnancy as we can. In the province in fact they have invested millions of dollars to provide first trimester ultrasounds. To provide data even earlier in pregnancy than just a second trimester ultrasound and we do know that options in pregnancy in Canada become more complex after 24 weeks.

[279] Dr. Romano described the gestational age of 21 weeks as “pertinent”. He noted that TS’ January 27, 2010 ultrasound was undertaken very close to 24 weeks’ gestation “so essentially is getting close to everyday counts for this family in terms of making decisions and providing information to them”.

[280] I accept the opinion of Dr. Romano that Dr. Adey did not meet the standard of care required of a community radiologist over the opinion of Dr. Lougheed for a number of reasons.

[281] Firstly, I note that there is no issue that Dr. Romano was an eminently qualified expert who has previously provided expert reports and testimony in the defence of his radiology colleagues. He had never before testified on behalf of a plaintiff in a medical negligence case.

[282] Secondly, as described above, I found there were a number of factors that detracted from the weight I will give Dr. Lougheed’s opinion.

[283] Thirdly, Dr. Romano’s opinion was consistent with the CAR communication standard requiring that unusual findings be directly communicated to the referring physician either in person, by phone, fax, text message, or email—in other words some method of prioritizing the review of the report by the referring physician.

[284] Fourthly, Dr. Romano’s prioritization of the report is consistent with the express rationale for the SOGC guidelines. As previously set out, the SOGC guidelines state that “an ultrasound scan performed between 18 and 22 weeks’ gestation provides the pregnant woman and her care provider with information about multiple aspects of her pregnancy” and “will allow pregnancy options if an anomaly is diagnosed”. (Dr. Arnold explained that the pregnancy options that the guidelines refer to are observing and continuing on with the pregnancy; treatment while the fetus is still in utero, if appropriate; and termination. Dr. Shannon agreed that the guidelines refer to the 3 options described by Dr. Arnold.)

[285] Dr. Romano’s opinion reflected an awareness of, and conduct consistent with, a patient’s right to have information about her pregnancy and to be offered pregnancy options. Dr. Lougheed’s did not.

[286] Fifthly, in accepting Dr. Romano’s opinion over Dr. Lougheed’s, it is significant that Dr. Romano’s reasoning for prioritizing the report was consistent with the views of Dr. Barrett and Dr. Schmidt, witnesses who I consider to be independent and objective, respecting the importance and significance of the timing (and the reporting of) a second trimester ultrasound.

[287] Dr. Barrett explained that “one of the main aims” of the second trimester ultrasound is “for the appropriate detection of fetal abnormalities”. As he noted, there is a balancing as to when the second trimester scan should be performed. The baby must be big enough so that structures can be seen but the scan must be done “early enough so that if something is found you can take the necessary action for the patient, to offer all their different options”. 18 weeks is considered the lower limit when things can be seen reliably, but because of modern technology the 18-week period may be reduced to 16 weeks or even earlier. However, as of now the lower limit remains at 18 weeks.

[288] On the other hand, the upper limit has changed. It was originally 20 weeks and it is now 22 weeks but as Dr. Barrett cautioned, “you can’t extend too far because then there’s really no time to get the referrals that may be necessary done by the limit of 24 weeks, which we still operate on as the difference between a viable and non-viable fetus and the options that carry on”.

[289] Dr. Barrett further indicated that appointments with a maternal fetal medicine specialist are “urgent” before 24 weeks’ gestation because of “the cut off”. He emphasized that “if he receives a report of a potential abnormality close to 24 weeks, the patient is routinely seen quickly”.

[290] Similarly, as Dr. Schmidt made clear, at the Fetal Development Clinic in London they want to ensure that a patient is assessed when “the determination of what the concern is can be clarified prior to viability being passed (which he explained was “the 22 to 24 weeks’ stage when the fetus has not reached the technical stage of viability”) and therefore excluding the options for termination and other considerations for management of the pregnancy”.

[291] The evidence set out above stands in contrast with Dr. Lougheed’s and Dr. Adey’s perspective that the second trimester ultrasound is performed within the recommended time period because of optimal visualization of the fetus and not because of patient options— perspectives which I find to be inconsistent with the purpose of the ultrasound according to the SOGC guidelines.

[292] Sixthly, I have accepted Dr. Romano’s opinion because it reflected the reality of a mother’s ability to terminate a pregnancy and the opinions of Dr. Adey, Dr. Lougheed, and Dr. Shannon did not.

[293] With respect to a woman’s ability to terminate a pregnancy, it was very interesting to me that even though termination has been legal for decades, the evidence as to the ability to have that procedure performed is not straight forward and indeed the medical experts offered differing points of view.

[294] The policy statement of the Canadian Medical Association (CMA) on induced abortion, which is defined as “the active termination of a pregnancy before fetal viability” which “in this context … is the ability of the fetus to survive independently of the maternal environment”, concludes with the following paragraph:

The CMA stresses the importance of considering fetal viability when active termination of a pregnancy is being discussed by a patient and her doctor. It must be remembered that when the fetus has reached the stage where it is capable of an independent existence, termination of pregnancy may result in the delivery of a viable fetus. Elective termination of pregnancy after fetal viability may be indicated under exceptional circumstances. CMA’s stated position on matters related to induced abortion includes the following:

• the provision of advice and information on family planning and human sexuality is the responsibility of practising physicians; however, educational institutes and health care agencies must share this responsibility;

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

• since the risks of complications of induced abortion are lowest in early pregnancy, early diagnosis of pregnancy and determination of appropriate management should be encouraged; and

• there should be no delay in the provision of abortion services.

[295] Part of the evidentiary record was documentation from London Health Sciences Centre which included a flowchart or an algorithm setting out the hospital’s policy governing termination of pregnancies in 2010. This flowchart reveals that in 2010: (i) a pregnancy is terminated in different ways dependant on gestational age up to 24 weeks’ gestation; (ii) the hospital did not terminate pregnancies which were over 24 weeks’ gestation unless the fetus had lethal anomalies; (iii) beyond 24 weeks’ gestation there would be a case review if there was a lethal abnormality; and, (iv) if there was no lethal abnormality the chart concluded with a box labelled “American Provider”, referencing a clinic in Boulder Colorado.

[296] According to Dr. Barrett, when a gestational age is below 24 weeks the option of termination of pregnancy is easy to obtain:

It’s easy to offer because there is the perception the baby is not viable or sustainable outside the womb and patients can be given that choice and really that choice will be accepted as the patient choice really whatever the abnormality is. There’s no second guessing or discussion.

[297] However, as Dr. Barrett outlined, after 24 weeks’ gestation the situation is much different:

After 24 weeks it’s a much more complicated procedure and will vary by institution to be either not being available at all, to be [sic] available only after committee discussion to be restricted to lethal abnormalities only. It’s a much more complicated procedure.

[298] Dr. Barrett also testified that the gestational age makes a difference to physicians or those who have to carry out termination because, as he put it, termination after 24 weeks is “much more difficult” because the baby is viable. Dr. Barrett made clear that the gestational age is very important to triage: “I mean we all operate under this 24 week sort of limit in which we know the options are very different before and after”.

[299] Dr. Barrett has been involved in the referral of a patient to the United States for termination of her pregnancy, and he has directed her to the genetics department of his hospital because as he put it, “it’s not a simple procedure and there’s multiple layers of … administration, the forms”.

[300] As I will set out in more detail below, Dr. Barrett was clear that after 24 weeks “it’s not as simple as saying the procedure is available, it’s not available. It’s a different concept”.

[301] Also, as will be discussed more fully below Dr. Barrett testified that while termination would be offered standardly at less than 24 weeks’ gestation as part of a routine discussion, most maternal fetal medicine specialists do not even offer termination after 24 weeks’ gestation except for the most serious and severe abnormalities.

[302] He was asked why termination would not even be offered after 24 weeks and he responded:

[T]here’s the concept that you aren’t offering a participating [sic] in the termination of a being that is self-sustaining and therefore the level that we, I guess feel comfortable in suggesting that procedure, is different than – than before when the baby is not – not able to do that.

[303] The defendants argued that Dr. Barrett’s attitude was unique and did not reflect the prevailing attitude and practice at the Fetal Development Clinic in London. They also argued that despite “the approach and reservation” of Dr. Barrett to late term abortion because of the age of the fetus, “late term abortions referrals to the United States was baked into the institutional cake in London”. I agree that the algorithm states that late term abortion is provided by American facilities. However, Dr. Barrett’s evidence is consistent with Dr. Schmidt’s.

[304] Dr. Schmidt was very clear in his testimony that up until 23 weeks and 6 days’ termination of pregnancy is an option electively. Beyond that stage it is not an elective option available in Canada. Significantly, he went on to say that although there are no formal laws in Canada indicating when termination is available, realistically and functionally termination is not an option after fetal viability, the point in time when survival of a baby outside the uterus is realistically expected, which he said classically is considered 24 weeks.

[305] It is to be noted that while elective termination up to 24 weeks is available in Ontario, practical issues continue to exist. For example, Dr. Schmidt testified because a 22 or 23 week termination in Windsor was not available in 2010 a patient would be required to travel to London, which OHIP would not pay for. And in 2010 there were only two physicians in London who terminated pregnancies up to the 24 week mark pursuant to what was then called the Therapeutic Abortion Program. They had been the target of numerous threats over the years. Picketers regularly gathered outside of their homes and at the hospital denouncing their practice. There was a period of time they were reasonably in fear for their lives, wore bullet-proof vests, and took precautions including avoiding exposure through the windows.

[306] Therefore without even considering the emotional issues inherent in a decision to terminate a pregnancy, [for example, Dr. Kuprowski testified that terminating a pregnancy is an exceedingly difficult situation for people to face and Dr. Schmidt referred to it as “an incredibly difficult decision to make”] it is clear that the procedure itself, even when available electively, has unusual complications which are not part of other surgical procedures.

[307] Termination after 24 weeks’ gestation is far more difficult to access. Firstly, it is not offered in Canada at all. Secondly, it is only offered in Boulder, Colorado (and that location was the only option in 2010). As Dr. Schmidt indicated, while originally there had been another facility in the United States, the physician who performed that service in that location had been assassinated. Thirdly, to have the procedure approved and covered by the Ontario Ministry of Health, a patient must make an application setting out the reason for the referral and an explanation why the procedure is not available in Ontario. Fourthly, if the Ministry of Health approves the application the Ministry will cover the expenses associated with the procedure itself but a patient must pay the cost of travelling to Boulder, Colorado and of staying there, typically for four to five days.

[308] Again, without even taking into account any emotional or social considerations, [for example, Dr. Barrett testified that many parents “would not consider termination at all because of any number of reasons including personal, religious, cultural, or social factors”] it is not surprising that in the nine years Dr. Schmidt has been in practice as a maternal fetal medicine specialist, he has referred only three cases to the United States for a late termination of a pregnancy.

[309] Dr. Barrett’s and Dr. Schmidt’s evidence is consistent with Dr. Jung’s experience which also reflects the practical reality. Dr. Jung has discussed the process to obtain funding for an out of country late term termination with his patients but there has never been a single couple who chose that option. It was put to Dr. Jung that Dr. Blumenthal, a geneticist retained by the defendants who was not called as a witness, had indicated in a report that “termination out of the country was easily accessible for late term abortion”. Dr. Jung’s response was that late term abortion was “theoretically accessible but practically very difficult to do”.

[310] I pause to note here that as I will reference further below, Dr. Arnold’s opinion respecting the significance of gestational age to the availability of termination accorded with Dr. Barrett’s, Dr. Schmidt’s, and Dr. Jung’s evidence. Also, Dr. Arnold was aware that there is an option of going south of the border; as he put it, but consistent with Dr. Barrett’s, Dr. Schmidt’s, and Dr. Jung’s experiences respecting the rarity of these referrals, he has never dealt with a referral to the United States. This evidence stands in contrast to Dr. Shannon’s evidence, which I will more fully outline later, that a late term abortion in the United States is a readily available treatment option despite the fact that he has never made a referral.

[311] Considering the foregoing, I find that Dr. Adey was required to communicate his findings from the January 27, 2010 ultrasound to indicate to Dr. Jasey that this ultrasound needed to be addressed and was “outside the realm” of a routine scan. Dr. Jasey testified that if a report is faxed to him, that is an indication that it is outside the normal courier or outside the normal queue and it would be treated as an important report and would be brought to his attention that day. Analogously, when Dr. Jasey reviewed the September 2009 highlighted report from Dr. Newell, it is clear that he underlined certain sentences and circled some words.

[312] It was suggested to Dr. Jasey that if he received the report from Dr. Adey at 21 weeks and a couple of days, that there would have been a reason to expedite the second ultrasound. However, Dr. Jasey disagreed and indicated that he would have ordered the second ultrasound in the same way.

[313] Dr. Jasey was clear that if he had seen the January 27, 2010 ultrasound on January 28 he would have ordered a further ultrasound because as a community clinician he was obliged to make a diagnosis and could not “just hand everything off” to the Fetal Development Clinic to request that they make a diagnosis. In addition, as he put it, “I wasn’t [sic] overwhelming rush to get it back because I knew that termination was available”. He was very clear that he did not use 24 weeks as a cut-off and he would have ordered the second ultrasound in the same manner even if he had ordered it when she was at 21 weeks and a few days’ gestation.

[314] On cross-examination when it was put to him that if he wished to have a second look before making a referral to a maternal fetal medicine specialist, the right thing to do was to ensure that he expedited the second look. However, he confirmed that he would not have changed his management during the time frame that is in issue.

[315] Considering the foregoing, I turn next to the question of whether Dr. Jasey met the standard of practice in Ontario in 2010 with respect to the management of the report of the January 27, 2010 ultrasound.

(ii) Did Dr. Jasey meet the required standard of care in his review of the January 27, 2010 ultrasound and his care of TS thereafter?

[316] The defendants emphasize that the relevant standard of care is the standard required in the community and that the standard required of a maternal medicine specialist is a different standard. I agree with that proposition and will assess Dr. Jasey’s conduct accordingly.

[317] I note that in relation to this issue the defendants questioned what, if any, is the significance to the profession of the “so called 24 week deadline” relating to pregnancy termination? I will outline how Dr. Jasey dealt with the January 27, 2010 ultrasound and then address the standard of care issue.

[318] Dr. Jasey was very clear that Dr. Adey’s report didn’t “readily cue to me that this was a situation of a shortened limb scenario” and because the hand was there he felt “presumably the arm was there, that likely the positioning impacted the ability to view the arm”.

[319] Dr. Jasey testified that it did not cross his mind that the ultrasound would have triggered termination of the pregnancy. That is perhaps not surprising considering that when he reviewed the January 27, 2010 ultrasound TS was already at 24 weeks’ gestation. In any event, Dr. Jasey testified that had termination crossed his mind, he would have done what he did. That is, he would have ordered a repeat ultrasound, because in his mind there was still enough time to terminate the pregnancy in the United States. Dr. Jasey acknowledged that a mother at 24 weeks’ gestation would no longer have the option of an elective termination in Ontario but he treated the option of termination in Boulder, Colorado as an equivalent treatment option.

[320] Dr. Shannon supported Dr. Jasey’s response to Dr. Adey’s report on the January 27, 2010 ultrasound. According to Dr. Shannon, the report reflected an incomplete ultrasound. Dr. Shannon acknowledged that the flexed position and absence of movement of the left hand is an unusual finding. Nevertheless, he was adamant that the report did not indicate there was anything abnormal. It was reassuring that the remainder of the anatomy was normal. Because the ultrasound was incomplete, it was appropriate to order a repeat ultrasound on a non-urgent basis.

[321] Dr. Shannon described the follow-up ultrasound report on March 10, 2010 as “a little more serious” than the first report which revealed to the community obstetrician “that there are a few more issues”. Dr. Shannon indicated that he would have done what Dr. Jasey did on March 16, 2010 – that is, advise the parents that there was a need to make a referral to the Fetal Development Clinic in London and that he was available to answer any questions. He would not raise the issue or possibility of termination. Dr. Shannon was clear that raising termination on March 16, 2010 was not required by the applicable standard of care.

[322] Dr. Shannon indicated that he would only bring up the issue of termination if the parents raised the issue. He indicated that a better ultrasound with very high resolution equipment would be performed at the Fetal Development Clinic, the findings would be discussed with the specialist, other testing would be considered, and options would be discussed there.

[323] While Dr. Shannon indicated on cross-examination that he was “very aware” the fetal development clinic would accept a referral in relation to a possible abnormality and he does “practise that way as well”, he further indicated that “it depends on what the abnormality is”.

[324] Dr. Shannon was then referred to the SOGC guideline titled “Evaluation of Prenatally Diagnosed Structural Congenital Anomalies” dated September 2009, which he agreed would have considerable weight in his profession. Indeed Dr. Shannon agreed with a number of the recommendations made in that guideline including the recommendation that

when a fetal structural anomaly is identified, the pregnant woman should be offered a timely consultation with a trained genetic counsellor and with maternal-fetal medicine specialist and/or a medical geneticist. The counselling should be unbiased and respectful of the patient’s choice, cultural, religion and beliefs and when a fetal structural anomaly is suspected or identified, a referral to a tertiary ultrasound unit should be made as soon as possible to optimize therapeutic options.

[325] However, Dr. Shannon stated that unless he suspected that there is definitely an abnormality that needs to be further elucidated with a higher level ultrasound, he would still order a repeat non-urgent ultrasound in the community when there is an isolated limb abnormality, that is not necessarily life-threatening and there is no other issue with the baby.

[326] While Dr. Shannon did not disagree with the recommendation in the guideline that a referral to a tertiary ultrasound unit should be made as soon as possible, he stated that a referral was “one of the options” and “not all anomalies are the same”, explaining that there was some level of practicality required in the obstetrician’s decision making.

[327] It was suggested to Dr. Shannon that he was parting company with the SOGC recommendation that a suspected anomaly ought to be reviewed at the tertiary level and he responded as follows:

I understand what the SOGC guidelines say. In practical terms when you’re functioning as a practical obstetrician in the community approximately 9 to 10 percent of your ultrasounds come back as incomplete with some suspicions. If I’m seeing 350 pregnant women per year and I have 12 other obstetricians in my town, which I do in Kitchener, then I would be looking at taking up [sic] months of clinic time just in Hamilton alone just on that basis. It’s unbelievable the number of ultrasounds that would come back as incomplete, [which he confirmed meant that something was not visualized].

[328] Dr. Jasey’s approach and Dr. Shannon’s opinion ­­­­differ from Dr. Arnold’s with respect to when TS ought to have been referred to the Fetal Development Clinic and the significance of the fact that TS was close to 24 weeks’ gestation when the January 27, 2010 ultrasound should have been reviewed by Dr. Jasey.

[329] Like Dr. Jasey, Dr. Shannon would not give the ability to terminate the pregnancy “a thought at all” if he had received the January 27, 2010 ultrasound report from Dr. Adey. He was clear that in reviewing second trimester ultrasounds he is not governed by, nor does he tailor his practice to, what the defendants referred to as “the so called 24-week rule”.

[330] According to Dr. Shannon, every obstetrician would be very aware that termination of pregnancy was available at any time. He was very clear that “the 24 week issue” was not something that an obstetrician needs to be concerned about at all. As he put it, “if a woman decides she’s going to have her pregnancy terminated, she’ll have it and she’s going to go ahead and do it”. As he put it, at 24 weeks, she would require one or two days to go to London; thereafter, she would need four to six days to go to the United States; it would not make sense for time or money to be a barrier to termination.

[331] Dr. Arnold differed in opinion. Dr. Arnold was clear that he would characterize the January 27, 2010 ultrasound as one which warranted referral to a maternal fetal medicine specialist. He was also clear that it was not necessary for Dr. Adey to use the word “abnormal” in his report in order to indicate that this was an abnormal ultrasound.

[332] According to Dr. Arnold, the left hand being flexed and non-mobile during the entire examination was not normal. The left forearm and left humerus could not be imaged.

[333] According to Dr. Arnold:

Certain things will jump out to you when you read reports and this…the left hand being flexed, non-mobile, the left forearm and left humerus not being imaged, those are not common things to see. In fact, I can’t recall an ultrasound where I had seen this particular issue come up before so that just jumped out at me.

[334] In Dr. Arnold’s opinion, the flexed, abnormal position and non-mobile left hand raised the potential that there was “a genetic issue or chromosomal issue with this baby” even though it was associated with only one side.

[335] With respect to the left forearm and left humerus not being seen, he indicated that was possible that was related to the persistent flexion as Dr. Adey proffered in his report, but there was also a possibility that the left forearm and left humerus were not seen because they were not there.

[336] It was suggested to Dr. Arnold on cross-examination that there are three kinds of ultrasound reports: clearly normal, clearly abnormal, and a third category where one could not tell one way or the other and a report of that kind would be described as an incomplete or inconclusive report. Dr. Arnold agreed that there are those three kinds of reports.

[337] Dr. Arnold disagreed that the January 27 ultrasound would be in the third category.

[338] Dr. Arnold was very clear that there were two different findings in Dr. Adey’s report. The hand was flexed and non-mobile during the entire examination, which to him told him that the sonographer went back and looked several times and the hand didn’t move. And the left forearm and left humerus could not be imaged.

[339] Dr. Arnold agreed that the inability to visualize the forearm fit within the third category of ultrasound, that is, the forearm may or may not be there and further investigation is necessary. However, the issue for Dr. Arnold was the hand. As he made clear, “The fact that, you know, the left hand was non mobile during an entire examination stands out to me as exception. It’s something that’s remarkable”.

[340] In Dr. Arnold’s opinion, if the January 27, 2010 ultrasound was received by February 1 (when TS would have been close to 22 weeks’ gestation), an obstetrician practicing in Ontario in 2010 needed to discuss the ultrasound with his patient. The obstetrician should indicate that there could be an underlying genetic or chromosomal issue and in order “to sort that out” he would recommend a referral to a maternal fetal medicine specialist who had more knowledge and more expertise. He would prepare his patient for potential options that would be discussed at that meeting with the specialist: (i) continuing on with the pregnancy; (ii) treatment, although he would not expect any form of treatment would be available in utero but potentially some treatment after birth; or (iii) termination of the pregnancy.

[341] Dr. Arnold was clear that it would be the patient’s decision as to which option was chosen. Dr. Arnold considered the timely review of a second trimester ultrasound report very significant because it “plays a big part” in providing care “going forward”. As he indicated, if there are abnormalities they need to be discussed and followed up on in an appropriate way.

[342] Dr. Arnold also indicated that if, on February 1 or February 3, a physician wished to have a second scan to confirm what was going on with the arms, he would consider that to be “perfectly reasonable and acceptable providing that was done in an expeditious way”, which according to Dr. Arnold would require “that to be done preferably same day or within one day”. He stated that if Windsor Regional Hospital made every effort to accommodate same-day or urgent requests from obstetricians (which Ms. Lauzon testified was the case), he would consider that an appropriate place to have the second scan done.

[343] Dr. Arnold indicated that it did not meet the standard of practice to receive the second trimester ultrasound report February 17, 2010, the day after the patient’s 23 week 6-day appointment. As previously set out, Dr. Jasey conceded he should have reviewed the report during the week of February 1, 2010. (As a reference point, I note that on February 3, 2010 TS was at 22 weeks’ gestation.)

[344] Further, Dr. Arnold was of the opinion that Dr. Jasey did not meet the standard of care expected of an obstetrician in his response to the January 27, 2010 ultrasound in seeking a reassessment at the Windsor Regional Hospital without advising the patient as to the findings on the ultrasound and in ordering a follow-up in the ordinary course without any type of priority. As Dr. Arnold stated:

This was not responded to in a timely fashion. There didn’t appear to be any process in place for following up on that result. The information should have been conveyed to his patient that there was an abnormality. And that was not conveyed to the patient.

The report was sent over just “reassess limbs”. There was no indication of any urgency on that report. These reports typically are received by booking clerks that will just slot them in the next opportunity or the next slot that’s available. As we had discussed earlier, if we wanted to follow up that could have been done. They could have provided a same-day appointment for that patient. He should have connected directly with the radiologist to discuss his concerns and then ask for follow up afterwards.

[345] Ultimately, Dr. Arnold offered this on his cross-examination:

So the left hand ends up being flexed and not moving. That’s abnormal. You could say that, you know, whether the forearm and humerus are there or not there you’re still left with an abnormality that needs to be sorted out. And again, if you take…what’s the worst case scenario here? The worst case scenario is that the forearm and humerus are abnormal. If I were that patient, having heard this, I would want that sorted out yesterday. And certainly from a patient’s centred or patient focused point of view if you’re telling a patient there’s an abnormality that needs to be followed up on you’re going to want to follow up on that as fast as you can. One to sort it out, but also for your patient. So I would disagree with Dr. Shannon there, that there was a reason to expedite this.

[346] In addressing the standard of care issue in relation to Dr. Jasey, I begin by noting that the defendants place particular emphasis on the following series of answers given by Dr. Arnold to questions on his cross-examination:

Q: Do you agree that the decision as to what you are going to do with a report like January 27, involves the exercise of clinical judgment?

A: Yes

Q: Do you agree that careful and competent doctors can fairly and honestly disagree about matters of clinical judgment?

A: Yes

Q: Do you agree that Dr. Shannon is in a good position as are you to comment or advise the court about the standard of practice of obstetricians practicing in 2010?

A: Yes

Q: And so, Doctor if…as a hypothetical…Dr. Shannon comes before this court and says what he says in his report, that he believes that Dr. Jasey’s handling of the report was reasonable and met an appropriate standard, do we not then have careful and competent physicians, in this case, obstetricians, fairly and honestly disagreeing about a matter of clinical judgment?

A: Yes

[347] I note that the defendants take the position that this evidence is probative both as to the standard of practice, per se, and is also “very telling as to the supposed paramount 24-week rule”. The defendants say that Dr. Arnold would not have made these concessions if such “a rule” was significant and overriding. However, I find that this evidence does not diminish or detract from Dr. Arnold’s very clear opinion that Dr. Jasey did not meet the standard of care in a number of respects, as outlined above. I do not accept the defendants’ submission that we simply have two different points of view from careful and competent obstetricians, who are fairly and honestly disagreeing.

[348] The defendants’ second point responds to the plaintiff’s theory that had the defendants met the required standard of care, by 22–23 weeks’ gestation (February 3 or 10, 2010) TS would have been referred to the Fetal Development Clinic and had the opportunity to terminate her pregnancy in Ontario.

[349] As will be revealed later in the reasons, when a patient is referred to the Fetal Medicine Clinic in London prior to 24 weeks’ gestation, this option of termination is always raised. As previously described, this practice also occurred in the clinic where Dr. Barrett practises. The defendants submit that it is significant that neither the SOGC nor the CAR guidelines make any reference to 24-weeks’ gestation and there is no statement in either guideline that obstetricians or radiologists must tailor and govern their practices according to “the 24-week rule” and if 24-weeks’ gestation were remotely as paramount, crucial, and central as the plaintiffs suggest there would be specific written guidelines from these two associations governing the practice areas.

[350] I find that Dr. Arnold’s evidence did not establish a “24-week rule” and indeed the SOGC Guidelines, as the defendants point out, do not refer to such a rule. However, when asked how important the 24-week date was in practicing obstetrics in Ontario in circumstances such as these, Dr. Arnold was clear that “it’s important to respect limits so it’s an important timeline”.

[351] Dr. Arnold testified that the CMA policy on induced abortion combined with the SOGC standards is what is practised in obstetrical care. As he emphasized, the second trimester ultrasound is done between 18 and 22 weeks to provide information to the pregnant woman and her care provider so that in the event of an abnormality the pregnant woman could consider her options, one of which is termination.

[352] As Dr. Arnold stated, the expected knowledge of a community obstetrician in 2010 was that

although termination was available at any gestational age, providers of termination at any gestational age are … typically not available. Up to twenty four weeks of gestation is typically the cutoff that’s used for having an elective termination if you decided to terminate a pregnancy.

Dr. Arnold also emphasized that patients are to be provided information and counselled.

[353] During his testimony, it was put to Dr. Arnold that it was anticipated that Dr. Jasey’s position would be, as it ultimately was, that the maternal fetal medicine specialist had more knowledge and was better able to answer the questions that would inevitably arise and as a result, he did not raise termination before making the referral to the Fetal Development Clinic.

[354] Dr. Arnold would not concede that Dr. Jasey’s decision to not raise the issue of termination was within a reasonable range of judgment in all the circumstances, stating that:

I would challenge that because you’re making a decision for the patient about what they should and should not hear. And your role as that patient’s care giver is to provide them with information. Information they may not want to hear but information that may be valuable to them and then they decide. And I think the issue of trying to sort out what your patient should know and what your patient shouldn’t know without asking your patient is not the right route to go.

[355] I agree with the plaintiffs’ submission that they are not elevating “the 24-week rule” to something akin to the 10 commandments as the defendants suggest. Rather, it is just a simple straight forward consent to treatment issue: patients are entitled to be informed of alternative treatments and entitled to hear about them in a timely way. As the plaintiffs point out, there is a practical difference between termination pre and post 24 weeks, which is something that the physician ought to be taking into account. They refer to s. 11 of the Consent to Treatment Act, which provides that alternative treatments are something that a patient is entitled to have made available to her.

[356] I accept Dr. Arnold’s opinion on the issue of whether Dr. Jasey met the standard of care over Dr. Shannon’s opinion for a number of reasons.

[357] Firstly, I agree with Dr. Arnold that Dr. Shannon focused on the fact that the forearm and humerus were not seen, and it seemed to me he paid little heed to the portion of the report relating to the left hand. As Dr. Arnold put it, the ultrasound report was “kind of split 50/50. I mean 50 percent of the sentence is talking about the abnormal hand and 50 percent is talking about the forearm and humerus”. Having read Dr. Shannon’s report before he testified, Dr. Arnold was of the view that all that “he talks about is what’s incomplete”.

[358] I note that Dr. Kuprowski was concerned about both the hand and the left forearm and humerus and his concerns were reflected in what he had underlined on the January 27, 2010 ultrasound. Using a red pen (which has significance in his record keeping) he underlined the words “left hand” and the phrase “left forearm and left humerus could not be imaged” and put an asterisk beside those phrases. He also underlined the 21-week gestational age.

[359] Secondly, Dr. Arnold’s opinion was consistent with all of the SOGC guidelines. Dr. Arnold’s evidence reflected the fact that a suspected fetal structural anomaly mandated a referral to a tertiary ultrasound unit as soon as possible. This accorded with the SOGC guideline titled “Evaluation of Prenatally Diagnosed Structural Congenital Abnormalities” which Dr. Shannon was referred to as referenced earlier. I note that Dr. Lougheed was also referred to the same statement in this guideline and he agreed that referring a suspected structural anomaly to a tertiary ultrasound was a “common sense recommendation”.

[360] Further, this guideline confirms that it is entirely appropriate to consider an isolated problem as one requiring follow-up as it notes that isolated or multiple anomalies may be explained by chromosomal abnormalities or recognizable syndromes with another genetic basis. The guideline states that “parents should be informed that major or minor fetal structural anomalies, whether isolated or multiple, may be part of a genetic syndrome, sequence, or association, despite a normal fetal karyotype”. (I note also that the continuing education program, It’s All in the Hands and Feet, referenced one-sided problems or anomalies as not being “normal”.)

[361] The defendants argued that because this guideline was not referenced by the plaintiffs’ experts and only Dr. Shannon was asked to comment on it, it is not open to lawyers and judges to conclude that this standard is applicable. I do not accept that argument.

[362] Dr. Lougheed was referred to a recommendation in the guideline and agreed with it. Dr. Shannon agreed that this guideline had considerable weight in his profession.

[363] Further, as I have found, this guideline reflects the required standard of practice according to Dr. Arnold. Indeed, in describing the number of referrals he makes to a maternal fetal medicine specialist, he indicated that he usually received 30 new patients per month and it could be as high as 35 per month. Over the course of a year he would probably refer between four and six patients to a maternal fetal development clinic with respect to suspected or actual fetal abnormality, which would be about one percent of his patients.

[364] In addition, consistent with the SOGC guidelines respecting the content of a second trimester ultrasound, Dr. Arnold was clear that patients ought to receive information about the ultrasound so that options can be discussed. As the guidelines note, the ultrasound is done to provide information to the pregnant woman and her care provider. It is performed within the 18–22 week window to “allow pregnancy options if an anomaly is diagnosed”.

[365] I note also that Dr. Arnold’s opinion that Dr. Jasey was required to raise the issue of termination is consistent with the CMA policy on induced abortion previously set out.

[366] In contrast, Dr. Shannon was not prepared to refer to a tertiary centre until an anomaly was confirmed. In addition, although I note that Dr. Shannon acknowledged that the SOGC guidelines state that the information from the ultrasound belongs to the patient as well as the physician, a proposition he agreed with, neither he nor Dr. Jasey spoke about the fact that the January 27, 2010 ultrasound should be discussed with their patient in a timely way after their review.

[367] Thirdly, Dr. Arnold’s opinion accorded with Dr. Barrett’s and Dr. Schmidt’s expectations. They both refuted the notion advanced by Dr. Shannon and Dr. Jasey that a referral reliant on only the January 27, 2010 ultrasound report would be inappropriate and would “overwhelm” the Fetal Development Clinic.

[368] Dr. Schmidt indicated that if the Fetal Development Clinic in London had received the referral after the January 27, 2010 ultrasound, it was “definitely something that would have been triaged” by the clinic “as a reasonable consult to that clinic and we would definitely have seen them at that time”. It was clear from Dr. Schmidt’s evidence that the Fetal Development Clinic’s role is to assess potential anomalies before 24 weeks’ gestation to provide patients with pregnancy options.

[369] As Dr. Schmidt explained:

Our role as the tertiary care centre and the referral region that we service is to provide appropriate assessments of patients that may have anomalies and ideally again, we see those patients before the 24 week mark, so that if there are significant concerning findings, which may have a legitimate impact on fetal well-being or survival after delivery or impact in quality of life, that they have the option to have their case reviewed at a point where all available options, including termination of pregnancy are still there.

[370] In addition, Dr. Schmidt testified that it is unnecessary and there is no expectation that an anomaly be confirmed or diagnosed before a referral to the Fetal Development Clinic. Indeed, Dr. Schmidt testified that probably a third to one half of their patients will either have no anomaly identified when the clinic performs its ultrasound or only a minor anomaly is identified that does not require any significant active management during the pregnancy or postnatally.

[371] Dr. Barrett testified that Dr. Adey’s report of the January 27, 2010 ultrasound “would be a typical referral” to him as a maternal fetal medicine specialist. He was clear that he did not agree with the suggestion that a referral arising from Dr. Adey’s report of January 27, 2010 would overwhelm the system within which he works and a suggestion to that affect was not true. He emphasized that reviewing ultrasounds, such as the one Dr. Adey reported on January 27, 2010, is what “they do all the time”.

[372] Dr. Barrett went on to say that maternal fetal medicine specialists are usually the point of referral when abnormalities, or suggestions of abnormalities, are detected. He further explained that he used the phrase, “suggestions of abnormalities”, because the general level of skill when ultrasounds are performed in the community is to raise the possibility of something being found. Sometimes those reports are correct and sometimes they are not. As he puts it, a maternal fetal medicine specialist is “the next port of call to either confirm, elucidate, elaborate” and to provide “the further management and the prognosis of their condition for the patient”. Similar to the experience in the Fetal Development Clinic in London, very often ultrasounds referred to their clinic are normal or have abnormalities that are positional or of non-significance. Dr. Barrett’s clinic concludes that there is actually no finding or there is an insignificant finding in relation to a significant number of ultrasounds that are referred to them.

[373] Fourthly, Dr. Schmidt clearly stated that the finding on the January 27, 2010 ultrasound was an appropriate referral for precisely the same reason Dr. Arnold found the report concerning—the finding of flexion and non-mobility:

[T]he left hand was noted to be flexed and non-mobile during the entire examination and “the left forearm and left humerus could not be imaged”. This is the line in the report that would indicate that there was a concern about the development of that part of the anatomy. And, whenever we see a flexed and non-mobile limb, that is definitely considered something, which is abnormal for the appearance of the limb and would be reason to prompt a referral to a tertiary care centre.

[374] Fifthly, Dr. Arnold’s opinion is consistent with a duty to refer on a timely basis to a specialist. As Dr. Jasey acknowledged, after the follow-up ultrasound confirming a flexed left hand and left limb anomaly, he would have had no treatment option to offer TS and would have had to make a referral to London.

[375] In R. v Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, which I will reference again later, the court makes clear that the earlier termination occurs in a pregnancy the safer it is for the patient (see para 117 where the court states that “with each passing week of pregnancy even in the very early stages the risk to health that an abortion represents increases”).

[376] Sixthly, Dr. Arnold’s opinion respecting the significance of gestational age and the resulting need to expedite the second ultrasound because of the time limited availability of an elective termination was consistent with Dr. Barrett’s, Dr. Schmidt’s, and Dr. Jung’s opinions.

[377] In fact, Dr. Jasey, Dr. Adey, and Dr. Shannon acknowledged that not taking into account termination pre or post 24 weeks’ gestational age means that in the event of a delay caused by a non-urgent second ultrasound, a patient would be denied elective termination in Ontario before 24 weeks. However, they diminished the impact of the loss of that treatment option and asserted that the option of termination is still available elsewhere. Dr. Shannon advanced this perspective most vigorously as earlier set out. According to Dr. Shannon, if a patient wanted termination she would have it and referrals into the United States for termination after 24 weeks’ gestation are “easily obtained”. The “value” of that statement is diminished by the fact that he had made no referrals to the United States for such a procedure and he had one patient who ten years ago made those arrangements herself at 31 weeks’ gestation.

[378] The defendants emphasized as relevant to the standard of practice and causation issues, that while there was a practical difference between termination in Ontario before 24 weeks and in Colorado after 24 weeks, the practical difference is utterly irrelevant and grossly disproportionate to the consequence of the “very real expense and stress of a lifetime of raising a compromised child”. However, that approach and perspective stands in contrast to the evidence of Dr. Barrett and, more significantly, Dr. Schmidt.

[379] As Dr. Barrett explained, if a referral is made to his clinic when a patient is at 22 weeks’ gestation, although the system is busy and the system is full with waiting lists, obstetrics is “a time-sensitive period in our lives in which time matters” and they “always have the ability to move things around and get people in urgently, if they need to be because of the gestational age cut-off”.

[380] Similarly, as Dr. Schmidt emphasized, his tertiary centre sees patients who may have anomalies before the 24-week mark, so that patients will be seen when all options, including termination, are “still there”.

[381] Consistent with that approach, termination is not even raised by the fetal medicine specialists in London if the mother is beyond 24 weeks’ gestation, as I will more fully outline below.

[382] Seventhly, Dr. Arnold’s opinion is consistent with the care and attention Dr. Kuprowski paid to the January 27, 2010 ultrasound repeat and the fact that according to Dr. Kuprowski, the problems identified in the January 27 ultrasound were significant enough to consider termination of pregnancy. He was not surprised with TS and AY’s level of distress when he saw them March 16, 2010, a visit I will describe later, because, having already reviewed the January 27, 2010 ultrasound, he expected that type of reaction.

[383] Eighthly, although the defendants say that Dr. Shannon’s reference to the results of a Google search he conducted with defendants’ counsel and the experience of his one patient obtaining an abortion herself in Colorado was perfectly appropriate testimony in support of the fundamental issue as to the availability of termination and he ought not to be characterized as an advocate for giving that testimony, it concerned me that Dr. Shannon was, in my view, almost flippant about the ability to obtain an abortion at any time. The fact that he did not even acknowledge the obvious practical difficulties in obtaining a late term abortion raised an issue for me respecting his objectivity. As already alluded to, he was far more “defensive” of his points of view than the defendants themselves.

[384] As a result of the foregoing conclusions, I find that during the first week of February 2010 after a review of Dr. Adey’s report on the January 27, 2010 ultrasound which revealed a potential abnormality—a non-mobile flexed hand, Dr. Jasey was required to, at least, order a follow-up scan on a priority basis or, alternatively, make a referral to the Fetal Development Clinic in London. Having reached this conclusion, I turn to the issues of causation and mitigation.

(b) Causation

(i) But for the actions of Dr. Adey and Dr. Jasey, would a reasonable patient in TS’ circumstances have elected to terminate the pregnancy?

[385] I have found that but for the negligent actions of Dr. Adey and Dr. Jasey, TS would have been referred to the Fetal Development Clinic before 24 weeks’ gestation.

[386] The position of the plaintiffs is that if the defendants, or one of them, had met the standard of care, TS would have elected to terminate her pregnancy in Ontario prior to 24 weeks’ gestation.

[387] As previously set out, the determination of causation requires the application of the modified objective test: a consideration of what a reasonable patient in the TS’ circumstances would have done if faced with the same situation.

[388] These circumstances are analogous to the type of circumstances discussed in Clements where the court commented on the fact that the plaintiff could not advance clinical evidence that may have provided direct evidence of causation due to the defendants’ negligence.

[389] The modified objective test requires consideration of the plaintiffs’ circumstances. Of particular note is the fact that the relationship between AY and TS was of relatively short duration; the pregnancy was unplanned; TS lived in Windsor while AY lived in Toronto; AY had just started a new job; TS was in school and had ambitions to pursue further qualifications after completing her current program; TS was the emotional support for her parents, who lived in another community and were experiencing difficult circumstances; TS faced challenges with her program and had failed a key course; TS had significant student debt and no financial support from her family; both TS and AY had limited financial resources; neither TS nor AY had any religious affiliations, they practised no religion; they were not opposed to abortion; TS was “pro-choice”; and, based on the behavior and reaction of AY’s parents following the birth of baby girl S, one can infer that AY’s parents would have supported a decision to terminate the pregnancy.

[390] There is no issue that had TS been referred to the Fetal Development Clinic at or before 24 weeks’ gestation the option of termination would have been raised. Dr. Schmidt testified that if the referral to the Fetal Development Clinic had been received at around 22 weeks’ gestational age there absolutely would have been sufficient time for TS to choose termination as an option. Dr. Schmidt made clear that at 22 weeks’ gestation they would certainly have had a reasonable timeline for termination of pregnancy to be organized if that was an option the couple had elected. Even if a referral was received after 22 weeks’ gestation, but before 24 weeks’ gestation, termination would have been available. He explained that if the couple elects a surgical termination then the only limiting factor is the availability of the operating room. However, as he noted, the hospital’s pregnancy options program is “highly aware of the 24-week gestational age cut-off and will, in most cases make whatever arrangements they need in order to be able to coordinate that termination at the appropriate time”.

[391] I note that the practice at Dr. Barrett’s clinic is identical. Dr. Barrett testified that if Dr. Adey’s ultrasound report dated January 27, 2010 had been received by maternal fetal medicine in advance of 24 weeks, TS “would have been seen quickly because of the cut-off limit”. They would have identified the limb abnormalities as significant and serious and options of further management would have been given to TS. There would have been an “option of further investigation, but because of the seriousness of the limb abnormalities” at less than 24 weeks’ gestation termination would certainly have been offered.

[392] According to the defendants, the important questions are what did happen at 28 weeks’ gestation when the plaintiffs became aware of the problems and what would have happened at 23 weeks’ gestation.

[393] The defendants say with respect to the first question that what happened March 23 at 28 weeks’ gestation when TS was seen at the Fetal Development Clinic gives us valuable insight as to what TS and AY would have done at 23 weeks’ gestation, an insight that is not available in the vast majority of cases. In fact, the defendants say they need not consider the modified objective test and are content to go directly to the subjective test. The defendants say that every single thing the plaintiffs did and failed to do on and after March 16, 2010 up to and through March 23, 2010 leads inexorably to only one possible conclusion: they had no interest in terminating the pregnancy.

[394] In addition, the defendants say that TS’ attitude at 23 weeks’ gestation would not have been different at 28 weeks’ gestation because there is nothing from her that would distinguish her consideration and decision making at 23 weeks from what she actually did at 28 weeks. While there might well be something to do with viability or her appearance, the defendants say that that was not part of the evidence.

[395] Furthermore, the defendants say that if one considers the reasons why she would have terminated at 23 weeks’ gestation—new relationship, living apart, still at school, AY starting a new job, her school loans of $26,000, emotionally supporting her mother and father, failing a grade, AY’s family not being happy about a child with a disability, the fact that she’s young and could have more children, and that they were not prepared to raise a disabled child—were all present in exactly the same way at 28 weeks’ gestation.

[396] In other words, the defendants emphasize that there is nothing from TS to suggest that her decision clearly made at 28 weeks’ gestation to continue her pregnancy would have been any different at 23 weeks’ gestation. They argue that while Dr. Barrett speaks of a changing landscape, TS’ landscape did not change.

[397] The defendants submit that only difference in termination between 23 weeks’ gestation and 28 weeks’ gestation is Ontario versus Colorado, a couple of thousand extra dollars and a few extra days. The defendants say the plaintiffs would have seen no difference if they had truly wanted to terminate.

[398] The defendants note also that TS indicated that she would have considered termination in Colorado if it had been offered. She was clear that a termination outside of the country was not out of the question although she would have wanted to consider the cost, the time away from school, and the nature of the facility. AY would have supported her in that decision provided he could be satisfied of her safety and well-being.

[399] In assessing the defendants’ argument that the TS’ failure to terminate the pregnancy at 28 weeks’ gestation leads to the conclusion that she would not have done so at 23 weeks’ gestation, it is important to analyze the plaintiffs’ circumstances at 28 weeks’ gestation, the information they were given, and their beliefs and understandings arising from that information.

[400] Firstly, it is important to consider the information conveyed by Dr. Jasey. This evidence was contentious. TS and AY were adamant that after making his diagram illustrating what the March ultrasound revealed, Dr. Jasey next said, “it’s too late, you must continue on with the pregnancy”.

[401] Dr. Jasey was equally adamant that he would never say such a thing to parents. He testified that he described the Fetal Development Clinic to TS and AY. He would have attempted to use words that explained to them that the clinic was about fetal development, the doctors were specialists in fetuses, and there may also be orthopaedic surgeons there who would be available to assist them.

[402] I cannot find that Dr. Jasey made the statement TS and Ay attributed to him. Such a statement would be untrue.

[403] However, it is significant that Dr. Jasey acknowledged that his conversation “was all forward looking and it was all directed towards what was going to happen with the pregnancy and the fetus”. He was asked:

if someone left the appointment not having been told about termination as an option, but having been told about continuing on to London to have fetal development consultation with neonatology, consultation with orthopaedic surgeons who may be able to assist in the future, they could leave that appointment with the idea in their mind that termination is out and we must continue with the pregnancy?

[404] Dr. Jasey’s response is important. He answered, “That could happen”. After making the acknowledgment set out above, Dr. Jasey went on to say:

But I can say this, I would have absolutely no fear or doubt that the second they arrived in London they would be fully counselled. When I’ve have an exposure [sic] to the Fetal Development Clinic my knowledge is that that is thoroughly addressed there. They always go over that at the Fetal Development Clinic. The specialists in London in fact generally do not prefer that we give people any kind of direction to confuse them. They often prefer patient coming undifferentiated so that they can explain things to them thoroughly and let them understand.

[405] The following exchange on Dr. Jasey’s cross-examination is also important:

Q. So my question sir, was that at the conclusion of that meeting, [March 16, 2010] it is quite understandable that a couple would leave it with a view in mind that, he didn’t say anything about termination and we’re going forward, we’re going to talk to these people [the Fetal Development Clinic]. So they may come away with the impression that the only thing they can do is to continue with the pregnancy.

A. I find it inconceivable that they didn’t talk about it in London.

Q. I understand that sir, but when they left your door, left the obstetric clinic in Windsor at that moment you would not be surprised if they left with that view in mind?

A. Possible.

[406] Dr. Jasey had to acknowledge that Dr. Schmidt’s consultation note did not include any comment that Dr. Schmidt had addressed the option of termination with TS and AY. Nevertheless, Dr. Jasey found it “inconceivable that they didn’t talk about it in London”. However, as I will outline further, termination was not discussed at the Fetal Development Clinic.

[407] I find that, as Dr. Jasey acknowledged was possible, TS and AY believed, as they asserted, that it was too late to terminate the pregnancy. As TS testified, they left the hospital March 16 believing their only option was to go forward and deal with the baby being born. Importantly, it is clear that Dr. Jasey did not discuss pregnancy options with TS and AY or offer any counselling to them.

[408] TS and AY left the hospital on March 16, 2010 after seeing Dr. Jasey with the mindset that there was no option other than to continue with the pregnancy. TS remembered calling her mother and being hysterical. Eventually her mother suggested they go to see Dr. Kuprowski which they did.

[409] TS recalled being hysterical at Dr. Kuprowski’s and unable to control her emotions. However, she had no other recollection of their visit.

[410] AY testified that he reported to Dr. Kuprowski what Dr. Jasey said. He also testified that TS said something to the effect that she couldn’t believe people abort healthy babies. AY was insistent that even though he believed TS made this comment, neither Dr. Kuprowski nor Mrs. Kuprowski mentioned anything about abortion as a treatment option and if they had, he and TS would have discussed that option and were not opposed to abortion.

[411] Dr. Kuprowski recalled TS and AY being very upset and angry. Dr. Kuprowski testified that TS informed him that she had been told the ultrasound of her baby showed problems with the development of the left arm. (I note again that Dr. Jasey only referred to the left side at the March 16, 2010 appointment.) They discussed that the baby might be handicapped and it might be difficult to raise the child.

[412] Dr. Kuprowski testified that he brought up whether TS wanted to “abort” the baby or “terminate” the pregnancy and TS indicated that she was not interested in that option. He was sure that he brought that issue up and TS’ response was that they did not believe in abortion. Dr. Kuprowski did not recall either TS or AY saying that Dr. Jasey had told them that it was too late to do so.

[413] It was put to Dr. Kuprowski that AY had testified that TS made the statement he attributed to her. Dr. Kuprowski indicated that TS might have said something like that, which would indicate to him that she wasn’t interested in talking about abortion.

[414] Dr. Kuprowski reiterated on cross-examination that he interpreted what TS said as TS not believing in abortion. During the rest of the appointment he reassured and comforted them. Dr. Kuprowski’s records indicate that the appointment was a 30-minute psychotherapy appointment. He noted in his records that he had made a diagnosis of anxiety and his treatment was the reassurance he provided them.

[415] Similarly, Mrs. Kuprowski recalled TS and AY being very upset after having received some news about their baby’s arm. (I note again that the plaintiffs conveyed a concern about only one arm.) She testified that the first thing she and her husband asked was whether TS wanted to keep the baby. She testified that they did not use the word abortion, but it was very well implicated that she was speaking about termination of the pregnancy. However, also according to Mrs. Kuprowski, TS was not interested. Mrs. Kuprowski also testified that they then talked about help for the baby.

[416] Mrs. Kuprowski couldn’t remember the exact words that TS used from which Mrs. Kuprowski believed that TS did not want to terminate the pregnancy. However, she had some recollection that TS had said something to the effect of the statement that AY had attributed to her and it was possible she had said that.

[417] The plaintiffs argue that the Kuprowskis recreated their evidence that they had raised the option of termination with TS and AY and that the option had been rejected. In response, the defendants asserted that such conduct was highly improbable given that Dr. Kuprowski had been TS’ family doctor since birth and their son was a long-standing friend of AY’s.

[418] According to the defendants, there is absolutely no reason whatsoever for the Kuprowskis to recreate their testimony in a way that is harmful to the plaintiffs’ case. As a result, the defendants submit that it is almost impossible to avoid the conclusion that the discussion on March 16 between the plaintiffs and Dr. and Mrs. Kuprowski was one in which the topic of abortion was raised, particularly when TS made the remark AY attributed to her.

[419] I have concluded that termination was not offered as an option by the Kuprowskis and rejected by TS and AY on March 16, 2010.

[420] Firstly, I note that notwithstanding their relationship, TS and AY sued Dr. Kuprowski. His statement of defence clearly referenced his assertion that they had discussed termination of TS’ pregnancy and she had rejected it. As the plaintiffs point out, at that time he had a very strong motivation to recreate what had happened.

[421] Secondly, Dr. Kuprowski and Mrs. Kuprowski both acknowledged there was nothing in Dr. Kuprowski’s consultation note about a discussion respecting termination of pregnancy and if AY had said that such an option was not offered, the notes are consistent with his recollection that that did not happen.

[422] The omission from the note of any discussion respecting termination of the pregnancy is significant. Dr. Kuprowski takes very seriously his responsibility to document things that he’s done and to highlight them. This was clear in relation to how he dealt with immunizations, his system for ensuring tests are done and reported to him, his use of a red pen to confirm he has reviewed a report, and the way he underlines and highlights things of significance.

[423] Thirdly, Dr. and Mrs. Kuprowski acknowledged that the majority of their conversation related to supports for raising a child with a disability.

[424] As a result of these conclusions, I am satisfied that when TS and AY went to the Fetal Development Clinic on March 23, 2010, they had not been counselled on the option of terminating their pregnancy, certainly not by Dr. Jasey and not by Dr. Kuprowski as I found. By March 23, 2010, TS was 28 weeks’ pregnant. Termination was no longer available in Canada and required the process I earlier outlined.

[425] Importantly, termination was also not discussed at the Fetal Development Clinic despite Dr. Jasey’s belief that such counselling would be offered. The gestational age was a key reason such counselling was not offered. Dr. Schmidt testified that given their assessment that it was a very isolated individual anomaly to the limbs, not likely to be based on a genetic or chromosomal anomaly and not likely to have any significant neurological development impacts, they would not routinely “get into an extended discussion about termination options when it was not an option that was readily available in Canada”.

[426] Dr. Barrett’s evidence respecting the practice in his clinic in relation to a patient arriving in his centre at 28 to 29 weeks’ gestation was similar. He was clear that it is improbable that fetal medicine specialists would provide an option of termination to a patient at that gestational age. As he put it:

[P]hysicians will be much less likely to do that at 28 weeks than they will be at 22 weeks because of … what I’ve told you before. So even initially the patient will maybe – will likely not even get offered that at that gestation whereas at 24 weeks she definitely will, because what I’ve tried to explain that when the baby’s self-sustaining and viable, even though it’s possible to do, you’re right it is available. Very often the patient may not be offered that because of the perception of the caregiver that it’s much more difficult or that it’s more difficult to do and offer. And that’s why patients, while they’ll consider it at 20 weeks they won’t even consider it at 28 weeks. [I]f a patient directly happened to say I want to terminate, can I do it, then, you would say yes, there is an option. But you’d not – you probably wouldn’t get offered that unless a patient specifically said, look I want to terminate.

[427] Dr. Schmidt acknowledged on cross-examination that if TS and AY had wanted to terminate the pregnancy, termination was available. Dr. Schmidt indicated the following:

Certainly if it had been discussed or – or raised as a direct question, absolutely we would have discussed that this was not a lethal anomaly and as a result it was not an option for termination of pregnancy in Canada. But if they did desire to pursue a termination of pregnancy, it was absolutely an option that is available in the United States. … So, certainly if during the course of a discussion there is a strong suspicion based on body activity, mannerism or discussion that, yes, this couple seems very interested in termination, but doesn’t want to use the word, we will, in those cases often bring up that as an option.

[428] It is important to consider that it was clear from Dr. Schmidt’s evidence that if the plaintiffs had shown the slightest interest, even with body language, that they had an interest in termination, then they would have been advised that it was available and it could be arranged in Colorado.

[429] It is also clear that the plaintiffs did not convey to Dr. Schmidt any interest in termination. Indeed, AY and TS testified they made no inquiries at the Fetal Development Clinic. By that point in time, Dr. Jasey and Dr. Schmidt had not raised the possibility of terminating the pregnancy and I have found that Dr. Kuprowski and Mrs. Kuprowski also did not do so.

[430] After March 16, 2010 and up until her March 23 appointment with the Fetal Development Clinic, TS was “crushed” and she had no idea what she would learn or find out when she went to London. She did no research on her own. She believed her only option at this late stage of her pregnancy was to continue and she was being sent to a fetal health clinic where the focus would be on her baby’s health.

[431] There was no contact or follow-up by Dr. Jasey or Dr. Kuprowski.

[432] As AY emphasized, they were being referred to the Fetal Development Clinic and understood they had to move forward. Their goal was to figure out what was wrong and he was concerned for TS. Neither he nor TS had any conversations about terminating the pregnancy between March 16 and March 23, 2010. They conducted no searches on the internet. On cross-examination, AY acknowledged that in 2010 he knew how to search the internet, but because they believed they had no option other that continuing with the pregnancy he did not search the internet for abortion clinic.

[433] Dr. Shannon testified about the simplicity of discovering the Boulder, Colorado clinic with a google search. However, on cross-examination he agreed that while you could find information about the Boulder, Colorado clinic, you would also find a great deal of information about the violence that is perpetuated in relation to abortions including the murder of physicians at abortion clinics in the United States in 2009 and 2010. He acknowledged that the first page of a Google search for the Boulder, Colorado clinic reveals that when one enters that search term for the period prior to December 31, 2010, there is reference to Dr. Hern, the physician at the Boulder Abortion Clinic, commenting on the death of his friend and colleague, a physician who was the victim of violence because of the performance of that procedure. There are also references to “bullet proof glass”, “decades of threats”, and “no window uncovered” at Dr. Hern’s clinic.

[434] When asked if that type of information would be relevant information for someone considering whether or not to go to such a clinic, Dr. Shannon queried why it would be relevant. When he was asked whether his answer was that it would not be relevant he responded that “if somebody wants to have the procedure done then they will search for the place to have it done. Dr. Hern is not the only person in the United States providing this service”. It appears that Dr. Shannon had no knowledge that Boulder, Colorado was the only referral source for London according to the evidence presented at this trial.

[435] The defendants criticize the plaintiffs’ failure to investigate late term abortion themselves either by an internet search or questioning of their medical advisors. They query why the plaintiffs would have put absolute faith in their interpretation of what Dr. Jasey told them on March 16 when by the time they leave that appointment they do not like, trust, or want Dr. Jasey. The defendants submit that in order to establish the plaintiffs’ justification of their failure to investigate termination, I have to accept that Dr. Jasey made the statement “it’s too late, you must continue on with the pregnancy”, which the defendants say is improbable in the extreme, and that the plaintiffs placed reliance upon that highly improbable statement, which the defendants also say is improbable in the extreme.

[436] While I have found Dr. Jasey did not make the statement attributed to him by TS and AY, I have found that after the March 16 appointment with Dr. Jasey the plaintiffs believed they had no option other than to move forward with the pregnancy and that belief was not changed by any conversation with the Kuprowskis or at the Fetal Development Clinic. As TS testified, she “truly believed” that termination was not an option. She had no understanding of the rules and regulations relating to termination of pregnancies in Ontario. As she explained, “here I was sitting in a room [Fetal Development Clinic] talking about fetal health and getting advice about my baby being born” from a specialist dealing with fetus.

[437] I accept the explanation of TS and AY for their lack of personal investigation or inquiry. They had one week to digest the shocking and upsetting information revealed to them March 16 before they were to see a specialist in fetal health. TS was unable to work due to her distress. They felt very positively about Dr. Schmidt and his colleagues at the Fetal Development Clinic and the fact none of the specialists there raised an option of termination confirmed their belief and understanding that such an option was not available. The conduct of TS and AY does not indicate a disinterest in terminating their pregnancy.

[438] I also take into account that TS and AY declined an amniocentesis at the Fetal Development Clinic. TS recalled Dr. Schmidt raising the potential of having an amniocentesis but understood they had to wait and see before doing anything further until the baby was born and there was no benefit to that test.

[439] Dr. Schmidt’s evidence confirmed TS’ understanding. He testified that given that TS had had a maternal serum screen which showed a low risk of chromosomal problems and given the features that they saw on the ultrasound, a chromosomal anomaly was not strongly suspect. An amniocentesis would have been a definitive test that could be undertaken to determine whether there was a chromosomal abnormality but Dr. Schmidt counselled them that such a test would likely not add significant information to her care and there was a strong suspicion that this likely was not a chromosomal problem. As a result, the amniocentesis was not conducted based on the recommendation of the maternal fetal medicine clinic.

[440] Considering the clear recommendation not to proceed with amniocentesis, the fact that the plaintiffs declined this test is not significant. What is significant is that Dr. Schmidt commented that after their exchange in relation to amniocentesis the bulk of the conversation was about supports.

[441] In addition, in assessing the significance of the non-termination at 28 weeks’ gestation, the fact that gestational age impacts on a woman’s decision to terminate her pregnancy must be considered.

[442] While TS did not say that gestational age was why she did not pursue a late stage termination, the evidence was clear that TS was obviously pregnant by the end of March 2010 as a photo of her illustrated. Dr. Barrett confirmed how “visibly” pregnant a mother would be at that stage. TS was unable to work after her March 16, 2010 appointment and did not want to face people and discuss her pregnancy. As she and AY testified, she no longer had the same sense of happiness with respect to her pregnancy. The evidence of Dr. Schmidt, Dr. Jung, and Dr. Barrett was that the difficult decision to terminate a pregnancy is even more difficult at a late stage in the pregnancy.

[443] When asked how gestational age affected the decision-making process of the patient in his experience, Dr. Schmidt replied as follows:

So if we look at making an incredibly difficult decision as to whether or not to continue on with a pregnancy, my personal experience has been that when we have passed the stage of viability it becomes much more difficult for couples to entertain that option because they’ve had more time being pregnant anticipating a desired wanted pregnancy, that the baby will be able to survive outside the uterus now, that we should be giving that baby the opportunity to live and hopefully erring on the side often of optimism that this baby will in fact do better than that worst case outcome has been discussed as.

[444] Similarly, Dr. Jung testified that gestational age is a major consideration in parents’ ultimate decision about whether or not to terminate a fetus with anomalies. As he put it:

The farther one [sic] long is in the pregnancy, the more one is showing so, everybody knows. The bonding is there. The movements are very obvious at that later stage of pregnancy as well and I think that problem’s the reason why we haven’t had any takers with an alternative late pregnancy termination route is just because of that. That couples will feel that it is too tough of a decision to make for their own personal reasons.

[445] Dr. Barrett also testified that gestational age impacts a woman’s decision about terminating a pregnancy where there may be an abnormality and he indicated it affects caregivers also. As he put it:

I think really the gestational age affects everybody involved in terms of those decisions. For a woman, in my experience once a pregnancy is advanced and she’s feeling the movements, she’s aware of her baby, she’d identified much more with her baby as a person and it’s just so much more difficult to make the decision at that stage to terminate the pregnancy. I’ve seen that in my practice all the time. And I think we also see it’s difficult even for the caregivers. I mean at 29 weeks, Dr. Schmidt even knowing all the abnormalities didn’t offer termination because I think that reflects what I was saying, after 24 weeks … the landscape changes for everybody involved. It’s not as simple as saying the procedure is available, it’s not available. It’s a different concept because now the baby is able to be alive … by itself. And so it changes for everybody once those limits of viability are reached.

[446] This changing landscape as gestational age increases was discussed in Morgentaler (see e.g. At 182 where the court commented that a woman’s sense of loss is greater if a pregnancy ends later in the gestation of the fetus than if the pregnancy ends earlier and at 101 where the court stated that however low the post-operative complication rate may appear, it increases as gestational age advances).

[447] I must also take into account that the plaintiffs testified that they informed Dr. Schmidt of what they say Dr. Jasey told them. Dr. Schmidt did not recall any specific comments made by TS and AY about Dr. Jasey telling them that it was too late to terminate the pregnancy. He indicated that certainly if that had been directly mentioned to him he would have taken that as an indication that termination was something that they obviously considered. He would have corrected them and advised that while it was not available in Canada it remained an option that was “still theoretically available through other options”. Dr. Barrett’s evidence was to the same effect.

[448] Dr. Schmidt acknowledged in re-examination that the plaintiffs would have spoken to his resident first and they could have given that information to the resident and not to Dr. Schmidt. However, the defendants point out that Dr. Jung, who testified after Dr. Schmidt, was clear that if a resident was told something fundamentally wrong, such as what was attributed to Dr. Jasey, the resident would pass that information on to the staff person.

[449] It is not possible to resolve the factual issues of what the plaintiffs reported at the Fetal Development Clinic, who they made such a report to, and whether it was passed on to Dr. Schmidt.

[450] Considering all of the foregoing, I find that the fact that TS did not terminate the pregnancy at 28 weeks’ gestation does not support a conclusion that she would not have done so at 23 weeks’ gestation as the defendants advocate.

[451] While, as earlier noted, the defendants indicate they need not consider the modified objective test and are content to go directly to the subjective test, I will apply the modified objective test in considering the issue of causation. Therefore, I turn next to consider the question whether a reasonable patient in TS’ circumstances would have terminated the pregnancy but for the negligence of the defendants. This requires a consideration of TS’ circumstances if Dr. Jasey had made a referral to the Fetal Development Clinic before 24 weeks’ gestation.

[452] I have found that TS cannot be considered to be opposed to termination, disinterested in termination at any point in time or committed to continuing her pregnancy under any circumstance because she did not terminate her pregnancy at 28 weeks’ gestation.

[453] As noted previously, TS was pro-choice. In the fall of 2009, TS knew someone who had an abortion—her cousin who lived in Windsor. TS indicated she had been sexually active in high school and had obtained a morning-after pill twice from the teen health centre.

[454] Ioana Moldovan, a friend of TS’ who she met nine or ten years ago and who attended St. Clair College with her, was clear that both she and TS were pro-choice. TS told her about her March 16 visit to Dr. Jasey and that she had been told that the baby was developing abnormally. Ms. Moldovan testified that TS told her that she would have had an abortion, but it was too late in her pregnancy to do so. Ms. Moldovan had had an abortion herself, and she would have encouraged and supported TS if she had chosen to have an abortion.

[455] Ms. Goland, who I earlier mentioned, had been a friend of TS’ for 15 years (as she put it, her best friend since the day they met). According to Ms. Goland, TS clearly indicated that she was pro-choice and that a woman is in charge of what happens to her own body, when, and how.

[456] Ms. Goland testified that TS phoned her after her March 16, 2010 visit with Dr. Jasey. Ms. Goland remembered the call very vividly and that TS was a “mess”. TS told Ms. Goland that something was wrong, that Dr. Jasey could not care for her any longer, that she was being referred to London or Toronto for prenatal care and that she was frustrated because no one knew anything.

[457] Ms. Goland testified that after the problem with her baby was revealed, TS had told her that she wished she had known when an abortion would have been an option for her because she had been told that it was no longer an option and it was too late. Ms. Goland said that TS made it “150 percent” clear that she was not ready to raise a child with disabilities. Ms. Goland would have supported TS “all the way” if she had wanted to have an abortion.

[458] TS indicated that if Dr. Schmidt had spoken to her about a late term abortion in Boulder, Colorado, she would have definitely had to consider where she would get the money to go, how long that procedure would take, and how much time she would be absent from school. She would want to have known information about the clinic and whether it would be safe to go there “as pregnant as she was” and whether the procedure would be safe for her. At that point in time she had no personal resources (TS’ tax returns revealed a very modest level of income in 2009 and 2010). She had student loans of $26,000. Her parents could not lend her money and had very challenging personal circumstances themselves.

[459] I earlier set out AY’s support of TS’s right to choose to terminate the pregnancy and he would have supported her decision to access a late term abortion. AY was clear that if they had learned that the only option was to go to the United States to terminate the pregnancy and if he could be reassured of TS’ safety he would have counselled her to terminate the pregnancy.

[460] The defendants are correct that the plaintiffs’ circumstances at 23 weeks’ and 28 weeks’ gestation were the same in terms of their modest financial circumstances; the brevity of their relationship, which had become long distance; their commitments to school and a new job; the pregnancy being unplanned (but welcomed once it was known); and the limited family support available.

[461] However, the scheduling of their appointment at the Fetal Development Clinic at 23 weeks’ gestation and the information they would have received there would have been very different. Of critical importance is the fact that there is no question, as Dr. Schmidt made clear, that TS’ appointment would have been scheduled urgently and the option of termination would have been raised at the clinic whether or not the plaintiffs raised it or asked questions relating to termination. This is consistent with Dr. Barrett’s evidence.

[462] TS and AY testified that they would have exercised the option to terminate the pregnancy before 24 weeks’ gestation if they had been told certain information.

[463] TS was asked what her decision would have been if after January 27, 2010 but before 24 weeks’ gestation

(i) she was told she could have an elective abortion in Ontario;

(ii) she met with a genetic counsellor or geneticist who reviewed the January 27, 2010 ultrasound with her;

(iii) she was advised that what the ultrasound showed was that both sides of the baby’s upper arms were shortened and that condition was associated with something called a radial ray abnormality, genetic disorders, sporadic multiple congenital anomalies that could not be seen on ultrasound yet, other structural defects, neurological abnormalities, potentially chromosome abnormalities;

(iv) what she may face with the child was unknown and widely variable;

(v) that the malformation was significant, two sided, there were no thumbs, which would likely mean limited function, likely a severe handicap;

(vi) that the child would have lifelong special needs for most, if not all, her activities of daily living;

(vii) there was a small possibility of surgical management to improve function and/or construction of the limbs; and

(viii) further investigation could be done to try to determine the cause.

[464] TS testified that if she had been given this information and advised that her options were to continue with the pregnancy or obtain an elective abortion before 24 weeks’ gestation she would have terminated the pregnancy.

[465] As TS testified, considering where their relationship was; that AY was starting his career; that she had not finished her nursing program; and she was 26 years of age, she would have terminated the pregnancy and “tried again later” when their careers were set and they could do things better. She was confident that she would have terminated the pregnancy.

[466] AY was asked the same question and he testified that his decision would have been that the pregnancy should be terminated.

[467] It must be taken into account that termination particularly at close to 24 weeks’ gestation would involve either a medically induced induction of labour with the expectation that the baby would be born through the birth canal as per a normal term delivery or a surgical termination involving a procedure called a dilation and evacuation.

[468] With induction, there is at least a one-third or perhaps better chance that initially the fetus may be born alive. Dr. Schmidt agreed that he would absolutely indicate that to parents and it is definitely part of their discussion. He acknowledged that there are some couples that are very concerned about the possibility that their baby may be born alive and potentially have a period of suffering.

[469] Dr. Schmidt acknowledged that the alternative method of dilation and evacuation (which would require a lot of dilation at 23 weeks) would invoke a rather disturbing picture in the minds of parents.

[470] Dr. Schmidt explained that about one-half of patients chose surgical termination and the other half induction of labour. The choice depends on how much information the couples wish to have about what is going on with the baby. He indicated that, in his experience, if the couple simply want to not be pregnant anymore then surgical termination is often the choice they make. However, if there was some level of uncertainty as to what the anomaly is, or if they wish further testing to potentially be available as to what the underlying problem is, then an induction of labour is often what is chosen because it provides the opportunity to assess the baby after birth intact to make a further determination as to what might be going on.

[471] As the defendants submit, termination at 23 weeks’ gestation is not a simple matter or a pleasant concept. They note the significant percentage of cases where a mother is induced into delivery and the fetus will be born alive and that in the alternative a dilatation and extraction is performed, which the defendants characterize as a “grizzly and unpleasant concept”.

[472] However, the fact that the option to terminate would involve inducing labour and delivery of the baby or dilation and removal of the fetus in parts was pointed out to TS. She testified that if those details were described to her that would not have affected her decision. As she put it, the process would lead to the “same outcome or result”—she would be leaving the hospital without her baby. I accept her evidence that the nature of the procedure would not affect her decision.

[473] I must also consider that the plaintiffs declined amniocentesis during their second pregnancy. I am satisfied that this conduct is not significant to the question of whether they would have terminated their first pregnancy. The concern in their second pregnancy related to the most serious problems their first baby lives with—the limb abnormalities. It was not unreasonable to decline amniocentesis when they saw the results of the second trimester ultrasound confirming that their second baby had normal limbs, hands, and feet.

[474] In addition, I must also consider what information the plaintiffs would have been given if TS had been referred to the Fetal Development Clinic before 24 weeks’ gestation bearing in mind the defendants’ argument that the scenario in the question put to the plaintiffs was not made out in the evidence.

[475] Dr. Jung’s evidence is significant to the question of whether TS and AY would have elected to terminate the pregnancy if they had been referred to the Fetal Development Clinic prior to 24 weeks’ gestation.

[476] Dr. Jung testified that after parents have been referred to the Fetal Development Clinic, he or another geneticist would be involved with the parents. Dr. Jung indicated that once they are referred to a case the patient is seen within one to three working days or it might even be the same day. If parents are seen at St. Joseph’s Hospital and an ultrasound finding is made that day, his department would “make time for them that day”.

[477] Dr. Jung was asked what sort of information a geneticist would have given this family with no history of genetic abnormalities had they been seen prior to 24 weeks’ gestational age and he had for his review the January 27, 2010 ultrasound, a second ultrasound identifying a bilateral limb anomaly and the results of the maternal serum screen.

[478] Dr. Jung indicated he would first determine TS’ and AY’s level of understanding and what information they had already been given and he would try to understand their level of concern. As he explained, “it is immensely stressful to be told that a developing fetus has an anomaly that could be quite severe”. According to Dr. Jung, it is “many women’s nightmare”. He went on to say that he sometimes questions how much of what he says is understood or listened to appropriately at that first meeting. However, he takes his time and could spend half a day, perhaps even most of the day in and out, not consistently with them, but he or another geneticist along with their team would share information.

[479] Dr. Jung indicated that he first would discuss what prenatal testing would be available. The standard at that time was a chromosomal analysis as a result of an amniocentesis and there was “an off chance” that a rare entity could be found on such an analysis. However, he did not think that would be likely and he would have shared that view with the parents, in other words, that he did not “think it would pay off in terms of a positive diagnosis”. He would have also advised that there was a potential further option of a comparative genomic hybridization study, but again he thought such a study would not be “very likely fruitful” to provide information about an underlying diagnosis.

[480] He indicated that quite often the question is why and his answer is that he doesn’t know, but as he explained he would inform patients that there is

a list of possibilities from bleeding issues, placental issues, amniotic bands, thalidomide very rarely anymore … but then I’d go through systematically maybe all of the genetic issues too. Like holt-oram which I would have put maybe closer to the top of the list, like thrombocytopenia absent radius. Again, even those terms are not that easily understood by a lot of people too. Um, but I’d talk to them at a very practical level that what we do know is the extent of the bilateral limb involvement, but in terms of trying to decipher an underlying proven gene reason for it would be a monumental task with acquiring a sample, sending it to the United States, maybe guessing that it might be the TBX5 gene, but who knows. It – so realistically I would tell them that the chance of us confirming any kind of a molecular genetic diagnosis in any timely fashion would be extremely unlikely. At the end of the day we’d be sitting there having to contemplate the severity of the limb malformation and what it means in their world as to the significance of that finding. And I can’t make that judgment ‘cause as I said earlier, we do it in non-judgmental fashion. We try and present the objective information, but it’s not for me to decide what a couple’s value system is, in terms of deciding whether or not to continue with the pregnancy or not at that …particular stage.

[481] Dr. Jung would describe for them associated potential problems with the limb deformities, which

could include a number of structural problems. For example in holt-oram we talk about the heart defects that could be structural in nature. They could be functional issues as well. They could be malformations of kidney. They could be involving the gastrointestinal system. They could involve the brain. It could involve facial clefting. It could involve things that are hard to gauge such as cognitive strengths and intellectual disability or not. But they would have to be mentioned as possibilities. It would absolutely depend on what the underlying reasons were for everything. We didn’t mention the things like hearing problems that can be there too.

[482] In terms of long-term prognosis with respect to the functionality of the limbs he would advise that

it would be a lifelong struggle dealing with any kind of a limb amputational, limb reduction, whatever term you want to use for it. It can be accommodated to a degree, but again, as to whether or not a limb is a person’s vocational choice, recreational choices, how it ah, influences them socially, those are all factors that are hard to um, put an objective value on.

[483] Dr. Blumenthal, a geneticist retained by the defendants, but who did not testify, apparently had outlined in her report what a patient would be told whether before or after 24 weeks’ gestation, and Dr. Jung reviewed her report. As Dr. Jung explained, Dr. Blumenthal recounted the number of possible explanations for the limb abnormality and “very distinctly said that the – the findings of the terminal limb reduction defects with no opposable thumbs … would result in a lifelong severe disability”, a comment Dr. Jung agreed with. Dr. Blumenthal’s report was the basis for the question put to TS and AY outlined above.

[484] On cross-examination, Dr. Jung acknowledged that a genetics counsellor or geneticist would have had to be engaged in TS’ appointment or been given a referral by the Fetal Development Clinic to provide the advice described above and it was suggested to him that a geneticist was not consulted when TS was seen in the Fetal Development Clinic on March 23, 2010. However, Dr. Schmidt’s evidence was as follows:

If there is a strong suspicion or concern for a chromosomal or genetic abnormality based on the initial intake assessment, the genetic counsellor may be part of that initial intake. But more traditionally it’s just the resident and the maternal fetal medicine specialist seeing the patient in the morning and then the multi-disciplinary team including the neonatologist and the geneticist or the genetic counsellor would be involved in the afternoon discussion.

In addition, when asked how a geneticist would become involved in a case such as this, Dr. Schmidt testified:

So when they’re referred to the fetal development clinic a genetic counsellor is part of our assessment team and the genetic counsellors that were in 2010, formerly situated at Victoria Hospital, one of those counsellors would attend our clinic at St. Joe`s to be present for each patient assessment if necessary and certainly present for the afternoon discussions if required.

[485] There is no evidence that this system was not followed in relation to TS’ March 23, 2010 appointment at the Fetal Development Clinic, and Dr. Schmidt referred throughout his testimony to information given by “our clinic” and words suggesting the involvement of a team.

[486] I am satisfied that the plaintiffs would have received information from a geneticist or genetics counsellor of the nature Dr. Jung described if they had been referred to the Fetal Development Clinic at 23 weeks’ gestation. The essence of Dr. Jung’s testimony was that parents seen by a geneticist or genetics counsellor would have been advised that the findings of the terminal limb reduction defects with no thumbs would result in a lifelong severe disability and while it can be accommodated to a degree, it would impact a person’s vocational and recreational choices and it would influence them socially.

[487] Dr. Schmidt went on to explain that if they identify a structural anomaly or a concerning finding, they review that in detail with the couple and discuss what it means for the fetus going forward and the potential implication it may have with the baby after birth; whether or not it is something that will dramatically or significantly involve the risk of long-term complications, be they neurological development problems or purely isolated physical problems, or a combination of the two; and they discuss their thoughts on the underlying ideology and whether there is any available testing or investigation to make a confirmed diagnosis or provide further information.

[488] As previously set out, Dr. Schmidt advised the plaintiffs on March 23, 2010 that a major chromosomal anomaly was not expected; there was nothing in the picture seen at that point that specifically concerned them about a genetic abnormality that they could test for while she was pregnant although “it was certainly a possibility it may exist”; the primary focus was the definite anomalies seen in both upper limbs; the anomalies were “likely isolated to the limbs”; “their likely feeling” at that point was that “this is a sporadic spontaneous abnormality and therefore a low risk of recurrence”; and an assessment of functioning and a prognosis of long-term outcome and expectations would have to be done after delivery.

[489] Dr. Schmidt testified that the January 27, 2010 ultrasound “did not fit with classical presentation of genetic disorders”. In considering what the plaintiffs would have been advised on a referral to the Fetal Development Clinic shortly after January 27, 2010 the following evidence, from Dr. Schmidt on his cross-examination, is important:

Q. And one of the things I’m interested in this regard, is that we know that on January 27^th, a week or whatever before our hypothetical discussion, an ultrasound seemed to show the right arm. I’m not talking about the left for this discussion, the right arm normal?

A. Correct.

Q. And you understand that. Whereas by the time we get six weeks on to March 10, it no longer is appearing normal because they do another ultrasound and …you’ve made it clear, it’s not nearly as abnormal or the right word is, as the left one, but it’s by then starting to show signs, which were confirmed in your March 23 ultrasound?

A. Correct.

Q. The issue then becomes, because we’re engaging in a hypothetical, moving everything back, we have to move it back among other things to an ultrasound carried out much closer to the January 27 one then to the March 10 or March 23 ones.

A. Yup.

Q. I assume that if we have the ultrasound – assume the ultrasound is within a week or 10 days or something of March 10, it’s probably going to show something wrong with the right hand by that point, extrapolating?

A. I would hope so. Again, part of the question, it was originally asked was why do we repeat an ultrasound when they come to the fetal development clinic is because many times community centres don’t have the same level of expertise or experience in dealing with complicated pregnancies. And the one thing that we learn in high risk obstetrics is when you see the first anomaly it’s important to make sure you don’t miss the second anomaly by getting focused on it. So whether or not it was an issue of poor visualization that there was an anomaly that was already present that they’ve called that arm normal, but it in fact was something wrong or whether it was more normal to the point that it wasn’t obviously wrong at 18 weeks – 20 weeks and over the course of the next eight weeks it became more apparent that it was an issue, obviously I cannot go back and make a determination as to which of those may have been the case.

[490] It was then pointed out to Dr. Schmidt that Dr. Romano received the images taken by Ms. Dzus January 27, 2010 and he agreed the right arm appeared normal. Dr. Schmidt was then asked:

Q. [I]s it not therefore entirely possible or even probable that if we’d taken another ultrasound merely a week or 10 days later, because that’s the period we’re talking about in our hypothetical, the right arm might not yet be showing signs of abnormality which became apparent six weeks later, is that fair?

A. It’s obviously a possibility, but I’m afraid I could not comment on whether the likelihood of that would be.

Q. Sure, but am I right and again, you’ll have to help me, if one sees a single arm and we’re now limiting ourselves to forearms, in the context of a fetus and all that, that is less worrisome as to the overall condition than if we see two arms abnormal, is that fair?

A. That would be a fair statement, absolutely. Anything, that is multiple or bilateral, is generally going to be considered more concerning, than something isolated or single.

Q. So that if we’d been having this hypothetical discussion with these parents back at 22 weeks or whatever, and we thought, as best we could tell there was only arm of the problem and the right seemed okay, am I right that you would have been probably a little more upbeat, less pessimistic, however you want to say it, than knowing as you did on March 23^rd, that there were two arms affected?

A. I would certainly say that if we had had an ultrasound in our centre that confirmed the other arm did in fact look perfectly normal that we likely would have been at least as, if not more reassuring as we were at the subsequent ultrasound, compared to seeing two limbs abnormal.

Q. Right.

A. Assuming we had in fact confirmed that limb to be normal.

[491] Dr. Schmidt may not have been the maternal fetal medicine specialist who saw TS had she been referred earlier because the clinic operates with 6 specialists and each is responsible for a day’s clinic. However, when asked what his conversation with the plaintiffs would have been, had he seen them in early February. Dr. Schmidt responded that:

A. Assuming that a subsequent ultrasound had shown similar to what we saw in Windsor with the referring ultrasound or if we had seen an ultrasound similar to what we saw in the actual consultation at 28 weeks, regardless of whether we did see or didn’t see the right arm being abnormal, my assessment would likely have been very similar that I had a low suspicion that this was chromosomal or genetic abnormality, absolutely.

Q. And the rest of the things about generally a reassuring tone and so on for the parents would have been the same in early February as in March 23^rd?

A. My expectation would be that that would be my same tenor, yes.

Q. And if by chance at that time you had no reason to believe that there was an abnormality in the right arm it might have been even slightly more optimistic?

A. It might have been slightly more optimistic, absolutely. It’s now an isolated unilateral problem.

Q. But certainly no more pessimistic?

A. No.

Q. Fair?

A. Fair enough, absolutely.

[492] On re-examination Dr. Schmidt was asked how likely it was that in an earlier ultrasound at the Fetal Development Clinic would have revealed a normal right arm. He responded as follows:

Obviously it’s very difficult to say for certain, but reasonably knowing at the time of delivery what the actual structure of that right arm was, I would find it highly unlikely that it would have been visualized to be perfectly normal on a subsequent follow-up ultrasound at our centre. And again whether or not, since I did not have access to the images from the ultrasound, Dr. Romano, it sounds like has obviously looked at it, whether he was completely happy that it was well visualized and normal versus there was no apparent abnormality, are two technically very different things. So I’m afraid until we actually have the ultrasound there and determined whether we saw a normal arm, normal forearm, normal hand, with five fingers, that would be very reassuring to me that probably it was technical issue on the previous ultrasound versus we still didn’t get a great look at that hand. We don’t see anything clearly to the same extent as the left side, but we haven’t seen a normal humerus, normal radius, normal ulna, five normal fingers. I’m not going to be reassuring that I think that hand is normal. I’m going to be reassuring that it’s clearly not as abnormal but it may still have some issues.

[493] The essence of Dr. Schmidt’s evidence is that if he had seen the plaintiffs earlier than March 23 and taken an ultrasound earlier that March 23, his discussions would have been at least as reassuring then as they were on March 23rd and perhaps more depending upon what was known about the right arm; his assessment “might have been slightly more optimistic” if he had reason to believe that there was an isolated unilateral problem; and his assessment would certainly be no more pessimistic.

[494] However, as he explained on re-examination he would find it highly unlikely that the right arm would have been visualized to be perfectly normal on a subsequent follow-up ultrasound at his centre before March 23 and as a result he could only be reassuring that the right arm was not as clearly abnormal as the left.

[495] During argument counsel for the defendants indicated that they are entirely content that I assume that at 23 weeks’ gestation the plaintiffs would have been told by Dr. Schmidt, or his equivalent, exactly the same information as Dr. Schmidt told them at 28 weeks’ gestation. The defendants asserted in argument that there is no evidence to suggest that the information provided to the plaintiffs at 23 weeks about the future and prognosis of their fetus would have been one bit different from the information provided at 28 weeks. I accept that proposition advanced by the defendants. (While the defendants no doubt hoped that Dr. Schmidt would have been more reassuring at 23 weeks’ gestation, he was clear that the left sided problems would have been reported the same; he would not have been able to report that there was an isolated unilateral problem; and he would only have been able to say that the right arm was not as clearly abnormal as the left.)

[496] The defendants acknowledge the evidence from TS that she would have terminated the pregnancy, however, the defendants ask that I focus on the question put to TS that elicited that response.

[497] The defendants submit that the information put to TS and AY in the question about whether they would have terminated the pregnancy at 23 weeks’ gestation was not the information that would have been provided to them at 23 weeks’ gestation. The defendants say that the plaintiffs would have been given the same reassuring, comforting message they received at 28 weeks. As a result, the defendants say there is no probative value to TS’ answer that she would have terminated the pregnancy at 23 weeks.

[498] In considering the question put to TS, I am satisfied that that before 24 weeks’ gestation:

(i) she would definitely have been told she could have elective abortion in Ontario;

(ii) she would have met with Dr. Jung, a genetic counsellor or geneticist who reviewed the January 27, 2010 ultrasound with her;

(iii) the genetics practitioner would have advised of a number of potential problems as earlier outlined;

(iv) however, Dr. Schmidt would have advised that except for limb abnormalities the baby otherwise appeared to be perfectly normal, which was reassuring for a low risk of chromosomal problems, although that was not a complete impossibility; that the results of the ultrasound did not fit with classical presentation of genetic disorders; that likely the problem resulted from a sporadic, spontaneous abnormality; and that there would be a very significant and detailed process for assessing the baby after birth to be certain there was no evidence of a syndromic problem as well;

(v) Dr. Schmidt would have advised that in all probability what was visible on the ultrasound was likely the extent of the problem;

(vi) Dr. Schmidt would have advised that the left limb was definitely very difficult to visualize; there was a concern that there was either an abnormal arm with a hand which looked like a flipper on the end or the hand actually originated directly from the shoulder region; that the right arm had noted abnormalities which were more limited to the extremity; that the right hand appeared to be abnormally positioned and they could not clearly visualize the fingers; and that the right extremity was clearly more separate from the body and mobile than the left side, which appeared to be more fixed and restrictive against the body;

(vii) Dr. Schmidt would have advised that it was unknown what level of mobility and functionality there may be;

(viii) the malformation was significant and two sided;

(ix) she would have been advised that it would be a lifelong struggle dealing with any kind of limb reduction; and

(x) this disability would impact the child’s vocational and recreational choices and would influence them socially.

[499] I do not find the question put to TS fundamentally different from what I have found she would have been advised before 24 weeks’ gestation, as set out above. I am satisfied that her response does have probative value.

[500] It is significant to compare the circumstances at 23 weeks’ gestation to the circumstances at 28 weeks’ gestation. Importantly, as previously emphasized, at 24 weeks’ gestation, as distinct from 28 weeks’ gestation, TS would be offered an elective abortion as a treatment option. Her appointment at the Fetal Development Clinic would have been scheduled urgently, which in my view in and of itself suggests that some treatment or other action will be offered. Importantly, termination of a pregnancy at 23 weeks’ gestation is an accessible treatment. Dr. Schmidt would have “reassured” TS to a certain extent as described above – that in all probability what was visible on the ultrasound was likely the extent of the problem. However, what the ultrasound revealed was “a lifelong severe disability” and it was unknown what mobility and function the baby would have in her arms and hands. Further, at 23 weeks’ gestation, there are no clinical notes respecting the baby’s movement (which Dr. Schmidt noted 5 weeks later); TS would not have been as visibly pregnant; she could pursue an elective procedure at no cost to her other than the travel to London; her mother and AY could afford the extent of the required travel and support her; and the elective procedure would not require significant time away from school.

[501] Considering all of the foregoing, I am satisfied that a reasonable person in TS’ circumstances would have elected to terminate the pregnancy but for the actions of Dr. Adey and Dr. Jasey.

(c) Mitigation

(i) Did TS have a duty to mitigate by terminating the pregnancy at a later stage when she became aware of the condition of her baby?

[502] While the fundamental position of the defendants is that TS and AY were never going to terminate the pregnancy, not at 28 weeks and not at 23 weeks, the defendants also submit that if I find as a fact that the plaintiffs at any time had an interest in termination then they did not do anything logical or reasonable about that. The defendants point out that the plaintiffs failed to ask any questions in London or elsewhere relating to the option of termination, in which case they would have been told termination was available and it could be arranged. The defendants’ position is that if the plaintiffs had had the slightest interest in termination in March 2010, their pregnancy would not have proceeded.

[503] However, I conclude that the conduct of the plaintiffs was reasonable.

[504] It is clear that the option of a late term abortion was not raised at the Fetal Development Clinic and by the time of their appointment TS and AY believed termination was not an available option. It is not surprising they gave no hint of any kind to Dr. Schmidt that they might be interested in termination or asked questions about termination. It must be kept in mind that it was only at the Fetal Development Clinic that they learned what had been reported on the January 27, 2010 ultrasound. It was also only then that they learned there was a problem on the right side as well as the left side. This revelation added to their upset and also made them angry. I cannot find that the plaintiffs should have raised a pregnancy option that was not raised by any of the medical doctors that they saw including the specialists at the Fetal Development Clinic. Nor is it reasonable to find they should have done an internet search to access this option on their own, an option which I note was described as “theoretically accessible” by Dr. Jung and “theoretically available” by Dr. Schmidt.

[505] Furthermore, I agree with the plaintiffs’ argument that they should not be held to a standard that required them to seek a late term abortion in the United States to mitigate their damages. As earlier set out, based on the experience of Dr. Jung, Dr. Schmidt, and Dr. Arnold, very few families chose that option. As Dr. Barrett testified, it is a “different concept”. I also agree with the observation of plaintiffs’ counsel that it is a double standard to require a mother carrying a fetus to treat termination prior to 24 weeks’ gestation as equivalent to a late term abortion when no physician in this country will terminate a pregnancy of a viable fetus with a non-lethal anomaly.

[506] Considering all of the foregoing, I find that there is no basis to accept the defendants’ argument in mitigation that the pregnancy should have been terminated at 28 weeks’ gestation.

CONCLUSION

[507] For the foregoing reasons, I find the defendants liable to the plaintiffs.

[508] As observed at the conclusion of the trial, this action raised important issues for all parties. The parties were very well represented by very able counsel who efficiently presented the evidence and made helpful legal argument focused on the factual and legal issues in dispute. I am grateful to counsel for exemplifying the high standards of the legal profession throughout the trial.

“Justice L. C. Leitch”

Justice Lynne C. Leitch

Released: August 16, 2017

CITATION: TS v. Adey, 2017 ONSC 397

COURT FILE NO.: 6484/12

DATE: August 16, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TS and AY

Plaintiffs

– and –

Christopher Karl Adey and Bradley Jasey

Defendants

REASONS FOR JUDGMENT

Leitch J.

Released: August 16, 2017