CITATION: Ghiassi v. Singh, 2017 ONSC 6541

COURT FILE NO.: 56435

DATE: 20171031

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Taha Ghiassi, Pouya Ghiassi, Pedram Ghiassi, by their Litigation Guardian Faredeh Ghiassi, Faredeh Ghiassi personally, and Taher Ghiassi

Plaintiffs

– and –

Ram Nivas Singh, Aleksander Kornecki, Doreen Miyako Matsui, Gurinder Singh Sangha, Sandra Oswald, London Health Sciences Centre, Lily Sui Liang, Fatima Kakkar, and Joel David Warkentin

Defendants

Barbara Legate, Joni M. Dobson, Daniel MacDonald, and Danielle A. Douek, for the plaintiffs

Simon Clements and Jessica DiFederico, for the defendants, London Health Sciences Centre and Sandra Oswald

Andrea Plumb, Fred Tranquilli, Natalie Carrothers, for the defendants Ram Nivas Singh, Aleksander Kornecki, Doreen Miyako Matsui, Gurinder Singh Sangha, Lily Sui Liang, Fatima Kakkar, and Joel David Warkentin

HEARD: January 23, 24, 25, 27, 30, February 2, 6, 7, 9, 13, 21, and 23, 2017

LEITCH J.

Table of Contents

INTRODUCTION.. 3

THE CLAIM... 3

THE EVIDENTIARY RECORD.. 4

THE RELEVANT LEGAL PRINCIPLES. 5

A. The standard of care. 5

(i) The standard of care of a health care practitioner 5

(ii) The standard of care of a nurse. 5

(iii) Evaluating the standard of care. 7

(iv) Errors in judgment 8

(v) Expert evidence. 9

B. Causation. 10

(i) Causation generally. 10

(ii) The “but for” test of causation. 10

(iii) Burden of proof 11

C. Vicarious liability. 11

THE COLLEGE OF NURSES OF ONTARIO STANDARDS OF NURSING CARE. 12

A. College of Nurses of Ontario Professional Standards, Revised 2002. 12

B. College of Nurses of Ontario Standards of Practice on Documentation. 12

C. College of Nurses of Ontario Standards of Practice for Registered Nurses in the Extended Class (Revised 2003) 13

THE LHSC STANDARDS OF NURSING CARE. 14

A. Normal Newborn Care and Infant Hygiene. 14

B. Hyperbilirubinemia: Physiological Jaundice of the Newborn. 15

THE EXPERT WITNESSES RETAINED BY THE PLAINTIFFS. 16

A. Dr. Michael Marrin. 16

B. Ms. Christine Rokash. 16

THE EXPERT WITNESSES RETAINED BY THE DEFENDANTS. 18

A. Ms. Patricia O’Flaherty. 18

HYPERBILIRUBINEMIA AND JAUNDICE: RISK FACTORS AND TREATMENT. 19

FACTUAL OVERVIEW... 27

A. Taha’s birth. 27

B. Medical and nursing care at LHSC in 2005. 28

C. Medical care provided to Taha in his early days. 28

(i) In the PCCU from 12:12 December 22 to 15:00 on December 23. 28

(ii) In the CTU after 15:00 on December 23 through to the evening of December 25. 31

(iii) In the CTU during the evening of December 25. 37

(iv) In the CTU the morning of December 26. 42

ANALYSIS. 47

A. The standard of care issue. 47

B. The causation issue. 80

CONCLUSION............................................................................................................................. 83.

INTRODUCTION

[1] The plaintiff Taha Ghiassi (“Taha”) was born December 22, 2005 at London Health Sciences Centre (“LHSC”). The other plaintiffs are Taha’s parents and his two older siblings.

[2] While being cared for at LHSC, Taha suffered from acute bilirubin encephalopathy (“ABE”) and now has the chronic condition kernicterus. As a result of kernicterus, he has been diagnosed with dyskinetic cerebral palsy; moderate to severe hearing loss; visual impairment; and cognitive impairments, including global development delay and intellectual disability.

[3] As the defendants acknowledged, Taha’s kernicterus is obviously devastating to him and to his family. Before the commencement of trial the parties agreed upon the damages sustained by the plaintiffs.

THE CLAIM

[4] The plaintiffs note that ABE, which results from jaundice, was completely preventable.

[5] The plaintiffs alleged a number of nurses and physicians who cared for Taha at LHSC were negligent.

[6] Prior to trial it was agreed, as set out in paras. 116 and 117 of an Agreed Statement of Facts, that

[n]o action that could have been taken, or taken at a time different than such action was actually taken, on the part of Dr. Atkinson, Mary Rockburn, or, on December 26, 2005 of Dr. Sangha or Dr. Kakkar, could have prevented or reduced the injuries sustained by Taha and that Dr. Saleh and Dr. Frewen were “not in any way at fault or causative of the injuries sustained by the plaintiffs”.

[7] Shortly after the trial began, the plaintiffs settled the action with all defendants other than Sandra Oswald and LHSC.

[8] The settlement of Taha’s claims against Dr. Singh, Dr. Kornecki, Dr. Matsui, Dr. Sangha, Dr. Liang, Dr. Kakkar, and Dr. Warkentin was approved by Grace J. on February 1, 2016, and pursuant to his order the plaintiffs’ action against those defendants was dismissed. Thereafter the cross-claim of Ms. Oswald and LHSC against those defendants was also dismissed.

[9] As a result, the trial continued only against Ms. Oswald and LHSC, who will collectively be referred to as “the defendants”.

[10] Ms. Oswald provided nursing care to Taha the nights of December 24 and 25, 2005.

THE EVIDENTIARY RECORD

[11] As previously referenced, an Agreed Statement of Facts was filed at the commencement of trial.

[12] The parties agreed that excerpts from the examinations for discovery of the plaintiffs and all defendants would form part of the evidence at trial as if these parties had been called as witnesses.

[13] Exhibit 6 contained excerpts of the examinations for discovery of:

• Ms. Sherry Szucsko-Bedard, a representative of LHSC, on September 29, 2010

• Ms. Heather Davidson Martin, a nurse at LHSC who cared for Taha in the Paediatric Critical Care Unit (“PCCU”), on February 2, 2015

• Ms. Sandra Oswald on February 26, 2013

• Dr. Lily Liang on November 24, 2014

• Dr. Joel Warkentin on January 26, 2015

• Dr. Ram Nivas Singh on September 28, 2010 and January 9, 2015

• Dr. Aleksander Kornecki on February 26, 2013

• Dr. Gurinder Singh Sangha on October 28, 2010

• Dr. Fatima Kukkar on July 14 and September 12, 2016

• Dr. Doreen Matsui on March 21, 2013

[14] Exhibit 11 contained additional excerpts of the examinations for discovery of Dr. Sangha on October 28, 2010 and Ms. Oswald on February 20, 2013.

[15] I note that none of the physicians and nurses recalled their care of Taha and relied on the medical records to provide their evidence on discovery or at trial.

[16] Exhibit 13 included excerpts from the examinations for discovery of Taha’s mother, Faredeh Ghiassi, on December 14, 2009 and April 30, 2013 together with a letter from her counsel, Ms. Legate, clarifying her evidence on discovery.

THE RELEVANT LEGAL PRINCIPLES

[17] Counsel prepared a joint statement of law setting out the following established legal principles that I will apply to the issues in this action.

A. The standard of care

(i) The standard of care of a health care practitioner

[18] 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 (see Crits v. Sylvester (1956), 1956 CanLII 34 (ON CA), O.R. 132 at 143 (C.A.), aff’d [1956] S.C.R. 99; Milne v. St. Joseph’s Health Centre, 2009 CanLII 51196 at para. 69 (Ont. Sup. Ct.)).

(ii) The standard of care of a nurse

[19] Nurses have a duty to conduct themselves when practising as nurses in accordance with the conduct of a prudent and diligent nurse in the same circumstances. Their conduct will be judged in light of the knowledge they ought to have reasonably possessed at the time of the alleged act of negligence (see ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674 at paras. 33–34).

[20] It is well established that nursing is an independent profession with its own practices, procedures, and standard of competence. Therefore, the standard of care applicable to nurses is different than that of physicians. A nurse will be held to a standard of care expected of an ordinary skilled person exercising and professing to have the skills of a nurse and must reflect the education, training, experience, and knowledge of the ordinary skilled nurse (see Suwary (Litigation guardian of) v. Women’s College Hospital, 2009 CanLII 31985 at para. 170 (Ont. Sup. Ct.)).

[21] Decisions regarding a patient’s diagnosis and discharge are within the purview of physicians (see Serre v. de Tilly (1975), 1975 CanLII 389 (ON SC), 8 O.R. (2d) 490 at 495 (H.C.)).

[22] Nurses have multiple obligations including the following:

a) to review patient records;

b) to maintain accurate records and notes;

c) to assess patients;

d) to communicate generally, both with the doctor and with the charge nurse, in a timely fashion;

e) to inform physicians of changes in their patients’ condition;

f) to seek guidance from physicians;

g) not to depart from the physician’s instructions absent clear and obvious neglect or incompetence;

h) to ensure that drugs are properly administered; and

i) to follow hospital policy

(see Gemoto v. Calgary Regional Health Authority (c.o.b. Alberta Children’s Hospital), 2006 ABQB 740 at para. 317).

[23] Nurses possess special skills and knowledge. A nurse has a duty to exercise her professional skill and knowledge to make appropriate assessments and accurately communicate those to physicians (see Granger (Litigation Guardian of) v. Ottawa General Hospital, [1996] O.J. No. 2129 at para. 26 (Ct. J. (Gen. Div.))).

[24] The standard practice for charting is to record procedures that are done and observations about the condition of the patient that are abnormal or changes from prior notations (see Gemoto at para. 346). This practice was followed by the nurses at LHSC.

[25] Lack of charting does not necessarily mean that procedures were not conducted nor is the mere lack of charting prima facie evidence of negligence in the treatment. However, the lack of charting makes it more difficult for a court to determine matters of credibility where individuals who are trained to chart did not do so. This failing, despite the opportunity to do so, makes it harder for a court to accept that the correct steps were followed and appropriate procedures were done as it would have been logical for them to be recorded had they been done (see Skeels (Estate of) v. Iwashkiw, 2006 ABQB 335 at para. 112).

[26] Not all conversations between health practitioners and parents of infant patients are charted and this does not in and of itself necessarily breach the standard of care (see Gemoto at para. 348).

(iii) Evaluating the standard of care

[27] The standard of care at the time of the alleged negligence is the relevant standard of care, not the standard of care at the time of trial. The medical professional’s conduct must be judged in light of the knowledge that existed at the time of the alleged act of negligence, not knowledge subsequently learned (see Grass (Litigation guardian of) v. Women’s College Hospital, [2003] O.J. No. 5313 at para. 170 (Sup. Ct.)).

[28] A nurse who acts in accordance with a recognized and respected practice of the profession will not be found negligent. The established policies and protocols of the hospital often play a key role in this area. If the nurse acted in accordance with hospital policies, this will usually be compelling evidence that the standard of care was met, unless the plaintiff can establish that the policy itself was unreasonable. If a nurse departs from the established policies of the hospital, this will provide compelling evidence of negligence (see Ellen I Picard & Gerald B Robertson, Legal Liability of Doctors and Hospitals in Canada, 4th ed. (Toronto: Thomson Canada Limited, 2007) at 490 [Picard].

[29] Courts must not, with the benefit of hindsight, judge too harshly doctors and nurses who act in accordance with prevailing standards of professional knowledge (see ter Neuzen at para. 34).

[30] The plaintiffs emphasize that a requisite standard of care must be responsive to the risk of harm and reference Clements v. Clements, 2012 SCC 32; Ediger v. Johnston, 2013 SCC 18, and the professional practice standards of the College of Nurses of Ontario, referenced more fully below, that a patient should not be unnecessarily exposed to any risk or harm.

[31] As the defendants emphasize the standard of care to be applied is the one that existed at the time of the alleged negligence (see Grass at para. 170) and “courts must be careful not to rely on the perfect vision afforded by hindsight in order to evaluate a particular exercise of judgment fairly” (see Lapointe at para. 28). The defendants further emphasize that errors in judgment are quite distinct from an act of unskillfulness, carelessness, or lack of knowledge and reference the significant onus on the plaintiff referred to earlier.

(iv) Errors in judgment

[32] Whether or not a health care practitioner was negligent or simply exercised an error in judgment will be determined on a case by case basis having regard to the particular facts in each case (see Bafaro v. Dowd, [2008] O.J. No 3474 at para. 28 (Sup. Ct.)).

[33] An error of judgment has long been distinguished from an act of unskillfulness or carelessness, or an act due to lack of knowledge. Medical professionals should not be held liable for mere errors of judgment which are distinguishable from professional fault (see Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] S.C.R. 804 at 812; Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351 at 363).

[34] Where a health care practitioner applies his or her mind to a situation and arrives at a judgment which subsequently may prove wrong or have unexpected consequences, he or she will not be held liable. An error of judgment does not amount to negligence where the health care practitioner appropriately applies clinical judgment. The health care practitioner must consider what to do in the prevailing circumstances and exercise his or her judgment accordingly (see Swanson at 812–813).

[35] The defence of error of judgment should be understood to mean an error which the health care practitioner made while exercising reasonable care. It is a defence in which the health care practitioner admits having made an error but denies negligence because she possessed and exercised the skill, knowledge, and judgment of the normal and prudent practitioner of the same experience and standing (see Picard at 365–366).

[36] The onus on the plaintiff is significant to show that any lapse is more than an error in judgment and that it rises to the level of unskillfulness, carelessness, or lack of knowledge (see Stell v. Obedkoff, [2000] O.J. No. 4011 at para. 203 (Sup. Ct.)).

[37] Adverse outcomes may occur in the absence of negligence. Courts must not use the unfortunate outcome as the barometer of negligence. The Court must look at the steps taken and ask whether they conformed to what would be expected of a similarly situated health care practitioner (see Grass at para. 173). An unfortunate outcome does not constitute proof of negligence (see Bafaro at para. 24).

[38] A health care practitioner must inform himself or herself of the facts needed before exercising clinical judgment. Clinical judgment is not guesswork based on limited facts. Clinical judgment must be exercised only after the medical practitioner has informed himself or herself of all relevant facts, subject to any time constraints imposed by the circumstances in each case (MacGregor v. Potts, [2009] O.J. No. 3581 at paras. 128 (Sup. Ct.)).

[39] Clinical judgment must be based on information that is as complete as is reasonably available and possible in the circumstances, including tests that should have been carried out but were not (see Crawford (Litigation Guardian of) v. Penney, [2003] O.J. No. 89 at para. 229.

[40] A series of errors of judgment may cumulatively give rise to a finding of negligence where a single lapse, error, or omission might not constitute negligence (see Picard at 367).

(v) Expert evidence

[41] To the extent that an expert testifies as to what he or she would do in a situation, rather than what the standard of care requires, his or her testimony does not establish the standard of care nor does it demonstrate that the defendant health care practitioner breached a standard of care (see Bafaro at para. 36.)

[42] The dominant approach in 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 Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras. 39–40, 45).

B. Causation

(i) Causation generally

[43] Causation is an expression of a 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 (see Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311 at 326; Resurfice Corp v. Hanke, 2007 SCC 7 at para. 23; Clements at para. 7).

(ii) The “but for” test of causation

[44] The test of causation is the “but for” test. The “but for” test is a factual inquiry, and applies to single and multi-cause injuries. The plaintiff must demonstrate that “but for” the negligent act or omission of each defendant, the plaintiffs would not have suffered the injury or loss. In other words, the defendant’s negligence was necessary to bring about the harm (see Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at para. 14; Clements at para. 8).

[45] The “but for” test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. Evidence connecting the breach of the duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss (see Snell at paras. 328, 33; Clements at para. 9; Beldycki Estate v. Jaipargas, 2012 ONCA 537 at para. 45).

[46] It is a misapplication of the robust and pragmatic approach to make a finding or draw an inference of causation where no factors similar to those set out in Snell are present and the proper evidentiary foundation is absent (see Aristorenas v. Comcare Health Services (2006), 80 O.R. (3d) 282 at para. 16 (C.A.)).

[47] The factors that were set out in Snell as referenced in Aristorenas at para. 61 are as follows:

(a) While the experts were not able to testify as to causation on a standard of scientific precision, there was some evidence that the negligent operation had led to the injury;

(b) The trial judge was satisfied that there was a greatly increased risk of injury because of negligence;

(c) The trial judge ruled out natural causes for the injury;

(d) The defendant physician was in a better position to observe what occurred and in a better position to interpret what he saw; and

(e) The negligent operation resulted in a situation where it was impossible for anyone else to detect the precise cause of the injury.

[48] Legal causation is informed by the general principle that the harm suffered must be of a kind, type, or class that was reasonably foreseeable as a result of the defendant’s negligence. It “is not necessary that one foresee the ‘precise concatenation of events’; it is enough to fix liability if one can foresee in a general way the class or character of injury which occurred” (Frazer v. Haukioja, 2010 ONCA 249 at para. 51 citing The Queen v. Coté, 1974 CanLII 31 (SCC), [1976] 1 S.C.R. 595 at 604).

(iii) Burden of proof

[49] In an action for delayed diagnosis or treatment, the plaintiff must establish, on a balance of probabilities, that the unfavourable outcome would have been avoided with prompt diagnosis and treatment (see Beldycki at para. 44).

[50] In medical malpractice cases where the plaintiff alleges delayed treatment, the “but for” test requires the plaintiff to prove the delay caused or contributed to the unfavorable 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. Gerrard (2003), 2003 CanLII 50091 (ON CA), 67 O.R. (3d) 737 at para. 25 (C.A.); Resurfice at para. 22).

C. Vicarious liability

[51] In addition to direct liability for its own negligent conduct, the hospital can be vicariously liable for the conduct of its employees, including nurses, when the employees are acting within the scope of their employment (see Picard at 460). There was no issue that LHSC is vicariously liable for any negligent conduct of Ms. Oswald.

THE COLLEGE OF NURSES OF ONTARIO STANDARDS OF NURSING CARE

A. College of Nurses of Ontario Professional Standards, Revised 2002

[52] The revised professional standards of the College of Nurses of Ontario are stated to provide “an overall framework for the practice of nursing” and “[i]t describes in broad terms the professional expectations of nurses and applies to all nurses, in every area of practice.”

[53] These standards state that one of the guiding principles is the following:

• the goal of professional practice is to obtain the best possible outcome for clients, with no unnecessary exposure to risk of harm

[54] It is noted within the document that:

• [a] standard is an authoritative statement that sets out the legal and professional basis of nursing practice; and

• [a]ll standards of practice provide a guide to the knowledge, skills, judgment, and attitudes that are needed to practice safely. They describe what each nurse is accountable and responsible for in practice. Standards represent performance criteria for nurses and can interpret nursing’s scope of practice to the public and other health care professionals.

B. College of Nurses of Ontario Standards of Practice on Documentation

[55] With respect to third party information, the standard provides that

• [n]urses may obtain relevant information about a client or an incident from another person, such as the client’s family member or friend. Nurses may also learn information about a third party that is relevant to the client.

[56] The guideline goes on to note that nurses are to “document conclusions that can be supported with data. They avoid documenting value judgments about a client or the client’s behaviour.”

[57] The guideline provides that “a nurse meets the standards by: including supporting data when documenting conclusions; and avoiding unfounded conclusions, value judgments or labelling”.

[58] An appendix to the guideline describes common documentation systems including “charting by exception”, which is described as a “shorthand method of documentation” with nurses evaluating the patient “against well-defined standard, norms or outcomes”.

[59] Another common system is “focus charting”, which is described as a system of documentation whereby “the nurse identifies a focus based on client concerns or behaviours determined during the assessment”.

[60] The guideline notes that in relation to this system “the assessment of the client and the care provided are organized under data, action and response”.

[61] “Data” is defined as “[s]ubjective and/or objective information that supports the stated focus or describes nursing observations at the time of a significant event in treatment”.

[62] “Action” is defined as “[i]mmediate or future nursing actions on the nurse’s assessment/evaluation of the client’s condition”.

[63] “Response” is described as “[d]escription of client responses to both medical and nursing care”.

C. College of Nurses of Ontario Standards of Practice for Registered Nurses in the Extended Class (Revised 2003)

[64] A registered nurse who has obtained further training to become a primary healthcare practitioner can earn what is identified as “extended class designation”. These nurses have “advanced knowledge and decision-making skills in health assessment, diagnosis, therapeutics (including pharmacological, complementary and counselling interventions), healthcare management, and community development and planning.”

[65] Nurses with an extended class designation have an expanded scope of practice and have “the legislated authority to perform controlled acts beyond those authorized to RNs and RPNs”.

[66] Ms. O’Flaherty, the expert retained by the defendants, obtained this credential in 2006.

THE LHSC STANDARDS OF NURSING CARE

A. Normal Newborn Care and Infant Hygiene

[67] This nursing standard was stated to apply to the care of hospitalized newborn babies with no identified problems prior to admission to the nursery.

[68] The standard has three headings: nursing diagnosis/collaborative problem/other; patient specific outcomes and date; and patient specific interventions.

[69] One of the nursing diagnosis/collaborative problems was identified as: potential for neonatal jaundice R/T. Items included under this heading were “prematurity” and “failure to pass meconium”. The noted patient specific outcome was that a baby would “pass meconium within 24 hours of delivery”.

[70] The noted patient specific interventions require the assessment of the following:

• skin colour and sclera (white of the eye) colour for jaundice;

• central nervous system (CNS) depression (example: lethargy, absent moro reflex (being startled when moved), poor suck);

• CNS excitation (example: tremors, twitching, and high pitched cry); and

• pre-disposing factors.

[71] The actions were identified as follows:

• prevent cold stress;

• ensure adequate hydration;

• maintain “phototherapy curve” on chart;

• if baby is jaundiced in first 12 hours, notify physician;

• draw bilirubin levels as per physician’s order and report results to physician as soon as available; and

• commence phototherapy as per physician’s orders.

[72] The patient specific outcomes were stated as the patient not exhibiting signs and symptoms of neonatal jaundice.

B. Hyperbilirubinemia: Physiological Jaundice of the Newborn

[73] This standard defined jaundice as “a yellowing of the skin and body tissues that develops because of the increased concentration of indirect bilirubin in the blood due to immaturity of the liver, deficiency of enzymes, dehydration, and normal destruction of fetal red blood cells.”

[74] This standard has the same three headings as the standard described above.

[75] Under the heading “nursing diagnosis/collaborative problem” jaundice R/T was noted, and more specifically unknown origin was listed, which could include ABO or RH incompatibility, biliary atresia, dehydration, breastfed jaundice, or physiological causes.

[76] The patient specific outcomes were noted as the patient/parent will, as appropriate, display no evidence of jaundice; not exhibit increased bilirubin level; and verbalize understanding of baby’s jaundice treatment.

[77] Under the patient specific interventions, a nurse was required to assess:

• signs of jaundice (for example, yellow, orange, or ruddy red colour of skin, or yellowing sclera or oral mucosa);

• if applying direct pressure to skin causes blanching and allows the yellow stain to be more pronounced;

• level of hydration (for example, skin integrity, mucus membranes, fontanelle, source of intake (breast or bottle), and voiding and stooling pattern);

• maternal and fetal history and age of onset; and

• signs and symptoms of prolonged jaundice (for example, apnea, seizures, poor feeding, irritability, lethargy, and CNS excitation or depression).

[78] The standards also included guidelines for the use of phototherapy in newborns with various weights.

THE EXPERT WITNESSES RETAINED BY THE PLAINTIFFS

A. Dr. Michael Marrin

[79] Dr. Marrin was qualified by the Royal College of Physicians and Surgeons and specializes in paediatrics, specifically in neonatology, a sub-speciality of paediatrics. He has been an active staff member at Hamilton Health Sciences Corporation since 1986 and an Associate Professor of paediatrics at McMaster University since July 1993. He has served as the Chair of the Evaluation Committee of DeGroote School of Medicine since 2008 and is involved in developing curricula in neonatology at McMaster University. He has provided expert opinions and testimony on behalf of plaintiffs, physicians, and hospitals. He has provided opinions to Mr. Clement’s firm, counsel for the defendants, in the past.

[80] There was no issue with Dr. Marrin’s qualifications, his objectiveness, his credibility, or his reliability. Indeed, the defendants presented no evidence on the topics discussed by Dr. Marrin.

[81] Dr. Marrin offered opinion evidence in the field of neonatology in a tertiary level hospital treating newborns in 2005 in Ontario.

[82] Counsel agreed that Dr. Marrin would not give evidence relating to the standard of care required of a nurse or his expectations of a nurse to report jaundice to a physician.

[83] Dr. Marrin provided evidence relevant to the causation issues and in particular provided evidence on a physician’s response to a nursing report of jaundice.

B. Ms. Christine Rokash

[84] The plaintiffs retained Ms. Christine Rokash to offer expert evidence on the standard of care required of Ms. Oswald. The admissibility of Ms. Rokash’s evidence was contested by the defendants.

[85] A voir dire was held in relation to this issue. For reasons given at the conclusion of the voir dire, Ms. Rokash was permitted to provide her opinion to the court on the following two questions which Ms. Rokash had been retained to address:

• How do nurses determine if a baby is jaundiced?

• If a nurse observes that a baby is jaundiced, what should a nurse then do?

[86] During the voir dire, Mr. Clements emphasized in particular the second question, which reflects the standard of care inquiry and which he submitted went to the core of what this case is about given that Ms. Oswald identified that Taha was jaundiced, as will be detailed further in these reasons.

[87] As more particularly set out in my reasons delivered at the conclusion of the voir dire, Mr. Clements took the position that Ms. Rokash was not a properly qualified expert in 2017 to provide evidence on the standard of care. He argued that she was a “roaming expert” who, if allowed to testify, would be “going to the fringes of her knowledge” and thus, the reliability of her evidence would be diminished. I noted that Mr. Clements did not raise a concern with respect to Ms. Rokash’s bias or her potential inability to be objective and independent from the plaintiffs. Rather, he took the position that her business enterprises and her desire to assist plaintiffs raised a question as to the reliability of her evidence.

[88] I ultimately concluded that Ms. Rokash did not have a “plaintiff’s orientation” that raised an issue with respect to the reliability of her evidence.

[89] Mr. Clements also raised an issue with respect to Ms. Rokash’s education and work experience. Mr. Clements submitted that she had never worked in a nursery, that her neonatal experience had been confined to well-baby care and her nursing of well-babies was a different discipline than a level two nursery care in a tertiary hospital.

[90] I noted that up to 2009 Ms. Rokash was very involved in bedside care. Since 2009 she has pursued areas beyond bedside nursing care and in the last three to four years her work has been focused on nursing education. She explained that perinatal care is a significant part of her presentations.

[91] I concluded that Ms. Rokash had received education in the area in which she was to be testifying, had provided newborn nursing care over an extended period of time, and had given phototherapy many, many times. As she described, assessing for the risk of jaundice was a basic nursing skill, as was recognizing jaundice and advising a doctor so that the bilirubin test could be ordered.

[92] I ultimately did not accept Mr. Clements’ submission that Ms. Rokash’s experience had been limited to well-baby care.

[93] I noted that it was significant that the state of nursing around jaundice and the nursing responsibility to assess and report jaundice had not changed since the day she graduated (in 1978).

[94] As I set out above, LHSC has standards of nursing care for normal newborn care and for newborn physiological jaundice and there is not a separate policy or protocol or guideline for the PCCU and the Clinical Teaching Unit (“CTU”). Ms. Rokash was very familiar with these LHSC standards of nursing care.

[95] I was satisfied that Ms. Rokash’s evidence met all of the admissibility requirements and that the benefits from the receipt of that evidence weighed against the costs or prejudice arising from its admission and therefore her evidence would be admitted.

THE EXPERT WITNESSES RETAINED BY THE DEFENDANTS

A. Ms. Patricia O’Flaherty

[96] Ms. O’Flaherty has a Bachelor of Nursing Science, a Master of Education, and a Master of Nursing.

[97] Following her graduation with her Bachelor of Nursing Science in 1977, she was employed through to 1989 in neonatal intensive care in the Children’s Hospital of Eastern Ontario.

[98] Ms. O’Flaherty was, what she referred to as, a “bedside nurse” from 1977 until 1986. In 1986, she assumed an advanced nursing role in working with a neonatal transport team and in addition, while not acting in that role, maintained her responsibilities at the bedside. As she put it, up until 2015 she had a blended role as a bedside nurse and transport nurse.

[99] Ms. O’Flaherty took a leadership and administrative role during October 2004 until August 2010 when she became a clinical manager in the critical care program, however one day a week she worked as a bedside nurse to maintain her certification as a practising nurse.

[100] As of 2000, she had the qualifications of a neonatal nurse practitioner or an advanced practice nurse as opposed to a bedside nurse. However, she has remained knowledgeable in the practices and standards of a bedside nurse, practicing at the bedside in an ill infant nursery in 2005.

[101] In 2006, she obtained the Ontario credentials for a neonatal nurse practitioner, permitting her to perform the duties of an extended class nurse (a qualification described above).

HYPERBILIRUBINEMIA AND JAUNDICE: RISK FACTORS AND TREATMENT

[102] Hyperbilirubinemia is a higher than normal level of bilirubin in the blood.

[103] Dr. Marrin explained that after a newborn has lost the maternal elimination mechanism, there is a delay or a period of time during which the newborn’s liver is “ramping up” the ability to process bilirubin. However, because bilirubin continues to be produced, the bilirubin level accumulates in the baby until the liver “catches up” and is capable of conjugating the molecule and then eliminating it through the biliary systems into the baby’s bowel.

[104] Dr. Marrin further explained that all babies have some degree of elevation of their serum bilirubin levels in the days after birth compared to what their levels would have been in utero. In at least fifty percent of all babies, there is some degree of visible jaundice (the yellowing of the skin and sclera), which can be treated as a normal part of transition from intrauterine to extrauterine life.

[105] Dr. Marrin indicated that in a healthy full-term newborn, the degree of bilirubinemia reaches its peak at around the third to fourth day of life.

[106] According to Dr. Marrin, physiologic jaundice recognizes that some degree of hyperbilirubinemia is part of the normal transition from intrauterine to extrauterine life. As he put it, one could say that physiologic bilirubinemia is one that follows the pattern of the majority of full term babies who have a gradual, almost linear rise in bilirubin from birth through the first three to four days of life to a peak bilirubin around 270–280 micromoles (µmol) per litre and then a decline of the hyperbilirubinemia in the subsequent days leading to almost complete disappearance by about 10 days of age.

[107] Dr. Marrin explained that one way of using the term pathologic jaundice would be to describe a situation that is outside of the pattern for physiologic jaundice. The other way in which the term is used is where there are identifying factors that would contribute to an exaggerated production of the bilirubin and impaired excretion of the bilirubin.

[108] On cross-examination, Dr. Marrin agreed with the proposition that 100 percent of babies have some level of hyperbilirubinemia and the published literature would suggest about 50 to 60 percent of babies will have jaundice. In other words, in about one half of newborns the bilirubin concentration is high enough to be seen as jaundice.

[109] However, as Dr. Marrin made clear (and as was the tragic result in this case) there is the potential for bilirubin to be brain-damaging and at high enough concentrations, bilirubin is a toxin in the brain. Therefore, caregivers must assess newborns for jaundice.

[110] Dr. Matsui indicated that as of 2005, she was aware that if hyperbilirubinemia was not treated it can cause permanent neurological damage by a condition of kernicterus; that kernicterus is generally preventable by monitoring for excess bilirubin and then treating it in an appropriate and timely manner; and that kernicterus is a rare finding, which she did not recall ever having encountered prior to December 2005.

[111] Dr. Matsui stated that jaundice is a primary indicator of potential high bilirubin levels and all babies are systematically assessed for jaundice as part of a routine assessment in the nursery at LHSC.

[112] However, as Dr. Marrin made clear, all that a change in colour tells a physician is that the bilirubin is rising.

[113] Similarly, Dr. Singh indicated that the fact a baby looks jaundiced does not mean that the baby has a bilirubin high enough to do something about it. As he indicated: the “range is quite wide. So, you can be fooled by the range of bilirubin. So, I would not predict a baby’s bilirubin level in the blood based on how jaundiced the baby looked”.

[114] Also, as will be discussed more fully later in these reasons, Dr. Warkentin, a senior resident, and Dr. Sangha, a junior resident, both appreciated that jaundice is often the first clinical evidence that bilirubin levels might be high, but visual jaundice is not a reliable indicator of bilirubin levels.

[115] Ms. Szuscko-Bedard indicated that nurses in both the PCCU and CTU know, or are expected to know, that jaundice can be an indicator of excess bilirubin levels in the blood and that excess bilirubin levels in the blood can potentially cause significant harm to the baby. As she added, the monitoring of babies for jaundice is of significant importance.

[116] Ms. Davidson Martin indicated that throughout her career leading up to and including 2005, she was very familiar with physiologic jaundice or hyperbilirubinemia. She indicated that jaundice is something that exhibits itself, basically, from head to toe.

[117] To assess skin colour and sclera for jaundice, Ms. Davidson Martin would turn on the lights in the room to accurately assess colour; she would open the baby’s eyes to check the sclera; and she would apply gentle pressure to the baby’s torso looking for yellow tones and sometimes she observed the nose as well, finding these both accurate assessment tools. As she explained, jaundice is harder to detect in patients with darker skin.

[118] Ms. Weatherall (who provided nursing care to Taha during the day on December 24 and 25), Ms. Oswald, Ms. Rokash, and Ms. O’Flaherty all described the same technique to assess jaundice.

[119] Ms. Weatherall recognized jaundice as a sign that a baby is developing hyperbilirubinemia. She acknowledged that the two are not synonymous terms and that jaundice is a sign of hyperbilirubinemia.

[120] As will be discussed more fully later in these reasons, Ms. Oswald was clear that jaundice can be one of the signs of high bilirubin but jaundice without other symptoms would not alert her to high bilirubin. Ms. Oswald understood that visual assessment of jaundice in a child is an unreliable method to assess or determine what level of bilirubin is in his blood. She agreed that a visual assessment of jaundice “can fool” people.

[121] Ms. Rokash emphasized that colour is not an accurate predictor of what the bilirubin level is in the blood but the appearance of jaundice is a fundamentally important clinical sign. The recognition of yellow skin, even slight, indicates the level of bilirubin is climbing, as the physicians also indicated.

[122] As will be outlined in more detail later in these reasons, Ms. O’Flaherty described jaundice as a fundamentally important clinical sign in her written expert reports; although, during her testimony at trial she indicated that the identification of jaundice was not a significant finding and that such identification had its limitations because of the unreliability of noting the degree of colour change. Consistent with the testimony of the physicians and other nurses, Ms. O’Flaherty testified that jaundice does not in and of itself indicate what the bilirubin level is and thus visual inspection is not a reliable indication of the severity of jaundice.

[123] There were many risk factors present in relation to Taha that would indicate to a physician that he was at risk for developing hyperbilirubinemia. According to Dr. Marrin in tertiary level teaching hospitals in Ontario in 2005 it would be known that anything associated with an increased production of bilirubin is a known risk factor for development of hyperbilirubinemia, which includes

(i) bleeding internally;

(ii) bruising of the skin;

(iii) children who are born to certain ethnic populations because they have a condition called G6PD deficiency (the groups at greatest risk are families whose origin is from around the Mediterranean Basin, which includes the Middle East, Israel, and Greece in particular, and Italy, North Africa, and populations in Southeast Asia; however, one need not be born in the Mediterranean Basin to have G6PD deficiency);

(iv) being male—boys are more susceptible to having higher bilirubin than girls;

(v) prematurity by itself is a susceptibility factor—to varying degrees, babies who are born before 40 weeks’ gestation can be anticipated to have some degree of functional immaturity; babies that are immature are more susceptible to the effects of the bilirubin because their ability to block the passage of bilirubin into the brain is not as sophisticated in a pre-term born baby;

(vi) children who are ill are at increased risk, because of the effect illness has on the ability of bilirubin to cross into the brain;

(vii) children whose brains have experienced some other insult or affect such as birth asphyxia of varying degrees;

(viii) children who have had low blood sugars probably are at greater risk;

(ix) a family history—other children in the immediate family who have had high degrees of bilirubin constitute a risk factor for subsequent children having the same condition; and

(x) anything that impairs the ability of the baby, once the bilirubin has been processed by the liver, to excrete the bilirubin out of the body, such as delayed passage of meconium (retention of meconium beyond the usual 24 hours), bowel obstructions, cystic fibrosis, and other conditions that fundamentally result in bilirubin sitting in the bowel for an extended period of time with the potential for it to be reabsorbed back into the bloodstream.

[124] Ms. Rokash and Ms. O’Flaherty both identified some of the risk factors that applied to Taha:

1. Taha was male;

2. the plaintiffs are from the Middle East;

3. Taha did not pass meconium until 9:00 a.m. on December 24 when he was almost 46 hours old and he was still passing meconium up to 68 hours of age;

4. Taha was premature, being born between 36 weeks, 6 days to 38 weeks [as Ms. Rokash noted, it would be unusual for nurses to challenge the gestational age noted by a physician and what is noted by the physician is generally accepted as correct];

5. Taha was resuscitated at birth [as Ms. Rokash noted, a nurse would not challenge a doctor’s notation that a baby had been resuscitated at birth, which was the case for Taha];

6. Taha had siblings who had developed jaundice—as set out in para. 25 and 26 of the Agreed Statement of Facts, Taha’s oldest brother had developed jaundice and after being treated with phototherapy, the jaundice resolved. Taha’s second brother was returned to the hospital after being discharged because of a urinary tract infection and jaundice. He did not receive phototherapy in hospital. Ms. Rokash also referenced para. 108 of the Agreed Statement of Facts set out below. She assumed Ms. Oswald knew that Mrs. Ghiassi had experience with jaundice in her other children and asked Ms. Oswald to have Taha’s blood tested. [As I outline later, I conclude that Ms. Oswald was made aware of this information at 21:00 on December 25].

[125] Dr. Marrin was clear that, in his opinion, it is incumbent on physicians caring for newborns to take a family history and elicit information respecting the newborn’s risk for hyperbilirubinemia. As he indicated, it should have been part of the initial history taking when Taha was admitted to the PCCU. However, that part of the record for the Newborn Physical Assessment for Taha is left blank.

[126] There is no evidence in the progress notes written by the physicians caring for Taha that there was any concern on their part with respect to the development of hyperbilirubinemia; no evidence that any physician expressed concern to any nurse about the development of hyperbilirubinemia; and, no orders reflecting any concern with Taha’s risk of developing hyperbilirubinemia were made by the physicians to nurses.

[127] The evidence of the physicians at LHSC reveals that they were aware of the risk factors as outlined by Dr. Marrin. When it was put to Dr. Marrin on cross-examination that the physicians never told the nurses about any concern with risk factors or family history because they did not pay attention to those things themselves, Dr. Marrin responded that “that was the conclusion” he “drew from the records”.

[128] During the trial, the plaintiffs conceded that it is more likely than not that Ms. Oswald would have alerted the resident on duty to the appearance of jaundice in Taha at approximately 21:00 December 25 if the physicians treating him had identified Taha as being at risk for development of hyperbilirubinemia and had noted that in his clinical record.

[129] Dr. Marrin testified that there are two treatment strategies to treat hyperbilirubinemia and both have the goal of bringing the bilirubin concentration in the blood down and prevent the bilirubin from rising to a threshold at which the brain might be at risk. The first is phototherapy (light therapy) which reduces bilirubin concentrations by metabolizing the bilirubin into a harmless substance that the body eliminates.

[130] Phototherapy would be ordered by the physician, but the nurse would mobilize the equipment. The phototherapy curve is a graph used to plot gestational age and post-gestational age to bilirubin levels and of course it presumes that a bilirubin level is being taken.

[131] Fortunately, as Dr. Marrin noted, less than 10 percent of children with hyperbilirubinemia reach the point where phototherapy is instituted.

[132] The second strategy, which Dr. Marrin indicated is only reserved for situations in which there is sufficient concern that the child’s brain is at risk, is essentially to wash the bilirubin out of the blood. And one does that with what is called an exchange transfusion.

[133] As detailed below, Taha ultimately received both phototherapy and an exchange transfusion.

[134] Dr. Marrin observed through the late 1990s into the early 2000s hyperbilirubinemia certainly had become “a very hot topic” because of a resurgence of kernicterus and the emerging attempts to try and prevent it in an era when children were being discharged home early (in 2005, healthy newborns were typically being discharged 12 to 24 hours after birth). Dr. Marrin stated that he expected that people in a tertiary paediatric hospital would be aware of these publications.

[135] In 1997 an article titled “Recognition of the Presence and Severity of Newborn Jaundice by Parents, Nurses, Physicians, and Icterometer [bilirubin meter]” was published in Paediatrics, the official Journal of the American Academy of Paediatrics (the “AAP”). This article reported on a study designed to assess the ability of nurses and physicians to determine the presence and severity of neonatal jaundice in a typical nursery setting with infants of different races, amongst other things. The article concluded that

[t]he clinical assessment of jaundice in newborns by nurses and physicians was less than optimal in this study. The estimates by nurses and physicians of bilirubin levels in infants thought to be jaundiced were significantly correlated statistically with actual bilirubin levels. However, the level of the correlations do not inspire confidence that these estimates are sufficiently accurate to be clinically useful. This finding may reflect the traditional practice of obtaining bilirubin levels on all jaundiced infants and the ease of obtaining bilirubin tests in the hospital. Nurses and physicians may not feel the need to attempt to carefully assess jaundice severity clinically when accurate blood levels are so readily available.

[136] Ms. O’Flaherty agreed that this article suggests that “at least in 1997, nurses and doctors were not concerned with the severity and the level because you could just get a little poke in the heel and test for the bilirubin level and know what you were up against”.

[137] The AAP guideline published in 2004 (which Ms. Rokash referenced in her report but indicated it applied primarily to physicians) was familiar to all the physicians providing care to Taha. This guideline stated it was intended for use by hospitals and paediatricians, neonatologists, family physicians, physician assistants, and advanced practice nurses who treat newborn infants in the hospital and as outpatients. This guideline included an algorithm which indicated that a baby is to be assessed every 8 to 12 hours if jaundice is discovered and if a baby is less than 24 hours of age, the inquiry is whether the jaundice by visual assessment appears severe enough to require a bilirubin test to be done. If the answer is yes, then the bilirubin is measured. If the answer is no, Mr. Clements argued an assessment for jaundice would then continue every 8 to 12 hours.

[138] Because Mr. Clements referenced the abovementioned excerpt from the guideline and argued that this guideline is dispositive, I will discuss the guideline more fully later in these reasons.

[139] I also note that, as will be reviewed later, Dr. Marrin discussed the applicability of this guideline in Taha’s circumstances.

[140] In 2007, (about 18 months following the incident pertinent to this action), the Canadian Paediatric Society published its guideline for detection, management, and prevention of hyperbilirubinemia in term and late pre-term newborn infants.

[141] This guideline notes the following in relation to the measurement of bilirubin concentration at the time Taha was a patient at LHSC:

Previous recommendations were to measure TSB concentration in all infants with clinical jaundice at any time in the first four days of life, and to measure TSB concentration in those who are not clinically jaundiced, but have increased risk factors. Because of the high occurrence of risk factors, this recommendation requires TSB measurement in a large majority of infants…. Despite these recommendations, infants continue to present with severe hyperbilirubinemia during or after their initial hospitalization.

[142] Ms. O’Flaherty acknowledged on her cross-examination that this 2007 guideline suggested that “clinical jaundice was the key and if it appeared at any time in the first four days of life total serum bilirubin was to be measured”.

[143] The abstract in the 2007 guideline includes the following statement:

[h]yperbilirubinemia is very common and usually benign in the term newborn infant and the late preterm infant at 35 to 36 completed weeks’ gestation. Critical hyperbilirubinemia is uncommon but has the potential for causing long-term neurological impairment. Early discharge of the healthy newborn infant, particularly those in whom breastfeeding may not be fully established, may be associated with delayed diagnosis of significant hyperbilirubinemia. Guidelines for the prediction, prevention, identification, monitoring and treatment of severe hyperbilirubinemia are presented.

[144] This guideline indicates that severe hyperbilirubinemia is a total serum bilirubin (“TSB”) concentration greater than 340 µmol/L at any time during the first 28 days of life.

[145] Critical hyperbilirubinemia is defined as a TSB concentration greater than 425 µmol/L during the first 28 days of life. When Taha’s bilirubin was first tested December 26, his TSB concentration was 423.6 µmol/L.

FACTUAL OVERVIEW

A. Taha’s birth

[146] Taha was born December 22, 2005 at 11:21 by a planned caesarian section under general anaesthetic. Delivery by Dr. Kirby was prolonged and Taha was born 21 minutes after the anesthetic was started.

[147] As set out in para. 29 of the Agreed Statement of Facts, Taha’s gestational age was documented variably as follows:

a. as 36 weeks 6 days during the Newborn Physical Assessment completed by delivery room nurse;

b. as 37 weeks in the Summary of Birth;

c. as 37 weeks in the Paediatric Nursing Admission Assessment;

d. as 37 weeks 4 days in Dr. Kirby’s Antenatal Record, which lists Taha’s estimated time of birth (EDB) as January 8, 2006;

e. as 38 weeks in the nursing note relying on Taha’s father’s estimate;

f. as 38.5 weeks in Dr. Kirby’s obstetrical operative note; and

g. as 38 weeks in the note of Dr. Sangha, the junior resident assigned to the CTU, which I describe below, relying on Taha’s father’s history.

[148] Taha was mildly depressed at birth. He was provided with 15 seconds of oxygen through a mask. His Apgar scores at 1, 5, and 10 minutes of age were respectively 3 (due to absent tone, reflex, and poor colour), 9, and 9.

B. Medical and nursing care at LHSC in 2005

[149] LHSC is a tertiary level teaching hospital associated with Western University. Children born at the hospital in 2005 could be cared for, depending on their condition, in their mother’s room; in the ill-baby nursery known as the CTU, which was divided into a red team where care was provided by hospital paediatricians and the blue team where care was provided by community paediatricians; or in the PCCU.

[150] Ms. Sherry Szucsko-Bedard indicated that a baby who is in a fragile medical condition would go to the PCCU and a baby who is somewhere between a critical condition and well enough to stay with his or her mother is cared for in the CTU.

[151] The staffing at LHSC does not change regardless of the time of year or whether there is a statutory holiday and the hospital operates every day of the year at regular capacity.

C. Medical care provided to Taha in his early days

(i) In the PCCU from 12:12 December 22 to 15:00 on December 23

[152] Dr. Lily Liang, a fourth year resident in anesthesiology, was present at Taha’s delivery and was part of the team to resuscitate Taha.

[153] Dr. Liang was the junior resident in the PCCU during the day, and she wrote the admission note on December 22 at 12:12.

[154] Dr. Liang noted that Taha’s gestational age was queried as being between 36.6 to 38 weeks’ gestation and that he was admitted to the PCCU because he required oxygen for his respiratory distress.

[155] A chest x-ray was ordered. An IV with gas and glucose was ordered as well as a complete blood count, which according to Dr. Liang was to determine if he had a low hemoglobin.

[156] Ms. Davidson Martin was Taha’s nurse during the day on December 22 and December 23. She conducted her paediatric nursing assessment at 14:30. She noted there was bruising, which was not a normal finding. This was something that had to be noted because his caregiver would want to know whether the baby had some kind of problem that would predispose him to bruising and because things can happen as a result of bruising, such as hematomas and hyperbilirubinemia. She also noted that she observed crackles and indrawing; and that Taha had not passed any meconium, which she indicated was significant because bilirubin is excreted through stool.

[157] Ms. Davidson Martin indicated that she would not usually direct a question to parents about jaundice in their other children and she would only note such information if it had been volunteered by the parents.

[158] Dr. Joel Warkentin, a senior resident in paediatrics in post-graduate year three, was the senior resident overnight on December 23.

[159] Dr. Warkentin explained that an “on-call” taking a “hand-over” from another physician is provided with the relevant information via an oral review of the patient at hand-over and thereafter results and investigations are followed up and clinical evaluations undertaken.

[160] Dr. Warkentin indicated that Dr. Liang would most likely have given him the hand-over information and she would have related her PCCU admission note to him. Although she was a resident in anesthesia, he would not have reviewed the chart more carefully than usual. According to Dr. Warkentin, Taha’s undifferentiated diagnosis on admission was respiratory distress.

[161] Dr. Warkentin accessed Taha’s chart several times the night of December 23, most likely to check for vital signs and to review the nurses’ notes and the laboratory investigations relevant to patient care.

[162] Dr. Ram Nivas Singh, a paediatric intensivist, was the PCCU attending physician on 24-hour call, who supervised Dr. Liang and Dr. Warkentin.

[163] Dr. Singh indicated that Taha was admitted into the PCCU with a presumed diagnosis of sepsis (a very common diagnosis) or transient tachypnea, which he explained was a respiratory distress related to some extra water in the lung that is short-lived and gets better over time, although pneumonia was also entertained.

[164] Dr. Singh indicated that routine blood work, antibiotics, and oxygen were ordered. Taha was then monitored in accordance with PCCU protocols.

[165] According to Dr. Singh, as the day progressed Taha’s respiratory symptoms started to improve. The medical team was reassured that they were on the right track and they planned to transfer him to the CTU the following morning. His impression was that Taha was getting better.

[166] Dr. Singh handed over the care of Taha to his colleague Dr. Kornecki, a staff physician in paediatric critical care, at 8:00 on December 23, 2005.

[167] When Dr. Kornecki started his shift at 8:00 on December 23, he sat with the resident or fellows that were working overnight. They explained the reason why Taha was in the unit and provided the relevant history, the clinical and laboratory course over the last day and night, Taha’s status, and the potential plan for the day. According to Dr. Kornecki, the detail on the PCCU master sheet in relation to Taha was sufficient for a newborn of one day old.

[168] Dr. Kornecki and his team started rounds near the bedsides at 9:00 or 9:30. The plan was to discharge Taha to the CTU that day.

[169] During the morning of December 23, Dr. Kornecki wrote an order for blood work for Taha because of Taha’s respiratory distress the previous day. This order was relevant to issues which were contentious at the time the trial commenced but which were ultimately resolved, as outlined above.

[170] Dr. Warkentin wrote the note to transfer Taha out of the PCCU at 6:30 the morning of December 23. He issued the order to transfer Taha to the CTU red team. As the defendants noted, Taha, at 18 hours of age, had improved sufficiently to be transferred to a lower level of care.

[171] In his transfer note, Dr. Warkentin noted that Taha was a one-day old male “near-term” infant (uncertain date). He explained that Dr. Liang had noted the question of whether Taha was 36.6 to 38 weeks and as a result it was appropriate for him to note that Taha was “near-term”. He agreed that it appeared from the record that Taha was as early as 36.6 weeks’ and as late as 38 weeks’ gestation.

[172] Dr. Warkentin ordered a blood culture because there was a concern that Taha was septic.

[173] He also gave an order that the nurses could initiate feeds for Taha, which was most likely based on his discussion of the status of the baby with the nurses taking into account the clinical scenario, the vital signs, the improvement in laboratory investigations, and possibly a clinical exam.

[174] Dr. Warkentin required that urine output be monitored, as well as oral intake, to ensure that the baby’s hydration was maintained. Dr. Warkentin described this as a pretty routine order.

[175] He also ordered ampicillin and gentamicin. Again, Dr. Warkentin described this as a pretty standard choice of antibiotics for a newborn when there was a concern about potential infection.

(ii) In the CTU after 15:00 on December 23 through to the evening of December 25

[176] Dr. Sangha started his paediatric residency program in the summer of 2004. He was assigned to the CTU red team on December 23, 2005. He was not part of the CTU team for the month of December but was doing some coverage in that area over the Christmas holidays.

[177] Dr. Sangha accessed Taha’s electronic chart at 9:50 in anticipation of Taha being transferred to the CTU.

[178] Taha was transferred to the CTU at 15:00 on December 23, 2005.

[179] Dr. Sangha completed the CTU admission note on December 23 at 16:45.

[180] During the time that Taha was in the CTU, Dr. Sangha was the primary, if not the sole person from the “medical side of things” who was making notes about Taha’s care.

[181] On December 23, 24, and 25, while still in the CTU, Taha was cared for by Dr. Sangha, as the junior resident during the day; Dr. Fatima Kakkar, a senior paediatric resident in the third year of her residency during the day; and Dr. Saleh, a senior resident during the night.

[182] Dr. Sangha had no recollection of his care of Taha. However, as he put it, with everything that happened, he went back after a few days and thought about Taha and generally recalled that Taha looked pretty well on admission to the CTU, there was “nothing screaming out at him” and it didn’t appear to him that Taha had any neurological problems.

[183] In his notes, Dr. Sangha noted that the dates were “not clear” which meant that the gestational age of the baby was not clear and there was some conflicting data in the charts that Taha may have been 36.6 up to 38.5 weeks. He noted the information Taha’s father provided —that Taha was approximately 38 weeks.

[184] When Dr. Sangha assessed Taha on admission to the CTU, he was aware that despite the fact Taha was not showing any signs of jaundice, he had some risk factors for developing hyperbilirubinemia. Dr. Sangha was also aware that another clinical indicator of hyperbilirubinemia is abnormal tone on neurological examination and he did notice some slight abnormalities in peripheral tone.

[185] Dr. Sangha indicated Taha’s clinical picture was very much fitting with the transient tachypnea of the newborn, plus or minus that there was an infectious process going on in the chest. He made a further note on December 23 at 17:35 which was his last involvement that day.

[186] During the mornings of December 24 and 25, Dr. Sangha participated in the sit-down rounds. During these rounds, the doctors would “flip through” the overnight nursing progress notes and review the vital signs to see how the baby had done overnight. They would then receive nursing input when they did their walk-around rounds.

[187] On December 25 at 15:40, Dr. Sangha’s note indicated that Taha was “clinically improving”. Since the primary concern was of a respiratory nature, that is what he would have focused on. If he had done a detailed neurological examination, such an examination would have been noted. There was no such notation.

[188] Dr. Doreen Matsui, who was the attending paediatrician on the CTU from December 23 to December 26 at 8:00, supervised all of the residents. She was not present in the CTU during the night shifts, in particular the night shift from December 25 to the morning of December 26, but was on call. She was not called in.

[189] Similarly, as Dr. Sangha indicated, a night shift resident may have no involvement with a particular patient unless something occurs that is brought to his or her attention

[190] As Dr. Matsui indicated, if the nurses raise no concerns with a resident, or if there is nothing raised by the day team that the night team is to check on, the night resident might not see a patient during the evening or overnight.

[191] Nursing care was provided to Taha by Barbara Weatherall during the day on December 24 and 25.

[192] Ms. Weatherall worked as a registered nurse at LHSC for 24 years and retired January 2014.

[193] Ms. Weatherall recorded Taha’s vital signs, feeds, and the bedside care she provided to Taha on the Paediatric Graphic Record. She indicated that nurses provide care to their patients in the CTU every three hours.

[194] She testified that she was responsible for noting a child’s colour. As she explained, a child is jaundiced, a fairly common symptom in babies in the CTU, if their skin is yellow, if there is any yellow in the white part of their eyes, and/or if there are any yellow patches in their mouth.

[195] As I will discuss more fully below, Ms. Weatherall was clear that if she observed symptoms of jaundice or a change in colour in a child she would inform the physician.

[196] Taha did not have any oral diet on December 24. Taha was fed through a nasal gastro tube throughout the time Ms. Weatherall cared for him, and she exercised clinical judgment to not try bottle feeding.

[197] The Paediatric Graphic Record contemplates that parent contact would be charted, whether the contact was by telephone or was at the bedside. Ms. Weatherall explained that if a parent had called simply to ask how a baby was doing she would not necessarily note that in the clinical record, but if she was given important information, she would note that information. Specifically, she would note what parents have asked or what was said.

[198] Nurses maintain a fluid balance chart that tracks input (oral feeds and IV) as well as output (urine and stool). As Ms. Weatherall noted, it is important to maintain hydration to assist in eliminating and reducing the bilirubin.

[199] The Paediatric Assessment and Intervention Flowsheet is what is used to do what Ms. Weatherall described as a “head to toe assessment”. Nurses do such an assessment at the beginning of their shift and at the end of their shift, and any time there is a change in the patient’s condition.

[200] Six items are looked at:

i) cardiovascular;

• heart rate

ii) respiratory;

• how fast the baby is breathing

• need for oxygen—O₂ saturation

• crackles in chest

• harsh breathing

• indrawing (which indicates a little respiratory distress)

• or normal and comfortable

iii) neurological;

iv) gastro-intestinal;

• how they are tolerating foods

• whether there is any vomiting

v) genitourinary; and

• how they are voiding and stooling

vi) integumentary

• assessing whether there is any bruising

• assessing colour.

[201] A chart on the left of the flowsheet sets out guidelines or parameters for what is normal for an age group and the nurses chart what is outside those parameters or, what is abnormal. In other words, they chart by exception.

[202] Any checkmark on the chart indicates a normal finding or a finding within the parameters. An asterisk indicates something outside of normal.

[203] If nurses insert an asterisk, then they are to make a note at the bottom of the chart explaining what was found.

[204] The notation of an arrow signifies agreement with what was noted previously.

[205] As outlined in detail below, Ms. O’Flaherty confirmed on cross-examination that a nurse complies with the standards of the College of Nurses by documenting her critical thinking on the Paediatric Assessment and Intervention Flowsheet.

[206] On December 24, Ms. Weatherall noted Taha’s cardiovascular as normal; he remained on oxygen via nasal prongs; he had mild indrawing, which increased when he was upset; and he was breathing fast at times.

[207] She noted that at 9:20 on December 24 he had vomited three cubic centimetres (CCs) after she had fed him 20 CCs through the nasal-gastro tube. She did not recall whether she had called the resident to inform him of this event. She acknowledged that her clinical judgment was that no action was required.

[208] She noted that Taha was pink throughout December 24.

[209] Ms. Oswald provided nursing care to Taha the night of December 24.

[210] Ms. Oswald qualified as a Registered Nurse in 1985 and began her employment with LHSC in 1988 after working at the hospital in Windsor. She originally worked in the paediatric unit and began working in the CTU in 1990 and thus had 15 years of experience in the ill infant nursery by the time she was caring for Taha in 2005. She continued to work at LHSC until 2012 and now works as a holistic practitioner.

[211] She had no recollection of her care of Taha and had no recollection of speaking to either of his parents. Consistent with Ms. Weatherall’s evidence, Ms. Oswald testified that on average, they care for three patients on each shift.

[212] Ms. Oswald indicated that in her 15 years of working in the CTU, at least 70 percent of infants who were a week old or less had some degree of jaundice. That is, their skin colour was yellow. She was aware that generally jaundice will resolve on its own.

[213] She testified that there was a whole array of symptoms that can lead to hyperbilirubinemia. According to Ms. Oswald, you look at whether the infant is lethargic, how they are feeding, and their hydration (which you assess by whether they are voiding and stooling) and colour is also certainly part of it. She was aware that if hyperbilirubinemia is not treated, there can be devastating effects on an infant.

[214] Ms. Oswald described coming on her shift at 19:00 the evening of December 24, taking her patient assignment, listening to the report from the charge nurse on the previous shift, reviewing her charts to plan her shift, and then briefly looking at the infants.

[215] On December 24 at 21:00, Taha had a normal temperature, was in an isolette, and was taking 74 breaths per minute, which was a little bit higher than normal parameters. She noted his colour as pink, that he was awake at the time she approached him and that his sleeping was good. Her charting indicated that she gave Taha either a sponge bath or a tub bath. She noted that he was voiding and stooling, and that there was stool with meconium in it. She also noted that he was being fed expressed breast milk by an NG tube and he was being given 80 CCs of oxygen via nasal prongs, which she described as very minimal, with oxygen saturation of 98 to 99 percent.

[216] She documented that a parent had been at the bedside at 21.00.

[217] According to her charting, during the night of December 24 and going into December 25 Taha “looked stable” and was “tolerating feeds well. All the levels were within normal ranges”. Ms. Oswald also noted that she reduced the amount of oxygen he was receiving by 10 CCs.

[218] According to Ms. Oswald, there was nothing “notable” to record in relation to Taha the night of December 24.

[219] On December 25, Ms. Weatherall noted Taha was pink throughout the day. He did not take any oral feeds. Ms. Weatherall acknowledged on cross-examination she again exercised clinical judgment not to try to feed Taha a bottle.

[220] As previously set out, Dr. Sangha noted on December 25at 15:40 that Taha was clinically improving. Dr. Sangha made an order that Taha could be weaned off oxygen and his total fluid intake could be increased. However, Taha would continue to be treated by antibiotics for seven days.

[221] Ms. Weatherall actioned this change in plan and put Taha on room air at 15:45 and discontinued his use of the nasal prongs.

[222] By 18:00 on December 25, with Taha on room air, his oxygen saturations had decreased and his respiratory rate had increased to 76. Therefore, he was breathing faster.

[223] On the Paediatric Assessment and Intervention Flowsheet, Ms. Weatherall placed an asterisk under the respiratory column at 18:10 and noted that Taha had difficulty breathing. She put him back on a cardio/respiratory (“CR”) monitor to maintain the saturation goal of more than 92 percent (within normal limits).

[224] Ms. Weatherall did not contact a physician in relation to Taha’s trial on room air. She acknowledged on cross-examination that she exercised her clinical judgment not to do so.

[225] The only thing that changed in Taha’s condition during the time Ms. Weatherall cared for him on December 25 was that he was taken off his oxygen as ordered by Dr. Sangha.

(iii) In the CTU during the evening of December 25

[226] As indicated earlier, Ms. Oswald cared for Taha during the night of December 25. Specifically, she was on duty until 7:00 on December 26 when Ms. Rockburn took over as Taha’s nurse for the day.

[227] The plaintiffs allege that Ms. Oswald’s care during this time did not meet the required standard of care as I will discuss more fully below.

[228] Ms. Oswald followed her usual procedure the evening of December 25.

[229] According to the Paediatric Graphic Record for the night of December 25, she took Taha’s temperature at 21:00 and moved him from the isolette to a small crib. The transitioning to a cot reflected an improvement in Taha’s condition.

[230] At 21:00, Taha’s pulse rate was stable. He was no longer on oxygen at that point. His oxygen saturation level was at 98 percent. His respiratory rate was 42 breaths per minute. Therefore, his “breathing had settled down” as the defendants noted. During her whole shift his respiratory rate was in the 40s, which according to Ms. Oswald, was “a really great indicator” that he was improving.

[231] Ms. Oswald noted a change in Taha’s colour at 21:00. She noted that Taha was pink and slightly yellow, which she explained was slightly jaundiced.

[232] Her charting indicated that she could have given Taha a sponge bath or a tub bath and she suggested that “potentially” it could have been a tub bath because he was off the oxygen and was transitioning to a cot, so “in the normal course” she would probably have given him a tub bath which would have been in good lighting.

[233] Under the heading “Activity” she noted an S and an A, reflecting that when she approached him he was sleeping and then he was awake which indicated to her that “he roused with his care easily”.

[234] She noted that his rest/sleep pattern was good.

[235] She noted that he was voiding and stooling.

[236] The nurses had been given an order to bottle feed Taha if it was tolerated, so she attempted to bottle feed him at 21:00. Taha took 10 CCs and the remaining of his feeding was topped up by the NG tube.

[237] Ms. Oswald indicated that bottle feeding for the first time was “an excellent indicator that this baby is really normalizing, improving” and the taking of 10 CCs was “a great indicator for an infant that is just initiating bottle feedings, especially due to the fact that he was dealing with tachypnea or the increased respiration in the past”.

[238] According to Ms. Oswald “the volume really is insignificant” and it was “just reassuring that the infant is alert and awake and eager to feed”.

[239] Ms. Oswald’s overall assessment of Taha’s wellbeing at 21:00 on December 25 was that it “was really good. A really great improvement from her shift previous”.

[240] Ms. Oswald acknowledged that the risk factors for children developing hyperbilirubinemia were being male and having a darker skin tone; however, what she took into account in judging whether or not she ought to call a physician was the fact that the jaundice was slight and Taha was otherwise stable.

[241] Ms. Oswald also acknowledged that the failure to pass meconium is a risk factor for hyperbilirubinemia and the failure to pass meconium within 24 hours is an important consideration in evaluating an infant who may be at risk for hyperbilirubinemia. She agreed that Taha passed his first meconium at about 44 hours, well beyond his first 24 hours.

[242] However, she indicated that the change in Taha’s colour was not a matter of concern to her and emphasized that she looked “at the overall picture of the infant and due to the fact that most of our infants deal with jaundice, you’re truly just looking at the entire picture of the infant to make your decisions”.

[243] Ms. Oswald was asked why she did not page the resident to inform the resident about Taha’s colour change and she explained:

Well, when I’m looking at the entire picture of this infant and tracking back on my previous shift with him, this infant was very stable, was improving, was off of oxygen, was starting to bottle feed… you’re evaluating the entire situation. Colour’s really not the best indicator.

She was clear that she does not “alert a physician unless there are several other factors that you’re also seeing”.

[244] On her Paediatric Assessment Information Flowsheet, Ms. Oswald did make some notations on her shift overnight on December 25. The first was at 21:00 in relation to respiratory and breath sounds. She noted Taha was on room air, saturations were within normal limits, there was mild indrawing, which she explained is quite common with an infant dealing with tachypnea, and that she would monitor SATS and status.

[245] Her note at 21:00 relating to gastrointestinal was the following: “NG tube in situ, attempted bottle feed as respiration stable, small amount taken, no distress. Mum plans to nurse when able. NG, bottle, breast as tolerated.”

[246] Ms. Oswald indicated that the information that the mother planned to nurse would have been clear from the information in the kardex or from the fact that the baby was having expressed breast milk, or because in the initial nursing history obtained on admission it was noted that Mrs. Ghiassi planned to breastfeed.

[247] She indicated that she had assessed the Taha’s sleep as good and that when she approached him for care he was sleeping but once she initiated care he was awake and alert and sometimes crying and sometimes not.

[248] She testified that Taha would not have been lethargic because he was rousing for care and attempting bottle feedings.

[249] At 24:00, she fed Taha again by bottle. He took 5 CCs and the remainder of his feeding was topped off by the feeding tube.

[250] She testified that when a baby is transitioned from bottle feeding you do not want to stress the infant, particularly one who has been dealing with increased respirations and has been on oxygen. She also testified that the amount that Taha was taking was not significant.

[251] Ms. Oswald indicated that at 3:00 Taha had no oral diet because it was important to allow him to rest and to not push him, particularly because of his tachypnea history and because he had recently come off oxygen.

[252] She did feed Taha a bottle at 6:00, at which time he was awake. He took 3 CCs by bottle with the remainder of his feeding being through the nasal tube.

[253] Taha’s pattern of feeding did not indicate any lethargy to Ms. Oswald.

[254] At some point during Ms. Oswald’s overnight shift on December 25, she had a conversation with Mrs. Ghiassi. As set out in para. 108 of the Agreed Statement of Facts:

Mrs. Ghiassi attends and asks to hold Taha. She asks Nurse Oswald to turn on the lights so she can see him, which Nurse Oswald does. She notes his nose is yellow, and he does not arouse from sleep. Mrs. Ghiassi asks Nurse Oswald to have his blood tested by the doctors in the morning, noting that she has experience with jaundice. She is reassured by Nurse Oswald that this is normal jaundice.

[255] When this conversation between Ms. Oswald and Mrs. Ghiassi took place is contentious and will be discussed further in these reasons.

[256] Ms. Oswald was referred to the visit by Mrs. Ghiassi to the CTU as set out in the Agreed Statement of Facts.

[257] Ms. Oswald had no recall of Mrs. Ghiassi’s visit or any conversation with her. Ms. Oswald’s practice in 2005 when receiving information such as that set out in the Agreed Statement of Facts would have been to explain to the parent that jaundice is something that is monitored, that they look “at the entire picture of the infant”, and that, reviewing all of the chart, Taha “is very stable, that he has started a bottle feed. That he’s off of oxygen. That he’s voiding, stooling, everything’s within normal limits and that jaundice is a normal process in a newborn generally”.

[258] She confirmed that the information conveyed by Mrs. Ghiassi that she had experience with jaundice would not raise any red flags for her as a bedside nurse because Taha “was very stable”.

[259] Ms. Oswald continued to assess Taha’s colour overnight and at 6:00 on December 26 she noted he was pink/yellow which indicated that there “would have been a bit of increase in the jaundice colour”. This increase in jaundice did not prompt her to call a physician.

[260] She explained that she had assessed Taha throughout her overnight shift by assessing his skin colour and sclera colour for jaundice, which she documented. She looked for signs of lethargy and poor suck and absent moro reflex, by looking at how he roused with care, whether he was interested in bottle feeding and whether he was alert. She monitored his temperature and ensured adequate hydration.

[261] She confirmed on cross-examination that “her strategy for calling a physician was to wait until you had evidence not only of jaundice, but some other indication that the child wasn’t doing well such as lethargy, vomiting, fever or dehydration”.

[262] Her “strategy was not to report to a physician the existence of jaundice solely on the appearance of colour alone” and she “required some evidence that the child’s wellbeing had declined, including lethargy and/or vomiting and/or temperature change, fever and/or dehydration”.

[263] Ms. Oswald emphasized that it was important to look “at a variety of symptoms” and that it was important to look “at the whole picture” and to watch for things changing before making a call to a physician.

[264] The evidence of Ms. Oswald from her examination for discovery was read into the record by the plaintiffs. On her discovery, she indicated that ordering a blood test was “not urgent” and was “just routine” because of the “slight change in colour”. She also indicated she would have passed the jaundice information on to Ms. Rockburn in her report and that Ms. Rockburn could investigate testing the bilirubin level in the morning.

[265] Ultimately she was asked the following:

Q. [Y]ou would have told the nurse to pass on the information to the doctor, so the jaundice information to the doctor, to see if the doctor wanted to order bilirubin?

A. Yes.

[266] Ms. Oswald confirmed her evidence on discovery when she testified at trial. Her observation of Taha’s jaundice would have been part of the transfer of information to the staff coming on the morning shift so that the next nurse could provide this information to the doctor to see if the doctor wanted to order a bilirubin test.

(iv) In the CTU the morning of December 26

[267] Ms. Szucsko-Bedard indicated that all bilirubin tests had to be ordered by the physician and nurses cannot draw any blood without a physician’s order, which can be made in writing or orally. If an order is given orally, the nurse would chart the order including the name of the doctor who had made the order.

[268] Similarly, Ms. Davidson Martin indicated that in 2005, nurses had to wait for a physician’s order to draw a blood test for bilirubin.

[269] This policy was confirmed by Dr. Sangha who stated that the blood test can only be ordered by an attending physician or resident. Once it is ordered, the nurse would draw the blood and label it. The results normally come back electronically to the nursing station computer and the nurse would provide the results to the resident or the attending physician, or whoever ordered the test.

[270] However, as set out in paras. 112 and 9 of the Agreed Statement of Facts, Ms. Rockburn did not wait for a physician’s order and took a blood sample herself:

At 07:00 Mary Rockburn comes on shift. She listens to the report from Oswald. She assesses Taha at approximately 08:30 and notices he is jaundiced. She takes a blood sample for a bilirubin level without a physician’s order. It is received by the lab and reported back at 10:00 as 423.6 [µmol/L] which is a critically high level.

The result of the bilirubin test was reported by telephone from the lab at 10:00 because it was at a critical level. It was 423.6 µmol/L. Nurse Rockburn called the resident Dr. Sangha, who immediately attended to assess Taha and then immediately ordered phototherapy treatment. Over the course of the day Taha received phototherapy and had a decline in his bilirubin level to 403 µmol/L. By 15:00 he showed the signs of ABE including irritable cry, opistonus, arching, and decerebrate movements. He was transferred to the Paediatric Critical Care Unit under the care of Dr. Frewen where he underwent exchange transfusions and phototherapy in an attempt to reduce the bilirubin in his blood.

[271] The blood for the bilirubin test was drawn at 8:45 in the morning. It was received in the lab at 9:01.

[272] On December 26, Dr. Sangha came on duty as the junior resident. Dr. Kakkar replaced Dr. Saleh as the senior resident at 9:00. Dr. Atkinson assumed the duties as the staff attending physician from Dr. Matsui at 8:00.

[273] When Dr. Sangha had left the hospital December 25 in the afternoon or the evening, he thought Taha was “getting better” and therefore, when he came on duty on December 26 around 9:00, he did not expect there to be any particular problem with Taha. He had no indication from anyone that there were any concerns about Taha and none of the nursing staff indicated to him that Taha was jaundiced. During “the hand-off” on December 26, he did not remember the resident from the night shift saying anything to him about Taha’s condition. He had not yet looked at the nursing notes from the night before or the chart because he does that during the walk around portion of the rounds.

[274] Dr. Sangha recalled that he was paged during the sit-down rounds and when he responded to the page a nurse informed him that Taha’s bilirubin was 423 µmol/L, which, as he put it, was “high” and required action. Dr. Sangha had had no indication that Taha’s bilirubin was going to be tested; the fact that his bilirubin level was “very high” was “surprising” and “concerning” to him; and, he needed to “immediately” take some steps to get the bilirubin levels down.

[275] As a result, Dr. Sangha excused himself from the sit-down rounds to see Taha. Dr. Sangha indicated that Taha looked different than he had the previous days and was now showing some signs of jaundice.

[276] Dr. Sangha then looked at Taha’s chart and the nursing notes and he recalled that it “looked like the baby had started looking jaundiced overnight”. Dr. Sangha agreed that a consistent pattern had continued throughout the night over a 12-hour period.

[277] Dr. Sangha indicated that as a physician responsible for the baby he would want to receive the information that there had been a change in colour and that the baby was jaundiced as soon as it was available so that he could implement appropriate treatment as soon as possible.

[278] Dr. Sangha confirmed that from his examination of Taha the morning of December 26, the only difference in Taha’s appearance from when he had seen Taha the previous afternoon was that Taha appeared jaundiced. The bilirubin level had not started to cause any neurological problems and the purpose of his treatment was to avoid that from happening.

[279] As he put it:

736. Q. [T]o the baby’s side and what do you see and what do you do?

A. Yeah, when I, when I looked at the baby, the baby, you know, colour looked different to me than it had the previous days, so the baby did look to me like the baby was now showing some signs of jaundice. You know, otherwise, the baby still at this point looked fairly well to me. The baby was though, you know, like I said, jaundiced, but the baby also at this point, you know, neurologically the baby was normal at this point. I know that because later in the day the baby wasn’t, so I knew specifically that morning that the baby looked, neurologically was normal.

737. Q. Okay.

A. [W]hen I examined him in the morning. And, you know, other than that, as far as the examination, there was nothing else that stood out for me for the, stood out during the examination.

[280] Dr. Sangha wrote an order for triple phototherapy at 10:40.

[281] He estimated that from the time he left the sit-down rounds, assessed Taha and gave the orders, 30 minutes had passed. His expectation was that his order to administer phototherapy would be followed as soon as possible, which did in fact occur. Phototherapy was initiated at 11:00.

[282] Dr. Sangha indicated that his plan was to repeat the bilirubin test in four hours to see if the bilirubin level came down with the phototherapy he was implementing.

[283] Dr. Sangha gave PCCU “the heads up” that there may be a transfer if an exchange transfusion was required, but Dr. Sangha indicated they were hoping to avoid that.

[284] Dr. Sangha acknowledged that a bilirubin level of 423 µmol/L is above the level for exchange transfusion, but his understanding of the guidelines and the standards at the time was that you do not necessarily undertake an exchange transfusion immediately and you try phototherapy first. He understood that you would try phototherapy for four to six hours and that was why he ordered a repeat of the bilirubin test four hours later. If the bilirubin did not decline, Dr. Sangha was not qualified to decide if an exchange transfusion should be done.

[285] Dr. Sangha was “qualified enough at the time to make the call to implement the phototherapy” and “to do a repeat bili test to see if the phototherapy is proving effective and to order other blood chemistry to determine the reason why the bilirubin level was so high”, but it was not his “call” to determine if and when an exchange transfusion would be done.

[286] Dr. Sangha himself looked at Taha more often on December 26 than he had during the previous day, and he expected the nursing staff to continue to monitor Taha, including his colour, his neurological status, and whether there was any change in his clinical status. He expected to be advised right away if there was any change.

[287] It is clear that Taha’s jaundice became more severe over the course of Ms. Rockburn’s shift because, while at 9:00 she documented his colour as being pink/yellow, by 11:00 she was noting “colour, jaundice ++: sclera, yellow”.

[288] As previously set out, over the course of the day Taha received phototherapy and had a decline in his bilirubin level to 403 µmol/L. Unfortunately, however, by 15:00 he showed the signs of ABE including irritable cry, opisthotonus, arching, and decerebrate movements. He was transferred to the PCCU under the care of Dr. Frewen, where he underwent exchange transfusions and phototherapy in an attempt to reduce the bilirubin in his blood.

[289] The plaintiffs’ position is that Ms. Oswald breached her duty of care owed to Taha in not reporting to a physician her observation of Taha’s jaundice at 21:00 on December 25.

[290] The plaintiff’s position is that as a result of Ms. Oswald’s negligence, bilirubin testing was delayed for almost 12 hours and that but for her negligence, phototherapy treatment would have been initiated much earlier than 11:00 on December 26 and Taha’s injuries would not have occurred.

[291] The defendants assert that knowing the outcome in this case, the plaintiffs have looked back retrospectively and inferred that there were risk factors and clinical indicators present that should have prompted Ms. Oswald to page a resident upon seeing a slight colour change at 21:00 on December 25, 2005. The submission on behalf of Ms. Oswald and LHSC is that the standard of care in 2005 did not require her to proceed that way.

[292] Further, the defendants assert that the plaintiffs have failed to demonstrate that if Ms. Oswald had placed a call, a reasonable resident would have ordered a bilirubin test within a short period of time and the plaintiffs have failed to demonstrate that earlier treatment would have led to a different outcome.

[293] In short, the defendants’ position is that Ms. Oswald correctly exercised nursing judgment on the evening of December 25 and provided completely appropriate care. Furthermore, had she reported her observations to a physician, the bilirubin test would not have been ordered until the morning of December 26, which is in fact what occurred.

[294] Therefore, the position of Ms. Oswald and LHSC is that there is a successful defence on the standard of care issue and a successful defence on the causation issue.

ANALYSIS

A. The standard of care issue

[295] The plaintiffs’ position is that Ms. Oswald was negligent in her care of Taha and that LHSC is vicariously liable for her negligence. As previously noted, the vicarious liability of LHSC was not contested.

[296] The standard of care issue to be addressed is whether Ms. Oswald’s care on the evening of December 25, 2005 met the required standard of care.

[297] Mr. Clements asserted that there were three potential scenarios raised on the evidence:

• Scenario one: Firstly, upon noticing a slight change in Taha’s colour at 21:00 on December 25 was Ms. Oswald required to page a resident to inform him of that fact?

• Scenario two: If after speaking to Taha’s mother and noting Taha’s mother’s concerns about his condition, as well as noting the slight change in colour at 21:00, was Ms. Oswald required to page a resident?

• Scenario three: If not based only on Taha’s colour, and if not based on Taha’s colour and the information about his sibling history and Mrs. Ghiassi’s perception of lethargy, was Ms. Oswald required to page a resident when Taha did not take much breast milk from the bottle during his first three attempts at bottle feeding, which might have prompted Ms. Oswald to consider that there was an overall lack of responsiveness of the child, in which case, her level of concern should have risen and she should have paged the resident?

[298] There is also an issue as to the timing of when the constellation of factors may have come together.

[299] Ms. Oswald acknowledged that no one had noted that Taha had any degree of yellowing or jaundice until she observed it at 21:00 on December 25. She acknowledged that, according to the records, Taha’s jaundice increased over the course of her shift.

[300] Ms. Oswald was clear that jaundice can be one of the signs of high bilirubin. According to Ms. Oswald, other signs could be fever, lethargy, decreased output, not peeing properly or enough, not stooling, not tolerating feeds, and possibly vomiting. In her view, jaundice is not the “alerting sign to hyperbilirubinemia” and there are many other signs that are much more indicative. In other words, jaundice without other symptoms would not alert her to high bilirubin.

[301] Ms. Oswald reiterated during her testimony that jaundice alone without the other signs and symptoms described above does not alert her to the potential for hyperbilirubinemia and that was why when she saw jaundice in Taha, but no lethargy, no vomiting and no increase in temperature, she was not concerned. In her view, Taha was “stable”.

[302] Ms. Oswald also reiterated several times during her testimony that “you’re not going to call the doctor on every little symptom that changes. You have to evaluate the whole situation before you, you know, go to the next level”.

[303] She also indicated that “when you’re dealing with some mild jaundice… you don’t alert the physicians”. She made it clear that she only reports “significant findings”. As she put it:

I’ve dealt with slight jaundice for 20 years working in the nursery. It would not have been appropriate to contact a physician to tell him there’s some slight jaundice unless there were other things that I needed to report to him that were significant and everything else was moving forward in a positive direction according to this charting.

[304] Further, according to Ms. Oswald, “slight jaundice is not something that’s concerning” because of “the commonality of it”.

[305] By 6:00 on December 26, Ms. Oswald had concluded that she should pass on to the day shift that Taha ought to have a bilirubin test in the morning because the jaundice had increased. She felt that ordering a blood test was not urgent, but would have been just routine and as a result, she would have told the nurse on the day shift [Ms. Rockburn] to pass on the jaundice information to the doctor to see if the doctor wanted to order a bilirubin. She confirmed that the only reason she changed her approach at 6:00 was her perceived increase in the extent of Taha’s jaundice notwithstanding that, as earlier noted, she agreed that a visual assessment of jaundice “can fool” people.

[306] The defendants phrase the question relevant to the standard of care issue as follows: Upon noticing a slight change in Taha’s colour at 21:00 on December 25 (described as scenario one by Mr. Clements) was Ms. Oswald required to page a resident to inform him of that fact?

[307] As noted previously, there is a contentious issue as to when the conversation described in the Agreed Statement of Facts took place between Mrs. Ghiassi and Ms. Oswald.

[308] As set out previously, Mrs. Ghiassi asked Ms. Oswald to turn on the lights so she could see Taha and Ms. Oswald did so. Mrs. Ghiassi noted Taha’s nose was yellow and he did not arouse from sleep, and Mrs. Ghiassi asked Ms. Oswald to have Taha’s blood tested in the morning noting she has experience with jaundice.

[309] Ms. Oswald’s colleague, who was caring for Mrs. Ghiassi, noted in her charting that Mrs. Ghiassi indicated to her that she had spoken to a nurse the night of December 25 informing her that Taha’s nose was yellow and asking the nurse to do a blood test in the morning.

[310] Mrs. Ghiassi indicated on her first discovery that her conversation with Ms. Oswald occurred when “it was night and dark”, she didn’t “exactly remember the time”, she thought it was “late evening”, “11 o’clock”, “maybe 10:00”. On her second discovery, she indicated it was “midnight. I don’t know 11:30 or 2:00 or 1:00. Just exactly I know midnight … could have been 11:00 and 1:00 o’clock up or down”.

[311] On cross-examination, Ms. Oswald was referred to her note at 21:00. She acknowledged that her note reflected data that she had obtained—that is that Taha had a nasal gastric (NG) tube in situ, that he was being fed by an NG tube, that she attempted a bottle feed because respirations were stable and that a small amount was taken without distress. She also acknowledged that her notation that “mum plans to nurse when able” was “other data” she had added to the note.

[312] It was put to Ms. Oswald that her note at 21:00 that “mum plans to nurse when able” was included because Mrs. Ghiassi had made that statement to her at that time. Ms. Oswald’s response was that “it could be”, but she didn’t know.

[313] It was also put to Ms. Oswald that it was “very likely” she had a conversation with Mrs. Ghiassi at the time she made her note, i.e. at 21:00, because her action plan reflected the encouragement of breastfeeding. Ms. Oswald responded that she “can’t say” and did not know.

[314] When it was further put to Ms. Oswald that Mrs. Ghiassi had been in to see Taha at 21:00 the previous evening and that it stood to reason that she went to see Taha at the same time on December 25, Ms. Oswald indicated again that it was possible but she did not know.

[315] Mr. Clements argued that the fact that Ms. Oswald wrote a note about the method of breastfeeding at 21:00 is not dispositive of the issue of the time of the visit, particularly when there was information in the records that Mrs. Ghiassi intended to breastfeed (that information was in the kardex and the paediatric nursing admission assessment).

[316] Mr. Clements suggested that the court should rely on “what can be made from” Mrs. Ghiassi’s evidence on her two examinations for discoveries—she suggested the earliest time of her visit was 22:00 on December 25 and the latest time was 2:00 on December 26. Mr. Clements asserted that the time of her visit should be found to be after 24:00, one of the times also suggested by Mrs. Ghiassi.

[317] Mr. Clements pointed to the fact that Taha was fed at midnight according to the Paediatric Graphic Record. As he reasoned, pursuant to the Agreed Statement of Facts, Taha was asleep when Mrs. Ghiassi visited so that her visit could not have been at 24:00 when Taha was being fed. Therefore, her visit was likely shortly after midnight, after Taha had been fed and had subsequently gone to sleep, with the result that her visit would be between 24:00 and probably 24:30 on December 26.

[318] However, I find the data entry by Ms. Oswald very significant. I find it reflects a conversation between Ms. Oswald and Mrs. Ghiassi as described in the Agreed Statement of Facts. I find that the conversation occurred at 21:00.

[319] Therefore, the standard of care question is that which is enunciated by the defendants in relation to what Mr. Clements referred to as scenario 2: if after speaking to Taha’s mother and noting Taha’s mother’s concerns about his condition, as well as noting the slight change in colour at 21:00, was Ms. Oswald required to page a resident? I note parenthetically, that Dr. Marrin testified, in response to a question which I will discuss in the analysis of the causation issue, that the more correct statement is to say that a child is jaundiced rather than slightly jaundiced because of the inaccuracy of a visual assessment. However, I agree that the standard of care question is whether Ms. Oswald was obliged to report her observation that Taha was pink and slightly yellow at 21:00 (which during her testimony she characterized as slightly jaundiced).

[320] Ms. O’Flaherty was of the opinion that Ms. Oswald provided Taha with appropriate, safe, and competent nursing care in accordance with nursing standards during her shift on December 25 and that “was demonstrated by the compliance with the policies developed by the London Health Sciences Program”.

[321] Ms. O’Flaherty acknowledged (and Ms. Rokash observed) that in the LHSC standards of nursing care there is no indication about what a nurse is to do in terms of communicating a new onset of jaundice after the first 12 hours of life. Absent such a direction she was asked what the standard of care required, and she responded as follows:

So that goes back to our basic registered nurse competencies as designated by… the College of Nurses of Ontario. We would continue to use our clinical thinking, assessment skills, and knowledge to continue to observe the baby and see how the baby is progressing.

[322] She reiterated on cross-examination that the LHSC standards only state the requirement that a nurse notify the physicians if jaundice is identified in the first 12 hours of life. After that point, because there was no actual direction in the standards, a nurse would be left to her critical thinking and assessment of the patient in terms of when to call a physician.

[323] I note here that in any event, I cannot find that the LHSC Standard of Nursing Care, which made reference to notifying a physician if a baby is jaundiced in the first 12 hours, is the applicable standard. That standard applies to “normal newborn care”. As I will elaborate below, Ms. Rokash observed that the circumstances relating to Taha were different and he was not a “normal newborn”. Similarly, on cross-examination, Ms. O’Flaherty acknowledged that the LHSC standard dealt with care of hospitalized newborn babies with no identified problems and a nurse would be left to her critical thinking and assessment of the patient in terms of when to call a physician.

[324] I also note that I do not accept Mr. Clements’ argument that “the AAP guideline represents the best expression of the collective thinking of the experts in the United States in managing hyperbilirubinemia, and the approach to management after 24 hours of age.” Indeed Mr. Clements went so far as to submit that in the absence of other standards the AAP guideline (that absent severe jaundice, continue to assess the baby every eight to twelve hours) is dispositive.

[325] I agree with Mr. Clements, as I will later reference again, that Dr. Warkentin indicated that in 2004 he would have reviewed the AAP guideline and therefore “the guideline is an American guideline but those physicians, working in this tertiary care centre in London were aware of this standard of reporting”. However, I find that the AAP guideline offers no assistance on the standard of care issue (or the causation issue) and it is certainly not dispositive of the standard of care issue.

[326] According to the algorithm in the AAP guideline, because Taha was 82 hours of age when his jaundice was observed, the question is whether his jaundice by visual assessment appeared severe enough to require the serum bilirubin test.

[327] This algorithm in the AAP guideline was put to Dr. Marrin on cross-examination. He was clear that there is a problem with this guideline because the visual assessment of the severity of the jaundice is sufficiently unreliable that such an approach is in fact being abandoned or has been abandoned. Importantly, according to Dr. Marrin, the algorithm has to be put in the context in which it was intended. It is applicable to an apparently healthy baby in a regular newborn nursery where the decision is unfolding about whether it is safe to discharge the child.

[328] Dr. Marrin emphasized that, in contrast, Taha was a baby in a level two nursery receiving cardio respiratory monitoring and oxygen saturation monitoring; who had just recovered from, or was in the process of recovering from, his lung disease; who was being treated for a presumed bacterial pneumonia in circumstances where no relevant obtainable history on the child had been obtained.

[329] Dr. Marrin reiterated on his cross-examination that the focus of the AAP guideline is an apparently well child who is born at 35 weeks’ or more gestation. Sick children have to be evaluated for their susceptibility factors and functional maturation or functional sophistication of their bilirubin handling physiology. He emphasized that one has to be very careful about taking this guideline and extrapolating it into an intensive care environment.

[330] I will return to the AAP guideline when I discuss the causation issue but I am satisfied that, in relation to the standard of care issue, it does not establish that Taha only needed to be assessed for jaundice every 8 to 12 hours.

[331] Ms. O’Flaherty was of the opinion that a reasonable nurse who noted a change in colour of a baby under her care in the ill infant nursery would “reasonably document the change and continue… her assessment of the infant throughout her ongoing shift”.

[332] Specifically, she was of the opinion that Ms. Oswald met the standard of care in making the decision to monitor Taha’s jaundice overnight instead of paging a resident immediately to report on Taha’s change of colour at 21:00 when she documented it.

[333] She explained that colour is just one clinical finding which has to “be integrated with critical thinking and decision making in terms of Ms. Oswald’s other patient specific assessments, including her assessment of Taha’s respiratory system, his nutritional status, his elimination, his ability to maintain his temperature, his overall temperature and tone, his elimination including urine and stool, and her evaluation of his level of alertness.” She emphasized that it was appropriate for Ms. Oswald to look “at the whole patient, not just at the colour”.

[334] Ms. O’Flaherty disagreed with Ms. Rokash’s opinion, discussed below, that jaundice is to be reported to a physician as and when it is observed.

[335] Ms. O’Flaherty indicated that such reporting was not the standard of care “because newborn jaundice, physiological jaundice was a very normal newborn clinical finding, the nurse would typically continue to monitor and assess the jaundice and… put it in the context of all of the baby’s other systems, his physiological systems in order to complete her assessment every three hours”.

[336] According to Ms. O’Flaherty, the standard of care permitted Ms. Oswald to continue to monitor a change in colour overnight because in Ms. O’Flaherty’s view, Taha “was stable in terms of his other systems”.

[337] She noted Taha’s temperature was reported as normal overnight on December 24 to December 25. His heart rate seemed to be very stable. There were periods of time during the evening when he was breathing a little bit fast and while, over the course of December 25, it remained elevated, it gradually started to come down to a more normal range by the evening of December 25.

[338] She noted it was not unusual for babies to not pass their first stool up until 48 hours and Taha was within “normal expectations for his first meconium”; at 18:00 on December 25 he was on room air and saturating normally; he remained on room air throughout the evening with good saturations; and his respiratory rate started to decrease and normalize to the point where he was changed into a cot, all of which were reassuring signs that he was improving from his time of delivery and transition period.

[339] During the assessment at 21:00 on December 25, his temperature was noted as normal; he remained in the cot; his heart rate was within normal range; his breathing had obviously improved, almost within normal range; his activity was noted as being asleep and awake, and rest and sleep were noted as good; mouth care and diaper care were done; he was voiding, another good sign; he was passing stool with every diaper change; and, he was tolerating increments in terms of formula or breast milk intake—that is, he was not vomiting.

[340] Throughout the night, his heart rate, respiratory rate, and temperature remained stable. He was having normal sleep and awake periods and he was voiding and passing stool every three hours. His weight was being maintained, which was also a good sign that he was well hydrated and stable on room air.

[341] Ms. O’Flaherty described Taha as a “stable infant going into his fourth day, doing well, there was a slight change in colour from slightly yellow to yellow but otherwise, overall stable and progressing—recovering from his initial transition and delivery experience”.

[342] The fact that he was on a course of antibiotics for seven days did not affect her opinion as to whether or not Taha was stable and improving.

[343] In terms of his neurological status his level of activity was documented as normal, meaning he would be having periods alternating between sleep and wakefulness. Ms. O’Flaherty testified that there was no evidence of lethargy based on the documentation.

[344] The fact that his respiratory system was starting to become more normalized, that he was able to coordinate sucking, breathing, and swallowing, and that he was maintaining his oxygenation were positive signs.

[345] Ms. O’Flaherty had no concern about the volume Taha was taking by mouth, and she testified that because the mother was planning on breastfeeding they would not “necessarily push oral feeding”. She had no concern as a nurse with the fact that at the second bottle feeding Taha took less. In her opinion, Taha was taking amounts within normal limits. The fact that he had spit up a mouth full was considered within normal limits as well.

[346] She considered Taha’s bruising (first noted by Ms. Davidson Martin) very insignificant, and she was not terribly concerned that the bruising had not resolved by December 25. She indicated that it would be monitored and documented, as was done.

[347] She felt it was reasonable for Ms. Oswald to consider whether or not there were any signs of fever, lethargy, or decreased output and “whether Taha was not peeing properly, not peeing enough, not stooling, not tolerating feeds, or possibly vomiting” in considering whether he might be experiencing a rise in his bilirubin level. She indicated there was no evidence of those factors.

[348] Ms. O’Flaherty also testified that if Ms. Oswald was given the family history of Taha’s siblings’ experience with jaundice and Mrs. Ghiassi’s concerns with Taha not rousing from sleep, Ms. Oswald was still not required to page a resident overnight to report the colour change in Taha’s skin. Rather “her duty was to continue to assess the baby, use her critical thinking and observations to note if there were any other further changes overnight, communicate that with the day staff and Taha’s mother’s request about getting a bilirubin done prior to discharge”.

[349] Ms. O’Flaherty reiterated during her examination-in-chief that “in light of all the other systems improving, a slight colour change, is part of the normal physiological, evolution or development of jaundice in the newborn over the course of the first week of life” and it was within the standard of care for Ms. Oswald to pass on the information about the colour change to the nurse coming on shift so that that nurse could deal with it, with the team during the next day.

[350] As Mr. Clements put it during argument, Ms. O’Flaherty’s opinion was that it was reasonable for Ms. Oswald to note the slight change in the degree of Taha’s colour in light of it being the fourth day of life and his improving clinical status and to communicate this observation to the nurse at handover for that nurse to make a plan of care to have the bilirubin test done with Taha’s morning care.

[351] Mr. Clements described this standard of care as a standard of assessment and monitoring, with a plan to pass on the information to physicians in a timely manner for them to implement the plan of care at their morning rounds.

[352] Mr. Clements characterized Ms. O’Flaherty’s opinion as putting the need for a bilirubin test into the clinical context: Taha was 82 hours old, (the normal time for onset of physiological jaundice), he was clinically improving, he had been weaned off oxygen and was maintaining his oxygen saturation on room air, he had been transferred from the isolette to a cot and he was able to maintain his temperature. His respiration rate had settled down to the normal range, he was able to take some milk by mouth and therefore could coordinate breathing, sucking and swallowing for the first time, he was well hydrated from his IV, was peeing and stooling appropriately, had normal tone and a good pattern of being asleep and awake.

[353] Mr. Clements argued that in the “whole baby” context, I should accept Ms. O’Flaherty’s standard of care, to continue to monitor and assess Taha overnight and advise the day team at handover. As he put it, there was nothing medically concerning about Taha overnight which should have prompted a call to a physician.

[354] In contrast to Ms. O’Flaherty’s opinion, Ms. Rokash was clear that Ms. Oswald did not meet the required standard of care when she observed Taha’s jaundice and did not call a physician at 21:00.

[355] Ms. Rokash was also clear that if the information from Mrs. Ghiassi was given to Ms. Oswald when the jaundice was first noted (as I have found) based on Taha’s age and the other risk factors, the new condition of yellow skin coupled with a concerned mother, who had experience with jaundice, were very significant factors that needed to be reported to the doctor in a phone call.

[356] Ms. Rokash was referred to Ms. Oswald’s testimony on her examination for discovery read into the record before Ms. Rokash testified (and thereafter confirmed by Ms. Oswald) that Ms. Oswald needed something more than yellowing before she called the doctor. Ms. Rokash indicated that what Ms. Oswald was waiting for were later symptoms of bilirubin toxicity.

[357] Ms. Rokash was clear that Ms. Oswald’s standard of not reporting in the absence of the other signs she referred to on her examination for discovery (which she reiterated in her evidence at trial as outlined above) did not meet the standard of care. As Ms. Rokash put it there is no standard to wait and pass on the information to the nurse on the next shift. Jaundice is to be reported as and when “it shows up”.

[358] Ms. Rokash indicated that the primary nursing goal is “to get to” jaundice early.

[359] She indicated that “a large goal” of caring for neonates is to recognize their vulnerability and to watch for subtle changes in physical presentation.

[360] She noted that when there is a higher risk of hyperbilirubinemia for a particular baby, a higher level of watch is required and there is less tolerance to wait and more obligation to report as early as possible.

[361] Ms. Rokash noted that once an infant is yellow, a nurse is to take the infant’s history. She should take a mother’s concerns seriously and gather history as to what occurred in relation to prior children.

[362] According to Ms. Rokash, Ms. Oswald was required to take into account the significant risk arising from the experience of Taha’s siblings which Ms. Oswald was informed of during her conversation with Mrs. Ghiassi.

[363] She disagreed that an experienced nurse could rely on her experience and watch and wait, because as Ms. Rokash put it, the physical inspection is inaccurate and does not provide an accurate reflection of bilirubin in the blood.

[364] As Ms. Rokash put it, a nurse can determine the extent of the yellow colourization but she cannot determine the level of bilirubin or the severity of the jaundice. In addition, with a high-risk infant with dark skin, the colour is an even more unreliable indicator of severity.

[365] On cross-examination Ms. Rokash reiterated her position that the standard of care required reporting to a physician as and when jaundice “shows up” and speed is of the essence.

[366] Ms. Rokash was referred to the medical records which indicate that on December 24 at 9:15 Taha was starting to pass meconium and that Dr. Sangha had noted on December 25 at 15:40 that Taha looked well, his colour was good on exam, he was “clinically improving”, he should be weaned off oxygen and that Taha was not dehydrated because he was on IV.

[367] She was also referred to the fact that December 25 at 21:00 Taha did not have a fever, his respiratory rate was down, and that he had an increased rate of breathing.

[368] In addition, she was referred to the fact that Dr. Sangha’s report on the morning of December 26 was that Taha did well overnight, he was off oxygen, he looked well, was comfortable, had spontaneous movement and good tone, but he looked jaundiced and his bilirubin was 423.

[369] Ms. Rokash acknowledged that the note that his rest and sleep were good meant that Taha was not lethargic. However, she noted that this was not consistent with Mrs. Ghiassi’s observations.

[370] Ms. Rokash acknowledged that, in reference to the factors Ms. Oswald referred to on her examination for discovery, Taha had no fever, he was voiding and stooling, and he was tolerating feeds and accepting feeds in small amounts in a different modality, although he did spit up a small amount. However, she would not agree that Taha was not lethargic particularly considering what Mrs. Ghiassi reported.

[371] Again, Ms. Rokash reiterated that the assessment of the skin colour revealed an abnormal finding, which together with the maternal concerns and the risk factors, mandated a report by Ms. Oswald to the physician.

[372] Ms. Rokash was asked why the maternal concerns and risk factors mattered if she was advocating that Ms. Oswald should have reported to the doctor as soon as Ms. Oswald noted Taha’s colour had changed. Ms. Rokash indicated that such information heightens the information the nurse has for the doctor and obtaining that information is part of making a full assessment before calling the doctor.

[373] According to Ms. Rokash, in order to meet the 2005 standard of care for Taha, Ms. Oswald was required to perform a full assessment, speak to Taha’s mother, identify and assess risk factors, report to the doctor, and request that a bilirubin test be done.

[374] Ms. Rokash was challenged on cross-examination that her clinical experience, her obstetrical practice guidelines, and the community program she was part of developing were being imposed into a nursery. As Mr. Clements put to her, life and death emergencies simply aren’t present in the nursery.

[375] During argument, Mr. Clements contended that with respect to monitoring and assessing jaundice, Ms. Rokash possibly unconsciously transposed the urgency from her emergency experiences onto the monitoring of a clinically improving baby in the nursery. As he put it, “that urgency where minutes matter is not expressed in the literature with respect to the monitoring of jaundice”.

[376] I do not accept Mr. Clements’ contention and find that Ms. Rokash responded appropriately to Mr. Clements’ challenge. She explained that the circumstances Ms. Oswald described at 21:00 were not an emergency and did not require a “stat” order. However, she was advocating that Ms. Oswald’s findings needed to be reported. While her findings did not create a stat/emergency, “you do not leave it for half a day”. I note here that I do not find this response a change in or a diminution of Ms. Rokash’s standard of care which she reiterated on re-examination and which can be described as follows: it is expected nursing knowledge that bilirubin has potential devastating outcomes and as a result the standard of practice requires that a physician be notified when a baby is yellow.

[377] Mr. Clements also asserted that the standard advocated by Ms. Rokash removes from the bedside nurse the exercise of clinical judgment. He emphasized that there was no published guideline that required a nurse to report jaundice immediately outside the first 12 hours pursuant to the LHSC standard of care policy and outside the first 24 hours pursuant to the AAP guideline. However, he also asserted that because Mr. Rokash opined that when jaundice is observed a nurse should undertake a full assessment and obtain information, including a history, before calling the doctor, Ms. Rokash recognized that reporting the appearance of jaundice to a physician involves an exercise of clinical judgment. I will return to his argument relating to the exercise of clinical judgment later.

[378] In assessing the competing opinions of Ms. O’Flaherty and Ms. Rokash, I also note that Mr. Clements challenged Ms. Rokash’s objectivity, reliability, and qualifications. Mr. Clements argued that Ms. O’Flaherty’s opinion should be preferred on the basis that she was a highly experienced nurse dealing with jaundice in the neonatal setting at a hospital similar to LHSC and her opinion on the standard of care should be preferred over the standard of care prescribed by Ms. Rokash, who he described as “the professional expert witness who did not have direct experience in the relevant clinical setting” and who “provided well-baby care to babies with their mothers and saw babies in outpatient settings in the OBGYNs office, but has never worked in an ill infant nursery”.

[379] However, I am satisfied that Ms. Rokash does not have “a plaintiff’s orientation” that raised an issue with respect to the reliability of her evidence; that she had education and experience in the subject matter of her evidence; her experience was not limited to well-baby care; and, it was significant that the assessment and reporting of jaundice had not changed since 1978.

[380] Ultimately, I accept the opinion of Ms. Rokash over the opinion of Ms. O’Flaherty for a number of reasons.

[381] Firstly, in assessing the opinion of Ms. O’Flaherty and Ms. Rokash, I find that there were certain aspects of Ms. O’Flaherty’s evidence that raised a question of objectivity.

[382] On cross-examination, Ms. O’Flaherty acknowledged that Mrs. Ghiassi’s observation about Taha not rousing was a very important observation and it was a first display of jaundice pointed out by an experienced mother. It was then put to her that Ms. Oswald should have noted things that would point in the direction of the baby being vigorous. Ms. O’Flaherty responded that “she’s assessed him as normal, so, active and alert”. Ms. O’Flaherty was then referred back to the Paediatric Graphic Record where Ms. Oswald had noted “A” and had to acknowledge that “A” was an indication that Taha was awake. It did not indicate he was active.

[383] In addition, in discussing the amount of nutrition Taha was consuming by bottle, Ms. O’Flaherty testified that Ms. Oswald was right to assume his feeding was normal and Taha knew when to stop. Ms. O’Flaherty suggested that his stomach was full. However, Ms. O’Flaherty had to acknowledge that according to the fluid intake information in the chart, Taha took a total of 38 fluid ounces and 28 of those were not from the bottle. She then had to acknowledge that Taha apparently was not full and the following exchange took place:

Q. But in this particular situation you basically made up an explanation for this child pulling off the bottle at 10CCs being that he was full, agreed?

A. Correct.

[384] In addition, the records indicate that bruising which was first observed December 22 at 14:00 continued to be seen three days later on December 25 at 21:00, and bruising, Ms. Oswald acknowledged, was another risk factor for bilirubin to be absorbed into the body.

[385] During her testimony Ms. O’Flaherty was referred to the bruising documented by Ms. Davidson Martin as a small bruise. It was pointed out to Ms. O’Flaherty that what Ms. Davidson Martin had recorded was a “bruise noted on right upper thigh and lower leg, small red marks noted on right upper arm and right lower leg”. In other words, Ms. Davidson Martin had not described the bruise as small.

[386] It was suggested to Ms. O’Flaherty that she chose to minimize the size of the bruise and its importance by qualifying it as small. Ms. O’Flaherty indicated that the bruising covered a small area according to the diagram. However, when it was again put to her that Ms. Davidson-Martin did not qualify the bruising as small but Ms. O’Flaherty had, Ms. O’Flaherty replied “she didn’t quantify it, that’s right”.

[387] Further, Ms. Oswald acknowledged that, while she documented on the Paediatric Graphic Record at 21:00 the change in colour, she had only placed an arrow on the Paediatric Assessment and Intervention Flowsheet and that was not accurate. She further acknowledged that if she had noted the change in colour on the flowsheet (which would have been accurate) she would have had to also include an asterisk and make a note about what she had observed.

[388] Ms. O’Flaherty’s reaction to this omission is set out in the following exchange with Ms. Legate on cross examination:

Q. Now, we know that Nurse Rossi [Ms. Oswald had changed her name to Rossi by the time she testified] or Oswald testified that she failed to note Taha’s change in colour on this Paediatric Assessment and Intervention Flowsheet when she first noticed it. And she agreed that what she ought to have done was not put an arrow in integumentary at 21:00 hours on December 25, but ought to have noted the change and you’d agree with that?

[Ms. O’Flaherty asks for and is referred to the flow sheet which she reviewed.]

Q. Okay. And that the integumentary parameters are that the child’s colour is within normal limits for his ethnic background?

A. Correct.

Q. And that jaundice is not within normal limits for one’s ethnic background.

A. Jaundice is a normal newborn feature in all newborns.

Q. So you’re saying that jaundice is not documentable on this document, because it doesn’t—it isn’t a colour change and it’s within normal limits?

A. The assessment of the baby—the patient’s colour needs to be documented.

Q. Ms. Rossi told us on Thursday of last week that she understood this document to require her to note a colour change outside normal limits and that that would include jaundice. That surprises you?

A. It does. Um, the progression of the baby’s slightly more yellow isn’t a real significant finding.

Q. It’s not significant?

A. No.

Q. Well that kind of surprises me… you called, in your first report, the identification of jaundice, as a fundamentally important clinical sign. Do you remember that?

A. She did document it on the vital signs, the Paediatric Graphic Record.

Q. You just told the court that this wasn’t an important finding. It wasn’t a significant finding?

A. Correct.

Q. Yet in your report you say ‘it remains a fundamentally important clinical sign’.

A. A fundamental clinical sign. It does have its limitations because of the unreliability of noting the degree of colour change.

Q. But you have said and I’m going to quote “Although this remains a fundamentally important clinical sign”, those are your words.

A. I see that, thank you.

Q. Yes and a fundamentally important clinical sign, one would think would translate into a significant finding on a focus assessment form—a focus charting form, agreed?

A. She’s charted the change in the graphic sheet.

Q. However she hasn’t charted it in the Paediatric Assessment and Intervention Flow Sheet has she?

A. Correct. Correct.

Q. And we’ve agreed already that if she is going to exercise critical thinking at the time that she notes the jaundice that the place for her to document that would be where she has the data, the action and the responsiveness, agreed?

A. Yes.

Q. And in fact you may have forgotten this ma’am but that’s exactly part of what she did at 6:00 in the morning where she says ‘data, colour pink/jaundiced’. She actually documented it down there when it turned into jaundice from slightly jaundiced?

A. Correct.

Q. Okay, but what we don’t have is at 21:00 hours any evidence of what her critical thinking was at that time?

A. Not as it’s written, no.

Q. No. And in order for her to comply with the requirements of her College, she would have to document her critical thinking related to her decision to withhold information from a physician about a fundamentally important clinical sign, agreed?

A. Agreed.

Q. The other thing that we don’t know at 21:00 hours… what her intervention was, what she intended to happen at that point in time, because she didn’t write that down either, did she?

A. It isn’t written. It’s implied in the standard of care to provide ongoing continued assessments and evaluations with her patient’s care.

Q. So she’s doing the normal thing if she fills out the chart? If every three hours she dutifully goes to the Paediatric Graphic Record and fills it out, then she meets the standard as far as you’re concerned?

A. She has to have performed the assessment.

Q. For sure. But that’s what she needs to do to meet the standard as far as you’re concerned?

A. Yes.

Q. All right. So, she doesn’t have to document the data? She doesn’t have to document what her action or future action would be and she doesn’t have to document the responsiveness of the child to that?

A. I don’t agree with that, so.

Q. No, because she should and she ought to, agreed?

A. Yes.

Q. Okay.

A. But she has documented the data.

Q. In the Paediatric Graphic Record?

A. Correct.

Q. We’re talking about critical thinking now and that’s where we were, that is on the Paediatric Assessment and Intervention Flow Sheet.

A. It’s another part of the chart, yes. I appreciate that.

Q. And we’ve already agreed and please don’t make me go through this again, but we’ve already agreed that that’s where she has the opportunity to document her critical thinking?

A. Yes.

Q. Okay. Now, while we’re talking about this, it would also be here in this Paediatric Assessment and Intervention Flow Sheet where she would have the opportunity to document, as required by the College, information from—relevant information she may have received from mother, agreed?

A. Correct. Correct.

[389] The above passage reveals that Ms. O’Flaherty was prepared to excuse an omission from Ms. Oswald’s charting even though Ms. Oswald herself acknowledged the omission. Significantly, when excusing Ms. Oswald’s omission, Ms. O’Flaherty at first minimized the characterization of the finding from what she noted in her report and then eventually agreed that Ms. Oswald’s charting was deficient.

[390] I note also that, while the evidence established that physiological jaundice is common in newborns, at one point during her cross-examination Ms. O’Flaherty indicated all babies experience jaundice. It seemed to me Ms. O’Flaherty was exaggerating the commonality of jaundice in her defence of Ms. Oswald’s care, which in and of itself was inconsistent with the position in her first report that the identification of jaundice is a fundamentally important clinical sign.

[391] Secondly, the weight I should give Ms. O’Flaherty’s opinion was diminished on her cross-examination. She acknowledged on cross-examination that Ms. Oswald did not document relevant information as required by the College of Nurses and she “was wrong” in not considering relevant information:

Q. And mother gave this nurse relevant information about her experience with jaundice in her two other children, agreed?

A. That’s my understanding.

Q. Yes. And again, that wasn’t documented as required by the College?

A. It was documented by another nurse.

Q. Was it documented by Nurse Oswald who was caring for the child?

A. No it was documented by the nurse caring for the mother.

Q. Right.

A. Right.

Q. So the nurse caring for the child received relevant information about the child, agreed?

A. Agreed.

Q. Yes. Because we could go to several standards, including the Canadian Paediatric Society standards, but we could go to several standards that identify that jaundice in a sibling that required phototherapy was a highly significant risk factor for the development of hyperbilirubinemia in the child before you?

A. That’s what the literature is quoting, yes.

Q. Yes. And again, if the nurse was going to use critical thinking to withhold that information from a physician when she sees jaundice in the child, we would expect her to have documented that particular critical thinking?

A. Correct.

Q. Right. And what we know, however from Nurse Rossi – Oswald, is that she didn’t consider the mother’s information about the other siblings as relevant. Would you agree that Nurse Rossi was wrong about that?

A. Yes.

[392] Ms. O’Flaherty also agreed on cross-examination that reporting jaundice only when a nurse sees a deterioration in an infant is not the standard of care. She acknowledged that a delay in reporting of jaundice until a nurse sees a deterioration in a child’s condition does not meet the College of Nurses standard of obtaining the best possible outcome with no unnecessary exposure to risk of harm to the patient. [I note parenthetically that Mr. Clements argued based on jurisprudence he referenced from the College of Nurses that when a nurse continues to monitor a child overnight, that does not place the child at risk of harm because risk of harm is not the same as risk of deterioration. However, that preposition is not consistent with Ms. O’Flaherty’s acknowledgment.]

[393] Ms. O’Flaherty also acknowledged that if the patient specific outcome promoted in the LHSC standard – that a newborn “not exhibit signs and symptoms of neonatal jaundice” - was interpreted consistent with the College of Nurses standard that there be no unnecessary risk of harm, then when a nurse sees jaundice “it needs to be reported” and “the information would need to be passed on and reported”.

[394] In addition, Ms. O’Flaherty acknowledged that Ms. Oswald’s inaction created a potential risk for Taha that his bilirubin would rise overnight and there is no documentation by Ms. Oswald of any documented plan for Taha’s care.

Q. And that you would agree that it is not within the scope of practice for a nurse to diagnose or come up with a differential diagnosis that would favour either pathologic or physiologic jaundice?

A. Correct.

Q. And that in deciding to withhold the information from a physician about Taha’s appearance of jaundice, you’d agree with me that unlike Nurse Weatherall, Ms. Rossi [Ms. Oswald] made a choice that created risk for Taha as opposed to eliminating risk by having a bilirubin test ordered?

A. Her decision was to wait until the morning and continue to evaluate the baby overnight.

Q. Apparently, but that created a risk that the bilirubin level would rise overnight, agreed?

A. Potential.

Q. Yes, she created that risk. And you’d agree with me that her ability to eliminate that risk required absolutely minimal, if not trivial effort on her part?

A. Yes.

Q. And if a nurse is [to] err on the side of caution in respect of her highly vulnerable patient, that’s where she should go isn’t it? That’s the standard she should adopt?

A. Correct.

Q. And we have to agree ma’am that there was complete absence of any kind of critical thinking employed by this nurse, because if we look at her statement [in the] Paediatric Intervention and Assessment Flowsheet, what she documented at six a.m. was ‘colour pink/jaundiced, Mongolian spot on sacral area, buttock reddened, action cream PRN. What was the cream directed towards?

A. The reddened in the dermatitis or the diaper care area.

Q. Right. So she had absolutely no documented plan then or in future for dealing with this child’s now jaundiced appearance?

A. Nothing is documented.

[395] Thirdly, Ms. O’Flaherty testified about the requirement of “continual dialogue” between nurses and physicians. However, it seemed to me that her response with respect to concerns arising overnight was inadequate.

[396] The following question was put to her:

Q. So, you don’t have to call at the first sign of jaundice and you do have to call before the baby starts to deteriorate and there’s someplace in between there where the nurse would call the doctor?

And she responded:

A. There’s continual dialogue and assessment between the healthcare team so the nurses are always in speaking with the physicians when they’re in the presence of the unit on patient rounds…. If there are concerns from overnight they’re expressed to the physicians in the morning.

[397] I note that on re-examination Ms. O’Flaherty indicated that monitoring the infant overnight and then reporting the jaundice to the physician the next morning met the standard of care required by the College of Nurses because “it maintains constant observation and management of the patient and assessment overnight”. Her opinion was that documenting the jaundice overnight and reporting it to the nurse coming on the day shift so a bilirubin test could be done in the morning met the standard of care in 2005.

[398] However, that explanation from Ms. O’Flaherty suggests that a bilirubin test need not be done more promptly than the next morning if jaundice is observed overnight, which, as I will discuss more fully below, is inconsistent with Dr. Marrin’s evidence that if a child is jaundiced “you want to get the [bilirubin] level reasonably expeditiously”.

[399] Fourthly, Ms. Rokash’s opinion was consistent with the practice of Ms. Davidson Martin and importantly, with the practice of Ms. Weatherall, who, as the defendants acknowledged, was a highly credible witness with no stake in the outcome of this case. Ms. Rokash’s opinion was also consistent with Ms. Rockburn’s actions.

[400] Ms. Davidson Martin indicated that although the LHSC nursing standard stated at para. 8.7 that the physician is to be notified if a baby is jaundiced in the first 12 hours, she was clear she would notify the physician at the first sign of jaundice regardless of when her observation was made. While the defendants emphasize that Ms. Davidson Martin cared for Taha in the PCCU, I do not find that fact diminishes the significance of her evidence. As set out earlier, Ms. Szuscko-Bedard’s evidence was that the nurses in both the PCCU and the CTU are expected to know that jaundice can indicate excess bilirubin levels in the blood which are potentially significantly harmful to the baby.

[401] Ms. Weatherall indicated that when symptoms of jaundice are noted for the first time, physicians are to be notified so that they will have “a heads up”. If the jaundice was noticed during the morning care then she would inform the physician during the morning rounds. If the symptoms were noted during the night, she would page the physician. [I note that in argument Mr. Clements suggested that Ms. Weatherall’s evidence was that she “might” page a doctor at night however, a transcript of her evidence confirms that she testified that “if it was night time then I would page them to let them know”.]

[402] I note that Ms. Weatherall also indicated that her practice reflected her understanding of what LHSC expected the nurses to do.

[403] I further note that Ms. Weatherall provided care in this manner even though it was “fairly common” to find symptoms of jaundice in the babies in the CTU and “probably half” of the babies in the CTU developed jaundice. In other words, unlike Ms. Oswald, the “commonality” of jaundice, to use Ms. Oswald’s words, did not diminish Ms. Weatherall’s concern when she observed jaundice.

[404] As Ms. Weatherall explained, when jaundice is observed, physicians would want to test for the bilirubin level and physicians had the authority to order the bilirubin test, not the nurses.

[405] As Ms. Weatherall emphasized, nurses did not have the authority to make a judgment call as to whether jaundice would resolve on its own.

[406] Ms. Weatherall was very clear that a change in colour makes a difference to her and a change in colour would indicate that doctors need to be notified.

[407] Ms. Weatherall recognized jaundice as a sign to look out for to see if the baby is developing hyperbilirubinemia. She acknowledged that the two are not synonymous terms and that jaundice is a sign of hyperbilirubinemia.

[408] She acknowledged on cross-examination that there are other signs that she looks for including lethargy, reduced output, no stooling, and not tolerating feeds well. However, she reiterated that her personal practice is that if she saw a change in colour she would let the doctor know. She was clear that if nurses saw changes in a child, it is an expectation “to let doctor’s know”.

[409] She was asked what it is about colour that prompts her to call a physician and she responded that for her, colour goes hand in hand with hyperbilirubinemia. As she put it, her educated guess from all of her years is that when you see jaundice, bilirubin may be elevated. She acknowledged you cannot predict numbers from colour but she was very clear in her position that, after noticing jaundice for the first time in a baby in the CTU, she would want to give the doctors a “heads up”.

[410] I do not accept the defendants’ argument that Ms. Weatherall misunderstood the difference between jaundice and hyperbilirubinemia and cannot infer, as they submitted, “that Ms. Weatherall would report yellowing when the yellowing was observed in the context of other symptoms to raise her level of concern, that it’s the concern of any nurse which prompts the report to a physician, it’s not simply colour”.

[411] I also do not accept the defendants’ argument that because Ms. Weatherall only charted Taha’s trial of breathing on room air and did not call a resident, her actions were inconsistent with her practice of reporting jaundice. The defendants speculated that as a matter of common sense a doctor would want to know that a baby hospitalized for breathing difficulties failed to transition to room air the first time that transition was tried. There is no evidence to support a finding that Ms. Weatherall did not appropriately respond to Taha’s first attempt on room air and thus no basis to find any inconsistency in her nursing practice.

[412] I note also that Ms. Rokash’s opinion respecting the significance of an observation of jaundice, distinct from Ms. Oswald’s view of the commonality of jaundice, is also consistent with Ms. Rockburn’s actions.

[413] Ms. Rockburn was not called as a witness. Mr. Clements submitted that Ms. Rockburn was relied on by the plaintiffs, because she was an experienced nurse, was familiar with the way the team was going to operate, and would have understood that more likely than not she would have been ordered to have the bilirubin tested in the morning.

[414] Mr. Clements asserted that Ms. Rockburn “jumped the gun” in drawing the blood at 8:45, knowing that inevitably the physician would order the bilirubin test.

[415] I put to Mr. Clements during argument that his assertion was one way of considering the circumstances but another way to look at the situation was that Ms. Rockburn was so alarmed at what she observed that she proceeded to order the bilirubin test on her own.

[416] In response to that query, Mr. Clements indicated that Ms. Rockburn observed that Taha vomited at 9:00 on December 26 when she fed him, which Mr. Clements described as a “change of presentation” at that time.

[417] However, Ms. Rockburn drew blood from Taha, at 8:45, therefore, prior to the 9:00 feeding.

[418] Although Mr. Clements suggested that there was a new degree of jaundice observed by Ms. Rockburn, and in accordance with the AAP guideline the jaundice appeared severe enough to require a bilirubin test, there was nothing documented at 9:00 by Ms. Rockburn other than “P/Y” (which stands for pink/yellow). On the Paediatric Assessment Intervention Flowsheet; she used an arrow rather than noting a change with an asterisk at 9:00.

[419] Therefore, I cannot find, as Mr. Clements asserted, that Ms. Rockburn observed a clinical change in Taha’s condition at 9:00 either in relation to Taha vomiting or in relation to his colour which prompted her to order the bilirubin test at 8:45.

[420] I infer that Ms. Rockburn ordered the bilirubin test based on the information reported by Ms. Oswald as earlier outlined, as well as her finding that he was pink/yellow at 9:00 as she noted. In other words, Ms. Rockburn’s reaction to Ms. Oswald’s report of her observations and Ms. Rockburn’s observation of Taha being pink/yellow prompted her to draw blood and order a bilirubin test without a doctor’s order.

[421] Fifthly, Ms. Rokash’s opinion (consistent with Ms. Weatherall’s and Ms. Davidson Martin’s practices) meets the expectations of the physicians at LHSC.

[422] Dr. Warkentin indicated that nurses bring to his attention any concerns they have.

[423] Dr. Kornecki stated that as a physician with primary care responsibilities, if a child in his care started to exhibit signs of jaundice, he would expect to be advised by the nurse or the resident who made that observation. He would want to be advised if there were any signs of jaundice so that he could determine if orders needed to be given.

[424] Similarly, Dr. Sangha indicated that he expected that a nurse who noted a change in colour and, in particular jaundice, would verbally relate that information to the resident or the attending physician in addition to writing it down in the chart. As he indicated, the physicians responsible for the baby would want to have that information as soon as it was available so that appropriate treatment could be implemented.

[425] Sixthly, Ms. O’Flaherty made a number of admissions on cross-examination in relation to the above evidence from the physicians and nurses at LHSC which diminish her standard of care opinion:

Q. But we also have some evidence that has been read into the record and if it is the case that the evidence from the physicians read into the record, those are the London Health Sciences Centre physicians, that have been read into the record, also want to know about jaundice at its first appearance, you’d agree that that’s very consistent with viewing it as a fundamentally important clinical sign?

A. Correct.

Q. Okay. And that you’d agree that a nurse should not withhold information from a physician of a fundamentally important clinical sign?

A. That’s correct.

Q. Okay. And you would say that a delay in reporting of jaundice until a nurse sees a deterioration in a child’s condition does not meet the College of Nurses of Ontario standard of obtaining the best possible outcome with no unnecessary exposure to the risk of harm to the patient? [Ms. O’Flaherty acknowledged on cross-examination that one of the authorities she referenced was this professional standard and as a result, “all actions by nurses and standards that they adopt have to be filtered through that goal of professional practice that the patient should not be exposed to unnecessary risk of harm”.]

A. Correct.

Q. You agree?

A. Correct.

Q. Thank you. And you’d agree that the standard adopted by Ms. Davidson Martin that I just read out to you is one that is risk free to the patient developing hyperbilirubinemia, at least as far as the steps the nurse can take is concerned.

A. I agree.

Q. And that similarly Ms. Weatherall’s standard of always telling the doctor about jaundice, was similarly a risk-free standard?

A. Yes.

Q. And that their standards meet the requirements of the College of Nurses of Ontario of obtaining the best possible outcome with no unnecessary exposure to the risk of harm, agreed?

A. Agreed.

Q. And [Ms. Rockburn] did [a bilirubin test] without a doctor’s order?

A. Correct. She felt…

Q. And if we accept what you have told us and what Dr. Sangha has told us about the condition of this child she went ahead and did that without a deterioration in the child’s condition? [which, as set out above, I found were the circumstances Ms. Rockburn faced—that is she saw no evidence of deterioration at 9:00 a.m.]

A. Yes.

Q. And that her strategy then was similar to that of Ms. Weatherall and Ms. Davidson Martin and that was to not wait for the deterioration in the child before ensuring that a bilirubin test was conducted?

A. That’s what’s documented, yes.

Q. And you’d agree with that?

A. Yes.

[426] Ms. Rokash’s opinion on the required standard of care meets the requirements of the College of Nurses. As Mr. Clements noted, a nurse who acts in accordance with a recognized and respected practice will not be found negligent because as he put it, it is “some evidence of the standard of care” like hospital policies and protocols.

[427] I note however that I agree with Mr. Clements’ submission in argument that it is the expert witnesses who resolve the standard of care issue in this case and I must rely on the evidence of the expert witnesses who articulated the standard of care. In other words, to again refer to Mr. Clements’ argument, the professional practice standard does not establish the standard of care in the civil litigation context.

[428] Seventhly, Ms. Oswald’s and Ms. O’Flaherty’s opinion respecting Ms. Oswald’s care of Taha was based on their view that Taha was “improving”. As Ms. Oswald said

This infant according to my documentation was improving… with the colouring it’s not so significant. I’m looking at the fact this baby is—temperature’s normal. The breathing is normal. He’s off of oxygen. He’s hydrating, meaning he’s voiding and stooling. He’s doing some feeding and tolerating feeds… and he’s alert.

[429] Similarly, Ms. O’Flaherty emphasized that “a slight colour change” was “part of the normal physiological evolution on development of jaundice in the newborn”, “in light of all the other systems improving”.

[430] On the other hand, Ms. Rokash’s characterization of Taha’s condition was less positive and in my view, was more accurate. She acknowledged that Taha’s condition stabilized within 24 hours after delivery to the point that he could be transferred from the PCU to the CTU. Other positive findings were put to her on cross-examination as earlier outlined. However, as she put it, while Taha was making steady clinical gains, he was not out of the woods yet. He was not stable. As she noted, he had recently come off oxygen, he had been recently indrawn, his respiration was rapid, he was not feeding on his own and required a nasal gastric tube, he was on antibiotics, and he was on an IV.

[431] Ms. Rokash repeatedly emphasized that Taha was not a well-baby and the potential worst case scenario is devastating.

[432] Ms. Rokash’s characterization of Taha’s condition is consistent with Dr. Marrin’s assessment. I place considerable weight on Dr. Marrin’s assessment of Taha’s medical condition. He was most qualified to make such an assessment. Further, his assessments reflect what is in the medical records. Taha was improving but he was obviously not a well-baby as evidenced by the very fact he remained in the CTU—he was an ill baby; he was not able to be discharged and not even well enough to stay with his mother.

[433] As Dr. Marrin pointed out, Taha experienced respiratory distress; he was tachypnic; had a rapid respiratory rate; and was indrawing; he shouldn’t have required oxygen, so there was some issue with the way his lungs were functioning, which resulted in him requiring supplemental oxygen; he could not safely feed by mouth and was being fed through a gastric tube; and he was receiving antibiotics. Dr. Marrin was clear that each of these points “speaks to” a baby who was not a healthy transitioning newborn.

[434] Dr. Marrin indicated that the CTU progress note for Taha at 12:30 on December 24 reveals that his lung difficulty still had not recovered—he was still breathing too rapidly to allow him to safely feed orally at that point.

[435] Dr. Marrin commented that the longer the respiratory difficulty persists, the more physicians have to consider things other than transient tachypnea as the underlying cause, and it appeared that Taha’s doctors shifted their thinking to a diagnosis of pneumonia and they elected to continue the antibiotics for seven days.

[436] Dr. Marrin noted there was an observation on December 25 at 15:40 of something on the x-ray that was in the right lower lobe of the lung and while Taha’s average respiratory rate was starting to shift downwards toward a more normal range, Taha’s lung function was still not normal at this point.

[437] Dr. Marrin acknowledged on cross-examination that the impression that the physicians gave to the nursing staff was that Taha was “improving” and the word “improving” was, in fact, in the physician’s progress notes as I earlier outlined. However, according to Dr. Marrin the total clinical picture on December 25 at 15:40 was that Taha was “clearly not well and he’s taking a rather long time to improve given the initial working diagnosis”. I note parenthetically that, as set out above, Dr. Sangha indicated that his note on December 25 at 15:40 was focused on Taha’s respiratory issues.

[438] As Dr. Marrin pointed out, on December 25 at 18:10 there is a notation “tachypnic at times, mild substernal intercostal indrawing, CR monitor, keep sats above 92 percent”—at least intermittently has the rapid respiratory rate we’ve discussed, he has the indrawing that we’ve described”.

[439] As Dr. Marrin noted, Taha was having his heart rate and respiratory rate continuously monitored electronically and keeping the saturation up was still an active issue. Dr. Marrin noted as well that once Taha was moved onto room air, consistent with the order to wean from oxygen, it looked like his breathing was settling down.

[440] In reviewing the Paediatric Assessment and Intervention Flowsheet during his testimony, Dr. Marrin noted a concern with respect to Taha’s feeding. As Dr. Marrin explained, taking only 10CCs is a very small volume (he indicated “a healthy baby at this age should be sucking back 60 or more millilitres per feed”) and it was not clear why Taha was not feeding better.

[441] On cross examination, Dr. Marrin readily acknowledged that what Mr. Clements referred to as the “feeding issue” was not commented on in his reports. No issue was taken with the propriety of Dr. Marrin commenting on Taha’s feeding during his testimony and I do not accept Mr. Clement’s assertion during argument that the fact Dr. Marrin did not comment on this issue in his reports diminishes the value of his evidence on the issue.

[442] I note that Mr. Clements raised Taha’s feeding and suck with Ms. Rokash on her cross- examination (which occurred before Dr. Marrin testified). Ms. Rokash acknowledged on cross-examination that the fact that Taha took a bottle at 21:00 on December 25 was some evidence of an improving condition. However, she would not agree that the fact that he took a bottle was some indication of “good suck”. As she noted, he only took two teaspoons by bottle and the bulk of the feeding was through the nasal gastro tube and he took less as the night went on.

[443] Ultimately, Dr. Marrin concluded that although by 21:00 on December 25 Taha seemed to be getting better from a respiratory point of view and he did not have the problem for which he was originally admitted to the nursery, Taha continued to be a child with an infection who was being treated with antibiotics and a working diagnosis of pneumonia.

[444] Ms. Rokash’s opinion on the standard of care is based on her view, consistent with Dr. Marrin’s, that Taha was not a well-baby. He had significant risk and required significant attention.

[445] Eighthly, Ms. Rokash’s standard most appropriately reflects the responsibilities and authority of a nurse while Ms. Oswald’s and Ms. O’Flaherty’s does not.

[446] As set out in the Agreed Statement of Facts Ms. Oswald reassured Mrs. Ghiassi that “this is normal jaundice”.

[447] When it was suggested to Ms. Rokash on cross-examination that she was advocating a standard that takes the exercise of clinical judgment away from the nurse, she responded that based on the knowledge of a potentially devastating outcome from jaundice there is no room for clinical judgment. In her words, a yellow baby needs a blood test. In addition, the existence of risk factors and the fact that Taha was not a well-baby created a “lower threshold”. In other words, Taha was at a higher risk of developing hyperbilirubinemia.

[448] On her cross-examination Ms. Oswald agreed that nurses do not make a diagnosis but they document relevant information so that a physician may make a diagnosis; it is not within the scope of nursing practice to diagnose whether a child has physiologic or pathologic jaundice and such a diagnosis is in the realm of a physician. At 21:00 on December 25, Ms. Oswald knew bilirubin had built up to the point that it was visual but she did not know the level of the bilirubin; she also did not know how high Taha’s bilirubin would ultimately go; she also did not know what factors in his particular makeup would have impacted his susceptibility to bilirubin toxicity; she did not know if she told a resident that Taha was slightly jaundiced whether a resident would have ordered a bilirubin test; she did not know if information as to Taha’s gestational age, the presumed diagnosis of pneumonia, or the fact that the family had an Iranian background would have been an influential factor in the resident’s decision to order a bilirubin test; and she did not know whether the fact that Taha was not yet feeding independently and was still on an IV, or whether the fact that Taha was still having occasional tachypnea and occasional difficulty breathing, would have been an influential factor.

[449] When Dr. Marrin was asked if he could describe what circumstances a physician or resident could delegate the diagnosis of physiologic or pathologic jaundice to a nurse he stated the following:

I can’t think of any circumstance under which that would be appropriate. I think the proper assessment of hyperbilirubinemia requires a fair bit of physiological knowledge, pathophysiology knowledge mechanisms by which bilirubin is handled. And a level of knowledge that I would not anticipate – it would just simply not be the nurse’s job to do that kind of a fairly sophisticated, although not complicated assessment.

[450] Ms. O’Flaherty agreed that in 2001 nurses were taught to both report and chart jaundice. She acknowledged that a 2001 nursing text, Thompson’s Paediatric Nursing instructed the following:

Physiological jaundice becomes evident between the third and fifth day of life and lasts for about a week. This is a normal process and is not harmful to the newborn. However, genetic and ethnic factors may affect its severity, resulting in pathological hyperbilirubinemia. Evidence of jaundice is reported and charted, and the neonate is evaluated frequently to ensure safety.

[451] As earlier noted, Ms. O’Flaherty also agreed that in medical practice in Canada and the United States there was a low threshold to conduct a bilirubin test.

[452] Ms. O’Flaherty further agreed that all of these practices met the standards of the College of Nurses that no unnecessary risk of harm be taken with a patient. As set earlier, Ms. O’Flaherty acknowledged that to meet the LHSC patient specific outcome that a baby not exhibit signs and symptoms of jaundice, which would be consistent with the standards, when a nurse sees jaundice it needs to be reported so a physician can determine whether or not the bilirubin level needs to be tested.

[453] I acknowledge that Ms. O’Flaherty indicated on re-examination that the standard of care would be met if the jaundice was reported in the morning but, as I earlier found, I do not accept her opinion.

[454] I am satisfied it was negligent for Ms. Oswald not to report her observation of jaundice at 21:00. The evidence is clear that the visual assessment of jaundice is not an accurate reflection of severity. A physician must be alerted to an observation of jaundice in a baby in the CTU to allow the physician to exercise his or her judgment in relation to required care.

[455] For these reasons, I accept the opinion of Ms. Rokash that Ms. Oswald did not meet the required standard of care when she observed Taha’s jaundice and did not call a physician at 21:00. As Ms. Rokash testified, in order to meet the standard of care Ms. Oswald was required to perform a full assessment, speak to Taha’s mother, identify and assess risk factors and report to the doctor.

[456] Mr. Clements argued that if I found that Ms. Oswald should have paged a resident at some point during her shift, she made an error in judgment and is not negligent. Mr. Clements relied on the following propositions from Pinch, at para. 154:

A nurse will not be liable for improper treatment or diagnosis resulting from an error in judgment, provided that the doctor or nurse exercised the knowledge, skill and judgment of the average physician or nurse when considering the case. If an assessment of physical facts revolves into a question of judgment, a nurse cannot be held liable for her error. An honest exercise of judgment will not result in liability even though other doctors or nurses may disagree with that judgment.

And from Wilson v. Swanson, at para. 7:

In any given situation, some nurses may differ from others in the exercise of their skill, knowledge and judgment depending on the significance they attribute to the different factors in light of their own experience.

[457] Mr. Clements emphasized that Ms. Oswald assessed Taha accurately, documented her observation and put Taha’s colour change in the context of Taha’s improving status and in the context of the prevalence of some degree of jaundice in over fifty percent of babies in the nursery. Mr. Clements asserted that Ms. Oswald exercised clinical judgment and she cannot in hindsight be found liable for how she exercised that judgment. He argued that if Ms. Oswald had not monitored Taha, that would be professional fault. However, because she did monitor and then made a decision as to when to report, she exercised judgment. He argued that at best, if it is found that she should have paged the resident overnight, then not doing so was an error of judgment given the otherwise stable clinical picture and such error of judgment is not negligent.

[458] Considering all my findings made above, including the fact that I found Ms. Oswald’s characterization of Taha’s condition was inaccurate and understated and that she was required to report the jaundice, I cannot find that her failure to report the jaundice at 21:00 was simply an error of judgment.

B. The causation issue

[459] As enunciated by Mr. Clements on behalf of the defendants, the plaintiffs must show, on a balance of probabilities, that but for Ms. Oswald’s negligence, Taha’s injuries would not have occurred. In this particular case the plaintiffs must show that but for the failure of Ms. Oswald to page a resident at 21:00 on December 25, Taha’s injuries would not have occurred.

[460] Before addressing the causation issues, I will first address what I will refer to as the Dr. Saleh issues. Dr. Saleh was the resident on duty December 24 and 25 overnight. Counsel agreed during argument that Dr. Saleh was the senior resident on call from at least 21:00 hours on December 25 overnight to handover on December 26. Dr. Saleh was not called upon to assess Taha during the night of December 25 and the early morning hours of December 26.

[461] During argument, I was advised that counsel had corresponded in regard to Dr. Saleh in November 2016. Ms. Legate stated in her November 2016 correspondence to Mr. Clements that Dr. Saleh had no relevant evidence to provide and his evidence raised the issue of “how unreliable the schedules of residents were”. Mr. Clements replied to her correspondence taking issue with Ms. Legate’s position respecting the residents’ schedules. Mr. Clements indicated that it was clear from the evidence of the residents who were examined for discovery that there was a system in place and there was no evidence of any gaps in resident coverage.

[462] The first Dr. Saleh issue arises from the assertion put forward by Ms. Legate during her submissions on behalf of the plaintiffs that there may have been another resident on duty overnight on December 25. Mr. Clements disagreed with that assertion and it was his position that during the night shift on December 25 the only resident overseeing the CTU was Dr. Saleh.

[463] With respect to this point, I agree with the defendants’ position that para. 27 of the Agreed Statement of Facts sets out the names of the physicians, residents and nurses who cared for Taha during the relevant time period, which included the fact that Dr. Saleh was the resident on duty the nights of December 24 and 25.

[464] There is no evidence on which a finding can be made that there was another resident on duty. Furthermore, scheduling one resident on call overnight is consistent with Dr. Marrin’s evidence. As he indicated, typically overnight staffing in an ill infant nursery would involve one resident being on duty.

[465] The second Dr. Saleh issue arises from Mr. Clements’ argument that an adverse inference should be drawn from the fact that Dr. Saleh was not called as a witness. During his argument Mr. Clements advised that the November 16 correspondence between counsel, followed a pre-trial conference and reflected counsel’s agreement at that time that Dr. Saleh need not be called as he had no relevant evidence to provide. Mr. Clements emphasized that the pre-trial conference occurred when there were 14 physicians named as defendants in the action, in addition to Ms. Oswald and LHSC. He submitted that according to the plaintiffs’ theory of causation at that time, Dr. Saleh’s evidence was irrelevant. Mr. Clements asserted that “the whole case changed” when the plaintiffs settled the action against the physicians with the result that “the entire focus of the case” was on what occurred on the night of December 25 through to the morning of December 26. Mr. Clements argued that the plaintiffs were putting forward a “new theory” of causation.

[466] As Mr. Clements noted, the question relevant to the causation issue is what would a reasonable resident, that is, what would Dr. Saleh have ordered, if anything, if he had been called by Ms. Oswald overnight on December 25/26 and been informed of her observation of jaundice. The plaintiffs submit that Dr. Saleh would have ordered a bilirubin test immediately whereas the defendants asserted that he would have determined that a bilirubin test would have been added to the morning bloodwork.

[467] The defendants refer to a decision of the Court of Appeal in Paris v. Laidley, 2012 ONCA 755 where at para. 2 the court stated that

drawing adverse inferences from failure to produce evidence is discretionary. That inference should not be drawn unless it is warranted in all the circumstances. What is required is a case specific inquiry into the circumstances, including, but not only, whether there was a legitimate explanation for failure to call the witness, whether the witness was in the exclusive control of the party against whom the adverse inference is sought to be drawn or equally available to both parties and whether the witness has key evidence to provide or is the best person to provide the evidence in issue.

[468] Mr. Clements argued that Dr. Saleh was only available to the plaintiffs because of the privacy rights over their health information. He argued that all of the physicians were treating physicians of Taha and without the plaintiffs’ consent, the defendants were not at liberty to speak with those physicians, and when the physicians, including Dr. Saleh were defendants they were adverse parties to Ms. Oswald and LHSC by virtue of both the claim and the cross-claim.

[469] Mr. Clements acknowledged that Dr. Saleh was compellable by summons, however, as he put it

[t]he hospital would have been put in the position that it would have had to call Dr. Saleh or other physicians who might inform the standard of what a reasonable second year resident would do, without knowing the answer to those questions in advance because there’s no right to speak with them. That effectively reverses the onus of proof and places the onus on the defendants to establish that the reasonable resident would not have said, order the bilirubin now. That’s not appropriate to put the onus on the defendants in that way.

[470] Mr. Clements also argued that Dr. Saleh had key evidence, or was the best person to provide evidence, on the issue of what a reasonable resident would have done and there was an obligation on the plaintiffs to elicit some evidence from Dr. Saleh as to what he would have done or what a reasonable resident would do and they failed to do that.

[471] In reply, Ms. Legate asserted that the theory of liability against Ms. Oswald and LHSC had never changed and the only theory was the theory presented during the course of the trial. Furthermore, she emphasized that Dr. Saleh had never treated Taha. As she put it “it’s clear he never was near Taha” and so any assertion that the plaintiffs had any privilege over Dr. Salah is “simply false” and the only answer he could give would be an answer to a hypothetical question which was the reason why counsel agreed that he had no relevant evidence to provide.

[472] In my view, it is equally consistent to conclude that had the defendants believed Dr. Saleh had evidence to support their position, they would have summoned him as a witness. I agree with Ms. Legate that the information that Dr. Saleh could have provided to the defendants was not privileged, because he never treated Taha, which confirms that not only could the defendants have summoned Dr. Saleh as a witness, but that they also could have questioned him before trial. I decline to draw any adverse inference against the plaintiffs on the basis that they did not call Dr. Saleh as a witness.

[473] I note that, in any event, the defendants argued that in the absence of drawing an adverse inference against the plaintiffs, the court should infer that the evidence of Dr. Saleh would be consistent with the AAP guideline which both Dr. Sangha and Dr. Warkentin indicated they were aware of in 2005.

[474] Further, I note, and agree with the defendants’ submission that in terms of knowledge and experience in caring for the babies in the CTU, Dr. Saleh should be considered equivalent to Dr. Sangha, who was the resident during the day on December 25 and who handed over care to Dr. Saleh for the night of December 25 and then resumed care on the morning of December 26.

[475] I will turn now to address the causation issues.

[476] As enunciated by Mr. Clements, in order to establish causation, the plaintiffs must establish:

1. Ms. Oswald would have paged the resident shortly after 21:00 after identifying that Taha’s colour had changed to pink, slightly yellow;

2. the resident would have returned the page promptly and would have ordered that blood be drawn so that it could be sent to the lab immediately;

3. the bilirubin level reported by the lab would be at a level requiring phototherapy; and

4. the bilirubin level would have been at a level that would have responded effectively to treatment so as to avoid the injury.

[477] The defendants submitted that the plaintiffs failed to adduce sufficient evidence in relation to points 2 to 4 set out above to support a finding on a balance of probabilities that the court, even utilizing a robust and pragmatic approach, could find that the outcome would have been different.

[478] Although Mr. Clements argued that the plaintiffs failed to elicit any evidence to address the question when the resident would have returned Ms. Oswald’s page at 21:00, I am satisfied it is appropriate to infer that Dr. Sangha, or a reasonably competent resident, would have responded promptly to the page.

[479] Mr. Clements asserted that we must assume that the resident would have asked how Taha was doing other than the colour change and the resident would have been told that Taha was stable, was clinically improving, was off oxygen and onto room air, had started to take the bottle, was urinating and having bowel movements, and was asleep and awake. In other words, all of the observations that Ms. Oswald recorded in the Graphic Record.

[480] Mr. Clements argued that had Dr. Saleh, or a reasonable resident, been given the information that there was a slight colour change and that the baby was otherwise doing well, he would have relied on the AAP guideline and would have reassessed Taha in 8 to 12 hours consistent with that guideline, with the result that the bilirubin test would have been done in the morning of December 26, as in fact occurred.

[481] I cannot accept Mr. Clements’ assertion. Once jaundice was visually assessed, the AAP guideline required a response to the question whether the jaundice by visual assessment appeared severe enough to require a bilirubin test.

[482] I also note that, contrary to Mr. Clements’ assertion during argument that the AAP guideline mandates assessments only every 8–12 hours if a jaundiced baby is older than 24 hours and the bilirubin is tested only if the jaundice is “severe enough” by visual assessment,

(i) the guideline cautions that “visual estimation of bilirubin levels from the degree of jaundice can lead to errors”;

(ii) the guideline references an appendix where under the heading clinical evaluation of jaundice and TSB measurement, the following is stated:

jaundice is usually seen in the face first and progresses caudally to the trunk and extremities, but because visual estimation of bilirubin levels from the degree of jaundice can lead to error a low threshold should be used for measuring the TSB [total serum bilirubin].

(iii) the guideline recommends a measurement of total serum bilirubin “if there is any doubt about the degree of jaundice”;

(iv) the guideline also cautioned that “visual estimation of bilirubin levels from the degree of jaundice can lead to error, particularly in darkly pigmented infants (evidence quality C: benefits exceed harms)”.

[483] Dr. Sangha indicated that he knew in December 2005 that hyperbilirubinemia, if not treated, can go on to cause permanent neurological damage and that kernicterus (when hyperbilirubinemia gets to a level where it ends up resulting in permanent neurological damage) is relatively rare but it can occur.

[484] He also understood that hyperbilirubinemia was, generally speaking, preventable by monitoring bilirubin levels; that if the levels were high they could be treated with phototherapy or, alternatively, with an exchange transfusion; and, that it is important to implement treatment as soon as possible.

[485] Dr. Sangha was also aware that jaundice in and of itself is not a perfect indicator of high bilirubin levels; that it is not as easily detectable in dark-skinned people; and that some factors put people at higher risk of developing hyperbilirubinemia, specifically that males have a slightly greater chance of developing it, as do people with Middle Eastern ancestry and babies that are born at less than 38 weeks of gestation.

[486] According to Dr. Sangha, nurses are asked to look for signs of jaundice because jaundice can be a sign of excess bilirubin levels. He indicated that jaundice is often the first clinical evidence for a physician that bilirubin levels might be high. In the normal course, jaundice triggers a bilirubin blood test and in the normal course you would want to order a bilirubin test as soon as you were made aware that a patient was evidencing some signs of jaundice.

[487] As Dr. Sangha indicated, you want to find out as soon as possible whether or not there is a correlation between the signs of jaundice and excess bilirubin levels so that appropriate treatment can be implemented as soon as possible.

[488] Dr. Sangha confirmed that he treated Taha based on the bilirubin test result. In other words, “the jaundice triggers the bilirubin test. It’s the bilirubin tests, as well as the clinical examination, that trigger the decision on how to treat”.

[489] Dr. Sangha was asked if he would have ordered a bilirubin test immediately after being told that the baby was jaundiced and he responded as follows:

[i]t depends on the situation, but yeah, I would, I would order a bilirubin often times if they, if the nurses say that the baby looks a little bit jaundiced. You may say, okay, so let’s do the blood work with the morning blood work, let’s add a bilirubin to it, that sort of thing.

[490] Dr. Sangha indicated if he had been advised at the start of his morning shift that the baby was starting to look jaundiced, the appropriate course of action in his mind would have been to order the bilirubin test at that time and he would have done so “without hesitation”. In my view, a reasonable inference is that he would have ordered a bilirubin test overnight on December 25 if he had been the resident who was paged.

[491] When it was put to Dr. Sangha that if the bilirubin levels are high, then most of the time phototherapy, which isn’t very invasive, can bring the levels down and prevent harm to the baby, Dr. Sangha responded “ideally”.

[492] I note that Dr. Sangha’s evidence is consistent with Dr. Warkentin’s and the more senior physicians who supervised the residents. Dr. Warkentin observed that relying entirely on visual jaundice is not a sufficient way to screen neonates for the potential for developing hyperbilirubinemia and the way to test for bilirubin levels is to take a blood test.

[493] As Dr. Matsui stated, in the normal course, if a nurse identified jaundice and advised a resident or herself of the jaundice, that would generally trigger a test for bilirubin levels. Similarly, Dr. Singh indicated that with respect to bilirubin levels, the “range is quite wide. So, you can be fooled by the range of bilirubin. So, I would not predict a baby’s bilirubin level in the blood based on how jaundiced the baby looked”. However, it is significant that he went on to say, “But clearly when the baby looks jaundiced, then you should do a bilirubin level”.

[494] I do not agree with Mr. Clements’ argument that the significance of Dr. Singh’s evidence is diminished by the fact he supervises residents in the PCCU rather than the CTU. Residents such as Dr. Sangha worked in both the PCCU and the CTU so they would have been exposed to the teachings of physicians in both units.

[495] All of the foregoing evidence is consistent with Dr. Marrin’s evidence that the starting point is always to measure the bilirubin. As he put it, “until we’ve done that, we don’t have an essential data point in our assessment. A change in colour only reveals that the bilirubin is rising”. He also said, “[t]hat’s about all it tells us. The correlation between visual assessment of bilirubinemia and the actual bilirubin concentration in the blood is poor. So all we can conclude from the fact that the child has become jaundiced is that the bilirubin level is rising”.

[496] Dr. Marrin was clear that residents would have been educated with regard to the relevance of factors contributing to hyperbilirubinemia and “the fact that hyperbilirubinemia to some degree, whether or not it reaches the threshold of jaundice or not, is a universal phenomenon”. Dr. Marrin was also clear that residents would have been well educated with regard to the fact that high levels of bilirubin are potentially brain damaging and they would understand that phototherapy is an effective treatment for a rising bilirubin. He also indicated that residents would understand, “as has been known for decades”, that the visual assessment of bilirubinemia is very inaccurate and in certain populations of children, depending on their pigmentation, is more problematic than others.

[497] In addition, Dr. Marrin stated that residents would further understand that hyperbilirubinemia is a condition which has the potential to be brain damaging if not addressed appropriately, and therefore there is some urgency in getting the bilirubin level tested because “first of all the level has to be done”.

[498] Dr. Marrin went on to explain that in using the term “urgency”, he did not necessarily mean immediately, “[b]ut certainly in a baby who was not thought to be jaundiced and is now seen to be jaundiced, the appropriate course of action and what we would teach the residents is you need to do a level within a few hours of that observation”.

[499] As Dr. Marrin put it, certainly through the early 2000s, anybody who was involved in the care of a newborn who was transitioning from intrauterine to extrauterine life would have to be really not paying attention to have missed the concerns about the bilirubin and the emerging strategy for preventing unacceptable levels of bilirubin in a child.

[500] Dr. Marrin was asked the following: if at 21:00 on December 25 a nurse reported to a resident that Taha appeared slightly jaundiced and that baby was otherwise doing well and had a presumed diagnosis of pneumonia, what would you expect a resident to do with that information? He responded that the resident would have to realize that the jaundice was being presented presumably as a new finding. The child has a working diagnosis of pneumonia, which means an infection, and so the susceptibility of the child or the relevance of the bilirubin may be enhanced because the child has an infection. The resident needs to assess the relevance of the new finding in light of the other factors that are known about the child. Dr. Marrin also explained that a report of slightly jaundiced “really doesn’t mean a whole lot because the visual assessment of the jaundice is potentially inaccurate” and the more correct statement is to say that the child is jaundiced.

[501] Dr. Marrin indicated that the resident would want to know the child’s history to this point and the current state of the child and then would question whether the jaundice would alter in any way the plan of care for the child going forward. Dr. Marrin was clear that “none of that can really be done without knowing what the bilirubin level is, and so a resident needs to start their assessment by obtaining a bilirubin level and then putting that in the context of the other factors that I’ve described in coming to a determination”.

[502] Dr. Marrin explained that the gold standard for a bilirubin test would be drawing a blood sample from the child and having the laboratory do the measurement. The gold standard was utilized in LHSC. Dr. Marrin indicated that in the vast majority of cases the bilirubin test for a newborn would be done through a heel prick sample—the only practical risk factor associated with that would be the discomfort of the procedure, which is fleeting.

[503] In terms of when the bilirubin would have been tested, Dr. Marrin indicated that an appropriate response from the resident would be to ask the nurse how frequently the child’s vital signs and other assessments were being done. In other words, how frequently was the child being disturbed in some way? Here, because the flowsheets revealed that Taha was cared for on a three-hour schedule, it was Dr. Marrin’s opinion that it would not be unreasonable for the resident to ask the nurse to take blood for the bilirubin test within the next handling episode, on the assumption that that would be done three hours later, at 24:00. As Dr. Marrin explained, in handling a sick or pre-term baby, you try not to disturb the baby any more than is really necessary. Therefore, he thought it appropriate a blood sample be obtained at 24:00.

[504] Dr. Marrin was also asked: if the mother was there, was concerned that the baby does not arouse from sleep, and noted that she had experience with jaundice with other children, how would that change, if anything, what you would expect a resident to do with that information? Dr. Marrin responded that there would be “almost a quantum leap in concern” because, as he put it, “we have a child who presumably met the respiratory rate criteria to allow orally feeding, yet only took a very tiny amount of feeding. Also the picture now is emerging of a child who has some degree of central nervous system depression. Jaundice can be associated with some degree of central nervous system depression when the bilirubin is high.”

[505] Dr. Marrin was challenged during cross-examination on his evidence that I set out above. It was put to him that in his report he stated in relation to the issue of timing that “[i]t is possible that the first recognition of jaundice on the night of December 25 would have resulted in a bilirubin determination and the initiation of therapy”. Mr. Clements suggested to Dr. Marrin that during his examination-in-chief he had elevated the sense of urgency to say that the bilirubin test would have been done in three hours if Dr. Saleh had been paged whereas his opinion had been that it is only possible that the bilirubin test would have been performed that night.

[506] Dr. Marrin responded that there is a distinction in his mind between what might the resident have done and what a resident should do. Dr. Marrin was clear that a very knowledgeable, competent resident and who was comfortable with the transitional care of a newborn, who was presented with new onset of jaundice in a baby being cared for in a level two nursery and being treated for a presumed pneumonia, would probably do the bilirubin at midnight. Dr. Marrin explained that when he wrote his report he did not know the resident or anything about the competence of the resident, and as a result he was more circumspect in saying the test might possibly have been done.

[507] Dr. Marrin was very clear during his testimony as to the appropriate course of action of a reasonably competent resident notified of an observation of jaundice. He was equally clear that 12 hours after the observation of jaundice would not be the appropriate time to do the bilirubin test. As he explained, the decision to do blood work or any investigation at any time has to reflect a balance between the perceived risk to the patient and the benefit of doing the test and with regard to jaundice in Taha’s age group, a 12-hour delay in getting the blood work is an unacceptably long delay.

[508] Dr. Marrin was also clear that if the jaundice was identified at 9:00, no one would defer blood testing of the bilirubin until 12 hours later at 21:00. As he put it, that’s “a 12-hour time interval during which it would be the appropriate assumption that whatever the cause of the bilirubin, it’s rising. And if no one would allow a 12-hour interval from observation of the jaundice to testing during the day time why should we tolerate that at night?” Dr. Marrin was clear that he would be very critical of a resident who waited 12 hours from the first sign of jaundice before testing.

[509] As Dr. Marrin explained in providing his responses to the questions I outlined above, the standard he was applying was the standard required of a reasonably competent, second year resident, who in most programs, would have had a neonatal rotation at some point in the first year. As he further explained “this is likely their second exposure to neonatal care. Hyperbilirubinemia is one of these prototypical conditions that everybody has to learn about and probably would learn about on their first rotation. So I would expect by second year residency, a resident should know the questions to ask, explore the circumstances surrounding the child’s observation of jaundice and then act accordingly. And if they were in doubt, I would expect them to contact their senior resident or the attending physician on call”.

[510] Dr. Singh indicated that most “bili problems” start in day two, three or day four, but mostly day three and that fact coupled with knowledge of the risk factors for Taha; an awareness that severity cannot be determined by visual assessment; and, an awareness that a condition that can cause permanent neurological damage can be prevented with treatment, leads to the finding that it is more likely than not a reasonably competent second year resident would have ordered a bilirubin test. As Dr. Sangha indicated, you want to find out as soon as possible whether or not there is a correlation between the signs of jaundice and excess bilirubin levels so that appropriate treatment can be implemented as soon as possible.

[511] I acknowledge that Dr. Marrin’s opinion as to when the bilirubin test would be done after a report of jaundice was further challenged on cross-examination when Mr. Clements referred to Dr. Sangha’s evidence that none of the physicians expressed surprise that the test was not done earlier. Mr. Clements suggested to Dr. Marrin there is in fact “no expectation that just the reporting of a colour change is going to prompt a TSB, as there was no surprise the next morning that this baby was jaundiced in the unit for 12 hours”. Dr. Marrin responded by noting the thrust of his reports had been to question the competency of the physicians who were involved in Taha’s care and to point out areas in which he thought their performance did not meet an acceptable standard of care. As he put it, “if these are the same people who are sitting around the table hearing the story from the resident in the morning, it doesn’t surprise me that they wouldn’t raise any alarm because I’ve concluded they weren’t competent in their management of them anyway”.

[512] Although the plaintiffs dismissed their claim against the physicians, I am satisfied that Dr. Marrin’s explanation for any lack of surprise as to the delay in testing the bilirubin makes sense. The lack of surprise does not lead me to a conclusion that a bilirubin test would not have been ordered by Dr. Saleh, or a reasonably competent second year resident, if he had been paged by Ms. Oswald to receive her report.

[513] Having found that Mrs. Ghiassi reported her observation and her past experience to Ms. Oswald at 21:00, this information would have been conveyed to Dr. Saleh had Ms. Oswald contacted Dr. Saleh. I am satisfied that her report would have prompted sufficient concern to have caused Dr. Saleh to order a bilirubin test with Taha’s next handling at 24:00. While as previously noted, there is no evidence as to how quickly residents respond to a page while on call overnight, I am satisfied that a conversation in response to a page at 21:00 would have occurred within sufficient time to allow the blood to be drawn at midnight.

[514] Considering

• the recognition that jaundice is often the first clinical evidence that the bilirubin levels might be high but visual jaundice is not a reliable indicator of bilirubin level;

• that a change in colour tells physicians that bilirubin in rising;

• the awareness that sick babies are at higher risk of complications from bilirubin, that males are at higher risk, that babies of Middle Eastern descent are at higher risk, and that having siblings who required phototherapy elevated the risk;

• the ease with which an investigation of bilirubin level can be undertaken – it required only the fleeting discomfort of a heel prick;

• the significant consequence to a vulnerable patient to an unchecked rise in bilirubin;

• the noted ease of obtaining bilirubin tests in the hospital – a bilirubin test is a routine test and lab services are available at any time;

• the fact that nurses and physicians may not feel the need to attempt to carefully assess jaundice severity clinically when accurate blood levels are so readily available as reported in the paediatric journal;

• the statements in the AAP guideline, including reference to “the low threshold” for a bilirubin test to be ordered and the recommendation that total serum bilirubin be measured “if there is any doubt about the degree of jaundice”;

• the fact that no treatment can be initiated before a bilirubin test is conducted;

• that to use the words of Dr. Marrin, “the starting point is always to measure the bilirubin” and until that is done physicians don’t have an essential data point “in their assessment”; and,

• that a reasonably competent nurse would have advocated for the test,

I am satisfied that more likely than not a reasonably competent second year resident would have ordered that Taha’s blood work be taken for a bilirubin test at the next handling after Ms. Oswald had reported to the resident that she had observed jaundice – at the latest at 24:00.

[515] I note that Ms. Oswald testified that it was her practice to document her care of all the babies under her care (usually three) during each shift at each three-hour mark. In other words, Taha’s care at 24:00 most likely was not exactly at 24:00 but most likely sometime prior to that exact time.

[516] Dr. Marrin testified that the result of a bilirubin test would probably be back in 45 minutes to an hour because it is a very routine test which can be done anytime, day or night.

[517] Taha’s blood was drawn by Ms. Rockburn at 8:45 on December 26. The blood was received in the lab at 9:01. The test result was called from the lab at 10:00, which is a timing consistent with Dr. Marrin’s evidence.

[518] I am satisfied that had Taha’s blood work been done when Taha was next handled after 21:00, at about 24:00, the results would have been available one hour to one hour and 15 minutes later.

[519] The next issue is whether the bilirubin reported by the lab would be at a level requiring phototherapy. Dr. Marrin stated that in 2005 a physician in deciding when, and if, to start phototherapy would take into account the maturation of the baby. The threshold for instituting phototherapy would be lower in a near term or pre-term baby compared to a full-term baby. The physician would also take into account the overall health of the child. Again, the threshold for instituting treatment would be lower in a child who is sick. In addition, the physician would undertake a risk assessment and make some determination of the potential for the current level of bilirubin to continue to rise to a level that would be of concern.

[520] Dr. Marrin emphasized there are “no side effects of the phototherapy which in any way outweigh the benefit of doing it”.

[521] Dr. Marrin was “quite certain” that Taha’s bilirubin would have been in the range mandating phototherapy at 21:00 if a bilirubin test had been conducted following the report of jaundice at 21:00 given how high Taha’s bilirubin was in the morning and, “more so”—that is more certain—if the bilirubin test was done at 24:00.

[522] Dr. Marrin’s evidence is consistent with Dr. Singh’s evidence. Dr. Singh agreed that babies that are ill, whether it be from infection or because of respiratory problems have a higher complication of hyperbilirubinemia. In other words, a sick baby has a reduced ability to compensate for excess bilirubin levels in their blood and is more at risk of having adverse consequences from high bilirubin levels in their blood.

[523] He also indicated that if a previous baby in a family had jaundice that required phototherapy, it was more than likely that the new baby would require phototherapy. He went on to explain that a good percentage of babies would require phototherapy, which is “quite normal”. He further indicated that babies with Middle Eastern ancestry require a higher level of phototherapy than Caucasian babies. Dr. Singh emphasized that phototherapy is a “very common thing that lots of babies will require”.

[524] I am satisfied that had a bilirubin test been conducted at Taha’s next handling after the observation of jaundice, then more likely than not, Dr. Saleh, or a reasonably competent second year resident, would have ordered that phototherapy be initiated. Dr. Marrin testified that because Taha was in a special care nursery there should be phototherapy equipment readily available.

[525] Mr. Clements in argument contended that if I found the bilirubin would have been tested at 24:00 and phototherapy initiated thereafter, then the phototherapy would have begun at 2:15. He relied on the fact that Dr. Sangha wrote an order for phototherapy at 10:40 in the morning (40 minutes after the results of the test were called in by the lab) and the phototherapy was commenced at 11:00. Therefore, the total amount of time from drawing blood to starting phototherapy the morning of December 26 when the result of the bilirubin test was critically high was 2 hours 15 minutes.

[526] As Dr. Marrin noted, physicians cannot monitor a baby for evolving subtle neurological signs and then institute treatment only when those occur. As he put it, you want to be ahead of that evolution and a delay in treatment runs the risk that by the time you realize there’s a problem related to the bilirubin, the damage has been done.

[527] Therefore, according to Dr. Marrin, having identified that the child is jaundiced, it is necessary to get the bilirubin level down reasonably expeditiously, and having determined the level of bilirubin and that the child meets the threshold for treatment, the treatment should be initiated as quickly as possible.

[528] Phototherapy is not an invasive treatment. It is “quite normal” and “very common”. A reasonably competent second year resident would know it is an effective treatment of jaundice.

[529] I am satisfied that it is more likely than not that if the bilirubin test had been ordered at the next handling after the jaundice was reported at 21:00, Dr. Saleh, a reasonably competent second year resident, would have ordered phototherapy and it would have been initiated as quickly as possible, just as it was on December 26—20 minutes after it was ordered. Based on what occurred the morning of December 26 and considering the evidence of Dr. Marrin that phototherapy “would have been started within an hour or so after that” [the ordering of the bilirubin test], I am satisfied that phototherapy would have been initiated no later than 2:15 but for the negligence of Ms. Oswald.

[530] The remaining issue is whether the evidence established that if phototherapy was so initiated, the bilirubin was at a level that would have responded effectively to treatment so that Taha would not have sustained his injuries.

[531] Dr. Marrin testified that phototherapy is very effective in bringing the bilirubin down. At a minimum, phototherapy certainly arrests the rate of rise of the bilirubin, so a risk associated with delaying the phototherapy is that the bilirubin will continue to rise. The problem with ABE is that an infant can fairly quickly go from a fairly healthy looking baby to one who begins to manifest the signs of the acute kernicterus or bilirubin encephalopathy.

[532] The phototherapy initiated at 11:00 on December 26 reduced Taha’s bilirubin level to 403 µmol/L by 14:30.

[533] The overt signs of bilirubin encephalopathy, being the opisthotonos and arching, started at 15:00.

[534] Unfortunately, it is evident that even though phototherapy was initiated at 11:00 it was not effective to stop Taha’s brain injury although it was effective to bring the bilirubin level down.

[535] Dr. Marrin testified that had the phototherapy been initiated around 21:00 or between 21:00 and 24:00 on December 25, the bilirubin level would be lower than the 423 µmol/L that was identified the morning of December 26. However, he could only speculate about what the level might be. As Dr. Marrin explained, he needed a data point. However, he was clear that the bilirubin level would certainly not have risen to 423 µmol/L had the phototherapy been started around 21:00 or between 21:00 and 24:00 on December 25.

[536] Dr. Marrin went on to explain that the direction of change appeared to be one of a rising bilirubin, not a falling bilirubin. That explained why starting the phototherapy at 21:00 or 24:00 would have resulted in a bilirubin less than the 423 µmol/L that was seen in the morning of December 26. Therefore, the initial bilirubin level before treatment would have been less than the 423 µmol/L that was seen in the morning of December 26 regardless of whether the phototherapy was started at 21:00 or 24:00 on December 25.

[537] Dr. Marrin was quite confident in his opinion that Taha would not have developed kernicterus if phototherapy had been instituted at either 21:00 of 24:00. This evidence is unchallenged.

[538] However, Mr. Clements emphasized that Dr. Martin was not asked the “causation question” of whether phototherapy would have been effective if initiated at 2:15. He argued that without evidence of the effectiveness of phototherapy at 2:15, there is “no other evidence the court can draw on to infer that it would have been effective”.

[539] Mr. Clements agreed that the evidence established that when phototherapy was initiated December 26 at 11:00 it was not effective to prevent Taha’s injuries. Mr. Clements also agreed that Dr. Marrin testified that the rise of bilirubin is linear. However, he emphasized that there is no evidence as to a normal progression of bilirubin levels although the court may infer that Taha’s rate of rise was abnormally fast given that his bilirubin level reached 423 µmol/L within 12 hours of jaundice first being observed whereas the majority of newborns have a peak bilirubin level of 280 µmol/L.

[540] Mr. Clements asserted that while Snell and the subsequent jurisprudence relied on by the plaintiffs would not require the plaintiffs to pinpoint Taha’s bilirubin level when the phototherapy should have been initiated (which Dr. Marrin testified would require speculation), the court was not provided with any framework to analyze “the timeframe for the phototherapy to have worked”.

[541] On the other hand, the plaintiffs relied on the reasoning in Aristorenas and in particular referenced the following sections found at paras. 58–61:

[i]n Snell, Sopinka J. indicated that causation did not have to be established with scientific precision but that there still needed to be evidence and other considerations that, when viewed pragmatically and robustly, would satisfy a trier of fact on a balance of probabilities that there was causation.

The "robust and pragmatic" approach is succinctly set out at para. 16 of Athey:

In [Snell], this Court recently confirmed that the plaintiff must prove that the defendant's tortious conduct caused or contributed to the plaintiff's injury. The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward, and as was quoted by Sopinka J., it is “essentially a practical question of fact which can best be answered by ordinary common sense”. Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof. (Citations omitted)

In Athey, Major J. speaks of avoiding a rigid application of the test or requiring scientific precision. He also says that common sense can aid in the determination of causation. Further, an inference may be drawn without scientific proof. While this language does evoke a more “relaxed” standard to proving causation, it does not alter the requirement that the plaintiff must establish causation on a balance of probabilities. In my view, the “robust and pragmatic” approach modifies the type of evidence as well as the factors that the court may consider. It does not modify the amount of proof required to establish causation.

The above distinction can be illustrated by applying the “robust and pragmatic” approach to the facts in Snell. In Snell, neither expert was able to express with certainty an opinion as to what caused the harm or when it occurred. As a result, the court used a combination of evidence and other considerations to support a finding of causation on a balance of probabilities:

First, while experts were not able to testify as to causation on a standard of scientific precision, there was some evidence that the negligent operation had led to the injury.

Second, the trial judge was satisfied that there was a greatly increased risk of injury because of the negligence.

Third, there was a finding by the trial judge that “virtually rule[d] out natural causes”.

Fourth, the defendant was in a better position to observe what occurred. He also was in a better position to interpret what he saw.

Fifth, the negligent operation resulted in a situation where it was impossible for anyone else to detect the precise cause of the injury.

[542] The defendants agree that this situation is similar to that in Aristorenas where the issue was whether the three-day delay in diagnosis resulting from the defendant’s negligence caused the development of necrotizing fasciitis.

[543] However, the defendants emphasized the following caution expressed by the Court at para. 76 of Aristorenas:

Eschewing scientific certainty does not eliminate the need for any evidence to support causation. If causation can be inferred in the absence of any proof, then it in indistinguishable from reversing the burden of proof, something Sopinka J. clearly disapproved of in Snell.

[544] As set out in Aristorenas, at para. 50 referencing Sharpe J. in Cottrelle:

If, on a balance of probabilities, the plaintiff fails to prove that the unfavourable outcome would have been avoided with prompt diagnosis and treatment, then the plaintiff’s claim must fail. It is not sufficient to prove that adequate diagnosis and treatment would have afforded a chance of avoiding the unfavourable outcome unless that chance surpasses the threshold of “more likely than not”.

[545] Relying on the court’s commentary at para. 58 of Goodwin (Litigation guardian of) v. Olupona, 2013 ONCA 259, Mr. Clements emphasized that the court is required to find, and what the plaintiffs are required to provide is, enough evidence to get to a “causative route”. Mr. Clements indicated that the plaintiffs must “get over a threshold, in essence, to take that first step on the causative route, and then once they’re on the causative route, then the court can take a robust and pragmatic approach to the facts available to it and determine whether or not the plaintiff has adduced sufficient facts in order to find that the outcome would have been different”.

[546] Taha was still neurologically intact when examined by Dr. Sangha at 10:00 on December 26. The bilirubin dropped from 423 µmol/L to 403 µmol/L at 14:30 as a result of phototherapy. Overt neurological damage occurred at 15:00.

[547] Dr. Marrin’s opinion set out above that if phototherapy was started at 21:00 or 24:00 on December 25, Taha’s injuries would not have occurred is unchallenged. Dr. Marrin’s evidence also established that phototherapy blunts the rise of bilirubin and reduces the level of bilirubin in the blood.

[548] It is clear that if phototherapy was initiated 11 to 14 hours earlier than it was on December 26, the rise of the bilirubin would have been blunted and the level of bilirubin would have been reduced.

[549] The plaintiffs note the conclusion of the British Columbia Court of Appeal in Lankenau Estate v. Dutton (1991), 1991 CanLII 808 (BC CA), 79 D.L.R. (4th) 705 where the Court indirectly rejected that the plaintiff would be required to adduce scientific proof in circumstances where the plaintiff was incapable of demonstrating such proof. As the Court stated,

[t]o say that a plaintiff, in the circumstances of a case such as this, has the burden of showing that, if there had been no breach of duty, she could and would have received effective, in the sense of relieving the pressure, treatment, before 1715 on the 12th June rather than before the time the appellant says she could and would have received such treatment, namely, 1800 hours, seems to me to be importing into the concept of the legal burden of proof a requirement that a plaintiff demonstrate scientifically that which is incapable of scientific proof.

[550] The plaintiffs emphasized that Dr. Marrin was obliged to speculate as to the level of bilirubin, when phototherapy would have been initiated but for the negligence of Ms. Oswald, as a result of the negligence of Ms. Oswald and this fact should be taken into account in evaluating the evidence adduced by the plaintiffs to meet their burden of proof.

[551] The plaintiffs asserted that a reasonable inference is that if phototherapy at 24:00 was protective and there would have been no injury, Taha would have received the same benefit from phototherapy initiated after the bilirubin was tested at or before 24:00, given the imprecision the plaintiffs are faced with because of Ms. Oswald’s negligence (it is because she failed to report her observation that the plaintiffs are unable to precisely determine the bilirubin level) and because of Ms. Oswald’s charting (we do not know precisely when Taha’s next handling would have been after 21:00).

[552] Given

• that the first assessment of jaundice was at 21:00 on December 25;

• that Dr. Marrin was quite certain that no injury would have occurred if phototherapy was initiated at 24:00 on December 25;

• that phototherapy is effective in blunting the rise and reducing the level of bilirubin in the blood;

• that the occurrence of kernicterus is an unlikely event;

• that from 21:00 on December 25 to 8:45 on December 26 (just under 12 hours) Taha’s bilirubin rose to 423 µmol/L;

• that Dr. Marrin testified that “the failure to act permitted the bilirubin to rise unabated to the level of 423 µmol/L”;

• that Dr. Marrin was clear that “the direction of change” was “a rising bilirubin not a falling bilirubin” and the rise is “linear”;

• Dr. Sangha’s acknowledgement that a bilirubin level of 423 µmol/L is above the level for exchange transfusion, but according to his understanding of the guidelines and the standards in 2005 phototherapy is tried first;

• that the physicians caring for Taha on December 26 must have been confident that the phototherapy ordered at 10:40 would be effective - a second bilirubin test was not undertaken until just under four hours after the phototherapy was initiated;

• that Taha was neurologically intact at 11:00 on December 26; and, that he did not exhibit any signs of ABE until 15:00 on December 26,

• that Taha’s bilirubin declined from 423 µmol/L to 403 µmol/L between 11:00 and 14:30 on December 26 after receiving phototherapy; and

• total serum bilirubin levels are not considered critical when below 425 µmol/L and are not considered severe when below 340 µmol/L

it is more likely than not that Taha’s kernicterus would have been prevented had phototherapy been initiated within 5 hours after the jaundice was first observed.

[553] Further, Dr. Marrin testified that early signs of a bilirubin level increasing in the bloodstream and/or hyperbilirubinemia are seen when a child is “less active and can be described in various ways by the medical or nursing staff as sleepy or lethargic or less responsive. But an early sign would be a seeming overall depression of responsiveness of the baby to its environment. It can also include a reluctance to feed orally.... Now, those are not necessarily manifestations of acute bilirubin encephalopathy in the lasting sense, but rather can be transient manifestations of an elevated bilirubin which, if treated, would be reversible.”

[554] Therefore, if either what Mrs. Ghiassi observed or Taha’s limited oral feeding throughout the night were a subtle sign of Taha’s bilirubin increasing, these transient manifestations would have been reversible if treated.

[555] I am satisfied that it is more likely than not that but for the negligence of Ms. Oswald, Taha would not have suffered his injuries. But for the negligence of Ms. Oswald, the bilirubin level would have been tested and phototherapy initiated when such treatment would have avoided the eventual outcome.

Conclusion

[556] Ms. Oswald and LHSC are liable to the plaintiffs for their damages.

[557] I am indebted to counsel for the efficient presentation of the evidence, the thoroughness of their submissions during argument and their very helpful joint statement of law in addition to their individual statements.

”Justice L. C. Leitch”

Justice L. C. Leitch

Released: October 31, 2017

CITATION: Ghiassi v. Singh, 2017 ONSC 6541

COURT FILE NO.: 56435

DATE: 20171031

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Taha Ghiassi, Pouya Ghiassi, Pedram Ghiassi, by their Litigation Guardian Faredeh Ghiassi, Faredeh Ghiassi personally and Taher Ghiassi

Plaintiffs

– and –

Ram Nivas Singh, Aleksander Kornecki, Doreen Miyako Matsui, Gurinder Singh Sangha, Sandra Oswald, London Health Sciences Centre, Lily Sui Liang, Fatima Kakkar, and Joel David Warkentin

Defendants

REASONS FOR JUDGMENT

LEITCH J.

Released: October 31, 2017